Judicial Opinions of Judge Brett M. Kavanaugh
Congressional research reportJul 23, 2018
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Judicial Opinions of Judge Brett M.
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R45269
Judicial Opinions of Judge Brett M. Kavanaugh
Summary
On July 9, 2018, President Trump announced the nomination of Judge Brett M. Kavanaugh of the
U.S. Court of Appeals for the District of Columbia Circuit (D.C. Circuit) to succeed Supreme
Court Justice Anthony M. Kennedy, who is scheduled to retire from active status on July 31,
2018. Judge Kavanaugh has served as a judge on the D.C. Circuit since May 30, 2006. He has
also sat, by designation, on judicial panels of the U.S. Court of Appeals for the Eighth Circuit and
the U.S. Court of Appeals for the Ninth Circuit, and also served on three-judge panels of the U.S.
District Court for the District of Columbia.
During his tenure on the bench, Judge Kavanaugh has adjudicated more than 1,500 cases, almost
all while a member of either a three-judge or en banc panel of the D.C. Circuit. In part because of
the D.C. Circuit’s location in the nation’s capital and the number of statutes providing it with
special or even exclusive jurisdiction to review certain agency actions, legal commentators
generally agree that the D.C. Circuit’s docket, relative to the dockets of other circuits, contains a
greater percentage of nationally significant legal matters. Cases adjudicated by the D.C. Circuit
are more likely to concern the review of federal agency action or civil suits involving the federal
government than cases adjudicated in other circuits, while the D.C. Circuit docket has a lower
percentage of cases involving criminal matters, prisoner petitions, or civil suits between private
parties.
Arguably, Judge Kavanaugh’s authored opinions provide the greatest insight into the nominee’s
judicial approach, as a judge’s vote or decision to join an opinion authored by a colleague may
not necessarily represent full agreement with a colleague’s views. This report provides a tabular
listing of 306 cases in which Judge Kavanaugh authored a majority, concurring, or dissenting
opinion. The opinions are categorized into three tables: Table 1 identifies 148 opinions authored
by Judge Kavanaugh on behalf of a unanimous panel; Table 2 contains 47 controlling opinions
authored by Judge Kavanaugh in which one or more panelists wrote a separate opinion; and
Table 3 lists 111 cases where Judge Kavanaugh wrote a concurring or dissenting opinion
(decisions where Judge Kavanaugh wrote both the controlling opinion and a separate concurrence
are included in this final table). Opinions are identified and briefly discussed in each table in
reverse chronological order based on where the case appears in the Federal Reporter. The
opinions are also categorized by their primary legal subjects (e.g., administrative law, criminal
law & procedure, environmental law, federal courts & civil procedure, labor & employment law,
and national security).
While this report identifies and briefly describes judicial opinions authored by Judge Kavanaugh
during his time on the federal court, it does not analyze the implications of his judicial opinions or
suggest how he might approach legal issues if appointed to the Supreme Court. Those matters
will be discussed in a forthcoming CRS report. Key CRS products related to the Supreme Court
vacancy and Judge Kavanaugh’s nomination are collected in CRS Legal Sidebar LSB10160,
Supreme Court Nomination: CRS Products, by (name redacted)
.
Congressional Research Service
Judicial Opinions of Judge Brett M. Kavanaugh
Contents
Methodology ................................................................................................................................... 5
Tables
Table 1. Opinions Authored by Judge Kavanaugh for a Unanimous Panel ..................................... 6
Table 2. Controlling Opinions Authored by Judge Kavanaugh for Which Another Judge
Wrote a Concurrence or Dissent ................................................................................................. 32
Table 3. Concurring and Dissenting Opinions Authored by Judge Kavanaugh ............................ 51
Appendixes
Appendix. Glossary of Common Abbreviations Used in Tables ................................................. 106
Contacts
Author Contact Information ........................................................................................................ 107
Congressional Research Service
Judicial Opinions of Judge Brett M. Kavanaugh
n July 9, 2018, President Trump announced the nomination of Judge Brett M. Kavanaugh
of the U.S. Court of Appeals for the District of Columbia Circuit (D.C. Circuit) to
succeed Supreme Court Justice Anthony M. Kennedy, who is scheduled to retire from
active status on July 31, 2018.1 Judge Kavanaugh has served as an appellate judge for the D.C.
Circuit since his appointment by President George W. Bush on May 30, 2006.2 He has also sat, by
designation, on judicial panels for the U.S. Court of Appeals for the Eighth Circuit (Eighth
Circuit), the U.S. Court of Appeals for the Ninth Circuit (Ninth Circuit),3 and the U.S. District
Court for the District of Columbia.4
O
During his tenure on the bench, Judge Kavanaugh has adjudicated more than 1,500 cases,5 almost
all while a member of either a three-judge or en banc panel of the D.C. Circuit.6 The D.C. Circuit
considers far fewer cases each year than other federal appellate courts.7 But in part because of the
D.C. Circuit’s location in the nation’s capital and the number of statutes providing it with special
or even exclusive jurisdiction to review certain agency actions, legal commentators generally
agree that the D.C. Circuit’s docket, relative to the dockets of other circuits, contains a greater
percentage of nationally significant legal matters.8 Cases adjudicated by the D.C. Circuit are more
1 The White House, President Donald J. Trump Announces Intent to Nominate Judge Brett M. Kavanaugh to the
Supreme Court of the United States, https://www.whitehouse.gov/presidential-actions/president-donald-j-trumpannounces-intent-nominate-judge-brett-m-kavanaugh-supreme-court-united-states/ (last visited July 23, 2018). Judge
Kavanaugh’s nomination was formally submitted to the Senate the following day. See U.S. Senate, Supreme Court
Nominations: present-1789, https://www.senate.gov/pagelayout/reference/nominations/Nominations.htm (last visited
July 23, 2018).
2 U.S. Court of Appeals for the District of Columbia Circuit, Brett M. Kavanaugh: Professional Biography,
https://www.cadc.uscourts.gov/internet/home.nsf/Content/VL+-+Judges+-+BMK (last visited July 23, 2018).
3
The Chief Justice of the U.S. Supreme Court “may, in the public interest, designate and assign temporarily any circuit
judge to act as circuit judge in another circuit upon request by the chief judge or circuit justice of such circuit.” 28
U.S.C. § 291(a).
4 See id. § 2284 (providing for three-judge district court panels to be convened with respect to certain actions, including
challenges to the constitutionality of the apportionment of congressional districts or state legislative bodies, and that at
least one judge on the panel be a circuit judge).
5 On July 23, 2018, CRS searched all federal cases in the Westlaw legal database using the search strategy
pa(Kavanaugh) or ju(Kavanaugh) or wb(Kavanaugh), which are the segments for “Panel,” “Judge,” and “WrittenBy,”
presumably identifying all cases identified by Westlaw editors on which Judge Kavanaugh sat on a judicial panel
(including, but not limited to, those cases where he wrote an opinion). This search retrieved 1,579 results. A search of
federal cases in the LexisAdvance legal database, using the search strategy judge(Kavanaugh) retrieved 3,858 results.
The significant discrepancy in results appears mainly due to the LexisAdvance database search retrieving numerous,
terse judicial orders concerning routine procedural motions that were not retrieved using Westlaw, and which are not
included in this report’s tables.
6 Searches of the Westlaw and LexisAdvance legal databases conducted by CRS on July 23, 2018 identified Judge
Kavanaugh as a member of a Ninth Circuit panel that issued a judicial opinion in 7 cases; a member of an Eighth
Circuit panel rendering decisions in 2 cases; and a member of a federal district court panel issuing a ruling in 5 cases.
See supra note 5 (describing methodology used to identify cases adjudicated by Judge Kavanaugh). Although a search
of the LexisAdvance database retrieved 8 decisions by the Ninth Circuit where Judge Kavanaugh was a panelist
compared to 7 decisions retrieved using Westlaw, this discrepancy is due to Westlaw including only the published
version of the Ninth Circuit’s opinion in United States v. Parker, 651 F.3d 1180 (9th Cir. 2011), while the
LexisAdvance database also lists an earlier, unpublished version of the decision, No. 10-50248, 2011 U.S. App. LEXIS
10707 (9th Cir. May 24, 2011). The search of the LexisAdvance database identified 2 Eighth Circuit cases on which
Judge Kavanaugh was a panelist; these were not identified in the Westlaw database search.
7 See Hon. Harry T. Edwards, Working Paper No. 17-47: Collegial Decision Making in the US Court of Appeals, NYU
SCHOOL OF LAW PUBLIC LAW & LEGAL THEORY RESEARCH PAPER SERIES (Nov. 2017), at 73 (listing total published and
unpublished decisions issued by the 12 regional courts of appeals).
8 See Aaron Nielson, D.C. Circuit Review — Reviewed: The Second Most Important Court?, 36 YALE J. ON REG.:
NOTICE & COMMENT (Sept. 4, 2015), http://yalejreg.com/nc/d-c-circuit-review-reviewed-the-second-most-important-
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Judicial Opinions of Judge Brett M. Kavanaugh
likely to concern the review of federal agency action or civil suits involving the federal
government than cases adjudicated in other circuits, while the D.C. Circuit docket has a lower
percentage of cases involving criminal matters, prisoner petitions, or civil suits between private
parties.9
Unlike the Supreme Court, which enjoys “almost complete discretion” in selecting its cases, the
federal courts of appeals are required to adjudicate many cases as a matter of law and, as a result,
tend to hear “many routine cases in which the legal rules are uncontroverted.”10 Arguably
indicative of the nature of federal appellate work, the vast majority of cases decided by threejudge panels of federal courts of appeals are issued without a dissenting opinion.11 However,
while the vast majority of cases adjudicated by the D.C. Circuit are decided without a dissenting
opinion, perhaps because of the nature of the D.C. Circuit’s docket, a greater percentage of the
court’s decisions draw a dissenting opinion relative to its sister circuits.12
This report provides tabular listings of 306 cases in which Judge Kavanaugh authored a majority,
concurring, or dissenting opinion. Arguably, these written opinions provide the greatest insight
into Judge Kavanaugh’s judicial approach, as a judge’s vote or decision to join an opinion
authored by a colleague may not necessarily represent full agreement with a colleague’s views.13
Accordingly, this report does not include cases in which Judge Kavanaugh sat on a reviewing
judicial panel, but is not credited as the author of an opinion. For example, instances where Judge
court-by-aaron-nielson/ (discussing reasons for the D.C. Circuit’s reputation as the “second most important court” after
the U.S. Supreme Court).
9 See, e.g., Hon. Brett M. Kavanaugh, The Courts and the Administrative State, 64 CASE W. RES. L. REV. 711, 715
(2014) (“[T]he bread and butter of our docket, is our administrative law docket. What I mean by that is determining in a
particular case whether an administrative agency, like the EPA, the NLRB, or the FCC, exceeded statutory limits on
their authority or violated a statutory prohibition on what they can do. These are the cases that come up to our court
constantly. We see very complicated administrative records, and we adjudicate very complex statutes.”); Eric M.
Fraser, et al., The Jurisdiction of the D.C. Circuit, 23 CORNELL J.L. & PUB. POL’Y 131, 131-34, 154 (2013) (describing
D.C. Circuit docket and contrasting it with those of other judicial circuits, and listing federal statutes providing the D.C.
Circuit with special jurisdiction over “matters likely to have national effect”); Hon. John G. Roberts, What Makes the
D.C. Circuit Different? A Historical View, 92 VA. L. REV. 375, 377 (2006) (“[W]hen you look at the docket . . . you
really see the differences between the D.C. Circuit and the other courts. One-third of the D.C. Circuit appeals are from
agency decisions. That figure is less than twenty percent nationwide. About one-quarter of the D.C. Circuit’s cases are
other civil cases involving the federal government; nationwide that figure is only five percent. All told, about twothirds of the cases before the D.C. Circuit involve the federal government in some civil capacity, while that figure is
less than twenty-five percent nationwide.”).
10 Louis J. Sirico, Jr., The Citing of Law Reviews by the United States Courts of Appeals: An Empirical Analysis, 45 U.
MIAMI L. REV. 1051, 1052 n.8 (1991); see generally HON. RICHARD A. POSNER, THE FEDERAL COURTS: CHALLENGE AND
REFORM 367 (2009) (observing that “more of the work of [the federal appellate] courts really is technical. . . . Most of
the appeals they get can be decided uncontroversially by the application of settled principles”).
11 See FRANK B. CROSS, DECISION MAKING IN THE U.S. COURTS OF APPEALS 160 (2007) (noting the “relative paucity of
circuit court panel dissents”).
12 See Edwards, supra note 7, at 70-71 (providing data indicating that, during a 5-year period beginning September 30,
2011, roughly 4.5% of cases decided on the merits by the D.C. Circuit drew at least one dissenting opinion, compared
to the nationwide average of 1.3% for the geographic circuit courts of appeals).
13 See Hon. Ruth Bader Ginsburg, as quoted in Irin Carmon, Opinion, Justice Ginsburg’s Cautious Radicalism, N.Y.
TIMES (Oct. 24, 2015), http://www.nytimes.com/2015/10/25/opinion/sunday/justice-ginsburgs-cautious-radicalism.html
(observing that “an opinion of the court very often reflects views that are not 100 percent what the opinion author
would do, were she writing for herself”); Steven D. Smith, Lessons from Lincoln: A Comment on Levinson, 38 PEPP. L.
REV. 915, 924 (2011) (“[T]he fact that a judge joins in a majority opinion may not be taken as indicating complete
agreement. Rather, silent acquiescence may be understood to mean something more like ‘I accept the outcome in this
case, and I accept that the reasoning in the majority opinion reflects what a majority of my colleagues has agreed
on.’”).
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Kavanaugh was part of a panel that issued a per curiam opinion, in which no particular judge was
credited as an author, are omitted from this report. This report also does not attempt to identify
the various rulings made by circuit panels on procedural issues in the midst of the appeal (e.g.,
granting a litigator’s request for an extension of time to file a brief).14 Finally, the report does not
address subsequent legal proceedings that may have occurred after a cited decision was issued,
except to note where Westlaw or Lexis editors have indicated that a decision was subsequently
abrogated, affirmed, reversed, or vacated by the Supreme Court or the D.C. Circuit.15
The opinions discussed in this report are categorized into three tables: Table 1 identifies 148
opinions authored by Judge Kavanaugh on behalf of a unanimous panel; Table 2 contains 47
controlling opinions authored by Judge Kavanaugh in which one or more panelists wrote a
separate opinion; and Table 3 lists 111 cases where Judge Kavanaugh wrote a concurring or
dissenting opinion, including cases where Judge Kavanaugh wrote both the majority opinion and
a separate concurrence.16 A concurring opinion is identified as a “concurrence in the judgment”—
that is, an opinion where the author agrees with the ultimate conclusion reached by the majority
but not the manner in which it was reached—only when the concurrence is expressly labeled as
such.17
Cases are listed in reverse chronological order based on where the case appears in the Federal
Reporter. In each instance, the key ruling or rulings of the case are succinctly described. A
glossary of common abbreviations for statutes, agencies, and Supreme Court cases referenced in
the tables is attached as an Appendix. Judicial opinions discussed in this report are categorized
using the following legal subject areas:
Administrative Law (77 cases)
Communications Law (14 cases)
Antitrust Law (4 cases)
Bankruptcy Law (1 case)
Business & Corporate Law (6 cases)
Civil Rights Law (24 cases)
Contracts Law (7 cases)
Criminal Law & Procedure (45 cases)
14 An arguable exception is made for an opinion by Judge Kavanaugh denying a motion to recuse himself from a
Freedom of Information Act lawsuit on account of his prior executive service. Baker & Hostetler LLP v. Dep’t of
Commerce, 471 F.3d 1355 (D.C. Cir. 2006).
15 A forthcoming CRS report will provide a list of D.C. Circuit decisions subsequently reviewed by the Supreme Court
in which Judge Kavanaugh had been a member of the reviewing circuit court panel.
16 See Fund for Animals, Inc. v. Kempthorne, 472 F.3d 872 (D.C. Cir. 2006) (writing for the panel and also issuing a
separate concurrence).
17 James F. Spriggs II & David R. Stras, Explaining Plurality Decisions, 99 GEO. L.J. 515, 519-20 (2011) (“[A] simple
concurring opinion indicates that the [judge] writing separately agrees with the legal rule and its application in the
majority opinion but that there is some aspect of the case worthy of further discussion. . . . [A]n opinion concurring in
the judgment is the functional equivalent of a dissent from the [controlling opinion’s] reasoning even if it represents
agreement with the result reached in the case.”). The nature of a concurring opinion, including the legal significance
that should be given to whether the opinion labels itself a “concurrence” or a “concurrence in the judgment,” is a matter
of scholarly discussion and occasional judicial importance, particularly in cases where there is a question as to whether
a majority of the court shared the same legal rationale to support the court’s ruling. See generally Sonja R. West,
Concurring in Part & Concurring in the Confusion, 104 MICH. L. REV. 1951, 1955-56, 1958 (2006) (arguing that “the
phrase following the comma” after the authoring judge’s name—e.g., “concurring” or “concurring in the judgment”—
has been “used in an inconsistent, unclear, and often contradictory manner” that has led to confusion among
commentators and courts regarding the degree to which the judge endorses the analysis of the majority opinion).
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Judicial Opinions of Judge Brett M. Kavanaugh
Elections Law (7 cases)
Energy & Utilities Law (17 cases)
Environmental Law (33 cases)
Federal Courts & Civil Procedure (covering matters such as standing,
justiciability, civil procedure, legal ethics, and the admission of evidence in
noncriminal proceedings) (53 cases)
Indian Law (2 cases)
Firearms Law (1 case)
Freedom of Religion (4 cases)
Freedom of Speech (including the right to petition) (13 cases)
Food & Drug Law (including agriculture) (7 cases)
Government Operations (concerning the structure and functions of executive and
legislative branch entities) (18 cases)
Healthcare Law (14 cases)
Immigration Law (3 cases)
Intellectual Property Law (4 cases)
International Law (6 cases)
Labor & Employment Law (38 cases)
Military & Veterans Law (6 cases)
National Security (17 cases)
Pensions & Benefits Law (6 cases)
Privacy & Records (15 cases)
Securities Law (7 cases)
Tax Law (8 cases)
Torts (10 cases)
Transportation Law (17 cases)
Workers’ Compensation & Social Security (5 cases)
Where appropriate, up to three subject areas are identified as primarily relevant to a particular
case. The goal of the subject matter listing is to provide those interested in particular issues
concerning Judge Kavanaugh a means to identify key judicial opinions he authored in a given
subject area. However, the list above is not an exhaustive accounting of all possible legal subjects
addressed in Judge Kavanaugh’s judicial writings. Moreover, categorization of a case under a
particular legal subject area does not necessarily mean other categories are wholly inapplicable.
