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Juliana v. United States

United States Court of Appeals for the Ninth Circuit · 2021 · Property
986 F.3d 1295
Updated
propertyrehearing en bancFRAP 35petition deniedNinth Circuiten banc vote

Facts

The opinion text identifies numerous plaintiffs-appellees suing the United States and various federal officials and agencies. The matter was before the Ninth Circuit on a petition for rehearing en banc. A judge requested a vote on whether the case should be reheard en banc. The petition did not receive a majority of the votes of the nonrecused active judges.

Issue

Whether the Ninth Circuit should grant the petition for rehearing en banc in this case.

Rule

Under Federal Rule of Appellate Procedure 35, rehearing en banc is denied when the matter fails to receive a majority of the votes of the nonrecused active judges in favor of en banc consideration.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.
In an appeal pending in San Francisco, a petition for rehearing en banc is circulated to the full court. Of the 20 active judges who are not recused, 10 vote in favor of rehearing, 8 vote against, and 2 do not vote.

Under the governing rule described in the order, what is the proper disposition of the petition?

Explanation. The order states that en banc consideration requires a majority of the votes of the nonrecused active judges in favor. Ten out of twenty is not a majority, so the petition must be denied. The rule turns on obtaining a majority in favor, not merely outpolling opposing votes. (Derived from Juliana v. United States (n.d.).)