     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.      I write

7    separately to answer respectfully the concurring opinions of

8    Judge Calabresi and Judge Katzmann. 1

9          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.      In effect, this has become a Circuit

14   tradition of hearing virtually no cases in banc.

15         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.

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1    the Court’s decisions or “the proceeding involves a question

2    of exceptional importance.”   Fed. R. App. P. 35(a).

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.   See Fed. R. App. P. 35(b).

6        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.     I

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.   As applied to this case, that means

17   that there might be discretionary grounds for denying in

18   banc review were it not already foreclosed by tradition.2

         2
             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.     No doubt, the proper exercise of discretion

4   results in the denial of review in the overwhelming number

5   of cases.     And the resulting pattern may resemble the

6   pattern of denial that would result from saying “no” by

7   tradition.     But the decision to grant or deny in banc review

8   is like any other discretionary decision in the sense that

9   discretion should be exercised, not elided or stuck in a


    “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.”).

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1    default position.   See United States v. Campo, 140 F.3d 415,

2    419 (2d Cir. 1998) (holding that “refusal to exercise

3    discretion accorded [the court] by law . . . constitutes an

4    error of law”).

5        The exercise of discretion to hear cases in banc is

6    integral to the judicial process.   The advisory notes

7    emphasize that “an en banc proceeding provides a safeguard

8    against unnecessary intercircuit conflicts.”    See Fed. R.

9    App. P. 35, Advisory Committee Notes (1998 Amendments).       In

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       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.    Cf. Landell v.

20   Sorrell, 406 F.3d 159, 167 (2d Cir 2005) (Sack, J., and


                                   4
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.     If

8    issues are important enough to warrant Supreme Court review,

9    they are important enough for our full Court to consider and

10   decide on the merits.   Of course, if an in banc poll

11   discloses broad-based agreement with the panel opinion, in

12   banc review may be a spinning of wheels.   Under such

13   circumstances, it may very well be an appropriate exercise

14   of discretion to deny rehearing in banc.   But to rely on

15   tradition to deny rehearing in banc starts to look very much

16   like abuse of discretion.




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