D.C. Circuit Review – Reviewed: Judge Neil Gorsuch, D.C. Circuit Judge

by Aaron Nielson — Friday, Mar. 31, 2017@Aaron_L_Nielson

It’s no secret that the D.C. Circuit is the launching pad for many Supreme Court justices. Indeed, prior to Justice Scalia’s passing, fully half of the Supreme Court came from the D.C. Circuit: Chief Justice Roberts, Justice Scalia, Justice Thomas, Justice Ginsburg, and Justice Kagan. (Kagan counts for half; she was nominated to the D.C. Circuit but not confirmed because the Senate opted not to act. She also clerked on the D.C. Circuit.)
Supreme Court DC Circuit

But did you know that if Judge Gorsuch — another D.C. Circuit clerk — is confirmed to the Supreme Court,* there will again be four and a half justices who were previously D.C. Circuit judges? It’s true! Sure, Gorsuch is a Tenth Circuit judge on most occasions. But he also has decided a handful of cases as a temporary judge on the D.C. Circuit. This week, I thought it would be fun to look at those cases.

The first case is Hurt v. U.S. District Court Judges, decided in 2007. According to the footnote: “Chief Judge Tacha, Judge McConnell, and Judge Gorsuch are judges of the United States Court of Appeals for the Tenth Circuit, sitting by designation pursuant to 28 U.S.C. § 291(a).” (It is safe to assume the ordinary D.C. Circuit judges were recused.) The per curiam panel affirmed the district court in an unpublished decision: “The district court correctly reasoned that the defendant-judges are absolutely immune from suit for monetary damages for actions taken in their judicial capacities, and that the claim for monetary damages against the defendant-courts was barred by sovereign immunity because the real party in interest, the United States, had not consented to be sued for the constitutional torts alleged here.” Hmmm — this case is not especially interesting. (It is interesting, I suppose, that Tacha and McConnell have both since left the bench, and that each has endorsed Gorsuch’s nomination to the Supreme Court. But I suspect that this run-of-the-mill case was not the reason for their endorsements.)

Sadly, the second case — rather, a set of cases — is not much more interesting. In Rodriguez v. Editor in Chief of the Legal Times, decided in 2007 and 2008 (and, alas, apparently not available online), Judges Tacha, McConnell, and Gorsuch addressed another lawsuit against judges (and others, like, you guessed right, the Editor in Chief of the Legal Times). Here is a snippet of the per curiam analysis: “The district court correctly determined that appellant’s damages claims against all federal and state judge defendants are barred by absolute judicial immunity because appellant’s challenges clearly concern acts committed within those defendants’ judicial jurisdiction. The sole exception is appellant’s damages claims against Chief Justice John G. Roberts, Jr. relating to alleged statements during the Chief Justice’s confirmation hearing before the United States Senate, which do not stem from a judicial function.”

Yeah — that’s not much of a D.C. Circuit career. But still, Judge Gorsuch sat on the D.C. Circuit!

Gorsuch DC Circuit

This week, however, the D.C. Circuit’s judges did decide interesting cases — three of them, in fact. It also decided a pretty straightforward sentencing case.

In Bais Yaakov of Spring Valley v. FCC, Judge Kavanaugh, joined by Judge Randolph, opened his opinion with some flare: “Believe it or not, the fax machine is not yet extinct.” The panel held that a law (the Junk Fax Prevention Act of 2005) requiring opt-out notices on unsolicited fax advertisements does not allow the FCC to impose that requirement on solicited ads. “The FCC,” the panel explained, “seem[s] to suggest that the agency may take an action … so long as Congress had not prohibited the agency action …. That theory has it backwards as a matter of basic separation of powers and administrative law. The FCC may only take action that Congress has authorized.” Judge Pillard dissented: “Regulation of ‘unsolicited’ advertising requires a mechanism for discerning whether someone who okayed fax ads at some point in the past is still willing to receive an advertiser’s further faxes. The likely result of the court’s decision is to make it harder for recipients to control what comes out of their fax machines (and so perhaps more hesitant to acquiesce to receive fax ads in the first place) — precisely the sort of anti-consumer harm Congress intended to prevent.”

In Dhiab v. Trump, Judge Randolph, joined in part by Judges Rogers and Williams (each of whom also wrote separate opinions), held that the government need not disclose certain videos taken of a Guantanamo detainee. According to Randolph: “Neither the intervenors nor the public at large have a right under the First Amendment to receive properly classified national security information filed in court during the pendency of Dhiab’s petition for a writ of habeas corpus.” Additionally, such a claim would fail to overcome “[t]he government’s interest in ensuring safe and secure military operations.” Rogers and Williams joined the latter analysis, but not the former. I’m not a First Amendment scholar, but I suspect there is a good student note to be written about this case.

In Belize Bank Limited v. Belize, Judge Henderson, joined by Chief Judge Garland (who is back) and Judge Wilkins, upheld the district court’s enforcement of a payment owed by Belize to the Bank after arbitration. In the required arbitration, Belize failed to appoint its own panel member and then argued that the lawyer appointed for it was unacceptable because his chambers – a group of “independent solo practitioners housed together and operating under a common name” – was conflicted. Belize eventually stopped participating altogether. On appeal, the panel explained that “an allegation that an arbitral tribunal member is a member of the same chambers as another barrister whom in proceedings unrelated in fact and time, represented a conflicting interest is insufficient to meet [the ‘evident partiality’] burden, let alone to demonstrate that enforcement would violate the United States’ ‘most basic notions of morality and justice,’ as required to set aside an award under the [controlling] New York Convention.”

Finally, in United States v. Fry, Judge Srinivasan, joined by Judges Griffith and Millett, upheld the sentence given to a man convicted of possessing a substantial amount of child pornography: “His arguments principally revolve around the proposition that the district court, for policy-based reasons, should have varied from the Sentencing Guidelines provisions addressing child-pornography offenses. We reject Fry’s arguments and affirm the sentence imposed by the district court.”

We live in interesting times, but perhaps Justice Gorsuch, a D.C. Circuit alum, will get a chance to review some of these cases.

* As I explained earlier this week, “I believe Judge Gorsuch should be confirmed and I’m pleased to do what I can to help that happen.” That said, it is safe to say that Gorsuch’s short career on the D.C. Circuit will play zero role in the nomination battle.

 

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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 serves as a public member of the Administrative Conference of the United States, a federal agency that studies the administrative process and makes recommendations on ways to improve it. He also 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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