No. 99–8119. Saldano v. Texas. Ct. Crim. App. Tex. Motion
of petitioner for leave to proceed in forma pauperis granted.
General of Texas.
Attorney General John Cornyn conceded to the Court that “[b]ecause the use of race in Saldano’s sentencing seriously un- dermined the fairness, integrity or public reputation of the judicial process, Texas confesses error and agrees that Saldano is entitled to a new sentencing hearing.” 4 Then-Governor George W. Bush praised his Attorney General’s confession of error as “an indica- tion that there are safeguards in the system.”
Return to Sender: Finding Fault with the Court’s No-Fault GVR Practice In “Confession of Error” Cases
“She speaks, yet she says nothing. What of that?”
- William Shakespeare, Romeo and Juliet act 2, sc. 2.
Introduction
When considering the ability of this nation’s highest court to control its docket, the first procedure to leap to mind is most likely the Writ of Certiorari. By denying certiorari review, the Court promptly removes a case from its docket without ever speaking on the issues it presents. However, while it might be the most familiar, denying cert is not the only method available to the Court for prompt disposal of appeals. One of the less familiar, though prevalent methods is the “GVR,” which is an acronym for a procedure whereby the Court grants certiorari, vacates the judgment below, and remands the case for further consideration in light of developments during the pendency of the appeal. The modern GVR is a remand without a finding of error by the Court, and it commonly takes place before the merits are fully briefed to the Court. As a result of these characteristics, even though the Court has spoken about the underlying case when it uses the GVR, exactly what has been said about the merits (if anything) is often unclear.
Because of its peculiar nature, the GVR has been the subject of both criticism and praise. Those who support the procedure note its capacity for conserving judicial resources, flagging issues for review on remand, procuring the insight of the lower court on an issue before it is ruled on definitively, and correcting error in a way that preserves fairness among similarly-situated litigants. In some cases, the GVR helps to preserve the assumptions and principles attendant to federalism and the appellate review system. However, critics note that the GVR can create confusion and uncertainty on remand and that it is susceptible to abuse. The criticism has been especially strong with regard to GVR’s issued in response to a “confession of error” by the party prevailing below—most frequently the Solicitor General of the United States. In such cases, the potential for manipulation seems especially pronounced. By accepting the Solicitor General’s confession without any inquiry into the merits, the Court risks blurring the separation of powers between the judiciary and executive, potentially abdicating its responsibilities to clarify the meaning of unclear laws. However, the Court continues to view this as an appropriate use of its GVR authority.
While it is fair to say that the GVR is a useful (and perhaps) necessary part of the Court’s docket management arsenal in most cases, its use in response to confessions of error by the Solicitor General should be reconsidered in cases where there is a circuit split as to the “error” confessed. In these cases, the Supreme Court’s use of the GVR mechanism, based on a change in legal position by the government, neither serves judicial efficiency nor assures consistent application and interpretation of the law. Instead, it leads to legal uncertainty, circuitous litigation, and an erosion of the traditional respect afforded to lower court decisions. Part I of this note will discuss the advent of the modern no-fault GVR, and by drawing distinctions among its different applications, will draw out the differences of opinion within the Court as to its proper use. These differences tend to focus on GVR’s for “confession of error,” which remains the most controversial application of the procedure. Part II will look at how the GVR is being employed by the modern Court and its impact on the legal landscape, with an emphasis on the error-correcting capacity of the GVR. Part III will turn to the other benefits commonly associated with the GVR: conservation of judicial resources and proper delegation of information-gathering responsibilities. Taken together, these benefits paint a positive portrait of the GVR. However, Part IV describes how the “confession of error” GVR may lead to undesirable results where there is a circuit split regarding the error confessed. Therefore, Part V discusses the potential alternatives available to the Court for dealing with these cases.
I. The No-Fault GVR: “Intervening Events” and “Confessions of Error”
It is difficult to appreciate the unique difficulties posed by the Court’s piecemeal embrace of the no-fault, “confession of error” GVR without first understanding its relation to the GVR power more generally.
The modern court finds the authority for its GVR power at 28 U.S.C. § 2106, which provides that the Court “may affirm, modify, vacate, set aside or reverse any judgment, decree, or order of a court lawfully brought before it for review, and may remand the cause and . . . require such further proceedings to be had as may be just under the circumstances.” Notwithstanding notable dissenting views among the justices, which will be discussed in greater detail below, a majority of the Court appears to recognize no limitation on its GVR authority beyond the broad phrasing of this statute. Thus, it is no surprise that the Court has used the GVR to remand in a variety of contexts. Indeed, the practice appears alive and well, and it shows little sign of ceasing in the future. As the Court quite accurately states, what is perhaps most striking about the Court’s GVR practice is the “substantial level of agreement shared by all Members of [the] Court” that it is a proper case management method in many instances.