For example, several listed cases that concern challenges by wartime detainees held at the U.S.
Naval Station at Guantanamo Bay, Cuba, are solely categorized under the legal subject area of
“National Security,” though the cases may touch on other issues, such as “Federal Courts & Civil
Procedure” (because detainee challenges concern judicial review of executive discretion in
wartime matters) or “Administrative Law” (because the cases involve review of determinations
made through an administrative process employed by the U.S. military to assess whether a person
is properly detained). Accordingly, while the categories used in this report may prove helpful to
readers seeking to locate judicial opinions by Judge Kavanaugh concerning certain legal topics,
these categories do not necessarily capture the full range of legal issues those opinions address.
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While this report identifies and briefly describes opinions authored by Judge Kavanaugh during
his tenure on the federal bench, it does not analyze the implications of those opinions or suggest
how he might approach legal issues if appointed to the Supreme Court. Those matters will be
discussed in a forthcoming CRS report.
Methodology
The cases included in this report were compiled by searching all federal cases in the
LexisAdvance legal database for “writtenby(Kavanaugh).”18 A search was then conducted of all
federal cases in the Westlaw legal database using “wb(Kavanaugh)”19 as a cross-check because
editors of different legal databases may vary in how they identify cases.20 These search results
were then compared to the listing of authored opinions submitted by Judge Kavanaugh to the
Senate Committee on the Judiciary.21
These results were last compared on July 23, 2018. Not every identified result proved relevant.22
Moreover, in a handful of cases, an opinion authored by Judge Kavanaugh was subsequently
republished with minimal, and sometimes only stylistic, changes. In cases where there are little, if
any, substantive changes between two versions of a judicial opinion, only the most recent
published version is listed.23 On the other hand, if there is a meaningful substantive difference
between the two versions, both are included.24
Ultimately, this methodology was used to identify 306 cases in which Judge Kavanaugh is
credited authoring an opinion: 301 cases decided by the D.C. Circuit and 5 cases decided on
three-judge district court panels (Judge Kavanaugh is not credited as an author of any opinions
issued by Eighth or Ninth Circuit panels on which he served).
18 The “WrittenBy” segment in LexisAdvance restricts searches to the names of the judge(s) writing an opinion, as
identified by Lexis editors.
19 The “WB” or “Writtenby” segment in Westlaw restricts searches to the names of the judge(s) writing an opinion, as
identified by Westlaw editors.
20 In searches conducted on July 23, 2018 using these methodologies, 311 opinions were identified using LexisAdvance
compared to 307 opinions using Westlaw.
21 U.S. Sen. Comm. on the Judiciary, Responses to Questionnaire for the Nominee of the Supreme Court, Appendix
13B, https://www.judiciary.senate.gov/imo/media/doc/Brett%20M.%20Kavanaugh%2013(b)%20Attachments.pdf (last
visited July 23, 2018).
22 For example, a July 23, 2018 search of Westlaw for opinions written by Judge Kavanaugh lists Bloss v. People of the
State of Mich., 421 F.2d 903 (6th Cir. 1970), a decision by the U.S. Court of Appeals for the Sixth Circuit written
decades before Judge Kavanaugh took the bench that mentions Michigan Supreme Court Judge Thomas M.
Kavanaugh. The Westlaw search also did not identify Redman v. Graham, No. 05-7160, 2006 U.S. App. LEXIS 28147
(D.C. Cir. Nov. 13, 2006), in which Judge Kavanaugh authored an opinion dissenting in part.
23 See Angellino v. Royal Family Al-Saud, 681 F.3d 463, amended and superseded by 688 F.3d 771, n.7 (D.C. Cir.
2012) (making no changes to the substantive analysis of the majority or dissent, but adding a footnote to the majority
opinion clarifying that it expressed no opinion on whether the defendant is equivalent to the Kingdom of Saudi Arabia
or a political subdivision thereof).
24 See, e.g., FTC v. Whole Foods Mkt., Inc., 533 F.3d 869 (D.C. Cir. 2008), amended and reissued by 548 F.3d 1028
(clarifying and elaborating upon differences in reasoning and conclusions of the panelists, including to specify that
Judge Tatel concurred in the judgment of the panel rather than joining another panelist’s opinion).
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Table 1. Opinions Authored by Judge Kavanaugh for a Unanimous Panel
Case Name
Citation
Year
Role
Subject
Holding
United States v. Haight
892 F.3d
1271
2018
Authored
majority
Criminal Law &
Procedure
Affirmed in part, vacated in part, and remanded for resentencing: District
court did not abuse its discretion in denying defendant’s request to
postpone trial and correctly admitted certain nonhearsay and prior-badacts evidence relevant to identity and intent. However, the district court
erred in sentencing because defendant had three prior offenses
subjecting him to a 15-year mandatory minimum sentence under the
Armed Career Criminal Act.
Santa Fe Discount Cruise
Parking, Inc. v. Fed.
Maritime Comm’n
889 F.3d 795
2018
Authored
majority
Transportation
Law
Petition for review granted, order vacated and remanded: Federal Maritime
Commission erred in finding that shuttle bus operators were not injured
by being charged more than taxis and limousines for access to Galveston
Port parking terminal.
Laccetti v. SEC
885 F.3d 724
2018
Authored
majority
Administrative
Law; Securities
Law
Petition for review granted, order vacated and remanded with instructions:
Public Company Accounting Oversight Board acted arbitrarily and
capriciously by denying request for accounting expert to be present
during an investigative interview.
Nw. Corp. v. FERC
884 F.3d
1176
2018
Authored
majority
Administrative
Law; Energy &
Utilities Law
Petition for review denied: FERC did not act arbitrarily in ordering an
electric utility to revise the rate it wished to charge its customers
because FERC’s decision was “reasonable and reasonably explained.”
Fourstar v. Garden City
Grp., Inc.
875 F.3d
1147
2017
Authored
majority
Federal Courts &
Civil Procedure
Reversed: When a district court declines to exercise supplemental
jurisdiction over a prisoner’s state law claims, a dismissal does not count
as a “strike” under the Prison Litigation Reform Act (PLRA), and district
courts must independently determine whether a prior dismissal counts as
a strike under the PLRA.
Americans for Clean
Energy v. EPA
864 F.3d 691
2017
Authored
majority
Administrative
Law;
Environmental
Law
Petition for review granted in part and denied in part, order vacated and
remanded in part: EPA’s final rule setting renewable fuel requirements
under the CAA was generally within its statutory authority, reasonable,
and not arbitrary and capricious. However, EPA could only consider
supply-side factors affecting the volume of renewable fuel under the Act’s
“inadequate domestic supply” waiver provision.
CRS-6
Case Name
Citation
Year
Role
Subject
Holding
Envtl. Integrity Project v.
EPA
864 F.3d 648
2017
Authored
majority
Privacy & Records
Affirmed: Exemption to FOIA permitted EPA to withhold records
containing commercial or financial information, despite provision in the
Clean Water Act requiring that certain records be available to the public.
Allina Health Servs. v.
Price
863 F.3d 937
2017
Authored
majority
Administrative
Law; Healthcare
Law
Reversed and remanded: HHS violated the Medicare Act when it changed
the formula for Medicare reimbursement without providing the public
notice and an opportunity to comment.
NRG Power Mktg., LLC v.
FERC
862 F.3d 108
2017
Authored
majority
Administrative
Law; Energy &
Utilities Law
Petitions for review granted, order vacated and remanded: FERC’s proposed
modifications to a Regional Transmission Organization’s rate structure
for the transmission of electricity from generators to utilities violated the
Federal Power Act because FERC’s modifications were more than
“minor.”
Ames v. DHS
861 F.3d 238
2017
Authored
majority
Privacy & Records
Affirmed: DHS did not violate the Privacy Act when it disclosed an
investigative report concerning its prior employee to her subsequent
federal employer, who then fired the employee.
Limnia, Inc. v. Dep’t of
Energy
857 F.3d 379
2017
Authored
majority
Administrative
Law
Reversed and remanded: Granting an agency’s request for a voluntary
remand was an abuse of discretion when the agency did not actually
intend to revisit the challenged agency decisions under judicial review.
Taylor v. Huerta
856 F.3d
1089
2017
Authored
majority
Administrative
Law;
Transportation
Law
Petitions for review granted in part and denied in part: The FAA lacked
statutory authority to promulgate rule requiring that owners of small
unmanned aircraft (drones) operated for recreational purposes register
with FAA. Petitioner’s separate challenge to an FAA prohibition on the
operation of drones in restricted flight areas was untimely.
Kahl v. Bureau of Nat’l
Affairs
856 F.3d 106
2017
Authored
majority
Communications
Law; Freedom of
Speech
Reversed and remanded with instructions: In prisoner’s defamation suit
against legal publisher, the prisoner was a limited public figure under D.C.
law, but prisoner’s evidence was insufficient to show that the publisher
acted with actual malice necessary to overcome summary judgment.
Kincaid v. Dist. of
Columbia
854 F.3d 721
2017
Authored
majority
Criminal Law &
Procedure
Affirmed: District of Columbia’s post-and-forfeit procedure, under which
certain misdemeanor arrestees can resolve their charges by paying a
small amount of money, is consistent with the Due Process Clause.
Carpenters Indus. Council
v. Zinke
854 F.3d 1
2017
Authored
majority
Environmental
Law; Federal
Courts & Civil
Procedure
Reversed and remanded: Lumber companies’ trade association had
standing to challenge the U.S. Fish and Wildlife Service’s designation of
9.5 million acres of land as critical habitat for an endangered species.
CRS-7
Case Name
Citation
Year
Role
Subject
Ctr. for Regulatory
Reasonableness v. EPA
849 F.3d 453
2017
Authored
majority
Administrative
Law;
Environmental
Law
Petition for review dismissed: The petition for review was dismissed for lack
of subject matter jurisdiction, as the statement did not announce a limit
on the discharge of pollutants as is required for direct review. Further,
the court was unable to review the underlying policy letters invalidated
by the Eighth Circuit, as the petitioners had sought review outside the
120-day window to challenge the letters.
United States v. Burnett
827 F.3d
1108
2016
Authored
majority
Criminal Law &
Procedure
Affirmed in part, vacated in part, and remanded: The police officers had
probable cause to believe the defendants’ rental car contained heroin,
police officers’ destruction of the heroin did not violate due process, and
any error arising from the admission of prior convictions was harmless.
However, the district court erred in calculating a defendant’s base
offense level using evidence that included periods of time before the
defendant joined the conspiracy.
Stovic v. R.R. Ret. Bd.
826 F.3d 500
2016
Authored
majority
Administrative
Law; Pensions &
Benefits Law
Petition for review denied: The Railroad Retirement Board’s denial of
retired railroad worker’s request to reopen its initial benefits
determination was final and reviewable, and the Board did not act
unreasonably in denying the request where the petitioner did not seek to
reopen a decision that he “did not have insured status” and provided
little to no explanation of how the initial decision contained “a clerical
error or an error that appears on the face of the evidence.”
United States v. Knight
824 F.3d
1105
2016
Authored
majority
Criminal Law &
Procedure
Affirmed and remanded: The defendants’ arrests for D.C. Code offenses
did not count as arrests for federal criminal offenses for purposes of the
Speedy Trial Act’s 30-day clock, and the sentence of one defendant was
affirmed where, among other things, the district court reasonably
concluded that a 25-year sentence was appropriate. The case was
remanded to address claims of ineffective assistance of counsel in the
first instance.
Sack v. Dep’t of Def.
823 F.3d 687
2016
Authored
majority
Privacy & Records
Affirmed in part and reversed in part: A FOIA request by graduate student
for Department of Defense reports regarding polygraph examinations
qualified as a request made by an educational institution, and, therefore,
the requester was entitled to reduced FOIA fees, but the records
requested were exempt under FOIA Exemption 7(E), as they were
records of information compiled for law enforcement purposes.
CRS-8
Holding
Case Name
Citation
Year
Role
Subject
Holding
In re Khadr
823 F.3d 92
2016
Authored
majority
Military &
Veterans Law;
National Security
Petition denied: The petitioner did not make a proper showing for
obtaining a writ of mandamus ordering the disqualification of a civilian
judge from the U.S. Court of Military Commission Review where none of
the petitioner’s arguments established a “clear and indisputable” right to
the civilian judge’s disqualification.
Dist. of Columbia v. Dep’t
of Labor
819 F.3d 444
2016
Authored
majority
Administrative
Law; Labor &
Employment Law
Affirmed: The text of the Davis-Bacon Act did not support the
Department of Labor’s conclusions that (1) lease and development
agreements between the District of Columbia and private developers
concerning the construction of a privately funded development on
property leased from the District of Columbia were “contracts for
construction” under the Act and (2) the development was a “public
work” under the Act. The agency was therefore not accorded deference
under Chevron, and the district court’s judgment was affirmed.
Jackson v. Mabus
808 F.3d 933
2015
Authored
majority
Administrative
Law; Military &
Veterans Law
Affirmed: The decision of the Board for Correction of Naval Records to
not amend a veteran’s record to remove references to, among other
things, his nonjudicial punishment for unauthorized absence from his base
was reasonable given the substantial evidence in support of his
disciplinary infractions and adverse evaluations, and the Board acted
reasonably in denying the veteran’s request for reconsideration where,
among other things, evidence submitted by the veteran showed that, at
most, he was mistaken rather than willful in his violation of the base’s
leave policy due to his reading of relevant military regulations.
Friends of Animals v. Ashe
808 F.3d 900
2015
Authored
majority
Administrative
Law;
Environmental
Law
Affirmed: The district court’s judgment dismissing action for lack of
subject matter jurisdiction was affirmed where the plaintiff failed to
provide 60-days’ notice to the U.S. Fish and Wildlife Service before
commencing a suit alleging the agency did not issue timely determinations
on citizen petitions, as was required by the Endangered Species Act.
Abtew v. DHS
808 F.3d 895
2015
Authored
majority
Privacy & Records
Affirmed: A DHS document recommending whether to grant alien’s
asylum was exempt from disclosure under FOIA Exemption 5, as the
document was predecisional and deliberative and, therefore, fell within
the ambit of the deliberative process privilege incorporated by the
exemption.
CRS-9
Case Name
Citation
Year
Role
Subject
EME Homer City
Generation, LP v. EPA
795 F.3d 118
2015
Authored
majority
Environmental
Law
Petitions for review granted in part and denied in part: The sulfur dioxide and
nitrogen oxide emissions budgets under EPA’s Cross-State Air Pollution
Rule were invalid, as they required petitioner-states “to reduce emissions
by more than the amount necessary to achieve attainment in every
downwind State to which it is linked,” and the budgets were remanded
without vacatur to EPA for the agency’s reconsideration. However,
petitioner’s various facial challenges to the Rule were denied, as EPA had
authority to promulgate the Rule’s Federal Implementation Plans.
State Nat’l Bank of Big
Spring v. Lew
795 F.3d 48
2015
Authored
majority
Federal Courts &
Civil Procedure
Affirmed in part, reversed in part, and remanded: The plaintiff-bank had
standing in its preenforcement action claiming the CFPB and recess
appointment of the agency’s director were unconstitutional, as the bank
was regulated by the CFPB, and its claim was ripe for judicial review
because regulated entities need not generally violate the law in order to
challenge agency actions. However, the bank did not have standing to
challenge the constitutionality of the Financial Stability Oversight Council
as it was not regulated by the Council, nor did the state plaintiffs have
standing to challenge the government’s power to liquidate failing financial
institutions under the Dodd-Frank Act, as the states had not been
injured by such power in relation to their positions as possible creditors
in future liquidations or reorganizations.
Initiative & Referendum
Inst. v. USPS
794 F.3d 21
2015
Authored
majority
Federal Courts &
Civil Procedure
Reversed and remanded: The plaintiffs were “prevailing parties” under the
Equal Justice to Access Act (EAJA) once they obtained a favorable
judgment in a prior suit challenging the constitutionality of a Postal
Service regulation that prohibited, among other things, the collection of
signatures on petitions on post office sidewalls that ran alongside public
streets. Plaintiffs thus were potentially entitled to attorney’s fees under
EAJA.
Energy Future Coalition v.
EPA
793 F.3d 141
2015
Authored
majority
Administrative
Law;
Environmental
Law
Petition for review denied: The petitioners had standing to challenge EPA
regulation permitting only commercially available fuels to be used to test
emissions of new vehicles, and their claim was ripe and filed within the
applicable time period permitted by the CAA. On the merits, the
regulation was not arbitrary and capricious because, among other things,
it was reasonable for EPA to mandate that manufacturers use the same
fuels in emissions testing that vehicles will use on the road, and,
moreover, the regulation was rooted in the text of the Act.
CRS-10
Holding
Case Name
Citation
Year
Role
Subject
Holding
S. New England Tel. Co. v.
NLRB
793 F.3d 93
2015
Authored
majority
Labor &
Employment Law
Petition granted and cross-application denied: A NLRB order finding the
petitioner-employer engaged in an unfair labor practice when it banned
employees who interacted with customers or worked in public from
wearing union shirts which read “Inmate” on the front and “Prisoner of
(Company)” on the back was unreasonable, as, under the “special
circumstances” exception to employees’ general right to wear union
apparel at work under the NLRA, the petitioner-employer could
reasonably have believed that the message on the shirts might harm its
relationship with its customers or its public image.
Venetian Casino Resort,
LLC v. NLRB
793 F.3d 85
2015
Authored
majority
Labor &
Employment Law
Petition granted, cross-application to enforce order denied, and order vacated:
The NLRB order finding the petitioner-employer committed unfair labor
practices when it requested that police officers issue criminal citations to
union demonstrators and block them from the walkway of the
petitioner-employer’s private property was vacated, as the employer’s
actions constituted a direct petition to government under the NoerrPennington doctrine and, thus, were shielded from liability under the
NLRA. The proceeding was remanded to the NLRB for consideration as
to whether the petitioner-employer’s conduct was a sham petition that
was in fact not entitled to protection under the Noerr-Pennington
doctrine.
