Since the D.C. Circuit did not issue any opinions last week, I took a look at what might be forthcoming from a certain potential Supreme Court nominee. President Biden has promised to announce his nominee by the end of the month. If Judge Jackson is the chosen nominee (and assuming she follows Judge Garland’s practice) we may not see any further opinions from her. But if she tries to get one last opinion out the door before an announcement or any confirmation hearings begin, what are the likely candidates?
I looked back through the D.C. Circuit argument schedule and pulled the dockets for the earliest cases with Judge Jackson on the panel to see which remain undecided. For the hearings from September and October, there are five options, summarized briefly below, with links to the oral argument for your listening pleasure.
- Adams v. Judicial Council of the Sixth Circuit deals with an investigation into whether U.S. District Judge John Adams suffered from a disability that rendered him unable to discharge the duties of his office. Judge Adams had been reprimanded for misconduct and ordered to undergo an independent mental health evaluation. After attempting to overturn the evaluation requirement, Judge Adams brought this action as a collateral attack on the investigation. While the case was pending, however, the Judicial Council determined that Judge Adams’ behavior had improved and the mental health evaluation and investigation were no longer necessary. The district court dismissed the case as moot, but Judge Adams has argued on appeal that the court should opine on the lawfulness of the earlier order based on the ongoing reputational harm it has caused him. The government argues in response that such an opinion would be an advisory opinion prohibited by Article III.
- NYC C.L.A.S.H. v. Fudge is a challenge to a HUD rule prohibiting smoking in and around public housing. Appellant argues that the rule exceeds the federal government’s power under the Constitution and HUD’s statutory authority, and that the rule is arbitrary and capricious under the APA.
- United States v. Harrison is a criminal appeal where the defendant pleaded guilty to conspiracy to distribute and possess with intent to distribute cocaine base and cocaine, as well as using, carrying and possessing a firearm in furtherance of a crime of violence or drug-trafficking offense. The defendant argues that he did not plead guilty knowingly and voluntarily, that the district court imposed an unreasonable sentence, and that his counsel was ineffective for failure to continue the sentencing hearing in a separate case in the D.C. Superior Court.
- Telematch, Inc. v. AGRI is a FOIA case, where the appellant sought various categories of data about farms and farmers who receive benefits from the Farm Service Agency. That data contains customer numbers, farm numbers, and tract numbers. USDA provided a statistical version of the requested data, but removed customer numbers, farm numbers, and tract numbers that would identify the farmers and farms associated with the data. Appellants challenged that withholding, which USDA based on a particular statutory provision dealing with agricultural data, as well as various FOIA exemptions.
- Belmont Municipal Light Dep’t, et al. v. FERC challenges FERC’s order accepting tariff changes implementing New England’s electricity grid operator’s Inventoried Energy Program (designed to stockpile energy during cold winter months). The petitioner argues that in accepting the program, FERC violated its duty to ensure just and reasonable rates and that FERC lacked substantial evidence showing that the program’s benefits would justify the costs.
In the event that Judge Jackson is nominated before any of these opinions are published, the parties may be in for a long wait.