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

by Aaron Nielson — Friday, Apr. 13, 2018@Aaron_L_Nielson

Warning: Unless you enjoy reading docket entries, this is not an especially exciting post.

A few months ago I authored a post called “Bye-Bye, Browning-Ferris.” There, I addressed the NLRB’s decision to overrule Browning-Ferris, a precedent which had “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.” As I noted then, “if you follow labor law, this is a big deal.”

A lot has happened since that post. But the 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. Here is the key part of the Court’s order:

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And here is Judge Randolph’s dissent:

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The panel acknowledged that this was an “extraordinary” thing to do. Because it has been a pretty slow week in the D.C. Circuit,* now seems like a good time to explore what exactly happened and just how extraordinary is it.

Let’s tackle the first question first — what happened?

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. The Board’s motion to the D.C. Circuit does not say why Hy-Brand was vacated, but it isn’t a secret to those with access to a search engine. The Board vacated “in light of the determination by the Board’s Designated Agency Ethics Official that Member [William] Emanuel is, and should have been, disqualified from participating in this proceeding.” What’s that about? Well, that’s a messy story (and not one I’ll explore here), but the punch line is that the NLRB’s Inspector General determined there was a “serious” conflict of interest because Hy-Brand was essentially the same matter as Browning-Ferris, and Emanuel’s former firm worked on Browning-Ferris. (In the interest of fairness, it is important to note that Emanuel has defended himself.)

Now the second question (and, frankly, the one that is more academically interesting to me) — just how extraordinary is it for the D.C. Circuit to recall the mandate? Usually, when a court issues its mandate, it means that the litigation is over. Yet sometimes a case springs back to life. With the help of the wonderful team in the BYU Law Library, here is a list of D.C. Circuit cases since 1998 in which the mandate was recalled:

Mendlow v. Library of Congress, No. 98-05165

Boehner v. McDermott, No. 98-07156

Muka v. Rutherford Institute, No. 98-05521

ASA Inversterings v. Commissioner of IRS, No. 98-01583

Freeman v. Morgan, No. 00-05157

McKesson HBOC, Inc. v. Islamic Republic of Iran, Nos. 00-07157 and 00-07263 (order in each case)

Todd v. United States, No. 01-05146

Amfa Resorts v. Department of Interior, No. 01-05223

Hamilton Stores, Inc. v. Department of Interior, No. 01-05226

National Park Hospitality Association v. Department of Interior, No. 01-05229

Aramark Sports and Entertainments, Inc. v. Department of Interior, No. 01-05233

United States v. Lumpkin, No. 01-03091

Empagran SA v. Hoffman-Larouche, Inc., No. 01-07115

Judicial Watch, inc. v. National Energy Policy Development Group, No. 02-05355

Sierra Club v. Cheney, No. 02-05356

Thorn v. United States, No. 05-05282

Bathea v. DC Bureau of Prisons, No. 05-05473

Waterkeeper Alliance v. EPA, No. 09-01017

Helmerich & Payne de Venezuela v. Bolivarian Republic of Venezuela, No. 14-07008

Clean Air Council v. Pruitt, No. 17-00145

Garza v. Haragan, No. 17-05236

(Here is the methodology: the library searched the DC Circuit Dockets database in Bloomberg Law for variants of the phrase “recall the mandate” for the period April 13, 1998 to present. The library then reviewed the retrieved cases to see if an order recalling the mandate was entered. The results may not be comprehensive but they are a good start.)

This is an interesting list. A good chunk of these cases — for instance, the four involving the Department of Interior — are ones in which the Supreme Court granted certiorari or which are otherwise quite significant. I’m not going to spend too much time thinking about those cases; it is hardly surprising that unusual things happen in high-profile cases.

Some of the cases, however, are one that I suspect almost no one has ever heard of — with the exception, probably, of the parties. Those ones interest me.

In Mendlow v. Library of Congress, for instance, the Court summarily affirmed the district court: “[I]t is ORDERED AND ADJUDGED that the district court’s order filed April 7, 1998 be affirmed. Although the district court erred in sua sponte dismissing appellant’s complaint without giving him the required notice of the impending dismissal, see Fed. R. Civ. Pro. 4(m); Civil Justice Expense and Delay Reduction Plan, Part II, § 1, this court may affirm on grounds other than those relied on by the district court.” Yet a few months later, the Court put this on the docket:

PER CURIAM ORDER FILED VACATING 2/17/99 JUDGMENT, DIRECTING THAT JUDGMENT BE REENTERED AS AMENDED, DELETING REFERENCE TO CIVIL JUSTICE ESPENSE AND DELAY REDUCTION PLAN ON PARAGRAPH TWO, LINE FOUR BECAUSE THE PLAN NO LONGER CONTAINS A NOTICE REQUIREMENT; JUDGMENT’S REFERENCE TO FED.R.CIV.P. 4(M) IS RETAINED, HOWEVER, BECAUSE THAT RULE DOES REQUIRE NOTICE PRIOR TO DISMISSAL AND DIRECTING CLERK TO RECALL THE MANDATE. THE DISTRICT COURT IS REQUESTED TO RETURN THE MANDATE FORTHWITH.

