Notice & Comment

D.C. Circuit Review – Reviewed: Time Travel

This week was a quiet one at the D.C. Circuit, at least in terms of “admin law.” Aside from a couple of unanimous NLRB decisions, the court did not address regulatory issues at all. So if labor law is not your thing, feel free to take this week off—though come back next week. But if you want to stick around, this week’s theme is a fun one: We’re going to go backwards and forwards in time.

My mind turned to time travel this week as I read one of the D.C. Circuit’s decisions: United States v. Abney. Other than the fact that it tangentially concerns the U.S. Sentencing Commission, Abney has nothing to do with administrative law.* But Judge Brown, in dissent, employed colorful imagery: “The Court’s opinion seems to be one part Back to the Future, requiring trial counsel to possess a DeLorean, a flux capacitor and the inventiveness of the fictional Doc Brown in order to render competent assistance to a client.”

This time-travel imagery got me thinking about the origins of administrative law and where it may be headed. In recent years, excellent scholarship has been written about the history of administrative law. When it comes to broad examinations of the subject, the (relatively) recent works of Jerry Mashaw and Philip Hamburger, of course, come to mind—as does Adrian Vermeule’s response to Hamburger and Hamburger’s response to Vermeule. But there also has been scholarship of late that is more targeted in scope. I really enjoyed, for instance, this article from Sanne Knudsen and Amy Wildermuth, which may prove to be especially relevant if the Supreme Court decides to rethink Seminole Rock. (I’m putting words in their mouths, but after reading this article, it sure looks like we shouldn’t say “Auer/Seminole Rock deference” anymore because Auer deference, in fact, is very different from what the Court did in Seminole Rock.) Likewise, this article from Aditya Bamzai takes a fascinating dive into the history of deferring to Executive Branch legal interpretations. Mike Greve and James Conde also have an article telling the nondelegation story of Yakus. And one of my favorite articles—although no longer recent—is always worth mentioning in case one hasn’t read it yet: George Shepherd’s Fierce Compromise: The Administrative Procedure Act Emerges from New Deal Politics. No doubt there are many other articles (my list of articles to read is always growing!), but if you want to understand the history of administrative law, all of this scholarship is at least a good place to start.

But what about the future? Here, please indulge a bit of self-promotion. A recent article of mine in the Georgia Law Review attempts to predict the future by drawing on the history of administrative law and the perennial conflict over discretion (e.g., “Expert discretion is the lifeblood of the administrative process, but unless we make the requirements for administrative action strict and demanding, expertise, the strength of modern government, can become a monster which rules with no practical limits on its discretion.”). Predictions are risky, but as I think about it, “admin law” may end up looking something like this:

If you are intrigued, check out the paper!

Now that we have visited both the past and future of administrative law, let’s turn to this week’s cases. The two regulatory opinions in the D.C. Circuit both concern the NLRB. The agency won in one case and lost (at least in part) in the other.

In Alden Leeds, Inc. v. NLRB, the agency won. Per the opinion, an ALJ concluded that after failed attempts at collective bargaining over healthcare plans, a swimming pool chemical and cleaning supply company locked its union employees out without providing timely notice of what needed to be done to avoid the lockout. The NLRB sustained the findings. Upon review of the company’s petition, Judge Edwards—joined by Judges Tatel and Ginsburg—found no merit in the argument that the ALJ’s finding should not have been adopted. The panel also declined to address a question of backpay because the issue had not been raised before the Board. Applying precedent, the panel concluded that the issue was out of bounds, regardless of whether it was brought up by the Board.

In Raymond Interior Systems, Inc. v. NLRB, however, the agency lost, at least in part. As I understand it (and I do not claim to be a labor lawyer), it appears that Raymond Interior Systems confidentially agreed with a Carpenters Union to apply a “Master Agreement” to employees as soon as the company’s agreement with a Painters Union expired. Raymond and the Carpenters claim that their agreement came into effect on October 1, 2006. On October 2, 2006, Raymond and the Carpenters held a meeting and allegedly told Raymond’s employees that they needed to join the Carpenters Union “‘that day’” to “continue working.” Using the enrollment forms collected from that meeting as evidence of majority support, Raymond and the Carpenters purported to execute a collective bargaining agreement. The NRLB found that these October 2 activities constituted unfair labor practices. Judge Edwards, joined by Henderson and Tatel, concluded that the NLRB’s finding that the October 2 activities constituted unfair labor practices was supported by substantial evidence. However, the panel also concluded that the NLRB erred regarding whether the Agreement that purportedly took effect on October 1 was lawful, explaining that the unlawfulness of the attempted agreement under Section 9(a) of the NLRA did not remove the NLRB’s responsibility to determine the lawfulness of the earlier agreement under the more lenient Section 8(f) standard. (Note: “Section 8(f) allows construction-industry employers to recognize a union as the bargaining agent of its employees before a majority of employees have designated the union as their representative.”) Labor lawyers: If I have botched this case, I apologize.

On a quiet week like this, it’s fun to try to think big thoughts. In that spirit, I’ll end with my “meta theory” of administrative law (from my Georgia article): “As society shifts, discretion evolves, sometimes advancing and sometimes retreating, reflecting conflicted expectations of discretion’s usefulness balanced against the dangers of its abuse. . . . When one looks back on the history of administrative law, no one principle can explain it because, from the beginning, these two impulses have been at war.” I think it is a safe bet that the war will continue into the future.

* Abney concerns ineffective assistance of counsel. Judge Rogers, joined by Judge Griffith, found the defendant satisfied Strickland and remanded for re-sentencing. Convicted of crack cocaine charges, Abney’s sentencing was sandwiched between the date Congress passed the Fair Sentencing Act (which reduced mandatory minimum sentences), and the date the President signed it. Counsel did not seek a continuance. The majority concluded that given the imminent change in the law, “no conceivable strategy” could justify failing to try to delay sentencing and that the mistake may have been prejudicial. In dissent, Judge Brown argued that counsel should be afforded deference in strategy and warned against hindsight bias. Judge Rogers (joined by Judges Tatel and Wilkins) also authored the opinion in Cincinnati Insurance Co. v. All Plumbing, Inc., which dismissed for lack of jurisdiction an appeal and cross appeal stemming from a dispute about insurance coverage.

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