Monthly Archives: October 2011

“The D.C. Circuit did not use tweezers–it used a sledgehammer.”

Those words could describe more than one D.C. Circuit opinion, but they were used in a recent cert petition calling for resolution of a circuit split on whether a government employee fired for refusing to make a false statement in the course of his official duties has a cause of action under the First Amendment. Continue reading

Crocodile Tears Thwart Elephant Plaintiffs

If your constitutional standing depends on a paid plaintiff’s allegation of emotional and aesthetic injury suffered as a result of mistreatment of the elephants he once worked with, make sure he knows their names.

On Friday, the D.C. Circuit affirmed the district court’s judgment in favor of the owner of the Ringling Brothers and Barnum & Bailey Circus on claims brought under the citizen-suit provision of the Endangered Species Act. Because the plaintiffs lacked standing, neither court reached the merits of their claim that the Circus’s use of bullhooks and chains on its elephants constitutes an unlawful “take” under the Endangered Species Act.

The mercenary individual plaintiff, a former Circus employee who “received at least $190,000 from the organizational plaintiffs,” failed to prove his alleged injury as a matter of fact. He was unable to identify on video the individual elephants he had worked with for two and a half years, he passed up opportunities to visit them, and he struggled to recall their names.

The Animal Protection Institute failed to establish informational standing because it had no legal right to information on unlawful “takes.” And its diversion-of-resources theory of standing failed because the API did not establish a causal link between the Circus’s use of bullhooks and chains and the public impression that such implements do not harm elephants—an impression the organization sought to reverse through advocacy. Though ruling for the Circus, the Court declined its invitation to announce a bright-line rule denying diversion-of-resources standing to parties whose only injury is to their advocacy efforts. The Court noted that the API did not assert organizational standing on behalf of its members.

The Court did not say whether it took judicial notice of the Circus’s elephant parade that marched up 3rd Street, past the E. Barrett Prettyman United States Courthouse, on March 22, 2011—the very day the Circus filed its opening brief in the D.C. Circuit.

Photo by Elvert Barnes

From the Opinion:

[T]he district court’s conclusion that Rider failed to credibly prove an emotional attachment to any particular elephant rested on extensive factual findings, including Rider’s difficulty recalling the elephants’ names, his use of the bullhook in Europe, his lack of forthrightness about payments he received from the organizational plaintiffs, and various inconsistencies in his testimony.

Having gone to trial, API bore the burden of proving causation, not through logic, but through “specific facts” supported adequately by testimony or other evidence.

American Society for the Prevention of Cruelty to Animals v. Feld Entertainment, No. 10-7007 (Oct. 28, 2011) (Tatel, J., joined by Garland, J., & Brown, J.).

Judge Griffith to Lecture on “Congress in the D.C. Circuit”

D.C. Circuit Judge Thomas Griffith will deliver the D.C. Bar Administrative Law and Agency Practice Section’s Leventhal Lecture on “Congress in the D.C. Circuit” at an off-the-record luncheon on Tuesday, November 15, at the Howard T. Markey National Courts Building, 717 Madison Place NW. Lunch will be served at 12:00 p.m. in the Benjamin Ogle Tayloe House, and the lecture will follow at 12:45 p.m. in the ceremonial courtroom on the second floor. D.C. Bar members can register for the event here.

Judge Griffith is an engaging speaker, not to be missed.

Senator Reid May Press for Vote on Caitlin Halligan’s D.C. Circuit Nomination

Ed Whelan reports at National Review Online that “there is buzz that Senate majority leader Harry Reid may soon press for a floor vote on Caitlin Halligan’s nomination to the D.C. Circuit.”

President Obama nominated Halligan to the D.C. Circuit on September 29, 2010, to fill the seat vacated by Chief Justice John Roberts upon his elevation to the Supreme Court. Since Judge Douglas Ginsburg took senior status earlier this month, there are now three vacant seats on the D.C. Circuit. Yesterday, Whelan reported on a rumor about the possible nomination of Debo Adegbile to the Court.

(Hat Tip:

Update: Mr. Whelan reported that Halligan had “the inside track on the nomination” four months before it was officially announced.

GPS Dissenter, Chief Judge Sentelle to Speak on Privacy and Technology

Chief Judge David Sentelle will participate in a panel entitled “Privacy vs. Free Speech in the Age of Mass Media, 21st Century Communications and Social Media,” this Saturday, October 29, from 2:00-4:00pm at the Washington Post Conference Center, 1150 15th ST., NW, Washington, D.C. Continue reading

Obama to Nominate NAACP Lawyer to D.C. Circuit

Ed Whelan of the National Review reports that President Obama intends to nominate Debo P. Adegbile to the D.C. Circuit:

I’m reliably informed that President Obama is on the verge of nominating NAACP Legal Defense Fund lawyer Debo P. Adegbile to the D.C. Circuit. Adegbile has worked for the NAACP Legal Defense Fund since 2001. Before that, he was a litigation associate at the Paul Weiss law firm for seven years. From what I understand, both of his jobs have been in New York City. I gather that he is 42 or so.

Mr. Adegbile would be President Obama’s second nominee to the D.C. Circuit, which the President has called “the second highest court in the land.” His first nominee, Caitlin Halligan, has not yet received a vote in the Senate.

