Louisiana SG Seeks Initial En Banc in 5th Circuit On Whether Section 2 of VRA Has Implied Private Right of Action

"Appellants thus seek to advance judicial economy—as this Court has done—through 'initial en banc hearing … without requiring the matter to percolate uselessly through a panel.'"

It is clear enough that the United States can bring suit under Section 2 of the Voting Rights Act. But can private litigants bring such a suit? Nothing in the text of the statute expressly grants that right. Does Section 2 include an implied private right of action? Recently, the Eighth Circuit held that it does not. However, in Robinson v. Ardoin (2023), a panel of the Fifth Circuit disagreed. Last month, the Louisiana Solicior General filed a petition for initial hearing en banc to resolve the split between the Eighth and Fifth Circuits. This petition would have skipped the three-judge panel, which was bound by the circuit precedent. The petition explained that initial en banc would "conserve" the Court's resources:

Panel-stage briefing on this threshold issue also would be pointless under the rule of orderliness. Appellants thus seek to advance judicial economy—as this Court has done—through "initial en banc hearing … without requiring the matter to percolate uselessly through a panel." Williams v. Catoe, 946 F.3d 278, 279 (5th Cir. 2020) (en banc). And if the en banc Court rules in Appellants' favor, that dismissal on clean legal grounds would obviate the need for a panel to spend extraordinary time and resources reviewing the district court's 91-page opinion for alleged Section 2 violations across nearly 150 House and Senate districts.

The clerk informed the SG that he would not circulate the petition to the full en banc court until the merits of the appeal are fully briefed. The United States and the private plaintiffs filed an opposition. Under FRAP 35, oppositions to en banc petitions are only filed after a request from the court. But here, the clerk styled the petition as a "motion for hearing en banc," and the appellees could file an opposition brief.

On May 15, the Louisiana SG filed a "motion for immediate circulation of the petition for initial hearing en banc and to hold briefing schedule in abeyance." Based on a quick search of the Westlaw briefs database, this sort of motion has never been filed before. But the circumstances are somewhat unique. Louisiana argues that it would be a waste of resources to fully brief a complicated case that could be disposed on the private right of action issue--especially where there is a clear circuit split.

The Fifth Circuit has granted initial en banc in a few cases over the years, including Williams v. Catoe (5th Cir. 2020).

Stay tuned.

Comments

[Lee Moore]

So what’s the difference between a petition and a motion ?

Did the clerk err or not ?

[loki13]

Yes, the clerk screwed up.

FRAP 35-
(c) Time for Petition for Hearing or Rehearing En Banc. A petition that an appeal be heard initially en banc must be filed by the date when the appellee's brief is due.

(e) Response. No response may be filed to a petition for an en banc consideration unless the court orders a response.

By improperly treating it as a motion, it allowed a response. But it's not a motion, it's a petition. There is a difference.

[Noscitur a sociis]

Although I've always understood that rule as respondent-protecting—since most petitions are going to be denied, the court will typically take care of that on its own. I've never heard a petition being granted without the court calling for a respones first, so I don't think that part actually prejudices Louisiana. Not circulating the request (whatever it's captioned) to the court for a vote does, though, obviously.

(While the FRAP and most circuits' internal rules discourage en banc requests, I think the Fifth Circuit goes further than most:

THE MOST ABUSED PREROGATIVE - PETITIONS FOR REHEARING EN BANC ARE THE MOST ABUSED PREROGATIVE OF APPELLATE ADVOCATES IN THE FIFTH CIRCUIT. FEWER THAN 1% OF THE CASES DECIDED BY THE COURT ON THE MERITS ARE REHEARD EN BANC; AND FREQUENTLY THOSE REHEARINGS GRANTED RESULT FROM A REQUEST FOR EN BANC RECONSIDERATION BY A JUDGE OF THE COURT RATHER THAN A PETITION BY THE PARTIES.

[Rev. Arthur L. Kirkland]

Which side will the race-targeting vote suppressors and vestigial Republican bigots be on?

[SimonP]

I'm sure Ho will vote in favor, so that he can quickly hold that of course whether Americans are denied the ability to participate in elections on the basis of race should be up to the whims of whoever sits in the President's office and DOJ's available resources.