D.C. Circuit Review – Reviewed: Christmas in the D.C. Circuit — One More Time

by Aaron Nielson — Friday, Dec. 21, 2018@Aaron_L_Nielson

Two years ago, I wrote a lengthy post about Christmas in the D.C. Circuit. Last year, I updated it and posted it again. And this year, I will too. In fact, I think I’ll update it every year.* So here, you go — the story of Christmas in the D.C. Circuit. Be warned: Christmas is not always jolly.

Consider, for instance, the case of Anderson v. White, decided by the Court of Appeals for the District of Columbia (which eventually became the D.C. Circuit) in 1894. The question concerned whether a sale of land could occur during the week of Christmas. There was an auction, but only two bidders came due to the “excessive cold” and the fact that “the time was Christmas week, and a holiday season when most business, and particularly the buying and selling of real estate, is temporarily suspended.” Indeed, it was said that the week of Christmas is one in which “secular matters receive less attention than at any other time of year.” The Court, however, did not buy it: “Surely there is no precedent for saying that a sale cannot properly be made during Christmas week.”

Or consider Jones v. Jones, a divorce case decided by the Court of Appeals in 1902:

The whole proceeding was infamous in the extreme. As showing the character of the artifice and deception to which the parties resorted, to accomplish their purpose, it may not be amiss to quote from one of the letters of the defendant to her father, and which has been produced by the complainant. The letter as it appears in the record is without date, but it appears to have been written before the marriage to Allen. The writer addressed it to her “dear papa,” and she says: “Enclosed you find a letter he (meaning Allen) wrote me. I have just written to him & told him of Will’s death, & also told him to send me a handsome black suit – I will get me a lovely suit. … Papa, we will stay here until I hear from Allan & then I will go up to Dallas; you get Ma to write and tell Mrs. Krammer that Will is dead and then it will sail over Waco. Tell Ma I will send her a fine Christmas present. Papa I don’t want to marry Allan for some time, but I can get all he has, so what use is there in me marring him. … I told Allan that we heard of Will’s death 5 days ago & that I would have written him before this, but was too sad. Papa, Allan is very ignorant, but it just as kind & good as can be. Pa, I only wish you could see the diamonds I have of his. Look on my hand in my picture; what did Ma think of my picture; write me a long letter & me something good, so I can send the letter to him. See what she says in this letter about him. Write me so that I can enclose it to him. *** I am going to write to Miss Kraemmer and tell her that Will is dead ***.”

This letter furnishes abundant evidence of the fraudulent schemes and deceptions to which resort was had by the defendant, shared in by the father, and perhaps the stepmother also, whereby, as it would appear, the unfortunate Allen was entrapped into marrying the defendant, upon the representation and assurance that her husband, the present complainant, was dead.

Hmmm. At least her heart was in the right place; sure, she was going to “get all [Allan] has” — think of the lovely diamonds she already took — but at least she was going to send “Ma” such “a fine Christmas present”!

In 1905, the Court confronted whether voluntary intoxication can be an excuse for grand larceny in a case called Ryan v. United States. (The answer? No.) In so doing, the court related a pretty remarkable Christmas story of booze and unhappiness:

Defendant … fell in with a number of engineers who were getting passes for the Christmas holidays, and, walking down Pennsylvania avenue, they stopped at several saloons; that he first drank beer but changed to whisky; that, not finding his trunks at the station, he went across the street and stopped in a saloon; that when his trunks arrived he treated the drayman and his assistant; that he continued to drink and missed his overcoat; that he went to the baggage room to look for it and remembered having been put out; that he remembered having trunks checked, but not the number; that he did not know what train he left on, but some of his companions put him on board; that he had not drunk before for nearly twenty years; that he did not remember what became of his overcoat; had never found it; that he did not know how many checks he had and paid no attention to them until he got to Memphis; that he was very sick and stopped at Greensborough and Salisbury, and spent a day and night in Memphis, arriving in Dallas on Friday before New Years; that he did not see the trunks in Memphis but exchanged checks there; that on arrival at Dallas he gave his checks to a drayman, and on the next day found four trunks in his room at the hotel; that he found that one of his keys would open one of the strange trunks; that he did not know the owner, and, believing he was far away from the owner, gave no consideration to the matter of returning the trunk; that he was “broke,” having but $2 left, and was trying to get to Los Angeles where he had been promised work; that he had not then succeeded in obtaining railway passes, and decided to try and dispose of some of the articles in the trunk to raise money to go west; that he admits he did wrong, but did not sell anything, and only made an offer to one person; that on Tuesday morning he obtained a pass to El Paso, and, being then offered $30 for the seal-skin coat, said he would not take $1,000 for it now; that he was arrested on the same day; “that he lied to the officers about the trunk and his actions in Dallas.”

