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-bad-acts 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.

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.

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.

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.

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.

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 Noerr-Pennington 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.

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.

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 attorney-client 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.

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.

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 tax-return 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.

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

Co-authored 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.

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.

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.

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.

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.

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.

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.

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

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.

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 penny-rate 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.

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).

Winslow v. FERC

587 F.3d 1133

2009

Authored majority

Federal Courts & Civil Procedure

Affirmed: Motion for mandatory prejudgment interest, made two-and-a-half-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.

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.

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.

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.

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.

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.

Case Name

Citation

Year

Role

Subject

Holding

FTC v. Boehringer Ingelheim Pharm., Inc.

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 reverse-payment-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.

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 ozone-depleting 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.

Johnson v. Interstate Mgmt. Co., LLC

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.

PHH Corp. v. CFPB

839 F.3d 1, vacated en banc, 881 F.3d 75 (D.C. Cir. 2018)

2017

Authored majority

Government Operations

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.

Verizon New England Inc. v. Nat'l Labor Relations Bd.

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.

Indep. Inst. v. FEC

816 F.3d 113

2016

Authored majority

Elections Law; Freedom of Speech

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."

Fla. Bankers Ass'n v. Dep't of the Treasury

799 F.3d 1065

2015

Authored majority

Tax Law

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.

In re Murray Energy Corp.

788 F.3d 330

2015

Authored majority

Administrative Law; Federal Courts & Civil Procedure

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.

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.

In re Aiken County

725 F.3d 255

2013

Authored majority

Administrative Law; Energy & Utilities Law

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.

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.

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.

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

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.

Sw. Airlines Co. v. Transp. Sec. Admin.

650 F.3d 752

2011

Authored majority

Administrative Law; Transportation law

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).

Omar v. McHugh

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.

Empresa Cubana Exportadora de Alimentos y Productos Varios v. Dep't of Treasury

638 F.3d 794

2011

Authored majority

Intellectual Property Law

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.

Nat'l Postal Mail Handlers Union v. Am. Postal Workers Union

589 F.3d 437

2010

Authored majority

Contracts Law

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.

United States v. Gardellini

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.

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.

We the People Found., Inc. v. United States

485 F.3d 140

2007

Authored majority

Freedom of Speech

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 fee-shifting provisions.

Case Name

Citation

Year

Role

Subject

Holding

St. Francis Med. Ctr. v. Azar

No. 17-5098, 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).

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.

Island Architectural Woodwork, Inc. v. NLRB

892 F.3d 362

2018

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."

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

714 F. App'x 2 (denying rehearing 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 four-factor test for awarding attorney's fees in FOIA cases should be reexamined by the en banc court.

PHH Corp. v. CFPB

881 F.3d 75 (en banc)

2018

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 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 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 10b-5(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).

Midwest Div.–MMC, LLC v. NLRB

867 F.3d 1288

2017

Authored opinion concurring in part and dissenting in part

Labor & Employment Law

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 peer-review 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.

NLRB v. CNN Am., Inc.

865 F.3d 740

2017

Authored opinion concurring in part and dissenting in part

Labor & Employment Law

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.

U.S. Telecom Ass'n v. FCC

855 F.3d 381 (denying rehearing en banc)

2017

Authored dissent

Administrative Law; Communications Law; Freedom of Speech

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.

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 now-vacated 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.

Al Bahlul v. United States

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.

United States v. Williams

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.

Ortiz-Diaz v. Dep't Hous. & Urban Dev.

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).

Mingo Logan Coal Co. v. EPA

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.

Wesby v. Dist. of Columbia

816 F.3d 96 (denying rehearing en banc)

2016

Authored dissent

Criminal Law & Procedure

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.

Priests for Life v. HHS

808 F.3d 1 (denying rehearing en banc)

2015

Authored dissent

Healthcare Law; Freedom of Religion

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

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.

Meshal v. Higgenbotham

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.

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.

Sissel v. HHS

799 F.3d 1035 (denying rehearing en banc)

2015

Authored dissent

Government Operations; Healthcare Law; Tax Law

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.

Eley v. Dist. of Columbia

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 with Disabilities Education Act (IDEA) without requiring that she justify the reasonableness of her requested rates.

Concurring (Kavanaugh, J.): Writing separately to add that the "Laffey Matrix" schedule of prevailing rates maintained by the District of Columbia's United States Attorney's Office is appropriate for use in IDEA cases.

Mexichem Specialty Resins, Inc. v. EPA

787 F.3d 544

2015

Authored dissent

Environmental Law; Administrative Law

Majority (Pillard, J.), petitions for review denied: In challenge to an EPA regulation limiting emissions of hazardous air pollutants from polyvinyl chloride (PVC) production, EPA did not functionally deny the petitioners' requests for reconsideration, as EPA is, among other things, actively gathering data to inform its decision on the reconsideration requests, and the petitioners failed to establish either that the EPA deprived them of a statutory right to a timely decision or that they will be irreparably harmed if the court awaited the outcome of EPA's reconsideration proceeding. Because there was no evidence of irreparable harm, the regulation was not stayed pending reconsideration. Several of the petitioners' challenges to the regulation were barred because they were not raised during the agency's notice-and-comment proceedings, and their preserved claims were rejected because the regulations were not arbitrary and capricious.

Dissenting in part (Kavanaugh, J.): The wastewater limits imposed by the regulation should be stayed pending judicial review under the APA, as the wastewater limits were based on bad data, and EPA is currently reconsidering them.

Morgan Drexen, Inc. v. CFPB

785 F.3d 684

2015

Authored dissent

Business & Corporate Law; Federal Courts & Civil Procedure; Government Operations

Majority (Rogers, J.), affirmed: A law firm's constitutional challenges to the independent structure of the CFPB were dismissed because the firm had an adequate remedy at law in raising these challenges as a defense to a CFPB enforcement action in a California district court. An attorney who contracted with the firm for paralegal services and was not a target of CFPB enforcement action lacked standing to sue.

Dissenting (Kavanaugh, J.): The attorney had standing even if she was not subject to enforcement action because the enforcement proceeding targeted her business model.

Ege v. DHS

784 F.3d 791

2015

Authored opinion concurring in the judgment

Federal Courts & Civil Procedure; National Security

Majority (Henderson, J.), petition for review dismissed: A foreign airline pilot lacked Article III standing to challenge his purported inclusion on the U.S. No-Fly List because the court lacked jurisdiction to issue an order binding the department of the FBI that administered the list.

