Cite as: 574 U. S. ____ (2014)
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`Statement of KAGAN, J.
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`SUPREME COURT OF THE UNITED STATES
`PATRICK HENRY JOSEPH, PETITIONER v.
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`UNITED STATES
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`ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED
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`STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
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` No. 13–10639. Decided December 1, 2014
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`The petition for a writ of certiorari is denied. JUSTICE
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`KENNEDY and JUSTICE SOTOMAYOR would grant the peti-
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`tion for a writ of certiorari.
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`Statement of JUSTICE KAGAN, with whom JUSTICE
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`GINSBURG and JUSTICE BREYER join, respecting the denial
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`of certiorari.
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`The courts of appeals have wide discretion to adopt and
`apply “procedural rules governing the management of
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`litigation.” Thomas v. Arn, 474 U. S. 140, 146 (1985). But
`that discretion is not unlimited. Procedural rules of
`course must yield to constitutional and statutory require-
`ments. Id., at 148. And more to the point here, those
`rules, along with their application to particular cases,
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`must “represent reasoned exercises of the courts’ author-
`ity.” Ortega-Rodriguez v. United States, 507 U. S. 234, 244
`(1993). That is not a high bar, but it is an important one.
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`Petitioner Patrick Joseph asks us to review the Elev-
`enth Circuit’s application of a rule providing that issues
`not raised in an opening appellate brief are forfeited, and
`so may not be raised in subsequent filings. See Order in
`No. 12–16167 (July 8, 2013), App. 6 to Pet. for Cert. (citing
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`United States v. Hembree, 381 F. 3d 1109 (CA11 2004)).
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`In the usual case, that rule (which all the federal courts of
`appeals employ) makes excellent sense: It ensures that
`opposing parties will have notice of every issue in an
`appeal, and that neither they nor reviewing courts will
`incur needless costs from eleventh-hour changes of course.
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`But this is not the usual case. Joseph took an appeal to
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` JOSEPH v. UNITED STATES
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`Statement of KAGAN, J.
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`the Eleventh Circuit after he was convicted of several drug
`offenses and sentenced as a career offender under the
`Sentencing Guidelines. At the time Joseph filed his open-
`ing brief, Eleventh Circuit precedent precluded the argu-
`ment that he did not properly qualify as a career offender.
`See United States v. Rainer, 616 F. 3d 1212, 1215–1216
`(2010). Soon after his filing, however, this Court decided
`Descamps v. United States, 570 U. S. ___ (2013), which
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`made clear that the relevant Circuit precedent was “no
`longer good law,” United States v. Howard, 742 F. 3d 1334,
`1345 (2014). Five days later (which was still nine days
`before the Government’s brief came due), Joseph moved to
`file a replacement brief relying on Descamps to challenge
`his classification as a career offender. (He acknowledged
`that because he had failed to raise the Descamps claim at
`trial, it would be reviewable for plain error.) The Gov-
`ernment did not oppose the motion, asking only for addi-
` tional time to file its own brief. The Eleventh Circuit
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`nonetheless refused to accept Joseph’s filing.
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`Not a single other court of appeals would have done
`that. See United States v. Vanorden, 414 F. 3d 1321, 1324
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`(CA11 2005) (Tjoflat, J., specially concurring) (noting that
`the Eleventh Circuit’s rule is “inconsistent with . . . the
`law of every other circuit”). Every circuit, save the Elev-
`enth, accepts supplemental or substitute briefs as a mat-
`ter of course when this Court issues a decision that upsets
`precedent relevant to a pending case and thereby provides
`an appellant with a new theory or claim. See, e.g., United
`States v. Anderson, 745 F. 3d 593, 594, 598 (CA1 2014)
`(Descamps claim); United States v. Clark, 28 Fed. Appx.
