Jun 02, 2016

Tom Brady’s Legal “Hail Mary” Is Likely to Fail

On Monday, May 23, Tom Brady’s attorneys filed a petition for rehearing en banc, in other words, a rehearing by all thirteen active judges of the U.S. Court of Appeals for the Second Circuit rather than the three-judge panel who decided his appeal.  Based on 105 years of Second Circuit history with en banc review, Brady’s petition has longer odds of being granted than the Leicester City Football Club had of winning the Barclay’s Premier League title this year.

In a 2006 article in The Federal Lawyer, SGR’s John McCarthy discussed the history of en banc proceedings in the Second Circuit.  Of the twelve general jurisdiction circuit courts in the United States, the Second Circuit was (and remains) the stingiest in terms of granting en banc review.  It was 45 years after en banc review became possible before the Court first granted en banc consideration in 1956.  Ten years ago when the article was published, the Second Circuit had been averaging about one en banc proceeding for every 1,844 cases decided on the merits.  In the five years ending September 30, 2015, however, the Second Circuit decided only one appeal through an en banc proceeding. During that same period, the Second Circuit decided almost 13,000 appeals on the merits. The other twelve non-specialized Courts of Appeals had 220 en banc proceedings.  On September 30, 2015, the Court heard argument en banc in a case involving the application of the Fourth Amendment’s restriction on government searches in the context of nonresponsive digital data seized pursuant to a warrant and retained by the government.


McCarthy’s article noted that the court “grants en banc rehearing only to consider issues of significant importance that are either likely to recur with frequency or have wide societal effect.”  Brady and the NFL Players Association claim that the panel decision will adversely affect all unionized workers with bargained for appeal rights from arbitrator’s decisions.

Former Chief Judge John M. Walker, Jr. once wrote that the Second Circuit holds en banc review “in reserve for the exceptional case that is an unlikely candidate for Supreme Court resolution.”   The 2006 article pointed out that “the odds of the Second Circuit granting en banc review are less than the odds of the Supreme Court granting a writ of certiorari.”  That is still true, during the same five-year period when the Second Circuit decided en banc just one appeal, the Supreme Court granted certiorari in 64 cases from the Second Circuit.  The petition filed by Brady and the NFL Players Association asks for en banc review because the panel’s decision conflicts with Supreme Court precedent and with a decision by the Eighth Circuit, headquarted in St. Louis.  Two of the bases most frequently used by the Supreme Court when granting certiorari review are a conflict with one of its decisions and a conflict between two or more circuits on the same legal issue.

The lack of a wide societal effect of the panel’s decision and the fact that the two bases on which the petition is based are good grounds for Supreme Court review make Brady’s play a long shot from a legal perspective.  So, while the odds of American footballer Brady’s petition being granted are probably better than 13,000 to 1, they are certainly longer than the 5,000 to 1 odds that bookmakers gave the football club in Leicester City to win this year.

John G. McCarthy is head of the Litigation Department in the New York office of Smith, Gambrell & Russell, LLP.  He has worked on dozens of appeals in federal circuit courts throughout the United States, mostly in the Second Circuit.  He is Vice Chair of the Federal Litigation Section of the Federal Bar Association and a former FBA Circuit Vice President for the Second Circuit.

This client alert is intended to inform clients and other interested parties about legal matters of current interest and is not intended as legal advice.

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