>The federal appeals court announced Wednesday the three judges who would
>be reviewing the case: Laurence Silberman, Stephen Williams and A. Raymond
>Randolph. The appeals court is expected to hear the case as early as March.
>Any take on this crew?
From the Almanac of the Federal Judiciary
D.C. CIRCUIT
CIRCUIT COURT
A. RAYMOND RANDOLPH
Circuit Judge, D.C. Circuit
3108 United States Courthouse
333 Constitution Ave., N.W.
Washington, D.C. 20001-2866
Fax: (202) 273-0004
Appointed in 1990 by President Bush
Born: 1943
EDUCATION: Drexel Univ., B.S., 1966; Univ. of Pennsylvania Law School, J.D., summa cum laude, 1969
CLERKSHIPS: Law Clerk, Hon. Henry J. Friendly, United States Court of Appeals, Second Circuit, 1969-70
GOVERNMENT POSITIONS: Assistant to the Solicitor General, Washington, D.C., 1970-73; Deputy Solicitor General, Washington, D.C., 1975-77; Special Counsel, Committee on Standards of Official Conduct, United States House of Representatives, 1979-80
JUDICIAL POSITIONS: Member, United States Judicial Conference Committee on Codes of Conduct, 1992-present; Chairman, 1995-present
PRIVATE PRACTICE: Miller, Cassidy, Larroca & Lewin, Washington, D.C., 1973- 75; Sharp, Randolph & Janis, Washington, D.C., 1977-79; Sharp, Randolph & Green, Washington, D.C., 1979-83; Randolph & Fox, Washington, D.C., 1983-84; Randolph & Truitt, Washington, D.C., 1984-87, Pepper, Hamilton & Scheetz, 1987-90
ACADEMIC POSITIONS: Adjunct Professor of Law, Georgetown Law Center, 1974-78; Adjunct Professor of Law, George Mason Law School, 1992
PROFESSIONAL ASSOCIATIONS: American Law Institute; Supreme Court Historical Society; Bar Assn. of the District of Columbia; Bar Assn. of the State of California
OTHER ACTIVITIES: Congressional Country Club
NOTEWORTHY RULINGS: Randolph wrote the majority opinion upholding Department of Justice regulation requiring urine tests of all attorney applicants. In vacating a district court injunction against the government, Randolph held that urine tests do not constitute "unreasonable seizures" under the Fourth Amendment. Willner v. Thornburgh, 928 F.2d 1185 (D.C. Cir. 1991).
1992: O'Donnell Construction Co. v. District of Columbia, 932 F.2d 420 (D.C. Cir. 1992): Randolph, writing for the panel, held that a District of Columbia statute that sets aside 35 percent of the dollar amount of all of the city's construction contracts for local minority business enterprises was not supported by evidence of past discrimination in the local construction industry according to the D.C. Council's Employment and Economic Development Committee report, and likely violates Fifth Amendment equal protection.
3 M Company v. Browner, 17 F.3d 1453 (D.C. Cir. 1994): Randolph, writing for the panel, held that a general statute of limitations for civil penalty actions, enacted more than 150 years ago, applied to modern administrative proceedings for civil assessments brought before federal agencies and that the limitations period begins running upon commission of the administration
violation, not later when the agency discovers the transgression.
United States v. Durenberg, 48 F.3d 1239 (D.C. Cir. 1995): Randolph, writing for the court, ruled that the separation of powers did not bar the prosecution of former Senator Durenberger for filing false claims for reimbursement of travel expenses with the Senate.
Alliance for Community Media v. FCC, 56 F.3d 105 (D.C. Cir. 1995) (en banc): In an opinion for the en banc court, Randolph found no state action and thus no First Amendment violations resulting from legislation permitting cable operators to ban indecent programming on certain of their cable channels. Randolph also held that the First Amendment did not prohibit the government from requiring cable operators to segregate and block indecent programming on those channels if they decided not to ban it entirely.
