An Officer’s Question
A recent question I received from an officer highlighted the importance of understanding how lower appellate courts apply precedent in resolving cases and what it takes to overrule or abrogate precedent. The focus here is on the federal circuit courts of appeals. The exact question asked by the officer is not particularly consequential to the discussion herein.
The officer’s question involved United States v. Perez, 89 F.4th 247 (1st Cir. 2023). The issue in Perez was whether the warrantless search of a backpack was justified under the search incident to arrest doctrine. The court upheld the search by applying the precedent established in United States v. Eatherton, 519 F.2d 603 (1st Cir. 1975). The decision in Perez put the First Circuit among only a small minority of federal courts nationwide that have upheld searches incident to arrest in similar circumstances. Regardless of whether the Perez court agreed in theory with the majority position, it was required to follow the binding Eatherton case. This is because of the “law of the circuit doctrine.”
Panels and Precedents
In the federal circuit courts of appeals, decisions are most often rendered by panels of three judges. At full capacity, the Ninth Circuit has the most judges (29) and the First Circuit has the least (6). Published decisions of a circuit panel are binding authority on all of the district (trial) courts within that circuit. But a decision of a circuit panel is not binding authority outside of that circuit. A circuit panel decision may be appealed to the full roster of judges in that circuit, called an en banc court. (The exception to this composition of an en banc court is the Ninth Circuit where only 10 randomly selected circuit judges and the chief judge sit en banc). The en banc court can also vote to hear a panel decision that was not appealed by one of the parties. En banc courts may overrule or affirm panel decisions. The holding of an en banc court becomes the controlling law on that particular issue (and the panel decision is vacated).
The law of the circuit doctrine says that a decision by a circuit panel is not only binding authority on all district courts within that circuit, it is also binding on all future panels in that circuit (this is called “horizontal stare decisis”). Only two courts can overrule a circuit panel: an en banc court in that circuit or the Supreme Court of the United States. Notably, a subsequent circuit panel generally cannot overrule a prior circuit panel.
SCOTUS and the Shading of Circuit Precedent
Here’s where it gets interesting: What if a subsequent Supreme Court decision doesn’t outright overrule an existing circuit panel decision but instead casts doubt on that panel decision’s continued viability? For example, the Supreme Court case Arizona v. Gant, 556 U.S. 332 (2009), has called into question prior lower court caselaw regarding the scope of the search incident to arrest doctrine. This was the issue confronted by the First Circuit in Perez (Perez was a panel decision). The Perez panel, in light of the law of the circuit doctrine, was potentially bound by the Eatherton case (also a panel decision). But Gant could be read as undermining the rationale, and therefore possibly
the holding, in Eatherton. Is the Perez panel still bound by the Eatherton decision in light of Gant? The Perez panel said “yes.” The law of the circuit doctrine generally only allows an en banc court to overrule prior panel precedent when a subsequent Supreme Court decision calls into question (but does not explicitly overrule) existing circuit precedent. (I say “generally” because there are slightly differing rules among the circuits that do allow a panel to overrule existing circuit precedent in light of developments in the Supreme Court caselaw but they are very infrequently invoked.)
The en banc First Circuit declined to review the panel’s decision in Perez. This means that Eatherton, regardless of it’s potential weakening by Gant, remains controlling precedent in the First Circuit. Interestingly, in the written order denying en banc review, the court practically begged the Supreme Court to take a similar case to make clear Gant’s effect on the scope of the search incident to arrest doctrine given the disparate treatment of the issue in the lower courts. The defendant in Perez did indeed request that the Supreme Court take his case but the Court declined his request earlier in 2025.
