How Would Supreme Court Nominee Garland Vote on Special Education Decisions? #SCOTUS #Garland

President Obama has appointed Merrick Garland to the U S Supreme Court. Here is the White House press release and some biographical information about the nominee. Here is a PBS story on the nomination. Here is the CNN story on the nomination.

Although I am aware that the Senate still has to confirm the nominee and - amazingly - there is politics involved in the process, I began to wonder how Chief Judge Garland would vote on special education cases as a justice on the Supreme Court. There are only ten supreme court decisions concerning IDEA (and its predecessor EHA), but they are among the most important decisions in special education law. So I did a little research concerning his previous decisions. I'm not sure that I have much to show for my work, but I will share it with you.

By my count, Chief Judge Garland participated on eight D. C. Circuit panels (of three judges) issuing published decisions in which other judges issued an opinion. Here is a list: DL v Dist of Columbia 61 IDELR 2, 713 F.3d 120 (DC Cir 4/12/13); Petities by Martin v District of Columbia 55 IDELR 271, 662 F.3d 564 (DC Cir 12/2/11);  Blackman v District of Columbia 46 IDELR 31, 456 F.3d 167 (DC Cir 7/12/06); Lesesne ex rel BF v District of Columbia 45 IDELR 208, 447 F.3d 828 (DC Cir 5/19/06); Whatley &; Williams ex rel Whatley v District of Columbia 45 IDELR 180, 447 F.3d 814 (DC Cir 5/5/06); Alegria ex rel Alegria v District of Columbia 42 IDELR 110, 391 F.3d 262 (DC Cir 12/3/04); Calloway v District of Columbia 32 IDELR 234, 216 F.3d 17 (DC Cir 6/30/00); Lemon by Trice v District of Columbia 22 IDELR 847, 124 F.3d 1309 (DC Cir 8/22/97). Chief Judge Garland did not write the opinion in any of these cases.

Unfortunately, I could find only one special education decision written  by C.J. Garland, and it was a dissent. In Akinseye v District of Columbia 339 F.3d 970, 39 IDELR 212 (D.C. Cir. 8/15/2003) he dissented from the majority position that there was no subject matter jurisdiction and instead would have reached the same result as the majority by dismissing because the matter was not raised by the parties' briefs. This is a pretty technical procedural issue rather than a merits type decision, and in any event it is only a dissent.

Here is the entire dissenting opinion in blue type:

GARLAND, Circuit Judge, dissenting: The district court denied the plaintiffs’ claim to interest for late payment of attorney’s fees on the ground that the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. § 1400 et seq., gave them no right to such fees in the first place. That issue — whether the plaintiffs had an underlying right to fees — was the only issue briefed to this court. My colleagues have instead presented a case for the proposition that, even if the plaintiffs were entitled to attorney’s fees, they do not have a claim for interest under the IDEA. But there is also a case to be made for the opposite proposition, that the IDEA itself provides a federal cause of action for such interest as ‘‘part of the costs’’ of the litigation, 20 U.S.C. § 1415(i)(3)(B). Cf. Missouri v. Jenkins, 491 U.S. 274, 284 (1989) (holding that ‘‘[a]n adjustment for delay in payment is TTT an appropriate factor in the determination of what constitutes a reasonable attorney’s fee under’’ 42 U.S.C. § 1988); Copeland v. Marshall, 641 F.2d 880, 892–93 (D.C. Cir. 1980) (en banc) (holding that ‘‘in Title VII and similar fee-setting cases,’’ a court may grant an ‘‘adjustment to reflect the delay in receipt of payment’’ because such delay ‘‘deprives the eventual recipient of the value of the use of the money in the meantime’’). Just how strong the plaintiffs’ claim for interest might be is hard to assess, since neither side has submitted briefs on the question. ‘‘Dismissal for lack of subject-matter jurisdiction,’’ however, ‘‘is proper only when the claim is so insubstantial, implausible, foreclosed by prior decisions TTT, or otherwise completely devoid of merit as not to involve a federal controversy.’’ Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 89 (1998) (internal quotation marks omitted); see Bell v. Hood, 327 U.S. 678, 682–83 (1946). Whether or not the plaintiffs’ claim would ultimately prevail, it certainly does not fall into any of those categories. Because the question of the validity of the plaintiffs’ claim to interest therefore goes to the merits of the dispute and not to our subject-matter jurisdiction, I would follow our usual practice and decline to dispose of this appeal on a ground ‘‘not raised in the parties’ briefs.’’ Time Warner Entm’t Co. v. 2 FCC, 93 F.3d 957, 964 (D.C. Cir. 1996); see Carducci v. Regan, 714 F.2d 171, 177 (D.C. Cir. 1983). Accordingly, I respectfully dissent.

You can read the entire decision here.

I have not reached any conclusion from this research concerning how Chief Judge Garland might vote as a Supreme Court Justice. What do you think?