An assessment of Judge Sri Srinivasan’s rulings (or, “I read all these FERC cases so you don’t have to”) (Updated)
on Mar 14, 2016 at 9:58 am
Note: This post has been updated because I located 2 additional published opinions in cases on which Judge Srinivasan sat, one of which bears mentioning. I also added a discussion of FOIA cases at the end.
I have reviewed all of the cases in which Judge Sri Srinivasan has participated that resulted in a published opinion – whether he wrote the opinion or not. There are 119 in total. In this post, I highlight the most important cases, looking for themes in different categories of decisions.
Taken as a whole, Srinivasan’s votes and opinions do not reflect any strong ideology. It can be difficult to tell, because panels in the D.C. Circuit are overwhelmingly unanimous; decisions that might be characterized as “liberal” when taken out of context frequently have one or more conservative members on the panel. In addition, a judge on the court of appeals is far more constrained by existing law than is a Supreme Court Justice.
Generally speaking, Srinivasan seems to be as moderate a judge as Republicans could expect a Democratic president to nominate. His views seem to be solidly in the center of American legal thought. He seems quite attentive to precedent; his rulings do not seem designed to move existing law, much less to take a leading liberal position on ideological questions. On close ideological questions, he seems likely to lean to the left, but still gravitate towards the center – more like Elena Kagan than Sonia Sotomayor.
Because Srinivasan has not been on the D.C. Circuit long, few of his opinions have been reviewed by the Supreme Court. But in two recent cases, the Justices either affirmed Srinivasan or agreed with his opinion in dissent. Pinson v. Samuels, 761 F.3d 1 (D.C. Cir. 2014) (opinion for the Court) (rejecting prisoner’s position and holding that caps on prisoners’ filing fees apply to each action rather than to prisoner as a whole), aff’d sub nom. Bruce v. Samuels, S. Ct. No. 14-844 (Jan. 12, 2016) (unanimous court); United States ex rel. Shea v. Cello Partnership, 748 F.3d 338 (D.C. Cir. 2014) (dissenting opinion) (dissenting from holding that False Claims Act first-to-file prohibition applies even after first-filed action concludes), dissenting opinion unanimously adopted, Kellogg Brown & Root Services v. United States ex rel. Carter, 135 S. Ct. 1970 (2015).
A recent decision touched on Secretary Hillary Clinton’s email controversy, requiring searches of her private email server. Freedom Watch v. NSA, 783 F.3d 1340 (D.C. Cir. 2015) (member of unanimous majority) (reinstating FOIA challenge to require search of Clinton’s private email records, and otherwise denying FOIA claim).
Another case has close parallels to the pending Supreme Court challenge to the president’s immigration policy. Srinivasan was a member of a panel that held infamous Sheriff Arpaio had no standing to challenge the deferral of removal. He did not join a third member of the court who argued for reassessing standing law to broaden it and permit such challenges. Arpaio v. Obama, 797 F.3d 11 (D.C. Cir. 2015) (member of unanimous majority) (holding that sheriff lacks standing to challenge deferral of removal of unlawful aliens) (concurring opinion argues for adopting broader view of standing).
In the current controversy relating to the religious exemption from the Affordable Care Act’s contraception mandate, now pending before the Supreme Court, Srinivasan did not join opinions by his colleagues either supporting or challenging the exemption. Priests for Life v. HHS, 808 F.3d 1 (D.C. Cir. 2015) (denial of rehearing en banc, by divided vote, of panel opinion rejecting challenge to opt-out mechanism from contraception mandate). This is consistent with the fact that Srinivasan has not taken a leading role on ideological questions.
Not surprisingly for the D.C. Circuit, Srinivasan has been involved in several important environmental law cases. Recently, he was a member of an appellate panel that refused to block the enforcement of the EPA’s Clean Power Plan; five Justices of the Supreme Court (including Justice Antonin Scalia) reversed. The case is a good example of the different results you would expect to see if Srinivasan replaced Scalia. State of West Virginia v. EPA, Order (D.C. Cir. No. 15-1363 Jan. 21, 2016) (panel unanimously denying stay of EPA Clean Power Plan), rev’d and stay granted (Feb. 9, 2016) (5-4 order).
