En Banc in the Sixth Circuit: A Rarely Used, but Important Procedure

Photo by Bill Dolak on Flickr

Bailey Wharton, Associate Member, University of Cincinnati Law Review

I. Introduction

When most people appear in federal court, they try their cases before a single judge in district court or before a three-judge panel in the circuit court of appeals. Rarely, though, do parties have their cases heard by the full court of judges, or what is more commonly known as an ‘en banc court.’ While a highly infrequent occurrence, cases heard en banc often involve some of the most judicially significant issues. Because en banc opinions help clarify “the landscape of the circuit’s law [and] magnify ideological fractures within the court,” it is important to thoroughly understand what the procedure is, how it works, and how it is utilized.[1]

Part II of this article will provide a brief overview of the federal rule and Sixth Circuit local rules on en banc procedure, as well as when and how U.S. circuit courts may invoke the en banc procedure. Part III will explore the Sixth Circuit’s use of en banc procedure during the last four years and will detail the types of cases that may be more susceptible to en banc rehearings in the Sixth Circuit in the future.

II. Background

A. What is the En Banc procedure?

‘En banc,’ a legal term of art derived from French, translates to ‘on the bench.’ Typically, in the U.S. Circuit Courts of Appeal, cases are heard by panels consisting of three circuit judges.[2]  However, there are certain situations that necessitate a case to be heard en banc. In an en banc panel, all active circuit court judges sit together to hear the case.[3] The only exception to this is the Ninth Circuit which, due to its size (with 29 active circuit judges plus 18 senior circuit judges), sits eleven randomly selected judges to serve on its en banc panels.[4]

28 U.S.C. § 46(c) provides circuit courts with the statutory authority to hear cases en banc.[5] Federal Rule of Appellate Procedure (“FRAP”) 35 sets out the framework for and the processes of how the federal circuit courts handle en banc hearings.[6] Sometimes, Circuit Courts may introduce their own local rules of en banc procedure as a supplement to or replacement for the FRAP when the FRAP is silent on certain aspects of en banc procedure.[7] For example, the scope and effect of an order granting a petition for a rehearing en banc is left to be determined by each circuit court’s own local rules.[8] In the Sixth Circuit, the effect of granting a petition for rehearing en banc “vacates the previous opinion and judgment of the court, stays the mandate, and restores the case on the docket as a pending appeal.”[9]

B. When is it appropriate to grant an en banc hearing?

When to grant a rehearing en banc is entirely within the discretion of the circuit court judges. Fed. R. App. P. 35(a) states that “[a]n en banc hearing or rehearing is not favored and ordinarily will not be ordered unless: (1) en banc consideration is necessary to secure or maintain uniformity of the court’s decisions; or (2) the proceeding involves a question of exceptional importance.”[10] Parties may petition the court for an en banc hearing, or the court may sua sponte order a case to be reheard en banc by vote of a majority of the circuit judges in regular active service.[11]

In the Sixth Circuit, an en banc rehearing is not appropriate in matters regarding “alleged errors in the determination of state law or in the facts of the case…, or errors in the application of correct precedent to the facts of the case.”[12] Rather, the Sixth Circuit views an en banc petition as “an extraordinary procedure intended to bring to the attention of the entire court a precedent-setting error of exceptional public importance or an opinion that directly conflicts with Supreme Court or Sixth Circuit precedent.”[13] Under 6 Cir. I.O.P. 35(e), a poll to rehear a case en banc may be requested either by “any active judge or any member of the original hearing panel…after a party filed a petition for rehearing en banc” or by sua sponte request of “any member of the en banc court…before a party files an en banc petition.”[14]

III. Discussion

A. Comparing the Sixth Circuit’s Use of En Banc

Between January 1, 2018 and September 7, 2021, the Sixth Circuit only granted seven petitions for rehearings en banc.[15] In fact, the Sixth Circuit granted two en banc petitions in 2018, two in 2019, two in 2020, and only one so far in 2021.[16] Upon further investigation, the Sixth Circuit’s seven en banc orders turn out to be the median amount of en banc orders granted among ten other Circuit Courts reviewed.[17] Four circuits granted six or fewer en banc orders in the same timeframe, one circuit granted seven en banc orders, and five circuits granted ten or more en banc orders. The breakdown is as follows:[18]

Although each circuit must abide by the same federal rules governing en banc petition standards and procedure, the rules also provide significant discretion to each set of circuit judges to decide if and when they will grant a petition for en banc hearing or sua sponte order a case to be heard en banc. As a result, it is ultimately up to the makeup of each circuit and the circuit judges’ collective views on en banc hearings. As the above data shows, some circuits grant en banc orders at a much higher frequency than others.

