A Brief History of Initial En Banc in the Sixth Circuit

Two decade apart, Judge Moore has been on both sides of the issue.

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Federal Rule of Appellate Procedure 35(c) permits "a petition that an appeal be heard initially en banc." This process allows a court of appeals to bypass the usual three-judge panel, and proceed to hear a case before the entire en banc court. Initial en banc, as it is called, is rare. In recent years, perhaps the most high profile initial en banc came from Richmond. In April 2017, the Fourth Circuit has granted initial en banc to consider President Trump's travel ban.

The procedure is somewhat controversial, because the full court can hopscotch over the usual three-judge panel–and in turn, leapfrog the three-judge panel assignment. And this procedure must be especially harsh when you are on that three-judge panel. That background brings us to a recent controversy in the Sixth Circuit. (For purposes of full disclosure, I clerked for Judge Danny Boggs from 2011-12).

In October 2020, Senior U.S. District Judge Bernard Friedman declared unconstitutional a Tennessee law that imposed a 48-hour waiting period for abortions. (Judge Friedman, who was appointed to the Eastern District of Michigan, sits in the Middle District of Tennessee as a visiting judge).The Tennessee Attorney General sought a stay of the injunction pending appeal. In February 2021, a divided three-judge panel denied the stay. Judges Moore and White concluded that the law was inconsistent with Casey and Whole Woman's Health.

Judge Thapar dissented from the denial of the stay. He contended that the 48-hour waiting period was valid under Casey. Judge Thapar wrote that "Given the weighty interests involved in this case, the majority's failure to issue a stay merits immediate correction either by our court or a higher one." In other words, the en banc court should jump on the issue as soon as possible. Judge Thapar acknowledged that "the rules are confusing on whether a party may seek en banc review of a stay order." (I have written about this issue in the 5th Circuit). But, Judge Thapar explained, there are two options: "(1) any active judge may seek sua sponte en banc review, and (2) a party may seek initial hearing en banc on the merits." 

Tennessee chose option #2, and filed a petition for initial hearing en banc. Yesterday, the Sixth Circuit granted that petition.

The court having received a petition for initial hearing en banc, and the petition having been circulated to all active judges of this court, and a majority of judges of this court having favored the suggestion, It is ORDERED that the petition be, and hereby is, GRANTED

Judge Moore dissented from the grant of initial hearing en banc. I don't think I have ever seen an order like this. I searched for the phrase "dissenting from the grant of initial hearing en banc" and found no other hits. She wrote:

Yet a majority of the Sixth Circuit judges in regular active service have voted to hear this case initially en banc. Because that decision lacks a principled basis and tarnishes this court's reputation for impartiality and independence, I dissent. . . . By granting that petition, a majority of this court has sent a dubious message about its willingness to invoke that extraordinary—and extraordinarily disfavored—procedure in ideologically charged cases. 

Let's see. Dissenting Sixth Circuit judge charges majority with "tarnishing" the court's reputation by engaging in en banc antics for an "ideologically charged" case. Stop me if you've heard this one before.

Newer readers of this blog may be unfamiliar with the complicated history of the University of Michigan Affirmative Action litigation in the Sixth Circuit. Fortunately, my former boss, Judge Boggs wrote a useful appendix to bring us up to speed. (Judge Boggs actually made his clerks translate the appendix into Latin as part of the interview process; kidding, but you believed it for a moment didn't you!?). And this history involves both Judge Moore and, however coincidentally, Judge Friedman!

In March 2001, Judge Friedman declared unconstitutional the affirmative action policy at the University of Michigan Law School. And the court granted an injunction to block the University's policy. The following month, Judge Friedman denied a stay pending appeal. Shortly thereafter, the University of Michigan sought a stay from the Sixth Circuit. And, the University also filed a motion for initial en banc. Even then, such a motion was rare. At the time, Judge Boggs observed, "I have been on the court for 16 years, and I do not recall an initial hearing en banc in my tenure."  I'll let you read through Judge Boggs's lengthy, appendix (in English) to learn about how the panel assignments were made. But what's important for our purposes is that Judge Moore was on the three judge panel that granted the stay pending appeal. And she also voted to grant initial hearing en banc. Her actions directly bypassed a three-judge panel from hearing the matter initially. And the en banc court acted while a Moore-entered stay of district court injunction was in place.

In Grutter, Judge Moore wrote a concurrence in response to Judge Boggs's procedural appendix. She cited (of all cases) Planned Parenthood v. Casey to charge that his dissent would weaken the Court's source of "democratic legitimacy." She added, "Judge Boggs and those joining his opinion have done a grave harm not only to themselves, but to this court and even to the Nation as a whole."

There is some bitter history on the Sixth Circuit en banc court. By my count, only three active judges from Grutter remain: Moore, Cole, and Clay. Two decades later, the tables have turned.

