All was relatively quiet on the D. C. Circuit last week through the customary release of opinions on Friday, and then the storm hit. First, the calm. 

Only two decisions were released through Friday, neither of which has much significance beyond the interest of the parties.

In Edward M.R. v. District of Columbia, No. 23-7143, the DC Circuit affirmed summary judgment for the District of Columbia on claims by a special-education student in Washington, D.C. public schools that his individualized education plans (IEPs) were deficient under the Individuals with Disabilities Education Act (IDEA). In an opinion written by Judge Walker and joined by Judge Henderson and Judge Rao, the court explained that the student’s claims failed for untimeliness, failure to exhaust administrative remedies, and on the merits because the IEPs were reasonably calculated to enable him to make progress. Judge Henderson wrote a concurring opinion, explaining that IDEA claims should not be decided through Rule 56 summary judgment but by a Rule 52 bench trial on the administrative record. 

In United States, ex rel. O’Connor v. USCC Wireless Inv., Inc., No. 23-7044, Judge Rao, joined by Judges Wilkins and Katsas, affirmed the district court’s dismissal of a qui tam action because the allegations were “substantially the same” and didn’t “materially add” to information that had already been publicly disclosed and were the subject of a previous qui tam suit brought in 2008 against the same defendants asserting the same claims.

So much for the calm. The storm that has been President Trump’s challenge to regular order appeared on the horizon of the D. C. Circuit on Friday afternoon, when Hagan Scotten, former law clerk on the D. C. Circuit and head of the investigation into allegations against New York City Mayor Eric Adams, resigned his office as an Assistant U. S. Attorney in the S. D. N. Y. rather than to comply with an order from the Acting Deputy Attorney General to file a motion to dismiss the charges that had been brought against the mayor. 

Huzzahs to Hagan Scotten. I had the pleasure to meet Scotten when he clerked for then-Judge Brett Kavanaugh two doors down the hall. I had hoped to hire this Special Forces Captain who had served three combat tours in Iraq before studying at Harvard Law School where he finished first in the class and was named best oralist in the Ames Moot Court competition, but I lost him to Judge Kavanaugh and then watched as he served with distinction, first in my friend’s chambers, and then in the chambers of Chief Justice John Roberts. Of his resignation, I know only what I read in the press, and one of the habits developed on the bench is to suspend judgment until you have heard the story from all angles. Without knowing whether Scotten’s resignation was justified or not, by any measure, it was a profile in courage. It is said that he was a possible nominee to the 2d Circuit. If so, his courage comes at a high personal cost. Courage is a rare virtue at any moment, but especially now. As many have pointed out, President Kennedy’s book Profiles in Courage is a slender volume. So when we see it exercised, it should be lauded. As Senator Robert F. Kennedy said so eloquently in a speech given in South Africa during the nadir of apartheid, “Each of us can work to change a small portion of events. It is from numberless diverse acts of courage and belief that human history is shaped. Each time a man stands up for an ideal . . . he sends forth a tiny ripple of hope, and crossing each other from a million different centers of energy and daring, those ripples build a current that can sweep down the mightiest walls of oppression.” Thank you, Hagan, for your ripple of hope!

Late Saturday evening the storm hit the D. C. Circuit. 

In Dellinger v. Bessent, No. 25-5028, a divided panel voted 2-1, with Judges Childs and Pan in the majority and Judge Katsas in dissent, to uphold a temporary restraining order issued on February 12 by District Court Judge Amy Berman Jackson that delayed by two weeks President Trump’s attempt to fire the head of the Office of the Special Counsel, an independent agency created by Congress whose primary mission is to protect whistleblowers in the federal government, so that she could more fully consider the agency head’s request for a preliminary injunction keeping him in office while he pursued his claim in court that his firing was illegal. In an unsigned opinion, the majority rejected the Trump Administration’s challenge to the TRO, concluding that Judge Jackson should be allowed to consider the merits of the request for a preliminary injunction without intervention by the court of appeals.” In dissent, Judge Katsas would have reached the merits and found that the President was acting within his Constitutional authority to manage the Executive Branch when he fired the Special Counsel. 

The Trump Administration has filed with the Supreme Court an emergency application for a stay of the TRO that calls into question the much-maligned Humphrey’s Executor v. United States. For an interesting take on that wobbly precedent, see my concurrence in the en banc decision of the D. C. Circuit in PHH Corp. v. CFPB, 881 F.3d 75, 124-60 (D.C. Cir. 2018) (en banc) (Griffith, J., concurring in the judgment). 

A final note about the storm. Let me call out the overheated rhetoric used to criticize judges who have cases before them challenging some of President Trump’s executive orders. It’s fair game to criticize the decisions of judges. Such criticism is a hallmark of a healthy democracy. What is not fair game – what serves as a body blow to the rule of law – is to question the good faith of the judges and claim that they are driven by partisan considerations simply because one disagrees with their rulings. I saw this from some of my progressive colleagues with whom I served on President Biden’s Commission on the Supreme Court. They were upset by decisions of the Roberts Court and the hardball politics that had led to the appointments of President Trump’s nominees and claimed that the Court was therefore “illegitimate.” We are seeing this now from some on the Right who are upset by the way some of the challenges to President Trump’s executive orders are being handled. Accusations that judges are “illegitimate” or “insurrectionists” or involved in a “judicial coup” or should be impeached because they interpret the law in a way that one disfavors are dangerous to our democracy, not only because they grossly mischaracterize the work of the federal courts, but, more ominously, they undermine confidence in the judiciary, which poses a serious threat to the Constitution. The renowned social psychologist Jonathan Haidt, a scholar not given to exaggerated claims, warns of a “catastrophic failure of our democracy,” because, he notes, “we just don’t know what a democracy looks like when you drain all trust out of the system.” This is a moment when all of us need to speak up for the federal judiciary.