Recent Cases: Appellate Procedure - Force of Circuit Precedent - Ninth Circuit Holds That Three-Judge Panels May Declare Prior Cases Overruled When Intervening Supreme Court Precedent Undercuts the Theory of Earlier Decisions

Abstract

The nation\u27s courts of appeals have struggled to devise a coherent approach to harmonizing existing circuit case law with intervening decisions of the Supreme Court.\u27 When the Court directly overrules a decision of a court of appeals, it is agreed that the overruled decision loses the force of law. But when a Supreme Court opinion disfavors a circuit\u27s jurisprudential theory, the courts of appeals must determine to what extent cases relying on the rejected theory remain good law. Recently, in Miller v. Gammie (Gammie II),2 the United States Court of Appeals for the Ninth Circuit, sitting en banc, adopted an approach that directs three-judge panels to reconsider both panel and en banc decisions that would otherwise be binding precedent when those decisions are clearly irreconcilable with the reasoning or theory of intervening higher authority. \u273 This test is unbounded and will likely prove impossible to administer, a result foretold by the Gammie II court\u27s error in concluding that Ninth Circuit absolute immunity jurisprudence was effectively overruled by Supreme Court cases entirely compatible with existing circuit decisions. To preserve the predictability and coherence of their jurisprudence, courts of appeals should instead adopt a default rule that presumes the validity of case law not explicitly overruled by the Supreme Court