One hears rumblings through the grapevine that many members of the bar are concerned about a four-judge court acting on petitions. Of course it is simple math that fewer judges means a lower probability of potentially garnering enough votes for a grant—a zealous advocate would/should make a claim that this prejudices his or her client. It is no surprise, then, that these rumblings broke through very recently in an amicus authored by Military Justice Editor Phil Cave for the National Institute of Military Justice (I played no role in the filing). Link here.
Some have asked whether a motion to reconsider a grant denial on the basis of the above argument would “waive” the argument itself, since the motion would be made to a four-judge court. In other words, asking four to decide whether five are needed would constitute an admission that only four are needed. In my view the four would be able to decide this issue under the doctrine of the “Rule of Necessity.” Beer v. United States, 696 F.3d 1174, 1179 (Fed. Cir. 2012) (federal circuit judges could decide case about judicial pay despite conflict of interest because they were only tribunal able to address claims).
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