D.C. Circuit Review – Reviewed: Brooding Spirits

by Aaron Nielson — Saturday, Jan. 30, 2016@Aaron_L_Nielson

Here is a pretty good rule of thumb: If you want to understand an appellate judge, don’t spend too much time on majority opinions. To be sure, those opinions are almost always the most important ones—they’re the law, after all.* But the author of a majority opinion must write an opinion that reflects the views of the majority. This doesn’t mean judges write things they disagree with. But it does mean that a majority opinion is often a bit of a gallimaufry. Different judges want different things in it, or at least want certain issues emphasized. No doubt, the lead author’s fingerprints can be found—think Judge Kavanaugh and his short opinions. But at the end of the day, it is a group project, even if only one judge is designated.

No, if you really want to understand an appellate judge, look to his or her separate writings. Of course, most separate opinions don’t say much about the judge’s philosophy or personality; sometimes a judge thinks the panel just got it wrong. Even so, despite the fact that not all separate writings are windows to the soul, it is still true that reading opinions that judges don’t have to write can be telling. Dissents, after all, are how judges commune with “the brooding spirit of the law.”

Last week’s post addressed “the uneasy relationship between judges and scholars.” I did not make any claims about what the relationship ought to be, but rather just observed that the D.C. Circuit had not cited any scholarship since October. This week, I’ve decided to do something similar. Since I started this series in mid-August, who has been writing separate opinions? It turns out that no one been writing separately more often than Judge Henderson.

Let’s begin with concurrences, in reverse chronological order.

In Food & Water Watch, Inc. v. Vilsack, Judge Millett concurred “to reiterate [her] continuing concerns about this Court’s organizational-standing doctrine and the unwarranted disparity it seems to have spawned between individuals’ and organizations’ ability to bring suit.”

In Watervale Marine Co., Ltd. v. DHS, Judge Griffith concurred in part and in the judgment because he disagreed that “the greater power granted by the statute to hold [a] ship [suspected of violating the Act to Prevent Pollution from Ships] must surely include the lesser power to condition its release. And as a matter of logic, that seems right. However, nothing in the text expressly authorizes such a broad, free-floating quid pro quo authority.”

In Meshal v. Higgenbotham (which prompted a dissent), Judge Kavanaugh wrote separately to explain that “[t]he United States is at war against al Qaeda and other radical Islamic terrorist organizations” and that “[n]o end is in sight.” In this conflict, “the traditional walls dividing military, intelligence, and law enforcement operations have given way to a more integrated war effort” and that before courts should second-guess that effort in a Bivens action, Congress needs to authorize suit. In his view, the Court “would disrespect Congress and the President, and disregard our proper role as judges, if we were to recognize a Bivens cause of action here.”

In Sierra Club v. United States Army Corps, Judge Brown concurred in the judgment to emphasize that “[t]his is not a close case” and that the majority’s “angst” is misplaced. “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.”

In SSC Mystic Operating Company v. NLRB (which too also prompted a dissent), Judge Srinivasan wrote separately to explain that he believes the Court should uphold an agency decision “on the approach set out in National Cable & Telecommunications Ass’n v. Brand X Internet Services, 545 U.S. 967 (2005).” (I am not going to explain the Brand X doctrine in this post. Moreover, this concurrence should be read with UC Health, discussed below, which came out the same day and prompted separate writings of its own.)

In UC Health v. NLRB, Judge Edwards concurred to respond to Judge Silberman’s dissent: “The dissent is mistaken in suggesting that if the rationale or logic supporting a decision in one case is stated broadly enough to cover future cases not at issue, the latter cases are necessarily controlled by the earlier case. Were this the law, appellate decisionmaking would be a mischievous enterprise.”

