X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.
In the past year, the U.S. Court of Appeals for the D.C. Circuit has proved itself to be an important ally to the Bush administration. A court dominated by Republican appointees — and one that promises to become even more conservative in the months ahead — endorsed controversial administration policies in the war on terror, protected the privacy of the executive branch, and loosened environmental regulations. Critics say the court, which routinely hears appeals concerning government policy, has given the president and his administration expansive freedom. But other appellate lawyers who watch the court maintain it isn’t that simple. Additionally, in a line of important regulatory cases during the past 12 months, the D.C. Circuit also delivered strong reprimands to a handful of agencies on rules regarding campaign finance and digital television, and, generally, admonitions about hewing more closely to congressional mandates. Right now, the court is fairly quiet, having heard its most recent oral arguments in May and having issued opinions on nearly all the cases it has heard since last September. It is a court in flux, awaiting the voices of two new judges in Janice Rogers Brown and Thomas Griffith and the possible departure of another in John Roberts Jr. It resumes a new oral-argument calendar next month. To some who regularly practice before it, the court maintained its long-standing reputation during the past year as conservative but hardly dominated by ideology. “It is closely divided using the usual labels of conservative and liberal, which is important in the most visible and controversial cases,” says Mark Levy, who heads Kilpatrick Stockton’s appellate group in Washington. “That shouldn’t obscure the fact that the court works remarkably well these days. It’s not riven on a day-to-day basis by broad political considerations.” Others are less certain. The D.C. Circuit gave the president and his administration expansive freedoms, says Scott Nelson, a lawyer with the left-leaning watchdog organization Public Citizen. “Several decisions displayed a great deal of deference to the executive branch,” Nelson adds. A VETERAN’S VOICE Court veteran Judge A. Raymond Randolph emerged as a leader on the court in 2004 and 2005, say some court watchers. Appointed by President George H.W. Bush in 1990, Randolph wrote pivotal opinions in rulings throwing out a suit against Vice President Dick Cheney, endorsing the authority of the administration to establish military tribunals to try suspected terrorists, and approving major changes that loosen industrial air pollution rules. “He emerged as an enormous intellectual force on this court,” says Shannen Coffin, a Steptoe & Johnson litigation partner who left the Department of Justice as deputy assistant attorney general for the Civil Division in 2004. “He had a pretty good year. The court acknowledged that he should take the lead.” Jonathan Turley, a professor at the George Washington University School of Law who has argued in front of Randolph, says that the judge is one of the “intellectual powerhouses on the court of the right.” Randolph’s recent decisions also demonstrate that his views on presidential power are very close to the White House’s, says Turley. “He showed an extreme level of deference to the president consistent with his long-held judicial philosophy,” Turley says, adding that, moreover, Randolph “tends to take a narrow view of challenges to the federal government.” Randolph played a crucial role in resolving the dispute over records of secret energy policy meetings chaired by Cheney. On remand from the Supreme Court, the D.C. Circuit in May 2005 issued a unanimous en banc opinion dismissing the central lawsuit against Cheney regarding access to the records. The ruling in In Re: Richard Cheney scuttled an effort by Judicial Watch, the Sierra Club, and others to get information about private lobbyists’ and corporations’ participation in the task force. When the court first decided against the administration in 2003, Randolph dissented from an opinion by Judge David Tatel, one of the court’s four judges appointed by Democrats. But when the case was remanded from the Supreme Court and the D.C. Circuit issued its en banc opinion in May, Randolph wrote for the full court, taking a position close to the one he had initially put forward. In a key ruling on executive power — also written by Randolph — the D.C. Circuit sided with the administration’s bid to establish military commissions to try terrorism suspects for war crimes. Randolph’s July 15 opinion in Salim Ahmed Hamdan v. Donald Rumsfeld was joined by Roberts and Senior Judge Stephen Williams, who wrote a separate concurrence. Like a number of high-profile cases recently decided in the D.C. Circuit, Hamdan’s challenge could go to the Supreme Court or be reviewed by the full appeals court. STATE SECRETS In a rare move for an appeals court, the D.C. Circuit closed the doors of the courtroom to the press, the public, and even the plaintiff just moments before the April 21 hearing in Sibel Edmonds v. Department of Justice. Edmonds alleged that she was illegally fired from her contract job as a linguist for the FBI after raising concerns about what she claims were security and management problems at the agency. In a court process that Edmonds has described on her Web site as “Kafka-esque,” Chief Judge Douglas Ginsburg and Judges David Sentelle and Karen LeCraft Henderson upheld a D.C. District Court ruling dismissing the case against the government. DOJ lawyers had invoked the rarely used state secrets privilege, arguing that if the litigation went forward and the facts in the case were made public, this would compromise national security. Lee Levine, a media lawyer with Levine Sullivan Koch & Schulz who has argued before the Supreme Court, says that while it is troubling, the decision to close the courtroom does not indicate a trend that the court has “turned back on the values of openness and open judicial proceedings.” But, Levine adds, the court did retrench from more press-friendly positions held in previous years in two recent rulings on reporters’ rights. On June 29, in Wen Ho Lee v. Department of Justice, the court ruled that several reporters must disclose their confidential government sources or be held in contempt of court. Lee, a Department of Energy scientist, filed a civil suit under the Privacy Act after being investigated by his employer and the FBI on suspicion of espionage. He ultimately pleaded guilty to only one count of mishandling classified computer files. Last month the reporters