Alan Millstein: Brady's chances of en banc hearing dramatically improved with latest amicus filings

[Palm Beach Pats Fan]

Respectfully, I disagree. Any authority for your position?

was in post 282:

it's in the federal rules of appellate procedure

Rule 41(d)(1)

Rule 41. Mandate: Contents; Issuance and Effective Date; Stay

(d) Staying the Mandate.

(1) On Petition for Rehearing or Motion.The timely filing of a petition for panel rehearing, petition for rehearing en banc, or motion for stay of mandate, stays the mandate until disposition of the petition or motion, unless the court orders otherwise.

 

[GrogansArmy]

Right now the Peterson trial court decision and the CA2 panel appellate decision are at odds, with a CA8 panel currently (for 235 days and counting) reviewing the trial court.

We want CA8 to uphold the trial court decision, for two reasons.
1) while it is not binding precedent, it may give CA2 something more to think about and perhaps make them more likely to grant en banc in the first place and maybe make them more likely to side with Brady if they do.
2) if CA2 denies en banc or grants it but issues an anti-Brady decision, there would then be a so-called "circuit split" between CA8 and CA2. That will increase, but by no means guarantee, the chances of SCOTUS taking the case.

Since we want CA8 to uphold the lower court we probably want the panel decision to be 3-0, with a clear, forceful argument upholding the lower court. 2-1 to uphold is good but probably not quite as good, especially if the dissenter writes a strong dissent. On the flip side, if it goes 2-1 against Peterson we at least want a strong dissent to hopefully make the judges in CA2 or SCOTUS think about it.

Not sure if I'm the only one, perhaps I am... but I am torn. While I, of course, want the result that would most help Brady in his case, I'm having a difficult time rooting for AP to win his case. Even though I know it would help Brady.

I was one of those that was outraged by what AP had done to his little child... and now I have to try to decide whether I want a child abuser to pay for his crime or hope he's let off so it helps Brady. Ugh this sucks. I know the case is all about whether Goodell had the right to do any of this, but at the same time I'm finding it difficult to root for AP to win his case even if it would help Brady's case.

 

[PedroMac]

Until today I haven't commented on Brady's suspension or the legal ramifications since the day the 2nd circuit upheld the NFL's case. I was simply appalled by the stupidity, ignorance, and lack of common sense shown by 2 supposedly smart men who chose to ignore the truth and take the cowards way and simply "follow the law and precedent". That day I lost my faith in the judicial process, the NFL, and the greatness of America in general. It proved that "the big lie" could succeed at even the highest level. Hitler and Goebels' beliefs were affirmed....and nothing much since (including the presidential nominating season) has led me to believe anything has changed.

Finally today I read the original post about Fienstien's amicus brief and a ray of sunshine poured into my dark state of despair. After reading it I was reminded that this decision was a lot more important than just whether Tom Brady gets to play in the first four games this year. Much more important than righting a wrong perpetrated by the NFL, its jealous cadre of owners. on the Pats and Brady.

If left unchallenged this decision will SIGNIFICANTLY effect the general fairness of the arbitration process as a whole. It will allow the most powerful party to be the judge and arbiter both. It will allow them to change the terms of the arbitration at will. It will allow them to ignore evidence that proves innocence It will allow them to change the range of punishments at will. These are all things the NFL did in this case.

Previously I thought there was NO chance of this being sent back to be heard by the full panel of judges, and even LESS that it be heard by SCOTUS. But I was wrong. Wrong because I didn't realize the scope of the impact of the decision goes far beyond the desires of a Pats fan to see a wrong corrected that harmed his team. Unfortunately if it is upheld it will be just ANOTHER nail in the coffin any chance of fairness from our already lop sided legal system and the gap between the haves and have not's in this country will keep growing ever larger.

Hopefully with these critical amicus briefs there will be enough judges who will realize that this case NEEDS to be heard in full, right up to SCOTUS. And as much as I want it to be, if I read Fienstien's brief correctly, this isn't really about Tom Brady any more.

