And here is a list of his concurrences:
• Saint Francis Med. Ctr. v. Azar, ___ F.3d ___ (D.C. Cir. 2018) (“The Court agrees with the hospitals that HHS’s 2013 regulation applies only to reopenings, not to appeals. I add this concurring opinion to also express my agreement with the hospitals’ broader argument that the 2013 regulation is arbitrary and capricious, and therefore should be vacated. … Indeed, it would seem to be the very definition of arbitrary and capricious for HHS to knowingly use false facts when calculating hospital reimbursements. That is particularly so when those erroneous facts cost hospitals hundreds of millions of dollars. That is real money.”).
• Clemente v. FBI, 714 Fed. App’x 2 (D.C. Cir. 2018) (arguing that the court’s four-factor test for awarding attorney’s fees in FOIA cases should be jettisoned).
• Saad v. SEC, 7873 F.3d 297 (D.C. Cir. 2017) (“Our precedents say that the SEC may approve expulsion or suspension of a securities broker as a remedy, but not as a penalty. … [A]s a three-judge panel, we ordinarily must stick with our precedents. But here, the Supreme Court’s recent decision in Kokesh v. SEC, means that we can no longer characterize an expulsion or suspension as remedial. After the Supreme Court’s decision in Kokesh, in other words, our precedents characterizing expulsions or suspensions as remedial are no longer good law.”).
• Ortiz-Diaz v. U.S. Dep’t of Housing & Urban Dev. , 867 F.3d 70 (D.C. Cir. 2017) (“All discriminatory transfers (and discriminatory denials of requested transfers) are actionable under Title VII. As I see it, transferring an employee because of the employee’s race (or denying an employee’s requested transfer because of the employee’s race) plainly constitutes discrimination with respect to ‘compensation, terms, conditions, or privileges of employment’ in violation of Title VII.”).
• Competitive Enter. Inst. v. U.S. Dep’t of Transp. , 863 F.3d 911 (D.C. Cir. 2017) (“Even without affording Chevron deference to the Department’s interpretation of the statute, I would still reach the same result in this case. In my view, although it is a close call, the better interpretation of the term ‘smoking’ in this statute covers e-cigarettes as well as conventional tobacco cigarettes.”).
• Navajo v. U.S. Dep’t of the Interior, 852 F.3d 1124 (D.C. 2017) (adding that even though the doctrine does not apply to the facts in this case, “equitable tolling may apply in certain government shutdown situations.”).
• Bahlul v. United States, 840 F.3d 757 (D.C. 2016) (“Put simply, the argument advanced by Bahlul and the joint dissent does not comport with the Constitution’s structure. The Constitution does not give foreign nations (acting through the international law of war or otherwise) a de facto veto over Congress’s determination of which war crimes may be tried by U.S. military commissions.”) [He was joined by Judges Brown and Griffith.]
• United States v. Williams, 836 F.3d 1 (D.C. Cir. 2016) (“In a criminal appeal where a mens rea-related jury instruction issue may have made a difference to the conviction and sentence, it is critically important to ensure that the jury had a correct understanding of the relevant law.”).
• Ortiz-Diaz v. U.S. Dep’t. of Housing & Urban Dev., 831 F.3d 488 (D.C. Cir. 2016) (“Our cases hold that lateral transfers to different positions or posts with the same pay and benefits are ordinarily not changes in the “terms, conditions, or privileges” of employment. I write this concurrence simply to note my skepticism about those cases.”).
• United States v. Bell, 808 F.3d 926 (per curiam) (D.C. Cir. 2015) (“I share Judge Millett’s overarching concern about the use of acquitted conduct at sentencing, as I have written before. Of course, resolving that concern as a constitutional matter would likely require a significant revamp of criminal sentencing jurisprudence.”).
• Meshal v. Higgenbotham, 804 F.3d 417 (D.C. Cir. 2015) (explaining that Congress, not the Judiciary, “decides whether to recognize a cause of action against U.S. officials for torts they allegedly committed abroad in connection with the war against al Qaeda”).
• Eley v. District of Columbia, 793 F.3d 97 (D.C. Cir. 2015) (“I would simply add that, in my view, the United States Attorney’s Office Laffey matrix [for justifying the reasonableness of counsel’s rates] is appropriate for [Individuals with Disabilities Education Act] cases.”).
• Ege v. U.S. Dep’t. of Homeland Sec., 784 F.3d 791 (D.C. Cir. 2015) (“To begin with, both Ege and the Government agree that Ege has standing to bring this suit against TSA. I likewise agree. The majority opinion nonetheless has sua sponte denied standing to Ege. According to the majority opinion, Ege’s complaint is not redressable by the Court because TSA could not comply with a court order that directed the agency to allow Ege to board or pilot a plane. I frankly do not understand that.”).
