Had the panel issued a decision vacating the district court’s stay in the afternoon of July 24, 2003, Petitioner would have become immediately eligible for execution, meaning the en banc Court may not have had the opportunity to review this case.Judges Suhrheinrich and Siler have taken senior status. Pursuant to 28 U.S.C. § 46(c), which governs the composition of en banc courts, a court of appeals sitting en banc "shall consist of all circuit judges in regular active service . . . except that any senior circuit judge of the circuit shall be eligible to participate . . . as a member of an in banc court reviewing a decision of a panel of which such judge was a member." See also Sixth Circuit I.O.P. 35(a) (incorporating 28 U.S.C. § 46(c)).

28 U.S.C. § 46 governs the makeup of Circuit Court panels, and directs in subsection b that each circuit “may authorize the hearing and determination of cases and controversies by separate panels, each consisting of three judges…unless such judges cannot sit because recused or disqualified, or unless the chief judge of that court certifies that there is an emergency including, but not limited to, the unavailability of a judge of the court because of illness.” Subsection d of the statute allows that a majority of the number of judges authorized to constitute a panel of the court “shall constitute a quorum.”

ings as to the propriety of these types of class actions is mandatory upon resolution, indicating that judicial scrutiny of the value of supplemental disclosures and the corresponding validity of the lawsuits brought to force those disclosures is likely to increase. The prospect of such judicial scrutiny could reduce the number of meritless merger challenge cases filed._______________ Nos. 18-2220, 18-2221, 18-2225, 18-3307, 19-2401 and 19-2408.In re Walgreen Co. S’holder Litig., 832 F.3d 718, 725 (7th Cir. 2016) (quoting and adopting the standard set forth in In re Trulia, Inc. S’holder Litig., 129 A.3d 884, 898-99 (Del. Ch. 2016)).Farber v. Crestwood Midstream Partners L.P., 863 F.3d 410, 412 (5th Cir. 2017). The Fifth Circuit found here, however, that the objection to the settlement was untimely and declined to decide whether to adopt the Trulia standard. Judge Michael S. Kanne, the third member of the panel, died after the appeals were argued. The appeals were decided by a quorum. 28 U.S.C. § 46(d).[View source.]

ord Healthcare, Inc., 21 F.4th 1362 (Fed. Cir. 2022) (“Original ”) and Novartis Pharmaceuticals Corp. v. Accord Healthcare, Inc., 38 F.4th 1013 (Fed. Cir. 2022) (“Rehearing”), respectively. The issue in dispute is whether a negative limitation recited in the Novartis patent claims meets the written description requirement when the specification is silent as to that limitation. The Original panel said on January 3, 2022, that implied disclosure was sufficient and ruled in Novartis’ favor, but the Rehearing panel said June 21, 2022, that without express disclosure, inherent disclosure is required for support of a negative limitation and reversed the first decision. After losing the Rehearing, Novartis filed a petition for a writ for certiorari on January 18, 2023, asking the Supreme Court to review not only the substantive patent law issue but also whether it is proper to allow a panel change to undo already-entered decisions. The questions presented in the petition are below:1. Whether 28 U.S.C. § 46 and principles of sound judicial administration preclude a court of appeals from adding a new judge to form a new panel and redecide a case after an original three-judge panel has already decided the case and entered its judgment. 2. Whether 35 U.S.C. § 112 should be interpreted consistent with its plain text as requiring that a patent specification contain a “written description of the invention” in a form that need only be understandable to “any person skilled in the art,” or whether the court of appeals properly read in a heightened requirement that allows it to deem the specification inadequate on de novo review and displaces the perspective of a person skilled in the art.The first question addresses the unusual procedural twist in the cases: the judge who authored the Original opinion, Judge Kathleen M. O'Malley, retired and was replaced with Judge Hughes, who sat on the rehearing panel decided the Rehearing case. The dissenting judge on the Original Panel, Judge Moore, authored

However, three days after Roof’s petition for panel rehearing had been denied, the Fourth Circuit Clerk (at the direction of Chief Judge Gregory) issued an Order denying Roof’s request for designation of an en banc court pursuant to 28 U.S.C. § 291(a) or § 292(a) or (d). The Order stated that designating the requested en banc panel would be “unprecedented,” and that “under the wording of 28 U.S.C. § 46(c) and the Supreme Court’s holding in Moody v. Albemarle Paper Co., 417 U.S. 622, 94 S.Ct. 2513, 41 L.Ed.2d 358 (1974), only judges of the Circuitwho are in regular active service may make the determination to rehear a case en banc,” quoting United States v. Nixon, 827 F.2d 1019, 1021 (5th Cir. 1987) (my emphasis added). Moody was a case in which the Supreme Court determined that only the active judges of a Circuit Court could hear an en banc request, and that senior judges of the Circuit could not participate in an en banc court unless they had been a member of the panel that had issued the opinion at issue.

After the parties briefed the recusal issue, the Court entered an Order noting Judge Quattlebaum’s recusal and replacing him with Judge Niemeyer.The addition of a new judge to a panel post-argument is not something that I can recall having seen recently. In fact, a while back I posted about a situation in which a Fourth Circuit panel issued an opinion with only two judges pursuant to 28 U.S.C. § 46 after one of the assigned panel members was unable to participate in oral argument. The Fourth Circuit’s internal operating procedures also contemplate a two-judge panel, as IOP-36.2 states that “an appeal may be heard and decided by two of the three judges assigned to a panel, when one judge becomes unavailable.

As a result, the “factor other than sex” defense available under the Equal Pay Act was limited to “legitimate, job-related factors such as a prospective employee’s experience, educational background, ability, or prior job performance.” In vacating the Reinhardt opinion, the Supreme Court cited 28 U.S.C. § 46(c), which gives appellate courts authority to hear cases en banc and provides that the panel “shall consist of all circuit judges in regular active service.” The Court explained that without Judge Reinhardt’s vote, his opinion would have been approved only by 5 of the other 10 members of the panel who were still alive when the decision was published.

There were no senior judges on the original panel, so none will participate in the en banc hearing or decision. 3See 28 U.S.C. § 46(c); Fed. R. App. P. 25(a); Handbook of Practice and Internal Procedures, supra, Section XII.B.2.4 Fed. R. App. P. 32(a); Handbook of Practice and Internal Procedures, supra, Section XII.B.2.5 Although unusual, the Handbook does provide that “[a] judge may also suggest en banc consideration prior to the panel decision; on occasion this has been done by the panel itself.”

It seems certain that a judge has called (or soon will) for a vote on the petition by all the circuit judges in regular active service. See Fed. R. App. P. 35(f); 28 U.S.C. § 46(c). Only time will tell the outcome.

The court has responded by asking for supplemental briefing on these issues. Specifically, the order invited the parties to address the matter “as they think appropriate” but specifically directed them to analyze the interplay between the following rules and statute in resolving the disposition of the appeal: Fed. R. App. P. 35(a), 28 U.S.C. §46 (c) and (d), Fed. R. App. P. 41 (a) and (d) (1), 5th Cir. Local Rule 41.3, and Fed. R. App. P. 2. The court also instructed the parties that they may consider the rulings of Chrysler Corp. v. United States, 314 U.S. 583 (1941) and North American Co. v. Securities & Exchange Comm’n, 320 U.S. 708 (1943) and the Rule of Necessity.Presumably, three outcomes are possible:the court decides it actually does have a quorum and thus oral argument is rescheduled; the panel decision is reinstated by default (with an ensuing cert petition to the Supreme Court); or, the district court is affirmed without opinion.