Fourth Circuit Judge Decries Proliferation of “Advisory” Dissents from Denial of Rehearing En Banc

In Doe v. Fairfax Cnty. Sch. Bd., No. 19-2203 (4th Cir. Aug. 30, 2021) (order), denying rehearing en banc of a Title IX case involving sexual harassment, a Fourth Circuit judge calls for curtailing separate dissenting opinions that signal “disrespect for the hard work of the panel and for the full court’s decision not to take a case en banc.”

The case involved review of a jury trial in a Title IX case where the original panel held 2-1 that the jury was misinstructed, ordering a remand for a new trial. “The jury found that Smith sexually harassed Doe and that the harassment was severe, pervasive, and offensive enough to deprive Doe of equal access to the educational opportunities or benefits provided by her school. But, applying the incorrect legal standard, the jury found that the school lacked actual knowledge of the harassment. Because of this, the jury did not reach the question of whether the school had responded to the harassment with deliberate indifference. The panel majority reversed and remanded this matter for a new trial based on the plain language of Title IX and applicable case law.”

The full Fourth Circuit voted 9-6 under Fed. R. App. P 35 not to accept the panel decision for rehearing by the full court. Two out of the six judges seeking rehearing, Judge Niemeyer (who dissented in the original panel decision) and Judge Wilkinson, issue opinions dissenting from the denial of rehearing en banc that principally addressed the merits of the case.

Judge Wynn, who wrote the panel’s majority opinion, submits an opinion concurring in the denial of rehearing en banc. While most of the opinion critiques the dissenters’ legal analyses, he reserves a few choice words at the beginning challenging the notion of using separate opinions trailing off an order denying en banc review to rehearse the merits, possibly to set the case up for writ of certiorari in the Supreme Court.

“[W]e 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.”

Noting that such dissents until recently had been rare in the Fourth Circuit, Judge Wynn cites to scholarly articles addressing the “heated debate” about the publication of such separate opinions. The opinion observes that such opinions may call the Supreme Court’s attention to a pressing legal issue. “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” and “extend[s] an invitation for individual judges to freely submit advisory opinions to the Supreme Court.”

Also “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).”

Judge Wynn recognizes, nevertheless, that the practice appears to have taken root to stay. So he proposes that some sort of standard should prevail. “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.’”

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