• Am. Meat Inst. v. U.S. Dep’t. of Agri., 760 F.3d 18 (D.C. Cir. 2014) (“[O]ne wrinkle in this case is whether the Government has actually asserted an interest in supporting American farmers and ranchers …. Whether the Government has asserted such an interest matters because Central Hudson requires that the Government articulate the interests it seeks to advance. And the Executive Branch has refrained during this litigation from expressly articulating its clear interest in supporting American farmers and ranchers in order to justify this law, apparently because of the international repercussions that might ensue. But the interest here is obvious, even if unarticulated by the Executive Branch for reasons of international comity. And more to the point for Central Hudson purposes, Members of Congress did articulate the interest in supporting American farmers and ranchers when Congress enacted this country-of-origin labeling law. And Congress’s articulation of the interest suffices under Central Hudson.”).
• Utility Air Reg. Grp. v. EPA, 744 F.3d 791 (D.C. Cir. 2014) (“Although we do not need to address the question in this case, in an appropriate case where it makes a difference, we may want to ensure that our case law on the jurisdictional status of this particular exhaustion/finality rule has kept pace with the Supreme Court’s case law on when a rule should be considered jurisdictional.”).
• Agape Church, Inc. v. FCC, 738 F.3d 397 (D.C. Cir. 2013) (“I add this brief separate opinion simply to note that the FCC also invoked the principle of constitutional avoidance to support its result here. In my view, the Commission was right to perceive a serious First Amendment problem with the Viewability Rule.”).
• United States v. Duvall, 740 F.3d 604 (per curiam) (D.C. Cir. 2013) (concurring in the denial of rehearing en banc and arguing that vertical stare decisis requires waiting for an en banc petition to overturn a previous case).
• Ctr. for Biological Diversity v. EPA, 722 F.3d 401 (D.C. Cir. 2013) (“[T]he EPA simply lacks statutory authority to distinguish biogenic carbon dioxide from other forms of carbon dioxide for purposes of the PSD and Title V permitting programs.”).
• Morley v. CIA, 719 F.3d 689 (D.C. Cir. 2013) (“We should ditch the four-factor standard [used for FOIA attorney’s fees].”).
• Chlorine Inst., Inc. v. Fed. R.R. Admin., 718 F.3d 922 (D.C. Cir. 2013) (“I join the Court’s opinion but add a point significant to my resolution of the case. As was discussed at oral argument, the Surface Transportation Board will ensure that chlorine shippers continue to receive common-carrier transportation on railroads when such transportation is reasonably requested.”).
• Comcast Cable Commc’ns, LLC v. FCC, 717 F.3d 982 (D.C. Cir. 2013) (“As the Court’s opinion explains, the FCC erred in concluding that Comcast discriminated against the Tennis Channel on the basis of affiliation. … I write separately to point out that the FCC also erred in a more fundamental way. … [T]he canon of constitutional avoidance thus strongly reinforces the conclusion that Section 616 [of the Communications Act] applies only when a video programming distributor possesses market power.”).
• Ayissi-Etoh v. Fannie Mae, 712 F.3d 572 (D.C. Cir. 2013) (underscoring that an isolated statement by an employer “by itself would establish a hostile work environment for purposes of federal anti-discrimination laws.”).
• In re Sealed Case, 716 F.3d 603 (D.C. Cir. 2013) (“I join the Court’s fine opinion but note that our decision does not foreclose interlocutory appellate jurisdiction under Perlman when (i) the underlying action is not a Rule 41(g) motion for return of property and (ii) the party whose documents were seized raises an attorney-client privilege objection.”).
• Rollins v. Wackenhut Servs., Inc., 703 F.3d 122 (D.C. Cir. 2012) (discussing the permissibility of dismissals with prejudice under circuit precedent and the federal rules).
• United States v. Mohammed, 693 F.3d 192 (D.C. Cir. 2012) (noting that the court should not “ordinarily delve into the merits of an ineffective-assistance claim before the district court has done so”).
• Taylor v. Reilly, 685 F.3d 1110 (D.C. Cir. 2012) (“The Court does not address the Government’s absolute immunity argument. I write separately simply to make clear that the Government’s absolute immunity theory is unavailing.”).
