The Volokh Conspiracy
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Are Opinions Respecting En Banc Denials "Offensive to Our System of Panel Adjudication"?
The judges on the U.S. Court of Appeals for the Sixth Circuit split over whether they should write about the reasons for their splitting over en banc review.
Today the U.S. Court of Appeals for the Sixth Circuit denied rehearing en banc in Mitchell v. City of Benton Harbor, a case in which a divided panel concluded that Benton Harbor residents could sue the city and city officials for violating their substantive-due-process right to bodily integrity for failing to mitigate and adequately address lead contamination in the local water system. Judge Moore wrote the original panel opinion, joined by Judge Cole. Judge Larsen wrote separately, concurring in part and dissenting in part.
Today, Judge Larsen dissented from the courts denial of a petition for rehearing en banc, joined by Judges Kethledge, Thapar, Bush, Nalbandian, Readler, and Murphy. This dissent prompted a statement from Judge Moore, decrying the growing practice of dissents and other opinions or statements respecting en banc denials. (In this regard, Judge Moore echoed some concerns raised by Judge Wynn on the Fourth Circuit several years ago.) Judge Moore's opinion, in turn, prompted a second dissent from the en banc rehearing denial by Judge Readler, joined by Judge Bush, expressly addressing the question of whether there are two many opinions respecting the denial of rehearing en banc. (Answer: No.).
Judge Larsen's dissent begins:
The court concludes that several City of Benton Harbor officials plausibly violated city residents' clearly established substantive due process right to bodily integrity. How? Each official is alleged to have engaged in slightly different conduct. But to take one, consider the case of Mayor Marcus Muhammad. At a press conference, he informed residents that the water in some city homes had dangerous levels of lead, and he advised them that they could work with the City to test their water. He also urged them not to panic; and that, according to the court, crossed a clearly established constitutional line because it "undermined" the rest of the message. Mitchell v. City of Benton Harbor, 137 F.4th 420, 437 (6th Cir. 2025). In other words, the court strips Muhammad of qualified immunity for not delivering the warning with the (now) constitutionally required tone of alarm.
Muhammad's failure to speak with sufficient alarm is in no way "conscience shocking"
behavior that violates the Constitution. And until today, no case has come close to holding that it is. Accordingly, Muhammad is entitled to qualified immunity.The court's conclusion to the contrary brazenly defies Supreme Court precedent, which
alone merits en banc review. And the importance of the question at issue—the constitutional liability of government officials responding to naturally occurring environmental crises—deepens the need for the full court's consideration of this case. I thus respectfully dissent from the denial of rehearing en banc.
Judge Moore's opinion concurring in the denial (and responding to Judge Larsen) begins:
There is a rising trend in our circuit of publishing separate statements when rehearing is denied after a poll of the en banc court. I have serious concerns about this practice. In this case, the opinions of the majority and the dissent have already been fully and carefully explained. Drafting CliffsNotes versions of our views is not only unnecessary, but it is also offensive to our system of panel adjudication. "The trust implicit in delegating authority to three-judge panels to resolve cases as they see them would not mean much if the delegation lasted only as long as they resolved those cases correctly as others see them." Issa v. Bradshaw, 910 F.3d 872, 877–78 (6th Cir. 2018) (Sutton, J., concurring in the denial of rehearing en banc). By accumulating votes for or against the positions articulated in the panel opinions, we cast doubt on circuit precedent, erode our faith in the panel system, and give rise to our own "shadow docket." But when, as here, the dissenting judge accuses the panel majority of "brazenly def[ying] Supreme Court precedent," Principal Dissental at 10, I cannot allow that accusation to go unanswered. See United States v. New York, New Haven & Hartford R.R., 276 F.2d 525, 553–54 (2d Cir. 1960) (statement of Friendly, J.), overruled in part, Chappell & Co. v. Frankel, 367 F.2d 197 (2d Cir. 1966). So, I write in response to re-explain the panel majority's reasoning.
