D.C. Circuit Judge Millett Says En Banc Appeals Hard, Panel Selection Random

Millett said D.C. Circuit judges try to be respectful of each other's views and the importance of three-judge panels in deciding the vast majority of cases. She said it's "pretty hard" to convince the full slate of D.C. Circuit active judges to grant en banc hearings to review petitions appealing panel rulings. "It's got to be more than just, 'I might have called it differently,'" she said: Nobody on the court likes to have colleagues, in effect, say, "Idiot ... Let's clean up this mess."

Millett said en banc reviews were reserved for exceptional cases or when the stakes are higher, assuming petitioners have a serious argument. For instance, if a panel ruling would create a conflict with another circuit, which can invite Supreme Court review, the D.C. Circuit might grant en banc review to take a second look, she said. En banc reviews also can be warranted to resolve conflicts between panels rulings within the D.C. Circuit.

Millett confirmed that judges generally are chosen at random to sit on panels reviewing cases. She said there could be some exceptions in "comeback cases" where judges send an order back to an agency and then want to review the order on remand. She also said motions panels, which review stay requests and other initial motions, occasionally will seek to become the merits panel reviewing a particular legal challenge on the merits. Afterward, she told us that those cases are very rare and usually when there's some urgency. A D.C. Circuit panel, with two other judges nominated by Obama, Thursday denied a telco/cable request for a stay blocking parts of the FCC net neutrality and broadband reclassification order, though it did grant expedited review (see 1506110048). Millett wouldn't comment on any pending cases.

Millett did offer some advice for attorneys appearing before the court. She stressed the importance of submitting well argued briefs that help judges understand the case specifics and necessary background. Millett said she hates acronyms; if overused, "it just becomes unreadable" and "dehumanizes cases. ... Don't do it to us." She said she understood the need for page limits on briefs but said, "I read all the briefs. That's my job."

Millett said oral argument can be "incredibly helpful" and even decisive in clarifying cases and her views of them. She said amicus briefs that delve into an argument in more depth than a primary brief also can be "very helpful" but weren't helpful if redundant. She criticized the inclusion of "personal attacks and insults" in cases coming out of bitterly fought proceedings at agencies: "Be professional about it. Leave the scrappy fighting at the doorstep." That's coming from a judge who as an attorney has argued 32 cases at the Supreme Court and holds a second-degree black belt in Taekwondo, according to her court bio.

FCC Deputy Associate General Counsel Richard Welch said court review of the agency's massive 2011 USF and intercarrier compensation order presented "a case unlike any other." He said the number of petitioners, briefs and attorneys appearing before the 10th U.S. Circuit Court of Appeals was larger than in any FCC case he could remember, and the substantive and procedural disputes were "bitterly" fought. "People despised this order," he said, saying the Pennsylvania Public Utility Commission was particularly upset with the FCC decision to intervene in state affairs in driving down intrastate access charges. That was just one of over 60 issues teed up in the case, Welch said, and yet the FCC essentially won on everything, when the 10th Circuit upheld its order in 2014, which he called a "stunning result." The Supreme Court then refused to hear an appeal in May, sealing the FCC victory (see 1505040053). After over two years of intense litigation, Welch joked, he might have jumped off the FCC's Portals building into the Potomac River if the Supreme Court had agreed to hear the appeal.

Welch cited some possible explanations for the FCC victory. First, "We had a strong order," he said. Agree or disagree with the order, he said, it was "well-written, well-reasoned" and "that showed." Second, Welch said the FCC benefited from pushing a popular concept -- "broadband access for all America" -- while state regulators were "trying to protect their turf" and "carriers were trying to protect their revenue streams." Third, Welch said the petitioners' challenges could have been hurt because they attacked the FCC on so many fronts, and had so many lawyers speaking at oral argument, that they created a "cacophony" of voices. Some of the issues probably "got lost" in the din, he suggested.

Making a general observation for attorneys, Welch noted that petitioners in a handful of other cases have had their legal challenges to FCC orders thrown out in court for various procedural defects, such as lacking standing and failure to exhaust administrative remedies. He said courts had dismissed the challenges of multiple parties to bureau orders decided on delegated authority for failing to seek final action by the commission. "You can't do it," he said, referring to the bureau order challenges. Individual parties may not know better, but industry groups should, he said.