One night during the summer of 1987, Judge David Sentelle communed with the dead. Sentelle, then of the Western District of North Carolina, was confronted with a tricky Pullman Abstention question. As he struggled with the issue, he asked what the Honorable Wilson Warlick would do. Judge Warlick had been dead for almost a decade. Judge Warlick—sometimes called “Coot” because when he was a child, he crawled like a terrapin—“had little use for some of the newfangled ideas that came down from the appellate courts” but was nonetheless full of “experience and wisdom.” Sentelle asked Coot what to do, and he could almost hear Coot say:
What those hippies want is to have their party. What the State of North Carolina wants to do is look after the Tapoco watershed and try to keep those hippies from making any more folks sick around the camp than what’s gonna get sick anyway. Now you just forget ’bout all your high falutin’ theories for a minute and take the common sense that God gave you back into chambers with those two lawyers and beat their heads together ’till they consent to something that accomplishes all those goals.
My mind turned to Judge Warlick this week as I read Judge Sentelle’s latest decision in Noel Canning v. NLRB. You’ve heard about this case—this is the one in which the Supreme Court held that President Obama’s recess appointments to the NLRB were unconstitutional. I didn’t realize that this fight was still around. It turns out, however, that the litigation did not end. When this dispute was first before the D.C. Circuit, it held—in an opinionalso authored by Judge Sentelle—that the appointments were unlawful. The D.C. Circuit vacated the NLRB’s order and the Supreme Court affirmed. Yet in 2014, the NLRB “issued a new decision and order essentially adopting the Board’s 2012 decision and ordering Noel Canning … not to refuse to bargain with the Teamsters Local 760 chosen by employees as their exclusive representative.” Noel Canning challenged that order because the D.C. Circuit had vacated the NLRB’s previous order and had not simply remanded it to the agency. The question before Judge Sentelle (with Judges Rogers and Pillard) was whether that vacutur precluded the NLRB’s 2014 order. The D.C. Circuit concluded that NLRB was not barred for numerous reasons, including this one:
We offer one further thought with respect to Noel Canning’s petition. We recently observed in a different context that “common sense sometimes matters in resolving legal disputes.” Southern New England Telephone Co. v. NLRB, 793 F.3d 93, 94 (D.C. Cir. 2015). It is not totally consistent with common sense to suggest that when a petition has been filed with an administrative agency and that agency reached a decision but a court vacated the decision for reasons unrelated to the merits of the petition, the merits issues in the case must remain forever undecided. In other words, it seems to us highly unlikely that the law would establish that a question properly presented to the labor board must pend forever if the board for procedural or quorum-related reasons invalidly entered its first order.
This was a very busy a week in the D.C. Circuit. Indeed, there are nine cases, including Noel Canning,* so I’ll use my own common sense to just list them. Here’s a preview: aside from Noel Canning, it was a rough week for the NLRB; in the process of denying mandamus from a member of al Qaeda once held at Guantanamo Bay, Judge Kavanaugh offered advice to Congress; and going forward, it will be cheaper for students to file FOIA requests.
HTH Corporation, et al v. NLRB: This company does not dispute that it “committed a host of severe and pervasive unfair labor practices.” It does dispute, however, the “extraordinary remedies” imposed by the NLRB in response. Some of the challenges to the remedies were waived because they were not presented to the Board in a motion for reconsideration. Two were live, however. Judge Williams concluded that the Board erred as to attorney’s fees but not err as to “notice-reading.” It seems that “the ALJ’s proposed notice-reading remedy required either the company’s CEO and its President, or Minicola (the Regional Vice President), to read to employees a ‘notice’ drafted by the Board. In the ‘notice’ the officials are to say that ‘we’ have violated the National Labor Relations Act and the employees’ rights and to state 15 specific assurances in the form, ‘We will’ adhere to specified NLRA obligations and remedy various breaches, or ‘We will not’ violate the Act in a wide range of specified ways.” Over the dissent of two of its members, the Board then proceeded to “ramp up” the notice-reading, for instance by requiring a “notice-reading event… that all company supervisors and managers” were required to attend. The Board also imposed attorney’s fees. The splintered D.C. Circuit panel upheld the notice-reading requirement, even though “then-Judge Ruth B. Ginsburg” had in the past condemned such forced readings. Judge Williams explained, as only he can, why such forced readings are controversial:
For those familiar with 20th century history, such an order conjures up the system of “criticism-self-criticism” devised by Stalin and adopted by Mao. “Criticism” generally took the form of an attack on the target by his or her peers at a meeting with fellow workers, spouting claims fed them by powerful members of the Communist party (on pain of themselves being tagged enemies of the people), and then regurgitated by the target (“self-criticism”) in the hopes that full confession might avert dispatch to the gulag, torture or execution.
