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| The Hon. KBJ (Wikicago CC BY-SA 4.0) |
Profiles of U.S. Circuit Judge Ketanji Brown Jackson have proliferated since her announcement as a leading contender for the U.S. Supreme Court seat vacated by Justice Breyer, and President Biden announced her nomination yesterday.
Judge Jackson has practiced in both criminal and civil environments, and in public and private sectors. She focused in different practice roles on criminal law and appellate litigation, and she served on the federal bench at the trial and appellate levels. So much of her work, and that which has garnered the most attention, for example in the excellent SCOTUSblog profile by Amy Howe, interests me as a citizen in general more than as an academic and media-law-and-torts aficionado.
Nevertheless, I compiled here cases of interest to me, which I found whilst poking around in her trial-court record on the U.S. District Court for the District of Columbia (D.D.C.). You might not see these discussed elsewhere, but they might be of interest to comparative-bent, media-law types like me, if that's even a thing. In my ordinary-joe capacity, I am not in step with Judge Jackson's inclinations in some other areas of law. But any Supreme Court Justice, just like any political candidate, is going to be a mixed bag, especially in a compulsorily two-party system.
In the cases below, a decidedly unscientific sample, I like some of what I see, especially skeptical diligence in access-to-information cases, sound reasoning in intellectual property law, careful application of preemption doctrine in medical-product liability, and a couple of thought-provoking First Amendment entanglements. I see a mixed record on venue for transnational cases, something I've been worrying about lately, but the outcomes are defensible as consistent with lousy U.S. law.
Main topics:
● Civil procedure/statute of limitations: WMATA v. Ark Union Sta., Inc. (2017)
● Copyright/music royalties: Alliance of Artists & Recording Cos. v. Gen. Motors Co. (2018)
● Defamation, false light/actual malice: Zimmerman v. Al Jazeera Am., LLC (2017)
● First Amendment/child pornography: United States v. Hillie (2018)
● First Amendment/commercial speech, compelled speech: Am. Meat Inst. v. U.S. Dept. Agric. (2013)
● FOIA/national security, law enforcement: Elec. Privacy Info. Ctr. v. U.S. Dept. Justice (2017)
● FOIA/Vaughn index, trade secrets, deliberative process: McKinley v. FDIC (2017)
● FOIA/deliberative process/personal privacy: Conservation Force v. Jewell (2014)
● FSIA/CCFA, forum non conveniens: Azima v. RAK Invest. Auth. (2018)
● FSIA/torture: Azadeh v. Iran (2018)
● Insurance/settlement: Blackstone v. Brink (2014)
● Product liability/causation, preemption, learned intermediary: Kubicki v. Medtronic (2018)
● Trademark/infringement: Yah Kai World Wide Enter. v. Napper (2016)
● Wrongful death/sovereign immunity, contributory negligence: Whiteru v. WMATA (2017)
● Wrongful death, product liability/forum non conveniens: In re Air Crash ... So. Indian Ocean (2018)
Quirky pro se claims:
● Defamation/litigation privilege/statute of limitations: Ray v. Olender (2013)
● Copyright/infringement: Buchanan v. Sony Music Ent. (2020)
● Copyright/pleading: Butler v. Cal. St. Disbursement Unit (2013)
● Copyright/subject-matter jurisdiction: Miller v. Library of Congress (2018)
● FTCA/FOIA, civil rights: Cofield v. United States (2014)
● Legal profession/sovereign immunity, absolute immunity: Smith v. Scalia (2014)
And the case with the best name:
● A Love of Food I v. Maoz Vegetarian USA (2014)
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| WMATA (D.C. Metro) (Max Pixel CC0) |
D.C. has a generous five-year statute of limitations, but even that time had run. Determining that the corporate-body WMATA remained a creature of government for relevant purposes, evidenced by its operational subsidies—cf. WMATA, infra, in negligence/sovereign immunity—Judge Jackson applied "the common law nullum tempus doctrine, which dates back to the
thirteenth century," to exempt WMATA, as sovereign, from the statute of limitations. The court explained: "Although the nullum tempus doctrine originated as a 'prerogative of the Crown[,]' the doctrine's 'survival in the United States has been generally accounted for and justified on grounds of policy rather than upon any inherited notions of the personal privilege of the king.' .... Specifically, 'the source of its continuing vitality ... is to be found in the great public policy of preserving the public rights, revenues, and property from injury and loss, by the negligence of public officers'" (citations omitted).
