The Mariani Petition for Rehearing En Banc contained arguments for both review of the denial of Ellen’s appeal and the imposition of sanctions. If the Clerk complies with this latest Order it would appear that under the procedure for determining en banc rehearings a much broader selection of 2nd Circuit judges will now see the complete Petition for Rehearing En Banc, although it is not possible to predict whether these judges will feel compelled (as Carney and Hall have instructed) to ignore the request for full rehearing of the denial of Ellen’s appeal. Leichty had argued that only the judges polled for rehearing were qualified to decide if rehearing en banc could still be granted as to the underlying denial of the appeal, which denial was justified by Carney and Hall on the grounds that all of Mariani’s claims had been disposed of by rulings in her earlier efforts to intervene and appeal — a patently inaccurate conclusion if one reads the entire Mariani appellate brief.
Judges Carney and Hall, the same judges who imposed sanctions on Ellen Mariani and Bruce Leichty on 5/15/13, have issued a mixed ruling (dated 7/8/13) on the most recent two motions that Bruce filed (see post of June 24 below). (Click here to read the 7/8/13 ruling.)
In the first of the two motions Ellen and Bruce had asked the Court to make sure that only an official arm of the Court would hear future motions — starting with this one. Judges Carney and Hall, whose ability to make further procedural rulings had been explicitly challenged in the motion, denied that motion without explanation or comment.
The second of the two recent motions, for reconsideration of the order confirming the Clerk’s “striking” of the Mariani Petition for Rehearing En Banc (i.e. for a hearing by a larger group of judges), was granted in part. Judges Carney and Hall now concede that the striking of the Mariani petition must be partly overturned, without explaining how the Petition could be separated into parts that are to be stricken and not stricken. The Clerk of the Court, Catherine O’Hagen Wolfe, has been directed to poll 2nd Circuit judges to see if there are sufficient judges who think Mariani and Leichty are owed a rehearing on the money sanctions and findings of “anti-semitism” made by Carney and Hall, and on that alone.