`34, 35 (CA2 2001); United States v. Blair, 734 F. 3d 218,
`223 (CA3 2013) (Descamps claim); United States v. Mus-
`leh, 106 Fed. Appx. 850, 857, n. 4 (CA4 2004); United
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`States v. Delgado, 256 F. 3d 264, 280 (CA5 2001); United
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`States v. Mitchell, 743 F. 3d 1054, 1063 (CA6 2014)
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`(Descamps claim); United States v. Askew, 403 F. 3d 496,
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`Cite as:
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` 574 U. S. ____ (2014)
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`Statement of KAGAN, J.
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`509 (CA7 2005); United States v. Bankhead, 746 F. 3d 323,
`325 (CA8 2014) (Descamps claim); United States v. Cabrera-
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`Guiterrez, 756 F. 3d 1125, 1127 (CA9 2013) (Descamps
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`claim); United States v. Clifton, 406 F. 3d 1173, 1175, n. 1
`(CA10 2005); United States v. Coumaris, 399 F. 3d 343,
`347 (CADC 2005). Indeed, each considers such briefs even
`when submitted later in the appellate process than Joseph
`tried to file his. See, e.g., Cabrera-Guiterrez, 756 F. 3d, at
`1127 (after argument); Blair, 734 F. 3d, at 223 (after full
`briefing). And as the above citations show, the circuit
`courts—once again, bar the Eleventh—have routinely
`followed that practice in the wake of Descamps.
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`There is good reason for this near-unanimity. When a
`new claim is based on an intervening Supreme Court
`decision—as Joseph’s is on Descamps—the failure to raise
`the claim in an opening brief reflects not a lack of dili-
`gence, but merely a want of clairvoyance. Relying on that
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`misprediction alone to deny relief to an appellant like
`Joseph while granting it to the defendant in Descamps ill-
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`fits with the principle, animating our criminal retroactiv-
`ity law, of “treating similarly situated defendants the
`same.” Griffith v. Kentucky, 479 U. S. 314, 323, 328 (1987)
`(holding that new rules “appl[y] retroactively to all cases
`. . . pending on direct review”). And indeed, insisting on
`preservation of claims in this context forces every appel-
`lant to raise “claims that are squarely foreclosed by circuit
`and [even] Supreme Court precedent on the off chance
`that [a new] decision will make them suddenly viable.”
`Vanorden, 414 F. 3d, at 1324 (Tjoflat, J., specially concur-
`ring). That is an odd result for a procedural rule designed
`in part to promote judicial economy.
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`Perhaps for such reasons, even the Eleventh Circuit
`does not apply its default rule consistently when this
`Court hands down a new decision. Sometimes, as here,
`the court views its rule as pertaining “uniformly and
`equally to all cases,” so that a panel becomes simply “un-
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` JOSEPH v. UNITED STATES
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`Statement of KAGAN, J.
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` able to entertain” any claim not raised in an initial brief.
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`United States v. Bordon, 421 F. 3d 1202, 1206, n. 1 (2005).
`But other times, the court abandons the rule without
`explanation—including, at least twice, for Descamps
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`claims. See, e.g., United States v. Ramirez-Flores, 743
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`F. 3d 816, 820 (2014) (addressing a Descamps claim raised
`“for the first time at oral argument”); United States v.
`Estrella, 758 F. 3d 1239 (2014) (addressing a Descamps
`claim raised first in a Rule 28(j) letter after all briefs were
`filed); United States v. Levy, 379 F. 3d 1241, 1244–1245
`(2004) (per curiam) (acknowledging “a few decisions where
`this Court apparently considered a new issue raised in a
`supplemental brief ”). Thus, criminal defendants with
`unpreserved new claims may be treated differently within
`the Eleventh Circuit, just as they are as between the
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`Eleventh Circuit and every other court of appeals.
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`I nonetheless agree with the Court’s decision today to
`deny certiorari. We do not often review the circuit courts’
`procedural rules. And we usually allow the courts of
`appeals to clean up intra-circuit divisions on their own, in
`part because their doing so may eliminate any conflict
`with other courts of appeals. For those combined reasons,
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`I favor deferring, for now, to the Eleventh Circuit, in the
`hope that it will reconsider whether its current practice
`amounts to a “reasoned exercise[ ]” of its authority. Ortega-
`Rodriguez, 507 U. S., at 244.