Notice & Comment

D.C. Circuit Review – Reviewed: Shadows and Unshadows

Federal circuit courts issue both published and unpublished decisions. I usually focus on the published ones. After all, unpublished opinions “do not carry the same weight in our common law system of precedent.” Yet sometimes unpublished decisions are quite important. As Will Baude has explained in an analogous context, we should also pay attention to the “shadow docket.” A few years ago I applauded the D.C. Circuit for making all of its unpublished decisions available.

Well, this week* we have two important decisions — one from the shadows and other from the, err, “unshadows.”

The decision from the shadows is Jane Doe 2 v. Shanahan, which dissolves an injunction of the military’s transgender policy. The per curiam decision (Judges Griffith, Wilkins, and Williams — with a separate opinion from Williams to follow) states as follows:

(Note; I combined two pages of text into a single page — which shrunk the text. Apologies.)

The decision also previews the substantive issues:

This analysis is obviously noteworthy on the merits; I’m sure there will be a lot of commentary. It’s also interesting to me, however, that it is unpublished. At least presumptively, one would think that a decision dissolving a high-profile injunction would be published. Yet this wasn’t. Why not? My guess is that the Court wanted to hurry, and unpublished decisions contain less discussion of the background facts and the like. Likewise, the analysis here is somewhat fact-bound, given the intervening events. To be sure, the Court could have announced its bottom-line decision with an opinion to follow — as Judge Williams is doing. Presumably, however, the Court concluded that it was able to offer sufficient analysis here that delaying the issue further was unnecessary. Interesting.

The Court also issued a significant published decision. In United States v. Flores, Judge Wilkins — joined by Judges Katsas and Sentelle — addressed these facts:

Also interesting — and, frankly, counterintuitive. At least at first blush, I would have thought that murder would be relevant to sentencing (warning; the facts are horrible). Yet it was not. Why not? Because text matters.

And that’s the week.

* I usually do New Year’s Resolutions for my first post of the year. This year, meh — I’ll pass.

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