- Funny how the government sometimes regards our time as necessarily worth $15 an hour or more, and other times as worth far less [Coyote]
- “Trademark lawsuit over LARP archery gets thrown out of court” for lack of personal jurisdiction [Joe Mullin/ArsTechnica, earlier here, etc.]
- A sucker deal? Consumer class action alleges substitution of squid for canned octopus [Nick Farr, Abnormal Use]
- Those who knowingly send texts that distract drivers could face liability in Pennsylvania [ABA Journal]
- Zach Graves, “Optometrists Push For State Laws Blocking Online Eye Exams” [TechDirt]
- D.C. Circuit upholds net neutrality regulations in a “majority opinion…dripping with agency deference.” [Daniel Lyons, Jonathan Adler, Michael Greve]
Deferred prosecution agreements and their close relatives non-prosecution agreements (DPAs/NPAs) have become a major tool of white-collar prosecution in recent years. Typically, a business defendant in exchange for escape from the costs and perils of trial agrees to some combination of cash payment, non-monetary steps such as a shakeup of its board or manager training, and submission to future oversight by DoJ or other monitors. Not unlike plea bargains in more conventional criminal prosecution, these deals dispense with the high cost of a trial; they also dispense with the need for the government to prove its allegations in the first place. DPAs may also pledge a defendant to future behavior that a court would never have ordered, or conversely fail to include remedies that a court would probably have ordered. And they may be drawn up with the aim of shielding from harm — or, in some other cases, undermining — the interests of third parties, such as customers, employees, or business associates of the targeted defendant, or foreign governments.
So there was a flurry of interest last year when federal district judge Richard Leon in Washington, D.C., declined to approve a waiver, necessary under the Speedy Trial Act, for a DPA settling charges that Fokker Services, a Dutch aerospace company, sold U.S.-origin aircraft systems to foreign governments on the U.S. sanctions list, including Iran, Sudan, and Burma. While acknowledging that under principles of prosecutorial discretion the Department of Justice did not have to charge Fokker at all, Judge Leon said given that it had, the judiciary could appropriately scrutinize whether the penalties were too low.
Now a three-judge panel of the D.C. Circuit has unanimously overruled Judge Leon. It pointed out that under well settled law, charging decisions are entrusted to the DoJ or other executive branch prosecutors, not the judiciary, and that judges may not intervene to insist that additional or more stringent charges be filed – and that is what the pattern in this case amounted to, in the appeals panel’s view.
So far so good, you might think. But the language of the appellate ruling in places might be read to suggest that courts should simply defer to the Justice Department’s judgment and green-light the DPAs it may negotiate, period. And that would be disturbing, since over-lenience is only one of the possible problems with these devices. Noting the rule-of-law concerns that scholars have voiced about DPAs, Michael Greve writes that the new Fokker Services decision “in sharp contrast, oozes with ‘trust your friendly prosecutor’ language” and speaks of dispensing with “seeking a conviction that the prosecution may believe would be difficult to obtain or would have undesirable collateral consequences.” Greve adds: “Inquiring minds might want to know whether the conviction would be ‘difficult to obtain’ for practical reasons — or because the charges are preposterous and brought for reasons bordering on extortion. …No judicial scrutiny means more than boundless prosecutorial discretion. It means mobilizing the courts to create a due process façade for highly suspect bargains.” Let’s hope the ruling isn’t read that way.
A panel of the D.C. Circuit ruled today that the IRS is not free to rewrite the ObamaCare statute to extend tax credits from users of state-run health exchanges, as per the law’s language, to users of the federal exchange as well, because the federal government is not a “State.” [Halbig v. Burwell; Ilya Shapiro, Cato] Later today, a panel of the Fourth Circuit ruled that yes, it’s free to do so. [King v. Burwell] Given the instant one-day circuit split and the importance of the issue, further court consideration is inevitable, and the Obama administration has already indicated that it will seek en banc consideration by the full D.C. Circuit, packed with its own recent appointees. More: The work of my Cato colleague Michael Cannon and Case Western lawprof Jonathan Adler helped undergird the suit; Cannon has commentary here and here and Adler here and here.
Comments from my Cato Institute colleagues Roger Pilon and Ilya Shapiro, as well as CEI’s Hans Bader. A “totally risk-free strategy for Democrats, as long as they are never again in the minority.” [Lowering the Bar] Patterico on the elegant consistency of the New York Times editorial page over the years (it is consistent, once you know to look for the pattern) and an unheeded 2005 prayer (YouTube, auto-plays) from then-Sen. Joseph Biden (D-Del.). And some further observations from Jonathan Adler.