However, this generally harmonious view can obscure important points of contention regarding the appropriateness of GVR orders in certain limited contexts. To understand this divide within the Court, it is helpful to categorize the potential GVR formulations available to the Court. One aspect of this division relates to whether the Court should issue a GVR without some investigation into the merits of the underlying case. The other deals with whether a confession of error (especially without any investigation of the underlying merits) is an appropriate grounds for GVR, as opposed to the more common and less controversial application of the GVR to address intervening legal developments during the appeal. Together, the use of the “no-fault” GVR mechanism to respond to confessions of error by the Solicitor General has been a topic of concern for some on the Court, as opposed to the more mundane “intervening events” GVR.
A. The “Intervening Events” GVR
In the case of the “intervening events” GVR, some legal development occurs while the case is on appeal that casts doubt on the decision below. This can happen in any number of ways, from a changed administrative interpretation to the enactment of a new statute during the pendency of the appeal. However, the typical case deals with intervening judicial precedent (often the Court’s own) that calls into question the result or reasoning below. This is clearly illustrated by the Court’s opinions in Henry v. City of Rock Hill.
In Henry, which involved the rights of anti-segregation protesters, the South Carolina Supreme Court entered judgment against the protesters in December of 1962. In response to the protesters’ Petition for certiorari review, the United States Supreme Court issued a GVR in October of 1963, returning the case to the South Carolina courts “for further consideration in light of [the Court’s intervening opinion in] Edwards v. South Carolina.” The Court decided Edwards two months after the state supreme court’s ruling in Henry. Thus, by using the GVR, the Court gave the South Carolina court system the first opportunity to determine the effect of the Edwards case on their decision in Henry.
The Court widely employs the “intervening events” GVR in cases like Henry, where an intervening legal development calls into question the decision below, and such GVR’s are rarely the subject of controversy. From 2001 to 2003, the Court issued over 160 GVR’s, and all but three of these were based on intervening Supreme Court precedent. The prevalence of such GVR’s can be explained in part by the Court’s practice of “hold[ing] cases that involve the same issue as a case on which certiorari has been granted and plenary review is being conducted” for a large-scale GVR once the Court has decided the analogous case. While this practice sometimes yields surprising results, both in terms of the Court’s disposition of the held cases and in terms of the result on remand, a relatively liberal standard for granting GVR’s in this context virtually assures that the procedure will continue.
B. The “Confession of Error” GVR and the Lack of Fault
The less common form of GVR is based upon a confession of error by the Solicitor General in cases where the government prevailed below. It is this form of GVR that has sparked much of the recent debate within the Court.
1. Mechanics of the “Confession of Error” GVR
Because the “confession of error” GVR tends to arise in highly technical and fact-specific contexts, there is no single, prototypical case that can be used as an example. Instead, the following explanation outlines the general process by which the “confession of error” GVR comes to the Court’s attention.
In general, this type of GVR arises where the government has prevailed below on a particular legal theory (A), leading to a particular outcome (X). The losing party files its Petition for Writ of Certiorari with the Supreme Court, and the Solicitor General’s office begins a response to the Petition. It is during this process, presumably, that the Solicitor concludes that the court below has erred in its decision. In such cases, the Solicitor can include a “confession of error” in the response that it submits to the Court, requesting either a GVR or a denial of the Petition. Commonly, GVR is requested if the error goes to the ultimate outcome of the case (i.e. the court should have come to outcome Y instead of X), while the Solicitor will commonly request denial of certiorari if it believes that the error goes only to the theory used below, but not to the ultimate outcome (i.e. the court could have relied on theory B instead of theory A to get to outcome X). The Supreme Court has issued GVR’s in response to both types of requests in the past; it is less clear, however, how frequently they have denied certiorari instead.
2. The “Fault” Problem
Obviously, there is no inherent problem with the Solicitor General confessing error in cases where the government prevailed on a faulty legal theory—if anything, this seems like a practice that the Court would welcome. In fact, the controversy within the Court is less about the Solicitor’s practice of confessing error than it is about the Court’s practice of GVR’ing cases in response to such confessions with, at most, a cursory review of the underlying facts and without any determination on the underlying merits.
It is relatively clear that the modern, no-fault GVR “does not amount to a final determination on the merits.” Instead, it reflects the Court’s appraisal that there is a “reasonable probability that the decision below rests upon a premise that the lower court would reject if given the opportunity for further consideration.” One way that this probability may come to the Court’s attention is through “plausible confessions of error.” If the Court believes that reconsideration “may determine the ultimate outcome of the litigation,” and if “the equities of the case” do not weigh against it, then a GVR order is “potentially appropriate.”
