Notice & Comment

D.C. Circuit Review – Reviewed: Under No Circumstances Should President Trump Nominate *This Judge* to the Supreme Court

The President will soon nominate a replacement for Justice Kennedy. Different folks have their favorites. That’s understandable — there are many talented folks in the mix.* What is less understandable are some of the attacks made on potential nominees by supporters of other nominees. To be sure, I have no objection to fair criticism; this is a huge decision and, trust me, I also want a justice who understands the proper role of the judiciary. Yet I do object to unfair criticism, including picking one opinion from the pile that implicates some subject and reading into it messages that are not there. I hope that when the nomination is made, everyone will give the nominee a fair hearing, including those who initially backed someone else. The nomination process is already brutal enough.

That said, there is one judge who under no circumstances should be nominated. In a 21-page dissent, this judge tried to make life easier for convicted sex offenders. Can you believe it? And there is more. This same judge is also very pro-immigration; sure, he uses legal words to camouflage his bias, but we know that he really just wants to rule against the Attorney General on these issues. Whatever one thinks of the rest of the judges on the shortlist, surely conservatives agree that this particular judge has no place on it.

Oh wait, I forgot — President Trump already nominated that judge to the Supreme Court. His name is Neil Gorsuch!

Let’s not take cases out of context.


It was a busy week in the D.C. Circuit. Plus I’m on vacation with the family in South Dakota — we are about to go and see a field full of bears! So this week’s summary will be quick.

The most significant opinion of the week is probably Sierra Club v. EPA. Not only is it an important environmental case about bricks (the Court granted “the Environmental Petitioners’ petition for review as to (1) the EPA’s use of a health threshold to set the emissions limit for acid gases; (2) the EPA’s ad hoc adjustments of upper prediction limit calculations, and (3) the EPA’s provision of alternative MACT floors for brick plants.”), but it also briefly discusses an interesting procedural issue: Should the Court stay review while the agency is reconsidering its regulation? The Court (Judge Sentelle, joined by Judges Rogers and Millett) declined to stay review. Here is the relevant paragraph:

Sierra Club v. EPA

Does anyone know more of the backstory here?

I’m a nerd, so this opinion may be the most interesting one of the week for me: Croley v. Joint Committee on Judicial Administration. Why? Because of this paragraph (authored by Judge Pillard, joined by Chief Judge Garland and Judge Silberman):

Croley v. Joint Committee on Judicial Administration

You don’t see the Rooker-Feldman Doctrine everyday.

In Ho-Chunk, Inc. v. Sessions, Judge Randolph (joined by Judges Rogers and Pillard) held that four “wholly-owned corporations of a federally-recognized Indian tribe” were subject to the recordkeeping requirements of the Contraband Cigarette Trafficking Act of 1978. Ho-Chunk claimed that, under the statute, “they are not persons . . . because they are tribal instrumentalities.” The Court rejected this argument because the Dictionary Act defines the term to “include corporations.” The Court, among other points, also rejected Ho-Chunk’s claim that the ATF’s inspection letters are “an unexplained and arbitrary departure from agency policy in violation of the Administrative Procedure Act” because this argument was not presented to the district court.

Pennsylvania State Corrections v. NLRB is another “substantial evidence” case involving the NLRB. A couple of weeks ago Judge Silberman noted that it is “rare” for the agency to lose under that standard; well, the agency just lost again. Here is how Judge Ginsburg (joined by Judge Williams) opened his opinion:

Pennsylvania State Corrections v. NLRB I

And this is how Judge Henderson opened her dissent:

Pennsylvania State Corrections v. NLRB II

Taylor v. FAA — authored by Chief Judge Garland, and joined in full by Judges Sentelle and Randolph — concerns the FAA’s regulation of drones. There is a lot going on, but here is a paragraph that offers a sample of the analysis:

Taylor v. FAA

In United States v. Aguiar, Judge Rogers (joined by Judge Srinivasan) rejected a “voir dire” challenge but remanded a right-to-counsel argument regarding a rejected plea offer. The Court, including Judge Griffith, rejected Aguiar’s first claim regarding “voir dire closure” because “Aguiar proffered no evidence that had the district court conducted voir dire in open court . . . the proceeding would have been different, or that the voir dire proceedings were fundamentally unfair.” The Court remanded Aguiar’s second claim regarding the plea deal because his counsel was required to advise concerning the “sentencing consequences of rejecting the plea offer.” In dissent, Judge Griffith disagreed because “Aguiar failed to present sufficient evidence of prejudice” and “post hoc assertions, without more, are insufficient to show prejudice.”

In Republic of Argentina v. AWG Group Ltd., Judge Griffith (joined by Judges Henderson and Williams) affirmed the district court’s enforcement of an “[arbitration] panel’s award against Argentina.” Argentina challenged enforcement by claiming that a “panel member . . . was biased in favor of two of the non-Argentine consortium members.” The Court disagreed in a pretty fact-heavy opinion.

American Rivers v. FERC is a 40-page FERC opinion. Life is too short to do this opinion justice — my children remind me that a field full of bears is waiting. So if your practice is energy law or environmental law, I urge you to read it in full. But I will point out that there the Court’s opinion is rare — it is co-authored, but not a per curiam. Trust me, you don’t see this everyday:

American Rivers v. FERC

In EIG Energy Fund XIV, L.P. v. Petroleo Brasileiro, S.A., Judge Henderson (joined by Judge Wilkins) affirmed the denial of Petrobras’s motion to dismiss based on immunity under the Foreign Sovereign Immunities Act. Long story short, Petrobras argued that the “alleged fraud” did not cause “a direct effect in the United States.” The Court disagreed. In dissent, Judge Sentelle urged that “[t]he effects in the United States of the alleged tortious conduct in Brazil . . . were at least three steps removed” because on the corporate structure of the investment.

Finally, in United States v. Torres, Judge Pillard (joined by Judge Griffith) affirmed Torres’ conviction for “producing child pornography under 18 U.S.C. § 2251(a), which applies to any person who employs, uses, persuades, induces, entices, or coerces any minor to engage in any sexually explicit conduct for the purpose of producing any visual depiction of such conduct.” Torres argued that there was insufficient evidence to satisfy the “purpose” requirement. The Court disagreed: a reasonable juror could reasonably “infer[] Torres’s purpose” by how the minor was depicted in the photos and because Torres “lied to a minor about documenting [the] sexual encounter” when he claimed that he deleted the images. Judge Williams, in dissent, advanced the position that the statute does “not proscribe a defendant’s photographing a minor with the purpose of creating child pornography, but instead proscribe a defendant’s engaging in sexual conduct for the purpose of creating the pornography” and that the government did not present sufficient evidence to meet this standard.

Apologies for typos — my children want to see bears!

* I know some of the folks on “the list” and each is great. I assume that is also true for the folks I don’t know.

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