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The Fifth Circuit Court of Appeals is seeking comments regarding a proposed amendment to Rule 41.3, Effect of Granting Rehearing En Banc. The comment period closes on July 25, 2011.
Currently, Rule 41.3 states, "If the court grants a petition for en banc rehearing, the panel opinion is vacated and the mandate is stayed." The proposed amendment would add, "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case for 30 consecutive days, the case is automatically returned to the panel, the panel opinion is reinstated as an unpublished (and hence nonprecedential) opinion, and the mandate is released.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. § 46(c)."
The proposed amendment is being offered to prevent surprising dismissals like one which occurred in Comer v. Murphy Oil USA. The suit, in which Mississippi Gulf Coast property owners accused a gaggle of industrial companies of polluting the environment and contributing to global warming and a host of natural disasters, was initially dismissed by a lower court, but reinstated by a three-judge panel of the Fifth Circuit.
The defendants appealed for an en banc appeal before the entire sixteen-judge court, but half of the judges recused themselves from the hearing. The majority of the remaining eight judges dismissed the case noting, "There is no rule that gives this court authority to reinstate the panel opinion, which has been vacated...Because neither this en banc court, nor the panel, can conduct further judicial business in this appeal, the Clerk is directed to dismiss the appeal."
Recusals are a problem in the Fifth Circuit due to the number of judges who own stock in oil or petrochemical companies.
Comments may be sent electronically to Changes@ca5.uscourts.gov or mailed or delivered to:
Clerk of Court
U.S. Court of Appeals for the Fifth Circuit
ATTN: Rule Changes
600 South Maestri Place
New Orleans, LA 70130
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