What is the subtext communicated by the sort of scene the Board would mandate? What is communicated to the assembled workers and the perpetrator himself? “You see before you one of your managers, who normally has a responsibility to make important choices as to your work. But who is he? Not merely is he a lawbreaker, but he is a pathetic creature who can, at the behest of federal officials (and not especially lofty ones at that), be forced to spout lines they have put in his mouth. He is not even a parrot, who can choose when to speak; he is a puppet who speaks on command words that he may well abominate. We have successfully turned him into a pathetic semblance of a human being.” Of course, one may say, here it is just that the mighty have fallen; he was a lawbreaker. But fallen so low? Fallen to a condition that denies his autonomy?
Despite these stern words, Judge Williams upheld the notice-reading here because the company was allowed to have a government official, not management itself, read it. At the same time, however, the panel concluded that the Board did not have the “inherent authority” to impose attorney’s fees. After all, “it is wrong to speak of agencies having anyinherent authority,” nor does any statute authorize the NLRB’s conduct.
Both Judges Henderson and Rogers separately concurred in part and concurred in the judgment. Judge Henderson believes that allowing an agent to do the notice-reading “creates a problem more severe than the one it supposedly solves.” After all, “when a Board agent stands up to castigate an employer in front of unionized employees, those employees are inevitably left with a perception of the Board as union enforcer, not neutral arbiter. A referee calling a foul is one thing; a referee calling a foul while wearing one team’s uniform is quite another.” Judge Rogers disagreed with Judge Henderson and Judge Williams’ tone: “Because the Board’s notice-reading order is consistent with our precedent enforcing the compromise option, there is no need to imply that the Board’s judgment in specific egregious circumstances has abandoned democratic principles.” (Note, this is a long opinion; if you practice labor law, you should definitely read this one.)
ManorCare of Kingston PA, LLC v. NLRB: Like most NLRB cases, this case is heavy on the facts. The question is whether “third-party misconduct” disrupted a union election. Judge Brown (joined by Judge Williams) concluded, contrary to the NLRB’s determination, that there was third-party misconduct here. In particular, some of the folks eligible to vote made threats to other potential voters (e.g., if unionization loses, employees would get “punched in the face” and see their cars destroyed). The hearing officer agreed that these sorts of threats undermined the election, even if they were made in a light-hearted way, because they were spread around within the company. The NLRB disagreed that “a game of telephone” means the election must be undone. And then the D.C. Circuit disagreed with the NLRB because the Board had not adequately examined the issue. (Here is an important quote from Judge Brown’s analysis: “the Board cursorily acknowledged its own precedent and then dismissed the effect of the threatening statements in a discussion too brief to demonstrate how the facts of this case align with the Board’s precedent. Such truncated analysis may often encourage reviewing courts like this one to affirm the Board’s decisions because the reasoning is so skeletal as to thwart assessment of its reasonableness. But this habit would shortchange the obligations of reviewing courts.”). Judge Srinivasan concurred in part and in the judgment: “I agree with my colleagues that the Board’s decision in this case was too cursory, in that the Board at least needed to do more to explain how its decision in this case fits with its precedent. Unlike the majority, however, I do not understand the Board’s decision declining to set aside the election to be irreparably inconsistent with its prior decisions. Rather, I would remand the case to enable the Board to explain how its rejection of petitioner’s election objection aligns with its precedent.”
IronTiger Logistics, Inc. v. NLRB: This is another opinion that, at least in part, rules against the NLRB. Here is the main takeaway from Judge Silberman (joined by Judges Tatel and Millett): “We reject Petitioner’s broad challenge to the Board’s policy requiring an employer to timely respond to a union’s request for information that is presumptively relevant, but nevertheless remand to the Board for further explanation of why the specific requests in this case were ‘presumptively relevant.’” Here is how the panel closed its analysis: “We think the Board must consider both the Petitioner’s defense and the implication of a rule that would permit a union to harass an employer by repeated and burdensome requests for irrelevant information only because it can be said it somehow relates to bargaining unit employees – without even a union’s statement of its need.”
