D.C. Circuit Review – Reviewed: Welcome to Lancaster

by Aaron Nielson — Friday, June 30, 2017@Aaron_L_Nielson

Here at Notice & Comment, we square our shoulders and address the hard questions. No matter how controversial, no matter how divisive, we do not flinch from this duty. After all, we fill our bellies here with meat, not milk; we put away childish things. The time therefore has come for all right-thinking men and women to ask themselves one of the most weighty questions of the day: Are judicial conferences really worth all the trouble?

This week, the D.C. Circuit hosted its conference in the very lovely city of Lancaster, Pennsylvania. Along with a ballroom’s worth of judges, lawyers, professors, and well-wishers, I was fortunate enough to attend. And I enjoyed it. We took in a baseball game — the Lancaster Barnstormers versus the New Britain Bees.* The Chief Justice stopped by for a chat. We watched a dazzling re-imagination of the oral argument in Wisconsin v. Yoder, with Cate Stetson facing off against Miguel Estrada before “Justices” Griffith, Srinivasan, and Pillard. We learned about how to apply science to criminal justice — though because the formal program was only in the morning, we had plenty of time to do other things too. Chief Justice Garland was a charming master of ceremonies, Judge Sentelle offered a powerful tribute to Justice Scalia, and it was nice to see friends. In short, it was a delightful few days.

But was it worth it? Circuits courts regularly host such conferences; a lot of money — and a lot of time — is spent on them. And they certainly can be fun. But are they cost justified? It does not appear that courts are required to host such conferences — the statute authorizing them uses the word “may” six times. So are they worth the trouble?

The statutory purpose of such conferences is to consider “the business of the courts” and how to “improve[e] the administration of justice.” Perhaps judges in circuits with far-flung members are well served by meeting together in person for such things. But the D.C. Circuit? The judges already all sit in the same building! Likewise, although not explicitly set forth in the statute (although supported by the structure), another purpose is to allow the members of the bar to meet the judges of the court. But, of course, that is not really possible for a court like the D.C. Circuit, in which lawyers and clients from all around the country appear. And if not everyone with business before the Court can realistically come, is it problematic to have the event? True, we can learn things at such events; education is worthwhile. But is it really necessary to travel to a different place to learn things? Why not a webcast? Or — here is a crazy thought — a book?

If one wants to argue that judicial conferences have outstripped their rationale, I’m sympathetic. Even so, I’ll push back a bit. (What can I say? I’m Burkean.) It is important to have events away from the courthouse — especially in places where judges and lawyers can see each other in a different context. Although the benefits of such interaction may not be easily quantified, they are real. It is encouraging to see talented lawyers enjoy a barbeque together, even though, perhaps tomorrow, they will resume their active combat. It is refreshing to watch a roomful of people stand up and applaud Judge Ellen Huvelle for her dedicated public service — whether they always agree with her or not. Whether such benefits, not especially tangible, outweigh the very real costs is a hard question. But I can say this: After attending the Conference, my confidence in the D.C. Circuit is stronger, and I suspect that is true for everyone who attended. And that’s not nothing.

Likewise, no one can say that the D.C. Circuit took the week off. To the contrary, when it comes to the volume and complexity of opinions, this was a remarkably busy week. Indeed, if you want to get to know the D.C. Circuit judges but couldn’t attend the Conference, don’t worry. If read these opinions, you’ll get a pretty good sense of their personalities. Accordingly, I’m going to pull the most telling quotes from each opinion.

Let’s begin.

  • Ahmed Salem Bin Ali Jaber v. United States: Judge Brown (joined by Judges Srinivasan and Pillard) invoked the political question doctrine in a case concerning an alleged mistake when it comes the use of drones to kill suspected enemies of the United States. She also concurred in her own opinion — and her concurrence is provocative. Here is a quote: “[C]ongressional oversight is a joke–and a bad one at that. Anyone who has watched the zeal with which politicians of one party go after the lawyers and advisors of the opposite party following a change of administration can understand why neither the military nor the intelligence agencies puts any trust in congressional oversight committees. They are too big. They complain bitterly that briefings are not sufficiently in-depth to aid them in making good decisions, but when they receive detailed information, they all too often leak like a sieve. Our democracy is broken. We must, however, hope that it is not incurably so. This nation’s reputation for open and measured action is our national birthright; it is a history that ensures our credibility in the international community. The spread of drones cannot be stopped, but the U.S. can still influence how they are used in the global community–including, someday, seeking recourse should our enemies turn these powerful weapons 180 degrees to target our homeland.” Although she is quiet and bookish, after reading that, you have a pretty good sense of what Judge Brown thinks.
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    • Blount v. United States: Judge Griffith (joined by Judge Henderson) denied a certificate of appealability. Here is a quote: “The procedural history of this case is knotted, and the creative theories raised in Blount’s favor only compound that complexity. But the case is complicated, not close. When the knots are untangled and the arguments unpacked, there is no reasonable dispute: Blount’s habeas petition was untimely.” Judge Williams dissented: “My colleagues have determined that no ‘jurists of reason would find . . . debatable’ whether Carlton Blount’s habeas petition is timely. As a jurist formerly known as reasonable, I disagree.” Ha! (That said, I agree with the majority, at least at a conceptual level. “Jurists of reason” should be understood as “jurists deciding reasonably,” i.e., as an inquiry into conduct, not status. How that cuts in this particular case — well, I’ll leave that to you, dear reader.)
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      • Center for Biological Diversity v. EPA: Judge Henderson (joined by Judge Tatel) held that “FIFRA grants the court of appeals exclusive jurisdiction to review an ESA claim that is ‘inextricably intertwined’ with a challenge to a pesticide registration order.” Here is a quote from the majority opinion: “But the Conservation Groups did not object to the EPA’s failure to consult in vacuo; rather, their failure to consult claim was a means to a broader end — a challenge to the validity of the CTP registration order itself.” Judge Randolph dissented: “Because I would dismiss the petition for review [on standing grounds], there is no need to separately address the majority’s flawed remedy of remanding without vacating.” That remedy point is quintessential Randolph — and, frankly, it is not as if his position has no basis. It is at least debatable.
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        • Herron v. Fannie Mae: Judge Sentelle (joined by Judges Brown and Kavanaugh) included this paragraph, which merits a screenshot:
          Sentelle Screenshot.

