Diarmuid Fionntain O'Scannlain ( ; born March 28, 1937) is a
Senior
Senior (shortened as Sr.) means "the elder" in Latin and is often used as a suffix for the elder of two or more people in the same family with the same given name, usually a parent or grandparent. It may also refer to:
* Senior (name), a surname ...
United States circuit judge of the
United States Court of Appeals for the Ninth Circuit
The United States Court of Appeals for the Ninth Circuit (in case citations, 9th Cir.) is the U.S. federal court of appeals that has appellate jurisdiction over the U.S. district courts in the following federal judicial districts:
* Distri ...
. His chambers are located in
Portland
Portland most commonly refers to:
* Portland, Oregon, the largest city in the state of Oregon, in the Pacific Northwest region of the United States
* Portland, Maine, the largest city in the state of Maine, in the New England region of the northeas ...
,
Oregon
Oregon () is a state in the Pacific Northwest region of the Western United States. The Columbia River delineates much of Oregon's northern boundary with Washington, while the Snake River delineates much of its eastern boundary with Idah ...
.
Early life
Born in
New York City
New York, often called New York City or NYC, is the most populous city in the United States. With a 2020 population of 8,804,190 distributed over , New York City is also the most densely populated major city in the U ...
,
New York
New York most commonly refers to:
* New York City, the most populous city in the United States, located in the state of New York
* New York (state), a state in the northeastern United States
New York may also refer to:
Film and television
* '' ...
, O'Scannlain received a
Bachelor of Arts
Bachelor of arts (BA or AB; from the Latin ', ', or ') is a bachelor's degree awarded for an undergraduate program in the arts, or, in some cases, other disciplines. A Bachelor of Arts degree course is generally completed in three or four yea ...
degree from
St. John's University St John's University may refer to:
*St. John's University (New York City)
**St. John's University School of Law
**St. John's University (Italy) - Overseas Campus
*College of Saint Benedict and Saint John's University, St. Joseph, Minnesota and Col ...
in 1957, a
Juris Doctor
The Juris Doctor (J.D. or JD), also known as Doctor of Jurisprudence (J.D., JD, D.Jur., or DJur), is a graduate-entry professional degree in law
and one of several Doctor of Law degrees. The J.D. is the standard degree obtained to practice l ...
from
Harvard Law School
Harvard Law School (Harvard Law or HLS) is the law school of Harvard University, a private research university in Cambridge, Massachusetts. Founded in 1817, it is the oldest continuously operating law school in the United States.
Each class ...
in 1963, and a
Master of Laws
A Master of Laws (M.L. or LL.M.; Latin: ' or ') is an advanced postgraduate academic degree, pursued by those either holding an undergraduate academic law degree, a professional law degree, or an undergraduate degree in a related subject. In mos ...
from the
University of Virginia School of Law
The University of Virginia School of Law (Virginia Law or UVA Law) is the law school of the University of Virginia, a public research university in Charlottesville, Virginia. It was founded in 1819 by Thomas Jefferson as part of his "academical v ...
in 1992. He was in the
United States Army
The United States Army (USA) is the land warfare, land military branch, service branch of the United States Armed Forces. It is one of the eight Uniformed services of the United States, U.S. uniformed services, and is designated as the Army o ...
Reserve, JAG Corps from 1955 to 1978.
In September 1960, O'Scannlain attended the founding conference of
Young Americans for Freedom
Young Americans for Freedom (YAF) is a conservative youth activism organization that was founded in 1960 as a coalition between traditional conservatives and libertarians on American college campuses. It is a 501(c)(3) nonprofit organizatio ...
, held at
William F. Buckley Jr.
William Frank Buckley Jr. (born William Francis Buckley; November 24, 1925 – February 27, 2008) was an American public intellectual, conservative author and political commentator. In 1955, he founded ''National Review'', the magazine that stim ...
's estate in
Sharon,
Connecticut
Connecticut () is the southernmost state in the New England region of the Northeastern United States. It is bordered by Rhode Island to the east, Massachusetts to the north, New York to the west, and Long Island Sound to the south. Its cap ...
. At that conference O'Scannlain was elected to serve on YAF's original Board of Directors.
He was a tax attorney for the
Standard Oil Company of New Jersey
ExxonMobil, an American multinational oil and gas corporation presently based out of Texas, has had one of the longest histories of any company in its industry. A direct descendant of John D. Rockefeller's Standard Oil, the company traces its roo ...
and New York City from 1963 to 1965, and in private practice in
Portland
Portland most commonly refers to:
* Portland, Oregon, the largest city in the state of Oregon, in the Pacific Northwest region of the United States
* Portland, Maine, the largest city in the state of Maine, in the New England region of the northeas ...
,
Oregon
Oregon () is a state in the Pacific Northwest region of the Western United States. The Columbia River delineates much of Oregon's northern boundary with Washington, while the Snake River delineates much of its eastern boundary with Idah ...
from 1965 to 1969. He was a deputy state attorney general in the
Oregon Department of Justice
The Oregon Department of Justice (DOJ), headed by the Oregon Attorney General (currently Ellen Rosenblum), is the main legal branch of the government of the U.S. state of Oregon. The DOJ is part of Oregon's executive branch, and most of its emp ...
from 1969 to 1971, then an Oregon public utility commissioner from 1971 to 1973, and finally Director of the
Oregon Department of Environmental Quality from 1973 to 1974.
