A Libertarian Victory Everyone Should Love

Tap…  Tap…  Is this thing on?

In an uncharacteristic moment of weakness, Mr. Likko gave me a set of keys to this site.  Perhaps he was drunk. ((Thass nonshense! — BL)) Perhaps he expected me to be more mindful of that timeless proviso from the wisest of the Marx Brothers: “I don’t care to belong to any club that will have me as a member.”  Whatever the explanation, I now have keys.  So I write.  Also, because the article I’m throat-clearing in front of touches on political opinions, I should disclose myself as an unabashed tax-and-spend liberal, though perhaps the type Phil Ochs once sang about, who believes strongly that the government can and should take from the well-off to assist the needy.

Today’s topic (inspired by Short Circuit) is an article about U.S. Army Corps of Engineers v. Hawkes published by the same group.*  Generally, I read Short Circuit because the summaries are great and the politically motivated asides are easy to ignore.**  This article, though, takes a well-earned victory lap after securing an order that I believe everyone should support.

*Lest you think my title is facetious, both the Institute for Justice (google blurb: “An U.S. libertarian public interest law firm. Dedicated to advance economic liberty, school choice, property rights, and free speech.”) and the Pacific Legal Foundation (wikipedia: ” the first and oldest conservative/libertarian public interest law firm in the United States”) appear to be unabashedly libertarian.

**For example, the June 3rd summaries accurately describe the Ninth Circuit’s rebuke of Arizona’s attempt to punish the Arizona Students’ Association for its speech, but can’t stop without noting the case makes “[n]o mention of the First Amendment rights of students compelled to fund advocacy with which they may not agree, who are not parties to the case.”

The Case

At issue in the case is a decision by the Army Corps of Engineers designating the plaintiff’s land as “waters of the United States” and therefore subject to significant federal regulation.  Plaintiff therefore faced a choice.  It could (1) seek permission to operate under those regulations (with evidence showing that permission would be expensive/time-consuming to seek and unlikely to be obtained); (2) ignore the regulations and defend against potential enforcement; or (3) challenge the designation in Court.  It chose door #3, and the Supreme Court has now allowed it to proceed with that challenge.

The Doctrine

At issue is the question of reviewable final agency actions.  To be “final,” an agency action must meet two tests.  First, the action must mark the consummation of the agency’s decisionmaking process—it must not be of a merely tentative or interlocutory nature. And second, the action must be one by which rights or obligations have been determined, or from which legal consequences will flow.  (the first requirement was essentially admitted).  Final agency actions can then be reviewed only if there are no adequate alternatives to that review in court.  “Adequate” being the key word.

The Holding

The Supreme court held that the decision was final, using a commonsense approach to the consequences of the Corps of Engineers’ determination.  It noted that a finding that water is NOT “waters of the United States,” called a negative finding,  “both narrows the field of potential plaintiffs and limits the potential liability a landowner faces for discharging pollutants without a permit.”  The positive finding in this case must, at minimum, therefore “represent the denial of the safe harbor that negative [findings] afford.”  It then held that the decision was reviewable because neither door #1 (“whatever pertinence [the permit application process] might have to the issuance of a permit, none of it will alter the finality of the [positive finding], or affect its suitability for judicial review”) nor door #2 (“parties need not await enforcement proceedings before challenging final agency action where such proceedings carry the risk of ‘serious criminal and civil penalties.'”) were adequate alternatives.  As a result, the Eight Circuit’s reversal of the District Court’s dismissal was affirmed, and Plaintiffs can proceed to the merits of their challenge to the positive finding.

This Liberal’s Thoughts

I won’t rehash the article, or quibble with its more ideological editorial comments, because I think it is certainly right that the outcome “is an important victory for . . . landowners everywhere who seek to avoid a Hobson’s choice between going through a costly, time-consuming permitting process with an unknown outcome or facing civil and criminal penalties.”  More generally, I think that when the government makes a final decision that harms a party, that party should be able to challenge the validity of that decision, and I agree with my libertarian friends that the Court can be too hostile to that process.

Here’s another example–from my own practice–that may help explain why.  I represented (pro-bono) an asylum applicant who had entered the country without inspection many years ago,* fleeing from specific persecution on account of his political beliefs by South American guerillas.**  Some time after he did so, he linked up with a public aid group and submitted an asylum application.  At the time he did so, this meant he automatically received a work authorization and was therefore both present and employed in the country legally, but with no long-term right to remain.  After he completed his application, President Clinton (the male one) signed the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”), which allowed for summary deportation of previously-deported immigrants, but did not apply retroactively.  Years after that, the government finally got around to my client’s asylum application and promptly threw him into summary deportation proceedings.  Although he had defenses to deportation separate from his asylum claim (for practitioners: his case was strong enough he had a real shot at mandatory withholding/CAT relief), the government’s incorrect decision to apply IIRIRA to my client’s application immediately foreclosed his ability to obtain asylum.  And his remaining defenses had the twin virtues of being strictly less valuable (asylum is permanent, mandatory relief is temporary) and strictly harder to obtain.  It took several years, retention of pro-bono counsel (me), two Ninth Circuit appeals, and a successful motion for reconsideration, to get a Court to agree to review the validity of the government’s incorrect decision to apply IIRIRA.  In my view, there should never have been any jurisdictional issue, and my client should have been readily able to challenge the initial determination (which he would have won easily***).

