David S. Tatel
Encyclopedia
David S. Tatel is an American jurist
who has been a judge on the United States Court of Appeals for the District of Columbia Circuit
since 1994.
and his J.D. from the University of Chicago
. Following law school, he served as an instructor at the University of Michigan Law School
and then joined Sidley Austin
in Chicago. Since then, he served as founding director of the Chicago Lawyers' Committee for Civil Rights Under Law, Director of the National Lawyers' Committee for Civil Rights Under Law
, and Director of the Office for Civil Rights of the United States Department of Health, Education, and Welfare during the Carter
Administration. Returning to private practice in 1979, Tatel joined Hogan & Hartson, where he founded and headed the firm's education practice until his appointment to the D.C. Circuit. While on sabbatical from Hogan and Hartson, Tatel spent a year as a lecturer at Stanford Law School
.
, 600 F.3d 642 (D.C. Cir. 2010): The D.C. Circuit held that, under current Supreme Court and D.C. Circuit precedent, the Federal Communications Commission
had not demonstrated sufficient statutory authority – express or “ancillary” – to regulate the network management practices of a particular internet service provider. The Court therefore vacated the F.C.C.’s Order on review.
Northwest Austin Municipal Utility District Number One v. Mukasey
, 573 F.Supp.2d 221 (D.D.C. 2008): Rejecting a constitutional challenge to the Voting Rights Act
's preclearance requirement, Judge Tatel’s 121-page opinion held that the rationality standard articulated in South Carolina v. Katzenbach
and City of Rome v. United States—two Supreme Court decisions upholding prior versions of the Act—remains the appropriate standard of review despite the congruence and proportionality test announced in City of Boerne v. Flores
. After a thorough review of the legislative record, which documented the continuing problem of racial discrimination in voting, the court concluded that the preclearance requirement satisfies both the rationality standard and the more demanding congruence and proportionality test.
In Re: Grand Jury Subpoena, Judith Miller, 397 F.3d 964 (D.C. Cir. 2005): While investigating the Valerie Plame affair
, a grand jury issued subpoenas to journalists Judith Miller
and Matthew Cooper
regarding their communications with Scooter Libby. Refusing to testify before the grand jury, Miller spent ninety days in jail for civil contempt. The D.C. Circuit unanimously upheld the contempt decision. Judge Tatel concurred, suggesting that there is a federal common law, qualified journalist privilege, but that it was not met in this case because the grand jury’s need for the journalists’ testimony outweighed the burden of disclosure on newsgathering. Borrowing Tatel’s suggestion for a federal, qualified journalist privilege, the Free Flow of Information Act
is now under consideration in Congress.
Massachusetts v. Environmental Protection Agency
, 415 F.3d 50 (D.C. Cir. 2005): The D.C. Circuit held that the United States Environmental Protection Agency (EPA) properly had declined to exercise its authority to regulate greenhouse gas emissions from motor vehicles. Later vindicated by the Supreme Court, Judge Tatel’s dissent argued that the EPA had failed to comply with the mandate of the Clean Air Act
when it had declined to issue regulations without giving a statutorily based justification for not making a finding of environmental endangerment.
Center for National Security Studies v. U.S. Department of Justice, 331 F.3d 918 (D.C. Cir. 2003): Denying a Freedom of Information Act
(FOIA) request seeking the names of post-9/11 detainees and their attorneys, the D.C. circuit, articulating what would become known as the mosaic theory
, held that this information was within FOIA’s law enforcement exemption. Judge Tatel dissented, saying the “court’s uncritical deference to the government’s vague, poorly explained arguments for withholding [information] as well as its willingness to fill in the factual and logical gaps in the government’s case, eviscerates both FOIA itself and the principles of openness in government that FOIA embodies.” Moreover, Judge Tatel noted, there was “ample evidence of agency wrongdoing. The record includes [many public documents] reporting alleged governmental abuses such as holding detainees for long periods without allowing them to seek or communicate with counsel and without charging them.... History, moreover, is full of examples of situations in which just these sorts of allegations led to the discovery of serious government wrongdoing.” Litigation related to the post-9/11 detainment of hundreds of Arab and Muslim immigrants and citizens remains pending in many courts.
