Stephen L. Wasby
Volume 63, Issue 3, 747-802
U.S. courts of appeals seldom provide reasons for granting or denying rehearing en banc. The most likely reason for rehearing en banc is that other judges believe the three-judge panel deciding the case had erred, although rehearing is not sought each time judges disagree with a panel. The formal bases for rehearing a case en banc include the three desiderata of Federal Rule of Appellate Procedure 35—conflict with circuit precedent (intracircuit conflict), conflict with Supreme Court rulings, and presence of an issue of “exceptional importance”—and courts’ rules and general orders. Judges introduce other considerations, such as an intercircuit conflict, institutional concerns about resources necessary to hear a case en banc, and whether a case should proceed directly to the Supreme Court.
This Article presents a detailed description of reasons judges offer each other as they seek to have a case taken en banc or argue against such rehearing after a three-judge panel has filed its decision. The data are drawn from case files in the papers of Judge Alfred T. Goodwin of the Court of Appeals for the Ninth Circuit. He was the court’s en banc coordinator from the early 1970s through 1993 and thus was at the communications node for post-panel activity, which he monitored and directed. Reasons offered for rehearing a case en banc are discussed in terms of the above-noted FRAP categories, intercircuit conflict, and institutional reasons. Given particular attention is the relationship between rehearing a case en banc or letting it proceed quickly to the Supreme Court. Some general arguments by judges against en banc hearing are also presented.