The supreme court's controversial GVRS - and an alternative

Michigan Law Review

Volumn 107, Issue 5, 2009, Pages 711-755

  Bruhl, Aaron Andrew P ^a  

^a UNIVERSITY OF HOUSTON   (United States)

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EID: 62649153829     PISSN: 00262234     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (276)

1. See generally EUGENE GRESSMAN ET AL., SUPREME COURT PRACTICE 345-49 (9th ed. 2007) (discussing the Supreme Court's GVR practice).
2. See Lawrence v. Chater, 516 U.S. 163, 167 (1996) (explaining that the Court issues a GVR when there is "a reasonable probability that the decision below rests upon a premise that the lower court would reject if given the opportunity");
3. see also Tyler v. Cain, 533 U.S. 656, 666 n.6 (2001) (rejecting litigant's attempt to read a GVR as a ruling on the merits).
4. Typical language is: "The petition for a writ of certiorari is granted. The judgment is vacated and the case is remanded to [the relevant lower court] for further consideration in light of [the relevant recent event]."
5. See Arthur D. Hellman, The Supreme Court's Second Thoughts: Remands for Reconsideration and Denials of Review in Cases Held for Plenary Decisions, 11 HASTINGS CONST. L.Q. 5, 7-8 (1983) (tracing the rise of the modern GVR practice in the 1960s and 1970s). Easily the most discussed topic in the limited literature on GVRs is the question of precisely how the lower court should understand them - that is, whether they are completely neutral or instead intimate some view of what should happen on remand.
6. Answering that question was one of Hellman's chief concerns; it is also addressed in Erwin Chemerinsky & Ned Miltenberg, The Need To Clarify the Meaning of U.S. Supreme Court Remands: The Lessons of Punitive Damages' Cases, 36 ARIZ. ST. L.J. 513 (2004). Because that issue has already attracted attention, I do not address it here.
7. Cf. Toby J. Heytens, Managing Transitional Moments in Criminal Cases, 115 YALE L.J. 922 (2006) (discussing the problem, of legal change in the context of forfeiture rules applied on direct review of criminal cases).
8. This is a complicated topic that is not easily summarized in a short statement; some of the complications are discussed in Section ILA below.
9. See, e.g., Cayuga Indian Nation of N.Y. v. Pataki, 413 F.3d 266, 273, 280 (2d Cir. 2005) (relying on a new Supreme Court case to reverse a district court decision that was the culmination of over two decades of litigation). Rather than applying new law itself, a court of appeals can return the case to the district court so that the district court can apply the new law in the first instance - a procedure analogous to the Supreme Court's GVR.
10. See, e.g., Vicknair v. Formosa Plastics Corp., 98 F.3d 837, 839 (5th Cir. 1996). The point is simply that the court of appeals generally is not free to ignore the intervening developments and decide the case based on the law prevailing at the time of the district court's judgment.
11. See, e.g., Supreme Court Jurisdiction Act of 1978: Hearings on S. 3100 Before the Subcomm. on Improvements in Judicial Machinery of the S. Comm. on the Judiciary, 95th Cong. 40 (1978) [hereinafter Supreme Court Jurisdiction Act Hearings] (letter from all nine sitting Justices);
12. Arthur D. Hellman, Error Correction, Lawmaking, and the Supreme Court's Exercise of Discretionary Review, 44 U. PITT. L. REV. 795, 799 (1983) ("[T]he consensus of Congress, the bar, and the judiciary [is] that review for error should play, at best, a minor part in the Court's work . . . .").
13. See infra text accompanying notes 29, 32-41 (discussing the impact of, inter alia, United States v. Booker, 543 U.S. 220 (2005)).
14. 547 U.S. 867 (2006) (per curiam); see also infra Section I.A (defining which cases my analysis counts as GVRs).
15. Youngblood's impact might be judged by the fact that the most recent edition of the Low & Jeffries Federal Courts casebook now devotes a substantial section to GVRs, a development apparently inspired by Youngblood. PETER W. LOW & JOHN C. JEFFRIES, JR., FEDERAL COURTS AND THE LAW OF FEDERAL-STATE RELATIONS 647-58 (6th ed. 2008).
16. 373 U.S. 83 (1963). A dissent below did address the Brady claim at some length and in fact would have reversed the conviction. State v. Youngblood, 618 S.E.2d 544, 559-60 (W. Va. 2005) (Davis, J., dissenting).
17. Youngblood v. West Virginia, 547 U.S. at 870.
18. Id. (Scalia, J., joined by Thomas, J., dissenting);
19. id. at 875 (Kennedy, J., dissenting).
20. Id. at 872 (Scalia, J., dissenting) ("Since we sometimes review judgments with no opinion, and often review judgments with opinion only on one side of the issue, it is not clear why we need opinions on both sides here.");
21. see also GRESSMAN ET AL., supra note 1, at 81, 187-88 (explaining that lower court decisions that do not address the relevant issue, including summary dispositions, can be reviewed).
22. Youngblood v. West Virginia, 547 U.S. at 873 (Scalia, J., dissenting).
23. The Spaeth ALLCOURTS database contains only those exceptional GVRs accompanied by an opinion. See HAROLD J. SPAETH, THE ORIGINAL SUPREME COURT JUDICIAL DATABASE, 1953-2007 TERMS 56-57 (2008), available at http://www.cas.sc.edu/poli/juri/allcourt-codebook.pdf. The statistics published each year by the Harvard Law Review contain an entry for cases disposed of by memorandum, but that category seems to be both overinclusive (because it includes some non-GVR summary vacaturs) and underinclusive (because it excludes GVRs accompanied by a per curiam opinion); importantly, the statistics do not divide up GVRs by category.
24. See, e.g., Supreme Court, 2003 Term - The Statistics, 118 HARV. L. REV. 497, 505 tbl.II(D) (2004). The leading empirical study is that conducted by Arthur Hellman, which is now almost twenty-five years old and which, while characteristically careful and thorough, concerns only the category of GVRs caused by intervening Supreme Court cases.
25. See Hellman, supra note 4, at 6 n.6.
26. (Note that Hellman published a similar but shorter account of the GVR practice as "Granted, Vacated, and Remanded" - Shedding Light on a Dark Corner of Supreme Court Practice, 67 JUDICATURE 389 (1984). I will cite his longer article.)
27. Sara Benesh's recent work on GVRs as monitoring devices examines only the last several years and, again, does not address the different types of GVRs. Sara C. Benesh, GVRs and Their Aftermath in the Seventh Circuit and Beyond, 32 S. ILL. U. L.J. 659, 674 tbl.1 (2008).
28. Today, cases reach the Court almost entirely by writ of certiorari, which is discretionary. A few vestiges of mandatory appellate jurisdiction remain, notably in certain voting rights cases. See generally GRESSMAN ET AL., supra note 1, at 89-117, 146-47 (describing extent of remaining appellate jurisdiction).
