Traditionally, the Sixth Circuit hears en banc cases twice a year, in early June and in December. Last week was the week when the Sixth Circuit generally holds its June en banc session. However, the court did not have a single en banc case on its docket for the June sitting. Apparently, the court had granted en banc in one case but had to “un banc” the matter because of a recusal of a Sixth Circuit judge that left the court without a majority favoring en banc review. The lack of an en banc case for the June sitting illustrates the difficulty of securing en banc review at the Sixth Circuit. Generally, the circuit averages around six to eight en banc cases per year, but perhaps this year will be even less than that. The lack of an en banc case also is noteworthy relevant to the recent discussions over potential disharmony at the Sixth Circuit. One would expect that if the Sixth Circuit judges were internally at odds with one another, it would precipitate a greater, rather than fewer, number of en banc cases. We will certainly keep our eyes out to see how many cases are slated for the en banc hearing in December.
