Notice & Comment

D.C. Circuit Review – Reviewed: 13,000 Words

This week has been, shall we say, an eventful one. With so many stories to choose from, I’ve wondered what I should write about. For instance, what is going to happen in PHH Corp v. CFPB? That decision has become much more important. Now that “for cause” removal for the CFPB Director is gone, presumably the new administration will find someone else to head the agency. And what will the litigation (en banc, certiorari, etc.) look like going forward? At the same time, as Adrian Vermeule observes, there is a chance that the Separation of Powers Restoration Act will become law. Should I write a post about it? Or maybe I should also give advice to the Trump Transition Team? Or should I write more about midnight regulations? Or perhaps I should share lessons from Motor Vehicles Manufacturers Association v. State Farm — a case in which one administration tried to undo what the previous administration had done? I could also, of course, talk about how this week illustrates the perils of relying too much on administrative action; what is done with the pen can be undone with the pen. Or I could focus on the D.C. Circuit itself. For instance, when will Chief Judge Garland start hearing cases again?*

But I’m not going to write about any of those things — at least not today. Instead, did you know that the word limit for briefs filed in the D.C. Circuit (unlike some other courts) is changing? It’s true: “On December 1, 2016, several amendments to the Federal Rules of Appellate Procedure will go into effect. … Among the amendments are provisions that revise the word limitations for briefs; establish word limitations for other documents produced using a computer and require a certificate of compliance for such documents; and eliminate the 3-day grace period for responding to documents served electronically.” Going forward, the length limit will be 13,000 words for a principal brief and 6,500 words for a reply brief; previously, it was 14,000 and 7,000 words, respectively. Earlier this month, the D.C. Circuit formally announced how it will implement these changes.

Why am I writing about this of all things? Well, for three reasons. First, because lawyers should know about the change; I like to help spread the news, and with all the election talk, maybe this latest bit of news has been overlooked. Second, because I think that this word reduction is a bad move. I’ve both litigated in the D.C. Circuit and clerked there, and the cases can be quite complicated. Sometimes — especially in complex cases, and especially because it is hard to know ex ante what will persuade all judges — words are already tight as it is. And third, because doing so hopefully illustrates a point: There is more to life than politics. Why not pause for a moment, take a deep breath, think about appellate word limits, and enjoy the weekend? There will be plenty of time next week to contemplate the implications of the election. But as far as I can see, everyone — those who oppose the new administration and those who support it alike — would do well to slow down and think about something else, at least for a few days. And appellate word limits are something else!

Anyway, enough armchair philosophy. The D.C. Circuit decided three cases this week.

First, in Corrigan v. DC, Judge Rogers (joined by Judge Pillard) ruled against police officers. Here are some of the facts. When Corrigan accidentally called a suicide hotline trying to reach a “Veterans Crisis Line,” the conversation led to the dispatch of police to his house, even though he said that he did not intend to hurt himself or others. The police arrived and thought they smelled gas (his appliances, the landlady told them, were electric). They evacuated the neighbors and contacted his ex-girlfriend, who said he had some “guns and military stuff.” The police eventually searched his house, and an initial sweep was followed by a substantially more thorough one, including “cut[ting] open every zipped bag” and breaking “into locked boxes,” as part of a search for “booby traps or explosive devices.” The search, the Court held, plainly went too far: there was not enough reason to believe that this second pass was necessary because of “exigent circumstances.” Thus, the panel denied qualified immunity. Judge Brown dissented, agreeing that the second search was unconstitutional, but disagreeing that the law was clearly established. (If you are interested in qualified immunity, here is some background.)

Second, in United States v. Redrick, Judge Silberman (joined by Judges Srinivasan and Wilkins), ruled against a criminal defendant. This case is technical, but here is the gist: “Appellant pleaded guilty to being a felon in unlawful possession of a firearm,” which prompted a sentencing enhancement under the Armed Career Criminal Act. “Appellant now contests the applicability of the enhancement in light of an intervening Supreme Court opinion, Johnson v. United States, 135 S. Ct. 2551 (2015), which held that one of the Act’s definitions of a violent felony – which appellant asserts the district court may have relied on – is unconstitutionally vague. We affirm the conviction because, whether or not the district judge relied on the unconstitutional provision, as a matter of law, another of the Act’s definitions of ‘violent felony’ applies and therefore the appellant’s sentence remains valid.”

And third, in LeFande v. DC, Judge Tatel (joined by Judges Kavanaugh and Ginsburg), ruled against a police reserve officer who was fired for harsh statements in an email. Long story (very) short, LeFande sued the Department, and then was fired. He claimed retaliation; the Department argued, however, that he sent disruptive emails. Employment tip of the week: You can’t do that.

Now enjoy your weekend.

* Or I could go another direction altogether and talk about the legal legacy of the late Leonard Cohen (cited once by Judge Kozinski, who also cited Prince and Kurt Vonnegut in the same footnote). On reflection, perhaps I should have done that. I should also add that I’m not criticizing those who have already started to speculate about what the election means. To the contrary, there has been a lot of interesting thinking. Indeed, there has been so much interesting thinking that it is hard to keep up with all of it. That’s another reason it makes sense to slow down!

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