          I can hear Sentelle chuckling a bit. That’s a very D.C. Circuit thing to include.

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          • ARC Bridges, Inc. v. NLRB: Judge Ginburg (joined by Judge Kavanaugh) stated: “Teso’s statement was made during ongoing bargaining and faults not the employees’ decision to unionize but the Employer’s increased costs, an unavoidable reality affecting its resources. Perhaps the Board thinks employees do not understand that collective bargaining has costs in addition to benefits, but pointing that out is not an appeal to desert the Union.” Judge Tatel dissented: “In stark contrast to the Board, the federal courts, composed of generalist judges, have no comparable expertise, experience, or accountability when it comes to labor matters. For this reason, once a reviewing court concludes that the Board is operating within its delegated authority, it affords the Board great leeway.”
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            • Masters Pharmaceutical, Inc. v. DEA: Judge Pillard (joined by Judges Srinivasan and Edwards) opened her opinion this way: “Breakthroughs in the development of prescription opioid painkillers have vastly increased their popularity. But that popularity has taken a toll. Opioids are heavily addictive and often lethal in high doses. The Drug Enforcement Administration (DEA or agency) has therefore listed opioids such as hydrocodone and oxycodone as controlled substances so that DEA can monitor and restrict their sale. Over the past two decades, DEA has been battling a steep increase in prescription opioid abuse — a problem that DEA views as an ‘epidemic.'” As you might guess from that introduction, the drug company challenging the agency’s decision to revoke its registration lost.
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              • Seminole Electric Cooperative v. FERC: Judge Griffith (joined by Chief Judge Garland and Judge Kavanaugh) included this footnote:

                Griffith Screenshot

                I’ll let my FERC friends ponder on that one.

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                • Ames v. DHS: Judge Kavanaugh (joined by Judges Henderson and Sentelle) issued another wonderfully short opinion: “We have considered all of Ames’s arguments on appeal. We affirm the judgment of the District Court.” (This actually is a pretty fun case — give it a read. In short, it’s about whether one agency can share unflattering information about a former employee with a new agency. It can.)
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                  • Marcin v. Reliance Standard Life Insurance Company: Judge Wilkins (joined by Judges Tatel and Pillard) was tasked with a very technical opinion about insurance. I don’t think this quote offers that much insight into Wilkins, but it does sum up the case pretty well: “While we agree with Reliance that a finding of Total Disability was a prerequisite to the receipt of benefits, we are mindful of our de novo standard of review for summary judgment. Pursuant to this standard, we may affirm the District Court on any ground, and elect to do so on the basis that Ms. Marcin proved Partial Disability. According to the express terms of the Plan, Partial Disability is equivalent to Total Disability, and we find that Ms. Marcin was Totally Disabled within the relevant period.”
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                    And finally,

                    • Hensel Phelps Construction Co v. Cooper Carry Inc.: Judge Brown (joined by Judges Pillard and Silberman) also decided a tricky contract case. Here is the punch line: “We hold that the statute of limitations has run on Hensel Phelps’s breach-of-contract claim, and the terms of the indemnification clause do not cover first-party claims.” If you want to know more, read the opinion.
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                      After deciding all of those cases, the D.C. Circuit deserved a nice trip to Pennsylvania.

                      * Watch out! Fly balls are dangerous (as a judge or two almost found out).

                       

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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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2 thoughts on “D.C. Circuit Review – Reviewed: Welcome to Lancaster

  1. daniel h borinsky

    Could future conferences to be publicized in NOTICE & COMMENT as soon as they are announced so that readers can decide whether or not to attend?

    Reply
  2. Jeff Smithson

    Why not let any member of the D.C. Circuit bar attend the judicial conference? For example, I once briefed (and lost!) a case in the Tenth Circuit, a decade ago, and I still get invitations to their judicial conference. No reason to limit the D.C. Circuit’s conference to a group of self-selected elites. Also, consider holding it here in D.C., to make it easier (and cheaper) to attend.

    Reply

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