Re: En Banc Review

[Sisk, Gregory C.]

Title: Re: En Banc Review

Rule 35 of the Federal Rules of Appellate Procedure states that “[a]n en banc hearing or rehearing is not favored and ordinarily will not be ordered unless:  (1) en banc consideration is necessary to secure or maintain uniformity of the court’s decisions; or (2) the proceeding involves a question of exceptional importance.”  Ultimately, a case worthy of en banc review – that is “of exceptional importance” – is whatever a majority of the active judges in that circuit deem it to be.   With a couple of exceptions or special provisions, the limited en banc panel in the Ninth Circuit – the 11 member panel – is supposed to be selected at random from among the active judges on the circuit.  Ninth Circuit Rule 35-3 provides:  “The en banc court, for each case or group of related cases taken en banc, shall consist of the Chief Judge of this circuit and 10 additional judges to be drawn by lot from the active judges of the Court.”  However, the rule further provides that if an individual judge has not been selected for three successive en banc panels, then that judge is automatically included on the panel of the next such panel.  As insiders on the court, such as former law clerks, can relate, one consequence of the 11 member panel is that it is not unusual for a panel to be made up disproportionately of judges who opposed the en banc hearing and thus who, presumptively, did not agree with the majority of the full court judges that the three-judge panel may have erred.   In theory, and Ninth Circuit Rule 35-3 so provides, a full en banc hearing before all active judges in the circuit could be ordered following a limited en banc hearing, but as I understand it, such has never happened.     -----Original Message----- From: John Noble [mailto:[EMAIL PROTECTED] Sent: Wednesday, September 17, 2003 9:25 AM To: [EMAIL PROTECTED] Subject: Re: En Banc Review   Also, if anyone knows, how do they constitute the 11-member en banc panel. Is it a random selection from the 26 members of the Court. Does the original three-member panel get automatically included?   At 7:03 AM -0400 9/17/03, Robert Justin Lipkin wrote:        What are the requirements (or what triggers) en banc review in the Ninth Circuit?  Are these requirements uniform across the circuits?  As a former federal appellate clerk I should know the answer to this question.  However, with some embarrassment, I confess that I do not and would welcome help from the List.  Thanks. Bobby Lipkin Widener University School of Law Delaware