Notice & Comment

D.C. Circuit Review – Reviewed: Counting Noses

The D.C. Circuit, sitting en banc, devoted over seven hours — seven hours! — of oral argument to a single matter. And the full court opted to hear the case en banc in the first instance, without an ordinary three-judge panel ever having a shot at it. Obviously, the media paid attention. With so much at stake, how could it not? And of course everyone focused on each judge’s political affiliation. Isn’t that how law works, especially in controversial cases?

At this point, you probably have guessed that I’m writing about this week’s much-discussed Clean Power Plan oral argument, “the Super Bowl/World Series/Quidditch World Cup of climate law.”* But your guess would be wrong. I’m talking about a case from 15 years ago: United States v. Microsoft. The parallels, however, are interesting.

Microsoft concerned antitrust allegations against — you guessed it — Microsoft. The district court determined that Microsoft had engaged in unlawful monopolization and ordered a controversial structural remedy “that would split Microsoft into an applications company and an operating systems company.” This was a very big deal.

The case was appealed to the D.C. Circuit, and then things got even more interesting. Let me quote an article dated February 26, 2001 that was published in the Seattle Post-Intelligencer (alas, it does not appear to be available online):

The importance of the Microsoft case is illustrated in two ways, legal observers said. First, the court has granted an extraordinary amount of time for the case to be argued—seven hours over two days. In typical cases, each side is given between 15 and 30 minutes to make its case. Seven hours, one attorney said, “is unheard of.”

The other extraordinary development is the fact that seven judges will hear the case. Most appeals are heard by three judges. “Courts don’t usually sit en banc,” said Kenneth Starr, who has argued before the court and also served as one of its judges, using the legal term for a full-court hearing. “That is unprecedented, I believe, in the history of the court. I know of nothing that is even close,” the former independent counsel said in an interview.

Because of the high stakes, many commentators tried to predict what would happen. And that speculation prompted this remarkable set of paragraphs, from the same article:

“My greatest frustration over the years has been in attempting to debunk the unfounded suggestions in the media and among some legal scholars that judicial decision making is largely influenced by a judge’s ideological preferences,” [Chief Judge Harry] Edwards said in an interview with the publication Legal Times in 1999.

Edwards was particularly angry about a story in The Washington Post suggesting that an outcome in the Microsoft appeal could be predicted by whether the appeals panel had more Democrats or Republicans.

In my view, the article was distressing, and truly offensive to everything that our judicial system stands for,” Edwards told Legal Times.

“It suggested to the world that, because Harry Edwards was appointed by President Carter, it was clear how I was going to vote. If I had Microsoft to decide tomorrow, I haven’t the faintest idea how I would vote, because I have yet to examine the record, consider the trial court’s findings, or research the law. How then does the press claim to divine my views?”

Joining Edwards, Ginsburg and Williams on the bench for the Microsoft appeal will be Judith Rogers, David Tatel, David Sentelle, and Raymond Randolph. Edwards, Rogers and Tatel were appointed by Democratic presidents while Williams, Ginsburg, Sentelle and Randolph are Republican appointees.

Fast forward to the Clean Power case. Again, the D.C. Circuit spent over seven hours on oral argument. Again, the D.C. Circuit heard the case en banc in the first instance. Again, everyone acknowledges the stakes. And again, many suggest that the D.C. Circuit will divide along partisan lines. Indeed, one commentator stated that it is “likely that D.C. Circuit will split on party lines,” and just this morning an editorial opined that “[o]f the court’s 10 judges, six are Democratic appointees, which gives the rule a good chance of surviving, as it should.”

Yet Microsoft was unanimous. More than that, the Court’s lengthy and complex opinion was per curiam: the judges spoke with a single voice. Instead, in a careful, methodical way, the Court affirmed aspects of the district court’s decision, disagreed with other aspects, and rejected the structural remedy. To this day, Microsoft is respected for its non-ideological antitrust analysis. The D.C. Circuit operated as a court in the best sense of the word.

The lesson? Whenever we are tempted to predict case outcomes by counting “R”s and “D”s, remember Microsoft.

Now on to this week’s cases. The D.C. Circuit issued two opinions this week, both of which include a dissent.

In League of Women Voters v. Newby, Judge Rogers, joined by Judge Williams, ruled against an order of the federal Election Assistance Commission allowing “Alabama, Georgia, and Kansas to add their proof-of-citizenship requirements to the [voter registration] form.” Because of that order, “a new version of the state-specific instructions for Alabama, Georgia, and Kansas went into effect, listing the proof-of-citizenship requirement. As a result, the Federal Form leads registrants in those three states to believe that they cannot be registered for federal elections unless they provide proof of citizenship.” The Commission’s order was challenged (the Department of Justice declined to defend it), but the district court denied a preliminary injunction. The panel reversed, noting, among other things, that the challengers “have a substantial (perhaps overwhelming) likelihood of success on the merits.” Judge Randolph dissented: “Of utmost importance is that on the eve of a Presidential election, and elections for federal office, a court has issued an injunction forbidding Kansas, Georgia, and Alabama from enforcing their election laws, laws requiring those who seek to register to vote to prove that they are citizens of this country. That order is unconstitutional.” I’ll not delve further into the back-and-forth between the majority and the dissent; if you follow election law, read this opinion.

And in Heartland Plymouth Court v. NLRB, Judge Brown (joined by Judge Ginsburg) ordered the NLRB to pay attorney fees. This opinion contains a fascinating discussion of the nonacquiescence doctrine: the idea that an agency that litigates in multiple circuits need not always acquiesce to a particular circuit’s views. But according to the Court here, the purpose of the doctrine is to allow circuit splits to develop for eventual Supreme Court review. What if, however, an agency does not seek certiorari? Can an agency “def[y]” a circuit “ad infinitum”? No, says the D.C. Circuit: “Nonacquiescence is justifiable only as a means to judicial finality, not agency aggrandizement. As we said in Johnson [v. United States Railroad Retirement Board], nonacquiescence is divorced from its purpose when an agency asserts it with no stated intention of seeking certiorari.” (Needless to say, there is a lot more analysis.) Judge Millett opened her dissent this way: “I certainly understand my colleagues’ concern that an agency’s persistent defiance of uniform and settled circuit precedent could ignite a separation-of-powers firestorm. But this case is nothing like that, and I strongly disagree that a bad-faith award of all the fees that Heartland incurred in this appeal is warranted.” Again, I’ll not delve further; the full story is complicated and I have not even begun to address all the moving parts. Trust me: both the majority and dissent are definitely worth a read.

So there you go—another week in the D.C. Circuit. (Here is a thought, by the way: What would today’s world be like if the D.C. Circuit had affirmed the district court’s remedy in Microsoft? Discuss.)

* By way of disclosure, Kirkland & Ellis LLP (for whom I am of counsel) submitted an amicus brief in this litigation. As always, the views expressed here are my own.

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