appellate procedure question

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ihadadream

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appellate procedure question

Postby ihadadream » Fri Jul 08, 2016 10:10 pm

Say the U.S. government gets an adverse merits ruling before a three-judge panel on the U.S. court of appeals. They want the U.S. court of appeals to rehear the case en banc. But they also want the adverse ruling stayed because they think that the appellate court got it totally wrong. In what order do these two actions typically occur? Do they have to file the petition for a rehearing en banc at the same time as they are seeking a stay in the Supreme Court?

Switching gears, can you request cert from the Supreme Court and seek rehearing en banc at the same time? Or do you have to wait until the U.S. court of appeals rules on your request for rehearing en banc and then file the cert petition?

Any information would be much appreciated.

Thanks.

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Re: appellate procedure question

Postby GoneSouth » Sat Jul 09, 2016 1:47 am

ihadadream wrote:Say the U.S. government gets an adverse merits ruling before a three-judge panel on the U.S. court of appeals. They want the U.S. court of appeals to rehear the case en banc. But they also want the adverse ruling stayed because they think that the appellate court got it totally wrong. In what order do these two actions typically occur? Do they have to file the petition for a rehearing en banc at the same time as they are seeking a stay in the Supreme Court?

Switching gears, can you request cert from the Supreme Court and seek rehearing en banc at the same time? Or do you have to wait until the U.S. court of appeals rules on your request for rehearing en banc and then file the cert petition?

Any information would be much appreciated.

Thanks.


IANAL (yet), but doesn't the court of appeals normally not issue the mandate until the en banc process is complete (i.e. the time to file a petition for rehearing has expired, or the court has denied a petition for rehearing?)? I know this is the case at least in at least one circuit. If they deny the petition for rehearing, you do have to move either the appeals court or the Supreme Court to stay the mandate pending disposition of the cert petition though

ihadadream

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Re: appellate procedure question

Postby ihadadream » Sat Jul 09, 2016 2:29 am

Thanks. I understand it somewhat better now.

I am a little unclear about the function of the mandate, though. If they deny the petition for rehearing en banc, and they issue a mandate, what are they saying? That they don't have jurisdiction any more because the issue has been decided? That's straightforward enough but, if that assessment is correct, it's unclear why you have to ask them to stay the mandate when you file a cert petition. What effect of the mandate are they staying, exactly?

Put differently, where does the jurisdiction go? The mandate seems to have some effect of transferring jurisdiction. But the case is over. The court is not transferring the case anywhere. In our scenario, which I admit is vague, the court of appeals affirmed the district court. The case is not going back down to the district court, unless the Supreme Court orders otherwise.

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A. Nony Mouse

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Re: appellate procedure question

Postby A. Nony Mouse » Sat Jul 09, 2016 3:02 am

I'n kind of guessing on this, but I think the idea is that you have to ask to stay the mandate to prevent whatever negative consequence comes from you losing, while you're petitioning for cert. So say you lost a civil suit and will have to pay damages or fees or whatever. That responsibility kicks in once the mandate issues. So I think that staying the mandate pending a cert petition would be a way to avoid having to pay until/unless SCOTUS shoots you down. Or if Abby Fisher had won at the 5th Circuit and UT had been ordered to change their admissions policies, UT could have filed to stay the mandate pending cert so they didn't have to do anything unless SCOTUS affirmed.

Re: jurisdiction - the mandate does kind of make it go back to the district court. If the district court is affirmed, it now has the ability to enforce its judgment (i.e. make you pay or make UT change its admissions policies). If the district court's order is overturned, the mandate will issue with some kind of order by the COA (ordering the district court to hold a new trial or issue judgment for your opponent or the like).

ihadadream

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Re: appellate procedure question

Postby ihadadream » Sat Jul 09, 2016 12:46 pm

A. Nony Mouse wrote:I'n kind of guessing on this, but I think the idea is that you have to ask to stay the mandate to prevent whatever negative consequence comes from you losing, while you're petitioning for cert. So say you lost a civil suit and will have to pay damages or fees or whatever. That responsibility kicks in once the mandate issues. So I think that staying the mandate pending a cert petition would be a way to avoid having to pay until/unless SCOTUS shoots you down. Or if Abby Fisher had won at the 5th Circuit and UT had been ordered to change their admissions policies, UT could have filed to stay the mandate pending cert so they didn't have to do anything unless SCOTUS affirmed.

Re: jurisdiction - the mandate does kind of make it go back to the district court. If the district court is affirmed, it now has the ability to enforce its judgment (i.e. make you pay or make UT change its admissions policies). If the district court's order is overturned, the mandate will issue with some kind of order by the COA (ordering the district court to hold a new trial or issue judgment for your opponent or the like).


Great points. Thanks a lot.

ihadadream

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Re: appellate procedure question

Postby ihadadream » Sat Jul 09, 2016 12:49 pm

One last question. Do you have to file a petition for rehearing en banc to have standing to file a cert petition with the Supreme Court?

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