Two Concurring Eleventh Circuit Judges Question the Wisdom of a Federal Court of Appeals Issuing “Alternative Holdings” to Support a Decision

In United States v. Files, No. 21-12859 (11th Cir. Mar. 24, 2023) — an appeal of denial of relief to a prisoner under the First Step Act, Pub. L. No. 115-391, § 404, 132 Stat. 5194, 5222 (2018) — two of the panelists append a short concurrence questioning the wisdom of court of appeals’ decisions that purport to offer multiple rationales for their holdings, arguing that they encourage federal judges to overreach and foster shoddy judicial reasoning.

“The First Step Act of 2018 allows federal courts to reduce certain drug-related criminal sentences. In particular, § 404(b) of the Act permits ‘[a] court that imposed a sentence for a covered offense’ to ‘impose a reduced sentence as if sections 2 and 3 of the Fair Sentencing Act of 2010 . . . were in effect at the time the covered offense was committed.’ This case presents the following question: For what offenses may a court ‘impose a reduced sentence’ under § 404(b)—only ‘covered offenses,’ all offenses, or some unspecified middle-ground subset of offenses?”

Prior to reaching that merits decision, though, the panel first had to decide whether a prior panel decision – United States v. Denson, 963 F.3d 1080 (11th Cir. 2020) – holding that a district court “is permitted to reduce a defendant’s sentence” under § 404(b) “only on a ‘covered offense’” was controlling authority. “Applying our prior-panel-precedent rule, we must determine whether the Denson panel’s statement was a holding and, if it was, whether the Supreme Court’s intervening decision in Concepcion v. United States, 142 S. Ct. 2389 (2022), abrogated it.” [On the latter point, they find no conflict with the intervening Supreme Court authority.]

What complicates the panel’s sorting out whether Denson was controlling circuit authority for this case was that the quoted language was delivered as one of four alternative holdings in support of that decision. “[U]nder our precedent about precedent, the sort of reasoning employed in Denson—that a particular test doesn’t apply but that, even if it does, it isn’t satisfied—constitutes a prototypical alternative holding. Indeed, we have said— albeit (ironically) in dicta—that the alternative-holding rule applies in precisely these circumstances.”

The prisoner, Files, argued that the Denson language above was not controlling because “the Denson panel’s statement wasn’t strictly necessary to its conclusion that the district court didn’t exercise ‘significant discretion’ in ruling on Denson’s First Step Act motion. Even if that statement was absent, the argument goes—even if that particular limitation didn’t exist—the panel might still have concluded that the adjudication of Denson’s motion didn’t entail ‘significant discretion.’”

Yet the panel rejects application of a strict-necessity standard to ascertain whether an alternative holding is, indeed, a true holding of the court. “Our precedent about precedent makes clear that strict necessary-ness is not essential to a statement’s holdingness. And the Denson panel’s statements regarding First Step Act adjudications were clearly significant to its no-significant-discretion conclusion—and are thus fundamentally similar to the other sorts of determinations that we have traditionally accorded holding status. Accordingly, we treat the Denson panel’s statements regarding the scope of sentencing courts’ authority under § 404(b) as holdings.”

In a concurring opinion signed by Judge Newsom (also the author of the majority opinion) and Judge Tjoflat, the judges cast doubt on the judicial practice at the appellate level of offering alternative holdings. “Some have gone so far as to suggest that alternative holdings are unconstitutional—the premise being, in essence, that once a court has provided a single sufficient basis for resolving the dispute before it, the constitutional ‘Case[]’ has concluded and the ‘judicial power’ has been fully discharged. See U.S. Const. art. III, § 2.” But without specifically adopting that reasoning, the concurring judges suggest three other reasons for steering away from alternative holdings.

First, the “judicial role”: Rather than “law declaration,” federal appellate judges ought to primarily engaged in the “task of resolving concrete disputes.” Thus, “[w]ithout respect to whether the Constitution actually requires it to do so, once a court has fulfilled its obligation—that is, has said enough to resolve the parties’ dispute—it should just stop. It shouldn’t forge ahead, reach out, and declare more law.”

Second, “sound decisionmaking”: “[T]here’s likely an inverse relationship between the number of holdings a court purports to issue and the correctness of each. That’s not rocket science—or, to be fair, any kind of science. It’s just a common-sense observation that the more a court bites off, the less time and attention it has to savor and digest each constituent morsel.”

Finally, judicial impartiality and collegiality: “[W]hen a court reaches out to address and decide an issue—here, one unnecessary to the resolution of the dispute before it—it increases the risk that outside observers will perceive it (even if mistakenly) to be engaged in ‘political action’ and, accordingly, view its conduct with suspicion and cynicism . . . . If some judges write narrow, con[1]strained opinions while others reach out to decide as many issues as possible in successive alternative holdings, then our rule system[1]atically preferences the views of the most aggressive. I don’t think anyone wants that.”

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