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The law is designed to promote consistency and predictability. These objectives are served by a number of appellate doctrines rooted in the concept of “precedent.” Chief among them are the familiar principles that one panel of a court cannot overturn the precedent of a prior panel and that an inferior court cannot disregard the precedent of a higher court. Well-settled though these rules are, recent cases illustrate the difficult problems that confront appellate litigators and judges in two important and recurring circumstances: (1) when the existing precedents in a circuit are in conflict, and (2) when an otherwise controlling precedent of the Supreme Court has been undermined, but not expressly overruled, by intervening decisions of the court. Intracircuit conflicts: a problem that shouldn’t exist In theory, the problem of intracircuit conflicts should not exist. Every circuit subscribes to the rule that a panel is bound by the prior decision of another panel, even if that decision is believed to be incorrect (unless the prior decision conflicts with an intervening ruling of that circuit en banc or of the Supreme Court). See, e.g., United States v. Steele, 147 F.3d 1316, 1317-18 (11th Cir. 1998) (en banc); Klay v. United HealthGroup Inc., 376 F.3d 1092, 1109 (11th Cir. 2004). It is the court en banc that has the responsibility to resolve disagreements among panels, and only the full court can overrule a previous panel decision. In practice, however, this issue has arisen with some frequency. For example, a panel might overlook a prior decision or attempt to distinguish it on grounds that a subsequent panel finds unconvincing. Faced with this problem, courts have adopted differing approaches to deal with it. The 4th U.S. Circuit Court of Appeals, sitting en banc, recently held that a panel is “require[d] . . . to follow the earlier of the conflicting opinions.” McMellon v. United States, 387 F.3d 392, 333 (4th Cir. 2004) (en banc). Thus, “when there is an irreconcilable conflict between opinions issued by three-judge panels of this court, the first case to decide the issue is the one that must be followed, unless and until it is overruled by this court sitting en banc or by the Supreme Court.” Id. at 334. This “first in time” rule is followed in the vast majority of circuits. See, e.g., Ryan v. Johnson, 115 F.3d 193, 198-99 (3d Cir. 1997); Southwestern Bell Tel. Co. v. City of El Paso, 243 F.3d 936, 940 (5th Cir. 2001); DuPont Dow Elastomers LLC v. NLRB, 296 F.3d 495, 506 (6th Cir. 2002); Hiller v. Oklahoma ex rel. Used Motor Vehicles & Parts Comm’n, 327 F.3d 1247, 1251 (10th Cir. 2003); SEC v. Ginsburg, 362 F.3d 1292, 1298 (11th Cir. 2004); Newell Cos. Inc. v. Kenney Mfg. Co., 864 F.2d 757, 765 (Fed. Cir. 1998). In McMellon, Judge Paul V. Niemeyer dissented. In his view, a panel faced with conflicting precedents is not constrained by the temporal sequence of the decisions and should be free to choose what it considers to be the correct position. McMellon, 387 F.3d at 353 (Niemeyer, J., dissenting in part). Alone among the courts of appeals, the 8th Circuit has adopted this “correct position” rule. See, e.g., United States v. Maxon, 339 F.3d 656, 659 (8th Cir. 2003); Graham v. Contract Transportation Inc., 220 F.3d 910, 914 (8th Cir. 2000). Under the 8th Circuit’s approach, the panel does not authoritatively resolve the conflict in circuit precedent but simply decides which line of cases it chooses to follow in the appeal before it. See Kostelec v. State Farm Fire & Cas. Co., 64 F.3d 1220, 1228 n.8 (8th Cir. 1995). Because the panel does not settle the conflict, future panels are equally entitled to make their own choices, and the intracircuit split will persist until the court en banc intervenes. Id. (Panel’s decision in 1995 did not resolve a conflict that had emerged in 1983.) Thus, in comparison to the “first in time” rule, the “correct position” rule emphasizes the role of the en banc court in resolving intracircuit conflicts. Finally, two other circuits have adopted distinct approaches. In the 7th Circuit, a panel can overrule a prior circuit decision if its proposed opinion “is first circulated among the active members of th[e] court and a majority of them do not vote to rehear en banc the issue of whether the [proposed] position should be adopted.” 