Concurring in the judgment (Kavanaugh, J.): The pilot had standing to bring his claims, but his petition for review was untimely.

Fogo de Chao (Holdings) Inc. v. DHS

769 F.3d 1127

2014

Authored dissent

Administrative Law; Immigration Law

Majority (Millett, J.), reversed and remanded: The Administrative Office of Appeals within DHS failed to explain adequately its adoption of a strict bar on issuing L-1B work visas to persons who claimed specialized knowledge acquired from their family or community rather than company training.

Dissenting (Kavanaugh, J.): The agency's long-standing position that specialized knowledge cannot be acquired from one's status as a foreign national or cultural background in order to warrant the issuance of certain visas is grounded in the nation's immigration laws.

Am. Meat Inst. v. Dep't of Agric.

760 F.3d 18 (en banc)

2014

Authored opinion concurring in the judgment

Communications Law; Food & Drug Law; Freedom of Speech

Majority (Williams, J.), judgment reinstated: Federal laws and regulations requiring that certain food products contain labels disclosing their country of origin did not violate the First Amendment. Government interests other than correcting deception in the marketplace may sustain such a disclosure requirement.

Concurring in part (Rogers, J.): The court improperly conflated two separate Supreme Court precedents concerning First Amendment tests for government restrictions on commercial speech and government-compelled commercial speech.

Concurring in the judgment (Kavanaugh, J.): The First Amendment does not bar the mandatory disclosure requirements at issue. Therefore, it was appropriate to write separately to provide a detailed explanation of how to conduct the First Amendment analysis.

Dissenting (Henderson, J.): The court's opinion is wrong on the merits. Moreover, the original panel of three judges improperly discarded circuit precedent in rendering its decision.

Dissenting (Brown, J.): The government's interest in conveying factual information to the consumers in the absence of an objective related to preventing deception or ensuring health and safety cannot sustain the disclosure requirement. The court should have applied a more stringent form of First Amendment scrutiny to the labeling requirement.

Al Bahlul v. United States

767 F.3d 1 (en banc)

2014

Authored opinion concurring in the judgment in part and dissenting in part

Military & Veterans Law; National Security

Majority (Henderson, J.), affirmed in part, vacated in part, and remanded: The U.S. Court of Military Commission Review committed plain error with respect to the defendant's convictions on the charges of material support and solicitation. However, the conviction for conspiracy was not plainly erroneous, and it does not plainly violate the Ex Post Facto Clause to try a preexisting federal criminal offense by military commission.

Concurring (Henderson, J.): The court should have determined that the Ex Post Facto Clause was inapplicable to the defendant.

Concurring in the judgment in part and dissenting in part (Rogers, J.): The court should not have affirmed the conspiracy charge because inchoate conspiracy is not a violation of the international law of war. The court should not have applied the plain error standard in reviewing the defendant's convictions.

Concurring in the judgment in part and dissenting in part (Brown, J.): The court should not have applied the plain error standard in reviewing the defendant's convictions. The court should not have remanded the outstanding issues to a panel.

Concurring in the judgment in part and dissenting in part (Kavanaugh, J.): The court should not have applied the plain error standard in reviewing the defendant's convictions. The court should not have remanded the outstanding issues to a panel.

Note: The original panel decision at Hamdan v. United States, 696 F.3d 1238 (D.C. Cir. 2012) is discussed above.

White Stallion Energy Ctr., LLC v. EPA

748 F.3d 1222, judgment reversed by Michigan v. EPA,135 S. Ct. 2699 (2015)

2015

Authored opinion concurring in part and dissenting in part

Administrative Law; Environmental Law

Majority (per curiam), petitions for review denied: The EPA acted reasonably in promulgating air emissions standards for coal- and oil-fired electric utility steam generating units (EGUs), including when the EPA declined to consider the costs of regulation in determining that it was appropriate to list EGUs as sources of hazardous air pollutants.

Concurring in part and dissenting in part (Kavanaugh, J.): EPA acted unreasonably and outside of its authority when it failed to consider the costs of regulating EGUs in determining that it was appropriate to set new emissions standards.

Note: The decision was subsequently reversed and remanded by the Supreme Court in Michigan v. EPA, 135 S. Ct. 2699 (2015).

SeaWorld of Fla., LLC v. Perez

748 F.3d 1202

2014

Authored dissent

Administrative Law; Labor & Employment Law

Majority (Rogers, J.), petition for review denied: Substantial evidence supported the Occupational Safety and Health Review Commission's factual determinations that working with killer whales during a SeaWorld performance was a recognized employment hazard and that it was feasible to abate that hazard. Furthermore, the commission's decision to cite Sea World for violating the General Duty Clause of the Occupational Safety and Health Act was not arbitrary or capricious or in excess of its statutory authority.

Dissenting (Kavanaugh, J.): The Department of Labor's decision to issue the citation was arbitrary and capricious and in excess of the agency's statutory authority. The Department acted arbitrarily when it: (1) ignored administrative precedent holding that an employer's reduction or elimination of a hazard was not required when it was not feasible due to the dangerous nature of the activity; and (2) drew "illusory and arbitrary distinctions" by treating close contact with killer whales as a proper subject of regulation, but excluded tackling in the National Football League from its regulatory purview. In addition, Congress did not intend for the agency to use the General Duty Clause "to regulate and re-make some undefined swath of America's sports and entertainment" industries, and thus the agency lacked the authority to issue the citation.

Util. Air Regulatory Grp. v. EPA

744 F.3d 741

2014

Authored concurrence

Administrative Law; Environmental Law

Majority (Garland, C.J.), petitions for review denied: Several challenges to EPA's rules relating to particulate matter from fossil-fuel-fired steam generating units were not properly before the court because courts may not consider issues raised for the first time in a petition for reconsideration until the agency has acted on those objections. The filing of a petition for reconsideration with the EPA did not render the rule nonfinal for purposes of judicial review, but any objections raised in court must have been presented during the public comment period. The objections properly before the court were without merit.

Concurring (Kavanaugh, J.): The rule established by the majority regarding what issues may be heard by the court while a petition for reconsideration is pending before the agency should not be considered jurisdictional.

United States v. Duvall

740 F.3d 604 (denying rehearing en banc)

2013

Authored concurrence

Criminal Law & Procedure

Majority (per curiam), petition for rehearing en banc denied.

