Notice & Comment

D.C. Circuit Review – Reviewed: Some Friendly Advice for Rising 2Ls … or Why Procedure Matters

Dear 2Ls:

It’s time for a chat. Soon enough, you will begin interviewing for jobs. And almost without fail, a question you will receive will go something like this: “So, what was your favorite 1L course?” Many of you will be tempted to respond “Constitutional Law.” Some of you might answer “Leg-Reg.” Perhaps a few of you will say “Property,” “Contracts,” “Criminal Law,” or “Torts.” And all of you will be wrong. The correct answer — 99 times out of 100 — will be “Civil Procedure.”

Okay, that is too strong. Don’t lie. Some of you won’t be able to say Civil Procedure with a straight face; you absolutely hated the class. And if that is you, pick something else. After all, if you answer with Civil Procedure, you must have a good reason — and “the Class didn’t meet on Friday” doesn’t count. But if you do have a good reason to stress procedure, square your shoulders and give it. For you see, the language of the law is Civ Pro, especially for litigators. And if you can credibly claim interest in it, you are well on your way to legal success.

Now I know some of you — probably those who hated Civ Pro — are protesting that what I’ve said cannot be true. “What a horrible, awful, boring, irritating, pointless, worthless, time-waste of a class,” you mutter. But you don’t understand. Litigation is a game of chess, and Civ Pro is where you find the rules. Why do lawyers worry about which court has subject matter jurisdiction, personal jurisdiction, and venue? And why do lawyers fret so much about pleading standards? No, it is not because lawyers, acting as lawyers, necessarily care about the efficient and fair adjudication of claims. That’s why Congress, courts, and, sometimes even the Constitution care about such things. But lawyers — who have a duty to zealously represent their clients — worry about those issues for a very different reason: Most cases are going to settle, and the settlement amount often depends on which court you end up in and how the procedural issues play out. For instance, if your Florida-based client could be sued in, say, Alaska, the settlement value changes, if nothing else to reflect the cost of airfare. Likewise, if discovery will cost $100,000, the settlement value changes a lot should the case survive a motion to dismiss — even apart from the merits of a case. Hence, it is not by accident that a short, unanimous 2017 Supreme Court with a pretty dull name — “TC Heartland v. Kraft Foods Group Brands” — has begun to remake the character of the legal universe. Nor is it by accident that the most cited case of all time concerns — wait for it — the standard for summary judgment, and that a couple of opinions from about a decade ago have already eclipsed West Virginia State Board of Education v. Barnette, Brown v. Board of Education, and even Marbury v. Madison when it comes to citation counts.

To be sure, I’m not suggesting that substantive law is unimportant. Just the opposite. What I’m saying is you can’t litigate substantive issues that matter — or at least not litigate them very well — unless procedure seeps into your bones. Civ Pro and legal strategy cannot be separated.

Young litigators thus will spend many, many hours working on Civ Pro issues, especially if discovery is lumped in the category — and it should be. If you understand why all of that time matters, you will enjoy the work much more. And when it comes to who gets hired, a happy associate is a better than an unhappy associate. Sure, Civ Pro is often unfamiliar; essentially everyone has at least a sense of Criminal Law or Contracts, just by watching television and living in modern society. But once you climb the learning curve (which not everyone is willing to do, creating increased scarcity — to the benefit of those souls who are willing to put in the time), procedure can be fascinating. In short, Civ Pro matters.

Once you understand that point about Civ Pro, you realize that procedure matters elsewhere too. Criminal Procedure matters; administrative procedure matters; and, yes, appellate procedure matters.

Don’t believe me? Well, consider this week’s cases in the D.C. Circuit. The common denominator is procedure.

Consider United States v. Sitzmann. Here, a per curiam panel comprised of Judges Griffith, Katsas, and Edwards addressed a drug conspiracy conviction. What does that have to do with procedure, you wonder? Well, one of the lead arguments on appeal was that “the District Court erred in rejecting his claim that the Government ‘manufactured venue’ in this case.” After all, the Government arguably “lur[ed] Jones into wiring funds from Florida to D.C. to establish venue.” The D.C. Circuit disagreed: “We remain unconvinced that ‘manufactured venue’ or ‘venue entrapment’ are viable theories. We need not reach the issue, however, because Sitzmann has failed to point to any circumstances in this case that might be viewed as ‘venue entrapment’ ….”

There is a lot more going on in this case, but I want to focus on the Katsas concurrence and the Edwards dissent. In what may be his first opinion (more on that below), and certainly his first separate writing, Katsas addressed whether ineffective assistance of counsel claims should be remanded for resolution by the trial court. Agreeing with the Court, Katsas said no: “The Court rejects Sitzmann’s ineffective-assistance claims on the ground that they are not sufficiently colorable, as first raised on appeal, to justify a remand. I join that analysis, but write separately to highlight a second reason why we should reject Sitzmann’s claims — because they were not preserved below.” According to Katsas, although issue preservation may be easier when a defendant retains a new counsel on appeal, if a defendant obtains new counsel before the appeal, arguments about ineffective assistance must be raised then. Beyond reasoning from general rules of preservation, Katsas specifically invoked United States v. Debango, 780 F.2d 81 (D.C. Cir. 1986) for that proposition. Edwards objected to such a rule, relying on cases arguably to the contrary, including United States v. Cyrus, 890 F.2d 1245 (D.C. Cir. 1989). To which Katsas replied, “even if Cyrus were broadly read to conflict with Debango, then Debango still would govern as the earlier decision.”

