Deciding when to decide: How appellate procedure distributes the costs of legal change

Cornell Law Review

Volumn 96, Issue 2, 2011, Pages 203-264

  Bruhl, Aaron Andrew P ^a  

^a UNIVERSITY OF HOUSTON   (United States)

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EID: 79952127087     PISSN: 00108847     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (425)

1. Daniel 6:15 (King James) ("[T]he law of the Medes and Persians is, [t]hat no decree nor statute which the king establisheth may be changed."); see also Hurtado v. California, 110 U.S. 516, 529 (1884).
2. State Oil Co. v. Khan, 522 U.S. 3, 20 (1997) ("[I]t is this Court's prerogative alone to overrule one of its precedents.");
3. Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 484 (1989) ("If a precedent of this 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, leaving to this Court the prerogative of overruling its own decisions.").
4. See infra text accompanying notes 32-34 (discussing this issue and citing commentary).
5. The scenario described in this paragraph is present in many cases. See, e.g., In re Williams, 359 F.3d 811, 813-14 (6th Cir. 2004);
6. see also infra Part III.C.1 (discussing this scenario and citing other cases). The majority in Williams decided to let the execution proceed despite the grant of certiorari in another case that presented similar issues. 359 F.3d at 813-14. The dissent argued unsuccessfully that the grant of certiorari militated in favor of abeyance and a stay of execution.
7. Id. at 814-16 (Moore, J., dissenting).
8. But see United States v. Provost, 237 F.3d 934, 937 (8th Cir. 2001) (noting that the case had been held in abeyance due to the pendency of a petition for certiorari in another case raising a related legal issue).
9. I use "appellate procedure" broadly here to mean the doctrines and arrangements governing the activities of and relationships between different levels of courts in a multitiered judicial system. In other words, I do not mean only or even primarily the contents of the Federal Rules of Appellate Procedure, which govern certain aspects of litigation practice in the federal intermediate appellate courts.
10. 542 U.S. 296 (2004).
11. 543 U.S. 220 (2005).
12. See, e.g., Payne v. Tennessee, 501 U.S. 808, 828 (1991). In saying that the doctrine is not absolute, I am referring to horizontal precedent-the binding effect of a court's own prior decisions. Vertical precedent-the binding effect of a superior court's decisions on its judicial inferiors-is more absolute.
13. See Hutto v. Davis, 454 U.S. 370, 374-75 (1982);
14. see also infra text accompanying notes 32-34 (discussing rule against anticipatory overruling by lower courts). The literature on stare decisis is vast. For work that focuses on the relationship between stare decisis and transition costs,
15. see, for example, Jill E. Fisch, The Implications of Transition Theory for Stare Decisis, 13 J. CONTEMP. LEGAL ISSUES 93 (2003);
16. and Thomas R. Lee, Stare Decisis in Economic Perspective: An Economic Analysis of the Supreme Court's Doctrine of Precedent, 78 N. C. L. REV. 643 (2000).
17. See, e.g, Bell Ad. Corp. v. Twombly, 550 U.S. 544, 553-63, 570 (2007) (modifying pleading standards applicable in every federal civil suit);
18. United States v. Booker, 543 U.S. 220, 226-27, 245 (2005) (holding the federal Sentencing Guidelines unconstitutional if treated as mandatory);
19. Crawford v. Washington, 541 U.S. 36, 60-69 (2004) (overruling precedents allowing frequent use of hearsay evidence in criminal trials);
20. see also Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527, 2543, 2549-50 2555-61 (2009) (Kennedy, J., dissenting) (decrying the disruptive effects of the Court's decision extending Crawford to testimonial use of forensic reports);
21. Kevin M. Clermont & Stephen C. Yeazell, Inventing Tests, Destabilizing Systems, 95 IOWA L. REV. 821, 823 (2010)
22. (arguing that Twombly and later pleadings decision in Ashcrofl v. Iqbal, 129 S. Ct. 1937 (2009), have "destabilized the entire system of civil litigation"). Needless to say, calling a case disruptive does not mean that it is wrong.
23. Another fact of life is that facts change, sometimes during the course of appellate proceedings. For an insightful examination of the problems posed by changing facts, see Stuart Minor Benjamin, Stepping into the Same River Twice: Rapidly Changing Facts and the Appellate Process, 78 TEX. L. REV. 269 (1999).
24. Obviously, the statements in the text are simplifications that ignore other possibilities and glide over some ambiguities. See generally Stephen R. Munzer, Retroactive Law, 6 J. LEGAL STUD. 373 (1977) (examining retroactivity and the difficulty of defining it). A rule may have a delayed effective date, for instance, or take effect only gradually over a period of years. Further, a prospective change in law may affect past transactions in a way that feels retroactive in practice. For example, when assets have been acquired based on incentives provided by existing law, even a prospective change in law will affect the value of those assets. To ameliorate such effects, it may be appropriate to use grandfathering or other forms of transitional relief. There is a substantial and sophisticated literature on such matters.
25. See, e.g., DANIEL SHA VIRO, WHEN RULES CHANGE: AN ECONOMIC AND POLITICAL ANALYSIS OF TRANSITION REUEF AND RETROACTIVITY (2000);
26. Jill E. Fisch, Retroactivity and Legal Change: An Equilibrium Approach, 110 HARV. L. REV. 1055 (1997);
27. Michael J. Graetz, Legal Transitions: The Case of Retroactivity in Income Tax Revision, 126 U. PA. L. REV. 47 (1977);
28. Louis Kaplow, An Economic Analysis of Legal Transitions, 99 HARV. L. REV. 509 (1986);
29. Saul Levmore, Changes, Anticipations, and Reparations, 99 COLUM. L. REV. 1657 (1999).
30. See U.S. CONST, art. I, § 9, cl. 3;
31. id. at art. I, § 10, cl. 1;
32. Carmell v. Texas, 529 U.S. 513, 521-22 (2000).
33. See Landgraf v. USI Film Prods., 511 U.S. 244, 265-68, 280 (1994). It is sometimes said that an opposite presumption in favor of retroactivity should apply to "procedural" legislation, but that suggestion may simply reflect confusion over what we mean by retroactivity and what event the legislation is regulating.
34. See id. at 290-92 (Scalia, J., concurring in the judgments).
35. See id. at 265-68 (majority opinion).
36. See 1 WILLIAM BLACKSTONE, COMMENTARIES *69-70 (stating that, when departing from precedent, "the subsequent judges do not pretend to make a new law, but to vindicate the old one from misrepresentation").
37. For more detailed treatments of the Supreme Court's shifts on this subject, see, among many others, Richard H. Fallon, Jr. & Daniel J. Meltzer, New Law, Non-Retroactivity, and Constitutional Remedies, 104 HARV. L. REV. 1731, 1738-49 (1991);
38. Alison L. LaCroix, Temporal Imperialism, 158 U. PA. L. REV. 1329, 1348-67 (2010);
39. Kermit Roosevelt III, A Little Theory Is a Dangerous Thing: The Myth of Adjudicative Retroactivity, 31 CONN. L. REV. 1075, 1081-97 (1999);
40. Bradley Scott Shannon, The Retroactive and Prospective Application of Judicial Decisions, 26 HARV. J.L. & PUB. POL'Y811, 816-36 (2003);
41. and Tung Yin, A Better Mousetrap: Procedural Default as a Retroactivity Alternative to Teague v. Lane and the Antiterrorism and Effective Death Penalty Act of 1996, 25 AM. J. CRIM. L. 203, 210-25 (1998). It should be noted that one can endorse retroactivity without embracing the Blackstonian notion that new law was the law all along.
42. See Mackey v. United States, 401 U.S. 667, 677 (1971) (Harlan, J., concurring in part and dissenting in part).
43. See Harper v. Va. Dep't of Taxation, 509 U.S. 86, 95-97 (1993) (civil cases);
44. Griffith v. Kentucky, 479 U.S. 314, 320-28 (1987) (criminal cases).
45. The reasons for saying "may be reversed" will become apparent later in this Article. See discussion infra Part I.A.2.
46. Clay v. United States, 537 U.S. 522, 527 (2003).
47. See James B. Beam Distilling Co. v. Georgia, 501 U.S. 529, 541 (1991) (opinion of Souter, J.) ("[Retroactivity in civil cases must be limited by the need for finality; once suit is barred by res judicata or by statutes of limitation or repose, a new rule cannot reopen the door already closed." (citation omitted));
48. Chicot Cnty. Drainage Dist. v. Baxter State Bank, 308 U.S. 371, 375-78 (1940).
49. Rule 60(b)(5) permits a district court to vacate a judgment that was "based on an earlier judgment that has been reversed or vacated," FED. R. CIV. P. 60(b)(5), but that language only contemplates reopening judgments that were based on the preclusive effect of a since-invalidated judgment; the rule does not provide relief when a case relied on as precedent has been reversed.
50. See 11 CHARLES ALAN WRIGHT ET AL., FEDERAL PRACTICE AND PROCEDURE § 2863 (2d ed. 1995). Rule 60(b)(5) also provides relief when "it is no longer equitable that the judgment should have prospective application."
51. Id.
52. This provision allows relief in some cases involving continuing injunctions, but most judgments do not involve the requisite prospective effect within the meaning of the rule.
