There’s recently been a lot of discussion about Kosilek v. Spencer, a 3-2 en banc First Circuit decision by Judge Torruella on whether a prisoner has an Eighth Amendment right to sex reassignment surgery. Understandably enough, most of the discussion has focused on the merits of this dispute and on a dissenting judge’s remarkable suggestion that the majority had responded to “[p]rejudice and fear.” According to Judge Thompson’s dissent, the majority opinion will “ultimately be[] shelved with the likes of Plessy v. Ferguson[,] deeming constitutional state laws requiring racial segregation, and Korematsu v. United States[,] finding constitutional the internment of Japanese- Americans in camps during World War II.”
In this post, I will entirely bracket the merits–important as they are–and focus instead on a procedural issue that actually leads off Judge Thompson’s dissent. In short, the dissent doubted that there was any proper basis for the en banc court to hear the case. That position rested partly on the claim that the case, though “not … unimportant,” was also not of “exceptional importance.” The dissent further argued that en banc review is inappropriate if based on the belief that a panel decided a case incorrectly. To my mind, Judge Thompson is on stronger ground when she insists on a principled explanation of the grounds for en banc review. By contrast, her understanding of those grounds seems unduly limited. In this respect, Judge Thompson’s position offers an interesting point of comparison to Supreme Court practice.
Here is the relevant discussion from Judge Thompson’s Kosilek dissent (with some cites omitted and a paragraph break added):
The criteria for en banc relief are clear: it is not a favored form of relief, and ordinarily should not be ordered unless “(1) en banc consideration is necessary to secure or maintain uniformity of the court’s decisions; or (2) the proceeding involves a question of exceptional importance.” Fed. R. App. P. 35(a).
My colleagues’ reasons for granting en banc review are not articulated, but it seems clear that the maintenance of uniformity piece is not in play. Therefore I can only assume they perceive an issue of exceptional importance. This justification is problematic.
As my colleague has explained in a series of thoughtful dissents, in this circuit there has been what some might see “as the recurring unprincipled denial and granting of petitions for rehearing en banc, without any attempt to define and apply a set of objective criteria to determine when a case is of exceptional importance.” [Cites to opinions by Judge Torruella] I am at a loss to see what objective criteria warranted review in this case.
While the relief ordered by the district court, and affirmed by a majority of the original panel, was unprecedented, Kosilek’s case is not a legally complicated one. Rather it is a fact-intensive dispute, which required the original panel to determine whether the district court’s take on the significant amount of evidence, and its ultimate holding as to the existence of an Eighth Amendment violation, was erroneous. I fail to see what in this framework made this case worthy of en banc review.
I am not implying this case is unimportant. This litigation is significant to Kosilek, the DOC, and many others, and the rights afforded under the Eighth Amendment are crucial. But if those things alone were enough, nearly every case would attract the full court’s attention. And a good deal more cases would be heard en banc if disagreeing with the result reached by the original panel, or simply desiring to weigh in, were valid grounds for awarding en banc review. They are not, but unfortunately I suspect they were the grounds that carried the day here. See, e.g., Kolbe, 738 F.3d at 474 (Torruella, J., dissenting) (“En banc consideration is not for the purpose of correcting panel decisions.”) (citing Calderón v. Thompson, 523 U.S. 538, 569 (1998) (Souter, J., dissenting)).
The basic structure of the argument is this:
- FRAP 35(a) dictates that en banc review is “ordinarily” appropriate only to preserve uniformity or to resolve matters “of exceptional importance.”
- There is no uniformity problem, and the case, though “significant” to the parties and “many others,” was no more important than many other cases.
- Disagreement with the panel doesn’t justify en banc, in part because that would trigger too much en banc review.
- Having eliminated all legitimate reasons for en banc, we know that en banc here is illegitimate.
The dissent’s argument about “exceptional importance” seems unstable, since the dissent clearly thinks that the case is very important indeed. As noted, the dissent goes so far as to assert that the case should be placed in the same category as Plessy and Korematsu. Those cases aren’t just bad. They are also bad in a way that is exceptionally important.
Perhaps the dissent thinks that the importance of the case stems primarily from its value as a means of protecting minority-group rights. If so, then the case would be important only insofar as it should be resolved in the direction of the Eighth Amendment claim. So whereas a panel decision ruling against the Eighth Amendment claim would call to mind Plessy and Korematsu and create a case of “exceptional importance” warranting en banc, the actual panel decision–in favor of the Eighth Amendment claim–was relatively unimportant. However, that kind of outcome-oriented approach seems to be precisely what Judge Thompson is lamenting. In short, the dissent is unclear about how a case can be important, but not exceptionally so.
