Henry J. Dickman

The law of the circuit doctrine requires three-judge panels in the federal courts of appeals to give stare decisis effect to past decisions of the circuit, which can only be overruled by the circuit sitting en banc or by the U.S. Supreme Court. This doctrine presents a recurring dilemma for circuit panels: the applicability of circuit precedent that is undermined by, but not conclusively overruled by, intervening Supreme Court precedent. The circuits have developed disparate approaches to addressing these scenarios: some permit three-judge panels to overrule undermined circuit precedent, others require an en banc proceeding to reject circuit precedent that is not unequivocally overruled by the Supreme Court, and still others have an internal procedure for circuit judges to agree on the proper approach.

This Note explores how federal courts of appeals ought to treat undermined-but-not-overruled circuit precedent. It first rejects the potential argument that horizontal stare decisis in the court of appeals is compelled by the Constitution or by statute. As such, the Note explains how the values of uniformity, institutional legitimacy, accuracy, reliance, and judicial economy are served by the practices of vertical and horizontal stare decisis, and it concludes that those values are better served by following vertical precedent than horizontal. Accordingly, this Note argues that circuit panels should apply a presumption in favor of overruling undermined precedent to align circuit doctrine with recent Supreme Court decisions. Moreover, the Note argues that the strength of this presumption should be tailored to the context of the case. By re-orienting the focus of precedent toward Supreme Court decisions rather than contradicted circuit doctrine, the courts of appeals can bring greater uniformity to the content of federal law, enhance efficiency within the legal system, and better enable the Supreme Court to realize its position atop the judicial hierarchy.

I. Introduction

Recall the classic case of Flood v. Kuhn, where the U.S. Supreme Court had to decide whether the Sherman Antitrust Act applied to professional baseball.¹ 1.407 U.S. 258, 259 (1972).Show More The Court was not writing on a blank slate in Kuhn; fifty years earlier in Federal Baseball Club of Baltimore Inc. v. National League of Professional Baseball Clubs, it held that the Sherman Act did not cover professional baseball.² 2.259 U.S. 200, 209 (1922).Show More But in the meantime, the Supreme Court had interpreted the Sherman Act to reach professional boxing³ 3.United States v. Int’l Boxing Club of N.Y., Inc., 348 U.S. 236, 242 (1955).Show More and football.⁴ 4.Radovich v. Nat’l Football League, 352 U.S. 445, 452 (1957). The Supreme Court had also reaffirmed Federal Baseball Club’s holding in Toolson v. New York Yankees, Inc., 346 U.S. 356 (1953) (per curiam), but that case was decided before International Boxing Club or Radovich.Show More By the time of Flood v. Kuhn, Federal Baseball Club was an outlier, and yet the Court adhered to baseball’s unique exemption from antitrust liability on the grounds of stare decisis.⁵ 5.Kuhn, 407 U.S. at 283–84.Show More

Now let’s put a twist on that story. Imagine that at Time 1, a federal court of appeals, rather than the Supreme Court, decided Federal Baseball Club and held professional baseball to be exempt from the Sherman Act. Subsequently at Time 2, the U.S. Supreme Court held that the Sherman Act was applicable to professional boxing and football. At Time 3, the equivalent of Flood v. Kuhn, challenging the continued viability of Federal Baseball Club, comes before the court of appeals. How should the court proceed in light of the Time 2 Supreme Court decisions that cast doubt on, but do not directly overturn, the appellate court’s Time 1 precedent?

This type of case poses a significant dilemma for stare decisis in the federal courts of appeals. Under the law of the circuit doctrine, circuit precedents are binding on that court unless a majority of active judges in the circuit overturn a decision in an en banc proceeding or the precedent is directly overruled by the Supreme Court.⁶ 6.See, e.g., Lewis v. Humboldt Acquisition Corp., 634 F.3d 879, 881 (6th Cir. 2011) (en banc).Show More But in some circuits, when a Supreme Court decision casts doubt on—without directly overruling—a prior circuit precedent, a panel of court of appeals judges can overrule that precedent and bypass an en banc proceeding.⁷ 7.See, e.g.,United States v. Villareal-Amarillas, 562 F.3d 892, 898 n.4 (8th Cir. 2009).Show More In other circuits, a panel’s authority to overrule circuit precedent under these circumstances is very narrowly circumscribed.⁸ 8.See, e.g.,United States v. Staten, 466 F.3d 708, 717–20 (9th Cir. 2006).Show More This type of situation commonly arises when the Supreme Court interprets a statute that bears some relation to the one addressed by a circuit precedent. The issue also presents itself when the Supreme Court interprets the same constitutional or statutory provision as the circuit precedent but considers different factual subject matter.