LaShawn A. v. Barry, 87 F.3d 1389 (D.C. Cir. 1996) (en banc): In a class action involving the District of Columbia's foster care program, Randolph held for the majority en banc court that the doctrines of law of the circuit and law of the case prevented one panel of the court from overruling the decision of another panel, and that some questions of pendent jurisdiction are not "jurisdictional" in the respect that they are subject to reconsideration throughout the litigation.
United States v. Crowder, 87 F.3d 1405, 1419 (D.C. Cir. 1996) (en banc) (dissenting opinion). Randolph, joined by three other judges,
dissented from the majority's ruling that a defendant's offer to stipulate to intent precluded the government from introducing the prior offenses under Rule 404(b) of the Federal Rules of Evidence. The ruling, Randolph wrote, created "such a mess in criminal trials that ultimately we will come to our senses and abandon it, unless higher authority or fresh legislation intervenes and does the job for us."
D.C. CIRCUIT
CIRCUIT COURT
LAURENCE HIRSCH SILBERMAN
Circuit Judge, D.C. Circuit
3400 United States Courthouse
333 Constitution Ave., N.W.
Washington, D.C. 20001-2866
Fax: (202) 273-0831
Appointed in 1985 by President Reagan
Born: 1935
Spouse: Rosalie Gaull
Children: Robert, Katherine, Anne
EDUCATION: Dartmouth College, A.B., 1957; Harvard Univ., LL.B., 1961
MILITARY SERVICE: Army Reserve, 1957-58, Pvt.
PRIVATE PRACTICE: Moore Silberman & Schulze (and predecessor firms), Honolulu, 1961-67 (Specialty: labor law); Steptoe & Johnson, Washington, D.C., 1973-74 (Specialty: administrative law); Morrison & Foerster, Washington, D.C., 1978-79, 1983-85 (Specialties: banking, telecommunications, and administrative law)
GOVERNMENT POSITIONS: Attorney, Appellate Division, General Counsel's Office, National Labor Relations Board, 1967-69; Solicitor, United States Department of Labor, Washington, D.C., 1969-70; Under Secretary of Labor, Washington, D.C., 1970-73; Deputy Attorney General of the United States, Washington, D.C., 1974-75; Ambassador to Yugoslavia, 1975-77; President's Special Envoy on ILO Affairs, 1976
OTHER EMPLOYMENT: Executive Vice President of Strategic Planning, Legal and Government Affairs, Crocker National Bank, San Francisco, 1979-83
PROFESSIONAL ASSOCIATIONS: Hawaii Bar Assn.
OTHER ACTIVITIES: United States General Advisory Committee on Arms Control and Disarmament, 1981-85
PUBLICATIONS: Yugoslavia's "Old" Communism: Europe's Fiddler on the Roof, FOREIGN POLICY 26 (1977); Human Rights: The Force Behind Foreign Policy, WASH. POST , March 12, 1977; No Recognition of Cuba and Vietnam Now, N.Y. TIMES , April 25, 1977; Exposing Academia's Anti-Right Bias, WASH. POST , June 7, 1977; Whose Job Grab Do You Hiss?, WASH. STAR , July 23, 1977; The Road to Racial Quotas, WALL STREET J., August 11, 1977; Carter Diplomacy: Pawned to Panama, CHRISTIAN SCIENCE MONITOR , Dec. 21, 1977; Tuition Relief: A Boon to Public Schools, as Well, WASH . POST , March 4, 1978; Will Lawyering Strangle Democratic Capitalism?, 2 REGULATION 2 (1978); Titoism and Beyond, WILSON Q. (Spring 1978); More Democracy, Less Law, EVENING BULL ., May 29, 1978; If Not the Best, at Least Not the Worst, 1 COMMONSENSE 1 (1978); Bureaucratic Behavior, WALL STREET J., September 11, 1978; The Case Against Controls, WALL STREET J., November 28, 1978; Toward Presidential Control of the State Department, FOREIGN AFFAIRS (Spring 1979); Policy Analysis: Boon or Curse for Politicians?, AM . ENTERPRISE INST. (1980); El Salvador is Not Vietnam, L.A. TIMES , March 4, 1981; AWACS and the Anti-Semites, WASH. POST , October 23, 1981; What Kind of Source? Dartmouth College 25th Reunion Book (1982)
NOTEWORTHY RULINGS: City of New York v. F.C.C., 814 F. 2d 720 (1986): The
D.C. Circuit affirmed the F.T.C., holding that Congress sanctioned the regulatory scheme under which F.C.C. regulations preempt local regulations regarding signal quality standards for cable television. The Supreme Court affirmed, ruling that under the 1984 Cable Act the F.C.C. was given authority to exercise exclusive control over signal quality standards. No. 87-339, 56 U.S.L.W. 4414 (5-17-88).