B. When is the Sixth Circuit using the En Banc procedure?

All seven en banc orders granted by the Sixth Circuit between January 1, 2018 and September 7, 2021 were granted via vote on a party’s petition for rehearing en banc; the circuit did not sua sponte order any en banc rehearings.[19] Six of the seven cases filed petitions requesting a rehearing en banc pursuant to both F. R. App. P. 35(b)(1)(A)—arguing that the Court of Appeals panel opinion either “conflicts with a decision of the Supreme Court” or with another Sixth Circuit opinion or that full court review is “necessary to secure and maintain uniformity” of Sixth Circuit decisions—and F. R. App. P. 35(b)(1)(B)—arguing that “the proceeding involve[d] … questions of exceptional importance” or that the Court of Appeals panel created a circuit split.[20]

When the court issues its order granting a rehearing en banc, it is hard to know exactly why the judges felt a particular case was worthy of being heard en banc because the order typically does not explain the judge’s reasoning for granting the petition. However, sometimes a judge will write a dissent to the grant of en banc hearing. In these cases, the dissent opinion offers some insight into how that particular judge feels about rehearing cases en banc or about their concerns regarding the decision to utilize the en banc procedure. In April of this year, Sixth Circuit Judge Karen Nelson Moore issued a dissent from the grant of initial hearing en banc in Bristol Reg’l Women’s Ctr., P.C. v. Slatery, a case involving a constitutional challenge to a Tennessee state statute introducing a 48-hour waiting period for abortions.[21]

Unlike a traditional en banc rehearing, which occurs after the original three-judge panel issues a decision, in rare instances, a circuit court can grant an order calling for an initial hearing en banc “prior to panel assignment, but only in cases of public importance which have attracted much attention.”[22] In her dissent, Judge Moore warned that “by granting that petition, a majority of this court has sent a dubious message about its willingness to invoke [this] extraordinary—and extraordinarily disfavored—procedure in ideologically charged cases.”[23] Judge Moore also noted that “[t]oday we could have sent a message affirming this court’s impartiality and independence…[and] [i]n endorsing this game of procedural hopscotch, a majority of the en banc court has embarked on an unsettling course.”[24]

Judge Moore’s dissent was the only dissent included in any of the seven en banc orders in the Sixth Circuit in the last four years. As a result, it is the only real window into how the Sixth Circuit judges view en banc procedure, but more specifically, about how the judges view an initial hearing en banc. While it is admittedly a small sample size, it is nonetheless interesting to see that at least one judge, but probably more, view these en banc hearings as “extraordinarily disfavored” procedures.[25] What is even more interesting is that in her dissent, Judge Moore lamented the fact that “[i]n the not-so-distant past we resisted the urge to wield this court’s en banc authority so indiscriminately…[but] [a]las, it seems to me that we have moved on to sorrier times.”[26]

It is therefore not very surprising that the Sixth Circuit does not grant an exorbitant amount of en banc orders.

C. Is there a pattern to the types of cases the Sixth Circuit grants en banc orders?

Since January 1, 2018, the Sixth Circuit has ordered en banc hearings and issued en banc opinions on seven cases. The en banc court has heard two civil rights abortion cases, two death penalty habeas petition cases, one case brought under 42 U.S.C. 11603(b) of the International Child Abduction Remedies Act, one case involving whether the U.S. Sentencing Commission exceeded its exercise of power in criminal sentencing, and one case involving whether a search warrant affidavit provided the requisite probable cause to issue a search warrant.[27]

Despite the relatively small sample size, it appears that the Sixth Circuit is not afraid to take up politically charged and newsworthy issues. Abortion has always been and remains to be a hot political and social topic, and states regularly enact new legislation that almost always finds its way to the courts in one way or another.[28] Due to the copious amount of legislative and judicial history surrounding abortion, it would not be a surprise for any party that receives an unfavorable Court of Appeals panel decision to file a petition for rehearing en banc, arguing a conflict with a Supreme Court decision on abortion or arguing a question of exceptional importance due to the highly controversial nature of the issue. This creates ample opportunities for the Sixth Circuit to take up such a case should the majority feel so inclined.

D. How could the current political make-up of the Sixth Circuit judges determine the types of cases the court may order en banc in the future?

Currently, the Sixth Circuit has sixteen active judges and fourteen senior judges.[29] Of the active judges, eleven were appointed by a Republican administration and five were appointed by a Democrat administration.[30] Of the senior judges, eleven were appointed by a Republican administration and three were appointed by a Democrat administration.[31] While the political party of the President appointing a federal judge does not always reflect the appointed judge’s personal beliefs or influence their rulings, it does appear that the Sixth Circuit leans predominately conservative. As a result, it could make it quite easy for a conservative majority of judges to dictate the type of cases and issues they may want to hear en banc. This was the case in the Bristol Reg’l abortion case. According to Judge Moore’s dissent to the order granting an initial hearing en banc, she states that after the district court found Tennessee’s 48-hour waiting period law “unconstitutional and permanently enjoin[ed] its enforcement” and the three-judge panel denied plaintiff’s request for a stay pending appeal in a two-to-one opinion, Judge Thapar, the lone dissenting judge, “so vehemently” disagreed with the panel decision that he “urg[ed] Appellants to seek initial hearing en banc.”[32] This example demonstrates how easily a conservative Sixth Circuit judge can leverage the majority to order an en banc hearing on a case or issue if they want.  

