Eight cases are pending on rehearing en banc before the U.S. Court of Appeals for the Third Circuit. This column examines the issues presented in these cases and, where sufficient information exists, predicts how the Third Circuit is likely to rule.

The Third Circuit's internal rules provide that rehearing en banc will be ordered "[i]f a majority of the active judges of the court who are not disqualified, provided that the judges who are not disqualified constitute a majority of the judges who are in regular active service, votes for rehearing en banc." 3d Cir. IOP 9.5.9. Once rehearing en banc is granted, all active, non-recused Third Circuit judges participate in deciding the case. Any senior Third Circuit judges who were on the three-judge panel originally assigned to the appeal may also elect to participate. If a district judge or an appellate judge visiting from another circuit was on the original panel, however, that judge is not permitted to participate further in deciding the appeal.

Cases are reheard en banc in the Third Circuit for a variety of reasons, and the twelve active judges currently serving on that court do not share an entirely uniform view of the reasons why an appeal should be reheard en banc. Nonetheless, experience reveals certain patterns in the cases that the court takes en banc.

Before a panel of Third Circuit judges issues a published opinion, the opinion is circulated to all active judges. The appeal can be taken en banc at that stage if sufficient votes for rehearing are received. Typically, a case will not be voted en banc before the panel's opinion issues unless the panel's decision contains a dissent or explains that the panel wishes to reach a result in conflict with an earlier Third Circuit decision that the panel views as incorrectly decided.

If a panel consisting of three active Third Circuit judges has reached a unanimous, but not clearly wrong, ruling with which a non-panel member disagrees, it is unlikely that the non-panel member will vote to take the case en banc before the panel's opinion issues. If the decision later draws a rehearing petition, the non-panel member who disagreed with the result may then attempt to persuade other non-panel members to vote for rehearing en banc.

In the Third Circuit, two categories of cases are most likely to go en banc: (1) those in which a visiting judge or a district judge provides the crucial second vote for the panel's result over the dissent of an active or senior Third Circuit judge; and (2) those in which a previous Third Circuit panel has, in retrospect, decided an important issue incorrectly.

The case summaries that follow are listed in the order in which these cases have been, or are scheduled to be, reargued before the en banc Third Circuit.

Death Penalty: On May 23, 2001, the Third Circuit heard reargument en banc in Riley v. Taylor, No. 98-9009. In December 1982, a Delaware state court jury found James W. Riley guilty of felony murder in the killing of a liquor store owner and sentenced Riley to death. In August 1991, Riley filed a habeas corpus petition in federal district court. The district court ultimately denied the petition, and Riley appealed to the Third Circuit in September 1998.

Riley's appeal was argued in November 1999 before a panel consisting of Circuit Judges Dolores K. Sloviter, Samuel A. Alito, Jr. and Senior Circuit Judge Walter K. Stapleton. In an opinion by Judge Alito, in which Judge Stapleton joined, the panel rejected all of Riley's arguments and affirmed the district court's decision. Riley v. Taylor, 2001 WL 43597 (3d Cir. Jan. 17, 2001) (vacated on reh'g en banc). Judge Sloviter dissented, maintaining that she would rule in Riley's favor on two issues.

First, Judge Sloviter asserted that the prosecution employed its peremptory jury strikes in a manner that unlawfully excluded black jurors. Second, she asserted that the prosecutor's closing argument unlawfully informed the jury that its imposition of the death penalty was unimportant because the Delaware Supreme Court would be the final arbiter of the defendant's fate.

The Third Circuit's order granting rehearing limited en banc review to these two issues. Riley v. Taylor, 237 F.3d 348 (3d Cir. 2001) (order). Judge Marjorie O. Rendell has recused herself from considering this case, and Senior Judge Stapleton has elected to take part in the en banc proceedings.

The outcome of this case is difficult to predict, but my best guess is that the Court will affirm the district court's ruling by a narrow margin, perhaps 7-5 or 8-4. A document recently posted on the Third Circuit's Web site listing the status of all appeals that have been under submission for more than 90 days reveals that the majority opinion in this case has been circulated to the court for review. Thus, a decision in this appeal may issue fairly soon.

Drugs and Sentencing: On March 23, 2001, the Third Circuit also heard reargument en banc in United States v. Vazquez, No. 99-3845. The original panel assigned to this case consisted of Circuit Judges Anthony J. Scirica, Julio M. Fuentes and Senior Circuit Judge Leonard I. Garth. The case was argued before the panel in December 2000 and was voted en banc before the panel's decision issued. All active Third Circuit judges and Judge Garth are participating in the en banc court's review.