In other environmental cases, Srinivasan was a member of panels that ruled in favor of environmental challengers and ruled against states challenging EPA action. But there are counter-examples in which he rejected the environmental challenge. And again, almost all of the decisions were unanimous. Mississippi Commission on Environmental Quality v. EPA, 790 F.3d 138 (D.C. Cir. 2015) (member of unanimous majority in per curiam opinion) (rejecting challenges to EPA’s determination of “attainment” standards for ground-level ozone under Clean Air Act); Hermes Consolidated v. EPA, 787 F.3d 568 (D.C. Cir. 2015) (opinion for the Court) (largely rejecting challenge to EPA’s denial of exemption from renewable fuels program); National Association of Home Builders v. U.S. Fish & Wildlife Service, 786 F.3d 1050 (D.C. Cir. 2015) (member of unanimous majority) (dismissing challenges to consent decree under which EPA would assess whether species should be listed as endangered); NRDC v. EPA, 777 F.3d. 456 (D.C. Cir. 2014) (majority opinion for divided court) (accepting environmental group’s challenge to EPA ozone rules); United States v. Volvo Powertrain Corp., 758 F.3d 330 (D.C. Cir. 2014) (opinion for the Court) (upholding finding that engine manufacturer violated consent decree and $72 million fine); National Mining Association v. McCarthy, 758 F.3d 243 (D.C. Cir. 2014) (member of unanimous court) (rejecting states’ challenge to agency coordination process for authorizing surface coal mining and challenge to agency guidance on surface mining as not final agency action); Art Initiative v. Tidwell, 749 F.3d 1071 (D.C. Cir. 2014) (member of unanimous majority) (holding that environmental group has standing to challenge agency’s refusal to ban tree cutting, but upholding substance of agency’s ruling); Natural Resources Defense Council v. EPA, 749 F.3d 1055 (D.C. Cir. 2014) (member of unanimous panel) (rejecting environmental challenge to EPA standards relating to cement production, but invalidating agency’s creation of defense for private civil suits).
Srinivasan has been involved in interesting First Amendment cases. He has consistently rejected free speech claims, although one panel did allow a First Amendment claim to go forward. Anderson v. Carter, 802 F.3d 4 (D.C. Cir. 2015) (dissenting opinion agreeing with dismissal of administrative challenge to revocation of embed status but arguing that court should permit First Amendment retaliation claim to go forward); National Association of Manufacturers v. SEC, 800 F.3d 518 (D.C. Cir. 2015) (dissenting opinion) (dissenting from holding that SEC conflict mineral disclosure rule violates First Amendment); Hodge v. Talkin, 799 F.3d 1145 (D.C. Cir. 2015) (opinion for the Court) (upholding restrictions on protesting on Supreme Court plaza), pet. for cert. pending, No. 15-863; Wagner v. FEC, 793 F.3d 1 (D.C. Cir. 2015) (member of unanimous en banc court) (rejecting First Amendment challenge to ban on campaign contributions by government contractors); POM Wonderful v. FTC, 777 F.3d 478 (D.C. Cir. 2015) (opinion for the Court) (rejecting First Amendment challenge to FTC deceptive advertising finding), pet. for cert. pending, No. 15-525; American Meat Institute v. Department of Agriculture, 760 F.3d 18 (D.C. Cir. 2014) (en banc) (divided court, member of majority and member of original panel opinion suggesting en banc review) (upholding federal meat disclosure rules against First Amendment challenge); Mpoy v. Rhee, 758 F.3d 285 (D.C. Cir. 2014) (member of unanimous court) (holding that teacher’s letter to chancellor was not constitutionally protected speech). (Disclosure: I represent the losing party in POM Wonderful.)
Srinivasan has participated in a few interesting decisions involving labor law. They have been mixed, with a tendency to uphold the National Labor Relations Board’s enforcement of labor law. SSC Mystic Operating System v. NLRB, 801 F.3d 302 (D.C. Cir. 2015) (member of majority in divided court) (upholding NLRB’s certification of union vote, when regional director acted in absence of NLRB quorum) (did not join concurring opinion arguing for deference to agency interpretation over prior court ruling); Home Care Association v. Weil, 799 F.3d 1084 (D.C. Cir. 2015) (opinion for the Court) (upholding Department of Labor determination that Fair Labor Standards Act overtime provisions apply to home health care workers employed by agencies), pet. for cert. pending, No. 15-683; SW General Inc. v. NLRB, 796 F.3d 67 (D.C. Cir. 2015) (member of unanimous majority) (vacating unfair labor practice allegation by NLRB on ground that NLRB counsel served in violation of Vacancies Act); Weigland v. NLRB, 783 F.3d 889 (D.C. Cir. 2015) (member of unanimous majority) (rejecting claim that union must remove from its Facebook page posts by union members deriding employees who cross picket line).
