Notice & Comment

D.C. Circuit Review – Reviewed: The Concurrences of Judge Janice Rogers Brown

Judge Janice Rogers Brown has now retired from the D.C. Circuit. And how did she begin her final judicial opinion? “Every four years, we suffer through the celebration of democracy (and national nightmare) that is a presidential election.”

I clerked for Judge Brown. She has always been kind to me and my family. And I learned a lot from many long conservations in her chambers. We talked about the law, of course, but also the Book of Job, classic Russian novels, molecular biology, her childhood, and California. She also tells a wonderful story about a mountain lion. As I have explained before:

Alan Dershowitz says that just as “‘no one is a hero to his butler,’” “no judge can ever be a flawless saint to his law clerks.” That’s true, of course — no one is perfect. “Flawless saint” is a pretty tough standard! But Judge Brown is remarkable. And although it may be prudent, in Professor Dershowitz’s words, to “expect to be disappointed,” I never was disappointed. To be sure, Judge Brown and her clerks don’t always agree — she didn’t want clerks who agreed with her about everything! Law is complicated and to really figure things out, everyone must think for themselves. But she always did her very best to not cut corners and to be honest. And she read (and read and read) and thought (and thought and thought). There will never be another Judge Brown.

When she announced her retirement, I posted a list of all of her dissents.* This week, I’ve decided to post a list of all her D.C. Circuit concurrences. Thanks again are due to the wonderful research team in the BYU Law library.

The D.C. Circuit Concurrences of Judge Janice Rogers Brown:

Gulf Coast Maritime Supply, Inc. v. United States (D.C. Cir. Aug. 11, 2017) (Brown, J., concurring in part) (“I agree with my colleagues that the district court lacked jurisdiction over Gulf Coast’s alcohol permit claim. But I do not agree with their intriguing theories for bending pleading standards, the statute Congress enacted, and our precedent on ‘final agency action.’ We should affirm the judgment of the district court because neither it — nor we — possess jurisdiction over Gulf Coast’s alcohol permit claim.”).

Bin Ali Jaber v. United States, 861 F.3d 241 (D.C. Cir. 2017) (Brown, J., concurring) (“Our democracy is broken. We must, however, hope that it is not incurably so. This nation’s reputation for open and measured action is our national birthright; it is a history that ensures our credibility in the international community. The spread of drones cannot be stopped, but the U.S. can still influence how they are used in the global community — including, someday, seeking recourse should our enemies turn these powerful weapons 180 degrees to target our homeland. The Executive and Congress must establish a clear policy for drone strikes and precise avenues for accountability.”).

United States v. Palmer, 854 F.3d 39 (D.C. Cir. 2017) (Brown, J., concurring) (“The Supreme Court’s rule in Dorsey v. United States, 132 S. Ct. 2321 (2012) was a ticket for a few trains only; that ticket has long since expired.”).

Waterkeeper All. v. EPA, 853 F.3d 527 (D.C. Cir. 2017) (Brown, J., concurring) (“Chevron‘s ‘reasonableness’ inquiry could (and should) be governed by statutory text, but Step Two jurisprudence reveals statutory text need not play much of a role at all — let alone a dispositive one.”).

United States v. Holman, 673 F.App’x. 4 (D.C. Cir. 2017) (Brown, J., concurring) (“Though I agree Anthony Holman’s sentence should be vacated, I reach that decision on far narrower grounds than those contained in the majority’s analysis.”).

Mackinac Tribe v. Jewell, 829 F.3d 754 (D.C. Cir. 2016) (Brown, J., concurring) (“Patience may be a virtue but there’s nothing virtuous about the administrative delays the BIA has routinely forced recognition-seeking Indian tribes to endure. ‘At present day, a federal acknowledgment petition can be over 100,000 pages long and cost over $5 million to assemble; the BIA estimate time for completion of the review is 30 years.’ See Harry S. Jackson III, Note, The Incomplete Loom: Exploring the Checkered Past and Present of American Indian Sovereignty, 64 RUTGERS L. REV. 471, 497 (2012). That means a case worker could start the review process her first day at BIA and retire with her full pension before ever completing it. That’s appalling.”).

United States v. Hughes, 813 F.3d 1007 (D.C. Cir. 2016) (Brown, J. concurring in part and concurring in the judgment) (“This is a case in which the government behaved badly and — even when the unpalatable implications of their actions became evident — exhibited neither remorse nor gallantry.”).

