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