Mary Ann Rocha Vigil v. City of Las Cruces , 119 F.3d 871 ( 1997 )

ORDER

The petition for rehearing is denied by the panel of judges who decided the case on the ground that the petition was not timely filed. A member of the active court sua sponte called for a poll of the court to determine whether the court would rehear the case en banc. Judges Seymour, Ebel, and Lucero voted to grant rehearing en banc. All other active members of the court voted to deny rehearing en banc. The petition for rehearing is therefore denied.

JOHN C. PORFILIO, Circuit Judge.

Because I find no precedence for the publication of an order denying rehearing and rehearing en banc, I have no idea what to label this missive. Nonetheless, an issue has been made over the denial of rehearing en banc, and I am stirred to state for the record the reason why I have voted to deny. I hope in so doing I do not create a custom for this court, because there already being enough judicial verbiage in print to confound practioners, I find opprobrious this whole notion of publishing non-precedential matters.

Lest there be a misapprehension, my vote has absolutely nothing to do with the merits of the case. Guided by what I believe are the controlling principles of Fed. R.App. P. 35(a), I simply do not believe the appeal over which this controversy has arisen is appropriate for en bane consideration.

I take to heart those portions of Rule 35(a) which say rehearing en banc is “not favored” and will not be ordered unless the case involves a “question of exceptional importance.” Recalling that the disposition of this matter was by an unpublished order and judgment, indicating a panel determination the case has no value as precedent, 10th Cir. R. 36.1, and rendering the decision virtually uncitable, 10th Cir. R. 36.3, I believe the panel decision presents no question of exceptional importance. What the panel determined makes no impact upon the jurisprudence of this circuit; therefore, it has no value except to the parties themselves. Accordingly, in my opinion the proceeding does not reach the high standard for en banc rehearing required by Rule 35(a). I have never voted to grant rehearing en banc in such a case, and I find nothing about this one to change my practice.