The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
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.