Today the Third Circuit granted en banc rehearing in Hayes v. Harvey, an important public-housing appeal. [Update: the order granting is now on the circuit website.] A divided panel had ruled in October that public housing residents had no right to remain in their homes despite statutory language that they “may elect to remain.” Judge Fisher authored the panel-majority opinion and was joined by Judge Hardiman; Judge Greenaway dissented. [Full disclosure: I provided some minor rehearing-stage consulting assistance to counsel for the appellants.]
My summary of the (now-vacated) panel opinion is here. I’m feeling clever because I began my post by saying I thought there was a realistic shot at en banc rehearing.
A couple nerdy points:
- I’m unsure whether the court will schedule en banc argument for February or May. It may depend on whether the court believes supplemental briefing is needed. In Lewis, the court granted en banc rehearing on 11/25 and heard argument on 2/19, but this would be a month tighter, so we’ll see.
- The order granting rehearing lists 13 judges (all 12 active judges including Judge Bibas, plus Fisher because he was on the panel), suggesting no recusals. No dissents were noted.
- The rehearing petition was supported by two strong amicus briefs, including one for the city of Philadelphia. I’ve long believed that rehearing petitions are an under-utilized opportunity for effective participation by amici.