• Grocery Mfrs. Ass’n v. EPA., 693 F.3d 169 (D.C. Cir. 2012) (“Despite the fact that two enormous American industries will be palpably and negatively affected by EPA’s allegedly illegal E15 waiver, the majority opinion tosses the case for lack of standing. … The food group petitioners and the petroleum group petitioners each independently have standing to challenge EPA’s E15 waiver. On the merits, EPA’s E15 waiver is flatly contrary to the plain text of the statute. I would grant the petition for review and vacate EPA’s E15 waiver decision.”).
• Hall v. Sebelius, 2012 WL 1940654 (D.C. Cir. 2012) (reiterating that no one is forced to take Medicare Part A benefits).
• Ne. Hosp. Corp. v. Sebelius, 657 F.3d 1 (D.C. Cir. 2011) (“The majority opinion says that the Medicare statute is complicated. True enough. But the question here concerns a specific provision, not the entire Medicare code. Complexity in the code as a whole does not mean ambiguity in a specific provision. No one can fault the majority opinion’s time and effort in examining this statute. But the fact that it takes a while to figure out the meaning of a specific statutory provision based on its text and context is not the same as ambiguity. What matters for the Chevron analysis is not how long it takes to climb the statutory mountain; what matters is whether the view is sufficiently clear at the top.”).
• Stephens v. U.S. Airways Grp., Inc., 644 F.3d 437 (D.C. Cir. 2011) (“I concur only in the judgment. In my view, Stephens and Mahoney should receive interest for the full 45 days that U.S. Airways delayed payment of their lump sum pensions.”).
• In re Aiken Cty, 645 F.3d 428 (D.C. Cir. 2011) (“As a result of Humphrey’s Executor and the current statutory scheme, the President does not have the final word in the Executive Branch about whether to terminate the Yucca Mountain project. For now, therefore, the ball in this case rests in the Executive Branch not with the President, but rather with the Nuclear Regulatory Commission.”). [He later concurred in a 2012 unreported order for abeyance, 2012 WL 3140360, and then wrote for the majority in In re Aiken Cty, 725 F.3d 255 (D.C. Cir. 2013).]
• Mahoney v. Doe, 642 F.3d 1112 (D.C. Cir. 2011) (“I add these few words simply because I do not want the fog of First Amendment doctrine to make this case seem harder than it is. No one has a First Amendment right to deface government property. No one has a First Amendment right, for example, to spray-paint the Washington Monument or smash the windows of a police car.”).
• Koretoff v. Vilsack, 2010 WL 5082029 (D.C. Cir. 2010) (“In light of the Administrative Procedure Act and binding Supreme Court precedents, it would be highly unusual, at least absent some stronger indication of congressional intent, to hold that a business directly affected by an agency’s economic regulation can never challenge the legality of that agency rule in any judicial forum at any time.”).
• Al-Bihani v. Obama, 619 F.3d 1 (D.C. Cir. 2010) (per curiam) (“The premise of Al-Bihani’s plea for release is that international-law norms are judicially enforceable limits on the President’s war-making authority under the AUMF. Even accepting that premise, Al-Bihani cannot prevail in this case. As the panel opinion correctly concludes, Al-Bihani’s arguments misconstrue international law and overlook controlling federal statutes such as the Military Commissions Acts of 2006 and 2009.”).
• United States v. Moore, 612 F.3d 698 (D.C. Cir. 2010) (“Proper application of statutory mens rea requirements and background mens rea principles can mitigate the risk of abuse and unfair lack of notice in prosecutions … that means proof that the defendant knew that making the false statement would be a crime.”).
• El-Shifa Pharm. Indus. Co. v. United States, 607 F.3d 836 (D.C. Cir. 2010) (“The key point for purposes of my political question analysis is this: Plaintiffs do not allege that the Executive Branch violated the Constitution. Rather, plaintiffs allege that the Executive Branch violated congressionally enacted statutes that purportedly constrain the Executive. The Supreme Court has never applied the political question doctrine in cases involving statutory claims of this kind. As Judge Edwards has correctly explained, the proper separation of powers question in this sort of statutory case is whether the statute as applied infringes on the President’s exclusive, preclusive authority under Article II of the Constitution. “).
• Newdow v. Roberts, 603 F.3d 1002 (D.C. Cir. 2010) (“The more nuanced issue, therefore, is how courts should distinguish permissible sectarian references from impermissible sectarian references in determining under Marsh whether a ‘prayer opportunity has been exploited to proselytize or advance any one, or to disparage any other, faith or belief.’”).
