PDA

View Full Version : Can Nordyke en banc still happen?


sfpcservice
04-22-2009, 6:53 PM
Saw Gene talk about the risk of en banc being low. I was under the impression that since Alameda "won"; there was no appeal or request for en banc for them; and the decision went into effect that morning. Can someone break it down for me?

Thanks!

the_quark
04-22-2009, 7:25 PM
My understanding is that the en banc appeal rules are such that you don't actually have to lose the case to appeal - you could appeal a part of the ruling.

I wouldn't expect them to, though, since it would cost the County money and not advance the County's official aims.

hoffmang
04-22-2009, 7:48 PM
Alameda is technically allowed to ask for an en banc. However, it is extremely rare to grant such to the "winner." That window closes two weeks after this past Monday from my reading of Circuit rules.

-Gene

sfpcservice
04-22-2009, 7:51 PM
So does that mean the decision is not yet in effect?

the_quark
04-22-2009, 7:56 PM
I think the decision isn't finalized regardless for 60 days if I recall correctly.

pnkssbtz
04-22-2009, 7:59 PM
Alameda is technically allowed to ask for an en banc. However, it is extremely rare to grant such to the "winner." That window closes two weeks after this past Monday from my reading of Circuit rules.

-Gene
Arrrrg!!! It's that pesky 2-weeks all over again!

jmlivingston
04-22-2009, 8:21 PM
How long does Nordyke have, to request en banc, the same 2 weeks?

Telperion
04-22-2009, 8:34 PM
Is it necessary for either party to request an en banc rehearing? Can the judges independently bring it before a larger panel?

Librarian
04-22-2009, 9:00 PM
Is it necessary for either party to request an en banc rehearing? Can the judges independently bring it before a larger panel?
Yes, they can: Fed. R. App. P. 35 (http://www.ca9.uscourts.gov/rules/FRAP/rules.htm#frap35)
EN BANC DETERMINATION

(a) When Hearing or Rehearing En Banc May Be Ordered. A majority of the circuit judges who are in regular active service and who are not disqualified may order that an appeal or other proceeding be heard or reheard by the court of appeals en banc. An en banc hearing or rehearing is not favored and ordinarily will not be ordered unless:
(1) en banc consideration is necessary to secure or maintain uniformity of the court’s decisions; or
(2) the proceeding involves a question of exceptional importance.

As to dates, (c) Time for Petition for Hearing or Rehearing En Banc. A petition that an appeal be heard initially en banc must be filed by the date when the appellee’s brief is due. A petition for a rehearing en banc must be filed within the time prescribed by Fed. R. App. P. 40 for filing a petition for rehearing.
...

PETITION FOR PANEL REHEARING

(a) Time to File; Contents; Answer; Action by the Court if Granted.

(1) Time. Unless the time is shortened or extended by order or local rule, a petition for panel rehearing may be filed within 14 days after entry of judgment. But in a civil case, if the United States or its officer or agency is a party, the time within which any party may seek rehearing is 45 days after entry of judgment, unless an order shortens or extends the time.
Umm, 'two weeks' for involved parties. Looks like 'before May 4', unless the justices ask for the rehearing.