Aaron Nielson is moderating a fascinating panel at the ABA’s Administrative Law Conference this Friday on “How Administrative Law Differs Across U.S. Courts of Appeals.” He will be discussing the issue with my former boss, Judge Jennifer Walker Elrod of the Fifth Circuit, Judge A. Raymond Randolph of the D.C. Circuit, and Judge Ryan D. Nelson of the Ninth Circuit. I’m really disappointed that I can’t make it to D.C. for the conference this year to see the conversation in person, and my overwhelming FOMO compels me to weigh in on the topic.
The simplest and most concrete contribution I have to offer is my list of adlaw circuit splits, which is available here. What better way to see the difference in approach among the circuit courts than focusing on where exactly they disagree on discrete legal issues? Another easy-to-see difference that really matters is the rules. There is a fairly significant level of variation among the courts of appeals with respect to the rules and processes used to decide adlaw issues. Relatedly, variation in background circuit precedent can also make a difference. In the Fifth Circuit, for example, alternative holdings are binding just as much as primary ones. In many (all?) other circuits, alternative holdings are treated as obiter dicta. Other examples include: how rigorously does each circuit scrutinize the factual bases for standing? What does or doesn’t count as a “traditional tool of construction” under that particular circuit’s precedent? Under what circumstances are “unpublished” decisions precedential? Etc.
As important as those distinctions are, I’d like to focus on the D.C. Circuit’s reputation as the “best” and/or “most important” adlaw court in the country. This phenomenon, which I call “D.C. Circuit Exceptionalism” is invariably rooted in some form of the following argument:
- Because of its “adlaw heavy docket,” the D.C. Circuit decides a higher number of “very important” cases involving the most complex and important legal issues our nation faces;
- The D.C. Circuit’s specialization in these most important and complex adlaw cases necessarily gives rise to enhanced adlaw expertise and competency;
- And because the Supreme Court so rarely reverses the D.C. Circuit, the D.C. Circuit often has the final say in these important cases;
- When you add all that up (a monopoly over the important cases; expertise in deciding them correctly; and having a final say over so many of them), the argument goes, it’s hard to deny that the D.C. Circuit is the “second most important court in the land.”
I’m not convinced. For starters, the D.C. Circuit’s docket is only proportionally more adlaw-heavy than the dockets of other federal appellate courts. Truth is, several other circuits decide far more admin cases each year. If practice makes perfect, one would think those courts would have more—not less—admin expertise than the D.C. Circuit. Don’t believe me? Let’s take a look at the scoreboard.
The following statistics come from decisions in cases terminated on the merits during the 12-month period ending June 30, 2019. During that period, 5,741 administrative agency appeals were filed in federal appellate courts nationwide; 2,977 were terminated on the merits. In the D.C. Circuit during the same period, 285 were filed and 119 were terminated on the merits. The Fifth Circuit saw far more: 505 filed; 196 terminated on the merits. The Ninth Circuit saw by far the most administrative agency appeals: 2,810 filed; 1,488 terminated.
Other details matter, too. For example, of the 119 adlaw appeals decided by the D.C. Circuit during the same 12-month period, the Court heard oral argument in over 70% of them (see here). Compare that to the Fifth Circuit, which heard oral argument in about 22% of the adlaw appeals it decided during the same time frame. The Ninth Circuit heard oral argument even less often--just 13% of the time. Why? I would guess there are several reasons. Probably the biggest is that compared to the Fifth and Ninth Circuits, the D.C. Circuit has a far lighter caseload. These statistics demonstrate that the D.C. Circuit’s docket is “adlaw heavy” not because it decides more adlaw cases, but instead because it decides far fewer cases overall and faces other complex and important areas of law (complex commercial, maritime, state habeas, etc.) far less often than other courts of appeals.
