Notice & Comment

D.C. Circuit Review – Reviewed: “Anarchist Extremist”

I’ll admit it: I like words I don’t come across every day.* For instance, I recently heard “carnival food” at a very formal gathering and smiled. What a great word: “carnival”—especially combined with “food.” (“Carnival fare” would have done the trick too, but I like “food” better.) This has been a very busy week at the D.C. Circuit. To reward myself for plowing through all the opinions, I’ve decided to pluck my favorite phrase from each one of them.

To begin, three cheers for Judge Srinivasan for penning one of my favorite introductions in a while: “In 2011, appellant Jeffrey Labow came to learn that he had been identified as an anarchist extremist by an FBI agent.” FOIA is not my cup of tea (in fact, I have no cup of tea), so, honestly, I don’t really look forward to FOIA cases. But a phrase like “anarchist extremist”—that will catch my attention! (Here is the backstory: “In 2008, anarchists protesting against the World Bank and International Monetary Fund vandalized the Four Seasons hotel in Washington, D.C. The FBI’s Joint Terrorism Task Force investigated the incident. One of the targets of the investigation sued the government. In the course of a deposition in connection with that lawsuit, an FBI agent mentioned Jeffrey Labow as another known extremist. The agent refused to answer a question about whether the FBI maintained a file about Labow because answering might reveal information about ongoing law enforcement activities.”) The case is Labow v. DOJ, and Srinivasan—joined by Judges Henderson and Rogers—concluded that Labow may be entitled to some of the FBI’s files on him, but it will all have to be sorted out on remand.

Next, consider the pseudo-consolidated cases True the Vote, Inc. v. IRS and Linchpins of Liberty v. United States. (Why only “pseudo”? Because the cases were not officially consolidated, but the same panel heard both, and decided that one opinion was enough.) My favorite phrase: “anti-Administration orientation.” I’m not sure you are aware, but it turns out that the IRS subjected certain entities to heightened scrutiny because of their “conservative or anti-Administration” names. This is a problem: it is a “blatant violation of the First Amendment” to “discriminate on the basis of viewpoint.” In response, some of those entities sued for money damages, plus equitable relief. Although rejecting the former, here is the Court’s punchline on the latter remedy: “It being plain to the Inspector General, the district court, and this court that the IRS cannot defend its discriminatory conduct on the merits, the governing issue is now whether the controversy is moot. The district court held that it was; we conclude that it is not.” Why isn’t it moot? Take it away Judge Sentelle (joined by Judges Henderson and Ginsburg):

Here, voluntary cessation has never occurred. The IRS has admitted to the Inspector General, to the district court, and to us that applications for exemption by some of appellant-plaintiffs have never to this day been processed. The IRS proudly boasts that “no more than ‘two’ applications for exemption remain pending with the IRS.” Further, they claim, “the vast majority of the plaintiffs lack a personal stake in the outcome of the lawsuit . . . .” We would advise the IRS that a heavy burden of establishing mootness is not carried by proving that the case is nearly moot, or is moot as to a “vast majority” of the parties. Their heavy burden requires that they establish cessation, not near cessation.

. . .

Parallel to Joseph Heller’s catch, the IRS is telling the applicants in these cases that “we have been violating your rights and not properly processing your applications. You are entitled to have your applications processed. But if you ask for that processing by way of a lawsuit, then you can’t have it.” We would advise the IRS: if you haven’t ceased to violate the rights of the taxpayers, then there is no cessation. You have not carried your burden, be it heavy or light.

And there is more tax law. In Eshel v. Commissioner of IRS, Judge Millett (joined by Judges Griffith and Pillard) offered this great line: “The Commissioner’s position, moreover, is the legal equivalent of trying to clap with one hand.” (By the way, who doesn’t love reading Judge Millett’s opinions?) This case concerns international taxation and social security. I urge you, dear reader, to peruse this one for yourself.  But here is the key point: “The tax court declared the status of those French laws not by analyzing the text of the totalization agreement or the understanding of the parties, but by resorting to American dictionaries. That was legal error.”

Next, a case with a great caption: Pursuing America’s Greatness v. FEC. (Of course, it’s no Linchpins of Liberty v. United States, but in a normal week, that caption would win hands down.) It seems that Pursuing America’s Greatness (PAG) supports candidates in federal elections. As an unauthorized committee, the FEC prohibits PAG’s use of candidates’ names in PAG projects unless PAG clearly opposes the candidate. PAG sought a preliminary injunction preventing the FEC from enforcing its rule during this election cycle. Judge Griffith, joined by Judges Kavanaugh and Randolph, sided with PAG because this rule “restricts political speech based on its content.” Likewise, the government could further its interest in a less restrictive way: “For example, as amicus pointed out, the FEC could require a large disclaimer at the top of the websites and social media pages of unauthorized committees that declares, ‘This Website Is Not Candidate Doe’s Official Website.’” What’s the best phrase from this opinion? Probably “‘I Like Mike Huckabee.’” What can I say? “Huckabee” is an interesting surname.