Nextwave Personal Communications v. Federal Communications Commission, 254 F.3d 130 (D.C. Cir. 2001) – The FCC cancelled the licenses of a telecommunications company that had declared bankruptcy and failed to make installment payments for the license. On appeal, the D.C. Circuit held that the installment payments constituted dischargeable debts under the Bankruptcy Code. As a result, the FCC could not cancel the licenses simply for Nextwave’s failure to make those payments, and instead had to proceed like a normal creditor. Eight justices of the Supreme Court voted to affirm the court’s decision.
American Trucking Associations, Inc. v. Environmental Protection Agency
, 175 F.3d 1027 (D.C. Cir. 1999): Invalidating national ambient air quality standards for ozone and particulate matter, the D.C. Circuit concluded that Congress unconstitutionally delegated its legislative powers to the United States Environmental Protection Agency. Tatel dissented, rebutting the majority’s non-delegation theory and arguing that EPA acted within its statutory authority under the Clean Air Act. Agreeing with Judge Tatel, a unanimous Supreme Court, in an opinion written Justice Scalia, reversed the D.C. Circuit
. On remand, Judge Tatel’s majority opinion held that the EPA’s regulations were neither arbitrary nor capricious.
In re: Sealed Case, 124 F.3d 230 (D.C. Cir. 1997) – In this case, a grand jury subpoenaed testimony from an attorney on the contents of his discussions with and work on behalf of a deceased client (Vince Foster). The attorney and his law firm successfully moved to quash the subpoenas in the district court, but the D.C. Circuit reversed, creating a balancing test to determine when communications are privileged in cases such as this. In a dissenting opinion, Judge Tatel wrote that the common law’s attorney-client privilege survives the death of the client. In a 6-3 decision (Swidler & Berlin v. United States, 524 U.S. 399), the Supreme Court agreed.
; and the National Academy of Education. He chaired the Board of The Spencer Foundation
from 1990 to 1997, the Board of The Carnegie Foundation for the Advancement of Teaching
from 2005 to 2009, and served on the Board of Equal Justice Works
. Tatel and his wife, Edith, have four children and seven grandchildren.
Jurist
A jurist or jurisconsult is a professional who studies, develops, applies, or otherwise deals with the law. The term is widely used in American English, but in the United Kingdom and many Commonwealth countries it has only historical and specialist usage...
who has been a judge on the United States Court of Appeals for the District of Columbia Circuit
United States Court of Appeals for the District of Columbia Circuit
The United States Court of Appeals for the District of Columbia Circuit known informally as the D.C. Circuit, is the federal appellate court for the U.S. District Court for the District of Columbia. Appeals from the D.C. Circuit, as with all the U.S. Courts of Appeals, are heard on a...
since 1994.
Career
Tatel received his undergraduate degree from the University of MichiganUniversity of Michigan
The University of Michigan is a public research university located in Ann Arbor, Michigan in the United States. It is the state's oldest university and the flagship campus of the University of Michigan...
and his J.D. from the University of Chicago
University of Chicago
The University of Chicago is a private research university in Chicago, Illinois, USA. It was founded by the American Baptist Education Society with a donation from oil magnate and philanthropist John D. Rockefeller and incorporated in 1890...
. Following law school, he served as an instructor at the University of Michigan Law School
University of Michigan Law School
The University of Michigan Law School is the law school of the University of Michigan, in Ann Arbor. Founded in 1859, the school has an enrollment of about 1,200 students, most of whom are seeking Juris Doctor or Master of Laws degrees, although the school also offers a Doctor of Juridical...
and then joined Sidley Austin
Sidley Austin
Sidley Austin LLP, formerly known as Sidley Austin Brown & Wood LLP, is one of the oldest law firms in the world. It is the sixth-largest U.S.-based corporate law firm with more than 1,650 lawyers, annual revenues of more than one billion dollars, and offices in 17 cities worldwide, with the most...
in Chicago. Since then, he served as founding director of the Chicago Lawyers' Committee for Civil Rights Under Law, Director of the National Lawyers' Committee for Civil Rights Under Law
Lawyers' Committee for Civil Rights Under Law
The Lawyers' Committee for Civil Rights under Law, often simply The Lawyers' Committee for Civil Rights or Lawyers' Committee, is a civil rights organization that was founded in 1963 at the request of President John F. Kennedy.-Origins: 1963-1973:...
