The DeCosters Battle OnSeptember 20, 2016
By Jennifer M. Thomas –
As predicted in our last post on the significant Park-related litigation arising out of the Quality Egg case, Austin (Jack) and Peter Decoster timely petitioned for panel or en banc rehearing of their Eighth Circuit challenge to three-month prison sentences imposed by the U.S. District Court for the Northern District of Iowa. The DeCoster’s appeal was denied on the first hearing by a divided panel of the Eighth Circuit on July 7, 2016. Upon receiving the DeCosters’ petition for rehearing, the Court immediately ordered the government to respond to the petition, which response was filed last week (September 14, 2016).
Victory on a petition for panel or en banc rehearing is rare, but the DeCosters’ chances of some positive result from their petition appear better than average. The fact that the Court immediately requested a response by the government may mean that one of the panel judges quickly acted to request a poll of all the sitting Circuit judges with respect to the petition for rehearing en banc. It is also a good sign for the DeCosters because no response to a petition is permitted unless requested by the Court, and Court ordinarily does not grant rehearing without having requested a response. See Fed. R. App. P. 40.
While some form of rehearing seems more probable in the Decosters’ case than is usual, it remains anyone’s guess as to whether panel or en banc rehearing is more likely. The standard for granting panel rehearing is lower than that for rehearing en banc, but in practice is still difficult to surmount. A panel of the Eighth Circuit may grant a petition for rehearing when it questions whether its initial decision was correct, whereas en banc review is reserved for cases “necessary to secure or maintain uniformity of the [Circuit’s] decisions; or . . . involv[ing] a question of exceptional importance.” Fed. R. App. P. 35. That said, it is very unusual for a panel to grant rehearing and reverse itself based on legal error, and the Eighth Circuit has historically been relatively generous in granting en banc review.
The Court has no deadline to decide on the DeCosters’ petition, but we don’t expect the matter to languish too long — we will keep you updated on the case.