D.C. Circuit Review – Reviewed: A Small Courtesy (And a Few Miscellaneous Thoughts)

by Aaron Nielson — Friday, May 18, 2018@Aaron_L_Nielson

I noticed a small courtesy in this week’s cases. The world can be a pretty harsh place. So when we have an opportunity to offer an earned compliment, we should take it. Courtesy and kindness, after all, are never wasted.

In Drielak v. Pruitt, Judge Randolph (joined by Judges Henderson and Katsas*) affirmed the district court’s dismissal of various age discrimination claims. The facts here are fairly involved, but this sentence caught my attention: “The district court, Cooper, J., issued a comprehensive opinion explaining why the court entered summary judgment against Drielak.” I added the emphasis because the reference to “Cooper, J.” deserves attention. When a district judge authors a “comprehensive opinion” in a case with many moving parts, a circuit court should say so. Often the work of courts is not glamorous; indeed, it can be tedious. And so it can be tempting for judges to focus on the “big” cases at the expense of the “small” ones. But that is not how courts should behave. When a district court does the nitty-gritty work that resolving fact-heavy cases demands, it is a nice courtesy to acknowledge that work.

Moving on, in In Re Trade and Commerce Bank, a per curiam panel (consisting of Judges Wilkins, Katsas, and Randolph) denied a writ of mandamus. This is how the opinion begins:

In re Trade and Commerce Bank

As one might imagine from that introduction, the procedural history of this case is complicated. Suffice it to say, in 2010 “the United States filed an interpleader action” — students: interpleader is a real thing and not just something law schools throw into the curriculum as a hazing device — “in the District Court for the Southern District of New York to resolve the competing claims.” The Second Circuit disagreed. Afterwards, the Attorney General asked the D.D.C. to “restrain the funds pursuant to 28 U.S.C. § 2467(d)(3).” The S.D.N.Y. thereafter transferred the matter to the D.D.C. The Liquidators now seek to “dissolve the restraining order on the ground that the Second Circuit’s mandate required the United States to file for enforcement of a final forfeiture order pursuant to 28 U.S.C. § 2467(b) and (c), not for a restraining order under § 2467(d)(3).” The district court disagreed. So now the question: Should the D.C. Circuit grant mandamus? No, says the panel. Along the way, the Court clarifies the standard for mandamus relief when mandates are at issue (the ordinary mandamus factors apply, rather than special mandate-related ones) and how foreign judgments are treated in this context (“The district court correctly held that filing for a § 2467(d)(3) restraining order sufficed”). Here is a thought — or, rather, a question — about this case. Doesn’t it sounds like Judge Randolph wrote this opinion? So why the “per curiam”?

The next three opinions all were authored by Judge Edwards.

In Genuine Parts Company v. EPA, Judge Edwards (joined by Judges Henderson and Ginsburg) concluded that EPA erred in listing a site in Indiana as a “high priorit[y]” site under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980. This case is also fact-heavy. But here is the key paragraph:

Genuine Parts Co v EPA

I am intrigued by the last sentence in this opinion: “For the foregoing reasons, we grant the petitions for review, vacate the rule to the extent that it places the West Vermont Drinking Water Contamination Site on the NPL, and remand to EPA for further proceedings consistent with this opinion.” Obviously, I added the emphasis here too. This sort of partial vacatur is interesting, for reasons the Administrative Conference of the United States will consider at the next plenary session.

Next, we have Prime Healthcare Services- Encino LLC v. NLRB. Here, Judge Edwards (this time joined by Judges Griffith and Pillard) upheld the NLRB’s determination that the employer violated the National Labor Relations Act by, among other things, “unilaterally discontinued anniversary step increases due to unit employees after its collective bargaining agreements with [two unions] had expired.” The Court applied the “unilateral changes doctrine” — “an employer must maintain the status quo as to terms and conditions of employment after the expiration of a collective bargaining agreement.” But what’s the status quo? Well, we now have a holding of the Court on that point (applying precedent), at least in this context: “In the absence of language in the collective bargaining agreement providing otherwise, anniversary step increases are part of the status quo and continue post-expiration.” A thought: That is the law, but boy, what a challenging doctrine to implement. Determining what is the “status quo” in a constantly changing world presents hard “baseline” questions.

Finally, we end with United States v. Miller — a case that had already been to the D.C. Circuit twice, and, after the Court’s decision this week, may be appealed a fourth time. I’m not going to wade too deeply into the procedural history, nor the “seriously misguided” theory offered by the United States that “confusingly conflate[s] three theories: waiver; law of the case; and the rule that the District Court generally does not have authority to resentence a defendant de novo when this court vacates one count of a multicount conviction.” But I do want to highlight this paragraph from Judge Edwards (joined by Judges Pillard and Williams) on the law-of-the-case doctrine:

US v. Miller

Interesting.

 

* Nice to see Judge Katsas in the mix. His name has popped up on a lot of unreported decisions. Presumably we will also get a published opinion from him shortly.

 

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About Aaron Nielson

Professor Nielson is an associate professor at Brigham Young University Law School. 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. All views expressed are the author's alone. Follow him on Twitter @Aaron_L_Nielson.

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