D.C. Circuit Review – Reviewed: The Fall of Constantinople (Or Why Mistakes Matter—Sometimes)

by Aaron Nielson — Friday, Dec. 18, 2015@Aaron_L_Nielson

This is a foolish way to start a sentence, especially one published on the internet: “I’m no military historian, but ….” After all, there are lots of actual military historians out there, and they often have strong opinions on the subject. Even so, I’ll chance it. I’m no military historian, but it seems to me that the Fall of Constantinople in 1453 illustrates an important lesson for administrative law. At least as I was taught the story,* Constantinople—one of the mightiest cities on Earth—fell because a gate was left open. Because of that simple mistake, the City’s great walls could not keep out the sieging forces and Constantinople fell. What’s the lesson we should learn from this? Even small mistakes sometimes matter. This week’s D.C. Circuit’s opinions are all about mistakes.

Brace yourself, however; this has been a very busy week at the D.C. Circuit.

Consider Wrenn v. DC, perhaps the biggest case of the week. This case concerns D.C. gun laws, always a controversial topic. The district court issued a preliminary injunction restraining parts of the City’s scheme for concealed weapons. The City appealed. Both sides fully briefed the constitutional merits. Yet the D.C. Circuit (in an opinion written by Judge Sentelle, and joined by Judges Pillard and Silberman) did not resolve the merits. Instead, it concluded that Senior United States District Judge Frederick J. Scullin, Jr., of the Northern District of New York, who authored the district court decision, lacked jurisdiction. Senior judges, of course, sit by designation all the time. So what’s the problem? “Although Judge Scullin had served under a properly issued designation, the difficulty in the present case is that designation was limited to specific and enumerated cases. The present litigation is not one of those cases.” But how did that happen? “The error in this case is quite understandable. The calendar committee of the district court assigned the matter to Judge Scullin because it deemed the case to be related to another case over which Judge Scullin presided. The difficulty is, while the earlier case was within the Chief Justice’s designation, the present one is not.” One small oversight, not of his doing, undid all of Judge Scullin’s labors.

Next, turn to the sad tale of Flytenow, Inc. v. FAA. In this opinion (written by Judge Pillard, and joined by Judges Wilkins and Ginsburg), we learn of a company whose great idea turned sour. It is expensive to be a recreational pilot. It is also expensive to fly places. Flytenow, accordingly, came up with a great idea. Why can’t recreational pilots “offer their planned itineraries to passengers willing to share the pilots’ expenses”? This wouldn’t be a job. Indeed, the company admits that “Federal Aviation Administration regulations prohibit a pilot from accepting compensation from passengers. We help you split the costs, but you are not allowed to compensate the pilot further than that.” Unfortunately, the company didn’t ask the FAA about this plan until after it started operations. Alas: “The FAA responded with a Letter Interpretation, concluding that pilots offering flight-sharing services on Flytenow’s website would be operating as ‘common carriers,’ which would require them to have commercial pilot licenses. Flytenow’s members, licensed only as private pilots, thus would violate FAA regulations if they offered their services via Flytenow.com.” Long story short, the D.C. Circuit upheld the agency’s decision. (As an aside, for jurisdiction buffs out there, this one is worth reading.)

Next in the line of mistakes is Salazar v. DC (per Judge Sentelle, joined by Judges Srinivasan and Pillard). This case concerns attorneys’ fees. The mistake here was leaving open the amount of fees in a settlement agreement. The City entered into a settlement but did not specify the amount of all the fees; after the fees were awarded, the City objected and asked the D.C. Circuit to lower them, all the while “mak[ing] much about the fact that this prolonged litigation is depleting public funds.” The Court declined to do so. If you are interested in attorneys’ fees, check out the Court’s reasoning. For me, it is enough that this problem could have been avoided had the parties clearly stated the amount of fees in the settlement itself.