Indep. Producers Grp. v.
Librarian of Cong.
792 F.3d 132
2015
Authored
majority
Administrative
Law; Intellectual
Property Law
Affirmed: Interlocutory orders of the Copyright Royalty Board concluding
that the appellant had not established its authority to represent certain
claimants and rejecting its proposed valuation methodology were
judicially reviewable as part of the Board’s final determination. The
Board’s determination as to the appellant’s royalty fees in the sports
programming and program suppliers categories was affirmed.
United States v. Bostick
791 F.3d 127
2015
Authored
majority
Criminal Law &
Procedure;
Federal Courts &
Civil Procedure
Affirmed in part, vacated in part, and remanded: The defendants’ convictions
for participation in a single drug distribution conspiracy and continuing
criminal enterprise were affirmed. Further, the district court did not err
in inadvertently omitting from the jury instructions a sentence that the
parties agreed to include, nor did the district court abuse its discretion in
excluding rebuttal expert testimony. However, two of the defendants
who raised Sixth Amendment objections to the then-mandatory
Sentencing Guidelines were entitled to vacatur of their sentences and
resentencing under the advisory Sentencing Guidelines.
CRS-11
Case Name
Citation
Year
Role
Subject
Holding
In re Stevenson
789 F.3d 197
2015
Authored
majority
Bankruptcy Law
Affirmed: The lender was entitled to assert a claim to be equitably
subrogated, as actual knowledge that the lender would not receive the
same property rights as the previous lender did not bar the lender from
asserting a claim to be equitably subrogated.
United States v. Williams
784 F.3d 798
2015
Authored
majority
Criminal Law &
Procedure
Affirmed but remanded to the district court to address the defendant’s claim of
ineffective assistance of counsel in the first instance: The record contained
sufficient evidence to support the jury’s verdict of conspiracy to
distribute drugs. The district court did not abuse its discretion by
excluding evidence of the defendant’s prior acquittal on drug distribution
counts. In a case like the defendant’s, a claim of ineffective assistance of
counsel had to be considered first by the district court.
Abbas v. Foreign Policy
Group, LLC
783 F.3d
1328
2015
Authored
majority
Federal Courts &
Civil Procedure;
Torts
Affirmed: The district court, exercising diversity jurisdiction, should not
have applied the rules for granting pretrial judgment to defendants
contained in a D.C. law but instead should have applied the Federal Rules
of Civil Procedure. Nonetheless, under Rule 12(b)(6), the plaintiff failed
to state a claim for defamation because the alleged defamatory
statements were posed in the form of questions rather than statements.
Cannon v. Dist. of
Columbia
783 F.3d 327
2015
Authored
majority
Federal Courts &
Civil Procedure;
Pensions &
Benefits Law
Affirmed: The plaintiffs failed to establish that the D.C. government had
violated the Public Salary Tax Act by reducing their D.C. Protective
Services Division salaries by the amount of their D.C. Metropolitan
Police Department pensions. The district court did not abuse its
discretion by declining to exercise jurisdiction over the plaintiffs’ novel
D.C. law claims.
Alaska v. Dep’t of Agric.
772 F.3d 899
2014
Authored
majority
Environmental
Law; Federal
Courts & Civil
Procedure
Reversed and remanded: Despite a six-year statute of limitations, the State
of Alaska timely filed a challenge in 2011 to a rule initially promulgated by
the U.S. Forest Service in 2001 but repealed in 2005. The Forest Service
had reinstated the rule to comply with a 2006 order by the U.S. District
Court for the Northern District of California, which caused a new right
of action to accrue with a new limitations period.
Mathew Enter. v. NLRB
771 F.3d 812
2014
Authored
majority
Government
Operations
Issuance of mandate ordered: Under NLRB v. Noel Canning, 124 S. Ct. 2250
(2014), President Obama’s recess appointment of a member to the
NLRB during an intra-session Senate recess of 17 days was
constitutionally valid.
CRS-12
Case Name
Citation
Year
Role
Subject
Nat’l Mining Ass’n v.
McCarthy
758 F.3d 243
2014
Authored
majority
Administrative
Law;
Environmental
Law
Reversed and remanded: EPA and Army Corps of Engineers acted within
their statutory authority when they agreed on a process for coordinating
their consideration of certain Clean Water Act mining permits. EPA’s
promulgation of a Final Guidance document related to those permits was
not subject to judicial review.
In re Kellogg Brown &
Root, Inc.
756 F.3d 754
2014
Authored
majority
Federal Courts &
Civil Procedure
Petition for writ of mandamus granted and district court document production
order vacated: The district court erred when it ruled that the attorneyclient privilege did not apply to documents from an internal company
investigation because the investigation was not conducted solely to
obtain legal advice, but also to comply with regulatory requirements and
company policy. The remedy of mandamus was appropriate under the
circumstances.
Ill. Pub. Telcomms. Ass’n
v. FCC
752 F.3d
1018
2014
Authored
majority
Communications
Law; Federal
Courts & Civil
Procedure
Petitions for review denied in part and dismissed in part: The FCC reasonably
determined that states could (but were not required to) order the Bell
Operating Companies to provide retroactive refunds to independent
payphone operators that were allegedly charged excessive rates.
However, the independent operators lacked Article III standing to seek
judicial review of the FCC’s refusal to order the Bell Operating
Companies to disgorge payments received from long-distance carriers
because such an order, even if implemented, would not redress the
independent operators’ alleged injuries.
Foote v. Moniz
751 F.3d 656
2014
Authored
majority
Labor &
Employment Law;
National Security
Affirmed: An unsuccessful applicant for a national security position at the
Department of Energy could not maintain a Title VII claim for racial
discrimination against the agency because Supreme Court precedent
precluded judicial review of the agency’s decision not to certify the
applicant as eligible to apply for the sensitive position.
Wu v. Stomber
750 F.3d 944
2014
Authored
majority
Securities Law
Affirmed: The district court properly dismissed investors’ fraud and
misrepresentation claims as they failed to allege a material misstatement
or omission by the investment fund.
Nat’l Ass’n of Mfrs. v. EPA
750 F.3d 921
2014
Authored
majority
Administrative
Law;
Environmental
Law
Petitions for review denied: EPA acted reasonably when it promulgated a
rule tightening the emissions standards for particulate matter.
CRS-13
Holding
Case Name
Citation
Year
Role
Subject
Holding
Natural Res. Def. Council
v. EPA
749 F.3d
1055
2014
Authored
majority
Administrative
Law;
Environmental
Law
Petitions for review granted in part and denied in part: EPA exceeded its
authority when it promulgated one provision of a rule regulating the
Portland cement manufacturing industry by allowing a regulated entity to
plead, as an affirmative defense to a civil suit alleging a violation of
emissions standards, that its equipment had suffered an unavoidable
malfunction. EPA acted reasonably when promulgating the other
provisions of the rule.
BNSF Ry. Co. v. Surface
Transp. Bd.
748 F.3d
1295
2014
Authored
majority
Administrative
Law;
Transportation
Law
Cross-petitions for review denied: The Surface Transportation Board acted
reasonably when setting the maximum rates that interstate railroads
could charge a shipper.
Teltschik v. Williams &
Jensen, PLLC
748 F.3d
1285
2014
Authored
majority
Elections Law;
Torts
Affirmed: A treasurer of a political action committee could not maintain
defamation and negligence claims against a law firm and its lawyers for
statements contained in a conciliation agreement between the committee
and the Federal Election Commission because such statements were
protected by judicial privilege.
Cmtys. for a Better Env’t
v. EPA
748 F.3d 333
2014
Authored
majority
Administrative
Law;
Environmental
Law; Federal
Courts & Civil
Procedure
Petition for review of primary standards denied; petition for review of secondary
standards dismissed: EPA acted reasonably in retaining primary National
Ambient Air Quality Standards (NAAQS) for carbon monoxide.
Environmental groups lacked standing to challenge the agency’s failure to
promulgate secondary standards for the pollutant because they failed to
demonstrate that EPA's decision to establish secondary standards for
carbon monoxide would reduce global warming below the baseline level
that would exist in the absence of such standards.
United States v. Wright
745 F.3d
1231
2014
Authored
majority
Criminal Law &
Procedure
Affirmed: A defendant who had pled guilty to drug possession charges
failed to demonstrate on appeal that his plea was coerced or that his
counsel was ineffective due to conflicts of interest.
CRS-14
Case Name
Citation
Year
Role
Subject
Holding
Loving v. IRS
742 F.3d
1013
2014
Authored
majority
Administrative
Law; Tax Law
Affirmed: An Internal Revenue Code provision authorizing the IRS to
“regulate the practice of representatives of persons before the
Department of the Treasury” does not encompass regulation of taxreturn preparers, based on the provision’s text, history, structure, and
context. Deference to IRS’s interpretation under Chevron framework was
unwarranted because the provision lacks ambiguity and, in the alternative,
construing the statute to reach tax-return preparers would be
unreasonable.
Pub. Emps. for Envtl.
Responsibility v. U.S.
Section, Int’l Boundary
and Water Comm’n, U.S.Mex.
740 F.3d 195
2014
Authored
majority
Privacy & Records
Affirmed in part, vacated and remanded in part: Whether dam report
produced for a U.S. agency, allegedly with assistance from a Mexican
government agency, constitutes an “intra-agency” document exempt
from FOIA requests was a legal issue of first impression. However,
because this issue would only be presented if the Mexican agency had
actually assisted in the creation of the report, and it was unknown
whether such assistance was actually provided, the district court’s
judgment recognizing exemption was vacated, and the case remanded to
resolve that factual issue. The portion of district court’s judgment
exempting emergency action plans and inundation maps as documents
compiled for law enforcement purposes was affirmed.
Howard R.L. Cook &
Tommy Shaw Found. ex
rel. Black Emps. of Library
of Cong., Inc. v. Billington
737 F.3d 767
2013
Authored
majority
Civil Rights Law;
Federal Courts &
Civil Procedure;
Labor &
Employment Law
Affirmed: The Library of Congress’s refusal to grant “employee
organization status” to a nonprofit organization that was created to help
Library employees pursue claims of racial discrimination constituted an
injury for Article III standing purposes. However, the complaint failed to
allege that this adverse action was in response to any protected conduct
engaged in by the plaintiffs and, consequently, failed to state a claim for
retaliation under Title VII.
Int’l Bhd. of Teamsters v.
DOT
724 F.3d 206
2013
Authored
majority
Transportation
Law
Petition for review denied: Panel filed a corrected opinion to add an
alternate ground upon which to uphold the DOT’s interpretation of a
statutory provision requiring trucks to display a decal certifying
compliance with American safety standards if the truck has been
“import[ed]” or “introduce[d]” into interstate commerce.
Note: The panel’s earlier opinion, 714 F.3d 580 (D.C. Cir. 2013), is
discussed below.
CRS-15
Case Name
Citation
Year
Role
Park v. Comm’r of IRS
722 F.3d 384
2013
Authored
majority
Tax Law
Reversed and remanded: A provision of the Internal Revenue Code taxing
nonresident aliens on “gains” should not be calculated based on each
individual winning bet during a gambling session, particularly where
“gains” are construed for purposes of U.S. citizens’ taxes as net gains
over losses during an entire gambling session.
Int’l Internship Program v.
Napolitano
718 F.3d 986
2013
Authored
majority
Immigration Law
Affirmed: Organization that had helped people from Asian countries find
employment in American schools but had not paid its participants any
wages was not a qualified employer for purposes of Q-1 cultural
exchange visas.
N. Valley Commc’ns, LLC
v. FCC
717 F.3d
1017
2013
Authored
majority
Communications
Law
Petitions for review denied: Competitive local exchange companies (CLECs)
were not authorized to charge tariffs on long-distance telephone carriers
for incoming calls where the recipient was not charged a fee by the
CLEC.
U.S. Postal Serv. v. Postal
Regulatory Comm’n
717 F.3d 209
2013
Authored
majority
Government
Operations
Petitions for review denied: Because a statute authorizing the U.S. Postal
Service (USPS) to offer discounts to customers that presort bulk mail
limits the amount of any discounts to no more than the cost that the
USPS avoids through presorting, a Postal Regulatory Commission
decision that the USPS discounts for presorted mail were too large
because they exceeded USPS’s savings was upheld.
Beaumont Indep. Sch.
Dist. v. United States
944 F. Supp.
2d 23
(D.D.C.)
2013
Coauthored
joint
opinion
(district
court panel)
Elections Law;
Federal Courts &
Civil Procedure
Majority (Kavanaugh, J., Huvelle, J., and Contreras J.), dismissed as moot: A
declaratory judgment action seeking to preclear a school district’s
redistricting plan pursuant to Section 5 of the Voting Rights Act was
moot.
Cytori Therapeutics, Inc.
v. FDA
715 F.3d 922
2013
Authored
majority
Administrative
Law; Food & Drug
Law
Petitions for review denied: An FDA determination that a device is not
“substantially equivalent” to another device was properly reviewable
directly by the D.C. Circuit, and it was reasonable for the FDA to
conclude that a proposed device was not “substantially equivalent” to
another device.
CRS-16
Subject
Holding
Case Name
Citation
Year
Role
Subject
Holding
Int’l Bhd. of Teamsters v.
DOT
714 F.3d 580
2013
Authored
majority
Federal Courts &
Civil Procedure;
Transportation
Law
Petitions for review denied: The increased competition caused by a DOT
pilot program allowing Mexico-domiciled trucking companies to operate
in the United States constitutes sufficient injury to American truck
drivers for Article III and prudential standing. The pilot program does not
violate statutory provision requiring drivers’ licenses to be issued by a
state, because other statutory provisions allow truckers with Mexican
licenses to drive in the United States, and statute should be construed as
a whole. The Department’s interpretation of statutory prohibition against
importation or introduction of trucks into interstate commerce as not
applying to Mexico-U.S. border crossings is reasonable given the statute’s
omission of foreign commerce. The pilot program also satisfies U.S.
requirements relating to medical fitness requirements for drivers, drug
testing, procedural requirements, and environmental review.
Note: For the amended order following the denial of an en banc
rehearing, see decision discussed above, 724 F.3d 206 (D.C. Cir. 2013).
United States v. Fareri
712 F.3d 593
2013
Authored
majority
Criminal Law &
Procedure
Affirmed in part and remanded in part: Sentencing enhancement that took
into consideration “vulnerable victims” to the convicted offense was
appropriate based on fraud victims’ inexperience in investing, health
problems, and bereavement that made them “particularly susceptible” to
appellant’s fraud. However, remand was required to correct the amount
of restitution and consider an ineffective assistance of counsel claim.
Ind. Boxcar Corp. v. R.R.
Ret. Bd.
712 F.3d 590
2013
Authored
majority
Administrative
Law; Pensions &
Benefits Law;
Workers’
Compensation &
Social Security
Vacated and remanded: Under the Railroad Retirement Act and the
Railroad Unemployment Insurance Act, an “employer” that is not itself a
railroad must be “under common control” with a railroad. In determining
that two companies in a parent-subsidiary relationship were in “common
control,” the Railroad Retirement Board deviated from its precedents
without a reasonable justification, in violation of the APA.
Citizens for Responsibility
& Ethics in Wash. v. FEC
711 F.3d 180
2013
Authored
majority
Privacy & Records
Reversed and remanded: In order to warrant dismissal of a FOIA suit for
failure to exhaust administrative remedies, an agency must provide a
meaningful opportunity for an administrative appeal. Specifically, the
agency must (1) gather and review the documents; (2) determine and
communicate the scope of the documents it intends to produce and
withhold, and the reasons for withholding any documents; and (3) inform
the requester that it can appeal whatever portion of the “determination”
is adverse.
CRS-17
Case Name
Citation
Year
Role
Subject
Holding
Farouki v. Petra Int'l
Banking Corp.
705 F.3d 515
2013
Authored
majority
Business &
Corporate Law;
Federal Courts &
Civil Procedure
Vacated and remanded: Efforts by a bank to collect on a defaulted loan did
not toll the statute of limitations. However, summary judgment entered
by the district court was vacated because the bank did not have notice of,
or an opportunity to respond to, the court’s sua sponte grant of summary
judgment.
Am. Road & Transp.
Builders Ass’n v. EPA
705 F.3d 453
2013
Authored
majority
Environmental
Law; Federal
Courts & Civil
Procedure
Petition for review dismissed: The D.C. Circuit was not the appropriate
venue for association’s suit challenging EPA’s approval of California’s
State Implementation Plan under the CAA, because the Act authorizes
petitions for review in the D.C. Circuit only for nationally applicable
regulations or for plans determined to have nationwide scope or effect.
The association’s additional claims challenging EPA regulations were time
barred.
Hodge v. FBI
703 F.3d 575
2013
Authored
majority
Privacy & Records
Affirmed: FOIA requester’s speculative allegations that undiscovered
documents existed were insufficient to overcome a determination, based
on sworn declarations, that the FBI’s methodology was “reasonably
calculated” to uncover all relevant documents. The FBI properly asserted
FOIA exemptions to withhold information about grand jury proceedings,
investigators, witnesses, informants, suspects, and confidential sources.
Vann v. Dep’t of Interior
701 F.3d 927
2012
Authored
majority
Federal Courts &
Civil Procedure;
Indian Law
Reversed: In a suit against the Principal Chief of the Cherokee Nation,
acting in his official capacity, the Cherokee Nation was not a required
party under Federal Rule of Civil Procedure 19.
Judicial Watch, Inc. v. Soc.
Sec. Admin.
701 F.3d 379
2012
Authored
majority
Privacy & Records
Affirmed: List of employers that received the most letters from the Social
Security Administration indicating that their employees’ names did not
match social security numbers on W-2 forms was exempt from a FOIA
request because the records were protected by another statute.
Chevron Corp. v.
Weinberg Grp.
682 F.3d 96
2012
Authored
majority
Federal Courts &
Civil Procedure
Vacated and remanded: Additional proceedings were necessary to
determine whether the crime-fraud exception to the attorney-client
privilege and the work product doctrine still applied in ongoing litigation
after the district court decision identifying the fraud had been reversed
on appeal.