This unique precedential status (or, more accurately, lack thereof) is at the core of the modern debate over the Court’s GVR practice. The history of the GVR reveals that its “no-fault” nature was not recognized in the first half of the twentieth century. Instead, such remand orders resulted from at least summary consideration of the merits, which the justices felt compelled to undertake as part of their duties. Even with the advent of the no-fault GVR, members of the Court expressed differing opinions about the precedential value of such dispositions. Because this “no-fault” concept has not always been a part of the Court’s GVR practice, history does not provide a settled tradition for determining the appropriate use of the GVR or the appropriate response on remand.
This uncertainty leaves room for debate as to several ills that may arise from overuse of the GVR in response to confessions of error by the Solicitor General. In particular, this use of the GVR raises “separation of powers” concerns as well as questions regarding the Court’s proper role in clarifying the law and correcting error. There are some more pragmatic concerns as well, relating to the potential for abuse that inheres in the “confession of error” GVR, which may enable the Solicitor General to strategically manipulate the Court’s docket. That is, by confessing error and prompting the Court to employ its GVR power, the Solicitor General may postpone a potentially adverse and definitive statement of law on the matter, preserving the government’s freedom of action in future cases. Further still, where the Solicitor General confesses error but then insists that the result below can stand notwithstanding the error, the government might not only avoid a definitive ruling by the Court—it might preserve the favorable outcome below as well.
By looking at how the Court has employed this power, and how the lower courts have responded on remand, it is clear that the GVR frequently serves its purpose as a mechanism for judicial efficiency and error correction. However, several glaring exceptions nonetheless suggest that more should be done to limit the use of the practice in cases involving circuit splits.
II. The Error-Correcting Function of “Confession of Error” GVR’s
The aims of the GVR, drawn from the Court’s own pronouncements and from the arguments of commentators, include correcting error, conserving judicial resources, obtaining information from the lower courts, and assuring equal treatment of litigants. Unsurprisingly, where the Court GVR’s a case in response to a confession of error, correcting that error is likely the most important goal in the Court’s decision. As such, it is also the most important factor to consider in assessing whether such GVR’s are justified—that is, do “confession of error” GVR’s actually correct the lower court errors that they are intended to correct?
A. Defining Changes in the “Ultimate Outcome” on Remand
From its own statements, we know that the Court is expressing its opinion about the probability of a different result on remand when it exercises its GVR power. Under the Court’s stated GVR standard, GVR’s are proper “where it appears that a . . . redetermination may determine the ultimate outcome of the litigation.” Unfortunately, even this apparently simple measure requires further refinement to determine what types of changes qualify as changes in the “ultimate outcome” on remand. To use the terminology from the preceding section, the Court’s concept of a change in the “ultimate outcome” could be limited to those situations where the lower court reaches outcome Y on remand instead of outcome X. This definition would exclude those situations where the lower court on remand reaches the same outcome (X) as it did in the vacated case, but does so by relying upon theory B instead of theory A.
A concrete example can help to clarify this definitional problem. In the 2005 case of Rosales v. Bureau of Immigration and Customs Enforcement, the Solicitor General confessed error in the case below, but nevertheless defended the result. Adrian Rosales, while serving a sentence in Texas on kidnapping charges, faced INS removal proceedings and ultimately a removal order. After some intervening proceedings, Rosales filed a petition for a writ of habeas corpus, claiming that his due process rights were violated by the Immigration Judge. The district court dismissed Rosales’ petition for lack of jurisdiction, finding that he was not “in custody” as required for purposes of habeas relief—although he was serving a sentence for kidnapping, he was not jailed on the immigration charge that was the basis of his complaint. The circuit court affirmed and Rosales petitioned for certiorari. In the United States’ Brief in Opposition, the Solicitor General took the position that the district court had erred in its conclusion that Rosales was not “in custody;” nevertheless, the Solicitor went on to note that the circuit court opinion was unpublished and non-precedential and argued that Rosales was not entitled to habeas relief on his underlying claim. As such, the Solicitor asked the Court to deny Rosales’ petition; instead, the Court GVR’ed the case. On remand, the proceedings played out essentially as the Solicitor General had predicted: the lower court agreed that the removal order placed Rosales “in custody” for habeas purposes but found that he could not make the requisite showing for habeas relief.
On one common understanding of the phrase, “ultimate outcome,” the outcome seems to have remained unchanged in this case—Rosales still did not receive his writ and still faced removal, even after the GVR. That is, the lower court still reached “outcome X” on remand. As such, it is questionable whether Rosales can be tallied as an error-correction success. However, it seems unlikely as a practical matter that the Court expected anything other than this result on remand—surely the Justices were aware that Rosales’ chances of receiving his writ were minimal, even in the absence of the error.
