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case for 30 consecutive days, the case is automatically returned to the panel, the panel opinion is reinstated as an unpublished (and hence nonprecedential) opinion, and the mandate is released.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 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 CourtU.S. Court of Appeals for the Fifth CircuitATTN: Rule Changes600 South Maestri PlaceNew Orleans, LA 70130

Related Resources:

  • A Messy Loss For Climate Lawsuit Plaintiffs (Forbes)
  • Comer v. Murphy Oil USA (FindLaw)
  • Comments Sought on U.S. 5th Circuit Proposed Amendment (Louisiana State Bar Association)
  • ConocoPhillips Co. v. EPA, 06-60662 (FindLaw Summary)

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