D.C. Circuit Review – Reviewed: The Dissents of Judge Janice Rogers Brown

by Aaron Nielson — Friday, July 14, 2017@Aaron_L_Nielson

“Effective August 31, 2017,” Judge Janice Rogers Brown will retire — not take senior status — from the D.C. Circuit. I clerked for Judge Brown and consider her a mentor and friend. So in her honor, I have asked the good folks in BYU Law’s library to pull every dissent she has ever written. After all, “if you really want to understand an appellate judge, look to his or her separate writings.” Sure, some dissents are just dissents; one judge thinks the majority has read a particular case wrong and speaks up to say so. But sometimes a dissent is something more. And that often is true for Judge Brown. If you want to understand her, read a sentence like this: “I close with a few words on how easily the administrative state can slip its leash.” Maybe she’s right, maybe she’s wrong, and maybe she’s some of both, but boy, that’s pure Janice Rogers Brown!*

Here we go:

The D.C. Circuit Dissents of Judge Janice Rogers Brown

Clean Air Council v. Pruitt, _ F.3d _ 2017 WL 2838112 (D.C. Cir. 2017) (Brown, J. dissenting) (“That Petitioners are anxious to see their victory implemented and impatient with delay does not make EPA’s action final. It may be annoying, disappointing, ill-advised, even unlawful, but that does not transform a stay to facilitate reconsideration into ‘final agency action.'”).

Keepseagle v. Perdue, 856 F.3d 1039 (D.C. Cir. 2017) (Brown, J. dissenting) (“[T]his case proves how little the Constitution will matter when good character ceases to be informed by adherence to one’s oath of office, and is primarily defined by how generous you are willing to be with someone else’s money.”).

U.S. Telecom Ass’n v. FCC, 855 F.3d 381 (D.C. Cir. 2017) (Brown, J. dissenting from denial of rehearing en banc) (“If we take the Constitution’s structural restraints seriously, we cannot wish the Commission bon voyage on its Presidentially-imposed journey to become the Federal Cyberspace Commission.”).

Nanko Shipping, USA v. Alcoa, Inc., 850 F.3d 461 (D.C. Cir. 2017) (Brown, J. dissenting) (“This difficulty is systemic, but it is not for this Court to remedy policy deficiencies.”).

Perry Cap. LLC v. Mnuchin, 848 F.3d 1072 (D.C. Cir. 2017) (Brown, J. dissenting in part) (“I cannot conclude the anti-injunction provision protects FHFA’s actions here or, more generally, endorses FHFA’s stunningly broad view of its own power. Plaintiffs — not all innocent and ill-informed investors, to be sure — are betting the rule of law will prevail. In this country, everyone is entitled to win that bet.”).

Corrigan v. D.C., 841 F.3d 1022 (D.C. Cir. 2016) (Brown, J. dissenting) (“If we want to join the game of second-guessing first responders, we will find ourselves at the end of a long queue.”).

DirectTV, Inc. v. NLRB, 837 F.3d 25 (D.C. Cir. 2016) (Brown, J. dissenting) (“It’s not hard to see why the technicians resorted to these manipulative gambits: an ordinary labor dispute would not be newsworthy, but tales of corporate perfidy and consumer fraud would undoubtedly pique the interest of Channel 6 and the viewing public. Still, self-interest does not excuse mendacity, and MasTec acted well within its rights when it fired these disloyal technicians.”).

Akiachak Native Cmty. v. U.S. Dep’t of Interior, 827 F.3d 100 (D.C. Cir. 2016) (Brown, J. dissenting) (“The purpose of the case or controversy requirement is to reserve our adversarial judicial process for disputes between real adversaries. Today the court endorses the opposite approach, suggesting the government always retains the power to moot a case, even when its actions exacerbate rather than alleviate the grievance of another party.”).

U.S. v. Abney, 812 F.3d 1079 (D.C. Cir. 2016) (Brown, J. dissenting) (“It is hard to say whether a medium or a fortune-teller would be best suited for this case.”).

Ryskamp v. C.I.R., 797 F.3d 1142 (D.C. Cir. 2015) (Brown, J. dissenting) (“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.”).

Coleman v. D.C., 794 F.3d 49 (D.C. Cir. 2015) (Brown, J. dissenting) (“The great irony of today’s decision is that the Whistleblower Protection Act was designed to protect those who might ‘risk their own personal job security for the benefit of the public.’ Our decision instead shields Ms. Coleman’s insubordinate conduct and demands a jury trial for a completely understandable and reasonable order requiring Coleman to undergo an evaluation to see whether she remained fit for duty — an order which itself was likely intended to protect the public safety.”).

