Flanagan v. Ahearn
101 F.3d 368
5th Cir.
1996
Check Treatment

Dissenting Opinion

JERRY E. SMITH, Circuit Judge, with whom GARWOOD, JOLLY, JONES, EMILIO M. GARZA and DeMOSS, Circuit Judges, join,

dissenting:

I respectfully dissent from the failure of the court to grant rehearing en banc. The result of this litigation, as implemented by the district court and affirmed by the panel majority, is the first no-opt-out, mass-tort, settlement-only, futures-only class action ever attempted or approved. The issues presented are worthy of consideration beyond the level of circuit panel review.

Five of the active judges are disqualified from participating in this matter, and a sixth judge has elected not to participate in the consideration of the suggestion for rehearing en banc. Accordingly, it is not possible to determine whether, if all active judges were voting, a majority would decide to rehear this ease en bane.

The applicable statute and rules require the affirmative vote of a majority of the active judges — here, nine of the seventeen active judges — for en banc consideration, as recused and non-participating judges are counted as members of the court for purposes of the calculation.1 The effect in this *370case is to require not a simple majority, but a supermajority of 82% — nine of the eleven participating judges — to favor reconsideration.

That onerous requirement has not been met. Accordingly, the appellants’ only recourse, in order to obtain review of the difficult and novel issues presented, is to petition the Supreme Court for writ of certiorari.

. "Judges in regular active service who are disqualified for any reason or who cannot participate in the decision of an en banc case nevertheless shall be counted as judges in regular active service.” 5th Cir.R. 35.6. Under 28 U.S.C. § 46(c), rehearing en banc is "ordered by a majority of the circuit judges of the circuit who are in regular active service.” See Fed.R.App.P. 35(a); Shenker v. Baltimore & Ohio R.R., 374 U.S. 1, 4-5, 83 S.Ct. 1667, 1670, 10 L.Ed.2d 709 (1963); Western P.R.R. v. Western P.R.R., 345 U.S. 247, 250, 73 S.Ct. 656, 657-58, 97 L.Ed. 986 (1953); Variable Annuity Life Ins. Co. v. Clarke, 998 F.2d 1295 (5th Cir.1993), suggestion for rehearing en banc denied, 13 F.3d 833, 834 (5th Cir.1994) (Smith, J., dissenting), rev'd sub nom. NationsBank of North Carolina, N.A. v. Variable Annuity Life Ins. Co., 513 U.S. 251, 115 S.Ct. 810, 130 L.Ed.2d 740 (1995).



Lead Opinion

ON SUGGESTIONS FOR REHEARING EN BANC

Before REAVLEY, DAVIS and SMITH, Circuit Judges.* PER CURIAM:

The court having been polled at the request of one of its members and a majority of the judges who are in regular active service not having voted in favor (FRAP 35 and Local Rule 35), the suggestions for rehearing en banc are DENIED.