D.C. Circuit Review – Reviewed: Who Says August is a Quiet Month?

by Aaron Nielson — Friday, Aug. 4, 2017@Aaron_L_Nielson

It is said that August is a “quiet” month in Washington, D.C. And in many ways that is true. The Supreme Court is not in session. Congress will recess.* The President is on vacation. And because the nation’s capital is miserable in August, weather-wise, many of the locals get out of town.

The D.C. Circuit, however, does not slow down in August. Instead, lots of big cases — controversial issues, cases with dissents, etc. — are decided. This week illustrates the point. Here is an intimidating set of cases:

List of cases Week of July 31

Indeed, there are so many big cases, it is hard to know where to begin. So why not start with the cases with dissents?

Perhaps the most important case of the week (and that is debatable, as you’ll see) is United States v. Slatten — the “Blackwater” case. This case, including the dissents, is 119 pages, so he’s a very quick summary from the per curiam panel (Judges Henderson, Rogers, and Brown):

Nicholas Slatten, Paul Slough, Evan Liberty and Dustin Heard (“defendants”) were contractors with Blackwater Worldwide Security (“Blackwater”), which in 2007 was providing security services to the United States State Department in Iraq. As a result of Baghdad shootings that injured or killed at least 31 Iraqi civilians, Slough, Liberty and Heard were convicted by a jury of voluntary manslaughter, attempted manslaughter and using and discharging a firearm in relation to a crime of violence (or aiding-and-abetting the commission of those crimes); Slatten was convicted of first-degree murder. They now challenge their convictions on jurisdictional, procedural and several substantive grounds.

For the following reasons, we hold that the Court has jurisdiction pursuant to the Military Extraterritorial Jurisdiction Act (“MEJA”), 18 U.S.C. §§ 3261 et seq., and that venue in the District of Columbia was proper. We further hold that the district court did not abuse its discretion in denying the defendants’ motion for a new trial based on post-trial statements of a government witness. Regarding the challenges to the sufficiency of the evidence, we hold that the evidence was sufficient as to all except one of Liberty’s attempted manslaughter convictions, and that the evidence was sufficient as to Slatten. We further hold that Slatten’s indictment charging first-degree murder did not constitute vindictive prosecution.

The Court concludes, however, that statements made by a co-defendant shortly following the attack, statements asserting that he—not Slatten—fired the first shots on the day in question, were admissible. Accordingly, the Court concludes that the district court abused its discretion in denying Slatten’s motion to sever his trial from that of his co-defendants and therefore vacates his conviction and remands for a new trial. Moreover, the Court concludes that imposition of the mandatory thirty-year minimum under 18 U.S.C. § 924(c), as applied here, violates the Eighth Amendment prohibition against cruel and unusual punishment, a holding from which Judge Rogers dissents. The Court therefore remands for the resentencing of Slough, Liberty and Heard.

The constitutional holding, no doubt, will get a lot of attention. Here is the some of the Court’s analysis: “In reaching this conclusion, we by no means intend to minimize the carnage attributable to Slough, Heard and Liberty’s actions. Their poor judgments resulted in the deaths of many innocent people. What happened in Nisur Square defies civilized description. However, none of the penological justifications our society relies upon when sentencing criminals—incapacitation, rehabilitation, retribution, or deterrence—are properly served here by a sentence whose length is determined solely based on the type of weapon used during the crime.” Judge Rogers dissented from it: “Although it is possible to imagine circumstances in which a thirty-year minimum sentence for a private security guard working in a war zone would approach the outer bounds of constitutionality under the Eighth Amendment, this is not that case. The jury rejected these defendants’ claim that they fired in self-defense, and far more of their fellow security guards chose not to fire their weapons at all that day. Yet as my colleagues apparently see it, Congress should have included an exception for all such military contractor employees, or, rather, it would have included such an exception if it had only considered the issue. Perhaps so, but that is not the question before us. The district court judge made an individualized assessment of an appropriate sentencing package for each of these defendants, and the result is not disproportionate to the defendants’ crimes, let alone grossly, unconstitutionally disproportionate.”