Priests for Life v. U.S. Dep’t Health & Human Servs., 808 F.3d 1 (D.C. Cir. 2015) (Brown, J. dissenting from denial of rehearing en banc) (“In a sense the government now fills the role formerly occupied by the church, embodying the hope of human well-being. For the government to pursue the good and to solve society’s problems, it must first identify that which is good and that which is problematic through subjective and value-laden judgments. Cf. Laurence H. Tribe, Disentangling Symmetries: Speech, Association, Parenthood, 28 PEPP. L. REV. 641, 651-53 (2001) …. Consequently, orthodoxy has been rehabilitated ….”)

Wesby v. District of Columbia, 765 F.3d 13 (D.C. Cir. 2014) (Brown, J. dissenting) (“Here the totality of the circumstances could cause reasonable minds to question whether Plaintiffs were as blameless as the attendees of a Sunday brunch whose imprudent host has overstayed her lease.”).

Am. Meat Inst. v. U.S. Dep’t of Agric., 760 F.3d 18 (D.C. Cir. 2014) (Brown dissenting) (“This case is really not about country-of-origin labeling. It is not even about patriotism or protectionism. And it is certainly not about health and safety. What is apparent from the record and the briefing is that this is a case about seeking competitive advantage. One need only look at the parties and amici to recognize this rule benefits one group of American farmers and producers, while interfering with the practices and profits of other American businesses who rely on imported meat to serve their customers.”).

Al Bahlul v. U.S., 767 F.3d 1 (D.C. Cir. 2014) (Brown, J. concurring in part and dissenting in part) (“The Framers labored to separate law from politics because they knew that without that boundary, everything would be politics.”).

In re Long-Distance Tel. Serv. Fed. Excise Tax. Refund Litig., 751 F.3d 629 (D.C. Cir. 2014) (Brown, J. concurring in part and dissenting in part) (“This is a complicated and frustrating case. It has lasted five years and accomplished nothing. In this litigation, the Internal Revenue Service (IRS) has lost every round, but, as the court’s opinion confirms, the odds are always with the house.”).

Am. C.L. Union v. U.S. Dep’t of Justice, 750 F.3d 927 (D.C. Cir. 2014) (Brown, J. dissenting) (“Thanks to the Internet (for better or worse), information that was once scattered, localized, and forgotten with the passage of time is now effectively permanent and searchable. And though one might wish quietly to melt into the shadow of obscurity, the inexorable march of time is simply no match for the unflagging, unforgiving memory that is the World Wide Web. Once a secret is disclosed online, neither the courts nor society may unring the lingering echo of the bell.”).

U.S. v. Epps, 707 F.3d 337 (D.C. Cir. 2013) (Brown, J. dissenting) (“Bundy may not bind us, but that does not mean its reasoning is faulty.”).

Honeywell Intern., Inc. v. EPA, 705 F.3d 470 (D.C. Cir. 2013) (Brown, J. dissenting) (“In Arkema, this Court held that EPA changed the legal landscape by not giving effect to the 2008 transfers in the new regulatory period — in other words, that the 2008 transfers had always been permanent. Thus, Arkema cannot constitute after-arising grounds and the petitions for review are untimely.”). [That is the entirety of the dissent.]

Coal. for Responsible Regulation, Inc. v. EPA, 2012 WL 6621785 (D.C. Cir. 2012) (Brown, J. dissenting) (“In the summer of 1974, while waiting to start classes at UCLA, I was lucky enough to obtain a summer job house sitting in the pleasant, upscale neighborhood of Pasadena. Known mostly for its Rose Parade and Rose Bowl, Pasadena is one of the more scenic exurbs of Los Angeles. I inhabited a sparsely furnished, modest-but-pricey bungalow set among the lush landscape typical of southern California. This is a place where Birds of Paradise grow ten feet tall and the magenta blossoms of Bougainvillea fall like lavish draperies from redwood garden trellises. After staying in the house more than a month and spending a restless night listening to the agitated thrashings of the jacaranda trees in a fitful wind, I stumbled bleary-eyed into the kitchen, looked out the window, and stopped — utterly dumbfounded. There — looking like it was but a few feet beyond the back fence — stood a mountain. Not a foothill. Not an unobtrusive mesa. A mountain! Closer inspection revealed not a lone majestic peak, but a whole mountain range I later identified as the San Gabriels. In those days, the air in the Los Angeles basin was so thick with smog that a mountain, or even a nearby mountain range, could simply disappear.”).

New Jersey v. EPA, 663 F.3d 1279 (D.C. Cir. 2011) (Brown, J. dissenting) (“Since preserving the public fisc from unreasonable depredations also serves the public interest, I would not be so eager to find new ways to waste Other People’s Money.”).