That’s an unusual Christmas. Booze and Christmas also played a role in 1997’s DeGraff v. District of Columbia. The plaintiff “attended a Christmas party at her place of employment and then visited two bars.” She was arrested for drunk driving, and one of the officers “pulled her forcibly from the vehicle, calling her a ‘drunk’ and ‘a murderer.'” They then handcuffed her to a mailbox. The D.C. Circuit said a jury should decide if that was excessive force.

Consider also Steinmetz v. Thomas, decided in 1908. This is a patent case — “the invention in controversy [being] a system of electrical distribution, whereby a direct current consumption circuit may be supplied from an alternating source.” The question before the Court boiled down to whether the patent holder had disclosed the invention before the filing date. And when did that disclosure supposedly happen? On Christmas Eve. A witness testified that “Steinmetz disclosed the present invention to him on the evening of December 24, 1902, in his laboratory, at the time of a Christmas celebration.” The Court, however, did not buy it: “There is no doubt that the celebration took place as stated, but it by no means follows that the disclosure took place at that celebration. All of the tribunals of the Patent Office held that this evidence was insufficient to establish disclosure of the invention on that date, and with this we must agree.” Nor is this the only intellectual property case involving Christmas. In In re Dolly Varden Chocolate Co., decided in 1924, the Court reiterated that “the words ‘Merrie Christmas’ [do] not to constitute a valid technical trade-mark for ribbon.” And in Yale Electric Corp. v. Yale & Towne Manufacturing Co., decided in 1929, the Court affirmed an opposition to a trademark — Yale — for “for batteries, battery cells, flash lights, and lighting outfits for Christmas trees and other decorative purposes.”

Now some more unpleasantness. In Bolden v. United States, decided in 1934, the Court recounted this unhappy story:

It is next contended that the court erred in excluding the testimony of defendant’s witness Carroll to the effect that on Christmas Day, 1931, approximately seven months prior to the shooting [of the wife], an altercation had taken place between the wife and defendant, as a result of which ‘the defendant was ordered out of the house, his clothes were thrown out after him, and the mother-in-law threw a lamp at him as he was going down the stairs.’ Counsel stated that they expected ‘to connect that up with evidence by the defendant to show the course of continuous cruel treatment on the part of the relatives of the deceased wife * * * . The purpose is to show that this defendant was put in fear by these people.’ We agree with the learned trial justice that the proposed testimony was irrelevant. Moreover, it would have been prejudicial to the defendant as tending to establish premeditation and deliberation.

As one would imagine, the Court has also decided a fair number of Christmas “slip and fall” cases. For instance, in Avery v. S. Kann Sons Co. (1935), the plaintiff “testified that at the time in question she and her children were on the fourth floor doing Christmas shopping; that they were looking overfrom the upper to the lower level of the room in which the toys were kept, and were about to descend the steps; that when she undertook to step downward her heel caught in something, she does not know what, and caused her to fall upon the floor below.” And in S.S. Kresge Co. v. Kenney (1936), “the plaintiff was a married woman, a chiropodist by profession, in good health, about sixty-three years of age, residing with her husband in the District of Columbia. On the date of her first fall she had gone into the defendant’s store to do some Christmas shopping. On the way down steps leading from the street floor to the basement, she caught her foot in a toy drum which had been placed on the steps by an employee of the defendant, and fell to the bottom of the steps.” In Young Men’s Shop v. Oden’Hal (1941), “plaintiff had lunch …. Between two and three o’clock in the afternoon he left the Grill to go to defendant’s shop in order to purchase Christmas presents. It was raining hard and he took the short route, walking east on G Street to the parking lot, crossing it and the alley, to the rear door of defendant’s shop. As he entered through this door the fall occurred.”

