Notice & Comment

D.C. Circuit Review – Reviewed: “In America, THE LAW IS KING”

I wish Archie Harrison Mountbatten-Windsor a long and happy life. But I don’t want to hear about it. Over 60 million people live in the United Kingdom. I know a fraction of a fraction of a single percent of them. Yet for some reason, Americans know a great deal about young Mr. Mountbatten-Windsor. And by “young,” I mean it. He was born on Monday, May 6, 2019 — four days ago. As far as I can tell, he has accomplished nothing beyond what billions of others have done before. Nonetheless, a quick google search for “Archie Harrison Mountbatten-Windsor” comes back with 18,700,000 results. Why? Because far too many people care about royalty.

Debates about crowns are common and I won’t rehash them here. Suffice it to say, some defend the monarchy — and they even use arguments I appreciate. “Royalty is the most venerable embodiment of British tradition, tradition is the lifeblood of identity, identity generates social cohesion without resort to force, and social cohesion is the sine qua non of a viable polity.” But even if my mind understands the argument, my heart does not. I can’t do it! I’m not British; I’m American. And to my bones, I’m no monarchist.

Judge Janice Rogers Brown — for whom I clerked — once quoted Thomas Paine as follows: “[L]et a crown be placed thereon, by which the world may know, that so far as we approve of monarchy, that in America THE LAW IS KING. For as in absolute governments the king is law, so in free countries the law ought to be king; and there ought to be no other.” Justice Antonin Scalia also used that same quote in his famous essay, The Rule of Law as a Law of Rules. Scalia then continued the thought a few paragraphs later:

In a democratic system, of course, the general rule of law has special claim to preference, since it is the normal product of that branch of government most responsive to the people. Executives and judges handle individual cases; the legislature generalizes. Statutes that are seen as establishing rules of inadequate clarity or precision are criticized, on that account, as undemocratic — and, in the extreme, unconstitutional — because they leave too much to be decided by persons other than the people’s representatives.

To be sure, I see arguments against Paine’s formulation. For instance, what if the law itself empowers the king? Even in monarch-less America, law protects the president, members of Congress, and judges in the exercise of their duties. Not everyone is treated the same — and that’s okay! The law itself recognizes, rightly, that absolute equality is not always required. Even so, I think I understand what Paine was driving at. There is a reason why justice wears a blindfold and judges take an oath to “administer justice without respect to persons, and do equal right to the poor and to the rich.” There is a reason that “[w]e hold these truths to be self-evident, that all men are created equal.” And there is a reason why we are uneasy about something as minor as a special judicial license plate. A free people should not be subject to arbitrary power. And a monarchy has more than a whiff of arbitrariness to it. In fact, forget special license plates; the Queen of England doesn’t even need a driver’s license.*

This week, the D.C. Circuit returned to an issue with a Thomas Paine-ish undercurrent: When can the government force someone to repeat a government-approved message as a remedy for unlawful conduct? We saw an extended discussion of this sort of remedy in 2016, and Judge Williams had some sharp things to say about it:

For those familiar with 20th century history, such an order conjures up the system of “criticism-self-criticism” devised by Stalin and adopted by Mao. “Criticism” generally took the form of an attack on the target by his or her peers at a meeting with fellow workers, spouting claims fed them by powerful members of the Communist party (on pain of themselves being tagged enemies of the people), and then regurgitated by the target (“self-criticism”) in the hopes that full confession might avert dispatch to the gulag, torture or execution.

What is the subtext communicated by the sort of scene the Board would mandate? What is communicated to the assembled workers and the perpetrator himself? “You see before you one of your managers, who normally has a responsibility to make important choices as to your work. But who is he? Not merely is he a lawbreaker, but he is a pathetic creature who can, at the behest of federal officials (and not especially lofty ones at that), be forced to spout lines they have put in his mouth. He is not even a parrot, who can choose when to speak; he is a puppet who speaks on command words that he may well abominate. We have successfully turned him into a pathetic semblance of a human being.” Of course, one may say, here it is just that the mighty have fallen; he was a lawbreaker. But fallen so low? Fallen to a condition that denies his autonomy?

That analysis prompted a splintered panel. Notably, Judge Rogers observed that because the petitioner there was allowed to have an agency official read the notice, “there is no need to imply that the Board’s judgment in specific egregious circumstances has abandoned democratic principles.” So I’ve been waiting to see what would happen the next time the issue came before the Court. This week, the issue returned … kind of. In Marshall County Coal Company v. MSHR, Judge Edwards (joined by Judges Millett and Pillard) confronted a challenge to an order requiring a company’s owner to read a statement as a part of remedy for his unlawful discouragement of anonymous complaints. Okay? Yes — because of forfeiture:

Before this court, Petitioners make two challenges to the order requiring Murray to read the ALJ’s prepared statement to all miners. They argue that this remedy constitutes government-compelled speech, compromising Murray’s First Amendment rights. And, relying on this court’s case law under the NLRA, they claim that the Commission lacks the authority under the Mine Act to order the reading of a prepared statement because that remedy is punitive rather than remedial. However, Petitioners forfeited these objections by failing to raise them in the first proceeding before the ALJ, in their first appeal to the Commission, and again when the case was remanded to the ALJ.