The parallels between the two cases seem obvious (at least to me!).  In both cases, the Government took a debatable final action.  In both cases that action restricted the other party’s rights.  In both cases, the other party still had some remaining rights it could fight for.  And in both cases, I see no value in forcing the other party to fight for those remaining rights before challenging the final action restricting them.  From a libertarian’s perspective, this is about runaway regulators unconstitutionally exercising legislative (or non-federal) powers.  From mine, its about fairness to litigants and a desire to make sure that the government acts fairly rather than hiding behind technical and unjustified jurisdictional barriers.  That said, maybe I’m missing something, or there is some unintended consequence here that the common law collective can point out.

*This was his second time fleeing the same oppression, the first time he was caught at the border, denied counsel, and then coerced into “voluntarily” consenting to be deported.  The INS at the time was notorious for doing this routinely, ultimately resulting in serious civil injunctions in the nineties.

**Without spending too much time on the story, let’s just say he had a 100% good claim to asylum, as evidenced by the fact that his wife and child received asylum on the same story because they were not tainted by the procedural morass just described.

***When we won the motion to reconsider, and the Ninth Circuit agreed it had jurisdiction over our appeal, the Government swiftly exercised its discretion to grant asylum.  Justice was done, but nobody likes a mooted appeal that had a high likelihood of success.



Re-Activate Your USAJobs Account

It appears that there is a job vacancy at the U.S. Department of Justice. Solicitor General Donald Verilli is stepping down at the scheduled end of this year’s Supreme Court Term. His principal deputy, Ian Heath Gershengorn, will helm the SG’s office until a replacement is named.

It should be noted that the Solicitor General serves at the pleasure of the President ((Sounds like the title of Harlequin Romance’s foray into political thrillers, doesn’t it?)) so the incoming President will name her own Solicitor General in the event that she prefers someone else to Mr. Gershengorn.

The Disability Morass

Hello everyone, I am the commenter, and now blogger, known as Don Zeko. By way of introducing myself to the community, I thought I’d scribble down some thoughts on the law of social security disability cases.

Since the great Recession, SSDI has become far more politically visible and controversial as it has become a much larger line item in the federal budget. Is it, as critics allege, becoming a “new welfare” in which able-bodied workers are paid to drop out of the job market forever, or is it an integral part of the safety net that prevents people from starving in the streets if a medical condition prevents them from working?

When I was a 2L in 2012, I interned at a very small plaintiff’s firm, and the majority of my time was spent on SSDI cases. Typically, I would get a binder full of legal paperwork and medical records with a client’s name on it. That client would be a person who had applied for SSDI, been initially rejected, and then filed for an appeal. Thus these were necessarily the edge cases; strong enough for my boss to take them on a contingency basis, and weak enough for the initial rejection. I would read the file in detail, which typically consisted of hundreds of pages of photocopied doctor’s notes, and write a 2-3 page brief to the effect that the client had a serious medical condition and could not under any circumstances hold down a job. Then I would do it again. A few months later, after I had moved on to other matters, my boss would go to perhaps a one-hour hearing before an administrative law judge in a tiny windowless courtroom. The client would get disability or not, and the firm would get paid or not.

Armed with this very small window into the way the system works, I’m not going to attempt to answer that question, but I will offer a few observations about where SSDI stands.


Disability rulings are arbitrary

In North Carolina, where I was doing this work, SSDI appeals are heard by a single judge and do not have a lawyer present to argue against a finding of disability. The only people saying anything in those hearings are the administrative law judge, the plaintiff’s attorney, the plaintiff, and whatever witnesses the plaintiff or the judge brings along. That might include a spouse or family member to testify as to how the plaintiff’s condition affects her everyday life. It might include a phone interview of a vocational expert who will testify that there are however many jobs available in North Carolina for a job seeker with a given skillset, a given age, and a given level of impairment. Very few of these cases are appealed past the post-denial hearing.

So in the absence of an adversarial process or an appeal, the judge you get makes a tremendous difference in the plaintiff’s odds of success. The jurisdiction’s administrative judges are assigned these cases on a rotating basis, meaning that for most of those cases I worked, the issue had already been decided one way or another by blind luck before I ever opened that binder.

