The Rules that Govern The Rules that Govern In the Federal courts - PDF document

“What has the Fifth Circuit said on this issue?” This question is familiar to most attorneys practicing within the juris- diction of the U.S. Court of Appeals for the Fifth Circuit. The import of this question will be especially familiar to jun- ior attorneys whose task it is to determine the answer for any given case that will be briefed or tried. The question admits of two basic answers: nothing or something. Nothing is a relatively rare answer. The Fifth Cir- cuit is a rather active court that produces, and historically has produced, a large number of opinions, published or otherwise. It is fair to say that most cases do not present true issues of first impression. The subject of this article is the other answer to the question: specifically, what rules of law govern when the Fifth Circuit has said something — or possibly conflicting somethings — on the issue presented in a given case. The Rules that Govern The Rules that Govern In the Federal courts Of the Fifth Circuit BY DAVID L. HORAN Illustration by Gilberto Sauceda www.texasbar.com 622 | Texas Bar Journal | September 2004

TBJ | The Rules that Govern the Rules that Govern in the Federal Courts of the Fifth Circuit There are rules that governs these appeals and the district courts of the a rule of law inconsistent with our own.” 7 matters, familiar in general terms to any Fifth Circuit are bound on matters of Moreover, the Fifth Circuit has explained: attorney from the first year of law school: federal law by U.S. Supreme Court “Notwithstanding its relevance, the stare decisis , Erie , dicta. Most lawyers decisions and decisions of the Fifth Cir- Supreme Court decision must be more cuit sitting en banc . 4 Further, as is the practicing in the Fifth Circuit know than merely illuminating with respect these rules, or at least think they do. But rule in all of the federal courts of to the case before us, because a panel these rules make or break the results of cases more often than one might think, A Fifth Circuit decision on a federal law so it is worth collecting and analyzing issue will generally bind the parties and just what the rules are for thefederal courts in the Court of Appeals and district courts of the Fifth Circuit. courts of the Fifth Circuit. Stare Decisis and Federal Law: When What the Fifth Circuit Said Goes 1 Generally speaking, if the Fifth Cir- appeals, one panel of the Fifth Circuit of this court can only overrule a prior cuit has said something on an issue of cannot overrule a prior Fifth Circuit panel decision if ‘such overruling is federal law, that decision is a binding panel decision — right or wrong — unless unequivocally directed by controlling Supreme Court precedent.’” 8 On the precedent. The doctrine of stare decisis and until that decision is overruled, — that courts abide by and adhere to either explicitly or implicitly, by the other hand, decisions of other circuits their own or a higher court’s precedent Supreme Court or the en banc Fifth or district courts can never overrule a Circuit. 5 Explicit overruling occurs when from decided cases and do not disturb Fifth Circuit panel decision. 9 settled law — and its importance to the Supreme Court or en banc Fifth A Fifth Circuit decision on a federal common law courts is well known. 2 The Circuit cites a Fifth Circuit decision law issue will generally bind the parties Fifth Circuit is a self-described “strict and expressly overrules or disapproves and courts in the Court of Appeals and stare decisis court.” 3 of it. Implicit overruling occurs when district courts of the Fifth Circuit. If Under this doctrine, the court of the result of a Supreme Court or en banc neither the Supreme Court nor the en Fifth Circuit decision directly contra- banc Fifth Circuit has explicitly or Med di ia at ti io on n & & Ar rb bi it tr ra at ti io on n dicts the holding of a prior Fifth Circuit implicitly overruled the Fifth Circuit’s TR RA AI IN NI IN NG G panel decision without expressly citing prior panel decision that controls an by the or discussing that prior panel decision. 