29. See, e.g., Arizona v. Gant, 540 U.S. 963 (2003) (vacating and remanding in light of a state supreme court decision issued after a grant of certiorari);
30. U.S. Dep't of State v. Legal Assistance for Vietnamese Asylum Seekers, Inc., 519 U.S. 1 (1996) (vacating and remanding after oral argument in light of new legislation);
31. Knox v. United States, 510 U.S. 939 (1993) (vacating and remanding in light of a new position taken by Solicitor General in merits brief after a grant of certiorari). Also excluded, though a closer call, is the unusual situation presented by Hohn v. United States, 524 U.S. 236 (1998), where the Court decided, after oral argument on a jurisdictional question, that it had jurisdiction and then vacated and remanded in light of the Solicitor General's confession of error on the merits. GVR-like dispositions such as those described above should not be confused with the dismissal of certiorari as improvidently granted ("DIG"). A DIG might result when, for example, the Court later decides that a particular case is a poor vehicle for deciding the question the Court granted certiorari to decide.
32. See generally Michael E. Solimine & Rafael Gely, The Supreme Court and the DIG: An Empirical and Institutional Analysis, 2005 WIS. L. REV. 1421.
33. Suppose, for example, that the Supreme Court determines that the court below erred by using an improper standard. The Supreme Court will often vacate and direct the court below to apply the proper standard to the facts, rather than the Court itself applying the correct standard and affirming or reversing. See, e.g., Ash v. Tyson Foods, Inc., 546 U.S. 454, 457-58 (2006) (per curiam); California v. Roy, 519 U.S. 2, 4-6 (1996) (per curiam).
34. Compare United States v. US West, Inc., 516 U.S. 1155, 1156 (1996) (granting certiorari, vacating, and remanding "for consideration of the question whether [the case] is moot"), with Teel v. Khurana, 525 U.S. 979, 979-80 (1998) (granting certiorari, vacating, and remanding "with instructions to dismiss the case as moot" (citing United States v. Munsingwear, Inc., 340 U.S. 36 (1950))). Although cases of the first sort fit my criteria, I did not actually locate any such, cases from the last decade.
35. See generally RICHARD H. FALLON, JR. ET AL., HART AND WECHSLER'S THE FEDERAL COURTS AND THE FEDERAL SYSTEM 483-541 (5th ed. 2003) [hereinafter HART & WECHSLER].
36. See Michigan v. Long, 463 U.S. 1032, 1038-41 (1983).
37. For a pre-Michigan v. Long example of a now-disfavored remand for clarification, see Montana v. Jackson, 460 U.S. 1030 (1983) (citing California v. Krivda, 409 U.S. 33 (1972)).
38. One assumes that, Michigan v. Long notwithstanding, the Court often simply denies certiorari in otherwise promising cases when the grounds of the decision below are murky.
39. The Supreme Court's disposition in Bush v. Palm Beach County Canvassing Board, 531 U.S. 70, 78 (2000), came very close to being such a GVR, but it is excluded because it was not decided at the certiorari stage - there was merits briefing and oral argument.
40. The database was the Lexis Supreme Court Lawyers' Edition database. The following search was run for various years: vacat! /p remand! /p (reconsider! or consider! or "in light of) and date(geq (10/01/[year]) and leq (9/30/[following year])). This search, should return all formulaic GVRs, which are the overwhelming majority. Nonformulaic GVRs are potentially harder to catch with such a search (though, due to their rarity, they tend to be cited in secondary literature and subsequent nonformulaic GVRs, which makes them easier to find through those means). A benefit of this particular database is that it includes Lexis-supplied annotations, such as the "decision" and "outcome" fields, which provide further assurance that nonformulaic GVRs would be captured. Note that "grant" was not a search term because it would omit cases on the appellate docket. As the search terms indicate, the Supreme Court term was treated as running from October 1 through the following September 30. For OT 2006, I used the Westlaw Supreme Court Cases (SCT) database rather than Lexis, as the Lexis search for this year inexplicably excludes several months of GVRs.
41. See supra note 22.
42. When the final hardbound copy of the U.S. Reports was not yet available, the soft-cover preliminary print was used instead. Some GVRs accompanied by short per curiams - which I include in my count - are not printed in the back of the books in the orders lists but are instead printed in the front of the book with the argued cases. The U.S. Reports version of the orders list often contains helpful cross-references to those summary dispositions printed in the front of the book, which assists in locating them.
43. An example is the single GVR order in Republic of Austria v. Whiteman and Republic of Poland v. Garb, 542 U.S. 901 (2004), two petitions that arose from the same Second Circuit judgment. In this case, Lexis includes two separate entries, but the U.S. Reports hardcopy contains just one consolidated order, and I count it as one GVR. On rare occasions, one will find in the U.S. Reports a single order treating different petitions from different lower court cases.
44. See, e.g., 544 U.S. 901 (2005) (issuing GVRs on six different lower court decisions in light of Roper v. Simmons). I count each of these separately rather than as one GVR.
45. In the previous term, OT 1995, the Court issued two GVRs with accompanying opinions that described the Court's standards for issuing GVRs in quite expansive terms.
46. See Lawrence v. Chater, 516 U.S. 163 (1996);
47. Stutson v. United States, 516 U.S. 193 (1996). The dissenters thought these cases signaled an important change.
48. See Lawrence, 516 U.S. at 189-90 (Scalia, J., dissenting) ("What is more momentous than the Court's judgments in the particular cases before us-each of which extends our prior practice just a little bit-is its expansive expression of the authority that supports those judgments. . . . Comparing the modest origins of the Court's no-fault V&R policy with today's expansive dénouement should make even the most Pollyannish reformer believe in camel's noses, wedges, and slippery slopes.").
49. 543 U.S. 220 (2005).
50. 549 U.S. 270 (2007).
51. As described above, counting GVRs requires sifting through the computer results, checking the U.S. Reports, and accounting for consolidations. For Booker and Cunningham, I provide only approximations for OT 2004 and OT 2006, respectively, because I did not perform this process with the same rigor due to the large numbers involved.
52. 543 U.S. at 226-27.
53. Id. at 245.
54. Given the number of pending cases potentially affected by Booker, some readers might conclude that the number of GVRs it generated was actually surprisingly modest. Part of the explanation is that some courts held potentially affected cases while Booker was pending, so that subsequent GVRs were not necessary.
55. See infra note 118 (describing Second Circuit's approach).
56. See generally infra text accompanying notes 133-134 (discussing whether courts should hold cases in abeyance when a potentially relevant Supreme Court case is pending).
57. The differing ways various courts handled the period between Blakely v. Washington, 542 U.S. 296 (2003), and Booker is an interesting topic in its own right and one I plan to explore in future research.
58. But cf. Suja A. Thomas, Why Summary Judgment is Unconstitutional, 93 VA. L. REV. 139 (2007).
59. If the Court were ever to overrule its holding in Almendarez-Torres v. United States, 523 U.S. 224 (1998), that the Due Process and Sixth Amendment rules behind the Apprendi/Booker line of sentencing cases do not apply to proof of a prior conviction, that would have a major impact.
60. See Rangel-Reyes v. United States, 547 U.S. 1200, 1201-02 (2006) (Stevens, J., respecting denial of certiorari) (stating view that Almendarez-Torres was incorrect but observing that "countless judges in countless cases have relied on Almendarez-Torres in making sentencing determinations. The doctrine of stare decisis provides a sufficient basis for the denial of certiorari in these cases.").
61. 549 U.S. 270 (2007) (invalidating California's determinate-sentencing framework).
62. 530 U.S. 466 (2000) (invalidating a state sentence enhancement that was based on judicial fact-finding).
