Well yes, there is now a circuit split but the 4th circuit one is unlikely to change position whereas there's likely to be an en banc review in the DC circuit. That, in my view, will likely lead to a reversal and no split. Stay tuned.
And this is precisely why Obama's nominees were not getting approved for the DC circuit
And exactly why Harry Reid exercised the nuclear option. This will be one of the first major tests of the new 7-4 Democratic-appointed majority on the DC Circuit. Two of the three judges that heard this case have senior status. I don't know if they sit on the
en banc panel as well, but it's basically irrelevant in this case since those two would effectively cancel each other out. If the DC Circuit does grant an
en banc hearing, I bet they overturn this case. That would almost certainly delay any possible action from SCOTUS, as they generally don't take cases where there's no split among the circuit courts.
