A blog on practice in the Nation’s second-most powerful court

Court

Can defendants waive a cause of action into existence?

No, but in the most bananas case we’ve seen in a long time, the appellees tried to do just that. The weirdness starts with the …

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Briefing

D.C. Circuit continues its war on acronyms

Last week, the D.C. Circuit revived the claims of victims of terrorist attacks in Iraq against U.S. drug companies and their foreign suppliers, who allegedly …

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Covid-19 procedures

D.C. Circuit returns to remote arguments

Less than a month after returning to in-person oral arguments, the D.C. Circuit has reverted to Zoom.  On December 30, the Court announced that thanks …

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Judges

Biden nominates South Carolina District Judge to replace Tatel

You may have missed it in the holiday bustle, but on December 23 President Biden announced his nominee to replace D.C. Circuit Judge David Tatel, …

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Administrative law

Can an agency un-moot a case by announcing a new rulemaking?

A new D.C. Circuit decision begins with this “well-settled principle”: “when an agency has rescinded and replaced a challenged regulation, litigation over the legality of …

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Statutory interpretation

Katsas v. Randolph on jurisdictional order of operations

Not long ago, two D.C. Circuit decisions reminded us not to lean too hard on jurisdictional truisms (e.g., “jurisdiction can’t be waived”), which, though seemingly …

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Statutory interpretation

Don’t lean too hard on jurisdictional truisms

Two recent decisions of the D.C. Circuit provide reminders that even jurisdictional truisms are not absolute. Truism #1:  If Congress says something is jurisdictional, it’s …

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Appellate procedure

D.C. Circuit issues (unintentionally?) dueling rulings on whether the finality of agency actions is jurisdictional

It’s common for the D.C. Circuit to say that the finality of agency action is not jurisdictional.  For example, it did so just last month—and …

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Appellate procedure

D.C. Circuit finds lack of substantial evidence—again

Courts rarely hold that agency decisions lack substantial evidence.  Or so goes the conventional wisdom.  And there’s something to it—see, for example, our recent post …

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Statutory interpretation

In statutory construction, be careful assuming the greater includes the lesser

The FDA has the undisputed power to ban a medical device entirely; but if it approves the device, it may not ban certain uses.  That …

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