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The Curious Case(s) of the Published Denial of Rehearing

Twice this week the Fourth Circuit took the relatively unusual step of issuing published opinions on orders denying rehearing of a case.  Ordinarily such orders are not published for the simple reason that there is no accompanying written opinion to publish.  Not so this week, however.

On Monday the Court denied a request for panel rehearing and rehearing en banc in US v. Brown, a case involving criminal sentencing and due process.  Chief Judge Gregory, who had dissented from the panel decision, dissented from the denial of rehearing and urged the Supreme Court to address the issue (“Ultimately the constitutionality of pre-Booker sentences fixed by the Guidelines’ residual clause is a question for the Supreme Court–and one I urge it to answer soon.”).  Chief Judge Gregory was the only judge who dissented from the order denying en banc rehearing in Brown.

On Thursday a much more sharply divided Court (8-6) denied a request for rehearing en banc of its decision in October 2017 finding unconstitutional a cross-shaped World War I monument in Maryland that is on public land and maintained with public funds.  This denial of rehearing spawned FOUR opinions: a concurring opinion from Judge Wynn (who had joined Judge Thacker’s written panel opinion), and dissenting opinions from Chief Judge Gregory (who had dissented from the panel opinion), Judge Wilkinson, and Judge Niemeyer.  While none of the dissenting opinions explicitly advocates for Supreme Court review, the implication that such review is warranted can be found in each of them, particularly in Judge Niemeyer’s dissent.

Another instance in which the Fourth Circuit published a denial of petition for rehearing was in the high profile case of G.G., the transgender male Virginia high school student who sought to use the boy’s bathrooms at school.  While Judge Niemeyer’s opinion related to that denial was styled as a dissent, in actuality he did not request a poll of the Court for rehearing en banc, and wrote to explain that his decision not to do so was to allow the case to get to the Supreme Court more quickly (“While I could call for a poll of the court in an effort to require counsel to reargue their positions before an en banc court, the momentous nature of the issue deserves an open road to the Supreme Court…Time is of the essence, and I can only urge the parties to seek Supreme Court review.”).  Ultimately that case did get to the Supreme Court, but only to have the Supreme Court vacate the Fourth Circuit’s opinion and remand for further consideration in light of Trump administration’s rescission of the Obama administration guidance that had been the basis of the Fourth Circuit’s ruling.

It will be interesting to see whether either of the cases from this week winds up before the Supreme Court.  If I were a betting man, I would probably put some serious money on the monument case making its way to D.C.

–Patrick Kane

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