D.C. Circuit Review – Reviewed: Let’s Be Practical

by Aaron Nielson — Friday, June 15, 2018@Aaron_L_Nielson

From time to time I indulge my theoretical side. At heart, however, I’m a pretty practical person. That’s why I love being a lawyer. Law requires theory. But it isn’t just theory; it is theory applied to very practical problems.*

The D.C. Circuit, like the Supreme Court, is a theory-heavy court. But it also is a practical place. Need an example? This week, the D.C. Circuit issued this notice:

Spiral Binding Notice

It may be tempting to poke some fun at the Court for this — “This is supposed to be an important court. And it is talking about binding! Not the law. Not the law. Not the law. It is talking about binding.” But I’m not going to do that. I agree 100% with the Court. When I was a clerk, I hated briefs that wouldn’t lie flat. I’d be reading a brief and then, suddenly, it would close, and I’d lose my page. I remembered thinking then, “Why doesn’t everyone just use spiral binding?” I didn’t mind staples, so long as they didn’t break. But spiral or wire binding was the gold standard. (Even worse, the Supreme Court requires those silly little booklets. Granted, I suppose they look nice enough on a lawyer’s shelf. But in terms of actually using them for work purposes, they are horrible. They also are expensive. Humbug — let’s do away with them.)

Today was the semi-annual “plenary session” of the Administrative Conference of the United States. ACUS also addressed a very practical subject: e-filing in federal adjudication. As the Conference worked through the issues — which, unsurprisingly, were quite technical — I was reminded again just how important the practical things of life really are.

That applies to D.C. Circuit Review — Reviewed, too. The Court issued nine opinions today, some of which are quite long. I spent my morning working through the ins and outs of e-filing. And I’m about to hop onto a plane. So this week’s post, alas, is going to have to be quick. Which is too bad, because there are some fascinating opinions.

To begin, because something has to give, I’m not going to dwell on the four criminal appeals: United States v. Brown (per curiam panel of Chief Judge Garland and Judge Millett, reversing in part, Judge Kavanaugh dissenting, Millett concurring); United States v. Stoddard (Judge Wilkins, joined by Judges Griffith and Srinivasan); United States v. Galaviz (Judge Rogers, joined by Judges Pillard and Randolph, affirming); and United States v. Akers (per curiam panel of Judges Millett, Pillard, and Katsas, affirming). I will say this, however: Brown is an important opinion. The Court rejects the applicability of an appeal waiver. That’s a big deal. (Judge Millett wrote separately to address, again, the issue of using acquitted conduct to enhance a sentence.)

Nor am I going to spend much time on the two FERC opinions: Old Dominion Electric Coop v. FERC (Judge Millett, joined by Judges Tatel and Griffith) and Duke Energy Corporation v. FERC (same panel, this time per Judge Tatel). Suffice it to say, both concerned the January 2014 “polar vortex” in the Eastern United States and the extra power usage it prompted. In the spirit of being practical, I did enjoy this aside from Judge Tatel:

Judge Tatel FERC Quote

Long story short, FERC was right to reject Old Dominion’s request to retroactively waive its set rates (so Old Dominion could recoup its losses) and Old Dominion could not recover for “exceptionally expensive natural gas, which it ended up not needing.”

I’m not even going to spend too long on the NLRB cases, though they also are both worth a read. In Island Architectural Woodwork v. NLRB, Judge Pillard (joined by Judge Srinivasan) upheld the agency’s decision; Judge Kavanaugh dissented. The question was whether two companies were alter egos of each other; if so, then both had a duty to negotiate with the union. Judge Kavanaugh dissented:

NLRB Kavanaugh Quote

The majority opinion rested its analysis, in large part, on Fugazy Continental Corp. v. NLRB, decided by the D.C. Circuit in 1984.

And in Tamosiunas v. NLRB, Judge Millett (joined by Judges Wilkins and Edwards) eviscerated soundly rejected 😉 a decision of the Board:

NLRB Millett Quote 1

And this:

NLRB Millett Quote 2

Finally, we come to the last case of the week — the one I will focus on. The case is Citizens for Responsibility v. FEC, and it is very interesting. Judge Randolph, joined by Judge Kavanaugh, denied a challenge to an FEC decision to dismiss an “administrative complaint against an unincorporated association whose name is too cumbersome to condense” — “The Commission on Hope, Growth, and Opportunity.” Judge Pillard dissented.

Everyone agrees that dismissing the complaint was agency action. But is it reviewable? Evidently, the FEC deadlocked; three commissioners wanted to proceed and three did not. “The deadlock meant that the Commission could not proceed: under FECA, the Commission may pursue enforcement only upon ‘an affirmative vote of 4 of its members.’” So what happens?

FEC Randolph Quote 1

Here, the Commissioners who opted not to proceed gave a reason — or, arguably, reasons. According to the Court, these Commissioners concluded that the matter was not worth pursuing as a matter of prosecutorial discretion. Is that reviewable? Non-enforcement decisions usually are not reviewable, and the Court concludes that the same principle applies here. (There is a lot going on; make sure you read the footnotes.)

Judge Pillard dissented. As she read the Commission’s decision, the three Commissioners gave legal reasons for their decision to not proceed, and those reasons are reviewable. Specifically:

FEC Pillard Quote

And here is Judge Randolph’s response:

FEC Randolph Quote 2

And now, I’m about to hop on a plane — because today is a practical sort of day.

 

* Here is a very practical question that many practicing lawyers know well: “How much will it cost?” That said, one of my favorite lines from Chief Justice Roberts is the following: “I have never felt comfortable standing up before a court and getting a question and saying, ‘My client didn’t pay me enough to know the answer to that, Your Honor.’”

 

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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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