53. See id.
54. n.14 (citing cases where prospective effect was not found). Rule 60(b) (6) has sometimes been used to provide relief based on a change in law, but in most courts the rule is limited to extraordinary cases; a mere change in law rendering the judgment wrong is insufficient.
55. See, e.g., United States ex rel. Garibalth v. Orleans Parish Sch. Bd., 397 F.3d 334, 337-40 (5th Cir. 2005);
56. DeWeerth v. Baldinger, 38 F.3d 1266, 1272-75 (2d Cir. 1994);
57. see also 12 JAMES WM. MOORE ET AL., MOORE'S FEDERAL PRACTICE §60.48[5] (3d ed. 2010) (calling the more generous minority view "clearly erroneous").
58. See Schriro v. Summerlin, 542 U.S. 348, 351-52 (2004);
59. Penry v. Lynaugh, 492 U.S. 302, 329-30 (1989). The discussion here includes both true habeas proceedings, which concern state prisoners, as well as proceedings for federal prisoners under 28 U.S.C. § 2255.
60. See Summerlin, 542 U.S. at 352;
61. Teague v. Lane, 489 U.S. 288, 310 (1989) (plurality opinion). There is an exception for "watershed rules" of criminal procedure that substantially improve the accuracy of the truth-finding process, but this exception is a virtual nullity.
62. See Tyler v. Cain, 533 U.S. 656, 666 n.7 (2001);
63. see also Mungo v. Duncan, 393 F.3d 327, 333-35 (2d Cir. 2004) (noting uncertainty regarding whether the exceptions to the Teague nonretroactivity rule apply after the amendments to 28 U.S.C. §2254). Note that the discussion in the text concerns federal court proceedings. States are free to provide broader retroactive effect in postconviction proceedings in their own courts.
64. See Danforth v. Minnesota, 552 U.S. 264, 288-90 (2008).
65. FED. R. CRIM. P. 52(b);
66. United States v. Olano, 507 U.S. 725, 731-32 (1993).
67. See, e.g., Johnson v. United States, 520 U.S. 461, 466-68 (1997);
68. United States v. Recio, 371 F.3d 1093, 1100 (9th Cir. 2004) (citing Johnson and explaining that "the fourpart plain error test. . . applies on direct appeal even where an intervening change in the law is the source of the error");
69. United States v. Kramer, 73 F.3d 1067, 1074 (11th Cir. 1996) (reaching the same conclusion in a pre-Johnson case);
70. cf. United States v. Thomas, 274 F.3d 655, 668 n.15 (2d Cir. 2001) (en banc) (citing and questioning continued validity of prior Second Circuit cases that, in the changed-law context, had employed a modified plain-error analysis that shifted the burden of disproving prejudice to the government).
71. See, e.g, Martinez v. Tex. Dep't of Criminal Justice, 300 F.3d 567, 573-75 (5th Cir. 2002);
72. Fashauer v. N.J. Transit Rail Operations, Inc., 57 F.3d 1269, 1289 (3d Cir. 1995);
73. JAMES WM. MOORE ET AL., MOORE'S FEDERAL PRACTICE § 205.05 (3d ed. 2010).
74. See generally Mitchell J. Waldman, When Will Federal Court of Appeals Review Issue Raised by Party for First Time on Appeal Where Legal Developments After Trial Affect Issue, 76 A.L.R. FED. 522 (1986).
75. See Toby J. Heytens, Managing Transitional Moments in Criminal Cases, 115 YALE L.J. 922, 979-80 (2006);
76. see also Meir Katz, Note, Plainly Not "Error": Adjudicative Retroactivity on Direct Review, 25 CARDOZO L. REV. 1979, 1980-82 (2004) (criticizing use of forfeiture rules in the changed-law context).
77. Cal. Gas Transp., Inc. v. NLRB, 507 F.3d 847, 852 n.3 (5th Cir. 2007);
78. Stump v. Gates, 211 F.3d 527, 533 (10th Cir. 2000).
79. The Eleventh Circuit has become particularly strict on this point. See, e.g., United states v. Levy, 416 F.3d 1273, 1274-76 (11th Cir. 2005) (refusing to consider a new issue raised in a petition for rehearing, despite intervening developments);
80. United States v. Nealy, 232 F.3d 825, 830-31 (11th Cir. 2000) (same, for a new issue in supplemental brief);
81. see also United States v. Hernandez-Gonzalez, 405 F.3d 260, 261-62 (5th Cir. 2005) (similar rule in Fifth Circuit);
82. Christopher R. Prior, Note, Not Too Little, But a Little Too Late: The Eleventh Circuit's Refusal to Consider New Issues Raised by Supplemental Authority, 15 J.L. & POL'Y 249, 252-79 (2007) (describing and criticizing the Eleventh Circuit's approach).
83. For more forgiving approaches, see, for example, United States v. Freeman, 166 F. App'x 96, 97 (4th Cir. 2006) (per curiam);
84. United States v. Ameline, 409 F.3d 1073, 1084 (9th Cir. 2005) (en banc);
85. United States v. Vázquez-Rivera, 407 F.3d 476, 487-88 (1st Cir. 2005);
86. and United States v. Macedo, 406 F.3d 778, 789 (7th Cir. 2005). Even the Eleventh Circuit allows litigants to rely on new audiorities that relate to an existing issue properly raised in the appeal; the bar is on raising a new issue based on the new authority. See Nealy, 232 F.3d at 830-31.
87. See infra text accompanying notes 112-14.
88. State Oil Co. v. Khan, 522 U.S. 3, 20 (1997) (quoting Judge Posner's opinion below);
89. see also Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 484 (1989) ("If a precedent of this 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 direcdy controls, leaving to this Court the prerogative of overruling its own decisions.").
90. Some have argued that the Supreme Court's stand against prediction is misguided. See, e.g., C. Steven Bradford, Following Dead Precedent: The Supreme Court's Ill-Advised Rejection of Anticipatory Overruling, 59 FORDHAM L. REV. 39 (1990);
91. Evan H. Caminker, Precedent and Prediction: The Forward-Looking Aspects of Inferior Court Decisionmaking, 73 TEX. L. REV. 1 (1994);
92. see also Barnette v. W. Va. State Bd. of Educ, 47 F. Supp. 251, 253 (S.D. W. Va. 1942) (refusing to follow a Supreme Court decision because a majority of justices had questioned it), aff'd, 319 U.S. 624 (1943).
93. But see Michael C. Dorf, Prediction and the Rule of Law, 42 UCLA L. REV. 651, 679-89 (1995) (arguing that the prediction approach undermines the rule of law). To be precise, the prevailing law embraces two distinct but related propositions: (1) lower courts cannot rule based upon predictions of changes in law, and (2) when assessing the content of current law, lower courts should follow on-point superior court precedents even when later rulings discredit those precedents' rationales. The second proposition is more of a restriction on recognizing implicit overrulings than it is a ban on prediction.
94. See Margaret N. Kniffin, Overruling Supreme Court Precedents: Anticipatory Action by United States Courts of Appeals, 51 FORDHAM L. REV. 53, 57 (1982) (distinguishing between anticipatory overruling and the recognition that an implicit overruling has already occurred);
95. see also Dorf, supra, at 676 n.87 (similar). A legal system could adopt proposition (1) and yet reject proposition (2). If so, that would somewhat reduce the number of cases in which the timing of a lower court decision mattered, because lower courts would have somewhat more ability to anticipate the Supreme Court's actions. As a practical matter, it is often hard to say whether some particular precedent has actually been overruled or is merely on its last legs. This uncertainty allows room for sub rosa predictive rulings. The rules are somewhat different when it comes to determining the content of state law. Here, it is often said that federal courts are supposed to decide the case as the state's highest court would.
96. See id. at 695 & n.151. Ordinarily, that means applying existing state precedents, but the federal courts enjoy some predictive flexibility that they do not possess when applying Supreme Court law.
97. See id. at 699-700 (noting the potential difference between how lower courts determine the content of federal law versus state law). A federal court might disregard an older, on-point holding of the state high court in favor of more recent dicta or in favor of more recent holdings in analogous circumstances. In rare cases, it might anticipate the overruling of an old precedent.
98. See generally 19 CHARLES ALAN WRIGHT ET AL., FEDERAL PRACTICE & PROCEDURE §4507 (2d ed. 1996) (discussing how federal courts ascertain the content of state law).
99. Lower courts can of course change their own decisional law, though there may be restrictions on how this can be accomplished. In the federal courts of appeals, en banc rehearing is usually required to overrule circuit precedent, though some circuits employ informal substitutes whereby a panel can overrule a prior panel if the overruling decision is circulated to the court membership and no judge objects. See 18 JAMES WM. MOORE ET AL., MOORE'S FEDERAL PRACTICE § 134.02[1][c] (3d ed. 2010).
100. See infra Part III.C.3.
101. See, e.g, Satcher v. Honda Motor Co., Ltd., 993 F.2d 56, 57 (5th Cir. 1993) (vacating the court's prior opinion based on a new case decided during pendency of petition for rehearing);
102. United States v. Craigo, 993 F.2d 1086, 1087 (4th Cir. 1993) (vacating a prior decision where, while the court's mandate was stayed, the Supreme Court reversed circuit precedent that had supported the prior decision and explaining that "the stay of our mandate leaves our judgment within the control of this court").
