Notice & Comment

D.C. Circuit Review – Reviewed: More Dissent (Plus Advice For Law Reviews)

About six months ago, I wrote a post on dissenting opinions in the D.C. Circuit. This seems like a good week to update that post with a list of every concurrence and dissent filed in the D.C. Circuit since January 30, 2016. As an added bonus, because students are just now coming back to school, I’ll also offer some unsolicited advice to law reviews about what cases merit close attention. You’re welcome!

First, here are the published concurrences (including opinions concurring in the judgment)* in chronological order:

• In United States v. Hughes, Judge Brown concurred to express her unhappiness with the government: “This is a case in which the government behaved badly and—even when the unpalatable implications of their actions became evident—exhibited neither remorse nor gallantry. Politics is a form of violence; and, in democracies, the monopoly on force is accorded to the electoral victors. Bureaucratic institutions are justified by their efficiency. That efficiency is enhanced because they may invoke the threat of force to deter non-compliance. Even so, an expectation remains that the resort to force will be neither gratuitous nor grossly disproportionate.” Law review editors: this is worth reading but probably does not merit a case comment.

• In B.D. v. District of Columbia, Judge Millett concurred in a tricky case involving a “a disabled child’s rights to a ‘free appropriate public education’ through the D.C. Public Schools”: “I write only to note that the United States Department of Education, which has responsibility for the federal administration and enforcement of the IDEA . . . has identified a third possible avenue for enforcing a hearing officer’s decision. See Brief for the United States as Amicus Curiae 13–14, Porter v. Board of Trustees of Manhattan Beach Unified School District, 307 F.3d 1064 (9th Cir. 2002) (No. 01-55032). . . . [A]ccording to the Department of Education, parents facing a lack of compliance might be able to bring another due process complaint to enforce the prior decision and, if necessary, seek judicial review of any denial of needed relief in that proceeding.” Again, this case is worth reading but it probably does not merit a case comment. Though the issue is important.

• In HTH Corp. v. NLRB, both Judges Henderson and Rogers concurred (the majority opinions deserves a read too). Here is what Judge Henderson had to say: “[W]hen a Board agent stands up to castigate an employer in front of unionized employees, those employees are inevitably left with a perception of the Board as union enforcer, not neutral arbiter. A referee calling a foul is one thing; a referee calling a foul while wearing one team’s uniform is quite another.” And here is Judge Rogers: “Because the Board’s notice-reading order is consistent with our precedent . . . there is no need to imply that the Board’s judgment in specific egregious circumstances has abandoned democratic principles.” Someone, somewhere, should write this case up. Trust me on this one.

• In ManorCare of Kingston PA, LLC v. NLRB, Judge Srinivasan wrote separately to distance himself from the majority’s conclusion: “I agree with my colleagues that the Board’s decision in this case was too cursory, in that the Board at least needed to do more to explain how its decision in this case fits with its precedent. Unlike the majority, however, I do not understand the Board’s decision declining to set aside the election to be irreparably inconsistent with its prior decisions. Rather, I would remand the case to enable the Board to explain how its rejection of petitioner’s election objection aligns with its precedent.” Let this one go—too factbound.

• In Friends of Animals v. Jewell, an important case about Article III, Judge Sentelle questioned standing: “Plaintiffs have not alleged that the unconstitutional act caused them harm or that its redress can be had in this lawsuit.” This one raises separation-of-powers issues. Pair it with this case.

Verizon New England, Inc. v. NLRB prompted both a concurrence and a dissent. Here is the gist of Judge Henderson’s concurrence: “I join Judge Kavanaugh in granting Verizon New England’s petition for review but write separately to express my doubt about the arbitration deferral standard of the National Labor Relations Board (Board) as described in the majority opinion.” Interesting but very technical.

• In Competitive Enterprise Institute v. Office of Science and Technology Policy, Judge Srinivasan concurred to take a more forgiving position than the majority: “I would conclude here only that a current official’s mere possession of assumed agency records in a (physical or virtual) location beyond the agency’s ordinary domain, in and of itself, does not mean that the agency lacks the control necessary for a withholding.” This case would have been the starting point for a prescient student comment in 2009.

International Union v. Faye prompted not one, not two, not three, but four opinions—a majority, two concurrences, and a dissent. Judge Tatel’s concurrence (he also wrote the majority) says that he would reach the same result even if D.C. Circuit precedent (Weaver v. United Mine Workers of America) did not exist and that he is “unpersuaded by the arguments advanced by my two colleagues.” Judge Millet’s concurrence (which strikes me as quite important) says this: “I write separately to explain further my conviction that Weaver controls notwithstanding the arguments made in the dissenting opinion, and yet to acknowledge the force of the arguments against Weaver’s correctness, as well as to note the potential constitutional problems the issue raises.” This case merits a case comment.