CRS-18
Case Name
Citation
Year
Role
Subject
Holding
United States v. Glover
681 F.3d 411
2012
Authored
majority
Criminal Law &
Procedure
Affirmed: There was no reversible error in the conviction of three
individuals convicted of drug offenses when there was no serious risk
that a joint trial would compromise a defendant’s rights or prevent the
jury from making a reliable judgment. The searches of one of the
defendant’s homes did not violate the Fourth Amendment, there was no
reversible error related to law enforcement’s use of a wiretap, and the
district court’s evidentiary and jury-related decisions were either
harmless error or within the trial court’s discretion.
Nat’l Ass’n of Indep.
Labor v. Fed. Labor
Relations Auth.
680 F.3d 839
2012
Authored
majority
Labor &
Employment Law
Petition for review denied: The Federal Labor Relations Authority correctly
decided that an agreement between two unions and a navy supervisor of
shipbuilding was contrary to law and therefore could be repudiated
because it defined the privileges of members of a third union that was not
a party to the agreement.
Mobil Pipe Line Co. v.
FERC
676 F.3d
1098
2012
Authored
majority
Energy & Utilities
Law
Petition for review granted, order vacated and remanded: FERC erred in
concluding that the market for a crude oil pipeline running from Illinois to
Texas, which transported approximately 3% of oil from western Canada,
was not competitive and therefore subject to capped pipeline rates.
Mfrs. Ry. Co. v. Surface
Transp. Bd.
676 F.3d
1094
2012
Authored
majority
Administrative
Law;
Transportation
Law
Petition for review granted, order vacated and remanded: Surface
Transportation Board (STB) decision was arbitrary and capricious when
the STB did not reasonably explain and justify why the “entire-system
exception” to the requirement that the railroad pay its employees
dismissal allowances did not apply to the facts of the case.
Metroil, Inc. v.
ExxonMobil Oil Corp.
672 F.3d
1108
2012
Authored
majority
Business &
Corporate Law;
Contracts Law
Affirmed: Sale of gas station did not violate D.C. or federal law related to
franchising of gas stations or D.C. law prohibiting contract assignments
that materially increase the risk or burden on the nonassigning party.
CRS-19
Case Name
Citation
Year
Role
Subject
Holding
Coal. for Mercury-Free
Drugs v. Sebelius
671 F.3d
1275
2012
Authored
majority
Federal Courts &
Civil Procedure;
Food & Drug Law
Affirmed: Plaintiffs lacked standing to sue the FDA and HHS in suit alleging
the agencies violated a duty to ensure the safety of vaccines. The plaintiffs
did not have a “certainly impending” or even likely risk of harm when
they could elect not to receive the vaccines. Any reputational harm to
plaintiff members of the medical community was not legally attributable
to the government because the federal agencies did not force physicians
to administer vaccines and did not require patients to receive such
vaccines. The existence of a price differential between the challenged
vaccines and readily available alternative vaccines was insufficient to
provide standing.
Veritas Health Servs., Inc.
v. NLRB
671 F.3d
1267
2012
Authored
majority
Administrative
Law; Labor &
Employment Law
Petition for review denied, cross-application granted: Decision from the NLRB
that defendant committed an unfair labor practice by refusing to certify
nurses’ union was not arbitrary and capricious, and the alleged pro-union
activities of supervising nurses did not require invalidation of the union
election.
Keohane v. United States
669 F.3d 325
2012
Authored
majority
Tax Law;
Workers’
Compensation &
Social Security
Affirmed: Taxpayer’s lawsuit to recover expenses incurred in disputing the
IRS’s alleged over-withholding of Social Security benefits was not timely
filed.
Bakhtiar v. Islamic
Republic of Iran
668 F.3d 773
2012
Authored
majority
International Law;
Torts
Affirmed: The National Defense Authorization Act for Fiscal Year 2008
set forth the exclusive procedures for plaintiffs with pending cases under
the rubric of the Foreign Sovereign Immunities Act to obtain punitive
damages against foreign sovereigns, and because plaintiffs did not follow
those procedures, they were not entitled to seek punitive damages in
their lawsuit against Iran.
Dep’t of Navy v. Fed.
Labor Relations Auth.
665 F.3d
1339
2012
Authored
majority
Government
Operations; Labor
& Employment
Law
Vacated and remanded: Additional proceedings before the Federal Labor
Relations Authority were necessary to determine whether water from
onsite taps at a naval facility was safe to drink, and, if the water was safe.
The Navy had no duty to bargain with the union before discontinuing its
supply of free bottled water because federal appropriations law
prohibited the Navy from expending appropriated funds for federal
employees’ “personal expenses,” and bottled water generally is treated as
a personal expense.
CRS-20
Case Name
Citation
Year
Role
Subject
Holding
United States v. Franklin
663 F.3d
1289
2011
Authored
majority
Criminal Law &
Procedure
Affirmed: Criminal defendant claiming ineffective assistance of counsel
after being convicted for his role in a drug ring could not show a
reasonable probability that he would have accepted a plea deal, and there
was no basis in the record to disturb the district court’s finding that
certain testimony was not credible.
Bluman v. FEC
800 F. Supp.
2d 281
(D.D.C.),
aff’d, 565 U.S.
1104 (2012)
2011
Authored
majority
(district
court panel)
Elections Law;
Freedom of
Speech
Defendant’s motion to dismiss granted, plaintiffs’ motion for summary
judgment denied: A provision of the Bipartisan Campaign Reform Act
prohibiting certain foreign nationals from making political contributions
did not violate the First Amendment.
Note: The panel decision was later affirmed by the Supreme Court in
Bluman v. FEC, 565 U.S. 1104 (2012).
Univ. of Tex. M.D.
Anderson Cancer Ctr. v.
Sebelius
650 F.3d 685
2011
Authored
majority
Administrative
Law; Healthcare
Law
Reversed and remanded in part: HHS improperly imposed a new
requirement on the plaintiff hospital, without adequate notice, requiring it
prove the net financial impact of new drugs, rather than their gross cost.
But HHS reasonably interpreted, and therefore did not misapply,
Medicare’s statutory formula in determining the level of reimbursement
for the hospital’s outpatient costs.
United States v. Brice
649 F.3d 793
2011
Authored
majority
Criminal Law &
Procedure
Affirmed: Defendant sentenced to 25 years’ imprisonment for various
federal sexual abuse crimes did not have a right under the First
Amendment to access material witness proceedings regarding his victims
because, even assuming that amendment applied, closure of the record
was the only way to protect the sensitive and intensely personal
information that it contained. Neither the Sixth Amendment nor federal
or common law provided that right of access either.
Otay Mesa Prop., L.P. v.
Dep’t of Interior
646 F.3d 914
2011
Authored
majority
Environmental
Law
Reversed and remanded: U.S. Fish and Wildlife Service did not reasonably
explain how one sighting of an endangered species on plaintiffs’ property
demonstrated that the endangered species “occupied” the property such
that it constituted a “critical habitat” for the endangered species.
Knop v. Mackall
645 F.3d 381
2011
Authored
majority
Federal Courts &
Civil Procedure
Reversed in part: Defendants’ argument for removing the case to federal
district court was reasonable, and the district court therefore erred in
awarding the plaintiff attorney’s fees after deciding to remand the case
back to the D.C. Superior Court.
CRS-21
Case Name
Citation
Year
Role
Subject
Holding
Companhia Brasileira
Carbureto de Calicio v.
Applied Indus. Materials
Corp.
640 F.3d 369
2011
Authored
majority
Federal Courts &
Civil Procedure
Affirmed in part and question certified: The allegation that the defendant
corporations conspired with a trade association located in the District of
Columbia was insufficient to support personal jurisdiction. Whether the
District of Columbia’s personal jurisdiction statute provided an exception
that would support jurisdiction was certified as a question for the D.C.
Court of Appeals.
United States v. Smith
640 F.3d 358
2011
Authored
majority
Criminal Law &
Procedure
Affirmed in part, vacated in part, and remanded: The government’s use of
letters from a state court clerk to prove the defendant’s prior felony
conviction were testimonial, and the letters’ admission without the
defendant having the opportunity to cross-examine the clerk violated the
Sixth Amendment’s Confrontation Clause, requiring the defendant’s
conviction on the count relying on that evidence to be vacated.
Nevertheless, the testimony of an FBI agent about the meaning of slang
the defendant used was admissible only as expert testimony, but any
error was harmless. Other objected-to testimony was not based on
hearsay and was therefore proper. The district court properly instructed
the jury to disregard other improper police testimony, and the court did
not violate the Sixth Amendment by finding that the defendant had a
prior drug conviction and relying on that fact to double his mandatory
minimum sentence.
United States v. Papagno
639 F.3d
1093
2011
Authored
majority
Criminal Law &
Procedure
Reversed: The costs of an internal investigation conducted by the Naval
Research Laboratory into its employee’s theft of computer equipment
did not constitute “necessary … expenses incurred during participation
in the investigation or prosecution of [an] offense” for purposes of the
Mandatory Victims Restitution Act. The district court therefore erred in
ordering restitution under the Act.
Uthman v. Obama
637 F.3d 400
2011
Authored
majority
National Security
Reversed and remanded, with instructions to deny the petition for a writ of
habeas corpus: To show that the petitioner detainee was more likely than
not a part of al Qaeda, and therefore subject to detention under the
AUMF, the Government did not have to demonstrate that he belonged
to the terrorist organization’s command structure. The detainee’s
“actions and recurrent entanglement” with al Qaeda sufficed to establish
that he was more likely than not a part of the organization.
CRS-22
Case Name
Citation
Year
Role
Subject
Holding
Hoopa Valley Tribe v.
FERC
629 F.3d 209
2010
Authored
majority
Energy & Utilities
Law
Petition for review denied: FERC appropriately applied the “unanticipated,
serious impacts” standard to deny a request by the Hoopa Valley Tribe
that the agency impose conditions on the annual licenses issued to the
operator of a hydroelectric project in order to preserve the affected
river’s trout fishery.
Vatel v. All. of Auto. Mfrs.
627 F.3d
1245
2011
Authored
majority
Civil Rights Law;
Labor &
Employment Law
Affirmed: Plaintiff employee failed to establish that the defendant CEO’s
decision to fire her allegedly because of their dysfunctional work
relationship was pretext for race or gender discrimination. Defendants
were therefore entitled to summary judgment on plaintiff’s discrimination
claims under the D.C. Human Rights Act.
Riordan v. SEC
627 F.3d
1230,
abrogated by
Kokesh v.
SEC, 137 S.
Ct. 1635
(2017)
2010
Authored
majority
Securities Law
Petition for review denied: Substantial evidence supported the SEC’s findings
that the operator of several brokerage firms paid New Mexico’s state
treasurer kickbacks in return for transactions involving sales of state
securities. Evidence that the operator helped to unravel one of the
treasurer’s corrupt deals was irrelevant, and the five-year statute of
limitations under 28 U.S.C. § 2462 for certain actions by the federal
government did not cover disgorgement nor the SEC’s cease-and-desist
order.
Note: The panel decision was later abrogated by Kokesh v. SEC, 137 S. Ct.
1635 (2017).
Apache Corp. v. FERC
CRS-23
627 F.3d
1220
2010
Authored
majority
Administrative
Law; Energy &
Utilities Law
Petition for review denied in part and remanded: A natural gas producer
waived appellate review of its claim that FERC discriminated against it
when approving a lease for an interstate pipeline to transport natural gas
over intrastate pipeline. FERC nevertheless lacked a reasoned
explanation of its decision after failing to apply the standards set forth in
the agency’s precedents.
Case Name
Citation
Year
Role
Subject
Holding
Blumenthal v. FERC
613 F.3d
1142
2010
Authored
majority
Administrative
Law; Energy &
Utilities Law
Petition for review denied: FERC was not required to hold an evidentiary
hearing to assess a consultant’s choice of peer companies in determining
the reasonableness of an electric utility’s proposed executive
compensation. Nor was the commission’s approval of the executive’s
compensation arbitrary and capricious because the consultant’s choice of
comparison group was not unreasonable, the commission properly relied
on estimated compensation, and the economic downturn did not
necessitate a different compensation package.
In re Any and All Funds or
Other Assets in Brown
Bros. Harriman & Co.
Account # 8870792 in the
Name of Tiger Eye Invs.
Ltd.
613 F.3d
1122
2010
Authored
majority
Criminal Law &
Procedure
Affirmed: In order for a district court to freeze “property subject to a
foreign forfeiture or confiscation judgment” pursuant to 28 U.S.C. §
2467(d)(3) the foreign court must already have entered a forfeiture
judgment.
Recording Indus. Ass’n of
Am., Inc. v. Librarian of
Cong.
608 F.3d 861
2010
Authored
majority
Administrative
Law; Intellectual
Property Law
Affirmed: The Copyright Royalty Board appropriately took market
evidence into account and otherwise acted reasonably when instituting a
1.5% per month late fee for late royalty payments. The Board also
reasonably weighed the costs and benefits in deciding to impose a pennyrate royalty structure for cell phone ringtones.
Schaefer v. McHugh
608 F.3d 851
2010
Authored
majority
Administrative
Law; Military and
Veterans Law
Affirmed: The U.S. Army Board for Correction of Military Records
reasonably determined that the plaintiff was not validly discharged from
the Army, notwithstanding an “administrative foul-up” that resulted in
him temporarily obtaining a discharge. As a result, he was not entitled to
have the records relating to his fraudulently obtained discharge
expunged. The plaintiff also failed to establish that he suffered any
prejudice as a result of several alleged procedural lapses.
RLI Ins. Co. v. All Star
Transp. Inc.
608 F.3d 848
2010
Authored
majority
Business &
Corporate Law;
Transportation
Law
Affirmed: The $10,000 face value of a surety bond limited the surety’s
liability for a transportation broker’s default to $10,000 on all claims
combined, rather than on each claim, because the standardized federal
form governing those bonds clearly indicated that the surety’s liability
would be “discharged” when payments under the bond “amount in the
aggregate” to $10,000, and would in no event exceed that amount.
CRS-24
Case Name
Citation
Year
Role
Subject
Holding
Action Alliance of Senior
Citizens v. Sebelius
607 F.3d 860
2010
Authored
majority
Healthcare Law;
Workers’
Compensation &
Social Security
Affirmed: The Social Security Act did not entitle Medicare Part D
participants to a waiver of the government’s recovery of Medicare Part D
premium refunds erroneously paid out by the Social Security
Administration because the Act specifically limits those waivers to
overpaid Social Security benefits.
Wash. Gas Light Co. v.
FERC
603 F.3d 55
2010
Authored
majority
Energy & Utilities
Law
Petition for review denied: FERC satisfactorily ensured on remand that a
proposed expansion of a natural gas pipeline would not result in an
increased risk of unsafe natural gas leakage.
Republican Nat’l
Committee v. FEC
698 F. Supp.
2d 150
(D.D.C.),
aff’d, 561 U.S.
1040
2010
Authored
majority
(district
court panel)
Elections Law;
Freedom of
Speech
Defendant’s motion for summary judgment granted, plaintiffs’ motion for
summary judgment denied: A provision of the Bipartisan Campaign Reform
Act limiting the receipt and spending of “soft money” by national political
parties did not violate the First Amendment.
Note: The panel decision was subsequently affirmed by the Supreme
Court in Republican Nat’l Committee v. FEC, 561 U.S. 1040 (2010).
Pasternack v. Nat’l
Transp. Safety Bd.
596 F.3d 836
2010
Authored
majority
Administrative
Law;
Transportation
Law
Petition for review granted and decision vacated and remanded: The National
Transportation Safety Board lacked substantial evidence that a pilot’s
behavior precluded a specimen collector from informing him that his
departure from a drug-testing site would constitute a refusal, justifying
the revocation of his airman certificates.
Stewart v. St. Elizabeths
Hosp.
589 F.3d
1305
2010
Authored
majority
Civil Rights Law;
Labor &
Employment Law
Affirmed: The evidence supported the district court’s grant of summary
judgment and judgment as a matter of law where a hospital employee
failed to produce sufficient evidence that she notified her employer of her
disability or that hospital had denied her request for an accommodation.
Nyunt v. Chairman,
Broad. Bd. of Governors
589 F.3d 445
2009
Authored
majority
Government
Operations; Labor
& Employment
Law
Affirmed: District court properly dismissed employment claim brought by
employee of government agency under the APA, as such a claim should
have been brought under the procedures set up by the Civil Service
Reform Act of 1978, and employee’s claim did not fit within the narrow
exception to statutory preclusion of judicial review set forth in Leedom v.
Klyne, 358 U.S. 184 (1958).
CRS-25
Case Name
Citation
Year
Role
Subject
Holding
Winslow v. FERC
587 F.3d
1133
2009
Authored
majority
Federal Courts &
Civil Procedure
Affirmed: Motion for mandatory prejudgment interest, made two-and-ahalf-years after the entry of judgment, was properly denied as an untimely
motion to alter or amend the judgment which, under Federal Rule of
Civil Procedure 59(e), would have had to have been filed within ten (now
twenty-eight) days after entry of the judgment.
Camden Cty. Council on
Econ. Opportunity v. HHS
586 F.3d 992
2009
Authored
majority
Administrative
Law; Healthcare
Law
Affirmed: HHS did not act arbitrarily or capriciously in terminating Head
Start grant to Camden, New Jersey-area organization for failing to rectify
safety-related deficiencies on playgrounds at Camden locations, with the
agency providing the organization adequate notice of the need to address
such deficiencies.
AD HOC Telecom. Users
Committee v. FCC
572 F.3d 903
2009
Authored
majority
Administrative
Law;
Communications
Law
Petitions denied: FCC did not act arbitrarily and capriciously in granting
partial forbearance relief from regulations that applied to incumbent local
exchange carriers that controlled the special access broadband lines to
most businesses.
Stilwell v. Office of Thrift
Supervision
569 F.3d 514
2009
Authored
majority
Business &
Corporate Law;
Federal Courts &
Civil Procedure;
Securities Law
Petition denied: Plaintiff had standing to bring his claim, and the claim was
ripe for adjudication. However, the challenged Office of Thrift
Supervision regulation allowing subsidiaries of mutual holding companies
to limit the holdings of minority shareholders to 10% of subsidiaries’ total
minority stock was not arbitrary and capricious.
Landstar Exp. Am., Inc. v.
