A Ninth Circuit judge is calling on the Supreme Court to discard a circuit rule that he says traps panels in outdated precedent even after the Justices have undercut it. In a dissent from the denial of rehearing en banc in Whitfield v. Mullin, Judge Lawrence VanDyke—joined by Judges Patrick Bumatay and Eric Tung—wrote that the Ninth Circuit's test from Miller v. Gammie improperly privileges circuit precedent over more recent Supreme Court instructions.
Under Miller, a three-judge panel may disregard circuit precedent only if it is 'clearly irreconcilable' with an intervening Supreme Court decision. VanDyke argued that this bar is too high: when circuit law is merely inconsistent with what the Court has since said, panels cannot apply the newer guidance. The result, he contended, is that erroneous precedent persists because en banc review is costly, busy judges cannot take every case, and courts are unlikely to rehear cases that would abandon their preferred doctrinal positions.
VanDyke also argued that the Supreme Court should not have to correct the Ninth Circuit's errors seriatim, one case at a time. Overturning Miller, he said, would let three-judge panels help eliminate doctrines inconsistent with Supreme Court authority. The underlying case concerns the circuit's 'serious questions' standard for preliminary injunctions, but his dissent used it to urge broader reform of the precedent-filtering rule.