​D.C. Circuit Review – Reviewed: A Flamingo in the Shadows

by Aaron Nielson — Saturday, June 25, 2016@Aaron_L_Nielson

As Will Baude reminds us, courts often do important things that don’t receive enough attention. Baude dubbed this dynamic the “shadow docket” in the context of the Supreme Court, but there is no reason why his insight is limited to the Justices. Courts everywhere make decisions that are significant but yet don’t end up in formal opinions of the sort that law students read (and read and read).

That’s why I’m pleased to report that this week, the D.C. Circuit has decided to shine more light on its own shadow docket. In particular, on Wednesday, Chief Judge Garland made the following announcement: “Beginning today, the Court will provide free access to our ‘unpublished’ judgments by posting them on our website. We will also provide free access to an archive of all judgments issued since June 2000.” This is great news. To see why, let me illustrate with an example.

As I was reviewing the unpublished judgments for June, I stumbled across this notable one: Flamingo Las Vegas Operating v. NLRB. In Flamingo, Judges Kavanaugh and Silberman ruled against the NLRB in an unpublished order—over the partial dissent of Judge Wilkins, and after hearing oral argument. The NLRB concluded that Flamingo violated labor law in numerous respects, including through its (1) “reprimand of security officer Francis Bizzarro on September 3, 2011”; (2) its “distribution of a flyer featuring a blank union authorization card on or about October 7, 2011” and; (3) its “distribution of a flyer featuring the word ‘BIZARRE’ on or around October 16, 2011.” The Board explained that distributing the flyers created an “impression of surveillance.” The per curiamdecision upheld the Board’s determinations as to the reprimand and other unfair labor practices. Yet the panel also ruled that the Board’s decision regarding the flyers was not supported by substantial evidence. Here is the analysis:

The Board found that the October 7, 2011 flyer created an impression that Flamingo was surveilling employees’ union organizing and other concerted activities. The flyer reproduced the union authorization card that Bizzarro handed out to the employees and circled the spaces where employees would sign. The flyer also included the following advice: “Don’t sign away your signature. You’re giving authority to a union you know nothing about by signing these cards.” Flamingo obtained the card from an employee who turned it over voluntarily. The only evidence supporting the Board’s finding appears to be that Flamingo reproduced the authorization card. Although Flamingo did not explain to employees how it came to possess the card, there was no evidence that the union organization activities were conducted in secret, or that the employees intended to hide their participation in the organizing activities. No reasonable employee would assume, by the simple reproduction of a union authorization card during an open campaign for unionization, that the employer surveilled union activities.

Similarly, although Flamingo’s contention that the word “BIZARRE” in the October 16, 2011 flyer was not intended to reference Bizzarro is laughable, the Board’s conclusion that such a reference would create an impression of surveillance is not supported by the record. The ALJ acknowledged that Bizzarro’s role in union organization was an “open secret.” No employee would reasonably assume that Flamingo was monitoring the union organizing activities solely suggesting adverse consequences would not otherwise reasonably coerce employees in the exercise of their Section 7 rights.

Judge Wilkins dissented in part because, according to a footnote in the unpublished judgment, he “would find that substantial evidence supports the Board’s finding that distribution of the October 7, 2011 flyer created an impression of surveillance.”

Flamingo illustrates why unpublished judgments should be easily accessible. To be sure, it does not bother me that Flamingo wasn’t published—after all, I have come around to accept unpublished opinions as a necessary evil.* But I would be much more concerned about cases like Flamingo if the Court’s opinions were not open to public perusal. The D.C. Circuit’s decision to post these unpublished judgments on its website thus is welcome news.

This was a very busy week in the D.C. Circuit. There are eight published cases. Brace yourself for an avalanche of law.

NLRB v. Southwest Regional Council of Carpenters: Last month, the “Noel Canning” from NLRB v. Noel Canning lost its merits case. This week, a company that unsuccessfully hoped to use Noel Canning to fight the agency nonetheless won on the merits. Life is strange sometimes. At bottom, this case is an inter-union fight. The “Painters Union” filed an unfair labor practice charge against an employer that encouraged its employees to attend a meeting hosted by the “Carpenters Union”—after which the Carpenters Union was chosen to represent all the employees. At the meeting, the employer’s leaders sat at the front, but they could not see who signed cards or interact with employees while the Carpenters Union recruited. Although the Painters Union’s objection was dismissed by an administrative law judge, the NLRB concluded that the employer’s presence in the room was unlawful. Judge Griffith, joined by Judges Williams and Sentelle, vacated the Board’s orders because “the Board did not provide a reasoned justification for its departure from” an agency precedent.