Fed. Mar. Comm'n
569 F.3d 493
2009
Authored
majority
Administrative
Law;
Transportation
Law
Petition granted, order vacated and remanded: Shipping Act’s requirement
that “Ocean Transportation Intermediaries” obtain licenses from the
Federal Maritime Commission did not extend to agents of those
intermediaries, unless such agents met the relevant statutory definition.
Although sound policy, the commission’s contrary conclusion ran
counter to the plain language of the statute.
Westar Energy, Inc. v.
FERC
568 F.3d 985
2009
Authored
majority
Energy & Utilities
Law
Petitions denied: FERC did not act arbitrarily and capriciously in applying
“point of sale” test to determine price for energy wholesalers, where
alternative “sink-based” test would require complex administrative
monitoring.
CRS-26
Case Name
Citation
Year
Role
Subject
Montanans for Multiple
Use v. Barbouletos
568 F.3d 225
2009
Authored
majority
Administrative
Law;
Environmental
Law
Affirmed: Montana residents’ complaints against the National Forest
Service and other federal agencies pertaining to the Service’s
management of a federally owned forest failed to allege any specific act or
failure to act that violated a federal law or policy or was arbitrary or
capricious. Plaintiffs’ complaint was better directed to the legislative or
executive branches, as their grievance was with legally permissible policy
decisions made by Congress and the Service.
Baptist Mem’l Hosp.Golden Triangle v.
Sebelius
566 F.3d 226
2009
Authored
majority
Healthcare Law
Affirmed: Certain reimbursement claims filed by hospitals were properly
denied by the Provider Reimbursement Review Board where the
hospitals failed to comply with the Board’s administrative reinstatement
procedures.
National Tel. Co-op Ass’n
v. FCC
563 F.3d 536
2009
Authored
majority
Administrative
Law;
Communications
Law
Petition denied: FCC analysis regarding conditions under which wireline
telecommunications carriers were required to transfer telephone
numbers to wireless carriers was not arbitrary and capricious, and the
FCC’s analysis complied with the Regulatory Flexibility Act.
Grosdidier v. Chairman,
Broad. Bd. of Governors
560 F.3d 495
2009
Authored
majority
Government
Operations; Labor
& Employment
Law
Affirmed: District court properly dismissed employment claim brought by
employee of government agency under the APA, as the Civil Service
Reform Act of 1978 provided the exclusive means by which employees
can challenge their personnel actions.
United States v.
Washington
559 F.3d 573
2009
Authored
majority
Criminal Law &
Procedure
Affirmed: Search of an automobile was reasonable under the Fourth
Amendment where suspect appeared to be extremely nervous and had
moved his hand and body as if to reach under his seat and lied about why
he did so.
E. Niagara Pub. Power
Alliance and Pub. Power
Coal. v. FERC
558 F.3d 564
2009
Authored
majority
Administrative
Law; Energy &
Utilities Law
Petition denied: FERC’s decision to issue new 50-year license to New York
Power Authority for operating the Niagara Power Project was not
arbitrary and capricious and supported by substantial evidence, despite
several concerns raised by several Western New York communities.
City of Anaheim, Cal. v.
FERC
558 F.3d 521
2009
Authored
majority
Energy & Utilities
Law
Petitions granted, order vacated and remanded: The plain language of the
Federal Power Act prohibited FERC from applying new electricity rates
retroactively.
CRS-27
Holding
Case Name
Citation
Year
Role
Subject
Holding
Baloch v. Kempthorne
550 F.3d
1191
2008
Authored
majority
Civil Rights Law;
Labor &
Employment Law
Affirmed: Summary judgment for federal employer in employee’s
workplace age, race, and religious discrimination challenge was proper
because employee failed to present sufficient evidence that he suffered an
adverse employment action or, even if he did, that any such action was
due to discrimination.
Raymond F. Kravis Ctr.
for Performing Arts, Inc.
v. NLRB
550 F.3d
1183
2008
Authored
majority
Labor &
Employment Law
Petition denied, cross application granted: Substantial evidence supported the
NLRB’s finding that employer engaged in unfair labor practice when it
made a unilateral change to the bargaining unit and withdrew recognition
of its workers’ union.
Long v. Howard Univ.
550 F.3d 21
2008
Authored
majority
Civil Rights Law;
Federal Courts &
Civil Procedure
Affirmed: University did not waive its statute of limitations defense by
failing to assert it in its opposition to summary judgment, and jury
instructions on statute of limitations were not plainly erroneous.
United States v. Spencer
530 F.3d
1003
2008
Authored
majority
Criminal Law &
Procedure
Affirmed: Warrant to search defendant’s house was not supported by
sufficient evidence officer had noticed defendant was dealing drugs in
front of his house and defendant had been arrested with 70 small Ziploc
bags of heroin in his car.
United States v. Settles
530 F.3d 920
2008
Authored
majority
Criminal Law &
Procedure
Affirmed: The district court did not reversibly err by considering conduct
of which the defendant had been acquitted when determining the
defendant’s sentence.
Rossello ex rel. Rossello v.
Astrue
529 F.3d
1181
2008
Authored
majority
Workers’
Compensation &
Social Security
Reversed and remanded with instructions: The Social Security
Administration’s conclusion that a mentally ill adult had engaged in
“substantial gainful activity” disqualifying her from Social Security benefits
was not supported by the evidence.
BNSF Ry. Co. v. Surface
Transp. Bd.
526 F.3d 770
2008
Authored
majority
Administrative
Law;
Transportation
Law
Petitions denied: The Surface Transportation Board adequately explained
its changes to its rail rate-setting methodology, and those changes were
reasonable.
Kay v. FCC
525 F.3d
1277
2008
Authored
majority
Communications
Law
Affirmed: Expired radio station licenses could not be assigned to an
assignee.
CRS-28
Case Name
Citation
Year
Role
Subject
Holding
Adeyemi v. Dist. of
Columbia
525 F.3d
1222
2008
Authored
majority
Civil Rights Law;
Labor &
Employment Law
Affirmed: A hearing-impaired applicant who was not hired for
employment with the District of Columbia failed to produce sufficient
evidence that the District intentionally discriminated against him because
of his disability.
Clark Cty., Nev. v. FAA
522 F.3d 437
2008
Authored
majority
Administrative
Law;
Transportation
Law
Petition granted, agency decision vacated, and remanded: The FAA failed to
provide a reasoned explanation for its conclusion that the construction
of certain wind turbines would not obstruct the airspace of a nearby
airport or interfere with the airport’s radar systems.
Harbury v. Hayden
522 F.3d 413
2008
Authored
majority
Federal Courts &
Civil Procedure;
National Security
Affirmed: The political question doctrine and the doctrine of sovereign
immunity barred the plaintiff’s claims for damages arising from the alleged
torture and killing of the plaintiff’s husband by Guatemalan army officers
allegedly affiliated with the CIA.
Brady v. Office of the
Sergeant at Arms
520 F.3d 490
2008
Authored
majority
Civil Rights Law;
Labor &
Employment Law
Affirmed: The plaintiff failed to present sufficient evidence for a reasonable
jury to conclude that a public employer’s proffered reason for demoting
an employee—namely, that the employee had violated the employer’s
sexual harassment policy—was a pretext for race discrimination.
United Food &
Commercial Workers,
AFL-CIO v. NLRB
519 F.3d 490
2008
Authored
majority
Labor &
Employment Law
Petitions denied; enforcement granted: The NLRB reasonably concluded
that, although a retailer had no general duty to bargain with a particular
union, that retailer was still required to bargain with that union on
certain specific issues.
Essex Ins. Co. v. Doe ex
rel. Doe
511 F.3d 198
2008
Authored
majority
Contract Law
Affirmed in part and reversed in part: A person assigned rights under an
insurance liability policy was entitled to recover $300,000 from the
insurer, minus certain investigation and defense costs the insurer
incurred.
United States v. Bullock
510 F.3d 342
2007
Authored
majority
Criminal Law &
Procedure
Affirmed: A police officer did not violate the Fourth Amendment by
ordering the defendant to exit the vehicle he was driving or by frisking
the defendant when the officer had a reasonable suspicion that the
defendant had stolen the vehicle.
Nuclear Info. & Res. Serv.
v. NRC
509 F.3d 562
2007
Authored
majority
Energy & Utilities
Law;
Environmental
Law
Petition denied: The Nuclear Regulatory Commission did not violate
federal law by granting a license to a nuclear facility.
CRS-29
Case Name
Citation
Year
Role
Subject
Mills v. Giant of Md., LLC
508 F.3d 11
2007
Authored
majority
Federal Courts &
Civil Procedure;
Food & Drug Law;
Torts
Affirmed: The district court correctly dismissed a putative class action
that alleged that certain milk sellers had unlawfully failed to warn
purchasers that consuming milk could result in temporary digestive
maladies.
Hester v. Dist. of
Columbia
505 F.3d
1283
2007
Authored
majority
Civil Rights Law;
Government
Operations
Reversed and remanded with directions: The District of Columbia was not
required to provide additional special education services to a disabled
student after the State of Maryland had already provided that student
with special education services.
Hundley v. Dist. of
Columbia
494 F.3d
1097
2007
Authored
majority
Civil Rights Law;
Torts
Reversed and remanded: Whereas the estate of a motorist shot and killed
by a police officer was entitled to a new trial on its assault and battery
and excessive force claims after the jury rendered an impermissibly
inconsistent verdict in the defendants’ favor on those claims, the jury’s
verdict in the estate’s favor on its negligence claim could not stand.
E.I. Du Pont de Nemours
& Co. v. NLRB
489 F.3d
1310
2007
Authored
majority
Labor &
Employment Law
Petitions for review denied, cross-petition for enforcement granted: The NLRB
correctly concluded that (1) an employer had permissibly declared an
impasse with respect to the overall collective bargaining agreement; and
(2) the employer had wrongfully declared an impasse with respect to
certain subcontracting negotiations.
Doe ex rel. Tarlow v. Dist.
of Columbia
489 F.3d 376
2007
Authored
majority
Civil Rights Law;
Healthcare Law
Reversed in part: The District of Columbia’s policy for authorizing
surgeries for intellectually disabled persons who lack the mental capacity
to make medical decisions for themselves did not violate the Due
Process Clause.
United States v. Lathern
488 F.3d
1043
2007
Authored
majority
Criminal Law &
Procedure;
Federal Courts &
Civil Procedure
Affirmed: The district court did not reversibly err by excluding expert
witness testimony concerning the amount of time it would have taken a
criminal defendant to walk from one point to another because the
witness did not know the actual distance between those two points.
United States v. Bryson
485 F.3d
1205
2007
Authored
majority
Criminal Law &
Procedure
Affirmed: The district court did not err when calculating a restitution
award in a Medicare fraud case.
Transcont’l Gas Pipe Line
Corp. v. FERC
485 F.3d
1172
2007
Authored
majority
Energy & Utilities
Law
Petition denied: A natural gas pipeline owner’s challenge to a FERC order
requiring the owner to pay money to a different company lacked merit.
CRS-30
Holding
Case Name
Citation
Year
Role
Subject
N. Baja Pipeline, LLC v.
FERC
483 F.3d 819
2007
Authored
majority
Administrative
Law; Energy &
Utilities Law
Petition denied: FERC reasonably rejected a pipeline’s proposed shipping
rate formula and adequately explained its reasons for rejecting that
formula.
Watts v. SEC
482 F.3d 501
2007
Authored
majority
Federal Courts &
Civil Procedure
Case transferred: Because the Court of Appeals lacked jurisdiction to
adjudicate the petitioner’s challenge to a particular decision by the
Securities & Exchange Commission, his petition had to be transferred to
the district court.
United States v. Martinez
476 F.3d 961
2007
Authored
majority
Criminal Law &
Procedure
Affirmed: A jury verdict finding a defendant guilty of certain drug crimes
was valid, and there was no reversible error in the trial court’s
evidentiary decisions or jury instructions.
Steven R. Perles, P.C. v.
Kagy
473 F.3d
1244
2007
Authored
majority
Contracts Law
Affirmed in part, reversed in part, vacated in part, and remanded: Two
attorneys did not create an enforceable verbal contract governing the
younger attorney’s work on two lawsuits, but the younger attorney was
nonetheless potentially entitled to equitable compensation for her work.
Baker & Hostetler LLP v.
Dep’t of Commerce
471 F.3d
1355
2006
Single-judge
order
Federal Courts &
Civil Procedure
Motion denied: Judge Kavanaugh’s prior service in the executive branch
did not mandate his recusal from a FOIA case.
Nat’l Fuel Gas Supply
Corp. v. FERC
468 F.3d 831
2006
Authored
majority
Administrative
Law; Energy &
Utilities Law
Petition granted, orders vacated, case remanded: FERC acted arbitrarily and
capriciously when it issued an order significantly expanding the scope of
certain standards regulating natural gas pipelines.
CRS-31
Holding
Table 2. Controlling Opinions Authored by Judge Kavanaugh for Which Another Judge Wrote a Concurrence or Dissent
Case Name
FTC v. Boehringer
Ingelheim Pharm., Inc.
Citation
Year
Role
Subject
Holding
892 F.3d 1264
2018
Authored
majority
Antitrust Law;
Federal Courts &
Civil Procedure
Majority (Kavanaugh J.), affirmed: Documents subpoenaed by the FTC from
a pharmaceutical company as part of antitrust investigation of a reversepayment-patent settlement were protected by attorney-client privilege.
Concurring (Pillard, J.): District court did not commit clear error in finding
that the attorney-client privilege applied to the documents.
United States v. Lee
888 F.3d 503
2018
Authored
majority
Criminal Law &
Procedure
Majority (Kavanaugh, J.), appeal dismissed: Defendant’s waiver of right to
appeal sentence in plea agreement was knowing, voluntary, and
intelligent—and therefore enforceable—even though the district court
failed to discuss the waiver at the plea colloquy, as required by Federal
Rule of Criminal Procedure 11(b)(1)(N).
Dissenting (Rogers, J.): Appeal was not barred by waiver because the failure
to inform the defendant of the appellate waiver during the plea colloquy
constituted plain error that affected the defendant’s substantial rights.
Casey v. McDonald’s
Corp.
880 F.3d 564
2018
Authored
majority
Torts
Majority (Kavanaugh, J.), affirmed in part and reversed in part: In a negligence
case under D.C. law regarding a drunken brawl, plaintiffs stated a claim
against the bars that allegedly over-served the assailant, but did not state
a claim against the fast-food restaurant where the altercation began.
Concurring (Wilkins, J.): District court was incorrect to presume that
establishing the requisite standard of care for facilities required evidence
of national practices, as opposed to only comparable local practices.
CRS-32
Case Name
Citation
Year
Role
Subject
Holding
Multicultural Media,
Telecom & Internet
Council v. FCC
873 F.3d 932
2017
Authored
majority
Administrative
Law;
Communications
Law
Majority (Kavanaugh, J.), petition for review denied: Statute did not compel
FCC to require broadcasters to translate emergency alerts into languages
others than English, and FCC’s decision to gather more information
before imposing a translation requirement was reasonably explained and
not arbitrary.
Concurring in part and dissenting in part (Millett, J.): FCC’s decision to gather
still more information before acting on the translation issue, even after
spending a decade studying the problem and potential solutions, was
arbitrary and capricious.
Mexichem Fluor, Inc. v.
EPA
866 F.3d 451
2017
Authored
majority
Administrative
Law;
Environmental
Law
Majority (Kavanaugh, J.), petition for review granted in part and denied in part:
EPA acted beyond its statutory authority by requiring manufacturers to
replace hydrofluorocarbons (HFCs) with other substances because HFCs
were not ozone-depleting substances under the CAA. However, EPA’s
decision to remove HFCs from the list of safe substitutes for ozonedepleting substances was not arbitrary and capricious.
Concurring in part and dissenting in part (Wilkins, J.): EPA’s HFC regulation
should have been upheld under the Chevron standard of deference
because the statutory grant of authority was ambiguous, and EPA’s rule
interpreting the statute was not unreasonable.
Bais Yaakov of Spring
Valley v. FCC
852 F.3d 1078
2017
Authored
majority
Communications
Law
Majority (Kavanaugh, J.), vacated and remanded: FCC lacked authority under
the Junk Fax Prevention Act to require solicited fax advertisements
contain opt-out notices.
Dissenting (Pillard, J.): FCC reasonably concluded, in implementing
Congress’s ban on unsolicited fax ads, that opt-out notices were needed
on all fax ads so that recipients are easily able to withdraw their
permission.
CRS-33
Case Name
Johnson v. Interstate
Mgmt. Co., LLC
Citation
Year
Role
Subject
Holding
849 F.3d 1093
2017
Authored
majority
Civil Rights Law;
Labor &
Employment Law
Majority (Kavanaugh, J.), affirmed: The anti-retaliation provision of the
Occupational Safety and Health Act does not establish a private cause of
action in favor of employees alleging discrimination, and the plaintiff failed
to present sufficient evidence in support of his retaliation claim, as the
evidence did not suggest the employer’s explanation for firing the plaintiff
was pretextual.
Concurring in part and concurring in the judgment (Millett, J.): The dissent
disagreed with much of how the majority analyzed the summary judgment
record, but agreed with the statement in the opinion that the employee
did not provide sufficient evidence from which a reasonable jury could
have concluded that the employer did not “honestly and reasonably
believe[]” he engaged in misconduct.
CRS-34
Case Name
PHH Corp. v. CFPB
Citation
Year
Role
Subject
839 F.3d 1,
vacated en
banc, 881 F.3d
75 (D.C. Cir.
2018)
2017
Authored
majority
Government
Operations
Holding
Majority (Kavanaugh, J.), vacated and remanded: The structure of the
independent CFPB violated Article II of the Constitution as the agency’s
single director was not removable by the President at will. Further, the
agency violated due process by retroactively applying a new
interpretation of the Real Estate Settlement Procedures Act to the
petitioner without fair notice, and the Dodd-Frank Act’s three-year
statute of limitations applied to the CFPB’s administrative and judicial
enforcement actions below.
Concurring (Randolph, J.): The underlying administrative hearing over which
the administrative law judge (ALJ) presided was unconstitutional because
the ALJ was not appointed by the President, “Courts of Law,” or the
head of a “department,” as is required by Article II for the appointment of
“inferior Officers.”
Concurring in part and dissenting in part (Henderson, J.): The petitioner’s
statutory claims entitled it to relief. The court unnecessarily reached the
petitioner’s constitutional challenge.
