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Interesting Question Inspired by Pearson v. Callahan:
Imagine a circuit court publishes a decision holding A and B, where both holdings A and B are considered necessary to the court's outcome. The Supreme Court grants cert, reverses judgment on the ground that B was wrong, and announces a new methodology by which the circuit court did not have to reach A to reach the issue in B.

  Here's the question: Is the circuit court holding A still binding law in the circuit? Or is it just dicta that is not binding under circuit court internal operating procedures? I get the feeling that I should know this, but off the top of my head I don't (and it's one of those research questions that's relatively hard to query in Westlaw). I'm figuring that some of our super-law-geek VC readers must know. . . .
guest:
I believe this is an issue with no fixed rule and varies by circuit. It's an issue in Newdow's second Pledge of Allegiance suit, for instance (which I think is still pending; it was argued just over a year ago). 9th Cir finds he has standing, then that the pledge is unconstitutional. SCOTUS says no standing. Newdow comes back with new clients who have standing. Can the new panel when it returns to the 9th Circuit address the merits anew, or is it bound by the previous panel? In the Ninth Circuit, at least, it looked from the briefs like Newdow had the upper hand (= previous decision binding), but the government still disputes that...
1.21.2009 5:51pm
Guest44:
Standing is jurisdictional, is it not? So a SCOTUS no-standing holding should erase the whole case.

I was going to write that QI is a non-jurisdictional affirmative defense, so the first prong probably stands. But then I remembered that QI is immunity from suit, not just liability (Harlow?), so a reversal on QI might also erase the whole case as well.
1.21.2009 6:02pm
Kent Scheidegger (mail) (www):
I don't know of authority squarely on point, but I think not by analogy to the Munsingwear rule. When the Supreme Court doesn't get to review the substantive decision of the Court of Appeals because the case has become moot, it vacates and remands, and the Court of Appeals decision is not precedent. The Supreme Court's decision that its reversal of the Tenth Circuit's obviously erroneous holding on the "clearly established" point made review of the "consent once removed" point unnecessary should have a similar effect.

The rule also provides extensive opportunities for bad puns about "Munsingwear briefs."

Regarding guest's comment on the Newdow case, the District Court so held, but the opinion was complete tripe, in my somewhat-less-than-humble opinion.
1.21.2009 6:08pm
D.A.:
I see Kent's point, but I think there's a solid difference between vacating a case, and reversing on one ground out of two. In the former situation, the situation is as if the case doesn't exist; in the latter, the court's reasoning is reversed on one basis only, leaving the other intact.
1.21.2009 6:11pm
D.A.:
FWIW,
My searches were of the form:
(revers! /3 ground!) /p (cited /4 law)
and
revers! /4 ground! &point /4 law

I'd spend more time on this, since it's interesting, but that will have to await more free time in this down law market.
1.21.2009 6:14pm
Lior:
As a practical matter (not regarding what the law actually says), if the case gets wiped, then how do rights become "clearly established" for the purposes of QI? Every time the police would violate the right, the case will be dismissed without reaching the merits, thus without establishing the right for the purposes of the cases coming after.
1.21.2009 6:14pm
John (mail):
There is a reason courts do not give advisory opinions, and the lack of facts in the hypothetical really makes it impossible to answer the question. In the abstract there is no answer, I would think.
1.21.2009 6:16pm
OrinKerr:
John,

For more facts, read the case.
1.21.2009 6:19pm
alkali (mail):
5th circuit says yes: US v Kirk, 528 F.2d 1057, 1063-64 (5th Cir. 1976)

3d Circuit appears to agree: McLaughlin v. Pernsley
876 F.2d 308, 312-13 (3d Cir. 1989)
1.21.2009 6:19pm
OrinKerr:
Ooh, cases! Alkali, you're a man/woman/dog/robot after my own heart.
1.21.2009 6:23pm
alkali (mail):
Arf!
1.21.2009 6:24pm
Donald (mail) (www):
The answer to this probably only matters in a limited set of circumstances. Because determining whether A is still good law requires some difficult legal parsing, it's difficult to imagine a court finding that A is clearly established if evaluating a motion to dismiss or MSJ based on qualified immunity given a subsequent, similar 1983 action in the circuit.

The answer would be much more important in the context of a motion to suppress in a criminal case. If A is still good law, then it would bind a future panel (and district courts) to suppress evidence when the sole justification for search is "consent once removed." But because SCOTUS reversed, rather than vacating, it would seem that one could cite the circuit court's decision for proposition A, adding a parenthetical "rev'd on other grounds" to the citation.
1.21.2009 6:28pm
Guest44:
Kirk just kicks the can a little down the road. How to know whether the Court "implicitly" overruled the constitutional violation prong of the 10th Cir.'s holding?
1.21.2009 6:29pm
LM (mail):
Orin,

Sorry for going OT, but NPR, specifically All Things Considered, ripped you off. I just heard Robert Siegel introduce Nina Totenberg, with:

"How many Harvard Law Review Editors does it take to administer the Presidential oath of office?"