Verizon New England Inc. v. NLRB: Here, an employer had a dispute with a union regarding a collective bargaining agreement waiver of the right to picket. But did that waiver include displaying pro-union signs? Per the agreement, the dispute went to an arbitration panel that sided with the employer. The union “then took the matter to the NLRB” where an administrative law judge also ruled in favor of the employer. The NLRB, however, disagreed. The D.C. Circuit rejected the NLRB’s decision in a splintered opinion by Judge Kavanaugh—who concluded that the agency abused its own discretion when it concluded that the arbitrators abused their discretion. According to Kavanaugh, although the NLRB can reject a “palpably wrong” arbitral decision, here “there was nothing approaching egregious error in the arbitration panel’s decision.” After all, “what does palpably wrong mean?” “The phrase means what it suggests. Wrong is not enough. The adverb matters. Egregiously wrong, clearly erroneous, badly flawed, totally wrong, jumping the rails.” Judge Henderson concurred in the judgment but rejected much of the framework offered by Kavanaugh. Indeed, it seems that she does not believe that any deference to the agency is appropriate here. Finally, Judge Srinivasan dissented in part; although he agreed with Judge Kavanaugh’s framework, he did not think the agency abused its discretion.

Swaters v. Department of Transportation: This case is about urine—or, rather, urine samples. The petitioner was a former pilot; he lost his job for having evidence of drug use (morphine, heroin, and cocaine) in his urine. Federal law required him to provide the urine sample. “Swaters now wants the urine sample in order to conduct a DNA test in the hope of proving, in a state court negligence action, the urine is not his.” The D.C. Circuit would have none of it. In an opinion by Judge Ginsburg, joined by Judge Rogers (Chief Judge Garland sat this one out), the Court conclude that “neither the DoT’s general rule against releasing urine samples for DNA testing, nor its refusal to release the sample in this case, is arbitrary, capricious, or contrary to the Omnibus Transportation Employee Testing Act of 1991. We also hold that Swaters’s constitutional challenges to the rule fail.” This portion of the panel’s analysis is worth quoting: “All of this is not to say that a pilot in Swaters’s position has no recourse if his urine sample tests positive for narcotics. Pilots have ample procedural protections, including an opportunity to challenge the test result in an administrative hearing . . . . The DoT’s rule in this case does not abrogate those procedural protections; it simply reflects the determination that a particular type of evidence is more likely to undermine the test results of a guilty subject than to vindicate an innocent one, and therefore should not be used. Because the DoT’s concern about cheating on a drug test is reasonable, the court will not set aside the agency’s rule against releasing urine samples.”

Stovic v. Railroad Retirement Board: This case came as a “Petition for Review of a Decision of the Railroad Retirement Board”—which is a petition I have not seen before. Judge Kavanaugh, joined by Judges Henderson and Rogers, rejected the petition: “We conclude that the Railroad Retirement Act grants the Court jurisdiction to review Board decisions denying requests to reopen initial benefits determinations. However, the Board’s decision to deny Stovic’s request to reopen was reasonable.” Judge Kavanaugh’s textualism is definitely worth a read—he makes quick work of the agency’s jurisdictional argument, and in so doing creates a circuit split: “As the Board points out, many courts of appeals have agreed with the Board’s interpretation of Section 5(f) largely because of [Califano v. Sanders, 430 U.S. 99 (1977), which arises in the arguably analogous Social Security context]. See Cunningham v. Railroad Retirement Board, 392 F.3d 567, 573 (3d Cir. 2004);Harris v. Railroad Retirement Board, 198 F.3d 139, 142 (4th Cir. 1999); Roberts v. Railroad Retirement Board, 346 F.3d 139, 141 (5th Cir. 2003); Steebe v. Railroad Retirement Board, 708 F.2d 250, 255 (7th Cir. 1983); Rivera v. Railroad Retirement Board, 262 F.3d 1005, 1009 (9th Cir. 2001);Abbruzzese v. Railroad Retirement Board, 63 F.3d 972, 974 (10th Cir. 1995).” Because the agency won here, however, this is a bad vehicle to resolve any disagreement. But keep an eye on this issue—it may end up before the Supreme Court.