63. 128 S. Ct. 586 (2007) (holding that a sentence falling below the Guidelines range must be reviewed on appeal under a deferential abuse-of-discretion standard).
64. 128 S. Ct. 558 (2007) (permitting a sentencing judge to reject the Guidelines' differential treatment of crack vs. powder cocaine in selecting an appropriate sentence).
65. 549 U.S. 47 (2006). As often happens, the same language appeared in both immigration statutes and in criminal provisions, see id. at 50-51 & 52 n.3, which tends to increase the impact of the decision.
66. 516 U.S. 137(1995).
67. See Heytens, supra note 5, at 929-31 (arguing that pro-defendant criminal procedure rulings are especially likely to create disruptive changes in law because, inter alia, they apply to many substantive offenses, and convicted defendants have broader appeal rights than does the government).
68. 533 U.S. 678 (2001).
69. 535 U.S. 722 (2002).
70. 541 U.S. 36 (2004).
71. 547 U.S. 813 (2006).
72. 531 U.S. 4 (2000).
73. 538 U.S. 408 (2003).
74. 548 U.S. 53 (2006).
75. See LEE EPSTEIN ET AL., THE SUPREME COURT COMPENDIUM: DATA, DECISIONS, AND DEVELOPMENTS 72-75 (4th ed. 2007) (providing data on the plenary calendar). Of course, small changes in the plenary docket each term can add up to a noticeable effect over time.
76. See supra notes 38-39 and accompanying text (discussing the impact of Gall v. United States, 128 S. Ct. 586 (2007), and Kimbrough v. United States, 128 S. Ct. 558 (2007)).
77. The Supreme Court can review state court judgments that, loosely speaking, depend on questions of federal law. 28 U.S.C. § 1257 (2000). Changes in state law can nonetheless lead to GVRs in these cases because federal law outcomes often depend on questions of state law (such as when state law is challenged as invalid under federal law). Cases originating in federal court that are potential candidates for a GVR in light of changed state law include federal question cases that involve matters of state law (such as, again, a suit claiming that state law is invalid under federal law) and ordinary diversity cases.
78. Lords Landing Vill. Condo. Council of Unit Owners v. Cont'l Ins. Co., 520 U.S. 893, 898 (1997) (Rehnquist, C.J., joined by Breyer, J., dissenting);
79. Thomas v. Am. Home Prods., Inc., 519 U.S. 913, 916-17 (1996) (Rehnquist, C.J., joined by Breyer, J., dissenting).
80. Thomas, 519 U.S. at 913 (Scalia, J., concurring).
81. This is Justice Scalia's view of the GVR's origins:
82. [O]ur practice of granting certiorari, vacating the judgment below, and remanding for further proceedings in light of intervening developments apparently began when we first set aside the judgments of state supreme courts to allow those courts to consider the impact of state statutes enacted after their judgments had been entered. By 1945, the practice of vacating state judgments in light of supervening events had become so commonplace that we could describe it as "[a] customary procedure." "Similarly, where a federal court of appeals' decision on a point of state law had been cast in doubt by an intervening state supreme court decision, it became our practice to vacate and remand so that the question could be decided by judges 'familiar with the intricacies and trends of local law and practice. '"
83. Thomas, 519 U.S. at 913-14 (Scalia, J., concurring) (second alteration in original) (citations omitted);
84. see also Lawrence v. Chater, 516 U.S. 163, 179-80 (1996) (Scalia, J., dissenting) (presenting a more detailed version of this history). Chief Justice Rehnquist questioned this account of the GVR's state-law origins, pointing out that some of the early GVRs cited by Justice Scalia were not actually GVRs, either because they came to the court under mandatory non-certiorari jurisdiction or because certiorari had already been granted.
85. Lawrence, 516 U.S. at 176 (Rehnquist, C.J., dissenting).
86. It is very likely that Justices sometimes vote against a GVR without noting their dissent in the published order. Lawrence, 516 U.S. at 192 (Scalia, J., dissenting) (stating that he would not necessarily record his dissents from objectionable GVRs);
87. cf. GRESSMAN ET AL., supra note 1, at 330-34 (noting that recording a dissent from a denial of certiorari is rare). It is sometimes said that the Court follows a Rule of Six, under which a summary disposition requires six votes rather than five.
88. GRESSMAN ET AL., supra note 1, at 343, 572 n.41b (describing, and questioning, the vitality and scope of the Rule of Six).
89. Nonetheless, there have been some instances in which a case was GVR'd over the dissents of four Justices. E.g., Price v. United States, 537 U.S. 1152 (2003);
90. Ehrlich v. City of Culver City, 512 U.S. 1231 (1994);
91. Alvarado v. United States, 497 U.S. 543 (1990).
92. See generally J. Mitchell Armbruster, Note, Deciding Not to Decide: The Supreme Court's Expanding Use of the "GVR" Power Continued in Thomas v. American Home Products, Inc. and Department of the Interior v. South Dakota, 76 N.C. L. REV. 1387, 1399-1400 (1998) (discussing whether the Rule of Six applies).
93. I chose these terms for purposes of comparison primarily because they are the terms Hellman studied in his investigation of the GVR process, which was part of his larger project examining the Court's business in the late 1970s. The figures I report are my own, however, as Hellman had somewhat different interests and used a different method. Most importantly, he examined only GVRs triggered by Supreme Court cases, not the other categories. Hellman, supra note 4, at 6 n.6. He also excluded nonformulaic GVRs that are accompanied by a short per curiam.
94. Id. at 11 n.33. Further, his GVR study did not provide term-by-term figures but rather gave a total for the five-year period.
95. Id. at 11. He did provide such a yearly breakdown in another article, although those figures appear to use the petition as the unit of analysis and thus disregard consolidations (and, again, do not provide figures for the various types of GVRs beyond those triggered by Supreme Court cases).
96. See Hellman, supra note 8, at 803-06. This is not meant to be a criticism of Hellman's methods; there are a number of reasonable approaches that one can take, and the considerations motivating the research will lead to different choices.
97. See supra notes 20-23 and accompanying text (discussing these categories). My study of the late 1970s suggests that reconsideration orders that occur based on some new event that occurs after a case is granted and set for argument - which my criteria exclude - were more common than in more recent years. Also more common, in the past - but included - are GVRs accompanied by brief per curiams, typically printed in the front of the book.
98. The story of the Burger Court's treatment of criminal procedure is a complex one. In some areas, Warren Court precedents were severely narrowed, but in other areas the rights of the accused actually expanded; in many areas, things stayed largely the same. For nuanced accounts, see Yale Kamisar, The Warren Court (Was It Really So Defense-Minded?), The Burger Court (Is It Really So Prosecution-Oriented?), and Police Investigatory Practices, in THE BURGER COURT: THE COUNTER- REVOLUTION THAT WASN'T 62 (Vincent Blasi ed., 1983),
99. and Carol S. Steuer, Counter-Revolution in Constitutional Criminal Procedure? Two Audiences, Two Answers, 94 MICH. L. REV. 2466 (1996).
100. See Rachel E. Barkow, Originalists, Politics, and Criminal Law in the Rehnquist Court, 74 GEO. WASH. L. REV. 1043 (2006) (describing recent pro-defendant rulings, especially regarding jury rights, as the result of a partnership between Justices Scalia and Thomas and the Court's more liberal wing).
