Notice & Comment

D.C. Circuit Review – Reviewed: “Also Known as Fish”

This is an interesting time in the D.C. Circuit. Last night, the Trump Administration likely mooted the House of Representatives v. Burwell/Price/Wright litigation. Last week, the Department of Justice sought rehearing en banc in Allina Health Services v. Price/Wright. The Trump Administration has also begun the process of undoing the Obama Administration’s Clean Power Plan, so “the landmark legal battle over the rule may die a quiet death in the D.C. Circuit.” And all the while, Greg Katsas will have his Senate Judiciary Committee hearing next week. Any of these topics would be a fine one to discuss.

Instead, however, I’ll discuss case captions. We often don’t pay that much attention to the formal captions of cases. But they can be noteworthy. I realized that when I was reading United States v. Glover, decided this week by Judge Wilkins (joined by Chief Judge Garland and Judge Edwards). The formal caption of the case, you see, is not United States v. Glover. Rather, it is this:

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Knowing Glover’s nickname is important because some of the key evidence in this drug case concerns “Fish”:

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After reviewing the evidence, the panel affirmed the district court’s denial of two petitions to vacate convictions because there was no ineffective assistance of counsel. The “also known as” in the formal caption got me thinking, however. What other unexpected words find their way into captions? So I decided to check.

A surprisingly number of cases have the word “fat” in the caption: United States of America v. Shawn Burton, also known as Fat Shawn; United States of America v. Calvin Ware, also known as Fat Calvin, 132 F.3d 1482 (Table) (D.C. Cir. Sept. 15, 1997); and United States of America v. Ricardo Eugene Epps, also known as Man, also known as Fat Man. And others also refer to physical characteristics: United States of America v. Garnell A. Campbell, also known as Baldie and United States of America v. Dannie Jones, also known as Smiley. Birds are well represented: United States of America v. Duane Phillip Jones, also known as Chicken Jones and United States of America v. Jaron Brice, also known as Daddy, also known as Bird, also known as Jay. There are also a hodgepodge of miscellaneous terms: United States of America v. Louis A. Wilson, also known as Spuds; United States of America v. James Becton, also known as Funk, also known as P, also known as Pumpkin; United States of America v. Jerome James, also known as Winky; and United States of America v. Everett M. Purvis, also known as Man-Man.

Perhaps the most interesting “also known as” captions, however, are those with numerous names listed. Here are a couple: United States of America v. Afia English, also known as Miss Lady, also known as Lucille Dundus, also known as April Bennett, also known as Lisa Bennett, also known as Melissa English, also known as Melissa Trent, also known as MIA and United States of America v. Noe Martin Cruz-Salmerson, also known as Fernando Fuentes, also known as Fernandez Fuentes, also known as Killer, also known as Jose Saul Pena, also known as Noe Martin Zammeron–Cruz, also known as Jose Aguilar, also known as Cruz Martin, also known as Fernando Torres, also known as Fernando Quentes.*

No doubt, such captions can be amusing — one can tell many jokes about “fish.” Yet on a serious note, I’m not sure why these “also known as” aliases are even useful. Perhaps there are two men named “Ernest Milton Glover” in the federal criminal system. But even if so, does it really help to sort them out for judicial-opinion purposes by saying one is “Fish”? So why do we have these nicknames in captions? There may a good reason–remember Chesterton’s fence–but I can’t think of it. After all, if knowing an alias is necessary to understand a case, the information can be included in the opinion. But why in the caption? Is it really necessary to tell the world that someone’s nickname was “Fat Shawn” or “Winky”?

If anyone knows, I’d love to learn the answer.

Apart from Glover, the Court decided two case this week. In Burns v. Levy, Judge Williams (joined by Judges Millett and Edwards) began his opinion this way: “Memo to graduate students: When multiple institutions are involved in a research fellowship, be sure that every one on which you are relying is literally on the same page of an agreement.” What follows is a convoluted story about a “postgraduate clinical research fellowship” gone sour. Burns “had a falling out” with those who were overseeing her fellowing. She “believed that she had patched things up and that all parties had agreed to her voluntary withdrawal. When the Hospital reported to Burns’s employer, the U.S. Air Force, that she had been terminated for cause, she brought this diversity action for breach of contract, defamation, and tortious interference with a prospective economic advantage.” It turns out that Georgetown University Medical Center (“the University”) and MedStar Georgetown University Hospital (“the Hospital”) are not the same, and the Hospital was not bound to follow the same terms as the University; she thus was deemed to have resigned from the University but to have been fired by the Hospital. The panel concluded that “there is a genuine factual dispute” as to whether the Hospital gave “false information” about her, but otherwise rejected her claims.

