Nearly two years ago, Amy Hocevar and I posted a video on our blog discussing the “ins and outs” of seeking en banc review of panel decisions in the Sixth Circuit and highlighting the various pitfalls to avoid.  Our presentation was very well-received, as witnessed by the frequent phone calls and emails seeking advice on whether a particular client should file an en banc petition.  Inevitably, clients want to know how likely it is that the Sixth Circuit will grant en banc review.  If you’re considering whether to file an en banc petition in the Sixth Circuit, here is what you need to know.

Basic Standards for Seeking En Banc Review

Rule 35 of the Federal Rules of Appellate Procedure (“F.R.A.P.”) is the general rule that governs en banc determination.  Although many parties file en banc petitions, very few petitions are granted, and that is the result of the very high threshold that must be satisfied.  Rule 35(a) provides that en banc hearing 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.  Rule 35(b), in turn, provides that an en banc petition must begin with a statement that either (1) the panel decision conflicts with a decision of the U.S. Supreme Court or of the Sixth Circuit such that en banc review is necessary to ensure uniformity, or (2) the proceeding involves a question of exceptional importance—for example, where the proceeding involves an issue on which the panel decision conflicts with the authoritative decisions of other Circuit Courts that have addressed the issue.

Additionally, Sixth Circuit Rule 35 (which parallels Federal Appellate Rule 35) emphasizes the extraordinary nature of a petition for rehearing.  It specifically provides that an en banc petition is an extraordinary procedure intended to bring to the attention of the entire court a precedent-setting error of exceptional public importance or an opinion that directly conflicts with Supreme Court or Sixth Circuit precedent.  What this means is that error correction (of fact or law) is not a matter for rehearing en banc (though it could be a matter for a panel rehearing, which is governed by Rule 40).

As Sixth Circuit Judge Karen Moore emphasized in her oft-cited dissent in Bell v. Bell, 512 F.3d 223, 250 (6th Cir. 2008), a panel “getting it wrong” does not qualify as a matter exceptional public importance.  In addition, as Judge Sutton has explained, there are institutional reasons for limiting en banc review because the process entails a majority of circuit judges sitting in judgment of two or three of their colleagues.  Judge Sutton observed that saving en banc review for “the rarest of cases . . . reflects a sound, collegial attitude.”  Mitts v. Bagley (Case No. 05-4420, 6th Cir. Dec. 3, 2010) (Sutton, J., concurring) (citation omitted).  Ultimately, then, the focus of an effective en banc petition should not be simply convincing a majority of the active judges that an issue was wrongly decided.  It must do more.

The irony, though, is that if your case is exceptionally exceptionally important, it is possible that the Sixth Circuit may simply pass on rehearing en banc and let the U.S. Supreme Court weigh in.  As Judge Sutton wrote in concurrence in Mitts: “Sometimes there is nothing wrong with letting the United States Supreme Court decide whether a decision is correct and, if not, whether it is worthy of correction.”  Mitts v. Bagley (Case No. 05-4420, 6th Cir. Dec. 3, 2010) (Sutton, J., concurring) (citation omitted).

On the other side of the spectrum, consider whether it makes sense to go directly from the district court to the en banc court and skip the three-judge panel altogether.   This would be the case if your legal argument is directly foreclosed by a prior panel decision.  (Remember that under 6th Cir. Rule 206(c), a three-judge panel cannot overrule the decision of another panel.).  Under F.R.A.P. 35(c), a petition that an appeal be heard initially en banc must be filed by the date when the appellee’s brief is due.

Practitioner’s Points – Effective En Banc Practice

If you do decide to file an en banc petition, keep in mind these basic practitioner’s points:

(1) An en banc petition must be filed within 14 days after entry of judgment (except in a civil case where the U.S. is a party, in which case the time is 45 days after entry of judgment).  See F.R.A.P. 35(c) and 40(a)(1).  (Query: Does the 45-day rule apply in consolidated appeals where the U.S. is a party in only one of the appeals?)

(2) The page limit for a petition for en banc hearing (or panel rehearing) is 15 pages.  See F.R.A.P. 35(b)(2).  For purposes of the page limit, if a party files both a petition for panel rehearing and a petition for rehearing en banc, they are considered a single document, even if they are filed separately.  See F.R.A.P. 35(b)(3).

(3) Note that opposing parties are not entitled to file a response to an en banc petition unless the court orders a response.  See F.R.A.P. 35(e).

(4) Given that en banc consideration of a case is an extraordinary measure, the filing of an en banc petition is not a prerequisite to the filing of a cert petition.  See 6. Cir. Rule 35(b).

(5) When filing your en banc petition, you must attach a copy of the opinion and final order sought to be reviewed.  The Sixth Circuit ordinarily will not consider a petition that does not conform to this rule.  See 6. Cir. Rule 35(a).

(6) If a rehearing en banc is granted, three things automatically happen: (1) the previous opinion and judgment of the court is vacated, (2) the mandate is stayed, and (3) the case is restored to the Court’s docket as a pending appeal.

Conclusion And Takeaway Point

So there you have it: your guide to en banc practice in the Sixth Circuit.  The takeaway point from all this is that review of a panel decision by the full court en banc is extremely rare.  It truly is an extraordinary measure.  Perhaps not surprisingly, the Sixth Circuit has been trending toward fewer and fewer en banc cases each year, as highlighted by Pierre Bergeron’s numerous posts on the dwindling number of Sixth Circuit en banc cases.  Statistically speaking, parties may have a greater shot at having the U.S. Supreme Court grant their cert petition (the odds are around 1%) than the Sixth Circuit granting their petition for rehearing en banc.  Now you know.