Ricci v. DeStafano, No. 06-4996 (2d Cir. 2008)
Annotate this CaseThis opinion or order relates to an opinion or order originally issued on June 9, 2008.
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06-4996-cv Ricci v. DeStefano 1 DENNIS JACOBS, Chief Judge, dissenting from the denial of 2 rehearing in banc: 3 4 Along with almost half of the members of this Court, I 5 join Judge Cabranes s dissent, which does the heavy lifting 6 on the procedural merits of in banc review. 7 separately to answer respectfully the concurring opinions of 8 Judge Calabresi and Judge Katzmann. 1 9 I write Judge Katzmann and those of my colleagues who signed 10 his opinion recognize that this case presents difficult 11 issues, but would leave further review and consideration to 12 the Supreme Court, citing a Circuit tradition of deference 13 to panel adjudication. 14 tradition of hearing virtually no cases in banc. 15 In effect, this has become a Circuit The grant or denial of in banc review is governed by 16 Fed. R. App. P. 35, which says that in banc rehearing is 17 disfavored--unless such review is needed for coherence of 1 I have not solicited concurrences for my opinion. 1 1 the Court s decisions or the proceeding involves a question 2 of exceptional importance. 3 Accordingly, the next subdivision of Rule 35 requires the 4 petition to explain why the case falls within one or both of 5 these categories. 6 Fed. R. App. P. 35(a). See Fed. R. App. P. 35(b). This weighing calls for an exercise of discretion. 7 Judge Calabresi s concurring opinion deprecates this 8 standard as a purely discretionary power that is always a 9 matter of choice (emphasis added). He nevertheless 10 join[s] fully in both Judge Parker s opinion, which 11 counsels against in banc review as a matter of (plain 12 ordinary) discretion, and Judge Katzmann s opinion, which 13 decides against in banc review as a matter of tradition. 14 understand Judge Calabresi to be saying, in effect, that 15 when it comes to in banc review, discretion should be 16 leavened by caprice. 17 that there might be discretionary grounds for denying in 18 banc review were it not already foreclosed by tradition.2 2 I As applied to this case, that means In the alternative, Judge Calabresi contends that we cannot consider whether the District Court applied the correct legal standard to plaintiffs Title VII claim because the parties did not present [that] argument to the district court or the panel and we can only consider a 2 1 This occluded view of our discretion to sit in banc 2 runs counter to the criteria set down for our guidance in 3 Rule 35. 4 results in the denial of review in the overwhelming number 5 of cases. 6 pattern of denial that would result from saying no by 7 tradition. 8 is like any other discretionary decision in the sense that 9 discretion should be exercised, not elided or stuck in a No doubt, the proper exercise of discretion And the resulting pattern may resemble the But the decision to grant or deny in banc review legal theory that the parties have eschewed in such circumstances as matters of life and death. Judge Calabresi provides no authority for this proposition for the good reason that it is unsound. Writing for a unanimous Supreme Court, Justice Thurgood Marshall explained that [w]hen an issue or claim is properly before the court, the court is not limited to the particular legal theories advanced by the parties, but rather retains the independent power to identify and apply the proper construction of governing law. Kamen v. Kemper Fin. Servs., Inc., 500 U.S. 90, 99 (1991) ; see also Hankins v. Lyght, 441 F.3d 96, 104 (2d Cir. 2006) ( We are required to interpret federal statutes as they are written . . . and we are not bound by parties stipulations of law. ); Neilson v. D'Angelis, 409 F.3d 100, 105 n.2 (2d Cir. 2005) ( The parties apparent agreement on the standard of similarity for class of one cases does not control our judgment, because this court is not bound by stipulations of law. ); United States v. Pabon-Cruz, 391 F.3d 86, 97 (2d Cir. 2004) ( It is clear that we have the authority to resolve this question despite its not having been raised in the District Court proceedings or in the parties initial briefs. ). 3 1 default position. 2 419 (2d Cir. 1998) (holding that refusal to exercise 3 discretion accorded [the court] by law . . . constitutes an 4 error of law ). 5 See United States v. Campo, 140 F.3d 415, The exercise of discretion to hear cases in banc is 6 integral to the judicial process. 7 emphasize that an en banc proceeding provides a safeguard 8 against unnecessary intercircuit conflicts. 9 App. P. 35, Advisory Committee Notes (1998 Amendments). 10 other words, issues of exceptional importance that may 11 divide the circuits should be subject to in banc review lest 12 a three-judge panel adopt a rule of law that would not 13 command a majority vote of the appeals court as a whole, and 14 thereby provoke an avoidable circuit conflict that the 15 Supreme Court would have to resolve. 16 The advisory notes See Fed. R. In That is why I respectfully disagree with those of my 17 colleagues who are pleased to defer as a matter of tradition 18 to the ruling of the three-judge panel, and thereby leave 19 further consideration to the Supreme Court. 20 Sorrell, 406 F.3d 159, 167 (2d Cir 2005) (Sack, J., and 4 Cf. Landell v. 1 Katzmann, J., concurring) (observing that in banc hearing 2 should be avoided where it would only forestall resolution 3 of issues destined appropriately for Supreme Court 4 consideration ). 5 I do not think it is enough for us to dilate on 6 exceptionally important issues in a sheaf of concurrences 7 and dissents arguing over the denial of in banc review. 8 issues are important enough to warrant Supreme Court review, 9 they are important enough for our full Court to consider and If 10 decide on the merits. 11 discloses broad-based agreement with the panel opinion, in 12 banc review may be a spinning of wheels. 13 circumstances, it may very well be an appropriate exercise 14 of discretion to deny rehearing in banc. 15 tradition to deny rehearing in banc starts to look very much 16 like abuse of discretion. Of course, if an in banc poll 5 Under such But to rely on
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