D.C. Circuit Review – Reviewed: Resolved Redux

by Aaron Nielson — Saturday, July 23, 2016@Aaron_L_Nielson

Just over six months ago, I set resolutions for myself, law students, the Supreme Court, the Big 12 Conference, my freeloading chickens, and the D.C. Circuit, among others. This week seems as good as any to check in on how everyone is doing.

First, I resolved to write something for the Wall Street Journal. Alas, so far, nothing. To be sure, I was quoted in the Wall Street Journal, but that doesn’t count. Thankfully, there’s still five months to go. (Note, this won’t happen.)

Second, I don’t know if more law students are studying patent law (rising 2Ls and 3Ls, trust me on this one), but I am pleased to report that the Big 12 Conference has taken my advice and is nowconsidering adding more teams. I would like to take credit for this, but I really can’t—everyone knows that any conference called the “Big 12” should have 12 teams.* I’m also happy to announce that mychickens at long last have started to lay more eggs. These are the most expensive eggs in the world; for what we pay for them, they should have crème in the middle.

Third, the D.C. Circuit also appears to have lived up to the resolutions I set for it. There still is no clerkship plan; the D.C. Circuit was reversed less in OT2015 than in OT2014; I trust the clerks are better at basketball; and the court’s opinions seem pretty short, albeit with certain exceptions. (Whether the Supreme Court will pay attention to my counsel is yet to be determined. Here’s a hint: No more lines.)

This week, it looks like some other folks lived up to their own resolutions. For instance, in Mackinac Tribe v. Jewell, Judge Brown may have checked off a resolution. This case concerns whether the Mackinac Tribe was required to exhaust administrative remedies to organize under the Indian Reorganization Act (IRA). The D.C. Circuit, in a per curiam opinion (per Judges Griffith and Pillard), concluded that exhaustion is required. Judge Brown wrote separately, and boy, is her concurrence worth reading. This is how she begins:

Patience may be a virtue but there’s nothing virtuous about the administrative delays the BIA has routinely forced recognition-seeking Indian tribes to endure. “At present day, a federal acknowledgment petition can be over 100,000 pages long and cost over $5 million to assemble; the BIA estimate time for completion of the review is 30 years.” See Harry S. Jackson III, Note,The Incomplete Loom: Exploring the Checkered Past and Present of American Indian Sovereignty, 64 RUTGERS L. REV. 471, 497 (2012). That means a case worker could start the review process her first day at BIA and retire with her full pension before ever completing it. That’s appalling.

And she was just warming up. Her opinion builds up to this conclusion:

Despite my significant concerns about both the length and the integrity of this process, I agree that the Mackinac Tribe must at least try to exhaust its administrative remedies in this context—which is far outside the judiciary’s wheelhouse. Still, we are reminded today that Justice Douglas’s words ring as true now as they did nearly half a century ago: “The bureaucracy of modern government . . . is slow, lumbering, and oppressive.” Wyman v. James, 400 U.S. 309, 335 (1971) (Douglas, J., dissenting).

“The bureaucracy of modern government is slow, lumbering, and oppressive.” Has Judge Brown been holding that quote in reserve for the perfect case? Did she, perhaps, even resolve to keep her eyes open for that perfect case?

Next, consider Perry v. MSPB—a twofer when it comes to resolutions. First, Judge Srinivasan (joined by Judges Griffith and Millett) lived up to the challenge of keeping opinions short. This one, which addresses which court has jurisdiction to consider “so-called ‘mixed cases’” (i.e., cases “in which an employee not only challenges an adverse action within the Board’s jurisdiction but also alleges discrimination in violation of certain federal statutes”) that are dismissed by the MSPB for lack of jurisdiction, comes in at 14 pages. The answer: the Federal Circuit, but you really want to read Srinivasan’s well-written explanation. And second, this case was argued by Rebecca Taibleson, a talented young lawyer who was appointed by the court. She presumably checked off one of her goals.