Sierra Club v. U.S. Army Corps of Eng’rs, 803 F.3d 31 (D.C. Cir. 2015) (Brown, J., concurring) (“While the majority ultimately arrives at the same destination, its route is needlessly circuitous, creating the impression that Sierra Club’s challenges fail by a hairsbreadth rather than a hectare.”).

Arpaio v. Obama, 797 F.3d 11 (D.C. Cir. 2015) (Brown, J., concurring) (“The second shortcoming of our standing doctrine is this: standing has become a ‘lawyer’s game,’ as Chief Justice Roberts phrased it. … Sophisticated, well-resourced litigants can game the system, producing the types of proof that pass muster, while less sophisticated litigants may be left outside the courthouse doors. Our case law hardly provides clear guidance.”).

Price v. District of Columbia, 792 F.3d 112 (D.C. Cir. 2015) (Brown, J., concurring) (“In deciding what constitutes reasonable attorneys’ fees, courts have a tendency to err on the side of awarding too much rather than too little. However, inflated fee awards are far from harmless; they produce windfalls to attorneys at the expense of public education.”).

United States v. Bigley, 786 F.3d 11 (D.C. Cir. 2015) (Brown, J., concurring) (“I am not indifferent to concerns about saddling busy district courts with more procedural loads and I appreciate this court’s reluctance. But the burden of providing a brief explanation is small and the advantages great.”).

United States v. Gross, 784 F.3d 784 (D.C. Cir. 2015) (Brown, J., concurring) (“In its efforts to ferret out illegal firearms the District has implemented a ‘rolling roadblock.’ Officers randomly trawl high crime neighborhoods asking occupants who fit a certain statistical profile — mostly males in their late teens to early forties — if they possess contraband. Despite lacking any semblance of particularized suspicion when the initial contact is made, the police subject these individuals to intrusive searches unless they can prove their innocence. Our case law considers such a policy consistent with the Fourth Amendment. See, e.g., United States v. Goddard, 491 F.3d 457 (D.C. Cir. 2007). I continue to think this is error. Our jurisprudence perpetuates a fiction of voluntary consent where none exists and validates a policy that subverts the framework of Terry v. Ohio, 392 U.S. 1 (1968).”).

Public Investors Arbitration Bar Ass’n v. SEC, 771 F.3d 1 (D.C. Cir. 2014) (Brown, J., concurring) (“Exemption 8 is no longer merely a necessary hedge against the disclosure of critical financial records. Instead, like the mythical Ouroborus, the amendment may now swallow Congress’s purported commitment to let ‘citizens know what their government is up to.'”).

United States v. Gewin, 759 F.3d 72 (D.C. Cir. 2014) (Brown, J., concurring) (“Being in full agreement with the court’s opinion, I write separately only to emphasize that the Supreme Court has never articulated a presumptive right to counsel in the civil context.”) [note – Judge Brown wrote the majority opinion].

Del. Riverkeeper Network v. FERC, 753 F.3d 1304 (D.C. Cir. 2014) (Brown, J., concurring in part) (“I would have focused on that aspect of Petitioners’ wide-ranging and evolving challenges, and I would have declined to delve into the murky waters of backwards-looking segmentation review, especially since improper segmentation was raised only at the end of the lengthy approval process and scarce case law is available concerning gas pipelines, which, as the majority also explains, are distinct from highways and railways.”).

United States v. Hampton, 718 F.3d 978 (D.C. Cir. 2013) (Brown, J., concurring) (“Admitting Agent Bevington’s testimony under Rule 701 was error. But just to be clear: had the government in this case placed into evidence the literally thousands of recorded conversations, the conclusion would be the same.”).

Al Warafi v. Obama, 716 F.3d 627 (D.C. Cir. 2013) (Brown, J., concurring) (“And therein lies the true significance of today’s holding: in determining how the Convention operates and to whose benefit, courts must run a discrete calculus for each Article (or related series of Articles) that considers the treaty’s language, structure, history, and purpose.”).

United States v. Cardoza, 713 F.3d 656 (D.C. Cir. 2013) (Brown, J., concurring) (“I write only to emphasize that while the government ultimately prevails, its victory should be looked upon as a warning, not an invitation. We have found probable cause by only a hair’s breadth. Efforts to establish probable cause based on affidavits less substantial than the corrected and qualified affidavit now before this Court are unlikely to inch over the threshold.”).