Instead, this case suggests that the Court means something else by its GVR standard. Perhaps what the Court really means is that GVR is appropriate where correcting the error will open up new analyses on remand that will be properly outcome-determinative, even if it suspects that the practical outcome will remain unchanged. For example, correcting the error in Rosales allowed the lower court to proceed beyond the jurisdictional question and consider the merits of the habeas petition, which was outcome-determinative by definition. In this sense, the “redetermination” on remand technically did “determine the ultimate outcome of the litigation”—it just did so in a way that reached the same practical result as in the preceding case.
Given this lack of clarity as to when a GVR is outcome-determinative and when it is not, it is instructive to consider how GVR’ed cases fare under both measures. The broad measure, which seems to capture the Court’s intent in Rosales, will reflect solely whether the lower court in a GVR’ed case agreed that it had erred in the prior proceedings and conducted further review, while the narrower measure will look at whether the outcome on remand placed Petitioner in a substantively different position than she would have occupied absent a remand.
B. Analyzing the Cases
Since 1990, the Supreme Court has GVR’ed in response to a position taken by the Solicitor General at least thirty times. Of these cases, twelve effectively disappear on remand, disposed of in some manner that is not reflected in the major case-reporting services. In another three cases, the lower courts spilled little ink on remand, disposing of the cases with brief orders—sometimes as little as a single word. Another case represents something other than the traditional no-fault GVR, with the Court choosing to remand with instructions to vacate a portion of a damages award with prejudice—because this method of disposition differs in important ways from the usual GVR, this case is excluded from the analysis.
Out of the seventeen remaining cases where the result on remand is clear, the lower court agreed with the confession of error on remand and conducted or ordered further review on fifteen occasions. This suggests that the Court is generally successful at estimating the probability that a lower court will adopt the Solicitor’s confession and conduct some further analysis of the case. Thus, if this is the appropriate metric for evaluating whether a “redetermination [will] determine the ultimate outcome of the litigation,” then the GVR is serving its error-correcting function relatively well.
The numbers are slightly less impressive with regard to whether the “ultimate outcome” changed in any substantive fashion. In at least six of the seventeen cases, the practical result remained unchanged in any material way after the GVR. Even if we improbably assume that all of the cases in which tracking is impossible resulted in a change in the practical result (increasing the sample back to 29 cases), this would still indicate a roughly twenty percent likelihood that a GVR ended with the exact same practical result on remand (and the real percentage is likely higher). Thus, if a change in the practical outcome is the appropriate means of evaluating the GVR’s error-correcting success rate, there is likely some room for improvement
C. Placing the Results in Context
Even a critic of GVR’s has to admit that these numbers demonstrate an impressive track record for the GVR as an error-correction mechanism. However, GVR’s cannot be evaluated fairly without considering the alternatives available to the Court in managing its docket. For example, if the Court ruled on the purported error itself or otherwise made the GVR binding on the lower court, it would eliminate those cases where the lower court refuses to recognize the error on remand. Thus, such a procedure would be 100% effective at removing those errors from the record. On the opposite side, if the error is not of a type that would affect the outcome below, the Court’s resources might be preserved more effectively by simply denying certiorari rather than employing a GVR. This would eliminate those relatively common cases where the Court GVR’s a case, but the practical outcome below remains unchanged. While this would fail to correct perceived errors in lower court opinions, this is not unfamiliar territory for the legal community—it has long been accepted that a denial of certiorari does not carry precedential value, and it therefore it would not place the Court’s imprimatur on the alleged error. Thus, while it is true that the GVR seems to function as intended in many cases, this does not necessarily mean that it is the best possible alternative in all cases.
III. Additional Functions: Resource-Conservation and Information Gathering
As the preceding section demonstrates, the error-correcting virtues of the GVR, while impressive, are not so great by comparison to the available alternatives that the process would exist without the influence of other considerations. Chief among these considerations is the conservation of the Court’s limited time and resources. Indeed, this resource conserving function of the GVR was the listed first by the Court in its enumeration of the GVR’s “virtues” in Lawrence. However, while it is undoubtedly true that the Court can conserve its own resources by using the GVR, the Supreme Court does not exist in a vacuum. Instead, by using the GVR, the Court pushes the “delay and further cost entailed in a remand” onto its lower court brethren. As such, it is important to consider how GVR’s in the confession of error context impact the docket of both the Supreme Court and of lower federal courts on remand.
A. Comparative Caseloads
The nine-member Supreme Court today faces a docket of approximately 7,000 cases per term. However, only about 100 of these cases will be granted plenary review and oral argument, while another 50 to 60 are disposed of using other mechanisms (presumably including, and perhaps primarily comprised of, the GVR). While the Supreme Court does not divide its work among smaller panels, giving each Justice some responsibility for the entire caseload, the Justices are not asked to write separate opinions in every case. Thus, excluding their individual dissents and concurrences, each justice’s chambers would be responsible for drafting an average of 11 opinions per term in cases granted plenary review, if the responsibilities were equally distributed.