(or very similar words to that effect).
1.21.2009 6:33pm
runape (mail):
I think all jurisdictions would consider it persuasive authority, at least. There's a Bluebook signal - "vacated on other grounds sub. nom. ..." or some such - that's aimed in part at this problem.

I think the problem is similar to that posed by a legal holding in an opinion in an appellate opinion that reverses on factual grounds. For example, if a court agrees with an agency's interpretation of the statute, but concludes there's not substantial evidence supporting its findings of fact, the court's interpretation of the statute is usually binding or at least persuasive in future cases. But whether it's strictly binding - not sure.
1.21.2009 7:04pm
Spitzer:
It seems to me that the question is really whether the 2 holdings are best characterized as alterative holdings (i.e. independently supporting the final decision) or dicta. If they are alternative holdings, as you suggest, then reversal on one will have no necessary effect on the other.

See, e.g.:
(1) Union Pacific RR. Co. v. Mason City &Ford Dodge RR Co., 199 U.S. 160, 166 (1905): "where there are two grounds, upon either of which the judgment of the trial court can be rested, and the appellate court sustains both, the ruling on neither is obiter, but each is the judgment of the court, and of equal validity with the other. . . . 'It cannot be said that a case is not authority on one point because . . . something else was found in the end which disposed of the whole matter."

(2) U.S. v. Title Ins. &Trust Co., 265 U.S. 472, 486 (1924): "But it is urged that what we have described as ruled there was obiter dictum, and should be disregarded, because the court there gave a second ground for its decision, which was broad enough to sustain it independently of the first ground. The premise of the contention is right, but the conclusion is wrong; for where there are two grounds, upon either of which an appellate court may rest its decision, and it adopt both, 'the ruling on neither is obiter, but each is the judgment of the court and of equal validity with the other.'" (quoting Union Pacific, supra)

(3) Richmond Screw Anchor Co., Inc. v. U.S., 275 U.S. 331, 340 (1928): "Counsel for the petitioner here insist that this statement [of the appeals court] was not necessary to the decision because the conclusion in that case was clearly made to depend on the noninfringement of the patent and that the reference to section 3477 could only be regarded as obiter dictum. It does not make a reason given for a conclusion in a case obiter dictum, because it is only one of two reasons for the same conclusion. It is true that in this case the other reason was more dwelt upon and perhaps it was more fully argued and considered than section 3477, but we cannot hold that the use of the section in the opinion is not to be regarded as authority, except by directly reversing the decision in that case on that point, which we do not wish to do."

(4) Massachusetts v. U.S., 333 U.S. 611, 623 (1948): "While therefore the case is one which might have been decided on either of two independent grounds favorably to the Government, it is neither one in which that course was followed nor one which could have been determined the opposite way in that manner. Instead, as we were asked to do and rightly could do on the record and the issues, we decided both issues, and the judgment rested as much on the one determination as the other. In such a case the adjudication is effective for both." (citing Title Insurance, supra)

(5) Hamdan v. Rumsfeld, 548 U.S. 557, 126 S. Ct. 2749, 2844 (2006) (Thomas, J., dissenting): "This alternative holding [in Eisentrager] is no less binding than if it were the exclusive basis for the Court's decision." (citing Massachusetts v. US, supra).
1.21.2009 7:20pm
marksleen (mail):
Limiting myself to the facts of this case, my gut reation is that since the Court did not prohibit a Saucier analysis and did not reverse the appellate Court on its substantive constitutional analysis, I think that the decision is still binding, but a citation would note rev'd on other grounds.
1.21.2009 7:41pm
marksleen (mail):
Re: guest's post, didn't the Court in Newdow's case specifically vacate the lower court's ruling. Since the decision was vacated, it was as if it never existed. That seems different than this case.
1.21.2009 7:43pm
arylchyk:
Just a quick note. QI does not wipe out the suit. It is only immunity from monetary liability. Suit may still proceed for declaratory or injunctive relief.

Thus at least on this ground, the SCOTUS opinion would not wipe out the first prong analysis by the 10th. Furthermore, Pearson does not even get rid of Saucier two step process - just merely makes it very very optional so to speak. I'd think the 10th's finding on the constitutional violation would stand.
1.21.2009 7:45pm
arylchyk:
marksleen: You beat me to it. I read Pearson as finding Saucier to be fairly impractical, but that the justices still find the original reason (development of a body of constitutional law) behind Saucier's requirement of two-pronged analysis to be noble.
1.21.2009 7:48pm
Guest44:
Spitzer: I think your cases are off point because the two prongs of QI are not independent grounds for the holding. The plaintiff must win on both to overcome asserted QI (at MTD, SJ, and at trial). The "rights violation" holding in CA10 is not an independent ground for the holding. It was necessary but not sufficient to hold "no QI."