Nor are the adlaw decisions of other circuit courts any less final than the D.C. Circuit’s. Finality on adlaw questions is supposed to make the D.C. Circuit more important than its sister courts because admin questions are thought to be more important than any other questions American courts face. Ignoring the obvious questions that assumption raises (why assume federal questions are more important than state law questions? More important to whom? More important in what way? etc.), if it were true, it would lead to the bizarre result that the D.C. Circuit is somehow more important than the Supreme Court of the United States but less important than other circuit courts. After all, the D.C. Circuit issues more ultimately final adlaw decisions than the Supreme Court but fewer than its sister circuits. That can’t possibly be right.
To be clear, I’m not denying that the D.C. Circuit is exceptional. I just think it is exceptional for a different set of reasons. First and foremost, the D.C. Circuit is special because Congress says so. The U.S. Code is littered with judicial-review provisions giving the D.C. Circuit exclusive jurisdiction over an undeniably important subset of the administrative-law questions arising in the federal system. This article provides a great discussion of the D.C. Circuit’s unique jurisdiction.
Second, the D.C. Circuit’s judges are different. The vast majority have experience working in the Department of Justice, another federal agency, and/or academia. The Fifth Circuit (like other federal appellate courts) has judges from a much wider variety of backgrounds. And because of the D.C. Circuit’s perception as “the second most important court in the land,” the confirmation process for D.C. Circuit nominees is especially political—a reality that undoubtedly impacts who gets nominated (and ultimately confirmed) for that Court.
Third, the law clerks are different. In my experience, judges on the D.C. Circuit tend to place more emphasis on a candidate’s adlaw acumen and interest whereas the interview process in other circuits tends to focus more on statutory interpretation, constitutional law, and judicial philosophy more generally.
Fourth, the lawyering at the D.C. Circuit is different. The average brief I saw while clerking at the D.C. Circuit was much better than the average brief I saw at the Fifth Circuit. It seemed like every other brief I picked up at the D.C. Circuit was written by a future first-ballot Appellate Hall of Famer. I saw some very good briefing at the Fifth Circuit, too, just not as often. Add to that the fact that many (if not most) cases at the D.C. Circuit came with a set of helpful amicus briefs from concerned law professors, environmentalists, industry groups, etc. And to top it all off, because of the more relaxed pace at the D.C. Circuit, I had time to read and obsess over it all to my heart’s content long before oral argument. Not so at the faster-paced Fifth Circuit.
Fifth, the D.C. Circuit has a unique relationship with the Supreme Court. More judges make their way to the Supreme Court from the D.C. Circuit than from any other circuit. Relatedly, the Supreme Court hires more law clerks from the D.C. Circuit than from any other court. Finally, the Supreme Court bar overlaps with the D.C. Circuit bar to a greater extent than that of any other federal court. Add all that up and the D.C. Circuit judges decide cases with a unique confidence that if their decisions are reviewed, that review will be conducted by jurists with backgrounds similar to theirs, aided by law clerks who often just finished working for them, and on the basis of arguments from the same counsel they see every day. Is it any surprise, then, that the D.C. Circuit has the lowest reversal rate among federal appellate courts?
In sum, D.C. Circuit Exceptionalism is rooted in myth. The D.C. Circuit does stand alone among federal appellate courts but for reasons that have gone largely unnoticed:
- Fewer adlaw cases;
- More time to decide each case;
- A team of adlaw-obsessed law clerks to help;
- Better briefing, usually from the very best appellate lawyers in the nation;
- More frequent amicus participation; and
- A sort of home-field advantage at the Supreme Court.
I can't wait to hear Professor Nielson's panel on this issue. I'd like to think that my discussion of these issues will persuade some people out there to rethink the accepted version of D.C. Circuit Excepetionalism, but I'm not holding my breath. It's a lot easier to say many of these things from my position as a commentator who very few people even pay attention to than it would be for an actual sitting federal appellate judge in such a public forum. Nevertheless, since it's sort of a hobby horse of mine, I thought I'd share.