• In Mackinac Tribe v. Jewell, Judge Brown again wrote to express her ire toward the government: “Patience may be a virtue but there’s nothing virtuous about the administrative delays the BIA has routinely forced recognition-seeking Indian tribes to endure. ‘At present day, a federal acknowledgment petition can be over 100,000 pages long and cost over $5 million to assemble; the BIA estimate time for completion of the review is 30 years.’ Harry S. Jackson III, Note, The Incomplete Loom: Exploring the Checkered Past and Present of American Indian Sovereignty, 64 RUTGERS L. REV. 471, 497 (2012). That means a caseworker could start the review process her first day at BIA and retire with her full pension before ever completing it. That’s appalling.” The issue here merits a student note, but it has already been written—both the majority and the concurrence cite the Rutgers Law Review.

• In National Association of Criminal Defense Lawyers v. United States Department of Justice, Judge Sentelle—joined by Judge Edwards—expressed his displeasure with D.C. Circuit precedent and quoted Justice Sutherland: “A federal prosecutor ‘may prosecute with earnestness and vigor—indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.’” Perhaps we’ll see a cert petition.

Ortiz-Diaz v. HUD also prompted four separate opinions. Judge Henderson (who wrote the majority) concurred briefly to reiterate that an employer cannot “affix[] a ‘whites-only’ sign to a water cooler” while Judge Kavanaugh wrote to say that “a forced lateral transfer—or the denial of a requested lateral transfer—on the basis of race [should be] actionable under Title VII.” This case merits a close read.

• Finally, in United States v. Sheffield, Judge Sentelle concurred to express his displeasure with the trajectory of the court’s plain-error analysis: “I simply do not see any definition of ‘plain’ that requires an analysis based on a decision as to a different statutory scheme—that is the sentencing guidelines as opposed to the Armed Career Criminal Act—and as to which there was no consensus among the circuits nor controlling authority from this court or the Supreme Court.” If anyone submits an empirical piece on how plain-error review is applied in the circuit courts, I’ll read it.

Next, the (published) dissents, including dissents in part:

• In United States v. Abney, Judge Brown dissented thusly: “The Court’s opinion seems to be one part Back to the Future, requiring trial counsel to possess a DeLorean, a flux capacitor and the inventiveness of the fictional Doc Brown in order to render competent assistance to a client.” Interesting but too factbound to merit a case comment.

• In Independence Institute v. FEC, Judge Wilkins dissented because he thought the court’s reading of Buckley v. Valeo was entirely foreclosed: “I disagree that the several immaterial factual distinctions that the Institute offers to distinguish its challenge from that in Citizens United v. FEC, 558 U.S. 310 (2010), such as its tax status, can transform its case into one presenting a substantial constitutional question.” I know nothing about election law, but I bet some law professor is going to write an article about this case.

• In United States v. Hallford, Judge Wilkins dissented because he thought the trial court was entitled to greater deference: “I must depart from the Court’s opinion concluding that three of the District Court’s factual findings were clearly erroneous.” Very factbound.

• In United States v. Head, Judge Sentelle dissented because he is displeased with the court’s approach to plain-error review: “I fear that this circuit is drifting toward a jurisprudence in which there is no distinction between reviewing for ‘plain error’ and simply reviewing to determine whether the district court erred.” See above.

• In Nurriddin v. Bolden, Judge Wilkins dissented in a discrimination case: “While I join the bulk of the Court’s opinion, I must part ways with my colleagues on Nurriddin’s Title VII claims related to NASA’s decision not to give him a performance award in 1999.” Very factbound.

• In Diag Human S.E v. Czech Republic – Ministry of Health, Judge Sentelle dissented because he did not think there was jurisdiction: “I see no error in the district court’s finding that any legal relationship between Diag Human and the Czech Republic ended before the present dispute. Nor do I conclude that the Czech Republic has otherwise waived its sovereign immunity. I would therefore affirm the district court.” Interesting but very technical.

• In Duberry v. District of Columbia, Judge Henderson dissented: “To me, it makes perfect sense to . . . conclude that the Congress intended a state court to determine whether one of its retired law enforcement officers is ‘qualified,’ that is, whether he possessed certain state law authority so that he can obtain a state-issued certification, a condition precedent of LEOSA’s authorization to carry a concealed weapon.” Interesting but probably too narrow to merit a case comment.

