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No Comment: Local Rule 35.0 Becomes Effective

By Robyn Hagan Cain on September 12, 2012 | Last updated on March 21, 2019

You probably grew up hearing the saying, “If you can’t say something nice, don’t say anything at all.” (We’ve always preferred the Alice Roosevelt variation, “If you can’t say something good about someone, sit right here by me,” but the advantages of that theory are a discussion for another time.)

Today, we’re considering if the converse of the “don’t say anything at all” adage is true in the context of federal court rules: If people don’t say anything, does it mean that they didn’t have anything nice to say? If so, then no one had anything nice to say about the amendments to the First Circuit Court of Appeals’ Local Rule 35.0. Despite a request in June for public comments on proposed amendments to the En Banc Determination rule, the public failed to respond with opinions about the changes.

Maybe it’s because the changes were non-substantive.

Regardless of how you decide to interpret the public's silence, the changes to Local Rule 35.0 became effective on August 16. So you're stuck with them.

The amended rule now states:

Local Rule 35.0. En Banc Determination

(a) Who May Vote; Composition of En Banc Court.

(1) Vote. The decision whether a case should be heard or reheard en banc is made solely by the circuit judges of this circuit who are in regular active service. Rehearing en banc shall be ordered only upon the affirmative votes of a majority of the judges of this court in regular active service who are not disqualified, provided that the judges who are not disqualified constitute a majority of the judges who are in regular active service.
(2) Composition of En Banc Court.
(A) A court en banc consists solely of the circuit judges of this circuit in regular active service except that any senior circuit judge of this circuit shall be eligible to participate (i) at that judge's election, as a member of an en banc court reviewing a decision of a panel of which that judge was a member, or (ii) to continue to participate in the decision of a case or controversy that was heard or reheard by the court en banc at a time when such judge was in regular active service.
(B) For the purpose of determining those who may be a member of the en banc court under subsection (A)(ii), a case is heard or reheard by the court en banc when oral argument is held, or if no oral hearing is held, as of the date the case is ordered to be submitted to the en banc court.

You can find a complete list of the First Circuit's local rules on the court's website.

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