The Volokh Conspiracy

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Come for the Judicial Opinion, Stay for the "Additional Views"

A Federal Circuit panel took the unusual step of throwing in some dicta in a separate non-opinion.

|The Volokh Conspiracy |

Lawyers (and law students) are trained to focus on an opinion's holding and not its dicta. Sometimes it can be tricky to identify dicta, but sometimes the court makes it easy. An example of the latter arises when a court holds X, but then says "and if we didn't hold X, we would conclude Y." That question Y isn't relevant to the holding, so it's clearly dictum. For better or worse, judges sometimes put lots of dicta in their opinions.

Yesterday the Federal Circuit took a different, striking route in Facebook, Inc. v. Windy City Innovations, LLC: there was a panel opinion joined by all three judges, and then there was a separately titled "Additional views" by the same three judges. In their actual opinion, these judges held that the statutory language was clear and thus that in the absence of ambiguity there was no reason to defer to the agency's interpretation under Chevron. Then, in their additional views, the judges say (of the opinion they just issued) "[b]ecause the opinion concludes that § 315(c) is unambiguous, the majority does not address the question of what, if any, deference is owed to the PTO's interpretation of § 315(c)." True enough – saying anything more would be rank dicta. But they go on:

[W]e conclude that, were the statute ambiguous, we would alternatively resolve this matter in the same way. Specifically, we would find that no deference is due … and that the most reasonable reading of § 315(c) is the one we adopt in our majority opinion.

So they are telling us how they would resolve a hypothetical case that isn't before them. We know that because they already have decided the case that was before them in the actual majority opinion.

For those who think it is fine for judges to issue dicta, I assume that they also think that judges should demarcate their dicta as such. The judges have surely done that here.

For those (myself included) who think courts should not issue dicta like this, the issuance of these additional views is unfortunate. I understand that the judges thought about this issue and came to a conclusion, and once one has thought through an issue (and probably already written it up in this case), it is sorely tempting to tell the world. I think that judges should resist that temptation, and this "additional views" formulation makes it painfully clear that they are not resisting it.

But at least they are being honest about it. Sometimes courts smuggle dicta into their opinions. In this case, the judges didn't, and that is in some ways refreshing: if a future litigant or court wants to cite to these additional views, the citation will be to "additional views," and not to a majority opinion.

Bottom line: I think it would have been much better for the judges not to have said anything beyond the holding, though others may disagree. But one small area of agreement: if they were going to opine beyond their holding, at least they gave us a big flashing sign that says "in case you are interested in some other thoughts we have…"