D.C. Circuit Review – Reviewed: Epigraphs

by Aaron Nielson — Friday, July 21, 2017@Aaron_L_Nielson

Judge Henderson of late has been adding epigraphs to her opinions. Last week she did it in Maze v. IRS: “No taxes can be devised which are not more or less inconvenient and unpleasant.” And this week she did it in Bellagio, LLC v. NLRB:

In Vegas, everybody’s gotta watch everybody else. Since the players are looking to beat the casino, the dealers are watching the players. The boxmen are watching the dealers. The floormen are watching the boxmen. The pit bosses are watching the floormen. The shift bosses are watching the pit bosses. The casino manager is watching the shift bosses. I’m watching the casino manager. And the eye in the sky is watching us all.

That quote comes from Sam “Ace” Rothstein — from the movie Casino.

I’m not opposed to epigraphs in articles or books. I even included one — well, actually two — in a recent article.* But should they be used in judicial opinions? On one hand, they catch the reader’s attention. On the other hand, do we always want courts to try to catch the reader’s attention? Judicial opinions are formal explanations for the use of government authority — authority, of course, that is backed by force. Because decisions have real-world consequences, judges must resist the temptation to make their work cute, gimmicky, or self-indulgent.

Weighing the pros and cons, my conclusion — which I’m sure you are just dying to know — is this: Epigraphs are appropriate if used sparingly and with care. If every opinion had one, that would be too much. Likewise, to the extent that they make it harder for readers to understand an opinion, including future readers, we should be concerned. And if judges use epigraphs to call attention to themselves, that is very bad indeed. Otherwise, however, I don’t see a problem with them. After all, why not?

Judged against that standard, Judge Henderson’s epigraphs surely pass the test. She doesn’t use them all of the time and I don’t think they will confuse anyone. And her opinions are serious; she does not make herself the star of the show. Plus she certainly knows how to pick a good quote.

In honor of Judge Henderson, this week I’ve decided to add an epigraph to each of the Court’s opinions.

Let’s begin with Bellagio. Here, Judge Henderson’s epigraph is a great one because the issue before the Court was whether “surveillance technicians (techs) who control the casinos’ surveillance, access and alarm systems and help to investigate errant employees are ‘guards’ under section 9(b)(3) of the National Labor Relations Act.” If so, they cannot be represented by a union which represents non-guard employees. Judge Henderson, joined by Judge Ginsburg, concluded that because security officers and surveillance operators “cannot properly do their jobs without the techs” and because “the techs can control what surveillance operators and security officers see in the monitor rooms,” techs are “guards” — especially because they work in an atmosphere “where all-encompassing surveillance is the paramount protector.” Judge Srinivasan would have deferred to the Board’s contrary conclusion.

Next, consider Sierra Club v. EPA. The Sierra Club challenged whether EPA “satisfied its responsibilities under 42 U.S.C. § 7412(c)(6) to establish ‘maximum achievable control technology’ (‘MACT’) standards for emissions of certain hazardous air pollutants (‘HAPs’).” It urged that the EPA “arbitrarily relied upon standards set previously to regulate other emissions without justifying its decisions to treat those previously regulated emissions as ‘surrogates’ for the § 7412(c)(6) HAPs.” The EPA argued that the petition is untimely but the Court disagreed: “Petitioners could not raise those objections until the final rule employing the surrogates was released. Petitioners do not, for example, attack the adequacy of the listing or standards with respect to any surrogate pollutant, but only the repurposing of standards for satisfaction of the § 7412(c)(6) requirements with respect to PCBs, POM, and HCB.” Because EPA failed to explain its use of surrogates, the matter was remanded.

What is a good epigraph for this opinion? Obviously this: “Administrative law is not for sissies — so you should lean back, clutch the sides of your chairs, and steel yourselves for a pretty dull lecture. There will be a quiz afterwards.”