Color me more hopeful now, though there was a small part of me that was just getting used to the idea of Jimmy G going 3-1 or better, and the Pats winding up at the end of the year with a less beat up Tom Brady, a Lombardi Trophy and an asset that will bring more picks back than Goodell ever took away. THAT would be a nice FU for the NFL scenario as well .

Superb!

 

[Galeb]

Not sure if I'm the only one, perhaps I am... but I am torn. While I, of course, want the result that would most help Brady in his case, I'm having a difficult time rooting for AP to win his case. Even though I know it would help Brady.

I was one of those that was outraged by what AP had done to his little child... and now I have to try to decide whether I want a child abuser to pay for his crime or hope he's let off so it helps Brady. Ugh this sucks. I know the case is all about whether Goodell had the right to do any of this, but at the same time I'm finding it difficult to root for AP to win his case even if it would help Brady's case.

It shouldn't be difficult to root for AP in his case vs. the NFL. It's not the NFL's job to punish players for what they do off the field. That should be the job of law enforcement, and even society as a whole. I sincerely doubt AP will ever get another endorsement deal. Millions of dollars lost is a significant punishment by most any measure.

 

[venecol]

Not sure if I'm the only one, perhaps I am... but I am torn. While I, of course, want the result that would most help Brady in his case, I'm having a difficult time rooting for AP to win his case. Even though I know it would help Brady.

I was one of those that was outraged by what AP had done to his little child... and now I have to try to decide whether I want a child abuser to pay for his crime or hope he's let off so it helps Brady. Ugh this sucks. I know the case is all about whether Goodell had the right to do any of this, but at the same time I'm finding it difficult to root for AP to win his case even if it would help Brady's case.

Look at it this way, you wouldn't be rooting for AP but against Goodell. Goodell's over reach in imposing his draconian and completely inconsistent discipline in these matters is the question.

 

[PatsFanSince74]

if it isn't done by the end of the week i would start to worry a little.

I'm already worried a little. If it isn't done by the end of the day on Monday (four weeks to the day after the Appeal was filed), I'll be worried more than a little.

 

[Ivan]

I'm already worried a little. If it isn't done by the end of the day on Monday (four weeks to the day after the Appeal was filed), I'll be worried more than a little.

Why? Wallach thinks it's good news?

 

[SHOWTIME15]

Does anyone know how long it typically takes CA2 to reject an en banc petition?

 

[QuantumMechanic]

Why? Wallach thinks it's good news?

I'm guessing @PatsFanSince74 is thinking that if CA2 is taking the Brady petition seriously, they will need to have the NFL file a reply brief, and once they have said to themselves "we're taking this seriously" there is no need to wait any longer to order the brief. So past some point, the longer they don't order the NFL to file the reply, the more worrisome it is that they may not be taking it seriously after all.

 

[Ivan]

I'm guessing @PatsFanSince74 is thinking that if CA2 is taking the Brady petition seriously, they will need to have the NFL file a reply brief, and once they have said to themselves "we're taking this seriously" there is no need to wait any longer to order the brief. So past some point, the longer they don't order the NFL to file the reply, the more worrisome it is that they may not be taking it seriously after all.

That makes sense but if they aren't seriously considering it wouldn't they just issue the rejection instead of dragging it out?

 

[QuantumMechanic]

That makes sense but if they aren't seriously considering it wouldn't they just issue the rejection instead of dragging it out?

That's a fair point and I believe that's Wallach's argument (that not seriously considering it means (relatively) quick rejection).

 

[SalemPats]

Any timeframe of when we will know some sort of decision?

 

[PatsFanSince74]

Don't think so. Technically now the suspension is in place unless the appeal is accepted....

No. Once the NFLPA appealed for an en banc hearing, the situation reverted to the status quo ante, i.e., as things were before the CA2 ruled for the NFL. If CA2 refuses the en banc hearing, then Brady and the NFL will have a short window (a week or two) in which to file an Appeal to the Supreme Court before Berman is required to sign an order re-instituting Brady's suspension. But, for now, Brady is technically not suspended.

If Brady either does not get an en banc hearing or gets it and loses it and then appeals to the Supreme Court, the Justice for matters coming out of CA2 (Ginsburg) will decide whether to Stay the suspension before the Court decides whether to take up the case; four Justices need to agree to take up the case and that can take weeks or months.

