D.C. Circuit Review – Reviewed: Brooding Spirits, Judge Kavanaugh Edition

by Aaron Nielson — Monday, July 9, 2018@Aaron_L_Nielson

When President Obama nominated Chief Judge Garland to the Supreme Court, I put together a list of his dissents and concurrences. As I explained then:

Brooding Spirits

President Trump has just nominated Judge Brett Kavanaugh to the Supreme Court. With the help of two hard-working research assistants* I’ve put together a similar list for him.

Note that there are lot of separate opinions. Note further that a number of these opinions were eventually adopted by the Supreme Court, at least once unanimously. It is safe to say that when Judge Kavanaugh dissents, the Supreme Court pays attention. (Indeed, it is not by accident that Judge Kavanaugh “feeds” the most clerks to the Supreme Court — and that both “conservative” and “liberal” Justices regularly hire from him.)

So without further ado, here is a list of Judge Kavanaugh’s dissents, including opinions dissenting in part:

 

Island Architectural Woodwork v. NLRB, 892 F.3d 362 (D.C. Cir. 2018) (“In light of the relevant law and facts, the Board’s conclusion that Island and Verde were alter egos is not reasonable. I would therefore vacate the Board’s decision. I respectfully dissent.”).

 

United States v. Brown, 892 F.3d 385 (D.C. Cir. 2018) (“Because the District Court fully explained the sentence, thus satisfying its procedural obligations, and because the 9-year sentence was substantively reasonable, Matthews’ case should be an easy affirmance.”).

 

PHH Corp. v. CFPB, 881 F.3d 75 (D.C. Cir. 2018) (“In other words, the heads of executive agencies are accountable to and checked by the President; and the heads of independent agencies, although not accountable to or checked by the President, are at least accountable to and checked by their fellow commissioners or board members. No independent agency exercising substantial executive authority has ever been headed by a single person. Until now.”). [He was joined by Judge Randolph, who also filed a separate dissent; this dissent uses simmilar language as the majority opinion Kavanaugh authored in PHH Corp. v. CFPB, 839 F.3d 1 (D.C. Cir 2016).]

 

Garza v. Hargan, 874 F.3d 735 (per curiam) (D.C. Cir. 2017) (“Today’s majority decision . . . is ultimately based on a constitutional principle as novel as it is wrong: a new right for unlawful immigrant minors in U.S. Government detention to obtain immediate abortion on demand, thereby barring any Government efforts to expeditiously transfer the minors to their immigration sponsors before they make that momentous life decision.”). [He was joined by Judges Henderson and Griffith.]

 

Lorenzo v. SEC, 872 F.3d 578 (D.C. Cir. 2017) (“The bad news is that the majority opinion—invoking a standard of deference that, as applied here, seems akin to a standard of ‘hold your nose to avoid the stink’—upholds much of the SEC’s decision on liability. I would vacate the SEC’s conclusions as to both sanctions and liability.”).

 

Midwest Div.—MMC, LLC v. NLRB, 867 F.3d 1288 (D.C. Cir. 2017) (stressing that because “the hospital’s confidentiality interest in the requested information is weighty, [and] the Union’s need for that information is minimal at best,” the hospital should not be required to provide the information).

 

NLRB v. CNN Am. Inc., 865 F.3d 740 (D.C. Cir. 2017) (“That raises a natural question: If CNN is a successor employer, why does it matter which way CNN qualifies as a successor employer? Money. Lots of money. As noted above, finding CNN a successor employer under the traditional test would have dramatically different consequences in terms of the remedies available in this case. In particular, under the traditional test, CNN would be subject to an obligation to bargain with the union going forward. Under the discrimination finding, however, CNN could also be liable for tens of millions of dollars of back pay to former TVS employees. So if CNN qualifies as a successor employer only under the traditional test and not under the discrimination test, that would make a huge difference in the real world. Under my view on the merits of the successor-employer issue, which was also Member Miscimarra’s view, CNN qualifies as a successor employer only under the traditional test. I would therefore remand to the Board for it to re-determine the appropriate remedies associated with the proper successor-employer conclusion. Bottom line: In my view, the Board jumped the rails in its analysis of both the joint-employer and the successor-employer issues.”).

 

Wash. Alliance of Tech. Workers v. U.S. Dep’t of Homeland Sec., 857 F.3d 907 (D.C. Cir. 2017) (concluding that an entity’s attorney fees should not have been reduced simply because it raised alternative grounds for relief).

 

U.S. Telecom Ass’n v. FCC, 855 F.3d 381 (per curiam) (D.C. Cir. 2017) (“The FCC’s 2015 net neutrality rule is one of the most consequential regulations ever issued by any executive or independent agency in the history of the United States. The rule transforms the Internet by imposing common-carrier obligations on Internet service providers and thereby prohibiting Internet service providers from exercising editorial control over the content they transmit to consumers. The rule will affect every Internet service provider, every Internet content provider, and every Internet consumer. The economic and political significance of the rule is vast. The net neutrality rule is unlawful and must be vacated, however, for two alternative and independent reasons.”).

 

United States v. Anthem, Inc., 855 F.3d 345 (D.C. Cir. 2017) (“The majority opinion sees this as a classic horizontal merger case where the high concentration of this market and the merged insurer’s high market share would mean increased prices for the employer-customers. But that understanding misses what I believe is the critical feature of this case. Here, these insurance companies act as purchasing agents on behalf of their employer-customers in the upstream market where the insurers negotiate provider rates for the employer-customers. When the insurers negotiate lower provider rates, those savings go directly to the employer-customers. The merged Anthem-Cigna would be a more powerful purchasing agent than Anthem and Cigna operating independently. The merged Anthem-Cigna would therefore be able to negotiate lower provider rates on behalf of its employer-customers. Those lower provider rates would mean cost savings that would be passed through directly to the employer-customers. To be sure, the merged company may charge its employer-customers an increased fee for obtaining those savings. But the record overwhelmingly demonstrates that the cost savings to employers would far exceed any increased fees paid by employers.”).

