It fails to solve precedent.

This type of case poses a significant dilemma for stare decisis in the federal courts of appeals. Under the law of the circuit doctrine, circuit precedents are binding on that court unless a majority of active judges in the circuit overturn a decision in an en banc proceeding or the precedent is directly overruled by the Supreme Court.6 But in some circuits, when a Supreme Court decision casts doubt on—without directly overruling—a prior circuit precedent, a panel of court of appeals judges can overrule that precedent and bypass an en banc proceeding.7 In other circuits, a panel’s authority to overrule circuit precedent under these circumstances is very narrowly circumscribed.8 This type of situation commonly arises when the Supreme Court interprets a statute that bears some relation to the one addressed by a circuit precedent. The issue also presents itself when the Supreme Court interprets the same constitutional or statutory provision as the circuit precedent but considers different factual subject matter.

The problem of undermined-but-not-overruled circuit precedent is a recurring dilemma for federal courts of appeals.9 The Sixth Circuit, for example, recently faced this dilemma in Jacobs v. Alam.10 The plaintiff filed a Bivens11 action against federal law enforcement agents to recover damages for excessive force, false arrest, malicious prosecution, fabrication of evidence, and civil conspiracy.12 The Sixth Circuit (but not the Supreme Court) had previously recognized Bivens claims for damages in all of those contexts.13 But after those Sixth Circuit decisions, the Supreme Court decided Ziglar v. Abbasi, which concluded that if a case presents a new Bivens context that is “different in a meaningful way from previous Bivens cases decided by [the Supreme] Court,” then the deciding court should not make a Bivens remedy available if there are “special factors counselling hesitation.”14 The Sixth Circuit panel in Jacobs recognized that had Abbasi not been decided, “defendants’ appeal would have no merit” under circuit precedent.15 But although Abbasi did not directly overrule those Bivens circuit precedents,16 the decision called into question whether they were still good law, or whether the court needed to perform a special factors analysis. Ultimately, the Jacobs panel did not “deem these Sixth Circuit precedents inconsistent with Ziglar [v. Abbasi],” and thus, it concluded that it was bound to follow them without resort to a special factors analysis.17