D.C. Circuit Review – Reviewed: The Dissents that Matter Most to Chief Judge Garland, by Aaron Nielson

by Aaron Nielson — Saturday, May 14, 2016@Aaron_L_Nielson

This week, Chief Judge Garland sent his questionnaire to the Senate. As I reviewed that “lengthy” submission, my mind turned again to “brooding spirts.” In particular, it is interesting that Garland’s list of his “most significant” opinions includes two dissents.

To begin, here is Garland’s list:

Cause of Action v. FTC (2015)

Wagner v. FEC (2015)

ACLU v. CIA (2013)

United States v. Gaskins (2012)

Saleh v. Titan Corp (2009) (dissent)

Parhat v. Gates (2008)

United States ex rel. Totten v. Bombardier Corp. (2004) (dissent)

Rancho Viejo v. Norton (2003)

Sparrow v. United Air Lines (2000)

Anderson v. Zubieta (1999)

All of these opinions are worth reading, though some are more important than others. ACLU v. CIASaleh v. Titan Corp., Parhat v. Gates, Totten v. Bombardier Corp., and Rancho Viejo v. Norton strike me as the most significant. I discussed Cause of Action v. FTC last fall; personally, I’m not sure it is more significant than another of his recent opinions, FEC v. Craig for U.S. Senate, but, to be fair, Cause of Action is a good illustration of the types of cases that come to the D.C. Circuit. The cert briefing for Wagner v. FEC is available here; cert was denied without a relist. United States v. Gaskins is a fact-heavy criminal case (this opinion perhaps should be read alongside his dissents in United States v. Spinner and United States v. Watson). Anderson v. Zubieta is a discrimination case with a tricky timeliness issue. Sparrow v. United Air Lines is also a discrimination case. The reason, however, it appears, that the short Sparrow opinion was included was that the Supreme Court ultimately agreed with the views of the “majority of Courts of Appeals,” which included the D.C. Circuit.

The two dissents, however, stood out to me because those opinions, by definition, reflect Judge Garland’s views alone. Perhaps if the list could be longer, he also would have included his dissent in FedEx v. NLRB (or one of his other NLRB dissents) and American Corn Growers Ass’n v. EPA. I also think his majority opinion in Miller v. Clinton is important, given the disagreement with Judge Kavanaugh.*

The D.C. Circuit issued four opinions this week—none of which, I suspect, will ever make it on a list of “most significant” opinions, though, interestingly enough, one springs directly from the Senate.

Let’s begin with that opinion, which is the most important of the week: ACLU v. CIA. (This opinion, of course, is not the ACLU v. CIA case on Chief Judge Garland’s list.) Judge Edwards, joined by Judges Tatel and Srinivasan, tackled a sensitive question: Under FOIA, must the CIA turn over “a report authored by the Senate Select Committee on Intelligence” regarding CIA interrogation and detention? (Parts of the report are publicly available here, including the Executive Summary.) The answer depends on whether Congress “manifested a clear intent to control the document.” The Court concluded that Congress did intend to keep control: “The mere transmission of the Full Report to agency officials for their consideration and use within the Executive Branch did not vitiate the command of the June 2009 Letter or constitute congressional relinquishment of control over the document.”

Next, consider American Freedom Law Center v. Obama. This case is a challenge to the Affordable Care Act. In particular, “Robert Muise and American Freedom Law Center allege that their health insurance premiums increased by 57% at the end of 2014, and claim that the Affordable Care Act is to blame.” Appellants argued that the President’s 2013 decisions to delay the ACA’s implementation was unlawful and “caused fewer people to purchase ACA-compliant plans,” which increased rates. Long story short, Judge Wilkins, joined by Judges Griffith and Srinivasan, concluded that appellants lacked standing to bring such a challenge because the rate increase’s connection to the implementation policies at issue was too speculative.

In Jankovic v. International Crisis Group, Judge Rogers, joined by Judges Henderson and Srinivasan, issued a lengthy case about defamation, the First Amendment, and “the Slobodan Milosevic regime.” The International Crisis Network described Philip Zepter “as a member of the ‘New Serbian Oligarchy’ and stated, for example, that he was ‘associated with the Milosevic regime and benefitted from it directly.’” Ultimately, the Court concluded that “Zepter was a limited-purpose public figure with respect to the public controversy surrounding political and economic reform in Serbia and integration of Serbia into international institutions during the post-Milosevic era.” “Further, Zepter’s mustering of evidence, deficient in part due to his procedural defaults, fails to show by clear and convincing evidence that ICG acted with actual malice in publishing the statement.”

Finally, here’s Electronic Privacy Information Center v. FAA. Judge Henderson, joined by Judges Rogers and Srinivasan (who was a member of all four panels this week), confronted the privacy implications of drones. This short opinion, however, does not really address that issue: “EPIC challenges both the FAA’s dismissal of its petition for rulemaking and the FAA’s omission of privacy provisions in the notice of proposed rulemaking. Regarding its first challenge, EPIC is time-barred; on the second, EPIC’s challenge is premature. Accordingly, we dismiss EPIC’s petition for review.”

Anyway, that’s the D.C. Circuit for the week. Who knows what will happen next? We live in interesting times.

* This questionnaire, however, got me thinking about other nominees and their “most significant” dissents. Justice Kagan, of course, did not author any dissents before joining the Supreme Court. But Justice Sotomayor did, and she listed Croll v. Croll, which involved the Hague Convention on the Civil Aspects of International Child Abduction. It appears that Justice Alito was not asked this question. Neither was the Chief Justice, which is too bad because it would be interesting to see if he also would have listed Rancho Viejo v. Norton.

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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.

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