Wallach: Good Chance for re-hearing En Banc

[SHOWTIME15]

It's my understanding that Brady has 14 days from Monday to make his move.

The 2nd circuit can also issue a sua sponte decision that they will hear the case en banc. That's what happened the last tine the 2nd circuit heard an en banc case (US v Ganias, 2015)

 

[PatsFanSince74]

In Kessler we trust. (?)

If this does get a breath of life and moves forward, I don't think Kessler will be anywhere near the proceedings.

I said out here from before the Appeal that he should let Johnson or another Appellate Lawyer argue the case. He was outclassed by Clement and was unprepared for the direction in which Chin took the questions.
Kessler got flustered and lost his cool instead of doing what Sally Jenkins suggested today and launching a vigorous defense of Brady's innocence when Chin gave him the chance to do so. I know I'm in a minority on this, but I think that Chin was giving Kessler a chance to make that argument. We shouldn't be fooled by the antagonistic tone of Chin's questions...that's what Appellate Judges do.

 

[PatsFanSince74]

The 2nd circuit can also issue a sua sponte decision that they will hear the case en banc. That's what happened the last tine the 2nd circuit heard an en banc case (US v Ganias, 2015)

First of all, for the rest of you who, like me didn't know what sua sponte means, Wikipedia describes it as "an act of authority taken without formal prompting from another party. The term is usually applied to actions by a judge taken without a prior motion or request from the parties."

So, is Katzmann, as Chief Judge, given the strength of his Dissent, convinced that this is either important enough or a great enough miscarriage of justice, to twist the arms of his colleagues to vote for an en banc hearing? If he thinks that the Eighth Circuit is going to yield a Split Ruling, then he might just be ready to attempt to do that.

 

[SHOWTIME15]

First of all, for the rest of you who, like me didn't know what sua sponte means, Wikipedia describes it as "an act of authority taken without formal prompting from another party. The term is usually applied to actions by a judge taken without a prior motion or request from the parties."

So, is Katzmann, as Chief Judge, given the strength of his Dissent, convinced that this is either important enough or a great enough miscarriage of justice, to twist the arms of his colleagues to vote for an en banc hearing? If he thinks that the Eighth Circuit is going to yield a Split Ruling, then he might just be ready to attempt to do that.

Yeah, Katzmann could be the impetus to get the court to hear the case en banc, but it could be any of the other judges. The split the Rules of Appellate Procedure speak of could be a split within the 2nd circuit itself - meaning the 2nd circuit has two contradictory interpretations of law (i.e., from two different panel decisions) or a difference in interpretation between the 2nd circuit panel and one of the district judges.

 

[PatsFanSince74]

Yeah, Katzmann could be the impetus to get the court to hear the case en banc, but it could be any of the other judges. The split the Rules of Appellate Procedure speak of could be a split within the 2nd circuit itself - meaning the 2nd circuit has two contradictory interpretations of law (i.e., from two different panel decisions) or a difference in interpretation between the 2nd circuit panel and one of the district judges.

You seem to know what you're talking about, so please help me out here.
I thought that the Split that would get the attention of the US Supreme Court would be if two District Courts of Appeal (in this case the Eighth and the Second) came down on different sides of the same issue, which might happen here.
Thanks.

 

[Gronkowski123]

this will never ever happen. lol


its over guys.

 

[SHOWTIME15]

You seem to know what you're talking about, so please help me out here.
I thought that the Split that would get the attention of the US Supreme Court would be if two District Courts of Appeal (in this case the Eighth and the Second) came down on different sides of the same issue, which might happen here.
Thanks.

Yes, for the Supreme Court, it might get the justices' attention if two different regional circuit courts have a different interpretetion of the same law. So if the 8th circuit says Goodell can't act a certain way, while the 2nd circuit says he can, someone has to resolve the conflict.

In my earlier post I was referring to a split within the 2nd circuit itself, where an en banc ruling will help clarify the law of the 2nd circuit.

