Are There Too Many Dissents from Denial of En Banc Petitions?
Yesterday, the U.S. Court of Appeals for the Fourth Circuit denied a petition for rehearing en banc in Doe v. Fairfax County School Board by a vote of 9-6. At issue in Doe was when school districts may be held liable for sexual assaults that occur at school. A jury rejected Jane Doe’s title IX suit against the Fairfax County School Board, on the grounds that the school did not have sufficient knowledge of the assault to be held liable, and the trial judge rejected Doe’s motion for a new trial. On appeal, a divided panel reversed the district court, concluding that the trial court had applied the wrong legal standard. Reuters reports on the story here.
Two judges—Wilkinson and Niemeyer—dissented from the petition denial. Judge Wynn (who authored the original panel opinion) concurred in the denial, both to defend his opinion and to comment on the practice of issuing from dissents from denial of en banc decisions. This part of Judge Wynn’s opinion is particularly interesting.
Here is the relevant portion of Judge Wynn’s opinion.
Because this Court denies the petition for rehearing en banc, this matter is decided by the opinions produced by the three-judge panel that fully considered the issues after oral argument. Yet now, we confront two advisory opinions that purport to dissent from the denial of the petition to rehear this matter en banc. But those opinions provide next to no explanation for why our colleagues are dissenting from the denial of rehearing en banc, a procedural question falling under Federal Rule of Appellate Procedure 35(a). Instead, both opinions focus entirely on the underlying merits, and thus are no more than advisory opinions that read like editorials or legal commentary on the three-judge panel decision.
This is not a new practice, though until recently, it was uncommon in our circuit. See Cannon v. Kroger Co., 837 F.2d 660, 660 (4th Cir. 1988) (Murnaghan, J., dissenting from the denial of rehearing en banc) (noting that, as of the late 1980s, this practice was “unusual, if not extraordinary” in the Fourth Circuit). For decades in other circuits, both panel and non-panel members have issued merits opinions dissenting from the denial of rehearing en banc. E.g., Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg’l Plan. Agency, 228 F.3d 998, 999 (9th Cir. 2000) (Kozinski, J., dissenting from the denial of rehearing en banc in a case where he did not sit on the panel). “Since the first [dissent from a denial of rehearing en banc] in 1943, appellate judges have employed them with increasing regularity,” and the practice particularly picked up steam after the turn of the century. Jeremy D. Horowitz, Not Taking “No” for an Answer: An Empirical Assessment of Dissents from Denial of Rehearing En Banc, 102 Geo. L.J. 59, 60 (2013). The vast majority of these dissents are written by judges other than the panel dissenter. Id. at 74.
To be sure, the proliferation of dissents from the denial of rehearing en banc has “spark
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