Notice & Comment

D.C. Circuit Review – Reviewed: Year Two Begins

This week’s post marks an anniversary: one year of D.C. Circuit Review–Reviewed. Before summarizing the cases this week, I’ll take a moment to reflect on reading every opinion the D.C. Circuit has released since August 10, 2015.*

First, from day one, I made a conscious decision to not let on whether I think the court is right or wrong. When it comes to these posts, I see my role as a reporter, not a critic. No doubt my own views have seeped in a few times, but on the whole, I like to think I’ve done pretty well. Why? Because even if I wanted to be a critic, it often is very hard to say whether the court got it right! To have a real opinion, I would need to read the briefs and the cited materials. To be sure, there have been a few instances that I’ve been skeptical about an opinion on its face. But the D.C. Circuit’s cases are technical; knowing general “admin law” is not enough—to really understand them, you have to dive deep into complex law and facts.

Second, the D.C. Circuit is a talented court with a lot of different personalities. Judge Millett is new member of the court, and she writes very well. Judges Silberman is a long-time member of the court; he also writes very well. But Judge Millett’s opinions are nothing like Judge Silberman’s. And the same is true for each judge on the D.C. Circuit. This is a court with a lot of fire power—but also different styles.

Third, there a lot of NLRB cases. I would be surprised if any agency finds itself in the D.C. Circuit more often than the NLRB. The NLRB sometimes wins and sometimes loses, but by my count, there have been over 30 published NLRB opinions since August of last year, plus at least one notable unpublished one.

Fourth, there aren’t really that many dissents or concurrences. That surprised me, but on reflection, it probably shouldn’t have. Like school kids at recess, everyone rushes to watch a fight. But most cases aren’t that way. The D.C. Circuit is a “collegial” court, and those who follow it should remember that fact.

Fifth, if you will permit a bit of self-indulgence, my favorite post is probably King Solomon and the APA or perhaps A War Court. It can be hard to find a theme, but in those weeks, everything came together. I also like Of Dogs and Lions, Heads and Tails and Why Do Judges Wear Black? because I hope I made useful points. My favorite headlines are Lies We Tell Our Children and “Never, Never—NEVER—Wake a Sleeping Tiger.” The most important post, no doubt, was Brooding Spirts, C.J. Garland Edition. And finally, my least favorite post? Probably Skiing, Snowboarding, and State Action. It was pretty boring; sorry about that.

Sixth, it is hard to make sweeping conclusions about the direction of administrative law from reading one year’s worth of D.C. Circuit opinions. I think of it this way: D.C. Circuit judges are engaged in about 200 conversations—with each other, the Supreme Court, and different agencies involving different issues. Each of these conversations takes time to develop. For instance, this case is a response to this case which is a response to this case which is a response to this case. To understand what is happening, you have to read the whole conversation.

And seventh, D.C. Circuit Review–Reviewed can be improved. I decided to start blogging with the idea that it would be a one-year experiment. It takes a lot of time to blog, and especially pre-tenure, I need to be careful about how I use my hours. On net, I think the benefits outweigh the costs. That said, I welcome your thoughts on what I can do to make these posts more useful. Are they too long? Should there be more analysis? Less analysis? Should I stop reporting on non-“admin” opinions? Are the posts too flippant—or not flippant enough? If you have thoughts, send me an email. I spend a good chunk of each Friday on these posts; I want to use my time well.

And with that, here are the week’s cases:

Raymond J. Lucia Companies, Inc v. SEC: Are SEC ALJs appointed in a constitutional way? Yes, it turns out. Judge Rogers, joined by Judges Pillard and Wilkins, concluded that “[b]ecause the Commission has reasonably interpreted its regulatory regime to mean that no initial decision of its ALJs is independently final, such initial decisions are no more final than the recommended decisions issued by FDIC ALJs [which the D.C. Circuit has previously blessed]. This is so even though the FDIC’s regulations limit its ALJs to issuing ‘recommended decisions’ and require the FDIC to consider and decide every case, whereas the Commission can choose not to order or grant full review of a case.”

Care One at Madison Avenue v. NLRB: Yes, we have another NLRB decision. This one, authored by Judge Pillard (joined by Judges Rogers and Wilkins) is a victory for the agency. There is a lot going on, but this strikes me as the most important part: “Care One argues that its conduct [i.e., not including certain employees in a benefits increase] cannot amount to an unfair labor practice because it was merely attempting to navigate in good faith what it views as the Board’s ‘incoherent jurisprudence.’ The Company insists that, had it included its union-eligible employees in the benefits increase, it would have risked a Board determination that it was seeking to buy the employees’ votes with the improved benefits in violation of the Act.” It surely cannot be that an employer violates the Act both by excluding employees and by including them. But is that dilemma real? No, says the court: “neither the Board’s case law nor ours creates the quandary Care One describes. Contrary to Care One’s contentions, the Act does not require a company facing a union election to freeze its operations. An employer may make regularly scheduled benefits changes if it does so without treating employees differently based on their participation in protected activities, and without any motive of inducing employees to vote against the union.” Even so, employers are in a hard spot—couldn’t the agency always open an investigation into “motive”? There is no safe harbor. Hence, “there is . . . good reason for the Board’s caution that the ‘more prudent course’ is to not grant a discretionary benefits increase just before a union election.”