Run for Congress
In 1974, O'Scannlain was the Republican candidate for the
United States House of Representatives
The United States House of Representatives, often referred to as the House of Representatives, the U.S. House, or simply the House, is the lower chamber of the United States Congress, with the Senate being the upper chamber. Together the ...
representing
Oregon's 1st congressional district
Oregon's 1st congressional district is a congressional district located in the U.S state of Oregon. The district stretches from Portland's western suburbs and exurbs, to parts of the Oregon coast. The district includes the principal cities of ...
, but lost to Democrat
Les AuCoin
Walter Leslie AuCoin ( ; born October 21, 1942) is an American politician. In 1974 he became the first person from the Democratic Party to be elected to the U.S. House of Representatives from , since it was formed in 1892. The seat has been held ...
, the first time the district had ever elected a Democrat.
He returned to private practice in Portland from 1975 to 1986, also working as a consultant to the Office of the President-Elect of the United States from 1980 to 1981, and as a team leader for the President's Private Sector Survey on Cost Control (the
Grace Commission
The Private Sector Survey on Cost Control (PSSCC), commonly referred to as the Grace Commission, was an investigation requested by United States President Ronald Reagan, authorized in on June 30, 1982. In doing so President Reagan used the now fa ...
) from 1982 to 1983. He chaired an advisory panel for the
United States Secretary of Energy
The United States secretary of energy is the head of the United States Department of Energy, a member of the Cabinet of the United States, and fifteenth in the presidential line of succession. The position was created on October 1, 1977, when Pr ...
from 1983 to 1985.
Federal judicial service
On August 11, 1986, President
Ronald Reagan nominated O'Scannlain to a seat on the
United States Court of Appeals for the Ninth Circuit
The United States Court of Appeals for the Ninth Circuit (in case citations, 9th Cir.) is the U.S. federal court of appeals that has appellate jurisdiction over the U.S. district courts in the following federal judicial districts:
* Distri ...
vacated by Judge
Robert Boochever. O'Scannlain was confirmed by the
United States Senate
The United States Senate is the upper chamber of the United States Congress, with the House of Representatives being the lower chamber. Together they compose the national bicameral legislature of the United States.
The composition and ...
on September 25, 1986, and received his commission on September 26, 1986. He took
senior status
Senior status is a form of semi- retirement for United States federal judges. To qualify, a judge in the federal court system must be at least 65 years old, and the sum of the judge's age and years of service as a federal judge must be at leas ...
on December 31, 2016.
In 2006, he was one of the judges in the panel that upheld the imprisonment of journalist
Josh Wolf.
O'Scannlain has sent many of his law clerks on to become Supreme Court clerks, and he is regarded as a "
feeder judge."
O'Scannlain continued to be involved in the politics of the federal court system after assuming senior status. He is a strong supporter of splitting the Ninth Circuit. He testified in 2017, before the U.S.
Senate Judiciary Committee
The United States Senate Committee on the Judiciary, informally the Senate Judiciary Committee, is a standing committee of 22 U.S. senators whose role is to oversee the Department of Justice (DOJ), consider executive and judicial nomination ...
in support of breaking up the 9th Circuit. On July 31, 2018, he testified again in the Judiciary committee in support of breaking up the 9th Circuit Court of Appeals. He was joined on a panel by his former clerk, Brian Fitzpatrick, a professor at Vanderbilt Law School. Senator
Mazie Hirono
Mazie Keiko Hirono (; Japanese name: , ; born November 3, 1947) is an American lawyer and politician serving as the junior United States senator from Hawaii since 2013. A member of the Democratic Party, Hirono previously served as a member of th ...
from Hawaii noted that his written testimony was almost word-for-word what he had contributed a year earlier.
He supported the nomination of
Ryan Bounds, another former clerk, to the 9th Circuit Court vacancy created by his taking senior status. That nomination was withdrawn after controversial newspaper writings by Bounds as a student at
Stanford University on the subject of the civil rights of minorities and women were discovered. Bounds had failed to deliver them to the Committee, and Oregon's Democratic Party senators withheld their
blue slip
Blue slip or blue-slipping refers to two distinct legislative procedures in the United States Congress.
In the House of Representatives, it is the rejection slip given to tax and spending bills sent to it by the Senate that did not originate in ...
s. O'Scannlain was ultimately succeeded by another of his former clerks,
Danielle Forrest.
Rulings
In a controversial March 2010 case, O'Scannlain joined the majority opinion that Seattle police officers did not employ excessive force when they
taser
A taser is an electroshock weapon used to incapacitate people, allowing them to be approached and handled in an unresisting and thus safe manner. It is sold by Axon (company), Axon, formerly TASER International. It fires two small barbed d ...
ed a pregnant woman. He was joined by Judge
Cynthia Holcomb Hall in a contested 2–1 decision (judge
Marsha Berzon
Marsha Lee Berzon ( Siegel; born April 17, 1945) is a Senior United States circuit judge of the United States Court of Appeals for the Ninth Circuit.