New Jersey v. EPA, 703 F.3d 110 (D.C. Cir. 2012) (Brown, J., concurring) (“An old song laments that ‘nothing from nothing leaves nothing.’ BILLY PRESTON, Nothing from Nothing, on THE KIDS AND ME (A & M Records 1974). Logically, it should follow that nothing plus nothing leads to the same result. But, in the rarefied atmosphere of attorneys’ fees litigation and in light of this Court’s divided decision in New Jersey v. EPA, 663 F.3d 1279 (D.C. Cir. 2011), nothing times nothing is apparently worth a great deal.”).

Sherley v. Sebelius, 689 F.3d 776 (D.C. Cir. 2012) (Brown, J. concurring) (“I write separately because we converge from different paths and there are aspects of this case that — NIH’s insouciance notwithstanding — should trouble the heart. Even Dr. James Thompson, the researcher credited with being the first to successfully derive human embryonic stem cells, has admitted: ‘If human embryonic stem cell research does not make you at least a bit uncomfortable, you have not thought about it enough.’ Gina Kolata, Man Who Helped Start Stem Cell War May End It, N.Y. TIMES, Nov. 22, 2007.”).

Initiative and Referendum Inst. v. U.S. Postal Serv., 685 F.3d 1066 (D.C. Cir. 2012) (Brown, J., concurring) (“As I imagine an encounter under the current set of regulations, a postal patron will approach the door to a post office. The patron will then be approached by a signature-gatherer and asked to sign a petition, at which point, one of two things will happen: the patron may ignore the signature-gatherer, giving him the brush-off and walking right into the post office, or seek to sign the petition. All of these interactions are permitted. Once the patron expresses an interest in signing the petition, however, the signature-gatherer will have to explain that postal regulations prohibit collecting signatures in this location, and invite the patron to move to the nearest Grace sidewalk to affix his signature. From the perspective of the uninterested patron, the disruption is the same, collection or no collection. But from the perspective of the interested patron, the disruption is only increased by the awkward two-step required by the regulations — that patron must further deviate from her postal business in order to complete her interaction with a signature-gatherer. Whatever doorway impedance is alleviated by moving signature-collection offsite is surely netted out by the necessarily lengthier explanations of the convoluted rules.”).

Hettinga v. United States, 677 F.3d 471 (D.C. Cir. 2012) (Brown, J., concurring) (“The Hettingas’ sense of ill-usage is understandable. So is their consternation at being confronted with the gap between the rhetoric of free markets and the reality of ubiquitous regulation. The Hettingas’ collision with the MREA — the latest iteration of the venerable AMAA — reveals an ugly truth: America’s cowboy capitalism was long ago disarmed by a democratic process increasingly dominated by powerful groups with economic interests antithetical to competitors and consumers. And the courts, from which the victims of burdensome regulation sought protection, have been negotiating the terms of surrender since the 1930s.”).

AKM LLC v. Sec’y of Labor, 675 F.3d 752 (D.C. Cir. 2012) (Brown, J. concurring) (“The law tends to snowball. A statement becomes a holding, a holding becomes a precedent, a precedent becomes a doctrine, and soon enough we’re bowled over at the foot of a mountain, on our backs and covered in snow. So it is with our deference doctrines.”).

Portland Cement Ass’n v. EPA, 665 F.3d 177 (D.C. Cir. 2011) (Brown, J. concurring) (“Our holding in Sierra Club was a self-inflicted wound, and the result of a series of interpretive leaps that I simply cannot follow. I regret that we have ignored Congress’s wishes and made life more difficult — for industry and its employees, for EPA, and for ourselves.”).

In re Aiken Cty., 645 F.3d 428 (D.C. Cir. 2011) (Brown, J. concurring) (“Despite months of extensive briefing and protracted questioning at oral argument, Petitioners still see only the President and his administration obstructing their path to judicial review. Nietzsche once remarked that ‘many are stubborn in pursuit of the path they have chosen, few in pursuit of the goal.’ Such stubbornness may snatch defeat from the jaws of victory.”).

