In a terse order entered late this afternoon, the Third Circuit vacated the published opinion and judgment it entered on December 30 in U.S. v. Mateo-Medina. Today’s order was signed by the clerk and simply says it was entered “[a]t the direction of the Court.”
In the over two and a half years I’ve done this blog, this is the first time I’ve seen the court pull back a published opinion like this. So, this is not a normal development.
A commenter to my original post, PhilFan, offered this take:
Perhaps the panel/author published the opinion before the requisite number of full court review days passed?? Or perhaps someone miscounted and there are enough votes for rehearing??
Maybe so. But, offhand, I doubt that the first possibility, alone, would result in vacatur, and I think the second possibility would result in a different order.
Another possibility is that, after further reflection, the panel decided that there was a problem with the original decision that was serious enough to impact which side wins and clear enough not to see if the government sought rehearing.
We’ll just have to wait to see what the court does next. Among its options, it could call for additional briefing, set the appeal for oral argument (the original opinion was issued without argument), or issue a new panel opinion.
– There was a conflict of interest that someone missed.
– They never even circulated it to the whole court because of an administrative oversight.
The phrasing of the order also may or may not be important. It seems to be that the clerk could have phrased it “at the direction of the Panel” instead of “at the direction of the Court” if the panel sua sponte reconsidered their decision.
Yes, all possible. I tend to think that “at the direction of the Court” does not imply action by the whole court rather than the panel, but who can say for sure? Thanks for your comment.
I’d be shocked if the opinion wasn’t circulated to the full court. On occasion, some judges ask for additional time to review precedential opinions after their circulation to the full court. My bet: a judge asked for additional time to review the opinion and that request was not honored because of an oversight (likely due to the holiday), and it was accidentally released on the usual timeline.
Why would a judge want additional time to review? My bet: The opinion does give quite short shrift to the plain error standard of review. I expect some judges on the court weren’t big fans of that and wanted time to review and respond. See, e.g., U.S. v. Calabretta, 831 F.3d 128 (3d Cir. 2016) (Fisher, J., dissenting).
D, I agree with you that simply forgetting to circulate a published opinion to the rest of court seems most unlikely, and your scenario is a more plausible explanation than that.