I previously opined that Moloney & McIntyre’s next move was likely to be a petition for a rehearing en banc, and M&M have confirmed my prediction, though they have not yet filed their petition. And so I took a look at the rules for en banc rehearings in the First Circuit.¹I focus on the Local Rules, but those rules basically restate the requirements of 28 U.S.C. § 46(c). In other words, the points discussed here are not quirks of the First Circuit. What I found suggests that a petition for rehearing is likely a waste of time.²Of course, if the petition for rehearing is really a play for time in order to find a political solution to their problem, then M&M may still have reason to push ahead.

M&M’s appeal was decided by a panel of three judges, all of whom are in regular active service: Chief Judge Lynch and Judges Boudin and Toruella. The court has two other judges in regular active service: Judges Howard and Thompson. The court also has three senior circuit judges: Judges Selya, Stahl, and Lipez.

Under Local Rule 35.0(a), the decision whether to grant a petition to rehear a case en banc is made “solely by the circuit judges of this circuit who are in regular active service.” That is, only the five active judges will get to vote on whether the case should be reheard. A rehearing requires the vote of “a majority of the judges of this court in regular active service who are not disqualified, provided that the judges who are not disqualified constitute a majority of the judges who are in regular active service.” So assuming no judge is disqualified, M&M would have to win the vote of at least one of the three judges on the panel to get a rehearing. Judge Toruella, who concurred in the decision but who was clearly unhappy about the breadth of the majority’s reasoning, is the obvious candidate. But Judge Toruella thought the outcome of the case was controlled by Supreme Court precedent, not by an erroneous earlier panel decision than an en banc court could correct. So presumably he would agree that the outcome should be the same even after a rehearing. So I think it unlikely Judge Toruella would vote for a rehearing.

But let’s assume that the court agrees to rehear the case en banc. Who participates in the second decision? “A court en banc consists solely of the circuit judges of this circuit in regular active service except that any senior circuit judge of this circuit shall be eligible to participate, at that judge’s election, in the circumstances specified in 28 U.S.C. § 46(c).” Under that statute, the senior circuit judges can elect to participate only in the review of a case in which they sat on the original panel.³They can, under the statute, also elect to continue to participate in a case that was reheard en banc before their retirement. So even on a rehearing en banc, it doesn’t seem possible for M&M to get the votes necessary to reverse the panel decision.

These procedural facts are just a consequence of the small size of the First Circuit bench. In fact, the First Circuit, which covers just a part of New England (Massachusetts, Maine, New Hampshire, and Rhode Island) and Puerto Rico, is the smallest court of appeals by far, with six authorized seats. The next smallest courts of appeals, the Seventh and Eight Circuits and the D.C. Circuit, each have 11 authorized seats. The largest court of appeals, the Ninth Circuit, has 29! The upshot is that in the First Circuit, where a case is decided by a panel of judges in regular active service, en banc review is unlikely to have much practical importance unless there is a dissent.⁴Or a decision indicating that one or more of the judges thinks the decision is compelled by a wrongly decided earlier First Circuit case.

Photo Credit: Pierre LaScott

• 1
  I focus on the Local Rules, but those rules basically restate the requirements of 28 U.S.C. § 46(c). In other words, the points discussed here are not quirks of the First Circuit.
• 2
  Of course, if the petition for rehearing is really a play for time in order to find a political solution to their problem, then M&M may still have reason to push ahead.
• 3
  They can, under the statute, also elect to continue to participate in a case that was reheard en banc before their retirement.
• 4
  Or a decision indicating that one or more of the judges thinks the decision is compelled by a wrongly decided earlier First Circuit case.