 

John Doe Co. v. CFPB, 849 F.3d 1129 (D.C. Cir. 2017) (“Petitioner John Doe Company claims that it is being regulated by an unconstitutionally structured agency, the Consumer Financial Protection Bureau. The CFPB has issued binding rules that govern the Company’s conduct, and the CFPB can bring enforcement actions against the Company for violations of those rules (or of statutes). Under the Supreme Court’s and this Court’s precedents, the Company as a regulated entity has standing to raise its free-standing constitutional claim, and the claim is ripe. The Company need not wait for a CFPB enforcement action in order to raise the constitutional challenge.”).

 

Mingo Logan Coal Co. v. EPA, 829 F.3d 710 (D.C. Cir. 2016) (concluding that the EPA violated “common sense and settled law” when it revoked a Clean Water Act permit by considering only the benefits, and not the costs, of doing so).

 

Int’l Union, Sec., Police and Fire Prof’ls of Am. v. Faye, 828 F.3d 969 (D.C. Cir. 2016) (“The majority opinion reverses the judgment of the District Court and allows the Union to maintain its federal claim against Faye. I respectfully dissent because unions do not possess a federal cause of action to sue their officers for breaches of fiduciary duties.”).

 

Wesby v. District of Columbia, 816 F.3d 96 (per curiam) (D.C. Cir. 2016) (“[T]he panel majority says that it agrees with this dissent about the law and that our disagreement with one another is simply about how the law applies to the facts. But that is true in most qualified immunity cases. At a high enough level of generality, the law of qualified immunity is settled, as are the relevant Fourth Amendment principles. But what has concerned the Supreme Court in numerous cases is how lower courts apply the general qualified immunity and Fourth Amendment principles to the facts of particular cases. That is my concern here as well.”).

 

Sissel v. U.S. Dep’t. of Health and Human Servs., 799 F.3d 1035 (per curiam) (D.C. Cir. 2015) (dissenting from a denial of petition for rehearing en banc; “Although the panel opinion reached the correct bottom-line result, the panel opinion’s interpretation of the Origination Clause is incorrect, in my respectful view. The panel opinion alters the longstanding balance of power between the House and Senate, and ultimately affects individual liberty.”) [He was joined by Judges Henderson, Brown, and Griffith.]

 

Mexichem Specialty Resins, Inc. v. EPA, 787 F.3d 544 (D.C. Cir. 2015) (“EPA issued a rule that imposes limits on emissions of hazardous air pollutants by manufacturers of polyvinyl chloride. But EPA later concluded that one category of those limits—the so-called wastewater limits on hazardous air pollutants that may be dissolved in wastewater—was based on bad data. EPA is therefore reconsidering the wastewater limits. EPA says that it will complete the reconsideration process in 2016. … Even EPA itself does not oppose a stay in this case. EPA’s position is telling. Given the circumstances here, as well as our Portland Cement precedent, I would stay the wastewater limits pending judicial review.”).

 

Priests for Life v. U.S. Dep’t. of Health and Human Servs., 808 F.3d 1 (per curiam) (D.C. Cir. 2015) (“In my respectful view, the panel opinion misapplies the Religious Freedom Restoration Act and contradicts the Supreme Court’s recent decisions in Burwell v. Hobby Lobby Stores, Inc., Wheaton College v. Burwell, and Little Sisters of the Poor Home for the Aged v. Sebelius. I would grant rehearing en banc and rule for the plaintiff religious organizations.”).

 

Morgan Drexen, Inc. v. CFPB, 785 F.3d 684 (D.C. Cir. 2015) (urging that an attorney has standing to challenge the constitutionality of the CFPB because the CFPB regulates a business the attorney is engaged in).

 

Fogo De Chao (Holdings) Inc. v. U.S. Dep’t. of Homeland Sec., 769 F.3d 1127 (D.C. Cir. 2014) (concluding that foreign citizenship and cultural background should not qualify as specialized knowledge).

 

Al Bahlul v. United States, 767 F.3d 1 (D.C. Cir. 2014) (concurring in the judgment in part and dissenting in part; “I would affirm Bahlul’s conspiracy conviction, vacate his material support for terrorism and solicitation convictions as ex post facto violations, and remand to the U.S. Court of Military Commission Review for it to address the consequences, if any, for Bahlul’s life sentence.”).

 

White Stallion Energy Ctr., LLC v. EPA, 748 F.3d 1222 (D.C. Cir. 2014) (“To sum up: All significant regulations involve tradeoffs, and I am very mindful that Congress has assigned EPA, not the courts, to make many discretionary calls to protect both our country’s environment and its productive capacity. In this case, if EPA had decided, in an exercise of its judgment, that it was ‘appropriate’ to regulate electric utilities under the MACT program because the benefits outweigh the costs, that decision would be reviewed under a deferential arbitrary and capricious standard of review. But before we assess the merits of any cost-benefit balancing, this statutory scheme requires that we first ensure that EPA has actually considered the costs.”).

 

SeaWorld of Fla., LLC v. Perez, 748 F.3d 1202 (D.C. Cir. 2014) (“[T]he Department of Labor’s unprecedented assertion of authority to proscribe SeaWorld’s whale show is triply flawed: First, it departs from longstanding administrative precedent governing the extent of the Department’s authority. Second, it irrationally and arbitrarily distinguishes close contact between [trainers/whales and NFL players or cars in NASCAR races], which the Department still proclaims as exempt from regulation under this statute. Third, the decision green-lights the Department to regulate sports and entertainment activities in a way that Congress could not conceivably have intended in 1970 when giving the agency general authority to ensure safer workplaces.”).

 

United States v. Martinez-Cruz, 736 F.3d 999 (D.C. Cir. 2013) (explaining that the majority deviates from Supreme Court precedent that “the defendant in a recidivist sentencing proceeding may be assigned the burden of proof when challenging the constitutionality of a prior conviction that is being used to enhance or determine the current sentence”).

 

United States v. Malenya, 736 F.3d 554 (D.C. Cir. 2013) (“A 41–year–old man sought to have sex with someone he knew to be 14 years old. That is a serious crime. With the one exception described above, I would uphold the special conditions imposed by the District Court. I respectfully dissent.”).

