The results are in this afternoon in the Seventh Circuit’s vote to rehear en banc Rowe v. Gibson, No. 14-3316 (Aug. 19, 2015), and it was a close one, a 4-4 tie, which means that the majority’s opinion stands, though not without an extraordinary exercise in defensiveness by the panel majority (but more on that below).
A vote of the majority of the judges in regular active service on the Seventh Circuit was required to rehear the case en banc, leaving the petitioner one vote short.
There are currently nine judges in regular active service on the court, but Judge Joel Flaum did not participate in the vote, creating the potential for a deadlocked court since there were only eight votes left to be cast. Judges Frank Easterbrook, Michael Kanne, Diane Sykes, and David Hamilton (the last of whom wrote a stinging dissent in Rowe) voted to rehear the case en banc. Chief Judge Diane Wood and Judges Richard Posner, Ilana Diamond Rovner, and Anne Claire Williams voted to deny the petition for rehearing.
We first wrote in August about Rowe, a decision written by Judge Posner that created considerable controversy regarding the propriety of internet factual research by appellate courts. In short, Judge Posner relied on publicly available information on the web concerning the effects and use of Zantac to conclude that the district court should not have granted summary judgment in favor of the defendants in an Eighth Amendment claim. Judge Rovner wrote a concurrence, joining in the result, but not Judge Posner’s opinion. Judge Hamilton dissented.
Rowe took the position in his response to the petition for rehearing en banc that the panel’s debate over internet research, while “lively,” was not essential to its decision to overturn the district court’s grant of summary judgment. (See our post here.)
In what we think was a highly unusual and defensive move, the panel majority (Judges Posner and Rovner) used the court’s order denying the petition for rehearing en banc today to explain essentially the same thing. Here are the court’s own words from the order:
The panel majority should not be read as holding that we expect district judges to do their own factual research or as suggesting anything at all about the propriety of internet research. In short, that some internet sources lend credence to Rowe’s assertion that the timing may matter is not at all dispositive of the result. Rather, as both the majority and the concurring opinions attempt to make clear, this case ultimately rests on the unremarkable proposition that we must view the evidence in the light most favorable to the non-moving party and draw all reasonable inferences in his favor. That means that we must credit Rowe’s assertion that prison officials were aware he was in severe pain and were also aware of a simple solution for that pain—changing the timing of his Zantac—and decided not to act. On remand Rowe’s evidence may fail to persuade a jury that the defendants were deliberately indifferent to his serious pain. The panel did not order the entry of judgment in favor of plaintiff, but rather vacated the district court’s judgment and remanded for a fuller evidentiary hearing to explore Rowe’s claim of deliberate indifference and the defendants’ defenses or rebuttals to the claim. Given our continued belief that any factual research conducted by the panel majority was unnecessary to that outcome, we believe nothing about this case warrants rehearing or rehearing en banc.
Earlier we speculated that this debate might need to be resolved by the Supreme Court. That still might be true as a general matter, but the prospect of the Court granting a writ of certiorari in Rowe itself seems considerably less likely after the court’s order today.