Notice & Comment

D.C. Circuit Review – Reviewed: Erie as Nondelegation?

The D.C. Circuit is a fascinating court. If you don’t believe me, you probably aren’t reading this post. If you are reading this post and you still don’t believe me, you will soon. That said, the D.C. Circuit is a quirky court. Its docket is odd. There are some criminal appeals (as you’ll see from this week’s cases), but there aren’t that many. There also aren’t (many) immigration cases. And there isn’t a lot of diversity jurisdiction* — which means there isn’t a lot of room for Erie guesses.

That’s too bad. Erie — the idea that federal courts are bound to follow decisions of state courts when exercising diversity jurisdiction — is fascinating. When I was interviewing for a clerkship, I was asked: “Was Erie rightly decided?” That question, which came out of the blue, is a tricky one. Some very smart folks have very smart questions about Erie. And I certainly agree with Justice Butler’s dissent that Erie was poorly handled by the Court:

But is Erie itself wrong? Well, Erie is wrong on its own terms. To get around statutory stare decisis (it’s not every day that the Court throws out a century of precedent), the Court had to ground its decision in the Constitution. But the Court’s constitutional “analysis” — if it can even be called that — was very thin. The formidable Judge Friendly much later offered the best constitutional defense of Erie, but even his defense it isn’t foolproof. So is there a defense?

Maybe. Very late at night when I was a law firm associate, I took at a stab a new constitutional justification for Erie. This is what I came up with:

Re-reading my article (which is always a dangerous thing to do), I cringe at points. Sure, I still like parts of it but, candidly, if I had to do it again today, it would be a different article. And that’s okay. Writing and, indeed, thinking are skills that have to be developed, and we all have to cut our teeth on something. By forcing myself to think hard about Erie, I hope I learned how to think a little bit harder about everything.

Why am I spending so much time musing about Erie? Because this week, the D.C. Circuit dealt with the ins and outs of certified questions, which is very much part of the Erie world.

The case is Owens v. Republic of Sudan. In 2017, Judge Ginsburg (joined by Judges Henderson and Rogers) issued a decision coming in at 129 pages. As part of that decision, the Court certified the following question:

This week, the case came back to the same panel of the D.C. Circuit, which had to decide whether to accept the answer — “No” — offered by the “state” court. The panel decided to do so because the decision does not “create[] a new rule of D.C. law applicable only to certain foreign states.” Along the way, the panel addressed forfeiture and whether the D.C. court was allowed to restate the question. If you study certification, this one is worth a read.

That, however, is not the only interesting decision this week. In fact, it isn’t even the only interesting decision about the District of Columbia.

Consider DuBerry v. District of Columbia. This is another case before the D.C. Circuit for a second time. Here is how Judge Edwards, joined by Judge Wilkins and Judge Rogers (in part) opened his decision:

The City lost. And here is the heart of the decision:

Judge Rogers wrote separately to observe that she did not join the Court’s standing analysis.

In DL v. District of Columbia, Judge Tatel (joined by Chief Judge Garland) issued a decision about attorney’s fees in civil rights cases. In short, the panel concluded that the United States Attorney’s Office’s revised Laffey fee matrix is inadequate because it includes the wrong type of lawyers: “For example, for someone house hunting in Memphis, a survey of real estate prices in Seattle — even one with a perfect response rate updated daily — would be of no use. The same is true here. The USAO’s matrix is helpful only if it canvasses the relevant type of lawyer, which it does not.” Judge Sentelle dissented — with some flair of his own:

The Court also decided a criminal case (see, it happens). And it is a doozy. In United States v. Duckett, Judge Randolph (joined by Judges Griffith and Srinivasan) confronted a repeat offender with a “horrible” record (that’s the language used by Chief Judge Howell). Here is how Randolph opened his sharp opinion:

The dispute is whether the district court’s decision to sentence the defendant — who repeatedly violated the terms of his supervised released — to the statutory maximum was adequately reasoned. It was: “Chief Judge Howell was quite familiar with Duckett. This was the third time in two years he stood before her in a revocation hearing. In the Colorado sentencing and in the two previous revocation hearings, Duckett received the benefit of below-Guidelines sentences. He and his counsel therefore should have anticipated that an above-Guidelines sentence could be coming.”

We also have a tax case, but it’s not a boring one. Well, that’s not exactly true. But at least it has an interesting twist. In Tax Matters Partner of RERI Holdings I, LLC v. Commissioner of IRS, Judge Ginsburg (joined by Judges Rogers and Millett) helpfully included this chart to explain the facts:

Got it? (At this point, some appellate-minded folks are thinking, “Wait, why should I read this?” Here’s the pay-off: “As RERI points out, however, the Fifth and Ninth Circuits have adopted its position. See Todd v. Comm’r, 862 F.2d 540, 542 (5th Cir. 1988); Gainer v. Comm’r, 893 F.2d 225, 228 (9th Cir. 1990). Like the First Circuit in Fidelity [Int’l Currency Advisor A Fund, LLCv. United States, 661 F.3d 667 (2011)] and the Federal Circuit in Alpha I, L.P. ex rel. Sands v. United States, 682 F.3d 1009 (2012), we regard the reasoning in those cases as flawed.”)

Finally, we come to Libertarian National Committee v. FEC, a lengthy en banc decision authored by Judge Tatel. Judge Griffith dissented in part, as did Judge Katsas (joined by Judge Henderson). The majority upheld limits on contributions from dead people and rules regarding how a political committee can spend money if it wants to be able to accept triple-sized contributions. As to death, Tatel included this line: “[T]he corruptive potential of unregulated contributions, including the unregulated contributions of the dead, inflicts almost as much harm on public faith in electoral integrity as corruption itself.” Judge Katsas didn’t buy it: “[T]he FEC’s attempt to ratchet down the level of scrutiny by separating speech from expressive association, donors from recipients, and the living from the dead is unsupported by precedent and unsound in principle.” And as to tripling the contribution limit, which allows parties to receive more money if they spend it on things like nominating conventions and headquarters, Tatel observed that strict scrutiny does not apply because this is not an expenditure limit. Judge Griffith responded to this line of thinking: “[T]he government cannot justify treating general contributions more restrictively than segregated contributions based on … approval of a since-abandoned congressional judgment.” Suffice it to say, there is a lot more going on in this case. Especially if you follow election law, give it a close read. I suspect the Supreme Court will.

So that’s the week. By the way, if you want to learn more about Erie, you’ll enjoy this article. You’re welcome.

* Query whether there should be any diversity jurisdiction when the District of Columbia is involved.

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