So after Patriots quarterback Tom Brady and the NFL Players Association file the petition for rehearing before the full U.S. Court of Appeals for the Second Circuit (the fancy, lawyer term is “en banc”), what happens next? Glad you asked.
From the relevant Federal Rules of Appellate Procedure and the internal operating procedures of the Second Circuit, the decision as to whether a rehearing before the full Second Circuit will be made by a majority of the active judges on the court. Currently, there are 13: Chief Judge Robert A. Katzmann (who participated in the three-judge panel and sided with Brady), Judge Dennis Jacobs, Judge José A. Carbines, Judge Rosemary S. Pooler, Judge Reena Raggi, Judge Richard C. Wesley, Judge Peter W. Hall, Judge Debra Ann Livingston, Judge Gerard E. Lynch, Judge Denny Chin (who participated in the three-judge panel and sided with the NFL), Jude Raymond J. Lohler, Jr., Judge Susan L. Carney, and Judge Christopher S. Droney.
Seven of the 13 judges will be required to vote in favor of a rehearing. Presumably, Judge Katzmann will vote in favor of the rehearing and Judge Chin will be opposed to it. The question ultimately becomes whether at least six of the other 11 are willing to consider the case with the full court.
The fact that Judge Katzmann is the Chief Judge of the Second Circuit could help Brady’s cause, if Judge Katzmann’s title gives him an extra influence with his colleagues.
The process starts with Brady’s petition. The NFL won’t be permitted to respond unless requested to do so. A request by the Second Circuit for a response would be the first sign that at least seven judges are seriously considering granting the rehearing.
It’s expected that a decision on whether to grant the petition will be made well in advance of the launch of the regular season. If the petition is granted, it’s believed that a decision from the full Second Circuit will come after the 2016 season has concluded — which means that, if the petition is granted, Brady likely will not be suspended this year.