Appellate Procedure
New York v. U.S. Department of Justice
Second Circuit Declines to Rehear Immigration Case En Banc, Despite Circuit Split.
Since the first dissent from a denial of rehearing en banc â or dissental1×1. This comment adopts the shorthand âconcurralâ for âconcurring in the denial of rehearing en bancâ and âdissentalâ for âdissenting from the denial of rehearing en banc.â See Alex Kozinski & James Burnham, I Say Dissental, You Say Concurral, 121 Yale L.J. Online 601, 601 (2012). â in 1943,2×2. See Jeremy D. Horowitz, Not Taking âNoâ for an Answer: An Empirical Assessment of Dissents from Denial of Rehearing En Banc, 102 Geo. L.J. 59, 66 & n.43 (2013). dissentals have become increasingly common in the courts of appeals,3×3. Id. at 69â70, 70 fig.1. and, consequently, the propriety of dissentals has become a subject of scholarly and judicial debate.4×4. Compare, e.g., Kozinski & Burnham, supra note 1, at 607â09 (listing the benefits of dissentals), with Marsha S. Berzon, Dissent, âDissentals,â and Decision Making, 100 Calif. L. Rev. 1479, 1491 (2012) (arguing that dissentals have âminimal benefitsâ and âseveral important drawbacksâ). Amid this focus on dissentals, their counterparts, concurrals (opinions concurring in a denial of rehearing en banc), have received comparatively less attention. However, the Second Circuitâs recent decision in New York v. U.S. Department of Justice5×5. 964 F.3d 150 (2d Cir. 2020). suggests that concurrals are worth a closer look. While a majority of the circuit declined to rehear en banc whether the Attorney General had authority to enact immigration-related stipulations on a federal grant program, the court issued three concurrals and two dissentals dividing on the merits of the appellate panelâs opinion.6×6. See id. at 150 (Cabranes, J., concurral); id. at 153 (Lohier, J., concurral); id. at 156 (Sullivan, J., concurral); id. at 157 (Pooler, J., dissental); id. at 166 (Katzmann, C.J., dissental). Rather than dissent(al), a pair of judges used a âtactical concurralâ to express disagreement and call for Supreme Court review.7×7. See id. at 153 (Lohier, J., concurral). Although âtactical concurralsâ may be appealing judicial tools for expeditiously resolving circuit splits, this potential benefit is outweighed by the harm such opinions may pose to judicial legitimacy if they are unsuccessful.
The Edward Byrne Memorial Justice Assistance Grant Program was created in 2006 to provide federal funding for state and local criminal justice programs.8×8. New York v. U.S. Depât of Just., 951 F.3d 84, 92 (2d Cir. 2020); see 34 U.S.C. §§ 10151â10158. On July 25, 2017, the U.S. Department of Justice (DOJ) enacted three immigration-related requirements for receipt of Byrne funds, which were designed to encourage sanctuary jurisdictions to facilitate enforcement of federal immigration policy.9×9. New York v. U.S. Depât of Just., 343 F. Supp. 3d 213, 221 (S.D.N.Y. 2018). Although the DOJ claimed that policies of âsanctuary jurisdictionsâ impede federal immigration enforcement, the district court found that this claim is incorrect. See id. at 221 n.2. First, a âCertification Conditionâ requires grantees to certify compliance with 8 U.S.C. § 1373, which in turn prevents jurisdictions from restricting officials from sharing information regarding citizenship or immigration status with immigration authorities.10×10. Id. at 222; see 8 U.S.C. § 1373. A âNotice Conditionâ requires grant recipients to have a mechanism for informing federal authorities of the release dates of aliens in their custody.11×11. New York, 343 F. Supp. 3d at 222. Finally, an âAccess Conditionâ requires program participants to grant federal agents access to aliens in their correctional facilities to inquire about their immigration statuses.12×12. Id. Following the implementation of these conditions, the DOJ informed grantee New York City that it did not appear to be in compliance with § 1373 and was at risk of being ineligible for Byrne funding.13×13. New York, 951 F.3d at 100. The city, along with seven states that had received funding since the programâs inception,14×14. See New York, 343 F. Supp. 3d at 223. The city brought suit alongside Connecticut, Massachusetts, New Jersey, New York, Rhode Island, Virginia, and Washington. Id. filed suit against the DOJ and the Attorney General, challenging the conditions under the Administrative Procedure Act15×15. 5 U.S.C. §§ 551, 553â559, 701â706. (APA) and the Constitution.16×16. New York, 951 F.3d at 100.