Compare this to the other federal courts. Excluding the Federal Circuit, there are 167 authorized judgeships on the United States Circuit Courts of Appeals. In 2004, these judges received almost 63,000 appeals, or 1,127 appeals per three-judge panel. They terminated 27,438 cases on the merits after either an oral hearing or submission on briefs; of these, 9,250 resulted in signed, written opinions and about another 17,000 resulted in written and reasoned, though unsigned opinions. This means that if these appeals were evenly distributed among the judges, each chambers would have produced at least 157 written and reasoned opinions in 2004. This number would not include any additional dissenting or concurring opinions that the judges might prepare. The almost 680 federal district court judges perform a variety of tasks, including conducting trials, that are less readily comparable to the appellate courts. Even so, the sheer volume of their caseload can provide some portrait of their time constraints: in 2004, over 352,000 cases were filed and over 317,000 were terminated—or about 518 and 466, respectively, per district court judge.
While numbers do not say everything about the differences between the federal courts, they at least demonstrate that resources are scarce at all levels, and quite probably that resources are scarcer in the lower federal courts than in the Supreme Court. This makes the Court’s resource conservation rationale somewhat less palatable. While GVR’s permit the Court to lighten its caseload, they also throw cases back to the lower courts, which are already awash in their own docket troubles. If the resource conservation rationale is sensible, then, it must also take into account additional the different resources and constraints at the different levels of appellate review—the numbers alone cannot justify it.
B. Capacity for Review
Shifting focus to the different information-gathering capacities of the various federal courts makes the resource conservation rationale more convincing. As noted above, most of the Court’s “confession of error” GVR’s result in the lower court recognizing the error and either conducting some further inquiry or summarily disposing of the case. Because these GVR’s tend to open up new inquiries that the lower court may not have considered in the original case, it may be more efficient to allow the lower courts to conduct those inquiries in the first instance. For example, if the case would require additional fact-finding as a result of the confessed error, then it would make more sense for the appellate courts to send the case back to the appropriate fact-finder. Even though that fact-finder may carry a heavier workload than the higher courts, it is nonetheless better-equipped to handle the additional fact-finding necessary to correct the error. The procedure also allows the Court, whose review is limited by rule to the questions presented in the petition for certiorari, to seek review on questions that it might be practically equipped to, but nonetheless procedurally barred from answering.
While neither the error-correction nor the resource-conservation rationale is wholly convincing standing alone, when combined they make the GVR appear more acceptable as an alternative to summary merits review or outright denial of certiorari in many cases where the Solicitor General has confessed error.
IV. Potential for Abuse: The Error-Preserving Capacity of GVR’s
Given the relative success of GVR’s in correcting lower court error on remand and properly allocating judicial resources, the process may seem entirely innocuous. Indeed, this conclusion is likely warranted in the mine run of cases, where errors that are clear and/or of limited applicability are confessed and easily corrected on remand.
Unfortunately, the Court has occasionally used the GVR in cases that do not present such limited questions, and in these cases, the results below have sometimes created or perpetuated legal confusion that would have been better resolved by the Court in the first instance.
A. The “Sneaky” Circuit Split: Munoz-Romo and Richardson
One of the most questionable uses of the “confession of error” GVR arises where there is a circuit split on the “error” confessed by the Solicitor General. In such situations, the potential for the Solicitor to “game the system” by admitting error is perhaps at its most pronounced. Unlike most litigants, whose stake in the outcome is limited to its effect on their particular interests at the time of the case, the government is the quintessential “repeat player” in the court system. Thus, if the Solicitor General (and the government it represents) is calculating in its litigation strategies, it can afford to be so in a manner that employs longer time-horizons and wider geographic boundaries than virtually any other litigant.
While the political philosophies guiding the Solicitor General may change as presidential administrations change, which could limit the Solicitor’s ability to pursue a long-term political agenda, there is at least one goal that Solicitors General of all political stripes would be likely to pursue: namely, the preservation of their own discretion. The confession of error can serve as a tool for protecting that discretion by avoiding a definitive statement of law by the Supreme Court, even at the cost of an unfavorable result in a particular case. Specifically, although a “confession of error” GVR might limit the government’s available options in one circuit, a decision by the Supreme Court would limit its options in all circuits. Thus, the “confession of error” can operate as a sort of “damage control,” keeping the Court from broadly constraining the government’s discretion in all circuits at once. Whether the Solicitor General consciously uses the confession of error in this way or not, it is clear that the GVR has sometimes operated to preserve the government’s prosecutorial discretion, as it did in United States v. Munoz-Romo.
