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Why might motions panels have limited authority?

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.)

Will Baude is an assistant professor at the University of Chicago Law School, where he teaches constitutional law and federal courts. His recent articles include Rethinking the Federal Eminent Domain Power, (Yale Law Journal, 2013), and Beyond DOMA: State Choice of Law in Federal Statutes, (Stanford Law Review, 2012).

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