• Davis v. Pension Ben. Guar. Corp. , 571 F.3d 1288 (D.C. Cir. 2009) (“In light of the Supreme Court’s recent decisions, I tend to agree with Judge Fernandez’s opinion for the Ninth Circuit that the old sliding-scale approach to preliminary injunctions—under which a very strong likelihood of success could make up for a failure to show a likelihood of irreparable harm, or vice versa—is ‘no longer controlling, or even viable.’”).
• In re Grand Jury Subpoenas, 571 F.3d 1200 (D.C. Cir. 2009) (“I respectfully suggest that, at an appropriate time, the en banc Court reconsider the Ray/Rose test and bring this aspect of our Speech or Debate Clause jurisprudence in line with the constitutional text.”).
• SoundExchange, Inc. v. Librarian of Congress, 571 F.3d 1220 (D.C. Cir. 2009) (“If the members of the [Copyright Royalty] Board are in fact principal officers, then the present means of appointing Board members is unconstitutional. But no party here has timely raised a constitutional objection. We therefore may resolve the case without deciding whether the Board is constitutionally structured, and so I join the opinion of the Court.”).
• SEC. v. Fed. Labor Relations Auth. , 568 F.3d 990 (D.C. Cir. 2009) (“Our ability to decide this case thus follows from Humphrey’s Executor and accords with courts’ previous handling of disputes between an independent agency and a traditional executive agency (or another independent agency). Because this case is justiciable under the governing precedents and because the Court’s analysis of the merits is persuasive, I join the opinion of the Court.”).
• City of South Bend v. Surface Transp. Bd. , 566 F.3d 1166 (D.C. Cir. 2009) (“Our deference in applying the arbitrary and capricious standard has limits.”).
• Kiyemba v. Obama, 561 F.3d 509 (D.C. Cir. 2009) (“I write separately to emphasize three points. First, our disposition does not preclude Congress from further regulating the Executive’s transfer of wartime detainees to the custody of other nations. Congress possesses express constitutional authority to make rules concerning wartime detainees. … [Second] extradition cases require that we defer to the Executive’s considered judgment that transfer is unlikely to result in torture. Those precedents compel us to reject the detainees’ argument that the court second-guess the Executive’s conclusion in this case. … [Third] the dissent’s theory necessarily would require some judicial review of a foreign nation’s legal practices and procedures.”).
• In re Sealed Case, 551 F.3d 1047 (D.C. Cir. 2009) (“The trickier question in this case is whether the Vermont Army National Guard is a federally recognized unit or organization of the Army National Guard of the United States. The plaintiff alleges that it is-albeit without citations or support. I am dubious.”).
• Bryant v. Gates, 532 F.3d 888 (D.C. Cir. 2008) (arguing that “military-run newspapers and the advertising space in them are not forums for First Amendment purposes but instead are the Government’s own speech” and “[w]hen government speech is involved, forum analysis does not apply and the Government may favor or espouse a particular viewpoint”).
• Valdes v. United States, 475 F.3d 1319 (D.C. Cir. 2007) (specifying that “n the typical future prosecution of money-for-information-disclosure, the jury will be instructed only on bribery–and the scenario in which a defendant’s case slips through the cracks because of a split-the-difference jury verdict will not recur”). [He was joined by Judge Williams.]
• United States v. Henry, 472 F.3d 910 (D.C. Cir. 2007) (“If the real-elements-of-the-offense approach is correct, however, then current federal sentencing practices may be in tension with the Constitution. That is because the current system—in practice—works a lot like the pre-Booker system: District judges are obliged to apply the Guidelines, and certain facts used to increase a sentence (beyond what the defendant would have received based on the offense of conviction) are found by the judge, not by the jury beyond a reasonable doubt.”).
• Nuvio Corp. v. FCC, 473 F.3d 302 (D.C. Cir. 2006) (“I write separately only to express my agreement with the FCC Order’s suggestion that the 911 requirement would be justified even if [Voice over Internet Protocol service] providers could not feasibly meet the 120-day deadline. In my judgment, the FCC possesses the statutory authority, which the Commission may reasonably choose to exercise, to address the public safety threat by banning providers from selling voice service until the providers can ensure adequate 911 connections.”).
• Fund for Animals, Inc. v. Kempthorne, 472 F.3d 872 (D.C. Cir. 2006) (“Plaintiffs argue that the amended Migratory Bird Treaty Act is ambiguous, and they rely on the canon against construing an ambiguous statute to abrogate a treaty. The Court concludes that the statute is plain and that the canon therefore does not apply. I add this concurrence because, even assuming the statute is ambiguous, the canon should not apply in cases involving non-self-executing treaties such as the migratory bird conventions.”).
Obviously, there is a lot of law here to absorb.
