Here is a little known fact about Justice Samuel Alito: in 1989, he wrote a chapter for a book entitled The RICO Racket (buy it now on Amazon for $100!). In his chapter—Racketeering Made Simple(r)—Alito described himself as “a federal prosecutor and staunch RICO supporter.” In a colorful way, his chapter runs through the basics of the Racketeer Influenced and Corrupt Organizations Act, including a discussion of the rise of La Cosa Nostra and a “list of organized crime ‘bosses’ convicted under RICO,” including “Paul Castellano, Gambino Family Boss (indicted; murdered before trial)” and “Gaetano Badalementi (exiled head of Sicilian Mafia Commission).” Alito also explained that RICO’s scope extends beyond the mafia (“what if the group changed its name?”); rebuffed the argument that prosecutors “press RICO charges solely for the purpose of coercing individuals to plead guilty or testify against bigger targets” (“such a practice is prohibited by Justice Department rules”); and warned against amending RICO’s forfeiture provisions (“these proposals . . . fly in the face of the increasingly held view that lucrative crimes—from drug trafficking to large-scale fraud—cannot be combatted effectively without strong measures that take away all the wealth associated with crime”). And Alito concluded his chapter thusly:

At the end of the movie “Little Caesar,” Rico Bandello, hit by machine gunfire, exclaims, “Mother of mercy, is this the end of Rico?” Rapid-fire attacks on RICO in recent months call this dramatic scene to mind. Those of who believe that federal law enforcement in the 1990s cannot do without RICO desperately hope that the answer to Rico Bendello’s cry is “No!”

I clerked for Justice Alito but never heard of this chapter until recently. (Note, the Justice recently wrote a book foreword that is available online and is definitely worth reading.) When I did hear about it, I hunted down a copy because he does not do much writing beyond his opinions. This is surprising because Justice Alito is interested in scholarship. His office, for instance, overflows with books and articles, many of which are obviously well read. He likewise will flag articles for counsel at oral argument. But though he will cite articles on occasion in his opinions, he does not do it often. At the same time, he has observed (at an academic conference no less) that “the Supreme Court these days is the most academic in the history of the country. We’re at a tipping point where we might tip into the purely theoretical realm.” Stumbling across his book chapter from decades ago got me thinking about the perennial issue of the uneasy relationship between judges and scholars.

In this post, I don’t have much to add to the discussion. (Remember, I promise to cover the D.C. Circuit’s opinions in five minutes a week!) If you are interested, I recommend this recent article from Judge Diane Wood. The purpose of this post is not to explain but to observe.

Like today’s Supreme Court, the D.C. Circuit is scholarly,* with numerous of its judges having lived past lives as law professors. Many of the cases it confronts, moreover, are also theoretically challenging. This week’s cases, however, do not cite a single law review article. Nor did last week’s cases. Nor did last month’s cases. Indeed, unless my memory and Westlaw have steered me wrong, I don’t think the D.C. Circuit has cited a law review article since Meshal v. Higgenbotham in October, in which both Judge Brown (for whom I also clerked) and Judge Pillard cited scholarship (namely, Anya Bernstein, Congressional Will and the Role of the Executive in Bivens Actions: What Is Special About Special Factors?, 45 IND. L. REV. 719 (2012), FeiFei Jiang, Dancing the Two-Step Abroad: Finding A Place for Clean Team Evidence in Article III Courts, 47 COLUM. J.L. & SOC. PROBS. 453 (2014), Andrew Kent, Are Damages Different?: Bivens and National Security, 87 S. CAL. L. REV. 1123 (2014), James E. Pfander & David Baltmanis, Rethinking Bivens: Legitimacy and Constitutional Adjudication, 98 GEO. L. J. 117 (2009), Carlos M. Vázquez & Stephen I. Vladeck, State Law, the Westfall Act, and the Nature of the Bivens Question, 161 U. PA. L. REV. 509 (2013), and Laura K. Donohue, The Limits of National Security, 48 AM. CRIM. L. REV. 1573 (2011)).

As I read the court’s cases this week, I wondered if scholars can better help judges decide issues like those facing the D.C. Circuit.

For instance, the most important case of the week is Van Hollen v. FEC. This is one that First Amendment and election scholars really should pay attention to. The FEC’s regulations require corporations and labor organizations to report donations “made for the purpose of furthering electioneering communications.” In the past, the court has held that this rule satisfies Chevron Step One. This time around, the court continued on and answered whether it also satisfies Chevron Step Two and State Farm. The panel held that it did. Writing for the court, Judge Brown—joined by Judges Sentelle and Randolph—explained that the court had already held that the word “contributors” could reasonably include a purpose requirement. That “decision largely foreordain[ed the] Chevron Step Two answer.” Congressman Van Hollen’s “arbitrary and capricious” arguments fared no better. I will not explain all of Judge Brown’s analysis in this blog post. But take my word for it: This is an opinion that merits close attention from academics—especially because Judge Brown reads and cites scholarship. To whet your appetite, here is the closing paragraph of the Court’s opinion:

Holding, as we do here, that the FEC’s purpose requirement satisfies both Chevron Step Two and State Farm review has the benefit both of being a correct application of black letter administrative law and of forestalling to some other time an answer to the important constitutional questions bubbling beneath the surface of this case. As our discussion of the FEC’s rule has shown, the Supreme Court’s campaign finance jurisprudence subsists, for now, on a fragile arrangement that treats speech, a constitutional right, and transparency, an extra-constitutional value, as equivalents. But “the centre cannot hold.” William Butler Yeats, The Second Coming (1919). Until then, however, the FEC’s purpose requirement survives, and the judgment of the district court is therefore

Reversed.