103. But cf. Bell v. Thompson, 545 U.S. 794, 804 (2005) (holding that court of appeals abused its discretion when, after denial of certiorari and without notice to the parties, it long delayed the issuance of the mandate and dien reversed its prior decision);
104. supra note 30 (noting that some courts, such as the Eleventh Circuit, would not consider a new issue raised for the first time on rehearing, even where there are intervening developments).
105. The deadline for filing a petition for rehearing is ordinarily fourteen days after the judgment (forty-five days in civil cases in which the United States is a party). FED. R. APP. P. 35(C), 40(a).
106. The mandate issues seven days after the time for seeking rehearing expires; if a petition for rehearing is filed, the mandate issues seven days after denial of the petition. FED. R. APP. P. 41(b).
107. See Calderon v. Thompson, 523 U.S. 538, 549 (1998); infra notes 184-85 (citing cases that recall a mandate in light of intervening developments and cases that refuse to do so).
108. See generally 16AA CHARLES ALAN WRIGHT ET AL., FEDERAL PRACTICE AND PROCEDURE § 3986 (4th ed. 2008) (discussing power to recall the mandate);
109. 16 CHARLES ALAN WRIGHT ET AL., FEDERAL PRACTICE AND PROCEDURE § 3938 (2d ed. 1996) (discussing considerations bearing on decision to recall the mandate).
110. See Brewer v. Quarterman, 474 F.3d 207, 210 (5th Cir. 2006)
111. (Dennis, J., dissenting); United States v. Sears, 411 F.3d 1240, 1241-42 (11th Cir. 2005).
112. See, e.g., Richardson v. Reno, 175 F.3d 898, 899 (11th Cir. 1999).
113. See infra text accompanying note 222.
114. The large majority of GVRs arise from situations in which the ruling below might be affected by one of the Court's recently issued decisions. GVRs can also stem from other new developments, such as the enactment of a new statute or the Solicitor General's concession that the lower court erred. See Aaron-Andrew P. Bruhl, The Supreme Court's Controversial GVRs-And an Alternative, 107 MICH. L. REV. 711, 712 (2009).
115. See generally Arthur D. Hellman, "Granted, Vacated, and Remanded"-Shedding Light on a Dark Corner of Supreme Court Practice, 67 JUDICATURE 389 (1984) (discussing the GVR practice).
116. See Brühl, supra note 41, at 712.
117. See Lawrence ex rel. 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") ;
118. 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).
119. Bruhl, supra note 41, at 719-23.
120. Indeed, that was sometimes done in the past See Arthur D. Hellman, Error Correction, Lawmaking and the Supreme Court's Exercise of Discretionary Review, 44 U. PITT. L. REV. 795, 822-23 (1983) (reporting that the Warren Court issued over one hundred summary reversals containing a bare citation to intervening precedent).
121. As the Supreme Court stated concerning the district court's power to stay proceedings, "the power to stay proceedings is incidental to the power inherent in every court to control the disposition of the causes on its docket with economy of time and effort for itself, for counsel, and for litigants. How this can best be done calls for the exercise of judgment, which must weigh competing interests and maintain an even balance." Landis v. N. Am. Co., 299 U.S. 248, 254-55 (1936).
122. There is no uniform terminology. Sometimes courts speak of "abeyance," while other times they enter a "stay" or "defer submission" of the appeal. I generally use the term "abeyance" to refer to a formal decision to delay adjudication.
123. Although our focus here is on lower courts, it is worth noting that the same problem confronts the Supreme Court when it has granted certiorari in one case but has before it other petitions presenting the same question. In theory, it could simply deny the other petitions because the law has not yet changed. But, in practice, the Court typically holds the other petitions until after the plenary decision, thus making them eligible for the application of new law. 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, 30-32 (1983);
124. Richard L. Revesz & Pamela S. Karlan, Nonmajority Rules and the Supreme Court, 136 U. PA. L. REV. 1067,1127-28 (1988);
125. see also infra note 182 and accompanying text (discussing the Supreme Court's power to control the date of finality).
126. See infra text accompanying note 136 (discussing berween-court and within-court differences).
127. See, e.g, United States v. Warr, 530 F.3d 1152, 1152 n.1 (9th Cir. 2008);
128. Al-Amin v. Shear, 218 F. App'x 270, 273-74 (4th Cir. 2007);
129. Fisher v. Primstaller, 215 F. App'x 430, 431 (6th Cir. 2007).
130. See, e.g., Dunlap v. Litscher, 301 F.3d 873, 876 (7th Cir. 2002) ("The Supreme Court has granted certiorari to decide [die question involved in the appeal]. For now, we shall adhere to our rule and so proceed to the three cases before us.");
131. United States v. Cole, 31 F. App'x 235, 236 (4th Cir. 2002) (denying motion for abeyance without explanation);
132. cf. Ferrell v. Express Check Advance of SC LLC, 591 F.3d 698, 706 n.* (4th Cir. 2010) (noting that a similar issue was involved in a pending Supreme Court case but not mentioning the possibility of abeyance). Sometimes courts simply state that they must decide cases according to current circuit law notwitiistanding a grant of certiorari, which is true enough but completely ignores the temporal dimension and the possibility of waiting.
133. See, e.g., Laborers' Int'l Union of N. Am., Local 578 v. NLRB, 594 F.3d 732, 736 n.2 (10th Cir. 2010);
134. United States v. Lopez-Velasquez, 526 F.Sd 804, 808 n.1 (5th Cir. 2008);
135. United States v. Aguilar, 313 F. App'x 186, 189 n.1 (11th Cir. 2008).
136. For a notable example of extended debate over whether to hold proceedings in abeyance, see the fraught opinions in a Fifth Circuit school desegregation case. Compare United States v. Tex. Educ. Agency, 467 F.2d 848, 889-90 (5th Cir. 1972) (Godbold, J.) ("The highest standards of judicial administration demand that pending further action by the Supreme Court of the United States this appeal be held in abeyance . . . . It is not flight from duty but rather performance of it to recognize that we need guidance and to say that we will withhold action to see if more certain legal standards become available to us."),
137. with id. at 891 (Brown, C.J.) ("[W]aiting is not the privilege of a Federal Judge. He must act in the face of the day's challenge to constitutional denial.. .. [T]o delay means that identifiable children . . . will leave the last year of their public education without ever experiencing a single year of education free of racial/ethnic discrimination.").
138. More recent cases in which judges disagreed over whether to hold a case in abeyance include United States v. Santana-Illan, 357 F. App'x 992, 998 (10th Cir. 2009) (O'Brien, J., dissenting);
139. Turner v. Quarterman, 284 F. App'x 182, 183 (5th Cir. 2008) (Prado, J., concurring in part and dissenting in part);
140. In re Williams, 359 F.3d 811, 814-16 (6th Cir. 2004) (Moore, J., dissenting);
141. Gherebi v. Bush, 352 F.3d 1278, 1305 (9th Cir. 2003) (Graber,J., dissenting), vacated, 542 U.S. 952 (2004).
142. See, e.g, United States v. Craigo, 993 F.2d 1086, 1087 (4th Cir. 1993);
143. see also infra Part IIA (describing how several courts held the mandates in scores of cases in anticipation of changes in sentencing law).
144. To be sure, prospectivity would still involve some costs-e.g., costs of learning the new law or of printing new legal texts. See Michael P. Van Alstine, The Costs of Legal Change, 49 UCLA L. REV. 789, 816-52 (2002).
145. Harper v. Va. Dep't of Taxation, 509 U.S. 86, 105 (1993) (Scalia.J., concurring);
146. see also Paul Mishkin, Foreword: The High Court, the Great Writ, and the Due Process of Time and Law, 79 HARV. L. REV. 56, 70-72 (1965) (making a similar point).
147. See, e.g, Jenkins v. Delaware, 395 U.S. 213, 218 (1969) (Warren, C.J.) (referring to "the impetus [that prospectivity] provides for the implementation of long overdue reforms, which otherwise could not be practicably effected");
148. see also Daryl J. Levinson, Rights Essentialism and Remedial Equilibration, 99 COLUM. L. REV. 857, 889-90 (1999) (discussing how the cost of remedies affects the scope of rights that courts are willing to recognize).
149. This same point has also been made about the doctrine of qualified immunity. See John C. Jeffries, Jr., The Right-Remedy Gap in Constitutional Law, 109 YALE L.J. 87, 90, 98-110 (1999).
150. 542 U.S. 296 (2004).
151. 543 U.S. 220 (2005).
152. 130 S. Ct. 2635, 2638-39, 2644 (2010).
153. See, e.g., Sheehy Enters., Inc. v. NLRB, 602 F.3d 839, 842 n.1 (7th Cir. 2010), reh'g granted, Nos. 09-1383 & 09-1656, 2010 U.S. App. LEXIS 18125 (7th Cir. July 21, 2010);
154. Teamsters Local Union No. 523 v. NLRB, 590 F.3d 849, 852 n.2 (10th Cir. 2009), vacated, No. 09-1404, 2010 WL 1990005 (U.S. Oct. 4, 2010). In another case, the Fourth Circuit issued a decision that did not mention the grant of certiorari, though the parties had advised the court of that development.
