Talk:United States Court of Appeals for the District of Columbia Circuit
|This article is of interest to the following WikiProjects:|
Reference to Official Reporter
The DC Circuit website doesn't mention an official reporter, and neither does the Bluebook. In fact, I've never seen a reference to an official DC Reporter. Unless someone can provide substantiation, I'm going to remove that reference in a week. --126.96.36.199 (talk) 02:57, 26 January 2010 (UTC)
Consider the claim substantiated. There are quite a few of the court's older decisions that include a citation to the official reporter. i.e., U.S.App.D.C. Reports. Some of the decisions on the court's website include a reference to the reporter. e.g., In Re: Madison Guaranty Savings & Loan (Lewinsky Fee Application), No. 94-0001 (D.C. Cir. January 6, 2004) (per curiam) ("Notice: This opinion is subject to formal revision before publication in the Federal Reporter or U.S.App.D.C. Reports. Users are requested to notify the Clerk of any formal errors in order that corrections may be made before the bound volumes go to press.").
Of course, one can see for themselves if they choose.
Review of federal agencies
So it looks like I got confused by the fact that the enabling statutes of many agencies provide for direct review of their decisions in the DC Circuit Court--the Administrative Procedures Act just provides for review by federal courts generally. If anyone knows which agencies in particular have this specified for them, or can otherwise explain why (and if) this court still hears most agency decisions under the APA, you're a better man than me, and your contribution is welcome.
(I hate admin law. I really do.) Postdlf 00:30 15 Apr 2004 (UTC)
Start of service
Saucy Intruder just made an edit with the comment: "added Brown and Griffith to active judge list; consistent with FJC, we should put them on the court when they receive their commission, not at their formal swearing-in".
I wholly disagree with the notion that the start of service for a judge is their date of receipt of commission. The list of justices of the Supreme Court from the Supreme Court's official website states, among its notes:
The date a Member of the Court took his/her Judicial oath (the Judiciary Act provided “That the Justices of the Supreme Court, and the district judges, before they proceed to execute the duties of their respective offices, shall take the following oath…”) is here used as the date of the beginning of his/her service, for until that oath is taken he/she is not vested with the prerogatives of the office.
Moreover, take a look at the entry for William Rehnquist from the FJC: Rehnquist is listed as leaving his associate justiceship on September 26, 1986, a day after he is listed as receiving his commission as Chief Justice. If the FJC truly believed that someone started on the court when they receive their commission, this would imply that Rehnquist was both Associate and Chief Justice for a day. A similar observation could be made about Scalia being both a Judge of the D.C. Circuit and an Associate Justice for a single day, or Anthony Kennedy being both a Judge of the Ninth Circuit and an Associate Justice for over a week.
— DLJessup 00:34, 15 August 2005 (UTC)
- I understand your position, and I think it's a close call, but for circuit judges I think they should be listed as being in active service for the following reasons.
- The DC Circuit's website lists Rogers and Griffith without qualification as active judges. 
- Swearings-in for circuit court judges are often unpublicized, informal, or ceremonial. Since the FJC does not keep track of swearing-in dates, there is no authoritative source for when the swearing-in occurs. This is distinguishable from the Supreme Court, where the swearing-in ceremony is almost always "official" and uniformly publicly recorded by the Court.
- The statement you cite regarding the Supreme Court comes from 28 U.S.C. § 453, and applies only to the "duties" of the office. This is not the beginning of a circuit's judge tenure, however. See 28 U.S.C. § 44(a-b) (circuit judges are nominated by the President with advice and consent of the Senate; and shall hold office during good behavior). I would take this to mean that Janice Rogers Brown cannot statutorily hear cases or write opinions until she is sworn in, but she can move into her chambers and begin getting paid.