I suspect the issue will be back.

The Court also decided another appeal — in fact, a set of three consolidated appeals — that also may have a Paine-ish vibe. In Maalouf v. Islamic Republic of Iran, Judge Edwards (this time joined by Judges Srinivasan and Pillard) addressed whether a district court can dismiss a terrorism claim against Iran as time-barred, even if Iran did not appear in court to raise that affirmative defense. No, it cannot. “Approving the approach taken by the District Courts and defended by the Appointed Amicus would be tantamount to giving the courts carte blanche to depart from the principle of party presentation basic to our adversary system.” It is difficult to do this opinion justice in a blog post; it is long and goes through a lot of cases and doctrines. It also appears to have been well argued by all involved. Here, however, is a paragraph that caught my attention:

We are unmoved by the Appointed Amicus’s argument that foreign nations’ treatment in U.S. courts may impact “the reciprocal foreign litigation interests of the United States when it is sued in any foreign court.” … This is a concern for the political branches, not the judiciary. As the Sheikh appellants note, the Supreme Court has been clear in its FSIA jurisprudence that it is not for the courts “to consider the worrisome international-relations consequences” of adjudicating actions under the FSIA.

Next, consider United States v. Wright. Judge Griffith (joined by Judges Pillard and Sentelle) opened his opinion this way: “Displeased with his first two court-appointed attorneys, appellant Tyrone Wright chose to proceed pro se. He made this choice in the face of repeated warnings by the trial judge about the hazards of representing himself in a criminal matter.” You can guess where this is headed. Sure enough, the Court affirmed:

A defendant’s loss of trust, lack of communication, or serious disagreement about strategy might, in some cases, warrant appointing substitute counsel or render the decision to proceed pro se “involuntary.” This is not such a case. We agree with the district court that Wright’s criticisms of Cooper’s strategic decisions lack merit and arose from his misunderstandings, which the district court sought to correct. Given this, it was not an abuse of discretion to decline to appoint substitute counsel, nor was it an error of law to conclude that Wright could voluntarily choose to proceed pro se.

Part of living under the rule of law is accepting the consequences for bad decisions. That said, there is a discussion of forfeiture at the end of the opinion that is noteworthy.

Finally, we come to Figueroa v. Pompeo. I don’t usually spend a lot of time with fact-specific employment cases; the purpose of this blog is to discuss administrative law. Figueroa, however, is an important case. Here is how Judge Wilkins (joined by Judges Henderson and Edwards) began his opinion:

A worker challenging employment discrimination often must demonstrate her employer’s illegal intent. That is not easy. Employers ordinarily are not so daft as to create or keep direct evidence of discriminatory purpose. Decades ago, the Supreme Court devised a three-step process to help the employee make her case through circumstantial evidence. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05 (1973). Over the years, we have filled hundreds of pages in the Federal Reporter explaining the first and third prongs of the McDonnell Douglas framework. This case compels us to bring into focus an issue on which we rarely pause: what we require at the second step.

The second step is whether the employer can “articulate a legitimate, nondiscriminatory reason for its action.” What does that mean? Per the Court (citations omitted):

Numerous factors may come into play at the second prong. We list four here, expecting them to be paramount in the analysis for most cases. First, the employer must produce evidence that a factfinder may consider at trial (or a summary judgment proceeding). Second, the factfinder, if it “believed” the evidence, must reasonably be able to find that “the employer’s action was motivated by” a nondiscriminatory reason. That is, the employer must “raise a genuine issue of fact as to whether the employer intentionally discriminated against the” employee. Third, the nondiscriminatory explanation must be legitimate. In other words, the reason must be facially “credible” in light of the proffered evidence. A central purpose of the second prong is to “focus the issues” and provide the worker “with ‘a full and fair opportunity’ to attack the” explanation as pretextual. Thus, as the fourth factor, the evidence must present a “clear and reasonably specific explanation.” A “plaintiff cannot be expected to disprove a defendant’s reasons unless they have been articulated with some specificity.”

Notably, the Court cited to the briefing in many, many earlier cases to examine whether an argument about the second step was raised. I count ten cites to briefs. I haven’t thought much about citing briefs, though Aditya Bamzai once briefly touched on it here at Notice & Comment.

And with that, enjoy your weekend — and try not to think too much about young Mr. Mountbatten-Windsor. That is, unless you are interested in knowing why he isn’t a prince (yet) and how “the queen issued a ‘letters patent’ in 2012 so that Prince William and his wife, Catherine — aka the Duke and Duchess of Cambridge — could name all their children princes or princesses.” But really, why should you be interested in that?

* Michael McConnell penned one of my favorite lines: “The panel’s decision ultimately stands for the proposition that if the government allows us to do business, it can take our property as a condition. Not since the barons prevailed at Runnymede has that been the law.” (Note: I was recused about everything having to do with that case.)

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