And then we come to Saad v. SEC, a case that has been bouncing around for a while. Saad was a regional director of an insurance company and a FINRA-registered broker. It also seems he was a filer of false expense reports. For instance, “[i]n July 2006, Saad scheduled a business trip from Atlanta, Georgia, to Memphis, Tennessee, but the trip was canceled at the last minute. Instead of going home to his wife and infant twins, Saad checked into an Atlanta hotel for two days. Upon returning to his office, Saad submitted a false expense report for air travel to Memphis and a two-night stay in a Memphis hotel. Attached to that false expense report were forged receipts for the fictitious airfare and hotel.” This was discovered “because Saad submitted for reimbursement a receipt for four drinks purchased at an Atlanta hotel lounge on the same date that he was supposedly in Memphis.” He was fired. When FINRA’s predecessor started asking questions, it appears that he lied again. FINRA barred him from “associating with any FINRA member firm in any capacity,” and the SEC affirmed. The first time this case was before the D.C. Circuit, the Court remanded for the SEC to consider “potentially mitigating factors, such as Saad’s termination by his employer and Saad’s personal and professional stress.” FINRA and the SEC reached the same conclusion post-remand.

This time, the D.C. Circuit–per Judge Millett, joined by Chief Judge Garland and Judge Kavanaugh–upheld the SEC’s decision, concluding it “reasonably balanced the relevant mitigating and aggravating factors before determining that the gravity of Saad’s behavior warranted remedial action.” The Court, however, remanded to the SEC to determine whether “the Commission’s affirmance of FINRA’s lifetime bar on his affiliation with FINRA and its members as impermissibly punitive.”

Judge Kavanaugh concurred to explain why it was impermissibly punitive:

My fundamental problem with this line of cases is that the term “remedial” makes little sense when describing the expulsion or suspension of a securities broker. Like other punitive sanctions, expulsion and suspension may deter others and will necessarily deter and prevent the wrongdoer from further wrongdoing. Expulsion and suspension may thereby protect the investing public. But expulsion and suspension do not provide a remedy to the victim. Under any common understanding of the term “remedial,” expulsion and suspension of a securities broker are not remedial. Rather, expulsion and suspension are punitive.

Although this argument has been rejected in the past, Kavanaugh argued that “the Supreme Court’s recent decision in Kokesh v. SEC, 137 S. Ct. 1635 (2017), means that we can no longer characterize an expulsion or suspension as remedial.” (As an aside, what he had to say about FINFRA is interesting: “FINRA is … not akin to, for example, a state bar association or the National Football League–organizations that may impose discipline without statutorily required review by a federal agency.” I added the emphasis.)

Judge Millett — who authored the majority opinion — was “dubitante regarding Part II.B,” i.e., the remand:

I have grave doubts about the propriety of remanding this case to the Commission yet again. This time, the remand seeks the Commission’s views on the relevance—if there is any at all—of Kokesh v. SEC, 137 S. Ct. 1635 (2017). But in my view, the Commission amply explained the remedial reasons for sustaining FINRA’s permanent bar on Saad’s affiliation with it and its members, and there is nothing in Kokesh that helps Saad. That presumably is why Saad himself has not whispered a word to this court about Kokesh having any bearing upon his case. Not one word. Accordingly, adding another round to this already decade-long saga does not seem worth the candle.

Interesting. (And that’s the week.)

* Some of the captions, moreover, give you a pretty good sense all by themselves that the case is going be quickly dismissed. Here’s an example: Gregory S. Hollister v. Barry Soetoro, in his capacity as a natural person; de facto President in posse; and as de jure President in posse, also known as Barack Obama.

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