• Saint Francis Med. Ctr. v. Azar, ___ F.3d ___ (D.C. Cir. 2018) (“The Court agrees with the hospitals that HHS’s 2013 regulation applies only to reopenings, not to appeals. I add this concurring opinion to also express my agreement with the hospitals’ broader argument that the 2013 regulation is arbitrary and capricious, and therefore should be vacated. … Indeed, it would seem to be the very definition of arbitrary and capricious for HHS to knowingly use false facts when calculating hospital reimbursements. That is particularly so when those erroneous facts cost hospitals hundreds of millions of dollars. That is real money.”).
• Clemente v. FBI, 714 Fed. App’x 2 (D.C. Cir. 2018) (arguing that the court’s four-factor test for awarding attorney’s fees in FOIA cases should be jettisoned).
• Saad v. SEC, 7873 F.3d 297 (D.C. Cir. 2017) (“Our precedents say that the SEC may approve expulsion or suspension of a securities broker as a remedy, but not as a penalty. … [A]s a three-judge panel, we ordinarily must stick with our precedents. But here, the Supreme Court’s recent decision in Kokesh v. SEC, means that we can no longer characterize an expulsion or suspension as remedial. After the Supreme Court’s decision in Kokesh, in other words, our precedents characterizing expulsions or suspensions as remedial are no longer good law.”).
• Ortiz-Diaz v. U.S. Dep’t of Housing & Urban Dev. , 867 F.3d 70 (D.C. Cir. 2017) (“All discriminatory transfers (and discriminatory denials of requested transfers) are actionable under Title VII. As I see it, transferring an employee because of the employee’s race (or denying an employee’s requested transfer because of the employee’s race) plainly constitutes discrimination with respect to ‘compensation, terms, conditions, or privileges of employment’ in violation of Title VII.”).
• Competitive Enter. Inst. v. U.S. Dep’t of Transp. , 863 F.3d 911 (D.C. Cir. 2017) (“Even without affording Chevron deference to the Department’s interpretation of the statute, I would still reach the same result in this case. In my view, although it is a close call, the better interpretation of the term ‘smoking’ in this statute covers e-cigarettes as well as conventional tobacco cigarettes.”).
• Navajo v. U.S. Dep’t of the Interior, 852 F.3d 1124 (D.C. 2017) (adding that even though the doctrine does not apply to the facts in this case, “equitable tolling may apply in certain government shutdown situations.”).
• Bahlul v. United States, 840 F.3d 757 (D.C. 2016) (“Put simply, the argument advanced by Bahlul and the joint dissent does not comport with the Constitution’s structure. The Constitution does not give foreign nations (acting through the international law of war or otherwise) a de facto veto over Congress’s determination of which war crimes may be tried by U.S. military commissions.”) [He was joined by Judges Brown and Griffith.]
• United States v. Williams, 836 F.3d 1 (D.C. Cir. 2016) (“In a criminal appeal where a mens rea-related jury instruction issue may have made a difference to the conviction and sentence, it is critically important to ensure that the jury had a correct understanding of the relevant law.”).
• Ortiz-Diaz v. U.S. Dep’t. of Housing & Urban Dev., 831 F.3d 488 (D.C. Cir. 2016) (“Our cases hold that lateral transfers to different positions or posts with the same pay and benefits are ordinarily not changes in the “terms, conditions, or privileges” of employment. I write this concurrence simply to note my skepticism about those cases.”).
• United States v. Bell, 808 F.3d 926 (per curiam) (D.C. Cir. 2015) (“I share Judge Millett’s overarching concern about the use of acquitted conduct at sentencing, as I have written before. Of course, resolving that concern as a constitutional matter would likely require a significant revamp of criminal sentencing jurisprudence.”).
• Meshal v. Higgenbotham, 804 F.3d 417 (D.C. Cir. 2015) (explaining that Congress, not the Judiciary, “decides whether to recognize a cause of action against U.S. officials for torts they allegedly committed abroad in connection with the war against al Qaeda”).
• Eley v. District of Columbia, 793 F.3d 97 (D.C. Cir. 2015) (“I would simply add that, in my view, the United States Attorney’s Office Laffey matrix [for justifying the reasonableness of counsel’s rates] is appropriate for [Individuals with Disabilities Education Act] cases.”).
• Ege v. U.S. Dep’t. of Homeland Sec., 784 F.3d 791 (D.C. Cir. 2015) (“To begin with, both Ege and the Government agree that Ege has standing to bring this suit against TSA. I likewise agree. The majority opinion nonetheless has sua sponte denied standing to Ege. According to the majority opinion, Ege’s complaint is not redressable by the Court because TSA could not comply with a court order that directed the agency to allow Ege to board or pilot a plane. I frankly do not understand that.”).