There also are cases in the D.C. Circuit dealing with the NLRB and Christmas bonuses. For instance, in Peter J. Schweitzer, Inc. v. NLRB, decided in 1944, the employer mentioned the “Christmas bonus” that employees receive in a letter urging the employees to reject the union. There have been other such cases over the years — plus once the D.C. Circuit used this analogy (in Road Sprinklers Fitters Local Union v. NLRB in 1982): “A rule as narrow as the one the Board may be suggesting would be equivalent to holding, in cases concerning an employer’s discontinuing to give his employees Christmas turkeys, that the employer would only be violating the statute if he repossessed turkeys already in hand.” (By the way, do employers still give out turkeys?) In 2018, the D.C. Circuit added to this line in a case called Advanced Life Systems Inc. v. NLRB. Here is a sample of Judge Millett’s (very well-written) opinion: “To sum up, the record overwhelmingly documents the personal, discretionary, and irregular nature of the Woodcocks’ Christmas gifts, and the absence of any discernible link between their amount and the individual employee’s remuneration (or any other relevant employment factor). No substantial evidence supports treating them as company wages or bonuses. All the Board demonstrated here was that no good deed goes unpunished.”

Turning to the subject of war, Myers v. United States (1948) deserves a quick mention. Bennett E. Myers was an Army officer; Bleriot H. Lamarre was an official for an airplane company. Both were “jointly indicted for violating the District of Columbia statute which denounces perjury and subornation, thereof.” In particular, Lamarre was charged with offering false testimony “before a subcommittee of a committee of the United States Senate constituted to investigate the national defense program.” In that context, this statement was made: “During his appearance before the subcommittee on the morning of Saturday, October 4, 1947, Lamarre said he had never made Meyers a present of a value of more than $100 and that all gifts from him and his wife, such as those made at Christmas, amounted to no more than $400.” Alas: “Lamarre gave before the subcommitte the testimony charged as perjury; its falsity was proved by him and by corroborative evidence; and there was proof that Meyers suborned it.” In Gregory v. Secretary of State (1967), someone “wired the Secretary of State of his intention to travel to North Vietnam for the purpose of entertaining incarcerated American pilots at Christmas-tide.” The Secretary of State was not impressed.

Roberts v. Roberts, decided in 1955, presents another sad story. This case involves a Christmas letter. It seems that “Gladys” wrote her “Dear Jimmie” on December 23 in a purported effort to reconcile — using a registered letter. In so doing, she made sure to mention the holiday: “Merry Christmas to you, your mother, and the rest of the family.” “Dear Jimmie” was not impressed. Indeed, he “introduced a copy of his long and abusive reply, which began with these words: ‘Your letter of December 23rd indicates that you are as designing and calculating as ever. The mere fact that you typed, registered this letter and then requested a return receipt is proof in itself that you have some diabolic plan behind this humble gesture.'”

Eventually, the D.C. Circuit began addressing Establishment Clause challenges to Christmas. For instance, in Protestants and Other Americans United for Separation of Church and State v. Watson, decided in 1968, the Court addressed whether appellants had standing to challenge “a certain commemorative Christmas postage stamp alleged to be religious in character and content.” In particular, the stamp depicted “the famous 15th Century artwork of Hans Memling’s ‘Madonna and Child with Angels.’ Appellants contend that such a stamp is religious propaganda and government proselytization of Christianity, in general, and the Roman Catholic faith, in particular.” Similarly, in Bonham v. District of Columbia Library Administration (1993), the Court considered whether D.C. libraries can close on Christmas and Easter.

And in Allen v. Hickel (1970), the Court addressed a crèche on federal property “in connection with a Christmas pageant.” Specifically, the Court discussed the National Christmas Tree:

On December 15, 1969, the President, following a tradition established in 1923 by President Harding, threw a switch lighting the National Christmas Tree. The tree was located in the Ellipse (an elliptically shaped park across the street from the White House). Nearby were 57 other lighted and decorated Christmas trees representing the 50 states and seven of the territories of the United States. Also present were reindeer, a burning Yule log, and the center of the controversy before us: an illuminated life-size creche, or Nativity scene, depicting the birth of Christ attended by his mother Mary, St. Joseph, shepherds, animals, and the three Magi. The National Christmas tree and all the rest of these items, together with singing, instrumental concerts, and other seasonal observances, formed the 1969 presentation of the annual Christmas Pageant of Peace.