 

Texas v. EPA, 726 F.3d 180 (D.C. Cir. 2013) (“In sum, EPA did not have authority to disapprove Texas’s and Wyoming’s SIPs or to issue FIPs to regulate emissions of greenhouse gases in those States until the expiration of the three-year period set forth in EPA’s regulation. Under that binding EPA regulation, States without automatically updating SIPs are entitled to three years to revise their SIPs to cover greenhouse gases. During that time, States have legal authority to issue valid permits under their existing SIPs. EPA’s orders should therefore be vacated.”).

 

Huthnance v. District of Columbia, 722 F.3d 371 (D.C. Cir. 2013) (“Because the missing evidence instruction was not appropriate here and because it was ‘very damaging’ to the defendants, I would vacate the judgment and remand for a new trial.”).

 

Gordon v. Holder, 721 F.3d 638 (D.C. Cir. 2013) (“The majority opinion holds that key tax-related provisions of the Prevent All Cigarette Trafficking Act may be unconstitutional under the Due Process Clause’s minimum contacts principle. The majority opinion therefore affirms the District Court’s preliminary injunction barring the Federal Government from enforcing those provisions of the statute. I respectfully disagree. To obtain a preliminary injunction, a plaintiff must show, among other things, a likelihood of success on the merits. In my view, Gordon’s Due Process Clause claim lacks merit. I would therefore vacate the preliminary injunction entered by the District Court.”).

 

Howard v. Office of Chief Admin. Officer of U.S. House of Representatives, 720 F.3d 939 (D.C. Cir. 2013) (“Put simply, the majority opinion’s test is inconsistent with Speech or Debate Clause principles because it necessarily will require congressional employers to either produce evidence of legislative activities or risk liability. Under the Constitution’s Speech or Debate Clause, Article I congressional employers cannot be put to this kind of choice by an Article III federal court.”).

 

Grocery Mfrs. Ass’n v. EPA, 704 F.3d 1005 (per curiam) (D.C. Cir. 2013) (dissenting from the denial of rehearing en banc; “The panel’s decision to throw out the suit on standing grounds is mistaken in multiple independent ways, in my respectful view. And the panel’s standing holding is problematic not only because of the erroneous standing law that it creates, but also because it is outcome-determinative in a case with significant economic ramifications for the American food and petroleum industries, as well as for American consumers who will ultimately bear some of the costs.”).

 

Moore v. Hartman, 704 F.3d 1003 (D.C. Cir. 2013) (“Because the First Amendment law on this point is not clear, the defendants in this case cannot be said to have violated ‘clearly established’ First Amendment law.”).

 

Coal. for Responsible Regulation, Inc. v. EPA, 2012 WL 6621785 (D.C. Cir 2012) (dissenting from the denials of rehearing en banc; “Allowing agencies to exercise that kind of statutory re-writing authority could significantly enhance the Executive Branch’s power at the expense of Congress’s and thereby alter the relative balance of powers in the administrative process. I would not go down that road.”).

 

Miller v. Clinton, 687 F.3d 1332 (D.C. Cir. 2012) (“To be sure, Congress could (and perhaps should) change the law and bar the State Department from imposing mandatory retirement [at age 65]. Moreover, even under existing law, the President, the Secretary of State, and appropriate subordinate officers in the State Department could (and perhaps should) alter the current policy and no longer mandate retirement at age 65 for workers such as Miller. But our job is to apply and enforce the law as it is written. In my judgment, the majority opinion has not correctly performed that task.”).

 

United States v. Burwell, 690 F.3d 500 (D.C. Cir. 2012) (“In my view, the majority opinion is seriously mistaken because … [t]he presumption of mens rea applies to each element of the offense, and the automatic character of the gun is an element of the Section 924(c) offense. Twenty extra years of mandatory imprisonment hangs in the balance. I respectfully but emphatically dissent.”) [He was joined by Judge Tatel.].

 

Angellino v. Royal Family Al-Saud, 681 F.3d 463 (D.C. Cir. 2012); 688 F.3d 771 (D.C. Cir. 2012) (explaining that the district court was within its discretion to dismiss a case for failure to prosecute).

 

Rattigan v. Holder, 689 F.3d 764 (D.C. Cir. 2012) (“If Congress wishes to re-strike the balance between personnel and employment discrimination laws on the one hand and national security on the other, it is free to do so—either broadening or narrowing the scope of the protection for agencies’ security clearance decisions. Until Congress does so, however, I would apply Egan according to its terms. Here, Rattigan claims that FBI officials improperly decided to report him to security clearance investigators. Under Egan, we cannot second-guess the FBI’s decision. For that reason, Rattigan’s suit faces an insurmountable bar, and we must dismiss it.”).

 

Nat’l Fed’n of Fed. Employees-IAM v. Vilsack, 681 F.3d 483 (D.C. Cir. 2012) (“No Supreme Court case has addressed drug testing of public school teachers or other public school employees. This case likewise does not require us to resolve that broader question because this case raises a far narrower issue: drug testing of public employees at residential public schools for at-risk youth where many of the students have previously used drugs. Applying the Fourth Amendment’s reasonableness standard and the fact-specific balancing test set forth by the relevant precedents, I would uphold the Department of Agriculture drug testing program at issue ….”).

 

Belize Soc. Dev. Ltd. v. Gov’t of Belize, 668 F.3d 724 (D.C. Cir. 2012) (“The company has now appealed and, in the alternative, sought mandamus to overturn the temporary stay. But we do not have appellate jurisdiction. As the majority opinion appears to acknowledge, there is no final order because the company was not placed “effectively out of court,” nor does this case fit within the narrow confines of the collateral order doctrine.”).

 

Seven-Sky v. Holder, 661 F.3d 1 (D.C. Cir. 2011) (“In order for the Affordable Care Act penalties to be assessed and collected ‘in the same manner as taxes,’ the assessment and collection of these Affordable Care Act penalties likewise must be insulated from pre-enforcement suits by the Anti–Injunction Act.”).

