Notice & Comment

​D.C. Circuit Review – Reviewed: The Gray Brief

When it comes to appellate litigation, the color of a brief matters a lot. Judges—busy people—are particular about it because standardization helps. After all, a judge can quickly sort out the appellant’s brief from the appellee’s brief from the appendix from the amicus briefs. The importance of a color code, moreover, is especially important at the United States Supreme Court, where a single “case” can result in literally scores of briefs. Hence, pleadings come in a wide variety of colors at the Supreme Court: white, orange, cream, tan, light blue, light red, light green, dark green, and yellow. And, of course, gray. Unlike any other litigant, “[a] document filed by the United States, or by any other federal party represented by the Solicitor General, shall have a gray cover.” From time to time I’ve wondered why it is that the United States gets a special color at the Supreme Court.

For that matter, brief color is not the only difference when it comes to the SG. On a regular basis, the justices “call for the views of the Solicitor General” (a CVSG) during the certiorari process. Although I am told it has happened, the Court does not often “call for the views of Texas” or “call for the views of California,” even though those sophisticated litigants may also have something to say about a petition’s certworthiness. The justices also regularly give the SG’s Office an opportunity to participate in oral argument, even when it is just an amicus and not a party (indeed, this week at the Supreme Court, the SG participated at oral argument as an amicus in three separate cases). That is not how it ordinarily works for other amici, even when they have interesting things to say. Likewise, SG lawyers wear a distinct uniform and have their own room at the Supreme Court. And though I don’t have the data, I suspect that when the SG petitions for certiorari, it has an unmatched rate of success. Playing Devil’s Advocate, here is a question: Should the Executive Branch—a frequent litigant before the Court—be afforded this special treatment by the Judicial Branch?

Of course, there is an obvious answer to my question. The United States, represented by the Executive Branch, is not just a litigant. Through a delegation from the People, the Executive Branch also exercises the sovereign power of the United States. This means that in theory and generally practice, it does not represent a discrete interest but instead the nation as a whole. Thus, even though the Court rightly must exercise its independent judgment—for the Court too exercises delegated sovereign power—there is a reason why the Court is solicitous of the views of the SG. To be sure, this observation should not be taken too far. The SG’s Office formally represents the public, but it is composed of humans, and humans make mistakes. Even so, when government attorneys say that some action will harm the public, the justices do well to pay attention—even if at the end of the day, the Court may conclude that what the SG’s Office seeks is more than the law allows. Congress too, after all, exercises the sovereign power of the nation. But at bottom, the Executive Branch is treated differently than other litigants because it is different.

The fact that the Executive Branch exercises sovereign power—and so has a distinct role in society—is important to administrative law. When it comes to regulatory matters, of course, government employees are not infallible. That is why meaningful judicial review is essential and why it makes sense to experiment more in regulatory procedure. But still, many doctrines exist to prevent undue interference with the workings of government, on the idea that the government represents the public. Whatever you feel about standing, for instance (Judges Brown and Millett think that aspects of it should be reformed), there is no doubt that it makes life easier for regulators. The same is true for ripeness and final agency action. The hard question is how to strike the right balance.

This week was a good one for the government in the D.C. Circuit. The United States was a party in all five cases decided and prevailed in all but one of them. And even that loss seems minor.

In R.J. Reynolds Tobacco Company v. FDA, for instance, Judge Williams, joined by Judges Millett and Pillard, vacated the district court’s decision to dissolve the Tobacco Products Scientific Advisory Committee. FDA charged the Committee with determining the safety of menthol cigarettes. Although the Committee had released its report, and FDA had issued proposed regulations, no final rule has been adopted. Various members of the R. J. Reynolds Tobacco family of companies contend that three of the members of the Committee have conflicts of interests since they appear as expert witnesses in smoking litigation and have “financial relationships with pharmaceutical companies that manufacture smoking cessation products, which compete with tobacco products.” The district court agreed that there was a conflict. The D.C. Circuit, however, did not reach that issue because it found the petitioners lacked standing since (among other things) the chance of injury to them was too remote. After all, no rules have yet been issued by FDA, and even if FDA does issue rules, it is at best speculative what influence the report might have. (Note the interesting discussion of ripeness and standing: “Although the government raised a standing and not a ripeness defense, we nonetheless treat ripeness cases as pertinent to whether the risk of injury is imminent enough. Both doctrines address the imminence issue, using the same focus on contingencies that may render the risk of harm too slight. (This is of course not to suggest that the doctrines are twins. Both have many distinctive facets, some even bearing on imminence of harm.)”