• In United States v. Nwoye, the “battered woman syndrome” case, Judge Sentelle dissented: “My colleagues on this court reason differently than the district judge. I consider the district judge’s reasoning the more compelling, and I will quote from it extensively herein.” This is a very important case; perhaps a professor will write an online piece about it.

• In United States Telecom Association v. FCC—the “Net Neutrality” case—Judge Williams wrote a lengthy dissenting opinion. Here is a taste: “The silent treatment given to three of its former chief economists seems an apt sign of the Commission’s thinking as it pursued its forced march through economic rationality.” This case isn’t important at all.

• Next, in United States v. Castle, Judge Silberman dissented from the conclusion that the police erred: “In my view, the majority opinion is quite unfortunate. It not only breaks with circuit precedent, it is quite confusing regarding the appropriate scope of review we should apply in reviewing district court factual determinations—particularly inferences drawn from historical facts.” Not my field.

• Next is the aforementioned Verizon dissent, from Judge Srinivasan: “My sole (and narrow) disagreement with the court concerns the application of that deferential standard in the specific circumstances of this case.”

• In Akiachak Native Community v. DOI, Judge Brown dissented: “While I acknowledge the power of this court to declare when a case is dead, the court today euthanizes a live dispute.” I am told by those in the know that this opinion is very important in Indian Law circles.

• In Marshall v. Honeywell Technology Systems Inc., Judge Griffith dissented in a case involving a bankruptcy circuit split: “there is a genuine dispute over whether she lied or simply made a mistake on her bankruptcy forms.” I would read a good student note on this subject.

• Next is the aforementioned International Union dissent, from Judge Kavanaugh: “To start, even the Union here does not rely on Weaver to support its arguments. Think about that.”

• In Mingo Logan Coal Company v. EPA, Judge Kavanaugh dissented: “EPA is faulting Mingo Logan for not adequately detailing its costs to the agency. That’s a bit rich. It is not as if EPA said it would consider costs and then Mingo Logan failed to present evidence. Rather, as reflected in its decision revoking the permit, EPA made clear that costs were irrelevant and said it would make its decision based solely on the adverse effect on animals. It flatly violates SEC v. Chenery for EPA now to rely on Mingo Logan’s supposed failure to detail its costs when EPA (over Mingo Logan’s objection) said at the agency stage and in the District Court that costs were irrelevant. The forfeiture argument advanced by EPA (and accepted by the majority opinion) about Mingo Logan’s supposed failure to detail costs is entirely unfair to Mingo Logan. I would not countenance this kind of agency bait and switch.” I think waiver, forfeiture, and the like are great topics for student notes, but I’m almost certainly in the minority.

• Finally is the aforementioned Ortiz-Diaz dissent, from Judge Rogers: “Once again the court returns to the issue of the proper role of the district court at summary judgment but this time stumbles badly.”

Alas, this week the D.C. Circuit did not issue any separate opinions. In Aref v. Lynch, Judge Brown—joined by Judges Srinivasan and Edwards—decided an important issue about “Communication Management Units” in prison (i.e., places where “family visits and communications with the outside world [are] curtailed”): “Because we find the duration and atypicality of CMU designation sufficient to give rise to a liberty interest, we reverse the district court and remand for further proceedings to determine whether appellants were afforded sufficient process.” In Lockheed Martin v. United States, Judge Pillard—joined by Judge Edwards (with the Chief Judge sitting it out)—addressed a very complicated fact-pattern. Here is the takeaway: “The only question here is whether the government has a valid claim that the particular mechanism by which the United States will pay its share of the costs of environmental remediation under CERCLA interacts with the parties’ agreed-upon contract-based reimbursement method in a way that impermissibly requires the government to make double payment. We conclude that, in the circumstances of this appeal, the government’s claims fail.” And finally, we have two NLRB cases. In Rush University Medical Center v. NLRB, Judge Srinivasan—joined by Judges Griffith and Wilkins—relied on Seminole Rock deference to uphold the agency’s interpretation of its own regulations. And in Ozburn-Hessey Logistics, LLC v. NLRB, Judge Pillard—joined by Judges Wilkins and Edwards—sided with the agency in “the latest chapter”—and a very fact-heavy chapter—“in an ongoing labor dispute.”

So there you go: six months worth of separate opinions. Law reviews, take note!

* There also were some rehearing concurrences and dissents. Websy v. District of Columbia is an interesting qualified-immunity case. Judge Millett’s concurrence in Heller v. District of Columbia is also interesting, though it too is about waiver.

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