David S. Tatel : biography
David S. Tatel (born March 16, 1942) is an American jurist who has been a judge on the United States Court of Appeals for the District of Columbia Circuit since 1994.
Comcast v. Federal Communications Commission, 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.
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