The problem of undermined-but-not-overruled circuit precedent is a recurring dilemma for federal courts of appeals.⁹ 9.Andrew C. Michaels, Implicit Overruling and Foreign Lost Profits, 25 B.U. J. Sci. & Tech. L. 408, 409 (2019) (“[H]ow might a court choose between following a directly-on-point circuit panel precedent, versus a subsequent Supreme Court case that is less directly on point but arguably overruled that panel precedent? Despite the fact that federal circuit courts (and district courts) are faced with this question on a regular basis, the answer is not clear.”).Show More The Sixth Circuit, for example, recently faced this dilemma in Jacobs v. Alam.¹⁰ 10.915 F.3d 1028 (6th Cir. 2019).Show More The plaintiff filed a Bivens¹¹ 11.Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971).Show More action against federal law enforcement agents to recover damages for excessive force, false arrest, malicious prosecution, fabrication of evidence, and civil conspiracy.¹² 12.Jacobs, 915 F.3d at 1033.Show More The Sixth Circuit (but not the Supreme Court) had previously recognized Bivens claims for damages in all of those contexts.¹³ 13.See Webb v. United States, 789 F.3d 647, 659–60, 666–72 (6th Cir. 2015) (discussing the merits of Bivens actions for malicious prosecution, false arrest, fabrication of evidence, and civil conspiracy); Burley v. Gagacki, 729 F.3d 610, 621 (6th Cir. 2013) (explaining plaintiff’s burden for an excessive force Bivens action).Show More But after those Sixth Circuit decisions, the Supreme Court decided Ziglar v. Abbasi, which concluded that if a case presents a new Bivens context that is “different in a meaningful way from previous Bivens cases decided by [the Supreme] Court,” then the deciding court should not make a Bivens remedy available if there are “special factors counselling hesitation.”¹⁴ 14.137 S. Ct. 1843, 1857, 1859 (2017) (emphasis added) (quoting Carlson v. Green, 446 U.S. 14, 18 (1980)) (internal quotation marks omitted).Show More The Sixth Circuit panel in Jacobs recognized that had Abbasi not been decided, “defendants’ appeal would have no merit” under circuit precedent.¹⁵ 15.Jacobs, 915 F.3d at 1036.Show More But although Abbasi did not directly overrule those Bivens circuit precedents,¹⁶ 16.AccordLoumiet v. United States, 292 F. Supp. 3d 222, 229 (D.D.C. 2017) (rejecting the theory that “after Abbasi, a district court may no longer rely on circuit court precedent recognizing a Bivens cause of action in a context that has not expressly been recognized (or expressly rejected) by the Supreme Court”).Show More the decision called into question whether they were still good law, or whether the court needed to perform a special factors analysis. Ultimately, the Jacobs panel did not “deem these Sixth Circuit precedents inconsistent with Ziglar [v. Abbasi],” and thus, it concluded that it was bound to follow them without resort to a special factors analysis.¹⁷ 17. Jacobs, 915 F.3d at 1036–39.Show More

The D.C. Circuit, however, took the opposite tack in the context of Bivens claims following Ziglar v. Abbasi. In Loumiet v. United States, the court considered whether to permit a Bivens action for a First Amendment retaliation claim.¹⁸ 18.948 F.3d 376, 378 (D.C. Cir. 2020).Show More Although the D.C. Circuit had previously recognized Bivens claims in this context,¹⁹ 19.See, e.g., Haynesworth v. Miller, 820 F.2d 1245, 1255 (D.C. Cir. 1987) (holding that “retaliatory prosecution constitutes an actionable First Amendment wrong redressable under Bivens” (footnote omitted)).Show More the court held that “those cases have been overtaken by Abbasi’s holding that the new-context analysis may consider only Supreme Court decisions approving Bivens actions.”²⁰ 20.Loumiet, 948 F.3d at 382.Show More Instead, the D.C. Circuit panel performed a special factors analysis and held that a Bivens remedy was not available for First Amendment retaliation, despite the fact that its own circuit precedents supported a contrary decision.²¹ 21.Id.at 382–86; accordVanderklok v. United States, 868 F.3d 189, 198–99 (3d Cir. 2017) (concluding that “[the circuit’s own] past pronouncements are thus not controlling” in the context of Bivens claims that had not been addressed by the Supreme Court).Show More

While the problem of undermined circuit precedent is frequently presented, the circuits have not developed a sufficiently nuanced framework for handling these challenging cases. The courts of appeals take disparate approaches in addressing these situations, and notably, no circuit tailors its approach to the specific legal context presented by the case.

