Miller v. United States

RIPPLE, Circuit Judge,

dissenting.

In my view, summary affirmance on the basis of a memorandum order issued by the district court should be reserved for the most extraordinary of situations. This principle is especially true when the decision of this court is not the product of the usual processes of decision-making, but of a preliminary screening. Before we truncate the usual appellate procedures, at a minimum, the appeal ought to be facially frivolous, or the writing of the district court should be so extensive that it fairly can be said to be responsive to all the arguments made by the appellant in this court. In any event, our basis of decision *584should be clear to the Supreme Court of the United States when it reviews our decision if a petition for certiorari is filed.

In the case before us, the appeal cannot be considered facially frivolous. Indeed, both parties have submitted extensive and thoughtful briefs. Nor can the discussion of the issue on appeal by the district court be said to be totally responsive to the presentation of the appellant in this court. Finally, our order in this case, adopting the order of the district court, does not fulfill our obligation to provide the Supreme Court with an adequate explanation of our decision.

Accordingly, I respectfully dissent from the order issued by the court today. I would set this case for oral argument in due course.