Appellate practitioners are familiar with the concept of moving to have the court publish an opinion that was initially issued as “unpublished.” Much rarer is the reverse situation, where a party seeks to have an opinion that was published “demoted” to unpublished status. And perhaps even rarer is to have that request for “unpublishing” made by a member of the Court. In fact, the first and only time I’ve ever personally come across such a scenario was last Friday, when Judge Wynn of the Fourth Circuit published an opinion in US v. Gibbs explaining his vote on consideration of en banc review that the published panel opinion at issue should either be redesignated as unpublished or vacated as moot after the request for panel rehearing or en banc rehearing was denied. The panel opinion had been left undisturbed after the petition for panel rehearing or rehearing en banc was denied; the Court noted that opinions supporting the denial of rehearing and dissenting from denial of rehearing would be filed at a later date. Although not entirely clear, it appears that the petition for rehearing was arguably moot because the petitioner had been seeking a downward variance in his prison sentence but had been released from confinement while the petition was pending. Judge Wynn’s opinion can be found here and the published order denying panel rehearing and rehearing en banc can be found here.
As someone who does not practice in the criminal realm I admittedly had a difficult time discerning precisely what transpired in Gibbs (and in the other case prominently discussed within Judge Wynn’s opinion) both factually and procedurally. But what is not difficult to discern is that Judge Wynn had serious concerns regarding how usual Fourth Circuit procedures with respect to awaiting separate concurring and dissenting opinions might “result in gross injustice and unfairness to a defendant.” Judge Wynn specifically described in detail a previous case, US v. Surratt, in which he believed the Court’s “failure to timely issue opinions in an en banc proceeding…forc[ed] the petitioner–and other similarly situated prisoners–to unnecessarily spend several more years in prison.” He proffered the procedural history of Surratt as an example of how the process traditionally works in the Fourth Circuit and he suggests that the Court in Gibbs was correct in deviating from that procedure and expediting the denial of the petition for rehearing so as to avoid what transpired in Surratt. However, Judge Wynn appears to simultaneously criticize the Court’s procedure in Gibbs as being solely motivated by keeping the panel opinion “on the books,” which in his opinion also has “the effect of prejudicing the interests of criminal defendants.” Judge Wynn contends that the panel opinion is without legal effect, because it either is wholly consistent with Fourth Circuit precedent (as held by the panel majority) and therefore adds nothing to Fourth Circuit jurisprudence, or it is inconsistent with Fourth Circuit precedent (as argued by the panel dissent) and therefore would be effectively overruled by the earlier contrary caselaw. In Judge Wynn’s opinion, “the most likely outcome of keeping the panel majority opinion on the books is to confuse litigants as to this Court’s precedent;” hence his vote to remove the panel opinion “from the books” by unpublishing the case.
The bottom line is that Judge Wynn’s opinion seems to cast the Court’s procedural approach in Gibbs as both a positive in that it establishes a procedure to avoid the injustice that arose in Surratt, but also as a negative in that the Court “on its own and without the request of either party–diverge[d] from its usual action and [took] action that disfavors certain litigants and favors others,” thus potentially resulting in a public perception that the Court had abandoned “its proper role as independent neutral arbiter.”
As always, we’d be interested in hearing your thoughts and reactions to this unique opinion in the comments section below.