J. Harvie Wilkinson III
How Judge Wilkinson rules, drawn from 35 signed orders. Every observation links to the order it came from.
How Judge Wilkinson decides
Patterns drawn from this judge's own signed orders. Every observation links to the order it came from.
What persuades
He resolves statutory questions with close textual work, reading a disputed term in the light of the surrounding words and the statute as a whole and treating a phrase carried over from an earlier law as bringing its settled meaning with it, so that ordinary meaning controls unless context clearly displaces it.
“When ‘a word is obviously transplanted from another legal source, whether the common law or other legislation, it brings the old soil with it.’”
He reads waivers of sovereign immunity narrowly, requiring an unambiguous and unequivocal statement in the statutory text and declining to infer a waiver from a general term like “person” when a plausible reading would leave the government immune, out of concern for the public fisc and separation of powers.
“Sovereign immunity, in short, can only be waived by statutory text that is unambiguous and unequivocal. The requirement exists, in part, to prevent the inadvertent imposition of massive monetary loss.”
In cases at the border between courts and the elected branches, zoning, local governance, and contested questions of social policy, he counsels judicial restraint, treating such choices as the province of representative and accountable bodies rather than of federal judges, and directing losing litigants to the legislative forum.
“Such judgments are best left to elected bodies, which are both representative and accountable. Federal courts are relatively beyond the reach of the displeased; democracy by contrast does not disenfranchise the discontented.”
Procedural preferences
He enforces preservation and forum rules strictly: an outcome a party never asked the district court to reach, such as a stay it first requests on appeal, will not be second-guessed, and he declines to fault a trial court for failing to intuit a party's unstated wishes.
“When a party does not ask for a particular outcome below, we do not look kindly at arguments made on appeal that the district court should have intuited the party’s wishes.”
He reads immigration review provisions as a channeling scheme: even potentially meritorious detention-related arguments should proceed through the review route Congress specified instead of a parallel district-court habeas action.
“Congress has made its own clear judgment about how removal proceedings should go forward and how the immigration system is supposed to work.”
When the government invokes the statutory thirty-day deadline for a removal petition, he treats it as mandatory and would not reach the merits of an untimely petition through equitable tolling.
“Because Navarro Cerritos blew past this deadline, we need not address the merits.”
He requires an agency to complete its own review before appellate intervention where jurisdiction extends only to final agency orders.
“We lack jurisdiction over this case. A staff decision presently awaiting agency review is hardly ‘final.’ That should end our inquiry.”
Cautions
He enforces the plaintiff's pleading burden with real bite: conclusory allegations and speculation, even about weighty matters like discrimination, will not survive a motion to dismiss, and an 'obvious alternative explanation' apparent from the complaint itself can defeat an inference of unlawful conduct.
“By offering speculation rather than facts, Katti pled precisely the kind of ‘[l]abels, conclusions, recitation of a claim’s elements, and naked assertions’ that the Rules of Civil Procedure forbid.”
He is protective of officials sued for damages, resolving qualified immunity by asking whether every reasonable officer would have known the conduct was unlawful and reversing a denial of immunity where a reasonable officer could have believed a split-second judgment was consistent with the Constitution, so that only the plainly incompetent lose the shield.
“Because his ‘actions could reasonably have been thought consistent with’ the First and Fourth Amendments, Sergeant Pope is entitled to qualified immunity.”
Signed rulings
A grounded sample of orders signed by this judge, with the verbatim dispositive language.
“The second amended preliminary injunction is hereby affirmed”
“the remainder of dBV’s appeal is dismissed.”
“Finding no abuse of discretion in the district court’s judgment, we affirm it in all respects.”
“We affirm.”
“VACATED AND REMANDED IN PART, DISMISSED IN PART”
“VACATED AND REMANDED”
EXCLUDE: Wilkinson DISSENTED; Judge Gregory authored the majority. Do not integrate. Recorded here only to document the exclusion.
“For the foregoing reasons, the judgment of the district court is affirmed. AFFIRMED”
“The judgment of the district court is accordingly affirmed. AFFIRMED”
“Accordingly, we deny the petition and grant the Board’s cross-petition for enforcement. PETITION DENIED AND CROSS-PETITION FOR ENFORCEMENT GRANTED”
“We affirm the judgment of the district court. AFFIRMED”
“AFFIRMED IN PART, REVERSED IN PART, AND DISMISSED IN PART”
“Because Ervin’s threshold argument for both of his claims fails, we affirm the district court’s denial of Ervin’s motion to withdraw his guilty plea. AFFIRMED”
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