D.C. Circuit Review – Reviewed: Of Dogs and Lions, Heads and Tails

by Aaron Nielson — Saturday, Nov. 14, 2015@Aaron_L_Nielson

Pluto is a dog; Goofy is a dog. Pluto scampers about in the buff with only a slobbery femur to chew on; Goofy wears comfortable clothes and manages a moderately expensive restaurant. This, of course, is not a novel observation about “cartoon doghood,“ but it does illustrate a principle: not all dogs are created equal. This is important to recall when you think about Supreme Court case assignments. It’s also worth remembering when you read this week’s D.C. Circuit opinions.

This week Richard Lazarus published a report in the Harvard Law Review Forum assessing how Chief Justice Roberts assigns majority opinions. In it, Lazarus discusses, among other things, the “dog” assignments – “that is, the less interesting cases.” Citing this study, some have observed that Justice Sotomayor may not get great assignments, at least from the Chief Justice. Indeed, she “was alone in getting no majority opinions in major cases.” (In the Lazarus study, of course, not all non-salient opinions are “dogs.” This post is not the right place to explain the difference; definitely read the study. For purposes here, it is enough that Justice Sotomayor often may not be assigned to write in “high profile” or “famous” cases.)

Of course, it is worthwhile to know who writes “famous” opinions. But—and I’m sure Lazarus would agree—that isn’t all that matters. Take Justice Sotomayor, for instance. Though her opinions may not make every list of important decisions, they do make the Harvard Law Review’s list. To be sure, because Justice Sotomayor and the Chief Justice do not always agree, she often gets those choice assignments from others. But not always! One opinion, for instance, that comes to mind is Perez v. Mortgage Bankers Association. Perez concerns regulatory procedure, and so may not attract popular attention. But in the administrative law world, people are paying attention. Indeed, at the ABA Admin Law Conference, three separate panels devoted time to Perez, and some have dubbed it “Vermont Yankee II.” No doubt, that probably is an overstatement; the opinion’s effects likely will end up being limited. But the point is that this is not a “nothing” case, and it is not the only one.*

The reality is that sometimes interesting cases do not attract popular attention. And sometimes cases that do attract popular attention are not, in fact, all that interesting—especially depending on how they are resolved. In other words, it often is better to be the head of a dog than the tail of a lion; addressing interesting issues in “boring” cases can be more meaningful than addressing small issues in “major” cases. Of course, some cases are both interesting and major while other cases are neither. But the principle is clear: appearances can be deceiving.

This principle applies to the D.C. Circuit’s cases this week.

To most readers, this week’s first case is unlikely to stand out. Yet Spurlino Materials, LLC v. NLRBanswers an important question. The National Labor Relations Act requires employers to reinstate employees who go on strike to protest unfair labor practices. But this protection only holds if the employees go on a complete strike. If instead employees only go on a partial strike, they have no protection (otherwise, they could simply pick and choose what work they want to do and call it a “strike”). In Spurlino, the employees entered into a contract never to strike regarding a certain project. But if they honor that agreement yet strike at other projects, have they lost their right to reinstatement after the strike ends? Chief Judge Garland, joined by Judges Williams and Randolph, held that in such circumstances the employees are still protected: “In Spurlino’s view, if the employees honored the no-strike clause and agreed to perform [the specified] work, they would be engaging in a partial strike, thus forfeiting the NLRA’s protection. Yet, if they refused to perform the [specified] work, they would be violating the no-strike clause, which would again strip the strike of its protected status. Hence, if Spurlino’s position were accepted, the employees could be fired for engaging in any kind of strike.” The panel refused to accept that conclusion. I’m no labor law expert, but this “dry” case seems like it could have consequences going forward.

Similarly, although the facts in Mobley v. CIA may be newsworthy, most of the legal questions are not. Mobley, it seems, is a U.S. citizen who has been detained in Yemen since 2010 and is facing charges of murder. Those are interesting facts. But the related legal issues before the court (whether various agencies adequately responded to Mobley’s FOIA requests) were not groundbreaking. Indeed, Judge Rogers, joined by Judges Brown and Srinivasan, put it this way: “Mobley’s contentions fail on the merits under a straightforward application of our precedent.” Splashy facts did not produce important law. By contrast, before getting to those routine merits, the Mobley court had to deal with a significant jurisdictional question. To litigators in the D.C. Circuit and elsewhere, the court’s discussion of the “unique circumstances” doctrine as an excuse for late filing in the context of Federal Rule of Civil Procedure 59(e) merits a close read. Going forward, that “boring” discussion may have a long lifespan.

So what’s the takeaway this week? Each dog is different—if it’s a dog at all.

* I had a research assistant work with my school’s library to pull every majority written by Justice Sotomayor and joined by the Chief Justice. Here is the list:

A lot of these cases, to be sure, I don’t know. But I suspect that a lot of lawyers will recognize some of these cases off the top of their heads.

*D.C. Circuit Review – Reviewed is designed to help you keep track of the nation’s “second most important court” in just five minutes a week.

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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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