Notice & Comment

D.C. Circuit Review – Reviewed: Encore!

Yesterday, my husband took me to see a performance by the Glenn Miller Orchestra. The band is the modern iteration of Glenn Miller and his Orchestra, the great swing band of the late 1930s and early 1940s. The orchestra disbanded after Glenn Miller went missing while serving in World War II but formed again in tribute to the legendary bandleader a short while later. With all of Miller’s arrangements of songs about trains, telecommunications, and even alcohol, there’s great potential for an administrative-law connection. Alas, last week’s sparse releases provide no such link. But the admin cases are both, like the Orchestra itself, encore acts.*

On Wednesday, the D.C. Circuit re-released its en banc opinion in Al-Hela v. Biden. The Court announced its decision the week before last but withheld the opinion pending classification review.

The question presented is one of great interest. Before 2020, the D.C. Circuit had never expressly decided whether the Due Process Clause applies to alien Guantanamo Bay detainees. But the panel in this case (Judges Rao and Randolph) held that it does not: “the Due Process Clause may not be invoked by aliens without property or presence in the sovereign territory of the United States.” Judge Griffith (now D.C. Circuit Review—Reviewed blogger) concurred in part and concurred in the judgment. He would not have reached the categorical constitutional question because he found that Mr. Al-Hela’s due process rights (if any) had been satisfied. Vacatur in favor of en banc rehearing followed.

Hyland Hunt covered the en banc argument on this blog, over eighteen months ago. The three separate star footnotes recording changes in Court personnel testify to the passage of time. The more-than-one-hundred pages of opinions testify, perhaps, to the reason for the long wait. Now we know (what might have been inferred from the judgment) that the Court (in an opinion by Judge Wilkins) sided with Judge Griffith: it eschewed the categorical answer in favor of a narrow ruling that Mr. Al-Hela suffered no rights violation.

The opinion, though long awaited, is not especially surprising. Per Hyland: “When the D.C. Circuit granted en banc rehearing, it seemed like a categorical answer from the full Court might be forthcoming. [But t]he ground has shifted . . . . The government has reversed position; it no longer argues that due process is categorically inapplicable (though still disputed any due process violation in the case).”  Judge Randolph takes the government to task for what he calls a “political retreat,” but right or wrong, the government (mostly**) secured the ruling it argued for.

Those interested in the question whether the Due Process Clause applies to aliens detained at Guantanamo need not despair, however: there are excellent dueling opinions on the question from Judge Pillard (joined by Judges Rogers and Millet), Judge Rao (joined by Judge Walker), and Judge Randolph (joined by Judges Henderson and Walker).

The opinions also make for good reading on the practice of judicial restraint and how it should work when two alternative resolutions both implicate the Constitution.  The majority pointed out that, in the name of judicial restraint, the Supreme Court often refuses to decide whether a right applies when it finds that the right has not been violated. In her opinion, Judge Rao responds as follows:

In addition to chilling lawful government conduct, query whether the Court’s due process analysis—coming as it does in the unusual and difficult context of Guantanamo detentions—answers unresolved questions about the requirements of the Due Process Clause in a way that weakens that clause’s protections for others.

I will give fellow blogger Judge Griffith the final word on this question (drawn from the original panel decision) and leave it to the reader to decide:

The Court’s other admin law decision came in Zukerman v. USPS. I’ll leave the set-up for the case to Aaron Nielson, who covered the previous appeal on this blog with his usual humor, and illustrations, to boot! The question this time around is whether the district court properly denied a disaffected postal customer injunctive relief to remedy his First Amendment challenge to a now-defunct program that provided custom postage stamps. Zukerman objected that the Postal Service’s vendors rejected his political postage design while printing other politically themed stamps.  The Court held that the district court’s declaratory remedy was proper because Zukerman’s requested injunctive relief—that the Postal Service print his requested design or, in the alternative, that it recall or invalidate any outstanding political postage—would be infeasible.

* The Court also issued an opinion in United States v. Johnson, which involved a procedural challenge to a criminal sentence for drug trafficking and unlawful firearm possession. The Court affirmed in part, reversed in part, and remanded for resentencing.

**The Court remanded Al-Hela’s substantive due process claim to the district court.

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