14 July 2016
Supreme Court nominee Merrick Garland. Photo: Diego M. Radzinschi/ALM 'Significant Question'
In 2013, three judges of the U.S. Court of Appeals for the D.C. Circuit ruled that post-mortem photographs of Osama bin Laden could remain secret.
"As the district court rightly concluded," the opinion said, "the CIA's declarations give reason to believe that releasing images of American military personnel burying the founder and leader of al Qaeda could cause exceptionally grave harm."
Chief Judge Merrick Garland was one of the three judges who heard the case. Did the U.S. Supreme Court nominee write the decision? The court released the decision "per curiam"—not signed by any one judge—so there's no way to know for sure.
Amid the exhaustive review of Garland's record since his nomination in March, a small group of cases he heard where the court issued unsigned, precedent-setting opinions adds to the analysis of his thinking about employment discrimination, public records access, criminal sentencing, administrative law and other subjects.
Even if Garland didn't personally pen those decisions, his participation signals support for the outcomes. Given the uncertainty about whether he wrote them, they haven't been subject to the same level of scrutiny as his authored opinions have by lawyers, politicians, advocacy groups and journalists trying to parse his judicial philosophy.
While federal appeals courts historically used unsigned opinions to resolve simple legal questions in a few paragraphs or pages, the practice has evolved to encompass cases that are at times complex and high-profile.
In his 19 years on the D.C. Circuit, Garland participated in more than 1,100 cases in which the court issued a published opinion — a decision that set precedent for the circuit. He wrote the main opinion in 329 of those cases. Other judges wrote and signed the vast majority of the rest. In 54 cases, including the bin Laden death photos case, the court ruled per curiam.
The D.C. Circuit isn't alone in deciding cases via unsigned opinions. In a 2012 article in the journal Judicature, researchers found that 7.6 percent of published decisions from federal appeals courts over the course of one year, excluding the Federal Circuit, were per curiam. In the D.C. Circuit, published per curiams were rare, making up only 0.3 percent of published opinions.
Ira Robbins, a professor at American University Washington College of Law, is among those opposed to the practice in cases that involve a substantive discussion of law. He argues that unsigned opinions limit public accountability. But many judges and lawyers disagree, saying that opinions ultimately represent the views of the court, not an individual judge.
Garland's nomination is embroiled in a political fight over whether the president should fill a Supreme Court seat in a presidential election year. Republican leaders in the U.S. Senate have vowed not to hold hearings or a vote, and Garland isn't participating in any cases while his nomination is pending.Joint, but Not Always Unanimous
If the nomination moves forward or is revived after the election, Garland's record will again be a subject of intense interest. Some of the published, unsigned opinions that Garland joined were only a couple of pages long and included a brief discussion of legal issues. Others were long and complex—an 87-page ruling in an air pollution regulation case, for instance—and some fell in the middle.
A review of Garland's authored opinions showed a mixed record for employers in discrimination cases. Some unsigned opinions he was part of add more texture to that analysis.
In a 2013 per curiam opinion, Garland was part of a panel that tackled the extent of discrimination an employee had to allege for a case to survive. The panel ruled for the plaintiff, finding that one alleged use of a racial slur might have been enough to prove a hostile work environment.
In a concurring opinion in that case, Ayissi-Etoh v. Fannie Mae, Judge Brett Kavanaugh, also a member of the panel, said the case raised a "significant question."Garland's signed opinions reflected deference to federal agency decisionmaking.
In a 2008 unsigned opinion, he was part of a panel that handed a loss to the Federal Communications Commission, ordering the agency to revisit petitions from environmental advocacy groups seeking to protect birds from colliding with communications towers in the Gulf Coast region.
Kavanaugh dissented, writing that the lawsuit was "unripe" because the commission was already examining the issue nationwide.
In criminal cases, Garland has a largely pro-prosecution record. However, he was part of several per curiam opinions that ruled for the defense. In U.S. v. Bigley in 2015, for instance, the court tackled when a trial judge should consider evidence of sentencing manipulation by law enforcement. The panel ordered a new sentencing hearing for the defendant, saying the trial judge should consider a "nonfrivolous" claim that police manipulated a child pornography sting operation to enhance the potential sentence.