Concurring in the denial of en banc (Rogers, J.): The manner in which the D.C. Circuit determines which Justice's opinion, if any, of a splintered Supreme Court decision is binding precedent is governed by the en banc decision of the D.C. Circuit in King v. Palmer, 950 F.2d 771 (D.C. Cir.1991). In Freeman v. United States, 131 S. Ct. 2685 (2011), a recent Supreme Court decision discussing sentencing in plea-agreements, three separate opinions of the Supreme Court all provided mutually exclusive rationales for their conclusions. Under King, none of the opinions was controlling because there was no "common reasoning" that a majority of the justices accepted.

Concurring in the denial of rehearing en banc (Kavanaugh, J.): The panel in this case correctly treated Justice Sotomayor's opinion in Freeman as controlling because following her reasoning would most frequently result in outcomes with which a majority of Supreme Court Justices in Freeman would have agreed.

Concurring in the denial of rehearing en banc (Williams, J.): Whether a particular Justice's opinion is the "narrowest" is not easily determined where no opinion is a perfect logical subset of any other. In this case, because under either rule provided for in Freeman, some cases will fall outside of the other, and not garner the support of a majority of justices. As a result, some splintered decisions will yield no binding precedent in some situations, but this result is similar to 4-4 decisions and does not raise vertical stare decisis concerns.

Agape Church, Inc. v. FCC

738 F.3d 397

2013

Authored concurrence

Communications Law; Freedom of Speech

Majority (Edwards, J.), petition for review denied: Analog television broadcasters' claim that the Cable Act requires analog signals to be delivered to customers without the need for a converter was not supported by the text of the federal statute. Deference to FCC's interpretation of "viewability" under the Chevron framework was warranted because the statutory provision did not unambiguously address the question of converters, and allowing the use of analog-to-digital converters was reasonable given advancements in technology and availability of low-cost devices.

Concurring (Kavanaugh, J.): An earlier Supreme Court decision holding that an FCC rule requiring analog signals to be delivered directly to cable customers did not violate the First Amendment was premised on the fact that the regulation was no more burdensome than necessary to advance important governmental interest. With recent changes in technology, that FCC rule may no longer pass scrutiny, and FCC is correct to modify its rule to avoid a potential constitutional issue.

United States v. Martinez-Cruz

736 F.3d 999

2013

Authored dissent

Criminal Law & Procedure

Majority (Williams, J.), vacated and remanded: The Due Process Clause does not permit convicted persons to bear the burden of persuasion when challenging the validity of a prior guilty plea that would potentially result in a sentencing enhancement. It is permissible for the convicted person to bear the burden of production, and it appears that the appellant met that burden.

Dissenting (Kavanaugh, J.): The Supreme Court's decision in Parke v. Raley, 506 U.S. 20 (1992), strongly suggests that the Due Process Clause does not prohibit assigning the burden of proof to the defendant in a collateral attack on a prior conviction. Every other federal court of appeals had reached a similar conclusion, and the creation of a circuit split by the majority was unwarranted.

United States v. Malenya

736 F.3d 554

2013

Authored dissent

Criminal Law & Procedure

Majority (Williams, J.), vacated and remanded: The district court failed to adequately consider the defendant's liberty interests, as required by federal law, when imposing conditions for supervised release that included, among other things, restrictions relating to computer use, computer pornography, romantic relationships, and required penile plethysmograph testing.

Dissenting (Kavanaugh, J.): Most of the conditions imposed by the district court were common in cases involving sex offenders and reasonable in light of this defendant's conviction for using a website to arrange to have sexual contact with a minor. However, penile plethysmograph testing implicated significant liberty interests and required a more substantial justification.

Texas v. EPA

726 F.3d 180

2013

Authored dissent

Environmental Law; Federal Courts & Civil Procedure

Majority (Rogers, J.), dismissed: Statutory provisions of the CAA unambiguously prohibited construction or modification of a pollutant emitting facility without a permit. Prior circuit precedent had construed these provisions as unambiguously self-executing. To the extent that EPA regulations would allow construction or modification that the statutes would not, those regulations did not trump the statutory prohibitions. Therefore, challengers to EPA's greenhouse gas permitting rule did not have Article III standing because they were not injured by the rule, as the source of the prohibition on construction or modification of an emitting facility without a permit was the CAA itself.

Dissenting (Kavanaugh, J.): EPA regulations allowed a state to continue using its current implementation plan to issue permits while its implementation plan was being revised to account for a new-regulated pollutant, such as greenhouse gases. EPA's argument that these regulations were trumped by the statute was unavailing because EPA could not disclaim the validity of its own regulations in litigation without actually amending or withdrawing the regulation.

Ctr. for Biological Diversity v. EPA

722 F.3d 401

2013

Authored concurrence

Administrative Law; Environmental Law

Majority (Tatel, J.), vacated: EPA's decision to temporarily defer regulation of biogenic carbon dioxide was arbitrary and capricious. EPA's failure to regulate air pollutant pursuant to clear statutory mandate could not be justified by de minimis, one-step-at-a-time, or administrative necessity doctrines.

Concurring (Kavanaugh, J.): Binding circuit precedent held that carbon dioxide, whether biogenic or not, was subject to regulation under the CAA. However, EPA's decision to temporarily exempt biogenic carbon dioxide suggests that this precedent was wrongly decided.

Dissenting (Henderson, J.): EPA's deferral rule was justified under the pragmatic one-step-at-a-time doctrine. Alternatively, the petition should be dismissed on prudential ripeness grounds.

Huthnance v. Dist. of Columbia

722 F.3d 371

2013

Authored dissent

Civil Rights Law

Majority (Brown, J.), affirmed: Although the district court erred by tendering a "missing evidence" jury instruction at the conclusion of a police misconduct trial, that error did not prejudice the defendants.

Dissenting (Kavanaugh, J.): A new trial was necessary because the district court's erroneous jury instruction did indeed prejudice the defendants.

Gordon v. Holder

721 F.3d 638

2013

Authored opinion concurring in part and dissenting in part

Tax Law

Majority (Griffith, J.), affirmed: The district court did not abuse its discretion in issuing preliminary injunction enjoining the enforcement provisions of a federal law requiring tobacco retailers to collect state and local taxes on sales in other jurisdictions because seller must have minimum contacts with the state or local government that defines the tax. However, plaintiff did not meet his burden to obtain a preliminary injunction based on his Tenth Amendment challenge or his claim that a ban on mailing tobacco products lacks a rational basis.