101. See infra notes 102-104 and accompanying text (discussing clarification of contemporary retroactivity doctrines in Harper v. Va. Dep't of Taxation, 509 U.S. 86 (1993),
102. and Griffith v. Kentucky, 479 U.S. 314 (1987)).
103. One might have expected that a case like Miranda v. Arizona, 384 U.S. 436 (1966), would generate a huge number of GVRs, but it did not. The Court simply denied certiorari in scores of pending cases, foreshadowing its conclusion that Miranda would apply prospectively only.
104. See Desist v. United States, 394 U.S. 244, 255 (1969) (Douglas, J., dissenting)
105. (citing Johnson v. New Jersey, 384 U.S. 719 (1966)).
106. One notable development in this regard is the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214 (codified in scattered sections of 28 U.S.C.), which restricted the availability of habeas and § 2255 relief in several ways.
107. See generally Larry W. Yackle, A Primer on the New Habeas Corpus Statute, 44 BUFF. L. REV. 381 (1996) (discussing the impact of the 1996 statute).
108. Using a chi-square test and treating OT 1975-OT 1979 as one group and OT 1996-OT 2006 as another group, there was a statistically significant difference between the two groups as to the proportion of GVRs that were caused by Supreme Court cases (p < .01).
109. See supra notes 21-22 and accompanying text (discussing Michigan v. Long and its presumption that ambiguous rulings lack an independent state-law basis).
110. 547 U.S. 867 (2006).
111. See, e.g., Solimine v. United States, 429 U.S. 990 (1976) (vacating and remanding for further consideration in light of an argument not considered below).
112. See, e.g., Sena Ku, Comment, The Supreme Court's GVR Power: Drawing a Line Between Deference and Control, 102 NW. U. L. REV. 383, 385 (2008) (criticizing Youngblood because it "disrupts the basic premise of the GVR-that it can only be applied in light of a relevant intervening event").
113. E.g., Lawrence v. Chater, 516 U.S. 163, 169 (1996) ("In Robinson v. Story, 469 U.S. 1081 (1984), we GVR'd for further consideration in light of a Supreme Court decision rendered almost three months before the summary affirmance by the Court of Appeals that was the subject of the petition for certiorari.");
114. see also infra text accompanying notes 75-82 (discussing Stutson v. United States, 516 U.S. 193 (1996)).
115. Further, I discovered over a dozen instances in which the GVR-causing event preceded the denial of a petition for rehearing below or some other final action below (such as a motion to recall the mandate or a denial of discretionary review by a state high court). There are certainly more instances that could be found by examining the lower court docket sheets for every case that is GVR'd; the number just given mostly reflects information readily available in the Lexis case reports and Shepard's report, which sometimes fail to reflect events such as denials of rehearing or motions to recall the mandate. I therefore focus instead on the cases in which the GVR-causing event preceded the decision itself, both because I can provide that information more definitively and because it is sufficient to establish the point.
116. Cf. Ku, supra note 67, at 399 n.91 (stating incorrectly that "the practice of the Court (with the exception of Youngblood) has been to reserve GVR orders for cases involving an intervening event").
117. 530 U.S. 466 (2000).
118. This conclusion is based on examining lower court briefs and docket sheets where they are available in electronic databases, which is not in all cases. Some inferences are involved here. For example, if the docket sheet shows that the briefing and oral argument (if any) were completed before the relevant event occurred and does not reflect a later filing of supplemental authority, we can be reasonably confident that the parties did not bring the matter to the court's attention.
119. In Lawrence v. Chater, one paragraph of Scalia's dissent describes the Court's practice of GVR'ing in light of new Supreme Court decisions and observes that the Court has recently "indulged in the practice of vacating and remanding in light of a decision of ours that preceded the judgment in question, but by so little time that the lower court might have been unaware of it." 516 U.S. at 180-81 (Scalia, J., dissenting). He concludes the paragraph by describing "these" GVRs -presumably all of the ones described in that paragraph, including the antecedent-event ones - as "appropriate."
120. Id. at 181.
121. Further, he did not dissent from the GVR in Lords Landing, a case in which an antecedent event was brought to the court of appeals' attention in a motion to recall the mandate. Lords Landing Vill. Condo. Council of Unit Owners v. Cont'l Ins. Co., 520 U.S. 893, 895 (1997).
122. Consider the following cases:
123. United States v. Mejia, 121 F.3d 722 (11th Cir. July 23, 1997), vacated and remanded, 523 U.S. 1056 (1998) (GVR'ing in light of a statute enacted Sept. 30, 1996, about ten months before the Eleventh Circuit decision);
124. United States v. Hodgkiss, 116 F.3d 116 (5th Cir. Jun 10, 1997), vacated and remanded, 522 U.S. 1012 (1997) (GVR'ing in light of a Supreme Court case decided Dec. 6, 1995, about eighteen months before the Fifth Circuit decision);
125. Grijalva v. Shalala, 152 F.3d 1115 (9th Cir. Aug. 12, 1998), vacated and remanded, 526 U.S. 1096 (1999) (GVR'ing in light of, inter alia, a statute enacted Aug. 5, 1997, about one year before Ninth Circuit decision);
126. United States v. Price, 31 F. App'x 158 (5th Cir. Dec. 18, 2001), vacated and remanded, 537 U.S. 1152 (2003) (GVR'ing in light of a confession of error and Supreme Court case decided May 27, 1997, about four and a half years before the Fifth Circuit decision); and
127. Walker v. True, 401 F.3d 574 (4th Cir. March 25, 2005), vacated and remanded, 546 U.S. 1086 (2006) (GVR'ing in light of a Supreme Court case decided Feb. 24, 2004, about thirteen months before the Fourth Circuit decision).
128. While I have not conducted any systematic investigation of timing issues with regard to the late 1970s cases, I note that in Davis v. Kentucky, 433 U.S. 905 (1977), the Supreme Court GVR'd in light of two cases, one very recent and one seven years old. In Davis, as in Grijalva and Price above, it is conceivable that the Court would not have GVR'd if the stale antecedent event were the only basis for GVR'ing.
129. 516 U.S. 193 (1996) (per curiam).
130. See FED. R. APP. P. 4(b)(1)(A) ("In a criminal case, a defendant's notice of appeal must be filed in the district court within 10 days [of the entry of the judgment of conviction].").
131. See id. 4(b)(4) (permitting the district court to grant extensions even after the deadline has passed). The current version of the rule allows extensions for "excusable neglect or good cause," but the version in effect at the time referred only to "excusable neglect." FED. R. APP. P. 4(b)(4) advisory committee note on 1998 amendments.
132. United States v. Stutson, 36 F.3d 94 (11th Cir. 1994).
133. Pioneer Inv. Servs. Co. v. Brunswick Assoes. Ltd. P'ship, 507 U.S. 380 (1993).
134. Stutson, 516 U.S. at 194-95.
135. Id. The government's response to the petition for certiorari suggested that the Court GVR for further consideration in light of Pioneer. Brief for the United States, Stutson, 516 U.S. 193 (No. 94-8988).
136. Stutson, 516 U.S. at 197-98.
137. Id. at 194;
138. see also Lawrence v. Chater, 516 U.S. 163, 169 (1996) (rejecting Justice Scalia's "opportunity" rule as "too restrictive");
139. id. at 167 (referring to "intervening developments, or recent developments that we have reason to believe the court below did not fully consider").
