Circuit Conflicts

Federal and state appellants typcially have, as a matter of right, one appeal to an intermediate appeallate court. However, the highest courts in each jurisdiction -- the U.S. Supreme Court and most state supreme courts -- have discretionary review. That is, the losing side in the intermediate appellate court can petition the higher court for review, but the higher court is not required to take the case.

One factor most higher courts consider in deciding whether to take review is whether the intermediate appellate courts have split on the issue and reached different results. If so, there is a circuit conflict, and the higher court is more likely to grant review.

The following discussion analyzes what exactly a circuit conflict is, and what other factors different courts use in deciding whether to grant review.

Date sent: Thu, 3 Jul 97

In most courts with discretionary review (US Sup Ct, many state Supreme Courts), one factor the court considers in deciding whether to take a case is whether the intermediate appellate courts have split on the issue.

Suppose in Case 1, an appellate court decides an issue one way. In Case 2 (your case), a second appellate court decides the issue differently and unpersuasively tries to distinguish Case 1.

Is this a conflict between the appellate courts? If so, does that mean that every case that tries to distinguish precedent creates a circuit conflict. If not, does that mean that the appellate courts get one free conflict and we have to wait for Case 3 before the higher court will grant review?

I realize there is no hard rule here since review is discretionary, but how strongly would the higher court consider this conflict?

Date sent: Thu, 3 Jul 97

To my mind, the key phrase is unpersuasively distinquishes. In such circumstances, a poorly reasoned opinion creates the very same harm -- i.e., unpredictability of application of law -- as does a second opinion which simply, and directly disagrees with the first opinion.

Date sent: Thu, 3 Jul 97

Several years ago, we successfully obtained certiorari review of a case decided by the Hawaii Supreme Court, Norris v. Hawaiian Airlines, based on a conflict between several circuits and several state high courts on the issue of railway labor act preemption. As I recall the split in the case law was rather indirect -- something of a split by implication -- which we had to lay out in some detail in our petition. A supreme court law clerk I spoke to at the time of oral argument mentioned that the petition had been favorably received because it focused solely on the issue of the split, and did not try to argue the merits of our case as a basis for certiorari review.

I should add, however, that our arguments on the merits were not so favorably received when we had a chance to make them. The case was decided 9-0 against preemption.

Date sent: Thu, 3 Jul 97

Florida has the classic appellate structure and the Florida Supreme Court's "conflict" jurisdiction is limited to "express and direct conflict" between district courts of appeal (or conflict with a Supreme Court decision). Such conflict, however, may arise from a misapplication of precedent as well as from a direct declaration of a conflicting rule of law. In practice, the court only rarely grants review on that basis.

Date sent: Thu, 3 Jul 97

It is a conflict if, in fact, the two cases cannot be distinguished despite the second court's attempt to do so. Obviously, a big part of a petition for certiorari can be establishing the genuineness of an asserted conflict.

The uncertainty in your case, however, may point to an additional problem -- that the Supreme Court often likes to see an issue addressed and defined by a larger number of circuits before reviewing the matter itself. Consideration by more than a few circuits helps to establish that there is in fact a genuine conflict. It also provides the Supreme Court with greater input from the Courts of Appeal and a greater basis for predicting how any ruling by it would apply in different situations.

We faced this problem in Curtiss-Wright v. Schoonejongen. Although we had a genuine conflict, it involved only a few circuits, and we were concerned that the Court's response would be to let the issue play out further in the Courts of Appeal. As a result, we focused part of our petition on the need for an immediate resolution of the conflict without waiting for further percolation of the issue through the courts. In addition, because the conflict among the circuits was credible but not strong, we chose to emphasize other factors. We, of course, pointed out the conflict, but we did not hang our hat on it. In addition, the Justices must have built up some insensitivity to the argument "cert should be granted since there is a conflict" because that is argued in most of the petitions they receive. I think you almost always have to provide the Court with something more, and it often makes sense to have that something more up front in the petition, rather than following a lenghty discussion of conflict.

A former Supreme Court clerk has written an article with some very helpful advice regarding petitions for certiorari -- Baker, "Symposium on Supreme Court Advocacy: A Practical Guide to Certiorari," 33 Catholic U. L. Rev. 611 (Spring 1984). I would not even think about working on another petition without rereading it. (In fact, I have also found it helpful, in more general ways, when seeking discretionary review from state courts). Stern's Supreme Court Practice also has a helpful section.

Date: Sat, 5 Jul 97

Part of the job, skill, and talent of the author of the petition or motion for certorari or leave to appeal is to persuade the higher court that this is a real conflict.

The above discussion was taken from the Appellate Law Discussion list and edited.

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