An apt observation on word choice by the Eleventh Circuit

Today, the Eleventh Circuit issued an unpublished opinion in Fuentes-Rangel v. Woodman, which affirmed an order granting a petition asking that a child be returned to Mexico under the Hague Convention on the Civil Aspects of International Child Abduction and its implementing legislation, the International Child Abduction Remedies Act of 1988, or ICARA. The treaty and its implementing legislation command courts to return children to their countries of habitual residence if the children were wrongfully removed from their country or wrongfully retained in the United States. But there are narrow exceptions to this command, and lawyers who practice in this area most often describe these exceptions as "affirmative defenses." The lawyers in the Fuentes-Rangel case did so as well, which prompted the second footnote in the opinion. Here it is, in its entirety:

The parties describe Article 12 of the Hague Convention as an "affirmative defense." In ICARA, Congress described Article 12 as an "exception." See 22 U.S.C. § 9001(a)(4) ("Children who are wrongfully removed or retained within the meaning of the Convention are to be promptly returned unless one of the narrow exceptions set forth in the Convention applies."); id. § 9003(e)(2)(B) ("[A] respondent who opposes the return of the child has the burden of establishing ... by a preponderance of the evidence that any other exception set forth in article 12 ... applies."). We do not decide whether Article 12 is properly categorized as an "affirmative defense" or if instead it is an "exception." We accept the parties' characterization.

We often characterize concepts embodied in statutes different from how the statutes actually characterize them. For example, most of our district judges adopt reports and recommendations. But the governing statute doesn't give them that option; instead, "[a] judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1) (emphasis added). We also eagerly await the results of en banc decisions of the Eleventh Circuit, rather than in banc decisions of the Eleventh Circuit. See 28 U.S.C. § 46(c) ("A court in banc shall consist of all circuit judges in regular active service ...."). Common usage often carries the day.

So the Eleventh Circuit's observation on the lawyers' choice of words in Fuentes-Rangel was an interesting one. But -- for those of us who are into this kind of thing -- it was disappointing that the panel didn't ultimately weigh in. (I'm partial to exception. Not only does this have the benefit of tracking the language of the statute, but it seems to work better with how the Hague Convention and ICARA are designed to work.) Correcting usage isn't normally a reason to publish a decision. But there are always exceptions. See, e.g., In re UNR Indus. Inc., 20 F.3d 766, 769 (7th Cir. 1994) (Easterbrook, J.) ("There is a big difference between inability to alter the outcome (real mootness) and unwillingess to alter the outcome ('equitable mootness'). Using one word for two different concepts breeds confusion. Accordingly, we banish 'equitable mootness' from the (local) lexicon.").