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| Pixabay |
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| Zimmerman (All Pro Reels CC BY-SA 2.0) |
Naturally, this case might be of interest to Court watchers, given the present hubbub over the Sullivan actual malice standard. I'm no fan, and I'll have more to say about that in the future. Zimmerman hardly depicts a Judge Jackson ready to pitch in with Justices Thomas and Gorsuch to upend the status quo. But she understands the standard and at least might be amenable to a semantically sincere construction of "reckless disregard."
First Amendment/child pornography. United States v. Hillie, 289 F. Supp. 3d 188 (D.D.C. 2018). Criminal cases are not usually my jam, but this one had a First Amendment angle. Judge Jackson allowed conviction of a defendant for sexual exploitation of a minor and possession of images of a minor engaging in sexually explicit conduct. On the facts as explicated by the court, that sure seems like it was the defendant's intent: "carefully placing and positioning the camera in hidden locations in J.A.A.'s bedroom and bathroom" and "succeed[ing] in capturing several extended images of J.A.A.'s exposed genitals." Missing, though, was the express "lasciviousness" required by federal statutes, a fatal flaw for the prosecution, the D.C. Circuit ruled. 14 F.4th 677 (2021). The defendant relied on statutes, not the First Amendment, but the D.C. Circuit referenced First Amendment case law extensively to support its interpretation of what Congress required. Despite the substantial latitude to which the government is entitled to prosecute child pornography, beyond the legal constraints of outlawing obscenity as to adults, the appellate court concluded that Judge Jackson erred in permitting the jury to infer the defendant's lascivious objective. One might expect that social conservatives would side with Judge Jackson on this case.
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| Labeled French beef (by Yuka for Open Food Facts CC BY-SA 3.0) |
Anyway, in this case, Judge Jackson capably explicated the niche case law of compelled commercial speech and charted the fine if squiggly line separating free speech and business regulation. The risk of deception was more than merely speculative here, she opined, and consumers were demonstrably confused. Industry mistakenly claimed a burden on its pocketbook, rather than its speech rights, Judge Jackson admonished. The COOL Rule was reasonable and hardly burdensome for its expectation of truthful and uncontroversial disclosure. Preliminary injunction was denied.
Big Meat was not easily deterred; the case went for a rodeo ride the following year. The D.C. Circuit affirmed, 746 F.3d 1065 (Mar. 28, 2014), vacated upon granting rehearing en banc, No. 13-5281 (Apr. 4, 2014), and then reinstated affirmance (July 29, 2014).
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| U.S. Defense Department image (C) |
Vaughn index in hand on remand, plaintiff persisted in challenging the adequacy of the FDIC search and "whether withheld information 'has already been made public through an official and documented disclosure.'" Judge Jackson rejected both claims in a short opinion in 2018. She found the first merely speculative. As to the second, the plaintiff "argued that the FDIC's withholdings were improper because the requested information was 'officially' acknowledged by Former FDIC Chairman Sheila Bair in the book Bull by the Horns—a book that Bair published after leaving office." Judge Jackson held that "that contention, too, must be rejected. A book or other material that a former government official publishes in her personal capacity does not qualify as an 'official acknowledgment' of the information contained therein for the purpose of FOIA."