6 issue, an attorney seeking to escape N Nat ti io on na al l M Me ed di ia at ti io on n A Ac ca ad de em my y Applying this rule when the en banc that decision’s holding has no choice E Ex xp pe eri ie en nc ce ed p pr rof fe es ss si io on na al l i in ns st tr ru uc ct to or rs s wi it th h Fifth Circuit or the Supreme Court has but to raise the issue before the district y ye ear rs s o of f te eac chi in ng g e ex xp pe er ri ie en nc ce e a an nd d t th ho ou us sa an nd ds s explicitly overruled a prior Fifth Cir- court or Fifth Circuit panel and, when o of f c ca as se es s a as s a at tt to or rn ne ey y m me ed di ia at to or rs s o or r a ar rb bi it tr ra at to or rs s. . cuit decision is easy. More often than the time is right, seek en banc rehear- T Th he e m me ed di ia at ti io on n t tr ra ai in ni in ng g u us se es s t th he e H Ha ar rv va ar rd d not, the en banc Fifth Circuit will be ing to ask the full court of appeals to La L aw S Sc cho oo ol l M Mo od de el l a an nd d a ac ct tu ua al l t te ex xt tb bo oo ok ks s. . quite explicit when overruling its own change the Fifth Circuit precedent. 10 B Ba as sic c c co ou ur rs ses s a ar re e t ta au ug gh ht t T Th hu ur rs sd da ay y- -S Su un nd da ay y. . panels’ prior decisions or lines of deci- C Ci iv vil l an nd d C Co om mm me er rci ia al l C Cl la as ss s sions. When the en banc court has done Stare Decisis and State Law: Le ea arn n t to o M Me ed di ia at te e Em mp pl lo oy ym me en nt t, , P Per rs so on na al l so, an attorney should feel supremely When What the Fifth Circuit Said I In nj ju ur ry y, , I In ns su ur ra an nc ce e, , C Co on nt tr ra ac ct t, , B Bu us si in ne es ss s, , Ci C iv vi il l R Ri ig gh ht ts s, , a an nd d C Co om mm me er rc ci ia al l D Di is sp pu ut te es s. . confident requesting that a district Goes, Even If It Was Just a Guess court or a Fifth Circuit panel hold the When faced with a state law issue in F Fa am mi il ly y a an nd d I In nt te er rp pe er rs so on na al l Med di ia at ti io on n C Cl la as ss se es s prior panel decision to be overruled. a federal case, an attorney’s task in Le ea ar rn n t to o m me ed di ia at te e f fa am mi il ly y, , p pa ar re en nt t - - c ch hi il ld d However, explicit overruling by the looking for controlling Fifth Circuit law r re el la at ti io on ns shi ip p, , & & i in nt te er rp pe er rs so on na al l d di is sp pu ut te es s. . Supreme Court of a prior court of does not change much from the task A Ar rb bi it tr ra at ti io on n C Cl la as ss se es s appeals decision, when that decision is with regard to issues of federal law. Ne ew w S St ta at te l la aw ws s a an nd d U U. .S S. . S Su up pr re em me e C Co ou ur rt t not before the court on a petition for writ Again, generally speaking, if the Fifth C Ca as se es s a ar re e e ex xp pa an nd di in ng g t th he e u us se o of f a ar rb bi it tr ra at ti io on n. . of certiorari, is a bit much to hope for. Circuit has said something on a state Sp S pe en nd d a a w we ee ek ke en nd d & & l le ea ar rn n a ar rb bi it tr ra at ti io on n s sk ki il ll ls s. . Attorneys will more often find them- law issue, that decision will be a bind- 40 4 0 h hr rs s. . M MC CL LE E C Cr re ed di it t - - B Ba as si ic c C Ci iv vi il l selves asking for a finding that the ing precedent. 40 4 0 h hr rs s. . M MC CL LE E C Cr re ed di it t - - F Fa am mi il ly y 15 1 5. .5 hr rs s. . MC CL LE E C Cr re ed di it t - - A Ar rb bi it tr ra at ti io on n Supreme Court has implicitly over- ruled a prior Fifth Circuit panel or en Erie Guesses on a Clean Slate and T Th he e N Na at ti io on na al l M Me ed di ia at ti io on n A Ac ca ad de em my y, , I In nc c. . 6 66 68 88 8 N No o. . C Ce en nt tr ra al l E Ex xp pr re es ss sw wa ay y, , S St te e. . 6 60 00 0 banc decision. The Fifth Circuit has the Decisions of the State’s Highest Da al ll la as s, , T TX X 7 75 52 20 06 6 observed: “[F]or a panel of this court to and Intermediate Appellate Courts Ph P h ( (21 14 4) ) 3 36 61 1- -0 08 81 10 0— —( (8 80 00 0) ) 6 68 85 5- -0 09 99 99 9 overrule a prior decision, we have required Of course, the federal court’s analy- A An n A Af ff fi il li ia at te e o of f N Na at ti io on na al l M Me ed di ia at ti io on n A Arb bi it tr ra at ti io on n, , I In nc c. . F Fa ax x ( (2 21 14 4) ) 3 36 61 1- -2 23 34 43 3 a Supreme Court decision that has been sis in the first instance is different. A h htt tp p: :/ // /w ww ww w. .n na at ti io on na al l- -m me ed di ia at ti io on n. .c co om m fully heard by the Court and establishes federal court deciding a state law issue www.texasbar.com 624 | Texas Bar Journal | September 2004