Can Lower Courts Identify Scrivener's Errors on Remand in Higher Courts' Opinions? A Thought on Judge Posner in Sears (Now with a Postscript on Inferences from Denials of Rehearing)

On Monday Judge Posner issued a short opinion on fees in In re Sears, Roebuck & Co. Front-Loading Washer Products Liability Litigation, a case that attained a certain notoriety at the class-certification-appeal stage for Judge Posner's generous treatment of Rule 23(b)(3)'s predominance requirement and doubling down on the propriety of that treatment after his first opinion was GVR'd in light of Comcast Corp. v. Behrend—a decision which, in light of Comcast's subsequent interment in Tyson Foods and the Court's ultimate denial of cert in Sears on further petition from Posner's disposition of the GVR, seems wise.  

However, it also seems that, as ballyhooed as Sears was as a matter of class-action doctrine, it wasn't such a great case; plaintiffs will only receive a maximum of $900,000 from the case's settlement.  (Correction: I am reliably advised that the $900,000 was awarded to a smaller or lower-damages class, which complained of a defect in the Sears washers' control units, while the larger or more seriously aggrieved moldy-washer class, whose counsel's fees were not at issue in this appeal, received at least $12 million in settlement.  Both classes were at issue in Judge Posner's prior opinions on certification.  While Posner mentions the two separate classes in his opinion, one would never know from reading it that the control-unit class, rather than both classes or the moldy-washer class, was the one that got only $900,000 in settlement.)  Nevertheless, between the multiple trips to the Seventh Circuit and Supreme Court and the rather involved certification proceedings, class counsel, quoting Posner, "claimed to have incurred $3.16 million in fees . . . [and] subsequently increased their base fee estimate to $3.25 million, having discovered additional billable time."  They also requested that their actual fees be multiplied by 1.85 to 1.9 "to account for what they claimed to be their extraordinary effort[.]"  The district court found, Posner says, "that they were entitled to a base fee of only $2,726,191, which the court multiplied by 1.75, making the total fee award $4,770,834."

Now, Posner will decide that a multiplier (which is apparently quite common) isn't called for here, for reasons which I must say are quite unclear other than his unembroidered ipse dixit that class counsel "failed to prove that a reasonable fee would exceed . . . the pre-multiplier figure sought by class counsel."  (Judge Posner does, to be fair, tersely note earlier that the district court concluded that the case "wasn't very complex," a "conclusion [which] leaves us puzzled about the court's decision nevertheless to allow a multiplier.")  However, a lack of reasoning is far from the biggest problem with this opinion.  Here are its last three sentences:

The presumption [that "fees that exceed the recovery to the class are unreasonable"] is not irrebuttable, however, and in this case the extensive time and effort that class counsel had devoted to a difficult [AS: but not very complex?] case against a powerful corporation entitled them to a fee in excess of the benefits to the class. But they failed to prove that a reasonable fee would exceed $2.7 million—the pre-multiplier figure sought by class counsel and already thrice the damages awarded the class. We therefore reverse the judgment of the district court and remand with directions to award $2.7 million—no more, no less—in fees to the class counsel.

Two things have gone awry here, the second of which is an apparent scrivener's error in what Judge Posner is ordering the district court to do on remand.  The first is the claim that "2.7 million [was] the pre-multiplier figure sought by class counsel."  It's not; they initially sought $3.16 million in pre-multiplier fees and ultimately asked for $3.25 million in pre-multiplier fees, at least if Posner's earlier statement of the facts is to be believed.  $2.7 million—actually, $2,726,191—is what the district court found they were entitled to in pre-multiplier fees.  

The second and far more consequential mistake is the "remand with directions to award $2.7 million—no more, no less—in fees to the class counsel."  The district court found that class counsel was entitled to $2,726,191 in actual pre-multiplier fees, which is undeniably "more" ($26,191 more) than $2.7 million.  The opinion nowhere suggests that that finding was erroneous, clearly or otherwise, and the whole thrust of the opinion is that class counsel should get its pre-multiplier fees, whatever they are.  Yet the district court is ordered, pretty unambiguously, I would say, to reduce those pre-multiplier fees by $26,191 to $2,700,000.  Perhaps rounded numbers can be used as shorthand for unrounded numbers elsewhere discussed, but when you "remand with directions to award [a particular round number] no more, no less," it's hard to say that the round number is shorthand for a number $26,191, or roughly 1%, greater.

If class counsel are reading this, I think a petition for panel rehearing would obviously be a very good idea, but the more interesting question is whether the district court would be bound on remand to award $2,700,000 in the event rehearing isn't sought or granted.  (See note on the significance of a hypothetical denial of rehearing.*)  I think the answer is no; I can't see a reason why the district court shouldn't be allowed to detect scrivener's errors in decretal language in the same way that it could detect them in statutes, which are legal commands that must be followed just as much as a court of appeals or Supreme Court mandate is. 

The point, however, isn't an uncontroversial one.  For example, in Johnson v. Williams, the Supreme Court held that deferential AEDPA review applied to a particular habeas claim and remanded for further proceedings, presumably under that standard, consistent with its opinion.  However, at the top of its opinion, it carelessly and inconsistently wrote that "we hold . . . that the restrictive standard of review set out in § 2254(d)(2) . . . applies, and that under that standard respondent is not entitled to habeas relief"—a point which the rest of the opinion never addressed.  The Ninth Circuit (yes, that Ninth Circuit), including Judge Reinhardt (yes, that Judge Reinhardt), though well aware that this was almost certainly a mistake, felt constrained on remand "to follow the mandate of the Supreme Court," internally inconsistent and plainly marred by sloppy drafting though it was, and deny habeas relief.  It would take a subsequent GVR in which the Court tacitly admitted it messed up for the Ninth Circuit to adjudicate the prisoner's habeas claim under the standard the Court previously told the Ninth Circuit to adjudicate it under.