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| Bison trophy at Beaty Biodiversity Museum, Vancouver, B.C. (by Nikkimaria CC BY-SA 3.0) |
Judge Jackson authored a workmanlike exploration of various exemption theories asserted by Interior: accepting attorney-client privilege (exemption 5) and personal-information exemption (6); rejecting deliberative-process exemption, crime-fraud exception to attorney-client privilege, and work product privilege (all exemption 5). She cited House reports to bolster her interpretations of what exemptions 5 and 6 require. In a pattern that became familiar, or maybe just speaks to agency neglect, she faulted Interior for a conclusory ("woefully short") Vaughn index that failed to support exemption. As to exemption 6, which has been aggressively enlarged by federal courts in furtherance of the privacy rage, Judge Jackson accepted Interior's redaction of employee personal information as more or less immaterial to the sought-after accountability. The D.C. Circuit affirmed summarily in No. 15-5131 (Dec. 4, 2015).
Judge Jackson rejected all three grounds. The plaintiff plausibly portrayed RAKIA, an investor rather than governing entity, as a commercial actor and alleged tortfeasor, bringing into play the FSIA commercial and tort exceptions. As alleged, the hacking would have inserted malware into the plaintiff's computer systems, even if the insertion occurred abroad, so the locus of alleged tortious injury was Kansas City, bolstering the FSIA analysis. The forum selection clause did not pertain, Judge Jackson reasoned, because it was articulated in the parties' contract for a prior commercial venture; the contract hardly covered subsequent hacking.
As to venue, Judge Jackson faulted RAKIA for failing to meet its "heavy burden" to show that Azima would get a fair shake in RAKIA's preferred venue of London, where RAKIA might have hoped for a more favorable outcome on immunity. I like that analysis—but cf. infra, re wrongful death/forum non conveniens. My comparative law class just read Professor Vivian Curran's masterful recent work on foreign law in U.S. courts, in which she convincingly demonstrated U.S. federal judges' penchant to over-employ forum non conveniens and thus shirk their responsibility to adjudicate.
Perhaps proving Prof. Curran's thesis, the D.C. Circuit disagreed, holding that the forum selection clause burdened the plaintiff with having to show why London would not work as an appropriate venue, else face dismissal for forum non conveniens. I would be remiss not to mention also: Prof. Curran further faulted the courts for lazy reliance on partisan evidence (my words) when foreign law is concerned, and both Judge Jackson and the D.C. Circuit declared a lack of any responsibility to investigate themselves the adequacy of London as a forum.
FSIA/torture. Azadeh v. Iran, 318 F. Supp. 3d 90 (D.D.C. 2018). Plaintiff was an inmate of an Iranian jail and alleged torture and intentional torts at the hands of the republic. A U.S. court ruling in such a matter is principally symbolic. Iran will not respond; a plaintiff might hope to recover against a U.S. government claim on frozen assets. Accordingly, in this case, a magistrate judge recommended entering default judgment in favor of the plaintiff. I have here omitted cases in which Judge Jackson adopted in toto a magistrate's report; in this case, she did not.
Relying on a manual of the U.S. district courts, the plaintiff had effected service on the state of Iran erroneously, under the wrong order of process under the FSIA. Judge Jackson wrote: "Judges are sometimes called upon to set aside heart-wrenching and
terrible facts about a claimant's treatment at the hands of a defendant
and enforce seemingly draconian, technical mandates of law. This is an
especially difficult duty when the machinery of the judicial system
itself appears to have played a role in the claimant's mistaken view of
the applicable legal requirements. The somber circumstances of the
instant case present one such scenario...." The court put the default judgment on hold and gave the plaintiff a second crack at proper service. Judge Jackson subsequently entered default judgment against Iran, in the sum of $36,411,244, in No. 1:16-cv-1467 (D.D.C. Sept. 5, 2018). Reproduced therein, the magistrate's report detailed the plaintiff's ordeal.