140. Lawrence, 516 U.S. at 176 (Rehnquist, C.J., dissenting);
141. id. at 177 (Scalia, J., joined by Thomas, J., dissenting). As Justice Scalia said in his dissent:
142. We do not know in this case whether the Eleventh Circuit even agreed with the Government's position that has now been repudiated; for all we know, the court applied Pioneer and found against petitioner under that standard. The judgment is declared invalid because the Eleventh Circuit might (or might not) have relied on a standard (non-Pioneer) that might (or might not) be wrong, that might (or might not) have affected the outcome, and that the Eleventh Circuit might (or might not) abandon (whether or not it is wrong) because the Government has now abandoned it.
143. Id. at 185.
144. In the following cases, the lower court's decision discussed the case that later caused the GVR:
145. United States v. Valensia, 222 F.3d 1173, 1182 (9th Cir. 2000)
146. (citing Apprendi v. New Jersey, 530 U.S. 466 (2000)), vacated and remanded, 532 U.S. 901 (2001) (GVR'ing in light of Apprendi);
147. In re Coleman, Nos. Cl-96-216, C0-96-1521, 1997 Minn. App. LEXIS 1090, at *14 (Minn. Ct. App. Sept. 23, 1997)
148. (citing Kansas v. Hendricks, 521 U.S. 346 (1997)), vacated and remanded, 524 U.S. 924 (1998) (GVR'ing in light of Hendricks); and
149. In re Schweninger, No. C1-96-362, 1997 Minn. App. LEXIS 1110, at *8 (Minn. Ct. App. Oct. 7, 1997)
150. (citing Kansas v. Hendricks, 521 U.S. 346 (1997)), vacated and remanded, 525 U.S. 802 (1998) (GVR'ing in light of Hendricks).
151. Also, in Lords Landing, the order denying the motion to recall the mandate mentioned the state case that would later trigger the GVR, though the order was arguably ambiguous regarding whether the Fourth Circuit considered the recent case distinguishable or instead thought that the court lacked the power to recall the mandate. Lords Landing Vill. Condo. Council of Unit Owners v. Cont'l Ins. Co., 520 U.S. 893, 896-97 (1997);
152. id. at 898 & n. (Rehnquist, C.J., dissenting).
153. Hellman., supra note 8, at 823 (noting over thirty examples of such, "disturbing" summary reversals).
154. The exception was Lords Landing, in which a recent state case that repudiated the basis for the Fourth Circuit's decision in a diversity suit was overlooked by all sides until a motion to recall the mandate. 520 U.S. at 895. Chief Justice Rehnquist, joined by Justice Breyer, dissented in part because they thought the court of appeals deserved better guidance than to be told to consider a case that it had already fully considered (or so the dissenters believed).
155. Id. at 897-98 (Rehnquist, CJ., dissenting). It is certainly possible that some Justices did dissent in other cases but did not note their dissents.
156. See Lawrence, 516 U.S. at 192 (Scalia, J., dissenting) (stating that he would not necessarily record his dissents from objectionable GVRs).
157. See generally David M. Rosenzweig, Note, Confession of Error in the Supreme Court by the Solicitor General, 82 GEO. L.J. 2079 (1994). Not all such confessions occur at the certiorari stage, though nearly all do. The analysis in this Article considers only confessions at the certiorari stage.
158. See supra Section I.A.
159. See, e.g., Penner v. United States, 399 U.S. 522, 522 (1970) (vacating and remanding with instructions to dismiss the indictment "[o]n the basis of a confession of error by the Solicitor General and of an independent review of the record");
160. Baxa v. United States, 381 U.S. 353, 353 (1965) (vacating and remanding for new trial "[o]n consideration of the confession of error by the Solicitor General and upon examination of the entire record").
161. One can still find the occasional extraordinary case where the Court acts on the merits in response to a confession of error rather than GVR'ing. See, e.g., Bailes v. United States, 503 U.S. 1001, 1001 (1992) (remanding "with instructions to vacate with prejudice that aspect of the District Court's award that represents the 'doubling' of damages as suggested by the Solicitor General"). As they are not GVRs, such cases are not considered here.
162. See Lawrence, 516 U.S. at 183 (Scalia, J., dissenting) (objecting to the practice but recognizing that it "is by now well entrenched"). There was some initial opposition to this switch.
163. See Mariscal v. United States, 449 U.S. 405, 407 (1981) (Rehnquist, J., dissenting) ("I harbor serious doubt that our adversary system of justice is well served by . . . routinely vacating judgments which the Solicitor General questions without any independent examination of the merits on our own.");
164. id. at 406 (noting that Justice White dissents "essentially for the reasons stated by Justice Rehnquist").
165. E.g., Price v. United States, 537 U.S. 1152, 1152-53 (2003) (Scalia, J., joined by Rehnquist, C.J. and Thomas, J., dissenting) ("Five Members of this Court have previously expressed their disapproval of vacating and remanding a Court of Appeals decision favorable to the Government in response to the Government's acknowledgment of error, not in the judgment below, but merely in the reasoning on which the lower court relied.");
166. Lawrence, 516 U.S. at 183 (Scalia, J., joined by Thomas, J., dissenting) (calling this "a mistaken practice");
167. Alvarado v. United States, 497 U.S. 543, 545 (1990) (Rehnquist, C.J., joined by O'Connor, Scalia, and Kennedy, J.J., dissenting) (objecting to this extension of GVR practice).
168. Chief Justice Roberts apparently shares these objections, as he joined Justice Scalia's dissent to that effect in the recent case of Nunez v. United States, 128 S. Ct. 2990 (2008) (Scalia, J., joined by Roberts, C.J. and Thomas, J., dissenting).
169. E.g., Hohn v. United States, 537 U.S. 801, 801 (2002);
170. accord Petty v. United States, 481 U.S. 1034, 1035 (1987).
171. For example, one might guess that a GVR referring to a "confession of error" - a rather strong formulation - would correspond to the Solicitor General's admission that a judgment should be vacated, but that is not so. Compare Rosales v. Bureau of Immig. & Customs Enforcement, 545 U.S. 1101 (2005) (referring to "confession of error"),
172. with Brief for the Respondent in Opposition, Rosales, 545 U.S. 1101 (No. 04-8465) (admitting the court below erred in refusing jurisdiction but urging denial of certiorari because petitioner's claim fails on the merits).
173. Similarly, the more neutral "position" language is found both in cases where Solicitors General agree that the judgment should be vacated and those in which they oppose certiorari. Compare Hohn v. United States, 537 U.S. 801 (2002) (GVR'ing and using "position" language),
174. with Brief for the United States, Hohn, 537 U.S. 801 (No. 01-1340) (requesting a GVR because the court of appeals wrongly dismissed the case as moot).
175. See also Alvarado, 497 U.S. at 544 (using "position." language where the government urged denial of certiorari because the judgment was correct).
176. A confession GVR will usually state in the body of the order that the case is being remanded "in light of the position asserted by the Solicitor General in his brief filed on [date]" (or some similar formulation). I matched up that date with the dates of service for various Solicitors General. When the GVR order did not provide a date, I obtained the needed information by obtaining the brief or docket sheet. Information on terms of service of Solicitors General can be found in EPSTEIN ET AL., supra note 50, at 686-87.
