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Bar News - July 13, 2012


US Court of Appeals for the First Circuit

Notice of Proposed Amendment to Local Rule 35.0(a)

The United States Court of Appeals for the First Circuit hereby provides notice that itproposes the attached amendments to Local Rule 35.0(a). Additions are noted in italic print; deletions are noted in strikeout print.

The changes to subsection 35.0(a)(1)(A) are non-substantive. Rather than merely crossreference the governing statute, the amended rule spells out the two circumstances under which asenior circuit judge is eligible to participate in an en banc court. Specifically, a senior circuitjudge is eligible to participate (i) at that judge’s election, as a member of an en banc court reviewing a decision of a panel of which that judge was a member, or (ii) to continue toparticipate in the decision of a case or controversy that was heard or reheard by the court en bancat a time when such judge was in regular active service.

A new subsection 35.0(a)(1)(B) clarifies the relevant date for determining a senior judge’s eligibility under the scenario in which a senior judge is eligible "to continue to participate in the decision of a case or controversy that was heard or reheard by the court en banc at a time when such judge was in regular active service." Specifically, new subsection 35.0(a)(1)(B) clarifies that a case is "heard or reheard by the court en banc" when "oral argument is held, or if no oral hearing is held, as of the date the case is ordered to be submitted to the en banc court."

The Court of Appeals invites public comments on the proposed amendments. Comments should be received by July 27, 2012, and addressed to: Office of the Clerk, U.S. Court of Appeals for the First Circuit, United States Courthouse, 1 Courthouse Way, Suite 2500, Boston, MA 02210.

June 25, 2012
/s/ Margaret Carter, Clerk

Local Rule 35.0. En Banc Determination

(a) Who May Vote; Composition of En Banc Court.

(1) Vote.
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.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.

(2) Composition of En Banc Court.

(A) 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 (i) at that judge’s election, as a member of an en banc court reviewing a decision of a panel of which that judge was a member, or (ii) to continue to participate in the decision of a case or controversy that was heard or reheard by the court en banc at a time when such judge was in regular active service. in the circumstances specified in 28 U.S.C. § 46(c).

(B) For the purpose of determining those who may be a member of the en banc court under subsection (A)(ii), a case is heard or reheard by the court en banc when oral argument is held, or if no oral hearing is held, as of the date the case is ordered to be submitted to the en banc court.


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