Concurring in the judgment in part and dissenting in part (Kavanaugh, J.): Preliminary injunction was not warranted because plaintiff's obligation to collect state and local taxes arose from federal law, and the plaintiff clearly had sufficient contacts with the federal government to satisfy the Due Process Clause. Whether plaintiff had sufficient contacts with a state government was immaterial in the context of a federal enforcement proceeding.

Concurring in part and concurring in the judgment (Sentelle, J.): Agreeing in the result, but declining to join the majority's discussion of "gratuitous" and "novel" matters neither before the court nor necessary to the decision.

Howard v. Office of Chief Admin. Officer of U.S. House of Representatives

720 F.3d 939

2013

Authored dissent

Civil Rights Law; Government Operations; Labor & Employment Law

Majority (Edwards, J.), affirmed in part and reversed in part: The Speech or Debate Clause of the Constitution does not bar a congressional employee's claim against the Chief Administrative Officer of the U.S. House of Representatives alleging racial discrimination and retaliation, insofar as the plaintiff could rely on evidence unrelated to legislative acts to show that the employer's legislative explanation for adverse employment action was pretextual.

Dissenting (Kavanaugh, J.): A plaintiff who attempts to prove that her employer's legislative explanation of adverse action was pretextual necessarily requires employer to produce evidence of legislative activities in violation of the Speech or Debate Clause. As a result, a discrimination suit against a congressional office should be dismissed if the office's stated reason for the adverse action was the plaintiff's performance of legislative activities.

Morley v. CIA

719 F.3d 689

2013

Authored concurrence

Privacy & Records

Majority (per curiam), vacated and remanded: When denying a FOIA requester's claim for attorney's fees as a prevailing party, the district court failed to consider circuit precedent establishing that records about individuals involved in the assassination of President Kennedy serve a public benefit.

Concurring (Kavanaugh, J.): The four-factor test for attorney's fees in FOIA cases—which looks at (1) the public benefit of the information; (2) the commercial value of the information; (3) the nature of the requester's interest; and (4) the reasonableness of the agency's conduct—had no basis in the statutory text and should be reconsidered by the en banc court. Instead, attorney's fees should be based on whether the plaintiff exhibited bad faith or whether the agency's conduct was reasonable.

Chlorine Inst., Inc. v. Fed. R.R. Admin.

718 F.3d 922

2013

Authored concurrence

Federal Courts & Civil Procedure; Transportation Law

Majority (Henderson, J.), petition for review dismissed: A trade association's challenge to a regulation promulgated by the Federal Railroad Administration requiring qualified rail carriers to submit implementation plans to install positive train control systems on certain tracks was unripe for adjudication because the association had failed to establish that the regulation threatened its members with a present or imminent injury.

Concurring (Kavanaugh, J.): Although the trade association's challenge was presently unripe, it could become ripe in the future.

Comcast Cable Commc'ns, LLC v. FCC

717 F.3d 982

2013

Authored concurrence

Communications Law; Freedom of Speech

Majority (Williams, J.), petition for review granted: An FCC order requiring cable company to provide an unaffiliated sports programming network with carriage equal to the carriage it afforded its own affiliated sports programming networks was not supported by substantial evidence.

Concurring (Kavanaugh, J.): Prohibiting a cable company from discriminating against unaffiliated programming networks would violate the First Amendment unless the company possesses market power in the national video programming distribution market.

Concurring (Edwards, J.): The unaffiliated sports programming network's FCC complaint was untimely under the statute of limitations.

In re Sealed Case

716 F.3d 603

2013

Authored concurrence

Criminal Law & Procedure

Majority (Griffith, J.), appeal dismissed: The court lacked jurisdiction to adjudicate the interlocutory appeal from an order denying a motion for the return of documents seized pursuant to a grand jury investigation.

Concurring (Kavanaugh, J.): Although the court lacked jurisdiction to adjudicate this particular appeal, the court would have jurisdiction over other types of appeals presenting issues pertaining to the attorney-client privilege.

Ayissi-Etoh v. Fannie Mae

712 F.3d 572

2013

Authored concurrence

Civil Rights Law; Labor & Employment Law; Torts

Majority (per curiam), affirmed in part and reversed in part: Although the district court correctly granted summary judgment in the defendant's favor on a former employee's defamation claim against his employer, the district court erred by granting summary judgment in the employer's favor on the former employee's discrimination claims.

Concurring (Kavanaugh, J.): A single discriminatory act could be sufficient to create a hostile work environment under federal anti-discrimination laws if that act was sufficiently severe.

Moore v. Hartman

704 F.3d 1003

2013

Authored dissent

Civil Rights Law; Criminal Law & Procedure

Majority (per curiam), remanded: A recent Supreme Court decision, Reichle v. Howards, 566 U.S. 658 (2012), holding that defendants in a First Amendment retaliatory arrest suit were entitled to qualified immunity did not require reconsideration of D.C. Circuit precedent holding that defendants in a retaliatory prosecution claim in the D.C. Circuit were not entitled to qualified immunity, because retaliatory arrest and retaliatory prosecution are distinct violations.

Dissenting (Kavanaugh, J.): In its opinion, the Supreme Court characterized First Amendment law on retaliatory prosecutions as "not clear." Therefore, the defendants could not have violated "clearly established" First Amendment law and were entitled to qualified immunity.

Grocery Mfrs. Ass'n v. EPA

704 F.3d 1005 (denying rehearing en banc)

2013

Authored dissent

Environmental Law; Federal Courts & Civil Procedure

Majority (per curiam), petitions for rehearing en banc denied.

Dissenting from the denial of rehearing en banc (Kavanaugh, J.): The D.C. Circuit panel incorrectly held that food and petroleum industry groups lacked Article III standing and prudential standing to challenge an EPA waiver that would require petroleum producers to refine and sell blend of gasoline and ethanol.

Note: The original panel decision, 693 F.3d 169 (D.C. Cir. 2012), is discussed below.

Rollins v. Wackenhut Servs., Inc.

703 F.3d 122

2012

Authored concurrence

Torts

Majority (Rogers, J.), affirmed: The mother of a decedent who committed suicide using a gun provided by his employer after taking an antipsychotic drug failed to state a viable tort claim against either the decedent's employer or the pharmaceutical companies who manufactured and distributed the drug.

Concurring (Kavanaugh, J.): The district court properly dismissed the plaintiff's claims with prejudice to refiling, as opposed to without prejudice.

