D.C. Circuit Review – Reviewed: Browning-Ferris, One More Time (For Now?)

by Aaron Nielson — Friday, Dec. 28, 2018@Aaron_L_Nielson

Note: The D.C. Circuit had a busy week, but I’m away on family business and only have time to write a quick post.*

As regular readers of D.C. Circuit Review — Reviewed know, the saga of Browning-Ferris has been an unusual one. About a year ago, I authored a post entitled “Bye-Bye, Browning-Ferris.” And then a few months later, I authored one entitled “Hello Again, Browning-Ferris.” As I explained then:

[T]he bottom line is that Browning-Ferris is back in the D.C. Circuit. This week, over Judge Randolph’s dissent, the Court (per Judges Millett and Wilkins) recalled its mandate. ….

Last December, the NLRB asked the D.C. Circuit to remand Browning-Ferris because the Board had just overruled it in Hy-Brand Industrial Contractors, Ltd. The Court agreed to do so, and the mandate for that decision issued on December 22, 2017. This is all relatively ordinary. But then things became strange. On February 26, 2018, the Board vacated Hy-Brand and asked the D.C. Circuit to recall the mandate from Browning-Ferris — which is much less common. …

Well, today the D.C. Circuit (Judge Millett, joined by Judge Wilkins) decided Browning-Ferris — again, with Judge Randolph in dissent. And it turns out that more has happened during the interim period:

If you want to understand the context, go back and read my earlier posts on the subject. Here is Judge Millett’s summary of the current law:

So here is a question: What does the Court’s decision mean for the pending rulemaking? Is the relevant issue now definitively resolved? The majority opinion says the merits question is a purely legal one that is for a court to decide de novo. I’m curious what will happen next, including whether the Board will petition for rehearing en banc or certiorari. Whether you follow labor law or not, this one is worth reading.

***
The Court also decided four more opinions. In Simon v. Republic of Hungary, Judge Millett (this time joined by Judge Pillard) held that the district court erred by concluding that a case brought by Holocaust survivors against Hungary should be decided in Hungary; Judge Katsas dissented. In United States v. Hicks, the busy Judge Millett (this time joined by Judges Tatel and Williams) concluded that an argument that “a provision of the United States Sentencing Guidelines … is unconstitutionally void for vagueness” is procedurally defaulted and the petitioner cannot show actual prejudice to overcome that default. And in Jackson v. Office of the Mayor, Judge Henderson (joined by Judges Griffith and Wilkins) offered a tutorial on federal courts — discussing “the Rooker-Feldman doctrine, the Younger abstention doctrine and the doctrine of res judicata.”

Finally, in Exelon Corporation v. FERC, Judge Williams (joined by Judges Katsas and Silberman) opened his opinions this way:

Intrigued? Read the opinion! Be warned, however. You’ll need to wade into some deep FERC waters. “If something like the above approximates FERC’s view, FERC’s actions in the orders are puzzling. Why, for example, did the Commission not put to rest Exelon’s misunderstanding of the new rules’ implications in the Final Order or Rehearing Order? And what, precisely, is the point of the tariff’s styling ISO-NE’s bid submissions as ‘fil[ed] … pursuant to Section 205,’ Tariff § III.13.8.1(a), J.A. 40, if suppliers’ original bids in effect receive the equivalent of § 205 treatment in case of a mitigated bid?”

A final thought: There is more in all those opinions than this short recap can explain. So I’ll say this: In my opinion, every decision this week could easily justify a post of its own.

 

* Well, I’m not so sure about “business,” but we’re certainly away enjoying a once-in-a-lifetime family event ….

 

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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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