D.C. Circuit Review – Reviewed: Resolved

by Aaron Nielson — Friday, Jan. 1, 2016@Aaron_L_Nielson

At 12:02 last night, one of my (very tired) children made a keen observation: “New Years is a silly holiday.” I sympathize. We don’t celebrate turning the calendar from January to February, nor do we throw a party when February 29th rolls around every Olympiad.* But you know what? The fact that January 1st is arbitrarily set as the first day of the year doesn’t mean we shouldn’t mark the passage the time. Arbitrary does not mean capricious. There is a lot to be said for designating a date to step away from day-to-day humdrummery and instead focus on what we really want to accomplish. Resolutions are wonderful things.

For instance, I have resolved to write for the Wall Street Journal. Ever since I was a high school “journalist,” I wanted to write an op-ed for the Journal. This is the year I’m finally going to it. (Note, just 8% of people keep their resolutions.*)

I also have resolved to provide more unsolicited advice to others regarding their resolutions. (Who doesn’t enjoy a busybody?) For example, here is my advice for law students: study patent law. I have advice for the Supreme Court too. In 2016, it should resolve to finally fix the line problem and “pick up the PACER” on e-filing. At the same time, Ohio State should resolve to add a third person to this party and more law schools should follow Boston University’s curricular lead. The Big 12 Conference should resolve to have 12 teams. Everyone should resolve to read more old books. And my freeloading chickens should resolve to lay more eggs.

And, of course, I have advice for the D.C. Circuit too. It should resolve to stand firm on its “no clerkship hiring plan” position. It should resolve to get reversed less by the Supreme Court (though, in its defense, it reversal percentage could be worse). It should also resolve to recruit better basketball players. Finally, it should model its opinion-writing style on Judge Kavanaugh’s, at least for routine cases. When an opinion breaks little or no doctrinal ground, I’ve noticed that Judge Kavanaugh tries to keep it under 10 pages. That’s a good practice.

For example, in addition to Judge Kavanaugh’s no-nonsense pre-Christmas decisions, considerJackson v. Mabus, also authored by him (and joined by Judges Brown and Williams). It took Judge Kavanaugh just nine pages to dispose of this challenge to the discharge record of a former naval officer. It seems that the officer in question, on more than one occasion, left base early. He also disobeyed a direct order (to do what, we’re not told) and “engaged in a verbal altercation with a superior officer.” The result of these infractions was that upon his honorable discharge, the Navy recommend against reenlistment. The Court briskly upheld that determination. (The most interesting aspect of this opinion comes from the last paragraph: “This Court has previously cautioned the boards for correction of military records that they must sufficiently explain their reasoning in order to have their decisions sustained. Despite our admonitions, the Board’s explanation for denying Jackson’s request for reconsideration was thinner than it should have been – unlike the Board’s detailed explanation for denying Jackson’s initial application for correction. We again urge the relevant boards to take care to sufficiently address each non-frivolous claim raised by an applicant for record correction.”)

Another good example of “keeping it short” is Minter v. District of Columbia. There, Chief Judge Garland (joined by Judges Rogers and Edwards) addressed another straightforward issue: Whether D.C. engaged in unlawful discrimination. The panel upheld a fact-bound award of summary judgment. The opinion says what it needs to and moves along. (I do note, however, that the judgment line spills onto page 11! In 2016, tighten those parentheticals.)

By contrast, the Court’s other two decisions are longer–but also more complicated. In Blue v. District of Columbia, Judge Tatel (joined by Judges Henderson and Edwards) concluded that a student could not sue her school district. The facts of this case are ugly: “Appellant Ayanna Blue alleges that while attending a District of Columbia school for emotionally disturbed students, she and a teacher had a consensual sexual relationship—a relationship that led to the birth of a child.” Robert Weismiller, the teacher at issue, may have been preying on students since the 1970s. The question is whether the school should have hired someone with this sordid history. Although not happy about it, Judge Tatel explained that the plaintiff had not stated a claim. (Judge Tatel: “Accepting the complaint’s allegations as true, one might think that this case is relatively easy. DCPS hired Weismiller even though he had a history of preying on children in two neighboring school systems. DCPS then assigned him to teach at a school for special education students, where he engagedin a sexual relationship with a student, Ayanna Blue. Given this background, most people would reasonably assume that Blue should have an opportunity to prove her case. But unfortunately for her, a series of judicially created and statutory obstacles, all binding on this court, stand in her path.”). Among other points, the Court explained that to sue a municipality under Section 1983, there needs to be an illegal policy. No such showing was made.

Finally, in Washington Regional Medicorp v. Burwell, Judge Sentelle (joined by Chief Judge Garland and Judge Griffith) addressed Medicare reimbursement. The Court concluded that the agency’s interpretation was the “best” one and so sided with HHS. (Judge Sentelle: “Insofar as there is any ambiguity in the statute, we would uphold HHS’s interpretation with or without Chevron deference because HHS’s interpretation is not only reasonable but also the best interpretation of the statute.”) This is a very complicated case (check out page 5 of the slip op; if you can read that page without having to start over at least once, you’re a better lawyer than me). For those of you who follow Medicare reimbursement law, note that this case appears to create a circuit split. The Court noted with regards to a regulation that “the 5th Circuit has reached the opposite conclusion. See Hardy Wilson Mem’l Hosp. v. Sebelius, 616 F.3d 449, 457-61 (5th Cir. 2010).”

I could go on describing the D.C. Circuit’s cases and offering free advice, but I won’t. You see, beyond writing for the Wall Street Journal, I have another resolution: in 2016, I’m going to spend 2 hours a week, tops, on these posts. (Even now, I know that that is a resolution I’m not going to be able to keep.)

* What was my resolution last year? I have no idea. I’m terrible at this. If you subscribe to the Wall Street Journal, don’t count on reading my byline anytime soon.

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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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