This case concerns a lead-water crisis in Benton Harbor, Michigan, which played out in the wake of the highly publicized water crisis in Flint, Michigan. In October 2018, routine water testing revealed that Benton Harbor's municipal water supply was tainted with dangerous quantities of lead. See Mitchell v. City of Benton Harbor, 137 F.4th 420, 425 (6th Cir. 2025). As is well known, lead is a toxic metal that is particularly hazardous to children. Id. Even low-level exposure can cause lifelong consequences. Id. Despite these serious risks, and with the situation in Flint barely in the rearview mirror, Plaintiffs allege that Benton Harbor City officials encouraged residents to drink water that they knew was contaminated with lead, leading hundreds of children to be exposed to lead and suffer symptoms of lead poisoning. See id. at 428–29, 437–38. Because this would clearly violate those individuals' constitutional right to bodily integrity, the panel majority allowed the case against the City officials to proceed in the district court past a motion to dismiss. I concur in the court's decision to deny rehearing en banc.
Judge Moore's opinion prompted a response from Judge Readler:
I join fully in Judge Larsen's dissent. Our concurring colleague's broader concern over separate writings at the en banc stage, Concurring Op. 3, ironically enough, prompts me to add one more writing to the mix.
Our colleague has "serious concerns" over what she sees as the "rising trend in our circuit of publishing separate statements when rehearing is denied" by the en banc court. Id. If past practice is any indicator, our colleague's distaste for separate writings, dissents from the denial of rehearing en banc in particular, appears to be a very recent phenomenon. [Lengthy string cite omitted.] It is also difficult to reconcile with the current arc of legal discourse.
Debate over weighty issues is the heart and soul of the legal profession. In nearly all respects, we encourage the exchange of ideas. For lawyers and litigants, their efforts benefit from legal analysis by peers and judges alike, all of which helps shape legal practice and strategy going forward. See Georgia v. Public.Resource.Org., Inc., 590 U.S. 255, 288 (2020) (Thomas, J., dissenting) (explaining that the existence of multiple opinions helps readers "understand[] the reasoning that animates the rule" and thus "provides pivotal insight into how the law will likely be applied in future judicial opinions"). The same is true for judges, whose "legal analysis" is likewise "elevate[d]" by "healthy and respectful discussion about important ideas." United States v. Boler, 115 F.4th 316, 333 (4th Cir. 2024) (Quattlebaum, J., dissenting). After all, in ultimately
resolving the difficult legal questions put before us, we customarily are aided by more thought and inspection, not less.That is what separate writings—concurrences, dissents, concurrals, dissentals, and the like—aim to achieve. They flesh out legal issues beyond what prior opinions have done, either reinforcing earlier conclusions or raising questions over them. These writings thus "serve an important function and," for that reason, "are taken seriously by courts, the public, the academy, and the legal profession." Alex Kozinski & James Burnham, I Say Dissental, You Say Concurral, 121 Yale. L.J. Online 601, 607 (2012). Indeed, contrary to our colleague's concern about "erod[ing] faith in the panel system," Concurring Op. 1, the practice of writing at the en banc stage in fact increases our Court's legitimacy: "It does honor to the law, promotes justice, and serves the interests of an informed public when citizens learn that appellate judges have given difficult and important cases exacting scrutiny—not just one judge or even the three-judge panel, but an entire court of appeals." Kozinski & Burnham, supra, at 612. Few jurists would understand all of this better than our concurring colleague, who has contributed as much to the legal discourse in our Circuit as has anyone over the last three decades.
True, in some instances an en banc–stage writing may reiterate points in an underlying panel opinion. See Concurring Op. 1 (critiquing separate writings that are "CliffNotes versions" of panel opinions). . . . Yet even then, the writing serves an important function: it allows other judges apart from those randomly assigned to the panel to join in the effort, which further informs issues in the current case, to say nothing of the next one. See Kozinski & Burnham, supra, at 604 (defending the legitimacy of
"off-panel judge[s]" writing at the en banc stage). The esteemed Judge J. Harvie Wilkinson summed up the en banc process exactly this way. "Judges vote on th[e] [en banc] poll, and judges are entitled to explain their reasons for that vote. Giving reasons is what we do. Reasoning adds to judicial transparency; it does not detract from it. And debate on issues of legal and public importance is to be welcomed, not disapproved." Doe v. Fairfax Cnty. Sch. Bd., 10 F.4th 406, 414 (4th Cir. 2021) (order) (Wilkinson, J., dissenting from denial of en banc rehearing).Members of the Supreme Court understandably hew to this same practice. At the certiorari stage, justices will sometimes craft separate opinions expressing their views on why a case should (or should not) have been accepted for review, views that often inform related cases going forward. . . . see also Eugene Gressman et al., Supreme Court Practice § 5.5, at 330–31 (9th ed. 2007) (noting, nearly two decades ago, the rise in "the practice of publicly recording dissents from the denial of certiorari" and cataloguing the "[m]any different purposes" these writings serve, including providing "signals to the bar" or "to the litigants").
