Notice & Comment

D.C. Circuit Review – Reviewed: Tuesdays and Fridays (and Thursdays?)

The D.C. Circuit is a predictable court — until it’s not. I’ve been blogging about the D.C. Circuit for over a year and I thought I had the pattern down. The Court issues opinions on Tuesdays and Fridays–meaning no opinions the rest of the week. Thus, I felt safe taking my children–who, for reasons I do not really understand, have no school–on a quick holiday this week.* When Thursday came round, my family and I rushed off for a day of merrymaking, and my dear wife–sternly but wisely–warned me not to spend too much time on my phone. I readily agreed. After all, why worry? It’s not like the D.C. Circuit is going to start releasing opinions on Thursdays.

This morning (it is Friday as I am writing this), I woke up and quickly checked the Court’s website: Phew — no opinions. As I was about to leave, however, for another lively day with my progeny, I glanced at How Appealing and discovered that, in fact, yesterday the D.C. Circuit issued a decision. So, of course, I told my children to cancel our plans — “Your father has to stay in the hotel and draft an important blog post. Who needs more than one day of fun anyway?”

Just kidding.

Now that the family is in bed, however, I can give you your weekly dose of D.C. Circuit decisions.

The big news this week is the en banc decision in al Bahlul v. United States. Of course, it’s only 163 pages and you’ve already had two days — I’m sure you have already read it and moved on. If for some reason you haven’t found time to wade through eightscore pages, however, here is the quick recap: Ali Hamza Ahmad Suliman al Bahlul lost 6 to 3, with Chief Judge Garland and Judge Srinivasan sitting it out. (I trust that is his name; it comes from the caption. The per curiam decision, however, just calls him “Bahlul.”)

This is how the opinion begins:

Bahlul is a member of al Qaeda who assisted Osama bin Laden in planning the September 11, 2001, attacks on the United States. Bahlul was convicted by a U.S. military commission of the offense of conspiracy to commit war crimes, among other offenses. The U.S. Court of Military Commission Review affirmed Bahlul’s conviction. … In this en banc case, Bahlul argues that Articles I and III of the Constitution bar Congress from making conspiracy an offense triable by military commission, because conspiracy is not an offense under the international law of war.

I flagged this case over a year ago and suggested that the en banc court might rule against Bahlul on the ground that he did not properly preserve his Article III challenge. In particular, I explained that “Justice Alito’s concurrence in [Wellness Int’l Network, Ltd. v. Sharif] states that if a party litigates in a non-Article III tribunal and doesn’t properly raise its objection before an Article III court, the objection is forfeited. That position seems consistent with the thrust of the Wellness majority’s analysis. If Bahlul forfeited his Article III challenge to the military commission, then—under Wellness … he may be out of luck.”

We now have the en banc Court’s analysis and only Judge Millett would squarely resolve the case on that ground. (But you know what? There are much worse things than having Millett agree with your analysis.) And perhaps Judge Henderson would too; Henderson — in a very short opinion — wrote separately to cross-reference her panel dissent, which relied (among other things) on forfeiture analysis.

Bahlul is a very complicated decision. Indeed, Judge Kavanaugh (joined by Judges Brown and Griffith) wrote a lengthy opinion siding with the United States; Judge Millett wrote a lengthy opinion siding with the United States on other grounds; Judge Wilkins wrote a (kinda) lengthy opinion siding with the United States on other other grounds; and Judges Rogers, Tatel and Pillard issued a joint dissent.

Here are some quotes to capture the essence of the respective opinions. (I can’t do justice to all the analysis — but come on! It’s 163 pages; work with me.)

Take it away Judge Kavanaugh:

Presidents throughout U.S. history have employed military commissions to try enemy war criminals for conspiracy to commit war crimes. That history includes the two most significant U.S. military commission trials: the 1865 military commission trial of the Confederate conspirators who plotted to kill President Lincoln and the 1942 military commission trial of the Nazi conspirators who secretly entered the United States during World War II and planned to attack U.S. infrastructure and military facilities. … Under the U.S. Constitution, may Congress establish military commissions to try unlawful enemy combatants for the offense of conspiracy to commit war crimes, even if conspiracy is not an offense under the international law of war? The answer is yes. We know that from the text and original understanding of the Constitution; the structure of the Constitution; landmark Supreme Court precedent; longstanding congressional practice, as reflected in venerable and contemporary federal statutes; and deeply rooted Executive Branch practice, from the 1800s to the present.

