Notice & Comment

D.C. Circuit Review – Reviewed: The Dissents of Judge Thomas Griffith

Effective September 1, 2020, Judge Thomas Griffith will retire from the D.C. Circuit. He is not taking senior status; he is retiring. This is a huge loss. In my experience, Judge Griffith is extraordinarily well liked by his colleagues. He also sends lots of clerks to the Supreme Court; indeed, he is one of the few All-Purpose Feeder Judges. It is safe to say that his absence will significantly change the tenor of the Court.

No one has retired from the D.C. Circuit since 2017, when Judge Janice Rogers Brown — for whom I clerked* — retired. When Judge Brown retired, I posted a list of her dissents. I’ve decided to do the same for Judge Griffith. After all, “if you really want to understand an appellate judge, look to his or her separate writings.” So with many thanks to my wonderful librarian, here is the list:

Libertarian National Committee, Inc. v. FEC, 924 F.3d 533 (D.C. Cir. 2019) (Griffith, J. dissenting in part) (“[I]n closing I note that there are additional reasons to be skeptical of the government’s position. The two-tiered scheme’s exceptions loosen restrictions on the very contributions that are highly sought by major parties but of little use to minor parties. In my view, this further undercuts the government’s position that the scheme pursues the only permissible government interest: combating quid pro quo corruption and its appearance.”).

Archdiocese of Washington v. Washington Metropolitan Area Transit Authority, 910 F.3d 1248 (D.C. Cir. 2018) (Griffith, J. dissenting from denial of rehearing en banc) (“As I see it, this case does nothing more than present us with an issue already decided by the Supreme Court: whether the government can prohibit a religious viewpoint on subjects it allows others to discuss without restriction.”).

A.I.C.P.A. v. IRS, 746 F. App’x 1 (D.C. Cir. 2018) (Griffith, J. dissenting in part) (“I recognize that the line separating ‘legislative rules’ from ‘interpretative rules’ is often difficult to draw.  But however challenging it may be, the integrity of agency rule making depends on the judiciary’s diligent enforcement of that line. When we fail to police that boundary, we allow exceptions to swallow the APA’s presumption favoring public participation in rule making.”).

United States v. Aguiar, 894 F.3d 351 (D.C. Cir. 2018) (Griffith, J. dissenting) (“The majority seems to shift the burden onto the government to show that Aguiar was ‘specifically advised’ that his sentencing exposure could increase if he opted for trial.  But that is not where the burden lies. To establish prejudice, Aguiar must show a ‘reasonable probability’ that he would have accepted the plea offer, and he has not come close to satisfying that standard.”).

Garza v. Azar, No. 18-5093 (D.C. Cir. 2018) (Griffith, J. dissenting in part) (“My colleagues think we do not need to decide whether the government may proscribe plaintiffs’ access to abortion after viability. In a sense, I agree. We need not decide that question because the Supreme Court already has. We need only apply the binding precedent agreed to by the parties: absent medical concerns for the life or health of the mother, the government may proscribe abortion after viability. Despite this controlling precedent, the majority refuses to acknowledge the government’s interest in ‘fetal life.’ The Casey framework was premised on recognizing two sets of interests. The majority recognizes only one.”).

Marshall v. Honeywell Tech. Sys., 828 F.3d 923 (D.C. Cir. 2016) (Griffith, J. dissenting) (“The majority does not dispute that judicial estoppel is inappropriate in cases of mistake. But the majority improperly limits the evidence that it considers in evaluating whether Marshall made a mistake. It concludes that Marshall lied to the bankruptcy court solely because she disclosed her liabilities (cases in which she was a defendant) on her bankruptcy forms yet concealed her assets (cases in which she was a plaintiff). But this conclusion overlooks Marshall’s oral disclosure, which suggests she made a mistake on her forms. Instead, the majority treats Marshall’s oral disclosure as wholly unrelated to her claim of mistake, concluding simply that an oral disclosure to the trustee neither satisfies the bankruptcy code’s requirements nor provides notice to creditors. Nowhere does the majority acknowledge that Marshall’s oral disclosure might also bear on whether she made a mistake on her written forms.”).

Council for Urological Interests v. Burwell, 790 F.3d 212 (D.C. Cir. 2015) (Griffith, J. dissenting in part) (“By sua sponte considering an argument the Council has elected to omit from either its opening or reply brief, the majority remands a federal regulation based on an argument not before this court — an action at odds with our precedent. The Council is a sophisticated litigant, represented by attorneys familiar with the appellate process. We cannot know why it chose not to bring this particular challenge on appeal, and we should not address what is not before us.”).

Texas v. United States, 887 F. Supp. 2d 133 (D.D.C. 2012) (Griffith, J. dissenting in part) (“In sum, we heard testimony and received expert reports that minorities are essential to victory in Travis County, but that is not enough to find that CD 25 is a protected crossover district. To protect CD 25, we must find that minorities themselves have an ability to elect in CD 25 — that they lead the coalition there. It is not enough that they provide the margin of victory in a competitive Democratic district. Most of the evidence concerns Travis County alone. No evidence includes turnout data, in Travis County or in the district as a whole. At best, the evidence shows that minorities cast no more than 20% of the votes in CD 25, and possibly significantly less. If this is the ‘more exacting’ evidence we require to prove the existence of a coalition district, it is hard to see what Democratic district in Texas would not be so protected.”).

Abdah v. Obama, 630 F.3d 1047 (D.C. Cir. 2011) (Griffith, J. dissenting from denial of rehearing en banc) (“In the end, I do not disagree that the detainees face a high bar in demonstrating that their transfers would be illegal. But that is beside the point. The question we face today is whether Guantanamo detainees are entitled to notice of a transfer beyond the reach of the writ. If it seems odd that detainees in the War on Terror should enjoy such a right, they do so only because Boumediene extended habeas corpus to Guantanamo. We are bound to accept the consequences of that decision.”).