In Shelby County v. Lynch, both Judges Tatel and Silberman wrote separately (Tatel concurred; Silberman concurred in the judgment.) Judge Tatel emphasized that there is nothing “’difficult’ about the question whether the County is even eligible for fees under … the Voting Rights act” because it did not seek to enforce “‘the voting guarantees of the fourteenth or fifteenth amendment,’ 52 U.S.C. § 10310(e),” but rather the “Tenth Amendment.” Judge Silberman, in turn, agreed with much of Judge Tatel’s analysis in light of the particular complaint filed, but wrote separately to reject the notion that is “inconceivable that any Congress would authorize attorney’s fees for an action challenging the legality of the very statute in which attorney’s fees are authorized” since the fee authorization was enacted by an earlier Congress.

In Obama v. Klayman, all three judges wrote separately—Judges Williams and Brown both wrote statements, while Judge Sentelle dissented. This case is an important one about the nation’s bulk-telephony metadata program. I am not going to spell out the positions here. Suffice it to say there is a lively disagreement about standing and injunctions.

In Florida Bankers Association v. TREA, Judge Randolph filed a short concurring opinion (Judge Henderson dissented). His one paragraph concurrence disagreed with the dissent’s reading of a case.

In Arpaio v. Obama, Judge Brown concurred to “note the consequences of our modern obsession with a myopic and constrained notion of standing.” What followed that statement were 14 pages of analysis, ending with this: “No doubt the modern approach to standing serves to reduce our caseload. But there are much more important matters at stake. … Our approach to standing, I fear, too often stifles constitutional challenges, ultimately elevating the courts’ convenience over constitutional efficacy and the needs of our citizenry.”

Next, the dissents:

In United States v. Brown, Judge Sentelle dissented because “[t]he errors … recognized by the majority focus on the significance or clarity of various statements by the court in the sentencing proceedings. Granting that these might benefit from a clearer record, that appears to me to be precisely what the requirement for raising the error in the court of first instance is designed to provide. That is to say, we are giving the record only plain error review precisely because defendant appellant did not give the trial court the opportunity to clarify its statements at the trial level.”

In Meshal v. Higgenbotham Judge Pillard—who, it turns out, has written an article aboutBivens—dissented, explaining that “[g]overnment is most tempted to disregard individual rights during times of exigency. Judicial scrutiny becomes particularly important when executive officials assert that individual rights must yield to national security and foreign policy imperatives. Presented with cases involving assertions of paramount national interests in apparent tension with individual liberty, the federal courts have proved competent to adjudicate. Removing all consequence for violation of the Constitution treats it as a merely precatory document. We should not do so without more justification than was presented here.”

In SSC Mystic Operating Company v. NLRB, Judge Sentelle argued that the court misapplied precedent. “The majority in UC Health purports to create an exception for regional directors. I reject UC Health’s analysis for the same reason the Supreme Court rejected the Board’s rationale in New Process Steel.” (Again, this case should be read with UC Health.)

In UC Health v. NLRB, Judge Silberman contended the panel was unfaithful to precedent: “The merits of this case are not particularly important. I doubt whether we will see many situations in which an NLRB regional director certified an election during a period in which the NLRB lost its quorum, and that certification is subsequently challenged in an unfair labor practice proceeding. But, the case is nevertheless of great significance because the most important characteristic of a collegial appellate court is careful attention, respect, and adherence to precedent. I am afraid the majority opinion is a glaring example of a contrary approach.”

In Anderson v. Carter, Judge Srinivasan dissented in part because he believed that the plaintiff, in addition to raising a claim under the APA, “also raise[d] a First Amendment retaliation claim, and that claim, in [his] view, [was] not moot” and that to the extent the Court believed that such a claim was not raised, he “read the complaint”—“drafted by a pro se plaintiff”—“differently.”

