Monday, May 1, 2017
Several weeks ago a reader sent me a copy of an order from the District of Columbia Court of Appeals denying rehearing en banc in a multi-appellant case. Pretty run of mill, or so it seemed at first glance. Courts deny rehearing en banc all the time. But this order was far from ordinary. According to the order, the case was before the following judges of the District of Columbia Court of Appeals: "Washington, Chief Judge; Glickman, Fisher, Blackburner-Rigsby, Thompson, Beckwith, and Easterly, Associate Judges." That is 7 judges. Judge McLeese did not participate in the the cases. Although there are 9 seats on the District of Columbia Court of Appeals, one of the seats has been vacant for several years, making for normally 8 active judges.
Of the 7 active judges participating in the case, 4 voted for rehearing en banc with respect to two appellants, yet the petitions were all denied. How can that be? I emailed some with the tipster, and we agreed it was probably because the District of Columbia Court of Appeals requires a majority of active judges to vote in favor of a petition. In the case of the District of Columbia Court of Appeals, that would be 5 judges. After looking at the court rules, that is in fact the case. So, even though one judge was recused, and a majority of the active, non-recused judges voted for rehearing en banc, the petition was denied.
I must admit, I had not heard of such a situation before, and my tipster was equally baffled. As it turns out, Howard Bashman has written on the topic before, arguing that recused judges should not be counted as a no vote. Howard's piece, written in 2001, noted that the federal rules were unclear on how recused judges should be counted in the en banc voting process and that the federal appellate courts were divided on how the language should be interpreted. Federal Rule of Appellate Procedure 35 now makes it clear that it is a majority of active judges "who are not disqualified" participate in the decision whether to take a case en banc. Sounds like the District of Columbia Court of Appeals needs to update it rules!