The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
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 "sparked heated debate among academics and judges alike." Id. at 61. Some have justified this practice by noting that "there has been some indication from members of the Supreme Court that they find [such] dissents useful in deciding whether to take cases on certiorari," and that the dissents "inform the Supreme Court of the importance of an issue and of arguments favoring one side or the other that have not theretofore appeared in print." Marsha S. Berzon, Introduction, 41 Golden Gate U. L. Rev. 287, 293 (2011); see also Indraneel Sur, How Far Do Voices Carry: Dissents from Denial of Rehearing En Banc, 2006 Wis. L. Rev. 1315, 1353 (2006) ("A crisp rehearing dissent may help a losing party at the panel level write an analytically powerful petition for certiorari. That may be why the Solicitor General of the United States and private litigants quote from rehearing dissents when petitioning or fending off arguments in opposition to a petition." (footnotes omitted)). "[C]ircuit judges elsewhere in the nation also take heed of rehearing dissents in various degrees," and there are even "instances of congressional reports citing" them. Sur, supra, at 1354, 1356.
But these dissents also come with serious drawbacks. They have been characterized as reading, "inappropriately, like petitions for writs of certiorari," providing one judge's blueprint for how the favored party ought to frame the case before the Supreme Court. Berzon, supra, at 294. Some have observed that these advisory opinions involve circuit judges engaging in "advocacy for further review [that] is inappropriate" and comes at the cost of not "upholding [the Court's] decision-making processes once they are completed." Id.; see also Indep. Ins. Agents of Am., Inc. v. Clarke, 965 F.2d 1077, 1080 (D.C. Cir. 1992) (Randolph, J., separate opinion) (arguing that it is "inappropriate" for judges to use dissents from denials of rehearing en banc to "step[ ] out of the robe and into the role of an advocate" and that these dissents "rub[ ] against the grain of Article III's ban on advisory opinions"); Michael E. Solimine, Due Process and En Banc Decisionmaking, 48 Ariz. L. Rev. 325, 328 (2006) (quoting Judge J. Clifford Wallace as stating that he does not read dissents from denials of en banc review because "[t]hey express a dissent from a non-opinion of the court" and are akin to "editorials after the court has ruled"); cf. Berzon, supra, at 294 (noting that some have argued that dissents from denials of rehearing en banc waste judicial resources on nonprecedential opinions falling outside the traditional three-judge-panel-or-en-banc-review dichotomy). To the extent some "members of the Supreme Court" have indicated "they find the[se] dissents useful in deciding whether to take cases on certiorari," Berzon, supra, at 293, this appears to extend an invitation for individual judges to freely submit advisory opinions to the Supreme Court.
There is also a belief that such dissents may harm the public image of the judiciary. Some commentators suggest that these opinions can create an "overblown appearance of internal dissension and disarray," id. at 294, while also "heighten[ing] the degree to which politics overtly governs judicial activity" by "imply[ing] an ideological preference so strong that it compels a judge to interpose herself in a dispute in which she has not been called to participate," Horowitz, supra, at 85–86; see also id. at 83 (noting that "[t]he Supreme Court grants review in cases with [dissents from denial of rehearing en banc] by Republican affiliates roughly 35% of the time, compared to a Democratic affiliate success rate of only 17%").
In particular, there has been criticism that a dissent by a non-panel member that addresses the merits may signal to the public disrespect for the hard work of the panel and for the full court's decision not to take a case en banc, even though en banc review "is not favored" by Rule 35(a). See Horowitz, supra, at 68 ("Readers of the Federal Reporter are left with the impression of … an opinion entitled to less deference than that which would ordinarily be accorded to circuit precedent."). And "[w]hen the rehearing dissenter was not on the panel, … the judge has not ordinarily read the entire record, participated in oral argument, or discussed the case in conference with other judges." Sur, supra, at 1344–45. This may "call into question the value of the judicial process as a whole" because "[i]f a judge who did not read the parties' briefs or hear their oral arguments nevertheless feels free to give her opinion on the merits of the case … [,] one might reasonably wonder whether the judicial system places too much emphasis on briefing and oral argument." Horowitz, supra, at 87.
Whatever the value or cost of these advisory opinions, as a Court, we ought to acknowledge and be transparent about what this practice entails. In our circuit, any active judge may call for an en banc poll, "with or without a petition" filed by a party. 4th Cir. R. 35(b). That means that this practice permits non-panel members to issue advisory opinions on any point of disagreement they have with the merits of any opinion issued by any panel, simply by calling for a poll and, if it is denied, appending a dissent.
Rule 35, as presently written, does not explicitly describe such a process. But given that our circuit has begun to embrace this practice, I believe we should modify Rule 35 to make explicit that individual judges may submit advisory opinions attached to the denial of rehearing en banc. And in doing so, the rule should reflect that these types of opinions neither supplement the panel decisional opinions nor "constitute the law of the circuit." Horowitz, supra, at 92.
Having expressed these considerations in the interest of the transparency that is so vital to our role as judges and of providing some notice of the real purpose of these types of opinions, I acknowledge again that this practice appears to have secured a foothold in our circuit. Accordingly, I offer the following equally advisory opinion to respond to the two advisory opinions in dissent of this court's decision to deny rehearing en banc.
Judge Wynn characterizes his concern as one of transparency, but It seems there are additional concerns at work, including the effect of such dissents on the likelihood of eventual reversal. As Judge Wynn notes, dissents from en banc denial from more conservative justices lead to Supreme Court grants of certiorari more often than dissents from denial by liberal judges. Io not doubt this finding, as it's altogether unsurprising. Of course a right-leaning Supreme Court reviews and reverses left-leaning judicial decisions more often, as those decisions are more likely to be out of step with prevailing doctrine. Insofar as dissents from denial of en banc review further this process, the effect is a salutary one.
Not every erroneous decision is en banc worthy, let alone worthy of Supreme Court review, and not every en banc denial prompts a dissent. When such dissents do issue, however, this provides useful information, particularly to the Supreme Court. It indicates, among other things, that the issues involved are of greater import and significance than in the usual case, and are thus worthy of greater consideration.
It is also an open secret that en banc dissents from some judges count more than others. This too is no surprise, as Supreme Court justices understandably trust the judgement and insight of some of their circuit court colleagues than others. Then-Judge Kavanaugh, in particular, is a good example, as his dissents from en banc denial often prompted High Court review.
I get that judges do not like to be criticized, and they like even less to be overruled. And if a judge's overall judicial philosophy is out-of-step with that of the Supreme Court, such reversals may be more common. Yet if such reversals are a problem, it seems the better course would be for circuit courts to decide cases in accord with prevailing legal principles than to complain about dissents from denial of en banc review.
UPDATE: Howard Bashman comments:
It is interesting to note that the places where such dissents seem to have proliferated — the Fourth and the Ninth Circuits — are the two federal appellate courts that are regarded as the most liberal, and thus the most likely to be out of step with the jurisprudence of the U.S. Supreme Court.
Perhaps in an alternate world where a truly liberal U.S. Supreme Court existed, we would see an increase in dissentals from those circuits dominated by conservative judges.
With his comments in mind, I'd suggest keeping an eye on the D.C. Circuit as well.