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.
“Therefore, we REMAND WITH INSTRUCTIONS that the written judgment be amended... Subject to those two corrections, we AFFIRM the judgment of the district court in all other respects.”
“We can conceive of fact patterns and procedural histories on which a plausible ignorance defense on a status crime could conceivably allow for the withdrawal of a guilty plea. ... because Payne was convicted of three felonies before he was charged, and he was present at various hearings at which Wisconsin's statutory firearms prohibition would have been read, we conclude he has not established a plausible ignorance defense. ... AFFIRMED”
“We therefore VACATE the district court's judgment and REMAND with instructions to dismiss for lack of subject-matter jurisdiction.”
“For these reasons we AFFIRM the judgment of the district court.”
“For all these reasons, we AFFIRM the district court's grant of summary judgment to Envoy, denial of Vesey's Rule 59(e) motion, and order for costs.”
“Because the district court did not err when sentencing Esposito, we affirm.”
“Because the Illinois burglary statute is not divisible, we agree with him that the modified categorical approach does not apply. We therefore grant Parzych's petition for review, vacate the removal order, and remand the case to the Board for further proceedings.”
“Because the plaintiffs in these cases asked the consumer reporting agencies to make primarily legal determinations, they have not stated claims under the Fair Credit Reporting Act, so the judgment of the district court in each case is AFFIRMED.”
“We hold that naming a John Doe defendant does not constitute a 'mistake' within the meaning of Rule 15(c)(1)(C)(ii). ... We therefore REVERSE the district court's judgment and REMAND for further proceedings consistent with this opinion.”
“For the reasons explained below, we affirm his conviction.”
“For these reasons, we DISMISS the appeal of the remand order, and we AFFIRM the fees and costs award and the district court's dismissal with prejudice of Davis's suit against CitiMortgage.”
Put Judge Brennan's record to work
Ezel drafts and answers grounded in this exact profile: how Judge Brennan actually rules, not a generic AI guess.
Opens in Ezel Pro. Every answer is grounded in Judge Brennan's own signed orders and cites them.