, and Director of the Office for Civil Rights of the United States Department of Health, Education, and Welfare during the Carter
Jimmy Carter
James Earl "Jimmy" Carter, Jr. is an American politician who served as the 39th President of the United States and was the recipient of the 2002 Nobel Peace Prize, the only U.S. President to have received the Prize after leaving office...
Administration. Returning to private practice in 1979, Tatel joined Hogan & Hartson, where he founded and headed the firm's education practice until his appointment to the D.C. Circuit. While on sabbatical from Hogan and Hartson, Tatel spent a year as a lecturer at Stanford Law School
Stanford Law School
Stanford Law School is a graduate school at Stanford University located in the area known as the Silicon Valley, near Palo Alto, California in the United States. The Law School was established in 1893 when former President Benjamin Harrison joined the faculty as the first professor of law...
.
Notable opinions
Comcast v. Federal Communications CommissionComcast Corp. v. FCC
Comcast Corp. v. FCC, 600 F.3d 642, is a 2010 United States Court of Appeals for the District of Columbia case holding that the Federal Communications Commission does not have ancillary jurisdiction over Comcast’s Internet service under the language of the Communications Act of 1934...
, 600 F.3d 642 (D.C. Cir. 2010): The D.C. Circuit held that, under current Supreme Court and D.C. Circuit precedent, the Federal Communications Commission
Federal Communications Commission
The Federal Communications Commission is an independent agency of the United States government, created, Congressional statute , and with the majority of its commissioners appointed by the current President. The FCC works towards six goals in the areas of broadband, competition, the spectrum, the...
had not demonstrated sufficient statutory authority – express or “ancillary” – to regulate the network management practices of a particular internet service provider. The Court therefore vacated the F.C.C.’s Order on review.
Northwest Austin Municipal Utility District Number One v. Mukasey
Northwest Austin Municipal Utility District No. 1 v. Holder
Northwest Austin Municipal Utility District No. 1 v. Holder, 557 U.S. ___ , was a decision of the United States Supreme Court regarding Section 5 of the Voting Rights Act, and in particular its requirement that proposed electoral-law changes in certain states must first receive pre-clearance from...
, 573 F.Supp.2d 221 (D.D.C. 2008): Rejecting a constitutional challenge to the Voting Rights Act
Voting Rights Act
The Voting Rights Act of 1965 is a landmark piece of national legislation in the United States that outlawed discriminatory voting practices that had been responsible for the widespread disenfranchisement of African Americans in the U.S....
's preclearance requirement, Judge Tatel’s 121-page opinion held that the rationality standard articulated in South Carolina v. Katzenbach
South Carolina v. Katzenbach
South Carolina v. Katzenbach, 383 U.S. 301 is a United States Supreme Court case in which the Court rejected a challenge by the state of South Carolina to the preclearance provisions of the Voting Rights Act of 1965, which required that some states submit changes in election districts to the...
and City of Rome v. United States—two Supreme Court decisions upholding prior versions of the Act—remains the appropriate standard of review despite the congruence and proportionality test announced in City of Boerne v. Flores
City of Boerne v. Flores
City of Boerne v. Flores, 521 U.S. 507 , was a Supreme Court case concerning the scope of Congress's enforcement power under the fifth section of the Fourteenth Amendment...
. After a thorough review of the legislative record, which documented the continuing problem of racial discrimination in voting, the court concluded that the preclearance requirement satisfies both the rationality standard and the more demanding congruence and proportionality test.