The district court granted the plaintiffsâ motion for partial summary judgment and enjoined the DOJ from enforcing the immigration-related conditions in their jurisdictions.17×17. New York, 343 F. Supp. 3d at 245â46. Judge Ramos, following courts in the Third, Seventh, and Ninth Circuits,18×18. Id. at 224â25 (citing decisions from the Seventh Circuit and district courts in the Third and Ninth Circuits). held that the DOJ lacked statutory authority to enact the conditions.19×19. See id. at 221. Judge Ramos rejected both of the DOJâs proffered bases of authority, finding that the DOJâs construction of 34 U.S.C. § 10102(a)(6) contravened that statuteâs plain meaning and that Congress did not speak clearly to impose funding conditions in 34 U.S.C. § 10153(a)(5)(D). See New York, 343 F. Supp. 3d at 227â31. Furthermore, Judge Ramos found the application of § 1373 to states and localities to be facially unconstitutional under the Tenth Amendment, as § 1373 directs state and local government officials, rather than private parties, in violation of the anticommandeering doctrine.20×20. See New York, 343 F. Supp. 3d at 234â35. He also held that the conditions violated separation of powers principles by allowing the executive branch the power of the purse.21×21. See id. at 238. Finally, the court determined that the challenged conditions were âarbitrary and capriciousâ under the APA because the defendants had failed to address in the administrative record the âdetrimental effectsâ that would result from them.22×22. Id. at 241. The defendants appealed.
The Second Circuit reversed and vacated the district courtâs injunction.23×23. New York v. U.S. Depât of Just., 951 F.3d 84, 92, 124 (2d Cir. 2020). Writing for a unanimous panel, Judge Raggi24×24. Judge Raggi was joined by Judges Winter and Cabranes. acknowledged that the case âimplicate[d] several of the most divisive issues confrontingâ the United States, but found that â[a]t its core,â it involved âquestions of statutory construction.â25×25. New York, 951 F.3d at 90. Judge Raggi concluded that the Attorney General had statutory authority to enact the challenged restrictions under the plain text of several provisions authorizing the Byrne program.26×26. Id. at 104â06, 117â21. Judge Raggi reasoned that the Certification Condition was statutorily authorized by 34 U.S.C. § 10153(a)(5)(D), New York, 951 F.3d at 104; that the Notice Condition was authorized by 34 U.S.C. §§ 10153(a)(4), 10153(a)(5)(C), and 10155, New York, 951 F.3d at 116; and that the Access Condition was authorized by 34 U.S.C. §§ 10153(a)(5)(C) and 10155, New York, 951 F.3d at 121. Although âmindful that three sister circuitsâ had decided otherwise, the court concluded that those circuits had either neglected to consider the appropriate statutes, or had held an overly limited view of the scope of the Attorney Generalâs authority.27×27. New York, 951 F.3d at 102; see id. at 102â04 (critiquing decisions from the Third, Seventh, and Ninth Circuits). The panel also disagreed with the district courtâs analysis of § 1373, as that statuteâs constitutionality should have been âassessed . . . not on the face of the statute, but as applied to clarify a federal funding requirement.â28×28. Id. at 111. As applied to the Byrne program, § 1373 was a valid exercise of Congressâs spending power.29×29. Id. at 116. Lastly, the challenged conditions were not arbitrary or capricious, as the Certification Condition merely made an existing law applicable to the Byrne program, and the Notice and Access Conditions applied only to persons convicted of crimes, not law-abiding crime victims or witnesses, such that detrimental effects were unlikely.30×30. Id. at 122â23.