- We should strive for encyclopedic completeness as much as possible. The statement "Janice Rogers Brown is a judge on the U.S. Court of Appeals for the D.C. Circuit" is a more accurate statement than "Janice Rogers Brown is a nominee for the U.S. Court of Appeals for the D.C. Circuit." She belongs in the list of judges more than she belongs in the list of pending nominees. Regardless, the classification of seats 1 and 10 as "vacancies" is wholly inaccurate.
- Thus, I stand by my edit. I will, however, add a clarifying footnote. --Saucy Intruder 01:19, 15 August 2005 (UTC)
Thank you for the clarifying footnote. It definitely improves the article.
Nonetheless, I need to try to quash this notion that the start of a circuit judge's term of service is anything other than the swearing-in. If I can do this, it could head off future disputes, so please bear with me.
First, let me address some of your comments above:
- In your second reason, you note that oathtakings for circuit court judges are often unpublicized. This is probably true. You then note that since the FJC doesn't keep track of oathtakings, there is no authoritative source for when the swearing-in occurs. This is most likely false: when any federal officer is sworn in, a certificate to that effect is produced and copies are filed in many places (quite possibly including the Treasury, so that the officer in question might get paid). We don't even know that the FJC doesn't keep track of them; all we know is that the FJC doesn't bother to post that information on its website. Moreover, even if there were no definitive source, that would just mean that we don't know when the start of the term of service takes place, not that it isn't the start of the term of service.
- In your third reason, you write: "This is not the beginning of a circuit's judge tenure, however. See U.S.C. § 44(a-b)." The only problem is that USC § 44 says nothing about the start of tenure (except that it's after nomination by the President and confirmation by the Senate); what it talks about is the end of tenure: the term of office is lifetime on good behavior.
- You also write: "I would take this to mean that Janice Rogers Brown cannot statutorily hear cases or write opinions until she is sworn in, but she can move into her chambers and begin getting paid." Do we know this? I mean, I certainly believe that Brown can start moving into her chambers, but I wouldn't bet that she can get paid before she takes the oath of office.
- The statement "Janice Rogers Brown is a judge-designate of the U.S. Court of Appeals for the D.C. Circuit" is a more accurate statement than, "Janice Rogers Brown is a nominee for the U.S. Court of Appeals for the D.C. Circuit," at least until Brown takes the oath of office. She doesn't belong in the list of pending nominees, but she doesn't belong as an active judge either.
- Seats 1 and 10 are vacant until they are filled. They may have a person designated to fill them, but that doesn't mean that the seats aren't vacant.
On a more general note, there are only three times at which a Judge could be considered to start his or her term of office: confirmation by the Senate, receipt of the commission, or the taking of the oath. Confirmation is pretty easy to eliminate: a judge could (and has — see Robert H. Harrison) turn down a appointment after confirmation. So our choice is really between the receipt of commission and the oathtaking. Now consider this: according to the California Supreme Court website, Brown left the California Supreme Court on June 30, yet according to the FJC, Rogers received her commission on June 10. Brown can't be on both a state court and a federal court, so clearly the receipt of commission can't be the start of office. (Note that this also provides yet further evidence that confirmation by the Senate isn't the start of service, since confirmation occurs earlier than receipt of commission.)
Now, you'll note that I didn't address the first of your reasons. The fact of the matter is that it's the strongest of your reasons, and it's possible that Brown has been sworn in and we don't know it. Now, it's also quite possible that the web team simply posted her biography when it was most convenient to them. So we're in the dark about whether she's started office. Similar concerns apply to Griffith as well. I would think that, if Brown or Griffith had taken the oath, it would appear on the News section of the web site, but its absence doesn't quite rise to the level of definitive proof.
Sorry to bang on so long.
