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Wednesday, December 27, 2006

Federal appellate panel rehearing vs. rehearing en banc

Linking TaxProf Blog and How Appealing, Prof. Jonathan Adler over on The Volokh Conspiracy writes (italics in original) that

[t]he U.S. Court of Appeals for the D.C. Circuit has granted the petition for rehearing in Murphy v. IRS. In Murphy, a unanimous three-judge panel held unconstitutional a provision of the Internal Revenue Code that taxed as income, compensation for personal injuries unrelated to lost wages or earnings. Note, this is not an en banc rehearing. Rather, the original three-judge panel will rehear the case.

Some of the comments pick up on Prof. Adler's distinction between panel rehearing and en banc rehearing, and pose some further questions about the difference between the two. I started to weigh in with a lengthy comment there, but decided to post here instead, since I've frequently blogged about en banc proceedings within the various federal courts of appeals, but I don't think I've ever written much specifically about panel rehearings.

When a three-judge panel of, say, the Fifth Circuit issues its opinion announcing its decision on any given appeal, the losing side has several options. It can ask for that three-judge panel to reconsider its decision via panel rehearing. It can also ask the entire membership of the Fifth Circuit to reconsider the three-judge panel's decision via rehearing en banc. In fact, the losing side can choose to do either, or both, but it can also choose to do neither: It can skip both of the panel and en banc rehearing steps, and jump straight to asking the Supreme Court to overturn the Fifth Circuit panel's ruling via a petition for a writ of certiorari.

Obviously, if a panel does agree to reconsider its original opinion, then its doing so may moot some or all of the issues that were raised in a simultaneously filed motion for rehearing en banc. Thus, if both a motion for panel rehearing and a motion for rehearing en banc have been filed, the Chief Judge of the Circuit will typically wait for the three judges on the panel to indicate whether they're going to grant or deny panel rehearing before polling all of the judges of the Circuit on the motion for rehearing en banc. And indeed, Prof. Caron's post points out that "[a]s a result of the [Murphy] panel's action [in granting the motion for panel rehearing], the D.C. Circuit dismissed the Government's en banc petition (filed 10/5/06) as moot."

It's fairly rare, however, for the litigants to persuade a three-judge panel to grant panel re-hearing.  Most of the time, the litigants have indeed already made their best arguments, and have made them as persuasively as they are able, before the release of the original panel opinion. Many litigants therefore don't even bother requesting panel rehearing, but simply ask for rehearing en banc — or (lances leveled straight at the windmill) they simply file their cert petitions.

Sometimes, though, a panel opinion will end up being decided on a factual or legal issue that may not have been fully briefed. When a panel has acted without the benefit of much briefing on a particular factual or legal point, its resulting opinion is comparatively more likely than otherwise to have bollixed something up. In those circumstances, the first time the point is thoroughly briefed by the parties may be during the motion for panel rehearing stage — and that briefing may indeed change the minds of the panel judges as to what the outcome should be. For example, a panel opinion might duck a procedural issue on the ground that one party waived the issue by failing to make a timely objection in the district court. If the losing side's motion for panel rehearing can point the panel to the place in the record where a timely objection was indeed made, then the panel may grant rehearing, delete the waiver analysis, and deal with the issue on its merits in a substituted opinion. Quite often in these situations, on rehearing the panel reaches the same ultimate result as it did originally, but it's simply "prettified" its original opinion — thereby making it somewhat less vulnerable to rehearing en banc or certiorari.

The best appellate advocates understand that panel rehearings have a slightly different set of dynamics than do en banc rehearings. Arguments relating to the record, for example, are generally far more appropriate to panel rehearing, as are arguments that the panel went off in an unexpected direction that wasn't adequately briefed. Arguments to the effect that the panel simply got the law wrong — notwithstanding thorough briefing on point by both sides before the panel made its ruling — are very unlikely to persuade the panel to reconsider, but they may have a better chance of attracting support from other Circuit Judges who weren't on that panel.

Thus, the tone of a motion for panel rehearing may be very solicitous, along the lines of, "Gosh, Your Honors, we're sorry, we just didn't know you would be interested in Issue X-and-such, but now that we know that, here's our position on that, and here's why you ought to want to grant panel rehearing to fix this problem in your original panel opinion (and by the way, here's why that means we win instead of we lose)." The underlying tone and subtext of a motion for rehearing en banc, however, is typically much more adversarial, along the lines of "Hey Fifth Circuit! Three of your colleagues just screwed the pooch very badly, so you need to unscrew it before we ask the Supremes to do so, 'cause they and the other Circuits are going to be pointing the finger at your Circuit and snickering behind your backs!" (Obviously, this sort of pitch has to be really sub-textual, and cloaked in appropriately respectful language, to have any chance at all of success. But that is the basic and essential pitch: "Y'all need to gang up and overrule three of your colleagues who've botched it.")