 

[Jackson 2]

this will never ever happen. lol


its over guys.

No, actually it isn't . It's a long shot, for sure, but it isn't over.

 

[JMC00]

Yeah, Katzmann could be the impetus to get the court to hear the case en banc, but it could be any of the other judges. The split the Rules of Appellate Procedure speak of could be a split within the 2nd circuit itself - meaning the 2nd circuit has two contradictory interpretations of law (i.e., from two different panel decisions) or a difference in interpretation between the 2nd circuit panel and one of the district judges.

I think a lot of people are underplaying this just because almost no cases get heard en banc. That's because usually the party that wins the initial ruling wins the the appeal making it an unanimous decision between the 4 judges that looked at it.

Here we have the party that appealed winning but only 2-1 with the chief judge having a strongly worded dissension meaning 4 judges have ruled on this case and it is split 2-2.

Now i'm not saying it is 100% that the en banc will be taken but I think a lot of people are foolishly dismissing this based on the stats of en bancs. Remember before this appeal decision only 10% of appeals were overturned and only 8% of Berman's rulings were overturned.

 

[JMC00]

this will never ever happen. lol


its over guys.

4 federal judges ruled on this case and were split 2-2 on it. This is far from over IMO.

 

[PatsFanSince74]

this will never ever happen. lol


its over guys.

That's the likely conclusion one would draw based on precedent. So, yeah, there's a 90+% chance that this is over.

However, there is a small but measurable chance that the Second Circuit could decide to hear the case en banc at the insistence of the Chief Judge, whether out of deference to Katzmann or because the other judges understand that they can never be sure that they won't need something from him at some point. His Dissent was quite strong and even passionate.

There's also a small(er) chance that Brady could opt to pursue other legal measures around a suit charging Goodell with making maliciously false statements that amounted to defamation or libel of some sort, but I remain in the minority out here in thinking that that is a long shot. I'd be delighted if that turned out to be a viable alternative, but I have my doubts that it is, even though some do make a strong case for it as an option.

Finally, I'm pretty sure that Kraft burned all of his bridges when he declined during the San Francisco meeting to oppose the League....in the unlikely event that he would now discover the courage that he did not display in the spring. To my way of thinking, Kraft's failure to put the Franchise behind Brady was the spike in the heart of Brady's cause. It's hard to forget that and, while I still respect all that he has done to bring six Conference and four League championships to us fans, it will forever color my view of him.

The only motivations that the League would have to negotiate or take any actions favorable to Brady are, therefore, somewhere between slim and none...but still not Zero. If a viable path that could cause the Owners embarrassment were to open up for Brady, then they would have to come back to the table, but I'm not holding my breath for that outcome.

 

[SHOWTIME15]

I think a lot of people are underplaying this just because almost no cases get heard en banc. That's because usually the party that wins the initial ruling wins the the appeal making it an unanimous decision between the 4 judges that looked at it.

Here we have the party that appealed winning but only 2-1 with the chief judge having a strongly worded dissension meaning 4 judges have ruled on this case and it is split 2-2.

Now i'm not saying it is 100% that the en banc will be taken but I think a lot of people are foolishly dismissing this based on the stats of en bancs. Remember before this appeal decision only 10% of appeals were overturned and only 8% of Berman's rulings were overturned.

Even if the 2nd circuit heard the case en banc, brady's attorneys would still have to convince 7 other judges of the 14 to overturn it (he needs 8 votes, including katzman. Parker and chin will vote against him so he is already down 2-1). It's a tall order, and if you couple that to the fact that federal courts have a tradition of not disturbing arbitration results then it makes even more difficult.

 

[VectorPrime]

If this does get a breath of life and moves forward, I don't think Kessler will be anywhere near the proceedings.