155. See Narricot Indus., L.P. v. NLRB, 587 F.3d 654 (4th Cir. Nov. 20, 2009); Letter Filed Pursuant to FRAP 28 (j), Narricot Indus., 587 F.3d 654 (Nos. 09-1164 & 09-1280) (Nov. 4 filing informing the court of a Nov. 2 grant of certiorari).
156. See, e.g., Cnty. Waste of Ulster, LLC v. NLRB, Nos. 09-1038 & 09-1646, 2010 WL 2679831, at *1 (2d Cir. July 1, 2010);
157. NLRB v. Whitesell Corp., No. 08-3291, 2010 WL 2542904, at *1 (8th Cir.June 25, 2010) (per curiam);
158. Bentonite Performance Mineral LLC v. NLRB, No. 09-60034, 2010 WL 2545988, at *1 (5th Cir. June 22, 2010) (per curiam). I say appeared because this statement is an inference based on filings advising the court of the Supreme Court's grant of certiorari, the length of time the case was under submission, the speed with which the court acted after New Process Steel was released, comments at oral argument (where recordings are available), and the like. In another case, the Third Circuit expressly noted that it had delayed decision.
159. See St. George Warehouse, Inc. v. NLRB, Nos. 08-4875 & 09-1269, 2010 U.S. App. LEXIS 13886, at *2 (3d Cir. July 7, 2010).
160. 530 U.S. 466 (2000). Apprenth itself identified its roots in older Due Process Clause cases like In reWinship, 397 U.S. 358 (1970). See Apprendi, 530 U.S. at 477. In addition, the constitutional rule in Apprenth was foreshadowed by a statutory interpretation decision in Jones v. United States, 526 U.S. 227 (1999).
161. See Apprendi, 530 U.S. at 476, 490.
162. See id. at 469-72.
163. See id. at 471-72, 474.
164. Id. at 490.
165. The court's holding made an exception for the fact of a prior conviction, which was considered a judicial sentencing factor under Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998).
166. See Apprendi, 530 U.S. at 488-90.
167. See id. at 468-71.
168. See id. at 551 (O'Connor, J., dissenting).
169. See id. at 556-57 (Breyer, J., dissenting).
170. See United States v. Watts, 519 U.S. 148, 149 (1997) (per curiam).
171. See, e.g., United States v. Kinter, 235 F.3d 192, 201 (4th Cir. 2000);
172. Talbott v. Indiana, 226 F.3d 866, 869-70 (7th Cir. 2000);
173. see also United States v. Garcia, 240 F.3d 180, 184 (2d Cir. 2001) (citing cases from nine circuits that ruled that a Guidelines factor need not be submitted to the jury where it relates to a sentence not exceeding the statutory maximum).
174. See 542 U.S. 296, 296 (2004).
175. Id. at 303-04 (citations omitted).
176. Id. at 305 n.9.
177. See id. at 324-26 (O'Connor, J., dissenting).
178. E.g., Frank O. Bowman, III, Train Wreck? Or Can the Federal Sentencing System Be Saved? A Plea for Rapid Reversal of Blakely v. Washington, 41 AM. CRIM. L. REV. 217, 223 (2004) (stating that the differences between the Washington system and the federal system "would seem to be either immaterial or to render the federal guidelines more, not less, objectionable under the Blakely analysis");
179. cf. R. Craig Green, Apprendi's Limits, 39 U. RICH. L. REV. 1155, 1155-56 (2005) (acknowledging, but challenging, the "consensus" view that the federal Guidelines were unconstitutional in light of Blakely).
180. See Blakely, 542 U.S. at 347 (Breyer, J., dissenting).
181. E.g., United States v. Croxford, 324 F. Supp. 2d 1230, 1242-48 (D. Utah 2004);
182. United States v. Shamblin, 323 F. Supp. 2d 757, 766 (S.D. W. Va. 2004), vacated, 153 F. App'x 247 (4th Cir. 2005).
183. See United States v. Booker, 375 F.3d 508, 508, 510 (7th Cir. 2004), aff'd, 543 U.S. 220 (2005).
184. Id. at 510-11 (citations omitted).
185. See id. at 516-17 (Easterbrook, J., dissenting).
186. Id. at 516
187. ("Just as opera stars often go on singing after being shot, stabbed, or poisoned, so judicial opinions often survive what could be fatal blows. Think of Lemon v. Kurtzman, 411 U.S. 192 (1973), which is incompatible with later decisions, has been disparaged by most sitting Justices, yet has not been overruled.") (internal citations altered).
188. See id. at 517-21.
189. See United States v. Pineiro, 377 F.3d 464, 464, 473 (5th Cir. 2004), vacated, 543 U.S. 1101 (2005).
190. 85 Id. at 465, 470, 473.
191. United States v. Booker, 542 U.S. 956 (2004);
192. United States v. Fanfan, 542 U.S. 956 (2004).
193. See United States v. Booker, 543 U.S. 220, 220, 226-27 (2005) (Stevens, J., for the Court).
194. See id. at 245 (Breyer, J., for the Court).
195. Professor Douglas A. Berman's blog chronicled all of the developments during the hectic post-Blakely period with speed, expertise, and some flair; its archives can still be consulted to refresh one's memory of this period. See SENTENCING LAW AND POLICY, http://sentencing.typepad.com (last visited Nov. 13, 2010);
196. see also Bowman, supra note 76, at 226-49 (describing various approaches of post-Blakely courts);
197. Kathleen A. Hirce, A Swift and Temporary Instruction: The Effectiveness of the Circuit Courts Between Blakely and Booker, 2 SETON HALL CIRCUIT REV. 271, 283-96 (2005) (same).
198. See United States v. Koch, 383 F.3d 436, 436 (6th Cir. 2004) (en banc), vacated, 544 U.S. 995 (2005).
199. Id. at 443 (Martin, J., dissenting) (citations omitted).
200. See, e.g, United States v. Gonzalez, 156 F. App'x 471, 472 (3d Cir. 2005);
201. United States v. Gonzalez, 134 F. App'x 595, 596 (3d Cir. 2005);
202. United States v. Yocum, 127 F. App'x 590, 590 (3d Cir. 2005). The Third Circuit continued to decide cases that (it thought) were unaffected by the Booker problem.
203. See, e.g., United States v. Thomas, 389 F.3d 424, 426-28 (3d Cir. 2004), vacated, 545 U.S. 1125 (2005);
204. United States v. Coplin, 106 F. App'x 143, 147-49 (3d Cir. 2004).
205. See United States v. Pirani, 406 F.3d 543, 548 (8th Cir. 2005) (en banc);
206. United States v. Mooney, 401 F.3d 940, 942 n.2 (8th Cir. 2005);
207. Administrative Order Regarding Blakely Cases (8th Cir. Sept. 27, 2004), available at http://www.ca8.uscourts.gov/files/blakelyfinal.pdf [hereinafter Eighth Circuit Order].
208. See, e.g. United States v. Meza-Gonzalez, 394 F.3d 587, 594 n.2 (8th Cir. 2005);
209. United States v. Borer, 394 F.3d 569, 577-78 (8th Cir. 2005), vacated on reh'g and substitute opinion at 412 F.3d 987 (2005); Eighth Circuit Order, supra note 93.
210. See, e.g., United States v. Savarese, 385 F.3d 15, 20-23 (1st Cir. 2004);
211. United States v. Badilla, 383 F.3d 1137, 1142 n.2 (10th Cir. 2004), vacated, 543 U.S. 1098 (2005). Under the plain error test of FED. R. CRIM. P. 52(b), an appellate court can correct an error not raised at trial only if the error was "plain," affected the defendant's substantial rights, and seriously affected the fairness, integrity, or public reputation of the proceedings.
212. United States v. Olano, 507 U.S. 725, 731-32 (1993).
213. See Douglas A. Berman, Circuit Contrasts: Variations in Appellate Justice, SENTENCING LAW & POLICY (Sept. 15, 2004,11:56 AM), http://sentencing.typepad.com/sentencing-law-and-policy/2004/09/circuit-contras. html.
214. See, e.g, United States v. Koch, 383 F.3d 436, 438 (6th Cir. 2004) (en banc), vacated, 544 U.S. 995 (2005);
215. United States v. Mincey, 380 F.3d 102, 103 (2d Cir. 2004), vacated sub nom.
216. The Ninth Circuit was the only court to join the Seventh Circuit in holding the Guidelines.
217. United States v. Booker, 375 F.3d 508, 510 (7th Cir. 2004), aff'd, 543 U.S. 220 (2005).
218. See Berman, supra note 96 (describing decisions reached in each circuit). The Ninth Circuit was the only court to join the Seventh Circuit in holding the Guidelinesunconstitutional.
219. See United States v. Ameline, 376 F.3d 967, 970 (9th Cir. 2004), withdrawn on reh'g, No. 02-30326, 2005 U.S. App. LEXIS 2033 (9th Cir. Feb. 9, 2005).
220. See, e.g., United States v. Hammond, 381 F.3d 316, 353-54 (4th Cir. 2004) (en banc), vacated, 543 U.S. 1097 (2005). The court offered a cost-benefit analysis: We believe that announcing-not imposing-a non-guidelines sentence at the time of sentencing will serve judicial economy in the event that the Supreme Court concludes that Blakely significantly impacts guidelines sentencing. The announcement of a non-guidelines sentence may require the district court to consider issues not generally pertinent in guidelines sentencing, thereby requiring the investment of additional time at the sentencing hearing. If the Supreme Court does not apply Blakely to the guidelines, this will be wasted effort. If the Court does apply Blakely to the guidelines, however, the district court and the parties will have made at least substantial progress toward the determination of a non-guidelines sentence, at a time when the facts and circumstances were clearly in mind. While a new hearing may have to be convened in order to impose the previously determined and announced non-guidelines sentence, we anticipate that the district court and the parties will need to spend far less time preparing because the issues will already have been resolved.