Blackman v. District of Columbia, 633 F.3d 1088 (D.C. Cir. 2011) (Brown, J. concurring) (“The District of Columbia Public Schools’ biggest problem should be having more pro bono services offered than it can use. Instead, in the bizarro world inhabited by the District, the more its student population shrinks, the bigger its legal bills grow. If there is an answer to this problem, it will likely come from concerned parents, committed teachers, and conscientious volunteers. One thing is clear. It will not come from adjusting the spigot directing the flow of public funds to lawyers.”).

Al-Bihani v. Obama, 619 F.3d 1 (D.C. Cir. 2010) (Brown, J. concurring in the denial for rehearing en banc) (“Although we have avoided en banc review, we have done so through the costly expedient of making a rather common-place judicial proposition impenetrably obscure. Clarity in law is a virtue. In the context of war, that virtue becomes a life-and-death necessity.”).

Catholic Health Initiatives v. Sebelius, 617 F.3d 490 (D.C. Cir. 2010) (Brown, J. concurring) (“But a deeper flaw runs through the Manual provision that cannot be cured by more procedure: it exceeds the Secretary’s authority under the Medicare statute to determine the ‘reasonable cost’ for which providers are reimbursed.”).

United States v. Baugham, 613 F.3d 291 (D.C. Cir. 2010) (Brown, J. concurring) (“I recognize that Supreme Court caselaw appears to mandate plain error review for all unpreserved challenges, even when doing so would put the Federal Rules of Criminal Procedure and the U.S. Code at cross purposes.”).

Al-Bihani v. Obama, 590 F.3d 866 (D.C. Cir. 2010) (Brown, J. concurring) (“The Supreme Court in Boumediene and Hamdi charged this court and others with the unprecedented task of developing rules to review the propriety of military actions during a time of war, relying on common law tools. We are fortunate this case does not require us to demarcate the law’s full substantive and procedural dimensions. But as other more difficult cases arise, it is important to ask whether a court-driven process is best suited to protecting both the rights of petitioners and the safety of our nation. The common law process depends on incrementalism and eventual correction, and it is most effective where there are a significant number of cases brought before a large set of courts, which in turn enjoy the luxury of time to work the doctrine supple. None of those factors exist in the Guantanamo context.”).

Williams v. Martinez, 586 F.3d 995 (D.C. Cir. 2009) (Brown, J. concurring) (“History matters here. Our current dilemma arises out of a succession of procedural anomalies that can only be described as ‘A Series of Unfortunate Events.'”).

Rasul v. Myers, 563 F.3d 527 (D.C. Cir. 2009) (Brown, J. concurring) (“The panel majority attempts to cure the problem created by Congress’s careless amendment by constricting the meaning of the term ‘person.’ This boils down to a claim that, by removing the term ‘First Amendment’ from RFRA’s definition of ‘exercise of religion,’ Congress sub silentio changed RFRA’s definition of ‘person.’ But this transforms statutory interpretation into a game of whack-a-mole: a deleted textual hook does not simply re-appear in another statutory term.”).

Albany Eng’g Corp. v. FERC, 548 F.3d 1071 (D.C. Cir. 2008) (Brown, J. concurring) (“An interesting thing happens, however, when FERC does not conduct a headwater benefits investigation, but instead allows the licensees to negotiate a settlement, with FERC only conducting an investigation if one of the licensees requests it. A ‘windfall’ is created, which must go to either the upstream or the downstream licensee. Who receives the windfall depends on which licensee is benefited by the status quo.”).

Pirelli Armstrong Tire Corp. Retiree Med. Benefits Trust ex rel. Fed. Nat. Mortg. Ass’n v. Raines, 534 F.3d 779 (D.C. Cir. 2008) (Brown, J. concurring) (“After 182 pages of briefing by 39 attorneys who have strained to squeeze this case into their preferred courtroom, I still — even after reading the majority opinion — haven’t heard a decent argument for federal subject-matter jurisdiction.”).

