Appellate Law

Torruella?s dissent

By S. COTUS

In light of Judge Torruella?s disagreement about the Court?s decision to rehear US v. Vega-Santiago,  06-1558 en banc (our coverage here), I think the part of his dissent dealing with rehearing en banc procedures needs to be analyzed for it might provide some guidance as to how some judges are thinking about en banc procedures.

I believe that the parties are entitled to the benefit of my views, even if they are considered to be in error by some of my colleagues. 

? I am also deeply concerned by the serious policy, procedural, and substantive issues raised by the unwarranted haste which has characterized this en banc proceeding. ?

The convocation of this particular en banc proceeding highlights the whimsical and uneven manner in which this circuit often applies the rehearing rules. Indeed, both the granting and denying of petitions for these extraordinary proceedings evince a double-standard with respect to which issues are deemed meritorious of such review. See, e.g., Cerqueira v. American Airlines, No. 07-1824 (1st Cir. XXXX) (Torruella, J. dissenting) [(our coverage here)]. Time constraints do not allow for an exhaustive inventory of this asseveration, but the circumstances of this present appeal demonstrate one such example.

In this case, before either the appellant or the appellee had the opportunity to seek en banc review, the court undertook a rather unusual procedure and ordered en banc rehearing sua sponte. The appeal thus metamorphosed into one more relevant to, and reflective of, a judicially fueled agenda. That agenda became evident in light of the Government's own change of heart: both sides now agree that Rule 32(h) applies to post-Booker variances. Furthermore, the issue for which the en banc court was convened is presently before the Supreme Court, see

United States

v. Irizarry, 458 F.3d 1208 (11th Cir. 2006), cert. granted, 128 S. Ct. 828 (2008), and will most likely be decided in a definitive way before June. At a minimum, circumstances would seem to counsel awaiting the decision of the Supreme Court rather than unnecessarily investing our limited judicial resources on this one.

I am sure that some smart appellate procedure guy out there can figure out how to use this to their client's advantage.

Full post as published by Appellate Law and Practice on February 23, 2008 (boomark / email).