Notice & Comment

D.C. Circuit Review – Reviewed: Punching Bags

Justice Elena Kagan has many talents, one of which is asking sharp questions at oral argument. For instance, one of my favorite moments as a litigator came, in a case about raisins, when Kagan asked these questions to the attorney for the United States:

(1) “[B]efore you do that then [i.e., get to his prepared argument], have you conceded the point that this is not jurisdictional?”

(2) “But . . . if you are conceding now that this is not jurisdictional, it seems to me that your Tucker Act argument as a substantive argument, I mean, has been waived.” [This is a question insomuch as Justice Kagan allowed the attorney to respond.]

(3) “[W]hat would be wrong—would anything be wrong—with a—with a disposition of this Court that went something like this: Everybody agrees that this is not a jurisdictional issue, including the government, so they got that wrong. Now, as to this whole business about the Tucker Act and whether the Tucker Act provides a remedy, the government only started talking about that in a petition for rehearing en banc, and the government can’t do that. You know, it can’t introduce an argument like this in a petition for rehearing en banc. So that’s waived. And now, the Ninth Circuit can go and try to figure out whether this marketing order is a taking or it’s just the world’s most outdated law. (Laughter.)”

At least from my side of the case, the “(Laughter)” was the best part.*

In the past, I have mentioned some of the advantages that come with representing the federal government. Government lawyers, after all, represent the public, and so judges, rightly, take what they say very seriously. It is a powerful thing for a lawyer to announce, “I’m here on behalf of the United States.” But, of course, there also is a downside to representing the United States; judges do not pull their punches when they think the government is in the wrong.

This week was a tough week for the government in the D.C. Circuit.

First, consider United States v. Hughes. In this case, the defendant, under pressure from her employer Blackhawk, Inc., gave false information to the government (i.e., she certified that Blackhawk guards had received training that they had not received, which “training” allowed Blackhawk to charge more for their services). That is a crime. She was sentenced to 30 days in jail and ordered to pay restitution of over $400,000, which the district court said would only have to be paid if Blackhawk failed to pay its fine. “Even in the absence of such a payment,” moreover, “Hughes would only have to pay ‘at a rate of not less than $50 each month.’” Yet the Department of the Treasury withheld her entire tax refund (worth over $10,000), even though “[b]ecause of her disqualification from work in security services (which reduced her income and largely explains her entitlement to a tax refund), Hughes was in precarious economic circumstances even before the tax seizure, with her home already on the verge of foreclosure.” Hughes filed a Motion for Clarification or Modification of Supervised Release to challenge this seizure and to ask that her money be returned. But the district court concluded that it had no power to “order the government to return Hughes’s tax refunds or stop withholding future government payments otherwise due to Hughes.” Judge Williams, however, joined by Judge Kavanaugh, concluded that the district court did have such power. The panel further found that the district court could, consistent with the Administrative Procedure Act, order the Department of Treasury to return the defendant’s tax refund, even though she did not exhaust administrative remedies (“As to the alleged failure to exhaust, the government conspicuously fails to identify any administrative remedies available to Hughes”). Nor is Hughes required to bring a new suit.

Judge Brown concurred in the judgment but declined to join the majority on the APA issues because they were not “squarely presented” or “sufficiently briefed.” She expressed her sympathy, however, with the court’s decision to rule against the government. Indeed, she said this: “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.” And then this:

Paying off this $442,000 debt at $50 per month would take nearly 740 years; seizure of her tax refund may have reduced the reckoning by about 20 years. If the referral stands, Ms. Hughes’ future tax refunds and even her Social Security payments may also be seized by the government in satisfaction of her restitutionary debt. The point is, no matter how much suffering the government inflicts on Ms. Hughes, the Department will never recover the full amount it is allegedly owed. Yet there is no evidence the government ever sought to criminally prosecute Blackhawk—the most culpable party—a corporation that, so far as this record shows, has yet to pay a cent. There is something very wrong with this picture—so wrong Stevie Wonder could see the flaw from a phone booth in Chicago. The fact that the government cannot is deeply disturbing.


Next consider NBCUniversal Media v. NLRB. NBC petitioned for review of an NLRB decision that all NBC employees who are members of a particular union are part of a single nationwide bargaining unit and that employees assigned to the new position of “Content Producer” are also covered by the collective bargaining agreement. The NLRB’s Acting Regional Director issued a decision to the effect that “all employees covered by the Master Agreement constituted a single unit.” The NLRB later adopted this decision without elaboration. NBC challenged this adoption on the grounds that the ARD decision was flawed. Judge Edwards, joined by Judges Tatel and Millett, remanded the case to the NLRB because the court could not tell why the NLRB chose to adopt the ARD’s decision. The court examined the ARD decision and concluded that it might be based on a misreading of case law and directed the NLRB on remand to address the case law relied on by the ARD “in a way that makes more sense.” Along the way, the panel stated: “we are unable to follow the thread of the decision’s reasoning at a number of critical points”; “[w]e are thus at a loss to understand the Board’s view of the effect of either the certification decision”; “[w]e also find confusing the ARD’s attempt to distinguish the Board’s 1955 decision in NBC”; “[t]ry as we might, we cannot discern with any certainty how the ARD meant to distinguish NBC”; and “the reasoning supporting the Board’s judgment—in particular, the ARD’s application of Board precedent—is incomprehensible.”

Double ouch.

Nor was the D.C. Circuit’s displeasure limited to the federal government. Today, the court also denied rehearing en banc to the District of Columbia in this case regarding DC gun laws. Judge Millett concurred in denial: “The District, as a summary-judgment movant, elected both to face summary judgment, and to fend off Heller’s own cross-motion for summary judgment, on a record of the District’s own choosing” and so “had a full opportunity to develop a record.” Yet “the District failed the task.” Thus, “given those omissions in the District’s summary judgment record, this case simply does not present the broadside on regulatory authority to promote public safety that the en banc petition asserts.”

Given the way things were going, government entities are lucky that the final case this week involved a private dispute, albeit one with government shadows. In District No. 1, Pacific Coast v. Liberty Maritime Corporation, the Court confronted a question about arbitration. It seems that Liberty Maritime, a shipping company, and Pacific Coast, a union, failed to negotiate a new collective bargaining agreement. The existing agreement was set to expire at midnight on September 30, 2011. The day before expiration, Liberty communicated that it would no longer negotiate with the union, and on October 1, 2011, Liberty brought a new union on board. Was that lawful? The question is when did the original CBA expire, or rather, who should decide when the original CBA expired. The district court ordered arbitration of this issue in light of the parties’ agreement. Liberty appealed. Judge Henderson, writing for Judges Tatel, and Edwards, however, affirmed the district court. She explained that the court had subject matter jurisdiction because the main issue in the case dealt with contractual matters (as opposed to representational matters). The panel also concluded that the dispute deals with the duration of the collective bargaining agreement, and that is something that is arbitrable (Note, there is a lot going on in this case; if you are interested in the intersection of arbitration law and labor relations, check this one out.)

So there you have it: a bad week for the government. On weeks like this, however, it is wise for government lawyers to take a broader perspective.

* This case eventually made it back to the Supreme Court. The second case occurred while I was clerking, and so I was recused. Jessica Phillips, in this (excellent) recent book, explains what it is like to be recused as a clerk: there is a “Cone of Silence.” Recused clerks are not even “present in chambers” for discussions about a case and play no role whatsoever in the process.

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