D.C. Circuit Review – Reviewed: Underdogs

by Aaron Nielson — Friday, Mar. 30, 2018@Aaron_L_Nielson

It’s hard to be a parent. Kids these days, after all, confront an avalanche of messages. How are they supposed to process a world where so much is happening so quickly? Plus media is no help. Even child-friendly content can be surreal. And don’t get me started on today’s music! “Rolly, Rolly, Rolly,” indeed. Sometimes, honestly, as parents we don’t even want to know what our kids are thinking; blissful ignorance can be, well, blissful. Yet we have responsibilities. It is our duty to have hard conversations with our children, no matter what may follow. It is not fun, but we are adults with adult obligations, and sometimes that means we must sacrifice fun. So with trepidation, but fixed in our purpose, we grit our teeth and ask tough questions of the rising generation.

That is why I asked my son earlier this week which team he hopes will win this year’s NCAA Final Four.

To be sure, I was afraid to ask. This is because, in my heart, I know there is only one right answer. In fact, it’s not even a close question. But what if my son were to answer “Michigan” (sorry Judge Edwards and Judge Tatel)? I would have to acknowledge my failure as a father. Or even worse, what if he said “Kansas” (sorry Judge Srinivasan)? In many respects, even “Villanova” would be a dagger. No, unless one is a close personal family member of a starter on one of those other teams, the only sensible answer is “Loyola Chicago.

Why? Because Loyola Chicago is the underdog!* Sure, it had success in the distant past, but no one thinks Loyola Chicago is a “blue blood” program. And the first rule of college basketball fandom is that when an underdog plays a blue blood, the right thing to do is root for the underdog.

This lesson hit home for me on March 11, 1999. I went to the NCAA Tournament to see the mighty Quakers of Pennsylvania — as Judge Randolph can attest, the true basketball kings of the Ivy League (sorry Chief Judge Garland, Judge Rogers, Judge Kavanaugh, Judge Millett, Judge Pillard, Judge Wilkins, Judge Katsas, Judge Silberman, Judge Williams, and Judge Ginsburg) — play the Florida Gators. Each ticket, however, was for two games. The other game on the ticket was No. 14 Weber State versus No. 3 North Carolina. Going in, essentially no one picked the Weber State Wildcats to even have a chance against the Tar Heels. But then Harold Arceneaux started making shot after shot and the assembly realized that Weber State might actually pull it off. At that point, the entire crowd turned against the Tar Heels (sorry Judge Sentelle). Whenever North Carolina scored, the crowd recoiled; whenever Weber State — really, Harold Arceneaux — scored, the crowd roared. And then came a final minute that must be seen to be believed. When Weber State knocked off North Carolina, the crowd could hardly be contained. I still smile thinking about it.

The truth is that when Duke — perhaps the bluest of the blue bloods — loses, the entire nation cheers (sorry Judge Henderson). And when a top seed stumbles against a team almost no one has ever heard of (sorry Judge Griffith), everyone celebrates. And this is how it should be. The game is tilted against smaller schools; it is, by design, harder than ever for them to even make the Tournament, especially because the big schools often refuse to play them during the out-of-conference play. Likewise, when the smaller school wins, it often is because it has come up with a different approach to the game; success comes in many flavors but often we focus only on the most visible skills. Underdogs show us that there is more than one way to skin a cat. Finally, it’s fun to see a rare event; if, say, Kansas doesn’t play in the championship game this year, there is a good chance it will soon enough. But Loyola Chicago? You don’t see that everyday. It’s nice to see an underdog win.

This insight applies to law too. One reason we should better publicize how clerk hiring really works is because there is talent everywhere; when competing for limited slots, everyone at least should have access to the same information. Likewise, serious arguments deserve serious consideration, regardless of their source. To be sure, even when underdogs are involved, judges shouldn’t shade their substantive analysis or unfairly prejudice the other side. As then-Judge John Roberts wisely explained, “if the Constitution says that the little guy should win, the little guy is going to win in court before me. But if the Constitution says that the big guy should win, well, then, the big guy is going to win, because my obligation is to the Constitution.” Judges, however, certainly should strive to follow the law without favoritism or bias. Indeed, that is their oath: “I will administer justice without respect to persons, and do equal right to the poor and to the rich.” And why do judges wear plain black robes? “[T]o remind themselves that judicial review requires modesty and that uniformity.”

The D.C. Circuit decided four cases this week.

In United States v. Gary Cooper (“not that one“), Judge Henderson (joined by Judges Tatel and Williams) addressed Cooper’s conviction “for his role in a scheme to steal from a labor union.” Cooper argued, among other points, that sentencing was faulty because two of the counts against him were “multiplicitous.” The Court concluded that the charges were indeed “multiplicitous” and remanded to the district court to determine which count would be vacated. The Court also found that the district court incorrectly applied the Sentencing Guidelines and “remind[ed] the district court of section 371’s five-year maximum.” In other words, the Court ruled for the “little guy” because it concluded the law was on his side.

Likewise, in Publi-Inversiones de Puerto v. NLRB, Judge Silberman (joined by Chief Judge Garland and Judge Sentelle) denied a petition for review. It seems that “Publi-Inversiones Puerto Rico, Inc. (‘PI’), purchased the equipment and intellectual property of a bankrupt newspaper in a Chapter 7 asset sale” and “subsequently hired some of the bankrupt company’s employees and began to publish its own version of the newspaper.” In so doing, did PI become a “successor employer” that had to deal with the existing union? Yes. The NLRB doesn’t always prevail before the D.C. Circuit. But where the Court concludes that the NLRB’s decision is supported by substantial evidence, the NLRB almost always wins.

In Citizens Ass’n of Georgetown v. FAA, Judge Tatel (joined by Judges Henderson and Edwards) dismissed a challenge to an FAA decision approving new flight paths out of Ronald Reagan Washington National Airport. Petitioners challenged the decision, “alleging that the FAA failed to comply with environmental and historic preservation laws when assessing the noise impacts of the new departure procedures.” Yet the challenge was too late. The Court dismissed because of petitioners’ “failure to timely file a petition for review given that the agency provided adequate notice of the EA process and never indicated that it might change its position.” (For what it is worth, although Georgetown basketball hasn’t reached the Final Four for a while now, I still consider it to be a pretty elite program — and so root against them when an underdog is involved. Sorry Judge Pillard.)

Finally, in Smith v. Clinton, a per curiam panel (Judges Rogers, Millett, and Pillard) affirmed the district court’s dismissal of “defamation [and] false light” claims against former Secretary Hillary Clinton relating to “public statement about the cause of the [Benghazi] attacks.” The Court also affirmed the “substitution of the United States as the defendant on claims involving [her] email server.” By any measure, the plaintiffs are sympathetic — their children “tragically perished in the September 11, 2012, attacks on United States facilities in Benghazi” — yet the Court concluded that the law was not on their side. For instance, although Clinton contradicted the plaintiffs’ “version of events,” the panel concluded that she “did not state or imply they were lying.”

(By the way, if you are wondering which team my son is rooting for, I’ll say this: I’m far from a perfect father but at least my son roots for the underdog!)

 

* If you need a non-underdog, admin-law reason to root for Loyola Chicago, here’s one: They host the Center for Compliance Studies. I spoke there last month and it is an impressive institution.

 

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About Aaron Nielson

Professor Nielson is an associate professor at Brigham Young University Law School. 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. All views expressed are the author's alone. Follow him on Twitter @Aaron_L_Nielson.

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