A jury in the U.S. District Court for the Middle District of Pennsylvania convicted Vazquez for his role in a drug trafficking conspiracy. Notably, however, the district judge, rather than the jury, determined the amount of cocaine involved in the conspiracy. The drug quantity determination caused Vazquez to be sentenced to 292 months in prison. At trial, Vazquez did not assert that drug quantity should have been determined by the jury rather than the trial judge.

The appeal presents two questions: (1) whether the manner in which Vazquez was sentenced violates Apprendi v. New Jersey, 530 U.S. 466 (2000), which held that most facts causing a sentencing enhancement in excess of the statutory maximum sentence for a crime must be determined by a jury beyond a reasonable doubt; and (2) if so, whether the violation amounts to plain error. The importance of this appeal to the federal government is underscored by the fact that Deputy Solicitor General Michael R. Dreeben argued the case en banc for the United States.

Based on a review of the en banc oral argument transcript and of similar cases from other circuits, I predict that the government will prevail in Vazquez, although the ruling may not be unanimous.

Guns for Convicted Felons: On November 28, 2001, the Third Circuit will hear reargument en banc in Pontarelli v. United States Dep't of Treasury, No. 00-1268. The case was originally assigned to a panel consisting of Circuit Judges Maryanne Trump Barry, Thomas L. Ambro and Senior Circuit Judge Max Rosenn and went en banc after submission to the panel on the briefs but before the panel issued a ruling. All active judges and Senior Judge Rosenn are participating in the rehearing en banc.

Pontarelli presents the question whether Congress -- which has refused to appropriate funds that would allow the Bureau of Alcohol, Tobacco and Firearms to investigate applications from released convicted felons who wish to have restored their right to possess firearms -- has thereby precluded federal courts from adjudicating suits brought by individuals who are asking for restoration of their right to possess firearms.

The Third Circuit became the first federal appellate court to address this issue in Rice v. United States, Dep't of Alcohol, Tobacco & Firearms, 68 F.3d 702 (3d Cir. 1995), ruling that Congress's lack of appropriations did not repeal the law allowing convicted felons to seek such relief and did not preclude judicial review. The Fifth Circuit became the next appellate court to rule on this issue, and it reached a directly contrary result. United States v. McGill, 74 F.3d 64 (5th Cir.), cert. denied, 519 U.S. 821 (1996). Thereafter, the Second, Sixth, Ninth and Tenth Circuits joined with the Fifth in rejecting the Third Circuit's ruling in Rice.

Thus, when the Third Circuit granted rehearing en banc in Pontarelli on April 30, 2001, it seemed all but certain that Rice would be overruled. It does not seem that certain now, however. The Fifth Circuit on June 20, 2001 abandoned its decision in McGill and sided with Rice in holding that Congress's failure to appropriate funds did not suspend the law and did not preclude judicial review. Bean v. Bureau of Alcohol, Tobacco & Firearms, 253 F.3d 234 (5th Cir. 2001). The outcome in Pontarelli is impossible to predict, but this issue cries out for resolution by the U.S. Supreme Court.

Section 1983 and Private Party Liability: On November 28, 2001, the Third Circuit will also hear reargument en banc in Crissman v. Dover Downs Entm't Inc., No. 00-5178. The case presents the question whether a privately-owned racetrack that banned several race horse trainers can be held liable to the trainers under federal civil rights law because the state of Delaware was heavily involved in the track's video lottery operation and thus had a "symbiotic relationship" with the track.

Crissman went en banc after a panel consisting of Circuit Judge Theodore A. McKee, Senior Circuit Judge Rosenn and visiting Senior Circuit Judge Richard D. Cudahy of the Seventh Circuit unanimously ruled, in an opinion by Judge Rosenn, that a sufficient nexus existed between the state and the racetrack to allow the track to be held liable under 42 U.S.C. Section 1983. Crissman v. Dover Downs Entm't Inc., 239 F.3d 357 (3d Cir. 2001) (vacated on reh'g en banc). Circuit Judges Jane R. Roth and Ambro have recused themselves from the rehearing en banc, but Senior Judge Rosenn will participate.

The result the panel reached in Crissman threatens such a profound expansion of when private parties will be subject to liability as state actors under the federal civil rights laws that it is unlikely to attract the backing of a majority of the en banc court. I thus predict that the en banc court will disagree with the panel's ruling and will affirm the trial court's dismissal of the plaintiffs' Section 1983 claims.

Medicaid Reimbursement to Pennsylvania Pharmacies: On November 28, 2001, the Third Circuit will also hear reargument en banc in Pennsylvania Pharmacists Ass'n v. Houstoun, No. 00-1898. A class of Pennsylvania-based pharmacies sued under Section 1983 to challenge the legality of Pennsylvania's prescription drug reimbursement rates for Medicaid recipients.

