October 27, 2017 Articles

The Department of Justice’s “Legal U-Turns”

How the department has reversed its positions on appeal.

By Cassandra Robertson – October 27, 2017

A change of presidential administration comes with a shift in policy. Each administration has its own priorities and stakes its own position on major policy questions. Those policy shifts may lead to changes in legal strategy and positions. Law and policy are, after all, closely intertwined.

Nonetheless, it is relatively uncommon for a new administration to change position in a pending appeal. Even in the transition from Bush to Obama, observers noted “how much consistency there is between administrations.” Lawyers in the solicitor general’s office believed that engaging in a blatant reversal on political grounds risked threatening the office’s credibility with the courts. When appellate shifts in direction did occur, they tended to be carefully strategized. 

The Trump administration’s unprecedented willingness to disregard norms has extended into the appellate realm. One legal writer has described the current appellate landscape as a field of “legal U-turns.” Some of these u-turns were expected—especially in civil-rights litigation—given the policy differences between the Obama and Trump administrations. Thus, for example, observers were unsurprised when the Trump administration declined to appeal rulings that challenged Obama administration executive actions on education and immigration. Dropping these appeals left in place a nationwide injunction that has kept transgender students from using school bathrooms that correspond with their gender identity, as well as a Fifth Circuit ruling against the Obama administration’s Deferred Action for Parents of Americans (DAPA) program.

More unusual was the decision by the Department of Justice (DOJ) to withdraw its own appeal of a disability-rights case under the Americans with Disabilities Act (ADA). The Department of Justice had initially joined a plaintiff’s lawsuit arguing that the ADA’s “reasonable accommodation” provision means that an employee who becomes disabled should have priority for reassignment to a vacant position. The District Court for the Eastern District for Virginia ruled in favor of the defendant, and the United States originally appealed. In July 2017, however, the United States moved to dismiss its own appeal.  Onlookers interpreted the move to suggest that “Sessions’ Justice Department may be far less aggressive in defending the rights of people with disabilities than President Barack Obama’s.

Similarly, in a voting-rights case, the Obama administration’s DOJ filed an appellate brief in the Sixth Circuit arguing that Ohio had violated the National Voter Registration Act (NVRA) by removing individuals from the voting rolls based only on a history of failing to vote. The Sixth Circuit agreed, and ruled in favor of the plaintiff’s challenge. The Trump administration, however, then filed an amicus brief with the Supreme Court supporting the state of Ohio and arguing that the court of appeals erred in concluding that the Ohio statute violated the NVRA.

In other cases, the quick change in legal position seems to be compounded by a lack of coordination that makes the federal government’s position appear fragmented or even contradictory. A lack of clearly defined strategy is evidenced by the Trump administration’s request for several delays in the case of House v. Price (formerly House v. Burwell), in which members of House of Representatives challenged the legality of cost-sharing-reduction payments to insurers under the Affordable Care Act. The district court ruled in favor of the House in May 2016. Now, the administration faces a deadline of October 30, 2017, to provide a status report regarding whether it wants to continue its appeal.

And in the most unusual appellate shifts, the federal government has ended up appearing to fight itself in court. Thus, for example, the Equal Employment Opportunity Commission (EEOC) and the DOJ filed dueling amicus briefs in Zarda v. Altitude Express, with the EEOC arguing that Title VII’s prohibition on sex discrimination encompassed sexual-orientation discrimination, and the DOJ arguing that it did not—and also suggesting that “[a]lthough the Equal Employment Opportunity Commission (EEOC) enforces Title VII against private employers . . . and it has filed an amicus brief in support of the employee here, the EEOC is not speaking for the United States and its position about the scope of Title VII is entitled to no deference beyond its power to persuade.” When the U.S. Court of Appeals for the Second Circuit heard the case en banc, Judge Rosemary Pooler noted that “[i]t’s a little bit awkward for us to have the federal government on both sides of the case.” Judge Pooler asked the attorney representing the Justice Department: “Does the Justice Department sign off on a brief that EEOC intends to file?” The attorney, however, responded: “That’s not appropriate for me to disclose,” a stance he repeated even when the judge pointed out that it was a question of “procedure, not internal deliberations.”

Federal government attorneys also appeared on both sides of NLRB v. Murphy Oil, a labor case argued on the first day of the Supreme Court’s 2017 term. The National Labor Relations Board (NLRB) challenged an employer’s use of an arbitration agreement including a class-action waiver as part of an employment agreement. In a cert petition filed in September 2016, the NLRB argued that this practice violated the National Labor Relations Act’s protection of collective action in the workplace. After the new administration took office, however, the solicitor general filed an amicus brief in support of the employer, directly contradicting the NLRB’s position. At oral argument, government lawyers argued on both sides—Richard Griffin, the general counsel of the NLRB argued the petitioner’s case, and Deputy Solicitor General Jeffrey Wall argued as an amicus on behalf of the respondent.

This is not the first time that the executive branch has argued against itself on appeal. Former solicitor general Archibald Cox argued as an amicus against the NLRB in 1963. Likewise, under the Reagan administration, the solicitor general opposed the EEOC’s stance on affirmative action. Such divisions create judicial confusion, however, and are ultimately less persuasive than a single federal position on appeal. And, as one observer has noted, “professional responsibility issues are raised when you are filing an amicus brief in a case where you've already filed a brief on behalf of the same client.”

Cassandra Robertson is a professor of law at Case Western Reserve University School of Law.

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