The plaintiffs filed petitions for rehearing en banc, and a majority of the active judges on the Second Circuit voted to deny review by the full court.31×31. See New York, 964 F.3d at 150 (Cabranes, J., concurral). The twelve participating judges issued five opinions â three concurrals and two dissentals â regarding the denial of rehearing en banc. Concurring in the denial of rehearing en banc, Judge Cabranes,32×32. Judge Cabranes was joined by Judges Livingston, Sullivan, Bianco, Nardini, and Menashi. a member of the panel, reiterated that the case involved mere âquestions of statutory construction.â33×33. New York, 964 F.3d at 151 (Cabranes, J., concurral) (quoting New York, 951 F.3d at 90). Although he noted the circuit split, he argued that â[i]t does happen from time to time that our perspective differs from that of other [c]ircuitsâ34×34. Id. at 152. and that âreasonable judicial mindsâ could differ as to the DOJâs statutory authority.35×35. Id. at 151. Judge Cabranes concluded that there was âlittle doubt that, in the fullness of time, the conflict among the [c]ircuits [would] be resolved by our highest tribunal.â36×36. Id. at 153.
In his concurral, Judge Lohier, joined by Judge Hall, remarked that âtwelve judges . . . appointed by six different presidents, sitting in four separate circuitsâ had found that the Attorney General lacked the authority to impose the challenged conditions.37×37. Id. at 153 (Lohier, J., concurral). Judge Lohier argued that many of his concurring colleagues had voted inconsistently in granting rehearing en banc the year before in New York State Citizensâ Coalition for Children v. Poole,38×38. 935 F.3d 56 (2d Cir. 2019). where they had emphasized that states must âvoluntarily and knowinglyâ accept conditions on federal grants.39×39. New York, 964 F.3d at 153 (Lohier, J., concurral) (quoting Poole, 935 F.3d at 59). He also criticized the panelâs statutory interpretation and highlighted that the Byrne program âwas designed to aid [s]tates and cities in fighting crime, not immigration.â40×40. Id. at 155; see id. at 154â55. Judge Lohier concurred in the denial of rehearing en banc due to his belief that â[t]he task of remedying these very serious errors will now fall to the Supreme Court,â and a denial of rehearing would allow the Court to âdo so sooner rather than later.â41×41. Id. at 153.
Judge Sullivan42×42. Judge Sullivan was joined by Judges Cabranes, Livingston, and Bianco. filed a short concurral to address the âerroneousâ and âgratuitous pointâ Judge Lohier raised with respect to the courtâs decision in Poole.43×43. New York, 964 F.3d at 156 (Sullivan, J., concurral). He argued that, in contrast to the grant at issue in Poole, the Byrne program gave applicants clear notice of relevant conditions and a fair exchange for federal funds.44×44. See id. at 156â57.
Judge Pooler45×45. Judge Pooler was joined by Judges Chin and Carney. found the denial of rehearing en banc â[a]stonishing[]â46×46. New York, 964 F.3d at 157 (Pooler, J., dissental). and âastound[ing].â47×47. Id. at 159. In her dissental, she disagreed with the panelâs interpretation of the Attorney Generalâs statutory authority, arguing that it violated the canon against surplusage, ignored the statutory context, and was unfaithful to the legislative history of § 1373.48×48. See id. at 159â61. She also maintained that § 1373 had been rendered facially unconstitutional by the Supreme Courtâs recent anticommandeering jurisprudence.49×49. Id. at 163â65. Judge Pooler pointed to Murphy v. NCAA, 138 S. Ct. 1461 (2018), which held that a provision of a federal statute violated the anticommandeering doctrine by âdictat[ing] what a state legislature may and may not do.â New York, 964 F.3d at 164 (Pooler, J., dissental) (quoting Murphy, 138 S. Ct. at 1478); see id. at 163â65. For those reasons â and because of the âpersuasive opinions from . . . sister circuitsâ50×50. New York, 964 F.3d at 158 (Pooler, J., dissental). â Judge Pooler found the case worthy of en banc reconsideration. In closing, she noted, however: âPerhaps the Appellees will find the relief they seek at the Supreme Court.â51×51. Id.
In his dissental, Chief Judge Katzmann noted his âreluctan[ce] to vote in favor of rehearing en banc, informed by the institutional experience of [the] [c]ircuit and the explicit policy of the Federal Rules that en banc rehearing is ordinarily ânot favored.ââ52×52. Id. (Katzmann, C.J., dissental) (quoting Fed. R. App. P. 35(a)). However, he believed that âthe panel did not adhere to the normal rules of appellate litigationâ in reaching its result because it had considered two novel arguments that had not been properly raised on appeal.53×53. Id. at 166; see id. at 166â67.