U.S. v. Laureys, 653 F.3d 27 (D.C. Cir. 2011) (Brown, J. dissenting) (“The district court instructed a jury to convict Brandon Laureys of attempted enticement of a child if the Government proved Laureys tried to persuade an adult to grant him access to a minor. The district court also allowed the jury to convict Laureys of crossing state lines to engage in sexual conduct with a minor, absent any evidence Laureys expected the fictitious child to be present at his destination. Because the jury instruction was plainly erroneous and the evidence insufficient as a matter of law, I would reverse Laureys’s convictions and his twenty-year prison sentence.”).

Forsyth Mem’l Hops., Inc. v. Sebelius, 652 F.3d 42 (D.C. Cir. 2011) (Brown, J. dissenting from denial of rehearing en banc) (“It is not difficult to see why the St. Luke’s exception threatens to swallow the rule against retroactive rulemaking. Many agencies charged with interpreting statutes by regulation also have adjudicatory functions, and adjudication can have the same widespread effect as rulemaking. The same policies an agency can formulate by formal or informal rule are also generally susceptible of adjudication. Thus, after St. Luke’s, nothing prevents an agency from creating impermissibly retroactive rules in a process devoid of procedural or substantive safeguards and then enforcing those rules through the back door of administrative adjudication.”).

Estate of Parsons v. Palestinian Auth., 651 F.3d 118 (D.C. Cir. 2011) (Brown, J. concurring in part and dissenting in part) (“In my experience, it is rare for three appellate judges to disagree with each other so thoroughly, but in this hard case it may be just as well. With only a narrow holding between us, we have at least avoided making bad law.”).

America v. Mills, 643 F.3d 330 (D.C. Cir. 2011) (Brown, J. dissenting) (“This case illustrates the pitfalls of including a non-disparagement clause in a settlement agreement between a government agency and its former employee. Memories fade, and the difficulty of ensuring the agency’s personnel abide by the agreement grows with every passing year. There are good reasons not to enter into such contracts in the first place. But a deal’s a deal. Because I believe SBA materially breached its settlement agreement with America, I would reverse the judgment of the district court with instructions to reinstate America’s Title VII suit.”).

Sw. Airlines Co. v. TSA, 650 F.3d 752 (D.C. Cir. 2011) (Brown, J. dissenting) (“TSA’s failure to do so leaves me with the sneaking suspicion that neither the agency nor its consultant ever seriously considered DOT’s estimate. I would remand once again for further consideration and an explanation.”).

Nat’l Petrochemical & Refiners Ass’n v. EPA, 643 F.3d 958 (D.C. Cir. 2011) (Brown, J. dissenting from denial of rehearing en banc) (“The panel opinion holds that an agency may promulgate fully retroactive regulations absent express congressional authority, as long as ‘implicit’ authority for the retroactivity may be discerned in the structure of the relevant statute. I respectfully disagree. The exception adopted here conflicts with the Supreme Court’s clear-statement rules, usurps legislative power, renders statutory deadlines precatory, multiplies uncertainty for regulated entities, and encourages lethargic administration. For these reasons, we should have reheard this case en banc.”).

Menkes v. U.S. Dep’t of Homeland Sec., 637 F.3d 319 (D.C. Cir. 2011) (Brown, J. dissenting in part) (“This is not an easy case. The court recognized as much before our initial remand, acknowledging ‘[t]he statutory question is potentially a difficult one,’ and urging the Coast Guard to provide a ‘forthright agency interpretation.’ The Coast Guard did not heed our advice. The process the Coast Guard instituted on remand, as well as the agency’s proffered interpretation of the relevant statute and/or its own regulations still provides little light for those lost at sea.”).

Taylor v. U.S. Dept. of Agric., 636 F.3d 608 (D.C. Cir. 2011) (Brown, J. dissenting) (“We cannot have it both ways.”).

U.S. v. Burroughs, 613 F.3d 233 (D.C. Cir. 2010) (Brown, J. concurring in part and dissenting in part) (“Although the principle is familiar, it bears restating that courts rarely grant relief when reviewing for plain error.”).

Fla. Gas Transmission Co. v. FERC, 604 F.3d 636 (D.C. Cir. 2010) (Brown, J. concurring in part and dissenting in part) (“In an era where we speak nonchalantly of trillions of dollars, costs in excess of $40 million may indeed be trivial. But we cannot know this without a frame of reference. Florida Power reaps no profits from the introduction of LNG. Why is it just and reasonable for Florida Power to pay mitigation costs caused by upstream parties that retain the profits without receiving a corresponding benefit? Other than claiming it lacks jurisdiction, FERC does not explain. Ordinarily, FERC is careful to avoid cross-subsidization, yet the Orders would appear to have this effect.”).

