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.