IV. Conclusion

Although the use of en banc procedure in the Sixth Circuit remains fairly minimal compared to many other circuits, the Sixth Circuit’s conservative majority appears to hold the upper hand in determining whether or not employ the procedure in politically or ideologically charged cases. This could significantly shape the future legal and judicial fields in Michigan, Ohio, Kentucky, and Tennessee.

The en banc procedure clearly serves an important purpose within the function of the U.S. Court of Appeals. However, to preserve the integrity of the procedure, and of the courts in general, it is best used sparingly. It begins to lose its importance and prestige when it is manipulated to be used primarily for political purposes. The U.S. judicial system is premised on the idea of an independent judiciary, outside of political control. The more politicized the courts become, the further they stray from their intended purpose.

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[1] Pierre H. Bergeron, En Banc Practice in the Sixth Circuit: An Empirical Study, 1990–2000, 68 Tenn. L. Rev. 771, 771 (2001).

[2] 28 U.S.C. § 46(b).

[3] Glossary of Legal Terms, United States Courts, https://www.uscourts.gov/glossary [https://perma.cc/273K-ZXFE] (last visited Sept. 16, 2021); 21 Moore’s Federal Practice—Civil § 335.11 (Matthew Bender 3d ed. 2021).

[4] Glossary of Legal Terms, supra note 3; The Judges of this Court in Order of Seniority, United States Courts for the Ninth Circuit, https://www.ca9.uscourts.gov/judicial-council/judges-seniority-list/  [https://perma.cc/5CWR-JZF3] (last updated May 2021); see also Moore’s Federal Practice—Civil § 335.11, supra note 3.

[5] F. R. App. P. 35 advisory committee’s note (“Cases and controversies shall be heard and determined by a court or panel of not more than three judges…, unless a hearing or rehearing before the court in banc is ordered by a majority of the circuit judges of the circuit who are in regular active service.”).

[6] F. R. App. P. 35.

[7] Moore’s Federal Practice—Civil § 335.11, supra note 3.

[8] Id.

[9] 6 Cir. R. 35(b).

[10] F. R. App. P. 35(a)(1)-(2).

[11] See F. R. App. P. 35(b) (“(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…; or (B) the proceeding involves one or more questions of exceptional importance…”); Moore’s Federal Practice — Civil § 335.11, supra note 3; see also Sparks v. Duval Cty. Ranch Co., 604 F.2d 976, 979 (5th Cir. 1979) (“no motion is required for us to hear or rehear a cause en banc”), aff’d sub nom. Dennis v. Sparks, 449. U.S. 24 (1980).

[12] 6 Cir. I.O.P. 35(a).

[13] Id.

[14] 6 Cir. I.O.P. 35(e).

[15] Search Results for Published Opinions dated from January 1, 2018, to September 7, 2021, United States Court of Appeals for the Sixth Circuit, https://www.opn.ca6.uscourts.gov/opinions/opinions.php [https://perma.cc/2QFV-FRZX] (last visited Sept. 7, 2021).

[16] Id.

[17] Data from the United States Court of Appeals District of Columbia Circuit and the United States Court of Appeals for the Seventh Circuit was not included in the comparison due to lack of practical access to information needed to determine how many orders for en banc rehearings the Circuits granted.  