Consider too Adenariwo v. FMC, also written by Judge Sentelle (and joined by Judges Henderson and Edwards). This case is about “two Federal Maritime Commission decisions relating to the loss of concrete masonry equipment shipped from the United States to Nigeria in two separate shipping containers.” Mishandling masonry equipment is a mistake (“The first shipment (Container 1) arrived in Nigeria on or around April 17, 2008, but because of errors in the bill of lading, not the fault of MacBride, it was not released to MacBride and demurrage fees began to accrue”), as, unfortunately, is failing to petition for review in time (“Adenariwo’s only recourse was to challenge the Commission’s decision in a federal court of appeals within 60 days of the Commission’s notice declining to exercise its right to review. ”). (As an aside, there also is an interesting discussion of mitigation: “The settlement officer’s decision leads to absurd and unjust results. Under the settlement officer’s reasoning, a wrongdoer, such as Zim, can set unlawful conditions for the release of an injured party’s property and have the damages it owes the injured party reduced if the injured party cannot or does not meet those unlawful conditions. The settlement officer and the Commission would have this Court punish Adenariwo for not doing the very thing the law says he should not have to do.”).

Dalton Trucking, Inc. v. EPA also boils down to a mistake: the EPA erroneously moved to dismiss a petition for review filed in the Ninth Circuit. This opinion, written by Judge Edwards and joined by Chief Judge Garland and Judge Sentelle, concerns jurisdiction. EPA authorized California to revise regulations for diesel engines. Petitioners think the revised regulations are unlawful. EPA does not. Petitioners, however, also think that the right court for this challenge is the Ninth Circuit. But EPA thinks it is the D.C. Circuit. Turns out, petitioners are right because EPA’s action does not have a national scope, even though, the panel notes, EPA presumably could have given it a national scope. Indeed, Judge Edwards called one of EPA’s arguments “a transparent sleight of hand.” Along the way, however, the panel also explained that the D.C. Circuit’s past cases are not models of clarity on this subject. “For example, some opinions suggest in dicta that section 307(b)(1) gives this court ‘exclusive jurisdiction over challenges to final EPA actions,’ inadvertently suggesting that jurisdiction and venue under section 307(b)(1) are coterminous.” Even the D.C. Circuit makes mistakes.

And Watervale Marine Co., Ltd. v. DHS concerns a serious “mistake”: oil pollution and a potential cover-up! “Appellants own and operate two foreign-flagged vessels: the M/V AGIOS EMILIANOS and the M/V STELLAR WIND. Each periodically docks at U.S. ports, in the course of its oceangoing business, to load or offload cargo. In the spring of 2011, the Coast Guard began receiving whistleblower complaints asserting … that the appellants’ vessels had falsified the oil record books required of all vessels when traveling over international waters and docking at U.S. ports.” The question before the Court was whether “whether the Secretary of the Department of Homeland Security – acting through the Coast Guard – may impose certain conditions (nonfinancial in nature) upon the release of ships.” I know nothing about shipping law. If this is your field, check it out. For purposes of this blog post, it is enough to note that Judge Silberman, joined by Judge Srinivasan, disagreed with the district court’s conclusion that is issue is not justiciable but nonetheless concluded the United States should win on the merits because the greater power to seize such a ship surely includes the lesser power of imposing conditions on release; Judge Griffith agreed that the United States should win but for reasons more closely tied to the text. He thinks it is a mistake to “overlook[] the text and rely[] instead on what a court might think is an unstated principle that informs the provision.”

On the other hand, not all mistakes have consequences.

In Salem Hospital Corp. v. NLRB, for instance, the panel (Judge Henderson, joined by Judges Millett and Wilkins) lambasted the NLRB for its “gaffe ridden” proceedings, but concluded that the error was harmless. I’ll leave the details of this lengthy NLRB decision for aficionados. But I will note some of the mistakes: “The HO’s premature closing of the record was without explanation”; “the RD also failed to explain the HO’s failure to issue the subpoenas”; there may have been ex parte communications (though that appears to be contested); “[t]he Special Appeal was undoubtedly unauthorized”; and “the Board gave one party over one month to file without allowing the other side so much as a week to respond.” The panel’s closing admonition is also noteworthy: “The Board’s myriad missteps—its own as well as those of its agents—are a cause for concern and we can only hope that this case constitutes an exception to an otherwise robust and faithful adherence to the Board’s own process.”

