Notice & Comment

D.C. Circuit Review – Reviewed: “The Nine Most Terrifying Words in the English language are …”

I’m from the Government, and I’m here to help.” *

Why did that iconic quote from President Reagan come to my mind this week? Because of Ghostbusters. Let me explain.

The number of things to do is limited in this age of Covid-19. It’s hot outside; sports have been on hiatus; travel has slowed to a crawl; and there aren’t new movies. In Utah County, however, some theaters are still open, subject to strict conditions. So one of my local theaters has started showing old movies. Frankly, it is a surreal experience. Folks wear masks and there is ample space between patrons (of whom there aren’t many). And the films themselves are ones I have seen before but not for a very long time and often never before on the big screen. A couple of weeks ago my daughter and I watched Raiders of the Lost Ark. And last night my wife and I decided to watch Ghostbusters.

Watching Ghostbusters for the first time in a long time, I was reminded that the story’s true villain is not a ghost. Instead, it is the Environmental Protection Agency! We know this because the last character to get his comeuppance is not a specter at all:

That’s a remarkable scene. So with Ghostbusters on my mind, I’ve decided to dedicate this week’s post to the 1980s.

First, the 1980s was a bad time for communism (and so a good time for the world). Why do I mention this? Because of AdvancePierre Foods, Inc. v. NLRB. Here, Judge Henderson (joined by Judges Wilkins and Katsas) denied AdvancePierre’s petition challenging the NLRB’s decision, including the Board’s remedy requiring the company to read a notice about its labor-law violations. What does this have to do with communism? Take it away, Judge Williams (from HTH Corp. v. NLRB in 2016):

As I’ve mentioned before, “[t]his issue has divided the D.C. Circuit and, I suspect, will continue to prompt litigation.” In AdvancePierre, however, the issue was not adequately preserved:

On the subject of Judge Williams and communism, who can forget perhaps the punchiest opening sentence in the history of the D.C. Circuit? “In the Spring of 1985, as Mikhail Gorbachev was assuming the duties of General Secretary and inaugurating perestroika, the Federal Energy Regulatory Commission launched its own restructuring of the natural gas industry.” Now consider El Paso Natural Gas Company, LLC v. FERC, a per curiam opinion issued by Chief Judge Srinivasan and Judges Garland and Wilkins. This is a very technical case about “capital structure adjustments.” Long story short, the Court upheld, among other things, FERC’s determination that El Paso charged for costs prohibited by a previous settlement.

The drug war also raged in the 1980s. And that brings us to United States v. Wilkerson. Here, Chief Judge Srinivasan (joined by Judges Henderson and Randolph) affirmed Wilkerson’s (many, many, many) convictions related to drugs, racketeering, murder, and conspiracy. Wilkerson raised several arguments on appeal, including a challenge to “the district court’s dismissal of a juror during deliberation.” The juror informed the court that she disagreed with the law, which prompted her dismissal. That was not error:

The 1980s was also a launching pad for today’s era of textualism. With that mind, consider Jin v. Parsons Corporation. Judge Henderson (joined by Judges Garland and Pillard) addressed the Federal Arbitration Act. Under Section 4 of the FAA, “If the making of the arbitration agreement or the failure, neglect, or refusal to perform the same be in issue, the court shall proceed summarily to the trial thereof.” Here, the district court concluded that there was a genuine dispute as to whether the parties agreed to arbitrate and then denied a motion to compel arbitration. On appeal, the Court held that “the district court erred by denying the motion before definitively resolving the issue via trial. Instead, on remand, the district court should hold the motion in abeyance pending its prompt resolution of whether the parties agreed to arbitrate.”

Finally, especially for those who lived through the 1980s, the name Benny Hinn might be familiar. Well, in Independent Producers Group v. CRB, Judge Pillard (joined by Judges Griffith and Silberman) briefly mentioned him in the midst of a complicated and fact-heavy case about royalty payments, false statements, and sanctions:

And with that, I must now to turn to more serious scholarship. For you see, Ghostbusters also included a few lines of dialogue that struck too close to home:


* That sentiment obviously can be taken too far! But to borrow a phrase, the statement should be understood seriously, not literally.

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