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

by Aaron Nielson — Friday, Jan. 4, 2019@Aaron_L_Nielson

Federal circuit courts issue both published and unpublished decisions.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 After all, unpublished opinions “do not carry the same weight in our common law system of precedent.” Yet sometimes unpublished decisions are quite important.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 A few years ago I applauded the D.C. Circuit for making all of its unpublished decisions available.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 It’s also interesting to me, however, that it is unpublished.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 My guess is that the Court wanted to hurry, and unpublished decisions contain less discussion of the background facts and the like.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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About Aaron Nielson

Professor Nielson is an associate professor at Brigham Young University Law School. Before joining the academy, Professor Nielson was a partner in the Washington, D.C. office of Kirkland & Ellis LLP (where he remains of counsel). He also has served as a law clerk to Justice Samuel A. Alito, Jr. of the U.S. Supreme Court, Judge Janice Rogers Brown of the U.S. Court of Appeals for the D.C. Circuit, and Judge Jerry E. Smith of the U.S. Court of Appeals for the Fifth Circuit. All views expressed are the author's alone. Follow him on Twitter @Aaron_L_Nielson.

One thought on “D.C. Circuit Review – Reviewed: Shadows and Unshadows

  1. William M Yeatman

    Great stuff per usual.

    Your post piqued my curiosity — I took a peek at the Ninth Circuit’s webpage that lists its unpublished opinions. Tho I’ve got no referent, I was nevertheless surprised to see that there are about 4 unpublished opinion for every published opinion. Idk what I think about that; I need to learn more about unpublished opinions (other than fact they’re not precedential).

    Also, I miss the New Year’s Resolutions! At the very least, you should continue with the Resolutions for Others–that was a great idea for content. Next year, you should have some fun w/ it and have a bunch of people make 150 word Resolutions for Others. The more I say “Resolutions for Others,” the more I love it. IDK why, but it evokes that other major holiday of this period–Festivus–and it is making me chuckle.


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