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Monday, May 05, 2014

Why not plenary review?

SCOTUS on MOnday GVR'd Tolan v. Cotton with a per curiam opinion (beginning on p. 13) holding that the lower courts failed to view the facts in the light most favorable to the plaintiff in granting the § 1983 defendant summary judgment (the case involved a police shooting). The analysis illustrates how a court should draw inferences in the non-movant's favor, identifying four or five facts and why the presence of contradictory evidence puts those facts in dispute. And the Court avoids the slicing-and-dicing of facts as in so many summary judgment cases. (The opinion could be a nice supplemental case for teaching summary judgment, showing how a court finds or does not find factual disputes).

But why did the Court GVR, rather than performing plenary review of the case and producing a precedential opinion? We certainly could use a precedential case from SCOTUS showing that sometimes there are factual disputes and summary judgment is not appropriate (especially given how Plumhoff v. Rickard likely will come out). Yes, the factual disputes were fairly obvious from the record, although probably not more so than in other cases. Moreover, most GVRs are done to give the lower court an opportunity to reconsider the case in light of new law or a recent decision, rather than, as here, to reconsider the decision because the lower court did it wrong the first time. The Court did produce a per curiam opinio analyzing the merits (unusual in GVRs), which should have some precedential effect. But it seems an odd approach.

Justice Alito, joined by Justice Scalia, concurred in the judgment (p. 24 of Monday's Order List). They argued that it was inappropriate to grant cert. (although they agreed with disposition of the case once cert. was granted), which only involved the routine consideration of the sufficiency of the record on summary judgment and possible factual error--routine work for courts of appeals, but not for SCOTUS.

Interestingly, Alito, joined by Scalia, cited his concurring opinion from Tolan in dissenting from denial of cert. in Beard v. Aguilar (p. 26 of Monday's Order List), a habeas case in which the Ninth Circuit found that the California Supreme Court had unreasonably Brady to the facts of the case. The point, I guess, is that if the Court is going do error correction in Tolan, it also should have done so there.

Posted by Howard Wasserman on May 5, 2014 at 04:26 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman | Permalink


I don't know what you mean by "rules on granting cert," but if you mean there has to be a split, etc., the answer is no. Generally the Court "holds" all cases that present the same or a closely related issue as a granted case, and then when the opinion comes down, the Court will GVR any cases that might have come out differently (very broadly speaking, erring on the side of GVR) had the lower court had the benefit of the Court's opinion. Also, any case decided in the Court of Appeals before the new SCt op, but for which a petition was filed/considered after, is likely to get a GVR based on the same standard.

Posted by: anon | May 7, 2014 7:43:06 PM

Does anybody know whether a true "GVR" is governed by the rules on granting cert? Or does the Court use a GVR when it simply recognizes a pending petition would come out differently in light of a recent decision?

Posted by: Brad | May 7, 2014 12:13:33 PM

Just to chime in on the procedure:

anon is correct that this is a summary reversal, not a GVR. A GVR is when the Court grants the petition, vacates the decision below, and remands for further consideration in light of X, where X is usually a recently decided Supreme Court case. It can also be a confession of error or other position taken by the Solicitor General, but is almost always a recently decided case.

So, for instance, on Monday's orders list, Kobe Properties Sarl v. Checkpoint Systems, Inc. was a GVR. The Court granted the petition, vacated the Federal Circuit's decision, and remanded for further consideration in light of Octane and Highmark, the two patent fee decisions.

A summary reversal, by contrast, is a decision on the merits reversing the decision below without accepting full merits briefing. That was Tolan v. Cotton.

Posted by: SM | May 6, 2014 12:58:34 PM

A GVR is supposed to have no precedential effect. A summary reversal does have precedential effect. Is the precedential effect less? I think it is actually a bit tricky. In the long term, the Supreme Court itself treats summary decisions as having less weight. Hohn v. United States, 524 U.S. 236 (1998), so courts of appeals are likely to follow suit. But in the short term, a summary reversal actually has more bite: it is perceived as a slap in the face to the lower court--the message is that they got it so wrong that full briefing is not necessary and the reversal is 9-0 (or similar lopsided margin). In all events a summary decision is both "plenary" (as in the Court assumes full power over the case and can decide whatever it wants, including affirming) and precedential.

Posted by: TJ | May 6, 2014 12:41:15 PM

Just to clarify: I was using "non-precedential" very loosely and not in the way the courts of appeals do it, where the opinion expressly is without precedential effect. I more meant that a GVR and even a per curiam opinion are going to carry less weight with lower courts than a signed opinion issued after full briefing and argument.

Posted by: Howard Wasserman | May 5, 2014 10:18:20 PM

I’ve never understood the Supreme Court to do nonprecedential opinions, except in occasional weird instances like Bush v. Gore’s disclaimer of broader applicability. Is that wrong? Is there some doctrine rendering this opinion less binding on lower courts?

Posted by: Roger | May 5, 2014 8:33:53 PM

No, this is the standard practice: hold the petition over at the cert stage until the opinion is ready, then issue the per curiam at the back of the orders list.

It is a "GVR" in the sense that the Court did those three things (grant, vacate, and remand). Maybe others would disagree with me on this, but I am quite familiar with the Court's procedures, etc.

Posted by: anon | May 5, 2014 5:34:26 PM

As to (1)--don't most summary reversals come from the Court granting cert., at least holding full briefing (if not argument), then reversing? It struck me as unusual for the Court to vacate at the same time it granted cert. Perhaps not. BNA categorized this as a GVR, so perhaps I was wrong to rely on that.

Posted by: Howard Wasserman | May 5, 2014 5:25:09 PM

(1) GVR is a term of art, and this is not a GVR. It's a SUMREV, i.e., summary reversal.

(2) Per curiam opinions are precedential. Nothing is binding on the Court, but maybe they are a little bit less binding.

(3) A SUMREV usually comes where the Court sees an obvious error but not an important case in terms of clarifying the law (typically, no split).

Posted by: anon | May 5, 2014 4:52:24 PM

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