Doe v. Fairfax Cnty. Sch. Bd.

10 F.4th 406 (Mem)

Jane DOE, Plaintiff – Appellant,

v.FAIRFAX COUNTY SCHOOL BOARD, Defendant – Appellee.

National Women's Law Center; Chicago Alliance Against Sexual Exploitation ; Clearinghouse on Women's Issues; Desiree Alliance; Feminist Majority Foundation; Forge, Incorporated; Gender Justice ; Girls Inc. ; Human Rights Campaign; In Our Own Voice: National Black Women's Reproductive Justice Agenda; KWH Law Center for Social Justice and Change; Legal Aid At Work; National Asian Pacific American Women's Forum; National Association of Social Workers, and its Virginia Chapter; National Crittenton; National Network to end Domestic Violence; National Partnership for Women & Families; National Women's Political Caucus; Religious Coalition for Reproductive Choice; Stop Sexual Assault in Schools; Women's Law Center of Maryland, Incorporated ; Transgender Law Center; Women Lawyers Association of Los Angeles; Women Lawyers on Guard Inc.; Women's Bar Association of the State of New York; Women's Law Project, Amici Supporting Appellant.

National School Boards Association; Virginia School Boards Association ; Maryland Association of Boards of Education; North Carolina School Boards Association; South Carolina School Board Association, Amici Supporting Appellee.

No. 19-2203

United States Court of Appeals, Fourth Circuit.

FILED: August 30, 2021

ORDER

The court denies the petition for rehearing en banc.

A requested poll of the court failed to produce a majority of judges in regular active service and not disqualified who voted in favor of rehearing en banc. Judge Wilkinson, Judge Niemeyer, Judge Agee, Judge Quattlebaum, Judge Richardson, and Judge Rushing voted to grant rehearing en banc. Chief Judge Gregory, Judge Motz, Judge King, Judge Keenan, Judge Wynn, Judge Diaz, Judge Floyd, Judge Thacker, and Judge Harris voted to deny rehearing en banc.

WYNN, Circuit Judge, concurring in the denial of rehearing en banc:

Because this Court denies the petition for rehearing en banc, this matter is decided by the opinions produced by the three-judge panel that fully considered the issues after oral argument. Yet now, we confront two advisory opinions that purport to dissent from the denial of the petition to rehear this matter en banc. But those opinions provide next to no explanation for why our colleagues are dissenting from the denial of rehearing en banc, a procedural question falling under Federal Rule of Appellate Procedure 35(a). Instead, both opinions focus entirely on the underlying merits, and thus are no more than advisory opinions that read like editorials or legal commentary on the three-judge panel decision.

This is not a new practice, though until recently, it was uncommon in our circuit. See Cannon v. Kroger Co. , 837 F.2d 660, 660 (4th Cir. 1988) (Murnaghan, J., dissenting from the denial of rehearing en banc) (noting that, as of the late 1980s, this practice was "unusual, if not extraordinary" in the Fourth Circuit). For decades in other circuits, both panel and non-panel members have issued merits opinions dissenting from the denial of rehearing en banc. E.g. , Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg'l Plan. Agency , 228 F.3d 998, 999 (9th Cir. 2000) (Kozinski, J., dissenting from the denial of rehearing en banc in a case where he did not sit on the panel). "Since the first [dissent from a denial of rehearing en banc] in 1943, appellate judges have employed them with increasing regularity," and the practice particularly picked up steam after the turn of the century. Jeremy D. Horowitz, Not Taking "No" for an Answer: An Empirical Assessment of Dissents from Denial of Rehearing En Banc , 102 Geo. L.J. 59, 60 (2013). The vast majority of these dissents are written by judges other than the panel dissenter.¹ Id. at 74.

To be sure, the proliferation of dissents from the denial of rehearing en banc has "sparked heated debate among academics and judges alike." Id. at 61. Some have justified this practice by noting that "there has been some indication from members of the Supreme Court that they find [such] dissents useful in deciding whether to take cases on certiorari," and that the dissents "inform the Supreme Court of the importance of an issue and of arguments favoring one side or the other that have not theretofore appeared in print." Marsha S. Berzon, Introduction , 41 Golden Gate U. L. Rev. 287, 293 (2011) ; see also Indraneel Sur, How Far Do Voices Carry: Dissents from Denial of Rehearing En Banc , 2006 Wis. L. Rev. 1315, 1353 (2006) ("A crisp rehearing dissent may help a losing party at the panel level write an analytically powerful petition for certiorari. That may be why the Solicitor General of the United States and private litigants quote from rehearing dissents when petitioning or fending off arguments in opposition to a petition." (footnotes omitted)). "[C]ircuit judges elsewhere in the nation also take heed of rehearing dissents in various degrees," and there are even "instances of congressional reports citing" them. Sur, supra , at 1354, 1356.

