Dorothy R. Cannon v. The Kroger Co.

It is indeed unusual, if not extraordinary,1 for a member of the Fourth Circuit Court of Appeals who disagrees with a panel opinion to continue to fight after rehearing en banc has been denied by the majority of the court. So far as my memory serves, I have had but one occasion to dissent from the denial of a rehearing en banc in over eight years on the court. Now I have a second occasion, because I perceive the court’s failure to grant rehearing as a dangerous error that may entrench a mischievous and unjust decision.

Of course, my colleagues may simply conclude that my sight is distorted…