Friday, March 04, 2022

A Look at the Jurisprudence of Judge Ketanji Brown Jackson (Bankruptcy and Otherwise)

Supreme Court nominee Judge Ketanji Brown Jackson has played a variety of roles in her legal career. She has been a public defender, an attorney in private practice, a member of the U.S. Sentencing Commission, a U.S. District Judge and a Court of Appeals Judge. Unfortunately, these jobs have given her scant exposure to bankruptcy law. I will explore all three of her bankruptcy related opinions (out of a total of about 600) as well as a handful of her other jurisprudence.

A Small Exposure to Bankruptcy

She had two slight opinions in an appeal dealing with father and son debtors in Washington, D.C. and Tennessee with overlapping property interests. In the case, she was faced with rather mundane requests for a stay pending appeal and to supplement the record. In the Washington, D.C. case, the father claimed a homestead exemption and the bankruptcy judge overruled an objection to the exemption. In the Tennessee case, the trustee sought to sell whatever interest the estate might have in the D.C. property. The creditors sought a stay pending appeal in the appeal of the exemption appeal on the theory that the appeal of the D.C. order could affect proceedings in the Tennessee bankruptcy court. The appellants first filed their motion in the District Court. Faced with an order to show cause why they had not sought relief in the bankruptcy court first, they withdrew their motion and re-filed it in the bankruptcy court. The bankruptcy court denied the motion on the basis that the order being appealed could not have any possible effect on the estate being administered in Tennessee. Judge Ketanji Brown Jackson wisely adopted the Bankruptcy Judge's reasoning and denied the motion when filed in her court for the second time. Brekelmans v. Salas (In re Salas), 2019 U.S. Dist. LEXIS 111597 (D.D.C. 2019). This insignificant case shows that Judge Jackson is familiar with the Bankruptcy Rules and has the good sense to defer to a bankruptcy judge. 

In the same appeal, the appellants sought to supplement the record with statements made by the father and son debtors after the date of the order being appealed. In the alternative, they sought to remand the case to the bankruptcy court for further proceedings. Judge Jackson explained that the record could not be supplemented with evidence that could not have been available to the bankruptcy court in the first place. She treated the alternative request to remand the case as a request to voluntarily dismiss the appeal, which she granted. Salas v. Salas (In re Brekelmans), 2020 U.S. Dist. LEXIS 1582 (D.D.C. 2020).  This second opinion showed good common sense even if the issues were not earthshaking. Judge Jackson also showed remarkable patience in this opinion and the prior one with litigants did not seem to grasp basic concepts. 

 In another case, Judge Jackson considered whether a plaintiff who had failed to list certain FDCPA claims in his schedules had standing to pursue them in Judge Jackson's court. Dalley v. Mitchell Rubenstein & Assocs., 172 F.Supp. 3d (D.D.C. 2016).  The defendant moved to dismiss, arguing that the plaintiff lacked standing and that the claims were barred by judicial estoppel. The debtor argued that he had exempted the claims under the wild card exemption and that they were also exempt as claims for personal injury. Judge Jackson concluded that upon filing the bankruptcy case that the claims had vested in the bankruptcy estate and that the trustee had not abandoned them.  She also rejected the exemption argument. First, she noted that the FDCPA case did not allege bodily injury and therefore could not fit within that exemption. She also concluded that a debtor who makes a wild card exemption has an interest in the proceeds of litigation but not the ability to pursue the claim itself. This case demonstrates that Judge Jackson has some familiarity with consumer bankruptcy concepts.

A Respected Judge

Having exhausted Judge Jackson's bankruptcy jurisprudence, I could end here but will add a bit more. A LEXIS search turns up 681 opinions with her name. These include her many opinions as a U.S. District Judge. There are also opinions where she was an advocate during her time as a public defender and an attorney with Morrison & Foerster. There are also a handful of opinions in which she was one of a large group of judges named as defendants. The final category are opinions in which other judges praise her work. The Fifth Circuit found her "excellent opinion" to be persuasive in Forrest General Hospital v. Azar, 926 F.3d 221 (5th Cir. 2019).  In Wall v. Reliance Standard Life Insurance Co., 2022 U.S. Dist. LEXIS 34744 (D.D.C. 2022) and Da'Vage v. D.C. Housing Authority, 2022 U.S. Dist. LEXIS 16215 (D.D.C. 2022), her former colleagues in the District Court for Washington, D.C. cited her opinions in support of their reasoning. In reading through her opinions, I could find only a handful of instances in which her decisions were reversed. 