The Court concluded that there should be fact-finding about the impact of the nativity:

Whatever our own personal impressions as residents of the area we cannot say as a court, on the record before us and in the absence of evidence, that it is conclusive beyond dispute that the visual impact of the crèche does not entail substantial religious impact. Nor can we say that whatever religious impact exists is an inescapable corollary of the secular purpose. We cannot on this record say that it is impossible to present the crèche and other holiday symbols in a manner designed to obviate or at least minimize offense to the sensibilities of citizens who are offended either because they are of different religions (or none), or because they are devoutly Christian and believe that the presentation of profoundly spiritual matter in a light-hearted manner and on Government property amounts to ‘profanation’ that renders unto Caesar some of what is the Lord’s. Perhaps an appropriate accompanying plaque, rather than a mere explanation in pamphlets with lesser circulation, might serve both to allay the impression of Government sponsorship of religious belief and to set the proper respectful tone in the representation of spiritual customs.

(Note, there were real reindeer at this pageant: “The festive, happy meaning of Christmas is represented by eight reindeer who normally live at the Washington Zoological Park. They make their annual trip to the corral near the brilliantly lighted tree to give the children a close look at Santa’s reindeer.”)

Allen, of course, is not the only case about the Ellipse; the Court has also addressed whether anti-war protestors could use it. In Women Strike for Peace v. Morton (1972), the Court said yes, but not in the area used for the annual Christmas display. In Community for Creative Non-Violence v. Lujan (1990), the Court held that the National Park Service was not obligated to include a sculpture of a homeless family in the presentation.

In United States v. Mackin, a gruesome murder case decided in 1974, the D.C. Circuit addressed a confession made to a priest on Christmas Eve.

And then we have President Richard Nixon. In Nixon v. Richey (1975), Nixon sought mandamus against the district court hoping to require it “to act immediately on motion to convene three-judge court to hear his suit challenging constitutionality of the Presidential Recordings and Materials Preservation Act.” The district court disagreed that he was going too slow: “In fact, two weekends and the Christmas recess were entirely spent right here in this Courthouse working on this very matter.” The circuit court “recognize[d] and applaud[ed] the prodigious effort the District Judge made to dispose of the consolidated cases” — but still urged him to hurry.

One of the lengthiest discussions of Christmas came in a case about, of all things, “an attempted hostile takeover.” In SEC v. First City Financial Corp., the Court included this paragraph:

Moving on to other elements in Belzberg’s story, we are struck by his incongruous explanation for his reaction to the $450,000 discount off the market price that Greenberg offered him on March 17 if, in actuality, there had been no put-call agreement on March 4. Belzberg testified that he was not surprised by the price since he thought Bear Stearns was acting like “Santa Claus” by offering “a bit of a break” to gain more First City business. Bit of a break indeed! And unsolicited at that. With apologies to Virginia, we thought that Wall Street Santa Clauses were confined to the sidewalk during Christmas time. Greenberg testified that if he gave clients a half million dollar break on stock for which Bear Stearns bore the market risk, he would “go broke within a week.” Greenberg added, quite convincingly we might add, that “[he does not] run [that] risk for anybody.”

Nor was that the only reference to Santa Clause. In 1984’s Ollman v. Evans, the Court quoted “a Marxist associate professor at New York University” whose nomination to head a department at the University of Maryland had just been blocked the university president as saying: “There are still some people who believe in Santa Claus … and these people may just believe that President Toll has rejected my appointment for the reason that he gives. But everybody else will know that the reasons that I’ve been rejected have to do with my political beliefs and that I am the latest victim of political repression, American style.”