The more interesting issue is whether Judge Thompson is correct that en banc is inappropriate when based on “disagree[ment] with the result reached by the original panel.” At first blush, Judge Thompson seems to be on solid ground. If mere disagreement were enough, that would indeed mean that “nearly every case would attract the full court’s attention.”
But what if a panel decision were obviously wrong–something, one hopes, that is fairly rare? That possibility isn’t ruled out by FRAP 35(a), which speaks only of what is ordinarily appropriate for en banc. Moreover, that approach would have pragmatic appeal. When a panel makes a tough call, the mere possibility or suspicion of error might not justify the costs of sorting through the merits via en banc review. Only major stakes or disuniformity could then provide the extra justification for en banc. But if a panel issued a decision that is wrong on its face, then why not just reverse it en banc? Writing the en banc opinion shouldn’t take too much effort, and the legal system would avoid the normal costs associated with bad precedent. So long as judges can reliably and quickly identify obvious errors, en banc review for obvious error would seem sensible.
If it makes sense to go en banc to correct obvious error, why doesn’t FRAP 35(a) say that? Perhaps because such a rule would introduce an unfortunate element of disrespect into the en banc process. It is unpleasant enough to write a panel decision that gets rejected en banc. It would be all the more unpleasant if a majority of your colleagues expressly do so because they think you really badly missed the boat. This kind of thing isn’t good for collegiality and might even deter courts from going en banc.
But do these points justify silent application of an “obvious error” rule? I don’t think so. Most importantly, transparency is an important value in itself. And even if we should worry about judges’ hurt feelings, there is likely a collegiality benefit to hewing to the FRAp 35(a) criteria in deed and not just in word. Perhaps that point is implicit in Judge Thompson’s argument: by declining to explain why it chose to go en banc, the majority hasn’t even done the dissenters–or the public–the courtesy of being candid.
It’s interesting to compare FRAP 35(a) with Supreme Court Rule 10, which establishes guidelines for certiorari. Rule 10 famously provides that cert is appropriate when there is a circuit split or when there has been an “important” decision. Those points roughly track Rule 10’s counterpart in the FRAP. But Rule 10 also provides that cert “is rarely granted when the asserted error consists of erroneous factual findings or the misapplication of a properly stated rule of law.” In saying that error correction is rare, Rule 10 concedes that it happens. And of course it does, including via summary reversals.
Moreover, the Supreme Court is fairly candid about granting cert in order to correct what it views as an obvious legal error. Indeed, the Court sometimes seems to engage in this kind of error correction specifically in order to dress down or otherwise get the attention of wayward circuits. As a superior court, the Supreme Court has greater freedom to do this kind of thing. A similar attitude might be badly out of place within a circuit court.
Finally, the FRAP 35(a) and Rule 10 issues can intersect, for it’s possible to think that the likelihood of Supreme Court review (including by summary reversal) might affect the propriety of going en banc. Interestingly, it’s unclear which way this factor cuts. One of the efficiency gains of going en banc to correct obvious errors is that doing so spares the parties and Supreme Court the trouble of cert (perhaps after a split develops) or summary reversal. In other words, why pass the buck? But it’s also possible to think that the Supreme Court is uniquely equipped to clean up obvious panel errors, particularly given the above-noted collegiality concerns associated with resolving horizontal disagreements via en banc review.
A few years ago, Judge Sutton took the latter position in a noted concurrence in the denial of en banc in a habeas case. Interestingly, Judge Sutton presented himself as doing pretty much exactly what Judge Thompson said should happen more often: he thought a panel decision was pretty clearly wrong, but decided to leave the decision where it was. As he put it: “Sometimes there is nothing wrong with letting the United States Supreme Court decide whether a decision is correct and, if not, whether it is worthy of correction.” The Supreme Court obliged. In AEDPA cases, at least, it seems that the Supreme Court has assumed the role of Error Corrector in Chief: the buck stops there.
To repeat, I am not taking any position on whether Judge Thompson was right or wrong on the merits. Nor do I know why the en banc First Circuit decided to hear Kosilek. But Judge Thompson herself suggested that en banc review improperly occurred because the en banc majority “disagree[d]” with her panel opinion. And Judge Thompson also insisted on greater transparency into the reasons for granting en banc review. To my mind, Judge Thompson is on stronger ground with respect to the second point.
Re’s Judicata 