Notice & Comment

D.C. Circuit Review – Reviewed: The Perfect Opinion

The D.C. Circuit gets more than its fair share of regulatory cases. But it does not have a monopoly on them. As regular Notice & Comment readers know, the Ninth Circuit also has a sizable “admin law” docket. The same can be said of the Fifth Circuit. And then-Judge Gorsuch decided a number of important “admin law” cases on the Tenth Circuit. This week, the D.C. Circuit had a pretty light load — just three opinions.* So I went looking elsewhere for cases and stumbled across a lengthy administrative law opinion from the First Circuit that may prompt a cert petition (although it is still in an interlocutory posture). When I clicked on the link, however, I was surprised. I had forgotten that the First Circuit’s opinion aesthetic is very different from the D.C. Circuit’s. Indeed, compare:

with:

One interesting thing about the federal judiciary is that different courts use different formats. That got me thinking: Leaving aside substance, what would the perfect opinion look like? And how does the D.C. Circuit stack up?

To investigate, I have spent a few hours today perusing decisions from around the country. The result is the following chart. Be warned, however. I haven’t read every decision (obviously). There may be more inconsistency than my quick review revealed. If so, let me know in the comments. In fact, I gave up on the Second Circuit altogether when, after reviewing numerous opinions trying to identify the pattern, I found one with this footnote: “For brevity’s sake, we have omitted the numerous other parties to this appeal from this caption.” So in the Second Circuit, the panel can just change the caption? I guess so!

With that caveat in mind, here is what I found:

The chart is mostly self-explanatory. But a few things need clarification. By “Full Case Caption,” I am referring to whether the court lists all the parties or instead uses “et al.” By “Senior Judge Noted,” I am referring to whether the court identifies who on the panel is a senior judge as opposed to a judge in active service. By “Page Numbers Restart,” I am referring to whether, when there is a concurrence or dissent, the court restarts numbering pages or instead continues with the lead opinion’s pagination. By “lower,” I mean subject to further review; mine isn’t a normative use of the word. And by “modern style,” I am referring to whether an opinion looks something like this:

With this background in mind, what would a perfect opinion look like? Well, the answer to that question is subjective. Even so, I’ll take a stab at it.

The perfect opinion should include the full caption rather than “et al.” I realize that can be a pain. But it can be important to know who the parties are, and it is not always easy to check the docket. The perfect opinion should also include the date the appeal was argued; it gives you a rough sense of the court and judge (are things moving along?) and the difficulty of the case. Although it can clutter things up, I also think the perfect opinion should list the case number of the case below and the name of the judge. Not only is it polite, but it can be helpful if you need to do more research; from time to time I’ve had to look for the trial court case by its case number. The perfect opinion should definitely list counsel and include a summary, and it should be published in the modern style, with justified text (which is easier to read). I think it also matters whether a judge is senior or not, just like it matters whether a judge is sitting by designation. And page numbers should definitely restart with the dissent.

So what court issues the perfect opinion? None of them! But if we put all of that together, the perfect opinion would look something like this:

It shouldn’t be too hard to use that format; just combine something from all of the circuits! That said, that combination is pretty darn ugly for a “perfect” opinion. Oh well. Have a great weekend.

 

* Although few in number, the cases are interesting. In CREW v. DOJ, Judge Henderson (joined by Judge Ginsburg) concluded that the Office of Legal Counsel is not required “to make available all of its formal written opinions as well as indices of those opinions, under the so-called ‘reading-room’ provision of the Freedom of Information Act”; Judge Pillard dissented. This is nominally an “admin law” opinion, but is more about “Fed Courts,” including burdens of proof and pleading standards. Reading the majority opinion, it sounds like this substantive issue will be back as a related case is still pending in the district court: “Notably, CREW is not the only advocacy group seeking to compel disclosure of the OLC’s formal written opinions in toto. Campaign for Accountability (CfA), amicus in this appeal, filed a similar suit under FOIA’s reading-room provision. … Unlike CREW, CfA accepted the invitation and amended its complaint to allege that several subcategories of the OLC’s formal written opinions are subject to disclosure under FOIA’s reading-room provision. The Department of Justice’s motion to dismiss CfA’s amended complaint remains pending.” In Manitoba v. Bernhardt, Judge Henderson (this time joined by Judges Rogers and Srinivasan) upheld the dismissal of “the State of Missouri’s complaint that the Bureau of Reclamation … violated the National Environmental Policy Act … by failing to consider adequately how diverting billions of gallons of Missouri River water will affect downstream States.” Missouri, after all, cannot sue the United States “in its parens patriae capacity.” And in the Robare Group v. SEC, Judge Rogers (joined by Judges Millett and Katsas) upheld the SEC’s determination that a company inadequately disclosed conflicts of interest, but rejected that it was a willful violation: “We are aware of no appellate case holding that negligent conduct can be ‘willful[]’ within the meaning of Section 207, and we conclude that it cannot.”

 

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