Notice & Comment

D.C. Circuit Review – Reviewed: The Dissents of Judge Merrick Garland

For the first time in more than two decades, former Chief Judge Merrick Garland is no longer a judge of the D.C. Circuit. Judge Garland, of course, was a formidable judge — smart, talented, witty, dutiful, collegial, and a mentor to his scores of clerks. And to top it off, he is quick to show kindness. Last year (back when people traveled), Judge Garland visited BYU Law to preside at our moot court. The students will never forget it. He was sharp, funny, and very generous with his time.

As has become a tradition when a judge retires, here is a list of his dissents (including dissenting in part).* Congratulations Judge General Garland.

In re Aiken County, 725 F.3d 255 (D.C. Cir. 2013) (dissenting from issuance of mandamus involving nuclear waste at Yucca Mountain).

FedEx v. NLRB, 563 F.3d 492 (D.C. Cir. 2009) (willing to defer to the agency’s determination that FedEx drivers are independent contractors; this is a lengthy dissent challenging the majority’s reading of D.C. Circuit precedent).

Saleh v. Titan Corp., 580 F.3d 1 (D.C. Cir. 2009) (concluding that military contractors should be subject to suit for alleged abuses in Iraq).

Northeast Beverage Corp. v. NLRB, 554 F.3d 133 (D.C. Cir. 2009) (“Of course, reasonable minds can differ about what is reasonable, and I certainly understand my colleagues’ reservations. But I am unable to conclude that the Board’s application of Section 7 to the facts of this case was unreasonable.”).

Valdes v. United States, 475 F.3d 1319 (D.C. Cir. 2007) (concluding that bribery statute should apply) [he was joined here by Judges Sentelle, Henderson, Randolph, and Brown].

Financial Planning Ass’n v. SEC, 482 F.3d 481 (D.C. Cir. 2007) (dissenting from vacating SEC rule: “As required by Chevron, I would therefore defer to the SEC’s reasonable interpretation of the statute it administers and uphold the Commission’s fee-based brokerage rule”).

Lee v. Department of Justice, 428 F.3d 299 (D.C. Cir. 2005) (urging broader reporter’s privilege).

McDonnell Douglas v. US Dept. of the Air Force, 375 F. 3d 1182 (D.C. Cir. 2004) (“The only question for today, because it is the only question that the parties have litigated, is whether McDonnell Douglas has satisfied its burden of proving that the requested disclosures are likely to cause substantial harm to its competitive position. Because I conclude that appellant has failed to make that case for any of the information that the government has decided to release, I concur in my colleagues’ decision that the ‘over and above work’ prices may be disclosed, but respectfully dissent from their determination that the vendor-pricing and option-year line items may not.”).

US ex rel. Totten v. Bombardier Corp., 380 F. 3d 488 (D.C. Cir. 2004) (“The court’s interpretation of that subsection [of the False Claims Act] as requiring presentment is thus inconsistent with its plain text — as well as with the statutory definition of ‘claim’ contained in § 3729(c). Moreover, the court’s interpretation is not just inconsistent, but irreconcilable, with the legislative history of the 1986 Amendments to the False Claims Act. The court marches on nonetheless, surrounding itself on all sides with ‘canons’ of statutory construction, which serve here as ‘cannons’ of statutory destruction. Although I have no quarrel with the canons the court has chosen, properly deployed they do not support the position it has taken in this case.”) [majority opinion written by Judge John Roberts].

Akinseye v. District of Columbia, 339 F.3d 970 (D.C. Cir. 2003) (concluding that because “the validity of the plaintiffs’ claim to interest . . . goes to the merits of the dispute and not to our subject-matter jurisdiction, I would follow our usual practice and decline to dispose of this appeal on a ground ‘not raised in the parties’ briefs’”).

American Corn Growers Ass’n v. EPA, 291 F. 3d 1 (D.C. Cir. 2002) (“In the Clean Air Act, Congress declared a national goal of restoring natural visibility in the country’s largest national parks and wilderness areas. In Part II of today’s opinion, the court adopts an interpretation of the Act that, in the view of the Environmental Protection Agency (EPA) and the National Academy of Sciences, will prevent the achievement of Congress’ goal. If that interpretation were required by the statutory language, we would of course be compelled to adopt it. But such an interpretation is not required. To the contrary, EPA’s construction of the Clean Air Act as permitting the group-BART provisions of the Haze Rule is a reasonable interpretation of the legislative language. It is therefore entitled to our deference . . . .”).

Ross Stores, Inc. v. NLRB, 235 F.3d 669 (D.C. Cir. 2001) (disagreeing with panel’s failure to side with NLRB as to one possible labor violation).

United States v. Wilson, 240 F.3d 39 (D.C. Cir. 2001) (“I concur in the court’s affirmance of defendant Wilson’s conviction and of his sentence enhancement for obstruction of justice. I differ only in that I would also affirm the district court’s decision to increase Wilson’s sentence under § 3B1.1(a), for his role as the leader of a criminal activity that was ‘otherwise extensive.’ My colleagues hold that ‘otherwise extensive’ should be defined solely by the number of persons involved in the activity. In so doing, they follow the lead of two circuits, but reject the views of eight others, all of which look to factors beyond a simple headcount.”).

United States v. Watson, 171 F.3d 695 (D.C. Cir. 1999) (dissenting from conclusion that prosecutor’s closing argument was unduly prejudicial).

Berger v. Iron Workers Reinforced Rodmen, 170 F.3d 1111 (D.C. Cir. 1999) (“The burden is on the appellants to establish that the decision below was clearly erroneous. Because they have not met that burden, there is no reason for us to prolong the final resolution of plaintiffs’ back pay awards by remanding the Special Master’s benchmark determination for further consideration.”).

United States v. Spinner, 152 F.3d 950 (D.C. Cir. 1998) (“My colleagues reverse defendant Spinner’s assault weapon conviction because they conclude that the evidence was insufficient to sustain the charge, and reverse his narcotics conviction because they conclude that the district court permitted prejudicial cross-examination of Spinner’s girlfriend. I disagree with both conclusions and would affirm both convictions.”).

* Note: This list is the same list that I prepared in 2016! Suffice it to say, Judge Garland rarely dissented. Many thanks to the BYU Law library.

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