I have a confession: I don’t really care about this year’s Super Bowl. Atlanta is a lovely place — I’ve been there once — but I have literally no opinion about the Atlanta Falcons. And although I lived in Massachusetts for a time, I prefer not to think about it.* But one thing about the Super Bowl has caught my attention: President George H.W. Bush is going to toss the coin. Now I love a good coin toss; it is exciting to see chance in action. And I’m a fan of President Bush — especially because of his nominations to the D.C. Circuit (more on that below). So this week’s post is dedicated to both.

To begin, unless my Westlaw skills have atrophied, the phrase “coin toss” (or “coin tosses”) has been used in six D.C. Circuit or Supreme Court opinions. One even is about football (well, kind of; it’s also about Medicare).

The first reference is from 1993. In Nixon v. United States, which concerns whether courts can review impeachment proceedings, Justice Souter concurred in the judgment to say ask what should happen “[i]f the Senate were to act in a manner seriously threatening the integrity of its results, convicting, say, upon a coin toss, or upon a summary determination that an officer of the United States was simply ‘a bad guy'”?

Next comes PDK Labs v. DEA — a 2006 D.C. Circuit opinion (and part two of a Chevron Step One-and-a-Half case). Judge Tatel used the phrase thusly:

Even assuming the standards for issuing warning letters are arbitrary, that does not automatically invalidate the suspension orders. To succeed on such a claim, PDK must identify exactly how defects in the standards for issuing warning letters tainted the suspension orders. A hypothetical shows why. Suppose it were DEA’s policy, upon discovering a company’s drug product at a methamphetamine lab, to send warning letters only if a coin toss came up heads. The arbitrariness of that policy would do nothing to undermine the evidence that the company’s product had been diverted to clandestine methamphetamine labs. Likewise, because PDK nowhere argues that DEA’s allegedly arbitrary issuance of warning letters impeaches the evidence of rampant product diversion — indeed, PDK acknowledges the diversion — any possible arbitrariness in the process for sending warning letters is of no moment.

In 2007, Justice Souter used the phrase again in Limtiaco v. Camacho, a case concerning the Organic Act of Guam. He said this: “If I could not go beyond statutory text and the sources relied upon by the Court, a coin toss would be my only way to judgment. But I look to congressional purpose, which points to appraised value as the meaning of the term, leaving me in respectful dissent.”

Fast forward to 2008. In Engquist v. Oregon Department of Agriculture, Justice Stevens wrote:

The majority asserts that public-employment decisions should be carved out of our equal protection jurisprudence because employment decisions (as opposed to, for example, zoning decisions) are inherently discretionary. I agree that employers must be free to exercise discretionary authority. But there is a clear distinction between an exercise of discretion and an arbitrary decision. A discretionary decision represents a choice of one among two or more rational alternatives. See 1 H. Hart & A. Sacks, The Legal Process: Basic Problems in the Making and Application of Law 162 (Tent. ed.1958) (defining discretion as “the power to choose between two or more courses of action each of which is thought of as permissible”). The choice may be mistaken or unwise without being irrational. If the arguments favoring each alternative are closely balanced, the need to make a choice may justify using a coin toss as a tiebreaker. Moreover, the Equal Protection Clause proscribes arbitrary decisions—decisions unsupported by any rational basis—not unwise ones. Accordingly, a discretionary decision with any “reasonably conceivable” rational justification will not support an equal protection claim; only a truly arbitrary one will. There is therefore no need to create an exception for the public-employment context in order to prevent these discretionary decisions from giving rise equal protection claims.

In 2011, Judge Kavanaugh mentioned a coin toss too — in the context of football. Specifically, in Northeast Hospital v. Sebelius, he asked the reader to “consider the NFL’s rules on the coin toss: If you win the toss, you are entitled to choose possession or which goal to defend, but not both. So it is with Part A and Part C of Medicare.“

And in 2015, Judge Brown — as perhaps only she can — used the phrase in United States v. Emer: “In an episode of the iconic 1990s television show Friends, Joey Tribbiani tries to dissuade Rachel Green from moving to Paris. Joey asks Rachel to flip a coin. If he wins the coin flip, she must agree to stay. Rachel flips the coin; Joey loses. When later recounting the story to Ross Gellar, a befuddled Joey says, ‘[w]ho loses fifty-seven coin tosses in a row?’ Friends: The One with Rachel’s Going Away Party (NBC television broadcast Apr. 29, 2004). Before Ross can answer, Joey explains Rachel’s rules: ‘Heads, she wins; tails, I lose.'”

Now onto President George H.W. Bush, who saw three of his nominees to the D.C. Circuit confirmed: Judge Karen Henderson, Judge Ray Randolph, and Judge (now Justice) Clarence Thomas. This week, while reading the D.C. Circuit’s cases, I thought of these three judges.