It is appears that the Court made a mistake and recalled the mandate to fix it. The same is true in United States v. Lampkin, in which this docket entry appears:

PER CURIAM ORDER FILED THAT THE MOTION TO RECALL THE MANDATE BE GRANTED AND THE MANDATE ISSUED ON DECEMBER 17, 2002, IS HEREBY RECALLED. THE CLERK OF THE DISTRICT COURT IS DIRECTED TO RETURN THE MANDATE FORTHWITH. IT IS FURTHER ORDERED THAT THIS COURT’S ORDER ISSUED DECEMBER 17, 2002, BE AMENDED AS FOLLOWS: DELETE “AND THE JUDGMENT OF CONVICTION VACATED.” IN THE FIRST DECRETAL PARAGRAPH AND DELETE THE SECOND DECRETAL PARAGRAPH. INSERT IN LIEU THEREOF: FURTHER ORDERED THAT THE DISTRICT COURT’S ORDER OF MAY 16, 2001 BE VACATED AND THE CASE REMANDED TO THE DISTRICT COURT WITH INSTRUCTIONS TO DISMISS THE PETITION FOR WRIT OF HABEAS CORPUS AS MOOT. THE CLERK IS DIRECTED TO ISSUE AN AMENDED ORDER FORTHWITH.

In Freeman v. Morgan, by contrast, it looks like the Court has trouble contacting Mr. Freeman (who, apparently, was in prison). The Court dismissed the appeal for lack of prosecution and eventually issued the mandate; afterwards, Mr. Freeman filed a motion for reconsideration, at which point the Court recalled the mandate. Eventually, however, the Court sided against him without oral argument. And after he again petitioned for rehearing (which was denied), the mandate issued again. Todd v. United States may be a similar story (it is hard to tell based on the docket); the Court ruled against a prisoner but, soon thereafter, recalled the mandate before ultimately rejecting the petition for rehearing. Equally anticlimactic, in Muka v. Rutherford Institute, the reason the mandate was recalled was because Ms. Muka petitioned for certiorari; the mandate was reissued when the Supreme Court denied cert. ASA Investerings v. IRS is a bit more exciting; it also involved a petition for certiorari, but the D.C. Circuit docket entry is noteworthy: “APPELLEE IS DIRECTED TO RETURN THE MANDATE AS PROMPTLY AS POSSIBLE.”

The relatively recent order in Clean Air Council v. Pruitt also merits a read:

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That order, like the one in Browning-Ferris, also prompted a dissent (or at least something very similar to a dissent):

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After perusing these cases, I agree with the Court; recalling the mandate is “extraordinary,” at least in the sense that it does not happen often. On the other hand, circling back to Browning-Ferris, it also doesn’t happen often that the very agency that asked the Court for a remand later says, essentially, “oops.”

So with that, hello again, Browning-Ferris!

 

* The Court issued three opinions this week. In Lane v. District of Columbia, Judge Sentelle (joined by Judges Srinivasan and Wilkins) affirmed a fact-bound decision. In this sad case, police officers shot and killed Ralphael Briscoe because they thought he had a gun. It turns out it was a BB gun — which Briscoe’s family says was planted. That argument, among others, did not carry the day.

In Butte County v. Chaudhuri, Judge Srinivasan (joined by Judges Rogers and Pillard) addressed the Indian Gaming Regulatory Act — in particular, whether a certain parcel of land counts as “restored lands” upon which gaming can occur. The Court said yes and, along the way, included this noteworthy sentence: “[I]n an informal adjudication, there is no blanket obligation for an agency to allow the submission of rebuttal evidence at all.”

Finally, in Oncor Electric Delivery Co. v. NLRB, Judge Williams (joined by Judges Millett and Pillard) ruled against the NLRB in a case in which a employee was fired for making false statements during a legislative hearing in Texas: “Even under that deferential standard, we find the Board’s reasoning in this case too opaque to resolve whether it is supported by substantial evidence.” Here is a key sentence — and one that reads like a sentence written by Judge Williams: “It seems clear enough that the union opposed smart meters largely because automation threatened a decline in the workforce, but that was not a topic of Reed’s testimony. If on remand it appears that the union’s longstanding concern over smart meters’ effect on employment is the only relevant ‘labor dispute,’ we seriously question Board counsel’s implicit assumption that employee disparagement of any feature of an innovation is an adequate signal to listeners that the speaker’s position is driven by workers’ anxiety about the innovation’s possible job-killing effects (and thus possibly subject to some discount).”

 

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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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