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Tuesday, December 16, 2014

Erie and/in the District of Columbia

An otherwise routine decision this morning from the D.C. Circuit raised a question I must confess to never before having considered: Why do the Article III D.C. district court and D.C. Circuit consider themselves bound to follow the Article I District of Columbia Court of Appeals on questions of "District of Columbia" law? After all, (1) D.C. is not a state; and (2) D.C. is not covered by the Rules of Decision Act (which, unlike plenty of other federal statutes, does not treat D.C. like a state); and (3) the provisions of the D.C. Code (and, presumably, the decisional law of the D.C. Superior Court and D.C. Court of Appeals) are, for constitutional purposes, federal law--such that it's not even clear the Rules of Decision Act would apply even if it did treat D.C. as a state. Thus, not only is a federal court sitting in diversity and applying D.C. law not bound by the Rules of Decision Act to follow the decisions of the D.C. Court of Appeals; there actually is something that seems untoward about an Article III court being bound by a non-Article III court's interpretation of federal law--even where that federal law is only of local applicability.

Fortunately, hours ten minutes of research led me to the following footnote in a 1979 D.C. Circuit decision, which appears to be the originating citation for all subsequent statements that the Article III D.C. courts defer to the D.C. Court of Appeals on questions of D.C. law:

We do not mean to imply that application of District of Columbia law is mandated by Erie R. R. v. Tompkins, 304 U.S. 64 (1938). In the first place, Congress, when [it bifurcated the D.C. courts into separate Article I and Article III tribunals in 1970], did not amend the Rules of Decision Act, 28 U.S.C. § 1652 (1976), to include the District of Columbia within its ambit. Had Congress wished the Rules of Decision Act to govern in situations such as the one before us, it could easily have revised the act after the fashion of 28 U.S.C. § 1332(d) (1976), which denominates the District of Columbia a “state” for purposes of diversity jurisdiction. Secondly, the constitutional considerations discussed in Erie have no force in this context, for the District, unlike the states, has no reserved power to be guaranteed by the Tenth Amendment.

Nevertheless, we have in past diversity cases looked to the District of Columbia's courts to provide the applicable choice of law principles and substantive rules of decision. That seems proper because the Court Reform Act made the District of Columbia Court of Appeals the “highest court” of the District, and thus the principal arbiter of District law . . . . Indeed, were we not to yield a measure of deference to the District of Columbia Court of Appeals, two courts neither of which could review the other's decisions would engage independently in the process of formulating the local law of the District. That would subvert the dual aims of Erie: discouraging forum shopping and promoting uniformity within any given jurisdiction on matters of local substantive law.

Other than the suggestion that the D.C. Court of Appeals should have the final say on D.C. law (a matter which, again, seems to ignore the extent to which D.C. law is federal law, at least for constitutional purposes), this argument seems quite persuasive to me as a normative matter. But what it means in practice is that the only reason today that Article III judges must defer to the D.C. Court of Appeals on questions of D.C. law is because the D.C. Circuit itself has said so--and so stare decisis, and not the Rules of Decision Act or principles of federalism--carries all the weight (and would not bind federal courts outside of the D.C. Circuit in diversity cases in which choice-of-law rules compel application of D.C. substantive law).

Posted by Steve Vladeck on December 16, 2014 at 11:16 AM in Steve Vladeck | Permalink


Michael -- Sorry I somehow missed your earlier post, but I completely agree. This rule isn't "Erie" in any sense of the 1938 decision. And so the real question is the one Will raised--is there something untoward about a rule (whether legislated or judge-made) that an Article III court should defer to an Article I court's interpretation of law that is federal for constitutional purposes, but local for practical purposes?

Just to explain why I _do_ think there's something untoward, the UCMJ is, in effect, "local" federal law for the military that is, by statute, primarily subject to interpretation by non-Article III military courts. But do we really think that the Supreme Court should defer to the Court of Appeals for the Armed Forces on questions of federal military law?

One distinction might be that the UCMJ is _directly_ enacted by Congress, whereas the D.C. Code is only _indirectly_ enacted by Congress (through authority Congress has delegated to the D.C. Council, and which Congress can override). But I'm not sure why that distinction bears, or should bear, on the deference question. Federal law is federal law, in my book.

Posted by: Steve Vladeck | Dec 17, 2014 8:27:13 AM

I worried about the same problem two years ago here on Prawfblawg: http://prawfsblawg.blogs.com/prawfsblawg/2013/01/erieblogging-day-thirty.html
I agree that the solution is to read the District of Columbia Court Reform Act of 1970 as implicitly instructing Article III courts (including the Supreme Court) to follow the D.C. Court of Appeals' interpretation of DC law.

Posted by: Michael Green | Dec 16, 2014 8:53:01 PM

Will -- On a clean slate, I think it could just be "DC law." But the Supreme Court has historically treated it as federal law (which, among other things, relieved it of the burden of incorporating the Second Amendment before deciding Heller), and there are a ton of jurisdictional precedents tied to that presumption. Of course, if Congress gave the D.C. Council more autonomy, that might alter the analysis.

Posted by: Steve Vladeck | Dec 16, 2014 3:16:03 PM

Fascinating. I haven't thought about this carefully, but re: point 3, does D.C. law have to be "federal" law for constitutional purposes? Can it not just be "DC law," even though it is the product of a body that was itself established by federal law?

Posted by: Will Baude | Dec 16, 2014 2:24:16 PM

Maybe the judges on the D.C. Circuit are Beatles fans, and decided to Stare Decisis... I mean, Let it Be:

Let it be (we'll let the D.C.C.A. decide) . . .

Let it be (we've decided to let the D.C.C.A. decide) . . . .

Ok. Back to grading.

Posted by: Ira Steven Nathenson | Dec 16, 2014 1:47:05 PM

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