Sunday, August 29, 2021
In my last post, I reviewed arguments employed in three different Supreme Court briefs seeking reconsideration of three separate precedents. The arguments attempted there in favor of overruling precedent as unworkable are equally applicable to adverse in-circuit precedents.
In the federal circuits, however, the process usually requires two-steps: first, an argument before the usual three-judge panel; and, second, upon the granting of a petition, argument en banc. The double argument occurs because one panel cannot overrule a prior panel’s precedential holding. In the Eleventh Circuit, this practice is known as the “prior panel precedent rule.” Some state courts of appeal follow the same rule. Yet, other states permit one panel to overrule an earlier one on the same issue, but advise that it is an authority that should be exercised reticently.
The Fifth Circuit has dubbed the practice the “rule of orderliness,” which holds that “one panel of our court may not overturn another panel’s decision, absent an intervening change in the law, such as by a statutory amendment, or the Supreme Court, or our en banc court.” It also means that, “to the extent that a more recent case contradicts an older case, the newer language has no effect.”
If an advocate is unable to distinguish the prior precedential holding, part of the argument before the initial panel must suggest the problematic decision is wrong and warrants rehearing en banc for purposes of reconsideration. A panel’s opinion, or even a judge’s dissent, that suggests the precedent was wrongly decided, even when those judges are obliged to follow it, provides a substantial boost to a petition for rehearing en banc.
Still, not every unfavorable in-circuit decision qualifies as controlling precedent. Even where a case is not otherwise distinguishable, it may be possible to characterize the prior decision’s problematic passage as obiter dicta. In those circumstances, the contrarian language “could have been deleted without seriously impairing the analytical foundations of the holding and being peripheral, may not have received the full and careful consideration of the court that uttered it.” For example, if no party briefed and argued the point, the panel was deprived of arguments that might have caused it to avoid the issue or decide it differently. For that reason, there were no analytical foundations, and the dicta is not binding.
State courts, too, hold that dicta is not binding. In California, for example, “dictum is a general argument or observation unnecessary to the decision which has no force as precedent.” Instead, only the ratio decidendi, the “principle or rule which constitutes the ground of the decision,” serves as stare decisis. Under that approach, a “decision is not authority for what is said in the opinion but only for the points actually involved and actually decided.”
Recently, that same issue of what constituted stare decisis came up in the U.S. Supreme Court. In Ramos v. Louisiana, the Court was asked to overrule cases that held the Sixth Amendment right to jury trial did not require a unanimous verdict to convict a defendant of a serious offense. Instead of overruling the earlier precedents, it abrogated them. The majority opinion by Justice Gorsuch denied that the earlier decisions constituted precedent because the result was the product of a fragmented Court. That characterization generated some controversy. Justice Kavanaugh, another member of the majority, vocally treated the prior decision as precedent, but precedent that deserved to be overruled. The dissenters insisted that adherence to stare decisis was necessary, even if they might have reached a different decision if the issue was first being presented.
The bottom line is that there are a variety of tools available to an advocate who finds an adverse precedent in the way of a favorable result. Understanding the concerns that a court has expressed and the rules it follows can provide a blueprint for building that case. And, sometimes, when you notice disagreement within the U.S. Supreme Court about what constitutes binding precedent, a door may open to some arguments a lower appellate court has not previously considered.
 See, e.g., United States v. Salazar, 987 F.3d 1248, 1254 (10th Cir. 2021).
 Smith v. GTE Corp., 236 F.3d 1292, 1300 n.8 (11th Cir. 2001).
 See, e.g., Nat'l Med. Imaging, LLC v. Lyon Fin. Servs., Inc., No. 3D20-730, 2020 WL 5228979, at *1 n.2 (Fla. 3d D.C.A. Sept. 2, 2020).
 See, e.g., Roberts v. Roberts, 2014 UT App 211, ¶ 44, 335 P.3d 378, 391.
 Jacobs v. Nat'l Drug Intelligence Ctr., 548 F.3d 375, 378 (5th Cir. 2008).
 Arnold v. U.S. Dep’t of Interior, 213 F.3d 193, 196 n.4 (5th Cir. 2000).
 Int’l Truck & Engine Corp. v. Bray, 372 F.3d 717, 721 (5th Cir. 2004) (internal quotation marks and citation omitted).
 Bruce v. Estelle, 536 F.2d 1051, 1059 n.5 (5th Cir. 1976), cert. denied, 429 U.S. 1053 (1977).
 United Steel Workers of America v. Bd. of Ed., 162 Cal.App.3d 823, 834 (1984).
 Bunch v. Coachella Valley Water Dist., 214 Cal.App.3d 203, 212 (1989).
 Childers v. Childers, 74 Cal.App.2d 56, 61 (1946) (emphasis in original).
 140 S. Ct. 1390 (2020).