Coal. for Responsible Regulation, Inc. v. EPA

Nos. 09-1322 et al., 2012 U.S. App. LEXIS 25997 (Dec. 20, 2012) (denying rehearing en banc)

2012

Authored dissent

Administrative Law; Environmental Law

Majority (per curiam), petitions for rehearing en banc denied.

Concurring in the denial for rehearing en banc (Sentelle, C.J., Rogers, J., Tatel, J.): Three-judge panel correctly concluded that EPA's greenhouse-gas-related rules comported with the CAA and were not arbitrary or capricious.

Dissenting from the denial for rehearing en banc (Brown, J.): Because the panel incorrectly concluded that Supreme Court precedent dictates that EPA has authority to regulate greenhouse gases in its Prevention of Significant Deterioration Program, the panel decision should be reheard en banc.

Dissenting from the denial for rehearing en banc (Kavanaugh, J.): Case should be reheard en banc because the panel incorrectly concluded that EPA's interpretation of the term "air pollutants" as including greenhouse gases in the context of the Prevention of Significant Deterioration Program was not grounded in statute and was legally impermissible.

Note: The Supreme Court reversed the original panel's decision in part in Utility Air Regulatory Grp. v. EPA, 134 S. Ct. 2427 (2014).

United States v. Mohammed

693 F.3d 192

2012

Authored opinion concurring in part and concurring in the judgment

Criminal Law & Procedure

Majority (Griffith, J.), affirmed in part and remanded in part: Trial court did not err in admitting defendant's statements made during interrogation at Jalalabad airfield in Afghanistan into evidence. The trial court correctly rejected defendant's challenges to his conviction under the narcoterrorism statute (21 U.S.C. § 960a). But defendant raised a colorable claim of ineffective assistance of counsel that required additional development in the district court.

Concurring in part and concurring in the judgment (Kavanaugh, J.): Because ineffective assistance of counsel claims are best explored in collateral proceedings under 28 U.S.C. § 2255, it was unnecessary for the majority to include a detailed discussion of the claim in its opinion.

South Carolina v. United States

No. 12-203, 2012 U.S. Dist. LEXIS 188558 (D.D.C. Aug. 3, 2012)

2012

Authored opinion dissenting in part

(district panel)

Federal Courts & Civil Procedure

Majority (per curiam): Certain documents relating to draft legislation were not protected by the attorney-client privilege because they primarily concerned political and strategic issues rather than legal advice.

Dissenting in part (Kavanaugh, J.): The attorney-client privilege protected the documents because the privilege protects attorneys when they research, draft, and negotiate legislation.

Grocery Mfrs. Ass'n v. EPA

693 F.3d 169

2012

Authored dissent

Environmental Law; Federal Courts & Civil Procedure

Majority (Sentelle, C.J.), dismissed. Groups representing engine manufacturers and petroleum companies did not have Article III standing because their alleged harm would not be caused by the challenged EPA waiver authorizing the use of a blend of gasoline and ethanol. Whether or not the groups representing the food industry had established injury or causation was immaterial because they were not within the "zone of interests" of the statute required for prudential standing.

Dissenting (Kavanaugh, J.): The food and petroleum industry groups adequately alleged facts to meet Article III and prudential standing requirements to challenge the EPA waiver. On the merits, the EPA waiver exceeded the agency's statutory authority.

Note: The D.C. Circuit's order declining to rehear the case en banc, 704 F.3d 1005 (D.C. Cir. 2013), is discussed above.

Miller v. Clinton

687 F.3d 1332

2012

Authored dissent

Government Operations; Labor & Employment Law

Majority (Garland, J.), reversed and remanded: The State Department Basic Authorities Act did not abrogate the Age Discrimination in Employment Act's prohibition against personnel actions that discriminate on the basis of age.

Dissenting (Kavanaugh, J.): A provision in the State Department Basic Authorities Act authorizing the State Department to contract with American workers in foreign locations "without regard" to "statutory provisions" relating to the "performance of contracts and performance of work in the United States" authorized the State Department to impose a mandatory retirement age of 65.

In re Aiken Cty.

No. 11-1271, 2012 WL 3140360, mandamus granted, 725 F.3d 255 (D.C. Cir. 2013)

2012

Authored concurrence

Energy & Utilities Law; Environmental Law

Majority (per curiam), petition for writ of mandamus held in abeyance: Petition for writ of mandamus requiring the Nuclear Regulatory Commission to act on a Department of Energy application to store nuclear waste at Yucca Mountain was held in abeyance.

Concurring (Kavanaugh, J.): The case should be held in abeyance in light of (1) the Nuclear Regulatory Commission's position that it did not have sufficient appropriated funds to complete action on the license application; (2) the then-pending appropriations decisions being made in Congress; and (3) the practical considerations to be taken into consideration in the equitable remedy of mandamus,.

Dissenting (Randolph, J.): The Nuclear Regulatory Commission disregarded a statutory mandate to consider the application at issue, and the remedy for its violation should not be held in abeyance based on the possibility that Congress could take action in the future.

Note: The D.C. Circuit subsequently granted mandamus at 725 F.3d 255 (D.C. Cir. 2013), discussed below.

United States v. Burwell

690 F.3d 500 (en banc)

2012

Authored dissent

Criminal Law & Procedure

Majority (Brown, J.), affirmed: Federal law imposing a mandatory 30-year sentence for anyone who carries a machine gun while committing a crime of violence did not require a defendant to have known the weapon he was carrying was capable of firing automatically.

Concurring (Sentelle, C.J.): Because the question presented is "exceedingly close" and difficult to resolve, the majority was correct to rely on existing precedent, but the majority's approach risked criminalizing a defendant's action for facts for which the defendant was unaware.

Concurring (Henderson, J.): The petition for en banc review should have been summarily denied because existing precedent resolved the legal question presented and because the case did not present "a question of exceptional importance."

Dissenting (Rogers, J.): Existing precedent did not control the case, and the severe additional punishment mandated by the statute at issue should be read to require proof of the defendant's knowledge that the firearm was capable of firing automatically.

Dissenting (Kavanaugh, J.): The presumption of a mens rea requirement should have applied to each element of the offense, and the automatic character of the gun was an element of the crime at issue.

Rattigan v. Holder

689 F.3d 764

2012

Authored dissent

Civil Rights Law; Government Operations; National Security

Majority (Tatel, J.), vacated and remanded: A federal employee could bring a claim for retaliation under Title VII based on a report or referral to the FBI concerning the employee's eligibility for a security clearance, but only to the extent that the report or referral was knowingly false.

