The Volokh Conspiracy

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Volokh Conspiracy

2nd Circuit denies rehearing in Microsoft Ireland case by an evenly divided vote


The Justice Department had petitioned for rehearing en banc in the Microsoft Ireland warrant case, and today the 2nd Circuit denied rehearing in a 4-4 vote. There are 11 active judges on the 2nd Circuit, but three were recused from the case (Judges Pooler, Livingston and Lohier). That left eight judges to vote on the petition for rehearing, including the two active judges on the original panel (Judges Carney and Lynch). [SEE CORRECTION BELOW] Because it takes a majority vote of active judges for the court to grant the petition, and the two active judges on the panel opinion were very unlikely to vote for rehearing, the government needed five of the six non-recused active judges not on the original panel to vote for rehearing. Four of those six judges voted to grant the petition—Judges Jacobs, Cabranes, Raggi, and Droney—but that left an evenly divided vote and the petition was denied.

The denial comes with 55 pages of opinions. Judge Carney wrote a 14-page concurrence in the denial of the petition, and then each of the dissenting judges wrote a separate dissent (each joined by the other dissenters). I haven't had a chance to read the opinions yet, but I may post some thoughts when I do.

One interesting question is whether the Justice Department will bring this case to the Supreme Court. During his confirmation hearing, Attorney General nominee Jeff Sessions was asked by Senator Hatch if he would pursue a legislative fix to the panel decision. Sessions said he would. That's a different path than pursuing Supreme Court review, of course, but the case is certainly on the Justice Department's radar screen. And an evenly divided vote in the 2nd Circuit might get some attention at the Supreme Court.

UPDATE: A reader points out that Judge Lynch took senior status last fall, and therefore he could not vote on the petition for rehearing. The votes from the non-recused judges were as follows:

Katzmann (against rehearing)
Jacobs (for rehearing)
Cabranes (for rehearing)
Raggi (for rehearing)
Hall (against rehearing)
Chin (against rehearing)
Carney (against rehearing—author of the original panel opinion)
Droney (for rehearing)

My apologies for the error.