In Re Sealed Case, 838 F.2d 476 (1986): The D.C. Circuit reversed the district court, ruling that the appointment of a special counsel (or independent prosecutor) pursuant to the Ethics in Government Act violates the appointments clause, interferes with presidential authority, and violates the principle of separation of powers. The Supreme Court reversed. The Court held that the appointment of independent counsel pursuant to the Ethics in Government Act does not violate the appointments clause because the counsel has limited duties, has a temporary position, and can be removed by the Attorney General. Therefore, the independent counsel is an inferior officer whose appointment need not be vested in the President. The Court added that article III is not violated because the judges on the Special Division who appoint the special counsel only receive reports from the independent counsel. Therefore, the Special Division does not exercise executive or administrative duties. The Court concluded that the Act does not violate the principle of separation of powers inasmuch as the Attorney General could only be requested and not compelled to apply for appointment of independent counsel. Morrison v. Olson, No. 87-1279, 56 U.S.L.W. 4835 (6-28-88).
Reporters Committee for Freedom of the Press, et al. v. United States Department of Justice, 831 F.2d 1124 (1987): In a divided panel decision, Silberman wrote the majority opinion holding that, in a Freedom of Information Act case involving an FBI "rap sheet," the district courts should make factual determinations as to whether the citizen's legitimate privacy interest is outweighed by the public interest in disclosure. The district court had dismissed the suit by a reporter and an association of journalists after the FBI denied their request for the rap sheet. The Supreme Court reversed, holding that the disclosure of the rap sheet "could reasonably be expected to constitute an unwarranted invasion of personal privacy" within the meaning of Exemption 7 (C) of the Freedom of Information Act. No. 87- 1379, 57 U.S.L.W. 4373 (3-22-89).
1988: Silberman wrote the opinion holding that the National Archives need not give absolute deference to a claim of executive privilege by a former president seeking to protect papers, tapes, and other records from public disclosure. The opinion rejected the position advanced by former President Richard M. Nixon, which was supported by the Reagan Adminstration. N.Y. TIMES , March 13, 1988, at 10.
Lander v. Lujan, No. 89-5014, 58 U.S.L.W. 2266 (10-27-89): Silberman wrote the panel opinion holding that a permissible remedy for a victim of intentional discrimination is "bumping," or interventionary promotion, of the innocent incumbent under Title VII of the 1964 Civil Rights Act.
National Organization for the Reform of Marijuana Laws v. Drug Enforcement Agency, D.C. Cir. (1991): Silberman wrote the opinion holding that the DEA had relied on inaccurate criteria to decide that marijuana had no legitimate medical use, and ordered the DEA to come up with a new justification if it wishes to maintain those controls. In 1989, the DEA ruled to keep marijuana under the strictest controls prohibiting the drug from being used to treat cancer, AIDS, glaucoma and other diseases.
Wachtel v. Office of Thrift Supervision, 982 F.2d 581 (D.C. Cir. 1993): Silberman, writing for the panel, held that the Office of Thrift Supervision cannot order a savings bank's holding company and stockholders to reimburse a troubled thrift's net worth deficiency of $5 million without a showing of unjust enrichment or reckless disregard of legal obligations.
