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What Happens When Two Appellate Panels Disagree?Bruce D. Greenberg

When two trial level judges disagree about the same legal issue, that is not a big problem. A decision by one trial level judge does not bind another trial judge, and a different judge is free to reach a different result. Any dispute between trial level decisions can be sorted out by an appellate court. That is the rule in both the New Jersey and federal systems.

But what if two appellate panels disagree? Perhaps surprisingly, the result is different in New Jersey than in the Third Circuit.

New Jersey’s Appellate Division consists of approximately 32 judges, grouped into multiple “Parts” that are reconstituted each year. For every appeal, a panel of two or three judges from a designated Part is assigned to hear the case. The law in New Jersey is that the decision of one Appellate Division panel is not binding on another panel. Thus, if a panel disagrees with a decision of an earlier panel on the same legal issue, the later panel is free to go its own way.

There is no mechanism to take the disputed issue to the entire body of Appellate Division judges for resolution. Doing so with 32 judges would be unwieldy. But New Jersey’s Court Rules do provide a way to “break the tie” between the two panels. One of the main bases for review by the Supreme Court of New Jersey is the existence of a conflict in rulings of the Appellate Division. So when panels disagree, which is not often in any event, there is a ready way to settle the law once and for all by bringing the issue to the Supreme Court.

The Third Circuit is different. That court, whose total membership is roughly half the size of New Jersey’s Appellate Division, also sits in panels, almost always consisting of three judges. But the rule of the Third Circuit is that the decision of one panel is binding on another panel. As a result, a subsequent panel must follow the prior panel’s decision.

But unlike the Appellate Division, the Third Circuit (and all federal Circuit Courts of Appeal) have a procedure where the entire active membership of the court can consider an issue. That is known as en banc review. Since one panel cannot reject another’s ruling, en banc review is the only way for a Third Circuit panel decision to be overruled. Thus, parties who want to have a decision overruled can seek en banc review of a panel decision.

En banc review, however, is granted only relatively rarely. As a result, most Third Circuit decisions, once issued, stand. Later panels may attempt to distinguish a prior case in order to reach a different result, but they cannot overrule an earlier decision outright.

Though there generally cannot be directly conflicting Third Circuit decisions, rulings of the Third Circuit sometimes conflict with those of other Circuit Courts of Appeal. When that happens, parties have the ability to ask the Supreme Court of the United States to step in and resolve the conflict, just as parties can ask the Supreme Court of New Jersey to settle disputes between Appellate Division panels.

A conflict between Circuit Court rulings is one of the most common reasons for the Supreme Court of the United States, which grants review in only a minuscule fraction of cases brought to it, to take up a case. So parties in Third Circuit cases who cannot get en banc review by the Third Circuit may have to hope that there is a directly conflicting ruling in a different Circuit that will lead to Supreme Court review.