Insurance/settlement. Blackstone v. Brink, 63 F. Supp. 3d 68 (D.D.C. 2014) (D.C. law). In an insurance dispute arising from the alleged wrongful death of a pedestrian, plaintiffs and their attorney apparently changed position on whether to settle with defendant-driver's insurer, State Farm, for the defendant's $100,000 policy limit. After a telephone conversation, State Farm sent a check and a release form to the plaintiffs' attorney. The check crossed in the mail with a letter from the attorney rejecting the offer. Applying D.C. law, Judge Jackson determined that the parties had reached an enforceable agreement on the telephone, evidenced by the specificity of the attorney's instructions on how and where to send the check. The court wrote of the parties' competing narratives: "On this record, it is far more plausible that [plaintiff counsel] accepted [State Farm's] offer on behalf of his clients [plaintiffs], intended that it be final and binding, and later had misgivings about his earlier decision to accept. Unfortunately for Plaintiffs, courts have long held that such buyer's remorse does not vitiate a demonstrated initial intent to be bound by the settlement agreement" (original emphasis).
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| A Medtronic product (Alan Levine CC BY 2.0) |
Wrongful death/sovereign immunity, contributory negligence. Whiteru v. WMATA, 258 F. Supp. 3d 175 (2017). This time the WMATA, the D.C. transit authority, was a negligent defendant rather than plaintiff—cf. WMATA, supra, in civil procedure/statute of limitations—and this time, the authority was ruled not sovereign for purposes of immunity. In what was essentially a slip-and-fall, the plaintiff-decedent's estate and parents blamed the WMATA for not discovering the decedent—a lawyer, by the way—injured on a train platform, in time to provide life-saving medical treatment. A creature of state compact and D.C. statute, the WMATA enjoys an immunity analogous to that of federal defendants under the Federal Tort Claims Act (FTCA). Borrowing the FTCA rule of immunity for discretionary governmental functions, which often presents a frame-of-reference problem in its granular application, Judge Jackson rejected the WMATA theory that officials' conduct was discretionary. Rather, properly, I think, the court accepted the plaintiff's framing of the case as alleging unreasonable comportment with the WMATA standard operating procedures for platform inspection.
At that time in 2017, factual questions in the case precluded summary judgment. However, in 2020, Judge Jackson awarded the WMATA summary judgment upon the plaintiff's contributory negligence. 480 F. Supp. 3d 185. The District is not a comparative fault jurisdiction. The plaintiff's heavy intoxication when he fell was undisputed, and, Judge Jackson opined, video evidence plainly showed that the plaintiff fell because he over-relied on a low wall for support. Just this month, the D.C. Circuit reversed and remanded, ___ F.4th ___ (Feb. 11, 2022), holding that under D.C. law for common-carrier liability, contributory negligence is not the complete defense that it usually is in negligence in the District. |
| Suggested search area for MH370 debris (Andrew Heneen CC BY 4.0) |
Judge Jackson opined:
All told, the Montreal Convention cases in this MDL involve only six U.S. citizens with a direct connection to the Flight MH370 tragedy, as either plaintiffs or decedents. Among the hundreds of passengers on that flight, only three were citizens of the United States, and while the United States undoubtedly has a strong public interest in the claims involving their deaths, its interest pales in comparison to Malaysia's interest in litigating these claims. Malaysia's public interest includes not only an interest in the untimely deaths of the Malaysian pilot and crew, but also an interest in determining precisely what happened to Flight MH370, given that a Malaysian airline owned, operated, and maintained the aircraft; the flight took off from an airport in Malaysia for a destination outside the United States; and it disappeared from radar when Malaysian air traffic controllers were handing off the flight. And Malaysian authorities made substantial investments of time and resources in the wake of this disaster: Malaysia conducted extensive civil and criminal investigations, and changes in Malaysian law led to the creation of a new national Malaysian airline. It is Malaysia's strong interest in the events that give rise to the claims at issue here that makes this a distinctly Malaysian tragedy, notwithstanding the presence of the few Americans onboard Flight MH370.
I really want to lash out against this reasoning. But probably it would be like when I was a little kid fed up with allergy-testing shots and kicked my doctor. Despite my reservations about forum non conveniens, see Prof. Curran, supra, I admit that my frustration stems from doubt that the case could be fairly prosecuted in Malaysia, even if the plane is found, rather than a confidence that the United States is a logical venue. It might not even matter, as the Montreal Convention probably would curb recovery even in U.S. courts. Insofar as I have any legitimate gripe, it's in part that forum non conveniens is just a witless rule out of step with a globalized world, and in part that Judge Jackson should have done some independent investigation of the adequacy of Malaysia as a forum.