Srinivasan has few significant criminal law decisions. So far as I can determine, he has voted to overturn a criminal conviction only in a single case, in which he overwhelmingly rejected the defendants’ appeals. United States v. McGill, 2016 U.S. App. LEXIS 3734, No. 06-3190 (D.C. Cir. 2016) (member of unanimous per curiam majority) (overwhelmingly affirming convictions and sentences in large-scale drug racketeering case, although reversing with respect to a few limited issues). In the other cases, he affirmed. In re Sealed Case, 809 F.3d 672 (D.C. Cir. 2016) (member of unanimous majority) (rejecting challenge to sentence of supervised release); United States v. Zagorski, 807 F.3d 291 (D.C. Cir. 2015) (member of unanimous majority) (affirming child pornography sentence); United States v. Miller, 799 F.3d 1097 (D.C. Cir. 2015) (opinion for the Court) (rejecting challenges to fraud conviction); United States v. Cano-Flores, 796 F.3d 83 (D.C. Cir. 2015) (member of unanimous majority) (rejecting challenges to drug importation conviction but remanding for reassessment of $15 billion forfeiture); United States v. Ballestas, 795 F.3d 138 (D.C. Cir. 2015) (opinion for the Court) (upholding extraterritorial application of Maritime Drug Law Enforcement Act); United States v. Munoz Miranda, 780 F.3d 1185 (D.C. Cir. 2015) (rejecting attempt to challenge guilty plea); United States v. Arrington, 763 F.3d 17 (D.C. Cir. 2014) (opinion for the Court) (rejecting attempts to reopen criminal conviction); United States v. Baxter, 761 F.3d 17 (D.C. Cir. 2014) (member of unanimous majority) (rejecting challenges to fraud conviction); United States v. Garcia, 757 F.3d 315 (D.C. Cir. 2014) (member of unanimous majority) (rejecting challenges to conviction and sentence for cocaine importation); United States v. Fahnbulleh, 752 F.3d 470 (D.C. Cir. 2014) (member of unanimous majority) (affirming fraud convictions and sentences); United States v. Solofa, 745 F.3d 1226 (D.C. Cir. 2014) (member of unanimous majority) (rejecting challenge to conviction and sentence); United States v. Taylor, 743 F.3d 876 (D.C. Cir. 2014) (member of unanimous majority) (rejecting challenge to refusal to reduce crack cocaine sentence).
Srinivasan has also rejected a variety of other claims by criminal defendants, in addition to the filing fee ruling discussed above in which the Supreme Court agreed with his reading of the statute. Asemani v. United States CIS, 797 F.3d 1069 (D.C. Cir. 2015) (opinion for the Court) (upholding denial of in forma pauperis status to prisoner under three-strikes bar); Thomas v. Holder, 750 F.3d 899 (D.C. Cir. 2014) (member of unanimous majority) (rejecting prisoner’s appeal on the merits) (concurring opinion argues that Prison Litigation Reform Act’s three-strikes provision may be unconstitutional); United States v. Dillon, 738 F.3d 284 (D.C. Cir. 2013) (member of unanimous majority) (sustaining order to medicate defendant to render him competent to stand trial).
Srinivasan’s rulings favoring criminal defendants have been largely procedural. United States v. Mathis-Gardner, 783 F.3d 1286 (D.C. Cir. 2015) (member of unanimous majority) (remanding for explanation of decision to terminate supervised release); Daniel v. Fulwood, 766 F.3d 57 (D.C. Cir. 2014) (member of unanimous majority) (reinstating ex post facto challenge to parole guidelines); Payne v. Stansberry, 760 F.3d 10 (D.C. Cir. 2014) (member of unanimous majority) (reinstating claim for denial of effective appellate counsel); In re Miller, 759 F.3d 66 (D.C. Cir. 2014) (member of unanimous court) (authorizing filing of successive challenge to criminal defendant’s sentence); United States v. Wyche, 741 F.3d 1284 (D.C. Cir. 2014) (dissenting opinion) (dissenting in relevant part from sua sponte determination that sentencing determination was harmless).