In Heller v. DC, Judge Henderson dissented to express her dissatisfaction with the Supreme Court’s Second Amendment jurisprudence: “Regulating firearms in order to combat gun violence is a grave and complex task. The Supreme Court has made that legislative endeavor considerably more difficult by ‘tak[ing] certain policy choices off the table,’ Dist. of Columbia v. Heller, 554 U.S. 570, 636 (2008), and divining a new—and incomplete, see id. at 635—definition of what the Second Amendment protects. Heller has ‘hand[ed] our democratic destiny to the courts’ by inviting litigants to draw them into this political thicket. J. Harvie Wilkinson III, Of Guns, Abortions, and the Unraveling Rule of Law, 95 VA. L. REV. 253, 257 (2009). Happily, the ‘dominoes’ have not fallen as quickly as expected, Heller, 554 U.S. at 680 (Stevens, J., dissenting), as most of our sister circuits have afforded a healthy level of deference to the law-makers. But today I fear the majority has initiated a retreat—at least in part—from the practice of restraint.”

In United States v. Weaver, Judge Henderson dissented because she is “convinced the exclusionary rule does not apply to a violation of the Fourth Amendment knock-and-announce requirement, period. I had thought that was plain from the U.S. Supreme Court’s decision inHudson v. Michigan, 547 U.S. 586 (2006).” Moreover: “[T]he majority, concurrence and dissent in Hudson would all be surprised by my colleagues’ narrow reading. As would every member of this Court in 2006, our sister circuits, scholars on both sides of the exclusionary-rule debate and even Hudson’s lawyer.”

In Nat’l Assoc. of Manufacturers v. SEC, Judge Srinivasan dissented from the Court’s First Amendment analysis. Here’s how he began his lengthy dissent: “Issuers of securities must make all sorts of disclosures about their products for the benefit of the investing public. No one thinks that garden-variety disclosure obligations of that ilk raise a significant First Amendment problem. So here, there should be no viable First Amendment objection to a requirement for an issuer to disclose the country of origin of a product’s materials—including, say, whether the product contains specified minerals from the Democratic Republic of the Congo.” And this is how he ended it: “If unanticipated downstream effects eventually call into question the ongoing desirability of a law working as intended, it should be up to the political branches to alter or repeal it, not to the judicial branch to invalidate it.”

In Healthbridge Management, LLC v. NLRB, Judge Henderson dissented in part because “[c]onspicuously absent from either the NLRB’s order or the majority opinion is recognition of a poignant reality: nursing homes provide critical care for the most vulnerable Americans.” She believed the activities at issue posed a risk to those patients: “In my view, HealthBridge’s submission—the uncontroverted testimony of two healthcare professionals explaining why the particulars of the BUSTED sticker were likely to upset HealthBridge residents to the point of an ‘increase in the risk of death, … depression and psychiatric harm’—plainly satisfied this burden. Short of allowing the BUSTED stickers to in fact harm a resident, I cannot think what HealthBridge could have done other than ban the stickers in patient-care areas.”

In Ryskamp v. Commissioner of IRS, Judge Brown dissented: “Answer a fool according to his folly. Proverbs 26:5. Realizing that the Internal Revenue Service (the IRS) encounters its fair share of jesters, Congress permitted the IRS to disregard frivolous Collection Due Process (CDP) hearing requests and prohibited further administrative or judicial review of that decision. The court finds that result too harsh. Because I think Congress expressly deprived the Tax Court (or any court) of jurisdiction to review the denial of frivolous hearing requests, I respectfully dissent.”

In Florida Bankers Association v. TREA, Judge Henderson filed a lengthy dissent about the scope of the Anti-Injunction Act and how, in her view, the majority was not following D.C. Circuit precedent. Here is a taste of her analysis: “According to my colleagues, no party can obtain pre-enforcement review of a regulation that is enforced by a tax penalty; instead, he must violate the regulation (i.e., break the law) and be assessed a tax penalty before he can have his day in court. I shudder at the government-empowering consequences of their decision.”

This week, the D.C. Circuit issued two new opinions, both of which (at least in a sense) include a separate writing.

