Reviewed: Brooding Spirits, C.J. Garland Edition

by Aaron Nielson — Wednesday, Mar. 16, 2016@Aaron_L_Nielson

A couple of months back, I offered the following rule of thumb: “If you want to understand an appellate judge, don’t spend too much time on majority opinions,” but instead “look to his or her separate writings.” It is in those opinions—opinions a judge doesn’t have to write—that one best observes a judge trying to commune with “the brooding spirit of the law.” This is just a rule of thumb, of course, but separate writings sometimes say a lot about a judge.

Today, the President nominated Chief Judge Garland to the Supreme Court. No doubt folks all over D.C. are racing to read opinions written by Garland. His dissents and concurrences are a good place to start. Pay special attention to Totten, where he and Chief Justice Roberts (then, Judge Roberts) engage in a statutory interpretation duel.

Here is a list of his dissents, including opinions dissenting in part.*

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.”).

Here are concurrences (including opinions concurring in the judgment):

AKM LLC v. Sec’y of Labor, 675 F.3d 752, 767 (D.C. Cir. 2012) (“An ‘agency is entitled to … deference when it adopts a reasonable interpretation of regulations it has put in force.’ In this case, however, the Secretary’s contention—that the regulations that Volks was cited for violating support a ‘continuing violation’ theory—is not reasonable. Accordingly … I agree with my colleagues that the petition for review should be granted and the citations vacated.”)

Bennett v. Islamic Republic of Iran, 618 F.3d 19 (D.C. Cir. 2010) (“I cannot agree that property the Department leases to a private party—which that party then uses for its own private purposes—is property that is being used exclusively for diplomatic purposes.”).

Sottera, Inc. v. FDA, 627 F. 3d 891 (D.C. Cir. 2010) (not agreeing with majority’s use of FDA v. Brown & Williamson, 529 U.S. 120 (2000)).

Bismullah v. Gates, 514 F.3d 1291 (D.C. Cir. 2008) (“Were we to grant en banc review in Bismullah, we would plainly delay our decision and hence the Supreme Court’s disposition of Boumediene. As delaying the latter is contrary to the interests of all of the parties, as well as to the public interest, I concur in the denial of rehearing en banc without reaching the merits.”).

CREW v. FEC, 475 F.3d 337 (D.C. Cir. 2007) (“I agree with the court that there is no meaningful distinction between this case and Common Cause v. FEC, 108 F.3d 413 (D.C. Cir. 1997), and on that ground conclude that CREW lacks standing to litigate its challenge to the Commission’s decision.”).

United States v. Linares, 367 F.3d 941 (D.C. Cir. 2004) (“Whether the admission of that evidence violates Rule 404(b) is a substantially more difficult question … Given the ruling in Part III, it is a question that need not be decided in order to resolve this case.”).

Wertheimer v. FEC, 268 F.3d 1070 (D.C. Cir. 2001) (“Appellants contend that in the absence of the judicial declaration they seek, they are deprived of information that a political party committee has coordinated its expenditures with its presidential candidate. The FEC responds, and appellants do not dispute, that political party committees are already required to report and to identify such coordinated expenditures as § 441a(d) expenditures in their FECA filings. Because appellants’ briefs fail to articulate how a judicial declaration would provide them with additional information, they have failed to satisfy their burden of establishing standing to bring this action.”).

Hitchens v. District of Columbia, 188 F.3d 531 (D.C. Cir. 1999) (co-authored with Judge Wald, explaining that “For the reasons stated in the Fourth Circuit’s opinion in Schleifer v. City of Charlottesville, 159 F.3d 843, 846–47 (4th Cir.1998), as well as those expressed in Part II of Chief Judge Edwards’ opinion and Part III of Judge Rogers’ opinion, we conclude that the District of Columbia’s Juvenile Curfew Act implicates the constitutional rights of children and their parents, and that intermediate scrutiny is the appropriate level of review. For the reasons stated in Part III of the Opinion of the Court, we conclude that the Curfew Act passes that scrutiny, and for the reasons stated in Part IV agree that it is otherwise constitutional as well.”).

Public Citizen Health Research Group v. FDA, 185 F.3d 898 (D.C. Cir. 1999) (concluding that the court should not have reached an issue under FOIA)

It is possible that I have missed some cases (this list was put together quickly), but the Westlaw search was pretty comprehensive: advanced: (dissenting concurring) & “judge garland” & DA(aft 03-20-1997 & bef 03-16-2016).

In any event, these lists are pretty good places to start reading.

* Judge Kavanaugh dissented from an age discrimination opinion written by Judge Garland in Miller v. Clinton, 687 F.3d 1332 (D.C. Cir. 2012). Judge Kavanaugh objected to the majority’s failure, in his view, to follow the plain text of the statute: Quoting Judge Kavanaugh: “In my view, we should not try to snatch ambiguity from clarity. We should just read Section 2(c) as it’s written. The statute is not remotely ambiguous or difficult to apply in this case. The statute authorizes the Secretary to negotiate employment contracts for American workers abroad without regard to statutory provisions relating to the performance of contracts and performance of work in the United States. The ADEA is a statute relating to the performance of contracts and performance of work in the United States—and the majority opinion never seriously denies that point. That basic analysis resolves the case. Although I might disagree with the lines Congress has drawn in this statute, it is our job to respect those lines, not to re-draw them as we might prefer.” Quoting Judge Garland: “Exemptions from the statutory protections afforded to U.S. citizens against discrimination by their own government are surely elephants. And the provisions the State Department cites as purportedly authorizing such exemptions are surely mouseholes—and well—camouflaged ones at that.”

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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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