D.C. Circuit Review – Reviewed: “So Absurd That It Hardly Requires a Response”

by Aaron Nielson — Friday, Feb. 10, 2017@Aaron_L_Nielson

It is a busy time for administrative law — just count the number of posts of late. But the D.C. Circuit has been quiet. This week, we have just two cases, and one of them is about cheating on a test. Really.

Let’s start with the “cheating” case: Chenari v. George Washington University. Here, Judge Tatel, joined by Judges Millett and Wilkins, concluded that a student who refused to stop bubbling answers after time had been called was correctly expelled.* Yes, you read that correctly: The D.C. Circuit was asked to second guess a university’s decision to expel a student. What do you think the panel decided? Yeah — the school won.

But what about the fact that the student “made no ‘attempt…to conceal his actions’”? Nonsense: “Just as stealing is stealing, whether at gunpoint or in secret bank transfers, so cheating is cheating, whether in front of a proctor or behind the proctor’s back.” What about the fact that the student passed the test? More nonsense: “This too is absurd—so absurd that it hardly requires a response, other than to point out that Chenari may well have passed the exam because he took an additional ninety seconds to fill in his answer sheet.” Well, what about his Attention Deficit Hyperactivity Disorder? Irrelevant: The student never asked for an accommodation. Indeed, “the University not only twice offered Chenari counseling, but also, through its Disability Office and that office’s website, offered all students a procedure for obtaining any reasonable accommodation they might need. The Rehabilitation Act requires nothing more.”

Judge Tatel does not use the word “absurd” often; here, he used it three times in a single paragraph.

Our other case this week is Judicial Watch, Inc. v. DOD. Here, Judge Pillard, joined by Judges Henderson and Ginsburg, addressed whether the Department violated FOIA “when it failed to release copies of documents embodying the Secretary of Defense’s 2014 determination that five Guantanamo Bay detainees could be transferred to Qatar.” As you no doubt recall, in “2014, the Secretary of Defense exercised his statutory authority to transfer five Guantanamo Bay prisoners to Qatar in exchange for the release of Bowe Bergdahl, an American soldier who was captured and held in Afghanistan.” The question on appeal was whether the Defense Department must turn over “a memo from Assistant Secretary of Defense Michael Lumpkin to Secretary of Defense Chuck Hagel.” No: “Seeing no reason to disturb the district court’s judgment that the Lumpkin Memo was a privileged deliberative document, we affirm.”

So there you go — a quiet week. Which is probably for the best since it gives you time to listen to this or this.

 

* Let’s quote the opinion: “In his deposition, Chenari explained that when the proctor called time, he discovered that he had failed to transfer some twenty or thirty answers from the test booklet to the front side of the answer sheet. According to Chenari, he ‘panicked’ and ‘continued to transfer my answers.’ The proctor ‘asked me to stop,’ but ‘I continued to bubble in [the answer sheet].’ When the proctor then ‘reached over me to try to get the exam, I just put my hand over the booklet and the exam and just continued to bubble in my answers.’ Once Chenari finished, he ‘sat back’ and the proctor ‘picked [the exam] up.’ As Chenari concedes, he ended up taking an additional ’90 seconds to two minutes.’”

 

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.

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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