In the search-and-seizure context, Srinivasan’s most interesting case found a violation of the Fourth Amendment over a dissenting opinion. United States v. Peyton, 745 F.3d 546 (D.C. Cir. 2014) (member of two-judge majority) (holding that evidence must be suppressed because third party lacked authority to authorize search of shoe box) (dissent would find authority to consent because shoebox was in common living area). But in another case, he found no Fourth Amendment violation under existing precedent and declined to join an opinion that would have revisited that precedent. United States v. Gross, 784 F.3d 784 (D.C. Cir. 2015) (opinion for the Court) (rejecting claim that police encounter amounted to Fourth Amendment seizure) (concurring opinion argues for overturning existing precedent).
Srinivasan has decided multiple cases finding governmental immunity from suit. Mohammadi v. Islamic Republic of Iran, 782 F.3d 9 (D.C. Cir. 2015) (opinion for the Court) (dismissing human rights suit based on sovereign immunity); Singletary v. D.C., 766 F.3d 66 (D.C. Cir. 2014) (opinion for the Court) (vacating award of damages against D.C. for actions of Parole Board); Southwestern Power Administration v. FERC, 763 F.3d 27 (D.C. Cir. 2014) (opinion for the Court) (holding federal entity immune from fines imposed by FERC relating to reliability of power delivery). But in another case, the panel did allow the claim to go forward. Simon v. Republic of Hungary, 2016 U.S. App. LEXIS 1438 (D.C. Cir. No. 14-7082 Jan. 29, 2016) (opinion for the court) (reinstating claims against Hungarian government arising from Hungarian Holocaust) (concurring opinion argues for even stronger rejection of claim to immunity).
Srinivasan has decided a number of discrimination and civil rights claims, without any apparent preference for plaintiffs or defendants. Giles v. Transit Employees Fed. Credit Union, 794 F.3d 1 (D.C. Cir. 2015) (member of unanimous majority) (affirming dismissal of discrimination claim for lack of evidence); Harris v. D.C. Water & Sewer Authority, 791 F.3d 65 (D.C. Cir. 2015) (member of unanimous majority) (reinstating Title VII retaliation claim); Boose v. D.C., 786 F.3d 1054 (D.C. Cir. 2015) (member of unanimous majority) (remanding for determination whether the plaintiff, a disabled child, was entitled to compensatory education); Brown v. Sessoms, 774 F.3d 1016 (D.C. Cir. 2015) (member of unanimous majority) (reinstating discrimination claim); Klay v. Panetta, 758 F.3d 369 (D.C. Cir. 2014) (member of unanimous majority) (dismissing servicemembers’ suit against senior military officials for failure to adopt policies that would prevent sexual assault) (concurring opinion raises doubts that one claim was accurately pleaded); Wilson v. Cox, 753 F.3d 244 (D.C. Cir. 2014) (opinion for the Court) (reversing dismissal of age discrimination suit); Brooks v. Grundmann, 748 F.3d 1273 (D.C. Cir. 2014) (member of unanimous majority) (supervisor’s conduct insufficient to be deemed hostile work environment); Koch v. White, 744 F.3d 162 (D.C. Cir. 2014) (member of unanimous majority) (dismissing Rehabilitation Act claim for failure to exhaust administrative remedies).
Srinivasan has considered two constitutional challenges to the appointment of federal officials, rejecting both. Intercollegiate Broadcasting Systems v. Copyright Royalty Bd., 796 F.3d 111 (D.C. Cir. 2015) (member of unanimous majority) (rejecting substantive and Appointments Clause challenges to Copyright Royalty Board); Kuretski v. Commissioner, 755 F.3d 929 (D.C. Cir. 2014) (opinion for the Court) (rejecting challenge to president’s power to remove tax court judges).
