D.C. Circuit Review – Reviewed: “Never, Never—NEVER—Wake a Sleeping Tiger”

by Aaron Nielson — Saturday, Apr. 16, 2016@Aaron_L_Nielson

I love a good headline. And boy, did I stumble across a great one today: “Never, Never—NEVER—Wake A Sleeping Tiger.” (The subheading is pretty great too: “Don’t even think about it.”) And sure enough, if you click through, you will see a video of one tiger waking another tiger, and then you’ll learn why you should “Never, Never—NEVER—Wake A Sleeping Tiger.”

This month, my friend (and occasional co-author) Chris Walker has been posting thoughts for junior scholars over at Prawfsblawg. One topic I haven’t seen him address, however, is how to choose writing projects. I do not claim to be an expert, but here is how I decide: Do I love the title?

To be sure, I used to think that titles are unimportant—that only ideas matter. And when it comes to reading scholarship, I still think that, although I confess that I’m more likely pick up a paper if it has a catchy title. (For instance, my colleague Paul Stancil has recently posted “Cert Proof.” That’s a good title.)

Yet when it comes to writing scholarship, a good title matters a lot because it serves as an organizing principle. Here’s my hunch: A good idea will manifest itself in a good title. If I find myself struggling with my title, it probably means I’m struggling with my idea. Right now, for instance, I am working on my next article. Learning from past mistakes, this time, before I started writing, I took time to focus on what I would call it. Once I landed on my title, it was much easier to start drafting.*

But enough about tigers, titles, and law review articles. You, dear reader, came to find out what happened this week at the D.C. Circuit! Frankly, it was a quiet week, at least in terms of opinions. (It was not quiet in terms of oral argument.)

First, consider Olivares v. TSA. This opinion, written by Judge Edwards (and joined by Judges Brown and Williams) concerned a “foreign alien from Venezuela” who “applied to attend a Federal Aviation Administration-certified flight school in France to obtain a pilot certification to fly large, U.S.-registered aircraft.” The TSA, however, “determined that Petitioner was a risk to aviation and national security and denied his application.” This opinion is an interesting read. The panel agrees with Petitioner that the TSA failed to adequately explain why it denied his application, which ordinarily would violate Section 555(e) of the Administrative Procedure Act. Normally, in a situation like this, the court would remand to the agency under Chenery I. “However, shortly after Petitioner filed his petition for review, TSA submitted to the court internal agency materials that include the findings of TSA’s background investigation of Petitioner as well as internal agency communications regarding Petitioner’s application.” The Court thus concluded that a remand would be “pointless.” (The investigation, it seems, unearthed a conviction for conspiracy to possess with intent to distribute narcotics and facts potentially suggesting weapons smuggling.) If you care about the Camp v. Pitts doctrine, read this opinion.

Next, consider Fort Dearborn Company v. NLRB, authored by Judge Rogers (and joined by Judges Henderson and Kavanaugh). The facts of this case are somewhat complex, but here is the Court’s core holding: “Evidence of an employer’s good-faith belief suffices to meet the employer’s burden under Wright Line only if the employer acts on that belief as it normally would. Here, substantial evidence in the record supports the Board’s finding that the reasons given for suspending and firing the employee were pretextual because the Company’s conduct was not consistent with its policy and past practice.”

So there you have it: a quiet week at the D.C. Circuit. (Here is a question: If I had entitled this post “Another Quiet Week,” would you have clicked through? That’s what I thought. So I went with tigers.)

Finally, a word of gratitude. Since I started this project last year, I’ve had the help of three extraordinary research assistants: Brad Pew (first semester), Andrea Kelly (second semester), and Chantelle Petersen (both semesters). Because BYU Law has started finals this week, all three have now moved on. Individually and as a team, they have been exceptional in all respects. Best wishes and sincere thanks.

* If you are interested, the title is “Beyond Seminole Rock.” As a preview, I argue that overruling Seminole Rock may cause a serious unintended consequence: agencies might forego rulemaking altogether and just bring enforcement actions directly under the statutes they administer. From the perspective of regulated parties, this may be the worst of all worlds because even an ambiguous regulation often provides more notice than an open-ended statute. Thus, the Court needs to think “beyond Seminole Rock” and consider substitution effects. The article will appear in the Georgetown Law Journal in 2017.

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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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