• Am. Meat Inst. v. U.S. Dep’t. of Agri., 760 F.3d 18 (D.C. Cir. 2014) (“[O]ne wrinkle in this case is whether the Government has actually asserted an interest in supporting American farmers and ranchers …. Whether the Government has asserted such an interest matters because Central Hudson requires that the Government articulate the interests it seeks to advance. And the Executive Branch has refrained during this litigation from expressly articulating its clear interest in supporting American farmers and ranchers in order to justify this law, apparently because of the international repercussions that might ensue. But the interest here is obvious, even if unarticulated by the Executive Branch for reasons of international comity. And more to the point for Central Hudson purposes, Members of Congress did articulate the interest in supporting American farmers and ranchers when Congress enacted this country-of-origin labeling law. And Congress’s articulation of the interest suffices under Central Hudson.”).
• Utility Air Reg. Grp. v. EPA, 744 F.3d 791 (D.C. Cir. 2014) (“Although we do not need to address the question in this case, in an appropriate case where it makes a difference, we may want to ensure that our case law on the jurisdictional status of this particular exhaustion/finality rule has kept pace with the Supreme Court’s case law on when a rule should be considered jurisdictional.”).
• Agape Church, Inc. v. FCC, 738 F.3d 397 (D.C. Cir. 2013) (“I add this brief separate opinion simply to note that the FCC also invoked the principle of constitutional avoidance to support its result here. In my view, the Commission was right to perceive a serious First Amendment problem with the Viewability Rule.”).
• United States v. Duvall, 740 F.3d 604 (per curiam) (D.C. Cir. 2013) (concurring in the denial of rehearing en banc and arguing that vertical stare decisis requires waiting for an en banc petition to overturn a previous case).
• Ctr. for Biological Diversity v. EPA, 722 F.3d 401 (D.C. Cir. 2013) (“[T]he EPA simply lacks statutory authority to distinguish biogenic carbon dioxide from other forms of carbon dioxide for purposes of the PSD and Title V permitting programs.”).
• Morley v. CIA, 719 F.3d 689 (D.C. Cir. 2013) (“We should ditch the four-factor standard [used for FOIA attorney’s fees].”).
• Chlorine Inst., Inc. v. Fed. R.R. Admin., 718 F.3d 922 (D.C. Cir. 2013) (“I join the Court’s opinion but add a point significant to my resolution of the case. As was discussed at oral argument, the Surface Transportation Board will ensure that chlorine shippers continue to receive common-carrier transportation on railroads when such transportation is reasonably requested.”).
• Comcast Cable Commc’ns, LLC v. FCC, 717 F.3d 982 (D.C. Cir. 2013) (“As the Court’s opinion explains, the FCC erred in concluding that Comcast discriminated against the Tennis Channel on the basis of affiliation. … I write separately to point out that the FCC also erred in a more fundamental way. … [T]he canon of constitutional avoidance thus strongly reinforces the conclusion that Section 616 [of the Communications Act] applies only when a video programming distributor possesses market power.”).
• Ayissi-Etoh v. Fannie Mae, 712 F.3d 572 (D.C. Cir. 2013) (underscoring that an isolated statement by an employer “by itself would establish a hostile work environment for purposes of federal anti-discrimination laws.”).
• In re Sealed Case, 716 F.3d 603 (D.C. Cir. 2013) (“I join the Court’s fine opinion but note that our decision does not foreclose interlocutory appellate jurisdiction under Perlman when (i) the underlying action is not a Rule 41(g) motion for return of property and (ii) the party whose documents were seized raises an attorney-client privilege objection.”).
• Rollins v. Wackenhut Servs., Inc., 703 F.3d 122 (D.C. Cir. 2012) (discussing the permissibility of dismissals with prejudice under circuit precedent and the federal rules).
• United States v. Mohammed, 693 F.3d 192 (D.C. Cir. 2012) (noting that the court should not “ordinarily delve into the merits of an ineffective-assistance claim before the district court has done so”).
• Taylor v. Reilly, 685 F.3d 1110 (D.C. Cir. 2012) (“The Court does not address the Government’s absolute immunity argument. I write separately simply to make clear that the Government’s absolute immunity theory is unavailing.”).