Dissenting (Kavanaugh, J.): Under Supreme Court precedent, federal agencies' security clearance decisions, including reports or referrals to the FBI, were not judicially reviewable.

Note: The panel's prior opinion at 643 F.3d 975 (D.C. Cir. 2011) is discussed below.

Taylor v. Reilly

685 F.3d 1110

2012

Authored concurrence

Administrative Law; Civil Rights Law

Majority (Garland, J.), affirmed: U.S. Parole Commission's application of parole regulations did not violate any clearly established right under the Ex Post Facto Clause of which a reasonable official would have known at the time of the hearing, and therefore qualified immunity applied and mandated dismissal of the plaintiff's claims for damages.

Concurring (Kavanaugh, J.): Although the U.S. government was entitled to qualified immunity under the facts of the case, U.S. Parole Commissioners were executive branch officials removable at will by the President and were, therefore, not entitled to absolute immunity like judges or agency adjudicators.

Angellino v. Royal Family Al-Saud

681 F.3d 463, amended and superseded by 688 F.3d 771 (D.C. Cir. 2012)

2012

Authored dissent

Federal Courts & Civil Procedure

Majority (Henderson, J.), reversed and remanded: Breach of contract complaint against Saudi royal family for nonpayment for items shipped to Kingdom of Saudi Arabia and members of the royal family did not warrant dismissal for failure to prosecute based on lack of service of process under the Foreign Sovereign Immunities Act (FSIA) because the pro se plaintiff had a reasonable probability of effecting service, and the plaintiff's inability to effect service prior to dismissal was not the result of inactivity.

Dissenting (Kavanaugh, J.): Plaintiff repeatedly failed to take steps necessary to effect service, and therefore there was no abuse of discretion in the district court's decision to dismiss the case.

Note: The panel's original published decision was amended and superseded and republished as 688 F.3d 771 (D.C. Cir. 2012), but no significant changes were made to the majority's or dissent's substantive legal conclusions.

Nat'l Fed'n of Fed. Emps.-IAM v. Vilsack

681 F.3d 483

2012

Authored dissent

Civil Rights Law; Labor & Employment Law

Majority (Rogers, J.), reversed and remanded: In a Fourth Amendment challenge by a labor union to a policy expanding random drug testing to incumbent U.S. Forest Service employees who worked with at-risk youth in residential Job Corps Civilian Conservation Centers, U.S. government did not demonstrate sufficient "special needs" that would render the requirement of individualized suspicion of drug use impractical.

Dissenting (Kavanaugh, J.): Applying the fact-specific balancing test set forth in relevant Fourth Amendment precedent, the government's interest in ensuring a drug-free work place outweighed the infringement on individual privacy associated with the drug testing program.

Hall v. Sebelius

No. 11-5076, 2012 U.S. App. LEXIS 10832 (May 30, 2012) (denying panel rehearing)

2012

Authored concurrence

Healthcare Law; Pensions & Benefits Law

Majority (per curiam), petition for panel rehearing denied.

Concurring in the denial of panel rehearing (Henderson, J.): Although the plaintiffs' petition for panel rehearing was without merit, the plaintiffs' confusion regarding the court's holding arose from the court's failure to address the central issue in the case: whether the Social Security Administration is authorized to penalize an individual who declines Medicare, Part A coverage by requiring him to forfeit and repay Social Security benefits.

Concurring in the denial of panel rehearing (Kavanaugh, J.): Although no one is forced to accept Medicare Part A benefits, the court was powerless to review the practices of plaintiffs' private health insurance providers who curtailed plaintiffs' private coverage because the plaintiffs were eligible for Medicare, Part A.

Heller v. Dist. of Columbia

670 F.3d 1244

2011

Authored dissent

Firearms Law

Majority (Ginsburg, J.), affirmed in part, vacated in part, and remanded: District of Columbia possessed statutory authority under the D.C. Home Rule Act to regulate firearms. The basic requirement to register handguns had a long history in American law and therefore did not impinge upon Second Amendment rights. Other challenged D.C. firearm registration laws were novel, impacted Second Amendment rights, and were therefore subject to intermediate scrutiny. The record was not complete as to whether the District of Columbia's novel firearm registration requirements survived intermediate scrutiny, and the District's bans on "assault weapons" and the possession of magazines capable of holding more than ten rounds of ammunition survived intermediate scrutiny.

Dissenting (Kavanaugh, J.): Courts should assess gun bans and regulations based on the Constitution's text, history, and tradition rather than by a balancing test, such as strict or intermediate scrutiny. The District of Columbia's requirement for registration of all lawfully possessed guns and its ban on most semi-automatic rifles violated the Second Amendment.

Belize Soc. Dev. Ltd. v. Gov't of Belize

668 F.3d 724

2012

Authored dissent

Contracts Law; International Law

Majority (Rogers, J.), remanded: In a petition to confirm and enforce a foreign arbitration award against the Government of Belize, the district court exceeded the proper exercise of its statutory authority under the Federal Arbitration Act and the Convention on the Recognition and Enforcement of Foreign Arbitral Awards by entering an order staying the proceedings pending the outcome of related litigation in Belize, and, although the stay was not a final, appealable order, the plaintiff satisfied standards for mandamus relief.

Dissenting (Kavanaugh, J.): The plaintiff did not satisfy the standards for the "extraordinary" remedy of mandamus because the district court's stay order was only temporary and originally was unopposed.

Seven-Sky v. Holder

661 F.3d 1, abrogated by Nat'l Fed'n of Indep. Bus. v. Sebelius, 567 U.S. 519 (2012)

2011

Authored dissent

Healthcare Law

Majority (Silberman, J.), affirmed: Congress possessed the power to enact the "individual mandate" provision in the Patient Protection and Affordable Care Act (ACA) pursuant to its Commerce Clause powers, and the Anti-Injunction Act did not deprive the court of jurisdiction to review the individual mandate's constitutionality prior to enforcement because the Anti-Injunction Act's reference to "any tax" did not include the ACA's "penalty" imposed for failure to comply with the individual mandate.

Concurring (Edwards, J.): While Congress's authority to legislate under the Commerce Clause is not without limits, the power to regulate interstate markets does not threaten to eliminate the line between national regulations and local regulations.

Dissenting as to jurisdiction (Kavanaugh, J.): The Anti-Injunction Act deprived the court of jurisdiction prior to enforcement of the individual mandate because the plaintiffs' constitutional challenge, if successful, would prevent the IRS from assessing or collecting tax penalties from citizens who do not have health insurance as required by the individual mandate.