A Sampling of Judge Jackson's Opinions (That Probably Won't Be Mentioned At Her Confirmation Hearing)

When Judge Jackson appears for her confirmation hearing, she will no doubt be condemned as an activist in judge's robes. However, her actual record is much more complex.

Her most well-known opinion is probably Committee on the Judiciary v. McGahn, 415 F.Supp. 3d 148 (D.D.C. 2019), aff'd in part, rev'd in part, 2020 U.S. App. LEXIS 38298 (D.C. Cir. 2020)(en banc). In this case, former White House counsel Don McGahn asserted absolute immunity from being compelled to give testimony before the House Judiciary Committee, an assertion Judge Jackson rejected. In her massive opinion, she stated:

Stated simply, the primary takeaway from the past 250 years of recorded American history is that Presidents are not kings. This means that they do not have subjects, bound by loyalty or blood, whose destiny they are entitled to control. Rather, in this land of liberty, it is indisputable that current and former employees of the White House work for the People of the United States, and that they take an oath to protect and defend the Constitution of the United States.

415 F.Supp. 3d at 213. On appeal, the en banc Court affirmed her holding that the Judiciary Committee had standing to seek to enforce its subpoena but remanded for further consideration of McGahn's challenges.

 While the McGahn opinion was unfavorable to the power of the Executive Branch, she had plenty of opinions where she deferred to Executive power. In Sierra Club v. United States Corps of Engineers, 990 F. Supp. 2d 9 (D.D.C. 2013), she refused to enjoin construction of a pipeline. Her opinion was later cited as authority to deny injunctive relief against construction of the XL Keystone Pipeline. In Las Americas Immigrant Advocacy Center v. Wolf, 507 F. Supp. 3d 1 (D.D.C. 2020), she ruled for the Department of Homeland Security on a case involving where persons seeking asylum would be housed prior to a credible fear review.  In Campaign for Accountability v. United States Department of Justice, 486 F.Supp. 3d 424 (D.D.C. 2020), she found that most of the Office of Legal Counsel opinions sought by an advocacy group were not subject to mandatory disclosure. In Prince v. Kobach, 2020 U.S. Dist. LEXIS 215880 (D.D.C. 2020), she found that a voter lacked standing to bring claims related to the election of Donald Trump.

In another interesting opinion which cannot be interpreted on a strictly liberal-conservative spectrum, she implemented the First Step Act to reduce the sentence of a veteran suffering from PTSD who had an enhanced risk of exposure to Covid-19 from 41 months to time served. United States v. Johnson, 464 F.Supp. 3d 22 (D.D.C. 2020).  

Some of her most entertaining opinions involved pro se litigants. In Brailich v. Fox News Network, Ltd.,2020 U.S. Dist. LEXIS 217943 (D.D.C. 2020), a litigant accused Fox News of directing hate speech toward him. Judge Jackson found that the complaint was "so broad and so vague that the pleading does not give the defendants fair notice of the claims asserted against them." In Clark v. Peru Republic, 2020 U.S. Dist. LEXIS 225310 (D.D.C. 2020), she found that a 133-page complaint failed to met Rule 8(a)'s requirement of a short and plain statement. "A complaint such as this this is excessively long, rambling, disjointed, incoherent, or full of irrelevant and confusing material will patently fail Rule 8(a)'s standard." In Naillieux v. Chain of Command, 2020 U.S. Dist. LEXIS 215882 (D.D.C. 2020), she found that "what factual contentions are identifiable are baseless and wholly incredible." In Kirkland v. Barr, 2020 U.S. Dist. LEXIS 215878 (D.D.C. 2020), she rejected a mandamus petition which "seeks to involve the federal government, through U.S. Attorney General William Barr, in paternity proceedings in Kansas courts."  What these short opinions show is that while much of her work involved dry and technical interpretation of federal statutes and regulations, she can wield a sharp pen at times. 

Finally, for those who are wondering, her name comes from Ketanji Onyika, which her parents were told means "lovely one."


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