As we previously reported, the Sixth Circuit did not have an en banc sitting in June of this year, which was somewhat unusual. Based on a recent article in the Michigan Bar Journal, however, this may be part of a trend. The recent article notes that the Sixth Circuit issued only two en banc decisions in 2010. The article cites my 2001 law review article in the Tennessee Law Review (Bergeron, En Banc Practice in the Sixth Circuit: An Empirical Study, 1990-2000, 68 Tenn. L. Rev. 771 (2001)) which noted that in the 1990s, the Sixth Circuit handed down an average of 6.4 en banc decisions per year. Some circuits, like the Second Circuit, almost never hear cases en banc. Is the Sixth Circuit moving in that direction? Although it is too early to tell, there are some indications that the Sixth Circuit may be heading down that path. As we reported back in December, Judge Sutton recently expressed his views on why, even though he disagreed with a particular decision, it did not merit en banc review. The en banc standard in FRAP 35 is certainly malleable, and if the majority of Sixth Circuit judges are now adopting a more restrictive view of what it means for a case to be “exceptionally important” under Rule 35, we may continue to see more sporadic en banc hearings than in previous years.
