Edmund_Randolph.jpg

The D.C. Circuit cites Edmund Randolph, the first Attorney General, on what "happen" means.

Scene:    Snappy sits at the bar, perhaps on Key West, Bitey on the stool next to her. A volume of Through the Looking-Glass, and What Alice Found There protrudes from Snappy's satchel.

Bitey:    Mmmm, mmmm, good! I sure do like this Maharajah IPA you ordered for me, Snaps. It rocks!

Snappy:    'Twas brillig.

Bitey:    You mean that new ruling by the D.C. Circuit? On recess appointments? Last week?

Snappy:    None other.

Bitey:    Yeah, that stunned me!

Snappy:    How do you mean?

Bitey:    How Their Honors went so far out of their way.

Snappy:    To do what?

Bitey:    To cut back on when a President can appoint people to posts without the Senate's okay, while it dozes.

Snappy:    Explain.

Bitey:    Okay.

The case dealt with a Pepsi bottler's gripe over a ruling in favor of its employees' union by an admininstrative law judge. The ALJ found that the bottler — Noel Canning — had agreed to a pay increase, although it claimed it didn't agree. The NLRB upheld the decision.

Snappy:    Bor-ing. Don't test my patience, Bitey.

Bitey:    Ow! It hurts when you whack my snout like that, Snapster! Noel Canning never told the Board that it (the Board) didn't have power to okay the ALJ's ruling because three of the five members had gotten unconstitutional "recess appointments". But the court of appeals panel reached that issue anyway.

Snappy:    So what? That sounds like a pretty basic problem that a court should get to whether the loser argued it or not.

Bitey:    Except that the statute that allows the court to second-guess NLRB edicts says it can't review on the basis of arguments that the parties didn't raise before the Board, except in cases of "extraordinary circumstances". The panel didn't explain what seemed "extraordinary" about the failure to make the no-power argument to the Board. It called the circumstances "extraordinary" because it agreed the Board lacked power.

Snappy:    Beware the Jabberwock, my son.

Bitey:    I always do!

Any-hoo, the panel wouldn't have gotten to the "extraordinary" question if it hadn't rejected Noel Canning's complaint on the merits. Which it did in part because Noel Canning hadn't raised another argument with the Board (about what law applied).

Snappy:    The jaws that bite.

Bitey:    You got me there!

So, the panel cleared a path to the Constitutional Issue — whether the Recess Appointments Clause allowed President Obama to appoint three NLRB members during hiatuses in full-bore meetings of the Senate.

Snappy:    The claws that catch.

Bitey:    Amen!

The court did a two-fer on the CI. It said, first, that "the Recess" in Article II, Section 2, Clause 3 of the Constitution (it provides that "[t]he President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate") means the time after a "Session" of the Senate ends and before a new one starts. Instead of, you know, whenever the Senate has quit meeting to do business, whether during a Session or after.

Snappy:    The frumious Bandersnatch!

Bitey:    The court disagreed with the Eleventh Circuit's contrary ruling in Evans v. Stephens, 387 F.3d 1220, 1224 (11th Cir. 2004), cert. denied, 544 U.S. 942 (2005). It also said that Presidents don't have a bit of leeway in deciding whether "the Recess" has begun because that would give "the President free rein to appoint his desired nominees at any time he pleases, whether that time be a weekend, lunch, or even when the Senate is in session and he is merely displeased with its inaction." Noel Canning v. Nat'l Labor Relations Bd., No. 12-1115, slip op. 26 (D.C. Cir. Jan. 25, 2013).

Snappy:    Came whiffling through the tulgey wood, and burbled as it came!

Bitey:    Yep. Then it got really interesting.

Snappy:    The vorpal blade went snicker-snack!

Bitey:    Indeed.

The panel Went Further. As in Unnecessarily. Noting that "our holding on the first constitutional argument of the petitioner is sufficient to compel a decision vacating the Board's order", it reached out to rule on what "happen during the Recess" means in the Recess Appointments Clause. It held that — contrary to the practice of Presidents and Congresses since 1820 or so — "happen" equals "arise". Which conflicts with rulings by three other circuits. Evans v. Stephens, 387 F.3d at 1226-27; United States v. Woodley, 751 F.2d 1008, 1012-13 (9th Cir. 1985); United States v. Allocco, 305 F.2d 704, 709-15 (2d Cir. 1962).

Snappy:    He left it dead.

Bitey:    Sure did!

Because if it has to "arise during the Recess" instead of "exist during the Recess", the RAC will have a very small ambit. 

Snappy:    And with its head.