Fields v. Office of Eddie Bernice Johnson, 459 F.3d 1 (D.C. Cir. 2006) (Brown, J. concurring) (“The Supreme Court has liberally construed the Speech or Debate Clause, but it still remains tethered to its underlying purpose. Its purpose is not to immunize Congress from all liability; rather, its purpose is to ensure free and unrestrained discussion, debate, and decision relating to legislative matters. We can always hypothesize long cause-and-effect chains by which remote events somehow affect legislative decisions, but these remote events were not the concern of the Framers of our Constitution when they included in that document a clause protecting legislative speech and debate. Rather, they were concerned with much more immediate threats to legislative independence. They were concerned that members of Congress would be arrested or held liable specifically on account of arguments they had voiced in the course of heated debates over pending legislative issues. They were concerned about the political rivalries that naturally arise among the several branches of government, rivalries that might cause a hostile executive or judiciary to harass a member of Congress who had been outspoken about some abuse of power. In addressing these concerns, they did not intend ‘to make Members of Congress super-citizens,’ who could block all judicial inquiry into their personnel practices and workplace conduct.”).

Lutkewitte v. Gonzales, 436 F.3d 248 (D.C. Cir. 2006) (Brown, J. concurring) (“None of Lutkewitte’s alleged tangible employment actions merits that title under existing Supreme Court precedent. The district court therefore properly decided not to give Lutkewitte’s requested instruction, or any tangible employment action instruction, to the jury. I believe these legal principles, rather than an assertion of the paucity of the record, provide a stronger justification for our decision and a rationale to guide future cases.”).


The Court decided four cases this week. In SNR Wireless Licenseco, LLC v. FCC, Judge Pillard (joined by Judges Brown and Williams) concluded that although the FCC had authority to disqualify certain auction bidders, the agency’s remedy was improper: “Where, as here, hundreds of millions of dollars are at stake, regulated parties need fair notice of the circumstances in which a finding of de facto control will and will not be subject to an opportunity to attempt to negotiate a cure. The FCC’s rules and decisions were not clear enough to provide that notice to the petitioners.”

In City of Phoenix v. Huerta, Judge Griffith (joined by Judge Rogers) concluded that the FAA acted arbitrarily and capriciously when it “changed longstanding flight routes in and out of Phoenix Sky Harbor International Airport.” Judge Sentelle dissented because this challenge was too late: “In concluding that petitioners did not have reasonable grounds for waiting six months to file for review, I do not contend that the FAA acted with perfect clarity at all times. However, the record does not suggest to me that petitioners had a clear reason … to forego at the very least a protective filing.”

In Otsuka Pharmaceutical Co. v. Price, Judge Srinivasan (joined by Judges Brown and Williams) addressed a complex question: “When a drug earns a period of exclusivity, the Food and Drug Administration must withhold approval of certain competing drugs if various conditions are satisfied. But how does the FDA determine if a new drug bears a sufficiently close relationship to a pioneering drug to fall within the latter’s zone of exclusivity?” The Court upheld the agency’s “same-moiety test.” (If “same-moiety test” means something to you, you’ve already read this opinion.)

And finally, in her last opinion, Judge Brown (joined by Judge Silberman) wrote in Johnson v. Commission on Presidential Debates. The Court rejected a challenge by “2012 third-party candidates Gary Johnson and Jill Stein” to their exclusion from the debates; Judge Brown concluded “[t]he injuries Plaintiffs claim are simply not those contemplated by the antitrust laws” and “[t]here may be First Amendment injuries we could invent for Plaintiffs, but those claims were not presented in the Complaint.” Judge Pillard concurred in the judgment: she would resolve Article III standing first.

So what are Judge Brown’s concluding words as a judge? “So ordered.” I suppose that’s not surprising. But perhaps more fitting would be “I concur” or “I respectfully dissent.” Farewell Judge Brown!

* Since that post, there have been more dissents. In Sierra Club v. FERC (D.C. Cir. Aug. 22, 2017), she rejoined: “The Court blithely asserts it is ‘not just the journey,’ it is ‘also the destination.’ Maj. Op. at 18. In fact, NEPA is a procedural statute that is all about the journey.” In United States v. Griffith (D.C. Cir. Aug. 18, 2017), she observed: “Today the Court’s opinion attempts to write the good faith exception out of our case law.” In United States v. Slatten (D.C. Cir. Aug. 4, 2017), she said: “I am not convinced that any federal contractor whose employment relates — even minimally — to the DOD’s mission is automatically subject to MEJA. The Court’s interpretation unnecessarily broadens that which the statutory language seems designed to limit.” In Price v. Department of Justice (D.C. Cir. Aug. 4, 2017), she included this citation: “‘[W]e’re not even talking about the game, when it actually matters, we’re talking about practice.'”

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