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Tivo vs. Dish: Petition for rehearing en banc granted

Discussion in 'General DISH™ Discussion' started by dfd, May 14, 2010.

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  1. Nov 12, 2010 #621 of 1139
    jacmyoung

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    According to IV, Mayer retired. He was one of the two that sided with TiVo in merits panel review. This is why Tivonomo has been hoping Mayer could come back even if it means we could go from a 9-judge panel to 10:)
     
  2. Nov 12, 2010 #622 of 1139
    spear61

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    Federal Appeals Court Rules

    Rule 47.11. Quorum
    A quorum is a simple majority of a panel of the court or of the
    court en banc. In determining whether a quorum exists for en
    banc purposes, more than half of all circuit judges in regular
    active service, including recused or disqualifi ed judges, must
    be eligible to participate in the en banc process. If a judge
    of a panel that has heard oral argument or taken under submission
    any appeal, petition, or motion is unable to continue
    with consideration of the matter because of death, illness,
    resignation, incapacity, or recusal, the remaining judges will
    determine the matter if they are in agreement and no remaining
    judge requests the designation of another judge. If the
    remaining judges are not in agreement or if any remaining
    judge requests the designation of another judge, the remaining
    judges will promptly advise the chief judge who will secure
    another judge to sit with the panel. The clerk will advise the
    parties of the designation, but no further argument will be had
    or briefs received unless ordered by the court.

    This court normally has 12 judges ( some may be vacant at this time).

    Appeals Courts with more than 15 judges (there are a couple of really big ones) are allowed to determine en blanc in a different manner.
     
  3. Nov 12, 2010 #623 of 1139
    tivonomo

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    Mayer didn't retire. He took senior status. He sat for cases last month. It simply means a reduced workload and a few other benefits.

    And I've read several analyst reports. They have stated Mayer would participate... and that a 5-5 tie would favor Tivo. The analysts have their lawyers/experts, so I wouldn't discount that opinion.

    I've been trying to validate the Mayer participation and so far no answer from anyone. But I have been told that he can still vote without appearing at oral arguments as can O'Malley if she gets confirmed by the Senate.
     
  4. Nov 12, 2010 #624 of 1139
    tivonomo

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    There are 9 Active judges and 6 Senior Judges. Mayer took senior status in June but is still eligible for the rehearing en banc. The 3 empty seats, if filled during the current session of the Senate would be allowed to vote for the en banc as well. Currently though, there is one (Judge O'Malley) who potentially would be called into service in time.

    So by the time this is decided, there could be 11 votes. But I wouldn't hold my breath on O'Malley given the gridlock in the Senate.

    Here is the composition of the court:

    http://en.wikipedia.org/wiki/United_States_Court_of_Appeals_for_the_Federal_Circuit
     
  5. Nov 12, 2010 #625 of 1139
    jacmyoung

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    But if he was not part of this oral argument nor was he under submission, he could not possibly get in unless one of the 9 leaves, am I correct? Even if that happens, it will still depend on what agreement the remaining judges will make, and parties will be given a heads up, I assume if parties disagree a possible special order can be made.
     
  6. Nov 12, 2010 #626 of 1139
    dgordo

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    I didn't mean to imply it was a restriction, I only meant that it is normally composed of an odd number of judges.
     
  7. Nov 12, 2010 #627 of 1139
    dgordo

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    Sometimes they don't really have a choice. In my situation the judge had a spouse that worked for the company I was representing.
     
  8. Nov 12, 2010 #628 of 1139
    tivonomo

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    For a rehearing en banc?

    Everything I've read says that all Active Judges sit for a rehearing en banc unless there are unusual circumstances. Currently that is 9 but there are normally 12.

    According to a source at a patent law website, I just learned that Mayer (being Senior Status) would not be involved unless his vote would change the outcome. Of course, I am looking for confirmation of that.
     
  9. Nov 12, 2010 #629 of 1139
    jacmyoung

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    Of course things happen, but a majority must still be needed to decide what to do about the situation. In your case it was not a 4/4 tie so they did not have to call on another judge to fill in.

    They just can't have a tie.
     
  10. Nov 12, 2010 #630 of 1139
    dgordo

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    Maybe I shouldn't extrapolate my experience with the 7th circuit to other circuits, but the 9th circuit has like 27 active judges. I cant imagine they have 27 judges sit for an en banc.
     
  11. Nov 12, 2010 #631 of 1139
    scooper

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    It would seem reasonable to me that an En BANC hearing would not require all 27 - some more reasonable subset would seem likely - say 9-15
     
  12. Nov 12, 2010 #632 of 1139
    tivonomo

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    Yeah, 9th circuit is the exception. In that case they have a randomly selected 11 judges for any en banc. But there have been special cases where they have actually sat all of their judges for an en banc. It's just not practical to have 28 judges in one room. But literally, en banc is supposed to mean "on the bench" referring to ALL of the judges.

    Here is a source: http://en.wikipedia.org/wiki/Rehearing_en_banc
     
  13. Nov 12, 2010 #633 of 1139
    jacmyoung

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    Where did that 28 come from? I thought it was 27.

    I know you miss Judge Mayer, he is not on the panel, I am sorry.

    Now do you care to speculate? He must have known with such a strong dissent from Judge Rader an en banc review was possible? If he was so sure TiVo was clearly wronged and justice needed served, why didn't he postpone his "semi retirement" to be on the panel?

    If he is not so passionate about helping TiVo to be bothered to cut in his leave hours, what do you say about Judge Lourie?:)
     
  14. Nov 12, 2010 #634 of 1139
    tivonomo

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    There are 28 judges in the 9th Circuit... not the Federal Circuit. They have 9 active judges.

    Mayer is "on the panel". I now have two very good sources confirming what I have posted. So it is confirmed that E* needs 6 judges of the 9 to get a majority as long as Mayer doesn't switch his vote or Judge O'Malley gets confirmed in short order.

    So your speculation on Mayer is irrelevant.
     
  15. Nov 12, 2010 #635 of 1139
    MCSuckaDJ

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    They're not overriding a Presidential veto; 5 of 9 will do.
     
  16. Nov 12, 2010 #636 of 1139
    jacmyoung

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    Because he now has confirmed there are 10 judges on the panel, it is just that Mayer went fishing that day:). And if there is a tie, TiVo wins:)
     
  17. Nov 12, 2010 #637 of 1139
    MCSuckaDJ

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    Wait a second... does that mean there were 9 judges sitting at the en banc proceeding, but one extra judge can phone in his decision just because he sat on the panel rehearing?
     
  18. Nov 12, 2010 #638 of 1139
    tivonomo

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    Yes. Mayer didn't sit at the oral arguments because Senior status doesn't allow participation, only voting if it makes a difference.
     
  19. Nov 12, 2010 #639 of 1139
    jacmyoung

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    I don't think the phone rang that day, it is not "who wants to be a millionaire?" kinda deal. I am very impressed by Tivonomo's sources at the CAFC, they must also have the missing part of the audio, I wonder if Tivonomo can post it here.
     
  20. Nov 12, 2010 #640 of 1139
    jacmyoung

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    So Mayer gets to have his cake and eat it too? Under what circumstance should he cut his vacation short to come in and break Charlie's will? In case it is 5 to 4 in E's favor so he can "make the tie?"
     
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