Abigail Noel Fisher appealed against the University of Texas at Austin and related university officials and entities. A panel opinion had already been issued in the case on July 15, 2014. The only action reflected in this opinion is the court's consideration of whether to rehear the case en banc. The poll of the active judges resulted in 5 votes for rehearing and 10 votes against rehearing.
Issue
Whether the Fifth Circuit should grant rehearing en banc following the panel decision in this case.
Rule
Under Federal Rule of Appellate Procedure 35 and Fifth Circuit Rule 35, rehearing en banc is denied when a majority of the judges in regular active service and not disqualified do not vote in favor of rehearing.
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One of 10 multiple-choice questions for this case. Pick an answer to see why.
A panel of the federal court of appeals in New Orleans issues a decision in a civil rights case arising from Houston. At the request of one active judge, the full court is polled on rehearing en banc; 7 active judges who are not disqualified vote yes, and 8 such judges vote no.
What is the proper disposition of the petition for rehearing en banc?
Explanation. The controlling rule is procedural: rehearing en banc is denied when a majority of judges in regular active service and not disqualified do not vote in favor. Here, 7-8 is not a majority for rehearing, so the petition is denied. The order provides no substantive merits rule. (Derived from Fisher v. University of Texas (n.d.).)