Judge Tatel Reminisces on the Golden Age of Pro Bono Lawyering

Matthew Huisman of the National Law Journal reports on a pro bono panel featuring Judge David Tatel and Solicitor General Donal Verrilli, Jr.:

For Tatel, who serves on the U.S. Court of Appeals for the D.C. Circuit, what drove him to go to law school and ultimately pursue a career in public service was the summer he spent as an intern during the Kennedy administration. When Tatel graduated from law school, public interest law was blossoming, he said. Not only were there positions with nonprofits and government, he said, but law firms were developing their pro bono program and competing aggressively against one another to form the best practice.

“At that particular time, no one was even talking about things like billable hours — nobody even counted them at that time,” Tatel said. “The financial incentives were totally different. When I graduated from law school and went to work at a major Chicago law firm, I earned $300 a month less than my wife, who was teaching 9th grade in Chicago public schools.”

Despite the numerous changes in the field of law over the past 40 years, Tatel said, there is an even greater demand for public service legal work nowadays.

Judge Tatel knows public service firsthand. Between stints in private practice, he served as Director of the Chicago Lawyers’ Committee for Civil Rights Under Law, Director of the National Lawyers’ Committee for Civil Rights Under Law, General Counsel of the Legal Services Corporation, and Director of the Office for Civil Rights in the U.S. Department of Health, Education and Welfare.

Today’s event was part of a conference sponsored by Equal Justice Works.

D.C. Circuit Upholds Semi-Automatic Rifle Ban Under Intermediate Scrutiny

Earlier this month, a divided panel of the D.C. Circuit upheld the District of Columbia’s ban on semi-automatic rifles and large-capacity magazines and the District’s gun registration requirement as applied to handguns. Continue reading

Judge Griffith: “No member of my court would feel comfortable with the description of the D.C. Circuit as the second most important court in the land. None of us has any idea what that means. But our parents like to say that about us.”

Judge Thomas B. Griffith spoke last Thursday as part of a career lecture series at Brigham Young University, his alma mater. Before and after his career advice, Judge Griffith offered these words about his job on the D.C. Circuit and his path to the law:

About the court:

No member of my court would feel comfortable with the descriptions that the media often uses of the D.C. Circuit. Sometimes in the media it’s referred to as the second most important court in the land. I have no idea what that means. None of us has any idea what that means. But our parents like to say that about us.

About the work of an appellate judge:

[I]f you like reading and if you like writing you’ll love it, because that’s what we spend most of out time doing. . . . If you are an extrovert and enjoy interaction with a lot of different people , you ‘ll be sadly disappointed. I happen to be an extrovert, and so therefore I except invitations to come out and meet people and speak. I enjoy this a great deal. But most of my time is spent by myself reading and writing.

About writing opinions:

I’ve heard Justice Scalia say he typically has five drafts of the opinions that he writes. Judge Kozinski of the Ninth Circuit–the rumor is that he goes through about sixty drafts of opinions. I’m somewhere in between, but I’m a lot closer to Justice Scalia.

About choosing the law:

The job I really wanted growing up–I really wanted to be a minister. I was an Episcopalian. Man, if we [the Church of Jesus Christ of Latter Day Saints] had a paid ministry that’s where I’d be. That’s my first choice. But–dagone it–there really were gold plates, so that sort of limited my options that way. This is clearly a second choice way below that. But for somebody who’s majored in humanities and comparative literature there weren’t too many options.

About quitting law school (He went back):

I’ll tell you why I quit: Because I was really terrified. My classmates just intimidated me to death. I went to BYU and I did really, really well here. I had great grades, I was valedictorian of my college, and I had a lot of self confidence.  I went to the University of Virginia law school, and I felt completely overwhelmed by my classmates, most of whom had gone to Ivy League schools and had done well there. And I just thought, “ah, I just, I can’t . . .” Truth be known, I just–I chickened out.

The BYU student newspaper reports on Judge Griffith’s advice to the current students of his alma mater:

1. Be nice to people. “You never know who the people you deal with now are going to be,” Griffith said.

2. Pay attention to detail. “The good things have all come when I took my time and did the hard work to get the right answer.”

3. Learn to write, think and speak clearly. “Bad news . . . it takes time. Get better at it.”

4. Build the Kingdom. “See if you can find, in your motivation for your work, the Atonement of Christ.”

Judge Griffith graduated from BYU in 1978. He was Assistant to the President and General Counsel of BYU from 2000 until his appointment to the D.C. Circuit.  He is an adjunct faculty member at BYU’s J. Reuben Clark Law School where he teaches a course on Presidential Power.

Video of Judge Griffith’s talk is available here from the David M. Kennedy Center for International Studies.

(Hat Tip: Mitch Staley, Federal Judge Thomas B. Griffith imparts wisdom at David M. Kennedy Center (Oct. 7, 2011))

Prior Coverage:

Judge Hogan to Lead Administrative Office of the United States Courts

Chief Justice Roberts announced Thursday the appointment of Senior Judge Thomas F. Hogan of the U.S. District Court for the District of Columbia as the Director of the Administrative Office of the United States Courts.

(Hat Tip: David Stout, D.C. Federal Judge to Lead U.S. Courts’ Administrative Office, Main Justice (Oct. 7, 2011)).

Prior Coverage: