In Booth v. State of Maryland, the district court had granted summary judgment on plaintiff correctional officer's claims religious and racial discrimination based on his being disciplined for wearing dreadlocks, and the Fourth Circuit reversed in part, concluding that Title VII was not the exclusive remedy for the plaintiff's religion claims under the Free Exercise clause of the First Amendment and there was some evidence that other religious exceptions had been made to the dress code, while affirming judgment against the plaintiff on his race and defamation.
The opinion was by Judge Traxler, joined by Judge Luttig and Judge King, and included some language dealing with Judge Luttig's issue of recent complaint, about how panel decisions cannot be thrown out except by the en banc court, which liberated this panel to ignore a more recent panel decision with which they disagreed and which was at odds with an earlier panel decision on point.
What makes this even more interesting is language which says the district courts who felt obliged to follow opinion No. 2 instead of opinion No. 1 were wrong: "This footnote, in turn, has led several district courts to erroneously conclude that it must follow Hughes, instead of Keller, either because Hughes is a more recent decision by this court or because the plaintiff in Hughes, unlike the plaintiff in Keller, did not bring a Title VII claim along with a Section 1983 claim." It seems to me that it's one thing to say that the court of appeals cannot overrule itself, it's another and more radical thing to suggest that the district courts are free to decide the latest panel decision can be ignored.
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