NEXT: "[1] Cohabitating While Unmarried, [2] Unfamiliarity with [Shofars], and [3] Being Silly Are All Lawful Acts"

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  1. For those of us who are familiar with the politics but don’t have a scorecard, please include one…

  2. The basic problem with initial en bancs it is clearly a tool that is used when judges of one ideology know they control a majority and don’t want to take the chance on a panel affirmance that might keep a law in place they dislike.

    And when thought of that way, it’s just the worst sort of nakedly political judging.

    A great example of it was the Eleventh Circuit’s ruling in the Florida felons voting case. There wasn’t any LEGAL reason not to go through a panel first. Those guys just wanted to prevent some felons from voting for the Democrats in the 2020 election. That was the only “need” for speed.

    Personally, I think the Rules committee should get rid of initial en bancs entirely. If there’s a need for quick, decisive action, there are other procedures available. But en bancs should be rare and confined to issues where the full court has to resolve a conflict in authority.

    1. The basic problem with initial en bancs it is clearly a tool that is used when judges of one ideology know they control a majority and don’t want to take the chance on a panel affirmance that might keep a law in place they dislike.

      Assuming there is such a majority, don’t they have just as much power to simply rebar the case en banc through the “normal” process, sua sponte if necessary? Doesn’t seem like an especially powerful tool.

  3. I mean, circuit courts sit in three-judge panels only for convenience and efficiency. The court as a whole exercises appellate authority, and if a majority believes the law should be interpreted a certain way, they have no obligation to let a panel establish circuit precedent the other way just because of the luck of the draw. It’s absurd to say that en banc consideration tarnishes the court’s reputation for independence — independence from what? And saying it’s “politically charged” is no different from saying “the majority of the court thinks this is important” — which is exactly what en banc consideration is there for.

    1. I think that’s precisely wrong. Three judge panels are not simply a matter of convenience and efficiency; they are the only appeal you get as of right in a court case. Their work is extremely important and absolutely there is nothing wrong with it being precedential. Heck, DISTRICT court cases, decided by SINGLE judges, are relied on as precedents.

      If an en banc court doesn’t like a decision, well, they review every one. They can even request en banc review sua sponte. The problem is time and looking bad.

      It’s “politically charged” because they only do this when they want to prevent a panel from making a decision in the first instance. And any judge who thinks THAT’s important, but who doesn’t think the normal mechanisms for expedited reviews, stays, etc., are sufficient to deal with that, is basically doing politics, not law.

      There’s no limit to your principle. If the US Supreme Court wanted to interfere with trial court rulings in a politically charged case, and 5 justices wanted to, I suppose it could. But that would be grossly political- and so is this.

      1. Ummm, isn’t a single hearing by an appeals court the right, whether that is initially by a three judge panel or the full court simply a matter of detail? That the circuit court uses panels simply to be able to handle the number of cases rather than it being any sort of right to a panel hearing (as opposed to a hearing before the full court).

        If the three judge panel were actually a right then initial en banc wouldn’t even be an option.

    2. Yeah, I’m with you on this. Your chance of success on appeal in many circuits, particularly circuits with sharp ideological differences like the Sixth and Ninth, often depends on which three judges make up your panel. That’s not really a fair system (at least if you adhere to the view that the law is the law). Circuits should be more willing to take cases en banc to ensure that like cases are decided alike and to prevent ideologically aligned panels from slipping decisions past the goalie, so to speak.

      I don’t personally agree with the result the en banc court here is sure to reach, and so I sympathize with Judge Moore, but I can’t fault the procedure.

  4. I think this was unwise on both Tennessee’s and the 6th Circuit’s part.

    Chief Justice Roberts seems to have convinced Kavanough and Barrett that the legitimacy of the Supreme Court requires regular order and not appearing to rush to overturn precedents in matters like abortion.

    So this move on the 6th Corcuit’s part may delegitimize this case as a vehicle for the Supreme Court to reconsider anything. It would have been better to take this case in regular order, first have the panel decide and then decide whether to take it up en banc.

    The one or two people who pay any attention to my comments will remember that I have consistently criticized the Supreme Court’s abortion jurisprudence. But litigants and lower courts have no choice but to follow the Supreme Court’s direction here. And the Court, or at least the swing votes who will decide if the court makes any major chamge in direction or not, has made clear that rushing to judgment on this issue is a no-no.

  5. This sounds a lot like the Newsom case from last week. A State pushes either all the way up to or over the line (depending on your POV) protecting a Constitutional right and the courts are tied up on the question of injunctive relief.

  6. “Politically charged” translates to “the other side is doing this and it means my side is going to lose….”

  7. If it’s going en banc after the panel gets it “wrong”, and the panel is likely to get it wrong, might as well go en banc initially.

  8. As I think I’ve mentioned before on this blog, Danny Boggs and I were college classmates. When I was President of the Young Republicans, Danny was 1st VP. Our faction on the executive committee was one vote short of a majority, but Danny’s command of Robert’s Rules got us several wins and close ties. I would recommend that you follow Danny’s lead on a tough legal issue unless you are confident that you are as smart as he is (unlikely) and you’ve done your homework.

    1. TBF he did hire Josh Blackman as a law clerk, but bonus dormitat Homerus.

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