D.C. Circuit Review – Reviewed: Lawyers, Guns, and Money

by Aaron Nielson — Saturday, Sept. 19, 2015@Aaron_L_Nielson

The late, great Warren Zevon penned a lot of extraordinary songs. His most famous, of course, is Werewolves of London.* My favorite is Mohammed’s Radio (trust me, it stays in your head), though Frank and Jesse James and Mama Couldn’t Be Persuaded are also striking. Mutineer too is great, though I prefer this cover. I mention Warren Zevon today, however, not for any of these songs, but because his Lawyers, Guns, and Money sums up this week’s D.C. Circuit opinions pretty well.

Start with lawyers. In my opinion, the big case – really, cases – of the week concerns a debate that everyone should care about, but that, frankly, will only really catch the attention of lawyers. I refer to the doctrine of stare decisis. In two cases (UC Health v. NLRB and SSC Mystic Operating Co v. NLRB), Judge Griffith addressed whether a Regional Director of the NLRB had authority to certify a union election when the NLRB itself lacked a quorum. (Why, you ask, did the NLRB lack a quorum? Read this case and remember that administrative law is blood sport.) Judge Griffith, joined in one case by Judge Srinivasan and in the other by Judge Edwards, concluded that even if the NRLB could not act, a Regional Director could. Long story short, Judge Silberman in one case and Judge Sentelle in the other, believe, vehemently, that that conclusion is foreclosed by precedent: Laurel Baye Healthcare of Lake Lanier, Inc. v. NLRB. In response to their dissents, Judges Edwards and Srinivasan both wrote opinions defending the panels’ conclusion. The battle between Judge Edwards and Silberman goes to the heart of what stare decisis means. Judge Edwards, for instance, opened his concurrence this way: “The dissent is mistaken in suggesting that if the rationale or logic supporting a decision in one case is stated broadly enough to cover future cases not at issue, the latter cases are necessarily controlled by the earlier case. Were this the law, appellate decisionmaking would be a mischievous enterprise.” By contrast, Judge Silberman argued that the case is “of great significance because the most important characteristic of a collegial appellate court is careful attention, respect, and adherence to precedent. I am afraid the majority opinion is a glaring example of a contrary approach.” Strong words. (As is Judge Silberman’s accusation that Judge Srinivasan has engaged in “a flagrant misreading” of precedent and his noting that “the Laurel Baye panel members Judges Williams, Sentelle, and Tatel had, collectively, nearly 60 years of experience reviewing agency statutory interpretations.”) My advice to lawyers: read these opinions closely, as I’m sure the U.S. Supreme Court will. (In the week’s other NLRB case, Pacific Coast Supply v. NRLB, Chief Judge Garland, joined by Judges Griffith and Kavanaugh, sided with the NLRB. Labor lawyers should check it out, but be warned, it doesn’t have the same fireworks.)

Next, guns. The Supreme Court’s Second Amendment decision in District of Columbia v. Heller is one of the most important constitutional cases in years. Today, the D.C. Circuit issued a decision called Heller v. District of Columbia; yes, it is the same Mr. Heller. Judge Ginsburg, joined by Judge Millett, concluded that various provisions of D.C.’s firearms law are unconstitutional, including the requirement that guns be re-registered every three years. (David Kopel at the Volokh Conspiracy has a good rundown here.) Judge Henderson – who has been dissenting a lot lately – dissented in part. She opened her opinion by taking a shot at the Supreme Court: “Regulating firearms in order to combat gun violence is a grave and complex task. The Supreme Court has made that legislative endeavor considerably more difficult by ‘tak[ing] certain policy choices off the table,’ Dist. of Columbia v. Heller, 554 U.S. 570, 636 (2008), and divining a new—and incomplete, see id. at 635—definition of what the Second Amendment protects. Heller has ‘hand[ed] our democratic destiny to the courts’ by inviting litigants to draw them into this political thicket. J. Harvie Wilkinson III, Of Guns, Abortions, and the Unraveling Rule of Law, 95 VA. L. REV. 253, 257 (2009).” Just like the NLRB cases, the Supreme Court almost certainly will pay close attention to this case too. (Also on the subject of guns, this week the D.C. Circuit issued a briefing order in another gun-related case, Wrenn v. District of Columbia, asking whether the district court had jurisdiction to require the District to issue licenses to carry handguns. We’ll see what happens.) Next, in Anderson v. Carter, Judge Sentelle, joined by Judge Henderson, held that the court lacked jurisdiction over freelance journalist Wayne Anderson’s challenge to the Department of Defense’s decision to withdraw his status as an embedded journalist at a NATO base in Afghanistan. The Defense Department withdrew his status because, it says, he released videos revealing the identity of wounded soldiers. Judge Sentelle concluded that although the Administrative Procedure Act often is a waiver of sovereign immunity, because the APA exempts “military authority exercised in the field in time of war,” the court had no jurisdiction to review Anderson’s claim, which the panel said was moot anyway. Judge Srinivasan dissented in part, arguing that Anderson could bring a First Amendment claim for injunctive relief.

Finally, money. In Cobell v. Jewell, Judge Millett, writing for Judges Henderson and Ginsburg, addressed “the district court’s denial of compensation for expenses incurred during the litigation and settlement process” of the long-running Cobell litigation “arising out of the Department of the Interior’s misadministration of Native American trust accounts.” (If Cobell sounds familiar to you, it should. It has been appealed to the D.C. Circuit eleven times.) The district court awarded $99 million in attorney’s fees but denied a request for reimbursement of expenses and costs. In the end (and trust me, a lot of nuance is being skipped over), the panel largely affirmed the district court, though concluding it may have erred regarding expenses incurred by third parties. Also on the subject of money, the court decided a workplace discrimination case involving the government entity known as Amtrak. (Yes, Amtrak is the government, despite what a federal statute says.) I don’t usually cover discrimination cases, but I do note that Judge Pillard, joined by Judges Tatel and Kavanaugh, concluded that the plaintiff here would receive no money “because no jury could reasonably conclude based on the evidence in the record that Amtrak was motivated by Burley’s race to take the adverse actions of which he complains.”

So that’s the D.C. Circuit for this week. Don’t it make you want to rock and roll?

* This isn’t an original thought, but if the National Football League ever puts a team in London, it better be named the Werewolves. Talk about a great theme song, though the NFL may shy away from “little old lady got mutilated late last night ….

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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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