If all goes as planned, the U.S. Court of Appeals for the Fifth Circuit will soon have a new Circuit Rule 41.3—the rule describing the effect of granting rehearing en banc. But because the rule change is narrowly tailored to remedy the result in a highly unusual case—one where the court has a quorum to take a case en banc but subsequently loses the quorum before the en banc proceeding—the new amendment is unlikely to have much practical effect.
The Proposed Change
If, after voting a case en banc, the court lacks a quorum to act on the case for 30 consecutive days, the case is automatically returned to the panel, the panel opinion is reinstated as an unpublished (and hence nonprecedential) opinion, and the mandate is released. To act on a case, the en banc court must have a quorum consisting of a majority of the en banc court as defined in 28 U.S.C. § 46(c).1
Court Likely Motivated by Global Warming Class Action
Under the New Rule, the Court Would Have Heard the Comer Appeal
The New Rule 41.3 Is Unlikely to Have Much Impact
Fifth Circuit's Definition of Quorum Remains Unchanged
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