Today, after eight months of tweeting, @DCCircuitReview added its 100th follower. Congratulations @JusticeStake! Your prize? Approximately two D.C.-Circuit-related tweets per day, plus headlines from the blog.
In related news, Howard Bashman @howappealing has garnered more than 200 followers in his first week on Twitter.
Oh, and @SCOTUSblog hit the 20,000 mark today. #NotBitter.
Judge Silberman is one of the named plaintiffs in a judicial pay case that the Federal Circuit recently agreed to hear en banc. The suit is a constitutional challenge to legislation barring cost-of-living adjustments to federal judicial salaries despite a 1989 statute providing that such adjustments should be made automatically whenever other civil servants receive them. The plaintiffs say Congress’s refusal to give effect to the 1989 law violates the Compensation Clause, which provides that judges shall “receive for their services, a compensation, which shall not be diminished during their continuance in office.”
The plaintiffs, each of whom was on the bench when the 1989 law went into effect, seek to overturn directly adverse Federal Circuit precedent holding that “judicial pay increases which are enacted and effective, except in the sense that they are not yet ‘due and payable’ to judges, may be repealed” without violating the constitutional ban on salary diminution.
When Judge Silberman took senior status in 2000, he is reported to have said, “Since Congress won’t give us the pay raise it promised, I’d rather take my compensation in leisure time.” He later noted that the average judicial nominee “faces an immediate decline in his or her real income” if confirmed to the federal bench.
Chief Justice Roberts has repeatedly asked Congress for judicial pay increases, and in 2008 he told Congress that the cost-of-living adjustments promised in 1989 had been “unfairly denied.”
The Federal Circuit’s decision to grant rehearing en banc comes two years after the same court denied the plaintiffs’ petition for initial hearing en banc, over the dissents of four members of the court.
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For an appellate panel whose decision will be known to posterity as Cobell XXIII, the prospect of preventing a two-dozenth published opinion must be tempting. (The district court was already describing this case in Jarndycian terms back in Cobell XX.) The D.C. Circuit yielded to the allure of finality yesterday when it upheld a $3.4 billion settlement in a class action brought 16 years ago by American Indians against the Secretary of the Interior for mismanagement of “Individual Indian Money” trust accounts. The accounts were supposed to collect income from lands held in trust for individual Indians pursuant to allotments dating from 1887.
The plaintiffs originally sought a historical accounting, but over the years it became clear that the requested relief would cost more than Congress was willing to appropriate for the purpose — and perhaps more than the value of plaintiffs’ claims. Because of the government’s failure to keep track of the assets, any feasible settlement was bound to require some degree of squinting. Last July, the district court approved a settlement involving two overlapping classes and a combination of per capita, lump sum payments and pro rata payments.
The objectors argued that the settlement’s use of lump sum payments improperly treats unlike claims alike, creating intra-class conflicts between members with valuable claims and those whose claims are negligible. Specifically, the objectors alleged that the district court’s certification of one class under Rule 23(b)(2) — on the theory that the government’s failure to undertake an accounting was a “refus[al] to act on grounds that apply generally to the class” — violates the Supreme Court’s recent holding in Wal-mart v. Dukes that Rule 23(b)(2) “does not authorize class certification when each class member would be entitled to an individualized award of monetary damages.” For similar reasons the objectors argued that the district court should have disallowed lump sum payments to members of the Rule 23(b)(3) class as unfair under Rule 23(e). The D.C. Circuit held that even if the lump-sum payments theoretically over- and under-compensate individual members of the two classes, the practical impossibility of determining who received too much and who too little would overcome the objectors’ challenge to the certification of the class and the fairness of the settlement.
The opinion also suggests in passing that a fairness challenge based on disparities among class members would necessarily fail if none of them chose to opt out of the class. (“[T]he existence of the opt-out alternative effectively negates any inference that those who did not exercise that option considered the settlement unfair.”). But permitting class members to effectively waive a fairness inquiry by failing to opt out seems at odds with the district court’s independent duty under Rule 23(e) to “find[] that [the settlement] is fair, reasonable, and adequate” before approving it. The court’s primary response to the objectors’ fairness challenge seems to be on surer footing: ”[A]ny historical accounting that would result from continued litigation would likely be severely limited in scope, heavily restrained by cost, and thus unlikely to reveal the existence of — much less remedy — the intra-class conflict [the objector] alleges.”
Judge Rogers’s opinion goes to some lengths to explain that its conclusions are limited to the “unusual circumstances surrounding this litigation.” Those circumstances include the prohibitive cost and inevitable uncertainty of an accounting, and Congress’s appropriation of funds to cover the settlement:
Given that any additional accounting funded by Congress would likely rely heavily on statistical sampling, even if latent intraclass conflicts did exist, they would be unlikely ever to be discovered. All of this suggests that the information produced from an historical accounting is not likely to be worth significantly more to some class members than to others, and thus the $1,000 settlement payment is properly viewed as nonindividualized and does not run afoul of Wal-Mart [v. Dukes].