Now, turn to United States v. Marsh, which is a very “D.C. Circuit” opinion—in a brisk 11 pages, it concludes that the Fourth, Fifth, Sixth, and Eleventh Circuits all are wrong! And that the Ninth Circuit is right but for the wrong reasons! No doubt Judge Tatel (who authored this opinion, joined by Judges Srinivasan and Pillard) resolved to create a massive circuit split. (Well, not really, but work with me here.) The issue in this case is “whether 18 U.S.C. § 3624(e), which provides that ‘[a] term of supervised release does not run during any period in which [a] person is imprisoned in connection with a conviction for a Federal, State, or local crime,’ tolls a supervised-release term during a period of pretrial detention if the defendant is later convicted of the charges on which he is held and receives credit toward his sentence for the time served in pretrial detention.” No, says the D.C. Circuit: “By phrasing the statute in the present tense, Congress has foreclosed the type of backward-looking tolling analysis that the Fourth, Fifth, Sixth, and Eleventh circuits allow.” Perhaps this case, or one like it, will end up before the Supreme Court.

Judge Sentelle, for his part, was able to knock off a resolution this week in National Association of Criminal Defence Lawyers v. US Department of Justice: quoting Justice Sutherland (perhaps BYU’s most notable alumni, and sponsor of the 19th Amendment). The case concerns a DOJ internal manual called “the Blue Book.” This particular Blue Book, which seems much more interesting than this Blue Book or this Blue Book or this Blue Book, addresses how federal prosecutors should manage discovery in criminal prosecutions. Judge Srinivasan (joined by Judges Sentelle and Edwards) concluded that DOJ does not need to turn the Blue Book over under FOIA because it “imparts litigation strategy to government lawyers.” Though concurring (due to precedent), Judge Sentelle—joined by Judge Edwards—wrote separately to urge that FOIA is being misapplied. He then quoted Sutherland: A federal prosecutor “may prosecute with earnestness and vigor–indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.”

And finally, we come to Mingo Logan Coal Company v. EPA, which will give Paul Clement a chance to satisfy one his resolutions: to file another brief in the Supreme Court regarding West Virginia coal. No doubt, he would prefer to file an orange brief with the Justices rather than a white one, but such is life. Here, the U.S. Army Corp. of Engineers issued a permit; years later, however, the EPA did not. (These are simplified facts.) The D.C. Circuit has previously determined the EPA has the authority to do this—and that decision drew a cert petition with 13 supporting amicus briefs, but the Supreme Court did not take the case. Now, the question is whether EPA violated the principle of reasoned decisionmaking. Judge Henderson (joined by Judge Srinivasan) sided with the agency, concluding that Mingo Logan’s argument that EPA wrongly declined to consider costs had been forfeited and that its other arguments failed on the merits. Judge Kavanaugh dissented because “to act reasonably, an agency must consider the costs of its actions,” and where there is a change like this, the agency must provide a “more detailed justification” because of reliance concerns. This passage from Kavanaugh gives a taste of his analysis:

There is also a far more fundamental problem with the majority opinion’s argument that Mingo Logan failed to detail its costs. EPA’s legal theory throughout these proceedings has been that costs are irrelevant to permit revocation decisions. Yet now EPA is faulting Mingo Logan for not adequately detailing its costs to the agency. That’s a bit rich. It is not as if EPA said it would consider costs and then Mingo Logan failed to present evidence. Rather, as reflected in its decision revoking the permit, EPA made clear that costs were irrelevant and said it would make its decision based solely on the adverse effect on animals. It flatly violates SEC v. Chenery for EPA now to rely on Mingo Logan’s supposed failure to detail its costs when EPA (over Mingo Logan’s objection) said at the agency stage and in the District Court that costs were irrelevant. The forfeiture argument advanced by EPA (and accepted by the majority opinion) about Mingo Logan’s supposed failure to detail costs is entirely unfair to Mingo Logan. I would not countenance this kind of agency bait and switch.

So there you go—another week of opinions. At least this week, moreover, I have met my other New Year’s Resolution: I wrote this post in less than two hours. Well, two hours-ish ….

* Yes, I know that the Big 12 might add four teams. But if it does, it should change its name to the Big 14. The Pac 10 12 got this one right. Big 10, take note. 

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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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