The Third Circuit will be hearing en banc oral argument in two cases on Wednesday: NCAA v. Governor (the sports betting case pitting Paul Clement against Ted Olson), and Chavez v. Dole Food (a civil-jurisdiction issue arising in the context of a suit by plantation workers alleging knowing exposure to toxic pesticides).
A couple interesting facts:
- The first argument is at 9:30 in the Maris courtroom on the 19th floor, but the second argument at 11 a.m. is in the ceremonial courtroom on the 1st floor. Why the big move between arguments? Beats me.
- Recently confirmed Judge Restrepo will sit for both cases, as expected.
- Both cases had panel dissents by Judge Fuentes. Tangle with the pride of Toms River at your peril!
Anyway, the sports-betting case in particular is getting a lot more media attention than the typical Third Circuit appeal. I was even interviewed today by a reporter for ESPN, certainly a first for me. [Update: here’s the ESPN story quoting me.]
One of the questions I was asked today was how often en banc rehearing results in a different outcome from the original panel ruling. (Of course not all Third Circuit en banc cases involve any prior panel ruling, as I’ve discussed here. But the last six CA3 en banc grants have.)
Since Chief Judge McKee became chief, the Third Circuit has decided eight en banc cases in which a panel had issued an opinion. (There was a panel opinion in all four pending en banc cases, too.) Of those eight, the en banc opinion came out the same way as the panel opinion twice (25%); the en banc court effectively reversed the prior panel six times (75%). So that’s a small sample size, but it’s some evidence for the not-surprising conclusion that en banc rehearing en banc is bad news for the panel winner.
NCAA is a case where the panel dissenter was an active judge (Fuentes) and the panel majority judges (Rendell, Barry) are both now senior. (And in Chavez the panel dissenter was active (Fuentes) and the panel author (Nygaard) was senior.) That made me wonder whether active judges fare better in Third Circuit en banc cases. Is it common for active-judge dissenters to become en banc authors and senior-judge panel authors to become en banc dissenters?
Short answer: not really. Of the eight prior-panel cases, only one (Singer Management) fit that pattern, and in fact there were three (Lewis, Katzin, and Flores-Mejia) where the opposite happened. So active-vs-senior hasn’t mattered much in recent Third Circuit en banc case outcomes.
I’m looking forward to Wednesday’s arguments. If my schedule lets me attend in person, I hope to meet some readers and fellow Third Circuit lawyers.