1. Munoz-Romo
The Munoz-Romo cases revolved around the availability of multiple sentences for federal firearms violations. Francisco Munoz-Romo received two sentences under the applicable statute: one for being a felon in possession and another for being an illegal alien in possession. He appealed his conviction and ultimately filed for certiorari review before the U.S. Supreme Court. In its response, the Solicitor General “confessed” its belief that Congress did not intend to authorize multiple prosecutions under the statute, creating a double jeopardy error in Munoz-Romo’s multiple prosecutions. The Supreme Court GVR’ed the case “for further consideration in light of the position asserted by the Solicitor General in his brief.” On remand, the circuit court accepted the Solicitor’s confession of error and directed the district court to vacate Munoz-Romo’s sentence on one of the duplicative counts.
However, at the same time that Munoz-Romo was awaiting review by the Supreme Court, there was an active circuit split on the underlying issue. The Fifth Circuit, where Munoz-Romo was prosecuted, had taken the same position as the Eighth Circuit in holding that multiple prosecutions were available for different offender statuses under the firearm statute. However, the Eleventh Circuit, which the Solicitor General quoted in its brief to the Supreme Court, disagreed and held that multiple prosecutions were not available. Given the Court’s concern with addressing circuit splits on “important matter[s],” its decision not to conduct merits review in this case is striking. As a result, even though the government could no longer seek multiple sentences in the Fifth Circuit after Munoz-Romo, it remained free to do so in other circuits—in this sense, Munoz-Romo demonstrates the potential for “confession of error” GVR’s to preserve prosecutorial discretion for the federal government.
In the years to follow, there were at least two additional instances of similar multiple prosecutions, one in the Fourth Circuit and one in the Eighth Circuit, discussed in greater detail below.
2. Richardson
In 2003, when Earnest Richardson was indicted and subsequently prosecuted for being both a felon and a drug user in possession of a firearm, the same circuit split that was at issue in Munoz-Romo remained active (though substantially weakened). In fact, when Richardson appealed his conviction to the circuit court, the panel concluded that it was bound to affirm his convictions under its holding in United States v. Peterson, a 1989 case that had been cited in the Munoz-Romo court’s post-GVR opinion.
Two of the judges in Richardson wrote a concurring opinion to express their disagreement both with the ultimate result and with “the government’s inconsistent approach” to firearms prosecutions. Citing the Solicitor General’s confession before the Supreme Court in Munoz-Romo, these judges stated that it was “inappropriate for the government to advance diametrically opposed theories as to the interpretation of a single criminal statute.” They were particularly concerned that the confession of error had “effectively caused the Supreme Court to forgo the opportunity to review a circuit split on an issue of constitutional significance.”
Ultimately the court decided to rehear the case en banc, at which time it overruled its prior holding in Peterson and remanded Richardson’s case for resentencing. As the court noted, this finally ended a circuit split that had persisted for over fifteen years, and which the Supreme Court had had the opportunity to settle over a decade earlier in Munoz-Romo. During that time, at least one other Eighth Circuit defendant fell victim to its position on multiple firearms prosecutions. The profound effect of the no-fault, “confession of error” GVR on these defendants (and perhaps others like them) raises serious questions about its use in this line of cases.
3. Conclusions
It is important not to overstate the conclusions that can be drawn from the Munoz-Romo/Richardson scenario. First, the fact that federal prosecutors occasionally prosecuted multiple counts under § 922 even after the Solicitor General’s confession of error does not necessarily mean that either the Solicitor or the prosecutors acted in bad faith. While there are some occasional troubling signs, these prosecutions might simply have been the result of incidental oversights within a large federal bureaucracy. The Solicitor General’s office is primarily involved in government litigation at the appellate level, and as a result, it likely played little or no role in these prosecutions. In addition, despite the staying power of this circuit split within the Eighth Circuit, it seems that even at the time of the Solicitor’s confession, many other circuits had already rejected the imposition of multiple sentences under similar circumstances, and in the aftermath of the Solicitor’s confession, many more did the same. Thus, while the GVR represented a “missed opportunity” to remedy a circuit split, that split eventually cured itself.
Even so, the fact remains that defendants were prosecuted in the meantime without the benefit of a definitive Supreme Court ruling on the constitutionality of their punishments. Knowing this, the lauded ability of the GVR to conserve judicial resources is of little comfort.
B. The Persistent Circuit Split: Judicial Futility
While the Munoz-Romo/Richardson line represents the most troubling potential for affirmative abuse of the no-fault GVR, it does not represent the only way that the “confession of error” GVR might prove counterproductive in practice. A more mundane scenario (which, in fact, also plagued the Richardson court) arises where the circuit court is bound by a prior panel opinion, and, as a result, cannot reach a different result after a GVR without a rehearing en banc. Although, as the Richardson decision demonstrates, these courts may ultimately undertake such a rehearing in response the Court’s GVR, the “no-fault” nature of the GVR means that they need not, and frequently will not do so. As a result, these GVR’s become little more than an “exercise of futility” for the lower court, strongly implicating the Court’s stated belief that GVR’s are “inappropriate” where “the delay and further cost entailed in a remand are not justified by the potential benefits of further consideration by the lower court.” Two cases, neither of which resulted in a rehearing en banc, illustrate the peculiar situation created by GVR’s under these circumstances.