P.S. Further thoughts from Roger Pilon regarding the immediate focal point of the struggle, the three nominations to the D.C. Circuit:
…a second point, too little noted, concerns the implications from there being numerous “judicial emergencies” in the other circuits — vacancies in seriously overworked circuits for which the president hasn’t even named anyone. Judicial emergencies have increased 90 percent since 2006, and the vacancies with nominees have declined from 60 percent to 47 percent. Yet rather than attend to filling those vacancies, Obama and Reid are focused on adding three more judges to the already seriously underworked and overstaffed DC Circuit. That speaks volumes, of course, about what their agenda is. As I wrote yesterday, the DC Circuit’s docket is mostly about challenges to administrative decisions. Judges in such cases have considerable discretion about whether or not to defer to the judgment of those agencies. If you want to rule by executive diktat, as Obama plainly does, you’ll want “your people” on that court, deferring to “your people” at EPA, HHS, OSHA, the FEC, the IRS, and so on down the line. Let the folks out in the country wait a little longer to get justice.
P.P.S. And relatedly from Mickey Kaus:
Regulation is D.C.’s economic substructure, its mode of production, as Marx might say – even more so than legislation. Those big gleaming office buildings aren’t filled with Congressional lobbyists! They’re filled with administrative lawyers. Now, with a full 11 member court stacked to favor Democrats, there will be even more rules to litigate, more counsel to hire, more mansions to house them and restaurants to feed them. Whatever happens in the rest of America, the capital’s economic future is secure.
They should erect a statue of Harry Reid outside the Mazza Gallerie.
Slate really embarrassed itself the other day with a column by Emily Bazelon and Dahlia Lithwick flatly misreporting the holding of a Janice Rogers Brown opinion on religious liberty and Obamacare. I wrote this piece in response, which just appeared at PowerLine.
More: West Coast politics and law blogger Patterico likes my piece. Ed Whelan of the Ethics and Public Policy Center writes on Twitter to say that a post he wrote on Saturday “seems to be what triggered [the] weak correction.”
Although the D.C. Circuit Court of Appeals has ruled its composition invalid, the National Labor Relations Board (NLRB) “declares that it will keep doing business as if nothing happened.” [WSJ via Fed Soc Blog]
This is by no means the first face-off between the D.C. Circuit and an agency resistant to its will: for another, see this 1981 Regulation account (PDF, scroll to page 11, “Reversing the D.C. Circuit at the FCC”) of a series of showdowns between the appeals court and the Federal Communications Commission. That one ended happily for the independent agency, but then the FCC may have been on firmer ground going to bat for its right to exercise policy discretion as an expert agency than it would have for its right to be constituted improperly through unconstitutional appointments.
- Ninth Circuit dissent: ruling “jeopardizes academic freedom” by making it too easy for students to sue professors [WSJ Law Blog]
- When the bumptious and sociopathic go after our blogging friend, it’s Ken 1, b./s.-ers zero [Popehat]
- Uh-oh: “Election Results Seen as Victory for Business of Law” [Gina Passarella, The Legal Intelligencer]
- In the mail: “How to Feed a Lawyer: And Other Irreverent Observations from the Legal Underground” [Evan Schaeffer]
- “Cato Files Brief in the First Federal Appeal Regarding the Contraception Mandate” [Ilya Shapiro, earlier here, here, etc.]
- “Judicial independence” campaigners snooze through unfair attacks on D.C. Circuit [WSJ, earlier]
- “Anyone whose blood pressure needs a boost should check out Overlawyered…” [James DeLong, American Thinker]
- That’s represent, not resemble: “Lawyer appointed to represent pit bull” [WSJ, NY Times] NJ lawmakers eye idea of doggie seat belts, cont’d [Bloomberg, earlier here, here]
- “Government to Argue That Detention for Carrying Arabic Flashcards Was Justified” [Lowering the Bar]
- Columnist-suing attorney continues to reap lots of lawyer love in her race for Illinois judgeship [Madison County Record]
- Speaking of which, what is it about Madison County, Illinois, anyway? [Radley Balko, more]
- Sense of humor: I wasn’t expecting Values Bus to retweet this of mine;
- Why the SEC keeps losing in court [Eugene Scalia, WSJ; Ed Whelan, NR “Bench Memos,” on Steven Pearlstein’s dyspeptic Washington Post rant about purported activism by D.C. Circuit judges]
- Unintended consequences: “Olive Garden, Others to Cut Worker Hours in Advance of Obamacare” [Washington Free Beacon]