Further Thoughts on the Precedential Status of Decisions Affirmed on Alternate Grounds

Orin asks below about the precedential status of circuit court opinions — like the D.C. Circuit’s opinion in Maynard — that have been affirmed by the Supreme Court, but under different analysis. Like Orin, I think it’s a very interesting question, but I confess my instinct about the answer is different from his. Here are some of the legal materials I think relevant.

The rules: The Supreme Court rules do not automatically vacate the lower court opinion when cert. is granted; they say nothing about it until the Supreme Court ultimately decides how to dispose of it by affirming, vacating, or reversing. This is in contrast to some courts of appeals — such as the Fourth Circuit or the Sixth Circuit — which provide that a panel opinion is automatically vacated when rehearing en banc is granted.

Court decisions relying on affirmed opinions: Searching Westlaw, I found a lot of cases where federal courts treat a court of appeals opinion as precedent (or sometimes “binding precedent”) when its citation notes that it has been “aff’d on other grounds” by the Supreme Court. For example:

Balintulo v. Daimler AG, 727 F.3d 174, 191 (2d Cir. 2013) (“The law of this Circuit already provides answers to some of those questions, including the principle that corporations are not proper defendants under the ATS in light of prevailing customary international law, see Kiobel v. Royal Dutch Petroleum Co., 621 F.3d 111, 149 (2d Cir.2010), aff’d on other grounds, 133 S.Ct. at 1669”).

Martin v. Occupational Safety & Health Review Comm’n, 947 F.2d 1483, 1485 (11th Cir. 1991) (following “binding precedent in Atlas Roofing Co. v. Occupational S. & H. Rev. Com’n, 518 F.2d 990, 1013 (5th Cir.1975), aff’d on other grounds, 430 U.S. 442 (1977)”)

Newton v. Thomason, 22 F.3d 1455, 1460 (9th Cir. 1994) (“persuaded by the approach taken by the D.C. Circuit in In re Korean Air Lines Disaster, 829 F.2d 1171 (D.C.Cir.1987), aff’d on other grounds sub nom. Chan v. Korean Air Lines, Ltd., 490 U.S. 122 (1989)”)

Johnson v. Litscher, 260 F.3d 826, 828 (7th Cir. 2001) (citing, as part of a circuit split, “Booth v. Churner, 206 F.3d 289, 293–98 (3d Cir.2000), aff’d. on other grounds, 531 U.S. 956 (2001)”)

Cuban Am. Bar Ass’n, Inc. v. Christopher, 43 F.3d 1412, 1424 (11th Cir. 1995) (“While other circuit and district courts may have considered similar issues, it is the case law of this circuit which governs our decisions. Specifically … Jean v. Nelson, 727 F.2d 957 (11th Cir.1984) (en banc) [hereinafter Jean I], aff’d on other grounds, 472 U.S. 846 (1985).”)

Albiero v. City of Kankakee, 246 F.3d 927, 932 (7th Cir. 2001) (Describing as “our circuit precedent … Olech v. Village of Willowbrook, 160 F.3d 386, 388 (7th Cir.1998), aff’d. on other grounds, 528 U.S. at 565”)

Neal ex rel. Neal v. Fulton Cnty. Bd. of Educ., 229 F.3d 1069, 1071 (11th Cir. 2000) (describing as “binding precedent” “Ingraham v. Wright, 525 F.2d 909 (5th Cir.1976) (en banc), aff’d on other grounds, 430 U.S. 651, 97 S.Ct. 1401, 51 L.Ed.2d 711 (1977)”)

In re Schafer, 689 F.3d 601, 604, 606 (6th Cir. 2012) (describing as one of its “precedents” “Hood v. Tennessee Student Assistance Corp., 319 F.3d 755 (6th Cir.2003), aff’d on other grounds, 541 U.S. 440 (2004)”)

These examples aren’t exhaustive, but they suggest that in general there’s nothing about being affirmed on an alternate ground that would automatically cause a court of appeals opinion to stop being binding.

At the same time, sometimes the Court will affirm a decision while also expressly making clear that the court of appeals was wrong. For example, in United States v. Tinklenberg, the Supreme Court affirmed a Sixth Circuit decision under the Speedy Trial Act, but only by first concluding that the Sixth Circuit had made an error in favor of the defendant, than concluding that it had made a countervailing error against the defendant. Similarly, in Knight v. Commissioner, the Court affirmed a Second Circuit decision but only after expressly “rejecting the Court of Appeals’ reading” of the statute. In theory, the majority’s reasoning in Jones could have also been written in a way to expressly or implicitly reject the lower court’s reasoning, but that doesn’t seem to have happened.

Orin’s question, as I understand it, is whether there is an intermediate category — a form of an affirmance on an alternate ground that would strip the lower court opinion of precedential status, but that also isn’t as explicit in rejecting the lower court decision as Knight and Tinklenberg are. As Orin describes it in the comments below: his

more central question is what happens when the Court grants cert, reviews the split, and then hands down an analysis ruling on the merits for one side in a way that does not expressly address the reasoning below and leaves it open as an alternative approach in a future case. Is the circuit court decision still binding precedent in that circuit?

I’m not sure how many of the cases above deal with that specific version of the scenario (I imagine it is fairly rare) but the Second Circuit decision in Balintulo (cited above) seems like an example. The Second Circuit held in Kiobel that corporations can’t be sued under the Alien Tort Statute. The Supreme Court granted cert on that question, and ultimately affirmed under different reasoning, that the Alien Tort Statute doesn’t generally apply extraterritorially. The Second Circuit later concluded that the affirmed decision in Kiobel was still “the law of this Circuit.” But perhaps Orin would find the situation distinguishable, I’m not sure.

In any event, it seems to me that the Balintulo approach is correct for two reasons:

1, The general rule is that a precedent remains good law until something happens to it. The precedent could have been vacated, but it wasn’t. It could have been expressly rejected or criticized, but it wasn’t. That doesn’t rule out the possibility of a new kind of disposition (what would it be called?), but it makes me skeptical of one that doesn’t already have a basis in existing law.

2, It seems clear that other earlier circuit court opinions addressing the same unresolved issue would remain good law. (For example, the circuit opinions that created the circuit split with the D.C. Circuit decision, and which so far as I know were neither reversed nor affirmed by the Court.) But if that’s right, what logical reason is there to treat the affirmed decision any differently? [UPDATE: I now see that Orin would also have the same question about these earlier opinions.]

Perhaps Jones should be read as implicitly or explicitly rejecting the mosaic approach. But if it is not, I do not think it has disturbed the precedential force of the D.C. Circuit’s decision in Maynard.

Finally, I’ll note that this issue may also come up in the Supreme Court’s resolution of the recess appointments case. As we’ve discussed, there are three separate arguments made to challenge the NLRB recess appointments — 1, that they didn’t happen during the recess; 2, that an “intrasession” break is not a recess; and, 3, that the pro forma sessions are valid. The D.C. Circuit opinion under review adopted 1 and 2. Other circuits have adopted 2. No circuit has adopted 3. Many people think that the Court should adopt 2 or 3 but not 1, because 1 is in some senses the most “broad.” But if that happens, that will leave the question of whether 1 and/or 2 are still binding precedent in the D.C. Circuit. One amicus brief in the case argues that the D.C. Circuit’s decision will remain good law in that circuit unless it is rejected or vacated (that’s where I found Balintulo.) But I suppose we may find out soon.