Yesterday, the Court convened two en banc oral arguments in Rochaw v. Life Insurance Company North America and U.S.A. v. Mateen.   Both cases arose from divided, 2-1, panel decision (interestingly with Judge McKeague in dissent in both cases), helping validate the premise that a divided panel opinion is often a prerequisite to en banc review.  In Rochaw, an ERISA benefits case, the other panel members were a senior judge and a district judge, which are also recognized factors increasing the odds of en banc review.  If you go from the premise that the dissent is often the driving rationale for the Court to accept en banc review, Judge McKeague’s dissent in Rochaw argued that the Court’s expansion of ERISA’s remedial scheme “is contrary to clear Supreme Court and Sixth Circuit precedent.”  In Mateen, a criminal sentencing case, a district judge also was in the majority of that panel decision, and Judge McKeague’s dissent in that case argued that the panel had created a circuit  split with several other circuits.  En banc review continues to be a rarity a the Sixth Circuit, but both of these cases exemplify several of the traits for cases likely to attract the Court’s attention for en banc review.  Both arguments, as might be expected, were fairly active, with ten or eleven different judges asking questions in the first argument (Rochaw).

Another noteworthy piece of news from yesterday was the Court’s scheduling argument in the gay marriage cases that we have been following.  All of the cases are slated for the same day, August 6, with three hours total argument time devoted to the cases.  The Sixth Circuit releases the identity of the panel members two weeks prior to argument, and we will continue to keep you posted as those cases proceed.