Is this really the way things (should) work?
I happen to know a lot about the Supreme Court's GVR practice, which stands for granting certiorari, vacating the Court of Appeals' decision below, and remanding the case for an assessment of a potentially relevant intervening statute of Supreme Court opinion. Indeed, I wrote what's probably the leading law review article on the subject.
The practice makes sense. Sometimes, an appellate decision might be (potentially) correct when made, but then a new case (form a higher authority) comes along that (potentially) changes the result. In such cases, the Supreme Court often GVRs the matter and asks the Court of Appeals to reexamine the thing in light of the new (controlling) precedent.
When that happens, on remand, the Court of Appeals obviously has to assess whether the intervening decision in fact changes the result in that particular case. And the Supreme Court has been clear that just because it grants a GVR, that doesn't necessarily mean the result should be different. It just requires a new look in light of the intervening event.
All good.
That general practice happens here. But with a wrinkle.
Here, the Ninth Circuit previously decided that the arbitration provision here wasn't governed by the FAA because the plaintiffs were engaged in interstate commerce (which is an exception to the FAA), and after that decision was rendered, the Supreme Court decided a case that changed -- at least a little bit -- the rules for what counts as being engaged in interstate commerce under the statute. Hence the Court's GVR of the prior Ninth Circuit's decision.
So, on remand, the Ninth Circuit has to take a look at the case again and see what the proper result is under the Supreme Court's new precedent. Totally typical and routine.
But today, on remand, the Ninth Circuit says: "Well, when we decided the case before, we did so relying on a prior Ninth Circuit precedent. We don't see that the Supreme Court's intervening opinion on the subject is necessarily "clearly irreconcilable" with that prior precedent. So, as a panel, we're bound to that result. So we're required to reach the same result that we reached before."
I truly wonder if that's indeed the way that circuit precedent and Supreme Court GVRs in fact do -- or should -- interact.
Judge Hurwitz is clearly correct that the prior panel opinion was based on then-existing Ninth Circuit precedent. When the other (intervening) case was in the Supreme Court, the Court, in a footnote, expressly declined to decide whether that particular Ninth Circuit test was appropriate or consistent with the test expressed by the Supreme Court.
So, Judge Hurwitz (reasonably) says, there's nothing clearly irreconcilable between the two cases, so the panel's bound by circuit precedent and has to reach the fair result.
Fair enough.
But then what's the point of the Supreme Court GVR'ing the case in the first place?
The reason the Court GVR'd is because it wanted the Ninth Circuit to take a new look. And it seems somewhat silly to say that, in taking that new look, the Court of Appeals is bound to reach the very same decision it reached last time since circuit precedent hasn't changed. Of course it hasn't changed. But Supreme Court precedent did.
When the Supreme Court simultaneously (1) changes the law, and (2) expressly declines to decide whether a particular existing circuit precedent remains good law in light of that change, it seems to me like the deference that would otherwise attach to circuit precedent likely disappears. The panel should decide the case under the existing Supreme Court precedent, if it answers the question one way or the other. What a circuit case decided long ago under a different set of controlling precedents doesn't seem to me to be dispositive, nor of any particularly strong weight.
I get that the en banc court can always revisit precedent and change the result. But it seems like it guts the practical efficacy of a GVR if the panel below is routinely bound to the prior circuit precedent in all but the most obvious cases of irreconcilable conflict.