Bitey:    So, to sum up, the panel (a) would not have reached any constitutional issue if it had not upheld the Board's decision on the merits, in part by refusing to consider a choice-of-law argument that Noel Canning failed to make to the Board; (b) didn't refuse to consider Noel Canning's constitutional argument despite the fact that it failed to make the argument to the Board; (c) ruled that Presidents can't make recess appointments except between Sessions of the Senate, disagreeing with the only circuit that has addressed the question; and (d) further ruled, unnecessarily and in contradiction of three other circuits, that Presidents can't make recess appointments unless the vacancies that they fill with recess appointees "arise" between Senate Sessions.

Snappy:    He went galumphing back.

Bitey:    Man, I love this Maharajah!

Blawgletter thinks we can all agree that no lawyer wants to see this sort of reference to him or her in a court ruling:

The failure to [do something important] was entirely and indefensibly the fault of [litigant's] counsel.

Communications Network Int'l, Ltd. v. MCI WorldCom Communications, Inc. (In re WorldCom, Inc.), No. 10-4588(l), slip op. 3 (2d Cir. Jan. 24, 2013).

The mis-step in question involved a failure to file a timely notice of appeal from an order awarding MCI $2.4 million from CNI for telecom services. Why did it happen? Because CNI's lawyer changed his email address, listed the new one in papers he filed with the district court, but didn't tell the ECF system to update its records so that notices it sends our electronically would go to the new address.

The dissenting judge felt the majority's decision unduly punished a client for a "garden variety" lawyer error.

What do you think? Did the majority (per District Judge Lewis A. Kaplan) get the ruling right? Or do you agree with the dissent (per Circuit Judge Gerard E. Lynch)?

We note that the lawyer-in-error appears to have argued the case to the court. And we bet it wasn't pretty.

A Jordanian bank objected to turning over records that it claimed it couldn't produce without risking criminal prosecution by the governments of Jordan, Lebanon, and the Palestinian Monetary Authority. 

The plaintiffs accused the institution, Arab Bank, of aiding terrorist groups that had killed and hurt them and family members in Israel and the Palestinian Territories. They sued under the Anti-Terrorist Act and the Alien Tort Claims Act.

A magistrate judge ordered Arab Bank to comply with the plaintiffs' requests for documents. When it failed to do so after many years of litigation, the judge concluded that Arab Bank violated Rule 37(b) of the Federal Rules of Civil Procedure and recommended that the court, at trial, instruct the jury that it could infer that the records would have shown that Arab Bank did do business with and helped terrorist organizations. The district court adopted the report and recommendation.

Today, the Second Circuit held that it lacked jurisdiction to consider the merits of the order. It also ruled that Arab Bank had not made the extraordinary showing necessary to warrant relief by way of writ of mandamus. Linde v. Arab Bank, PLC, No. 11-4519-cv(L) (2d Cir. Jan. 18, 2013). 

Seesaw

Blawgletter adores balance.

Take the Supreme Court of the Lone Star State, a court at which we look often. Back in 2008, we reviewed the data from a new nation-wide study of state courts and told you that the Texas Supreme Court's balance during its transition from all-Democratic to all-Republican explained its far-greater influence with other courts then than before or since. "Balance on Texas Supreme Court = Greatest Influence".

Today we wonder whether the same thing in the federal appellate courts might make them better. While we don't know of any empirical data that could show improvement, stagnation, or decline as a result of growing balance in the upper two-thirds of the federal judiciary over the last four years, our own experience suggests that more balance yields higher-quality decisions.

Let's focus today just on the question of whether today we have good balance or not.

Since taking the oath of office (twice) in January 2009, President Obama has placed two justices on the U.S. Supreme Court (Sonia Sotomayor and Elena Kagan) and thirty circuit judges on the U.S. courts of appeals.

Balance on the Supreme Court shifted from two justices that Democratic presidents named versus seven Republican ones to 4-5 today. But the liberal-conservative count remains 4-5.

Which suggests that the party affiliation of the nominating president tells you only so much. But let us continue.

Six of the 13 circuits now have majorities of active judges that Democratic presidents nominated:

First:  3-2
Second:  8-5
Third:  7-6
Fourth:  10-5
Ninth:  19-9
Eleventh:  6-4

Four of them would become more Democratic if President Obama fills the current vacancies:

First:  4-2
Third:  9-6
Ninth:  20-9
Eleventh:  8-4

Two other circuits would flip if Obama fills all of pending vacancies. The D.C. Circuit would go from 3-5 to 6-5, and the Federal Circuit to 7-5 from 4-5.

Tenth Circuit would balance at 6-6 from 3-6.