177. See, e.g., Price, 537 U.S. at 1156-57 (Scalia, J., dissenting) (noting that the Court GVR'd even though the government insisted judgment was correct);
178. Diaz-Albertini v. United States, 498 U.S. 1061, 1061 (1991) (Rehnquist, C.J., dissenting) (noting that the Court GVR'd largely based on the Solicitor General's position in a related case, despite the Solicitor General's view that the instant case was distinguishable and should be denied);
179. Alvarado, 497 U.S. at 544 (GVR'ing where the government urged denial of certiorari because the judgment was correct);
180. see also id. at 546 (Rehnquist, C.J., dissenting) ("A confession of error is at least a deliberate decision on the part of the Government to concede that a Court of Appeals judgment in favor of the Government was wrong. . . . If we are now to vacate judgments on the basis of what are essentially observations in the Government's brief about the 'approach' of the Court of Appeals in a particular case, I fear we may find the Government's future briefs in opposition much less explicit and frank than they have been in the past.").
181. Another notable case is England v. Dretke, in which the Court GVR'd based on the state's purported acknowledgment of error; the state then filed a petition for rehearing in which it argued that it had not admitted any error and urged (unsuccessfully) that the GVR order be vacated. 546 U.S. 1136 (2006), reh'g denied, 547 U.S. 1052 (2006).
182. In the recent case of Greenlaw v. United States, the Solicitor General admitted "error in the judgment" below and urged a GVR, but the Supreme Court nonetheless granted certiorari and appointed an amicus to defend the judgment. Greenlaw v. United States, 128 S. Ct. 976 (2008);
183. Greenlaw v. United States, 128 S. Ct. 829 (2008);
184. Brief for the United States at 12, Greenlaw, 128 S. Ct. 829 (No. 07-330).
185. At other times, the Court has denied certiorari despite the government's openness to a GVR. Compare Lopez-Elias v. Reno, 531 U.S. 1069 (2001) (denying certiorari),
186. with Brief for the Respondent at 18, Lopez-Elias, 531 U.S. 1069 (No. 00-164) (suggesting a GVR or, in the alternative, denial of certiorari).
187. For an exception, see Shaun P. Martin, Gaming the GVR, 36 ARIZ. ST. L.J. 551 (2004), offering a critique of the GVR practice, largely on grounds that it increases transaction costs and creates incentives for delay.
188. See, e.g., Supreme Court Jurisdiction Act Hearings, supra note 8, at 40 (letter from all nine Justices stating that the Court's primary duty is to settle important questions of federal law);
189. Hellman, supra note 8, at 799 ("[T]he consensus of Congress, the bar, and the judiciary [is] that review for error should play, at best, a minor part in the Court's work . . . ."). This is certainly not to deny that there is room for reasonable debate regarding whether, at the margins, the Court should engage in slightly greater error correction.
190. See, e.g., Carolyn Dineen King, Challenges to Judicial Independence and the Rule of Law: A Perspective from the Circuit Courts, 90 MARQ. L. REV. 765, 786 (2007) (suggesting that somewhat greater emphasis on error correction would be valuable in upholding the rule of law).
191. E.g., Lords Landing Vill. Condo. Council of Unit Owners v. Cont'l Ins. Co., 520 U.S. 893, 898 (1997) (Rehnquist, C.J., dissenting);
192. Thomas v. Am. Home Prods., Inc., 519 U.S. 913, 916-17 (1996) (Rehnquist, C.J., dissenting).
193. See Martin, supra note 98, at 588-92 (discussing such a reform);
194. The Supreme Court, 1960 Term, 75 HARV. L. REV. 80, 97 (1961) (suggesting such a reform).
195. In some circumstances, changed law is available even after a case becomes final, as in collateral proceedings challenging criminal convictions. See generally HART & WECHSLER, supra note 21, at 1325-35 (discussing Teague v. Lane, 489 U.S. 288 (1989), and exceptions thereto). When the discussion in this Article refers to changes in law, I do not have in mind the technical concept of "new rules" in the Teague sense. I mean simply any change in the applicable rules.
196. See, e.g., Harper v. Va. Dep't of Taxation, 509 U.S. 86, 95-97 (1993) (new rulings in civil cases);
197. Griffith v. Kentucky, 479 U.S. 314, 320-28 (1987) (new criminal procedure rulings). The new law applies in theory to all pending cases, but it should be noted that in practice there may be obstacles to obtaining the benefit of a change in law. For example, even in a criminal case on direct review, a defendant raising a claim not presented to the trial court faces the unfavorable prospect of the plain-error standard of review, even though he failed to present the claim at trial only because it was foreclosed by precedent at that time.
198. See Johnson v. United States, 520 U.S. 461 (1997);
199. United States v. Recio, 371 F.3d 1093, 1100 (9th Cir. 2004) (citing Johnson and explaining that "the four-part plain error test . . . applies on direct appeal even where an intervening change in the law is the source of the error");
200. cf. Crawford v. Falcon Drilling Co., 131 F.3d 1120, 1123, 1125 (5th Cir. 1997) (applying a similar standard to new argument in civil appeal where the law changed after district court proceedings). In plain-error review, an appellate court may in its discretion correct an error that is now obvious, but only if (inter alia) the error "seriously affect[ed] the fairness, integrity or public reputation, of judicial proceedings."
201. Johnson, 520 U.S. at 469-70 (internal quotation marks omitted).
202. The situation is more complicated as concerns the application of new statutory law. There is no general bar on new statutes applying to pending cases, but traditional concerns about statutory retroactivity mean that statutes are not always construed to apply to all the cases they might permissibly reach. See Landgraf v. USI Film. Prods., 511 U.S. 244, 273-74 (1994).
203. Griffith, 479 U.S. at 321 n.6. In rare cases, the Supreme Court will GVR even after certiorari has been denied, typically in response to a petition for rehearing.
204. See infra note 147.
205. Hellman, supra note 8, at 822-23 (reporting that the Warren Court issued over 100 summary reversals based on intervening precedent).
206. This option would not have been available in eras in which much of the Court's docket was nondiscretionary. Cf. Lawrence v. Chater, 516 U.S. 163, 176 (1996) (Rehnquist, C.J., concurring and dissenting) (noting that some very early GVRs were not actually GVRs, because they came to the Court under mandatory non-certiorari jurisdiction).
207. Id. at 176-77 ("[W]e would do well to bear in mind the admonition of Chief Justice William Howard Taft . . . . [Litigants] have had all they have a right to claim, Taft said, when they have had two courts in which to have adjudicated their controversy." (quoting 2 HENRY F. PRINGLE, THE LIFE AND TIMES OF WILLIAM HOWARD TAFT 997-98 (1939)) (internal quotation marks omitted)).
208. United States v. Johnson, 457 U.S. 537, 556 n.16 (1982) ("[I]nequity . . . results when the Court chooses which of many similarly situated defendants should be the chance beneficiary of a [new] rule." (emphasis omitted)).