221. Id. (footnote omitted).
222. Naturally, one wonders why courts behaved as they did. Ideology is a usual suspect, of course, but one should also consider the role of court culture, caseloads, and other factors. Various considerations that might impact appellate case management are explored in Part III infra.
223. See United States v. Penaranda, 375 F.3d 238, 239-40 (2d Cir. 2004) (en banc);
224. see also 28 U.S.C. § 1254(2) (2006) (providing for "certification at any time by a court of appeals of any question of law in any civil or criminal case as to which instnictions are desired").
225. See United States v. Mincey, 380 F.3d 102, 106 (2d Cir. 2004) (per curiam).
226. See Procedural and Administrative Order (2d Cir. Aug. 6, 2004). Issuance of the mandate, which typically comes about three weeks after the court's decision, divests the court of appeals of jurisdiction and officially puts its judgment into effect.
227. See FED. R. APP. P. 41; supra Part I.B.
228. Procedural and Administrative Order (2d Cir. Aug. 6, 2004). Realizing that receiving supplemental filings on the effect of Booker in every case would be unnecessary and burdensome, the court later dispensed with that requirement until it could issue its first decision interpreting and implementing Booker.
229. See In re: Special Order of Stay (2d Cir. Jan. 19, 2005);
230. see, e.g., United States v. Washington, 171 F. App'x 908, 909 (2d Cir. 2006).
231. See In re: Special Order of Stay (2d Cir. Jan. 19, 2005).
232. One can see many of these cases by running a KeyCite or Shepard's report on the first Fifth Circuit case upholding the Guidelines, United States v. Pineiro, 377 F.3d 464 (5th Cir. 2004), and restricting the results to Fifth Circuit cases decided between Blakely and Booker. This search does not capture all such cases because unpublished decisions sometimes tersely state that circuit precedent forecloses the defendant's arguments without actually citing the controlling precedent, particularly when the defendant recognizes that the argument is foreclosed but raises it solely to preserve the point for potential review.
233. I am not aware of any single document in which these courts set forth such a policy. I have consulted many reported cases, docket sheets, and other sources and make generalizations on that basis.
234. Supra text accompanying note 93.
235. See, e.g., United States v. Rosales, 111 F. App'x 857, 858-59 (8th Cir. 2004) (per curiam);
236. Eighth Circuit Order, supra note 93. The court continued to finally dispose of cases that it did not consider impacted by Blakely.
237. E.g., United States v. Martinez-Salinas, 110 F. App'x 733, 734 (8th Cir. 2004) (upholding sentence enhancement based on facts admitted in guilty plea).
238. See, e.g.. United States v. McKee, 389 F.3d 697, 701 (7th Cir. 2004);
239. United States v. Henningsen, 387 F.3d 585, 591 (7th Cir. 2004);
240. United States v. Pree, 384 F.3d 378, 396-97 (7th Cir. 2004);
241. see also United States v. Swanson, 394 F.3d 520, 530 n.5 (7th Cir. 2005) (noting that the mandate would have been held except that remand for resentencing was required even apart from Booker issues).
242. See, e.g, United States v. Fox, 119 F. App'x 142, 146 (9th Cir. 2005);
243. United States v. Mitchell, 120 F. App'x 24, 28-29 (9th Cir. 2004);
244. United States v. Fernandez, 388 F.3d 1199, 1257 (9th Cir. 2004). The Ninth Circuit did not hold the mandate but instead remanded when it appeared to the court that the defendant might be entitled to be released but for a Blakely violation.
245. See, e.g., United States v. Castro, 382 F.3d 927, 928-29 (9th Cir. 2004) (per curiam). In still other cases, the court deferred submission of the appeal until after Booker.
246. E.g., United States v. Canedo, 148 F. App'x 582, 583 (9th Cir. 2005).
247. See, e.g., United States v. Nahia, 437 F.3d 715, 716 (8th Cir. 2006);
248. United States v. Young, 160 F. App'x 518, 519-20 (7th Cir. 2005).
249. See, e.g., United States v. Ogle, 415 F.3d 382, 383-84 (5th Cir. 2005);
250. United States v. Dockery, 401 F.3d 1261, 1262-63 (11th Cir. 2005).
251. See United States v. Ameline, 409 F.3d 1073, 1078-81 (9th Cir. 2005) (en banc) (describing conflicting approaches to plain error);
252. Deborah S. Nail, Comment, United States v. Booker.- The Presumption of Prejudice in Plain Error Review, 81 CHI.-KENT L. REV. 621, 634-47 (2006) (same);
253. see also United States v. Paladino, 401 F.3d 471, 484-85 (7th Cir. 2005) (criticizing another circuit for "condemn[ing] some unknown fraction of criminal defendants to serve an illegal sentence" by "placing on the defendant the impossible burden of proving that the sentencing judge would have imposed a different sentence had the judge not thought the guidelines mandatory").
254. See supra Part I.A.1 (describing current retroactivity doctrines, which distinguish between direct and collateral review). As expected, courts held that Booker did not apply retroactively on collateral review, just as they had held regarding Apprendi.
255. See United States v. Bellamy, 411 F.3d 1182, 1187 n.1 (10th Cir. 2005) (citing circuit court cases);
256. cf. Schriro v. Summerlin, 542 U.S. 348, 358 (2004) (holding that Ring v. Arizona, 536 U.S. 584 (2002), which was based on Apprendi, "does not apply retroactively to cases already final on direct review").
257. Cf. Brent E. Newton, Almendarez-Torres and the Anders Ethical Dilemma, 45 Hous. L. REV. 747, 794 (2008) (making similar observations regarding the importance of filing certiorari petitions to keep cases alive on direct review in order to benefit from potential future overruling of Almendarez-Torres v. United States, 523 U.S. 224 (1998)). To be clear, keeping the case on direct review would hardly mean the defendant would be sure to win. Among other hurdles, forfeiture doctrines meant that those who had not made an Apprendi-related objection at trial would be subjected to the daunting prospect of plain error review.
258. See United States v. Booker, 543 U.S. 220, 268 (2005) (directing reviewing courts to implement its ruling using "ordinary prudential doctrines" such as plain error); supra Part I.A.2 (discussing forfeiture of new law).
259. See SUP. CT. R. 13.1; Clay v. United States, 537 U.S. 522, 527 (2003).
260. SUP. CT. R. 13.3. 119 See supra notes 105-06 and accompanying text
261. A striking example of this point comes from multiple-defendant cases like United States v. Rennert, 182 F. App'x 65 (3d Cir. 2006). In Rennert, two defendants' convictions were affirmed in June 2004. After Blakely, both filed petitions for rehearing, which were denied. Defendant Miller then filed a petition for certiorari. After Booker, the Supreme Court GVR'd, and then the Third Circuit remanded Miller's case to the district court for resentencing. Defendant Rennert did not file a petition for certiorari, and his case became final in November 2004. He then filed a motion for resentencing under 28 U.S.C. §2255. In the resulting appeal, the Third Circuit held Rennert was not entided to relief under Blakely because that case did not concern the federal Guidelines; nor could he benefit from Booker because his conviction became final before Booker was decided. Rennert, 182 F. App'x at 66-68;
262. see also Nichols v. United States, 563 F.3d 240, 243-46 (6th Cir. 2009) (en banc) (describing similar circumstances). Defendants whose attorneys failed to file a petition for certiorari in these circumstances probably would not be entided to relief on grounds of ineffective assistance of counsel, as there is no constitutional right to counsel at the certiorari stage.
263. See Nichols, 563 F.3d at 242, 249-50.
264. But cf. Nnebe v. United States, 534 F.3d 87, 90-92 (2d Cir. 2008) (recalling a mandate where counsel violated his duty under the Criminal Justice Act to file petition for certiorari);
265. United States v. Smith, 321 F. App'x 229, 233 (4th Cir. 2008) (similar),
266. vacated, 129 S. Ct. 2763 (2009) (issuing a GVR in light of Booker).
267. See Bruhl, supra note 41, at 719-21.
268. See supra text accompanying notes 41-44 (describing the GVR procedure).
269. See Bruhl, supra note 41, at 719-21.
270. The statements in this and the following paragraph concerning the number of GVRs in various circuits are substantiated in a document that is available from the author.
271. See supra note 102 and accompanying text.
272. In both circuits, there were also several cases in which the case was decided before Blakely but a petition for rehearing was denied after.
273. See, e.g., de la Cruz-Gonzalez v. United Sutes, 544 U.S. 1014 (2005);
274. Martinez-Alfaro v. United States, 543 U.S. 1183 (2005);
275. Gonzalez-Orozco v. United States, 543 U.S. 1137 (2005);
276. see also SUP. CT. R. 12.4 (allowing use of a single petition to cover multiple judgments from the same court involving closely related legal issues).
277. Different measures and time periods give somewhat different results, though all are in the same ballpark of three to five times.