But there is one more reason why these writings are valued: The Supreme Court relies on them in overseeing our legal system. The Supreme Court faces a daunting task. Among all of the cases in the federal courts, it must select the most deserving for review. See Sup. Ct. R. 10 ("A petition for a writ of certiorari will be granted only for compelling reasons."). To do so, it relies on the development of legal opinions across the "inferior courts." U.S. CONST., art. III, § 1. As cases "percolate[]" in those courts, jurists add their "independent evaluation" of the issues presented, meaning that when the Supreme Court eventually is asked to review those issues, it "has the benefit of the experience of those lower courts." See Samuel Estreicher & John E. Sexton, A Managerial Theory of the Supreme Court's Responsibilities: An Empirical Study, 59 N.Y.U. L. Rev. 681, 716 (1984). And that percolation process, it is well understood, informs the Supreme Court's decisionmaking, both which cases to decide, and how to decide them. . . .
Separate writings in the courts of appeals, including at the en banc stage, are critical pieces to this puzzle. In case after case, the Supreme Court has cited those writings and explained how they informed the Supreme Court's review process. Examples from just the last two Supreme Court terms abound. . . .
In so doing, the Supreme Court often highlights the number of judges who joined the
writing, which I take to reflect the weight justices place upon these efforts in the appeals courts. . . . A notable example on this front is the Supreme Court's recent opinion in Grants Pass, which lays out in detail how the Supreme Court views separate writings at an appeals court's en banc stage:The city sought rehearing en banc, which the court denied over the objection of 17 judges who joined five separate opinions. Judge O'Scannlain, joined by 14 judges, criticized Martin's "jurisprudential experiment" as "egregiously flawed and deeply damaging—at war with constitutional text, history, and tradition." Judge Bress, joined by 11 judges, contended that Martin has "add[ed] enormous and unjustified complication to an already extremely complicated set of circumstances." And Judge Smith, joined by several others, described in painstaking detail the ways in which, in his view, Martin had thwarted good-faith attempts by cities across the West, from Phoenix to Sacramento, to address homelessness.
144 S. Ct. at 2214 (citations omitted). In particular, the separate en banc–stage writings of our colleagues on the Ninth Circuit highlighted both the repeat-player legal doctrines commonly at issue in that circuit and the damaging practical consequences flowing from those doctrines, all of which likely informed the Supreme Court's ultimate resolution of the case. As this and other cases reflect, "the jurisprudential benefits that come with" writing separately at the en banc stage "more than merit a continuing and vibrant community of dissental writing." Diarmuid F. O'Scannlain, A Decade of Reversal: The Ninth Circuit's Record in the Supreme Court Through October Term 2010, 87 Notre Dame L. Rev. 2165, 2178 (2012).
Much more could be said on the topic, but the point seems easy enough to understand. Most of us welcome, indeed encourage, the exchange of ideas, the Supreme Court included. Perhaps one who does not want a panel opinion placed in the spotlight might bristle at colleagues adding their dissenting voices, as a collection of judges, led by Judge Larsen, have done here. See Jonathan H. Adler, Are There Too Many Dissents from Denial of En Banc Petitions?, Volokh Conspiracy (Aug. 31, 2021), https://perma.cc/228V-E5TX ("I get that judges do not like to be criticized, and they like even less to be overruled. And if a judge's overall judicial philosophy is out-of-step with that of the Supreme Court, such reversals may be more common. Yet if such reversals are a problem, it seems the better course would be for circuit courts to decide cases in accord with prevailing legal principles than to complain about dissents from denial of en banc review."); see also Kozinski & Burnham, supra, at 604 (describing the practice of limiting nonpanel participation at the en banc stage as "the judicial equivalent of the fox guarding the henhouse"). Happily, that sentiment appears to be a minority one in our Circuit.
Also of note, today the SIxth Circuit also denied rehearing en banc in C.S. v. McCrumb. Judge Clay authored an opinion concurring in the denial, joined by Judge Stranch; Judge Gibbons concurred in the denial of panel rehearing and a statement respecting the denial of rehearing en banc; and Judge Readler delivered a separate statement respecting the denial of the petition for rehearing en banc, joined by Judges Thapar and Bush.