The opinions concerning the denial of rehearing en banc illustrate the unique situation facing the Second Circuit in New York. As to the decision to deny rehearing, the judges reached a clear majority â eight of twelve active judges voted to deny the en banc petition.54×54. The thirteenth active judge, Judge Park, did not take part in the decision. Id. at 150. However, behind the three concurrals and two dissentals, the judges split six to six on the merits of the panelâs decision. Judge Lohier and Judge Hall stood at the middle of this dichotomy, as their concurral vehemently dissented from the reasoning of the panelâs decision. Their opinion is a rare example of how a concurral may be used to express disagreement in an effort to expedite Supreme Court review. Although âtactical concurralsâ potentially offer beneficial signaling capabilities, they are a worrisome innovation in the courts of appeals. Should tactical concurrals fail, they may threaten judicial legitimacy.
At first glance, concurrals appear too rare or too unremarkable to merit further study.55×55. See, e.g., Mitchell v. JCG Indus., Inc., 753 F.3d 695, 698 (7th Cir. 2014) (Posner, J., concurral) (âPublished opinions dissenting from denials of rehearing en banc are rare; published opinions concurring in denials of rehearing en banc are virtually unheard of.â). Meanwhile, critics of dissentals decry their threat to collegiality,56×56. See, e.g., Bartlett v. Bowen, 824 F.2d 1240, 1243 (D.C. Cir. 1987) (Edwards, J., concurral) (âCollegiality cannot exist if every dissenting judge feels obliged to lobby his or her colleagues to rehear the case en banc in order to vindicate that judgeâs position.â). resemblance to unconstitutional advisory opinions,57×57. See Indraneel Sur, How Far Do Voices Carry: Dissents from Denial of Rehearing En Banc, 2006 Wis. L. Rev. 1315, 1329. and potential to cause confusion for lower courts.58×58. See id. at 1363; see also Mario Lucero, Note, The Second Circuitâs En Banc Crisis, 2013 Cardozo L. Rev. de novo 32, 60 (â[Concurrals and dissentals] often compete . . . for the attention of the media, the academy, sister circuits, and the Supreme Court.â). Yet concurrals may also be susceptible to some of these very critiques59×59. For example, the tactical concurral in New York appeared to threaten collegiality. See New York, 964 F.3d at 151 n.4 (Cabranes, J., concurral) (criticizing Judge Lohierâs opinion for being âoddly focused on scolding several of his colleaguesâ). and have a greater potential to engender confusion. Concurrals have no binding effects on litigants, as the panelâs decision remains the law of the circuit.60×60. Sur, supra note 57, at 1333. This point distinguishes opinions relating to a denial of rehearing en banc from opinions relating to the denial of certiorari. While a concurral competes with an opinion from the same court, when the Supreme Court denies certiorari, âthe dispute never lands on the Courtâs agenda.â Id. at 1334; see id. at 1333â34. However, when a concurral explicates a panelâs opinion â or is written by a panel member â its precedential effect may be misunderstood.61×61. See id. at 1363 (arguing concurrals may be more dangerous than dissentals if they âare understood as attempts to revise the legal analysis offered in the challenged panel opinionâ). In New York, Judge Cabranes, a member of the panel, devoted parts of his concurral to defending the panel decision against recent circuit court decisions, arguably extending the holding in the process.62×62. See New York, 964 F.3d at 152 n.9 (Cabranes, J., concurral). Similarly, Judge Sullivanâs concurral provided guidance to lower courts regarding the decision in Poole.63×63. See id. at 156â57 (Sullivan, J., concurral). In the future, a court might be tempted to rely upon these detours, even though they have no precedential status.64×64. As a potential solution to this issue, some observers argue that opinions relating to a denial of en banc review should simply address whether the requirements of Federal Rule of Appellate Procedure 35, which governs en banc proceedings, are met. See, e.g., Michael E. Solimine, Due Process and En Banc Decisionmaking, 48 Ariz. L. Rev. 325, 337 (2006). On this view, the merits should be discussed âonly insofar as [they] bear[] on the application of the Rule 35 criteria.â Id.