Note: The decision was subsequently abrogated by the Supreme Court in Nat'l Fed'n of Indep. Bus. v. Sebelius, 567 U.S. 519 (2012).

Ne. Hosp. Corp. v. Sebelius

657 F.3d 1

2011

Authored opinion concurring in the judgment

Administrative Law; Healthcare Law

Majority (Griffith, J.), affirmed: Although the relevant federal statute did not unambiguously foreclose the HHS Secretary's interpretation of the proper methodology for calculating certain Medicare reimbursement rates, the change in methodology altered the past legal consequences of past actions and, therefore, violated the rule against retroactive rulemaking.

Concurring in the judgment (Kavanaugh, J.): The HHS Secretary's interpretation did not comport with the plain language of the Medicare statute.

Stephens v. U.S. Airways Grp., Inc.

644 F.3d 437

2011

Authored opinion concurring in the judgment

Pensions & Benefits Law

Majority (Brown, J.), affirmed in part and reversed in part: Retired pilots at U.S. Airways were entitled to receive interest earned on their retirement accounts during the 45-day period between their retirement and receipt of the lump-sum payment of their account under ERISA because the 45-day period was not a "reasonable delay" as that term is used in IRS regulations, but the pilots were not entitled to receive their attorney's fees incurred in the litigation.

Concurring in the judgment (Kavanaugh, J.): The pilots were entitled to interest on the full 45-day period regardless of whether the delay was reasonable because the IRS regulation authorizing reasonable administrative delays does not impact the ERISA requirement at issue.

Dissenting in part (Henderson, J.): The plaintiff-pilots failed to carry their burden to demonstrate that the 45-day delay was unreasonable and, therefore, were not entitled to interest under ERISA and applicable IRS regulations.

Doe v. Exxon Mobil Corp.

654 F.3d 11, vacated by 527 F. App'x 7 (D.C. Cir. 2013)

2011

Authored opinion dissenting in part

Federal Courts & Civil Procedure; International Law; Torts

Majority (Rogers, J.), affirmed in part, reversed in part, and remanded: Aiding and abetting is well established under the Alien Tort Statute (ATS), and neither the text, history, nor purpose of the ATS supported corporate immunity for torts based on heinous conduct allegedly committed by its agents in violation of the law of nations. The Torture Victim Protection Act did not apply to the tort claims alleged by the eleven Indonesian plaintiffs against Exxon. Nevertheless, those plaintiffs had prudential standing to bring their nonfederal claims of assault, battery, and negligence against the company, subject to Indonesian law.

Dissenting in part (Kavanaugh, J.): The plaintiffs' ATS claims should have been dismissed either because: (1) the ATS does not apply to conduct that occurred in foreign nations; (2) the ATS does not apply to claims against corporations; (3) allowing plaintiffs' claims of torture and extrajudicial killings to have gone forward would have been incongruous with the TVPA; or (4) the Executive Branch made clear that such ATS claims would harm the United States' relationship with Indonesia, justifying dismissal pursuant to Sosa v. Alvarez–Machain, 542 U.S. 692 (2004). r

Note: The panel vacated its judgment in 527 F. App'x 7 (D.C. Cir. 2013) in light of intervening changes in governing law resulting from the Supreme Court's ruling in Kiobel v. Royal Dutch Petroleum Co., 133 S. Ct. 1659 (2013) concerning the extraterritorial reach of the ATS.

Cohen v. United States

650 F.3d 717 (en banc)

2011

Authored dissent

Administrative Law; Tax Law

Majority (Brown, J.), reversed and remanded: The Anti-Injunction Act (AIA) did not bar a putative class action by taxpayers seeking to challenge the procedure established by the IRS to refund excise taxes erroneously collected for long-distance telephone service. Nor did the Declaratory Judgment Act raise a bar to the suit because that Act's exception for any suit "with respect to Federal taxes" was coterminous with the AIA. No adequate remedy at law existed and so equitable relief was available under the APA. And the suit was not unripe because it was a "pre-enforcement" action.

Dissenting (Kavanaugh, J.): The APA barred the taxpayers' suit because they had an adequate alternative judicial remedy through tax refund suits. Alternatively, the ripeness doctrine required plaintiffs to file refund claims with the IRS before bringing suit to challenge the refund procedure.

In re Aiken Cty.

645 F.3d 428

2011

Authored concurrence

Administrative Law; Energy & Utilities Law

Majority (Sentelle, C.J.), petitions dismissed: Petitions seeking review of and relief from two "determinations" made by the Department of Energy (DOE) to (1) withdraw its application to the Nuclear Regulatory Commission (NRC) for a license to construct a permanent nuclear waste repository at Yucca Mountain and (2) abandon development of that repository were neither ripe for review nor justiciable by the court.

Concurring (Brown, J.): The NRC arguably abdicated its statutory responsibility under the Nuclear Waste Policy Act by failing to act on the DOE's application for a license.

Concurring (Kavanaugh, J.): It was unusual that an independent agency—the NRC—had the final word within the executive branch on this issue and not the President. As a result, this case provided "a dramatic illustration of the continuing significance and implications of" Humphrey's Executor v. United States, 295 U.S. 602 (1935). Even though Humphrey's Executor remains "an entrenched Supreme Court precedent, protected by stare decisis," "the fact that courts do and must accept Humphrey's Executor d[id] not require ignoring the issues of accountability, liberty, and government effectiveness raised by independent agencies."

Rattigan v. Holder

643 F.3d 975, reh'g granted, judgment vacated by No. 10-5014, 2011 U.S. App. LEXIS 18852 (Sept. 13, 2011)

2011

Authored dissent

Labor & Employment Law; National Security

Majority (Tatel, J.), judgment vacated and remanded: An FBI agent's retaliation claim under Title VII was justiciable despite arising from a security clearance investigation that would otherwise have been unreviewable under Department of Navy v. Egan, 484 U.S. 518 (1988), because Egan's unreviewability holding reached only security-clearance decisions made by agency employees who initiate investigations or grant, deny, or revoke clearances.

Dissenting (Kavanaugh, J.): The majority's "slicing and dicing of the security clearance process into reviewable and unreviewable portions" had no basis in Egan, and failed to "reflect the essential role that the reporting of security risks plays in the maintenance of national security." Because the plaintiff's suit required the jury to second-guess the FBI's security clearance decision, it should have been dismissed under Egan.