In Re: Grand Jury Subpoena, Judith Miller, 397 F.3d 964 (D.C. Cir. 2005): While investigating the Valerie Plame affair
Plame affair
The Plame Affair involved the identification of Valerie Plame Wilson as a covert Central Intelligence Agency officer. Mrs. Wilson's relationship with the CIA was formerly classified information...
, a grand jury issued subpoenas to journalists Judith Miller
Judith Miller (journalist)
Judith Miller is a Pulitzer Prize-winning American journalist, formerly of the New York Times Washington bureau. Her coverage of Iraq's alleged Weapons of Mass Destruction program both before and after the 2003 invasion generated much controversy...
and Matthew Cooper
Matthew Cooper (American journalist)
Matthew Cooper is a former reporter for Time who, along with New York Times reporter Judith Miller was held in contempt of court and threatened with imprisonment for refusing to testify before the Grand Jury regarding the Valerie Plame CIA leak investigation. He currently works as the managing...
regarding their communications with Scooter Libby. Refusing to testify before the grand jury, Miller spent ninety days in jail for civil contempt. The D.C. Circuit unanimously upheld the contempt decision. Judge Tatel concurred, suggesting that there is a federal common law, qualified journalist privilege, but that it was not met in this case because the grand jury’s need for the journalists’ testimony outweighed the burden of disclosure on newsgathering. Borrowing Tatel’s suggestion for a federal, qualified journalist privilege, the Free Flow of Information Act
Free Flow of Information Act
The Free Flow of Information Act is a bill intended to provide a news reporter with the right to refuse to testify as to information or sources of information obtained during the newsgathering and dissemination process....
is now under consideration in Congress.
Massachusetts v. Environmental Protection Agency
Massachusetts v. Environmental Protection Agency
Massachusetts v. Environmental Protection Agency, 549 U.S. 497 , is a U.S. Supreme Court case decided 5-4 in which twelve states and several cities of the United States brought suit against the United States Environmental Protection Agency to force that federal agency to regulate carbon dioxide...
, 415 F.3d 50 (D.C. Cir. 2005): The D.C. Circuit held that the United States Environmental Protection Agency (EPA) properly had declined to exercise its authority to regulate greenhouse gas emissions from motor vehicles. Later vindicated by the Supreme Court, Judge Tatel’s dissent argued that the EPA had failed to comply with the mandate of the Clean Air Act
Clean Air Act
A Clean Air Act is one of a number of pieces of legislation relating to the reduction of airborne contaminants, smog and air pollution in general. The use by governments to enforce clean air standards has contributed to an improvement in human health and longer life spans...
when it had declined to issue regulations without giving a statutorily based justification for not making a finding of environmental endangerment.
Center for National Security Studies v. U.S. Department of Justice, 331 F.3d 918 (D.C. Cir. 2003): Denying a Freedom of Information Act
Freedom of Information Act (United States)
The Freedom of Information Act is a federal freedom of information law that allows for the full or partial disclosure of previously unreleased information and documents controlled by the United States government. The Act defines agency records subject to disclosure, outlines mandatory disclosure...
(FOIA) request seeking the names of post-9/11 detainees and their attorneys, the D.C. circuit, articulating what would become known as the mosaic theory
Mosaic theory
Mosaic theory, also referred to more colloquially as the scuttlebutt method by Philip Fisher in his seminal work Common Stocks and Uncommon Profits, in finance is the method used in security analysis to gather information about a corporation. Mosaic theory involves collecting information from...
, held that this information was within FOIA’s law enforcement exemption. Judge Tatel dissented, saying the “court’s uncritical deference to the government’s vague, poorly explained arguments for withholding [information] as well as its willingness to fill in the factual and logical gaps in the government’s case, eviscerates both FOIA itself and the principles of openness in government that FOIA embodies.” Moreover, Judge Tatel noted, there was “ample evidence of agency wrongdoing. The record includes [many public documents] reporting alleged governmental abuses such as holding detainees for long periods without allowing them to seek or communicate with counsel and without charging them.... History, moreover, is full of examples of situations in which just these sorts of allegations led to the discovery of serious government wrongdoing.” Litigation related to the post-9/11 detainment of hundreds of Arab and Muslim immigrants and citizens remains pending in many courts.
