Notice & Comment

D.C. Circuit Review – Reviewed: More Brooding Spirits, C.J. Garland Edition

On one hand, this was a quiet week in the D.C. Circuit; there were just two opinions, neither of which is that significant (though one is noteworthy for jurisdiction hawks).* On the other hand, President Obama nominated Chief Judge Garland to serve on the Supreme Court. So on net, it’s fair to say that this was an important week.

A few days ago I prepared a list of Chief Judge Garland’s dissents and concurrences. Today, I thought it would be interesting to prepare a list of Garland’s opinions that prompted someone else to dissent or concur. That also may provide some light into Garland’s judicial philosophy.

Here is a list of his opinions that prompted a dissent (including dissenting in part):

Miller v. Clinton, 687 F.3d 1332 (D.C. Cir. 2012) (“In my view, we should not try to snatch ambiguity from clarity. We should just read Section 2(c) as it’s written. The statute is not remotely ambiguous or difficult to apply in this case. The statute authorizes the Secretary to negotiate employment contracts for American workers abroad without regard to statutory provisions relating to the performance of contracts and performance of work in the United States. The ADEA is a statute relating to the performance of contracts and performance of work in the United States—and the majority opinion never seriously denies that point. That basic analysis resolves the case. Although I might disagree with the lines Congress has drawn in this statute, it is our job to respect those lines, not to re-draw them as we might prefer.”) (Kavanaugh, J., dissenting).

Alpharma, Inc. v. Leavitt, 460 F.3d 1 (D.C. Cir. 2006) (“In short, the FDA’s response to our remand seems completely unilluminating. As the court remands for the FDA to straighten out its explanation of what (single) dose to use, perhaps the agency will seize the occasion to explain its single-dose policy. Users of new drugs would surely find relief in a real explanation.”) (Williams, J., dissenting in part).

Barbour v. Washington Metro. Area Transit Auth., 374 F.3d 1161 (D.C. Cir. 2004) (“I would hold that conditioning acceptance of federal transportation funds on a state’s acquiescence to private damages suits for disability discrimination in employment is not a valid exercise of Congress’s power under the Spending Clause under the rule of New York v. United States, 505 U.S. 144, 167 (1992), and South Dakota v. Dole, 483 U.S. 203, 207 (1987). I would further hold that this step is not within Congress’s enforcement power under section 5 of the Fourteenth Amendment.”) (Sentelle, J., dissenting).

United States v. Riley, 376 F.3d 1160 (D.C. Cir. 2004) (“I would remand the case to the district court, which has ‘an institutional benefit over appellate courts’ that do not see nearly as many Guidelines cases, so that the court may make detailed findings in support of its decision to depart from the Sentencing Guidelines. . . . I concur in holding that there is no retroactivity problem under the reasoning of Landgraf v. USI Film Products, 511 U.S. 244, 265 (1994).”) (Rogers, J., concurring in part and dissenting in part).

United States v. Brown, 334 F.3d 1161 (D.C. Cir. 2004) (“Because the government failed to offer evidence to show that, prior to opening the door of the lawfully parked car in which Brown was sitting, the police had articulable suspicion to believe that Brown had been engaged in criminal wrongdoing, the stop and frisk exception to the Fourth Amendment warrant requirement adopted in Terry v. Ohio, 392 U.S. 1, 88 (1968), is inapplicable. In Terry, the Supreme Court cautioned that a police officer’s ‘inchoate and unparticularized suspicion or hunch,’ would not suffice to justify an intrusion into a person’s security and privacy, but that is all the evidence showed. Hence the seizure by the police after opening the car door was unlawful. Moreover, even if there had been a lawful Terrystop, because the search of the car trunk was not limited in scope in order to protect the officers, it could not be justified under Terry, and because the government failed to show that the officers had probable cause to believe the car trunk contained contraband or evidence of a crime, the seizure from the trunk also was unlawful. Accordingly, the district court erred in denying the motion to suppress the seized evidence.”) (Rogers, J., dissenting).

Sec’y of Labor, Mine Safety and Health Administration v. Excel Mining, LLC, 334 F.3d 1 (D.C. Cir. 2003) (“I see no more ambiguity on the specific issue in this case than in a ‘No Smoking’ sign. Single shift measurement is to be used unless the finding is made. Here the finding has been made. I do not see how the statute can be read as authorizing the use of single shift measurement. Obviously since I find no ambiguity, I would not reach the second step of Chevron to pursue the reasonableness of the interpretation.”) (Sentelle, J., dissenting).

