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Friday, September 19, 2003

En banc granted in Shelley

No real surprise.  The language is probably standard.  That the rehearing was on the self-raised ("sua sponte") motion of one of the active judges of the Ninth Circuit was easy to infer from the clerk having contacted the parties Tuesday to ask their position on rehearing — that wouldn't likely have happened unless one judge was already ready to vote for rehearing. 

What I don't know is whether a majority had to agree to the order indefinitely staying the mandate before the rehearing had been approved, or if that's something that, say, the chief judge could do on her own.  Regardless, though, en banc courts of appeals generally don't grant rehearings to reaffirm what one of their three-judge panels have done.  By a substantial margin, the odds now favor the election taking place on October 7th as originally scheduled.

Predictably, Howard Bashman's How Appealing has all the good goop (here, here, here, here, and here, for instance) about who's on the less-than-full-court en banc panel (a bizarre practice) and what that's likely to mean.


UPDATE (Sat Sep 20 @ 12:30am):   The NYT agrees with and quotes Mr. Bashman on the odds of reversal, and quotes Prof. Eugene Volokh (he of conspiracy fame) to boot.  Power to the blogosphere!  WaPo, by contrast, mostly quotes politicians.  Who ya gonna believe — bloggers on the one hand, or Gray Davis and Al Gore on the other?

Posted by Beldar at 03:25 PM in Law (2006 & earlier), Politics (2006 & earlier) | Permalink


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(1) Steven Jens made the following comment | Sep 19, 2003 10:22:43 PM | Permalink

Does the fact that the "full" appelate court will operate a few judges short of a full banc affect the odds of a reversal? Couldn't the judges who wanted to re-hear turn out to be different from the 11 judges on the panel?

What is the requirement for an en banc re-hearing, anyway? I understand that for most cases, the Supreme Court has to get a writ of certiorari (sp?) from one of the parties, and four of the justices have to accept. I assume the en banc is similar?

(2) Beldar made the following comment | Sep 19, 2003 11:40:14 PM | Permalink

Oh my. You've triggered a LONG answer to some short questions, Steven. Buckle in!

Different circuits may have slightly different procedures. As far as I know, the procedure now employed by the Ninth Circuit is unique, although not completely unprecedented. They've concluded that the court is so large — 26 active judges (with, I think, two more seats authorized by Congress but not currently filled) — that it's impractical for the entire court to sit at once.

I'm not convinced of that, actually. I clerked for Judge King during the last year of the "old Fifth Circuit" that included the states that are now part of the Eleventh Circuit (GA, AL & FL) along with the states still in the Fifth Circuit (TX LA & MS), and I know that there was at least one occasion on which all twenty-five of the then-Fifth Circuit judges sat en banc. In fact, my judge authored the opinion for the en banc "old Fifth Circuit" in a much-cited contract and securities law case, Broad v. Rockwell International Corp., 642 F.2d 929 (5th Cir.)(en banc), cert. denied, 454 U.S. 965 (1981) — which ended up being a 24-to-1 decision in which the majority included the author and one other member of the three-judge panel whose decision it overturned!

The dynamics really weren't much different between an en banc court of 25 and one of, say, 11. After oral argument, there's a private conference (judges only, no clerks allowed) at which the judges discuss the case and take a tentative vote. The senior-most judge who's in the tenative majority assigns the duty of writing a proposed majority opinion to someone who's in that camp, and the senior-most judge who's in the prospective dissenting group likewise assigns the duty of writing a dissent. The proposed majority opinion circulates first; assuming that it picks up concurrences from all who voted that same way in the conference (and that's usually, but not always, what happens), then the judges who voted at the conference to dissent wait for their designee to circulate a proposed dissenting opinion, which then picks up their concurrences. Occasionally, but very rarely, judges may comment or suggest modifications as a condition of adding their concurrence to either the proposed majority or dissenting opinions; or even more rarely, they may write separately. But you very rarely see the sort of fractured-in-six-directions results from an en banc court of appeals that you routinely see from the US Supreme Court.

During the last few months of the "old Fifth Circuit," it began sitting in separate en banc panels that corresponded to the states that would make up the "new Fifth" and the "new Eleventh," calling those, respectively, "Unit A" and "Unit B." This produced occasional odd results.

For instance, in what ended up becoming the single most cited ineffective assistance of counsel case, my judge — being a career-long compulsive workaholic, God bless her — had volunteered for some extra panel duty on some "Unit B" cases, and thus ended up writing the majority opinion for a three-judge panel in a death penalty case out of Florida. But it was a controversial case, and ended up being voted for rehearing en banc by "Unit B." Since she sits in Texas and wasn't part of "Unit B," however, she didn't get to participate in the en banc — even though it was still a Fifth Circuit opinion and she was a Fifth Circuit judge! Perhaps in part because she wasn't present to "defend the panel opinion," the en banc "Unit B" ended up coming out in the opposite direction. But then the US Supreme Court ended up taking the case, reversed the "Unit B" en banc decision, and came out with something very close to what she had written in the original panel opinion. Washington v. Strickland, 673 F.2d. 879 (5th Cir. 1982), on rehearing, 693 F.2d 1243 (5th Cir. 1982)(Unit B en banc), rev'd sub nom. Stickland v. Washington, 466 U.S. 668 (1984).

I have no comparable first-hand knowledge of how the Ninth Circuit works, but a sidebar to Dahlia Lithwick's Slate essay explains their rather strange procedure, and Howard Bashman has comments on the eleven judges who are part of the Ninth Circuit's mini-en banc for Shelley. I really don't see much to recommend their procedure, other than that it saves some money on hotel rooms and plane tickets. There is a certain majesty in having the entire court sit which is simply lost with anything less than the entirety.

In this particular instance, as I understand it, none of the three judges from the original panel is on the mini-en banc court. That's just a travesty — I say that even as a sharp critic of what that panel did. In a sense, the author of the panel opinion should be an advocate for that point of view before the full court, and a great deal is potentially lost when he or she is excluded.

The en banc rehearing process is somewhat like the process for seeking discretionary Supreme Court review. The loser in the court of appeals doesn't have to ask for either rehearing by the original panel or for rehearing en banc before filing a cert. petition, but it's common to do so — by that point you're looking for as many bites at the apple as you can get, but the apple is getting harder and harder to bite. En banc courts generally sit for two reasons — either to correct a panel that's gone off the rails (as here), or to overrule a prior precedent from that same circuit (because ordinary three-judge panels are bound by prior panel and en banc opinions from their own circuits).

Perhaps the biggest difference is that in the Supreme Court, it only takes an affirmative vote of four Justices to grant a petition for writ of certiorari — the so-called "rule of four." You therefore see a fair number of Supreme Court cases where four Justices thought a court of appeals decision needed to be reversed and got the case heard, but then couldn't pick up the fifth vote necessary for a majority, and the court of appeals decision ends up being affirmed. By contrast, it takes a majority of the active judges to approve rehearing en banc — which in most circuits means that the en banc court is almost always going to come out differently than the panel did, or they'd have just left the panel opinion alone. With the Ninth Circuit's screwy mini-en banc courts, though, it's altogether possible that you'll end up having an 11-judge panel, the majority of which didn't think that the case should be re-heard en banc to begin with!

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