PHILADELPHIA—In a ruling handed down Aug. 11, the Third Circuit U.S. Court of Appeals has denied the U.S. Department of Justice's petition for a rehearing, or rehearing en banc, regarding the three-judge panel's decision in the appeal of the trial court's ruling in the federal record-keeping and labeling law case, known as the "2257 case."
In late July, the Justice Department filed its petition for rehearing, but as plaintiffs' attorney J. Michael Murray noted at the time, "This is nothing more than a rehash of what they've already argued, and what was already rejected by the panel, or at least a majority of the panel ... The decision by our panel was based upon the new Supreme Court case, Reed v. Town of Gilbert, which was not available and was obviously not considered by those other courts [the D.C. and Sixth Circuits], so there's no conflict."
According to the decision issued by the circuit's chief judge and 12 of its judges, "The petition for rehearing filed by appellee in the above-entitled case having been submitted to the judges who participated in the decision of this Court and to all the other available circuit judges of the circuit in regular active service, and no judge who concurred in the decision having asked for rehearing, and a majority of the judges of the circuit in regular service not having voted for rehearing, the petition for rehearing by the panel and the Court en banc, is denied."
The decision, authored by Judge D. Brooks Smith, the panel member who wrote the original panel decision, noted that one judge would have granted a rehearing en banc, and that Smith's two fellow panelists, Marjorie O. Rendell and Anthony J. Scirica, took part only in voting down a panel rehearing.
Unless the Justice Department files a petition for certiorari with the U.S. Supreme Court, the next stop for this lawsuit will be the trial judge, Michael M. Baylson, who may issue a second ruling based on the Third Circuit panel's June 8 decision based on the evidence given at trial, or he may ask for additional arguments and/or additional evidence.
