Notice & Comment

D.C. Circuit Review – Reviewed: A Nice, Boring Week (Thank Goodness!)

What I am about to say is against interest. You see, I am a law professor, and law professors are “paid to push the envelope on legal thought and theory.” But I will say it anyway. In my heart of hearts, I am a very boring person. I like stability. I like predictability. I like time to think. In short, I like boring. Of course, boring isn’t always possible, but when it is, I’m all for it.* Yet across the nation and globe, this week has not been a boring one.

Thank goodness then for the D.C. Circuit. The D.C. Circuit’s cases this week are wonderfully boring. They appear to be well crafted; they are unanimous; they don’t try to do too much. Well done!

Consider Redmond v. Fulwood, authored by Judge Millett (and joined by Judges Rogers and Brown). The Court was confronted with this question: Is the Chair of the United States Parole Commission entitled to absolute immunity? That’s an important question. And it has not been resolved in the D.C. Circuit. No doubt, that is the sort of juicy issue that could prompt an important, non-boring opinion. But the Court didn’t take the bait. Instead, it resolved the case on the narrower ground of qualified immunity. The Court’s analysis is tied to the facts. It addresses easy constitutional questions on the merits (“There is nothing plausibly unconstitutional about advising Redmond to participate in certain programs that would best prepare him for paroled release into society”) while resolving more difficult claims on the ground that the alleged rights were not clearly established (“Fulwood is entitled to qualified immunity for Redmond’s allegation of bias arising from the nature of his crime because there is no clearly established right for parole-eligible prisoners to be treated equally in the parole process regardless of the nature or seriousness of their crimes”). Can I quibble with the opinion? Sure! A bit more explanation about why the Court opted to exercise (or not exercise) its discretion to reach the constitutional merits would have been nice. (I suspect that the panel did not think this was a good vehicle for resolving those harder questions, perhaps because the complaint was filed pro se.) But any quibbling is very much at the margins. This opinion, in short, is delightfully dull.

The same is true for Niskey v. Kelly — also authored by Judge Millett (this time joined by Judges Pillard and Williams). Here, the Court held that because a federal employee began but did not complete the process for exhausting his employment discrimination claims, his suit cannot proceed. The opinion carefully recounts the facts of the case and expresses appropriate sympathy for federal employees who must maneuver through a “labyrinthine” process, often “on their own without legal counsel.” The Court then did it best to clearly explain how the process works, presumably so that pro se complainants can more easily navigate it going forward. (Here’s a sample: “But wait–there is more.”) Millett then carefully explained why equitable relief is inappropriate in this case, explaining that a “lengthy and unexplained delay in filing his formal complaint with the Department of Homeland Security does not evidence the diligent pursuit of Title VII rights that is required for equitable tolling.” No one likes to lose a case. But after reading this opinion, it is plain that the Court did its best to be fair and courteous. Again — the Court was boring in the best sense of the word.

The biggest case of the week may be Delaware v. STB, which involves preemption and railroads. This is how Judge Rogers (joined by Judges Srinivasan and Edwards) begins the opinion:

The State of Delaware has attempted to limit nighttime noise caused by idling railroad locomotives in residential areas. Under Delaware Senate Bill 135 (“SB 135”) “[n]o person may permit the nonessential idling of a locomotive under its control or on its property between 8 p.m. and 7 a.m.,” except in non-residential areas zoned for industrial use. Del. Code tit. 21, § 8503(a), (c). Acknowledging the need of locomotives to idle nonetheless, the statute exempts idling caused by: (1) traffic conditions; (2) the direction of a law-enforcement officer; (3) the operation of defrosting, heating, or cooling equipment to ensure the health or safety of the driver or passenger; (4) the operation of the primary propulsion engine for essential work-related mechanical or electrical operations other than propulsion; or (5) required maintenance, servicing, repairing, diagnostics, or inspections. Id. at § 8503(b). A violation is punishable by a civil fine between $5,000 and $20,000 for each offense. Id. at § 8505.

Delaware now petitions for review of the Order of the Surface Transportation Board based on its determination that SB 135 is categorically preempted under 49 U.S.C. § 10501(b) of the Interstate Commerce Act, as broadened in the Interstate Commerce Commission Termination Act of 1995 (“ICCTA”). It emphasizes that SB 135 is a public health and safety regulation that is narrowly tailored to avoid unduly burdening or interfering with interstate rail transportation. The Board concluded that SB 135 “has the effect of directly managing and governing the operation of locomotives that are essential parts of rail transportation.” Bd. Dec. 4 (Feb. 29, 2016). For the following reasons, we must deny the petition.