arylchyk: Prospective relief is an interesting point. My point was that the Court has said a lot about QI being immunity from suit/trial, not just immunity from liability. (That is why officials get the interlocutory appeal at both the MTD and SJ stage as well as at trial.) From a practical perspective, if my 4A rights were violated by a specific officer at some date in the past, it seems highly unlikely I'm going to be suing that officer for an injunction. Aside from that: if CA10 was wrong, then the officers should have been immune from suit, not just immune to damages. That might support an argument that the entire CA10 opinion is wiped out. On the other hand, when CA10 decided the case, Saucier was good law, so the court was right to decide the first prong first; it was not error to "reach" the first prong at the time. So the first prong should stand...? (Shades of retroactivity analysis/Teague v. Lane, right?) I wonder who the lucky district judges (and CA10 panel members) will be to next reach a "consent once removed" issue.
1.21.2009 8:12pm
arylchyk:
Guest 44: Interesting points. What about my reading of Pearson? It seems permissive in nature as to how the courts can proceed in the qualified immunity analysis. So if a DJ wants to "build a body of constitutional law" in an opinion, he can do the two step analysis in full, even though the second prong is not met (right not clearly established), there is nothing in Pearson that prevents that DJ from doing that.
1.21.2009 8:27pm
Guest44:
I think you're exactly right that Pearson encourages courts to follow Saucier as a default position. I just think the institutional pressures are really going to push DCt and COA judges (and their clerks!) toward the second prong first. It's much easier to say "no case on point as of 200X" than to reason through whether the new fact pattern or theory should be considered a violation.

And if a DJ does do the "clearly established" prong first because of those pressures, it seems likely the COA will review only for abuse of discretion.

In sum, despite Pearson's encouragement of Saucier as default, I think we're more likely to see a nearly universal reverse-Saucier regime in practice. I think this is bad because (as I mentioned above) courts will typically resolve constitutional claims against criminal suspects in exclusionary hearings--who aren't the best litigants for a lot of reasons.
1.21.2009 9:17pm
CVMe:
Orin,

I didn't mean to be flip in the other post's comments. I seriously do not see the argument that the 4th Amendment holding is not stare decisis. In any case, alkalai's cases both appear to be on point, and both state what is essentially a stare decisis principle, though they do it in terms of circuit rules (5th Cir.) or internal operating procedures (3d Cir.) The result is the same: So long as not explicitly or implicitly overruled, the prior decision is binding to avoid an intra-circuit conflict.
1.21.2009 9:59pm
BRM:
How often does one sue an individual officer for an injunction? The whole point of suing the individual officer is to get around sovereign immunity, but under Ex Parte Young, you can sue the government entity directly for injunctive relief. Also, good luck getting standing to sue for prospective injunctive relief based on past conduct, after Lyons.
1.22.2009 12:04am
BRM:
Also, I don't see how useful it would be to get an injunction preventing Officer Jones from searching your car, while every other officer could still search your car.
1.22.2009 12:11am
arbitraryaardvark (mail) (www):
I'm in a case that might raise these issues (or maybe i'm wrong and the logical posture is totally different, and not just a little different.)
In Crawford/Rokita, the district court applied the wrong standard of scrutiny on both the state and federal constitutional claims, and upheld the statute.
Posner also applied the wrong standard of scrutiny as to the federal claim,and didn't discuss the state claim, but upheld the statute, so implicitly upheld the district court's state analysis.
The controlling (Marks) minority opinion at the Supreme Court found that Posner had used the wrong standard, but then got rid of the traditional first amendment exception
to the rule that facial challenges must apply to 100% of the statute's applications, so Crawford loses.
The Supreme Court didn't address the state claim because it wasn't in the question presented.
I'm relitigating the issues with an as-applied challenge.
(I wasn't allowed to cast a ballot because I don't show ID.)
Are the district court (where it's at now) and the next panel at the 7th circuit (where it will end up soon enough) bound by the prior erroneous holding on the state claim?
I'd argued in the briefs so far that it isn't, but this thread is leading me to think I'm wrong. Robbin Stewart/AA.
1.22.2009 6:19am
Oren:

QI does not wipe out the suit. It is only immunity from monetary liability. Suit may still proceed for declaratory or injunctive relief.

See City of LA v. Lyons.
1.22.2009 4:20pm
arbitraryaardvark (mail) (www):
Lyons is the choke-hold case, where plaintiff didn't have standing for injunctive relief because he didn't reasonably expect to be choked again. Before washington state grange, Lyons might have argued, on slightly different facts, that his speech is being chilled by the fear of chokeholds, but even that approach may be gone now. QI is often applied in such cases - lower courts often treat QI as the functional equivalent of absolute immunity. In such cases, can one get standing by seeking a declaratory judgment? It's not a very useful judgment, but might vindicate the issue and be a basis for legal fees. Not a rhetorical question - I'm just wondering if this works.
Also, does QI apply to state constitutional claims? Raised in state courts? Only in federal questions or only in 1983 actions?
1.22.2009 8:26pm

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