D.C. Circuit Review – Reviewed: A “Two for One” Special
Fall is here; we know this because the D.C. Circuit did not issue any opinions this week. Because I expected no opinions (this happens every fall!) — and, of course, because of Labor Day — I figured this week would be a good one to evaluate how the NLRB has done so far this year. After all, when things are slow, why not engage in a bit of review? So I asked my library to do the research (they’re wonderful). But then came yesterday’s news: Greg Katsas has been nominated to the D.C. Circuit. Accordingly, this week will be a “two for one” special: let’s cover both topics.*
First, how did the NLRB do between Labor Day 2016 and Labor Day 2017? Here are the stats from the good folks in the BYU Law Library:
- There were 43 NLRB cases (including published and unpublished).
- The agency lost in whole or in part in 16 of them. (Not all of the other cases are wins; some are voluntary dismissals.) Here they are, with the majority opinion author: Midwest Division-MMC, LLC v. NLRB (Judge Srinivasan); NLRB v. CNN America, Inc. (Chief Judge Garland); Fred Meyer Stores, Inc. v. NLRB (Judge Brown); Bellagio, LLC v. NLRB (Judge Henderson); Arc Bridges, Inc. v. NLRB (Judge Ginsburg); King Soopers, Inc. v. NLRB (Judge Edwards); Hawaiian Dredging Construction Company, Inc. v. NLRB (Judge Rogers); Bellagio, LLC v. NLRB (Judge Edwards); Banner Health System v. NLRB (Judge Pillard); Stewart v. NLRB (Judge Srinivasan); ABM Onsite Services-West, Inc. v. NLRB (Judge Griffith); Scomas of Sausalito, LLC v. NLRB (Judge Henderson); FedEx Home Delivery v. NLRB (Judge Millett); NLRB v. Tito Contractors, Inc. (Judge Henderson); Heartland Plymouth Court MI, LLC v. NLRB (Judge Brown); Consolidated Communications, Inc. v. NLRB (Judge Millett).
- Nine decisions in which the NLRB lost in whole or in part prompted either a dissent or a concurrence: Midwest Division-MMC, LLC v. NLRB (Judge Kavanaugh dissenting in part); NLRB v. CNN America, Inc. (Judge Kavanaugh dissenting in part); Bellagio, LLC v. NLRB (Judge Srinivasan dissenting in part); Arc Bridges, Inc. v. NLRB (Judge Tatel dissenting); Stewart v. NLRB (Judge Silberman dissenting in part); Scomas of Sausalito, LLC v. NLRB (Judge Henderson concurring in her own opinion); NLRB v. Tito Contractors, Inc. (Judge Henderson concurring in her own opinion; Judge Rogers concurred); Heartland Plymouth Court MI, LLC v. NLRB (Judge Millett dissenting); Consolidated Communications, Inc. v. NLRB (Judge Millett concurring in her own opinion).
- The NLRB won one case that prompted a dissent: DIRECTV, Inc. v. NLRB (Judge Brown dissenting from Judge Srinivasan’s opinion).
Interesting. The number of separate opinions in particular caught my attention. I knew there were a lot but I didn’t remember that many.
Second, what about soon-to-be Judge Katsas? He’s obviously extremely accomplished. More than that, he is a seasoned veteran of the D.C. Circuit in particular — and he has prevailed in a lot of big cases. By my count, he’s argued ten cases in the D.C. Circuit. Here’s my methodology. I searched (adv: greg! /s katsas /s “argued the cause”) in Westlaw’s D.C. Circuit database. The following ten cases came up; I’ve also identified whether Katsas won or lost.
(1) Bismullah v. Gates, 551 F.3d 1068 (2009): Victory.
(2) Parhat v. Gates, 532 F.3d 834 (2008): Loss.
(3) DKI International, Inc. v. USAID, 477 F.3d 758 (2007): Victory (with an extended quote from “Government Counsel” included).
(4) Boumedienne v. Bush, 476 F.3d 981 (2007): Victory, at least before the D.C. Circuit — and Katsas did not argue the case before the Supreme Court.
(5) American Jewish Congress v. Corporation for National and Community Service, 399 F.3d 351 (2005): Victory.
(6) Acree v. Republic of Iraq, 370 F.3d 41 (2004): Victory.
(7) In re Cheney, 334 F.3d 1096 (2003): Loss, at least before the D.C. Circuit — though Katsas did not argue before the Supreme Court.
(8) Center for National Security Studies v. Department of Justice, 331 F.3d 918 (2003): Victory.
(9) UAW-Labor Employment and Training Corp. v. Chao, 325 F.3d 360 (2003): Victory.
(10) United States v. Wilson, 290 F.3d 347 (2002): Victory.
That’s a lot victories. And those are some very significant cases. It appears that another exceptional lawyer is about to join the Court.
* Of course, you could also skip both and spend your five minutes on something else ….
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