Rancho Viejo, LLC v. Norton, 334 F.3d 1158 (D.C. Cir. 2003) (“In short, because this decision of the court continues a line of cases in conflict with Supreme Court jurisprudence, and is in conflict with at least one other circuit, I would en banc this cause so that the full court might bring the jurisprudence of the Circuit in harmony with the Supreme Court.”) (Sentelle, J., dissenting from denial of rehearing en banc); (“The panel’s approach in this case leads to the result that regulating the taking of a hapless toad that, for reasons of its own, lives its entire life in California constitutes regulating ‘Commerce . . . among the several States.’”) (Roberts, J., dissenting from denial of rehearing en banc).

United States, ex rel. Yesudian v. Howard Univ., 153 F.3d 731 (D.C. Cir. 1998) (“The district court’s Rule 50 judgment on Yesudian’s False Claims Act retaliation claim should be affirmed because Yesudian never produced evidence to show, as the majority acknowledges he must, ‘that his employer was aware of his protected activity.’”) (Henderson, J., dissenting in part).

Here is a list of his opinions that prompted a concurrence (including a concurrence in the judgment):

Utility Air Regulatory Group v. EPA, 744 F.3d 741 (D.C. Cir. 2014) (“I note simply that the Section 7607 exhaustion/finality rule we describe today likely should not be considered jurisdictional under the Supreme Court’s recent cases that have tightened the definition of when a rule is considered jurisdictional.”) (Kavanaugh, J., concurring).

Taylor v. Reilly, 685 F.3d 1110 (D.C. Cir. 2012) (“The Court does not address the Government’s absolute immunity argument. I write separately simply to make clear that the Government’s absolute immunity theory is unavailing.”) (Kavanaugh, J., concurring).

United States v. Project on Gov’t Oversight, 616 F.3d 544 (D.C. Cir. 2010) (“As I see it, the Government is right in its contention that the District Court’s construction strains the language of the statute. There are three obvious problems with the District Court’s construction. First, the statute says that a person shall be, not may be, subject to a penalty for statutory violations. However, under the District Court’s view, a trial judge has the discretion to impose no penalty. Second, under the District Court’s view, the word ‘amount’ in the phrase ‘whichever amount is greater’ is rendered meaningless. And, third, the District Court’s reading effectively nullifies the entire phrase ‘whichever amount is greater.’”) (Edwards, J., concurring).

United States v. Andrews, 532 F.3d 900 (D.C. Cir. 2008) (“Although I agree that the judgment of conviction must be affirmed, I would hold that Andrews has failed to show plain error with respect to her Brady challenge and, without joining unnecessary discussion of the termination date of the conspiracy, with respect to the district court’s application of the 2006 edition of the Sentencing Guidelines.”) (Rogers, J., concurring).

In re Core Commc’ns, Inc., 531 F.3d 849 (D.C. Cir. 2008) (“I join the court’s well-reasoned opinion. The circumstances that occasion today’s decision lead me to question the wisdom of the open-ended remand without vacatur. In WorldCom, Inc. v. FCC, we opted for such a remedy after concluding that the Federal Communications Commission . . . had issued an order without establishing statutory authorization. The FCC ignored our request for a better explanation of its statutory authority, and six years later we are forced to clean up a mess we helped create. There is a lesson here.”) (Griffith, J., concurring).

Consumer Fed’n of Am. v. Dep’t of Agric., 455 F.3d 283 (D.C. Cir. 2006) (“While I concur in the majority’s holding that five of the six calendars are ‘agency records’ and thus subject to disclosure under FOIA and that Derfler’s calendar is not, I do so reluctantly because I believe the majority places too much stock in Bureau of National Affairs, Inc. v. United States Department of Justice (BNA), 742 F.2d 1484 (D.C. Cir. 1984), and leaves some key questions unanswered.”) (Henderson, J., concurring).

United States v. Simpson, 430 F.3d 1177 (D.C. Cir. 2005) (“I concur fully in the court’s opinion, but write separately to discuss the government’s waiver argument. Although it is perfectly appropriate for the court to rest its decision on the alternative grounds we have used, normally we would consider first whether, as the government contends, Simpson waived the right to appeal his sentence on the basis he asserts.”) (Silberman, J., concurring).

Haynes v. Williams, 392 F.3d 478 (D.C. Cir. 2004) (“I write separately only to question the premise, assumed by all parties (and thus quite properly not ruled on by the court), that ‘sleeping’ is ‘a major life activit[y]’ for purposes of the Americans with Disabilities Act, specifically 42 U.S.C. § 12102(2)(A). Here no analytical problem arises, because Haynes loses for want of evidence that his impairment, idiopathic pruritus, caused his sleeplessness. But had he prevailed on that question, the next issue would have been whether the impairment ‘substantially’ limited his sleeping.”) (Williams, J., concurring).

