People for the Ethical Treatment of Animals v. United States Department of Agriculture and Animal and Plant Health Inspection Service

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Filed: January 14, 2019
No. 18-5074
P EOPLE FOR THE E THICAL TREATMENT OF ANIMALS , ET AL.,
APPELLANTS
v.
UNITED S TATES D EPARTMENT OF AGRICULTURE AND ANIMAL
AND P LANT HEALTH INSPECTION S ERVICE,
APPELLEES
On Motion to Stay Oral Argument
in Light of the Lapse of Appropriations
Before: G ARLAND , Chief Judge, KATSAS *, Circuit
Judge, and W ILLIAMS , Senior Circuit Judge.
O R D E R
Upon consideration of the motion of appellee to stay oral
argument in light of the lapse of appropriations, it is

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ORDERED that the motion be denied. This case remains
scheduled for oral argument on January 25, 2019.
Per Curiam
FOR THE COURT:
Mark J. Langer, Clerk
BY: /s/
Michael C. McGrail
Deputy Clerk
* A statement by Circuit Judge Katsas, concurring in the denial
of the motion to stay oral argument, is attached.

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KATSAS , Circuit Judge, concurring:
The Antideficiency Act states that officers and employees
of the United States may not “employ personal services
exceeding that authorized by law,” except for “emergencies
involving the safety of human life or the protection of
property.” 31 U.S.C. § 1342. Given the current lapse of
appropriations, this provision would seem to bar the Acting
Attorney General from dispatching Department of Justice
attorneys to defend this appeal. For one thing, the appeal
obviously presents no emergency involving human safety or
property; to the contrary, it involves only a question whether
the Department of Agriculture must release certain information
that the plaintiffs desire for their “research and animal
protection advocacy.” Brief for Appellants at 2, People for the
Ethical Treatment of Animals v. USDA, No. 18-5074 (D.C. Cir.
Nov. 15, 2018). Likewise, without any current appropriation
to fund DOJ activities, any “personal services” employed to
defend the appeal would seem to be not “authorized by law.”
The counter-argument must be that activity not otherwise
“authorized by law” becomes so when this Court orders it. The
position appears troubling, for a judicial decree resting on that
premise—“la loi, c’est nous”—seems little better than an
executive decree resting on “l’état, c’est moi.” See Kornitzky
Grp., LLC v. Elwell, No. 18-1160, 2019 WL 138710, at *2–3
(D.C. Cir. Jan. 9, 2019) (Randolph, J., dissenting).
Despite these misgivings, I join my colleagues’ decision
to deny the government’s request to stay the upcoming oral
argument in this case. I do so for two reasons: First, a panel
of this Court recently denied a stay of oral argument in
Kornitzky, and two judges joined a published concurrence
rejecting Judge Randolph’s position. The stay motion in this
case acknowledged our Kornitzky order but presented no
reason for disregarding its arguable precedential effect.

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Second, the stay motion presented no significant argument
regarding the “authorized by law” issue noted above. The
scope of the Antideficiency Act is not a question implicating
our subject-matter jurisdiction, so we need not consider
arguments not fairly raised by the parties. Accordingly, we
should deny the government’s stay motion in this case, but I
remain open in future cases to arguments about whether a
judicial order can supply the legal authorization required by the
Antideficiency Act, as well as arguments about whether that
issue remains open in this circuit after Kornitzky.1
1 Likewise, I express no view on what it means to “employ personal
services” under section 1342—an issue raised neither here nor in
Kornitzky.

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