SCOTUS Grants 4 Cases From D.C. Cir. So Far, All About Gov't Power

By Mark Wilson, Esq. on October 08, 2014 | Last updated on March 21, 2019

Because the D.C. Circuit is the go-to circuit for questions involving the powers of the branches of government, the cases that come from this circuit, predictably, involve government authority.

So far this term, the Supreme Court has found at least one extremely polemical issue among other more prosaic questions of agency authority.

SCOTUS Week at FindLaw

Zivotosfky v. Kerry (Oral Argument: November 3)

Next month, the Court will wade into a contentious issue involving Israeli/Palestinian politics, a 9-year-old kid, and tension between Congress and the president's immigration power.

In 2003, Congress passed a law directing the State Department to record "Israel" as a person's birthplace on a U.S. passport if the person was born in Jerusalem and if that person requests it. The statute contravenes the State Department's longstanding practice of entering "Jerusalem" as the person's birthplace. The Secretary of State contends this statute intrudes into the president's authority to choose how to recognize foreign nations. The D.C. Circuit Court agreed, holding the provision unconstitutional.

The Washington Post observes that the case "even touches on the unsettled question of presidential 'signing statements.'" When President George W. Bush signed the bill into law, he noted that he wouldn't enforce it, as it interfered with his constitutional foreign relations powers. Though signing statements aren't among the questions presented, expect at least one justice to ask at oral arguments why the president thinks he doesn't have to follow a federal statute. "Signing statements" will be the answer.

Ass'n of American Railroads v. US Dep't of Transportation (Oral Argument: December 8)

Amtrak "is a curious entity that occupies the twilight between the public and private sectors." A federal statute, the Passenger Rail Investment and Improvement Act of 2008, allows Amtrak and the Federal Railroad Commission to jointly create rules surrounding the enforcement of Amtrak's superior right-of-way over freight trains. A freight railroad trade association didn't think this was fair. Neither did the D.C. Circuit, finding the statute impermissibly delegated regulatory power to a private entity.

Perez v. Mortgage Bankers Ass'n and Nickols v. Mortgage Bankers Ass'n (Oral Argument: December 1)

Before a federal agency amends a regulation, there must be a notice-and-comment period. But what happens when a federal agency alters its interpretation of a regulation to the degree that it's effectively amended the regulation? MBA represents real estate companies that employ mortgage loan officers. These officers must be paid overtime if they work more than 40 hours a week, unless they fall into an exception.

In 2006, the Department of Labor said they did fall into an exception. But in 2010, the agency's administrator issued a new interpretation saying they didn't. MBA said the change to the agency's interpretation required a notice-and-comment period, but the DOL said MBA had failed to show reliance on the earlier interpretation. The D.C. Circuit Court said that the 2006 interpretation was "definitive" and reliance was a factor, not an element, of definitiveness.

Perez and Nickols are the same case; Thomas Perez is the Secretary of Labor, while Jerome Nickols is one of the mortgage loan officers seeking overtime pay.

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