Since his appointment to the U.S. Court of Appeals for the D.C. Circuit in 2006, Judge Brett Kavanaugh has sat on few class-action appeals. But now that he’s been nominated to take Anthony Kennedy’s place on the U.S. Supreme Court, we thought we’d take a quick look at how potential-Justice Kavanaugh has handled class actions.
Generally, Judge Kavanaugh has sided with defendants, and the consensus is that he’s pro-business. But on three occasions he was part of a unanimous three-judge panel that ruled in favor of class plaintiffs. See NB ex rel. Peacock v. District of Columbia, 682 F.3d 77 (D.C. Cir. 2012) (holding plaintiffs had Article III standing to bring suit); Artis v. Bernanke, 630 F.3d 1031 (D.C. Cir. 2011) (holding plaintiffs had exhausted administrative remedies and could bring suit); Schuler v. PricewaterhouseCoopers LLP, 514 F.3d 1365 (D.C. Cir. 2008) (holding plaintiffs had satisfied ADEA’s procedural requirements to bring suit). And on one other occasion he wrote a short opinion concurring in the judgment to create a 2-1 majority in favor of a class of retired pilots. See Stephens v. U.S. Airways Group, Inc., 644 F.3d 437, 442 (D.C. Cir. 2011) (Kavanaugh, J., concurring) (agreeing pilots were entitled to interest on lump-sum retirement benefits under ERISA). None of these cases addressed Rule 23 issues.
Notably, Judge Kavanaugh has never written a majority opinion dealing directly with class-action issues. In Mills v. Giant of Maryland, LLC, 508 F.3d 11 (D.C. Cir. 2007), Judge Kavanaugh wrote an opinion affirming the dismissal of the class’s claims—but the opinion doesn’t address any issue specific to class actions because the case was dismissed on the merits. The Mills case was a class action brought by lactose-intolerant individuals against nine milk sellers, and Judge Kavanaugh’s opinion (written for a panel that included Judge Merrick Garland) held that, under D.C. law, the risk that milk can cause stomach discomfort to lactose-intolerant individuals who don’t yet know of their condition cannot support a failure-to-warn claim.
Similarly, in Cannon v. District of Columbia, 783 F.3d 327 (D.C. Cir. 2015), a class of retired police officers claimed that offsets of their salaries violated the Public Tax Act. Judge Kavanaugh wrote the majority opinion without addressing any issue specific to class actions, holding that there was no violation of the Public Tax Act as a matter of law.
Judge Kavanaugh’s only notable...