Jawad v. Gates: Judge Griffith’s opening paragraph will attract attention (the opinion was joined by Judges Srinivasan and Wilkins): “The United States detained Mohammed Jawad at Guantanamo Bay Naval Base for more than six years until he was released and returned to his native Afghanistan in 2009. He has filed a damages action against the United States and various federal officials, alleging that they subjected him to torture while he was in their custody. We affirm the district court’s dismissal of Jawad’s complaint because the federal courts lack jurisdiction to hear his claims.” Jawad argued, for a host of reasons, that the jurisdictional bar did not apply to him because he was 15 when he was picked up in Afghanistan. The court disagreed. (Along the way, the court cited a student note from a former Griffith clerk: Anthony Dick, Note, The Substance of Punishment Under the Bill of Attainder Clause, 63 STAN. L. REV. 1177 (2011).”)

Southwest Airlines Co. v. DOT: This case is about Love . . . Love Field, that is—an airport. It seems that “Southwest Airlines, Love Field, and the City of Dallas have a long and somewhat complicated history.” Relevant here, the Department of Transportation issued a guidance letter regarding “accommodation policies.” Through accommodations, “an airline can gain access to operate flights from an airport at which it leases no gates.” “Accommodation . . . may be forced, when the airport requires a tenant airline to make room for a non-tenant airline.” Here, Southwest Airlines was unhappy with the federal government’s views expressed in that letter. Judge Srinivasan, joined by Judges Wilkins and Ginsburg, dismissed the petition because the letter was not “final for purposes of judicial review.” “Here, the agency did more than simply say it would give further consideration to issues addressed in its prior guidance: it instituted the process by which it could do so, confirming that the December 17 letter is not the agency’s final word on the issues at hand.”

Tilden Mining Company, Inc. v. Secretary of Labor: This opinion (per Judge Millett, joined by Judge Williams with Chief Judge Garland sitting it out) has a great opening sentence: “As Benjamin Franklin knew, equipment that conducts electricity is safest when ‘grounded’—physically connected to the earth.” Long story short, without even needing Seminole Rock deference, the court concluded that “the Secretary properly determined that power cables and extension cords are regulated parts of [the] ‘grounding systems’” used for mine safety.

United States v. Melgar-Hernandez: Judge Srinivasan, joined by Judges Brown and Edwards, rejected Melgar-Hernandez’s challenges to his RICO conviction (the facts are quite colorful, involving, inter alia, potentially “‘sending two recruits (persons not yet jumped in to MS-13) to do the job’ of killing the person in El Salvador”). But the panel also remanded for resentencing due to a retroactive amendment to the Sentencing Guidelines.

United States v. Sheffield: Judge Millett, joined by Judges Ginsburg, rejected Sheffield’s challenge to his conviction for possession with intent to distribute, but remanded for resentencing because the district court wrongly imposed a career-offender enhancement. Judge Sentelle concurred in the judgment, reiterating his concern about the drift of plain-error review: “I simply do not see any definition of ‘plain’ that requires an analysis based on a decision as to a different statutory scheme—that is the sentencing guidelines as opposed to the Armed Career Criminal Act—and as to which there was no consensus among the circuits nor controlling authority from this court or the Supreme Court.”

Seed Company Limited v. Westerman: This is a 23-page opinion that every lawyer fears. Judge Srinivasan, joined by Judges Henderson and Kavanaugh, concluded that it is up to a jury to decide whether counsel committed malpractice. “Seed and Tamai sued their attorneys, alleging that they had committed malpractice when they submitted filings for the patent application without complying with the Patent Office regulations.” Was their error reasonable? After a lengthy discussion of the statute of limitations, the court held that a reasonable jury could decide in favor of the plaintiffs. (The facts here are complicated; patent lawyers should give it a read.)

Thompson v. District of Columbia: Finally, we come to a modern-day Bleak House (this is a literary court). This is how Judge Griffith opens his opinion (joined by Judges Srinivasan and Millett): “In 1996, the District of Columbia Lottery and Charitable Games Control Board terminated James Thompson, Jr.’s employment by assigning him to a position that had been marked for elimination only the day before. Thompson filed suit under 42 U.S.C. § 1983, alleging in part that his termination violated his Fifth Amendment right to due process. In the almost twenty years since the district court has dismissed Thompson’s complaint three times, and we have reversed two of those dismissals. Before us now is the district court’s most recent dismissal of Thompson’s complaint, as well as its denial of his motion for summary judgment. We reverse the district court again and remand for the district court to enter partial summary judgment for Thompson. Only two issues will then remain to be resolved on the merits: whether the District can be held liable under section 1983 for the violation of Thompson’s due process rights and, if it can, a determination of the damages.”

So there you go: another week’s worth of cases—and, indeed, a year’s worth of cases. I apologize that my analysis this week was pretty quick. But don’t blame me; I just want to make sure that you can get through all this law in five minutes.

* I confess, I didn’t read this one all the way through, and I skimmed some opinions.

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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