Consider Continental Resources, Inc. v. Jewell, authored by Judge Randolph (and joined by Judges Brown and Srinivasan). This is a classic “Judge Randolph” opinion — it is both analytically and rhetorically sharp. As he explained, “[t]he question on appeal is whether, as the district court ruled, Continental filed its action more than 180 days after its ‘receipt of notice’ of Interior’s ‘final decision.’” Randolph concluded that the district court erred:

So when did Continental receive notice of the Secretary’s “deemed final” decision? The date of notice could not possibly have been earlier than the ruling of the Board of Land Appeals on July 29, 2013. Until then neither Continental nor Interior could know what date the Board would designate as the date of the Secretary’s final decision. … Needless to say, one cannot be on notice of final agency action while the date of that action has not yet been determined.

…

The district court decided that the 180-day period ran from June 17, 2013, the date of the Secretary’s deemed-final decision. But as we have pointed out, § 1724(j) provides that the 180-day period runs not from the date of the final decision, but from the lessee’s “receipt of notice” of the final decision. To explain the discrepancy, the district court stated that “although the plaintiff did not receive notice of final agency action until July 29, 2013, the plaintiff received notice by operation of law that the Secretary had not issued a decision within the 33 month period.” “Operation of law”? What “law”? The “law” here is § 1724(h)’s 33-month provision and § 1724(j), pursuant to which the 180-day period runs “from receipt of notice.” If the district court believed that § 1724(h) somehow triggered § 1724(j), it offered no basis for that belief. It instead relied on the “operation of law,” and thereby read § 1724(j)’s “receipt of notice” requirement out of the statute.

Next consider NLRB v. Tito Contractors, authored by Judge Henderson (and joined by Judges Ginsburg and Rogers). The panel ruled against the NLRB because “the Board failed to consider evidence pointing to the absence of the required ‘community of interest’ among [the employees].” And then Henderson concurred with her own opinion to let the NLRB know what it has to do to avoid such remands:

I write separately to give a word to the wise: although the Board’s order, composed of two sentences of text and a footnote analysis of the unit-appropriateness issue (which analysis also acknowledges its dissenting colleague’s view) is apparently standard operating procedure at this stage, the Board will continue to run the risk of a court-imposed re-do if it persists — especially when, en route to the Board’s review, the [Hearing Officer], inter alia, likewise fails to consider adequately the offered proof. It might be better served by rethinking its drumhead procedure.

(Judge Rogers concurred to suggest that perhaps the NLRB could win on remand despite some of the language in the majority opinion. Rogers twice used “but see” — once in reference to the majority opinion and once in reference to Judge Henderson’s concurrence.)

And finally, consider Citizens for Responsibility and Ethics in Washington v. DOJ. Here, Judge Tatel (joined by Judges Wilkins and Sentelle) addressed whether the Office of Legal Counsel must comply with the “‘reading-room’ provision of the Freedom of Information Act.” The Court concluded that the case should not have been brought under the Administrative Procedure Act because “appellant has an adequate remedy under FOIA.” Why did this opinion make me think of Justice Thomas? Because of its lengthy historical introduction:

“For decades, [the Office of Legal Counsel (OLC)] has been the most significant centralized source of legal advice within the Executive Branch.” Trevor W. Morrison, Stare Decisis in the Office of Legal Counsel, 110 Colum. L. Rev. 1448, 1451 (2010). Indeed, executive-branch officials seek OLC’s opinion on some of the weightiest matters in our public life: from the president’s authority to direct the use of military force without congressional approval, to the standards governing military interrogation of “alien unlawful combatants,” to the president’s power to institute a blockade of Cuba. Office of Legal Counsel, Authority to Use Military Force in Libya (Apr. 1, 2011); Office of Legal Counsel, Military Interrogation of Alien Unlawful Combatants Held Outside the United States (Mar. 14, 2003); Office of Legal Counsel, Authority of the President to Blockade Cuba (Jan. 25, 1961).

OLC’s authority to render advice is, in some sense, nearly as old as the Republic itself. In the Judiciary Act of 1789, Congress authorized the Attorney General “to give his advice and opinion upon questions of law when required by the President of the United States, or when requested by the heads of any of the departments, touching any matters that may concern their departments.” Act of Sept. 24, 1789, ch. 20, § 35, 1 Stat. 73, 93; see 28 U.S.C. §§ 511-513 (codified as amended). The Attorney General has, in turn, delegated to OLC authority to “[p]repar[e] the formal opinions of the Attorney General; render[] informal opinions and legal advice to the various agencies of the Government; and assist[] the Attorney General in the performance of his functions as legal adviser to the President.” 28 C.F.R. § 0.25; see Luther A. Huston, The Department of Justice 61 (1967) (recounting the formation of OLC).

I know, I know, Justice Thomas is not the only judge who opens his opinions with history lessons. But he likes to do it. So there you go — when you watch President Bush toss the coin at the Super Bowl, remember the D.C. Circuit!

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* Why not? Well, I went to law school there, so when I think of New England, my mind recalls those hours upon hours I spent in the library. Law students, here is some friendly advice: Get out more.

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