278. See JAMES C DUFF, ADMIN. OFFICE OF THE U.S. COURTS, JUDICIAL BUSINESS OF THE U.S. COURTS 2004 tbl.B-1, available at http://www.us-courts.gov/uscourts/ Statistics/JudicialBusiness/2004/appendices/bl.pdf (providing data for appeals commenced, terminated, and pending, by circuit);
279. U.S. SENTENCING COMMISSION, 2004 SOURCEBOOK OF FEDERAL SENTENCING STATISTICS tbl.55, available at http://www.ussc.gov/annrpt/2004/Table55.pdf (providing data for types of appeal in each circuit and district).
280. Compare United States v. Mincey, 380 F.3d 102, 106 (2d Cir. 2004) (per curiam) (upholding the Guidelines),
281. vacated sub nom. Ferrell v. United States, 543 U.S. 1113 (2005),
282. with United States v. Booker, 375 F.3d 508, 510, 515 (7th Cir. 2004) (invalidating the Guidelines), aff'd, 543 U.S. 220 (2005). The Eighth Circuit, which followed a case-handling strategy similar to the Second Circuit's, had somewhat more GVRs than the Second Circuit. One possibility, based on my examination of Eighth Circuit decisions and docket sheets, is that the Eighth Circuit was stingier about construing the scope of pending appeals and permitting expansion of the appeal to encompass Blakely issues.
283. See supra note 128.
284. One might wonder why the Seventh Circuit had any GVRs at all. There are a few reasons. As mentioned in the main text, some Booker GVRs stemmed from cases decided before Blakely. In addition, a few GVRs occurred in cases that the Seventh Circuit believed were not at all impacted by Blakely.
285. See, e.g., United States v. Tellez-Boizo, 114 F. App'x 754, 756 (7th Cir. 2004), vacated, 544 U.S. 902 (2005). And a few GVRs were issued in cases in which sentencing was apparendy not even at issue in the Seventh Circuit proceedings.
286. See, e.g., United States v. Saladino, 119 F. App'x 10,12-15 (7th Cir. 2004), vacated, 544 U.S. 970 (2005).
287. See, e.g., SUP. CT. R. 12.1, 33.1(a), (f) (requiring parties to file forty copies in booklet format);
288. SUP. CT. R. 33.1(b) (requiring a petition appendix to be typeset rather than photocopied). Litigants proceeding informa pauperis are largely relieved of these unusual printing requirements.
289. See SUP. CT. R. 12.2, 33.2, 39. Many criminal defendants can proceed as paupers. Many defendants in the federal system are also represented by the federal public defender, which means that the requirement that all defendants needed to file petitions for certiorari imposed a concentrated cost on those offices.
290. See SUP. CT. R. 9.1 (generally requiring those filing documents with the Court to be members of the Court's bar).
291. See supra text accompanying notes 41-43.
292. See Bruhl, supra note 41, at 720, 723. 136 In conversations with current and former staff attorneys and others, it appears that some courts' staff attorneys feel that a grant of certiorari presumptively merits abeyance. In other courts, the assumption is just the opposite, i.e. a grant of certiorari does not provide sufficient reason for delay. See infra notes 187-89 and accompanying text (discussing the role of court culture) ;
293. see also Stefanie A. Lindquist, Bureaucratization and Balkanization: The Origins and Effects of Decision-Making Norms in the Federal Appellate Courts, 41 U. RICH. L. REV. 659, 678-79 (2007) (empirically demonstrating that courts differ in how they balance speedy disposition against other deliberative values like granting oral argument and publishing opinions).
294. For example, in United Slates v. Santana-Illan, the Tenth Circuit declined to hold case in abeyance in light of a pending Supreme Court case. 357 F. App'x 992, 994 n.4 (10th Cir. 2009). The Supreme Court's eventual decision agreed with the position that the Tenth Circuit adopted.
295. See Carachuri-Rosendo v. Holder, 130 S. Ct. 2577, 2589-90 (2010) (holding that simple possession was not an aggravated felony when offender was not charged as a recidivist);
296. Santana-Illan, 357 F. App'x at 994-98 (same);
297. see also United States v. Volungus, 595 F.3d 1, 4 (1st Cir. 2010) (presenting a similar scenario regarding
298. United States v. Comstock, 130 S. Ct. 1949 (2010), which later agreed with the First Circuit's analysis);
299. United States v. Cole, 31 F. App'x 235, 236 (4th Cir. 2002) (presenting a similar scenario regarding
300. Harris v. United States, 536 U.S. 545, 551-52, 568-69 (2002), which later affirmed Fourth Circuit precedent).
301. For example, the Sixth Circuit held some cases in abeyance pending the Supreme Court's decision in Jones v. Bock, 549 U.S. 199, 202-03 (2007). The delay turned out to be wise because the Supreme Court reversed the prior Sixth Circuit law.
302. See, e.g., Fisher v. Primstaller, 215 F. App'x 430, 431 (6th Cir. 2007);
303. Floyd v. Caruso, 216 F. App'x 478, 478 (6th Cir. 2007). Other circuits have taken similar actions in different contexts.
304. See, e.g., United States v. Ellyson, 326 F.3d 522, 527, 530 (4th Cir. 2003) (noting that the circuit court held the case in abeyance in light of a pending Supreme Court case, which rejected prior Fourth Circuit law);
305. Mandel v. Max-France, Inc., 704 F.2d 1205, 1206 (11th Cir. 1983) (similar).
306. See, e.g., Fail v. Hubbard, 315 F.3d 1059, 1060 (9th Cir. 2002);
307. United States v. Provost, 237 F.3d 934, 937 (8th Cir. 2001);
308. Watson v. United States, 439 F.2d 442, 449 (D.C. Cir. 1970) (en banc);
309. McCullough Tool Co. v. Well Surveys, Inc., 343 F.2d 381, 409 (10th Cir. 1965).
310. See, e.g., Rutherford v. Crosby, 438 F.3d 1087, 1089, 1095 (11th Cir. 2006) (refusing, over dissent, to grant stay of execution and hold the case in abeyance in light of a grant of certiorari in Hill v. McDonough, 547 U.S. 573 (2006)), vacated sub nom. Rutherford v. McDonough, 547 U.S. 1204 (2006) (GVR'ing in light of Hill);
311. Sargent v. Columbia Forest Prods., Inc., 75 F.3d 86, 89-90 (2d Cir. 1996) (noting that the court had decided the case rather than waiting for a pending state supreme court decision, which reached a contrary conclusion). The Blakely-to-Booker transition generated hundreds of similar examples.
312. See supra Part II.
313. See, e.g, Gherebi v. Bush, 352 F.3d 1278, 1304 (9th Cir. 2003) (rejecting abeyance because issuing an opinion might aid the Supreme Court), vacated, 542 U.S. 952 (2004).
314. But see id. at 1313 (Graber, J., dissenting) (advocating abeyance because "the views that we express here will become obsolete as soon as the Supreme Court renders its decision").
315. See, e.g., Arizona v. Evans, 514 U.S. 1, 23 n.1 (1995) (Ginsburg, J., dissenting) (noting that the Supreme Court's decisions can benefit from the existence of numerous and diverse opinions from lower courts).
316. But cf. Paul M. Bator, What Is Wrong with the Supreme Court?, 51 U. PITT. L. REV. 673, 691 (1990) (questioning the value of "percolation" in the lower courts);
317. Caminker, supra note 33, at 56-60 (same);
318. William H. Rehnquist, The Changing Role of the Supreme Court, 14 FLA. ST. U. L. REV. 1, 11 (1986) (same)
319. . !44 See infra note 152 (speculating that judges might derive some personal satisfaction from expressing their view, even if they expect the Supreme Court to disagree).
320. United States v. Pineiro, 377 F.3d 464, 467, 473 (5th Cir. 2004), vacated, 543 U.S. 1101 (2005).
321. SeeBruhl, supra note 41, at 719-21 (reporting that the Supreme Court issued about eight hundred GVRs in light of Booker).
322. There are some parallels here to the arguments about how retroactivity and qualified immunity might encourage or discourage changes in doctrine by affecting the disruptiveness of legal change.
323. See supra notes 56-57 and accompanying text;
324. see also 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 decisions expanding the reach of federal law).
325. See supra note 10 (citing cases).
326. Cf. Robert G. Bone, Who Decides? A Critical Look at Procedural Discretion, 28 CARDOZO L. REV. 1961, 1963-64 (2007) (arguing that trial judges often exercise discretion poorly because of bounded rationality, lack of information, and strategic complexities).
327. See generally Chris Guthrie et al., Inside the Judicial Mind, 86 CORNELL L. REV. 777 (2001) (describing empirical evidence showing that judges suffer from a number of common cognitive biases including egocentric bias, i.e. that they overestimate their own abilities).
328. See generally Richard A. Posner, What Do Judges and Justices Maximize? (The Same Thing Everybody Else Does), 3 SUP. CT. ECON. REV. 1, 13-15 (1993) (discussing how judges might seek leisure, prestige, or other personal benefits). This insight should hardly be considered radical;
329. others before me have relied on it in procedure-related contexts. See, e.g., Christopher R. Drahozai, Judicial Incentives and the Appeals Process, 51 SMU L. REV. 469, 478-85 (1998) (discussing differing adjudicative incentives of trial judges and appellate judges) ;
330. Jonathan R. Macey, Judicial Preferences, Public Choice, and the Rules of Procedure, 23 J. LEGAL STUD. 627, 627-33 (1994) (explaining that courts might craft procedural rules that advance their own bureaucratic interests rather than the efficiency of the legal system).