Doctrinally, the most important question in Delaware is whether the Board should receive Chevron deference for its preemption conclusion. This too is an “open question” in the D.C. Circuit. And it is a very important, interesting “open question” at that. But did the Court resolve it? Nope. Instead, in a nice, boring way, the panel sidestepped that question altogether because it the Board should prevail even without Chevron deference. Of course, avoiding a deference question can be anything but boring if a judge does so by concluding that an ambiguous text is unambiguous. That isn’t minimalism; it’s machination. But I don’t think that is what the panel was doing here.

And at last we come to two NLRB cases: King Soopers, Inc. v. NLRB and American Baptist Homes of the West v. NLRB. Let’s start with American Baptist Homes. Chief Judge Garland, joined by Judges Henderson and Wilkins, resolved a tricky dispute in a tight seven pages. Here is the heart of the analysis:

Piedmont Gardens challenges the Board’s decision to overrule Anheuser-Busch, notwithstanding that the decision will apply only in future cases. It acknowledges that a party generally lacks standing to challenge adjudicatory rulings that have not been applied to it. … Nonetheless, it maintains that it has suffered the injury-in-fact necessary to establish standing for one particular reason (and for that reason only): The Board’s order contains language directing Piedmont Gardens to “cease and desist from . . . [f]ailing and refusing to bargain in good faith with the Union by refusing to provide requested information that is relevant and necessary to the processing of a grievance.” 362 N.L.R.B. No. 139, at *9. Piedmont Gardens fears that this means it could be subject not only to unfair labor practice proceedings if it fails to follow the new rule, but to contempt proceedings as well.

As it applies to Piedmont Gardens’ duty to disclose witness statements, we read the language Piedmont cites as referring only to refusals that would violate the rule the Board actually applied in this case, that is, the Anheuser-Busch rule. … The Board said nothing to suggest it intended to subject Piedmont Gardens – alone among all employers – to the possibility of contempt if its future conduct were unlawful only under the Detroit Edison balancing test. Nor did the Board’s opinion contain any rationale that would support such an intent.

Counsel for both the Board and the union agree with our reading of the Board’s cease-and-desist order, Oral Arg. Recording at 17:20-18:07; 28:20-30:00, although neither can ensure that the Board itself would construe the language this way. But given our reading and the absence of any argument to the contrary, an attempt to treat a future violation of the newly announced rule as having contravened the order would raise due process concerns. Cf. FCC v. Fox Television Stations, Inc., 132 S. Ct. 2307, 2317 (2012) (“A fundamental principle in our legal system is that laws which regulate persons or entities must give fair notice of conduct that is forbidden or required. . . . This requirement of clarity in regulation is essential to the protections provided by the Due Process Clause of the Fifth Amendment.”). Indeed, given the absence from the Board opinion of any rationale for subjecting Piedmont Gardens to the risk of contempt for the future withholding of witness statements violative only of the Detroit Edison test, we could not uphold a cease-and-desist order that did so. …

We therefore can – and will – enforce the cited language in the cease-and-desist order only to the extent that it requires Piedmont Gardens to comply with the witness-statement disclosure requirements that the Board actually applied in this case: those of Anheuser-Busch. In other respects, Piedmont Gardens must be treated as any other employer. Because our holding eliminates any risk of the only injury that Piedmont Gardens asserts it will suffer due to the Board’s adoption of the new rule, Piedmont lacks standing to challenge that portion of the Board’s decision.

Boring? Sure. But nifty too.

King Soopers is longer than American Baptist Homes, but that is because there is more going on. Here, Judge Edwards (joined by Chief Judge Garland and Judge Griffith) concluded, among other things, that the Board can require employers to pay “search-for-work” expenses of wrongfully discharged employees. But the panel also held that “the Board’s determination that King Soopers unlawfully interrogated Geaslin must be vacated because this charge was not added to the General Counsel’s complaint until after the commencement of the hearing before the ALJ. The Company thus had no reasonable notice of the interrogation charge or a fair opportunity to defend itself.” The remedial holding seems significant to me (indeed, it probably is the least “boring” part of the week); I confess that I don’t know enough about the scheme to have an informed opinion about its correctness. It is worth observing that there was a dissent at the agency on that point because the Board’s new approach could produce a “windfall.” The D.C. Circuit, however, left open whether such a windfall would be lawful: “We need not decide whether a Board remedy that arguably produces what Member Miscimarra characterized as a financial windfall – i.e., in a situation in which a claimant’s interim earnings equal or exceed the sum of his lost earnings and employment-search expenses – will survive review. There is nothing here to suggest that this case involves such a ‘windfall.'”

That’s the week. Pretty boring, right? Hurrah!

* On the subject of boring (hopefully in the good sense), here is a link to a very short essay — based on a panel discussion — that I prepared for the Texas Review of Law & Politics. It is about the late Justice Scalia’s views on Chevron deference. My essay uses his evolution regarding Auer deference as a lens to understand what he might have done with Chevron deference. Alas, I did not have space to explore my own views. On the other hand, honestly, does anyone really want to read yet another article about Chevron?

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