The others would stay majority Republican, but with one exception less so, unless more active judges leave:

Fifth:  from 5-10 to 7-10
Sixth:  from 6-10 to 6-10
Seventh:  from 3-7 to 4-7
Eighth:  from 3-8 to 4-8

So, to review:

  • we now have near-equipoise — six circuits majority Democratic, seven mostly Republican.
  • two circuits would flip from Republican to Democratic if President Obama fills all the current vacancies on those courts.
  • one would go from majority Republican to a push.
  • four would stay majority-Republican unless more active judges retire, pass on, or take senior status.
  • by 2016, Democratic nominees will likely have the edge in eight circuits, a tie in one, and minority status in four.

Nike of Samothrace
Nike of Samothrace (ca. 190 BC), in the Louvre.

Nike, the Greek goddess, symbolizes victory.

Nike, Inc., which started in 1964 as Blue Ribbon Sports, plays on the triumphalist theme. And this week it won a fight not by conventional means but by fleeing the field of battle.

Nike had sued a rival shoe-making outfit, Already, on the ground that the latter's footwear (Soulja Boys and Sugars) infringed and diluted Nike's trademark for its Air Force 1, a "hoops shoe" that Nike unveiled in 1982. But Nike tired of the fight and issued a "Covenant Not to Sue" Already for selling the Soulja Boys and Sugars as well as any "colorable imitations" of them. And it moved to dismiss Already's counterclaim for a judgment declaring the Air Force 1 trademark invalid.

The district court granted the motion. The Second Circuit affirmed. And so did the Supreme Court, unanimously.

The Court held that the Covenant met Nike's "'formidable burden of showing that it is absolutely clear the allegedly wrongful behavior could not reasonably be expected to recur.'" Already, Inc. v. Nike, Inc., No. 11-982, slip op. 4 (U.S. Jan. 9, 2013) (quoting Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U.S. 167, 190 (2000)). Because of the Covenant, the Court ruled, Nike could not sue Already for infringing the Air Force 1 trademark — unless Already planned to make a total knock-off of the Air Force 1 shoe, something it gave no sign of intending. As Chief Justice Roberts wrote:

If such a shoe exists, the parties have not pointed to it, there is no evidence Already has dreamt of it, and we cannot conceive of it. It sits, as far as we can tell, on a shelf between Dorothy's ruby slippers and Perseus's winged sandals.

Id. at 7. Dorothy and Perseus in the same sentence. Bravo.

Blawgletter loves irony. That may explain this post. Or not.

After four weeks of online voting by more than 4,000 readers, the following law blogs can claim bragging rights for winning their respective categories:

Business of Law: Divorce Discourse

Careers/Law Schools: Inside the Law School Scam

Corporate: California Corporate & Securities Law

Courts: SCOTUSblog

Criminal Justice: Koehler Law

For Fun: Lowering the Bar

IP Law: IPWatchdog

Labor & Employment: The Delaware Employment Law Blog

Legal Research/Writing: Legal Writing Prof Blog

Legal Technology: Groklaw

News/Analysis: Legal As She Is Spoke

Niche: Wills, Trusts & Estates Prof Blog

Torts: Abnormal Use

Trial Practice: The Velvet Hammer

See vote totals here. Click here to read full descriptions and browse the complete list of Blawg 100 honorees and our inaugural Hall of Fame class.

What do you think? Get out your cell phones. We want to hear from you.

Perhaps there is a police officer somewhere who would interpret an automobile passenger’s giving him the finger as a signal of distress, creating a suspicion that something occurring in the automobile warranted investigation. And perhaps that interpretation is what prompted Insogna to act, as he claims. But the nearly universal recognition that this gesture is an insult deprives such an interpretation of reasonableness. This ancient gesture of insult is not the basis for a reasonable suspicion of a traffic violation or impending criminal activity. Surely no passenger planning some wrongful conduct toward another occupant of an automobile would call attention to himself by giving the finger to a police officer. And if there might be an automobile passenger somewhere who will give the finger to a police officer as an ill-advised signal for help, it is far more consistent with all citizens’ protection against improper police apprehension to leave that highly unlikely signal without a response than to lend judicial approval to the stopping of every vehicle from which a passenger makes that gesture.

Swartz v. Insogna, No. 11-2846-cv, slip op. 8-9 (2d Cir. Jan. 3, 2012) (Newman, J.) (reversing summary judgment for officer who confronted passenger who gave the finger to officer as he pointed radar gun at car moving at lawful speed).

 

Ferdinand Magellan (1480-1521). Bold + stupid = ?

If there's a lesson to be learned from Magellan's life, it's that bold doesn't pair well with stupid.

Bruce Barcott, "They Get Around: A history of voyages around the world, starting in the 16th century", The New York Times Book Review, Dec. 30, 2012 (noting that "[w]hile stopping in the Phillipines, Magellan responded to a chieftain's insult with a rash show of force" and that he "died in the ensuing battle, run through with bamboo spears").

Bonus:    "Drake realized he could travel light and pick up provisions along the way. And by pick up I mean steal."