The aftermath of the MH370 disappearance revealed concerning deficits in transparency, and, thus, potentially in accountability, in the Malaysian investigative process. And while I don't think Boeing is to blame, having watched Downfall: The Case Against Boeing (2022) on Netflix just last weekend—Langewiesche wrote about the 737 MAX for The New York Times—leaves me distrustful. Indeed, however relying upon precedent, Judge Jackson declined MH370 plaintiffs' last-ditch demand that, at least, Boeing be compelled to promise to abide by U.S. discovery in connection with any subsequent litigation abroad.
The D.C. Circuit affirmed, 946 F.3d 607, and the Supreme Court denied cert., 141 S. Ct. 451, in 2020.
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Here are some quirky pro se claims, just to stimulate the noggin.
Defamation/litigation privilege/statute of limitations. Ray v. Olender, No. 13-1834 (D.D.C. Nov. 21, 2013). Judge Jackson dismissed an odd $5m pro se defamation claim against an attorney, apparently based on a 1965 suit for copyright infringement and counter-suit. She held the claim barred by the one-year D.C. statute of limitations and, anyway, based on statements in pleadings, protected by the litigation privilege.
Copyright/infringement. Buchanan v. Sony Music Ent., No. 18-cv-3028 (D.D.C. May 26, 2020). In a wide-ranging complaint, pro se plaintiff accused defendant music producers of stealing from songs he submitted for consideration. Dismissed, because three of four songs were not registered; plaintiff could not show that any producer actually received a copy of the fourth song demo tape; and plaintiff anyway failed to allege substantial similarity, beyond allegation of "steal[ing]," between defendants' hits and the plaintiff's "I Gos Ta Roll."
Copyright/pleading. Butler v. Cal. St. Disbursement Unit, No. 13-1684 (D.D.C. Oct. 23, 2013). Pro se plaintiff accused the state of copyright infringement for using his name in all capital letters. Dismissed for failure to plead adequately. BUTLER.
Copyright/subject-matter jurisdiction. Miller v. Library of Congress,
No. 1:18-cv-02144 (D.D.C. Nov. 5, 2018). Judge Jackson dismissed for
lack of subject matter jurisdiction a $100m pro se copyright
infringement claim by an author of "a book of songs" who alleged that
the Library of Congress stole the book and allowed it to be used by
others. Held, he should have filed in the Federal Claims Court. I'd return the book, but the fines....
FTCA/FOIA, civil rights. Cofield v. United States, 64 F. Supp. 3d 206 (D.D.C. 2014). A Maryland prisoner, pro se plaintiff sought billions in damages against ICANN and the Obama Administration for improper FOIA denials and race discrimination. On the latter count, the plaintiff essentially accused the government of establishing a business monopoly in ICANN that leaves African-American persons "intentionally omitted, to be left behind when it comes to technology ... by design[.]" An intriguing idea, but not the best spokesperson. The court dismissed for sovereign immunity, as the Federal Tort Claims Act (FTCA) authorizes neither FOIA complaints, which do not entitle a plaintiff to tort damages, nor constitutional claims.
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| Defendant-Justice Scalia (Shawn CC BY-NC 2.0) |
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| Maoz Falafel, Paris (Björn Söderqvist CC BY-SA 2.0) |
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Finally, I don't really care what happened in this case; I just love its name: A Love of Food I v. Maoz Vegetarian USA (D.D.C. 2014). Plaintiff Love of Food was "a franchise of Maoz's vegetarian quick service restaurant" in D.C. When the business failed, Love of Food blamed Maoz. Maoz had failed to register its offering prospectus properly with the state of Maryland, but, Judge Jackson held, that omission did not give Love of Food standing. The court issued mixed results on the, uh, meatier claims of misrepresentation, finding a material dispute of fact over the veracity of startup estimates.
Just wait 'til Big Meat hears about this.
I gos ta roll.
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