Inside the Ninth Circuit's en banc process

Have you ever wondered how the Ninth Circuit's en banc process really works? Here's a peek behind the curtain.

These insights and strategic tips were discussed at a Jan. 21 program hosted by the U.S. Court of Appeals for the Ninth Circuit and its Appellate Lawyer Representatives Committee, the Federal Bar Association - San Diego Chapter, and the San Diego County Bar Association.

San Diego-based Ninth Circuit Judges John Owens and Patrick Bumatay shared their insights and different approaches to en banc proceedings. They were joined by Paul Keller from the Ninth Circuit Clerk's office, a staff attorney who has assisted in coordinating the Court's en banc process for more than 20 years.

Keller set the stage with some background, mechanics (consult Fed. R. App. P. 40), and internal processes governing the Court's review and determination of petitions for panel rehearing and rehearing en banc.  

Petitions for panel rehearing are governed by Rule 40, which requires a showing of an error of law or fact that affected the outcome. If a hearing is granted, the most likely outcome is for the panel to amend or supersede its prior panel opinion; it rarely results in a different outcome.

Petitions for rehearing en banc are also governed by Rule 40 (formerly in Rule 35) and the companion Ninth Circuit rules. To qualify for en banc review, the petition must show that the decision of the three-judge panel conflicts with "a decision of the United States Supreme Court," "an authoritative decision of another United States court of appeals," or "a decision of the court to which the petition is addressed" and consideration by the full court is "necessary to secure or maintain uniformity of the court's decisions" or "the proceeding involves one or more questions of exceptional importance." Rule 40(b)(2)(A)-(D).

En banc rehearing is rare. In calendar year 2024, 625 en banc petitions were filed, 29 cases were called for an en banc vote, and nine votes succeeded.

Historically, to be successful, cases have been characterized by the following:

The three-judge panel's decision presented a clear and irreconcilable conflict with Ninth Circuit law;

A panel member suggested rehearing en banc;

The panel's opinion creates an inter-circuit split or places the Ninth Circuit in the minority where there is a conflict among circuits; or

There is a strong likelihood the Supreme Court will grant certiorari if the case is not taken en banc. 

Another factor that increases the likelihood of a successful en banc call is if the three-judge panel opinion is written broadly - and thus will impact (and potentially complicate) a large number of future appeals. 

If a case is reheard en banc, it will be decided by a panel of 11 Ninth Circuit judges that always includes the Chief Judge. The remaining 10 judges are drawn randomly from the pool of active judges. A senior judge who was on the original panel also can elect to be eligible for the en banc court.

Here are some do's and don'ts of en banc practice:

Petition stage. When you're seeking rehearing en banc:

Don't file a petition for panel rehearing or rehearing en banc just to reargue the merits of your appeal.

Don't file a response unless ordered to do so by the Court. But if the Court requests a response, file one.

Do show that the case is a good "vehicle" for en banc review (or if opposing en banc review, show it is not a good vehicle - even if it raises an important issue).

Do consider what success looks like. Maybe success is drawing a dissent from denial of rehearing, which can help set up the case for a cert petition or keep the issue percolating until there is a future case that's a better vehicle.

Do consider seeking support. Because it's rarely done, it's one factor that may get the court's attention and show the broader importance of the issue. 

Do use effective headings so that the Court can quickly scan your Table of Contents and understand why this case is important. Avoid generic headings like "this case conflicts with Circuit precedent" or "this case creates an inter-circuit split" or "did not follow Supreme Court authority." Tell the Court what the issue is and why it meets the Rule 40 test.

The Court has a nuanced internal voting process. If a majority of the active judges of the Ninth Circuit vote affirmatively to rehear a case en banc, the Chief Judge will issue an order scheduling the case for further proceedings. The Ninth Circuit meets for an en banc calendar four times per year.

If an en banc vote fails, the Chief Judge will issue an order and the panel retakes control of the case. It's possible there may be changes to the panel opinion and/or a dissent from denial of rehearing en banc.

Merits briefing stage. If your case is voted to be reheard en banc:

Do keep in mind that if en banc rehearing is granted, the entire case is reheard - not just the issues on which review is sought.

Do file updated briefs. The en banc panel is likely to start its case review with the panel's opinion. So, it's critical to have supplemental briefing. If the Court doesn't order it, ask to file it. This ensures your briefing is current and addresses the prior panel opinion. (Note: the Fifth Circuit has an automatic supplemental briefing rule.)

Do keep in mind that cases that go en banc are complex and consequential. Because there's already a judicial opinion at issue, there also are more moving parts. And winning requires persuading more judges.

Oral argument. An en banc oral argument is 30 minutes per side and includes an 11-judge panel. To effectively utilize your time:

Do keep in mind that even with 30 minutes per side, that's less than three minutes per judge. Keep your responses succinct.

Do prepare just a few key points to make. Plan to spend most of the time addressing the Court's questions. Conducting a moot argument to prepare and anticipate questions will be very helpful.

Do review prior en banc oral arguments to better understand how the arguments unfold. Videos of arguments are available on the Court's website and YouTube channel.

Judges Owens and Bumatay both said they find en banc oral argument challenging given the limited time per judge. It can be difficult to get questions answered and engage in meaningful follow-up.

Judge Owens plans ahead but generally waits to ask his questions until he's heard from other colleagues. Doing so helps clarify his thoughts.

Judge Bumatay suggested that if counsel is cut off or taken in a new direction, then counsel should try to circle back and follow up. He acknowledged this can be tricky to navigate.

Both judges agreed the most valuable part of the argument is often hearing from their colleagues - the questions they pose and their follow-up.

For context, Judge Owens pointed out that en banc week is always busy for the judges. Arguments occur during the same week as Court meetings, makeup arguments, community obligations, and more. He urged counsel to think strategically about being focused, helpful, and effective at argument.

Post-argument process

When the judges conference, they conduct discussions and vote starting with the most junior judge and moving up in order of seniority with the Chief Judge going last. One of the more junior judges takes notes.

The Chief Judge assigns the majority opinion. If there is a dissent, the senior-most dissenting judge will assign the dissent-writing responsibility. The opinion-writing process can take significant time, given the complexities at issue.

Bonus round -- super en banc proceedings

Did you know there's a "super" en banc process? That's when - after losing before an en banc panel of 11 judges - a party may seek review by all 29 active judges on the Ninth Circuit. 9th Cir. R. 40-3.

Historically, though, only three cases have been called for a super en banc, and none voted to be taken. Judges Owens and Bumatay noted that it likely was not worth it to pursue a super en banc. Instead, if merited, petition the U.S. Supreme Court for certiorari.

In sum, the en banc process is nuanced and requires additional strategic considerations at each stage.