Judge Brown also dissented, but for a very different reason. She does not think there was jurisdiction. I’m not going to delve into the text — there are too many cases this week. But here is a taste of Judge Brown’s analysis: “I believe Congress said what it meant and meant what it said, and I would not dismiss the distinctions made in the text in favor of aspirational goals set forth by the statute’s sponsors. See Maj. Op. at 9 (citing Senator Schumer’s floor statement declaring MEJA was amended to address ‘a dangerous loophole in our criminal law that would have allowed civilian contractors who do the crime to escape doing the time’).”

(There is a lot more going on this case; Judge Henderson concurred too, for instance, so all three judges wrote separately.)

Next, consider NLRB v. CNN — another high-profile case. CNN — the cable station — once used “outside contractors to provide technicians to operate the electronic equipment at its Washington, D.C. and New York City bureaus,” but then “changed that longstanding arrangement, terminating its latest contracts and hiring a new in-house workforce.” The NLRB concluded that “CNN’s replacement of its unionized contractor with a nonunion, in-house workforce violated the National Labor Relations Act in several respects.” Chief Judge Garland, joined by Judge Pillard, ruled for CNN on one issue but against it on others. The Court concluded that the Board erred by treating CNN as a “joint employer” of the technicians all along. This is not because the Board necessarily lacks authority to make such determination, the Court stressed, but because it had adequately explained it. The Court, however, upheld other violations — including that CNN acted out of “anti-union animus.” Indeed, “the Board pointed to statements by four CNN supervisors that provided direct evidence of the employer’s overt, anti-union bias.” Judge Kavanaugh dissented:

The Board’s conclusion that CNN’s termination of its contracts with TVS was unlawful in turn rested on the Board’s conclusion that CNN and TVS were joint employers. As noted above, however, CNN and TVS were not joint employers under the “direct and immediate control” test, and we are remanding that issue back to the Board. It follows that we should also remand the successor-employer issue. The Board’s jaundiced view of CNN’s termination of the TVS contracts clearly infected the Board’s view of CNN’s subsequent hiring decisions with respect to the former TVS employees. If the Board on remand were to find that the termination was lawful, the Board would then have to assess whether CNN’s lawful termination of the TVS contracts could somehow still be considered evidence of CNN’s discrimination against the former TVS employees in its hiring decisions. The Board has not yet conducted that analysis. Therefore, I believe we must remand the successor-employer issue.

The majority opinion disagrees, in part because it does not believe that the Board’s finding that CNN unlawfully terminated its contracts with TVS was necessary to the Board’s successor-employer conclusion. What we know on this record, however, is that the Board in fact relied on CNN’s purportedly unlawful termination of its TVS contracts as one basis for its conclusion that CNN was a successor employer. I do not think we can airbrush that part of the Board’s analysis out of the picture. See SEC v. Chenery Corp., 318 U.S. 80, 87-88 (1943).

(There is a lot more going on this case too. Alas. I have to move on.)

Next, consider United Source One, Inc. v. Department of Agriculture. Here, Judge Henderson (joined by Judge Kavanaugh) ruled for the agency in a case about meat packaging. “If the FSIS determines that a meat product’s labeling is ‘false or misleading in any particular,’ it can prohibit its use. Pursuant to that authority, the FSIS determined that the packaging used by United Source One, Inc. (‘US1’), a meat exporter, was misbranded because its label included the FSIS inspection identification number of its supplier without the latter’s permission.” From the Court’s opinion, here are the relevant labels:

