A few years ago I wrote about The Curious Cases(s) of the Published Denial of Rehearing.  In that post,  which focused on two published denials of rehearing from the Fourth Circuit in the span of a week, I noted a prior instance of this relatively rare occurrence in the much publicized case of Gavin Grimm (then known in the caption as “G.G.”), the transgender male Virginia high school student who sought to use the boy’s bathrooms at school.  Earlier today, that case again provided a published denial of rehearing en banc, this time with two markedly different concurrences–one from Judge Niemeyer and one from Judge Wynn.  Judge Niemeyer had dissented from the denial of rehearing in 2016, and urged for the case to be reviewed by the Supreme Court.  In his concurrence today, he again called for the panel’s decision (of which he was a part and from which he dissented) to be sent to the Justices.  He stated that “under every applicable criterion, this case merits an en banc rehearing,” but nevertheless declined to vote in favor of that rehearing on the grounds that he believed such an effort to be pointless, predicting that the Fourth Circuit’s past precedent in this specific case would only result in the en banc Court affirming the panel’s decision.   For his part, Judge Wynn (also a member of the panel and having joined in the majority decision and authored a concurring opinion of his own) concurred with the “wise decision” of Judge Niemeyer to deny rehearing,  albeit on a completely different basis.  In Judge Wynn’s view, the panel’s decision aligned with the other circuits that have addressed the issue, and moreover was supported by the Supreme Court’s opinion earlier this year in  Bostock v. Clayton County, 140 S. Ct. 1731 (2020).  Thus, en banc review was neither warranted nor necessary.

When Judge Niemeyer dissented in this matter in 2016 and called for the Supreme Court to take the case, the Court heeded his call and granted a writ of certiorari, but then vacated the panel opinion on procedural grounds.  Will the nation’s highest court once again agree with Judge Niemeyer that this case merits review?  Or will it agree with Judge Wynn that no sufficient grounds for certiorari are present?  While this almost certainly will not be the most high profile thing to happen with respect to the Supreme Court in the upcoming months, it will still be interesting to follow.

–Patrick Kane