Note: The panel decision was subsequently vacated by the D.C. Circuit
sitting en banc, 881 F.3d 75 (D.C. Cir. 2018). The en banc decision is
discussed below.
CRS-35
Case Name
Verizon New England
Inc. v. Nat’l Labor
Relations Bd.
Citation
Year
Role
Subject
Holding
826 F.3d 480
2016
Authored
majority
Administrative
Law; Labor &
Employment Law
Majority (Kavanaugh, J.), petition for review granted and cross-application for
enforcement denied: The NLRB acted unreasonably in overturning
arbitration decision finding that the employer did not violate a collective
bargaining agreement (CBA) when it required that employees cease
displaying pro-union signs on their vehicles while parked on the
employer’s private property, as the arbitration decision was not clearly
repugnant to the NLRA.
Concurring in part and concurring in the judgment (Henderson, J.): The
concurring opinion expressed doubt as to the majority’s description of
the arbitration deferral standard of the NLRB, opining that the court
should ask only whether the arbitration decision is susceptible of an
interpretation consistent with the NLRA.
Concurring in part and dissenting in part (Srinivasan, J.): The majority’s
explanation of the legal standards governing the NLRB’s review of an
arbitration decision’s interpretation of a CBA was correct. However, the
dissent disagreed with the majority’s conclusion that the NLRB acted
unreasonably in setting aside the arbitration decision.
United States v. Nwoye
824 F.3d 1129
2016
Authored
majority
Criminal Law &
Procedure
Majority (Kavanaugh, J.), reversed and remanded: Defendant was prejudiced
by her trial counsel’s failure to introduce expert testimony on battered
woman syndrome (BWS), evidence of which could be relevant to her
defense of duress.
Dissenting (Sentelle, J.): The defendant suffered no prejudice on account of
her trial counsel’s failure to offer expert testimony on BWS, as she did
not establish sufficient evidence during her trial in support of a duress
defense.
CRS-36
Case Name
Citation
Year
Role
Subject
Indep. Inst. v. FEC
816 F.3d 113
2016
Authored
majority
Elections Law;
Freedom of
Speech
Fla. Bankers Ass’n v.
Dep’t of the Treasury
799 F.3d 1065
2015
Authored
majority
Tax Law
Holding
Majority (Kavanaugh, J.), reversed, vacated, and remanded: The appellant was
entitled to assert its claim that the Bipartisan Campaign Reform Act of
2002 (BCRA) donor-disclosure provisions violated the First Amendment
before a three-judge district court, as the appellant’s claim raised a
substantial federal question. The bar for substantiality was “low,” and
plaintiff advanced at least one argument that was not “essentially
fictitious.”
Dissenting (Wilkins, J.): The appellant’s claim did not present a substantial
federal question because the appellant failed to explain how it could
succeed going forward without prevailing on its core contention that
electioneering communications under the BCRA must be limited to
speech that is “unambiguously campaign related.”
Majority (Kavanaugh, J.), vacated and remanded: Suit brought by trade
organizations challenging the IRS’s nonresident alien interest-income
reporting regulation was barred by the Anti-Injunction Act and tax
exception to the Declaratory Judgment Act because (1) the regulation
was deemed a tax under the Internal Revenue Code; and (2) the suit, if
successful, would have invalidated the regulation and, thus, directly
prevented collection of the regulatory tax imposed on banks for violation
of the regulation.
Concurring (Randolph, J.): Seven-Sky v. Holder, 661 F.3d 1 (D.C. Cir. 2011),
on which the dissent relied, did not stand for the proposition that the
Anti-Injunction Act cannot apply to a case even if the penalty in the case
was a tax within the meaning of the Act.
Dissenting (Henderson, J.): Under Supreme Court and D.C. Circuit
precedent, the Anti-Injunction Act did not bar challenges to tax-reporting
requirements or regulations with tax penalties attached.
CRS-37
Case Name
Citation
Year
Role
Subject
In re Murray Energy
Corp.
788 F.3d 330
2015
Authored
majority
Administrative
Law; Federal
Courts & Civil
Procedure
Holding
Majority (Kavanaugh, J.), petitions for review and petition for writ of prohibition
denied: Proposed EPA regulation was not final agency action and thus not
judicially reviewable, as proposed regulations did not mark the
“consummation of the agency’s decisionmaking process.” In addition, the
All Writs Act did not confer authority on the court to consider the
challenge, as reviewing the proposed regulation was not necessary or
appropriate to aid the court’s jurisdiction.
Concurring in the judgment (Henderson, J.): Contrary to the majority’s
“cramped view” of the court’s extraordinary writ authority, the court
does have authority to issue a writ of prohibition in the case, but it
should not do so, as “the passage of time has rendered the issuance all
but academic.”
Ivy Sports Med., LLC v.
Burwell
767 F.3d 81
2014
Authored
majority
Administrative
Law; Food & Drug
Law
Majority (Kavanaugh, J.), judgment vacated and remanded: FDA did not
follow the proper statutory procedure for reclassifying a medical device.
Therefore, the agency’s decision to rescind the clearance determination
for the device was vacated.
Dissenting (Pillard, J.): FDA properly exercised its authority to revoke its
mistaken clearance of the medical device without undertaking full notice
and comment rulemaking.
Odhiambo v. Republic of
Kenya
764 F.3d 31
2014
Authored
majority
Contracts Law;
Federal Courts &
Civil Procedure
Majority (Kavanaugh, J.), affirmed: The Foreign Sovereign Immunities Act
(FSIA) barred a whistleblower from suing the government of Kenya in
federal court for breach of contract stemming from Kenya’s alleged
underpayment of the whistleblower for revealing instances of tax evasion.
Concurring in part and dissenting in part (Pillard, J.): The case should have
been allowed to proceed under the third clause of the commercial
activity exception to FSIA.
CRS-38
Case Name
Citation
Year
Role
Subject
Holding
Nat’l Sec. Archive v. CIA
752 F.3d 460
2014
Authored
majority
Privacy & Records
Majority (Kavanaugh, J.), affirmed: The CIA properly withheld from public
disclosure a draft written account of the Bay of Pigs Invasion authored by
a CIA staff historian because the information fell within FOIA’s
deliberative process exemption.
Dissenting (Rogers, J.): The court should have reversed the district court’s
grant of summary judgment and remanded the case for further
proceedings because the agency did not demonstrate that the particular
draft document at issue qualified for the privilege, and some information
in the volume may not have qualified for the exemption and thus should
have been subject to disclosure.
United States v. Brice
748 F.3d 1288
2014
Authored
majority
Criminal Law &
Procedure;
Federal Courts &
Civil Procedure
Majority (Kavanaugh, J.), affirmed: Criminal defendant waived objection that
his trial judge was not impartial by failing to raise it during the initial
appeal of his conviction.
Concurring in the judgment (Williams, J.): The majority opinion should have
relied only on D.C. Circuit precedent to determine that waiver had
occurred and not also on the circuit’s rules governing waiver of issues on
appeal.
Ali v. Obama
736 F.3d 542
2013
Authored
majority
National Security
Majority (Kavanaugh, J.), affirmed: The government demonstrated by a
preponderance of the evidence that petitioner was a member of a force
associated with al Qaeda, and thus his detention was lawful under the
AUMF and circuit precedent governing habeas relief in military detention
cases. No statute imposed a time limit on such detention or created a
sliding-scale standard that became more stringent over time, and it is not
proper for the court to devise one, in order to address petitioner’s
concerns about “lifetime detention.”
Concurring in the judgment (Edwards, J.): While the majority opinion is
based on binding circuit precedent, the law of the circuit has made habeas
corpus proceedings like the one afforded this petitioner functionally
useless, which is troubling given that Ali may well be detained for the rest
of his life.
CRS-39
Case Name
Citation
Year
Role
Subject
In re Aiken County
725 F.3d 255
2013
Authored
majority
Administrative
Law; Energy &
Utilities Law
Holding
Majority (Kavanaugh, J.), petition for mandamus granted: Where previously
appropriated money was available to the Nuclear Regulatory Commission
(NRC) to perform statutorily mandated licensing processes for storage of
nuclear waste in Yucca Mountain, the agency could not ignore its
statutory mandates simply because Congress had not appropriated all of
the money necessary to complete the project. NRC had not asserted that
the mandate was unconstitutional, and the executive’s prosecutorial
discretion under Article II does not include the power to disregard
statutory obligations imposed by Congress.
Concurring (Randolph, J.): The majority’s discussion of executive power and
prosecutorial discretion principles was unnecessary to decide the case.
Dissenting (Garland, C.J.): Given the limited funds that remain available to
the NRC, issuing a writ of mandamus would not allow the agency to do
anything productive, and courts should not issue writs of mandamus to
“do a useless thing.”
United States v. Cardoza
713 F.3d 656
2013
Authored
majority
Criminal Law &
Procedure
Majority (Kavanaugh, J.), reversed: After excising false statements made by a
police officer in a search warrant affidavit, the corrected affidavit still
established a “fair probability” that the defendant was involved in drug
dealing, which was sufficient to establish probable cause.
Concurring (Brown, J.): It was unlikely that affidavits with even slightly less
evidence than the one in this case would satisfy the probable cause
standard.
CRS-40
Case Name
Citation
Year
Role
Subject
Holding
United States v. Duvall
705 F.3d 479
2013
Authored
majority
Criminal Law &
Procedure
Majority (Kavanaugh, J.), affirmed: The prison sentence of a drug dealer
made pursuant to a plea agreement specifying an agreed-upon sentence
or sentencing range was not eligible for reduction based on a subsequent
change in the sentencing range by U.S. Sentencing Commission, where
the plea agreement was not “based on” that sentencing range.
Concurring in the judgment (Williams, J.): The Supreme Court decision
relied upon by the majority, Justice Sotomayor’s concurring opinion in
Freeman v. United States, 564 U.S. 522 (2011), was not controlling. Circuit
precedent required affirmation of the decision below, but that precedent
should be overturned by the en banc court.
Honeywell Int’l, Inc. v.
EPA
705 F.3d 470
2013
Authored
majority
Environmental
Law; Federal
Courts & Civil
Procedure
Majority (Kavanaugh, J.), petition for review denied: The statutory framework
established under the CAA regulates hydrochlorofluorocarbons (HCFCs)
through a cap-and-trade program. Plaintiff’s challenge to EPA’s approval of
competitors’ permanent interpollutant transfers was timely because the
challenge was filed within 60 days of the D.C. Circuit’s decision in Arkema,
Inc. v. EPA, 618 F.3d 1 (D.C. Cir. 2010), which “changed the legal
landscape” regarding the permanency of the transfers. However, that
same decision also established binding circuit precedent that permanent
interpollutant transfers were permissible under the CAA.
Dissenting (Brown, J.): Arkema did not change the legal status of the
interpollutant transfers. Therefore, it should not count as “after-arising
grounds” giving rise to a new 60 days within which to file a challenge.
CRS-41
Case Name
Citation
Year
Role
Subject
Holding
Hamdan v. United States
696 F.3d 1238,
overruled by Al
Bahlul v.
United States,
767 F.3d 1
(D.C. Cir.
2014)
2012
Authored
majority
International Law;
Military &
Veterans Law;
National Security
Majority (Kavanaugh, J.), reversed and remanded with direction to vacate
conviction: Appeal of conviction of Guantanamo detainee under the
Military Commission Act of 2006 for providing material support to
terrorism was not moot after the detainee’s transfer to a foreign country,
and the conviction was vacated because the crime of material support did
not exist as a war crime under international law at the time the relevant
conduct occurred.
Concurring (Ginsburg, J.): Because the detainee faced no adverse
consequences of his conviction after his transfer overseas, the detainee’s
case was moot in fact even though Supreme Court precedent required
that the case not be deemed moot in law.
Note: The decision was subsequently overruled by the D.C. Circuit on a
petition for rehearing en banc in Al Bahlul v. United States, 767 F.3d 1
(D.C. Cir. 2014), discussed below.
South Carolina v. United
States
898 F. Supp. 2d
30 (D.D.C.)
2012
Authored
majority
(district
court panel)
Civil Rights Law;
Elections Law
Majority (Kavanaugh, J.): South Carolina’s voter identification law satisfied
the federal Voting Rights Act’s preclearance requirements with respect to
elections beginning in 2013, but not with respect to the 2012 elections
because the state law could not be properly implemented in time to
ensure it did not have retrogressive effects.
Concurring (Kollar-Kotelly, J.): If South Carolina decided to narrow its
interpretation of one of the exceptions to its voter identification law at
some point in the future, that new interpretation would have to undergo
preclearance under the federal Voting Rights Act.
Concurring (Bates, J.): The Voting Rights Act’s preclearance provisions are
socially desirable because they induced South Carolina to enact a less
restrictive voter identification law than it otherwise would have enacted.
CRS-42
Case Name
Citation
Year
Role
Subject
EME Homer City
Generation, L.P. v. EPA
696 F.3d 7,
rev'd and
remanded, 134
S. Ct. 1584
(2014)
2012
Authored
majority
Environmental
Law
Holding
Majority (Kavanaugh, J.), vacated and remanded: EPA rule related to air
pollution that crosses state lines exceeded the agency’s authority under
the CAA.
Dissenting (Rogers, J.): The challenge to the EPA rule did not comply with
the CAA’s statutory limitations on judicial review and, therefore, the
court lacked jurisdiction over the case.
Note: The panel’s decision was subsequently reversed and remanded by
the Supreme Court in EPA v. EME Homer City Generation, L.P., 134 S. Ct.
1584 (2014).
New York-New York,
LLC v. NLRB
676 F.3d 193
2012
Authored
majority
Labor &
Employment Law
Majority (Kavanaugh, J.), petition for review denied and cross-petition for
enforcement granted: NLRB correctly concluded that the casino could not
bar employees of an onsite contractor from distributing union-related
handbills in public areas of the casino.
Concurring (Henderson, J.): In reaching a proper accommodation between
employee rights under Section 7 of the NLRA and private property rights,
the NLRB correctly concluded that, for the purposes of Section 7, the
contractor’s employees were more analogous to the casino’s own
employees than to nonemployee union organizers.
Hall v. Sebelius
667 F.3d 1293
2012
Authored
majority
Healthcare Law;
Pensions &
Benefits Law
Majority (Kavanaugh, J.), affirmed: Federal law did not authorize citizens
above the age of 65 to disclaim their legal entitlement to Medicare Part A
benefits in order to become eligible for more favorable private insurance
coverage.
Dissenting (Henderson, J.): The challenged provisions in the Social Security
Administration’s Program Operations Manual System lacked a statutory
basis and were ultra vires.
CRS-43
Case Name
Citation
Year
Role
Subject
Sw. Airlines Co. v.
Transp. Sec. Admin.
650 F.3d 752
2011
Authored
majority
Administrative
Law;
Transportation
law
Holding
Majority (Kavanaugh, J.), petitions for review denied: The TSA, on remand,
did not act arbitrarily or capriciously by relying on an expert report
commissioned to determine how many individual screenings in 2000 were
of passengers versus nonpassengers, and the TSA adequately considered
and explained its rejection of the conflicting findings offered in a separate
DOT report.
Dissenting (Brown, J.): The TSA failed to articulate reasons for rejecting the
conflicting evidence found in the DOT report.
Blackwell v. FBI
646 F.3d 37
2011
Authored
majority
Privacy & Records
Majority (Kavanaugh, J.), affirmed: The FBI records sought by the requester
under FOIA qualified as “records or information complied for law
enforcement purposes,” but the requester failed to show sufficient
government misconduct to overcome FOIA Exemption 7(C)’s protection
for certain withholding and redactions based on personal privacy under
the test articulated in National Archives & Records Admin. v. Favish, 541 U.S.
157 (2004). The FBI also adequately justified redactions and withholding
pursuant to FOIA Exemption 7(E)’s protection of records that might
“disclose techniques and procedures for law enforcement investigations
or prosecutions;” and the FBI justifiably limited its search and provided an
adequate index of withheld documents.
Concurring (Rogers, J.): The government misread precedent to the extent
that it claimed that the disclosure of exculpatory evidence relevant to an
appeal of or collateral attack on a conviction would not categorically be in
the public interest for purposes of Exemption 7(C).
CRS-44
Case Name
Omar v. McHugh
Citation
Year
Role
Subject
Holding
646 F.3d 13
2011
Authored
majority
Federal Courts &
Civil Procedure;
National Security
Majority (Kavanaugh J.), affirmed: Notwithstanding the detainee’s belief that
he was likely to be tortured by Iraqi officials to whom he was going to be
transferred, a Jordanian-American citizen detained by the U.S. military in
Iraq was not entitled to habeas corpus relief challenging the United
States’ intention to transfer him to Iraqi custody because federal law did
not provide military transferees with a right to judicial review of their
likely treatment in a receiving foreign country.
Concurring in the judgment (Griffith, J.): While federal law did not grant
plaintiff a right against being transferred to Iraqi custody, it did not strip
federal courts of jurisdiction to hear the plaintiff’s claim for unlawful
transfer.
Am. v. Mills
643 F.3d 330
2011
Authored
majority
Contracts Law
Majority (Kavanaugh J.), affirmed: The Small Business Administration (SBA)
did not commit a material breach of its settlement agreement with a
former employee in which the SBA promised that it would only provide
neutral references about the former employee and refer all inquiries from
prospective employers to the human resources division, when the SBA
current employees did not refer the matter to human resources and
instead gave statements about the former employee that were generally
positive, and at worst neutral.
Dissenting (Brown, J.): The evidence presented at trial constituted a
material breach of the settlement because evidence was presented that
some SBA employees’ statements concerning the plaintiff were negative,
and questions concerning the plaintiff were not referred to human
resources as required by the agreement.
CRS-45
Case Name
Citation
Year
Role
Subject
Empresa Cubana
Exportadora de
Alimentos y Productos
Varios v. Dep’t of
Treasury
638 F.3d 794
2011
Authored
majority
Intellectual
Property Law
Holding
Majority (Kavanaugh, J.), affirmed: A Cuban trademark holder did not have
a vested right to renew its trademark as of the date of the enactment of
the Omnibus Consolidated and Emergency Supplemental Appropriations
Act of 1998, and, as a result, the presumption against retroactivity did not
apply. The Act accordingly barred renewal of the trademark holder’s
mark, and that bar was consistent with substantive due process.
