Belfast Project: First Circuit Denies Government’s Petition for Panel Rehearing

The Court of Appeals for the First Circuit has denied the government’s petition for a panel rehearing in the Belfast Project case. As I noted in my post on the petition, the government was not seeking to change the outcome of the case. Rather, it objected to the panel’s reasoning to the extent the panel asserted that the courts had the power to quash a subpoena issued pursuant to a request under the mutual legal assistance treaty. I opined that the court was unlikely to grant the petition, and so it was, though there is no way to know the reasons for the denial.

The First Circuit had called for a response to the petition from Boston College, which indicates that the panel had at least some interest in the government’s arguments. Under FRAP 40(a)(3), no response to a petition is permitted unless the court asks for one. It was somewhat odd to require BC to respond to the petition, since BC did not, as far as I can tell, have a true stake in the outcome of the petition. But I suppose there was no one else to whom the court could look. In any event, I did not comment on BC’s response when it was filed, so in the interests of completeness I am posting it now.

About Ted Folkman

Ted Folkman is a shareholder with Murphy & King, a Boston law firm, where he has a complex business litigation practice. He is the author of International Judicial Assistance (MCLE 2d ed. 2016), a nuts-and-bolts guide to international judicial assistance issues, and of the chapter on service of process in the ABA's forthcoming treatise on International Aspects of US Litigation, and he is the publisher of Letters Blogatory, the Web's first blog devoted to international judicial assistance, which the ABA recognized as one of the best 100 legal blogs in 2012, 2014, and 2015.

2 thoughts on “Belfast Project: First Circuit Denies Government’s Petition for Panel Rehearing

  1. Ted,

    I could not understand why BC would be invited to respond or would want to. The separate issues that concerned the court and BC did not appear to be overlapping. What’s it to BC at this stage what the powers of the judiciary vis a vis the executive in repect of MLAT subpoena may be? It is hardly going to affect it one way or the other. If the panel had some interest in the Government’s argument BC is hardly the party to satisfy its curiosity. I imagine a body like the ACLU might have been more fit for purpose in this type of legal maze. Am I right or have I missed something?

    1. Well, I basically agree with you that it was odd for the court to instruct BC to respond to the petition, for the reasons you give. However, as the court denied the petition, I think this is just a small footnote.

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