• Grocery Mfrs. Ass’n v. EPA., 693 F.3d 169 (D.C. Cir. 2012) (“Despite the fact that two enormous American industries will be palpably and negatively affected by EPA’s allegedly illegal E15 waiver, the majority opinion tosses the case for lack of standing. … The food group petitioners and the petroleum group petitioners each independently have standing to challenge EPA’s E15 waiver. On the merits, EPA’s E15 waiver is flatly contrary to the plain text of the statute. I would grant the petition for review and vacate EPA’s E15 waiver decision.”).
• Hall v. Sebelius, 2012 WL 1940654 (D.C. Cir. 2012) (reiterating that no one is forced to take Medicare Part A benefits).
• Ne. Hosp. Corp. v. Sebelius, 657 F.3d 1 (D.C. Cir. 2011) (“The majority opinion says that the Medicare statute is complicated. True enough. But the question here concerns a specific provision, not the entire Medicare code. Complexity in the code as a whole does not mean ambiguity in a specific provision. No one can fault the majority opinion’s time and effort in examining this statute. But the fact that it takes a while to figure out the meaning of a specific statutory provision based on its text and context is not the same as ambiguity. What matters for the Chevron analysis is not how long it takes to climb the statutory mountain; what matters is whether the view is sufficiently clear at the top.”).
• Stephens v. U.S. Airways Grp., Inc., 644 F.3d 437 (D.C. Cir. 2011) (“I concur only in the judgment. In my view, Stephens and Mahoney should receive interest for the full 45 days that U.S. Airways delayed payment of their lump sum pensions.”).
• In re Aiken Cty, 645 F.3d 428 (D.C. Cir. 2011) (“As a result of Humphrey’s Executor and the current statutory scheme, the President does not have the final word in the Executive Branch about whether to terminate the Yucca Mountain project. For now, therefore, the ball in this case rests in the Executive Branch not with the President, but rather with the Nuclear Regulatory Commission.”). [He later concurred in a 2012 unreported order for abeyance, 2012 WL 3140360, and then wrote for the majority in In re Aiken Cty, 725 F.3d 255 (D.C. Cir. 2013).]
• Mahoney v. Doe, 642 F.3d 1112 (D.C. Cir. 2011) (“I add these few words simply because I do not want the fog of First Amendment doctrine to make this case seem harder than it is. No one has a First Amendment right to deface government property. No one has a First Amendment right, for example, to spray-paint the Washington Monument or smash the windows of a police car.”).
• Koretoff v. Vilsack, 2010 WL 5082029 (D.C. Cir. 2010) (“In light of the Administrative Procedure Act and binding Supreme Court precedents, it would be highly unusual, at least absent some stronger indication of congressional intent, to hold that a business directly affected by an agency’s economic regulation can never challenge the legality of that agency rule in any judicial forum at any time.”).
• Al-Bihani v. Obama, 619 F.3d 1 (D.C. Cir. 2010) (per curiam) (“The premise of Al-Bihani’s plea for release is that international-law norms are judicially enforceable limits on the President’s war-making authority under the AUMF. Even accepting that premise, Al-Bihani cannot prevail in this case. As the panel opinion correctly concludes, Al-Bihani’s arguments misconstrue international law and overlook controlling federal statutes such as the Military Commissions Acts of 2006 and 2009.”).
• United States v. Moore, 612 F.3d 698 (D.C. Cir. 2010) (“Proper application of statutory mens rea requirements and background mens rea principles can mitigate the risk of abuse and unfair lack of notice in prosecutions … that means proof that the defendant knew that making the false statement would be a crime.”).
• El-Shifa Pharm. Indus. Co. v. United States, 607 F.3d 836 (D.C. Cir. 2010) (“The key point for purposes of my political question analysis is this: Plaintiffs do not allege that the Executive Branch violated the Constitution. Rather, plaintiffs allege that the Executive Branch violated congressionally enacted statutes that purportedly constrain the Executive. The Supreme Court has never applied the political question doctrine in cases involving statutory claims of this kind. As Judge Edwards has correctly explained, the proper separation of powers question in this sort of statutory case is whether the statute as applied infringes on the President’s exclusive, preclusive authority under Article II of the Constitution. “).
• Newdow v. Roberts, 603 F.3d 1002 (D.C. Cir. 2010) (“The more nuanced issue, therefore, is how courts should distinguish permissible sectarian references from impermissible sectarian references in determining under Marsh whether a ‘prayer opportunity has been exploited to proselytize or advance any one, or to disparage any other, faith or belief.’”).
