D.C. Circuit Review – Reviewed: The “New” Judges

by Aaron Nielson — Friday, May 17, 2019@Aaron_L_Nielson

Time is funny. I clerked on the D.C. Circuit ten years ago. A decade is a long time — but it sure doesn’t feel like it. From my clerkship days, I remember the judges. I remember the cases. In fact, I even remember some of the oral arguments. Yet I can’t escape reality: The 2019 D.C. Circuit is not the same as the 2009 version.

Nonetheless, when I read D.C. Circuit opinions, I confess that I still think of the judges who joined the Court after I left as the “new” judges. But they aren’t all that new anymore. Judge Srinivasan joined the Court in 2013 — that’s six years. So did Judges Millett and Pillard. And Judge Wilkins joined in early 2014. Even Judge Katsas isn’t that new. He’s been a judge for over a year. Well, at least Judge Rao is still new.*

This week is a good example of the “new” judges in action. Consider CREW v. FEC. I first discussed this case about a year ago. A quick summary: The FEC deadlocked, and that “deadlock meant that the Commission could not proceed: under FECA, the Commission may pursue enforcement only upon an affirmative vote of 4 of its members.” Three of the Commissioners justified their decision on the ground of prosecutorial discretion. The D.C. Circuit majority (Judge Randolph, joined by Judge Kavanaugh) concluded that decision was not reviewable.

Judge Pillard — one of the “new” judges — dissented. Afterwards, CREW petitioned for rehearing en banc. This week, the Court denied that petition, with Judge Griffith writing a concurrence. Pillard dissented again. And this is how she began her (lenthy) dissent:

When I first read the dissent, I was surprised to see a junior judge, acting solo, take on the en banc court. That doesn’t happen very often. But then I remembered something: She isn’t a junior judge!

A similar story could be told about United States v. Bagcho. This is a sentencing appeal. Judge Rogers (joined by Judges Millett and Ginsburg) largely upheld the sentence. Notably, Judge Millett concurred:

Whatever one thinks of the merits of this longstanding issue, the point here is that this concurrence also is not the opinion of a junior judge.

The Court also issued a couple of other decisions. In Haynes v. District of Columbia Water, Judge Griffith (joined by Judges Henderson and Williams) affirmed dismissal of a discrimination claim. The most interesting discussion concerns “Non Compos Mentis.” And in Estate of Klieman v. Palestinian Authority, Judge Williams (joined by Chief Judge Garland and Judge Katsas) held that the rule that “the due process clause of the 5th Amendment bar[s] U.S. courts from exercising jurisdiction over non-sovereign foreign entities without an adequate nexus to the United States” prevented litigation against the Palestinian Authority and Palestinian Liberation Organization for certain acts of oversees terrorism. Obviously, these aren’t “admin law” cases.

For an old-timer like me, Griffith and Williams are familiar names — we’ve seen them in action for a long time. But it is also time to stop thinking of the “new” judges as new.

Boy, time is funny.

 

* Judge Rao did make her first appearance in a D.C. Circuit opinion. It was anticlimactic: “Circuit Judge Rao did not participate in this matter.” But I was pleased to see the words “Circuit Judge Rao.” She’ll be great.

 

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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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