Is the D.C. Circuit Too Small To Go En Banc?

Ted Frank of the Center for Class Action Fairness has a post on PointofLaw.com explaining why he thinks the D.C. Circuit’s recent opinion upholding the Cobell settlement was wrongly decided.  (Frank argued the case for the objector.)  Frank asks for advice about whether to petition for rehearing en banc.

The D.C. Circuit only rarely grants rehearing en banc.  This term–as last term–the full court reheard only one case.  The reasons for the infrequency of en banc rehearing are complicated. They include the D.C. Circuit’s Irons footnote procedure [pdf] for overruling old precedent without full-court rehearing, and the Court’s successful effort to improve its collegiality, which is often linked (rightly or wrongly) to a diminished reliance on the court’s internal error-correction mechanisms.

But the most fundamental reason for the D.C. Circuit’s low en banc rate in recent years is the dwindling number of active judges eligible to vote for rehearing.  (This should be–but to my knowledge is not–a common argument in favor of confirming D.C. Circuit nominees.) Since Judge Ginsburg took senior status last October, the court has had only eight active judges.  That means that when a panel of three active judges issues a unanimous decision, as in Cobellall of the other active judges on the court must vote in favor of rehearing for the case to go en banc–assuming the panel members vote to defend their decision.

Aside from the First Circuit, which has only five active judges, each of the other circuit courts is larger than the D.C. Circuit–from 27 active judges on the Ninth to 10 on the Seventh and Tenth.  The optimal number is probably somewhere in the middle.  Three of the D.C. Circuit’s eleven seats are vacant.

Under these circumstances, the odds of rehearing en banc are low even if, as Frank suggests, the panel opinion is beset by “obvious” errors.  Rule 35 of the Federal Rules of Appellate Procedure requires conflicting circuit precedent or “a question of exceptional importance,” to justify rehearing en banc.  But the errors Frank alleges seem at first glance to rely on out-of-circuit precedent or a rival interpretation of the Supreme Court’s Wal-mart v. Dukes case. It is unlikely that all five of the other active judges will be persuaded both that the panel was wrong and that the prospect of correcting that error is worth the additional time and judicial resources that would be consumed by rehearing en banc, much less vacating and remanding the settlement order for further proceedings in the district court.

Of course, petitioning for rehearing en banc may sometimes make sense even when the likelihood of success is low. A targeted dissent from the denial of rehearing en banc may help make the case for cert.

Cobell v. Salazar, No. 11-5205 (May 22, 2012) (Rogers, J., joined by Tatel & Brown, JJ.)

See:

  • Ted Frank, Cobell v. Salazar (D.C. Cir. 2012), PointofLaw.com (May 24, 2012) (“Of course, being right on the merits, and being able to point out where the D.C. Circuit is wrong doesn’t mean that a motion for rehearing or rehearing en banc, or a petition for certiorari, will be successful; there’s a reasonable judicial bias for finality, and the pathos of being able to bring to conclusion a 15-year-old case has an effect that cuts against further review of a unanimous decision. . . . I wouldn’t want to keep fighting if fighting is futile, and would only delay the resolution of this settlement, even if I believe it’s illegal; spending time on a losing case has the opportunity cost of taking time away from being able to pursue winning cases where I can make a difference.”)
  • Fed. R. App. P. 35(a) (“A majority of the circuit judges who are in regular active service and who are not disqualified may order that an appeal or other proceeding be heard or reheard by the court of appeals en banc. An 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.”)

See also:

Cf.:

  • Hon. Douglas H. Ginsburg, Remarks Upon Receiving the Lifetime Service Award of the Georgetown Federalist Society Chapter, 10 Georgetown J. of L. & Pub. Pol’y 1, 6 (2012) [PDF] (“I think the declining number of en banc rehearings over the last thirty years, and their paucity in the last decade, reflect a significant and increasing degree of mutual trust among colleagues. To have so few en banc rehearings, the judges must have either an extraordinarily homogenous view of the law or a great deal of respect for each other’s judgments. Clearly, the latter is primarily what induces our reluctance to second-guess a panel of three colleagues; indeed, the court has reheard a case decided by a unanimous panel probably less than five times in the last twenty-five years. In sum, we have learned over time about the significant resource costs and the often modest benefits of rehearings en banc and, even more important, the collegiality of the court has grown over that time.”)
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