1994: Silberman, writing for the majority of the en banc panel, reversed the decision of a three-judge panel and broke with other federal courts across the country regarding the issue of homosexuals in the military. Silberman ruled that the United States Naval Academy properly dismissed midshipman Joseph C. Steffan after he said he was homosexual, even though he
did not admit to engaging in any homosexual behavior that violated the academy's and the Defense Department's rules. Silberman wrote, "When an individual's statement can reasonably be taken to evidence a propensity to engage in certain conduct, the military may certainly take that individual at his word." The academy did not have to prove Steffan actually engaged in the conduct to justify the discharge, the court ruled. The Washington Post, November 23, 1994.
Steffan v. Perry, No. 91-5409, 63 U.S.L.W. 2338 (11-22-94): Silberman, writing for the en banc majority, ruled that the equal protection component of the Fifth Amendment was not violated by the United States Naval Academy regulation that requires the discharge of members who state that they are homosexual. Silberman found that the regulation rationally furthers a legitimate goal of excluding persons who engage in homosexual conduct, or are likely to do so.
U.S. v. Microsoft Corp., No. 95-5037, 64 U.S.L.W. 2001 (6-16-95) rev'g 63 U.S.L.W. 2514: Silberman, writing for the court, held that the Federal district court exceeded its authority under the Tunney Act to determine that a proposed antitrust consent degree is in the public interest when the court rejected the decree on grounds going beyond the scope of the complaint, and evaluated and demanded information about claims the government did not assert.
Brown & Williamson Tobacco Corp. V. Williams, No. 95-5171, 64 U.S.L.W. 2124 (8-15-95): Silberman, writing for the court, held that a state court subpoena seeking to compel non-party members of Congress to produce documents obtained in the course of legislative hearings falls within 28 USC 1442(a), and therefore the subpoena proceedings may be removed to Federal district court when members raise a Speech or Debate Clause defense.
Chamber of Commerce of the United States v. Reich, No. 95-5242, 64 U.S.L.W. 2489 (2-2-96), rev'g 64 U.S.L.W. 2091: Silberman, writing for the panel, held that the President exceeded his authority in issuing striker replacement orders, and the executive order issued is pre-empted by the National Labor Relations Act's protection of employers right to replace economic strikers.
D.C. CIRCUIT
CIRCUIT COURT
STEPHEN F. WILLIAMS
Circuit Judge, D.C. Circuit
3800 United States Courthouse
333 Constitution Ave., N.W.
Washington, D.C. 20001-2866
Fax: (202) 273-0976
Appointed in 1986 by President Reagan
Born: 1936
EDUCATION: Yale Univ., B.A., 1958; Harv. Univ., J.D., 1961
MILITARY SERVICE: Army, 1961-62
PRIVATE PRACTICE: Debevoise, Plimption, Lyons & Gates, 1962-66
GOVERNMENT POSITIONS: Assistant United States Attorney, S.D.N.Y., 1966-69
ACADEMIC POSITIONS: Professor, Univ. of Colo. School of Law, 1969-86; Visiting Professor : UCLA School of Law, 1975-76; Univ. of Chicago. Law School (fellow), 1979-80; SMU School of Law, 1983-84
PROFESSIONAL ASSOCIATIONS: A.B.A.; American Law Institute; Federal Energy Bar Assn.; Colorado Bar Assn.