Likewise, in United States v. Brown, a criminal case, a splintered panel (opinion written by Judge Edwards and joined by Judge Henderson) excused failure to raise a challenge during the district court’s sentencing. That, of course, was a mistake; it changed the standard of review to clear error. Nonetheless, the panel concluded that the district court’s explanation of how it used its sentencing discretion was too opaque and so sent the matter back. Judge Sentelle, however, argued that that was a mistake: “Granting that these might benefit from a clearer record, that appears to me to be precisely what the requirement for raising the error in the court of first instance is designed to provide. That is to say, we are giving the record only plain error review precisely because defendant appellant did not give the trial court the opportunity to clarify its statements at the trial level.”

Finally, I end with another mistake that seems to go without consequence. Earlier this year, the Supreme Court held that EPA erred by not considering costs while developing an important rule under the Clean Air Act. One would think that decision would strike down the rule. Yet this week the D.C. Circuit issued an order remanding the matter to EPA, without vacating the rule. There is a good argument that the APA does not allow that remedy (though, to be sure, others disagree, including Judge Silberman); as Judge Randolph has explained, “Once a reviewing court determines that the agency has not adequately explained its decision, the Administrative Procedure Act requires the court … to vacate the agency’s action. The Administrative Procedure Act states this in the clearest possible terms. Section 706(2)(A) provides that a ‘reviewing court’ faced with an arbitrary and capricious agency decision ‘shall’ — not may — ‘hold unlawful and set aside’ the agency action. Setting aside means vacating; no other meaning is apparent.” (Moreover, allowing such rules to stand may run afoul of Chenery I. After all, if a rule is not lawful as promulgated, why conclude that the agency wants it? And doesn’t this create bad incentives?) If Judge Randolph is right about the APA, it was not just EPA that made a mistake.

So what’s the takeaway? Mistakes matter—sometimes. (Alternate takeaway: on weeks with eight opinions, perhaps it is a mistake to summarize all of them.) 

*Until recently (i.e., this morning), I believed that Victor Hugo’s depiction of Waterloo was accurate. In it, of course, he portrays a thrilling French cavalry charge that was thwarted because of a single ravine he dubbed “the hollow road of Ohain.” As Hugo put it:

All at once, a long file of uplifted arms, brandishing sabres, appeared above the crest, and casques, trumpets, and standards, and three thousand heads with gray mustaches, shouting, ‘Vive l’Empereur!’ All this cavalry debouched on the plateau, and it was like the appearance of an earthquake. All at once, a tragic incident; on the English left, on our right, the head of the column of cuirassiers reared up with a frightful clamor. On arriving at the culminating point of the crest, ungovernable, utterly given over to fury and their course of extermination of the squares and cannon, the cuirassiers had just caught sight of a trench—a trench between them and the English. It was the hollow road of Ohain. It was a terrible moment. The ravine was there, unexpected, yawning, directly under the horses’ feet, two fathoms deep between its double slopes; the second file pushed the first into it, and the third pushed on the second; the horses reared and fell backward, landed on their haunches, slid down, all four feet in the air, crushing and overwhelming the riders; and there being no means of retreat—the whole column being no longer anything more than a projectile—the force which had been acquired to crush the English crushed the French; the inexorable ravine could only yield when filled; horses and riders rolled there pell-mell, grinding each other, forming but one mass of flesh in this gulf: when this trench was full of living men, the rest marched over them and passed on. Almost a third of Dubois’s brigade fell into that abyss. This began the loss of the battle.

It turns out that this portrayal may be exaggerated (and that may be putting it mildly). I suppose that is what you get from learning history from literature. But at least The Charge of the Light Brigade is accurate, right? 

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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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