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Friday, July 01, 2011

The Strange GVR in Beers v. United States

Thanks to Dan for inviting me back.  Since we just concluded the Supreme Court term, let me start by noting a very interesting order that came down on the last day, which does not seem to have gotten much attention in the blogsphere.

Beers v. United States was a much-watched case on whether Congress's failure to give promised pay raises violates the Constitution's protection for judicial renumeration.  The case sat on the Court's docket for the whole year, and the court summarily vacated and remanded on the last day.  The contents of the vacatur, however, is quite strange, at least to me.

A bit of background is in order.  In a previous case called Williams, a group of federal judges filed a class action seeking a pay raise.  The Court of Appeals for the Federal Circuit held that failure to give a promised pay raise does not violate the Compensation Clause.  In Beers, a new group of federal judges filed a new suit making the exact same argument.  In response, the DOJ made two counter-arguments: (1) the new plaintiffs were part of the class in Williams, and thus barred by res judicata; and (2) even if they are not barred, they lose on the merits.  The Federal Circuit held that the plaintiffs lost on the merits, citing Williams for its stare decisis value (and not as res judicata).  Because the plaintiffs would surely lose on the merits anyway, the Federal Circuit did not decide whether they were barred under res judicata.

The Supreme Court’s GVR now requires the Federal Circuit to decide the res judicata argument, because “[t]he Court considers it important that there be a decision on the question.”  Justice Scalia dissented from the order, arguing that this is similar to the previous GVR in Youngblood v. West Virginia, 547 U.S. 867 (2006) (from which Scalia also dissented).  But Beers goes far further than Youngblood.

 In Youngblood, the West Virginia Supreme Court faced a Brady claim for suppression of evidence, but summarily rejected it.  The Supreme Court sent it back for a fuller opinion.  Justice Scalia dissented from this, arguing that the GVR was really a not-so-subtle hint for the WV court to reverse itself.  But at least in Youngblood, we can understand the remand as a de facto reversal: if the WV court on reconsideration held there was a valid Brady claim, it would change the outcome.

Beers is different.  The Supreme Court sends it back so the Federal Circuit can consider the res judicata argument.  But if the Federal Circuit holds that the plaintiffs are barred under res judicata, the outcome is the same: the plaintiffs now lose on res judicata and on the merits.  And if the Federal Circuit holds that the plaintiffs are not barred under res judicata, the outcome is the same: the plaintiffs lose on the merits as before.  In other words, it seems that the Supreme Court has ordered the Federal Circuit to write an advisory opinion.

Posted by Tun-Jen Chiang on July 1, 2011 at 10:37 AM | Permalink


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renumeration? Remuneration?

Posted by: David Lockwood | Jul 5, 2011 8:48:10 AM

I think it is a matter of degree. Right now, the case isn't the most attractive candidate for review because (1) the Court would not want to decide the preclusion question itself in the first instance without a decision on it below (this doesn't go to raw power, just ordinary practice) and yet (2) it would be awkward to decide the constitutional question alone when there is a facially plausible non-constitutional ground for decision.

I agree that the problems don't totally disappear after the remand, but the situation would be improved. If the Federal Circuit says there is preclusion, then some Justices might no longer be interested in granting. If the Federal Circuit says there is no preclusion and affirms the dismissal on the basis of Williams, then I think the Court would feel better about deciding the constitutional question alone. Or, if it still addressed preclusion, at least there would be a decision on that to review.

At least that is how it would seem to me. Of course, I'm not inside the conference room.

Posted by: Aaron Bruhl | Jul 1, 2011 7:40:50 PM

Aaron, I can see how the ruling below was inconvienent, but then again I also kind of can't. Yes the possible preclusion ground would cause lingering vehicle problems. But it will cause lingering vehicle problems even if the Federal Circuit holds there is no preclusion. What will happen is that the Federal Circuit will rule for the government on the merits, the petitioners will petition for cert, and the DOJ will argue that the case is not certworthy because the Federal Circuit got the preclusion issue wrong and this is an independent ground for affirmance that makes the case a bad vehicle to decide the merits issue.

Posted by: TJ | Jul 1, 2011 12:57:24 PM

I'm glad you posted on this. The Beers GVR has been bothering me too. I agree that it goes beyond Youngblood (and other unusual GVRs, see discussion here: http://prawfsblawg.blogs.com/prawfsblawg/2010/02/controversial-gvrs-and-the-degradation-of-the-gvr.html).

Generally speaking, a court can choose among grounds on which to dispose of a case, and it need not reach additional grounds that would only further support the same outcome. (Indeed, some might say it is good practice not to reach all the grounds.) The Federal Circuit evidently thought that using the Williams precedent was the easiest way to affirm, and there was nothing wrong with that choice.

I can see how the ruling below was inconvenient for the Supreme Court, in that the possible preclusion ground would cause lingering vehicle problems if the Court wanted to decide the constitutional question. But I do find it a bit odd that the Court would actually require the lower court to reach another ground of decision, which could not possibly change the judgment, just in order to facilitate its own review.

Posted by: Aaron Bruhl | Jul 1, 2011 12:17:35 PM

Bobo, either I am misunderstanding you or you are misunderstanding me. First, a quibble. If the judges lose on res judicata, there is no need to reach the merits, but there is no bar to it, either. Claim preclusion is not jurisdictional.

But the more important point is the "assuming this ruling is correct" part. The Supreme Court does not "assume" lower court rulings are correct. However the Federal Circuit decides the res judicata issue, the Supreme Court will, and must, decide it de novo. For those Justices wanting to hear the case on the merits, kicking the res judicata issue to the Federal Circuit first will not help them avoid the issue in the future.

But my most important point is that in the Federal Circuit this is a pure advisory opinion. Nothing the Federal Circuit writes about the res judicata issue can possibly change their judgment. And it is axiomatic that appellate courts review judgments, not opinions.

Posted by: TJ | Jul 1, 2011 12:05:32 PM

When lower courts rule on alternative grounds, each of which is sufficient, it doesn't make the different grounds advisory. So the Supreme Court is not asking for an advisory opinion.

If the judges lose on claim-preclusion (res judicata) grounds, then — assuming that this ruling is correct — the Supreme Court couldn't get to the merits.

But if the judges lose on the merits, and not on claim-preclusion grounds, then the Supreme Court can rule on the merits and will have the opportunity to reconsider Williams.

My guess is that some justices want to hear the case on the merits, and they need the claim-preclusion argument taken care of first.

Posted by: Bobo Linq | Jul 1, 2011 11:44:13 AM

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