331. Looking back at the Blakely-to-Booker period, poor predictive accuracy does not seem to be the only reason, or probably even the primary reason, that some courts issued so many improvident decisions (and thus triggered so many GVRs). True, it may be that a fewjudges and courts believed that the Guidelines would be unaffected. But that does not seem to be true of other courts, which seemed to think the Guidelines were doomed. Consider the markedly unenthusiastic comments in the Fifth Circuit's opinion upholding the Guidelines
332. . See supra text accompanying note 85. Indeed, it might be that the expectation that the Supreme Court will disagree actually prompts some lower court judges to issue an opinion as a sort of preemptive cri de coeur lamenting the Supreme Court's error.
333. A complete accounting would need to consider more remote consequences of the courts' choices, such as whether one approach would affect the caseload in the future. Such an effect seems conceivable, but it is hard to know what the effect would be; in any case, it seems highly unlikely that the effect would be large enough-relative to the firstorder consequences-to worry about even if it were knowable. Thus, it is safe to assume that such potential remote effects are excluded from the courts' thinking. If my assumption is wrong, that still would not affect the larger point that private costs and social costs do not align.
334. Supra Section IA. 1; supra notes 117-18 and accompanying texL
335. In civil cases, although FED. R. CIV. P. 60(b) is generally not available merely because of a change in law, see supra note 22, the result probably differs when the change occurred before finality attached.
336. See, e.g., Schmitt v. Am. Family Mut. Ins. Co., 187 F.R.D. 568, 571-76 (S.D. Ind. 1999) (granting a motion under Rule 60(b) because of a change in controlling state law that occurred before the judgment became final on appeal). In criminal cases, a federal criminal defendant could file a § 2255 motion based on new law announced during the period for filing for certiorari.
337. See United States v. Becker, 502 F.3d 122, 127-29 (2d Cir. 2007) (affirming district court's grant of § 2255 relief under Crawford v. Washington, 541 U.S. 36 (2004), which the Supreme Court decided before the period for seeking certiorari had expired, even though no petition for certiorari actually was filed) ;
338. Derman v. United States, 298 F.3d 34, 39-42 (1st Cir. 2002) (reaching a similar conclusion concerning §2255 review of Apprenth error). The availability of such collateral relief does not depend on whether the Supreme Court has made the case "retroactive" on collateral review; in the circumstances described here, the application of the rule would not be "retroactive" because the direct appeal was not yet final. Some courts appear to misunderstand this point.
339. See, e.g., United States v. Murray, 2 F. App'x 398, 400 (6th Cir. 2001). Note that, after the enactment of the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214, a state prisoner might not have the option of using habeas corpus as an alternative to a petition for certiorari to gain the benefit of prefinality new law. In place of the Teague understanding, which fixes the time for determining applicable law at the date of finality, the statute would appear to make the relevant time the date of the state court decision.
340. See 28 U.S.C. § 2254(d);
341. Smith v. Spisak, 130 S. Ct. 676, 681 (2010);
342. RANDY HERTZ &JAMES S. LIEBMAN, FEDERAL HABEAS CORPUS PRACTICE AND PROCEDURE §32.3 & n.8 (5th ed. 2005).
343. See, e.g., CHARLES DICKENS, BLEAK HOUSE (1853);
344. WILLIAM SHAKESPEARE, HAMLET act 3, sc. 1.
345. See, e.g., supra Part II.A (providing examples from the Blakely-to-Booker period);
346. supra notes 51, 61, 137, 140 (providing additional examples from other contexts).
347. For example, in the run-up to Booker, the Fifth Circuit relied on its "conference calendar" procedure to switly dispose of nearly one hundred cases on the authority of its precedent in United States v. Pineiro, 377 F.3d 464, 467-73 (5th Cir. 2004), which upheld the Guidelines after Blakely. Indeed, dozens of these decisions were issued on a single day, December 17, 2004. (One can find these cases by searching the Lexis or Westlaw databases for cases containing "conference calendar" and "Pineiro.")
348. See generally Jerry E. Smith, Fifth Circuit Survey: Foreword, 25 TEX. TECH L. REV. 255 (1994) (describing the conference calendar procedure). 159 For more on these costs,
349. see infra notes 187-89 and accompanying text.
350. Cf. Guthrie et al., supra note 150, at 811-16 (finding in an empirical study that judges suffer from egocentric bias).
351. Obviously the moral hazard problem would be even worse if the case, assuming it returned, returned to different judges to fix (i.e. a different panel of judges selected through random assignment). If that were true, then the issuing panel would face a situation where it could decide improvidently with little risk at all, for another panel would be responsible for fixing any mistakes. The implicit assumption that the case would come back to the same panel is consistent with actual practice.
352. See, e.g., Internal Operating Procedure of the United States Court of Appeals for the Third Circuit 10.87 (2002) (providing that cases on remand from the Supreme Court return to the original panel), available at http://www.ca3.uscourts.gov/Rules/IOP-Final.pdf;
353. Rules and Internal Operating Procedures of the United States Court of Appeals for the Fifth Circuit 27.5 (2009) (same), available at http://www.ca5.uscourts.gov/clerk/docs/5thCir-IOP.pdf;
354. Sixth Circuit Internal Operating Procedures 104 (2009) (same), available at http://www.ca6.uscourts.gov/internet/rules-and-procedures/pdf/rules2004.pdf.
355. Because the costs of the lower court's second decision would occur in the future, there may be an argument for discounting them, but I ignore that possibility here.
356. See supra text accompanying notes 141-44.
357. See Lynn A Stout, Judges As Altruistic Hierarchs, 43 WM. & MARY L. REV. 1605, 1626 (2002).
358. See Fallon & Meltzer, supra note 17, at 1811-12 (proposing modifications to the current retroactivity doctrine);
359. Heytens, supra note 28, at 979-90 (same).
360. See Stovall v. Denno, 388 U.S. 293, 301 (1967) (suggesting that pure prospectivity would implicate the bar on advisory opinions and erode incentives to seek changes in the law).
361. But see Fallon & Meltzer, supra note 17, at 1797-1807 (questioning those arguments).
362. See State Oil Co. v. Khan, 522 U.S. 3, 20 (1997) (reiterating that "it is this Court's prerogative alone to overrule one of its precedents");
363. Ashutosh Bhagwat, Separate But Equal?: The Supreme Court, the Lower Federal Courts, and the Nature of the "Judicial Power, " 80 B.U. L. REV. 967, 977-92 (2000). To be sure, the Supreme Court might be wrong that a strict form of vertical stare decisis enhances its power.
364. See Caminker, supra note 33, at 51-61 (discussing the impact of precedent versus predictive models on the power of the Supreme Court).
365. See Margaret Meriwether Cordray & Richard Cordray, The Calendar of the Justices: How the Supreme Court's Timing Affects Its Decisionmaking, 36 ARIZ. ST. L.J. 183, 213, 229 (2004) (documenting the regularity of the Court's timetable).
366. A good illustration of the problem comes from McGeshick v. Choucair, 72 F.3d 62, 63 (7th Cir. 1995). The Seventh Circuit decided a case without waiting for the benefit of a pending state supreme court ruling because it appeared that the state court would act slowly. The state court eventually issued its decision two years after it had granted review. In the meantime, the Seventh Circuit had expeditiously decided the case but, as it turned out, guessed incorrectly about state law. See id. Another factor that might diminish the argument for waiting for state court decisions is that federal courts might enjoy somewhat greater latitude to predict how state high courts will rule, as compared to the rigid rules for applying current Supreme Court law.
367. See supra note 33 and accompanying text.
368. See United States v. Bonner, No. 09-2352, 2010 WL 226351, at *3 (3d Cir. Jan. 21 2010) ("It would be inappropriate for the Court to hold off on deciding a fully briefed appeal simply because of the chance that Congress may pass and the President may sign legislation at some unknown point in the future.");
369. Gabarczyk v. Bd. of Educ. of Poughkeepsie, 738 F. Supp. 118, 121 (S.D.N.Y. 1990) (reaching a similar conclusion).
370. But see U.S. Nuclear Regulatory Comm'n v. Sholly, 463 U.S. 1224, 1225 (1983) (Blackmun, J., dissenting) (noting that the Court had twice postponed oral argument while Congress considered relevant legislation);
371. Cherry Hill Vineyards, LLC v. Lilly, 553 F.3d 423, 426-27 (6th Cir. 2008) (noting that the court held the case in abeyance "in anticipation of pending legislation");
372. Ctr. for Sci. in the Pub. Interest v. Regan, 802 F.2d 518, 520 (D.C. Cir. 1986) (similar).
373. See supra Part IA.1.
374. See, e.g., United States v. Husein, 478 F.3d 318, 340 (6th Cir. 2007);
375. United States v. Mellen, 393 F.3d 175, 182 n.2 (D.C. Cir. 2004).
376. See Steven Shavell, Optimal Discretion in the Application of Rules, 9 AM. L. & ECON. REV. 175, 175-76 (2007) (discussing this tradeoff).