In the D.C. Circuit, as is true in other federal appeals courts, it's up to the judges to decide if an opinion will be unsigned, according to the clerk's office. Mayer Brown partner Brian Netter, who clerked for D.C. Circuit Judge Judith Rogers from 2006 to 2007, said there weren't set rules for unsigned opinions. The judges tended to use them in less labor-intensive cases or very complex ones that needed to be split up among the judges, he said, but beyond that "the court's practice is rather haphazard."'Modicum of Accountability'
"If they want a decision to go out faster, they might be more willing to issue an opinion per curiam. Or if the opinion reflects a compromise, and it's not the views of one particular judge," Netter said. The judges usually decided if an opinion would be per curiam at a meeting right after hearing arguments, he said.
In complex cases, the D.C. Circuit occasionally includes a footnote to explain which judge wrote a particular section, but that is an uncommon practice.
Jointly authored opinions aren't always unsigned: On June 14, Judges David Tatel and Sri Srinivasan cosigned a 115-page decision upholding the Federal Communications Commission's net neutrality rules.
Although per curiam opinions represent the decision of the court, they don't need to be unanimous. Of the 54 cases that Garland heard that were decided in a published, per curiam opinion, Garland or another judge dissented in five of them.
Garland, who rarely dissented in nearly two decades on the bench, broke with his colleagues in unsigned decisions twice. In 1999, he disagreed with the majority's decision in a race discrimination case to order a trial judge to review the calculation of hours the claimants—African-American construction workers—would have worked if they hadn't faced discrimination by unions. Garland said he would uphold a special master's calculations and not "needlessly prolong this decades-old case."
In 2002, he disagreed with the majority about how to interpret the Clean Air Act. The Environmental Protection Agency's interpretation was entitled to deference, Garland wrote.
Active and senior judges on the D.C. Circuit either declined to speak on the record or did not return requests for comment. The White House declined an interview request for Garland.
There are no national guidelines for when federal appeals judges can or should decide a case in an unsigned opinion.
In the Seventh Circuit, Chief Judge Diane Wood said her court will occasionally issue a per curiam opinion, if the case involves an overly litigious party who may be prone to personalizing decisions; an unsigned opinion stresses that the decision is by the court, not one judge, she said.
Ira Robbins, the American University law professor, has written critically about the use of unsigned opinions in the Supreme Court to decide cases that involve substantive legal reasoning and said the same logic applies to lower courts.
"Judges appointed for life ought to have some modicum of accountability, and the public ought to know which judges said what in which context," Robbins said. There also are practical implications he said, since lawyers might find it helpful to know whether a judge they're arguing before wrote a particular opinion.
Federal appeals judges interviewed for this story, as well as appellate lawyers, said there is accountability, because published opinions name the judges who decided the case, even if they don't specify who wrote the opinion. Third Circuit Judge Richard Nygaard, who has written about the use of per curiam opinions, said his court typically issued them when other judges on the panel wanted to add language — to the point that it was no longer the product of one judge.
Nygaard said he wishes more decisions were unsigned.
"Egos become involved; … you see zingers in there; people use humor, addressing issues that are not before the court, various things because there's going to be a name on it," Nygaard said. "If we issued these in the form of per curiams, so the egos were not there, the opinions would be shorter. They would address the issues in a more-succinct fashion. I think the personal stuff would be left out."
Gibson, Dunn & Crutcher partner Helgi Walker, who clerked in the Fourth Circuit in 1994 and 1995 and argues in appeals courts across the country, said she didn't think there was less public accountability when a court issued an unsigned opinion.
"It's always good for the public to see and understand a court's reasoning, and that's essential, and that's why we have published dispositions," Walker said. "But even when an opinion is per curiam, the public still sees that."
Reprinted with permission from the July 14, 2016 edition of The National Law Journal © 2016 ALM Properties, Inc. All rights reserved. Further duplication without permission is prohibited.