In light of the motivations behind vertical and horizontal stare decisis, this Note argues that circuit court panels ought to apply a general presumption in favor of overruling an undermined circuit precedent. Importantly, however, special circumstances justify a stronger or weaker application of this general rule. This Note proceeds in four parts. Part II examines how the federal courts of appeals have handled latent conflicts between on-point circuit precedents and intervening Supreme Court cases that undermine those decisions. Part III explores the practice of stare decisis in the American judiciary. It explains the potential constitutional, statutory, and pragmatic sources of vertical and horizontal precedent at the court of appeals level. Part IV proposes an approach for how courts of appeals ought to handle these conflicts grounded in the justifications behind vertical and horizontal stare decisis. Part V concludes.

1. * J.D., University of Virginia School of Law, 2020. Winner of the Roger and Madeleine Traynor Prize. Special thanks are first owed to my advisor Caleb Nelson, who provided invaluable commentary and direction throughout this project. I would also like to thank those whose feedback further refined the paper, including Hanaa Khan, Jackson Myers, Jonah Panikar, and the rest of the Virginia Law Review’s hard-working staff. Final and most important thanks are owed to my wife, Allyson Dickman, whose editorial assistance and constant encouragement made this Note possible. ↑

2. 407 U.S. 258, 259 (1972). ↑

3. 259 U.S. 200, 209 (1922). ↑

4. United States v. Int’l Boxing Club of N.Y., Inc., 348 U.S. 236, 242 (1955). ↑

5. Radovich v. Nat’l Football League, 352 U.S. 445, 452 (1957). The Supreme Court had also reaffirmed Federal Baseball Club’s holding in Toolson v. New York Yankees, Inc., 346 U.S. 356 (1953) (per curiam), but that case was decided before International Boxing Club or Radovich. ↑

6. Kuhn, 407 U.S. at 283–84. ↑

7. See, e.g., Lewis v. Humboldt Acquisition Corp., 634 F.3d 879, 881 (6th Cir. 2011) (en banc). ↑

8. See, e.g., United States v. Villareal-Amarillas, 562 F.3d 892, 898 n.4 (8th Cir. 2009). ↑

9. See, e.g., United States v. Staten, 466 F.3d 708, 717–20 (9th Cir. 2006). ↑

10. Andrew C. Michaels, Implicit Overruling and Foreign Lost Profits, 25 B.U. J. Sci. & Tech. L. 408, 409 (2019) (“[H]ow might a court choose between following a directly-on-point circuit panel precedent, versus a subsequent Supreme Court case that is less directly on point but arguably overruled that panel precedent? Despite the fact that federal circuit courts (and district courts) are faced with this question on a regular basis, the answer is not clear.”). ↑

11. 915 F.3d 1028 (6th Cir. 2019). ↑

12. Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971). ↑

13. Jacobs, 915 F.3d at 1033. ↑

14. See Webb v. United States, 789 F.3d 647, 659–60, 666–72 (6th Cir. 2015) (discussing the merits of Bivens actions for malicious prosecution, false arrest, fabrication of evidence, and civil conspiracy); Burley v. Gagacki, 729 F.3d 610, 621 (6th Cir. 2013) (explaining plaintiff’s burden for an excessive force Bivens action). ↑

15. 137 S. Ct. 1843, 1857, 1859 (2017) (emphasis added) (quoting Carlson v. Green, 446 U.S. 14, 18 (1980)) (internal quotation marks omitted). ↑

16. Jacobs, 915 F.3d at 1036. ↑

17. Accord Loumiet v. United States, 292 F. Supp. 3d 222, 229 (D.D.C. 2017) (rejecting the theory that “after Abbasi, a district court may no longer rely on circuit court precedent recognizing a Bivens cause of action in a context that has not expressly been recognized (or expressly rejected) by the Supreme Court”). ↑

18. Jacobs, 915 F.3d at 1036–39. ↑

19. 948 F.3d 376, 378 (D.C. Cir. 2020). ↑

20. See, e.g., Haynesworth v. Miller, 820 F.2d 1245, 1255 (D.C. Cir. 1987) (holding that “retaliatory prosecution constitutes an actionable First Amendment wrong redressable under Bivens” (footnote omitted)). ↑

21. Loumiet, 948 F.3d at 382. ↑

22. Id. at 382–86; accord Vanderklok v. United States, 868 F.3d 189, 198–99 (3d Cir. 2017) (concluding that “[the circuit’s own] past pronouncements are thus not controlling” in the context of Bivens claims that had not been addressed by the Supreme Court). ↑