D.C. Circuit Review – Reviewed: Mirror, Mirror, on the Wall …

by Aaron Nielson — Saturday, Nov. 18, 2017@Aaron_L_Nielson

Who is the most scholarly of them all?

I was tempted to take this week off. After all, why blog about the D.C. Circuit when an actual D.C. Circuit judge is already blogging here? You can learn a lot more about the D.C. Circuit from Judge Williams than from me!

But then I read this sentence from Peter Conti-Brown’s introduction of Judge Williams: “On a personal note, he is also my old boss and has clerks who have wielded more influence in the academy (and beyond) than those of any other jurist (here I defy clerks from other chambers to convince me otherwise!).”

That challenge got me thinking. The D.C. Circuit is a scholarly tribunal. How many law professors have clerked for the current members of the Court? So I had my dutiful research assistants compile a list. A huge caveat, however, is in order. Using google, my research assistants have done their best — which, frankly, is pretty darn good. But undoubtedly some folks got missed. So this list is not supposed to be complete. Instead, if my RAs missed someone (and no doubt, they did — sorry co-bloggers Daniel Hemel, Andy Hessick, and Nick Bagley), please mention that person in the comments. I’ll post an updated list in a few weeks.

Clerk Profs Group Part 1
Clerk Profs Group Part 2
Clerk Profs Group Part 3

By way of comparison, my RAs checked a few non-DC Circuit judges:

Clerk Profs Group Part 4
Clerk Profs Group Part 6
Clerk Profs Group Part 5

Interesting. Peter was right: Judge Williams makes a very strong showing. But so do others! It will be interesting to see the list when more names are added.*

On the subject of a scholarly court, it does not appear that the Court cited any law reviews this week. But there are some interesting cases.

My favorite this week? Grant Medical Center v. Hargan. This is how Judge Tatel (joined by Chief Judge Garland and Judge Ginsburg) began his opinion:

One of our sister circuits, the Sixth, ruled that the Centers for Medicare and Medicaid Services’ (CMS) method for counting hospital beds conflicted with the plain language of the applicable regulation. CMS amended the regulation to permit its preferred counting method but—central to this case—applied the Sixth Circuit’s interpretation to hospitals located within that circuit until the revised regulation took effect. Appellants, hospitals in the Sixth Circuit, challenge CMS’ decision to acquiesce to the Sixth Circuit’s ruling. Given that obeying judicial decisions is usually what courts expect agencies to do, the hospitals face an uphill battle. The district court found that the agency acted reasonably, and we agree.

This case is definitely worth a read; there is a very interesting nonacquiescence discussion.

The most factually interesting case is Montgomery v. Risen. Judge Pillard (joined by Judges Griffith and Edwards) explained the case this way:

Software developer Dennis Montgomery appeals from summary judgment in his defamation action. Montgomery claimed that author James Risen, together with publishers Houghton Mifflin Harcourt Publishing Company and Houghton Mifflin Harcourt Company (collectively, Defendants or Risen), made false and damaging statements about Montgomery in the book Pay Any Price: Greed, Power, and Endless War (2014). A chapter of the book focuses on software that Montgomery pitched to the United States as a counterterrorism tool, but that ultimately was widely seen as a “hoax.” Id. at 33. Risen describes Montgomery and his phantom software as “the perfect case study to explain how during the war on terror greed and ambition have been married to unlimited rivers of cash to create a climate in which someone who has been accused of being a con artist was able to create a rogue intelligence operation with little or no adult supervision.” Id. at 31-32.

This is Montgomery’s defamation case—he chose to bring it. To sustain it against a motion for summary judgment, he would have had to marshal sufficient evidence to create a triable issue for a jury as to each element of his claim. The district court held that he failed to take the basic steps necessary to do so. Critically, he produced virtually no evidence of the software’s functionality to factually rebut Risen’s statements that it never worked as Montgomery said it did.

Risen’s reporting is, at its core, about how authorities at the highest levels of government fell for a “ruse,” id. at 32: software that could never be verified. This lawsuit, too, has been defined by the software’s persistent absence. That lacuna in the record dooms Montgomery’s case. We affirm the district court’s well-reasoned grant of summary judgment in favor of Defendants.

Gill v. Department of Justice prompted a per curiam decision (per Judges Rogers, Tatel, and Silberman) and a concurrence (Tatel). The case is about revoking a security clearance. Here is a sample of Tatel’s analysis:

To be sure, two circuits have held otherwise. See Brazil v. U.S. Department of the Navy, 66 F.3d 193, 197–98 (9th Cir. 1995) (holding that a constitutional challenge to a security clearance decision was precluded by Title VII); Perez v. FBI, 71 F.3d 513, 515 (5th Cir. 1995) (per curiam) (same). In those same opinions, moreover, both circuits held that security clearance decisions were not actionable under Title VII, effectively barring challenges to such decisions entirely. See Brazil, 66 F.3d at 197; Perez, 71 F.3d at 514–15. In so doing, however, neither circuit acknowledged the portion of Webster holding that constitutional claims are reviewable, nor did either explain how an inapplicable statutory scheme could possibly bar a constitutional claim.