Meat Label Marks

The panel concluded that “the FSIS’s determination that US1’s labeling is misleading is neither arbitrary nor capricious. In his final determination, the Administrator noted that the FSIS permits a re-boxer to use its supplier’s establishment number only if the supplier consents to the practice,” and the agency did not impose a “new legal obligation on US1; instead, it enforce[d] a preexisting prohibition of misleading labeling set forth in the FMIA and implementing regulations.” Judge Sentelle dissented, challenging whether there is any rule at all: “It may well be that the Service is correct that such a rule would be a good one. But that does not mean that it exists or that the Service has the authority to create it without following the process mandated by the Administrative Procedure Act. It seems to me a giant step in the progress of the administrative state to permit agencies to enforce regulations that do not exist against regulated entities.” To which the majority responded: “Regarding the dissenting opinion, we and our dissenting colleague are like ships passing in the night. Of course he is right that a rule must be preceded by notice and comment and that, if that procedure is leapfrogged, the rule is ultra vires and cannot be enforced. No argument there. But we are not dealing with an unenforceable rule—the FSIS determined that the properly promulgated (and unchallenged) regulation prohibiting misleading and misbranded labeling was violated by US1’s failure to follow Directive 12,600.1. That failure produced a false label.”

And then we have Price v. Department of Justice. Here is how Judge Griffith, joined by Judge Tatel, explained his opinion: “In this appeal, we are asked to decide whether the government may deny a criminal defendant’s request under the Freedom of Information Act for records related to his case on the ground that he waived his right to seek that information as part of a plea agreement. In this case the answer is no, because the government has failed to identify any legitimate criminal-justice interest served by the waiver.” Judge Brown dissented: “The Court casts the Supreme Court’s guilty-plea-waiver standards aside while fashioning a newfangled compass from one of Justice O’Connor’s concurring opinions. Citing Town of Newton v. Rumery, 480 U.S. 386, 401 (1987) (O’Connor, J., concurring), the Court finds Price’s waiver invalid because the Government failed to show ‘any legitimate criminal-justice interest’ behind it. Op. 9. But Justice O’Connor’s dicta is not the law. No other Member of the Supreme Court joined Justice O’Connor’s concurrence. No party before us argued Justice O’Connor’s dicta about ‘legitimate criminal-justice’ interests should control. Indeed, the concurrence has never been used to invalidate a guilty-plea waiver. This should come as no surprise, as Rumery is not even about guilty pleas.”

(As an aside, this case was argued by a student — who no doubt is very excited today.)

Those are the cases with dissents. Now the unanimous cases.

In MetLife, Inc., v. Financial Stability Oversight Council, Chief Judge Garland (joined by Judges Kavanaugh and Srinivasan) stressed the importance of public access to judicial records. The facts are complicated, but, more or less, MetLife challenged the decision by the FSOC to put it under “enhanced supervision.” Many of the documents from the case were sealed or redacted. Better Markets, a public interest group, seeks to have the documents released. The district court declined to unseal the documents, and Better Markets appealed. As framed by the D.C. Circuit, “the underlying question in this case is whether the Dodd-Frank Act abrogates the common-law right of public access to judicial records.” The Court ruled that “the right of public access is a fundamental element of the rule of law, important to maintaining the integrity and legitimacy of an independent Judicial Branch. Although the right is not absolute, there is a strong presumption in its favor, which courts must weigh against any competing interests.”

In Humane Society v. Zinke, Judge Millett (joined by Judges Griffith and Pillard) ruled that the Fish and Wildlife Service’s attempt to delist a segment of the gray wolf population from the endangered species list fell short. The Service promulgated a rule that “revised the boundaries of the Minnesota gray wolf population to include the wolves in all or portions of eight other states.” The rule also delisted that distinct population segment. A central dispute is whether the Endangered Species Act allows the Service to “carve out of an already-listed species a ‘distinct population segment’ to then delist that segment.” The court conducted a Chevron analysis, first finding that the statute did not itself answer the question. At step two it found the Service’s interpretation was a reasonable. Yet although the interpretation was reasonable, the court determined the Service’s resulting rule was arbitrary and capricious because it “left entirely unexplained how the remaining wolves’ endangered status would continue.” (As with essentially all of the cases this week, this is an incomplete version of the story.)