In In re Idaho Conservation League, the Court granted “a joint motion by environmental petitioners and the Environmental Protection Agency for an order on consent.” It seems that over 30 years ago Congress empowered EPA through CERCLA to create “financial assurance regulations” to minimize the risk of hazardous waste accidents and ensure cleanup. EPA hasn’t done it yet. In response to that allegedly “unreasonable delay,” six environmental groups petitioned the court for a writ of mandamus directing EPA to promulgate the regulations. Eventually, however, the environmental groups and EPA filed a “joint motion for an order on consent establishing an agreed upon schedule for a rulemaking for the hardrock mining industry and a timetable by which EPA would determine whether to engage in financial assurance rulemaking for any of the three other industries.” Various mining interests sought to intervene. The issues before the Court included whether to grant the motion for a consent order and the motions to intervene. The answers: yes to the consent order, but no to intervention. Judge Rogers, writing for the court (although it should be noted that in Part III, Judge Millet only joined the last paragraph; Judge Henderson joined in full), found that at least one petitioner had standing, but that none of the intervenors could show injury. The opinion, however, includes this telling footnote: “With respect to Part III of this opinion, Judge Millett joins only the last paragraph denying permissive intervention. She would hold that hardrock mining intervenors have standing but deny intervention in view of their unhindered ability to participate in that rulemaking.”

Finally, to make a long story short in Simon v. Republic of Hungary, petitioners are Holocaust survivors who are suing the Hungarian government and its state-owned railroad for involvement in genocide, which claimed the lives of hundreds of thousands of Hungarian Jews before the end of the Second World War. At issue in this appeal is whether such claims are actionable in the United States. The district court dismissed them. In a 40-page opinion, Judge Srinivasan (joined by Judges Henderson and Wilkins) reversed in part. Specifically, the panel affirmed the dismissal regarding non-property based claims but concluded that property based claims are not barred. The case, however, was remanded to the district court to determine whether—as a matter of international comity—petitioners must exhaust all remedial options in Hungary before filing suit in the United States.

Judge Henderson concurred to lambaste the government of Hungary. She called its argument “baseless[]” and rejected any suggestion that the country “made a good-faith promise to return …. expropriated property belonging to the survivors of Hungary’s attempted extermination of over one-half million Jewish nationals.” Block quoting literally over a page of Keith Lowe’s Savage Continent: Europe in the Aftermath of World War II, Judge Henderson discussed the history of post-World War II Hungary, including wrongs done by “the Soviet Union, which … had little interest in complying with the terms of a treaty that did not further the interest of the communist state.” Her concurrence concludes: “It revises history—and defies reality—to claim that Hungary had any intent or ability to effectuate Article 27 of the 1947 Peace Treaty. Accordingly, it would be unthinkable to conclude that the 1947 Peace Treaty fits within the FSIA’s Treaty Exception.”

Those are strong words. Which just goes to show: If you want insight into a judge, look at his or her separate writings.

* Or, to get metaphysical, are majority opinions “at most, only evidence of what the laws are”? I’m not going to dive down that rabbit hole today. If you want my thoughts on Erie (my feelings won’t be hurt if you don’t), you can find them here.

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About Aaron Nielson

Professor Nielson is an associate professor at Brigham Young University Law School, where he teaches and writes in the areas of administrative law, civil procedure, federal courts, and antitrust. He currently co-chairs the Rulemaking Committee of the American Bar Association’s Section of Administrative Law & Regulatory Practice. Previously he chaired the Section's Antitrust & Trade Regulation Committee. Before joining the academy, Professor Nielson was a partner in the Washington, D.C. office of Kirkland & Ellis LLP (where he remains of counsel). He also has served as a law clerk to Justice Samuel A. Alito, Jr. of the U.S. Supreme Court, Judge Janice Rogers Brown of the U.S. Court of Appeals for the D.C. Circuit, and Judge Jerry E. Smith of the U.S. Court of Appeals for the Fifth Circuit. Follow him on Twitter @Aaron_L_Nielson.

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