209. At present, each of these routes is unsatisfactory or uncertain to give effect to a latter-day change in law. Rule 60(b)(5) is much, less useful than its text might suggest; it permits the district court to provide relief from the prospective effects of judgments that are no longer equitable and allows the district court to vacate a judgment that was based on the preclusive effect of another judgment that later became invalid, but the rule does not provide a remedy "merely because a case relied on as precedent by the court in rendering the present judgment has since been reversed." 11 CHARLES ALAN WRIGHT ET AL., FEDERAL PRACTICE AND PROCEDURE § 2863, at 335 (2d ed. 1995). Recalling the appellate court's mandate is an extraordinary procedure; it might occasionally be used to bring a recent decision into conformity with new precedent, especially where the erroneous decision has a continuing prospective effect, but it appears that most courts would not, as a matter of routine, resort to this power to amend past decisions that conflict with new Supreme Court precedents.
210. See, e.g., Richardson v. Reno, 175 F.3d 898, 899 (11th Cir. 1999) (refusing to recall the mandate in light of a Supreme Court decision that cast doubt on its recent ruling);
211. CHARLES ALAN WRIGHT ET AL., FEDERAL PRACTICE AND PROCEDURE § 3938, at 729-31 (2d ed. 1996) (surveying cases). Habeas, in addition to applying only to criminal cases, is slow and presents many hurdles to relief.
212. Richardson v. Reno, 162 F.3d 1338, 1378-79 (11th Cir. 1998).
213. Reno v. Am.-Arab Anti-Discrimination Coram., 525 U.S. 471, 482-83 (1999) (construing 8 U.S.C. § 1252(g) (2006)).
214. Richardson v. Reno, 175 F.3d 898, 899 (11th Cir. 1999).
215. Id.
216. Richardson v. Reno, 526 U.S. 1142 (1999). On remand, the court of appeals modified its analysis, though the bottom line remained the same.
217. Richardson v. Reno, 180 F.3d 1311, 1314-15 (11th Cir. 1999).
218. The court cited Calderon v. Thompson, 523 U.S. 538 (1998), as its authority for the proposition that the Supreme Court "narrowly has restricted the circumstances in which a court of appeals can recall a mandate."
219. Richardson, 175 F.3d at 899. Calderon was a bizarre case in which the Ninth Circuit belatedly recalled its mandate right before an execution on the grounds that two judges would have asked for rehearing en banc but had overlooked the relevant papers. 523 U.S. at 550-51.
220. On the question whether a change in law can justify recall of the mandate under current law, see supra note 109.
221. See, e.g., SUP. CT. R. 33(1)(a), (f) (requiring parties to file forty copies in booklet format);
222. id. 33(1)(b) (requiring a petition appendix to be typeset rather than photocopied).
223. In Richardson itself, a petition had already been filed, 175 F.3d at 899, but in other cases that will not yet have happened. The larger point is that there should be no need to go to the Supreme Court in these types of cases.
224. See SUP. CT. R. 9(1) (generally requiring those filing documents with the Court to be members of the Court's bar).
225. See, e.g., United States v. Morgan, 386 F.3d 376, 382 n.4 (2d Cir. 2004) (noting Second Circuit's decision to reject Blakely-based challenges to federal sentences but hold the mandates pending the Supreme Court's decision in Booker).
226. See EPSTEIN ET AL., supra note 50, at 74-75 (providing data on the declining number of grants of certiorari);
227. GRESSMAN ET AL., supra note 1, at 60-64 (summarizing the decline in the number of decisions issued by the Court).
228. It is difficult to say how much time is spent on GVRs, in part because one cannot confine oneself to examining only the actual number of GVRs that are issued or even the number of petitions that were candidates for GVRs. The possibility of a future change in law may induce litigants to engage in certain behavior - seeking extensions of time, filing protective petitions for certiorari in the hope that some event will occur, etc. - that they might not otherwise pursue. It will not always be obvious that this behavior is caused by the potential for a GVR, which means that these costs are hidden. See Martin, supra note 98, at 570-73.
229. An old expression of the need to protect the Court's limited capacity-but one still much worth citing - is Henry M. Hart, Jr., Foreword: The Time Chart of the Justices, 73 HARV. L. REV. 84, 95-100 (1959).
230. See infra Section II.B.4.
231. An examination of GVRs caused by Supreme Court cases in OT 2004 through OT 2006 shows that an average of around a third of GVRs are pre-grant petitions, though there is substantial variability. In particular, the results are as follows: OT 2004-30% pre-grant, 53% post-grant, 17% post-decision; OT 2005-27% pre-grant, 50% post-grant, 23% post-decision; OT 2006-45% pregrant, 42% post-grant, 13% post-decision. I chose these years both because I wanted information on the Court's current practices and because electronic docket-sheets are routinely available for the last several years. As before, these calculations exclude Booker and Cunningham GVRs. My sense, though this is not supported by a thorough analysis, is that the profile of at least some blockbuster GVR-creating cases systematically differs from the figures reported above such that pre-grant petitions represent a smaller share of the GVRs attributable to such cases. If so, that would increase the proportion of GVRs that could be eliminated.
232. The potential for the district court to implement a change in law notwithstanding the court of appeals' mandate led Hellman to propose that the Court deny certiorari rather than GVR in cases in which the court of appeals has remanded for further proceedings. See Hellman, supra note 4, at 34-35. Thus, my proposal is not new as regards this particular subcategory of cases.
233. See 18B CHARLES ALAN WRIGHT ET AL., FEDERAL PRACTICE AND PROCEDURE § 4478.3, at 746 n.24 (2d ed. 2002) (citing cases for the proposition that a district court can depart from the appellate court mandate when there has been a change in controlling law).
234. But see Crane Co. v. Am. Standard, Inc., 603 F.2d 244, 248-49 & n.8 (2d Cir. 1979) (suggesting contrary view). There may be hard cases concerning how much a district court could depart from a remand mandate that was limited in scope. For example, if the court of appeals remanded solely for a redetermination of an award of attorneys' fees, could the district court hold an entire new trial on the merits based on an intervening Supreme Court decision that undermined the prior resolution of the underlying case? In such a circumstance, one might think it better to seek a modification of the mandate from the court of appeals rather than have the district court expend so much, effort based on its own view of the impact of the Supreme Court decision. These hard cases already arise today, given the prevailing practice, so this difficulty is not really an objection to my proposal.
235. Cf. Morrow v. Dillard, 580 F.2d 1284, 1297 (5th Cir. 1978) (approving a district court's decision to deny attorneys' fees altogether based on intervening Supreme Court precedent when the court of appeals had remanded only for reconsideration of amount of fees).
236. FED. R. APP. P. 40(a)(1). The period is forty-five days in civil cases to which the federal government is a party.
237. Id.
238. 28 U.S.C. § 2101(c) (2000); SUP. CT. R. 13(1).
239. Below I discuss whether the mere grant of certiorari in a related case should justify filing such a petition. See infra Section II.B.3. The proposal takes existing rules regarding appellate forfeiture as it finds them and leaves them unchanged. Some courts would deny a petition, for rehearing that raises a new issue on appeal, even when the new issue is based on a new Supreme Court case decided during the rehearing period.
240. Compare United States v. Levy, 379 F.3d 1241, 1242 (11th Cir. 2004) (denying petition for panel rehearing based on Supreme Court case released the day after panel decision),
241. with United States v. Levy, 391 F.3d 1327, 1335 (11th Cir. 2004) (Tjoflat, J., dissenting from denial of rehearing en banc) (criticizing Eleventh Circuit forfeiture rule and citing contrary cases from other circuits). (It is important to note that even these strict courts distinguish between new issues and intervening authority that relates to an existing issue, forbidding the former but not the latter from being raised after the initial brief.