Dissenting (Silberman, J.): In order to reach its retroactivity holding the
majority misapplied governing Supreme Court jurisprudence regarding
the interpretation of statutes and did so in a way that “dr[ove] a large
hole in the presumption against retroactivity.”
Koretoff v. Vilsack
614 F.3d 532
2010
Authored
majority
Administrative
Law; Food & Drug
Law
Majority (Kavanaugh, J.), affirmed in part and reversed in part: The
Agriculture Marketing Agreement Act (AMAA) did not preclude 10
California almond producers who also retailed their almonds directly to
consumers from raising a legal challenge to Department of Agriculture
regulations restricting retail sales by such producers. The AMAA did
require them, however, to exhaust their administrative remedies with the
department before pursuing their claims in court.
Dissenting in part (Henderson, J.): The commodity at issue was almonds, not
milk, and the AMAA provides no express right of review to producers of
products other than milk.
Am. Trucking Ass’ns, Inc.
v. EPA
600 F.3d 624
2010
Authored
majority
Administrative
Law;
Environmental
Law
Majority (Kavanaugh, J.), petition for review denied: EPA adequately
considered the costs of compliance and otherwise properly explained its
reasoning in acting, under the authority of the CAA, to authorize a
California rule limiting emissions from in-use, nonroad engines, including
transportation refrigeration units powered by diesel engines.
Dissenting in part (Williams, J.): EPA’s consideration of the petitioner’s
arguments amounted to a “paradigmatic instance of an agency’s failure” to
examine relevant data and provide an adequate explanation for its
decision. Standard practice required the court to remand to the agency
for the exercise of reasoned decision making.
CRS-46
Case Name
Citation
Year
Role
Subject
Nat’l Postal Mail
Handlers Union v. Am.
Postal Workers Union
589 F.3d 437
2010
Authored
majority
Contracts Law
Holding
Majority (Kavanaugh, J.), affirmed: In dispute over who was responsible for
scanning foreign mail at service center of the U.S. Postal Service, the
district court properly affirmed the arbitrator’s award, even though the
arbitrator “probably” erred as matter of contract interpretation in finding
that dispute was subject to arbitration, because arbitrator was “arguably
construing” the contract.
Dissenting (Sentelle, C.J.): Arbitrator’s decision was “wholly without regard”
to the terms of the parties’ contract and should have been reversed,
irrespective of the deferential standard of review.
Emily’s List v. FEC
581 F.3d 1
2009
Authored
majority
Elections Law;
Freedom of
Speech
Majority (Kavanaugh, J.), reversed: FEC regulations restricting how
nonprofits may spend and raise money to advance their preferred policy
positions and candidates violated the First Amendment and exceeded
FEC’s authority under the Federal Election Campaign Act.
Concurring in part (Brown, J.): Because the FEC regulations exceeded FEC’s
statutory authority, there existed no reason to reach the constitutional
question. The majority opinion’s constitutional analysis wrongly ignored
Supreme Court precedent and will profoundly impact campaign finance
regulation in the circuit.
Moshea v. Nat’l Transp.
Safety Bd.
570 F.3d 349
2009
Authored
majority
Administrative
Law;
Transportation
Law
Majority (Kavanaugh, J.), petition granted, decision vacated, and remanded:
National Transportation Safety Board had jurisdiction over pilot’s appeal
of the FAA’s suspension of his pilot certification and should have
entertained plaintiff’s affirmative defense to a claim that he failed to
conform to certain recordkeeping requirements.
Concurring in part (Randolph, J.): The majority wrongly characterized the
statute governing the Board’s proceeding, but the Board nonetheless
acted arbitrarily in refusing to consider the affirmative defense for
appellant when it had done so for other individuals.
CRS-47
Case Name
United States v.
Gardellini
Citation
Year
Role
Subject
Holding
545 F.3d 1089
2008
Authored
majority
Criminal Law &
Procedure
Majority (Kavanaugh, J.), affirmed: District court did not abuse its discretion
in sentencing defendant to probation and $15,000 restitution in guilty plea
for filing false tax return, although the sentence was below the advisory
Sentencing Guidelines range of 10-16 months.
Dissenting (Williams, J.): The district court abused its discretion because
the Sentencing Guidelines range was 10-16 months’ imprisonment and
the court failed to consider goal of deterring others from committing
similar crimes.
Pirelli Armstrong Tire
Corp. Retiree Med.
Benefits Tr. ex rel. Fed.
Nat’l Mortg. Ass'n v.
Raines
534 F.3d 779,
abrogated by
Lightfoot v.
Cendant
Mortg. Corp.,
137 S. Ct. 553
(2017)
2008
Authored
majority
Business &
Corporate Law;
Federal Courts &
Civil Procedure
Majority (Kavanaugh, J.) affirmed: Shareholder complaint against Fannie Mae
was properly dismissed because no demand was made of the company’s
board of directors and such demand would not have been futile. Federal
subject matter jurisdiction existed under statute that authorized Fannie
Mae to “sue and be sued” in the courts.
Concurring in the judgment (Brown, J.): No federal subject matter
jurisdiction existed in this case because the jurisdictional statute provided
that Fannie Mae could only be sued in a court with “competent
jurisdiction,” requiring a separate jurisdictional basis.
Note: The court’s opinion was subsequently abrogated by the Supreme
Court in Lightfoot v. Cendant Mortg. Corp., 137 S. Ct. 553 (2017).
In re Navy Chaplaincy
534 F.3d 756
2008
Authored
majority
Freedom of
Religion; Federal
Courts & Civil
Procedure
Majority (Kavanaugh, J.) affirmed: Protestant chaplains did not have standing
to sue the Navy for an alleged Establishment Clause violation for a
program that allegedly favored Catholic chaplains when none of the
plaintiffs alleged that they were actually discriminated against by the Navy
as a result of their religion.
Dissenting (Rogers, J.): Protestant chaplains had standing to sue the Navy
because they received “a message of denominational preference,” and
they were in a unique position as chaplains in relation to their service in
the Navy Chaplain Corps.
CRS-48
Case Name
Citation
Year
Role
Subject
Holding
Puerto Rico Ports Auth.
v. Fed. Mar. Comm’n
531 F.3d 868
2008
Authored
majority
Federal Courts &
Civil Procedure;
Government
Operations
Majority (Kavanaugh, J.) petition granted, order vacated and remanded: Puerto
Rico Ports Authority was an “arm of the state” entitled to sovereign
immunity under the Eleventh Amendment against terminal operators’
complaints alleging violations of the Shipping Act.
Concurring (Williams, J.): Supreme Court precedents have made the
sovereign immunity question unduly complex, but the court’s decision
was right under existing law.
Jackson v. Gonzales
496 F.3d 703
2007
Authored
majority
Civil Rights Law;
Labor &
Employment Law
Majority (Kavanaugh, J.), affirmed: No reasonable jury would conclude that
a public employer’s decision not to promote an African-American
employee was racially discriminatory.
Dissenting (Rogers, J.): The employee presented sufficient evidence of
pretext to survive summary judgment.
Public Citizen, Inc. v.
Nat’l Highway Traffic
Safety Admin.
489 F.3d 1279
2007
Authored
majority
Federal Courts &
Civil Procedure;
Transportation
Law
Majority (Kavanaugh, J.), dismissing petition and requiring supplemental
submissions: Although certain industry petitioners lacked standing to
challenge a regulation promulgated by National Highway Traffic Safety
Administration, an advocacy organization was entitled to file supplemental
submissions demonstrating that it had standing to challenge the
regulation.
Concurring in part and dissenting in part (Sentelle, J.): None of the petitioners
had standing to challenge the regulation, so the majority should not have
allowed the advocacy group to file supplemental submissions.
Am. Fed’n of Gov’t
Emps., AFL-CIO v. Gates
486 F.3d 1316
2007
Authored
majority
Administrative
Law; Labor &
Employment Law
Majority (Kavanaugh, J.), reversed: Although the Department of Defense
possessed the authority to temporarily curtail collective bargaining for its
civilian employees, it was required to reinstate collective bargaining after
a specified date.
Dissenting in part (Tatel, J.): Federal law did not empower the Department
of Defense to abolish collective bargaining altogether.
CRS-49
Case Name
Citation
Year
Role
We the People Found.,
Inc. v. United States
485 F.3d 140
2007
Authored
majority
Subject
Freedom of
Speech
Holding
Majority (Kavanaugh, J.), affirmed: The First Amendment’s Petition Clause
does not create a right to a government response to—or official
consideration of—a citizen’s petition for redress of grievances.
Concurring (Rogers, J.): Historical evidence might support such a right, but
binding Supreme Court precedent barred the court from recognizing any
such right.
United States v. Askew
482 F.3d 532,
rev’d en banc,
529 F.3d 1119
(D.C. Cir.
2008)
2007
Authored
majority
Criminal Law &
Procedure
Majority (Kavanaugh, J.), affirmed: A police officer did not conduct an
unconstitutional search by unzipping a suspect’s jacket.
Dissenting (Edwards, J.): The police officer violated the Fourth Amendment
by searching the suspect for purely investigative purposes after an initial
pat down did not uncover any weapons.
Note: The D.C. Circuit, sitting en banc, subsequently reversed the panel
decision in United States v. Askew, 529 F.3d 1119 (D.C. Cir. 2008),
discussed below.
Baker & Hostetler LLP v.
Dep’t of Commerce
473 F.3d 312
2006
Authored
majority
Privacy & Records
Majority (Kavanaugh, J.), affirmed in part and reversed and remanded in part:
Remand was necessary to determine whether law firm was entitled to
attorney’s fees in FOIA case.
Dissenting in part (Henderson, J.): A law firm litigant acting through its
member lawyers may not collect attorney’s fees pursuant to FOIA’s feeshifting provisions.
CRS-50
Table 3. Concurring and Dissenting Opinions Authored by Judge Kavanaugh
Case Name
St. Francis Med. Ctr. v. Azar
Island Architectural
Woodwork, Inc. v. NLRB
Citation
Year
Role
Subject
Holding
No. 175098, 2018
U.S. App.
LEXIS
17878 (June
29, 2018)
2018
Authored
concurrence
Administrative
Law; Healthcare
Law
Majority (Katsas, J.), reversed and remanded: HHS regulation, which barred
hospitals from challenging factual reimbursement determinations made
more than three years previously, did not apply to appeals before the
Provider Reimbursement Review Board (PRRB).
892 F.3d
362
2018
Concurring (Kavanaugh, J.): In addition to not applying to PRRB appeals,
HHS’s prohibition on challenging certain prior factual determinations
was arbitrary and capricious and therefore invalid under the APA.
Authored
dissent
Labor &
Employment
Law
Majority (Pillard, J.), petition for review denied and cross-application for
enforcement granted: Substantial evidence supported NLRB’s findings that
unionized manufacturer violated the NLRA by creating nonunion shop
with substantially identical business purposes, but refusing to recognize
the union or apply the terms of the collective bargaining agreement to
the shop.
Dissenting (Kavanaugh, J.): NLRB’s determination that the nonunion shop
was an alter ego of unionized manufacturer was unreasonable, and
therefore the two companies should not be treated as a single
employer.
United States v. Brown
892 F.3d
385
2018
Authored
opinion
dissenting in
part
Criminal Law &
Procedure
Majority (per curiam), affirmed in part, vacated in part, and remanded for
resentencing: Defendants’ convictions for distribution of PCP were based
on sufficient evidence and appropriate jury instructions. However, one
co-defendant who pleaded guilty did not knowingly waive his right to
appeal, and district court’s consecutive sentence without acknowledging
that the Sentencing Guidelines recommended a concurrent sentence
was plain error. In addition, the district court failed to adequately justify
an above-Guidelines sentence for final co-defendant.
Concurring (Millett, J.): The use of acquitted conduct as a basis to increase
a defendant’s sentence under the Sentencing Guidelines, although
permitted under established circuit precedent, represented a “grave
constitutional wrong.”
CRS-51
Case Name
Citation
Year
Role
Subject
Holding
Dissenting in part (Kavanaugh, J.): Waiver of right to appeal was not
misrepresented by the district court at the plea colloquy, and therefore
the one co-defendant’s appeal of his consecutive sentence should have
been dismissed. The above-Guidelines sentence for final co-defendant
was both procedurally and substantively reasonable.
Clemente v. FBI
PHH Corp. v. CFPB
714 F. App’x
2 (denying
rehearing en
banc)
2018
881 F.3d 75
(en banc)
2018
Authored
concurrence
Privacy &
Records
Majority (per curiam), petition for rehearing en banc denied.
Concurring in the denial of rehearing en banc (Kavanaugh, J.): For the
reasons stated in Judge Kavanaugh’s concurrence in Morley v. CIA, 719
F.3d 689 (D.C. Cir. 2013), discussed below, the D.C. Circuit’s fourfactor test for awarding attorney’s fees in FOIA cases should be
reexamined by the en banc court.
Authored
dissent
Government
Operations
Majority (Pillard, J.), petition for rehearing en banc granted in part, and
remanded: Dodd-Frank Act’s provision that the Director of the CFPB
shall serve a five-year term and be removable by the President only for
“inefficiency, neglect of duty, or malfeasance in office” was consistent
with Article II of the Constitution under the reasoning of Humphrey’s
Executor v. United States, 295 U.S. 602 (1935). The three-judge panel’s
holding on the statutory issue of how the CFPB interpreted and applied
the Real Estate Settlement Procedures Act (RESPA) to plaintiff was
reinstated.
Concurring (Tatel, J.): If the en banc court considered the statutory issue,
it should find, contrary to the panel decision, that the CFPB reasonably
interpreted RESPA to impose liability.
Concurring (Wilkins, J.): The CFPB Director’s significant adjudicatory
responsibilities further undermines the separation-of-powers challenge
to the for-cause removal provision.
Concurring in the judgment (Griffith, J.): The for-cause removal provision
did not violate Article II of the Constitution because it imposes only a
CRS-52
Case Name
Citation
Year
Role
Subject
Holding
minimal restriction on the President’s removal powers, permitting
removal for ineffective policy choices.
Dissenting (Henderson, J.): CFPB’s structure violates Article II because the
President must ordinarily have unrestricted power to remove executive
officers if he is to faithfully execute the laws. Moreover, the removal
provision cannot be severed from the rest of the Consumer Financial
Protection Act, which should be invalidated in its entirety.
Dissenting (Kavanaugh, J.): CFPB’s structure violates Article II because it
vests the enormous powers of an independent agency in a single
unaccountable director, but the for-cause removal provision can be
severed from the rest of the statute.
Dissenting (Randolph, J.): In addition to the other Article II issues, the
CFPB’s order should be set aside because the administrative law judge
who presided over the hearing was an “inferior Officer” who was not
appointed properly under the Appointments Clause.
Garza v. Hargan
874 F.3d
735 (en
banc), cert.
granted and
vacated as
moot, 138 S.
Ct. 1790
(2018)
2017
Authored
dissent
Healthcare Law;
Immigration
Law
Majority (per curiam), petition for rehearing en banc granted, panel order
vacated, emergency motion for a stay denied, and remanded: The case is
remanded to the district court to enforce its temporary restraining
order permitting an unaccompanied alien minor, in the custody of the
United States after crossing the U.S. border illegally, to obtain an
abortion.
Concurring (Millett, J.): Pregnant minor’s constitutional right to an
abortion was unaffected by her custodial status or lack of legal
immigration status. The minor did not bear the burden of extracting
herself from custody to obtain a lawful abortion.
Dissenting (Henderson, J.): Alien minor who attempted to enter the
United States illegally lacks any constitutional right to an abortion
because she had not developed substantial connections with this
country such that the Due Process Clause applied to her.
Dissenting (Kavanaugh, J.): It was not an undue burden on the unlawfully
present alien minor’s right to an abortion for the government to first
CRS-53
Case Name
Citation
Year
Role
Subject
Holding
expeditiously transfer custody of the minor to an immigration sponsor,
before the minor would be permitted to make the decision to obtain an
abortion.
Note: The Supreme Court subsequently granted certiorari, vacated the
en banc order, and remanded the case with instructions to dismiss the
claim for injunctive relief as moot because the minor had already
obtained an abortion. See Azar v. Garza, 138 S. Ct. 1790 (2018).
Saad v. SEC
873 F.3d
297
2017
Authored
concurrence
Securities Law
Majority (Millett, J.), petition for review denied in part and remanded in part:
Financial Industry Regulatory Authority’s decision to permanently bar
broker-dealer from practice based on unlawful misappropriation of
funds was reasonably grounded in the record, but the case is remanded
to the SEC to determine the impact, if any, of Kokesh v. SEC, 137 S. Ct.
1635 (2017).
Concurring (Kavanaugh, J.): Remand was required because Kokesh calls
into question prior circuit precedent on SEC remedial sanctions.
Concurring dubitante in part (Millett, J.): Remand is likely unnecessary
because it is doubtful that Kokesh has any relevance to this case.
Lorenzo v. SEC
872 F.3d
578, cert.
granted, No.
17-1077,
2018 U.S.
LEXIS 3813
(June 18,
2018)
2017
Authored
dissent
Securities Law
Majority (Srinivasan, J.), petition for review granted in part, order vacated in
part, and remanded: Substantial evidence supported SEC’s determination
that investment banker committed securities fraud by sending false and
misleading emails to investors. However, liability under SEC Rule 10b5(b) was improper because the banker’s boss, not the banker himself,
had ultimate authority over the false statements.
Dissenting (Kavanaugh, J.): Banker should not be liable at all for the false
statements because they were drafted by his boss and sent at the
direction of his boss, negating the required element of a willful intent to
defraud.
Note: The Supreme Court granted a petition to review the case, No.
17-1077, 2018 U.S. LEXIS 3813 (U.S. June 18, 2018).
CRS-54
Case Name
Midwest Div.–MMC, LLC v.
NLRB
Citation
Year
Role
867 F.3d
1288
2017
Authored
opinion
concurring
in part and
dissenting in
part
Subject
Labor &
Employment
Law
Holding
Majority (Srinivasan, J.), petition for review granted in part, and order enforced
in part: Hospital did not violate the NLRA by denying nurses’ requests
for union representation during nonobligatory interviews with peerreview committee. NLRB correctly found that the hospital engaged in
unfair labor practices by denying the union’s requests for information
about the peer-review committee and maintaining a confidentiality rule
barring workers from discussing the committee’s investigations.
Concurring in part and dissenting in part (Kavanaugh, J.): Hospital did not
violate the NLRA by denying union’s requests for information about the
workings of the peer-review committee.