My cursory research on reading opinions to contain scrivener's errors shows that district courts, in reviewing ALJ opinions (or other agency opinions), identify scrivener's errors fairly often, that courts of appeals occasionally identify scrivener's errors in district-court opinions or sentences, but that, perhaps because of the constraints of the mandate rule and lower courts' reticence to criticize their superiors, lower courts hardly ever identify mistakes in higher courts' decisions on remand, or in higher courts' decisions more broadly.  The one instance I've found of a district court identifying a mistake in one of its circuit's opinions, though not one entered in the case before it, is in this old unpublished opinion by Judge Kimba Wood, which unfortunately isn't on Google Scholar or Courtlistener's new and purportedly comprehensive database of every opinion on Pacer.  The particular mistake she caught rather puts one in mind of Justice Scalia's concurring opinion in Bock Laundry (see my previous post on mistake and scrivener's error):

Defendants understandably retreat from this interpretation. They ultimately characterize 181 East 73rd Street as holding that Standard 2 should apply to both plaintiffs and defendants, whether they are sponsors or tenants. The support for this view is in the last sentence of the text of 181 East 73rd Street. “And in this case, congressional intent and the unambiguous statutory language are in harmony—a party may recover attorneys' fees under the Abuse Relief Act only if the suit is lacking in substantial merit.” 954 F.2d at 51. The word “party” in this sentence suggests that Standard 2 applies to plaintiffs and defendants, whether they be tenants or sponsors. Taken literally, the sentence implies that the unambiguous statutory language of [15 U.S.C] § 3611(d) does not single out defendants for special treatment with respect to attorneys' fees, despite the fact that one of the two sentences in § 3611(d) states: “A defendant may recover reasonable attorneys' fees if the court determines that the cause of action filed by the plaintiff is frivolous, malicious, or lacking in substantial merit.” Because that is an absurd result that finds no support in the rest of the Second Circuit's opinion, I can only assume that the term “party” was placed in that sentence by mistake, instead of the word “defendant.”

305 E. 24th Owners Corp. v. Parman Co., No. 85 CIV. 3788 (KMW), 1992 WL 209292, at *2 (S.D.N.Y. Aug. 18, 1992) (emphasis added).  The Second Circuit would correct the mistake in its prior opinion rather more obliquely on appeal.

A postscript on rehearing

* Should the Seventh Circuit deny panel rehearing, that might seem a signal that for some unexpressed reason, the panel really thought the district court's finding on pre-multiplier fees was $26,191 off, or that three times what plaintiffs would receive was enough, 3.03 times was too much, and that class counsel would have to eat $26,191.  (Indeed, it's not completely impossible that Judge Posner was thinking the latter.)  

A lot depends, though, on the chariness with which rehearing is granted.  In Johnson, the Supreme Court denied rehearing, which the Ninth Circuit incorrectly took as a signal that the Court really meant its unexplained holding.  But after the Ninth Circuit wrote about how unexplained and inconsistent with the rest of Johnson that holding was and how compelled they were to follow it all the same, the Court quietly granted cert, vacated the Ninth Circuit's faithful application of their mandate, and remanded with directions to consider the petitioner's claim under AEDPA, thereby tacitly overruling their prior "holding."  The moral of that story seems to be that the Court doesn't grant rehearing to fix mistakes in its opinions, even if it really knows they're there.  And of course, this comes as no surprise; the Court virtually never grants rehearing.  The Court's reluctance to grant rehearing to correct mistakes, though, doesn't mean that its denials of rehearing clarify that its alleged mistakes aren't mistakes, or ratify the mistakes; quite the opposite.  It means when it denies rehearing, it isn't deciding whether its opinion is mistaken, but is deciding something else (whether, perhaps, the mistake is important enough to warrant the embarrassment of rehearing).  Since rehearing denials don't seem to tell us much about whether the Court meant what it appears to have accidentally said, a lower court is still free to determine, on my view, that it's clear from the entirety of the Court's opinion that it didn't mean to say what it did.

On the other hand, if a court usually grants rehearing when its opinions contain scrivener's errors, even if those errors are only important to the parties, the unexplained denial of rehearing probably does suggest that that court doesn't think its opinion contains a scrivener's error.  The best practice for appellate courts, however, would be to explain why they're denying a scrivener's-error-based rehearing petition so that it's clear to lower courts that the appellate court has rejected the claim of scrivener's error, rather than merely having elected not to address it for reasons besides its merits.  At the least, appellate courts should be more transparent about their rehearing standards in this regard so that reasonable inferences can be drawn from unexplained denials, instead of shaky inferences from a set of brute results on rehearing petitions.  For example, if the Seventh Circuit were to deny rehearing in Sears without explanation, a lower court would probably have to look at a large set of rehearing denials and grants to determine whether the Seventh Circuit regularly denies rehearing petitions presenting valid claims of scrivener's error, or whether a denial truly signals a merits rejection of such a claim given that all the good ones garner rehearing.