On Wedesday, in the course of discussing the strange procedural derailment of a Seventh Circuit appeal (Motorola v. AU Optronics) I suggested off-hand that I wasn’t sure whether a motions panel had full authority to exercise Federal Rule of Appellate Procedure 2‘s authority to “suspend” the other rules of procedure. A couple of folks were skeptical of that suggestion, so I thought I should explain my thinking. But I should emphasize that this is entirely off-the-cuff and could be quite wrong.
The rule empowers a “court of appeals,” which naturally raises the question of which groups of judges, in what circumstances, can act on behalf of the “court of appeals.” I take it that it would be obvious, for example, that a group of three judges could not simply get together and issue an order allocating all of the cases to themselves, and then rule on them immediately. I assume that’s because the court as a whole has procedures to convene groups of judges for specific purposes — to hear a given set of cases, to decide a given set of motions, and so on.
Similarly, I assume that it would be obvious that a single merits panel couldn’t unilaterally suspend all rules governing rehearing en banc — e.g., by issuing an order announcing that no rehearing petitions would be permitted under pain of disbarment or sanction. If so, I figure that’s because there’s an implicit limit to a merits panel’s authority; it can decide the case before it, but it can’t suspend the authority of another body like the en banc court.
So the question is whether anything similar is happening when a motions panel convenes and decides to immediately handle a case on the merits. Maybe not. Maybe everybody on the court understands that part of the motions panel’s authority is the discretion to morph into a merits panel if it feels like it. On the other hand, if that’s not the understanding, then the motions panel might have some limits on its scope.
This is ultimately a question of what kind of powers the “court of appeals” has delegated to the panel, which is just an interpretive question to which I don’t know the answer. (The petition filed Thursday contains a discussion of the Seventh Circuit’s internal operating procedures and prior precedents about 1292(b) motions — if and when there’s a response, I’ll read it and provide a link.)