But these dissents also come with serious drawbacks. They have been characterized as reading, "inappropriately, like petitions for writs of certiorari," providing one judge's blueprint for how the favored party ought to frame the case before the Supreme Court. Berzon, supra , at 294. Some have observed that these advisory opinions involve circuit judges engaging in "advocacy for further review [that] is inappropriate" and comes at the cost of not "upholding [the Court's] decision-making processes once they are completed." Id. ; see also Indep. Ins. Agents of Am., Inc. v. Clarke , 965 F.2d 1077, 1080 (D.C. Cir. 1992) (Randolph, J., separate opinion) (arguing that it is "inappropriate" for judges to use dissents from denials of rehearing en banc to "step[ ] out of the robe and into the role of an advocate" and that these dissents "rub[ ] against the grain of Article III's ban on advisory opinions"); Michael E. Solimine, Due Process and En Banc Decisionmaking , 48 Ariz. L. Rev. 325, 328 (2006) (quoting Judge J. Clifford Wallace as stating that he does not read dissents from denials of en banc review because "[t]hey express a dissent from a non-opinion of the court" and are akin to "editorials after the court has ruled"); cf. Berzon, supra , at 294 (noting that some have argued that dissents from denials of rehearing en banc waste judicial resources on nonprecedential opinions falling outside the traditional three-judge-panel-or-en-banc-review dichotomy). To the extent some "members of the Supreme Court" have indicated "they find the[se] dissents useful in deciding whether to take cases on certiorari," Berzon, supra , at 293, this appears to extend an invitation for individual judges to freely submit advisory opinions to the Supreme Court.

There is also a belief that such dissents may harm the public image of the judiciary. Some commentators suggest that these opinions can create an "overblown appearance of internal dissension and disarray," id. at 294, while also "heighten[ing] the degree to which politics overtly governs judicial activity" by "imply[ing] an ideological preference so strong that it compels a judge to interpose herself in a dispute in which she has not been called to participate," Horowitz, supra , at 85–86; see also id. at 83 (noting that "[t]he Supreme Court grants review in cases with [dissents from denial of rehearing en banc] by Republican affiliates roughly 35% of the time, compared to a Democratic affiliate success rate of only 17%").

In particular, there has been criticism that a dissent by a non-panel member that addresses the merits may signal to the public disrespect for the hard work of the panel and for the full court's decision not to take a case en banc, even though en banc review "is not favored" by Rule 35(a). See Horowitz, supra , at 68 ("Readers of the Federal Reporter are left with the impression of ... an opinion entitled to less deference than that which would ordinarily be accorded to circuit precedent."). And "[w]hen the rehearing dissenter was not on the panel, ... the judge has not ordinarily read the entire record, participated in oral argument, or discussed the case in conference with other judges." Sur, supra , at 1344–45. This may "call into question the value of the judicial process as a whole" because "[i]f a judge who did not read the parties’ briefs or hear their oral arguments nevertheless feels free to give her opinion on the merits of the case ... [,] one might reasonably wonder whether the judicial system places too much emphasis on briefing and oral argument." Horowitz, supra , at 87.

Whatever the value or cost of these advisory opinions, as a Court, we ought to acknowledge and be transparent about what this practice entails. In our circuit, any active judge may call for an en banc poll, "with or without a petition" filed by a party. 4th Cir. R. 35(b). That means that this practice permits non-panel members to issue advisory opinions on any point of disagreement they have with the merits of any opinion issued by any panel, simply by calling for a poll and, if it is denied, appending a dissent.

Rule 35, as presently written, does not explicitly describe such a process. But given that our circuit has begun to embrace this practice, I believe we should modify Rule 35 to make explicit that individual judges may submit advisory opinions attached to the denial of rehearing en banc. And in doing so, the rule should reflect that these types of opinions neither supplement the panel decisional opinions nor "constitute the law of the circuit." Horowitz, supra , at 92.

Having expressed these considerations in the interest of the transparency that is so vital to our role as judges and of providing some notice of the real purpose of these types of opinions, I acknowledge again that this practice appears to have secured a foothold in our circuit. Accordingly, I offer the following equally advisory opinion to respond to the two...