Education and legal training
Berzon graduated with a Bachelor of Arts degree from Radcliff ...
dissented).
On February 13, 2014, O'Scannlain wrote the majority opinion in the case of ''
Peruta v. San Diego
''Peruta v. San Diego'', 824 F.3d 919 (9th Cir. 2016), was a decision of the United States Court of Appeals for the Ninth Circuit pertaining to the legality of San Diego County's restrictive policy regarding requiring documentation of "good cause ...
'', and issued a ruling that stated California's may-issue concealed carry rules, as implemented by the County of San Diego, in combination with a ban on open carry in most areas of the state, violate the
Second Amendment
The second (symbol: s) is the unit of time in the International System of Units (SI), historically defined as of a day – this factor derived from the division of the day first into 24 hours, then to 60 minutes and finally to 60 seconds eac ...
, because they together deny law-abiding citizens the right to bear arms in public for the lawful purpose of self-defense.
Consuelo María Callahan joined him in the majority, while
Sidney Runyan Thomas dissented. ''Peruta'' was later overturned ''
en banc
In law, an en banc session (; French for "in bench"; also known as ''in banc'', ''in banco'' or ''in bank'') is a session in which a case is heard before all the judges of a court (before the entire bench) rather than by one judge or a smaller p ...
''.
In ''
Spokeo, Inc. v. Robins'', O'Scannlain found that under the
Fair Credit Reporting Act
The Fair Credit Reporting Act (FCRA), 15 U.S.C. § 1681 ''et seq'', is U.S. Federal Government legislation enacted to promote the accuracy, fairness, and privacy of consumer information contained in the files of consumer reporting agencies. It ...
a plaintiff had standing to sue an allegedly inaccurate website. After that decision was found to be in error by the
Supreme Court of the United States
The Supreme Court of the United States (SCOTUS) is the highest court in the federal judiciary of the United States. It has ultimate appellate jurisdiction over all U.S. federal court cases, and over state court cases that involve a point ...
and remanded, O'Scannlain, again, found the plaintiff had standing to sue.
On July 24, 2018, O'Scannlain wrote the majority opinion in the case of ''Young v. Hawaii'', which said that the
Second Amendment
The second (symbol: s) is the unit of time in the International System of Units (SI), historically defined as of a day – this factor derived from the division of the day first into 24 hours, then to 60 minutes and finally to 60 seconds eac ...
protects the right to
open carry
In the United States, open carry refers to the practice of visibly carrying a firearm in public places, as distinguished from concealed carry, where firearms cannot be seen by the casual observer. To "carry" in this context indicates that the f ...
in public. The State of Hawaii requested a rehearing en banc and the Ninth Circuit held the hearing on September 24, 2020. O'Scannlain participated in the en banc hearing.
On February 10, 2020, O'Scannlain wrote an opinion respecting the denial of en banc. The original panel had ruled that a prisoner with
gender dysphoria had 8th amendment rights to sex reassignment surgery. O'Scannlain explained that as a judge in senior status, he cannot vote on these petitions, but he can issue statements respecting the denial of en banc. In the opinion, he mentioned that the 9th circuit is the first circuit to rule that denying gender reassignment surgery violates the 8th amendment, and that the 9th circuit is in conflict with other circuits' rulings, causing a circuit split.
In September 2020, O'Scannlain wrote for the majority when it found that a
robocall
A robocall is a phone call that uses a computerized autodialer to deliver a pre-recorded message, as if from a robot. Robocalls are often associated with political and telemarketing phone campaigns, but can also be used for public service or emer ...
defendant could not force the plaintiff into arbitration based on a customer agreement the plaintiff had signed with a separate company several years before it had been acquired by the holding company that now also owned the defendant. O'Scannlain also concurred separately to argue that even if the
Federal Arbitration Act
The United States Arbitration Act (, codified at ), more commonly referred to as the Federal Arbitration Act or FAA, is an act of Congress that provides for judicial facilitation of private dispute resolution through arbitration. It applies in bo ...
had preempted state law limitation on
absurdity
An absurdity is a state or condition of being extremely unreasonable, meaningless or unsound in reason so as to be irrational or not taken seriously. "Absurd" is an adjective used to describe an absurdity, e.g., "Tyler and the boys laughed at ...
in contracts, it still did not require arbitration of claims wholly unrelated to the original contract.
References
External links
*
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{{DEFAULTSORT:Oscannlain, Diarmuid Fionntain
1937 births
20th-century American judges
20th-century American lawyers
Harvard Law School alumni
Judges of the United States Court of Appeals for the Ninth Circuit
Lawyers from Portland, Oregon
Living people
Oregon Republicans
Lawyers from New York City
St. John's University (New York City) alumni
United States court of appeals judges appointed by Ronald Reagan
University of Virginia School of Law alumni