 

Heller v. District of Columbia, 670 F.3d 1244 (D.C. Cir. 2011) (“This is a case where emotions run high on both sides of the policy issue because of the vital public safety interests at stake. As one who was born here, grew up in this community in the late 1960s, 1970s, and 1980s, and has lived and worked in this area almost all of his life, I am acutely aware of the gun, drug, and gang violence that has plagued all of us. As a citizen, I certainly share the goal of Police Chief Cathy Lanier to reduce and hopefully eliminate the senseless violence that has persisted for too long and harmed so many. And I greatly respect the motivation behind the D.C. gun laws at issue in this case. So my view on how to analyze the constitutional question here under the relevant Supreme Court precedents is not to say that I think certain gun registration laws or laws regulating semi-automatic guns are necessarily a bad idea as a matter of policy. If our job were to decree what we think is the best policy, I would carefully consider the issues through that different lens and might well look favorably upon certain regulations of this kind. But our task is to apply the Constitution and the precedents of the Supreme Court, regardless of whether the result is one we agree with as a matter of first principles or policy. … As I read the relevant Supreme Court precedents, the D.C. ban on semi-automatic rifles and the D.C. gun registration requirement are unconstitutional and may not be enforced.”).

 

Doe v. Exxon Mobil Corp. , 654 F.3d 11 (D.C. Cir. 2011) (“Exercising the caution mandated by the Supreme Court in ATS cases, I would dismiss the ATS claims for any of those four independent reasons. In my judgment, permitting these ATS claims to proceed jumps the rails of proper judicial restraint.”).

 

Cohen v. United States, 650 F.3d 717 (D.C. Cir. 2011) (reasoning that plaintiffs lacked standing for their APA suit because they “have an adequate alternative judicial remedy, namely tax refund suits” and must file refund claims with the IRS before bringing suit to challenge the 2006 refund rules under the ripeness doctrine). [Joined by Judges Sentelle and Henderson.]

 

Roth v. U.S. Dep’t of Justice, 642 F.3d 1161 (D.C. Cir. 2011) (“FOIA ordinarily cannot be used to obtain private information from law enforcement files relating to a criminal prosecution.”).

 

Rattigan v. Holder, 643 F.3d 975 (D.C. Cir. 2011) (“Egan set forth a simple default rule for courts to follow in the absence of congressional direction otherwise. The complicated process ushered in by the majority opinion does not comport with the clarity of Egan, in my respectful judgment.”).

 

United States v. Jones, 625 F.3d 766 (D.C. Cir. 2010) (dissenting from a denial of rehearing en banc; “The defendant contended that the Fourth Amendment was violated not only by the police surveillance without a warrant (the issue addressed in the panel opinion) but also by the police’s initial installation of the GPS device on his car without a warrant. The panel opinion did not address the defendant’s alternative and narrower property-based Fourth Amendment argument concerning the installation. In my judgment, the defendant’s alternative submission also poses an important question and deserves careful consideration by the en banc Court.”).

 

Howmet Corp. v. EPA, 614 F.3d 544 (D.C. Cir. 2010) (“Of course, there is good reason the 1985 regulations did not go as far as EPA now wants to. Doing so would violate the text of RCRA, the governing statute, which as relevant here confines EPA’s authority to regulation of ‘discarded material.’ We have held that Congress intended the term ‘discarded material’ to carry its ‘ordinary, plain-English meaning’—namely, to cover only material that is ‘disposed of, thrown away, or abandoned.’”).

 

Cablevision Sys. Corp. v. FCC, 597 F.3d 1306 (D.C. Cir. 2010) (“The FCC’s exclusivity ban thus is no longer necessary to further competition. … I would hold that the FCC’s exclusivity rule violates the First Amendment, and thus also violates the 1992 Cable Act as construed to conform to the First Amendment.”).

 

Cohen v. United States, 578 F.3d 1 (D.C. Cir. 2009) (“But we could line Constitution Avenue from this Courthouse to the IRS Building with judicial decisions that . . . hold that challenges to tax laws and regulations must occur in refund suits. Those many decisions, in my judgment, establish a principle of judicial restraint that plainly covers this suit.”).

 

FTC v. Whole Foods Mkt., Inc. , 548 F.3d 1028 (D.C. Cir. 2008) (“By seeking to block a merger without a sufficient showing that so-called organic stores constitute a separate product market and that the merged entity could impose a significant and nontransitory price increase, the FTC’s position … calls to mind the bad old days when mergers were viewed with suspicion regardless of their economic benefits. I would not turn back the clock.”).

 

Free Enter. Fund v. Pub. Co. Accounting Oversight Bd. , 537 F.3d 667 (D.C. Cir. 2008) (“The Framers of our Constitution took great care to ensure that power in our system was separated into three Branches, not concentrated in the Legislative Branch; that there were checks and balances among the three Branches; and that one individual would be ultimately responsible and accountable for the exercise of executive power. The PCAOB contravenes those bedrock constitutional principles, as well as long-standing Supreme Court precedents, and it is therefore unconstitutional.”).

 

Sierra Club v. EPA, 536 F.3d 673 (D.C. Cir. 2008) (“I agree completely with the majority opinion about bedrock principles of statutory interpretation. The plain meaning of the text controls; courts should not strain to find ambiguity in clarity; courts must ensure that agencies comply with the plain statutory text and not bypass Chevron step 1 … because I conclude that the challenged EPA rule is entirely consistent with the statutory text and is otherwise reasonable, and because petitioners’ other challenges are not persuasive, I would deny the petition in whole.”).

 

United States v. Askew, 529 F.3d 1119 (D.C. Cir. 2008) (“In analyzing whether the police here could unzip Askew’s jacket as a protective step to ensure officer safety, we are not limited to examining the officer’s subjective intent (which, according to the testimony, was to facilitate the show-up). Rather, we consider whether the officer had objectively reasonable grounds to unzip Askew’s jacket for purposes of officer safety.”).

 

In re Sealed Case, 527 F.3d 188 (D.C. Cir. 2008) (“In my judgment, the majority opinion illustrates the magnetic pull that the Guidelines still occasionally exert over appellate courts in cases involving sentences outside the Guidelines range.”).