[18] First Circuit PACER Orders/Judgments and Opinions Search Results, CM/ECF, https://ecf.cafc.uscourts.gov/n/beam/servlet/TransportRoom?servlet=OrderJudgment.jsp (last visited Sept. 9, 2021); Second Circuit PACER Orders/Judgments and Opinions Search Results, CM/ECF, https://ecf.ca2.uscourts.gov/n/beam/servlet/TransportRoom?servlet=OrderJudgment.jsp (last visited Sept. 9, 2021); Third Circuit PACER Orders/Judgments and Opinions Search Results, CM/ECF, https://ecf.ca3.uscourts.gov/n/beam/servlet/TransportRoom?servlet=OrderJudgment.jsp (last visited Sept. 9, 2021); En Banc Cases, United States Court of Appeals for the Fourth Circuit, https://www.ca4.uscourts.gov/opinions/en-banc-cases [https://perma.cc/L32H-DDUR] (last visited Sept. 7, 2021); Fifth Circuit PACER Orders/Judgments and Opinions Search Results, CM/ECF, https://ecf.ca5.uscourts.gov/n/beam/servlet/TransportRoom?servlet=OrderJudgment.jsp (last visited Sept. 9, 2021); Search Results for Published Opinions dated from January 1, 2018 to September 7, 2021, United States Court of Appeals for the Sixth Circuit, https://www.opn.ca6.uscourts.gov/opinions/opinions.php [https://perma.cc/2QFV-FRZX] (last visited Sept. 7, 2021); Opinions Search by Month/Year, United States Court of Appeals for the Eighth Circuit, https://www.ca8.uscourts.gov/monthyear [https://perma.cc/3P36-XVQK] (last visited Sept. 7, 2021); Opinions, United States Court of Appeals for the Ninth Circuit, https://www.ca9.uscourts.gov/opinions/ [https://perma.cc/89XT-WF7J] (last visited Sept. 7, 2021); Tenth Circuit PACER Orders/Judgments and Opinions Search Results, CM/ECF, https://ecf.ca10.uscourts.gov/n/beam/servlet/TransportRoom?servlet=OrderJudgment.jsp (last visited Sept. 9, 2021); En Banc Poll Orders, United States Court of Appeals for the Eleventh Circuit, https://www.ca11.uscourts.gov/enbanc-poll-orders [https://perma.cc/5LQD-YX3N] (last visited Sept. 7, 2021); Federal Circuit PACER Orders/Judgments and Opinions Search Results, CM/ECF, https://ecf.cafc.uscourts.gov/n/beam/servlet/TransportRoom?servlet=OrderJudgment.jsp (last visited Sept. 9, 2021).

[19] Taglieri v. Monasky, No. 16-4128, 2018 U.S. App. LEXIS 5408, at *1 (6th Cir. Mar. 2, 2018); United States v. Christian, 904 F.3d 421, 422 (6th Cir. 2018); United States v. Havis, 921 F.3d 628, 628 (6th Cir. 2019); Preterm-Cleveland v. Himes, 944 F.3d 630, 631 (6th Cir. 2019); Hill v. Anderson, 964 F.3d 590, 590 (6th Cir. 2020); Taylor v. Simpson, 980 F.3d 1117, 1117 (6th Cir. 2020); Bristol Reg’l Women’s Ctr., P.C. v. Slatery, 993 F.3d 489, 489 (6th Cir. 2021).

[20] F. R. App. P. 35(b)(1)(A)—(B).

[21] 993 F.3d at 489; Civil Cover Sheet 1, ECF No. 1–5 (constitutional challenge to state statutes concerning abortion).

[22] Judah I. Labovitz, Note, En Banc Procedure in the Federal Courts of Appeals, 111 U. Pa. L. Rev. 220, 233 (1962) (citing Maris, Hearing and Rehearing Cases in Banc, 14 F.R.D. 91, 93 (1954)).

[23] Bristol Reg’l, 993 F.3d at 490.

[24] Id. at 491–492.

[25] Id. at 491.

[26] Id. at 491.

[27] See generally Preterm-Cleveland v. McCloud, 994 F.3d 512 (6th Cir. 2021); Bristol Reg’l Women’s Ctr., P.C. v. Slatery, 7 F.4th 478 (6th Cir. 2021); Hill v. Shoop, No. 14–3718, 2021 WL 3701151 (6th Cir. Aug. 20, 2021); Taylor v. Jordan, No. 14–6508, 2021 WL 3719354 (6th Cir. Aug. 23, 2021); Taglieri v. Monasky, 907 F.3d 404 (6th Cir. 2018), aff’d, 140 S. Ct. 719 (2020); United States v. Havis, 927 F.3d 382 (6th Cir.), reconsideration denied, 929 F.3d 317 (6th Cir. 2019); United States v. Christian, 925 F.3d 305 (6th Cir.), cert. denied, 140 S. Ct. 414 (2019).

[28] See generally Elyssa Spritzer and Nora Ellmann, State Abortion Legislation in 2021, Center for American Progress (Sept. 21, 2021, 9:00 AM),  https://www.americanprogress.org/issues/women/reports/2021/09/21/503999/state-abortion-legislation-2021/ [https://perma.cc/Y7EP-T2S8] (discussing the significant amount of abortion legislation enacted in 2021); Texas Abortion: Doctor Sued in first known challenges of new law, BBC https://www.bbc.com/news/world-us-canada-58633515 [https://perma.cc/J8QU-229Z] (last visited Sept. 21, 2021).

[29] U.S. Court of Appeals for the Sixth Circuit: Judges, Federal Judicial Center, https://www.fjc.gov/history/courts/u.s.-court-appeals-sixth-circuit-judges [https://perma.cc/8WLT-ZFVT] (last visited Sept. 21, 2021).

[30] Id.

[31] Id.

[32] Bristol Reg’l Women’s Ctr., P.C. v. Slatery, 993 F.3d 489, 490 (6th Cir. 2021).