Ortiz-Diaz v. Dep’t of Hous. &
Urban Dev., Office of Inspector
Gen.
867 F.3d 70
2017
Authored
concurrence
Civil Rights
Law; Labor &
Employment
Law
Majority (Rogers, J.), reversed and remanded: Employer’s allegedly
discriminatory denial of a lateral transfer to a different geographical
location could constitute an adverse employment action under Title VII,
depending on the facts to be found by a jury.
Concurring in the judgment (Henderson, J.): Factual issues precluded
summary judgment because the lateral transfer program could qualify as
a “privilege” of employment.
Concurring (Rogers, J.): The en banc court should make clear that any
transfer denial based on a protected characteristic was an adverse
employment action under Title VII.
Concurring (Kavanaugh, J.): Because circuit precedent holds that
discriminatory transfers are ordinarily not actionable under Title VII, the
en banc court should resolve the uncertainty and hold that all
discriminatory transfers, or denials of transfers, are actionable.
Note: This opinion follows the sua sponte decision of the three-judge
panel to reconsider its prior decision, Ortiz-Diaz v. Dep’t. Hous. & Urban
Dev., 831 F.3d 488, 493 (D.C. Cir. 2016), discussed below, after a
petition for rehearing en banc was filed.
CRS-55
Case Name
NLRB v. CNN Am., Inc.
Citation
Year
Role
865 F.3d
740
2017
Authored
opinion
concurring
in part and
dissenting in
part
Subject
Labor &
Employment
Law
Holding
Majority (Garland, C.J.), petitions for review granted in part and denied in
part: Broadcaster, as a successor (but not joint) employer of
contractor’s unionized employees, violated provisions of the NLRA
when it replaced unionized contractor with in-house, nonunion
workforce and discriminated in hiring against union-member employees.
Concurring in part and dissenting in part (Kavanaugh, J.): Substantial
evidence did not support the NLRB’s finding that broadcaster engaged
in discriminatory hiring, and therefore broadcaster was a successor
employer under only the traditional test, which did not expose the
employer to liability for back pay.
Competitive Enter.
Inst. v. DOT
863 F.3d
911
2017
Authored
concurrence
Administrative
Law;
Transportation
Law
Majority (Randolph, J.), petition for review denied: DOT regulation
prohibiting use of electronic cigarettes (e-cigarettes) on passenger
airplanes was reasonable and nonarbitrary interpretation of statute
prohibiting on-flight smoking.
Concurring (Kavanaugh, J.): The statutory term “smoking” is best
understood to encompass both conventional and e-cigarettes, and thus
the regulation should be upheld even without affording Chevron
deference.
Dissenting (Ginsburg, J.): The Department’s e-cigarette regulation was
beyond its statutory authority because at the time of the statute’s
enactment in 1987, Congress would not have understood the word
“smoking” to encompass e-cigarettes.
Wash. All. of Tech. Workers v.
DHS
857 F.3d
907
2017
Authored
dissent
Federal Courts
& Civil
Procedure
Majority (Sentelle, J.), affirmed: In awarding attorney’s fees under the Equal
Access to Justice Act (EAJA), district court did not abuse its discretion
by awarding only partial fees attributable to the one claim on which
plaintiff succeeded.
Dissenting (Kavanaugh, J.): Attorney’s fees should not have been reduced
because the plaintiff received substantially all the relief it sought, despite
raising a number of alternative arguments.
CRS-56
Case Name
U.S. Telecom Ass’n v. FCC
Citation
Year
Role
Subject
855 F.3d
381
(denying
rehearing en
banc)
2017
Authored
dissent
Administrative
Law;
Communication
s Law; Freedom
of Speech
Holding
Majority (per curiam), petitions for rehearing en banc denied.
Concurring in the denial of rehearing en banc (Srinivasan, J.): FCC’s Open
Internet Order, commonly known as the net neutrality rule, was within
the FCC’s statutory authority and did not run afoul of the First
Amendment.
Dissenting from the denial of rehearing en banc (Brown, J.): Because the net
neutrality rule reclassified broadband Internet access to subject it to
common carrier regulation, it implicated a “major question” requiring
clear statutory authority from Congress, which is absent because the
net neutrality rule conflicts with the deregulatory structure of the
Telecommunications Act of 1996.
Dissenting from the denial of rehearing en banc (Kavanaugh, J.): FCC lacked
authority to issue the net neutrality rule because agencies may not issue
regulations with vast economic and political significance (i.e., major
rules) without clear congressional authorization. The net neutrality rule
was also invalid because it violated the First Amendment rights of
Internet Service Providers (ISPs) to exercise editorial discretion and
control over the content they carry.
United States v. Anthem, Inc.
855 F.3d
345
2017
Authored
dissent
Antitrust Law
Majority (Rogers, J.), affirmed: District court’s permanent injunction
against the merger of two of the four major national health insurance
carriers was not an abuse of discretion because the insurance carriers
failed to show extraordinary efficiencies resulting from the merger that
would offset the anticompetitive effects in markets where the two firms
compete.
Concurring (Millett, J.): Insurers’ unverifiable claims of price decreases
resulting from the merger, standing alone, could not justify a merger
with substantial anticompetitive effects.
CRS-57
Case Name
Citation
Year
Role
Subject
Holding
Dissenting (Kavanaugh, J.): Permanent injunction was based on clear
factual error because the record conclusively showed that the merger
would benefit consumers through lower provider rates.
Navajo Nation v. Dep’t of the
Interior
852 F.3d
1124
2017
Authored
concurrence
Indian Law;
Government
Operations
Majority (Sentelle, J.), reversed: Time period for the Bureau of Indian
Affairs (BIA) to act on the Tribe’s proposed funding agreement began to
run on the date that the proposal was submitted to a worker
furloughed by a government shutdown, and neither the shutdown itself
nor the Tribe’s silence equitably tolled the deadline.
Concurring (Kavanaugh, J.): Although it did not apply in this case, equitable
tolling may apply in certain government shutdown situations.
John Doe Co. v. CFPB
849 F.3d
1129
2017
Authored
dissent
Administrative
Law
Majority (per curiam), emergency motion for injunction pending appeal
denied: District court did not abuse its discretion in denying company’s
motion to preliminarily enjoin a CFPB investigation based on the nowvacated opinion in PHH Corp. v. CFPB, 839 F.3d 1 (D.C. Cir. 2016), which
found that the CFPB Director’s for-cause removal provision was
unconstitutional under Article II.
Dissenting (Kavanaugh, J.): Injunction pending appeal should be granted
because the company is likely to succeed on its claim that it is being
regulated by an unconstitutionally structured agency.
CRS-58
Case Name
Al Bahlul v. United States
Citation
Year
Role
Subject
Holding
840 F.3d
757
2016
Authored
concurrence
Military &
Veterans Law;
National
Security
Majority (per curiam), affirmed: Judgment of the U.S. Court of Military
Commission Review upholding defendant’s conviction by a military
commission for conspiracy to commit war crimes and providing material
support for terrorism was affirmed, notwithstanding the question as to
whether Congress could have constitutionally made conspiracy to
commit war crimes triable by commission.
Concurring (Henderson, J.): The concurrence incorporated by reference
an earlier dissent in Al Bahlul v. United States, 792 F.3d 1 (D.C. Cir.
2015), which maintained that the defendant forfeited his constitutional
claims by not raising them during his military commission trial and that
the court should review his challenge for plain error.
Concurring (Kavanaugh, J.): The structure, text, and original understanding
of the Constitution, along with Supreme Court precedent, long-standing
congressional practice, and deeply rooted executive branch practice
provide that Congress may establish military commissions to try
unlawful enemy combatants for conspiracy to commit war crimes, even
if conspiracy is not an offense under the international law of war.
Concurring (Millett, J.): It was unnecessary to reach the constitutional
questions raised in the claim. The conviction should be affirmed on plain
error review.
Concurring (Wilkins, J.): The particular features of the defendant’s
conviction demonstrated that he was not convicted of an inchoate
conspiracy offense. The features of his conviction have sufficient roots in
international law.
Dissenting (Rogers, Tatel, and Pillard, JJ.): Article III of the Constitution
prohibits Congress from making inchoate conspiracy a triable offense by
law-of-war military commissions.
CRS-59
Case Name
United States v. Williams
Citation
Year
Role
Subject
Holding
836 F.3d 1
2016
Authored
concurrence
Criminal Law &
Procedure;
Military &
Veterans Law
Majority (Griffith, J.), affirmed in part, reversed in part, and remanded:
Evidence at trial was sufficient to establish second-degree murder
resulting from a violent hazing incident on Air Force base, and the
prosecutor did not engage in misconduct when she accused the defense
of blaming the victim for his death. But the government’s error in stating
to the jury that the jury could not consider evidence of the victim’s
consent when determining the defendant’s state of mind substantially
prejudiced the defendant, thus requiring reversal of the conviction and
remand for new trial.
Concurring (Kavanaugh, J.): The jury did not have a correct understanding
of the relevant law due to the prosecutor’s inaccurate statement
regarding assessment of the defendant’s state of mind.
Concurring in part and dissenting in part (Henderson, J.): The government
did not incorrectly state the law, and any misstatement had little to no
effect on the jury, as the evidence in support of the defendant’s state of
mind for second-degree murder was compelling and the jury charge was
correct and measured on all accounts.
CRS-60
Case Name
Ortiz-Diaz v. Dep’t Hous. &
Urban Dev.
Citation
Year
Role
Subject
Holding
831 F.3d
488, vacated,
697 F. App’x
6 (D.C. Cir.
2017)
2016
Authored
concurrence
Civil Rights
Law; Labor &
Employment
Law
Majority (Henderson, J.), affirmed: In racial discrimination case, employer’s
denial of plaintiff’s transfer request did not constitute a “materially
adverse [employment] action.”
Concurring (Henderson, J.): The plaintiffs’ lawyer’s claim during oral
argument that, if the court were to accept the defendant’s argument,
the court’s reasoning similarly would compel the dismissal of a suit
challenging an employer’s placement of a “whites-only” sign on a water
cooler was of no relevance to the court’s “materially adverse action”
precedent.
Concurring (Kavanaugh, J.): Judge Kavanaugh joined the majority opinion
because it followed the court’s precedents, but wrote separately to
note that, in his view, the denial of a requested lateral transfer on the
basis of race is actionable under Title VII.
Dissenting (Rogers, J.): Summary judgment was inappropriate because a
reasonable jury could have found that the denial of the plaintiff’s transfer
requests adversely affected his opportunity for professional
advancement and because the reasons for the denial were “hotly
disputed.”
Note: The decision was subsequently reconsidered sua sponte by the
panel and the decision vacated in 697 F. App’x 6 (D.C. Cir. 2017).
CRS-61
Case Name
Mingo Logan Coal Co. v. EPA
Citation
Year
Role
Subject
Holding
829 F.3d
710
2016
Authored
dissent
Administrative
Law;
Environmental
Law
Majority (Henderson, J.), affirmed: EPA’s consideration of water quality
was supported by the underling statute. Moreover, the agency’s
explanation for its interpretation was adequate because, among other
things, EPA acknowledged new information that the appellant’s project
would result in unacceptable adverse effects to wildlife, describing in
detail its assessment of those effects. The project operator’s objection
to EPA’s failure to consider costs was waived.
Dissenting (Kavanaugh, J.): EPA did not consider all relevant factors when
it failed to consider costs and reliance interests before deciding to
revoke the discharge permit, and the agency did not provide a
sufficiently detailed justification of its change in position.
Int’l Union, Sec., Police and Fire
Professionals of Am. v. Faye
828 F.3d
969
2016
Authored
dissent
Labor and
Employment
Law
Majority (Tatel. J.), reversed: A provision of the Labor-Management
Reporting and Disclosure Act (LMRDA), which provided a cause of
action to union members against union agents for breach of fiduciary
duty, also provided an implied cause of action to the union against its
agent for breach of fiduciary duty. The district court erred in ruling that
it did not have subject matter jurisdiction, as whether the court had
jurisdiction was a distinct question from whether the union had a cause
of action.
Concurring (Tatel, J.): The text and structure of the LMRDA evinced
Congress’s intent to create federal rights and to allow unions to
vindicate such rights in court.
Concurring (Millett, J.): Judge Millett wrote separately to acknowledge the
strength of the dissent’s arguments and to note that, unless a union is
able to sue under the LMRDA, the Act’s enforcement scheme could
raise due process and Article III standing concerns.
Dissenting (Kavanaugh, J.): The LMRDA by its terms does not create a
private right of action in favor of unions.
CRS-62
Case Name
Wesby v. Dist. of Columbia
Citation
Year
Role
Subject
816 F.3d 96
(denying
rehearing en
banc)
2016
Authored
dissent
Criminal Law &
Procedure
Holding
Majority (per curiam), petition for rehearing en banc denied.
Concurring in denial of rehearing en banc (Pillard and Edwards, JJ.): The
defendant officers in the plaintiffs’ Fourth Amendment challenge could
not have reasonably concluded that the plaintiff-partygoers had a
culpable state of mind in regard to whether they had been legitimately
invited into the house where they were arrested and, therefore, were
not entitled to qualified immunity.
Dissenting from denial of rehearing en banc (Kavanaugh, J.): Police officers
were entitled to qualified immunity, as they were not “‘plainly
incompetent’” and did not “‘knowingly violate[]’” clearly established law.
United States v. Bell
808 F.3d
926
(denying
rehearing en
banc)
2015
Authored
concurrence
Criminal Law &
Procedure
Majority (per curiam), petitions for rehearing en banc denied.
Concurring in the denial of rehearing en banc (Kavanaugh, J.): Individual
district judges may refuse to rely on acquitted or uncharged conduct in
sentencing in the absence of a systematic change in sentencing policy by
Congress or the Sentencing Commission.
Concurring in the denial of rehearing en banc (Millett, J.): The Supreme
Court must resolve the contradictions in Sixth Amendment and
sentencing precedent that authorize judges to use uncharged or
acquitted conduct to impose higher sentences than they would absent
such consideration.
CRS-63
Case Name
Citation
Year
Role
Subject
Priests for Life v. HHS
808 F.3d 1
(denying
rehearing en
banc)
2015
Authored
dissent
Healthcare Law;
Freedom of
Religion
Holding
Majority (per curiam), denied petition for rehearing en banc.
Concurring in the denial of rehearing en banc (Pillard, J.): The judges
dissenting from the denial of the petition for rehearing en banc have
mischaracterized Supreme Court precedent. Religious adherents may
not base a claim that a federal law substantially burdens their religious
exercise on a sincere but erroneous interpretation of that law.
Dissenting from the denial of rehearing en banc (Brown, J.): The case was
worthy of en banc review because Supreme Court precedent required
the court to accept the plaintiffs’ assertion that the federal regulations
governing contraceptive coverage would compel them to perform acts
contrary to their religious beliefs. The court also should not have
accepted certain evidence purporting to show a compelling government
interest in facilitating access to contraception in the manner provided by
the regulations at issue.
Dissenting from the denial of rehearing en banc (Kavanaugh, J.): The panel
misapplied the Religious Freedom Restoration Act and controlling
Supreme Court precedent. The court should have granted en banc
review and ruled for the plaintiff religious organizations. The regulations
substantially burdened the religious organizations’ exercise of religion by
requiring them to submit a form notifying employees that they had
opted out of providing contraceptive coverage and identifying or
notifying their insurers. Although the government has a compelling
interest in facilitating access to contraception, it did not employ the
least restrictive means of furthering that interest.
Klayman v. Obama
CRS-64
805 F.3d
1148
(denying
rehearing en
banc)
2015
Authored
concurrence
National
Security
Majority (per curiam), emergency petition for rehearing en banc denied.
Concurring in the denial of rehearing en banc (Kavanaugh, J.): Judge
Kavanaugh wrote separately to express his view that the Fourth
Amendment does not bar the government’s bulk collection of telephony
metadata for national security reasons.
Case Name
Meshal v. Higgenbotham
Citation
Year
Role
Subject
Holding
804 F. 3d
417
2015
Authored
concurrence
Civil Rights
Law; National
Security
Majority (Brown, J.), affirmed: Plaintiff was unable to assert a Bivens action
under the Fourth and Fifth Amendments against FBI agents and other
U.S. officials for alleged violations committed when he was detained in
three African countries. Plaintiff’s claim implicated national security
interests and involved the extraterritorial application of Bivens.
Concurring (Kavanaugh, J.): Congress, not the courts, had authority to
decide whether to recognize a cause of action against U.S. officials for
torts allegedly committed abroad in connection with the conflict against
al Qaeda and other terrorist organizations.
Sissel v. HHS
799 F.3d
1035
(denying
rehearing en
banc)
2015
Authored
dissent
Government
Operations;
Healthcare Law;
Tax Law
Dissenting (Pillard, J.): The case should have been remanded for further
proceedings because (1) congressional action supports a constitutional
damages claim where it would not intrude on the unique disciplinary
structure of the military and where there is no comprehensive
regulation or alternative remedy; and (2) the mere recitation of foreign
policy and national security interests does not foreclose a constitutional
damages remedy where FBI agents and other U.S. officials arbitrarily
detain a U.S. citizen overseas without charges and threaten him with
death and disappearance for months.
Majority (per curiam), petition for rehearing en banc denied.
Concurring in denial of rehearing en banc (Rogers, Pillard, and Wilkins, JJ.):
The original panel opinion holding that the Patient Protection and
Affordable Care Act did not implicate the Constitution’s Origination
Clause maintained the balance of power between the two Houses of
Congress. The dissent sought to revisit Origination Clause doctrine in
ways foreclosed by Supreme Court precedent and unsupported by the
text and history of the Constitution.
Dissenting from denial of rehearing en banc (Kavanaugh, J.): The panel
opinion exempts a substantial swath of tax legislation from the
Origination Clause’s ambit, thus degrading the House’s constitutional
authority to originate revenue bills in a way contrary to congressional
practice and the text and history of the Constitution.
CRS-65
Case Name
Eley v. Dist. of Columbia
Citation
Year
Role
Subject
Holding
793 F.3d 97
2015
Authored
concurrence
Federal Courts
& Civil
Procedure
Majority (Henderson, J.), vacated and remanded: The district court abused
its discretion when it awarded the plaintiff attorney’s fees under the
Individuals
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