I said out here from before the Appeal that he should let Johnson or another Appellate Lawyer argue the case. He was outclassed by Clement and was unprepared for the direction in which Chin took the questions.
Kessler got flustered and lost his cool instead of doing what Sally Jenkins suggested today and launching a vigorous defense of Brady's innocence when Chin gave him the chance to do so. I know I'm in a minority on this, but I think that Chin was giving Kessler a chance to make that argument. We shouldn't be fooled by the antagonistic tone of Chin's questions...that's what Appellate Judges do.

Do you really think that would have made a difference or do you believe that Chin and Parker had already made up their minds from the briefs and perhaps their own biases?

 

[Gronkowski123]

4 federal judges ruled on this case and were split 2-2 on it. This is far from over IMO.

i love your optimism and hopefully, you're right...

 

[Biggs1221]

Without wanting to go back and reread everything, I have been wondering if "Dqwell Jackson suspected the ball was under the legal limit" was anywhere in the record - whether the Wells report or anywhere else. And, if not, I wonder if that comment getting into the decision suggests that the judges in the majority were influenced by information outside of the record.

If it were a jury trial, I know that that would potentially be grounds for a new trial / mistrial. I am not sure what weight, if any, or what recourse, if any, would exist when a US district appeals court does it.

Any insight to that would be great.

 

[PatsFanSince74]

Do you really think that would have made a difference or do you believe that Chin and Parker had already made up their minds from the briefs and perhaps their own biases?

I don't know.

Chin is a Labor Lawyer by trade. So, I think he could have been trying to push Kessler to make the case for Brady's innocence and the fact that an egregious miscarriage of basic justice should trump any other potential issues on which Berman might have skirted the limits of standard Arbitration findings. He wasn't going to come right out and say, "Gee, maybe Brady's innocent and is being railroaded." All he could do was open the door for Kessler to do that. But, Kessler wasn't nimble enough either intellectually or rhetorically to be able to pivot away from his prepared text and more or less threw up all over himself.

Parker is a political hack and was mentored by a notorious hack in his younger days, so it's more than possible that he was starstruck by Clement and wanted to "look smart" to the former Solicitor General and genuine power player in DC.

 

[PatsFanSince74]

Even if the 2nd circuit heard the case en banc, brady's attorneys would still have to convince 7 other judges of the 14 to overturn it (he needs 8 votes, including katzman. Parker and chin will vote against him so he is already down 2-1). It's a tall order, and if you couple that to the fact that federal courts have a tradition of not disturbing arbitration results then it makes even more difficult.

Well, if it gets to that point and his Appeals Attorney (ABK*) can't convince a majority then maybe we (myself included!!!) would have to shut up and accept a decision that we don't like.

*Anybody but Kessler (who is a great Labor Lawyer, but demonstrated for the whole world that he is out of his comfort zone in a Federal Appeals Court, especially one as intimidating as CA2).

 

[Joker]

yup...Roger Goodell...Boss Of All Bosses...what could possibly remove him from any future equation?

 

[JarOfMayo51]

I don't know.

Chin is a Labor Lawyer by trade. So, I think he could have been trying to push Kessler to make the case for Brady's innocence and the fact that an egregious miscarriage of basic justice should trump any other potential issues on which Berman might have skirted the limits of standard Arbitration findings. He wasn't going to come right out and say, "Gee, maybe Brady's innocent and is being railroaded." All he could do was open the door for Kessler to do that. But, Kessler wasn't nimble enough either intellectually or rhetorically to be able to pivot away from his prepared text and more or less threw up all over himself.

Parker is a political hack and was mentored by a notorious hack in his younger days, so it's more than possible that he was starstruck by Clement and wanted to "look smart" to the former Solicitor General and genuine power player in DC.

The other disgraceful thing is that Kessler has essentially been undefeated against the NFL in major cases, and his first defeat comes when Brady's suspension is on the line for something he didn't even do... what un****ing believable luck

I was under the impression that Kessler was like a God in the court room, but he came across as amatuerish and was put in his place by a federal judge on several occasions. Truly disappointing.

 

[ANGR89]

is there a ruling expected soon in the Peterson case? I keep seeing that case thrown out there but haven't heard if it's close to being decided.