Tuesday, May 24, 2011

Proposed Amendment to Fifth Circuit Rule Addresses Loss of Quorum After Grant of Rehearing En Banc

Yesterday the clerk's office issued this notice soliciting public comment on a proposed change to Fifth Circuit Rule 41.3.  Here's a redline:
41.3 Effect of Granting Rehearing En Banc. Unless otherwise expressly provided, the granting of a rehearing en banc vacates the panel opinion and judgment of the court and stays the mandate. If, after voting a case en banc, the court lacks a quorum to act on the case for 30 consecutive days, the case is automatically returned to the panel, the panel opinion is reinstated as an unpublished (and hence nonprecedential) opinion, and the mandate is released. To act on a case, the en banc court must have a quorum consisting of a majority of the en banc court as defined in 28 U.S.C. ยง 46(c).
Comments are due by July 25, 2011.
If you're wondering what might have prompted this proposal, see this post by Professor Aaron Bruhl post over at Prawfsblawg.

UPDATE: More commentary from the professoriate at the Volokh Conspiracy.

Labels: ,


Anonymous Anonymous said...

Ok, so lets say I have a 3 judge panel that renders an opinion in my favor AND designates it for publication.

Opposing counsel does not want it published, so opposing counsel asks for an en banc rehearing, and it is granted. If no other action is taken, does my published opinion suddenly become unpublished?

Just curious...

6/09/2011 03:50:00 PM  

Post a Comment

<< Home