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August 24, 2012


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I. Glenn Cohen

Great post Michelle. Do you think all of the hand wringing about the law of the case issues might make En Banc review a distinct possibility? After all the En Banc court would not be bound by the prior panel decision...

Michelle Meyer

Hi Glenn.

So let’s count the votes. The DC Circuit requires a majority of active judges to vote for rehearing en banc, i.e., 5 out of the following 8: Rogers, Griffith, Kavanaugh, Sentelle, Brown, Henderson, Tatel, and Garland. Of those, the first four have already voted on the (quasi-)merits of this case, in favor of the government: Rogers, Griffith and Kavanaugh issued a per curiam order, following oral argument, staying Lamberth's preliminary injunction pending its appeal. That decision appears to have been based on essentially the same standard as subsequent decisions, i.e., likelihood of prevailing on the merits. Then Ginsburg and (again) Griffith voted to vacate the preliminary injunction using the familiar likelihood of success on the merits standards (with Henderson dissenting). Then, last week, Sentelle, Brown and (again) Henderson affirmed Lamberth's grant of summary judgment, holding that the prior panel had actually ruled on the merits, rather than on their likelihood. Brown would have reached the same outcome, but without getting to the Chevron doctrine. Is that difference in the standard of review, not outcome-determinative in this case, enough for her to vote to rehear the case en banc? Maybe. But of the 7 judges on the D.C. Circuit (6 active judges plus Ginsburg) that have had their hands on deciding the merits of this case, only Henderson would have come out differently on the legality of stem cell funding. She, of course, would presumably be a vote for en banc review.

Even assuming that Brown would join Henderson in voting for en banc, it seems likely, given their prior votes in the case, that Rogers, Griffith, Kavanaugh and Sentelle would not. The only two active judges yet to weigh in on the case, Tatel and Garland, are among the least likely to want to overturn it (at least if one take the realist position that politics has something to do with the outcome of this case). The most likely route to 5 votes for en banc review is Henderson, Brown, plus all members of the first panel that only sort of ruled on the merits, without a written opinion, and which includes some of the more conservative judges on the Circuit, Rogers, Griffith, Kavanaugh. But that seems like a stretch.

The Circuit rules say en banc is appropriate only if "necessary" to maintain the court's consistency, or if there’s a question of "exceptional importance," and petitioners must plead one of these two justifications.
Although the panel’s rejection of the preliminary injunction exception to the law of the case doctrine in this particular case resolved a question of first impression on the D.C. Circuit, it was consistent with how other circuits that have weighed in on the question have settled it, and the rule the panel adopted is highly context-dependent, meaning that a future panel who wanted to rely on the preliminary injunction exception in another case could pretty easily limit Sherley to its facts. And in fact, I actually didn't see any push back on the panel's reliance on the law-of-the-case doctrine; both Brown and even Henderson agreed that that was proper. Ironically (in a Sheryl Crowe sense), had the panel not followed the law of the case and had they come out on the merits differently than did the prior panel that vacated the preliminary injunction, there arguably would have been inconsistency in the court’s decisions that en banc review would be “necessary” to resolve.

As for the “issue of exceptional importance” prong, while federal funding for hESC research is obviously quite important in the view of people on both sides of the debate, there isn't an obviously important legal question here. The closest the case comes to approaching this may be where Brown and Henderson in fact both did push back against their colleagues: namely, on the Chevron step zero question. (As Russell Korobkin notes, this was a new argument from Henderson this time around; previously, she had argued that the Chevron two-step dance should have come out the other way, not that it didn’t apply at all.) If there’s a legal hook that would justify en banc review, I’d say it was this Chevron business rather than the law of the case (but maybe our different takes just reflects by fondness for admin law and your expertise in civ pro).

So I continue to think en banc review is extremely unlikely – so much so, that I expect the plaintiffs will go straight for the Supreme Court. Anyway, my prediction is worth every penny you paid for it.

I. Glenn Cohen

Wow! You convinced me! Except at the very end about skipping En Banc review. I think they will likely ask for it just as a sign of respect to the Court and to the S. Ct., especially since the petitioner's counsel is someone whom I know litigates a lot before the Circuit...still maybe I am being far to genteel about these things...

Michelle Meyer

Yeah, I'd actually been having second thoughts about my final prediction that plaintiffs will skip the full circuit court and go straight for cert. thought not for the same reason you suggest. Their first goal is stopping the research, of course, but as Jim and I noted in our earlier commentary on the case, their second goal is to drag out this litigation, and the attendant uncertainty about the legality of federally funding hESC research, as long as possible. And that would suggest jumping through the en banc hoop. Anyway, time will tell.

acting cute

Acting cute people is the most cute people in the world

Michelle Meyer

SLS's Hank Greely seems to come to the same conclusions here:

Stephanie D. Swanson

The article is quite long, but it was really interesting for me to read this info to the end. Thanks a lot for sharing the opinion here. Awesome entry!

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