Back in September, the Third Circuit granted panel rehearing in Free Speech Coalition v. AG. The original panel ruling had upheld federal record-keeping and inspection requirements imposed on pornography producers. The panel had the option under FRAP 40(a)(4) to decide the case without reargument, but it granted reargument and scheduled it for December 9.
This panel rehearing grant offers an object lesson in the importance of battling to the end. Here, the appeal was originally argued in December 2014, and it was decided by the panel on May 14, 2015. Lesser lawyers would have surveyed the landscape on May 14, decided that rehearing was a lost cause, and moved on.
But over a month after the panel decision (still within the 45-day FRAP 40(a)(1)(C) window to seek rehearing), the Supreme Court issued a new decision that arguably cast doubt on the CA3 ruling. Counsel for the Coalition caught it and pounced. A week later, they filed a rehearing petition focused on the new Supreme Court ruling. The government opposed rehearing, but the panel (Rendell, Smith, Scirica) granted the motion and vacated its prior ruling.
Whatever the final result, counsel’s diligence has given them another shot to win their case. Impressive work.
As a postscript, I noticed a couple other interesting things while reviewing the docket to write this post. First, the court granted the parties’ motion to file a deferred appendix due to the large size of the record. That’s an option many lawyers would not consider and the Third Circuit’s LAR 30.4 discourages, but the court allowed it here so it’s worth keeping in mind. Second, the court granted the parties’ motion to dispense with filing paper copies of the large joint appendix. Who knew?