Dear 2L, your eyes may be glazing over at this point. Don’t let that happen. In the real world, these fights matter a lot.

And there are more procedural issues still. Campbell v. District of Columbia — authored by Judge Griffith, joined by Judges Pillard and Edwards — also is all about procedure. Here is how Griffith opened his opinion:

Campbell v. District of Columbia

What does this have to do with procedure? This:

Campbell v. District of Columbia II

Yup — Rule 50 strikes again. You remember that one, right? You should.

Ashbourne v. Hansberry — authored by Judge Millett, joined by Judges Tatel and Srinivasan — is also about a procedural word: res judicata. Take it away, Judge Millett:

Ashbourne v. Hansberry

Call me old-fashioned, but I’m glad to see “res judicata” rather than “claim preclusion.” Well done, Judge Millett.

Saint Francis Medical Center v. Azar fits within the same procedural theme. This opinion was penned by Judge Katsas (joined by Chief Judge Garland and Judge Kavanaugh), and it is his first majority opinion. Back up for a minute. Recall that Greg Katsas was one of the nation’s premier appellate attorneys before becoming Judge Katsas. As much as anyone alive, he has lived appellate procedure (hint, 2Ls, that helps one become a judge on the D.C. Circuit; just ask Judge Millett or Judge Randolph, to say nothing of Chief Justice Roberts). Saint Francis Medical Center concerns the line between an appeal and a reopening. The Department of Health and Human Services has a regulation in place that “bars hospitals from seeking additional Medicare payments by challenging factual determinations that are relevant to the payment year at issue, but that were made many years earlier.” But on its face, that regulation “applies only to reopenings.” Does it also capture appeals? No, holds the Court:

Saint Francis Medical Center v. Azar

But what about Seminole Rock deference, you ask? (Well, perhaps 2Ls aren’t asking that question yet; more free advice, take Administrative Law in the fall). “[W]e do not defer when an agency’s interpretation of its own regulations is ‘plainly erroneous or inconsistent with the regulation.'” Judge Kavanaugh concurred in the Court’s “excellent opinion” to make an additional point:

Saint Francis Medical Center v. Azar II

In Hedgpeth v. Rahim, Judge Srinivasan (joined by Judges Kavanaugh and Pillard) affirmed summary judgment on the grounds of qualified immunity. The plaintiff claimed that two officers “violated his Fourth Amendment rights by arresting him without probable cause and using excessive force to subdue him.” Yet the officers “had an objectively reasonable basis … to establish probable cause … to arrest Hedgpeth for public intoxication … [and] disorderly conduct, simple assault, and affray …” And because “[t]he officers had a reasonable basis for believing they had probable cause to arrest Hedgpeth,” they were entitled “to qualified immunity on the claim of an unlawful arrest.” The Court also rejected Hedgpeth’s excessive force claims because “the evidence Hedgpeth cites … affirmatively undercuts” his own position. In short, “officers are entitled to qualified immunity unless existing precedent squarely governs the specific facts at issue,” and the law “does not clearly establish that the takedown amounted to excessive force in the circumstances.” Some more free advice to students: You can’t understand qualified immunity without understanding procedure, and you can’t under civil rights litigation without understanding qualified immunity.

Next, in Shapiro v. Department of Justice, Judge Sentelle (joined by Judges Rogers and Tatel) addressed the Department’s treatment of a FOIA request by “relating to a deceased Internet activist” — namely, Aaron Swartz. Although the Court remanded with regards to certain redactions, it largely upheld the district court’s decision. What does this technical, fact-heavy case have to do with civil procedure? Read pages 3 to 6 of the opinion; boy, that’s a pretty complicated procedural history.

Finally, the Court issued an unusual order this week involving the Clean Power Plan. That case, considered by the en banc Court but never resolved because of the new administration, is still a live dispute, but it is being held in abeyance. The order states that “these consolidated cases remain in abeyance for 60 days from the date of this order,” and directs EPA “to continue to file status reports at 30-day intervals beginning 30 days from the date of this order.” Perhaps more interesting, Judge Tatel concurred but stressed his discomfort with the status quo, “especially given that EPA has yet to present any concrete alternative for complying with Massachusetts v. EPA ….” Judge Wilkins simply issued a statement, not a concurrence: “Over a year has passed since we first held in abeyance our decision in this case – and nearly two years since oral argument. I will join in one further abeyance, but I am writing to apprise the parties that it is the last one that I am inclined to grant.” Judge Millett joined both Judges Tatel and Wilkins. If you want to read more about this issue, check out a new website: Circuit Breaker — “News and Analysis on the U.S. Court of Appeals for the D.C. Circuit.” It has a great post on the subject.*

So there you go, my 2L friends. Procedure is everywhere. Remember that come job-hunting season.

* Welcome to the D.C. Circuit beat!

D.C. Circuit Review – Reviewed is designed to help you keep track of the nation’s “second most important court” in just five minutes a week.

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