Ortiz-Diaz v. HUD also merits a read—even for lawyers who don’t follow discrimination law. Ortiz-Diaz worked for HUD for over 10 years. Following a promotion, he sought other positions. The facts are complicated, but here is the short version: his request was denied. Judge Henderson, joined by Judge Kavanaugh, held that denying a lateral transfer alone cannot qualify as a “materially adverse action.” Judge Rogers dissented. This case is interesting because both Judges Henderson and Kavanaugh wrote concurrences. Henderson disagreed that the decision would allow an employer to “affix[] a ‘whites-only’ sign to a water cooler”—“water cooler,” by the way, is the word of the case—while Kavanaugh wrote to say that he believed the Court’s conclusion was required by precedent but that in his view, “a forced lateral transfer – or the denial of a requested lateral transfer – on the basis of race is actionable under Title VII.”

I’ll be candid: I don’t really understand Weinstein v. Islamic Republic of Iran. (Chief Judge Garland may have been lucky to sit this one out.) Here is a preview of Judge Henderson’s opinion (joined by Judge Randolph): “The plaintiffs—victims of terrorist attacks and their family members—hold substantial unsatisfied money judgments against defendants Islamic Republic of Iran (Iran), Democratic People’s Republic of Korea (North Korea) and Syrian Arab Republic (Syria) arising out of claims brought pursuant to the Foreign Sovereign Immunities Act (FSIA). To satisfy the judgments, the plaintiffs sought to attach Internet data managed by the Internet Corporation for Assigned Names and Numbers (ICANN) and, accordingly, served writs of attachment on ICANN.” The Court says this is not okay. What’s the best phrase? Surely “plaintiffs initiated these proceedings by serving multiple writs of attachment on ICANN seeking the country-code top level domain names (ccTLD) and Internet Protocol (IP) addresses of Iran, Syria and North Korea, respectively,” though this one is in the running too: “ICANN contends that the defendants do not own the .ir, .kp and .sy ccTLDs and that ICANN is therefore powerless to effect an attachment thereof.” And this one is also pretty good: “plaintiffs demand, in effect, that ICANN delegate management of the ‘.ir’ ccTLD so that they can ‘sell or license the operation of the ccTLD[] to a third party.’” (Note, I probably need to spend more time figuring out how the internet works.) The D.C. Circuit ruled against plaintiffs for reasons such as this: “To sum up, those plaintiffs seeking to attach the underlying judgments in Haim I, Weinstein and Stern have forfeited their claims in toto. Those plaintiffs seeking to attach the underlying judgments in Haim II, Rubin, Wyatt and Calderon-Cardona have forfeited all but their claim grounded in the terrorist activity exception to attachment immunity.” Got it?

Yelverton v. Federal Insurance Company—per Judge Srinivasan, joined by Judges Millett and Wilkins—is a short-ish opinion. It seems that Stephen Yelverton has “filed ‘over 40 lawsuits, adversary bankruptcy proceedings, or appeals of the bankruptcy court’s rulings,’ and within those lawsuits ‘over 150 motions, including over 50 motions to reconsider, vacate, amend, or obtain relief from a judgment or order.’” He was told to stop doing that. The question on appeal concerned the scope of the injunction. Turns out, that injunction was not broad enough to bar certain additional filings. This opinion is well-written, but no words especially jumped out at me. This sentence, however, gives you a flavor of the case’s soap-opera vibe: “Yelverton claims that the trustee assigned to his bankruptcy case extorted his ex-wife to waive her marital claim to the estate, but that allegation does not involve Yelverton’s sisters at all.” Next, Enterprise Leasing Company v. NLRB—per Judge Pillard, joined by Judges Griffith and Wilkins—is a long-ish, fact-heavy opinion that rules in favor of the agency. Here is my favorite phrase from it: “wall-to-wall bargaining unit.” That’s a lot more fun than, say, “comprehensive bargaining unit.” (Yeah, I know; I’m stretching here.) And Union Neighbors United, Inc. v. Jewell—per Judge Wilkins, joined by Judges Srinivasan and Millett—is an even longer-ish opinion about the “Indiana bat.” Here is the takeaway: “We conclude the Service failed to comply with its [National Environmental Policy Act] obligations when it failed to consider an economically feasible alternative that would take fewer bats than Buckeye’s proposal, and we reverse the District Court on that point. However, we also conclude that the Service’s interpretation of the [Endangered Species Act] is entitled to deference.” My favorite phrase from this case is easy (I think it was Judge Wilkins’ favorite too): “The bats’ hibernating habitat is called ‘hibernacula.’” What a great word! Alas, there doesn’t seem to be a direct connection between hibernacula and Dracula, but boy, there should be.

So there you go: another week’s worth of opinions. I know, I know—this post is not my finest work as a blogger. But shouldn’t I get hazard pay for working through hundreds of pages of opinions? By the way, “hazard pay” is a great word.

* Why do so many judges like Bob Dylan? For the same reason so many lawyers like to read Justice Scalia’s dissents: good writers use wonderful words in unexpected ways. For example: “Bertha Mason shook it—broke it, then she hung it on a wall,” “I’ll look for you in old Honolulu, San Francisco, Ashtabula,” “the medicine man comes and he shuffles inside,” and my favorite (because it comes out of nowhere), “when you know as well as me, you’d rather see me paralyzed.”

D.C. Circuit Review – Reviewed is designed to help you keep track of the nation’s “second most important court” in just five minutes a week.

Print Friendly, PDF & Email