A Procedurally Unusual En Banc Opinion from the Fourth Circuit
By Steve Klepper (Twitter: @MDAppeal)
Last Friday, in United States v. Chamberlain, the Fourth Circuit issued a unanimous en banc opinion overruling its precedents on “the pretrial restraint of a defendant’s innocent property pursuant to the federal criminal forfeiture statute.” The ruling was not a surprise, in light of the Supreme Court’s ruling in Luis v. United States, 136 S. Ct. 1083 (2016).
But the ruling was a procedural oddity. A three-judge panel held argument in January 2017. Four months later, before any panel opinion issued, the Fourth Circuit notified the parties it would hear the case en banc and calendared argument for September. On July 31, the Fourth Circuit informed the parties that the case would instead be submitted on brief. The Fourth Circuit then issued its unanimous en banc opinion, authored by Judge Wynn, who sat on the three-judge panel.
Under Local Rule 36(a), the Fourth Circuit “will publish opinions only in cases that have been fully briefed and presented at oral argument. Opinions in such cases will be published if the author or a majority of the joining judges believes the opinion satisfies one or more of the standards for publication[.]” Technically, Chamberlain was “presented at oral argument,” but only before a three-judge panel. The judges joining the opinion included twelve who did not participate in oral argument. The Court explained this unusual publication decision:
After the case was calendared for en banc review, the government submitted a supplemental brief in which it asks us to overrule our existing precedent and hold that Section 853(e) does not authorize the pretrial restraint of substitute assets. In short, the government now agrees with Defendant’s proposed construction of Section 853(e). Accordingly, by unanimous vote of the Court, this matter is being resolved by published opinion without the need for further oral argument.
I’m not complaining. Given that the Court has authority under FRAP 2 to suspend the appellate rules for particular cases, the unanimous en banc Court certainly can give its local rules an elastic interpretation that does not prejudice any party.
In fact, as a Fourth Circuit practitioner, I’d like to see Local Rule 36(a) amended to say that unusual and compelling circumstances can warrant publication in a non-argued case. There are precious few opinions that address issues that arise in pre-briefing motions practice, such as stays on appeal. Often, a movant will need to depend on in-chambers opinions from the 1970s, treatises, or opinions from outside the circuit.
The Fourth Circuit may also want to examine a publication practice from a neighboring circuit. The D.C. Circuit has an established procedure for summary en banc review. A panel opinion may include a so-called “Irons footnote” indicating the endorsement of the full court. The procedure is, according to the D.C. Circuit’s published policy, ordinarily used only in a handful of situations—such as when a circuit precedent is “clearly an incorrect statement of current law” under “an intervening Supreme Court decision.” Such an streamlined procedure would have been helpful in Chamberlain.
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See Seventh Circuit Rule 40(e): Rehearing Sua Sponte before Decision. A proposed opinion approved by a panel of this court adopting a position which would overrule a prior decision of this court or create a conflict between or among circuits shall not be published unless it is first circulated among the active members of this court and a majority of them do not vote to rehear en banc the issue of whether the position should be adopted. In the discretion of the panel, a proposed opinion which would establish a new rule or procedure may be similarly circulated before it is issued. When the position is adopted by the panel after compliance with this procedure, the opinion, when published, shall contain a footnote worded, depending on the circumstances, in substance as follows:
This opinion has been circulated among all judges of this court in regular active service. (No judge favored, or, A majority did not favor) a rehearing en banc on the question of (e.g., overruling Doe v. Roe.)
The procedural anomaly was the “concession brief” that the Gov. had, as a result of the Luis case, but not directly resolved by the Supreme Court in Luis. Concession Briefs are rarely done. It seems a bit unusual still that the DOJ had argued one thing in a different Circuit, and this did not appear to have been clearly communicated to the pending 4th Cir. case with the same issue. Regardless, while I see the point on how the case may have benefited with a slightly different Local Rule in effect in other Circuits, I think this was a bit sui generis to begin with. The 4th Circuit maintains, uniquely amongst Circuits, a REQUIREMENT that there be oral arguments before publication. (There are other Local Rules that also are used for flexibility in certain cases) Technically, there were oral arguments in this case, just not at the en banc level, which it had been at en banc level for a number of months already, and is only done about twice per year. While there was still a lengthy opinion, the en banc grant, could have been perhaps avoided, had there been a concession brief much earlier.