1. Brown
In United States v. Brown, the error cited by the Solicitor General was also the basis of a circuit split, but one of a less compelling character than that in Munoz-Romo. Here, the narrow issue on remand was whether the circuit court had the authority to review a magistrate judge’s pre-trial ruling, which had denied a motion to withdraw by Brown’s trial counsel. When the circuit court first considered Brown’s appeal, it concluded that it lacked jurisdiction to review the magistrate judge’s order because Brown had not first appealed that order to the district court. Brown subsequently filed a Petition for certiorari review, and in response, the Solicitor General noted a circuit split as to the “authority of Courts of Appeals to review a magistrate judge’s ruling” and argued that the courts should have that authority. The Supreme Court GVR’ed the case “for further consideration in light of the position taken by the Solicitor General” and sent the case back to the Eleventh Circuit.
In short, the Eleventh Circuit was unimpressed by the remand. Perhaps unsurprisingly, the panel concluded that it remained bound by its prior precedent and therefore lacked the jurisdiction to review the magistrate judge’s ruling. What was more surprising was the displeasure expressed by the judges in disposing of the remand. In a concurring opinion, Judge Carnes called the decision on remand a “no-brainer” and sharply questioned the “fickleness” of the government’s positions in criminal cases:
After all, [the government] argued to us at oral argument and in a supplemental authority letter that we ought to apply Renfro and conclude that we lacked jurisdiction to review the denial of the motion to withdraw. Having convinced us to do that, the government then told the Supreme Court that we were wrong to do so. Any other litigant might be embarrassed, but in litigation the government never blushes.
Judge Carnes also concluded that a rehearing en banc “would not be a prudent use of this Court’s scarcest resource, which is the time of its judges.” In a separate special concurrence, Judge Hill called the GVR remand an “exercise of futility,” but urged a rehearing en banc. Brown filed another cert petition, but the Supreme Court denied certiorari; the case was effectively at an end, leaving the issue exactly as the Court had found it.
2. Williams
If Brown represents the hostility that may accompany a futile GVR, United States v. Williams represents a peculiarly conciliatory approach. Terrance Williams was convicted of possession of cocaine base with intent to distribute and sentenced to ten years in prison. On appeal, one of Williams’ arguments was that his arrest lacked probable cause. The appellate court stated that although it “view[ed] the issue as a close one,” Williams had not shown that the district court’s finding of probable cause was “clearly erroneous.” Williams then filed a Petition for certiorari review with the Supreme Court. In its response, the Solicitor General noted that there was a circuit split regarding whether appellate courts should consider probable cause challenges like Williams’ under a de novo standard or under the “clearly erroneous” standard used in Williams. Though the Solicitor General favored the de novo standard, which it recognized as the majority rule, it also urged denial of certiorari because it believed that the result would remain the same under either standard. The Court instead granted a GVR and the case returned to the Sixth Circuit.
The Sixth Circuit’s response on remand was curious in a number of respects. First, the court concluded that it was bound by its earlier precedent and stood by the “clearly erroneous” standard, leaving the circuit split unresolved. However, in an interesting approach, the court then proceeded to “indicate what [its] result would be if [it] examined the probable cause determination de novo.” Surprisingly, even though the court had previously acknowledged that its “clearly erroneous” evaluation had been a “close” case, the court on remand concluded that the result would remain the same under de novo review. This apparent lack of continuity did not go unnoticed—Judge Jones noted in dissent that notwithstanding the court’s earlier difficulty with the decision, “[t]he majority now concludes, somewhat inexplicably, that we would have reached the same conclusion had our initial review been plenary.” “[D]eeply troubled” by the “undeniably significant racial component underlying [the probable cause] determination,” Judge Jones disagreed with the panel’s conclusion that the probable cause determination should stand.
Afterwards, Williams again petitioned the Supreme Court for certiorari review, but the Court denied his petition, leaving the confusing Williams precedent on the books.
3. Conclusions
These two cases say very different things about what can happen when the Court overuses its “confession of error” GVR power. In cases like Brown, the obvious concern is that the Court may overstep the traditional deference afforded to lower court opinions and create the impression that the Court “may reject and send back” their work “at [its] own pleasure.” As a result, issuing a GVR in these cases may foster the kind of hostility and waste of judicial resources experienced in Brown. Therefore, where the error confessed is a relatively minor and infrequently litigated point, the GVR may not be the best method to address it, particularly if the lower court is bound to its position by prior precedent.