Moreover, this case is extraordinary in that Congress not only expressly authorized, ratified, and confirmed the settlement, but also appropriated $3.4 billion to fund it. Although Congress made no express findings about the propriety of (b)(2) certification of the Historical Accounting Class, given the lengthy litigation and the limited funds available for further accounting, Congress’s judgment that uniform payments would adequately compensate class members for an accounting right that it created carries significant weight and sets this case apart from others.
. . .
In view of these realities, this court in July 2009 instructed “the district court to use its equitable power to enforce the best accounting that Interior can provide, with the resources it receives, or expects to receive, from Congress.” Cobell XXII, 573 F.3d at 811. This instruction underscored the reality that the original goal of the litigation — a complete historical accounting for each class member — would not be realized. Instead, any historical accounting that would result from continued litigation would likely be severely limited in scope, heavily restrained by cost, and thus unlikely to reveal the existence of — much less remedy — the intra-class conflict Craven alleges.
. . .
For Craven to characterize the settlement as “tak[ing] shortcuts to solve the problem at the expense of individual rights,” and “tak[ing] a series of impermissible shortcuts that abuse the class action process to settle this case,” is to ignore the history of this hard-fought litigation and the obstacles to producing an historical accounting.
The D.C. Circuit also upheld the district court’s award of $99 million in attorneys’ fees to class counsel and $2 million as an incentive payment to the lead plaintiff, Elouise Cobell, who died three months after the district court approved the settlement.
Cobell v. Salazar, No. 11-5205 (May 22, 2012) (Rogers, J., joined by Tatel & Brown, JJ.)
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The Harvard Law Review has published a note entitled Independence, Congressional Weakness, and the Importance of Appointment: The Impact of Combining Budgetary Autonomy with Removal Protection.
From the introduction:
[I]ndependent agencies, although somewhat insulated from presidential pressure through removal restrictions, remain accountable to the political branches, especially Congress, through appropriations. However, when the traditional independent agency model is combined with self-funding, as was done with the [Consumer Financial Protection Bureau], control is substantially diminished, especially because of reduced congressional power. Thus, appointment becomes the primary means of control. The heightened importance of appointment is likely to create gridlock and confirmation fights unless the agency rests upon a strong political consensus.
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The D.C. Circuit took a self-contradictory jury instruction as an occasion to clarify that a Title VII plaintiff can prevail on a pretext claim by proving discrimination was a but-for cause of the adverse employment action. He does not have to prove it was the sole cause to recover damages. [Slip op. pdf.]
Jorge Ponce alleged that the Library of Congress rejected his job application in favor of a less-qualified candidate on the basis of race, sex, and national origin. The district court issued a jury instruction that appeared to impose a sole-cause standard that the Supreme Court has rejected, but the district court immediately explained the instruction in “but for” terms: ”Mr. Ponce must prove that illegal discrimination . . . was the sole reason for his non selection. That is he must prove that but for his [protected characteristics] he would have been hired.”
The D.C. Circuit held that this “clear definition of ‘sole reason,’ . . . fairly and adequately conveyed the law to the jury.” But the court unambiguously rejected the “sole reason” language, suggesting that its use in future cases may be an abuse of discretion:
[T]he Supreme Court expressly held in McDonald v. Santa Fe Trail Transportation Co. that nothing in Title VII requires a plaintiff to “show that he would have in any event been rejected or discharged solely on the basis of” a protected characteristic. Instead, “no more is required to be shown than that [a protected characteristic] was a ‘but for’ cause.”
. . .
[I]n Ginger [v. District of Columbia, 527 F.3d 1340 (D.C. Cir. 2008)] we used “sole motive” as shorthand for but-for cause, suggesting that in a “single-motive case,” a plaintiff “argues race (or another prohibited criterion) was the sole reason for an adverse employment action.” Understandably, then, the district court here read Ginger as requiring that the jury instruction include “sole reason.” We thus take this opportunity to clarify: nothing in Title VII requires a plaintiff to show that illegal discrimination was the sole cause of an adverse employment action. And mindful that “our words from loose using have lost their edge,” we hereby banish the word “sole” from our Title VII lexicon.
Judge Tatel’s unanimous opinion also rejected Ponce’s argument that the district court should have let the jury see a report by the GAO’s Personnel Appeals Board, which concluded that Ponce “was the subject of unlawful discrimination.” The Library of Congress had delegated its investigation of Ponce’s administrative complaint to the Board but then rejected the Board’s conclusion. Ponce argued that such recommendations of administrative bodies should be per se admissible. The court rejected that view: “As the Seventh Circuit explained: ‘A rule of per se admissibility . . . would clearly undercut the district court’s function as an independent fact-finder.’ ” Because there was no clear error in the district court’s finding that the report was “extraordinarily weak” and “unduly prejudicial,” the D.C. Circuit affirmed.