In Competitive Enterprise Institute v. DOT, the Court addressed whether “whether a statutory ban on ‘smoking’ on airplanes may support a Department of Transportation regulation banning the use of electronic cigarettes.” The answer? Yes, per Judge Randolph (joined by Judge Kavanaugh). Although e-cigarettes did not exist when Congress enacted the relevant statute, and although e-cigarettes generate mist rather than, well, smoke, the agency could extend the prohibition to cover them: “Underlying petitioners’ arguments and those of the dissent is the point that e-cigarettes did not exist in 1987 when Congress first made it unlawful ‘to smoke’ on certain flights under two hours, nor did e-cigarettes exist in 2000 when Congress extended the prohibition. Although this means the legislators did not have e-cigarettes in mind when passing those statutes, that does not resolve the interpretive question. The text itself, rather than the subjective intentions of legislators, governs our review. We must ask whether the term ‘smoking’ in a statute enacted before modern e-cigarettes existed covers these devices.” Relying on various sources, Randolph concluded that “a ‘smoking prohibition’ reasonably applies to products intended to enable users to inhale and exhale such nicotine.” He also rejected an arbitrariness challenge and several procedural objections. Kavanaugh concurred to say he would reach the same result without Chevron deference.

Judge Ginsburg dissented:

What “smoking” meant in 1987 with respect to passengers on airplanes is beyond doubt, inasmuch as e-cigarettes did not then exist. But like the Court, one could stretch dictionary definitions to apply to a wide range of activities no one would have understood the ban to cover at the time. For example, if one defines “smoke” as “the action of heat on moisture,” Ct. Op. 9 (quoting WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 2152 (1981)), and “smoking” as “to emit . . . smoke,” ENCYCLOPEDIA BRITANNICA (1988), then the steam (“to emit . . . smoke”) from hot coffee (“the action of heat on moisture”), which was served on airplanes in the 1980s, could also fall within the ban. Likewise a breath-freshening spray (to “inhale (and expel again) the fumes,” Ct. Op. 8 (quoting 15 OXFORD ENGLISH DICTIONARY 802 (2d ed. 1989)), of “[a] suspension of solid or liquid particles in a gas,” WEBSTER’S THIRD 2152 (1981) (quoted by the Department)), could be similarly prohibited. Each interpretation would have been just as absurd in the 1980s as it is today, yet each follows from a creative use of dictionary definitions.

Attention casebook authors: This is a fascinating case. Indeed, Judge Randolph even included a footnote taking a jab at Chevron that cites a casebook: “Chevron arose under the Clean Air Act, but courts – including the Supreme Court and our court – have applied the doctrine when interpreting other statutes. At least as a matter of first principles, this seems problematic. The Clean Air Act provides its own procedures and standards for judicial review that differ from other statutes, such as the Administrative Procedure Act’s instruction to the ‘reviewing court’ to ‘interpret constitutional and statutory provisions.’ Compare 42 U.S.C. § 7607(d)(9) & (e), with 5 U.S.C. § 706. See also Stephen G. Breyer, Richard B. Stewart, Cass R. Sunstein & Adrian Vermeule, Administrative Law and Regulatory Policy 250 (6th ed. 2006).”

What is a good epigraph for this humdinger? How about this? “We do not inquire what the legislature meant; we ask only what the statutes mean.”

In Nueva Esperanza, Inc. v. FCC, Judge Ginsburg (joined by Judges Rogers and Srinivasan) addressed whether the FCC properly rejected a request by “Nueva Esperanza, Inc., a nonprofit corporation based in Philadelphia, Pennsylvania, … for a license to construct and operate a Low Power FM Radio station in Philadelphia.” It seems that a large number of stations tried to get mutually exclusive licenses. Several teamed up to propose a timeshare agreement for the frequency. The FCC chose that group over Nueva Esperanza. Nueva Esperanza sued, alleging, among other things, that the FCC’s decision contradicts one of the Commission’s blog posts. The Court did not buy it: “Because we conclude the Appellant’s interpretation of the Blog Post is not correct, we affirm the Commission’s denial of the Appellant’s application for review without reaching the Appellant’s claim that the Blog Post – as the Appellant interprets it – is binding upon the agency.”

Here is the perfect epigraph: “Why does the FCC even have a blog?” (Okay, I made that one up.)

