Johanna Schiavoni
Complex Appellate Litigation Group LLPCertified Specialist in Appellate Law
Email: johanna.schiavoni@calg.com
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.