asked that the full court rehear their case. In another highly charged reporters’ rights case that has blown into a major controversy, the D.C. Circuit affirmed a district court decision that two reporters who had confidential conversations with White House aides have no First Amendment protection from grand jury subpoenas seeking the names of their sources. Writing for a three-judge panel, Sentelle said that Judith Miller, a New York Times reporter, and Matthew Cooper, a White House correspondent for Time magazine, had to testify before a grand jury investigating the alleged leak of the identity of a CIA operative. “The D.C. Circuit has traditionally been a leader in recognizing First Amendment privilege in a variety of contexts,” says Levine, who represents Associated Press reporter H. Josef Hebert and Robert Drogin of the Los Angeles Times in the Lee case. “This current court doesn’t appear to share that enthusiasm.” REGULATORY ISSUES In key regulatory decisions, the D.C. Circuit handed a significant victory to the Environmental Protection Agency and at least one major defeat to the Federal Communications Commission. In June the court upheld most of the controversial changes to rules, known as New Source Review, the EPA passed that loosen restrictions under the Clean Air Act on the growth of emissions from power plants and other large polluters. At issue were rules requiring manufacturers to obtain permits and install newer pollution controls whenever a plant modification results in a significant increase in emissions. The EPA had changed the rules in 2002, creating loopholes that made it easier to avoid the requirements, say environmental advocates. But environmental advocates say the decision was not a complete loss. The court sharply criticized the agency, telling the EPA to require manufacturers to keep more detailed records about the levels of pollution that they emit — or to demonstrate that the record-keeping requirements did not affect compliance. Eric Schaeffer, director of the Environmental Integrity Project at the Rockefeller Family Fund and a former EPA general counsel, says the court’s words should be cautionary to the agency. In July the court shut down another bid by states asking the EPA to enforce tighter environmental rules. This time, a group of states, led by Massachusetts, asked the Bush administration to regulate industrial gases that have been blamed for global warming. Randolph, who wrote for the panel and was joined by Sentelle, bypassed the broader question of whether the EPA indeed lacks the authority to order cutbacks in greenhouse gases, as the agency asserted. The states say they will appeal the decision to the full court. The circuit also slammed the FCC when it ruled that the agency had exceeded its authority in writing a rule requiring that technology be installed on digital televisions in order to prevent unauthorized copying and redistribution of digital television broadcasts. The FCC argued it was trying to prevent copyright infringement, but the court said that Congress didn’t grant the agency jurisdiction to regulate what people do with broadcasts after they’ve received them, including television clips sent via the Internet. “The main message of the decision will act as an obstacle to any attempts by the agency to regulate what content people choose to send over the Internet without express consent from Congress,” says Pantelis Michalopoulos, a Steptoe & Johnson partner who represented the American Library Association, which challenged the rule. “But it doesn’t express impatience with the agency.” A former FCC lawyer familiar with the case calls the decision a “stinging rebuke” — but hardly unexpected. The agency, the lawyer says, knew it was taking a risk with the rules in making an aggressive move to regulate a new area of technology without Congress’ express authorization. He notes, as well, that the panel’s decision follows a pattern in which Judge Harry Edwards, who wrote the majority opinion, becomes cautious when the commission is “adventurous” about its jurisdiction. ELECTION LAW The court had even harsher words for another agency in a campaign finance ruling against the Federal Election Commission. In its July 15 decision in Shays v. Federal Election Commission, the court told the agency that its rules interpreting the 2002 Bipartisan Campaign Finance Reform Act were too lax. In upholding a lower court decision, Tatel, joined by Edwards, wrote critically in a 68-page opinion of the agency, saying that the FEC’s rules “reopen the very loophole” the law was designed to close. Henderson dissented, saying that the plaintiffs should not have been allowed to bring the case. The impact of the decision extends beyond implementation of campaign finance reforms, says Public Citizen’s Nelson. “It’s less important in the context of campaign finance and more important in the area of agency practice generally,” Nelson says. He adds that the court’s decision in Shays as well as a December 2004 opinion written by Edwards and joined by Judge Merrick Garland and Senior Judge Williams in Electric Power Supply Association v. FERC made it easier for organizations or people, like the Congress members in the campaign finance case, who frequently appear before an agency, to challenge a rule if an agency fails to follow procedures mandated by Congress. The panel’s decision in Shays was pro-regulatory. But Rick Hasen, a professor of election law at Loyola University School of Law in Los Angeles, says the ruling doesn’t reflect the regulatory views of the circuit as a whole, pointing out that it came from two of the court’s more liberal judges. If the FEC asks for a re-hearing of the case by the full court, the outcome for the members of Congress challenging the rules could be much different, Hasen says.
Lily Henning can be contacted at [email protected].

This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.

To view this content, please continue to their sites.

Not a Lexis Advance® Subscriber?
Subscribe Now

Not a Bloomberg Law Subscriber?
Subscribe Now

Why am I seeing this?

LexisNexis® and Bloomberg Law are third party online distributors of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® and Bloomberg Law customers are able to access and use ALM's content, including content from the National Law Journal, The American Lawyer, Legaltech News, The New York Law Journal, and Corporate Counsel, as well as other sources of legal information.

For questions call 1-877-256-2472 or contact us at [email protected]

 
 

ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2021 ALM Media Properties, LLC. All Rights Reserved.