Unlike dissentals and other concurrals, however, tactical concurrals pursue a particular strategic objective â hastening Supreme Court review by voting to uphold the panelâs decision despite disagreement with the outcome.65×65. See, e.g., New York, 964 F.3d at 153, 156 (Lohier, J., concurral). Other judges that may vote tactically on a rehearing en banc often do not publicize their votes in a separate opinion. Cf., e.g., United States v. Washington, 864 F.3d 1017, 1034 (9th Cir. 2017) (Hurwitz, J., separate statement) (stating, on a denial of rehearing en banc, that â[w]hen a judge chooses not to indicate views on the merits of a controversy, colleagues should not invent themâ). Tactical concurrals argue that cases that fit the judiciaryâs criteria for en banc review are â counterintuitively â less deserving of rehearing en banc. Under the Federal Rules of Appellate Procedure, even though rehearing en banc is ânot favored,â it may be granted to âmaintain uniformityâ in a circuit or to rehear cases concerning questions of âexceptional importance.â66×66. Fed. R. App. P. 35. To be sure, what constitutes âexceptional importanceâ has not been conclusively defined, leaving the decision to proceed en banc within judgesâ discre-tion.67×67. See Jon O. Newman, Foreword: In Banc Practice in the Second Circuit: The Virtues of Restraint, 50 Brook. L. Rev. 365, 371 (1984). And the Second Circuit has traditionally resisted en banc procedures.68×68. See Peter S. Menell & Ryan Vacca, Revisiting and Confronting the Federal Judiciary Capacity âCrisisâ: Charting a Path for Federal Judiciary Reform, 108 Calif. L. Rev. 789, 807 n.103 (2020). While Judges Lohier and Hall decisively averred that New York contained issues of âexceptional importance,â69×69. New York, 964 F.3d at 155 n.5 (Lohier, J., concurral). they nevertheless argued that âthe better courseâ was âfor the Supreme Court to grant certiorari and reverse.â70×70. Id. at 156. To them, the denial of en banc review was a tool for expediency â to usher New York toward swifter Court review â rather than a reflection of the implications of the case.
Although tactical concurrals are rarely used,71×71. A review of circuit court (excluding the Federal Circuit, see Horowitz, supra note 2, at 97 n.184) concurrals published on Westlaw since 2000 revealed only nine cases with tactical concurrals (which expressly disagreed with the merits of the panelâs decision and called for Supreme Court certiorari). Spreadsheet on file with the Harvard Law School Library [hereinafter Spreadsheet]. Such concurrals are rare, but are not new. See, e.g., Eisen v. Carlisle & Jacquelin, 479 F.2d 1005, 1020 (2d Cir. 1973) (Kaufman, J., concurral) (âI vote against en banc . . . because the case is of such extraordinary consequence that I am confident the Supreme Court will take this matter under its certiorari jurisdiction.â). this signaling feature may present an appealing tool to judges seeking a swifter path to finality and resolution of circuit splits. As the tactically concurraling judges in New York acknowledged, the panelâs decision created a circuit split with âserious consequences.â72×72. New York, 964 F.3d at 155 n.5 (Lohier, J., concurral). The ruling allows the DOJ to withhold Byrne program funds from sanctuary cities in seven states, possibly depriving them of millions of dollars for criminal programs.73×73. New York v. U.S. Depât of Just., 951 F.3d 84, 116 (2d Cir. 2020). Conversely, the scope of the decision allows sanctuary jurisdictions outside of the Second Circuitâs purview to continue to receive Byrne funding â and, because funding is divided among grantees, potentially more funding than they would normally receive.74×74. See City of Chicago v. Barr, 961 F.3d 882, 921â22 (7th Cir. 2020). Finally, if the DOJ can impose immigration-related conditions on Byrne granteesâ criminal justice programs, it may impose other, noncriminal conditions on future funding.75×75. New York, 964 F.3d at 155 n.5 (Lohier, J., concurral).
