Monthly Archives: September 2011

Cert Grant Threatens D.C. Circuit’s Intermountain Decision

Yesterday the Supreme Court granted cert in United States v. Home Concrete & Supply, LLC, No. 11-139 (S. Ct.) [Home Concrete & Supply, LLC v. United States634 F.3d 249  (4th Cir. 2011)], which raises the same issue as the D.C. Circuit’s opinion in Intermountain Ins. Serv. of Vail, LLC, v. Comm’r, No. 10-1204 (D.C. Cir. June 21, 2011, amended Aug. 18, 2011) (Tatel, J., joined by Sentelle, C.J., & Randolph, S.J.), but reaches the opposite result. Continue reading


Cert Petition Challenges D.C. Circuit’s Holding that One Is Detainable Under the AUMF by Virtue of Being “Part of” Al Qaeda.

A Guantanamo detainee filed a petition for certiorari in the Supreme Court yesterday, after the D.C. Circuit reversed his habeas grant in Uthman v. Obama, No. 10-5235, 637 F.3d 400 (D.C. Cir. Mar. 29, 2011) (Kavanaugh, J., joined by Garland & Griffith, JJ.).

Questions Presented:

1. Whether the Authorization of Use of Military Force, Pub. L. No. 107-40, 115 Stat. 224 (2001) (‘‘AUMF”), authorizes the President to detain, indefinitely and possibly for the rest of his life, an individual who was not shown to have fought for al Qaeda, trained to fight for al Qaeda, or received or executed orders from al Qaeda, and was not claimed to have provided material support to al Qaeda.

2. Whether the AUMF, as applied by the court of appeals for the D.C. Circuit, violates the command of Boumediene v. Bush, 553 U.S. 723, 768 (2008), that “[t]he habeas court . . . [will] . . . conduct a meaningful review of . . . the Executive’s power to detain” an individual, and violates the Suspension Clause, U.S. Const. art. I, § 9, cl. 2.

In Boumediene v. Bush, 553 U.S. 723 (2008), the Supreme Court held that the constitutional habeas right extends to Guantanamo detainees, but “d[id] not address the content of the law that governs petitioners’ detention.” Since then, the Supreme Court has declined to grant cert in a Guantanamo case.

(Hat Tip: Benjamin Wittes at Lawfare)

Judge Ginsburg to Teach Administrative Law at NYU

Judge Douglas Ginsburg announced earlier this month that he will be taking senior status in October. NYU Law School immediately announced that he would be joining the faculty in January. Continue reading

Judge Kavanaugh Raises Anti-Injunction Act Concerns About Individual Mandate Challenge

In yesterday’s oral argument on the Healthcare Act, Judge Brett Kavanaugh, one of two Republican-appointed judges on the panel, expressed a “major concern” that the Anti-Injunction Act might bar the current challenge to the legislation. Under that theory, recently adopted by the Fourth Circuit in Liberty Univ. v. Geithner, No. 10-2347 (4th Cir. Sept. 8, 2011), Obamacare’s opponents must wait to challenge the individual mandate in a tax refund suit. That cannot happen until the individual mandate goes into effect in 2014 and individuals who fail to purchase insurance are taxed.

Although the Supreme Court may be more likely to grant cert in another Healthcare case, Judge Kavanaugh‘s views should be of particular interest to anyone trying to read the tea leaves about the Supreme Court’s ultimate resolution of the question. Judge Kavanaugh clerked for Justice Kennedy, who is widely expected to be the swing vote on Obamacare. Whether or not the D.C. Circuit case ever appears before the high Court directly, it gives Judge Kavanaugh the chance to write another bench memo for his old boss, at least on the question of whether an individual taxpayer’s challenge is justiciable. (Other cases involve challenges by States to the Healthcare Act.)

Judge Kavanaugh recently aired his views on the Anti-Injunction Act in his dissenting opinion in Cohen v. United States, No. 08-5088+, 578 F.3d 1 (D.C. Cir. 2009) and again when that case was reheard en banc and decided last July. The AIA provides that “no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court by any person,” 26 U.S.C. § 7421(a). Relying on that statute, Judge Kavanaugh would have blocked a challenge under the Administrative Procedure Act to the IRS’s procedure for refunding a telephone excise tax. The panel and en banc majorities ruled for the taxpayers, holding that a procedural challenge of this sort is not prohibited by the Anti-Injunction Act because it is concerned with procedure, not “assessment or collection.” In his panel dissent, Judge Kavanaugh wrote,

“[W]e could line Constitution Avenue from this Courthouse to the IRS Building with judicial decisions that apply [the Declaratory Judgment Act], the Anti-Injunction Act, the statutory exhaustion principle, and the ripeness doctrine and hold that challenges to tax laws and regulations must occur in refund suits.”