Durham School Services, LP v. NLRB: Here is a clean victory for the NLRB. Judges Edwards (joined by Judges Brown and Srinivasan) concluded that the agency did not have to hold a hearing because the employer had not raised a material issue. The agency generally does not have to “probe into the truth or falsity of the parties’ campaign statements” and the fact-specific manner in which the election was carried out was fine.
In re Omar Khadr: Here, Judge Kavanaugh (joined by Judges Griffith and Randolph) denied mandamus relief to “a member of al Qaeda.” In 2002, a 15-year old killed a U.S. solider in Afghanistan. He was captured and taken to Guantanamo Bay. He was later transferred to Canada (he’s free on bail there). Long story short, the U.S. Court of Military Commission Review consists of both military judges and “civilians who are appointed by the President with the advice and consent of the Senate to serve as judges on the Court.” Khadr sought mandamus to force the civilian judge off of his panel: “According to Khadr, Judge Pollard’s impartiality as a judge on the U.S. Court of Military Commission Review might reasonably be questioned because the Department of Defense pays him as a Highly Qualified Expert. Khadr claims that the designation affords the Department power over Judge Pollard’s pay and tenure.” The D.C. Circuit panel said no because the right was not sufficiently clear to justify mandamus, but it did have this to say: “That said, this is a serious issue – one that Congress and the Department of Defense would be wise to address and resolve promptly, either by expressly barring the civilian judges on the U.S. Court of Military Commission Review from the private practice of law or by making crystal clear that the civilian judges on the Court may serve as special government employees and continue their part-time private practice of law.” (Note, this is an abbreviated version of the analysis. Military lawyers may want to give this one a read.)
Sack v. DOD: Judge Kavanaugh (joined by Judges Tatel and Griffith) decided an important FOIA case. Here is the main takeaway: “If teachers can qualify for reduced fees, so can students. Students who make FOIA requests to further their coursework or other school-sponsored activities are eligible for reduced fees under FOIA because students, like teachers, are part of an educational institution.” After all, “it would be a strange reading of this broad and general statutory language – which draws no distinction between teachers and students – to exempt teachers from paying full FOIA fees but to force students with presumably fewer financial means to pay full freight.” (I think Judge Warlick would appreciate that bit of analysis.) Moreover: “But this statute, as we read it, does not empower the Government to pursue fiscal balance or provide relief for the FOIA bureaucracy on the backs of students.” Note, the student at issue was earning her PhD.
Johnson v. Perez: This is not an administrative law case; it is a question of discrimination. Judge Pillard (joined by Judges Tatel and Williams) affirmed the district court this way: “We affirm on the slightly different ground that, on the evidentiary record, no reasonable juror could find that the Department’s stated, nondiscriminatory reasons for dismissing Johnson were not its real reasons.” In particular, even at summary judgment, the Court accepted “[t]he Department’s position is that it terminated Johnson because his performance was deficient and his demeanor was argumentative in response to supervisor feedback.” (If I had more time, I’d explain pages 13 to 16 of the opinion, which offers general thoughts on how discrimination cases should be decided to prevent “potential confusion.”)
GSS Group Ltd. v. Republic of Liberia: Finally, we come to this case. But last does not mean least. Even so, because this case is fact-heavy, I will not dwell too long on it. Even Judge Henderson, who authored the opinion (joined by Judges Rogers and Kavanaugh) agrees that “resolution of this case is ultimately straightforward,” but “the history leading to our disposition is not.” This case is about issue preclusion, arbitration, and “the turmoil following Liberia’s Second Civil War.”
Wow. That’s a lot of law. I wonder what Judge Warlick would say about trying to summarize nine cases in a single post.
*Of course, the other important news is that the Power Plant oral argument has been postponed and set for en banc hearing. Here is the order’s text: “PER CURIAM ORDER, En Banc, filed, on the court’s own motion, that these cases, currently scheduled for oral argument on June 2, 2016, be rescheduled for oral argument before the en banc court on Tuesday, September 27, 2016 at 9:30 a.m. It is FURTHER ORDERED that the parties and amici curiae provide 25 additional paper copies of all final briefs and appendices to the court by June 1, 2016. Before Judges: Garland,* Henderson, Rogers, Tatel, Brown, Griffith, Kavanaugh, Srinivasan, Millett, Pillard,* and Wilkins. (Chief Judge Garland and Circuit Judge Pillard did not participate in these matters).” Cf. United States v. Microsoft.
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