 

Noble v. Sombrotto, 525 F.3d 1230 (D.C. Cir. 2008) (“Our precedents and the statutory text and structure establish a basic principle of judicial restraint in these cases. When a union member sues union officers under § 501 and alleges that they violated the union constitution, we have held that the reviewing court owes ‘considerable deference’ to the officers’ interpretation of the constitution; we uphold their interpretation unless it is ‘unreasonable or made in bad faith.’”).

 

Am. Radio Relay League, Inc. v. FCC, 524 F.3d 227, 248 (D.C. Cir. 2008) (“Courts have incrementally expanded [] APA procedural requirements well beyond what the text provides …. The judicially created obstacle course can hinder Executive Branch agencies from rapidly and effectively responding to changing or emerging issues within their authority.”).

 

Am. Bird Conservancy, Inc. v. FCC, 516 F.3d 1027 (D.C. Cir. 2008) (“I would dismiss their lawsuit as unripe because the FCC, in a separate rulemaking proceeding, is re-examining these environmental issues and considering the effects of communications towers on birds nationwide …. This case is thus closely analogous to a situation in which a petitioner comes to court to challenge an agency order while the agency is still considering a petition for reconsideration. We routinely dismiss such cases.”).

 

Agri. Processor Co. v. NLRB, 514 F.3d 1 (D.C. Cir. 2008) (“I would hold that an illegal immigrant worker is not an ‘employee’ under the NLRA for the simple reason that, ever since 1986, an illegal immigrant worker is not a lawful ‘employee’ in the United States.”) (“The majority opinion also relies on two House committee reports issued in connection with IRCA. The usual cautions apply to this kind of legislative history: Committee reports are highly manipulable, often unknown by most Members of Congress and by the President, and thus ordinarily unreliable as an expression of statutory ‘intent.’”).
Note: This post has been updated.

 

Sims v. Johnson, 505 F.3d 1301 (D.C. Cir. 2007) (“Parties may not wriggle out of a contract simply because of subsequent tax law developments or because they failed to anticipate tax consequences when forming the agreement.”).

 

Doe v. Exxon Mobil Corp. , 473 F.3d 345 (D.C. Cir. 2007) (“Courts are not well-equipped to determine on their own, however, whether a particular civil case would have a negative impact on U.S. foreign policy and should be dismissed. In part for that reason, as the Supreme Court has instructed, courts give deference to the Executive Branch when the Executive reasonably explains that adjudication of a particular civil lawsuit would adversely affect the foreign policy interests of the United States … The majority opinion’s rejection of the definitive and reasoned Executive Branch statement about this lawsuit’s negative impact on America’s prosecution of an ongoing war does not reflect the judicial restraint and deference that the Supreme Court and this Court have required in the sensitive area of foreign policy.”)

 

And here is a list of his concurrences:

 

Saint Francis Med. Ctr. v. Azar, ___ F.3d ___ (D.C. Cir. 2018) (“The Court agrees with the hospitals that HHS’s 2013 regulation applies only to reopenings, not to appeals. I add this concurring opinion to also express my agreement with the hospitals’ broader argument that the 2013 regulation is arbitrary and capricious, and therefore should be vacated. … Indeed, it would seem to be the very definition of arbitrary and capricious for HHS to knowingly use false facts when calculating hospital reimbursements. That is particularly so when those erroneous facts cost hospitals hundreds of millions of dollars. That is real money.”).

 

Clemente v. FBI, 714 Fed. App’x 2 (D.C. Cir. 2018) (arguing that the court’s four-factor test for awarding attorney’s fees in FOIA cases should be jettisoned).

 

Saad v. SEC, 7873 F.3d 297 (D.C. Cir. 2017) (“Our precedents say that the SEC may approve expulsion or suspension of a securities broker as a remedy, but not as a penalty. … [A]s a three-judge panel, we ordinarily must stick with our precedents. But here, the Supreme Court’s recent decision in Kokesh v. SEC, means that we can no longer characterize an expulsion or suspension as remedial. After the Supreme Court’s decision in Kokesh, in other words, our precedents characterizing expulsions or suspensions as remedial are no longer good law.”).

 

Ortiz-Diaz v. U.S. Dep’t of Housing & Urban Dev. , 867 F.3d 70 (D.C. Cir. 2017) (“All discriminatory transfers (and discriminatory denials of requested transfers) are actionable under Title VII. As I see it, transferring an employee because of the employee’s race (or denying an employee’s requested transfer because of the employee’s race) plainly constitutes discrimination with respect to ‘compensation, terms, conditions, or privileges of employment’ in violation of Title VII.”).

 

Competitive Enter. Inst. v. U.S. Dep’t of Transp. , 863 F.3d 911 (D.C. Cir. 2017) (“Even without affording Chevron deference to the Department’s interpretation of the statute, I would still reach the same result in this case. In my view, although it is a close call, the better interpretation of the term ‘smoking’ in this statute covers e-cigarettes as well as conventional tobacco cigarettes.”).

 

Navajo v. U.S. Dep’t of the Interior, 852 F.3d 1124 (D.C. 2017) (adding that even though the doctrine does not apply to the facts in this case, “equitable tolling may apply in certain government shutdown situations.”).

 

Bahlul v. United States, 840 F.3d 757 (D.C. 2016) (“Put simply, the argument advanced by Bahlul and the joint dissent does not comport with the Constitution’s structure. The Constitution does not give foreign nations (acting through the international law of war or otherwise) a de facto veto over Congress’s determination of which war crimes may be tried by U.S. military commissions.”) [He was joined by Judges Brown and Griffith.]

 

United States v. Williams, 836 F.3d 1 (D.C. Cir. 2016) (“In a criminal appeal where a mens rea-related jury instruction issue may have made a difference to the conviction and sentence, it is critically important to ensure that the jury had a correct understanding of the relevant law.”).

 

Ortiz-Diaz v. U.S. Dep’t. of Housing & Urban Dev., 831 F.3d 488 (D.C. Cir. 2016) (“Our cases hold that lateral transfers to different positions or posts with the same pay and benefits are ordinarily not changes in the “terms, conditions, or privileges” of employment. I write this concurrence simply to note my skepticism about those cases.”).

