Havana Docks Corporation Seeks Court Of Appeals Rehearing In Libertad Act Lawsuit Against Four Cruise Lines. Decision Likely In December 2024. Next And Final Stop Would Be U.S. Supreme Court.
/Excerpts From Filing
RULE 35 STATEMENT
I express a belief, based on a reasoned and studied professional judgment, that the divided panel decision in this case conflicts with Glen v. Club Méditerranée, S.A., 450 F.3d 1251 (11th Cir. 2006), and involves the following question of exceptional importance: Whether the LIBERTAD Act imposes liability for trafficking in property that the plaintiff hypothetically would have owned had the Cuban government not confiscated it, as opposed to property that the plaintiff actually owned at the time of confiscation and reflected in a claim against the Cuban government. Christopher Landau Attorney of Record for Plaintiff-Appellee Havana Docks Corporation
INTRODUCTION
The divided panel decision in this case (Tab A) contradicts not only the plain language and express purposes of the Cuban Liberty and Democratic Solidarity (LIBERTAD) Act of 1996 (Tab B), and this Court’s decision in Glen v. Club Méditerranée, S.A., 450 F.3d 1251 (11th Cir. 2006), but U.S. policy toward Cuba. If there’s one area where Congress has actively exercised its plenary constitutional authority under the Foreign Commerce Clause over the past three decades, it’s the U.S. economic relationship with Cuba. Congress carefully chose its words in promulgating a highly detailed statutory regime that governs every aspect of that relationship, and prohibits any economic activity unless expressly authorized by law.
LINK To PETITION FOR PANEL REHEARING OR REHEARING EN BANC
LINK To PETITION FOR PANEL REHEARING OR REHEARING EN BANC
LINK TO PREVIOUS ANALYSIS
Internal Operating Procedure for Rule 35 En Banc Determination
1. Time. Except as otherwise provided by FRAP 25(a) for inmate filings, a petition for rehearing en banc whether or not combined with a petition for rehearing is timely only if received by the clerk within the time specified in 11th Cir. R. 35-2.
2. Panel Has Control. A petition for rehearing en banc will also be treated as a petition for rehearing before the original panel. Although a copy of the petition for rehearing en banc is distributed to each panel judge and every active judge of the court, the filing of a petition for rehearing en banc does not take the appeal out of plenary control of the panel deciding the appeal. The panel may, on its own, grant rehearing by the panel and may do so without action by the full court. A petition for rehearing will not be treated as a petition for rehearing en banc.
3. Requesting a Poll. Within 30 days of the date that the clerk transmits the petition for rehearing en banc, any active Eleventh Circuit judge may advise the “notify judge” that in the event the panel declines to grant rehearing, the judge requests that a poll be taken regarding en banc consideration. The “notify judge” is the writing judge if that judge is a member of this court. If the writing judge is a visiting judge, the notify judge will be the senior active judge of this court on the panel or, if none, the senior non-active judge of this court on the panel. At the same time the judge shall notify the clerk to withhold the mandate, and the clerk will enter an order withholding the mandate. If the panel, after such notice, concludes not to grant rehearing, the notify judge will inform the chief judge of that fact and that a request was made that a poll be taken regarding en banc consideration. After giving the other judges a reasonable time to respond to the poll request, the chief judge then polls the court by written ballot on whether rehearing en banc is to be granted.
4. No Poll Request. If after expiration of the specified time for requesting a poll, the notify judge has not received a poll request from any active member of the court, the panel, without further notice, may take such action as it deems appropriate on the petition for rehearing en banc. In its order disposing of the appeal or other matter and the petition, the panel must note that no poll was requested by any judge of the court in regular active service.
5. Requesting a Poll on Court’s Own Motion. Any active Eleventh Circuit judge may request that the court be polled on whether rehearing en banc should be granted whether or not a petition for rehearing en banc has been filed by a party. This is ordinarily done by a letter from the requesting judge to the chief judge with copies to the other active and senior judges of the court and any other panel member. At the same time the judge shall notify the clerk to withhold the mandate, and the clerk will enter an order withholding the mandate. The identity of the judge will not be disclosed in the order.
6. Polling the Court. Upon request to poll, the chief judge will give the other judges a reasonable time to respond to the poll request and then conducts a poll. Each active judge receives a form ballot that is used to cast a vote. A copy of each judge’s ballot is sent to all other active judges. The ballot form indicates whether the judge voting desires oral argument if en banc is granted.
