Michael B. Brennan
How Judge Brennan decides
Patterns drawn from this judge's own signed orders. Every observation links to the order it came from.
What persuades
Strict party-presentation and waiver discipline: a litigant must press a theory in the district court and the opening brief; a challenge surfaced for the first time in a reply brief or at oral argument is waived, and prejudice to the opponent reinforces that.
“Not until their final brief before us did plaintiffs first raise an as-applied challenge. ... Their decisions and actions satisfy the waiver scenarios this court described in Bradley, especially failing to pursue the as-applied challenge in the district court and failing to raise it in their opening brief in this appeal.”
Deference to trial-court fact findings and credibility on clear-error review; he will not second-guess a district judge who credited an officer's testimony when the record supports a finding that the stop was pursued diligently.
“In the end, we agree with the district court's conclusion that, at all times during the encounter, Samuelson pursued the stop's mission with 'diligence, not delay.'”
Procedural preferences
Rigorous Article III concrete-injury gatekeeping in consumer/FDCPA suits: confusion, lost sleep, and hiring a lawyer are not injuries in fact, and self-contradictory pleadings about what the plaintiff 'would have' done will not manufacture standing.
“Choice's decisions to hire an attorney and pay an appearance fee are insufficient to establish standing. ... 'A desire to obtain legal advice is not a reason for universal standing.' ... Choice's loss of sleep is likewise insufficient to show a concrete harm.”
He reads statutory limits on jurisdiction for what they are: judicial review of a discretionary cancellation-of-removal denial is confined to constitutional claims and questions of law, and the agency's factfinding and ultimate discretion are off-limits.
“We lack jurisdiction to review the IJ's discretionary decision to deny Sandoval's application for cancellation of removal under 8 U.S.C. 1229b(b)(1). ... We therefore dismiss Sandoval's petition.”
Cautions
Limitations + the discovery rule are enforced on the plaintiff's own contemporaneous record: a personal-injury claim accrues when the plaintiff knew or should have known of the injury and its wrongful cause, even before she knows the conduct was actionable -- letters and medical notes can be dispositive.
“But a variety of personal, legal, and medical documents reveal that Paulsen knew, or should have known, of the alleged injury and its cause several years earlier.”
A represented Social Security claimant cannot win on a duty-to-develop theory merely by pointing to evidence the ALJ could have gathered; counsel's on-the-record assurance that the file is complete lowers the ALJ's supplemental duty, and the court defers to the ALJ on how much evidence is enough.
“We presume the attorney made Bertaud's best case before the ALJ. ... Bertaud's counsel responded: 'Yes, I have and they are complete to the best of my knowledge.' The ALJ was entitled to conclude that additional development of the issues was unnecessary.”
Signed rulings
A grounded sample of orders signed by this judge, with the verbatim dispositive language.
“We hold that plaintiffs waived their as-applied challenge to the County's vaccination policy as violating the Free Exercise Clause of the First Amendment. And plaintiffs concede they do not seek injunctive relief and no longer raise a facial challenge. ... This waiver plus concession ends plaintiffs' constitutional claim.”
“Because her lawsuits were not timely filed within the applicable statute of limitations, we affirm the district court's decision granting the defendants' motion for summary judgment.”
“We lack jurisdiction to review the IJ's discretionary decision to deny Sandoval's application for cancellation of removal under 8 U.S.C. 1229b(b)(1). And we lack jurisdiction to consider the Board's review of the IJ's decision. We therefore dismiss Sandoval's petition, and we need not review his remaining claims.”
“We therefore AFFIRM the district court's decision denying Bertaud's motion for summary judgment and affirming the decision of the Commissioner.”
“Choice has not established Article III standing, and his complaint was therefore properly dismissed for lack of subject matter jurisdiction. We AFFIRM.”
“The district court found, as a factual matter, that Samuelson did not prolong Devalois's traffic stop to conduct a dog sniff. That was not clearly erroneous. ... The district court's decision denying his motion to suppress the gun is therefore AFFIRMED.”