 

United States v. Bell, 808 F.3d 926 (per curiam) (D.C. Cir. 2015) (“I share Judge Millett’s overarching concern about the use of acquitted conduct at sentencing, as I have written before. Of course, resolving that concern as a constitutional matter would likely require a significant revamp of criminal sentencing jurisprudence.”).

 

Meshal v. Higgenbotham, 804 F.3d 417 (D.C. Cir. 2015) (explaining that Congress, not the Judiciary, “decides whether to recognize a cause of action against U.S. officials for torts they allegedly committed abroad in connection with the war against al Qaeda”).

 

Eley v. District of Columbia, 793 F.3d 97 (D.C. Cir. 2015) (“I would simply add that, in my view, the United States Attorney’s Office Laffey matrix [for justifying the reasonableness of counsel’s rates] is appropriate for [Individuals with Disabilities Education Act] cases.”).

 

Ege v. U.S. Dep’t. of Homeland Sec., 784 F.3d 791 (D.C. Cir. 2015) (“To begin with, both Ege and the Government agree that Ege has standing to bring this suit against TSA. I likewise agree. The majority opinion nonetheless has sua sponte denied standing to Ege. According to the majority opinion, Ege’s complaint is not redressable by the Court because TSA could not comply with a court order that directed the agency to allow Ege to board or pilot a plane. I frankly do not understand that.”).

 

Am. Meat Inst. v. U.S. Dep’t. of Agri., 760 F.3d 18 (D.C. Cir. 2014) (“[O]ne wrinkle in this case is whether the Government has actually asserted an interest in supporting American farmers and ranchers …. Whether the Government has asserted such an interest matters because Central Hudson requires that the Government articulate the interests it seeks to advance. And the Executive Branch has refrained during this litigation from expressly articulating its clear interest in supporting American farmers and ranchers in order to justify this law, apparently because of the international repercussions that might ensue. But the interest here is obvious, even if unarticulated by the Executive Branch for reasons of international comity. And more to the point for Central Hudson purposes, Members of Congress did articulate the interest in supporting American farmers and ranchers when Congress enacted this country-of-origin labeling law. And Congress’s articulation of the interest suffices under Central Hudson.”).

 

Utility Air Reg. Grp. v. EPA, 744 F.3d 791 (D.C. Cir. 2014) (“Although we do not need to address the question in this case, in an appropriate case where it makes a difference, we may want to ensure that our case law on the jurisdictional status of this particular exhaustion/finality rule has kept pace with the Supreme Court’s case law on when a rule should be considered jurisdictional.”).

 

Agape Church, Inc. v. FCC, 738 F.3d 397 (D.C. Cir. 2013) (“I add this brief separate opinion simply to note that the FCC also invoked the principle of constitutional avoidance to support its result here. In my view, the Commission was right to perceive a serious First Amendment problem with the Viewability Rule.”).

 

United States v. Duvall, 740 F.3d 604 (per curiam) (D.C. Cir. 2013) (concurring in the denial of rehearing en banc and arguing that vertical stare decisis requires waiting for an en banc petition to overturn a previous case).

 

Ctr. for Biological Diversity v. EPA, 722 F.3d 401 (D.C. Cir. 2013) (“[T]he EPA simply lacks statutory authority to distinguish biogenic carbon dioxide from other forms of carbon dioxide for purposes of the PSD and Title V permitting programs.”).

 

Morley v. CIA, 719 F.3d 689 (D.C. Cir. 2013) (“We should ditch the four-factor standard [used for FOIA attorney’s fees].”).

 

Chlorine Inst., Inc. v. Fed. R.R. Admin., 718 F.3d 922 (D.C. Cir. 2013) (“I join the Court’s opinion but add a point significant to my resolution of the case. As was discussed at oral argument, the Surface Transportation Board will ensure that chlorine shippers continue to receive common-carrier transportation on railroads when such transportation is reasonably requested.”).

 

Comcast Cable Commc’ns, LLC v. FCC, 717 F.3d 982 (D.C. Cir. 2013) (“As the Court’s opinion explains, the FCC erred in concluding that Comcast discriminated against the Tennis Channel on the basis of affiliation. … I write separately to point out that the FCC also erred in a more fundamental way. … [T]he canon of constitutional avoidance thus strongly reinforces the conclusion that Section 616 [of the Communications Act] applies only when a video programming distributor possesses market power.”).

 

Ayissi-Etoh v. Fannie Mae, 712 F.3d 572 (D.C. Cir. 2013) (underscoring that an isolated statement by an employer “by itself would establish a hostile work environment for purposes of federal anti-discrimination laws.”).

 

In re Sealed Case, 716 F.3d 603 (D.C. Cir. 2013) (“I join the Court’s fine opinion but note that our decision does not foreclose interlocutory appellate jurisdiction under Perlman when (i) the underlying action is not a Rule 41(g) motion for return of property and (ii) the party whose documents were seized raises an attorney-client privilege objection.”).

 

Rollins v. Wackenhut Servs., Inc., 703 F.3d 122 (D.C. Cir. 2012) (discussing the permissibility of dismissals with prejudice under circuit precedent and the federal rules).

 

United States v. Mohammed, 693 F.3d 192 (D.C. Cir. 2012) (noting that the court should not “ordinarily delve into the merits of an ineffective-assistance claim before the district court has done so”).

 

Taylor v. Reilly, 685 F.3d 1110 (D.C. Cir. 2012) (“The Court does not address the Government’s absolute immunity argument. I write separately simply to make clear that the Government’s absolute immunity theory is unavailing.”).

 

Grocery Mfrs. Ass’n v. EPA., 693 F.3d 169 (D.C. Cir. 2012) (“Despite the fact that two enormous American industries will be palpably and negatively affected by EPA’s allegedly illegal E15 waiver, the majority opinion tosses the case for lack of standing. … The food group petitioners and the petroleum group petitioners each independently have standing to challenge EPA’s E15 waiver. On the merits, EPA’s E15 waiver is flatly contrary to the plain text of the statute. I would grant the petition for review and vacate EPA’s E15 waiver decision.”).