Note: The D.C. Circuit granted the appellant's petition for panel rehearing at No. 10-5014, 2011 U.S. App. LEXIS 18852 (Sept. 13, 2011) (D.C. Cir. Sept. 13, 2011). The panel's subsequent opinion at 689 F.3d 764 (D.C. Cir. 2012) is discussed above.

Roth v. Dep't of Justice

642 F.3d 1161

2011

Authored opinion concurring in part and dissenting in part

Privacy & Records

Majority (Tatel, J.), affirmed in part, reversed in part, and remanded: Under National Archives & Records Admin. v. Favish, 541 U.S. 157 (2004), the public had an interest in knowing whether the FBI was withholding information that could corroborate a death-row inmate's claim of innocence, and that interest outweighed any privacy interests that the three individuals named in the relevant FBI files may have had in not having the FBI disclose whether the agency had information that would have linked them to the inmate's crimes.

Concurring in part and dissenting in part (Kavanaugh, J.): FOIA ordinarily is not a proper tool for the public to obtain private information from law enforcement files relating to a criminal prosecution when disclosure would infringe the privacy interests of third parties. Although the inmate claimed that the requested documents would have shown that the federal government impermissibly withheld exculpatory information relevant to his state criminal trial, any claim was adequately addressed in the inmate's criminal and habeas proceedings and did not suffice to override the privacy interests of the individuals named in the law enforcement files.

Mahoney v. Doe

642 F.3d 1112

2011

Authored concurrence

Freedom of Religion; Freedom of Speech

Majority (Brown, J.), affirmed: A D.C. statute prohibiting a demonstrator from chalking the street in front of the White House did not violate the First Amendment, facially or as applied, because the statute was a content-neutral regulation that was narrowly tailored to achieve the government's significant interest in controlling the street's appearance and left open alternative channels of communication. Nor did the statute substantially burden the demonstrator's expression of his religious views in violation of the Religious Freedom Restoration Act.

Concurring (Kavanaugh, J.): The government applied a restriction on defacement in a content- and viewpoint-neutral way, leaving the plaintiffs with "no serious First Amendment objection."

Koretoff v. Vilsack

No. 09-5286, 2010 U.S. App. LEXIS 25409 (Dec. 13, 2010)

2010

Authored concurrence

Administrative Law; Food & Drug Law

Majority (per curiam), petition for panel rehearing denied.

Concurring in denial of panel rehearing (Henderson, J.): The government simply repeated the same unavailing argument that producers are generally precluded from bringing an action under the Agricultural Marketing Agreement Act (AMAA) subject to an exception for a producer litigating a "definite" and "personal" right.

Concurring in denial of panel rehearing (Kavanaugh, J.): The producers had standing because the challenged marketing orders directly thwarted the producers' ability to sell their products and thus significantly affected their livelihoods. It would have been especially odd to find that the AMAA, which was enacted to protect farmers, precluded them from challenging unlawful agency orders that directly affected their ability to sell their products.

United States v. Jones

625 F.3d 766 (denying rehearing en banc)

2010

Authored dissent

Criminal Law & Procedure

Majority (per curiam), petition for rehearing en banc denied.

Concurring in denial of rehearing en banc (Ginsburg, Tatel, and Griffith, JJ.): The panel did not decide whether, absent a warrant, either reasonable suspicion or probable cause would have sufficed to render lawful the use of a global positioning system (GPS) device to track the public movements of a suspect for approximately four weeks. Nor did the panel's decision call into question common and important police practices, such as visual or photographic surveillance of public places.

Dissenting from denial of rehearing en banc (Sentelle, C.J.): The panel's conclusion that the warrantless use of a GPS device constituted an unreasonable search under the Fourth Amendment was inconsistent with every other federal circuit to have considered the question, as well as Supreme Court precedent.

Dissenting from denial of rehearing en banc (Kavanaugh, J.): The en banc court should have reconsidered the panel's novel aggregation approach to Fourth Amendment searches, as well as whether the police, by touching and manipulating the outside of the defendant's car to install the GPS tracking device, physically encroached "within a constitutionally protected area."

Al-Bihani v. Obama

619 F.3d 1(denying rehearing en banc)

2010

Authored concurrence

International Law; National Security

Majority (per curiam), petition for rehearing en banc denied.

Concurring in the denial of rehearing en banc (Sentelle, C.J., and Ginsburg, Henderson, Rogers, Tatel, Garland, and Griffith, JJ.): There was no need for the en banc court to determine the role of international law-of-war principles in interpreting the AUMF because that question was unnecessary to the disposition of the case on the merits.

Concurring in the denial of rehearing en banc (Brown, J.): The other concurrences denying rehearing en banc served only to muddy the earlier panel decision's clear holding that international law as a whole does not limit the AUMF's grant of war powers.

Concurring in the denial of rehearing en banc (Kavanaugh, J.): The petition raised two fundamental questions—(1) whether international-law norms are automatically a part of domestic U.S. law, and (2) if not, whether the 2001 AUMF incorporates international-law principles as judicially enforceable limits on the President's wartime authority under the AUMF. The answer to both questions was no. The decision in the first instance whether to incorporate international-law norms into domestic U.S. law belongs to the political branches, and Congress did not incorporate any such norms in enacting the AUMF. The appellant's request that the court incorporate them on its own would therefore have "contravene[d] bedrock tenets of judicial restraint and separation of powers."

Concurring in the denial of rehearing en banc (Williams, J.): The only serious claim in the petition for rehearing was that the panel improperly failed to consider the impact of international law on the President's authority under the AUMF; but as the appellant's detention was otherwise plainly lawful there was no need to address this issue in general terms. Although Judge Kavanaugh expressed legitimate concerns about "using gauzy notions of international law to rein in the executive's conduct of military options," the plurality in Hamdi v. Rumsfeld, 542 U.S. 507 (2004), implicitly sanctioned the use of international law as an interpretive tool, and in Boudmediene v. Bush, 553 U.S. 723 (2008), the Supreme Court also made clear that Article III courts have a duty to monitor and to a degree supervise the battlefield conduct of the U.S. military.

Howmet Corp. v. EPA

614 F.3d 544

2010

Authored dissent

Administrative Law; Environmental Law

Majority (Brown, J.), affirmed: The word "purpose" as used in the hazardous waste regulations' definition of "spent material" under the Resource Conservation and Recovery Act (RCRA) was ambiguous, and the EPA provided a reasonable interpretation of that term, entitling it to substantial deference. The EPA also provided sufficient notice of its interpretation, as required by due process.