It's a mistake, however, to assume that the litigants and the three judges of the panel are the only players in panel rehearing dynamics. The possibility of rehearing en banc may make panel rehearing more likely in at least some cases. The litigants' counsel may be incapable of spotting, or at least persuasively articulating, some fundamental flaw in a panel opinion, and therefore may be unable on their own to persuade a panel to reconsider.  But "slip opinions" (the initial printed versions of opinions as released by the court clerk, before they're originally included in the long-term bound volumes of the Federal Reporter series) are typically reviewed by other judges of that Circuit who weren't on the original panel — and those other judges also have a long-term interest in the coherence of their Circuit's precedents. That can, in turn, indirectly lead to a panel opinion being withdrawn by the panel — sometimes even when no motion for panel rehearing has been filed!

The judge for whom I clerked, for example, had a particular expertise and interest in securities and bankruptcy law. If she saw that a panel opinion said something particularly stupid on one of those arcane topics — typically because of poor briefing by the litigants combined with a lack of deep experience on the subject on the part of the panel judges and their (neophyte) law clerks — she might pick up the phone or jot a short note to the author of the panel opinion suggesting that he or she re-think that particular portion of the opinion. The gentle and entirely implicit threat was that if the problem wasn't fixed, my judge might reluctantly and respectfully have to support en banc rehearing — perhaps by leading the charge within the full court to see the petition for en banc rehearing granted — to keep the panel opinion from becoming lasting, binding precedent. This process is a less confrontational means for each Circuit's most knowledgeable judges on particular subject areas to ensure that its precedents aren't muddled. Quite often the original panel members are grateful rather than defensive. (Indeed, if they'd only seen the flap coming in advance, they might have solicited the views of their Circuit's "resident expert" on that topic before releasing the original panel opinion to the public.)

I don't know enough about the Murphy case to make an intelligent guess as to which of these scenarios this grant of panel rehearing falls into, if any. And I certainly don't have anything interesting to say about the underlying tax law question.

Rather, my reason for blogging about this at all is as part of my continuing effort to demystify, and yet demonstrate the complexity of, decision-making within each of the various Circuits. The more you understand about how those appellate courts work, the more likely you are to conclude that the power to nominate Circuit Judges, and to confirm or block those nominees, ought to be an extremely important political consideration when you cast your own votes for President and for your state's senators.

Posted by Beldar at 08:47 PM in Law (2006 & earlier) | Permalink


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(1) Jinnmabe made the following comment | Dec 28, 2006 12:04:58 AM | Permalink

Excellent post. Answer me this. You said:

That can, in turn, indirectly lead to a panel opinion being withdrawn by the panel — sometimes even when no motion for panel rehearing has been filed!

You shared an experience with your judge, but seriously, how often does this happen? It's fairly rare, isn't it? More than once a term? More than once every 5 terms? I'm curious.

And I think you meant bolloxed.

(2) Beldar made the following comment | Dec 28, 2006 12:22:03 AM | Permalink

Thanks for the comment and compliment, Jinnmabe. I did indeed mean "bollixed," but I'd accept "bolloxed" as an alternative (urban) spelling.

As to frequency: Someone could probably pull stats from judicial branch administrative reports that would establish that rehearings are granted in only a tiny percentage of cases — I'd guestimate that it's something below five percent, and quite possibly considerably less than that. The number of rehearings prompted by comments from judges not on the panel would obviously be lower still. So it's by no means "common." But I can recall being aware of a small handful of such occasions during my one year of clerking — probably more than a couple, less than a half-dozen. That was just on cases in which my judge was involved in one way or another (i.e., on the panel or perhaps the judge making a suggestion to the panel). And it may well happen without any of the respective judges' clerks ever knowing about it. My subjective and anecdotal impression, then, is that this happens in a small but nevertheless meaningful number of cases.

I believe that some Circuits whose lesser workloads permit them to do so still circulate all opinions before they're released to all members of that Circuit, precisely to solicit that sort of input in advance. That's a terrific practice, but one that's simply impracticable in the larger and busier appellate courts like the Fifth or Ninth Circuits.

(3) Jinnmabe made the following comment | Dec 28, 2006 1:58:38 AM | Permalink

As to bolloxed/bollixed, fair enough.

I wonder how much the personalities of the circuit and the interpersonal relationships have to do with this informal kind of "review"? I mean, I know that judges want to be right, and care about the prestige and good name of their circuit and its precedent, but if one of the judges who supposedly is an "expert" on the particular topic is also an overbearing pain-in-the-can, does that affect the other judges' willingness to withdraw or change an opinion?

I find this kind of information and situation fascinating. Yes, I'm a law geek.

(4) Beldar made the following comment | Dec 30, 2006 4:39:21 AM | Permalink

[I]f one of the judges who supposedly is an "expert" on the particular topic is also an overbearing pain-in-the-can, does that affect the other judges' willingness to withdraw or change an opinion?

Sure it does. That's all part of the personal and professional dynamics, which often overlap, but are almost always fascinating.

During my clerkship, for instance, I was aware of a particular judge who was indeed an overbearing pain-in-the-can. But he (or she; I'm being coy) also was very smart, highly principled, a genuine expert on many topics, and routinely hired some of the best law clerk applicants from the best law schools in the country. Other judges ignored him (or her) at peril to their own internal reputations within the Fifth Circuit bench. It was the classic example of "not much loved, or even liked, but respected."

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