Ord v. D.C., 587 F.3d 1136 (D.C. Cir. 2009) (Brown, J. dissenting in part) (“[T]his controversy demonstrates why litigants should not be required to jump through such hoops to get past the courthouse door.”).

Emily’s List v. FEC, 581 F.3d 1 (D.C. Cir. 2009) (“Power — government power — is what generates passion in politics. Money only measures its depth. The more power is at stake, the more money will be used to shield, deflect, or co-opt it. So long as the government can take and redistribute a man’s livelihood, there will always be money in politics. One man’s corruption is another man’s political accountability. But there is a rub. We sit on a lower court and ‘must follow the binding Supreme Court precedent” until the Court itself overrules it.'”). [This opinion says “concurring in part” — which means dissenting in part.]

Novelty, Inc. v. DEA, 571 F.3d 1176 (D.C. Cir. 2009) (Brown, J. dissenting) (“Tellingly called poor man’s crack (especially telling, as crack is already poor man’s cocaine), methamphetamine — meth — is a national scourge. Behind only ‘alcohol and marijuana as the drug used most frequently in many Western and Midwestern states,’ meth addiction can cause ‘paranoia, auditory hallucinations, mood disturbances,’ and even ‘homicidal or suicidal thoughts.’ ‘A fairly common hallucination experienced by meth users is the so-called crank bug’ where a ‘user gets the sensation that there are insects creeping on top of, or underneath, her skin,’ causing her to ‘pick at or scratch her skin trying to get rid of the imaginary bugs,’ ‘open[ing] sores that may become infected.’ Meth also ‘reduces the amount of protective saliva around the teeth,’ which, along with the fact that ‘users also consume excess sugared, carbonated soft drinks, tend to neglect personal hygiene, grind their teeth and clench their jaws,’ causes ‘what is commonly called “meth mouth,” as addicts’ teeth ‘fall out’ ‘even as they do simple things like eating a sandwich.’ Meth is a very bad thing. A monster. But we don’t toss the law aside in our zeal to eradicate even an obvious menace.”).

Hendricks v. Geithner, 568 F.3d 1008 (D.C. Cir. 2009) (Brown, J. dissenting in part) (“I do not quarrel with the majority’s conclusion that if Johnson’s history of misconduct is not considered, then he was at least as qualified as Hendricks, and probably more so. But why would a reasonable juror not consider his history?”).

In re Sealed Case, 552 F.3d 841 (D.C. Cir. 2009) (Brown, J. dissenting) (“An appellate court simply does not resolve questions of fact (or force a district court to make a factual determination) unless the answer to the factual question matters.”).

Mich. Gambling Opposition v. Kempthorne, 525 F.3d 23 (D.C. Cir. 2008) (Brown, J. concurring in part and dissenting in part) (“Although I agree the nondelegation principle is extremely accommodating, the majority’s willingness to imagine bounds on delegated authority goes so far as to render the principle nugatory.”).

Transc. Gas Pipe Line Corp. v. FERC, 518 F.3d 916 (D.C. Cir. 2008) (Brown, J. concurring in part and dissenting in part) (“After all, why is subsidization by existing customers more problematic than reverse-subsidization of existing customers?”).

Bismullah v. Gates, 514 F.3d 1291 (D.C. Cir. 2008) (Brown, J. dissenting) (“My point is not to hold out continental criminal procedure as the perfect model for CSRT review, although it may be the closest (and may actually have been the original) model for the military’s prisoner-of-war tribunals. Nor, of course, is it a source of law, although it can be a useful source of ideas given that the military’s prisoner-of-war regulations expressly advert to international law.”).

In re Sealed Case, 494 F.3d 139 (D.C. Cir. 2007) (Brown, J. concurring in part and dissenting in part) (“The problem with the majority’s approach is its elevation of the rhetoric of perfect justice over the realities of distortion and disclosure. The question is not whether we like or approve of the state secrets privilege. It exists. The question is how the existence of the privilege, properly invoked, reshapes the case.”).

U.S. v. Goddard, 491 F.3d 457 (D.C. Cir. 2007) (Brown, J. dissenting) (“In America, people who are peaceably and lawfully minding their own business (or who seem to be) have the right to be free from arbitrary police interference. …. [W]hat we are now tempted to enforce is not Terry but the rule that, in a high-crime neighborhood, being young, male, and black creates reasonable, articulable suspicion. See David A. Harris, Factors for Reasonable Suspicion: When Black and Poor Means Stopped and Frisked, 69 IND. L.J. 659 (1994). Here, four men were stopped. There was no constitutionally adequate justification for the initial confrontation. Three of them were innocent of criminal activity, but nevertheless faced the indignity of being placed against a rail and searched. Vaughan Walker testified he started walking away as soon as he saw the police car because he ‘didn’t feel like being harassed.’ The lesson of today’s decision is clear: he has no choice.”).

