D.C. Circuit

  • August 20, 2014
    Guest Post

    by Robert N. Weiner, Litigation Partner, Arnold & Porter LLP

    *This post originally appeared on Balkinization

    Sometimes, lawyers are fortunate that an opponent does not get the opportunity to reply to their argument and they get the last, unchallenged, word on an issue. The Halbig case [D.C. Circuit Court panel opinion negatively impacting the federal government’s effort to help low-income persons obtain health care insurance] presents a prime example. On Monday, the plaintiffs seeking to nullify a key provision of the Affordable Care Act filed their response to the Government’s petition for rehearing en banc. The response takes full-- albeit not fair -- advantage of being the last word before the D.C. Circuit considers the petition.

    To begin with, the Halbig plaintiffs never cite Rule 35 of the Federal Rules of Appellate Procedure, even though it is the controlling authority regarding en banc review. The Rule expressly recognizes that rehearing en banc is appropriate in order to avoid intercircuit conflicts, and that provision is directly applicable hereCurrently, there is a conflict between Halbig in the D.C. Circuit, denying tax subsidies to help low income families afford insurance in states with a Federal Exchange, and King in the Fourth Circuitallowing such subsidies. A grant of en banc review by the D.C. Circuit will automatically vacate the Halbig decision ending the intercircuit conflict and presenting the full court the opportunity to avoid one altogether if the D.C. Circuit ultimately agrees with the Fourth. If there is no conflict, the Supreme Court will have no compelling reason to take this rather narrow, yet overblown issue of statutory interpretation.

    The absence of a Government opportunity to reply may also have loosened the reins on the discussion of case law in the Halbig response. Arguing against rehearing en banc, the Halbig plaintiffs cite instances where the D.C. Circuit has denied such review in important cases. But the response fails to point out that most of those cases predate the amendment of Rule 35 in 1998 expressly identifying avoidance of a circuit split as a basis for en banc review and emphasizing in the Advisory Committee Notes the particular importance of such review in cases like this one, where rehearing could resolve the conflict. D.C. decisions that came before that change in Rule 35 shed no light on whether en banc review is appropriate on this ground.

    Of the post-1998 D.C. cases cited by the Halbig plaintiffs, one involved a situation where the Supreme Court had already granted cert on the issue. The other cases cited presented no conflict. Thus, none of these cases resolves whether en banc review is appropriate here, where the D.C. Circuit’s panel opinion is the source of the intercircuit split.

  • October 30, 2013

    by Rebekah DeHaven

    There are 874 federal judgeships in the United States. Of these, 91 are currently vacant, and there are 20 future vacancies. Thirty-seven of these vacancies are in districts that have been declared judicial emergencies. There are 51 nominees to fill these vacancies, some much closer to confirmation than others.

    These figures mean that 10 percent of our federal judiciary is currently empty. Instead of working to fill these vacancies, some lawmakers are explicitly attempting to reduce the number of judgeships nationwide, and promoting the rhetoric that there are more judges than the U.S. needs to administer its justice system. 

    In April, Senator Grassley introduced the “Court Efficiency Act of 2013,” which proposes reducing the number of seats on the D.C. Circuit from eleven to eight. Although Senator Grassley and others suggest that there are too many judges, the Judicial Conference and members of the federal judiciary have indicated just the opposite. In fact, the resounding message has been that the courts are struggling to keep up. In its March 2013 report the Judicial Conference suggested the addition of 70 permanent and 21 temporary judgeships, as well as converting eight temporary judgeships to permanent positions.

  • October 22, 2013

    by Jeremy Leaming

    After more than four years of obstructing President Obama’s judicial nominations and causing the vacancies on the federal bench to hover at or above 80, right-wing organizations are ratcheting up their efforts to re-write history. The Heritage Foundation, proclaims that no obstruction has occurred and that Obama is remaking the federal bench, but asks us to ignore what unfolded during his first term. The lesser-known Judicial Crisis Network (JCN) is out with a slideshow of 13 graphics that aims to support an effort of Republican senators to shrink the size of the U.S. Court of Appeals for the District of Columbia Circuit, where vacancies have languished for years on end.

    Senate Judiciary Committee Ranking Member Chuck Grassley (R-Iowa) has long sought to chop seats from the D.C. Circuit, widely considered one of the most powerful federal appeals courts in the land, claiming it has a flimsy workload. Grassley and his fellow Republicans successfully kept Obama from filling one of the D.C. Circuit’s longstanding vacancies until the start of his second term. There are still three vacancies on the 11-member court.

    When Obama announced three nominations to those vacancies earlier this year, Grassley introduced a bill aimed at cutting – you guessed it – three seats from the D.C. Circuit, arguing the Circuit’s current judges had light caseloads and there was no need for more judges. But as the Constitutional Accountability Center (CAC) and others have noted, Grassley’s claims about the D.C. Circuit ignore reality. The D.C. Circuit hears far more complex and constitutionally weighty matters than the other federal appeals court circuits. 

    The JCN is headed by Carrie Severino, an attorney devoted like the Tea Party to destroying health care reform and mild regulations (Dodd-Frank) of the financial industry. The group's “infographic” containing 13 slides purports to show that the D.C. Circuit “is the most underworked court in the country.” It is, as People For The American Way’s blog notes, a slideshow “recycling old, discredited arguments ….”

    Earlier this year when Grassley launched his latest attempt to slash judgeships from the D.C. Circuit, he claimed, “No matter how you slice it, the D.C. Circuit ranks last or almost last in nearly every category that measures workload.” That statement caught the attention of The Washington Post’s “The Fact Checker,” which concluded it was deserving of “Two Pinocchios,” meaning it contained “significant omissions and/or exaggerations.”