578 F.3d at 21-22.

The plaintiffs in Seven-Sky v. Holder, No. 11-5047, challenge the Patient Protection and Affordable Care Act on the grounds that the individual mandate exceeds the constitutional power of Congress and violates the Religious Freedom Restoration Act (“RFRA”) of 1993. The other judges on D.C. Circuit panel are Senior Judges Edwards and Silberman.

(Hat Tip: Nedra Pickler and Mark Sherman, Appeals court hears challenge to health care law (AP Sept. 23, 2011))

Prior Coverage:


  • Randy Barnett, Oral Argument in the DC Circuit Mandate Case (Volokh Conspiracy, Sept. 27, 2011) (“While some press accounts have focused on Judge Kavanaugh’s forceful questioning about the AIA—and it was indeed forceful—I thought the government’s counsel was effective in countering his textual analysis to the point where he volunteered that it was a ‘close’ issue. In the end, I feel confident that the AIA issue will not prevail, especially given that both the government and the challengers agree it does not apply for good reasons, and all but 2 federal judges so far have concurred in this assessment.”)
  • Barnett, supra (“UPDATE: When I expressed the opinion that, “In the end, I feel confident that the AIA issue will not prevail,” I was speaking of the legal challenges to the ACA as a whole, not to the outcome of the DC case in particular. Judge Kavanaugh’s concerns were serious and genuine, and I am hopeful but not ‘confident’ that the government’s textual arguments, and a nice metaphor offered by the counsel for Seven-Sky, were enough to satisfy him.”).

Senator Stevens Prosecutors to D.C. Circuit: “A district court cannot hold a litigant in criminal contempt, label it ‘civil contempt,’ and thereby insulate itself from meaningful appellate review.”

Prosecutors Brenda Morris and William Welch have finished briefing their appeal of Judge Emmet Sullivan’s contempt holding in No. 10-5372. Morris and Welch won a jury conviction against Senator Ted Stevens for making false statements about gifts he received, but the district court granted the Government’s motion to set aside the verdict when it was revealed that the prosecutors had withheld exculpatory evidence.

In their reply brief, the prosecutors argue the district court “failed to comply with the procedural requirements of” Fed. R. Crim. P. 42(a). But in October 2010, the district court said its February 2009 order was a civil contempt citation to which the criminal procedural rule does not apply.

Oral argument in In re: Contempt Finding in United States v. Stevens, No. 10-5372, is schedule for October 17, 2011, before Judges Rogers, Garland, and Edwards.

(Hat Tip: Blog of Legal Times)

Law Clerk Ranks Among the Top 10 Most Hated Jobs

According to “a survey of hundreds of thousands of employees” this year, law clerks have the 7th most hated job in the nation, reports CNBC. If you’re feeling bored with your bench memo, just be glad you’re not a Director of Information Technology (#1). And if you’re clerking for a federal judge, be grateful you’re earning more than the national median salary for law clerks: $39,780.

Here’s the full list:

1. Director of Information Technology

2. Director of Sales and Marketing

3. Product Manager

4. Senior Web Developer

5. Technical Specialist

6. Electronics Technician

7. Law Clerk

8. Technical Support Analyst

9. CNC Machinist

10. Marketing Manager

(Hat Tip: TaxProf Blog)


Holder: Obama Will Close Guantanamo “as Quickly as Possible”

Attorney General Eric Holder announced today that the Obama administration remains committed to closing the detention facility at Guantanamo Bay “as quickly as possible” despite “substantial pressure” from opponents of the plan. The Associated Press reports. In January 2009, President Obama ordered Guantanamo closed “as soon as practicable, and no later than 1 year from the date of this order.”

According to Holder, “some people have made this a political issue.”

(Hat Tip: Sarah Posner @JURISTnews, Holder: Obama Committed to Closing Guantanamo)