Wednesday, December 27, 2006
Federal appellate procedure guru Howard Bashman offers his thoughts (via the WSJ Law Blog) on yesterday's decision by the panel in Murphy v. Internal Revenue Service, 460 F.3d 79 (D.C. Cir. 8/22/06), to vacate the judgment and rehear the case:
What the grant of panel rehearing suggests to me is that at least a majority on the original three-judge panel now has serious doubts about the soundness of the panel’s original holding. If the original three-judge panel did not have such doubts, the panel could have denied panel rehearing, and then the en banc petition would have come before all active judges for a vote. As a procedural matter, it is less embarrassing for the original panel, and less work for the other active judges not on the original panel, for a three-judge panel to fix its own mistakes than to require the full en banc court to do it. Of course, the three-judge panel is still empowered to reach whatever result it deems lawful in the case, so it remains possible, albeit far less likely, that the three-judge panel could ultimately reinstate the same result that the panel originally reached.