The D.C. Circuit included an aside about Christmas in 1988’s Industrial Safety Equipment Association v. EPA:

Cranberry growers and consumers alike will recall “Black Monday,” November 9, 1959. On that day, the Secretary of Health, Education, and Welfare announced that cranberries from the Northwest had been found contaminated with a weed killer. Though later the government declared that 99% of the nation’s crop was untainted, the Secretary said that his family would do without the berries at their Thanksgiving meal. Most Americans chose to make the same sacrifice, and by Christmas, the industry had a $20 million surplus of cranberries. Eventually, taxpayers assumed much of the loss through Farmers Home Loan Administration indemnity payments to cranberry growers. One lesson is clear: Adverse publicity can cause damage even though legal rights remain unaltered and even though the statements are not libelous or tortious.

One of my favorite Christmas cases is 1999’s Original Honey Baked Ham Co. of Georgia, Inc. v. Glickman. This is how Judge Randolph opened his opinion: “Thanksgiving, Christmas and Easter are the busiest times of year for The Original Honey Baked Ham Company of Georgia. To capture more of the market during these periods, Honey Baked decided to open temporary ‘kiosks’ in shopping malls near its ninety-seven retail stores.” Did that violate federal food safety law? No.

In recent years, Christmas has not brought with it a lot of good news to the D.C. Circuit. Consider these words on Christmas from Flythe v. District of Columbia in 2015: “On Christmas Day in 2009, an unknown assailant threw a brick through the window of a liquor store located on Georgia Avenue in Northwest Washington.” The Court’s 2013 case of United States v. Dillon also is sad: “On December 10, 2011, [the defendant] allegedly sent an e-mail to a United States Secret Service agent from a location three blocks away from the White House that stated that ‘no harm’ would come to the President if he met with [the defendant] and agreed to ‘meet the demands of God.’ If these demands went unmet, the e-mail continued, the President would ‘get the worse [sic] Christmas present ever,’ ‘will suffer for 30 days,’ and ‘will wish for death, but death will not come to him.'” In 2005’s Roebuck v. Washington opinion, the Court confronted sexual harassment “on Christmas Day.” And in 2010’s United States v. Mejia, the Court encountered this a company “which could be used to stash the cocaine amidst legitimate cargo-specifically, Christmas decorations.” Using Christmas decorations to smuggle cocaine prompted an aside from Judge Henderson: “And thus giving unintended meaning to a ‘white Christmas.'”

The Court has also addressed Christmas advertising on WMATA busses a couple of times. And just today, the Court denied rehearing — over Judge Griffith’s dissent (joined by Judge Katsas). (In the interest of full disclosure, this case is being litigated by Kirkland & Ellis, where I’m of counsel; I am not involved.)

And here is one more case to sum it all up. In 2017, the Court also included this ominous sentence: “The software’s influence culminated in December 2003: Then-CIA Director George Tenet ‘rushed directly to President [George W.] Bush when information provided by Montgomery and his software purported to show that a series of flights from France, Britain, and Mexico to the United States around Christmas were being targeted by al Qaeda.'”

So there you go: Christmas in the D.C. Circuit — complete with theft, divorce, drunkenness, slip-and-falls, cocaine smuggling, public corruption, and, yes, ham regulation. I hope your Christmas is much more pleasant!

(In all seriousness, enjoy the holidays.)

 

* The D.C. Circuit decided only one case this week, but it is an important one.

In Electronic Privacy Information Center v. IRS, Judge Henderson — joined by Judges Millett and Edwards — rejected an attempt to obtain President Trump’s tax returns. Here is how Henderson began her opinion:

If you are a FOIA lawyer, this is a good opinion to read. There is an interesting discussion of exhaustion (here is a sample: “As a starting point, we believe the IRS misunderstands its FOIA disclosure obligations. FOIA unambiguously places on an agency the burden of establishing that records are exempt. … Neither an agency’s ‘published rules’ nor its regulations can modify the Congress’s clear command.”). There also is an interesting discussion of what must be disclosed under FOIA and how requests — even if carefully framed — cannot escape those limits. And for non-FOIA lawyers, there also is an interesting discussion of “unlawfully withheld agency action”: “EPIC claims that the IRS unlawfully withheld agency action by failing to seek approval from the Joint Committee for the disclosure of President Trump’s tax information. But the IRS has no duty to seek Joint Committee approval.”

 

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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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