D.C. Circuit Review – Reviewed: A Smaller Thought About the Chief Judge of the D.C. Circuit

by Aaron Nielson — Tuesday, May 16, 2017@Aaron_L_Nielson

This is a special midweek edition of D.C. Circuit Review — Reviewed. I’ll post again on Friday.

Last Friday I offered a “small thought” about the chief judge of the D.C. Circuit — namely, that for the last few decades, the chief judge has left active status even when there was a very good chance that his or her replacement would be appointed by a president of a different party than the initial appointer. The post sprung from the talk that Chief Judge Garland was being pitched as FBI director. Yet although the idea of Garland leaving the bench while a Republican is president is not unthinkable (see History), that particular move struck me as unlikely.

Today comes the news that Chief Judge Garland is not interested in leaving the bench.

This is unsurprising. Being chief judge of the D.C. Circuit is a pretty great job.

But today’s news prompts a thought, albeit an even smaller thought than last week’s. Here goes: Assuming for the sake of argument that Chief Judge Garland really is the perfect person for the FBI,* then why not pay him a lot of money — say one or two (or even three or four) million dollars per year — to take the job? Or really, whatever he wants up to the point where his value no longer exceeds his salary? Congress can always change the compensation scheme. And raising the amount of compensation makes even more sense when it comes to inducing a sitting judge to leave the bench. After all, if Garland were to leave now, before he is 65, he would forfeit his entire pension.

Of course, there are two responses to my thought (which is why it is a very small thought indeed). First, when it comes to government leadership, there is and should be an element of public service to the job. Paying someone millions of dollars seems contrary to that notion. Second, and related, if Congress starts fiddling with compensation, suddenly there will be a lot of people who think they also should be paid more!

Perhaps it is best to leave well enough alone.

    ###

The D.C. Circuit decided three cases today. I want to talk about two of them — the third I’ll save for Friday.

First, in Senate Permanent Subcommittee on Investigations v. Ferrer, Judge Tatel (joined by Judges Srinivasan and Wilkins) issued a very interesting “separation of powers” opinion. Here is the opening paragraph:

Carl Ferrer, Chief Executive Officer of the online advertising website Backpage.com, appeals two district court orders directing him to produce various documents in response to a subpoena issued by the Senate Permanent Subcommittee on Investigations. During the pendency of this appeal, however, Ferrer turned over some of the documents, and the Subcommittee completed its investigation and issued its final report. Given this, and given that the Subcommittee no longer seeks to enforce the subpoena, it argues that the case has become moot. Ferrer responds that the case remains live because, according to him, this court can order the Subcommittee to return, destroy, or refrain from publishing the produced documents. We disagree. Because the relief Ferrer seeks is barred by the separation of powers, including the Speech or Debate Clause, the case is now moot.

The documents at issue, it seems, relate to Backpage’s policies to prevent “human trafficking or child exploitation.” Ferrer did not think he had to turn over the documents; the district court disagreed. “Ferrer immediately noticed an appeal and sought a stay in the district court, our court, and the Supreme Court, all of which denied his request.” He then turned over a great many documents. Can he now get them back or at least have them destroyed? No, says the Court: “We might agree were his documents held in the grips of a federal agency. But as the Subcommittee points out, because it is Congress that holds Ferrer’s documents, he must contend with the cloak of protection afforded by the Constitution’s separation of powers, including the Speech or Debate Clause.” So what should you do if you don’t want to turn over documents to Congress and you think you have a good legal argument? “‘[Y]ou stand on your privilege, you go into contempt.'”

Interesting.

Second, in Ruisi v. NLRB, Judge Edwards (joined by Judges Kavanaugh and Wilkins) upheld an NLRB order because it was “reasonable.” The word “reasonable,” “reasonableness,” or “reasonably” was used eleven times in the opinion — for a reason. That’s the standard for substantial evidence: “Substantial evidence requires enough ‘relevant evidence as a reasonable mind might accept as adequate to support a conclusion.’ Under this deferential standard of review, we will reverse the Board ‘only when the record is so compelling that no reasonable fact-finder could fail to find to the contrary.'” The specific issue was whether the union erred by requiring that all requests for “Anniversary Dates” (i.e., the day one joined the union, which determines when one can leave it) be in writing. The Board rejected that argument because “the Union’s policy was not so far outside a wide range of reasonableness as to be irrational …. Requiring that the request be in writing allows the Union to properly verify the request and authenticate the date before divulging it.” The D.C. Circuit upheld that decision: “On the record before us, we hold that the Board reasonably concluded that the Union’s disputed policy was not arbitrary.”

There is one more case today … but it has a 43-page dissent. I’ll write about that case on Friday. But here is a sneak peak: “Avarice, Ambition [and] Revenge or Galantry, would break the strongest Cords of our Constitution as a Whale goes through a Net.” As a Whale goes through a Net! What an image. So come back Friday!

* I have no insight into this question.

 

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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 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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