Arkansas Dairy Coop. Ass’n v. Dep’t of Agriculture, 573 F.3d 815 (D.C. Cir. 2009) (Griffith, J. dissenting in part) (“Because the producers’ interests here are all aligned in the same direction, the risk that existed in Stark of larger producers capturing the referendum process to unlawfully disadvantage the minority is not present. The producer referendum thus served its purpose as a check on the Secretary’s statutory authority. Judicial review is not necessary to vindicate the objectives of the Act, and we should defer to the congressional preference — expressed in the Act’s structure — to preclude that review.”).

Kiyemba v. Obama, 561 F.3d 509 (D.C. Cir. 2009) (Griffith, J. dissenting in part) (“In the end, I would add only one element to the process the majority concludes is sufficient for considering the petitioners’ transfer claims. But it is, I believe, a fundamental element called for by the Great Writ. The constitutional habeas protections extended to these petitioners by Boumediene will be greatly diminished, if not eliminated, without an opportunity to challenge the government’s assurances that their transfers will not result in continued detention on behalf of the United States.”).

PNC Financial Services Group v. Comm’r of IRS, 503 F.3d 119 (D.C. Cir. 2007) (Griffith, J. dissenting) (“PNC’s attempt to take advantage of the Treasury regulations by virtue of our previous decision is similarly vexing. And similarly, although we can easily visualize prophylactic regulatory measures (which have in fact since been implemented), the Commissioner has again failed to request relief that a court can provide. If an act of state is objectionable, it is for the Executive to contest. If laws are flawed, they are for Congress to improve.”).

Abigail Alliance v. Von Eschenbach, 469 F.3d 129 (D.C. Cir. 2006) (Griffith, J. dissenting in part) (“Although I agree that Abigail Alliance has made a sufficient showing of standing at this stage in the proceedings, for the reasons set forth in my dissent, Abigail Alliance for Better Access to Developmental Drugs v. von Eschenbach, 445 F.3d 470, 486-500 (D.C. Cir. 2006), I would vote to grant the petition for rehearing.”).

Fund for Animals vs. United States BLM, 460 F.3d 13 D.C. Cir. 2006) (Griffith, J. dissenting in part) (“Under the majority’s decision, to obtain any relief, appellants will most likely have to challenge every specific removal of horses by individual field employees. Horses can be removed from the public lands, however, faster than cases can proceed through the public’s judicial dockets. Ordinarily, litigants faced with such a dilemma would seek to apply the ‘capable of repetition yet evading review’ exception to mootness.  The majority concludes that this exception cannot grant appellants relief with respect to the specific removals they challenge because ‘[h]ow a herd will be managed in the future after the initial culling is anyone’s guess.’  Appellants are thus dealt a double whammy under the majority’s decision: they cannot challenge the BLM’s legal interpretation of the WHBA set forth in its Instruction Memorandum to field employees, and yet they also cannot challenge specific removals of wild horses.”).

Village of Bensenville v. FAA, 457 F.3d 52 (D.C. Cir. 2006) (Griffith, J. dissenting in part) (“Today, the majority holds that a federal agency’s intense involvement in a plan that substantially burdens religious exercise does not create a burden recognizable under RFRA. I find it difficult to reconcile this outcome with either the plain language of RFRA or the free exercise jurisprudence that guides its interpretation.”).

Abigail Alliance v. Von Eschenbach, 445 F.3d 470 (D.C. Cir. 2006) (Griffith, J. dissenting) (“The majority’s new right to procure and use experimental drugs raises a number of vexing questions that are now constitutional issues, potentially insulated from the tug and pull of the political process. If a terminally ill patient has such a right, are patients with serious medical conditions entitled to the benefit of the same logic and corresponding access? If an indigent cannot afford potentially life-saving treatment, would the Constitution mandate access to such care under the right recognized by the majority? Can a patient access any drug (i.e., marijuana for medicinal purposes)  if she believes, in consultation with a physician, it is potentially life-saving? Would the majority’s right guarantee access to federally-funded stem cell research and treatment? Perhaps most significantly, what potential must a treatment have in order for the Constitution to mandate access? Because the majority does not answer this last question, the District Court faces an impossible task on remand.”).

NLRB v. Cooper Tire & Rubber Co., 438 F.3d 1198 (D.C. Cir. 2006) (Griffith, J. dissenting) (“Cooper Tire has successfully stalled enforcement of the NLRB’s administrative subpoena and has delayed a preliminary investigation by two years. Cooper Tire has forced the NLRB to start anew in Ohio or Mississippi, where Cooper Tire can now file the same briefing it filed in this litigation. As I see no statutory or constitutional basis for placing such a burden on the NLRB, I respectfully dissent.”).

Judge Griffith will be missed.


Judge Griffith did not dissent this week. But he did write for the Court in United States v. Mason. By his own account, however, Mason is a “highly fact-bound” opinion about a particular criminal trial. And in BHC Northwest Psychiatric Hospital, LLC v. Secretary of Labor, the agency cited an inpatient facility for violating the Occupational Safety and Health Act by inadequately protecting its employees from patient aggression. Judge Pillard — joined by Judges Katsas and Sentelle — rejected a substantial evidence challenge to the agency’s decision. If you are interested, the fair notice discussion merits a read.

* I interviewed with Judge Griffith too, however, which is where I first met him. He didn’t hire me! Since then though we’ve become friends cheering on BYU basketball and arranging moot courts. Go Cougs!

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