OTHER ACTIVITIES: Historic Boulder, Inc.; International Assn. of Energy Economists
PUBLICATIONS: Books: Cases and Materials on the Law of Oil & Gas (with Richard C. Maxwell, Patrick H. Martin & Bruce M. Kramer) (6th ed. 1992); The Legal Integration of Energy Markets (with Terence Daintith) (Vol. 5 of Integration Through Law: Europe and the American Federal Experience) (1987)
Articles: Subjectivity, Expression & Privacy: Problems of Aesthetic Regulation, 62 MINN. L. REV. 1 (1977); Running Out: The Problem of Exhaustible Resources, 7 J. L EG. STUD. 165 (1978); Solar "Access" and Property Rights: A Maverick Analysis, 11 CONN. L. REV. 430 (1979); Implied
Covenants for Development and Exploration in Oil & Gas Leases---The Determination of Profitability, 27 KAN. L. REV. 443 (1979); The Static Conception of the Common Law: A Comment, 9 J. LEG. STUD. 277 (1980); Getting Downtown---Relief of Highway Congestion Through Pricing, REGULATION (Mar-Apr 1981) p. 45; Implied Covenants in Oil and Gas Leases: Some General Principles, 29 KAN. L. REV. 153 (1981); An Energy Policy Perspective on Solar Hot Water Equipment Mandates, 1 UCLA J. OF E NV. LAW & POLICY 135 (1981); "Liberty" in the Due Process Clauses of the Fifth and Fourteenth Amendments: The Intentions of the Framers, 53 COLO. L. REV. 117 (1981); Severance Taxes: The Supreme Court's Role in Preserving a National Common Market for Energy Supplies, 53 COLO. L. REV. 281 (1982); Liberty and Property: The Problem of Government Benefits, 12 J. LEG. STUD. 3 (1983); The Requirement of Beneficial Use as a Cause of Waste in Water Resource Development, 23 NAT. RES. J. 7 (1983); Energy Policy in the Cold Light of Morning, 61 TEX. L. REV. 571 (1983); Free Trade in Water Resources: Sporhase v. Nebraska ex rel. Douglas, 2 S. CT . ECONOMIC REVIEW 89 (1984); Implied Covenants' Threat to the Value of Oil and Gas Reserves, 36 INST. ON OIL AND GAS LAW & TAX'N , ch. 3 (1985); Federal Preemption of State Conservation Laws After the Natural Gas Policy Act: A Preliminary Look, 56 COLO. L. REV. 521 (1985); The Proposed Sea-Change in Natural Gas Regulation, 6 ENERGY L.J. 233 (1985); The Law of Prior Appropriation: Possible Lessons for
Hawaii (transcript of symposium), 25 N AT. RESOURCE J. 911 (1985); The Roots of Deference (Review of Christopher F. Edley, Jr., "Administrative Law: Rethinking Judicial Control of Bureaucracy"), 100 Yale L. J. 1103 (1991); Background Norms in the Regulatory State (Review of Cass R. Sunstein, "After the Rights Revolution: Reconceiving the Regulatory State"), 58 U. of Chi. L. Rev. 419 (1991); Fingers in the Pie (Review of Jeremy Rabkin, "Judicial Compulsions: How Public Law Distorts Public Policy"), 68 Tex. L. Rev. 1303 (1990); Fixing the Rate of Return After Duquesne, 8 Yale J. on Reg. 159 (1991); Second Best: The Soft Underbelly of Deterrence Theory in Tort, 106 Harv. L. Rev. 932 (1993); Court-Gazing (Review of David Savage, "Turning Right: The Making of the Rehnquist Supreme Court" and of H.W. Perry, Jr., "Deciding to Decide: Agenda Setting in the United States Supreme Court"), 91 Mich. L. Rev. 1158 (1993); "Legal" Versus "Non-Legal" Theory, 17 Harv. J.L. & Pub. Pol'y (1994); Unconstitutional Conditions Through a Libertarian Prism (Review of Richard A. Epstein, "Bargaining with the State") 1994 Pub. Interest L. Rev. 159 (1994); Culpability, Restitution, and the Environment: The Vitality of Common Law Rules, 21 Ecology L.Q. 559 (1994); Risk Regulation and Its Hazards (Review of Stephen Breyer, "Breaking the Vicious Circle: Toward Effective Risk Regulation"), 93 Mich. L. Rev. 1498 (1995)
NOTEWORTHY RULINGS: Adams v. Pan-American World Airways, Inc., 828 F.2d 24
(D.C. Cir. 1987): Williams held that former employees of Laker Airways lacked standing to sue Laker's former competitors, who allegedly violated the Clayton Act and conspired to drive Laker out of business. Laker's customers had already sued, settled, and recovered from Laker competitors for Sherman Act violations. Williams emphasized that only those directly injured are entitled to such awards. To award relief to those indirectly injured would "lessen awards for those directly affected, complicate litigation and increase the cost of bringing suit for those with standing." According to Williams, the direct effect of the airline's demise upon the plaintiffs' careers was not clear enough to support standing, while antitrust laws demand that a plaintiff establish damages with certainty. Although the violation may have caused the unemployment complained of, the former employees did not establish that they would eventually lose more than they gained from the collapse of Laker. Williams ruled that the effects of decreased competition upon wage rates was unclear, while the uncertainty of the employees' tenure combined with the volatility of the industry contributed to the uncertainty of damages. LEGAL TIMES, Sept. 21, 1987.