242. See United States v. Nealy, 232 F.3d 825, 830 (11th Cir. 2000).) Nor does the proposal seek to change existing rules that call for narrow plain-error review for issues not presented to the trial court, even when there has been a change of law that intervened since the trial.
243. See supra note 103. All of these rules might be subject to criticism on the ground that they unfairly restrict the retroactive effect of new law, but that is separate from the goal here.
244. See FED. R. APP. P. 41(b) (providing that the appellate court's mandate issues seven days after the denial of a petition for rehearing or the expiration of the period for filing for rehearing).
245. 16A CHARLES ALAN WRIGHT ET AL., FEDERAL PRACTICE AND PROCEDURE § 3986, at 726-27 (3d ed. 1999) ("It has generally been supposed that the court of appeals has power to recall its mandate and to grant an out-of-time petition for rehearing. Despite some doubts, it is now clear that the power exists but that it is to be used sparingly." (footnotes omitted)).
246. In other words, we want more cases in the spirit of United States v. Skandier, 125 F.3d 178, 182-83 (3d Cir. 1997) (recalling the mandate and granting rehearing based on a Supreme Court decision issued approximately one month after the circuit court's prior ruling),
247. and fewer in the spirit of United States v. Fraser, 407 F.3d 9, 10-11 (1st Cir. 2005) (refusing to recall the mandate in light of a Supreme Court case issued approximately two months after the circuit court's prior ruling),
248. and Richardson v. Reno, 175 F.3d 898, 899 (11th Cir. 1999) (same).
249. See infra note 145.
250. E.g., Fisher v. Primstaller, 215 F. App'x 430, 431 (6th Cir. 2007) ("After [appellant] brought the present appeal, the Supreme Court granted certiorari in Jones v. Bock, and we held his appeal in abeyance pending the disposition of that case." (citation omitted)).
251. The Administrative Office regularly issues statistics showing, inter alia, the number of pending cases and median time required for termination of appeals in each circuit. JAMES C. DUFF, ADMIN. OFFICE OF THE U.S. COURTS, JUDICIAL BUSINESS OF THE UNITED STATES COURTS: 2007 ANNUAL REPORT OF THE DIRECTOR app. at 85, 107 (2008), available at http://www.uscourts.gov/judbus2007/JudicialBusinespdfversion.pdf. Chief judges naturally would want to keep their circuit from looking bad.
252. See Boston & Me. Corp. v. Town of Hampton, 7 F.3d 281, 283 (1st Cir. 1993) (denying a motion to recall the mandate in light of a new state supreme court case and noting that the movant could have sought a stay of the First Circuit proceedings pending the state decision).
253. Cf. Martin, supra note 98, at 576-84 (arguing that the GVR practice creates incentives for litigants to conceal potentially dispositive future developments).
254. To be sure, the Court says that it can consider the equities of the case and could withhold a GVR in cases of manipulative litigation strategies, Lawrence v. Chater, 516 U.S. 163, 167-68 (1996), but the mere failure of a litigant to tell the lower court about a case pending in the Supreme Court does not seem to strike the Court as manipulative.
255. Indeed, it is my understanding that at least some courts of appeals try to do that, to varying degrees.
256. See Lawrence, 516 U.S. at 167 (explaining that the Court GVRs when there is "a reasonable probability that the decision below rests upon a premise that the lower court would reject if given the opportunity");
257. see also Tyler v. Cain, 533 U.S. 656, 666 n.6 (2001) (rejecting litigant's attempt to read a GVR as a ruling on the merits). For example, the Court's decision to GVR a habeas case in light of a new criminal procedure precedent does not mean, that the new ruling applies on collateral review.
258. See Hellman, supra note 4, at 33 n. 108, 36 n.121.
259. FED. R. APP. P. 35(b).
260. FED. R. CIV. P. 11 (providing for sanctions for documents that lack legal or factual support or are submitted for improper purposes, such as delay).
261. See supra notes 116-117.
262. McCleskey v. Kemp, 481 U.S. 279, 339 (1987) (Brennan, J., dissenting).
263. The well-counseled are not always the same as the well-heeled. Many federal public defender offices have extraordinary expertise in dealing with such matters on behalf of their indigent clients.
264. The reform suggested here would preserve the parties' ability to petition for certiorari if dissatisfied with the court of appeals' decision on whether to change its earlier ruling. If rehearing is granted, the period for petitioning runs from entry of the new judgment. SUP. CT. R. 13.3. If rehearing is denied, the period runs from the date of the denial if the request for rehearing is "timely filed . . . or if the lower court appropriately entertains an untimely petition for rehearing."
265. Id. (emphasis added). If the proposed reform were implemented by amending the appellate rules to extend the period for filing rehearing petitions, then those rehearing petitions would be timely filed. If instead the reform, were implemented by instructing the courts of appeals to consider out-of-time rehearing petitions in the case of intervening developments, then that should be considered "appropriate" such that the certiorari clock runs from the denial of the out-of-time petition.
266. See supra notes 124-125 and accompanying text.
267. The view that denial of certiorari automatically puts an end to any possibility of accommodating changes in law is, admittedly, in tension with the fact that the Court does on rare occasions GVR in response to a petition for rehearing based on a new case decided shortly after certiorari was denied. During the period of the study, I found about a dozen such GVRs, all Booker GVRs in which certiorari had initially been denied soon before or very soon, after Blakely was decided. That the Court has not in recent years been GVR'ing on rehearing outside of this exceptional context perhaps reflects the Court's realization that, at some point, cases have to be let go.
268. See FED. R. APP. P. 40(a)(2) (providing for petitions for panel rehearing when the court overlooks or misapprehends points of law or fact).
269. In times past, it might have been perfectly reasonable for an attorney not to learn about a new controlling authority quickly. But today it is harder to excuse delay. Lexis and Westlaw both have features that provide automatic notification of new cases that cite specified prior cases or fit other user-defined criteria; in addition, there are listservs, blogs, court websites, etc. None of this is to suggest that a lower court could not in its discretion permit a late petition for rehearing or other remedy when there are unusual circumstances excusing counsel's failure. It is just that we should not build our routine procedures around it.
270. On remand, the West Virginia Supreme Court of Appeals changed course and reversed Youngblood's conviction. State v. Youngblood, 650 S.E.2d 119 (W. Va. 2007).
271. See supra note 14.
272. 516 U.S. 163, 170(1996).
273. Figures can be found in Table S-3 of the annual reports compiled by the Administrative Office of the U.S. Courts, which are available at http://www.uscourts.gov/judbususc/judbus.html.
274. Cf. Edward A. Hartnett, Questioning Certiorari: Some Reflections Seventy-Five Years After the Judges'Bill, 100 COLUM. L. REV. 1643, 1730-31 (2000) (arguing that the discretionary certiorari policy frees the Supreme Court from dealing with the consequences of its decisions expanding the reach of federal law);
275. John C. Jeffries, Jr., The Right-Remedy Gap in Constitutional Law, 109 YALE L.J. 87, 90 (1999) (arguing that the doctrine of qualified immunity facilitates the growth of constitutional law by reducing the cost of innovation).
276. Hellman, supra note 4, at 40.