[Note, Kavanaugh appears to be very confident about these historical points.]

Judge Millett:

The generic diatribe against the proceedings writ large did not preserve the specific constitutional challenges that Bahlul now presses. His complaints were far ‘too general to have alerted the trial court to the substance of [his] point,’ or to have given the court or opposing counsel any notice of the constitutional character of his claim. . . . [Bahlul] did not so much as mention the Constitution. He just categorically disdained the trial process. Accordingly, I would hold Bahlul to the same standard that courts apply every day to other criminal defendants who fail to preserve claims, and would review his new constitutional challenges only for plain error.

[Note, Millett’s reading of Supreme Court precedent merits close examination; as she understands it, courts — sua sponte — must de novo confirm the existence of subject-matter jurisdiction, but other “Article III” issues don’t receive the same protection. That seems to be the Court’s holding in Wellness and B&B Hardware v. Hargis.]

Judge Wilkins:

While Bahlul attempts to deflect attention from his own circumstances by erecting a straw man, it is not our job to answer the abstract question of whether prosecuting inchoate conspiracy violates our separation of powers … Rather, we examine whether the acts committed and proven in the course of this specific prosecution really equate to a prosecution for inchoate conspiracy. . . . Evaluated in this way, Bahlul’s facial challenge must fail because his own conviction does not violate Article III. He was not convicted of inchoate conspiracy.

And the Joint Dissent:

Whichever clause in Article I, § 8 grants Congress the authority to establish and determine the offenses triable by military commissions, and whatever the impact of the Necessary and Proper Clause on Congress’s Article I powers, Congress may not transgress the bounds of Article IIII. Article IIII does include an exception for law-of-war military commissions. But that has been narrowly defined by reference to the international laws and customs governing war. …. If the government’s view in this case that military commission jurisdiction is limited only by Congress’ war powers were to prevail, Congress and the President could authorize military prosecutions in many situations that we traditionally think of as within the exclusive province of domestic law enforcement agencies and civilian courts. … [I]f international law does not mark the boundaries between civilian and military jurisdiction, what does? On this, our colleagues are silent.

What will happen next? No doubt Bahlul will petition for certiorari. Yet the forfeiture issue may complicate things, especially combined with Judge Wilkins’s analysis (plus I believe that if Chief Judge Garland were confirmed, he would be recused because he participated in an earlier round of this litigation). We’ll have to wait and see.

The D.C. Circuit also issued another opinion this week: CalPortland Company, Inc. v. MSHR. Oral argument occurred on October 6, 2016; Judge Sentelle (the opinion author) wrote quickly. This case concerns whether Jeffrey Pappas is eligible for temporary reinstatement “pending final order on Pappas’s underlying discrimination complaint currently pending before the [Federal Mine Safety and Health Review] Commission.” Sentelle, joined by Judges Henderson and Griffith, concluded that Pappas is not eligible: “We have jurisdiction over this petition pursuant to the collateral order doctrine and, because we conclude that Pappas was an ‘applicant for employment’ who was not eligible for temporary reinstatement, we grant the petition for review and vacate the Commission’s decision and order.” Long story short, Pappas worked for one company; CalPortland acquired it and then “invited all of the employees from the four facilities covered by the asset purchase agreement, including the employees at the OroGrande plant, to apply for employment with CalPortland. CalPortland … extended employment offers to approximately 115 out of 130 applicants …. Pappas was one of the applicants from the Oro Grande plant who was not offered employment by CalPortland.” Federal law provides interim protection for “miners,” but does it also protect someone in this situation? No, says the D.C. Circuit — he never was a “miner” for CalPortand, so the agency loses at Chevron Step One. (There is a fascinating question of jurisdiction here; check it out.)

There you go — Thursday decisions in the D.C. Circuit. (I bet that come next week, the old pattern will return.)

* Where did we go? Here is a hint: google “Utah Escapes to Anaheim.”

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