Nixon v. United States, 938 F.2d 239 (D.C. Cir. 1991): Williams, writing for the majority, held that whether the Senate followed proper procedures when it "tried" former district judge Walter Nixon's impeachment before a committee and not the full Senate, was a nonjusticiable issue. The district
court had granted the government's motion to dismiss after Nixon sought a declaratory judgment that the Senate's failure to give him a full evidentiary hearing before the full Senate violated its constitutional duty to "try" all impeachments. The Supreme Court affirmed. No. 91-740, 61 U.S.L.W. 4069 (2-12-93)
United States v. Mills, 964 F.2d 1186 (D.C. Cir. 1992): Williams, writing for the majority of the en banc court, held that federal speedy-trial laws don't apply to defendants arrested on District of Columbia charges and then later shifted to federal court. Williams reiterated a finding he made in 1987 that District of Columbia arrests should be treated as state arrests, which do not trigger the speedy-trial clock under the 1974 Speedy Trial Act. LEGAL TIMES , June 8, 1992
National Treasury Employees Union, et al. v. United States, 990 F.2d 1271 (D.C. Circuit 1993): Williams, writing for the majority, held that a ban from receiving honoraria by officers or employees of the federal government was a violation of the First Amendment as far as it affected the speech of executive branch employees.
United States v. Jones, 973 F.2d 928 (D.C. Cir. 1993): Williams, writing for a divided panel, held that the trial court's lengthening of a sentence that it would have imposed under the Federal Sentencing Guidelines solely because the defendant chose to go to trial rather than enter a guilty plea
does not violate the Sixth Amendment right to a jury trial.
Bechtel v. FCC, No. 10 F.3d 875 (D.C. Cir. 1993): Williams, writing for the majority, held that the Federal Communications Commission's "integration policy" which provided a preference for new broadcast license applicants who promised to participate in the station's management as owners was arbitrary and capricious. Williams held that the policy does not advance the asserted governmental interests it purportedly serves---that is, that actively involved station owners improve a station's performance and have an increase responsiveness to the community.
Crown Cork & Seal Co. v. NLRB, 36 F.3d 1130 (D.C. Cir. 1994): Williams, writing for the panel, ruled that employer statements made prior to a representation election that linked job security at the plant to cost consciousness and implied that a union victory in the election would lead to increased costs of doing business were predictions supported by objective fact, and do not support a finding that the statements were threats of a plant closing or layoffs in violation of Section 8(a)(1) of the National Labor Relations Act.
Fair Employment Council of Greater Washington Inc. v. BMC Marketing Corp., 28 F.3d 891 (1994): Williams, writing for the panel, ruled that black employment testers, employed by a non-profit fair employment organization, who alleged that an employment agency discriminated against them on the basis of race did not have standing to assert claims for damages under 42 USC 1981 or Title VII of the 1964 Civil Rights Act. Williams found that the organization had standing to pursue the Title VII claim to the extent it could show that the effects of the agency's discrimination had perceptively impaired its programs. |