 

Hall v. Sebelius, 2012 WL 1940654 (D.C. Cir. 2012) (reiterating that no one is forced to take Medicare Part A benefits).

 

Ne. Hosp. Corp. v. Sebelius, 657 F.3d 1 (D.C. Cir. 2011) (“The majority opinion says that the Medicare statute is complicated. True enough. But the question here concerns a specific provision, not the entire Medicare code. Complexity in the code as a whole does not mean ambiguity in a specific provision. No one can fault the majority opinion’s time and effort in examining this statute. But the fact that it takes a while to figure out the meaning of a specific statutory provision based on its text and context is not the same as ambiguity. What matters for the Chevron analysis is not how long it takes to climb the statutory mountain; what matters is whether the view is sufficiently clear at the top.”).

 

Stephens v. U.S. Airways Grp., Inc., 644 F.3d 437 (D.C. Cir. 2011) (“I concur only in the judgment. In my view, Stephens and Mahoney should receive interest for the full 45 days that U.S. Airways delayed payment of their lump sum pensions.”).

 

In re Aiken Cty, 645 F.3d 428 (D.C. Cir. 2011) (“As a result of Humphrey’s Executor and the current statutory scheme, the President does not have the final word in the Executive Branch about whether to terminate the Yucca Mountain project. For now, therefore, the ball in this case rests in the Executive Branch not with the President, but rather with the Nuclear Regulatory Commission.”). [He later concurred in a 2012 unreported order for abeyance, 2012 WL 3140360, and then wrote for the majority in In re Aiken Cty, 725 F.3d 255 (D.C. Cir. 2013).]

 

Mahoney v. Doe, 642 F.3d 1112 (D.C. Cir. 2011) (“I add these few words simply because I do not want the fog of First Amendment doctrine to make this case seem harder than it is. No one has a First Amendment right to deface government property. No one has a First Amendment right, for example, to spray-paint the Washington Monument or smash the windows of a police car.”).

 

Koretoff v. Vilsack, 2010 WL 5082029 (D.C. Cir. 2010) (“In light of the Administrative Procedure Act and binding Supreme Court precedents, it would be highly unusual, at least absent some stronger indication of congressional intent, to hold that a business directly affected by an agency’s economic regulation can never challenge the legality of that agency rule in any judicial forum at any time.”).

 

Al-Bihani v. Obama, 619 F.3d 1 (D.C. Cir. 2010) (per curiam) (“The premise of Al-Bihani’s plea for release is that international-law norms are judicially enforceable limits on the President’s war-making authority under the AUMF. Even accepting that premise, Al-Bihani cannot prevail in this case. As the panel opinion correctly concludes, Al-Bihani’s arguments misconstrue international law and overlook controlling federal statutes such as the Military Commissions Acts of 2006 and 2009.”).

 

United States v. Moore, 612 F.3d 698 (D.C. Cir. 2010) (“Proper application of statutory mens rea requirements and background mens rea principles can mitigate the risk of abuse and unfair lack of notice in prosecutions … that means proof that the defendant knew that making the false statement would be a crime.”).

 

El-Shifa Pharm. Indus. Co. v. United States, 607 F.3d 836 (D.C. Cir. 2010) (“The key point for purposes of my political question analysis is this: Plaintiffs do not allege that the Executive Branch violated the Constitution. Rather, plaintiffs allege that the Executive Branch violated congressionally enacted statutes that purportedly constrain the Executive. The Supreme Court has never applied the political question doctrine in cases involving statutory claims of this kind. As Judge Edwards has correctly explained, the proper separation of powers question in this sort of statutory case is whether the statute as applied infringes on the President’s exclusive, preclusive authority under Article II of the Constitution. “).

 

Newdow v. Roberts, 603 F.3d 1002 (D.C. Cir. 2010) (“The more nuanced issue, therefore, is how courts should distinguish permissible sectarian references from impermissible sectarian references in determining under Marsh whether a ‘prayer opportunity has been exploited to proselytize or advance any one, or to disparage any other, faith or belief.’”).

 

Davis v. Pension Ben. Guar. Corp. , 571 F.3d 1288 (D.C. Cir. 2009) (“In light of the Supreme Court’s recent decisions, I tend to agree with Judge Fernandez’s opinion for the Ninth Circuit that the old sliding-scale approach to preliminary injunctions—under which a very strong likelihood of success could make up for a failure to show a likelihood of irreparable harm, or vice versa—is ‘no longer controlling, or even viable.’”).

 

In re Grand Jury Subpoenas, 571 F.3d 1200 (D.C. Cir. 2009) (“I respectfully suggest that, at an appropriate time, the en banc Court reconsider the Ray/Rose test and bring this aspect of our Speech or Debate Clause jurisprudence in line with the constitutional text.”).

 

SoundExchange, Inc. v. Librarian of Congress, 571 F.3d 1220 (D.C. Cir. 2009) (“If the members of the [Copyright Royalty] Board are in fact principal officers, then the present means of appointing Board members is unconstitutional. But no party here has timely raised a constitutional objection. We therefore may resolve the case without deciding whether the Board is constitutionally structured, and so I join the opinion of the Court.”).

 

SEC. v. Fed. Labor Relations Auth. , 568 F.3d 990 (D.C. Cir. 2009) (“Our ability to decide this case thus follows from Humphrey’s Executor and accords with courts’ previous handling of disputes between an independent agency and a traditional executive agency (or another independent agency). Because this case is justiciable under the governing precedents and because the Court’s analysis of the merits is persuasive, I join the opinion of the Court.”).

 

City of South Bend v. Surface Transp. Bd. , 566 F.3d 1166 (D.C. Cir. 2009) (“Our deference in applying the arbitrary and capricious standard has limits.”).

 

Kiyemba v. Obama, 561 F.3d 509 (D.C. Cir. 2009) (“I write separately to emphasize three points. First, our disposition does not preclude Congress from further regulating the Executive’s transfer of wartime detainees to the custody of other nations. Congress possesses express constitutional authority to make rules concerning wartime detainees. … [Second] extradition cases require that we defer to the Executive’s considered judgment that transfer is unlikely to result in torture. Those precedents compel us to reject the detainees’ argument that the court second-guess the Executive’s conclusion in this case. … [Third] the dissent’s theory necessarily would require some judicial review of a foreign nation’s legal practices and procedures.”).