Nextwave Personal Communications v. Federal Communications Commission, 254 F.3d 130 (D.C. Cir. 2001) – The FCC cancelled the licenses of a telecommunications company that had declared bankruptcy and failed to make installment payments for the license. On appeal, the D.C. Circuit held that the installment payments constituted dischargeable debts under the Bankruptcy Code. As a result, the FCC could not cancel the licenses simply for Nextwave’s failure to make those payments, and instead had to proceed like a normal creditor. Eight justices of the Supreme Court voted to affirm the court’s decision.
American Trucking Associations, Inc. v. Environmental Protection Agency
Whitman v. American Trucking Associations, Inc.
Whitman v. American Trucking Associations, Inc., , was a case decided by the United States Supreme Court in which the Environmental Protection Agency's National Ambient Air Quality Standard for regulating ozone and particulate matter was challenged by the American Trucking Association along with...
, 175 F.3d 1027 (D.C. Cir. 1999): Invalidating national ambient air quality standards for ozone and particulate matter, the D.C. Circuit concluded that Congress unconstitutionally delegated its legislative powers to the United States Environmental Protection Agency. Tatel dissented, rebutting the majority’s non-delegation theory and arguing that EPA acted within its statutory authority under the Clean Air Act. Agreeing with Judge Tatel, a unanimous Supreme Court, in an opinion written Justice Scalia, reversed the D.C. Circuit
Whitman v. American Trucking Associations, Inc.
Whitman v. American Trucking Associations, Inc., , was a case decided by the United States Supreme Court in which the Environmental Protection Agency's National Ambient Air Quality Standard for regulating ozone and particulate matter was challenged by the American Trucking Association along with...
. On remand, Judge Tatel’s majority opinion held that the EPA’s regulations were neither arbitrary nor capricious.
In re: Sealed Case, 124 F.3d 230 (D.C. Cir. 1997) – In this case, a grand jury subpoenaed testimony from an attorney on the contents of his discussions with and work on behalf of a deceased client (Vince Foster). The attorney and his law firm successfully moved to quash the subpoenas in the district court, but the D.C. Circuit reversed, creating a balancing test to determine when communications are privileged in cases such as this. In a dissenting opinion, Judge Tatel wrote that the common law’s attorney-client privilege survives the death of the client. In a 6-3 decision (Swidler & Berlin v. United States, 524 U.S. 399), the Supreme Court agreed.
Personal life
Tatel is a member of the National Academy of Sciences' Committee of Science, Technology, and Law; the American Philosophical SocietyAmerican Philosophical Society
The American Philosophical Society, founded in 1743, and located in Philadelphia, Pa., is an eminent scholarly organization of international reputation, that promotes useful knowledge in the sciences and humanities through excellence in scholarly research, professional meetings, publications,...
; and the National Academy of Education. He chaired the Board of The Spencer Foundation
The Spencer Foundation
The Spencer Foundation was established in 1962 by Lyle M. Spencer. The foundation makes grants to support research for areas of education, widely construed....
from 1990 to 1997, the Board of The Carnegie Foundation for the Advancement of Teaching
The Carnegie Foundation for the Advancement of Teaching
Founded by Andrew Carnegie in 1905 and chartered in 1906 by an act of the United States Congress, the Carnegie Foundation for the Advancement of Teaching is an independent policy and research center, whose primary activities of research and writing have resulted in published reports on every level...
from 2005 to 2009, and served on the Board of Equal Justice Works
Equal Justice Works
Equal Justice Works is a Washington, DC-based nonprofit organization that focuses on careers in public service for lawyers. Equal Justice Works’ stated mission is “to create a just society by mobilizing the next generation of lawyers committed to equal justice.”...
. Tatel and his wife, Edith, have four children and seven grandchildren.