In Fred Meyer Stores Inc. v. NLRB, Judge Brown (joined by Judges Sentelle and Randolph) stated that the Board’s determinations that Fred Meyer had engaged in unfair labor practices were “more disingenuous than dispositive” and a “complete failure to reasonably reflect upon the information contained in the record and grapple with the contrary evidence.” The incident at issue occurred when union representatives entered the store for a “showdown.” The union broke from normal practices and sent eight representatives instead of one or two, and instead of checking in with management, they started speaking with employees. Fred Meyer had prepared for the “showdown” and reminded the representatives of the terms of their Access Agreement. When the discussion got heated, the store manager asked the representatives to leave, eventually calling the police. The Court examined two “particularly outrageous” determinations by the Board. First, the Board determined that the parties did not have a clearly defined practice regarding how many union representatives could be in the store at a certain time. But the ALJ’s findings were to the contrary. Second, the Board wrongly recounted the ALJ’s findings about how the conversation occurred. The Court further disagreed with the Board’s decision that Fred Meyer had some sort of duty to prevent the representatives from being arrested. The court reasoned that because the representatives had broken with prior practice and then failed to comply with officers’ commands, any arrest was not Fred Meyer’s fault. (There is more going on this case, but again, you get the gist.)

Next, in Free Access & Broadcast Telememedia v. FCC (thankfully, a short opinion), Judge Griffith (joined by Judges Henderson and Srinivasan) dismissed a petition by several low-power television stations to review orders of the FCC. The orders stemmed from a 2014 order “to make more room on the electromagnetic spectrum for mobile broadband (wireless network) providers.” Here, the LPTVs’ “real objection” is to the 2014 order, and the Court “will not review refusals to reconsider matters settled in an earlier order to which direct challenges would now be time-barred.” The Court also ruled, among other things, that it lacks jurisdiction over the LPTV stations final claim that the orders violate the Regulatory Flexibility Act because they never raised the objection with the FCC.

In L. Xia v. Tillerson, Judge Pillard (joined by Judges Edwards and Sentelle) affirmed in part and remanded in part with a recommendation to consolidate and transfer the remanded claims to a proper venue. Here, the government revoked naturalization certificates and passports, claiming they were issued fraudulently by a government employee. The plaintiffs objected. As you might imagine, that resulted in litigation. Here is the summary:

We affirm the district court’s judgment insofar as it dismissed the due process and INA claims that plaintiffs are entitled to a judicial determination of the validity of the cancellations of their certificates of naturalization and passports. We also affirm the district court’s dismissal of the claims under 42 U.S.C. §§ 1981 and 1983 on the ground that the complaint fails plausibly to allege ethnicity discrimination. And we affirm the district court’s decision that the section 1503 claims may only be resolved in the districts in which the plaintiffs reside. See 28 U.S.C. §§ 1406, 1631.

We reverse the district court’s dismissal of the APA claims, including the district court’s associated conclusion that the 8 U.S.C. § 1503 claims of all plaintiffs except for Lihong Xia are barred by a failure to exhaust; no exhaustion bar applies here.

Plaintiffs say that they are stranded. With no certificates of naturalization and no passports, they cannot fully exercise the rights and privileges of U.S. citizenship. Yet it appears that, at least unless and until they are denaturalized here, the Chinese government will not reinstate their Chinese citizenship. According to plaintiffs, that renders them effectively stateless. But assuming, as discussed above, that they were naturalized, plaintiffs have not yet been denaturalized. The government has a strong interest in promptly clarifying the plaintiffs’ status, and where grounds for denaturalization appear, the government should initiate denaturalization proceedings under 8 U.S.C. § 1451(a). Or the plaintiffs themselves may trigger a resolution of their dilemma under 8 U.S.C. § 1503 by pursuing, in the appropriate venues, their claims that they have been denied “a right or privilege as a national of the United States,” and thereby put the government to its proof that they are not citizens. 8 U.S.C. § 1503(a).

(Note: If you study or practice immigration law, read this opinion.)

