Watson v. Geren

• Decision Date: 30 October 2009
• Docket Number: No. 07-2563-pr.,07-2563-pr.
• Citation: 587 F.3d 156
• Parties: Timothy D. WATSON, Petitioner-Appellee, v. Pete GEREN, Secretary of the Army, Respondent-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

587 F.3d 156

Timothy D. WATSON, Petitioner-Appellee, v.Pete GEREN, Secretary of the Army, Respondent-Appellant.

No. 07-2563-pr.

United States Court of Appeals, Second Circuit.

October 30, 2009.

Raymond J. Toney, Esq., Law Office of Raymond J. Toney, New York, NY, for Petitioner-Appellee.

Anthony Steinmeyer, Esq., Joshua P. Waldman, Esq., U.S. Department of Justice, Washington, DC, Arthur Eisenberg, Esq., New York Civil Liberties Union Foundation, New York, NY, for Respondent-Appellant.

POOLER, KATZMANN, B.D. PARKER, WESLEY and HALL, Circuit Judges, concurring in the denial of rehearing en banc.

ORDER

Following disposition of this appeal on June 25, 2009, an active judge of the Court requested a poll on whether to rehear the casein banc.A poll having been conducted and there being no majority favoring in banc review, rehearing in banc in hereby

DENIED.

With this Order is filed a per curiam opinion concurring in the denial of rehearing in banc, and Judge Raggi files an opinion dissenting from the denial of rehearing in banc in which Chief Judge Jacobs and Judges Cabranes and Livingston join.

PER CURIAM.

Weconcur in the decision of the court to deny rehearing en banc in this case.¹

In a holding that applies only to the Department of the Army Conscientious Objector Review Board(DACORB), a unanimous three judge panel held that "[w]here the DACORB does not provide an adequate statement of the reason for its denial of a conscientious objector application, a district court must remand to the Army for an adequate statement of reasons unless such remand would be utterly futile, as when the record reveals there is no possible basis in fact to support the decision."Watson v. Geren,569 F.3d 115, 134(2d Cir.2009).There is no justifiable reason to go en banc with respect to a case whose narrow holding applies only to the DACORB,² whose decisions we review once in a generation.³The fact that this issue arises so infrequently lends credence to our view that en banc review is not "necessary to secure or maintain uniformity of the court's decisions."Fed. R.App. P. 35(a)(1).We adhere to the well-established principle that "[e]n banccourts are the exception, not the rule."United States v. American-Foreign S.S. Corp.,363 U.S. 685, 689, 80 S.Ct. 1336, 4 L.Ed.2d 1491(1960).In any event, the panel's decision, which recognizes that in the ordinary course, remand to the DACORB for a statement of reasons is appropriate and that we may decline to remand only in the strongest of circumstances — that is, in the rare instance in which there is no "basis in fact" to support the denial on any valid ground, such that the DACORB's error is so fundamental and pervasive as to be uncorrectable as a matter of law — is supported in established law.Given that the panel's decision does not seek to depart from existing standards, the issue presented by this appeal is not properly considered a "question of exceptional importance" within the meaning of Federal Rule of Appellate Procedure 35(a)(2).See alsoJon O. Newman, In Banc Practice in the Second Circuit: The Virtues of Restraint, 50 Brook. L.Rev. 365, 382-83(1984);Wilfred Feinberg, Unique Customs and Practices of the Second Circuit, 14 HofstraL.Rev. 297, 311-12(1986).Moreover, as the panel decision noted, the government acknowledged the correctness of this underlying standard at oral argument, and following publication of the court's opinion relying on the government's acknowledgment, the government did not seek panel rehearing or rehearing en banc, nor did it move to stay the mandate.⁴

In this circuit's only case directly on point, United States ex rel. Checkman v. Laird,469 F.2d 773(2d Cir.1972), the court made clear that the rationale behind the principle it announced, that the DACORB's decision "must stand or fall on the basis of the reasons stated," is that "[o]therwise a court, if it sustains a decision by recourse to reasons outside those specified, opens the door to an improper substituting of the court's judgment and evaluation of evidence in place of that of the agency (here the CORB) or official with responsibility.The court's judgment, its reasons and approaches, may not be acceptable to and may even have been discredited by the administrative officials responsible."469 F.2d at 780-81(emphasis added);see alsoid. at 779 n. 7("[W]here no reasons are given for a denial of [conscientious objector] status, and the record before the selective service officials contains both valid and invalid grounds for the denial, the denial cannot be sustained because it is impossible to know whether the invalid rather than the valid grounds were relied upon."(emphases added));id. at 780 n. 10("[I]t is not the function of this court to search the record for some basis to affirm the Army's decision when the reasons given therefor are inadequate."(internal quotation marks omitted and emphasis added));id. at 781-82(rejecting the government's contention that the court was not limited to determining whether there was a basis in fact to support the reasons given by the DACORB, and instead could search the record for any basis in fact to support the DACORB's denial of the application);id. at 784("The CORB's finding of insincerity was not accompanied by any reasons, as required ....That alone precludes affirmance of its decision on grounds of insincerity, on the record as it stands."(emphasis added)).