 

In re Sealed Case, 551 F.3d 1047 (D.C. Cir. 2009) (“The trickier question in this case is whether the Vermont Army National Guard is a federally recognized unit or organization of the Army National Guard of the United States. The plaintiff alleges that it is-albeit without citations or support. I am dubious.”).

 

Bryant v. Gates, 532 F.3d 888 (D.C. Cir. 2008) (arguing that “military-run newspapers and the advertising space in them are not forums for First Amendment purposes but instead are the Government’s own speech” and “[w]hen government speech is involved, forum analysis does not apply and the Government may favor or espouse a particular viewpoint”).

 

Valdes v. United States, 475 F.3d 1319 (D.C. Cir. 2007) (specifying that “[i]n the typical future prosecution of money-for-information-disclosure, the jury will be instructed only on bribery–and the scenario in which a defendant’s case slips through the cracks because of a split-the-difference jury verdict will not recur”). [He was joined by Judge Williams.]

 

United States v. Henry, 472 F.3d 910 (D.C. Cir. 2007) (“If the real-elements-of-the-offense approach is correct, however, then current federal sentencing practices may be in tension with the Constitution. That is because the current system—in practice—works a lot like the pre-Booker system: District judges are obliged to apply the Guidelines, and certain facts used to increase a sentence (beyond what the defendant would have received based on the offense of conviction) are found by the judge, not by the jury beyond a reasonable doubt.”).

 

Nuvio Corp. v. FCC, 473 F.3d 302 (D.C. Cir. 2006) (“I write separately only to express my agreement with the FCC Order’s suggestion that the 911 requirement would be justified even if [Voice over Internet Protocol service] providers could not feasibly meet the 120-day deadline. In my judgment, the FCC possesses the statutory authority, which the Commission may reasonably choose to exercise, to address the public safety threat by banning providers from selling voice service until the providers can ensure adequate 911 connections.”).

 

Fund for Animals, Inc. v. Kempthorne, 472 F.3d 872 (D.C. Cir. 2006) (“Plaintiffs argue that the amended Migratory Bird Treaty Act is ambiguous, and they rely on the canon against construing an ambiguous statute to abrogate a treaty. The Court concludes that the statute is plain and that the canon therefore does not apply. I add this concurrence because, even assuming the statute is ambiguous, the canon should not apply in cases involving non-self-executing treaties such as the migratory bird conventions.”).

 

Obviously, there is a lot of law here to absorb. But I will say this: I have been following the D.C. Circuit for a long time. Judge Kavanaugh is a very significant figure on the Court. He also is a talented judge who takes his job seriously. If confirmed to the Supreme Court, I am confident that he will do all that he can to serve the nation well. No one can call Judge Kavanaugh a lightweight.

 

UPDATE: Looks like I missed at least one. Apologies. If there are others, please let me know.

Nuvio Corp. v. FCC, 473 F.3d 302 (D.C. Cir. 2006) (“I write separately only to express my agreement with the FCC Order’s suggestion that the 911 requirement would be justified even if [Voice over Internet Protocol service] providers could not feasibly meet the 120-day deadline. In my judgment, the FCC possesses the statutory authority, which the Commission may reasonably choose to exercise, to address the public safety threat by banning providers from selling voice service until the providers can ensure adequate 911 connections.”).

 • Klayman v. Obama, 805 F.3d 1148 (D.C. Cir. 2015) (concurring in denial of rehearing en banc; “Even if the bulk collection of telephony metadata constitutes a search, cf. United States v. Jones, ___ U.S. ___, 132 S.Ct. 945, 954-57 (2012) (Sotomayor, J., concurring), the Fourth Amendment does not bar all searches and seizures. It bars only unreasonable searches and seizures. And the Government’s metadata collection program readily qualifies as reasonable under the Supreme Court’s case law.”).

 

* Thanks Miranda Cherkas and Charles Sherrill! We put this list together quickly and perhaps missed a few cases. But the Westlaw search was pretty comprehensive: advanced: “kavanaugh, circuit judge” & dissent! & DA(aft 12-31-2005 & bef 07-06-2018) and advanced: “kavanaugh, circuit judge” /s concur! & DA(aft 12-31-2005 & bef 07-06-2018).

 

D.C. Circuit Review – Reviewed is designed to help you keep track of the nation’s “second most important court” in just five minutes a week.

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About Aaron Nielson

Professor Nielson is an associate professor at Brigham Young University Law School. 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. All views expressed are the author's alone. Follow him on Twitter @Aaron_L_Nielson.

7 thoughts on “D.C. Circuit Review – Reviewed: Brooding Spirits, Judge Kavanaugh Edition

  1. Murphy

    The link to

    • Am. Bird Conservancy, Inc. v. FCC, 516 F.3d 1027 (D.C. Cir. 2008) (“I would dismiss their lawsuit as unripe because the FCC, in a separate rulemaking proceeding, is re-examining these environmental issues and considering the effects of communications towers on birds nationwide …. This case is thus closely analogous to a situation in which a petitioner comes to court to challenge an agency order while the agency is still considering a petition for reconsideration. We routinely dismiss such cases.”).

    Goes to Agri Processor. It should go to

    https://scholar.google.com/scholar_case?case=8573690795494246429&hl=en&as_sdt=6&as_vis=1&oi=scholarr

    Reply
  2. Murphy

    The Link to

    • Koretoff v. Vilsack, 2010 WL 5082029 (D.C. Cir. 2010) (“In light of the Administrative Procedure Act and binding Supreme Court precedents, it would be highly unusual, at least absent some stronger indication of congressional intent, to hold that a business directly affected by an agency’s economic regulation can never challenge the legality of that agency rule in any judicial forum at any time.”).

    Goes to the wrong decision. It should go to

    https://caselaw.findlaw.com/us-dc-circuit/1533636.html

    Reply

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