On December 7, 2010, the Sixth Circuit granted a rare en banc hearing in Chapman v. United Auto Workers Local 1005 (6th Cir., Case No. 10-3616) (PDF), an appeal involving the administrative relief exhaustion requirement in labor grievances. En banc hearing was granted under Rule 35(a)(1) of the Federal Rules of Appellate Procedure, which permits the Court of Appeals to hear an appeal for the first time with all circuit judges empanelled when “necessary to secure or maintain uniformity of the court’s decisions.”

Following decision by the U.S. District Court for the Northern District of Ohio, plaintiff Brandon Chapman appealed to the Sixth Circuit, basing his assignments of error on two previously decided cases from the Sixth Circuit: Williams v. Molpus, 171 F.3d 360 (6th Cir. 1999), and Burkholder v. United Auto Workers Local 12, 299 Fed. Appx. 531 (6th Cir. 2008) (PDF). The union filed its appellee brief in the matter and, the next day, also filed a petition for hearing en banc (PDF).  In its petition, the union argued that, pursuant to Rule 35(a)(1), the Court should hear the matter en banc and reverse the panel decisions in Molpus and Burkholder because those rulings run contrary to precedent of both the U.S. Supreme Court and the Sixth Circuit. Perhaps the strongest aspect of the union’s petition was the inclusion of a extended quotation by Judge Gilman from the Burkholder decision in which he criticized the Molpus holding — for which he was himself the author — and suggested that “Molpus … be closely scrutinized if the issue comes before a future en banc panel of this court.”  That moment appears to have arrived.

The Court’s decision to grant a rare en banc hearing clearly suggests the possibility that Molpus and Burkholder will be reversed.  Whether it portends more frequent en banc hearings by the Court under Rule 35(a)(1) going into 2011 remains to be seen.