To its credit, the social security administration does have policies to try to give the process some consistency and transparency. It maintains listings for common medical conditions and categories of medical conditions, setting out combinations of symptoms, ages, and skillsets that will prompt an automatic finding of disability. But in the sorts of cases I read, this simply meant there was an additional set of goalposts to target. I could either try to convince the judge that my client met the legal definition of disability, or I could try to convince the judge that my client met the requirements set out in the listings. In either case, subjectivity was rampant. Does this person’s back pain allow her to stand for four hours at a time or six hours at a time? Is this plaintiff unskilled, or do any of the dozen jobs he’s held over the past twenty years make him semi-skilled? It all came down to the judge. On a darker note, while I have no quantitative evidence to show disparities in outcome on the basis or race or gender, it would not surprise me in the least if that were so.


Disability rulings are slow

Again, these hearings would usually happen months after I wrote the brief to present to the presiding judge. Before I sat down to write the brief, it had usually been months since the client hired my firm, even longer since the plaintiff applied and was rejected, and longer still since the plaintiff’s medical condition first interfered with their ability to work. For once, the greatest delays were not usually caused by the court’s sloth. Rather, proving one of these cases usually requires a body of evidence that can only be built up over a long period of time. The plaintiff must be 1) diagnosed and must then 2) be treated. 3) The condition must persist after treatment, and the plaintiff must 4) continue to fail to find work. I would routinely read files with medical records from the late 90’s that were completely relevant. The fact sections of my briefs would often be a history of most of the plaintiff’s life, told entirely in terms of doctor’s visits, surgeries, changing opioid prescriptions, and failures to hold down a job.


Disability rulings are legally inextricable from economics

The plaintiffs in these cases almost invariably had two characteristics in common: their impairment was not objectively measurable, and they did not have a college degree. Most had conditions that caused chronic pain: rheumatoid arthritis, soft tissue injuries, spinal problems, fibromyalgia. A few had personality disorders, and a few had chronic malaise or similar symptoms. Almost all of them were clinically depressed and hadn’t worked in years. Could these people perform the duties of a minimum-wage job?

The answer, as per usual in the law, is “It depends.” Almost all of them could have worked for five to ten minutes just fine. The difficulty is in extending that to a full work week, and another after that. Whether or not they could do that depended upon their condition, but also on their own motivation, their mental resources, their desperation to keep a job or lack thereof.

The legal definition used by the social security administration to answer this question has two parts. First, are there jobs that the applicant can perform on a consistent basis? Second, are those jobs present in significant numbers in the local economy? And the fact is that in the middle of the recession in NC, jobs for an unskilled worker with physical limitations existed, but not in huge numbers. So if an applicant stands in front of a judge and says that he can stand for two hours a day and sit for four, maybe that means he’s got a whole lot of pain, or maybe he’s got a moderate amount of pain and doesn’t want to work. Maybe he wanted to work, got discouraged, and gave up. More likely a little of everything is going on and feeding back on itself. Beyond that, the judge has to determine both whether or not he can perform that job, but also whether or not he can be hired to that job. So the judges in these cases must determine, usually on their own, all sorts of things that they have precious little ability to determine. How skilled is the plaintiff? How much demand is there for those skills? How much of the plaintiff’s difficulty with sustained job performance is laziness, how much is depression, and how much is the medical condition? In other words, the judge must answer the big political question from the top of the post, and must do so on an individual basis with precious little evidence one way or the other.

I am ambivalent about much of what I saw working this job, but I do know one thing: I do not want to be an administrative law judge.Photo by MDGovpics

Posner on Prose

Judge Richard Posner took some time to write a rather remarkable concurrence in an otherwise not-particularly-notable appellate review. The case was United States v. Dessart, in which a fellow from a rural town just outside Appleton, Wisconsin manufactured and sold controlled substances over the internet. Amusingly, the website proffered a tissue of non-criminality: he claimed that the various substances were “for research only.” This fooled exactly no one. On appeal he resorted to calling the investigators liars and challenging the probable cause underlying the search warrant that yielded the bulk of the evidence used against him. Unsurprisingly, this failed, and a panel of the Seventh Circuit affirmed the convictions.

Judge Posner concurred in the result, but his concurrence focuses on the use of legal phrases rather than the intellectual analysis used by the majority. Beginning on page 17 of the slip opinion (linked above):

  • Why must the appellate court pay “great” deference to a trial court’s probable cause determination? Isn’t it sufficient to say “deference?”
  • What is actually meant when review of trial court hearings is described as “deferential”?
  • Why is it “actual guilt” and “actual innocence”? Why not just “guilt” and “innocence”?
  • Phrases used in standards of review like “a heavy” or “a nearly insurmountable” burden of proof” are hyperbolic, no? So too with calling a jury’s verdict “wholly irrational.” So if the standard is going to be, “We’re not going to review a verdict,” then just say so!

