D.C. Circuit Review – Reviewed: Criminal Law Exceptionalism?

by Aaron Nielson — Saturday, Oct. 31, 2015@Aaron_L_Nielson

The D.C. Circuit issued two opinions this week. The first—American Institute of Certified Public Accounts v. IRS—is a typical administrative law case. By contrast, the second— United States v. Ortega-Hernandez —seems like anything but an administrative law case; it is a criminal appeal involving a guilty plea. But pause for a moment: Why isn’t the second case considered an administrative law case too? Just as civil litigation might learn lessons from administrative law (and vice versa), might not criminal law also benefit from a good dose of “admin law” thinking? Rachel E. Barkow of NYU Law School (and the U.S. Sentencing Commission), for one, thinks so. This week is a great one to discuss her thoughts.

Let’s compare this week’s opinions. American Institute of Certified Public Accountants has all the trappings of a classic administrative law case. The IRS adopted a voluntary “program that allows previously uncredentialed tax return preparers who take required courses and fulfill other prerequisites to obtain a ‘Record of Completion’ and to have their names listed in the IRS’s online ‘Directory of Federal Tax Return Preparers.’” A “professional association of certified public accountants and their firms” challenged that program, arguing that “the IRS lacks statutory authority to implement the program, acted arbitrarily and capriciously in adopting it, and failed to engage in required notice and comment rulemaking.” (Note, if you are interested in this issue, you should check out this earlier D.C. Circuit decision.) The question confronting Judges Tatel, Edwards, and Ginsburg, however, was whether the accountants had Article III standing to raise those challenges. The district court said no; Judge Tatel, for a unanimous panel, said yes. “But wait,” you may be thinking, “how can a professional association have standing to challenge a voluntary program? The IRS is not forcing anyone to participate; it is just giving a certificate to those who do and placing their names on a directory. So why does it matter if the program is lawful or not? No one is injured, right?” The D.C. Circuit did not buy that argument because of “competitor standing.” If a party can “show an actual or imminent increase in competition” because of government action alleged to be unlawful, there is a very good chance that there will be Article III standing to challenge that action. Here, “participating unenrolled preparers will gain a credential and a listing in the government directory.” That is enough to ground standing, at least under the Constitution. And here, moreover, any prudential standing argument was forfeited. (Note, the panel distinguished this case, which rejected “standing to challenge the government’s designation of a competitor [bank] as ‘too big to fail.’” Establishing standing in the D.C. Circuit sometimes can be trickyJudge Brown would say too tricky.)

Ortega-Hernandez, by contrast, does not seem like an administrative law case at all. There, Judges Henderson, Kavanaugh, and Pillard confronted a plea agreement. “Oscar Ramiro Ortega-Hernandez pleaded guilty to injuring a dwelling”—as an aside, he did this by firing at least 8 shots at the White House—“and placing lives in jeopardy, and discharging a firearm during a crime of violence. As part of a plea bargain, he agreed to waive his right to appeal his sentence.” The district court sentenced him to 25 years in prison, plus another 5 years of supervised release. Despite waiving any right to do so, Ortega-Hernandez appealed, raising two issues: “First, he contends that he should not be subject to the sex-offender registration condition of supervised release.” And “[s]econd, Ortega-Hernandez contends that, given Ortega-Hernandez’s mental health history, the sentencing judge committed procedural and substantive error in setting such a long term of imprisonment.” The United States agreed as to the first issue and asked the D.C. Circuit not to enforce the appeal waiver. (It turns out that the district court wrongly checked the “sex offender” box on the judgment form, even though no one asked for it.) But as to the second, the government argued that the plea agreement should be enforced. Judge Pillard, writing for a unanimous panel, agreed because “[t]here is no reason to doubt that Ortega-Hernandez’s waiver of his right to appeal his prison sentence was knowing, intelligent, and voluntary.”

The first of these cases seems like an “admin law” case; it involves an agency and uses words like “standing” and “arbitrary and capricious.” What’s more administrative than that? The second, however, seems far removed from administrative law; isn’t it just a “run-of-the-mill” criminal case? That brings me to Professor Barkow. Although she has written many interesting articles advancing her insight, one seems particularly on point: Institutional Design and the Policing of Prosecutors: Lessons from Administrative Law. She argues that prosecutorial discretion in criminal matters can be similar to regulatory discretion in “admin law” matters and that the same sorts of checks can be used in both contexts. Given my ignorance of the nuts and bolts of prosecutorial practice, I don’t endorse everything Barkow has to say.* But surely she is right that we should think about the discretionary choices available to prosecutors (who, like agencies, wield the power of the State) and decide whether the safeguards on that discretion are sufficient. This is especially true because indictments themselves can be used for regulatory aims. Even arrests have regulatory effects. The central question in administrative law is how to handle discretion. But that question is not limited to administrative law. On days like today, it is worth taking a moment to consider whether “crim law” and “admin law” are always all that different … though I hope we all agree that those who shoot guns at the White House should be in jail.

* Knowing when and how to create safeguards for discretion is difficult. Some discretion is necessary; some discretion is more dangerous than it is worth. Because of this tension, the evolutionary process of striking the balance between discretion and constraint is inherently messy. When it comes to criminal law, I don’t know enough to say which safeguards are cost justified. But I do know that one needs to be careful before reworking complex systems. Unintended consequences are real. Hence the need for experimentation in regulatory reform.

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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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