Wilburn v. Robinson, 480 F.3d 1140 (D.C. Cir. 2007) (Brown, J. dissenting) (“As Wilburn filed the Notice more than thirty days later, § 2107 deprives us of jurisdiction.”).

Omar v. Harvey, 479 F.3d 1 (D.C. Cir. 2007) (Brown, J. concurring in part and dissenting in part) (“In addressing the propriety of this injunction, I note first that we heard arguments in this case on the portentous date of September 11, 2006, precisely five years after the terrorist attacks that so fundamentally altered this country’s attitude toward security. No longer could we sit back and consider ourselves safe from foreign enemies so long as no other nation wished us harm. The Founders envisioned wars in the paradigm of the time, with official declarations from heads of states announcing the beginning and end of hostilities. In today’s world, by contrast, global alliances of non-state actors can visit death and destruction on the American homeland without warning, on a scale equal to that seen in conventional wars. In such an environment, it would be dangerous folly to deny what this case involves: the capture of an alleged enemy combatant by American military personnel operating in a war zone. It is in this context that we must measure Omar’s likelihood of succeeding in his habeas petition, the harm the injunction imposes on the respondents, and the interest of the public in the case.”).

Arrington v. U.S., 473 F.3d 329 (D.C. Cir. 2006) (Brown, J. concurring in part and dissenting in part) (“Here, by contrast, only a runaway jury could return a verdict for Arrington based on his testimony as to what occurred, and if a jury did return such a verdict, appellees would be entitled to a directed verdict.”).

After reading these dissents, you should have a pretty good sense of Judge Brown. Let’s hope she enjoys her well-earned retirement. She certainty deserves it.

(If you are interested, I have uploaded the full list put together by the library — including her California dissents — at this link.)

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The D.C. Circuit decided two cases this week.

In Maze v. IRS, Judge Henderson (joined by Judges Griffith and Srinivasan), opened her opinion with a catchy quote of her own: “‘No taxes can be devised which are not more or less inconvenient and unpleasant.” This case concerns what “restraining” means as used in the Anti-Injunction Act (AIA), which provides that “no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court by any person ….” The court ruled that under even a “narrow construction of ‘restraining,’” there was no jurisdiction. The plaintiffs were trying to withdraw from one voluntary IRS program and enroll in a new program that allowed them to settle tax liability for “undisclosed foreign income or assets.” The IRS said no, and the plaintiffs sued. While both programs would have allowed the plaintiffs to settle their tax liability, the original program required them to pay “eight years’ worth of accuracy-penalties,” while the newer program “[does] not require a participant to pay any accuracy-based penalties for the three years covered by the program.” The court thus determined that this suit would “have the effect of restraining – fully stopping – the IRS from collecting accuracy-based penalties for which they are currently liable.” Hence, no jurisdiction.

And in Orangeburg, South Carolina v. FERC, Judge Wilkins (joined by Judges Millett and Randolph) ruled against the agency: “FERC has repeatedly sidestepped the legal issues raised by Orangeburg, thereby acquiescing to the gatekeeping regime allegedly causing the city’s injury. On the merits, we conclude that FERC failed to justify its approval of the agreement’s disparate treatment of wholesale ratepayers; to justify the disparity, the Commission relied exclusively on one line from a previous FERC order that, without additional explication, appears either unresponsive or legally unsound.” (Here is a great sentence: “After nearly 100 years of purchasing its wholesale power from the same utility, Orangeburg tried to cut a better deal.” Indeed, this entire opinion reads well — which is hard to when discussing wholesale rates.)

 

* Alan Dershowitz says that just as “‘no one is a hero to his butler,'” “no judge can ever be a flawless saint to his law clerks.” That’s true, of course — no one is perfect. “Flawless saint” is a pretty tough standard! But Judge Brown is remarkable. And although it may be prudent, in Professor Dershowitz’s words, to “expect to be disappointed,” I never was disappointed. To be sure, Judge Brown and her clerks don’t always agree — she didn’t want clerks who agreed with her about everything! Law is complicated and to really figure things out, everyone must think for themselves. But she always did her very best to not cut corners and to be honest. And she read (and read and read) and thought (and thought and thought). There will never be another Judge Brown again.

 

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.

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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