377. Supra note 36 and accompanying text (discussing timeline for issuance of the mandate).
378. See SUP. CT. R. 13.1 (setting ninety-day deadline for filing petition for certiorari). The Court can extend the time for filing by up to sixty days.
379. Id. 13.5. The date of finality is delayed even further while the petition is pending.
380. See supra note 155 (discussing use of these devices to obtain the benefit of new law).
381. Whether there is a federal constitutional right to an appeal is beside the point here.
382. Cf. Abney v. United States, 431 U.S. 651, 656-58 (1977) (reiterating that there is no federal constitutional right to an appeal). Such a right is recognized in statutes (e.g., 28 U.S.C. § 1291 (2006)) and, probably most importandy, in the presuppositions that make up our contemporary legal culture.
383. See JUDICIAL CONFERENCE OF THE U.S., LONG RANGE PLAN FOR THE FEDERAL COURTS 43-44 (1995) (reaffirming the federal judiciary's commitment to "the principle of allowing litigants at least one appeal as of right to an Article III forum").
384. To be sure, there remain vestiges of mandatory Supreme Court jurisdiction. See EUGENE GRESSMAN ET AL., SUPREME COURT PRACTICE 89-117,146-47 (9th ed. 2007). Nonetheless, I believe that the statement in the text is an accurate description of how we think about the matter.
385. See Lawrence ex rel. Lawrence v. Chater, 516 U.S. 163, 176-77 (1996) (Rehnquist, C.J., concurring and dissenting) ("[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."
386. (quoting 2 HENRY F. PRINGLE, THE LIFE AND TIMES OF WILLIAM HOWARD TAFT 997-98 (1939)) (internal quotation marks omitted)).
387. See supra note 166 and accompanying text.
388. In other words, this hypothesized system is not one of selective prospectivity, according to which the new rule applies only prospectively except for the very case that announces it. Rather, retroactivity for nonfinal cases would remain the general rule, but the date of finality would be changed. As the main text will explain, however, both systems generate some of the same inequities.
389. See United States v. Johnson, 457 U.S. 537, 555 n.16 (1982);
390. Desist v. United States, 394 U.S. 244, 255 (1969) (Douglas, J., dissenting);
391. id. at 258-59 (Harlan, J., dissenting).
392. This same potential problem exists under current arrangements, where the Supreme Court has the power to control the finality date for cases in which certiorari petitions are filed. By holding cases pending a plenary decision, the Supreme Court makes them eligible for application of new law. One can imagine an alternate universe in which the Court never held cases; this system would reduce the need for GVRs and other means of implementing new law. What would be quite worrisome is if the Court held cases in a haphazard way, extending the life of some but not others.
393. See generally Revesz & Karlan, supra note 48, at 1118-28 (discussing the Court's practices concerning holds and particularly the value of securing equal treatment for similarly situated petitioners). This generally does not seem to happen today, but one aspect of the Court's practice that does hold the potential for that type of arbitrariness is the Supreme Court's power to grant rehearing after a denial of certiorari in order to issue a GVR, essentially resurrecting a case that had become final.
394. See SUP. CT. R. 44.2. The potential for mischief is limited by the twenty-fiveday deadline for seeking rehearing,
395. id., which the current Court administers firmly.
396. See GRESSMAN ET AL., supra note 178, at 812-13. In the past, the Court would sometimes permit petitions for rehearing long after the deadline.
397. See id. at 808-12.
398. See generally AaronAndrew P. Bruhl, When Is Finality . . . Final? Rehearing and Resurrection in the Supreme Court, 11 J. APP. PRAC. & PROCESS (forthcoming 2011) (describing this problem).
399. I have discussed such a proposal in more technical detail elsewhere.
400. See Bruhl, supra note 41, at 741-54. That work approached the problem primarily from the narrower perspective of reducing the Supreme Court's need to issue GVRs. Here our concern is the broader goal of improving courts' handling of decisions about when to decide, which happens to have the same consequence.
401. See, e.g., United States v. Washington, 171 F. App'x 908, 909 (2d Cir. 2006) (recalling the mandate in light of new developments that arose shortly after the court's initial decision);
402. United States v. Murray, 2 F. App'x 398, 399-400 (6th Cir. 2001) (recalling the mandate based on a new Supreme Court decision issued approximately one month after the circuit court's prior ruling);
403. United States v. Skandier, 125 F.3d 178, 182-83 (3d Cir. 1997) (similar);
404. Bryant v. Ford Motor Co., 886 F.2d 1526, 1527-30 (9th Cir. 1989) (recalling the mandate and reconsidering the case based on new legislation that took effect before the Supreme Court denied certiorari);
405. United States v. Kismetoglu, 476 F.2d 269, 270 (9th Cir. 1973) (recalling the mandate because of a Supreme Court decision issued forty-two days after the court of appeals ruling);
406. Braniff Airways, Inc. v. Curtiss-Wright Corp., 424 F.2d 427, 429-30 (2d Cir. 1970) (granting an untimely petition for rehearing in light of new precedent announced during the pendency of a petition for certiorari). The above cases should be distinguished from those in which a litigant attempts to recall the mandate after the case has become final, sometimes years after the final judgmenL Recalling the mandate in such circumstances is problematic because it substantially interferes with finality and essentially circumvents restrictions on retroactivity.
407. See Carrington v. United States, 470 F.3d 920 (9th Cir. 2006),
408. withdrawn and superseded, 503 F.3d 888, 891-94 (9th Cir. 2007);
409. United States v. Saikaly, 424 F.3d 514, 516-18 (6th Cir. 2005);
410. cf. supra note 22 (describing limits on use of FED. R. QV P. 60(b)).
411. See, e.g. United States v. Fraser, 407 F.3d 9, 10-11 (1st Cir. 2005) (refusing to recall the mandate in light of a Supreme Court decision issued approximately two months after the circuit court's prior ruling);
412. United States v. Padro Burgos, 239 F.3d 72, 77 n.3 (1st Cir. 2001) (denying a request to file supplemental briefs concerning the impact of a newly decided case but suggesting that the defendant could seek collateral relief);
413. Richardson v. Reno, 175 F.3d 898, 899 (11th Cir. 1999) (refusing to recall the mandate in light of a Supreme Court decision issued approximately two months after the circuit court's prior ruling).
414. Delaying decision also deprives the Supreme Court of the benefit of any insights that the lower court's opinion may contain. As explained earlier, in these particular circumstances the marginal benefit of an additional lower court decision is likely to be trivial.
415. See supra notes 143-44 and accompanying text.
416. The Administrative Office regularly issues statistics showing, inter alia, the number of pending cases and the average time to disposition in each circuit. See, e.g., JAMES C. DUFF, ADMIN. OFFICE OF THE U.S. COURTS, JUDICIAL BUSINESS OF THE UNITED STATES COURTS: 2008 ANNUAL REPORT OF THE DIRECTOR 46 tbl.S-5, 84-87 tbl.B-1, 105 tbl.B-4 (2009), available at http://www.uscourts. gov/uscourts/Statistics/JudicialBusiness/2008/ front/JudicialBusinespdfVersion. pdf. Further, there are typically mechanisms within a court for tracking the age of pending cases and pressuring tardy judges.
417. See RICHARD A POSNER, THE FEDERAL COURTS: CHALLENGE AND REFORM 223 (2d prtg. 1996).
418. Indeed, in informal conversations with judges, I have found that some care very little about how they fare on timeliness reports while others care a great deal about such things; the judges likewise report that they have observed such a variation in attitudes among their colleagues.
419. Cf. Rebecca Love Kourlis & Jordan M. Singer, Managing Toward the Goals of Rule 1, 4 FED. CTS L. REV. 1, 16-18 (2009) (finding that local legal and judicial culture explains much of the variation across trial courts in timeliness of ruling on motions and disposing of cases).
420. See generally JONATHAN MATTHEW COHEN, INSIDE APPELLATE COURTS: THE IMPACT OF COURT ORGANIZATION AND JUDICIAL DECISION MAKING IN THE UNITED STATES COURTS OF APPEALS 14-19, 21-26, 170-74 (2002) (applying organizational culture frameworks to the study of appellate courts);
421. BRIAN J. OSTROM ET AL., TRIAL COURTS AS ORGANIZATIONS 1-44 (2007) (similar, for trial courts).
422. The Supreme Court should honor such a "waiver" by not GVR'ing in these circumstances. Cf. Lawrence ex rel. Lawrence v. Chater, 516 U.S. 163, 167-68 (1996) (suggesting that the Court could withhold a GVR in cases of manipulative litigation conduct).
423. But see Mardell v. Harleysville Life Ins. Co., 31 F.3d 1221, 1226 n.7 (3d Cir. 1994) (noting that the parties asked the court not to hold the case in abeyance to await a pending Supreme Court decision), vacated, 514 U.S. 1034 (1995) (issuing GVR order anyway).
424. Cf. Bos. & 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 court ruling and noting, inter alia, that the movant could have sought a stay of the First Circuit proceedings pending the state decision). Again, this approach would work only if the Supreme Court stopped GVR'ing in such circumstances.
425. See, e.g., Charleston v. United States, 444 F.2d 504, 506 (9th Cir. 1971) (stating that the case could not be held in abeyance because 28 U.S.C. § 1826 required the court to decide the appeal within thirty days).