D.C. Circuit Review – Reviewed: Boo-Hoo, Daniel Epps!

by Aaron Nielson — Friday, June 1, 2018@Aaron_L_Nielson

The Supreme Court is in crisis. It is already June yet almost half of the High Court’s cases remain undecided. For the Justices to finish their work by July 1, they will have to decide “29 of 63 argued cases” this month alone. What is happening? And why? Most importantly, can the Court — nay, the Nation itself — survive?

The group hardest hit by this crisis, of course, are Supreme Court commentators. As Daniel Epps — co-host of First Mondays, Supreme Court reformer, and Twitter presencelamented earlier this week at PrawfsBlawg:

For the second week in a row, I got set up with my computer at a coffeeshop at 9am central time, ready to start digesting what I was sure would be a big batch of opinions. And for the second week in a row, the Court gave us only two opinions (though today, the Justices also DIG’d another case, City of Hays v. Vogt). One of today’s two opinions, Lagos v. United States, is only 8 pages long. While Collins v. Virginia, an interesting Fourth Amendment case, is quite a bit meatier (there’s a lot to digest in Justice Thomas’s interesting concurrence challenging the application of the Fourth Amendment exclusionary rule to the states), that’s not a very good showing for this point in the term.

Poor Daniel Epps.* How can anyone possibly digest 29 opinions in a single month?

Welcome to my world. In June 2017, the D.C. Circuit issued 30 published opinions (29 if you subtract the Raymond J. Lucia Companies, Inc. v. SEC en banc order). In July 2017, the D.C. Circuit issued 29 more opinions. And then in August 2017 the D.C. Circuit issued about 40 opinions! Granted, some of the opinions were short. But who can forget the week when the D.C. Circuit’s opinions came in at 417 pages, including Owens v. Republic of Sudan, which by itself was 129 pages?

Ah, but perhaps the Supreme Court’s cases are more difficult? I’m not so sure about that; candidly, many Supreme Court cases are not all that hard. American Wild Horse Preservation Campaign v. Perdue, which I literally selected at random, is as challenging as a run-of-the-mill Supreme Court case, if not more so. Nor would everyone agree that the Supreme Court’s opinions are of higher quality. To be sure, the Supreme Court has fewer “judges” across which to spread the work. But the Supreme Court also decides only a fraction of the number of cases that the D.C. Circuit does. The Justices will decide 63 argued cases this term; the D.C. Circuit has already issued 70 published opinions just since January 1st, and that is before the summer onslaught. Finally, there is not a selection issue when it comes to comparing the Supreme Court’s June cases and the D.C. Circuit’s June, July, and August cases; the D.C. Circuit also leaves its most difficult decisions for the summer — expect a lot of dissents and separate opinions over the next few months in both courts.

In short, in a perfect world, the Supreme Court wouldn’t find itself in this jam; it would have spaced out its opinions better. But 29 opinions can be done. Just ask the D.C. Circuit.

***

The D.C. Circuit decided six cases this week (take that, Supreme Court).

In International Longshore & Warehouse Union v. NLRB, Judge Henderson (joined by Judges Kavanaugh and Katsas) denied a petition to review whether a union “violated sections 8(a)(1)(A) and (2) of the NLRA by accepting assistance and recognition from the Employer as the exclusive … representative of the unit employees … when [this union] did not represent an uncoerced majority of unit employees.” The story is complicated (it is a 23-page opinion) but, it turns out, another union had pride of place. This is how Judge Henderson opened the opinion:

International Longshore

In Tramont Manufacturing, LLC v. NLRB, Judge Tatel (joined by Chief Judge Garland and Judge Millett) remanded NLRB’s determination that Tramont’s “employee handbook that reserved the company’s right to implement layoffs … should not be read to displace Tramont’s duty under the [NLRA].” In considering Tramont’s argument, the Court found that the Board was “within its legitimate policy ambit in interpreting the [NLRA]” but also that the Board had “neglected to explain its basis for applying this standard.” As a result, the Court found that “the Board failed adequately to justify the legal standard governing its interpretation of the handbook … [and] remand[ed] for further explanation.” Earlier this week on Twitter (ugh), I compared how Judge Tatel opened his opinion with how Judge Henderson opened her opinion. This is Tatel’s opening:

Tramont

Judge Tatel uses a more traditional opening — a summary of the case. Yet unlike most such introductions, I couldn’t guess who was going to win until almost the end of the paragraph.

The Court also addressed qualified immunity this week in Daugherty v. Sheer. Here is how Judge Wilkins (joined by Judges Pillard and Sentelle) opened his opinion:

Daugherty

The D.C. Circuit doesn’t decide that many qualified immunity appeals (though, if you recall, one of its qualified immunity decisions was reversed earlier this year by the Supreme Court). Exercising its discretion, the Court here did not reach the merits of the constitutional question. (If you are interested in qualified immunity, Chris Walker and I today just posted a new essay on the subject to SSRN: A Qualified Defense of Qualified Immunity, forthcoming in the Notre Dame Law Review. Please give it a read; we are still revising.)

In McGovern v. Brown, Judge Randolph (joined by Judges Griffith and Edwards) tells an interesting story. This is how the opinion begins:

McGovern

Who won? The officers — this was a reasonable arrest. Including another small courtesy to the district court, the Court found “Chief Judge Howell’s opinion comprehensive and persuasive.”

Schubarth v. Federal Republic of Germany concerns foreign sovereign immunity. Here is a good summary of the opinion (authored by Judge Wilkins, joined by Judges Griffith and Kavanaugh):

Federal Republic of Germany

There is a lot more going on, including a discussion of the Cold War; if this is your field, give it a read!

Finally, we come to Arkansas Public Service Comm. v. FERC. This is how Judge Sentelle (joined by Judges Henderson and Wilkins) explained the Court’s analysis:

Ark Public Service Comm v. FERC

I would have liked to spend more time discussing these opinions. But that is hard to do when there are so many. Good luck Daniel Epps.

 

* I kid, of course! 😉 Daniel’s point is substantive and, indeed, important. And I share his concern — with so many opinions left to decide, quality may suffer. In a speech, I once heard Justice Alito mention a (probably apocryphal) story about, I believe, Justice White. Per this tale, the first thing Justice White would do when reading a Supreme Court opinion was look at the date it was issued. And if it was June, he would discount the opinion a bit! The D.C. Circuit solves this problem by … issuing opinions over the summer.

 

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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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