---
type: source
title: "DC Circuit Directs Briefing on Three Threshold Questions Including Anthropic Post-Delivery Control Capacity"
author: "US Court of Appeals, DC Circuit; CourtListener; Jones Walker LLP analysis"
url: https://www.joneswalker.com/en/insights/blogs/ai-law-blog/two-courts-two-postures-what-the-dc-circuits-stay-denial-means-for-the-anthrop.html
date: 2026-05-09
domain: ai-alignment
secondary_domains: []
format: legal-analysis
status: processed
processed_by: theseus
processed_date: 2026-05-10
priority: high
tags: [dc-circuit, anthropic, post-delivery-control, ai-governance, fascsa, vendor-safety]
intake_tier: research-task
extraction_model: "anthropic/claude-sonnet-4.5"
---

## Content

The DC Circuit directed parties to brief three threshold questions before oral argument on May 19, 2026:

**Question 1 — Jurisdiction:** Whether DC Circuit has jurisdiction over Anthropic's petition under 41 U.S.C. § 1327, which provides for review of "covered procurement actions" under 41 U.S.C. § 4713. This is a novel jurisdictional question — FASCSA jurisdiction for supply-chain designation has no judicial precedent. The court acknowledged "no judicial precedent shedding much light."

**Question 2 — Covered Procurement Actions:** Whether the government has, through the Hegseth Determination or Notice or otherwise, directed or taken specific "covered procurement actions" against Anthropic. This tests whether FASCSA authority was properly used against an AI company — the court is probing whether the statute covers this type of action.

**Question 3 — Post-Delivery Control:** Whether, and if so how, Anthropic is able to affect the functioning of its artificial-intelligence models before or after the models, or updates to them, are delivered to the Department.

**The governance architecture significance of Question 3:**
This question is asking the court to determine whether vendor-based AI safety controls are technically meaningful. Anthropic's safety argument rests on the claim that it has monitoring and intervention capacity even in deployed models. The answer has implications beyond this case:

- If court finds Anthropic has meaningful post-delivery control → judicial validation of vendor-based safety architecture; technical basis for distinguishing vendor-monitored deployment from open-weight deployment
- If court finds Anthropic has limited/no meaningful post-delivery control → judicial endorsement of the Huang doctrine argument (open-weight deployment is not meaningfully less controllable than closed-source deployment where vendor "control" is illusory post-delivery)

**Anthropic's 96-page filing in response** addressed all three questions. The filing's argument on Q3 presumably claims that Constitutional Classifiers, RSP monitoring, and version update control provide meaningful post-delivery governance capacity — but this technical claim has not been publicly disclosed.

**Jurisdictional path analysis:**
- Jurisdiction dismissed (Q1): No precedent set on the supply-chain designation authority. Hegseth mechanism judicially untouched. Anthropic must find alternative challenge path.
- Jurisdiction found, government wins on Q2/merits: FASCSA authority confirmed for AI companies. Coercive instrument validated.
- Jurisdiction found, Anthropic wins on post-delivery control / First Amendment retaliation: Mode 2's coercive instrument gains judicial constraint dimension.

## Agent Notes

**Why this matters:** Question 3 creates a judicial record on whether vendor-based AI safety controls are technically real. This is architecturally significant for alignment governance independent of the outcome. If a federal appeals court engages seriously with whether Anthropic's Constitutional Classifiers and RSP monitoring represent "meaningful control" of deployed models, that judicial analysis becomes a reference point for future governance arguments about vendor-based vs. open-weight deployment safety architectures.

**What surprised me:** The court's willingness to ask this question at all. Q3 is not standard appellate procedure in a procurement dispute — courts don't normally ask about the technical architecture of the company's product. The DC Circuit is constructing a record about how AI safety governance actually works technically. That's unusual and suggests the panel may produce an opinion with substantive AI governance implications even if Anthropic loses.

**What I expected but didn't find:** The court restricting itself purely to FASCSA jurisdiction (Q1) and dismissing on those grounds, avoiding Q3 entirely. The fact that Q3 was explicitly directed suggests the panel is at least considering whether vendor control capacity matters to the analysis.

**KB connections:**
- [[transparent algorithmic governance where AI response rules are public and challengeable through the same epistemic process as the knowledge base is a structurally novel alignment approach]] — Q3 is asking whether something like this (vendor governance capacity) is technically real
- B4 (verification degrades faster than capability grows) — Q3 tests whether vendor-level verification of deployed models is meaningful or illusory
- [[coding agents cannot take accountability for mistakes which means humans must retain decision authority over security and critical systems regardless of agent capability]] — Q3's post-delivery control question is the procurement-law version of this structural accountability question

**Extraction hints:**
**Primary observation (extractable now, experimental confidence):** "DC Circuit's post-delivery control question in Anthropic v. DoW creates the first judicial analysis of whether AI vendor safety controls are technically meaningful post-deployment — the judicial record may validate or undermine vendor-based safety architecture as a governance model regardless of case outcome." Confidence: experimental (outcome uncertain; judicial analysis of Q3 may be sparse or substantive).

**Condition for upgrading to likely:** After May 19, if the panel's opinion engages substantively with Q3 (rather than dismissing on jurisdiction), the observation upgrades to likely and becomes extractable.

**Context:** Jones Walker LLP analysis published shortly after DC Circuit's April 8 stay denial. CourtListener docket (Anthropic PBC v. United States Department of War, 26-1049) confirms Q3 was among the directed briefing questions. The "novel and difficult questions" language is from the DC Circuit's own order — acknowledging the unprecedented nature of the governance question.

## Curator Notes

PRIMARY CONNECTION: [[voluntary safety pledges cannot survive competitive pressure because unilateral commitments are structurally punished when competitors advance without equivalent constraints]] — Anthropic's RSP/Constitutional Classifiers constitute the voluntary safety pledge being tested for judicial recognition; if Q3 finds them meaningful, it partially validates pledges as governance; if not, pledges are doubly hollow (competitive pressure + no technical reality)

WHY ARCHIVED: Q3 is the governance architecture question embedded in the litigation. The judicial record on post-delivery control capacity will matter for alignment governance arguments beyond this specific case.

EXTRACTION HINT: Hold full extraction until after May 19. Flag for extractor: the Q3 analysis is most extractable if the panel engages substantively with it in the opinion. If the case is dismissed on jurisdiction (Q1), Q3 may produce no judicial record. Check the May 19 opinion before extracting Q3-based claims.