Moreover, the rule announced by the panel in Watson is supported by the only Court of Appeals case to ever consider the question at issue here: whether remand to the DACORB for a statement of reasons is necessary where there is no basis in fact to support the decision.In United States ex rel. Coates v. Laird,the district court indicated that there was a possible basis in fact to support the DACORB's decision, but granted the petitioner a writ of habeas corpus anyway, explaining that where the DACORB did not state its reasons, and "some of the possible though unstated grounds for the decision were invalid and some were valid, it was impossible to tell which grounds the authority actually used as a basis for the decision."United States ex rel. Coates v. Laird,358 F.Supp. 214, 219-20(W.D.N.C.1973).The Fourth Circuit reversed, holding that the district court should not have summarily granted the writ.Instead, "[t]he proper procedure in such a case where the record evidences alternative grounds, one possibly valid and the other invalid, is to remand the proceedings to the service for reprocessing and for compliance with the requirement of a statement of reasons."494 F.2d 709, 712(4th Cir.1974).The court explained "if there are procedural defects in the denial at the military level of an in-service [conscientious objector] application, such as failure to state the reasons for denial, remand to the military ... is the proper procedure, unless the record shows that there is no basis in fact for denial on any valid ground."Id.(internal quotation marks omitted)(emphasis added).

We fail to see how the narrow holding in this case changes existing law or alters the balance of authority between the executive and judicial branches.If anything, it reinforces the importance of the ordinary remand rule, and the court's limited role in reviewing DACORB decisions.

We recognize that there may be differing views as to how the law should be applied to the facts in this case.⁵But if the legal standard is correct, then the full court should not occupy itself with whether the law has been correctly applied to the facts.SeeLandell v. Sorrell,406 F.3d 159, 165-66(2d Cir.2005);Gilliard v. Oswald,557 F.2d 359, 359(2d Cir.1977).If that were the appropriate course, then our dockets would be overloaded with en banc polls contesting a panel's examination of particular sets of facts.

En banc review should be limited generally to only those cases that raise issues of important systemic consequences for the development of the law and the administration of justice.We respectfully suggest that this is not one of those cases.

REENA RAGGI, Circuit Judge, with whom Chief Judge JACOBS, Judge CABRANES, and Judge LIVINGSTON, join, dissenting.

The court today decides not to convene en banc to review Watson v. Geren,569 F.3d 115(2d Cir.2009), a decision that declines to apply the remand rule to permit an executive agency to remedy a procedural error of inadequate explanation at its final step of decisionmaking.Instead, upon judicial review of the administrative record, Watson concludes that it would be impossible for the agency to identify any reason with a basis in fact to support its challenged decision.The conclusion is disturbing for many reasons, not least of which are that the "agency" in question is the United States Army and the challenged decision is the denial of a conscientious objector application, an issue on which the applicant bears the burden of proof by clear and convincing evidence and over which judicial review is "the narrowest known to the law."United States v. Corliss,280 F.2d 808, 810(2d Cir.1960)(Friendly, J.)(internal quotation marks omitted).¹To justify its departure from the remand rule — which here results in the affirmance of a district court judgment ordering the Army to classify petitioner as a conscientious objector and to grant him immediate discharge, seeWatson v. Geren,483 F.Supp.2d 226(E.D.N.Y.2007) — Watson invokes the doctrine of "futility."Heretofore, our court has applied "futility" to affirm agency decisions where we could confidently conclude that the agency would reach the same result in the absence of the identified error.See, e.g., Krauss v. Oxford Health Plans, Inc.,517 F.3d 614, 630(2d Cir.2008)(cited inWatson to support application of futility doctrine, see569 F.3d at 129).Such application, akin to harmless error review, finds support in the Administrative Procedure Act("APA"), which instructs courts to take ...