Rancho Viejo, LLC v. Norton, 323 F.3d 1062 (D.C. Cir. 2003) (“Although I do not disagree with anything in the opinion of the court, I write separately because I do not believe our opinion makes clear, as the Supreme Court requires, that there is a logical stopping point to our rationale for upholding the constitutionality of the exercise of the Congress’s power under the Commerce Clause here challenged.”) (Ginsburg, J., concurring).

Lee Lumber & Bldg. Material Corp. v. NLRB, 310 F.3d 209 (D.C. Cir. 2002) (“While I join in the careful and thorough opinion of the court, I write separately to emphasize certain details in the strange history of this case, and to offer a suggestion to the litigants herein.”) (Sentelle, J., concurring).

United States v. Johnson, 254 F.3d 279 (D.C. Cir. 2001) (“I agree with my brethren but write separately to emphasize caution in applying their approach too broadly. The United States Supreme Court commands a mechanical application of Rule 58. But such a mechanical application must be leavened with common sense.”) (Henderson, J., concurring).

First Am. Discount Corp. v. Commodity Futures Trading Comm’n, 222 F.3d 1008 (D.C. Cir. 2000) (“I concur in the judgment and in all of the court’s opinion except the portion of Part III holding that the Commission’s failure to give notice amounted to harmless error.”) (Randolph, J., concurring).

In re Sealed Case No. 97-3112, 181 F.3d 128 (D.C. Cir. 1999) (“Having benefitted from en banc review, we are convinced by the Guidelines’ language, structure, and drafting history that the relevant departure factor is properly characterized simply as substantial assistance, that the government motion requirement constitutes a procedural limitation on its availability, and that the Sentencing Commission ‘did intend to preclude departures without [government] motions.’”) (Edwards & Tatel, JJ., concurring); (“I do not disagree with any part of the court’s thorough opinion affirming the district court. I write separately only to say that I think this is not nearly so close a case as the very thoroughness of the majority opinion might imply.”); (Sentelle, J., concurring) (“I wholeheartedly agree with the majority’s holding which disposes of this case with clarity and in full accord with the decisions of courts, including ours, that have ruled on the issue. I write separately to register my concern about the process leading up to the en banc affirmance of the district court—which process, I am convinced, disregarded our established procedure and, far worse, failed to honor the bedrock principle of stare decisis.”) (Henderson, J., concurring).

Hunter-Boykin v. George Washington Univ., 132 F.3d 77 (D.C. Cir. 1998) (“I concur in the court’s reasoning and judgment, save on one point. In my view, the disputed tolling agreement has only one reasonable interpretation: it suspended the running of the statute of limitations until the closing date named in the agreement, January 7, 1994. Thus, if Hunter-Boykin moves for summary judgment on remand, it appears that she should prevail as a matter of law on this point.”) (Edwards, J., concurring).

As before, it is possible that I have missed some cases, but the Westlaw search was pretty comprehensive: advanced: (dissenting concurring) & “judge garland” & DA(aft 03-20-1997 & bef 03-16-2016). Note, this search doesn’t pick up dissents from denials of rehearing en banc. I added Rancho Viejo from memory.

* In The Loan Syndications and Trading Ass’n v. SEC, Judge Brown, joined by Chief Judge Garland and Judge Williams, concluded it lacked jurisdiction to review the Credit Risk Retention Rule, promulgated by a number of agencies pursuant to “the sprawling Dodd-Frank Wall Street Reform and Consumer Protection Act.” The panel explained that “[w]e have jurisdiction to hear petitions for direct review of agency action when Congress says so,” but that Congress did not say so here. Thus, although the court was sympathetic to the “state of suspense” imposed on regulated parties, it concluded that any “challenge on the merits will have to wait.” In United States ex rel Burke v. Record Press, Inc., Brian Burke brought a qui tam action against Record Press. In particular, Burke lost a lawsuit against the government, and when he was given a bill for the government’s briefing, he filed the qui tam action “alleging that Record Press had overcharged the government for the cost of preparing the briefing.” Yet both the government and Record Press agreed that the bill “accurately reflected the contract price.” Judge Srinivasan, joined by Judges Williams and Ginsburg, affirmed the district court’s judgment in favor of Record Press, but remanded for the district court to reconsider Record Press’s request for attorney’s fees.

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