• Davis v. Pension Ben. Guar. Corp. , 571 F.3d 1288 (D.C. Cir. 2009) (“In light of the Supreme Court’s recent decisions, I tend to agree with Judge Fernandez’s opinion for the Ninth Circuit that the old sliding-scale approach to preliminary injunctions—under which a very strong likelihood of success could make up for a failure to show a likelihood of irreparable harm, or vice versa—is ‘no longer controlling, or even viable.’”).
• In re Grand Jury Subpoenas, 571 F.3d 1200 (D.C. Cir. 2009) (“I respectfully suggest that, at an appropriate time, the en banc Court reconsider the Ray/Rose test and bring this aspect of our Speech or Debate Clause jurisprudence in line with the constitutional text.”).
• SoundExchange, Inc. v. Librarian of Congress, 571 F.3d 1220 (D.C. Cir. 2009) (“If the members of the [Copyright Royalty] Board are in fact principal officers, then the present means of appointing Board members is unconstitutional. But no party here has timely raised a constitutional objection. We therefore may resolve the case without deciding whether the Board is constitutionally structured, and so I join the opinion of the Court.”).
• SEC. v. Fed. Labor Relations Auth. , 568 F.3d 990 (D.C. Cir. 2009) (“Our ability to decide this case thus follows from Humphrey’s Executor and accords with courts’ previous handling of disputes between an independent agency and a traditional executive agency (or another independent agency). Because this case is justiciable under the governing precedents and because the Court’s analysis of the merits is persuasive, I join the opinion of the Court.”).
• City of South Bend v. Surface Transp. Bd. , 566 F.3d 1166 (D.C. Cir. 2009) (“Our deference in applying the arbitrary and capricious standard has limits.”).
• Kiyemba v. Obama, 561 F.3d 509 (D.C. Cir. 2009) (“I write separately to emphasize three points. First, our disposition does not preclude Congress from further regulating the Executive’s transfer of wartime detainees to the custody of other nations. Congress possesses express constitutional authority to make rules concerning wartime detainees. … [Second] extradition cases require that we defer to the Executive’s considered judgment that transfer is unlikely to result in torture. Those precedents compel us to reject the detainees’ argument that the court second-guess the Executive’s conclusion in this case. … [Third] the dissent’s theory necessarily would require some judicial review of a foreign nation’s legal practices and procedures.”).
• In re Sealed Case, 551 F.3d 1047 (D.C. Cir. 2009) (“The trickier question in this case is whether the Vermont Army National Guard is a federally recognized unit or organization of the Army National Guard of the United States. The plaintiff alleges that it is-albeit without citations or support. I am dubious.”).
• Bryant v. Gates, 532 F.3d 888 (D.C. Cir. 2008) (arguing that “military-run newspapers and the advertising space in them are not forums for First Amendment purposes but instead are the Government’s own speech” and “[w]hen government speech is involved, forum analysis does not apply and the Government may favor or espouse a particular viewpoint”).
• Valdes v. United States, 475 F.3d 1319 (D.C. Cir. 2007) (specifying that “n the typical future prosecution of money-for-information-disclosure, the jury will be instructed only on bribery–and the scenario in which a defendant’s case slips through the cracks because of a split-the-difference jury verdict will not recur”). [He was joined by Judge Williams.]
• United States v. Henry, 472 F.3d 910 (D.C. Cir. 2007) (“If the real-elements-of-the-offense approach is correct, however, then current federal sentencing practices may be in tension with the Constitution. That is because the current system—in practice—works a lot like the pre-Booker system: District judges are obliged to apply the Guidelines, and certain facts used to increase a sentence (beyond what the defendant would have received based on the offense of conviction) are found by the judge, not by the jury beyond a reasonable doubt.”).
• Nuvio Corp. v. FCC, 473 F.3d 302 (D.C. Cir. 2006) (“I write separately only to express my agreement with the FCC Order’s suggestion that the 911 requirement would be justified even if [Voice over Internet Protocol service] providers could not feasibly meet the 120-day deadline. In my judgment, the FCC possesses the statutory authority, which the Commission may reasonably choose to exercise, to address the public safety threat by banning providers from selling voice service until the providers can ensure adequate 911 connections.”).
• Fund for Animals, Inc. v. Kempthorne, 472 F.3d 872 (D.C. Cir. 2006) (“Plaintiffs argue that the amended Migratory Bird Treaty Act is ambiguous, and they rely on the canon against construing an ambiguous statute to abrogate a treaty. The Court concludes that the statute is plain and that the canon therefore does not apply. I add this concurrence because, even assuming the statute is ambiguous, the canon should not apply in cases involving non-self-executing treaties such as the migratory bird conventions.”).
Obviously, there is a lot of law here to absorb.