If the tactical concurralâs plea to the Court succeeds at gaining certiorari ânext Term,â76×76. Id. at 153. it will limit the dangers that this circuit split poses to the administration of the law77×77. See Jonathan M. Cohen & Daniel S. Cohen, Iron-ing Out Circuit Splits: A Proposal for the Use of the Irons Procedure to Prevent and Resolve Circuit Splits Among United States Courts of Appeals, 108 Calif. L. Rev. 989, 996â98 (2020) (describing problems created by circuit splits). and constitute an efficient use of judicial resources. Indeed, some tactical concurrals have met their goal by garnering Supreme Court review.78×78. In the nine tactical concurrals written since 2000, see supra note 71, the litigants sought certiorari in all cases. Spreadsheet, supra note 71. The Court granted certiorari in five, with one petition still pending as of November 2020. Id. This compares favorably to studies of the efficacy of dissentals at garnering certiorari. See Horowitz, supra note 2, at 82 (finding that the Rehnquist and Roberts Courts granted approximately twenty-five percent of certiorari petitions in cases with dissentals). More research is needed to substantiate this finding. And as dissentals proliferate, tactical concurrals may become more effective signals to the Court.
But this possibility stands in tension with the reality of the Supreme Courtâs shrinking docket,79×79. Cohen & Cohen, supra note 77, at 991 (âThe federal appellate courts face the highest caseloads in their history, while the Supreme Court heard fewer cases in the 2018â2019 Term than in almost any other Term in modern times.â). which prevents tactically concurraling judges from knowing that their strategy will pan out.80×80. See Michael E. Solimine, Ideology and En Banc Review, 67 N.C. L. Rev. 29, 57 (1988) (âThe Supreme Court has great difficulty in deciding which cases among its burgeoning caseload to review . . . . [I]t is no longer tenable, if it ever was, to shift en banc responsibility to the Supreme Court.â). Should tactical concurrals fail, they undermine courtsâ perceived institutional legitimacy.81×81. This point is primarily based on sociological legitimacy. A decision âpossesses [sociological] legitimacy . . . insofar as the relevant public regards it as justified, appropriate, or otherwise deserving of support.â Richard H. Fallon, Jr., Legitimacy and the Constitution, 118 Harv. L. Rev. 1787, 1795 (2005). Because the decision to deny rehearing en banc leaves untouched the law that sparked a tactical concurral, denial of certiorari cements in place a precedent that faces open disagreement. Should the Court deny certiorari in New York, it will solidify precedent that the tactically concurraling judges decried as unconstitutional,82×82. See New York, 964 F.3d at 153 (Lohier, J., concurral). calling into question the judgesâ own faith in the circuitâs decisionmaking process and legitimacy.83×83. See Berzon, supra note 4, at 1491â92 (âDissents from the denial of rehearing en banc indicate that we . . . are unwilling to stand behind the results of our decision-making processes. That unwillingness signals a breakdown in the process of adversarial collaboration, as well as an institutional lack of confidence in it.â). In addition, if certiorari isnât granted, a tactical concurral suggests that a judge prioritized a tactical goal over the well-being of the litigants and, detrimentally, failed to achieve this goal.84×84. Cf. James L. Gibson & Gregory A. Caldeira, Has Legal Realism Damaged the Legitimacy of the U.S. Supreme Court?, 45 Law & Socây Rev. 195, 213 (2011) (arguing that the Courtâs âlegitimacy seems to flow from the view that discretion is being exercised in a principled, rather than strategic, wayâ). This open disagreement and strategic maneuvering could decrease the courtsâ legitimacy in a way that ultimately limits the efficacy of the judiciary.85×85. For example, legitimacy is needed to encourage people to abide by the law. See Tom R. Tyler, Procedural Justice, Legitimacy, and the Effective Rule of Law, 30 Crime & Just. 283, 286 (2003).
Judges Lohier and Hall, faced with a divisive issue and a divided circuit, likely viewed their tactical concurral as a tool to accelerate certiorari. But even if their votes to deny en banc review did not have a decisive effect on the outcome of the en banc petition, their decision to tactically concur will have a decisive impact on the judiciary if certiorari is denied. For their part, the judges appeared confident that certiorari was forthcoming.86×86. See New York, 964 F.3d at 169 (Katzmann, C.J., concurral) (âAll of my participating colleagues . . . seem to agree that Supreme Court review is now inevitable.â). Only time will tell whether that assessment and the judgesâ tactical decisions were correct.
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