The Third Circuit just granted rehearing en banc in Chavez v. Dole Food.

The now-vacated panel opinion, upholding dismissal with prejudice of a civil suit based on the first-filed rule, is here, my summary is here. The panel was split, with Nygaard joined by Greenaway while Fuentes dissented.

Here’s the introduction from the panel dissent (I’ve omitted two footnotes):

More than two hundred plantation workers brought
this suit alleging their employers and certain chemical
companies knowingly exposed them to toxic pesticides over a
period of many years. As a result, they say, they have injured
kidneys, are infertile, and are at heightened risk of cancer.
Twenty years after first bringing suit, no court has heard the
merits of their claims. Because the Louisiana court dismissed
on procedural grounds, the Delaware District Court’s
dismissal of the plaintiffs’ claims—with prejudice—
effectively ends the plaintiffs’ lawsuit. The majority’s
affirmance of that decision, i.e., the dismissal with prejudice
of a duplicate claim filed in a second court, is not supported
by our caselaw and is contrary to the decisions of the only
other Courts of Appeals to have addressed the issue.

I agree with the majority opinion that the first-filed
rule applied to the plaintiffs’ successive filing in Delaware,
and, as such, that the District Court should have given the
Louisiana suit priority. But I do not agree that the first-filed
rule is a basis to terminate a claim that otherwise may be
prosecuted. That is not something we have ever held before; it
is contrary to our positions on successive litigation and
concurrent litigation in other contexts; and it is inappropriate
in light of the Supreme Court’s command that we must
adjudicate properly presented cases not heard elsewhere on
the merits. As our sister circuits have done in like cases, I
would vacate and remand for further proceedings.

Today’s order notes that Nygaard exercised his IOP 9.6.4 option as a senior judge who sat on the panel to sit on the en banc court.

My thanks to an alert reader from New York for emailing to alert me just minutes after the order posted to the court’s website.

Update: today’s grant makes 3 pending en banc cases, with Chavez joining Dennis (a capital-habeas appeal) and Langbord (the double-eagle-coins appeal).