Srinivasan has decided a variety of cases involving the jurisdiction of courts and standing to bring suit. In several cases, he has found standing to sue. Sierra Club v. Jewell, 764 F.3d 1 (D.C. Cir. 2014) (majority opinion for divided court) (finding standing to challenge removal of site from Historic Register); Art Initiative v. Tidwell, 749 F.3d 1071 (D.C. Cir. 2014) (member of unanimous majority) (holding that environmental group has standing to challenge agency’s refusal to ban tree cutting, but upholding substance of agency’s ruling); Humane Society v. Vilsack, 797 F.3d 4 (D.C. Cir. 2015) (member of unanimous majority) (finding that pork producers have standing to challenge alleged misappropriation of pork promotion funds); Watervale Marine Co. v. DHS, 807 F.3d 325 (D.C. Cir. 2015) (member of two-judge majority) (finding that challenge to conditions on release of polluting ships is justiciable, but upholding conditions) (concurring opinion would affirm conditions on another ground).
But he has also concluded that standing was lacking, in addition to the immigration challenge discussed above. PSE&G v. FERC, 783 F.3d 1270 (D.C. Cir. 2015) (member of unanimous majority) (dismissing challenge to FERC determination regarding transmission facilities for lack of live controversy); Spectrum Five LLC v. FCC, 758 F.3d 254 (D.C. Cir. 2014) (member of unanimous majority) (dismissing challenge to FCC’s authorization to move satellite for lack of Article III standing).
Srinivasan has consistently declined to broadly read the jurisdiction of the court of appeals, and thus the court’s power to decide cases. Jarkesy v. SEC, 803 F.3d 9 (D.C. Cir. 2015) (opinion for the Court) (dismissing challenge to pending SEC administrative action); Blue v. D.C. Public Schools, 764 F.3d 11 (D.C. Cir. 2014) (member of unanimous majority) (dismissing appeal as premature); Campbell v. AIG, 760 F.3d 62 (D.C. Cir. 2014) (member of unanimous majority) (dismissing securities claim for lack of jurisdiction); Fisher-Cal Indus. v. United States, 747 F.3d 899 (D.C. Cir. 2014) (member of unanimous majority) (dismissing challenge to refusal to renew contract for lack of jurisdiction); Daimler Trucks North America LLC v. EPA, 745 F.3d 1212 (D.C. Cir. 2013) (member of unanimous majority) (dismissing as moot challenge to EPA’s authorization of non-conforming engines).
Beyond that, Srinivasan generally has voted to permit claims to be brought in court. NB v. District of Columbia, 794 F.3d 31 (D.C. Cir. 2015) (opinion for the Court) (rejecting several claims but reinstating due process challenge to failure to provide notice of entitlement to hearing on Medicaid benefits); Freedom Watch v. OPEC, 766 F.3d 74 (D.C. Circ. 2014) (majority opinion for divided court) (remanding for consideration of alternative means of service of complaint); Barkley v. U.S. Marshals Service, 766 F.3d 25 (D.C. Cir. 2014) (opinion for the court) (affirming dismissal of claims by private security guards against Marshals Service relating to medical fitness, but remanding for leave to amend complaint).
