Hold, please

It’s risky, but waiting for other decisions can be beneficial

De Novo Review

Michael A. Scodro

Michael Scodro is a partner in the Supreme Court and appellate practice at Mayer Brown.  Previously, he served for more than six years as Illinois solicitor general. Scodro also teaches a seminar on the U.S. Supreme Court at the University of Chicago Law School and currently serves as president of the Seventh Circuit Bar Association.
mscodro@mayerbrown.com

Typically, filing a petition for writ of certiorari in the U.S. Supreme Court means asking the court to include your case among the extraordinarily small number selected for full briefing and argument. These are the Supreme Court cases we read about in the press and envision when we think of the court’s work.

But there are other, less obvious, options for seeking relief in the Supreme Court from an adverse lower-court ruling. One of these is asking the court to hold your petition until a decision issues in a case pending in the high court raising the same or a closely related issue. If the Supreme Court ultimately decides that pending case in a manner bearing on the reasoning applied, and conclusion reached, by the lower court in your case, the Supreme Court is likely to issue a short order granting your petition, vacating the judgment below and remanding your case for further consideration in light of the newly minted precedent.

To be sure, putting your petition on hold in the hopes of such a “grant, vacate and remand” (or “GVR”) order may not be your first choice, and certiorari petitions making this request often do so in the alternative, after first asking the court to accept the case for plenary review. Nor do GVR orders guarantee a different result on remand. On the contrary, depending on how closely your case resembles the new Supreme Court decision, the lower court ultimately may reach the same, adverse conclusion it reached the first time around.

But a GVR presents an opportunity for a better outcome and in that regard it beats an order denying your petition. (Of course, if the question presented in your case raises an issue identical to one then pending before the court, the court may hold and later GVR your case without your asking, but it is better to monitor the court’s docket and alert the court to the overlap between your case and a pending matter, particularly if the connection between the two is not immediately obvious).

A recent example of a successful request for a hold and GVR is the certiorari petition in Enclarity Inc. v. Fulton, 2019 WL 1436684 (U.S. Mar. 27, 2019) (No. 18-1258). Substantively, the petition asked the court to decide whether certain fax transmissions constituted “advertisement[s]” within the meaning of the Telephone Consumer Protection Act (“TCPA”), as further interpreted by a 2006 FCC order. Earlier in the term, however, the court accepted another case, PDR Network, LLC v. Carlton & Harris Chiropractic, Inc., 139 S. Ct. 2051 (2019), to decide whether the district court there should have been bound to accept the FCC’s construction of the TCPA in the 2006 order. In its certiorari petition, Enclarity asked the Supreme Court to “hold the [Enclarity] petition pending [the Court’s] decision in PDR Network,” and “then either (1) grant the [Enclarity] petition, vacate the judgment below, and remand for further consideration in light of PDR Network, or (2) grant the petition for plenary review.” Enclarity Inc., 2019 WL 1436684, at *2.

Ultimately, the court did not decide the question presented in PDR Network, holding instead that the court of appeals needed to address certain threshold issues in the first instance. (See 139 S. Ct. at 2055-56). Nevertheless, the court accepted Enclarity’s invitation to issue a GVR order in that case, employing the court’s pattern language for such orders: “Petition for writ of certiorari granted. Judgment vacated, and case remanded to the United States Court of Appeals for the Sixth Circuit for further consideration in light of PDR Network . . . .” 140 S. Ct. 104 (2019). Whatever the result on remand, the case remained alive for another round in the appellate court.

Finally, note that it is also possible to seek a GVR in light of a Supreme Court decision that issues after the lower court rules in your case but before you file your certiorari petition. Of course, there is no need for a hold in these circumstances, for the court has already issued its decision, but there is still an opportunity to seek relief under the court’s new precedent. For a recent example, see the certiorari petition filed in Matsura v. United States, 2019 WL 5617697 (U.S. Oct. 25, 2019) (No. 19-568), successfully seeking a GVR in light of the Court’s decision in Rehaif v. United States, 139 S. Ct. 2191 (2019). (See Matsura, 140 S. Ct. 991 (2020)).

In short, keeping an eye on the Supreme Court’s pending and recently decided cases can open up additional opportunities at the certiorari stage, at times allowing you to seek relief for your client short of plenary review in the Court.