7. Effect of Recusal or Disqualification on Number of Votes Required. A recused or disqualified judge is not counted in the base when calculating whether a majority of circuit judges in regular active service have voted to rehear an appeal en banc. If, for example, there are 12 circuit judges in regular active service on this court, and five of them are recused or disqualified in an appeal, rehearing en banc may be granted by affirmative vote of four judges (a majority of the seven non-recused and non-disqualified judges).
8. Negative Poll. If the vote on the poll is unfavorable to en banc consideration, the chief judge enters the appropriate order.
9. En Banc Rehearing Procedures Following Affirmative Poll.
a. Appeal Managers. When an appeal is voted to be reheard en banc, the chief judge shall designate as appeal managers a group of active judges of this court. The chief judge will ordinarily designate the judge who authored the panel opinion, the judge who requested that the court be polled regarding whether the appeal should be reheard en banc, and a judge who dissented from or specially concurred in the panel opinion, if they are active circuit judges of this court. The chief judge may, however, designate other active circuit judges as appeal managers.
b. Initial Notice to Counsel. The clerk meanwhile notifies counsel that rehearing en banc has been granted but that they should not prepare en banc briefs until they are advised of the issue(s) to be briefed and length limitations on briefs.
c. Notice of Issue(s) to be Briefed. The appeal managers prepare and circulate to the other members of the en banc court a proposed notice to the parties advising which issue(s) should be briefed to the en banc court, length limitations on briefs, and whether the appeal will be orally argued or submitted on briefs. The notice may also set the time limits for oral argument. In appeals with multiple appellants or appellees, the notice may direct parties to file a single joint appellants’ or appellees’ en banc brief. In such cases the side directed to file a single joint brief may be allotted some extension of the length limitations that would otherwise apply to the brief. Members of the en banc court thereafter advise the appeal managers of any suggested changes in the proposed notice. Provided that no member of the en banc court objects, counsel may be advised that the en banc court will decide only specified issues, and after deciding them, remand other issues to the panel. Once the form of the notice has been approved by the court, the clerk issues the notice to counsel.
d. Oral Argument. Appeals to be reheard en banc will ordinarily be orally argued unless fewer than three of the judges of the en banc court determine that argument should be heard.
“FRAP 35. En Banc Determination (a) When Hearing or Rehearing En Banc May Be Ordered. A majority of the circuit judges who are in regular active service and who are not disqualified may order that an appeal or other proceeding be heard or reheard by the court of appeals en banc. An en banc hearing or rehearing is not favored and ordinarily will not be ordered unless: (1) (2) en banc consideration is necessary to secure or maintain uniformity of the court’s decisions; or the proceeding involves a question of exceptional importance. (b) Petition for Hearing or Rehearing En Banc. A party may petition for a hearing or rehearing en banc. (1) The petition must begin with a statement that either: (A) the panel decision conflicts with a decision of the United States Supreme Court or of the court to which the petition is addressed (with citation to the conflicting case or cases) and consideration by the full court is therefore necessary to secure and maintain uniformity of the court’s decisions; or (B) the proceeding involves one or more questions of exceptional importance, each of which must be concisely stated; for example, a petition may assert that a proceeding presents a question of exceptional importance if it involves an issue on which the panel decision conflicts with the authoritative decisions of every other United States Court of Appeals that has addressed the issue. (2) Except by the court’s permission: (A) a petition for an en banc hearing or rehearing produced using a computer must not exceed 3,900 words; and (B) a handwritten or typewritten petition for an en banc hearing or rehearing must not exceed 15 pages. (3) For purposes of the limits in Rule 35(b)(2), if a party files both a petition for panel rehearing and a petition for rehearing en banc, they are considered a single document even if they are filed separately, unless separate filing is required by local rule. (c) Time for Petition for Hearing or Rehearing En Banc. A petition that an appeal be heard initially en banc must be filed by the date when the appellee’s brief is due. A petition for a rehearing en banc must be filed within the time prescribed by Rule 40 for filing a petition for rehearing. (d) Number of Copies. The number of copies to be filed must be prescribed by local rule and may be altered by order in a particular case. Rev.: 12/16 147 FRAP 35(e) Response. No response may be filed to a petition for an en banc consideration unless the court orders a response. The length limits in Rule 35(b)(2) apply to a response. (f) Call for a Vote. A vote need not be taken to determine whether the case will be heard or reheard en banc unless a judge calls for a vote.”