Judge Posner goes on to wonder at phrases like “material errors of law” and “abuse of discretion,” calling them definitionally “opaque.” Posner challenges the prevailing nomenclature with a claim that “If the appellate court is persuaded that the trial court erred in a way that makes the trial court’s decision, unacceptable, it reverses. What has discretion to do with it?”

I disagree. A trial judge may properly handle a lot of things in many different but all appropriate ways, which is called “discretion.” That discretion is not unlimited. How else, then, to describe a situation in which a judge, permitted by law and procedure to do A, B, or C, does D instead? I suppose we might say “misuse” of discretion or “error,” but “abuse of discretion” appears to me to be a nicely-compact phrase descriptive of the event. This is especially true if we wish to convey degrees of error, to point out that some errors are more severe than others. “Abuse of discretion” is not the same as “harmless error,” neither of which are the same as “miscarriage of justice.”

Posner, though, finds this taxonomy worrisomely convoluted:

I don’t disagree with the decision to affirm the district court. I disagree merely with the rhetorical envelope in which so many judicial decisions are delivered to the reader. Judicial opinions are littered with stale, opaque, confusing jargon. There is no need for jargon, stale or fresh. Everything judges do can be explained in straightforward language-and should be.

Well, sure. Lawyers and laity alike no doubt shall offer cheers for clarity and boos to jargon.

Dessart offers the reader no more than the usual amount of jargon, and particularly to lawyers is as easily-understood as anything else out there. Respectfully, I submit that Judge Posner overstates his case. He contends that phrases like “material error of law” are “stale, opaque, confusing jargon.” I disagree: “material error of law” is a compact phrase whose meaning is evident from its own words — the opposite of opaque and confusing. If the phrase be deemed “stale,” that may be in part because no better turn of phrase has come along that more efficiently describes the concept.

There are plenty of phrases in law that could benefit from intelligent compaction, most them the sorts of couplets that we commit to rote memory while forgetting meaning. For example:

  • “Cease and desist.” This means “stop and stop,” and it seems we could stop at one stop.
  • “Aid and abet.” If I said, “help and help,” you’d say that the help offered by the second “help” doesn’t really help.
  • “Sole and exclusive.” “Only and only,” which really only needs one word.
  • “Convey, transfer, give, devise, bequeath, assign, and transfer,” a phrase I actually saw in a will not very long ago. Myriad variants abound; particularly in the context of making a testamentary gift, why are we concerned with the subtle differences between “devising” and “bequeathing” particular chattel from a testator to an heir?
  • “Null and void.” Once you’ve nullified something, does it need to then be voided? It’s already a nullity.
  • “Indemnify and hold harmless.” Isn’t indemnity, by definition, causing the indemnitee to be held harmless?
  • “So ordered, adjudged, and decreed.” In my proposed orders, I just write “So ordered.” I prefer “ordered” to other words indicating a command of the court, because it dovetails with the common language “court order.” There it is, dude: a court order. Maybe you can go further and say, “Not only is that court order, it’s also a court adjudication, and a court decree,” but “court order” seems to pretty much cover all the necessary ground.

Had Judge Posner pointed out things like this, I’d agree with him that these phrases needlessly weigh down the description of the legally significant thing being described. They’re anachronistic, too: phrases like these are legacies from the Norman Conquest, when lawyers and judges in court spoke Norman French to one another and had to translate their phrases into contemporary English for the benefit of the people who were actually supposed to obey their orders. This may have been a progressive way of doing things back in the eleventh century, but it’s a thousand years later now. The contemporary Anglosphere’s legal system is effectively monolingual.

Prolix anachronisms aren’t what Judge Posner was talking about, though. Phrases like “material error of law” and “great deference” aren’t the same sort of “stale, opaque, confusing jargon” as these linguistic relics. Seems to me His Honor hints at needlessly re-inventing the law’s already-functional semiotics in pursuit of ephemeral linguistic efficiencies.

I do, however, endorse Judge Posner’s continued use of the Oxford comma.

Ordinary Times, Common Law


Common Law is a satellite project of Ordinary Times. Our writers are lawyers drawn from the Ordinary Times community, most of whom work as attorneys at law. ((A “lawyer” is a person who is learned in the law. An “attorney” is someone who acts for someone else. One might be one, or the other, or both, or neither.)) The initial emphasis for Common Law is to focus intellectually on the profession of law: practice and philosophy, study and scholarship, tips and tricks of the trade. It’s not intended to be a place where there is a lot of liberal-versus-conservative kinds of politics happens, which doesn’t mean those kinds of things aren’t going to be part of a discussion, just that this likely won’t be the focus.

Maybe over time it will become something else. We’ll just have to see. Stay tuned — see what happens!