Recently, the Sixth Circuit has handed down decisions in two of the most high-profile cases currently pending in the federal appellate courts. First, as we previously reported, the Sixth Circuit upheld the federal health care statute in the wake of a number of constitutional challenges. Second, a few days later, the Sixth Circuit struck down an affirmative action ban passed by the State of Michigan. Both cases will presumably prompt en banc petitions, and indeed, the Michigan Attorney General has already indicated his desire to petition the Sixth Circuit en banc in the affirmative action case. Under Federal Rule of Appellate Procedure 35, an appellate court may grant rehearing en banc when “the proceeding involves a question of exceptional importance.” “Exceptional importance,” of course, often lies in the eye of the beholder. However, it would be difficult for anyone to argue that neither one of these cases passes that test, regardless of how a judge might define it. So that brings into play the unwritten exception to the exceptional importance prong of Rule 35: if a case is exceptionally exceptionally important, the court might simply pass on en banc and let the U.S. Supreme Court decide it. Although there might be several reasons why a court would turn down an en banc petition in this manner, the chief driver is the wise use of judicial resources. An en banc rehearing consumes a substantial amount of the judicial resources, and it generally generates a multitude of opinions (concurring and dissenting), particularly in the most controversial cases. If it is likely that the U.S. Supreme Court will weigh in, a Sixth Circuit judge might reasonably ask why the full court should devote its resources to hearing another round of the same case. We will continue monitoring these cases for the en banc petitions as well as any further action from the Sixth Circuit.