Lopez v. Council on American-Islamic Relations Action Network, Inc. (CAIR): This case concerns someone who pretended to be a lawyer. A CAIR employee was hired for non-legal work but soon began (mis)representing himself as a lawyer and doing work on behalf of clients. In a suit brought by some of those clients against CAIR, Judge Wilkins, joined by Judges Srinivasan and Ginsburg, concluded that a jury could conclude that the “lawyer” was an agent of CAIR. The court thus reversed the district court’s award of summary judgment.

U.S. ex rel Oliver v. Phillip Morris USA Inc.: Hearing this qui tam case for the second time, Judge Wilkins (joined by Judges Rodgers and Williams) determined that Oliver’s accusation that Philip Morris violated the False Claims Act by selling cigarettes to the Navy, Army, and Air Force exchanges at too high prices was barred. Be warned: This opinion is fact-heavy. But it also is pretty interesting, even for non-qui tam lawyers—well, at least interesting-ish!

United States v. Vega: This is a complex criminal case involving defendants found to be associated with “the Fuerzas Armadas Revolucionarias de Colombia (‘FARC’), a ‘left-wing guerilla group that has waged a violent insurgency against Colombia’s government for much of the last fifty years.’” If you are interested in learning about the cocaine business, give this opinion a read. Long story short, the per curiam panel of Judges Brown, Millett, and Ginsburg affirmed in almost all respects but remanded for resentencing because one of the defendants was wrongfully given a sentencing enhancement for being a supervisor.

Alexander v. WMATA: We have another per curiam opinion—this one issued by Judges Millett, Edwards and Silberman. It is an interesting disability discrimination case. The plaintiff, it seems, “has suffered from alcoholism since approximately 1980.” One day, a “supervisor smelled alcohol on his breath. A breathalyzer test came up positive for alcohol. Shortly thereafter, [he] was suspended and referred to the Authority’s Employee Assistance Program.” Yet afterwards, “he again tested positive for alcohol while at work. As a result, he was terminated. During the exit interview, Alexander was told that he could apply to be rehired in one year if he completed an intensive alcohol dependency treatment program.” His former employer, however, did not hire him back. Eventually he sued under the Rehabilitation Act. The district court rejected his claim “because he failed to come forward with sufficient evidence showing that his alcoholism ‘substantially limits one or more major life activities.’” The panel ruled in his favor on appeal: “The district court’s analysis … focused on only the first definition of ‘disability’—an actual and substantially limiting ‘physical or mental impairment’— and failed to consider whether [he] met either the record-of-impairment or regarded-as-impaired definitions of disability. Compounding the error, the district court also applied an outmoded statutory standard.” I will leave the details of the Court’s analysis to discrimination lawyers.

There you go—eight published opinions, plus a notable unpublished one. And there are a lot of other unpublished decisions now available. I’m not going to write those unpublished opinions up; life is too short. Yet the fact we can review them is a step in the right direction. No Flamingo should live in the shadows.

* To be sure, the D.C. Circuit’s “policy”—not a rule—“is to publish an opinion” that “reverses a published district court or agency decision.” Here, however, the panel affirmed the agency in most respects and the dispute between the majority and partial dissent was narrow. Plus nothing suggests that the dissenting judge requested that the opinion be published; indeed, the “dissent” consists of a single footnote.

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About Aaron Nielson

Professor Nielson is an associate professor at Brigham Young University Law School, where he teaches and writes in the areas of administrative law, civil procedure, federal courts, and antitrust. He currently serves as a public member of the Administrative Conference of the United States, a federal agency that studies the administrative process and makes recommendations on ways to improve it. He also co-chairs the Rulemaking Committee of the American Bar Association’s Section of Administrative Law & Regulatory Practice. Previously he chaired the Section's Antitrust & Trade Regulation Committee. Before joining the academy, Professor Nielson was a partner in the Washington, D.C. office of Kirkland & Ellis LLP (where he remains of counsel). He also has served as a law clerk to Justice Samuel A. Alito, Jr. of the U.S. Supreme Court, Judge Janice Rogers Brown of the U.S. Court of Appeals for the D.C. Circuit, and Judge Jerry E. Smith of the U.S. Court of Appeals for the Fifth Circuit. Follow him on Twitter @Aaron_L_Nielson.

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