In Attias v. CareFirst, Judge Griffith (joined by Judges Tatel and Millett) ruled that plaintiffs in a putative class action had standing and could move forward. CareFirst, it seems, experienced a data breach that compromised personal information. Is a suit permissible? For standing purposes, the question turns on whether the increased risk of identity theft is sufficiently imminent. The district court said that was not because the complaint did not allege that social security and credit card numbers were taken. The court disagreed, ruling that the complaint in fact did allege such numbers were taken. Further, the court ruled even if the numbers were not taken, the hackers’ access to other data also subjects the plaintiffs to a “substantial risk of identity fraud.”

Next, we have American Wild Horse Preservation Campaign v. Perdue. Judge Millett (joined by Judges Tatel and Wilkins) addressed “wild horses in the Devil’s Garden section of the Modoc National Forest.” (Devil’s Garden is an eye-catching name.) Here is the summary:

Since 1975, the United States Forest Service has protected and managed wild horses in the Devil’s Garden section of the Modoc National Forest in Northern California. That wild horse territory originally consisted of two separate tracts of land of roughly 236,000 acres. But at some point in the 1980s, a Forest Service map added in an approximately 23,000 acre tract of land known as the Middle Section and, in so doing, linked the two territories into a larger and unified wild horse territory of approximately 258,000 acres. For more than two decades, the Service continued to describe the territory as a single contiguous area and to manage wild horses in the Middle Section.

In 2013, the Forest Service publicly acknowledged the cartographic confusion, declared the expansion reflected in the 1980s map to be an administrative error, and without further analysis redrew the wild horse territory’s lines to exclude the Middle Section and to revert to two disjoined tracts of land. The American Wild Horse Preservation Campaign and other plaintiffs filed suit alleging that the Service’s revamping of the territorial lines violated numerous federal laws. We agree. A 23,000 acre tract of land and two decades of agency management cannot be swept under the rug as a mere administrative mistake. We accordingly reverse in part and remand for the Service to address rather than to ignore the relevant history.

Here is the key part of the analysis:

The Service tries to shrug off its inclusion of the Middle Section in the Wild Horse Territory as some sort of inconsequential and passing “administrative error,” as though that label nullifies any agency duty to reasonably explain its about-face. But there is no “oops” exception to the duty of federal agencies to engage in reasoned decisionmaking. Accordingly, the Service’s decision runs aground on both the facts and the law.

As a matter of factual reality, this case involves far more than an errant map. The Service’s inclusion of the Middle Section in the Wild Horse Territory is well documented in the administrative record, and it was reconfirmed repeatedly by two decades of agency practice and official pronouncements.

In Oberthur Technologies of America Corp v. NLRB, Chief Judge Garland (joined by Judges Griffith and Edwards) upheld an NLRB decision. This opinion is pretty fact-bound, but this is a quotable line: “Oberthur attempts to justify the freeze on the ground that the ‘discretionary’ nature of its wage benefit programs made a freeze necessary. But while Oberthur may have exercised discretion over the initial granting of the benefits, substantial evidence supports the NLRB’s finding that Oberthur had already approved bonuses and scheduled wage increases for several employees prior to the freeze.” Wait! That’s not quotable. Yeah, this whole case is tied to the facts.

At last we come to Aguiar v. DEA. Chief Judge Garland’s introduction (joined by Judges ) summarizes this case well:

After he was convicted of narcotics offenses, Stephen Aguiar filed several Freedom of Information Act requests for materials relating to his investigation by the Drug Enforcement Administration (DEA). The DEA denied two of the requests, saying that software Aguiar identified was not an agency record and that copies of administrative subpoenas he wanted could not be located. The district court granted the DEA’s motion for summary judgment as to both requests. Because the government’s declarations were insufficient to support summary judgment in its favor, we vacate the judgment and remand for further proceedings.

Chief Garland this time did include a quotable line: “Presented with these seven inconsistent descriptions, we do not know how to square the heptagon.”

What a week!

* Though not a “recess” under the Constitution.

 

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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 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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