The Williams case raises concerns both about the Supreme Court’s unwillingness to resolve a relatively important procedural point (namely, the correct standard for evaluating “probable cause” determinations on appeal) and about the potential for lower courts to be overly deferential on remand. When the case returned on GVR, the majority seemed all too willing to accept the Solicitor General’s conclusion that the underlying result was sound, even though it had previously expressed serious doubts on that point. The court even went so far as conducting a mock “de novo” review to shore up this conclusion—however, as Judge Jones noted in dissent, this outcome was difficult to reconcile with the court’s earlier skepticism.
Together, these cases show that the GVR is not always a viable error-correction and resource-conservation tool. Instead, where there is a circuit split that the lower court either cannot or will not remedy, the GVR simply prolongs the litigation and creates additional work for the lower courts.
V. Defining Alternatives
As the preceding analysis suggests, the GVR itself is frequently a helpful tool in the Supreme Court’s arsenal, often leading to the correction of error without the substantial investment of resources entailed by full plenary review. However, this note has also addressed at least two circumstances where the Court’s no-fault, “confession of error” GVR has proven ineffective, either because the correction of error in one court leaves an active circuit split unresolved in others, as in Munoz-Romo, or because the lower court is unable or unwilling to address the “error” that prompted the remand, as in Brown and Williams. In such cases, the Court should consider the other avenues available for resolving the issue.
In a case like Munoz-Romo, where there is an active circuit split on an important issue that cannot be resolved by GVR and that is likely to recur, plenary review seems advisable. While this poses some difficulty, as it could force the Solicitor General to defend a position which it has already conceded was reached in error, this is not an insurmountable difficulty. As Rosenzweig points out, the Solicitor General’s office would likely be capable of arguing a position that it does not “whole-heartedly support . . ., including . . . confessed error.” In addition, in cases where the Solicitor’s office refuses to proceed, the Court could instead appoint counsel to argue the case on the government’s behalf. While plenary review obviously entails a substantially greater investment of resources than a GVR, it seems entirely reasonable in these extreme cases, in order to avoid perpetuating a circuit split that may lead to disparate punishments.
In contrast, in cases like Brown and Williams, the issue is whether the circuit court will even be able to correct its own “error” without a rehearing en banc, and if not, whether they will be willing to convene such a rehearing. While a GVR might still be a viable response if the Court has little concern with the ultimate result on remand (as may be the case in cases like Brown, which raise narrow issues that will recur infrequently), such GVR’s nonetheless create a resource “drag” on the lower courts without an offsetting gain in error-correction. If an issue is not important enough to warrant plenary review, and if the GVR is unlikely to correct the error on remand, then the only other options available to the Court are summary merits review or denial of certiorari. The choice between these options requires consideration both of the substantive importance of the confessed error and of the procedural availability of summary review in a particular case. Denial of certiorari is well-suited to avoid needlessly prolonging the litigation in cases involving inconsequential and unique errors (that is, errors that are unlikely to recur), while summary merits review could assure that the desired error correction actually occurs on remand in those cases where the error issue is sufficiently important and likely to recur that a resolution is needed (but not so colorable or substantial as to warrant plenary review).
Conclusion
The GVR mechanism provides some needed flexibility in the Supreme Court’s management of its docket. Particularly in the “intervening events” scenario, where an intervening legal development calls into question the outcome in an appealed case, the GVR is relatively uncontroversial and immeasurably useful in conserving resources and protecting litigants from disparate treatment. However, the Court has also regularly employed the GVR to remand cases where the Solicitor General confesses error after prevailing below. While this process has been more controversial, it also has a number of commendable features. In most cases, it serves to correct error and to conserve judicial resources, while at the same time giving the litigant who was disadvantaged by the error a better result than he or she would have received had the Court simply denied certiorari.
But because a GVR does not constitute a ruling on the merits, it leaves open the potential for surprising results and unintended consequences on remand. In cases where an important circuit split is presented to the Court, the use of a “confession of error” GVR may needlessly prolong the split by postponing a definitive pronouncement on the state of the law. It may also needlessly burden the already-strapped resources of lower federal courts in cases where those courts lack either the power or the interest to change the ultimate outcome. GVR’s in such cases may do little more than raise the ire of the Court’s judicial brethren.
As a result of these problems, the Court should reconsider its use of the no-fault, “confession of error” GVR to address circuit splits, favoring plenary review where the issue is of substantial importance; summary review, where available, for less important, but nonetheless significant procedural errors; and denial of certiorari for minor issues that are both unlikely to recur and unlikely to be corrected if remanded by GVR. By limiting its use of the GVR in this way, the Court may be able to placate some critics of the procedure and achieve a proper balance between its role as a law-giver and its role as a forum for error-correction.
Word on the streets of Kleberg, Jim Wells and Nueces Counties:
