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Monday, June 27, 2016
Is the Second Circuit Becoming More "Rehearing-Friendly"? A Look At Ganias And Its Possible Implications for Deflategate

It has been a little more than one month since Tom Brady and the NFLPA filed their petition for rehearing en banc with the Second Circuit U.S. Court of Appeals. Most Deflategate observers, including yours truly, expected the Second Circuit to have issued some type of order by now, either by denying the petition outright or (as I predicted) ordering the NFL Management Council to file a response to the petition and various amicus curiae briefs. Perhaps this is the week when one or the other will occur.

While we wait for the Second Circuit to act (and I pause from obsessively refreshing PACER), a noteworthy development occurred in the Court last month that could be somewhat instructive on Brady's chances for success and the possible timeline. I recently discovered that the Second Circuit is not as "gun-shy" on granting rehearing as originally thought. On May 27, 2016, the Second Circuit issued an en banc opinion in a criminal case entitled United States v. Ganias. In that opinion, the Second Circuit disagreed with an earlier opinion by Judge Denny Chin (who was also part of the two-judge majority which ruled against Brady) which had reversed the district court's opinion. As a result of the Ganias en banc opinion, the district court opinion was affirmed (instead of being reversed, as Judge Chin's original panel opinion had accomplished before being vacated due to the rehearing grant).

While the Ganias opinion obviously involved an unrelated controversy (and in a criminal setting, perhaps signaling the type of case that warrants the "en banc" treatment) and is just ONE case, it nonetheless provides some measure of hope to fans of Tom Brady and due process that rehearing en banc is more than just a "Haley's Comet" type of occurrence. Ganias provides somewhat of a counterweight to the grim statistics that have previously been reported. For example, in a recent ESPN article, noted sports legal analyst Lester Munson pointed out that the Second Circuit had denied ALL 280 petitions for rehearing en banc that had been filed in 2014. He must have missed this one! I'm somewhat guilty too, having cited a 2000-2010 study which revealed that the Second Circuit reheard only 8 cases(!) during that 10-year period, an average of less than one per year. Perhaps the tide is turning.

A similar statistical turnabout recently occurred in the Third Circuit, where many legal experts following the New Jersey sports betting case were equally pessimistic about New Jersey's chances of securing rehearing en banc, noting that the Third Circuit had historically granted less than one rehearing en banc per year. In the face of such long odds, I correctly predicted (see herehere and here) that New Jersey would buck the statistical trend and secure rehearing based on the merits of the arguments raised in the state's petition and the fact that there was a dissenting opinion (incidentally, from the same judge who had earlier ruled against New Jersey in the Christie I case).

Rehearing en banc is not tantamount to a spin of the roulette wheel--it will ultimately turn on the merits of the arguments rather than on historical trends or past performance. The lesson to be drawn from Ganias and the New Jersey sports betting case is to focus on the merits of the petition and not be overly swayed by the results in unrelated cases. No case is quite like Brady. Think about it for a second: you have two former U.S. Solicitor Generals going head to head, one of the most celebrated professional athletes of all-time, perhaps the most unpopular sports commissioner ever (and this poll was taken in 2012, several years before Deflategate), a dissenting opinion by the chief judge, a change in the result from the lower court, five amici briefs, and a partridge in a pear tree. Show me one other petition for rehearing en banc that has all that.

And the merits of Brady's petition are quite strong. I believe that Brady's chances for securing rehearing hover somewhere in the 30%-50% range based on the broader issues of fundamental fairness and arbitral due process raised in the petition (which could potentially impact unionized labor in myriad settings), the existence of a dissenting opinion from the chief judge (Robert Katzmann), the changed result below (meaning that two judges have sided with Brady and two with the NFL), and, of course, the likely positive impact of the five amici briefs, including from such legal luminaries as Kenneth Feinberg. In my opinion, Brady's petition has an excellent chance of bucking the statistical trend, just as in the New Jersey case.

And even if he does not succeed in persuading the Second Circuit to rehear the case en banc, Brady still has two more points of entry to potentially stave off his four-game suspension this year: a petition for writ of certiorari to the U.S. Supreme Court (a long-shot) and a motion to stay the issuance of the Second Circuit's mandate (following an adverse decision) pending the outcome of the Supreme Court case. The "stay" motion presents a more likely avenue of success given the importance of the irreparable harm element--Brady can never recapture the four lost games were he to later win at the Supreme Court without a corresponding stay of the suspension--and the likelihood that Ruth Bader Ginsburg, perhaps the most liberal and pro-labor Supreme Court Justice, would ultimately decide the stay motion. In other words, Brady still has better than a puncher's chance of playing this year even if rehearing is denied.

The Ganias case, while not a large sample size, offers additional clues on the timing of a potential rehearing. In that case, the Second Circuit granted rehearing en banc nearly TEN MONTHS after the petition for rehearing was filed with the Court, a potentially favorable timeline for Brady (at least for the 2016 season). Of course, the Second Circuit ordered the United States Government (the respondent in that case) to submit a response brief a mere seven days after the petition for rehearing en banc was filed. We have long since passed that benchmark in NFL vs. Brady, but that is likely due to the numerous amici curiae briefs that were filed and which would presumably merit additional consideration and deliberation by the Court. By contrast, in the Granias case, the amicus briefs (six of them!) were filed AFTER rehearing was granted (as opposed to beforehand, as occurred in NFL vs. Brady), a plausible explanation for the dramatically different timelines in the two cases.

It is also worth noting that the oral argument in the Ganias rehearing was held almost three months to the day after rehearing was granted in that case, and the ensuing en banc decision was issued nearly eight months following that oral argument. If a similar timeline is followed in NFL vs. Brady, assuming that a briefing order is issued AND rehearing is granted (which would vacate the original panel decision), in all likelihood Brady would end up playing for the entirety of the 2016 NFL season while the case remains under review. While the original panel "expedited" the appeal, rehearing is a different animal altogether. Try getting 12 judges (more on that in my next post!) in the same room during the summer vacation months during a tight several-week timeframe (at best) between a potential rehearing grant and the start of the 2016 NFL season. They won't even hear the case before the season opener, much less decide it on the merits by then.

But all this depends of course, on the Second Circuit ordering the NFL to formally respond to Brady's petition. We should find out this week (or next) whether the Second Circuit desires additional briefing on the issues, or, alternatively, just simply denies the petition outright (a possibility), which would then tee up the stay motion (likely to be filed within seven days after any denial of rehearing) and corresponding Supreme Court petition (which must be filed within 90 days of the denial of rehearing). For what it's worth, the Second Circuit recently agreed to stay the issuance of its mandate in Ganias pending Supreme Court review (but it bears emphasizing that the stay motion was unopposed in that case). Brady can only hope that his rehearing effort follows a similar timeline (and outcome) to Ganias. Were that to happen, win or lose, Brady would likely not miss any games during the 2016 NFL season. And for that, Patriots fans would gladly offer up a "gracias" to the Second Circuit.


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