Eves v. Le Page: The mysterious world of CTA1 en banc review

In November 2016, the First Circuit issued a decision rejecting a civil rights claim filed by gubernatorial candidate Mark Eves against Governor LePage. Eves v. LePage, No. 16-1492 (1st Cir., 2016). Eves filed a motion for rehearing en banc. Now, over a year later, the Court granted that motion. What does it mean?

The short answer is, who knows? The only people who know what goes on behind closed judicial doors are the folks in the robes, and they ain’t talking. But that’s not going to stop us from speculating is it? So here’s some wild guessing, without ever tackling the actual merits of the appeal.

First, let’s do the math. En banc review is hardly ever granted in the First Circuit – unlike, say, the Land of Many Judges, a/k/a the Ninth Circuit – if only because of numbers. As the smallest circuit, CTA1 has six active judges. A majority of active, non-recused judges need to vote to rehear a case en banc, which normally means 4 out of 6. (I can manage that much math.) If 3 of those judges already ruled against you, then there are only 3 left, and you aren’t going to get the 4 votes you need for the rehearing.

In this case, however, of the 3 that heard the appeal the first time around (Judges Lynch, Thompson and Stahl, opinion by Judge Lynch), one was senior (Judge Stahl) and one dissented (Judge Thompson). Judge Kayatta recused himself (why? Who knows, they don’t have to say), so instead of the normal requirement of 4 out of 6, 3 out of 5 were required. That meant Judge Thompson, presumably, and 2 of the 3 remaining active judges – CJ Howard, and Judges Barron and Torruella. If, just to be illustrative (they won’t ever tell you how these votes come out), CJ Howard voted no, but Judges Barron and Torruella voted yes, then there’s your needed 3.

In the typical case, the rehearing often flips the three judge ruling, again, given the numbers. For example, Judge Thompson obviously thought the original decision was incorrect, and she was joined by at least two others. If 3 of 5 vote for a rehearing, logically, they are probably leaning on the side of flipping.

But here, the number of judges hearing the matter en banc may be 6, not 5. While Judge Stahl can’t vote on the decision whether to grant a rehearing, under Local Rule 35, he can be on the bench again if he wants to, which brings the numbers up to 6 again. If he votes as he did before, as does Judge Lynch, and say, CJ Howard votes with them, then there’s a 3-3 tie. What happens then? Beats me. The first decision by the three-judge panel is vacated with the grant of the rehearing. Do you go back to the district court ruling? (If so, Mr. Eves loses – at least in the short term, because Judge Singal ruled against him. But a 3-3- tie in an en banc hearing sounds like a pretty good procedural history on which to seek certiorari.)

What, you may be asking, took the Court so long to rule on the motion? Again, we have no idea, but that won’t stop us from speculating. Take a look at the order granting the en banc review here – Eves v. LePage, No. 16-1492 (1st Cir. 2018). Obviously, someone has been thinking about this long and hard, setting out five specific questions for supplemental briefs (some questions with subsets).

How did the judges come up with this list? Did they circulate a memo around? Call each other up? Arm wrestle? Here’s a link to Judge Lipez’s law review article on the lobbying that can go on among judges behind the scenes:  Kermit V. Lipez, To Lobby or Not to Lobby: That is an Important Question, The Journal of Appellate Pract. and Process, Vol. 14, Issue 1, Art. 3 (2013)

Take a look at the section starting at p. 18, and again at 22. One point he seems to be making is that en banc decisions can get messiest in terms of unseemly intra-court politicking, leading to loud voices and reduction in collegiality.

But again, we’ll never know.