7th Cir. R. 40(e). In effect, this compresses the panel and en banc phases of the appeal and provides a definitive resolution of the circuit conflict at the time of the panel opinion. For its part, the 9th Circuit has admonished that “the appropriate mechanism for resolving an irreconcilable conflict is an en banc decision.” United States v. Hardesty, 977 F.2d 1347, 1348 (9th Cir. 1992) (en banc). Accordingly, a “panel faced with such a conflict must call for en banc review, which the court will normally grant unless the prior decisions can be distinguished.” Id. (emphasis added by court). Under any principle that makes prior precedent binding, there must be a definition of what constitutes a “precedent.” Here, too, difficult questions can vex appellate counsel and judges. For example, exactly what was decided in the earlier case may be open to debate. The general rule is that only the holding of a decision, and not its dicta, will be binding in subsequent cases. See, e.g., Klay, 376 F.3d at 1101 n.12. However, discerning the line between holding and dicta often is not an easy task. With particular regard to Supreme Court opinions, courts of appeals have recognized the practical necessity to heed the views of the justices expressed in dicta. The lower courts usually accept the “considered dicta” of the court or afford it “due deference.” McCoy v. MIT, 950 F.2d 13, 19 (1st Cir. 1991); McCalla v. Royal Maccabbees Life Ins. Co., 369 F.3d 1128, 1132 (9th Cir. 2004). It also can be difficult to determine the holding of a case where there is no majority opinion for the Supreme Court. In that situation, the controlling force of the precedent generally is established by the position of those justices who concurred in the judgment on the narrowest ground. See Marks v. United States, 430 U.S. 188, 193 (1977); see also A.T. Massey Coal Co. Inc. v. Massanari, 305 F.3d 226, 236-37 (4th Cir. 2002), cert. denied, 538 U.S. 1012 (2003). The issue of the precedential effect of a splintered Supreme Court decision recently arose in the University of Michigan cases involving affirmative action in higher education. The lower courts had divided on the precedential nature of Justice Lewis F. Powell’s separate opinion in Regents of the Univ. of Calif. v. Bakke, 438 U.S. 265 (1978). In the end, the Supreme Court found it unnecessary to reach that question because a majority of the justices agreed with Powell’s analysis and therefore did not need to decide whether his opinion constituted binding precedent. See Grutter v. Bollinger, 539 U.S. 306, 323-25 (2003). Another aspect of the problem of conflicting precedent arises where a Supreme Court decision is directly on point in a case pending in a lower court, but a subsequent opinion of the Supreme Court has cast doubt on the continued validity of that decision without squarely overruling it. How should an appellate litigator or a judge deal with such a tension between Supreme Court decisions? Fortunately, the Supreme Court itself has provided a clear answer: “[I]t is this Court’s prerogative alone to overrule one of its precedents.” State Oil Co. v. Khan, 522 U.S. 3, 20 (1997). This power remains within the exclusive province of the high court even if the directly controlling precedent suffers from “infirmities . . . [and] increasingly wobbly, moth-eaten foundations.” Id. Thus, lower courts are not free to conclude that the Supreme Court’s “more recent cases have, by implication, overruled an earlier precedent.” Agostini v. Felton, 521 U.S. 203, 237 (1997). Rather, “[i]f a precedent of th[e Supreme] Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls.” Id. Supreme Court to return to precedent issue this term The Supreme Court will return to this issue in two cases this term. In the first case, the underlying question is the constitutionality of imposing the death penalty on a defendant who was a 16- or 17-year-old minor at the time the crime was committed. The Supreme Court of Missouri ruled that a directly applicable U.S. Supreme Court precedent upholding such sentences did not remain good law in light of the high court’s later analysis rejecting the execution of mentally retarded defendants. Simmons v. Roper, 112 S.W.3d 397 (Mo. 2003). The Supreme Court granted certiorari in Roper and, in addition to the substantive question of death penalty law presented, presumably will address the state court’s decision that the prior juvenile death penalty precedent was no longer binding. Likewise, the Supreme Court recently granted review to consider the validity of a state death sentence for a Mexican citizen where, in violation of a treaty, he was not advised of his right to contact the Mexican consul. The International Court of Justice (commonly known as the World Court) has ruled that the treaty violation requires that the conviction and sentence be reconsidered. Notwithstanding that intervening decision, and contrary to the 8th Circuit’s approach in Roper, the 5th Circuit held that it was obligated to affirm under applicable Supreme Court precedent and that only the court could overrule those controlling cases. Medellin v. Dretke, 371 F.3d 270, 280 (5th Cir. 2004), cert. granted, 2004 WL 2075039 (U.S. Dec. 10, 2004) (No. 04-5928). Mark I. Levy is the director of the appellate advocacy group in the Washington office of Atlanta’s Kilpatrick Stockton. He can be reached at [email protected].

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