Pursuant to 28 U.S.C. ß 2071 and Fed. R. App. P. 47, the United States Court of Appeals for the First Circuit hereby provides notice that it proposes the attached amendment to Local Rule 35(a). Additions are noted in italic print; deletions are shown in strike out print. An explanation follows.
The governing statute, 28 U.S.C. ß 46(c), and the related federal rule, Fed. R. App. P. 35(a), provide that a hearing or rehearing en banc may be ordered by a "majority" of the circuit judges of the circuit "who are in regular active service." The circuit courts are split over the meaning of "majority" in the event that one or more active judges is recused. Under this court's current rule, an absolute majority of the active judges must vote in favor of hearing or rehearing en banc.
The proposed amendment would permit a majority of the unrecused active judges to order a hearing or rehearing en banc so long as the unrecused judges represent a majority of all active judges in the circuit. So, for example, under the proposed rule, if one active judge was recused, a three-to-two vote in favor of hearing or rehearing en banc would prevail. However, because of the quorum proviso of the proposed rule, a hearing or rehearing en banc could not be authorized unless at least four active judges were unrecused. See generally 28 U.S.C. ß 46(d).
The proposal represents a rethinking of this court's en banc order in United States v. Leichter, 167 F.3d 667 (1st Cir. 1999). In Leichter, the court construed the language of the governing statute and federal rule to require an absolute majority approach. The active judges now take the view that the relevant language permits a case majority approach, that quite probably Congress never thought about the issue, and that there are policy reasons for adopting a case majority approach. This view comports with the position of the Judicial Conference Advisory Committee on Appellate Rules, which has recently proposed an amendment to Fed. R. App. P. 35(a) that would adopt the case majority approach as a uniform national interpretation of the phrase "a majority of the circuit judges . . . who are in regular active service" in ß 46(c).
The Court of Appeals invites public comment on the proposed amendment. Comments should be received by Nov. 17, 2003, and addressed to: Office of the Clerk, U.S. Court of Appeals for the First Circuit, John Joseph Moakley United States Courthouse, 1 Courthouse Way, Suite 2500, Boston, MA 02210.
Proposed Amended Local Rule 35(a)
(Additions in italics; deletions in strike-out print)
Local Rule 35. En Banc Determination
(a) Who May Vote; Composition of En Banc Court. The decision whether a case should be heard or reheard en banc is made solely by the circuit judges of this circuit who are in regular active service. For the purposes of determining a majority under 28 U.S.C. ß 46(c) and Fed. R. App. P. 35(a), the term "majority" means more than one-half of all the judges of the Court in regular active service, without regard to whether a judge is disqualified. See United States v. Leichter, 167 F.3d 667 (1st Cir. 1999)(order of court denying petition for rehearing en banc in United States v. Leichter, 160 F.3d 33 (1st Cir.1998)). Rehearing en banc shall be ordered only upon the affirmative votes 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. 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. ß 46(c).