The case was argued before a panel consisting of Circuit Judges Alito and McKee and visiting Senior Ninth Circuit Judge Arthur L. Alarcon and went en banc before the panel issued its decision. Although the trial court's ruling is reported, Pennsylvania Pharmacists Ass'n v. Houstoun, 2000 WL 730344 (E.D. Pa. June 7, 2000), it is not entirely clear why this case went en banc. An earlier Third Circuit ruling in a related case did, however, note the existence of a circuit split on the meaning of a provision of the Medicaid Act at issue in the en banc appeal. Rite Aid of Pa., Inc. v. Houstoun, 171 F.3d 842 (3d Cir. 1999).

Class Action versus Arbitration: On November 29, 2001, the Third Circuit will hear reargument en banc in In re Cendant Corp. Litig. (Davidson), No. 00-2185. This case presents the question whether two individuals who owned a company that later merged into Cendant were members of the plaintiff class in a settled securities class action against Cendant and whether they could pursue overlapping claims in their arbitration against Cendant pending in California. A New Jersey district court ruled that the individuals were class members and enjoined the arbitration, even though a California-based federal court had previously ruled that the arbitration should go forward.

The appeal was assigned to a panel consisting of Circuit Judges Sloviter and Ambro and Senior Circuit Judge Garth. On May 9, 2001, the panel ruled 2-1 that the district court correctly determined that the individuals were members of the class and correctly enjoined arbitration of claims at issue in the class action. Judge Ambro wrote the panel opinion, in which Judge Sloviter joined. Judge Garth wrote a passionate dissent in which he argued that the individuals should be allowed to arbitrate their claims in full and that the individuals were not class members.

Judge Garth is participating in the rehearing en banc, but Judges Alito, Roth, Rendell and Barry are recused. This case defies easy prediction, but the fact that five of the eight non-recused active judges voted to take the case en banc indicates that Judge Garth's position may prevail on rehearing.

Double Jeopardy and Related Bad Acts: On February 13, 2002, the Third Circuit will hear reargument en banc in United States v. Pharis, No. 00-2855. The case was originally pending before a panel consisting of Circuit Judges Sloviter and Fuentes and Senior Circuit Judge Robert E. Cowen and went en banc before the panel issued an opinion.

The defendants in this mail fraud prosecution moved to exclude certain evidence, and on the eve of their jury trial the district court granted the motion. The government moved for reconsideration, and during the trial the district court issued an order denying reconsideration but clarifying its original ruling. The government filed an immediate appeal, which led the trial court to stay the case and dismiss the jury.

The defendants argue in their very powerful appellate brief that the district court's dismissal of the jury caused jeopardy to attach, barring a retrial, and that appellate jurisdiction over the government's appeal is lacking. The defendants appear to have the stronger arguments on these points. The government, however, appears to have a stronger argument that the district court abused its discretion or committed an error of law in preventing the government from introducing the evidence at issue in the appeal. All active judges and Senior Judge Cowen are participating in the rehearing en banc.

Social Security Disability Benefits: The final en banc case pending in the Third Circuit, also slated for oral argument on February 13, 2002, is Thomas v. Commissioner of Social Security, 00-3506. Pauline Thomas has appealed from the government's decision denying her claim for social security disability benefits.

This case was originally assigned to a panel consisting of Circuit Judges Alito and Rendell and Senior District Judge William W. Schwarzer of the Northern District of California. No panel opinion ever issued, and the parties' appellate briefs do not provide any indication why this case was selected for rehearing en banc. All active Third Circuit judges other than Judge Barry are participating in the rehearing. Judge Barry is recused because the case was pending before her for a short time while she served as a district judge.

Update: The Ninth Circuit, in a lengthy and scholarly opinion by Circuit Judge Alex Kozinski, recently upheld the constitutionality of its local rule prohibiting citation to unpublished opinions. Hart v. Massanari, 2001 WL 1111647 (9th Cir. Sept. 24, 2001). While Hart casts some doubt on the historical underpinnings of the Eighth Circuit's opinion in Anastasoff v. United States, 223 F.3d 898, vacated as moot on reh'g en banc, 235 F.3d 1054 (8th Cir. 2000), I continue to believe that federal appellate courts are not at liberty to make new law in an unpublished opinion and then deny that opinion precedential effect in a later appeal raising the identical issue.

This article is reprinted with permission from the October 8, 2001 issue of The Legal Intelligencer © 2001 NLP IP Company.