Tann v. United States

         CF1-22807-07, CF1-22940-07, CF1-22893-07, CF1-3359-08, CF1-22962-07

          BEFORE: Blackburne-Rigsby, Chief Judge, and Glickman, Fisher, Thompson, Beckwith, and Easterly, Associate Judges.

         ORDER

         On consideration of appellant Michael D. Tann's motion for appointment of new counsel to file a petition for writ of certiorari in the Supreme Court of the United States; the motions by appellants Tann and Saquawn L. Harris for reconsideration of the denial of their petitions for rehearing en banc; the motion by Mr. Harris "for prompt resolution of his pending motion to reconsider the denial of rehearing en banc to allow for Supreme Court review"; the joint motion by Mr. Tann and Mr. Harris to stay issuance of the mandate; and the motion by appellant Lannell N. Cooper to stay issuance of the mandate, it is

         ORDERED that the motions by Mr. Tann and Mr. Harris for reconsideration of the denial of their petitions for rehearing en banc are denied. It is

         FURTHER ORDERED that the time for filing a petition for writ of certiorari in the United States Supreme Court and the time for seeking an extension of time in which to file such a petition having expired, see Sup. Ct. R. 13, Mr. Tann's motion for appointment of new counsel to file a petition for writ of certiorari is denied as moot. It is

         FURTHER ORDERED that the joint motion by Mr. Tann and Mr. Harris to stay issuance of the mandate is denied as moot, as Mr. Harris's petition for writ of certiorari was denied on December 4, 2017, and as Mr. Tann's time for filing a petition for writ of certiorari or for seeking an extension of time in which to file such a petition has expired. It is

         FURTHER ORDERED that Mr. Harris's "motion for prompt resolution of his pending motion to reconsider the denial of rehearing en banc to allow for Supreme Court review" is denied as moot. It is

         FURTHER ORDERED that Mr. Cooper's motion to stay the mandate is denied as moot, as his petition for writ of certiorari was denied on October 2, 2017. It is

         FURTHER ORDERED that the Clerk shall issue the mandates in these consolidated appeals forthwith.

          PER CURIAM

         Statement of Blackburne-Rigsby, Chief Judge, and Fisher and Thompson, Associate Judges, in support of denying appellant Tann's and appellant Harris's motions for reconsideration of the denial of rehearing en banc.

         A majority of the Board of Judges^[1] voted to reaffirm that this court will continue to adhere to the "absolute majority" rule for voting on en banc petitions until the Rules Committee considers and weighs, following the regular Rules process, whether to "prescribe or adopt modifications" to our rules to be consistent with Federal Rule of Appellate Procedure 35(a). Under the "absolute majority" rule, recused judges are counted as "judges in regular active service" for the purpose of voting on petitions for rehearing en banc. See D.C. Code § 11-705(d) (2012 Repl.) ("A rehearing before the court in banc may be ordered by a majority of the judges of the court in regular active service.") and D.C. App. R. 35(a) ("A majority of the judges who are in regular active service may order that an appeal or other proceeding be heard or reheard en banc.").

         At the time appellants' petitions for rehearing en banc were denied, there were eight judges on the court in "regular active service." Judge McLeese recused from the case. Then-Associate Judge, now-Chief Judge Blackburne-Rigsby and Associate Judges Fisher and Thompson voted to deny rehearing en banc. Former Chief Judge Washington, along with Associate Judges Glickman, Beckwith, and Easterly would have granted the petitions for rehearing en banc. Judges Beckwith and Easterly decided to participate in the resolution of the petition upon an April 28, 2016, motion by appellant Harris requesting that they, and Judge McLeese, not recuse themselves when the general practice had been that they recuse from cases that were pending in the Public Defender Service, and the United States Attorney's Office, during their prior employment at each of these agencies. Judge Beckwith and Judge Easterly, upon considering appellant ...