The latest volley in the debate over the propriety of dissents from the denial of rehearing en banc came yesterday from Chief Judge Alex Kozinski of the Ninth Circuit and a former clerk in an essay entitled I Say Dissental, You Say Concurral. Chief Judge Kozinski, an active dissenter from denials of rehearing en banc, defends the practice. His essay also continues a campaign–unsuccessful thus far–to introduce the word “dissental” into the legal lexicon. Although the term has never appeared in a judicial opinion outside the Ninth Circuit, the essay’s abstract asserts hopefully that dissents from orders denying rehearing en banc are “colloquially known as dissentals.”
Chief Judge Kozinski’s position is not without its detractors. “[D]enials of rehearing en banc are best followed by silence,” Judge Raymond Randolph once wrote. “They should not serve as the occasion for an exchange of advisory opinions, overtures to the Supreme Court, or press releases.” Judge Randolph’s advice did not stay the pen of Eleventh Circuit Judge William Pryor, who quoted it yesterday in a “reluctant” opinion “respecting the denial of rehearing en banc.” (Both Judge Randolph and Judge Pryor were responding to dissents from the denial of rehearing en banc.)
Nor has Judge Randolph’s criticism of dissents from the denial of rehearing en banc prevented his own court from publishing opinions dissenting and concurring in the denial of rehearing en banc. Although none has issued this term, last term witnessed two, both by Judge Janice Rogers Brown. And one need look no earlier than 2010 and the opinions in United States v. Jones and Al-Bihani v. Obama to find every active judge on the D.C. Circuit writing or joining an opinion for or against denial of rehearing en banc.
Although there are good reasons for restraint in dissents of all kinds, a strict policy of muzzling dissenters upon the denial of en banc rehearing would be hard to justify. The underlying panel decision is a pronouncement of the court that is binding on all of its members whether or not they sat on the panel that decided the case. Judges who disagree with the decision have no better opportunity to register a dissent than they do upon the order denying rehearing.
- Alex Kozinski & James Burnham, I Say Dissental, You Say Concurral, 121 Yale L.J. Online 601 (2012)
- Indep. Ins. Agents of Am. v. Clarke, 965 F.2d 1077, 1080 (D.C. Cir. 1992) (Randolph, J.)
- United States v. Shaygan, No. 09-12129 (Pryor, J., respecting the denial of reh’g en banc)
- Nat’l Petrochemical & Refiners Ass’n v. EPA, No. 10-1070, 643 F.3d 958 (April 22, 2011) (Brown, J., joined by Sentelle, C.J.) (dissenting from the denial of reh’g en banc)
- Forsyth Mem’l Hosp., Inc. v. Sebelius, No. 09-5448, 2011 U.S. App. LEXIS 16855 (D.C. Cir. Aug. 16, 2011) (Brown, J., dissenting from the denial of reh’g en banc)
- David Lat, Grammer Pole of the Weak: ‘I Respectfully Dissental’, Above the Law (Sept. 9, 2011) (“Although I am a huge fan of Chief Judge Kozinski. . . . I am not a huge fan of ‘dissental’ and ‘concurral,’ for a few reasons: [¶] 1. They aren’t pretty words; in fact, they’re downright ugly. . . . [¶] 2. The terms they seek to replace — “dissent from denial of rehearing en banc” and “concurrence in denial of rehearing en banc” — might be clunky, but appropriately so. They’re long and complicated, in a manner that captures the full glory, majesty, and complexity of federal appellate procedure. . . . [¶] There are other options. For example, taking a page from Supreme Court procedure, one could use acronyms.”)
- David Lat, Quote of the Day: In Defense of Dissentals, Above the Law (April 11, 2012)
(H/T Howard Bashman at How Appealing)