In Wilson v. MSHR, Judge Rogers (joined by Judges Millett and Pillard) denied a petition asking “whether the Federal Mine Safety and Health Review Commission, upon declining to review a decision of an Administrative Law Judge, erred in rejecting Michael Wilson’s complaint of unlawful ‘interference’ with his rights as a miners’ representative under the Federal Mine Safety and Health Amendments Act of 1977.” Wilson says a miner interfered “with his statutory right as a miners’ representative to inspect the mine’s examination book” and requested that the miner “be fined, required to undergo training, and ordered to cease and desist from future violations of the Mine Act.” Specifically, among other things, the miner told Wilson to “go home” because Wilson was “taking money out of” the miner’s “pocket.” The ALJ disagreed with Wilson. The D.C. Circuit concluded that the ALJ erred on one issue (whether it is relevant that Wilson continued to work even after the allegedly wrongful behavior) but nonetheless upheld the agency decision because the panel had no doubt about how the agency would act on remand. Judge Millett concurred to say that “in my view, constitutional avoidance concerns contribute measurably to my conclusion that ‘there is not the slightest uncertainty as to the outcome of [the] proceeding on remand.'” After all, the miner has a constitutional right to speak to his representative: “Browning was just a miner acting entirely on his own initiative and with no power other than the power of persuasion.”

Epigraph? “Due account shall be taken of the rule of prejudicial error.”

In In re Herman Brewer, Judge Ginsburg (joined by Judges Brown and Edwards) addressed an interesting civil procedure question. Herman Brewer was a named plaintiff in a putative class action alleging racial discrimination by the U.S. Marshals Service. The district court said he was an inadequate representative; he appealed, but “while his petition was pending, he settled his individual claims with the Government, and the parties stipulated to the dismissal of the action in district court pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)(ii).” Other marshals then tried to intervene on appeal to challenge the district court’s refusal to certify a class. The Court allowed intervention, but concluded the arguments raised were a poor fit for an interlocutory appeal.

I confess: I’m struggling to find a great epigraph here. But I like these two images from the Court’s opinion. So I’ll go with “a picture is worth a thousand words.”

In re Brewer

 

In re Brewer II

We also have several criminal appeals. In United States v. Mohammed, Judge Pillard (joined by Judges Rogers and Millett) concluded that counsel for a convicted international drug trafficker should have investigated more regarding the bias of one of the government’s witnesses. That error, however, was harmless as to drug trafficking, but may have been prejudicial regarding his conviction for narcoterrorism. In United States v. Davis (per Judge Rogers, joined by Judges Srinivasan and Ginsburg), the Court addressed fraudulent tax preparation and an alleged mother-son team. The panel concluded that only the mother has to go jail: “Upon consideration of the weakness of the evidence offered against Andre and its centrality to the issue of his mens rea, we conclude that the prosecutor’s blatant misstatements of key evidence during closing arguments, in the absence of any steps to mitigate the resulting prejudice, require reversal of Andre’s convictions. Further, we conclude that the evidence against Andre was insufficient and consequently he is not subject to retrial.” And in United States v. Rock, Judge Sentelle (joined by Judges Henderson and Millett) vacated a condition imposed on a man who pleaded guilty to distributing child pornography that required him to “notify the U.S. Probation Office when he establishes a significant romantic relationship ….” The Court rejected that condition: “We cannot agree with the government’s proposition that people of common intelligence would share a conclusion as to whether the affairs of two people constituted a ‘significant romantic relationship.’ Indeed, we think it likely that in many cases, the two persons involved might not agree as to whether they had such a relationship.”

The epigraph for these three cases surely must be this: “Administrative law is enjoyable, but a varied diet is better. Robert Bork and Antonin Scalia, who joined the D.C. Circuit in the early 1980s both spent more than half of their time there reviewing decisions of the Federal Energy Regulatory Commission. I get to decide antitrust, securities, tax, discrimination, and intellectual-property cases, and some administrative matters too, along with the inevitable cocaine prosecutions. And I don’t have to suffer through D.C.’s miserable six-month summers.”

Finally, the Court reissued its decision in Perry Capital LLC v. Mnuchin — with some changes. The epigraph? “I see no reason why I should be consciously wrong today because I was unconsciously wrong yesterday.”

 

* Here is one of the quotes I used: “This decision is an ominous one to those who believe that men should be governed by laws that they may ascertain and abide by, and which will guide the action of those in authority as well as of those who are subject to authority.”

 

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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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