Appellate Precedent with Defective Reasoning or Analysis
High difficulty in overturning
What do you do when you find an old appellate case with defective reasoning or analysis? Can you argue that it should be overruled? Will the court actually overrule the case?
In two recent cases the Eleventh Circuit clarified the options available to attorneys in such a situation, (1) United States v. Hough, No. 14–12156, __ F.3d __, 2015 WL 5234702 (11th Cir. Sept. 9, 2015) and (2) Sovereign Military Hospitaller Order of Saint John of Jerusalem of Rhodes & of Malta v. Florida Priory of the Knights Hospitallers of the Sovereign Order of Saint John of Jerusalem, Knights of Malta, The Ecumenical Order, No. 14–14251, __ F.3d __, 2015 WL 6000633 (11th Cir. Oct. 15, 2015) (“Sovereign Military”).
In the Eleventh Circuit, the holding of the first case to address an issue binds all subsequent Eleventh Circuit decisions. This principle is called the “prior panel precedent rule.” The reason for the rule? Stability and predictability. Even if the court is convinced the prior opinion is wrong, it cannot overrule it. See Smith v. GTE Corp., 236 F.3d 1292 (11th Cir. 2001); United States v. Steele, 147 F.3d 1316 (11th Cir. 1998) (en banc).
In Hough, Chief Judge Carnes wrote both the majority opinion and the concurring opinion. Commenting on the unique situation of concurring with himself, Judge Carnes wrote, “Not surprisingly, as the author of the Court’s opinion I concur in all of it.” However, his reason for concurring with the opinion goes to the heart of the prior panel precedent rule. Although the court is required to follow prior panel precedent even if they disagree with it, the court is not required to remain silent about whether the old opinion is wrong. Judge Carnes then explained why he believed the reasoning of the court’s previous opinions are wrong.
In Sovereign Military, the court explained that the court’s prior panel precedent “is almost certainly incorrect,” however stuck to the rule that “one panel of this Court cannot disregard the precedent set by a prior panel, even though it conceives error in the precedent.” United States v. Romeo, 122 F.3d 941, 942 n.1 (11th Cir. 1997). Significantly, in Sovereign Military, three months after the court published the prior precedent case, the legislature changed the law. Usually, this is a reason to overturn the prior precedent ruling. However, the court found that because subsequent Eleventh Circuit cases continued to follow the prior precedent ruling (therefore failing to consider the statutory change), the court was stuck with the likely incorrect, “legally dubious,” rule of law. See DeYoung v. Owens, 646 F.3d 1319, 1325 (11th Cir. 2011) (“[T]he mere act of proffering additional reasons not expressly considered previously will not open the door to reconsideration of the question by a second panel.”)
How can an attorney convince the court to overrule a prior panel’s holding? There are three ways to overrule the court’s opinion on the law. First, if the Supreme Court reaches a contrary conclusion. Second, if the legislature changes the law. Third, if the court sits en banc. See Cargill v. Turpin, 120 F.3d 1366, 1386 (11th Cir. 1997); United States v. Woodard, 938 F.2d 1255, 1258 n.4 (11th Cir. 1991) (principle gives way when the prior panel’s decision was based on legislation that has been changed).
On the other hand, the United States Supreme Court takes a different position. Generally, the Supreme Court follows its prior holdings because “it promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process.” Payne v. Tennessee, 501 U.S. 808, 827 (1991). So although the Supreme Court does “not lightly overturn one of [their] own holdings,” the Court will overturn its precedent “when governing decisions are unworkable or are badly reasoned.” Vieth v. Jubelirer, 541 U.S. 267, 306 (2004). See Dobbert v. Strickland, 718 F.2d 1518, 1526 (11th Cir. 1983) (Wisdom, J., dissenting) (arguing that the Eleventh Circuit, when “convinced of former error,” should follow the same position as the Supreme Court and overturn its prior panel precedent).
To conclude, when confronted with an Eleventh Circuit case that may be undoubtedly incorrect in its reasoning, an attorney will have to find a way to distinguish the case, argue that there was a change in the law, ask the entire court to review the current dispute en banc, or go to the Supreme Court. No option is easy, and each option should be carefully considered before filing an appeal.