The odds that the Supreme Court would agree to hear the Case when Brady either lost or was refused an en banc hearing by the Second Circuit are very slim; the odds that Ginsburg would grant a Stay under those circumstances are even more slim.

Brady's only hope, IMO, of getting the Supreme Court to take the case would be if Adrian Peterson wins his Appeal to the Eighth Circuit. Under that scenario, there would be two conflicting rulings by two different Districts on virtually the same issue; that is a case the Supreme Court would be more likely to take because it typically likes to resolve issues that have been adjudicated differently by lower courts.

 

[PatsFanSince74]

Why? Wallach thinks it's good news?

At some point, they have to decide whether to grant the hearing or not grant the hearing. If, a month after the request was filed, they have still not even asked the NFL to respond, it would suggest to me that they're going through some internal formalities but are not going to take the case.

 

[Ivan]

At some point, they have to decide whether to grant the hearing or not grant the hearing. If, a month after the request was filed, they have still not even asked the NFL to respond, it would suggest to me that they're going through some internal formalities but are not going to take the case.

Which would mean that arbitrators could, from here on out, add sanctions for issues that are not even on appeal, as Goodell did in this case. Which according to Feinberg would fundamentally undermine the entire arbitration process. That's a pretty significant blow to the arbitration system for CAII to simply let stand.

 

[PatsFanSince74]

That makes sense but if they aren't seriously considering it wouldn't they just issue the rejection instead of dragging it out?

There are around 13 judges.

Katzmann is probably polling each of them personally. He's the Chief Judge, so no one is going to be ducking him, but he probably wants candid responses so he's probably calling them instead of using email. The formal requests and responses will follow. I can see it taking two or three weeks to get formal answers back from each. I'm giving it a month before I decide it's gone south.

 

[PatsFanSince74]

Which would mean that arbitrators could, from here on out, add sanctions for issues that are not even on appeal, as Goodell did in this case. Which according to Feinberg would fundamentally undermine the entire arbitration process. That's a pretty significant blow to the arbitration system for CAII to simply let stand.

well, you won't get any disagreement from me on that...but I'm not on the Second Circuit Court of Appeals and there could be eight judges there who see it differently.

 

[Ivan]

well, you won't get any disagreement from me on that...but I'm not on the Second Circuit Court of Appeals and there could be eight judges there who see it differently.

No argument hear. I think it would be grossly irresponsible for CAII not to fix this while they have the chance but at this point I'm beyond getting worked up over it. I'm glad Brady has fought this so hard and hope he prevails but if this is the end of the road for it then I think they will get their revenge on the field. If Garrapolo gets to play I think he will do really well and they will get their first back in a trade for him next off-season. I also believe a seriously pissed off Brady will take it out on their opponents and a fifth Lombardi is a high probability.

I'm still betting on Brady to win in the end, if it isn't in court it will be on the field.

 

[PatsFanSince74]

No argument hear. I think it would be grossly irresponsibility for CAII not to fix this while they have the chance but at this point I'm beyond getting worked up over it. I'm glad Brady has fought this so hard and hope he prevails but if this is the end of the road for it then I think they will get their revenge on the field. If Garrapolo gets to play I think he will do really well and they will get their first back in a trade for him next off-season. I also believe a seriously pissed off Brady will take it out on their opponents and a fifth Lombardi is a high probability.

I'm still betting on Brady to win in the end, if it isn't in court it will be on the field.

I'm not giving up on the courts just yet...but, yeah, I think that might be how we have to start thinking about this in a week or so...

 

[ChessToCheckers]

When I first read the appeal majority ruling I was dumbfounded. Then I came to believe that Chin and Parker simply "mailed it in". Chin's comments suggested to me that he hadn't even bothered to read up on the matter.

If that's even half true, then I believe the amicus curiae briefs from AFL-CIA and Feinburg in particular will have positive effect on 2CA. The very idea that labor arbitration will stop working fairly would swamp the judiciary. If Chin's apparent laziness is an indication of the average work ethic of our federal judges, then I would think they'll vote to rehear en banc.