Likewise, in Mach Mining, LLC v. Secretary of Labor, Judge Rogers, joined by Judges Henderson and Tatel, made short work on Mach Mining’s petition for a review of a decision by the Federal Mine Safety and Health Review Commission. The agency decision dealt with two violations of mining safety regulations. The ALJ determined that both violations were the result of “high negligence” and that one of the violations was “significant and substantial.” Mach Mining admitted that the violations occurred but contested such characterizations. The agency disagreed. On review, Judge Rogers, after disagreeing with Mach Mining about how the regulatory scheme works (which discussion interested readers can peruse for themselves), concluded that the agency’s conclusions were supported by substantial evidence.

In Silverado Stages, Inc. v. FMCSA, the agency denied a charter bus service’s petition for review of safety violations found during an inspection. Although the FMCSA still gave Silverado a satisfactory rating, the highest rating available, Silverado contends that the “erroneous” violations published on the Safety Measurement System database has caused it to lose business. FMCSA’s interpretation of 49 C.F.R. 385.15, however, only allows petitions for administrative review if the agency issued a less than satisfactory rating. According to the agency, a separate system is used to evaluate specific violations. Silverado attacked the agency’s decision as arbitrary and capricious and as violating principles of notice and comment. Judge Wilkins, however, joined by Judges Rogers and Tatel, concluded that the arbitrary and capricious claim “lacked merit” and that the agency was entitled to Auer deference (note, Auer deference may not be long for this world). The panel declined to address the second argument, finding that it needed to be heard before a district court first.

Although not an administrative law decision, the United States also prevailed in United States v. Hunter, which concerns “an organization known as American Rights Litigators that promoted and sold tax defiance schemes.” Judge Henderson, joined by Judges Rogers and Tatel, affirmed a district judge’s re-imposition of a criminal sentence even though the previous imposition has been rejected on appeal. Although agreeing with appellants that a district judge on remand cannot engage in a de novo sentencing proceeding, Judge Henderson nonetheless concluded that it was not improper in this case for the district judge to re-impose the original sentence because the judge considered the effect that the vacated enhancement had on the original sentence and determined that it had no independent effect. (Criminal procedure specialists, note the highlighted circuit split regarding when plain error review applies.)

Finally, the United States lost one case this week: National Security Counselors v. CIA. The loss, however, does not seem especially significant—though perhaps FOIA experts may disagree (that is, if they are not too busy debating other matters). Under FOIA, a prevailing pro se litigant is not entitled to attorney fees even though an organization that represents itself may be entitled to such fees. The entity here was “a particularly small nonprofit corporation that represented itself.” For purposes of fees, is that entity a pro se litigant, or an organization? In particular, Kelly B. McClanahan—co-founder, executive director, and lead counselor—of NSC represented the entity in a FOIA matter. The organization petitioned for “$14,794.90 in costs and attorney’s fees for McClanahan’s work between January 27, 2011, and June 17, 2013.” The district court, concluded that the fees were unavailable for such a “one-man operation.” But Judge Pillard, joined by Judge Tatel and Edwards, disagreed, concluding that NSC is separate from McClanahan and thus eligible for attorney fees, despite his many hats within the organization. Rather than getting into the specifics of any individual relationship, the court laid out a bright-line rule: “The relevant doctrinal line is between a natural person going it alone, who is ineligible, and a person or organization who is represented by counsel and thus eligible for attorney’s fees.”

So there you have it: a good week for the government, and another week of unanimous decisions. Will government lawyers still be smiling when the next set of opinions are released? Check back next week to find out.

* As an aside, here is a life lesson for students: the most thankless part of an associate’s job is filing. It’s all downside. If you file correctly, no one pats you on the back. But if you do it wrong, everyone knows—including the client. And it is not like filing is always easy, especially when you are in an unfamiliar court. Although it is not foolproof, one piece of advice worth remembering is to leave yourself enough time that if something goes wrong, you aren’t sunk. As the D.C. Circuit has explained: “Procrastination plus the universal tendency for things to go wrong (Murphy’s Law)—at the worst possible moment (Finagle’s Corollary)—is not a ‘special circumstance,’ as any junior high teacher can attest.”

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.

Print Friendly, PDF & Email