TaxProf Blog

Editor: Paul L. Caron, Dean
Pepperdine University School of Law

Thursday, December 28, 2006

Germain on Murphy Panel's Decision to Rehear Case

Germain_5Greg Germain (Syracuse) responds to Howard Bashman's comment yesterday on the 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 seems especially strange to me is that the panel did not grant a motion for re-hearing, as Professor Bashman suggests. The panel made the order on its own motion (it says so right in the order). The government only asked for a re-hearing en banc (it could have asked for both a panel re-hearing and an en banc re-hearing, but it didn’t). I seem to recall that a court loses jurisdiction once the time period for requesting a rehearing passes. If I’m right, for this to be procedurally proper, the en banc petition would have to extend the panel’s jurisdiction over the case.

Has anyone ever heard of an appellate panel doing this on its own motion long after the deadline for requesting a re-hearing?

Update:  For more, see:

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