  • July 25, 2013

    by Jeremy Leaming

    Even after reaching a deal to move along some executive branch nominations, a gaggle of Republican senators is showing how far it is from giving up on obstructing President Obama’s nominations for long-standing vacancies on the federal bench.

    Yesterday’s Senate Judiciary Committee hearing to consider the nomination of Cornelia “Nina” Pillard to one of the three vacant seats on the U.S. Court of Appeals for the District of Columbia Circuit, has drawn quick attention from reporters, scholars and activists for some of the accusations lobbed at Pillard, a professor at Georgetown University Law Center with a varied and deep legal career. (And Sen. Charles Grassley (R-Iowa) kept insisting the D.C. Circuit, which hears some of the most complex and time-consuming legal matters of all the appeals court circuits doesn’t need any more judges. But Patricia M. Wald, who served for 20 years on the D.C. Circuit, five of them as its chief judge, provides reality here.)

    But Sens. Mike Lee (R-Utah) and Ted Cruz (R-Texas) tried mightily to paint Pillard as unfit to serve on the federal bench. Pillard (pictured) has a widely respected legal career, including varied scholarship, and extensive work as an attorney for the federal government, including the Solicitor General and the Office of Legal Counsel; for mainstream boards seeking to provide services to multinational corporations, such as the American Arbitration Association, and for the long-respected civil rights group, the NAACP Legal Defense and Educational Fund. But in their questions Lee and Cruz seemed to misstate or misrepresent what Pillard had said in writings and briefs she had authored years before. 

    Pillard has not only taught law, she’s practiced law representing the federal government and individuals seeking to enforce Congress's civil rights laws. But Lee and Cruz during the Senate committee hearing labored to create a far different picture. Specifically they focused on a short symposium article she wrote more than a decade ago that sought common ground on the divisive issue of reproductive choice, and an amicus brief she wrote in support of lower court decisions that had held Operation Rescue accountable for physically blocking women's access to family planning facilities. 

    But Lee and Cruz seemed either to misunderstand or misrepresent Pillard's own words. For example, Cruz claimed that Pillard had once written that abstinence-only education was constitutionally suspect. She did not and tried to explain it to the senator. Pillard pointed out that her article merely argued that such programs should not be bound by stereotypes. Instead she explained that abstinence-only education should be taught without promulgating stereotypes. Moreover that article was intended for policymakers offering ways to bridge a gap between anti-abortion activists and women’s rights advocates by identifying initiatives both sides could agree upon that would reduce the incidence of abortion.

    Cruz and Lee continued their misrepresentation of Pillard's legal work, claiming that in an amicus or friend-of-the-court brief that she equated anti-abortion activists to violent white supremacists, like the KKK. Again, the senators either did not read the brief or they shamelessly took parts of it out of context to tar Pillard. In reality Pillard argued that a civil rights law was aimed at private groups that interfered with or ‘hindered’ the police’s ability to protect people’s rights, no matter who the private groups were. In no way could the brief be read to say that a moral equivalency exists between anti-abortion activists and violent groups like the KKK.

    Pillard in fact has a stellar record reflecting moderate views, and has received the support of Republicans, former law enforcement and military officials, conservatives, and many leading members of the Supreme Court bar from both parties.

    Sen. Judiciary Chairman Patrick Leahy (D-Vt.) noted that Pillard “has had a distinguished career as a practitioner, as an academic … she’s argued nine cases before the Supreme Court … spent her legal career in public service … and for the past 13 years, she’s worked as a professor of my alma mater, Georgetown University Law Center.”

  • June 11, 2013
    Guest Post

    by Sam Kleiner and Dan Sheehan. Kleiner and Sheehan are students at Yale Law School

    In the upcoming fight to confirm judges for the D.C. Circuit, Republicans are going to try to avoid a discussion of the incredible qualifications of the three nominees and instead claim that we don’t need the judgeships at all. Sen. Chuck Grassley (R-Iowa) has introduced a Court Efficiency Act which seeks to transfer three of the eleven judgeships out of the D.C. Circuit because, he argues, they just aren’t busy enough. President Obama, in his Rose Garden address, responded that the Judicial Conference of the United States, chaired by Supreme Court Chief Justice John Roberts, has supported maintaining the level of judgeships at the D.C. Circuit.

    Grassley’s argument is, at best, disingenuous. The D.C. Circuit plays a crucial role in supervising the administrative state with its unique jurisdictional focus on claims arising from the administrative agencies. Throughout the Obama administration, Republicans have focused on criticizing the growth of the administrative state. In his dissent this term in FCC v Arlington, Justice Roberts argued that “the Framers could hardly have envisioned today’s vast and varied federal bureaucracy and the authority administrative agencies now hold over our economic, social and political activities.” With their critique of the growth of the administrative state, it is disingenuous for conservatives to now flip and say that the appeals court that is tasked with the bulk of administrative law doesn’t have enough work.

    While it is true that the D.C. Circuit hears fewer cases than other appeals courts, as Grassley likes to point out, this argument misses the point entirely. As the Chief Judge of the D.C. Circuit, Roberts delivered a lecture in 2005 entitled “What Makes the D.C. Circuit Different?” His answer: the type of case they hear.“One-third of the D.C. Circuit appeals are from agency decisions. That figureis less than twenty percent nationwide,” he noted. With the legislation creating an array of administrative agencies vesting power for review explicitly in the D.C. Circuit, Roberts noted, “Whatever combination of letters you can put together, it is likely that jurisdiction to review that agency’s decision is vested in the D.C. Circuit.”

    While Grassley complains about the limited workload of the D.C. Circuit, an examination of the statistics from the Judicial Conference confirms that his argument is false.