Effect of the Newdow case on the precedential value of the Ni nth Circuit decision

[Samuel Bagenstos]

Without getting into what courts should do, my sense is that courts don't 
do what Mark is suggesting here.  The Ninth Circuit, which is the relevant 
circuit here, has previously held that the merits discussion a vacated 
opinion is not binding precedent in the analogous circumstance where the 
Supreme Court vacated on ripeness grounds.  Roe v. Anderson, 134 F.3d 1400, 
1404 (9th Cir. 1998).  Same where the Supreme Court vacated an opinion as 
moot.  Garcia v. Spun Steak Co., 998 F.2d 1480, 1487 n.1 (9th Cir. 
1993).  The Roe court did make clear that the earlier merits discussion 
would be persuasive authority -- a point Judge Reinhardt also made in his 
dissent from denial of en banc in Garcia -- but it is not binding.  My 
sense as a person with some appellate practice experience is that this is 
the pretty typical practice.  Once a panel decision is vacated, for 
whatever reasons, subsequent panels will no longer treat it as binding.

At 08:01 PM 6/14/2004 -0500, Mark Tushnet wrote:
>I think the analysis has to be a bit more discrete.  For
>example, if the Supreme Court holding is based on the
>political questions doctrine, I agree with the analysis below
>(although it's hard to see how a subsequent case could be
>brought anyway).  But, where the justiciability issue is
>standing or mootness, which go to who can bring a claim,
>and when, I wonder whether the argument goes through.
>Consider a case brought by two parties, one -- it turns out,
>-- without standing, the other (it also turns out) with it.  And
>imagine a litigation posture in which the former is the only
>party in the Supreme Court (perhaps because the
>opponent settled with the latter).  The Supreme Court
>reverses the appellate court with respect to the only
>litigant before it.  My sense is that the appellate court
>decision on the merits in the other litigant's case would be
>binding within the circuit.
>
>Of course, that decision would have been rendered in a
>case in which the appellate court properly had one case
>before it, while in the case at hand it didn't.  And maybe
>that's enough to  deprive the ruling on the merits of within-
>circuit bindingness.  But my guess is that the issue
>shouldn't be resolved on the basis of large conceptual
>issues like whether the court in the first case "had" a
>constitutional "case" before it, but rather on grounds of
>effective judicial administration -- which is what within-
>circuit bindingness is primarily about (I think).
>
>----- Original Message -----
>From: "Sisk, Gregory C." <GCSISK at stthomas.edu>
>Date: Monday, June 14, 2004 8:38 pm
>Subject: RE: Effect of the Newdow case on the
>precedential value of the Ni    nth Circuit decision
>
> > I understand the rule that when a decision is reversed
>by the
> > Supreme Court
> > on one of many points addressed in a lower-court
>decision that the
> > otherrulings of that lower-court remain precedential in
>that court.
> > In most
> > circumstances that makes perfect sense.
> >
> > But surely that cannot be the case when the reason for
>the reversal
> > is one
> > of justiciability, which goes to the very authority of the
>lower-
> > court to
> > have pronounced anything on the merits at all.  For the
>Ninth
> > Circuit'sNewdow opinion to have any continuing vitality
>on any
> > issue would make a
> > mockery (I'm tempted to say, it would be a
>"traveshamockery," but that
> > simply reveals that I do pay attention to commercials
>during the
> > NBA finals)
> > of the concept of standing as a limitation on judicial
>authority.
> >
> > Greg Sisk
> >
> > -----Original Message-----
> > From: Volokh, Eugene [VOLOKH at law.ucla.edu]
> > Sent: Monday, June 14, 2004 7:22 PM
> > To: conlawprof
> > Subject: Effect of the Newdow case on the precedential
>value of the
> > NinthCircuit decision
> >
> >       Any thoughts on whether the Ninth Circuit's
>Establishment Clause
> > reasoning in Newdow -- though not the standing
>reasoning, of course
> > --
> > is still binding precedent on other panels, and on district
>courts in
> > the Ninth Circuit?
> >
> >       I'd think that it wouldn't be binding, but there seems
>to be
> > some lower court caselaw suggesting that while
>*vacated* decisions
> > aren't binding precedent, decisions reversed on one
>issue remain
> > bindingas to other issues.  See Pines Land Co. v. U.S.,
>274 F.3d
> > 881, 894 n.57
> > (5th Cir.) ("This case illustrates the important difference
>between
> > ourtreatment of a panel opinion after vacatur by the
>Supreme Court
> > and our
> > treatment when a judgment is reversed on other
>grounds. While our
> > prioropinion in Leiter Minerals II did not bind the Little
>Lake
> > panel because
> > it was vacated, the opinion in Little Lake binds us
>because only the
> > judgment was reversed on other grounds. Little Lake,
>453 F.2d at 362
> > (reaffirming principles of Leiter Minerals II in face of
>Government's
> > argument that it had no precedential value); Ridley v.
>McCall, 496
> > F.2d213, 214 (5th Cir.1974) (stating that vacated
>opinions have no
> > precedential value); Durning v. Citibank, N.A., 950 F.2d
>1419, 1424
> > n. 2
> > (9th Cir.1991) ('A decision may be reversed on other
>grounds, but a
> > decision that has been vacated has no precedential
>authority
> > whatsoever.').").  Seems odd, but there it is.  Or is the
>matter in
> > anycase different when the Court reverses on standing
>grounds, thus
> > suggesting that the lower court should never have
>reached the merits?
> >
> >       I'd love to hear what others who know more about
>appellate
> > procedure than I do think about this.
> >
> >       Eugene
> >
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>
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Samuel R. Bagenstos
Assistant Professor of Law
Harvard Law School
1545 Massachusetts Ave.
Cambridge, MA  02138
(617)495-9299 
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