Consistent with the D.C. Circuit’s general practice, Srinivasan has been deferential to federal agencies. Copley Fund v. SEC, 796 F.3d 131 (D.C. Cir. 2015) (opinion for the court) (upholding agency’s denial of exemption from duty to report deferred tax liability); ADX Communications of Pensacola v. FCC, 794 F.3d 74 (D.C. Cir. 2015) (member of unanimous majority) (affirming FCC order granting radio licenses); National Association of Broadcasters v. FCC, 789 F.3d 165 (D.C. Cir. 2015) (opinion for the Court) (upholding FCC rulemaking allocating spectrum); Lubow v. Dep’t of State, 783 F.3d 877 (D.C. Cir. 2015) (opinion for the Court) (upholding agency requirement that employees repay excess overtime pay); FiberTower Spectrum Holdings, LLC v. FCC, 782 F.3d 692 (D.C. Cir. 2015) (member of unanimous majority) (rejecting challenges to FCC’s refusal to renew wireless spectrum, with limited exceptions where construction had occurred under licenses); Deppenbrook v. PBGC, 778 F.3d 166 (D.C. Cir. 2015) (member of unanimous majority) (rejecting employee benefits claim challenging determination by Pension Benefits Guarantee Corporation); Music Choice v. Copyright Royalty Bd., 774 F.3d 1000 (D.C. Cir. 2014) (member of unanimous majority) (affirming copyright royalty jjudges’ determination of royalty rates and terms); Shieldalloy Metallurgic Corp. v. NRC, 768 F.3d 1205 (D.C. Cir. 2014) (member of unanimous majority) (rejecting business’s challenge to transfer of regulatory authority to state agency); Otis Elevator Co. v. Secretary of Labor, 762 F.3d 116 (D.C. Cir. 2014) (member of unanimous majority) (rejecting challenge to agency’s determination that accident was governed by elevator safety standards); Firstenergy Service Co. v. FERC, 758 F.3d 346 (D.C. Cir. 2014) (member of unanimous court) (sustaining FERC’s rejection of challenge to imposition of costs by transmission organizations); Sheble v. Huerta, 755 F.3d 954 (D.C. Cir. 2014) (opinion for the Court) (sustaining FAA’s revocation of pilot examiner certification); American Tort Reform Association v. OSHA, 738 F.3d 387 (D.C. Cir. 2013) (member of unanimous majority) (rejecting challenge to non-binding OSHA statement that agency’s regulation of chemicals in workplace did not preempt state tort claims).
Srinivasan has voted to overturn agency action but, outside the environmental context discussed above, those rulings have tended to find procedural flaws and to give the agency the opportunity to reconsider and reexplain its decision. CBS Corp. v. FCC, 785 F.3d 699 (D.C. Cir. 2015) (member of unanimous majority) (reversing FCC’s decision to disclose proprietary documents); SecurityPoint Holdings, Inc. v. TSA, 769 F.3d 1184 (D.C. Cir. 2014) (member of two-judge majority) (reinstating claim to change in advertising rules for failure to engage in reasoned decisionmaking) (one judge concurs in the judgment without opinion); West Deptford Energy, LLC v. FERC, 766 F.3d 10 (D.C. Cir. 2014) (member of unanimous majority) (vacating and remanding FERC order providing that it may apply “filed rate” on file at time negotiations commence or conclude); SEC v. SIPC, 758 F.3d 357 (D.C. Cir. 2014) (opinion for the Court) (rejecting SEC order to SIPC to liquidate broker-dealer); Allina Health Services v. Sebelius, 746 F.3d 1102 (D.C. Cir. 2014) (member of unanimous court) (holding that agency rule reducing Medicare payments was not logical outgrowth of proposed rule).
Judge Srinivasan has decided several cases under the Freedom of Information Act, in addition to the case involving Secretary Clinton’s email server. The most significant of these involved the rejection of a claimed right to receive a governmental legal opinion. Electronic Freedom Found. v. DOJ, 739 F.3d 1 (D.C. Cir. 2014) (member of unanimous court) (affirming rejection of FOIA request for government legal opinion). The results in his other FOIA rulings are mixed. Mobley v. CIA, 806 F.3d 568 (D.C. Cir. 2015) (member of unanimous majority) (denying FOIA claim); PETA v. NIH, 745 F.3d 535 (D.C. Cir. 2014) (opinion for the court) (affirming in part and rejecting in part FOIA claim seeking records relating to animal cruelty); Morley v. CIA, 810 F.3d 841 (D.C. Cir. 2016) (member of unanimous majority) (reinstating request for FOIA attorney’s fees)
Other significant issues Srinivasan has considered involve class actions, affirmative action, and antitrust law. Osborn v. Visa, Inc., 797 F.3d 1057 (D.C. Cir. 2015) (member of unanimous majority) (reinstating antitrust suit by operators of independent ATMs), pet. for cert. pending, No. 15-961; Shea v. Kerry, 796 F.3d 42 (D.C. Cir. 2015) (opinion for the court) (rejecting Title VII challenge to affirmative action plan) (concurring opinion urges reassessment of existing precedent); Levine v. American Psychological Association, 766 F.3d 39 (D.C. Cir. 2014) (opinion for the Court) (reversing dismissal of class action, rejecting conclusion that class members could not have believed defendant’s representations).
As I said at the outset, these decisions do not reflect any strong ideology. On the whole, they suggest that Judge Srinivasan would likely be on the center left of the Supreme Court.
