At my investiture, I confessed that I had long been in awe of the judges on the D.C. Circuit who were now my colleagues. Caveat lector: Nothing changed during the fifteen years that I served alongside them. Which means that my contributions to the D.C. Circuit Review – Reviewed, a blog I read religiously while on the court, will reflect that admiration for my former colleagues. I am grateful to Aaron Nielson for reviving this effort to keep us abreast of the workings of the D.C. Circuit. I look forward to working with my new colleagues on this venture.

The D.C. Circuit works hard to issue its opinions in a timely fashion. Three months from oral argument is what the judges shoot for, so when a year has passed between oral argument and the release of an opinion, something unusual is at work. Typically, it means that the panel has wrestled with a difficult matter. And that is what we have in Mowrer v. DOT, argued on September 9, 2020, but released only yesterday.

Although the parties will be most interested in the 17-page opinion authored by Judge Katsas and joined in full by Judge Wilkins, it’s the 36-pages of dueling concurrences by Judge Katsas and Senior Judge Randolph that make for the most interesting reading for the rest of us. Here the writing strengths of both judges are on full display. Judge Katsas is always careful and deliberate, analytical and comprehensive. Judge Randolph writes in a pithy and conversational style that makes his writing actually fun to read. He is at his best as a stylist when the case allows him to draw upon lessons from history, as Mowrer does.

In Mowrer, two commercial truck drivers sought money damages from the Federal Motor Carrier Safety Administration (“FMCSA”) under the Fair Credit Reporting Act (“FCRA”) after the agency released their traffic citations to prospective employers in a manner that the drivers claimed violated the law and caused them harm.

Judge Katsas’s opinion for the court affirmed the district court’s dismissal of the drivers’ claims in two steps. Whether both steps were necessary triggered the dueling concurrences that make this case so interesting.

In the first step of his analysis, Judge Katsas determines that the FCRA “waives the federal government’s sovereign immunity from claims for money damages.” In his next step, Judge Katsas concludes that the drivers had no cause of action against the FMCSA because it was not a “consumer reporting agency,” as defined in the FCRA. The FCRA collects information on commercial drivers to “support safety regulations and enforcement activities” required by law, and not, as the FCRA requires, “for the purpose of furnishing” the information to third parties like the drivers’ prospective employers.

All members of the panel agreed that the drivers’ claims for damages should have been dismissed, but Judge Randolph wrote separately to argue that the court needn’t have – and therefore shouldn’t have – taken up the question of sovereign immunity. “As I see it,” Judge Randolph opined, “the court should not have exercised its discretion to decide the question of sovereign immunity first. There is a circuit split on whether this federal agency has immunity and given the panel’s conclusion that the plaintiffs have no cause of action – with which I agree – I think it improper to take a position on the question.”

In response, Judge Katsas offered his own concurrence explaining why the question of sovereign immunity was jurisdictional and must be answered before reaching the merits. He relies primarily upon the Supreme Court’s decisions in Steel Co. v. Citizens for a Better Environment, 523 U.S. 83 (1998) and FDIC v. Meyer, 510 U.S. 83 (1994). Acknowledging that there are D.C. Circuit cases to the contrary, chiefly In re Sealed Case, 192 F.3d 995 (D.C. Cir. 1999)(per curiam), Judge Katzas argues that they conflict with Meyer, later Supreme Court  and D.C. Circuit decisions, and a long history that holds that this sequencing rule applies to questions of constitutional and statutory jurisdiction. Judge Katsas cites Blackstone, Hamilton in Federalist 81, the Antifederalists, Madison in Virginia’s ratification debates, and John Marshall, not only as the Great Chief Justice, but as a member of the U.S. House of Representatives and a delegate to Virginia’s ratification convention.

In his concurrence, Judge Randolph insists that “there is no rigid rule requiring a federal court to decide statutory jurisdiction (as distinguished from Article III jurisdiction) before getting to the merits.” He appeals first to Supreme Court and D.C. Circuit precedent, arguing that courts may decide a merits question before a jurisdiction question in order to avoid “a hypothetical judgment—which comes to the same thing as an advisory opinion.” Judge Katsas’s approach, he argues, risks “bad decision-making” and a “substantial expenditure of scarce judicial resources on difficult questions that have no effect on the outcome of the case.”

Judge Randolph relies upon Supreme Court precedent and D.C. Circuit decisions, primarily In re Sealed Case, to argue that “the priority-of-decision rule” described in Steel Co. “is limited to Article III jurisdiction” and does not extend to questions of statutory jurisdiction. Such is the view of all of the federal circuits, he argues, attaching a six-page addendum that lists their decisions so holding.

Like Judge Katsas, Judge Randolph turns to history to argue that in English common law, sovereign immunity was not a jurisdictional bar and courts could resolve merits claims before, or even without, considering that defense.  Judge Randolph reaches back in time past Blackstone to the thirteenth century (cleric and jurist Henry of Bracton on “the king’s duty to redress wrongs done by himself or on his behalf”), and the fourteenth century (perhaps you already know the procedures of “traverse and monstrans de droit, but I had to look them up), and the “seminal eighteenth-century precedent on sovereign immunity” – the Bankers’ Case, handed down by “the barons of the Exchequer.” Blackstone makes an appearance as well, as he must. In Judge Randolph’s telling, this centuries-old understanding jumped the pond and has been a common feature of Supreme Court decisions since the early days of the Republic. Judge Katsas rejects Judge Randolph’s reading of history and its relevance to this question in light of Meyer.

A fascinating debate on a consequential question between learned and thoughtful judges that will no doubt continue in some form before the D.C. Circuit, other circuits, and the Supreme Court. It was well worth the wait.

Note: Before being typed, this post was drafted with a fountain pen – Judge Randolph’s favorite writing tool.

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