Ponce v. Billington, No. 11-5117 (Apr. 9, 2012) (Tatel, J., joined by Garland, J., & Silberman, S.J.)
Photo credit: banspy
The D.C. Circuit vacated the National Labor Relation Board’s decision that Trump Plaza Hotel and Casino had unlawfully refused to bargain with the union that purports to represent the Casino’s card dealers. [Slip op. pdf.] The court remanded the Board’s order for further consideration of the Casino’s argument that a mock card-check certification, which union supporters claimed was conducted “in accordance with NLRB rules,” misled voters about the real union election that followed.
Applying the Board’s own precedent, Judge Henderson’s opinion for the court agreed with the Board that advertising “Government” support for the union, in the form of local politicians’ endorsements, would not lead reasonable employees to believe the Board itself endorsed unionization.
But the court agreed with the Casino that the Board had departed from its own precedent without a “reasoned explanation” when it relied on the “wide margin of the Union’s victory” to disregard circumstantial evidence that the misleading pro-union message of the mock check-card certification was extensively disseminated to the voters.
Although the Casino won a remand, the case presents a mixed outcome for business and labor. The decision may embolden union organizers to solicit and advertise non-NLRB governmental support, but it also makes clear that a lopsided union victory is no reason to overlook possible election improprieties. The decision also clarifies that the dissemination of a coercive electioneering message may be proven by circumstantial evidence.
The most important aspect of the case for future challenges to NLRB actions may be the court’s holding that the employer’s objections to the administrative law judge’s decision adequately preserved the dissemination issue for the D.C. Circuit’s review. Section 10(e) of the National Labor Relations Act generally bars a court from considering issues that were not raised in administrative proceedings. The Board argued that the Casino should have moved for reconsideration if it intended to challenge the Board’s ruling on the dissemination issue, since the Board’s ground for decision was different from the ALJ’s. Although the Casino could not have challenged the Board’s reading of its own precedent until the Board’s decision issued, the D.C. Circuit held that a party may satisfy the exhaustion requirement without articulating such a specific argument before the agency. ”Trump Plaza’s argument that the mock card-check was adequately disseminated to affect the election necessarily includes the argument that it was adequately disseminated under Board precedent.”
The court held that the employer had put the Board on notice of its position by arguing that “the certification message was distributed throughout the voting community” by means of the certification rally, a television news broadcast, and leaflets at the union hall. Seeking reconsideration by the Board would thus have been an “empty formality.”
On remand, the Board will have to assess–in accord with its precedent–the extent of the dissemination of the faux card-check certification in light of the severity of the misleading message it communicated.
Trump Plaza Associates v. NLRB, No. 10-1412 (May 11, 2012) (Henderson, J., joined by Griffith & Kavanaugh, JJ.)
The D.C. Circuit’s decision vacating the habeas grant in Latif v. Obama is back in the news. The Guantanamo detainee’s cert petition, which was yesterday’s “petition of the day” at SCOTUSblog, has been distributed for consideration at the Supreme Court’s May 17 conference, along with recently redacted, public versions of the Solicitor General’s response in opposition to cert (pdf) and Latif’s reply (pdf).
Anticipating the Supreme Court’s conference, the New York Times called Latif a “grossly unfair decision.” That assessment was based on the editorial board’s understanding that the D.C. Circuit held “a government report leading to Mr. Latif’s detention must be assumed to be accurate under ‘a presumption of regularity,’ unless there is ‘clear evidence to the contrary.’” This interpretation of the opinion was quickly echoed by Scott Horton in Harper’s: “[Judge] Brown believes the trial court should have accepted the CIA’s analysis unless convincing evidence existed to contradict it.”
In fact, the opinion holds only that the government’s report is entitled to a rebuttable presumption that it accurately summarizes the detainee’s own statements–not that those statements are true or that that the government drew the correct inference from them. (“The presumption of regularity . . . presumes the government official accurately identified the source and accurately summarized his statement, but it implies nothing about the truth of the underlying non-government source’s statement.”) And the court expressly declined to decide whether the detainee’s rebuttal evidence must be “clear and convincing.” (“We need not decide precisely how much more the detainee must show to overcome the presumption of regularity. . . . Even if we assume a detainee may overcome the presumption by a mere preponderance of the evidence, Latif cannot meet that standard.”).
Latif v. Obama, No. 10-5319 (Oct. 14, 2011) (Brown, J., with concurrence in the judgment by Henderson, J., and dissent by Tatel, J.) (slip op) (Google Scholar)
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Posted in Case News, Cert Watch, News
Tagged 10-5319, 11-1027 (S. Ct.), Guantanamo, habeas, Judge Janice Rogers Brown