In Durant v. District of Columbia, Judge Edwards (joined by Chief Judge Garland and Judge Wilkins) affirmed the dismissal of a discrimination claim; the case was argued by appointed counsel. Finally, consider DOJ v. FLRA — yeah, the government is suing the government. Judge Edwards (this time joined by Judges Griffith and Pillard) addressed “the ‘covered-by’ doctrine, which embraces a well-established principle in labor law: If a union and an employer in a collective-bargaining relationship reach an agreement on a subject during contract negotiations, neither side has a duty to bargain any further over that subject once the parties execute a collective bargaining agreement.” If that sentence means anything to you, keep reading! This is a technical opinion about a technical subject.

Please send me information to help complete the list.


* If there are judges who should be added, let me know. For instance, I think Judge Jerry Smith should be included.


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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.

13 thoughts on “D.C. Circuit Review – Reviewed: Mirror, Mirror, on the Wall …

    1. Dan D.

      Williams additions: Howard Shelanski (Georgetown); Ganesh Sitaraman (Vandy); Jake Gersen (Harvard)
      Randolph additions: Kathryn Watts (Washington); Richard Bierschbach (Wayne); Michael Burstein (Cardozo); Matt Tokson (Utah); both Hessicks (UNC)

  1. Adam Zimmerman

    As for judges, you might consider adding Judge Jack Weinstein. I think there may be quite a few law professors. I know I’m leaving some out, but they include: John Goldberg (Harvard), Diane Zimmerman (NYU), Marty Lederman (Georgetown), Sam Buell (Duke), Jonathan Weiner (Duke), Michael Perry (Emory), Anita Bernstein (Brooklyn), Joan Wexler (Brooklyn), Margaret Berger (Hastings/Brooklyn), Guyora Binder (Buffalo), Kaimi Wenger (Thomas Jefferson), Robert Jones (NIU), Elizabeth Nowicki (Tulane), Rand Rosenblatt (Rutgers) and me.

  2. Steve

    A few more Edwards clerks:

    1. Alex Reinert (Cardozo) (as Adam Zimmerman mentioned)
    2. Noah Feldman (Harvard)
    3. Mary LaFrance (UNLV)
    4. Scott Brewer (Harvard)
    5. Matthew Adler (Duke)
    6. Ellen Deason (OSU)
    7. Amy Wildermuth (Utah)
    8. David Meyer (Tulane)
    9. Paul Schiff Berman (GWU)
    10. Tabatha Abu El-Haj (Drexel)
    11. Julie Suk (Cardozo)
    12. Robert Green (Cornell)
    13. Sanford N. Caust-Ellenbogen (OSU)
    14. Steven Heyman (Chicago-Kent)
    15. Brandt Goldstein (New York Law School)
    16. Daphna Renan (Harvard)

  3. Kristin Hickman

    A few more (and I am sure I am forgetting others I should remember):
    Judge Sentelle: Jonathan Adler (Case Western), Brett Scharffs (BYU), and Nathan Sales (Syracuse)
    Judge Randolph: David McGowan (San Diego), Kathryn Watts (University of Washington)
    Judge Tatel: Erica Hashimoto (Georgia)

  4. anon

    For Posner you are missing:

    Rick Levy (Kansas)
    Lisa Heinzerling (Georgetown)
    Steve McAllister (Kansas)
    Herwig Schlunk (Vanderbilt)
    Kate Silbaugh (BU)
    Dan Klerman (USC)
    Michael S. Green (William & Mary)
    Robert Sitkoff (Harvard)
    Shawn Crincoli (Touro) – retired
    Shelley Murphy (Northwestern)
    Kathryn Judge (Columbia)
    Andrew Coan (Arizona)
    Rebecca Haw Allensworth (Vanderbilt)
    Rebecca Stone (UCLA)
    Rachel Sachs (Washington U.)

  5. Stephen Sachs

    A few more names for Judge Williams (apologies for any errors/omissions):

    Eric Posner (Chicago)
    Steven P. Croley (Mich)
    Francesca Bignami (GWU)
    David L. Franklin (DePaul)
    John Hunt (UC Davis)
    Jide Okechuku Nzelibe (Nw)
    Edward K. Cheng (Vanderbilt)
    Ben Walther (Michigan State)
    Mark L. Rienzi (Catholic)
    John Pfaff (Fordham)
    Kristina Daugirdas (Mich)
    Alan Trammell (Arkansas)
    Ilya Beylin (NYU)
    Urska Velikonja (Georgetown)
    Jed Stiglitz (Cornell)
    A. Michael Froomkin (Miami)


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