In Morley v. CIA, Judges Williams—joined by Judges Srinivasan and Ginsburg—wrote an opinion that law professors may find useful when teaching the distinction between ex post and ex ante analysis. In the case, the Court remanded (again) an attempt to collect attorney’s fees under the Freedom of Information Act. Morley, it seems, seeks fees for his efforts to procure hundreds of documents related to CIA officer George E. Joannides and his connection to President Kennedy’s assassination. Previously, the D.C. Circuit had remanded the case because the trial court had not adequately considered the public benefit of the documents. On remand, the trial court stuck to its decision, finding that Morley’s quest had produced “little, if any, public benefit.” Judge Williams didn’t disagree with the trial court’s conclusion about the actual value of the documents. But, as Judge Williams explained, courts must “assess ‘the potential public value of the information sought,’” not “the public value of the information received.” In other words, the fact that, ex post, the documents provided little public value does not mean that ex ante, it was not a good search (“if it’s plausible ex ante that a request has a decent chance of yielding a public benefit, the public-benefit analysis ends there”). The case was remanded again.

In United States v. Burroughs, Burroughs attempted to overturn the denial of his motion to suppress drugs found in his home following his arrest for carjacking. At his preliminary hearing, the judge concluded there was no probable cause to arrest Burroughs. According to Burroughs, this means the search of his home was illegal. Unfortunately for him, however, he failed to preserve this argument. Perhaps the most interesting aspect of this case is Judge Pillard’s observation—joined by Judges Griffiths and Millett—that the D.C. Circuit’s cases are “inconsistent” regarding “the standard of review of unpreserved claims . . . that come within the ambit of Federal Rule of Criminal Procedure 12.” Must there always be “good cause” for the preservation failure or can the court nonetheless review for plain error? The panel explained the confusion that Rule 12 can cause, but without picking a standard, the panel concluded that Burroughs could not prevail under either standard. This is not my field, but this opinion may a springboard for a good student note.

Next comes DHL Express v. NLRB. In 2011, the NLRB found that DHL violated federal law when it banned off-duty employees from handing out union material in a hallway. This hallway is used for a myriad of purposes, both work and non-work related. DHL sought review of the decision, and simultaneously, the Board sought enforcement of the order. The ALJ found the hallway to be a “mixed-use” area. This meant that DHL could not prohibit off-duty employees from handing out union material, without showing “special circumstances.” Judge Brown, writing for Judges Rogers and Griffith, denied DHL’s petition. The panel, for instance, concluded that it was precluded from addressing DHL’s argument that the “mixed-use” determination was unreasonable because the company’s objection was not presented to the Board. (If you were thinking that there sure have been a lot of NLRB cases in the D.C. Circuit of late, you’d be right.)

Finally, in Huron v. Cobert, Douglas Huron (and the United States Society for Augmentative and Alternative Communication) appealed from a decision dismissing their case against the Office of Personnel Management for lack of standing. Huron and the Society originally brought the case based on OPM’s decision to approve healthcare benefits programs for federal employees that do not provide coverage for speech-generating devices. Huron, it seems, is an attorney with a communications disorder whose speech-generating device had begun to fail, but his wife’s federal employee insurance plan did not cover a replacement. Huron and the Society argued that OPM’s failure to negotiate for coverage of these devices was unlawful. But the district court dismissed the claim, finding that Huron lacked standing. Instead of challenging the district court’s analysis, Huron revised his argument and contended that he suffered a procedural injury when OPM failed to follow a statutorily required procedure designed to protect his interests. Judge Millett, joined by Judges Henderson and Wilkins, affirmed due to Huron’s failure to raise these issues in the district court, explaining that “Huron’s decision to roll out an entirely new argument for standing for the first time on appeal, coupled with his failure to challenge the district court’s ruling that he lacked traditional injury-in-fact standing, dooms his case.” The judges explained that while appellate courts can sometimes examine issues presented for the first time on appeal under extraordinary circumstances, this was not such a case. My intuitive sense is that the D.C. Circuit finds waiver less often than other courts; this case cuts against that hunch. Perhaps someone can test empirically whether my gut is right.

What’s the takeaway? I’m not sure. But I do know I’ve already broken my New Year’s pledge to limit myself to two hours a week for these posts. I don’t have time to dwell too long on the D.C. Circuit—I have articles to write!

---

D.C. Circuit Review – Reviewed is designed to help you keep track of the nation’s “second most important court” in just five minutes a week.