— DLJessup 03:59, 16 August 2005 (UTC)
- I agree it's imperfect, a situation remedied by a carefully worded footnote. One thing that militates in favor of keeping them in the list is the title of the table: "Current composition of the court" (as opposed to "Active judges"). This validates James Buckley's inclusion as a senior judge; he hasn't heard a case since 2000 and by all accounts isn't ever coming back, and it's difficult to decipher the relevant statute in order to determine whether or not he's drawing any sort of salary. But he's still listed by both the DC Circuit and the FJC as a senior judge, so he stays. I'm inclined to disagree that Brown and Griffith can't draw salary or receive benefits. They need to hire clerks and staff, and set up their chambers. And of course they need to review briefs and memos filed in cases scheduled for argument in September. This is clearly "work" but they are arguably not "duties" of a circuit judge, which I take to mean the powers vested by Article III, namely hearing and voting on cases. I'm just guessing, however, because I have no idea what the legal significance of "receiving a commission" is. I can't find the phrase in Title 28, so it might be an administrative rule of the DC Circuit or the federal judicial council.
- Consider this hypo: Suppose Griffith, between now and September 1, gets busted for (insert socially offensive felony here). Bush, horrified, wants to retract the nomination and replace Griffith with somebody else. (Assume the entire Senate is on board with this.) Is Griffith constitutionally or statutorily "entitled" to his seat, although he has not yet taken the oath of office? Or can the President and Senate effectively yank him out of office (through a method other than impeachment and conviction) because he is not yet eligible to "perform judicial duties?" If the first scenario is correct, I think we would need to consider him a true judge of the court. If the second scenario is correct, he hasn't yet achieved political independence from the nominating process and thus isn't a true Article III judge.
- Also keep in mind that swearing-in ceremonies are often staged events. For example, Alberto Gonzales took his oath of office immediately after his confirmation, but held a ceremonial oath-taking in the White House the next day (with Justice O'Connor presiding, as I recall.) If there are effectively two oath-takings, which will be reported by the court and the news media as the official date of swearing-in? In the absence of standardized information, I'm reluctant to trust these sources for such almanac-style information. I wouldn't be surprised if both of these judges have already privately taken their oaths and are waiting for a formal, but legally meaningless, swearing-in ceremony to be organized. --Saucy Intruder 05:58, 16 August 2005 (UTC) (edited: --Saucy Intruder 06:16, 16 August 2005 (UTC))
In your hypothetical, Griffith is entitled to his seat — but the House will most likely be drawing up bills of impeachment against him. Basically, I think right now Brown and Griffith are in a position similar to any President between their election and inauguration. On January 19, 2001, George W. Bush wasn't President, even though, short of violent death, there wasn't anything that would prevent from becoming President the next day, so he was referred to as "President-elect". Similarly, Griffith is a Judge-designate until he takes his oath of office.
I agree that we can keep them in the list with an appropriate footnote. As I stated earlier, my primary motivation is to quash the notion that (unless they have already taken the oath of office and we just don't know it), Griffith and Brown have already started their term of service. What I'm really afraid of is that someone will come along and start giving the terms of service with full dates, instead of just years, and using the receipt of commission as the start date. I'd like to not have that person be able to point to this discussion as evidence for their side.
— DLJessup 13:19, 16 August 2005 (UTC)
- Um, couldn't we just call and ask the DOJ? -- BD2412 talk 14:01, August 16, 2005 (UTC)
- Why the DOJ? They don't work for them. The DC Circuit website now lists Brown and Griffith, as recently as two weeks ago, they were not listed. For what its worth. NoSeptember 14:16, 16 August 2005 (UTC)
For what it's worth, I took your advice and sent an e-mail to the DC Circuit website. We'll see if I get a reply. — DLJessup 14:35, 16 August 2005 (UTC)
Are there really 'seats'?
Are there really 'seats' on the court? When a president nominates somebody to this court, does he need to specify which 'seat' he is being nominated for? If so, then some explaination of which each seat does as opposed to another seat, should be explained. If the only difference is the date the 'seat' was created, then it really isn't a seat, but more an enlonging of the bench which the judges share. And if that is the case, then the idea of the 'seats' should be removed. Rodchen (talk) 04:51, 17 May 2011 (UTC)