D.C. Circuit Review – Reviewed: Bye-Bye, Browning-Ferris

by Aaron Nielson — Saturday, Dec. 16, 2017@Aaron_L_Nielson

(Apologies; this post was written quickly — and at 30,000 feet.)

This has been a busy week. What to write about? The White House released the Unified Agenda. Unfortunately, I haven’t had a chance to review it yet. The Administrative Conference of the United States finished its plenary session.* Emily Bremer, however, will have that covered. The FCC just undid “Net Neutrality.” But there will other opportunities to write about that. And surely Chief Judge Garland is pleased that he didn’t receive this letter.

This week’s post, however, is about Browning-Ferris. What is that? Well, it is a 2015 NLRB decision addressing so-called “joint employers.” Long-story short, Browning-Ferris made it easier for unions to go after franchisees and contractors. Before Browning-Ferris, companies were “joint employers” if they had “direct and immediate” control over workers. After Browning-Ferris, “indirect or contractually reserved control” was enough.

I mention all of this because the NLRB got rid of Browning-Ferris this week.

This is relevant to the D.C. Circuit for two reasons. First, a challenge to Browning-Ferris is currently pending before the D.C. Circuit; oral argument was on March 9, 2017. Presumably that challenge is now moot. And second, Browning-Ferris made an extended cameo in a recent D.C. Circuit opinion:

The difference between the case now before us and Browning-Ferris should be apparent. In Browning-Ferris, the Board carefully examined three decades of its precedents and concluded that the joint-employer standard they reflected required “direct and immediate” control. It then criticized that standard. Thereafter, it forthrightly overruled those cases and set forth, as “a new rule” for identifying joint employment, a standard quite similar to the one the Board in the case before us claimed had been the standard all along. This an agency may do, as long as it provides a reasoned explanation for its change of course. See FCC v. Fox Television Stations, Inc., 556 U.S. 502, 515 (2009). In fact, whether the Board did so in Browning-Ferris is a question at issue in a petition for review of that decision that is currently pending before another panel of this court. See Browning-Ferris Indus. of Cal. v. NLRB, No. 16-1028 (D.C. Cir. filed Jan. 20, 2016).

In the case on review here, however, the Board did none of those things. In characterizing the prevailing joint-employer standard, it did not grapple with its precedents in the manner of Browning-Ferris. It did not explain why it thought precedents that seemed to “focus[] exclusively on [the employer’s] actual exercise of … control — and require[] its exercise to be direct [and] immediate,” Browning-Ferris, 362 NLRB No. 186, at 13, instead supported a more flexible “share or codetermine” standard. Indeed, it did not even mention many of the important precedents at all, including those that expressly used the “direct and immediate” control formulation. Nor did the Board mention the fact that, just three months earlier, its own General Counsel’s amicus brief in Browning-Ferris had said: “[T]he Board [has] made clear that the essential element in its current analysis is `whether a putative joint employer’s control over employment matters is direct and immediate.'” And because it did not acknowledge the precedent suggesting that “direct and immediate” control was the existing standard, it certainly did not forthrightly overrule it.

Such “[s]ilence in the face of inconvenient precedent is not acceptable.”

(My emphasis added.)

The NLRB has now reviewed Browning-Ferris itself and rejected it. If you follow labor law, this is a big deal.

The D.C. Circuit decided two cases this week, both of which are worth a read.

First, in Reporters Committee for Freedom of the Press v. FBI, Judge Tatel (joined by Judges Kavanaugh and Silberman) authored an important FOIA opinion. The Court also used the term “fake news” — I believe a first in the D.C. Circuit. Here is how Judge Tatel explained the facts:

In 2007, Seattle-area Timberline High School began receiving anonymous bomb threats, which prompted daily evacuations. Unable to trace the emailed threats to their sender, local authorities called in cybercrime experts from the FBI’s Seattle Division. Sensing the handiwork of a narcissist, the FBI agents devised a plan: if they could flatter the culprit into clicking a link to what appeared to be press coverage suggesting that he had outsmarted the authorities, they could, in turn, outsmart him by secretly delivering specialized malware that would reveal his computer’s location. Warrant in hand, an FBI Special Agent contacted an anonymous social-media account associated with the threats, identified himself as an Associated Press “Staff Publisher,” and requested input on a draft article accessible through an emailed link. The suspect took the bait, clicking the link and unwittingly downloading the malware. Within hours, the FBI had its man.

This ploy caused some consternation — perhaps such a “ruse” will harm media credibility. “Facing outcry from news outlets, interest groups, and members of Congress, then–FBI Director James Comey, Jr., penned a letter to the New York Times justifying the tactics.” Various media representatives used FOIA to learn more about what happened. The FBI did not turn over much information. And that is a problem. An agency responding to a FOIA request must explain how it conducted its search. But here “the … declarations are utterly silent as to which files or record systems were examined in connection with the targeted searches and how any such searches were conducted, including, where relevant, which search terms were used to hunt within electronically stored materials.” The Court also faulted the agency for not searching the FBI Director’s Office: “The record unmistakably establishes that the FBI Director’s Office was intimately involved in coordinating the Bureau’s response.”

Second, in NHTC, Inc. v. FCC, Judge Edwards (joined by Judges Rogers and Tatel) emphasized the limits of judicial jurisdiction. A “regional Commercial Mobile Radio Service carrier” challenged “an order issued by the Enforcement Bureau” about roaming rates. “The Bureau,” however, “acted pursuant to delegated authority,” yet the carrier “never sought Commission review of the Bureau order before petitioning for judicial review.” That was a mistake. Congress “requires complaining parties who seek to challenge any such action taken by the Bureau to first seek review with the Commission as ‘a condition precedent to judicial review.’” The most interesting part of this opinion concerns Section 208(b) of the Communications Act (which deems certain acts to be final); the Court concluded that this section applies only to “ orders issued by ‘the Commission.’” In short: “When Congress says ‘the Commission,’ it means the Commission. When Congress means to refer to delegated subdivisions of the Commission, it does so explicitly.”

Busy times.


* If you are interested, the Conference adopted a recommendation about waivers and exemptions based on my report. Many thanks are due Jennifer Nou for running the Committee — though I suspect she’s more excited about this news!


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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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