Notice & Comment

D.C. Circuit Review – Reviewed: Resolved 2.0

“Arbitrary does not mean capricious.” That’s a pretty good line — I’m glad I wrote it!* Last year, I explained that although New Year’s Day is, in a sense, a silly holiday (Yay! Let’s celebrate the calendar!), “[t]he fact that January 1st is arbitrarily set as the first day of the year doesn’t mean we shouldn’t mark the passage the time. Arbitrary does not mean capricious. There is a lot to be said for designating a date to step away from day-to-day humdrummery and instead focus on what we really want to accomplish.” And then I set resolutions for myself and others.

The time has come for an accounting. Did I meet my resolution? Nope. I resolved to write for the Wall Street Journal. And I failed — though not for lack of trying. Specifically, in November, in honor of the twenty-fifth anniversary of Clarence Thomas’s first question as a Justice, I co-authored a draft op-ed urging him to ask more questions because he is great at it and other judges and justices could learn from him. (You don’t believe he is good at it? I have proof. In many ways, he is a model questioner.) Alas, the Wall Street Journal did not run it. I like to blame my failure on the fact that the world was busy thinking about other things in November 2016 — like, you know, a presidential election. It is also possible, of course, that the op-ed simply wasn’t any good. In any event, I’m going to try again: In 2017, I am finally going to make the pages of the Wall Street Journal. Maybe.

What about my resolutions for others? How’d they do? I sure hope that law students are taking patent law — they really should trust me on this one — and that everyone is reading more old books. And I’m pleased to say that my “freeloading chickens” have done better this year, although a murderous raccoon assassinated one of them. Unfortunately, the Big “12” struck out and still only has 10 teams. And there are still lines at the Supreme Court.

Well, what about 2017? Do I have more resolutions for other people? Of course! Justice Thomas, for instance, should ask more questions because, again, his are particularly good. (Note: No way this happens.) Chris Walker needs to pester me to finish reviewing our new data so we can at last write our third and final qualified immunity article. College football needs to think more about targeting; the sport is quite right to take concussions seriously but can the rule be applied more consistently? Everyone should go outside more. Law students should enroll in challenging courses, even if it means risking their grade point averages. We all should say “thank you” more often. If we don’t want Hollywood to keep pumping out sequels, we should go to more original movies — though I don’t really mind sequels, so long as they are done well. And Jack White should record more acoustic songs; the acoustic mix of Just One Drink is fun. It’s no Apple Blossom or Hotel Yorba (what is?), but still, it is pretty darn good.

And I have resolutions for the D.C. Circuit too — ones that are inspired by this week’s cases.

For instance, the Court should use evocative imagery more often. In Judicial Watch, Inc. v. Kerry, the most important case of the week, Judge Williams — joined by Judges Kavanaugh and Wilkins — addressed Hillary Clinton’s emails. This is how the opinion begins:

Secretary of State Clinton used private email accounts during her time at the State Department. As a result, some emails were not preserved in government recordkeeping systems. Although the current Secretary (with the help of the National Archivist) has made efforts to recover those emails, neither the Secretary nor the Archivist has asked the Attorney General to initiate enforcement proceedings, as provided for in the Federal Records Act. Because those officials would not refer the matter to the Attorney General on their own, appellants Judicial Watch and Cause of Action Institute (henceforth the “appellants” except where a distinction is necessary) sued for agency action unlawfully withheld in violation of § 706(1) of the Administrative Procedure Act. The district court dismissed their suits as moot. But since the current Secretary and Archivist have neither asked the Attorney General for help nor shown that such a request could not lead to recovery of additional emails, the suits were not moot. Accordingly, we reverse and remand for further proceedings.

Here, however, is my favorite line from the opinion: “Instead of proceeding through the Attorney General, the Department asked the former Secretary to return her emails voluntarily and similarly requested that the FBI share any records it obtained. Even though those efforts bore some fruit, the Department has not explained why shaking the tree harder — e.g., by following the statutory mandate to seek action by the Attorney General — might not bear more still.” “Shaking the tree harder” is a great image. Judge Williams and his pen are national treasures.

I also have a thought for Congress that springs from the Court’s opinion in U.S. Air Force v FLRA, authored by Judge Tatel and joined by Judges Edwards and Ginsburg. It is disconcerting to see one part of the federal government suing another part of the federal government in federal court. Yet here we are. Long story short, the Air Force says that it does not have to let civilian employees have full access to military commissaries. The FLRA, however, says the Air Force must engage in collective bargaining regarding that issue. This week, the D.C. Circuit held that “Congress has given the military unfettered discretion to determine whether civilians may patronize commissaries and exchanges ….” Judge Tatel offers a good argument for that conclusion, but perhaps, at a broader level, Congress should resolve to prevent intra-Branch squabbles from ending up in federal court in the first place.

Litigants should also resolve to be careful. There was waiver in both United States v. O’Neal and Coburn v. Evercore Trust Company. In O’Neal, Judge Wilkins (joined by Judges Brown and Millett) addressed, among other things, O’Neal’s waiver of her right to counsel. The district court advised her not to, but she choose self-representation anyway. The D.C. Circuit concluded that although the district court’s colloquy did not track “that in the Benchbook for U.S. District Court Judges,” it nonetheless was sufficient, especially since “O’Neal had made it clear that she would not allow ignorance of the law to deter or dissuade her from exercising her right to self-representation.” In Coburn, Judge Henderson concluded that the plaintiff’s complaint under ERISA was properly dismissed because it collided into the Supreme Court’s opinion in Fifth Third Bancorp v. Dudenhoeffer. Judge Edwards concurred but wrote separately to observe that Coburn had not preserved an argument under Tibble v. Edison International. And Judge Rogers concurred in the judgment, raising similar points. (I am not going to explain the full ERISA fight in Coburn. If are an ERISA lawyer, however, you definitely need to read this one.)

Finally, I confess that I’m not sure what resolution to draw from Enron Nigeria Power Holding, Ltd. v. Federal Republic of Nigeria. Here, Judge Rogers (joined by Judges Tatel and Griffith) upheld enforcement of an arbitration decision entered by the International Chamber of Commerce’s International Court of Arbitration: “The ICC’s findings, to which an enforcing court owes substantial deference, doom Nigeria’s public policy defense in the absence of evidence or equities warranting the piercing of Enron’s corporate veil.” Here is a possible resolution, I suppose: In 2017, those who enter into international arbitration agreements should not “confuse[] Article V(1) of the New York Convention, which addresses procedural grounds for refusing to enforce ‘at the request of the [liable] party,’ with Article V(2)(b) of the Convention, which addresses public-policy grounds on which a court may refuse to enforce ‘if the [court] finds’ on its own initiative that such grounds exist.” That, or they should go to the gym more.

So there you go: Resolutions for all! Have a great 2017.

* To be sure, I’m not the only person who has said it. Nor did I even think of it. I’ve heard Judge Williams say something similar, as has Judge Silberman. For instance, “[a]rbitrary it may well be without being capricious” and “[t]he lines drawn as a result of this process may well be, in one sense, arbitrary without being capricious.

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