The Dynamics and Determinants of the Decision to Grant En Banc Review

The ability of U.S. Courts of Appeals to control the development of law within their respective circuits has been strained by the practice of divisional sittings, the growing caseload at the circuit court level, the increasing number of judges sitting within each circuit, and the decreasing probability of Supreme Court intervention. The primary method of maintaining coherence and consistency in doctrinal development within a federal circuit is en bane review. Yet, many critics contend that en bane rehearing is a time-consuming, inefficient procedure that fails to serve its intended purpose and too often is abused for political ends. This Article attempts to address these normative arguments over the legitimacy of the en bane process by determining the positive causes of the decision. The Article proposes a hybrid model of the decision to grant en bane review, derived from the legal, attitudinal, and hierarchical theories of judicial behavior, and tests it empirically against nearly 1000 cases from three circuits. The model accurately predicts the decision to grant en bane review in nearly ninety percent of the cases. This Article concludes that three factors-reversal of a lower court or agency ruling, filing of a dissent, and a liberal panel ruling-largely account for which panel decisions will be reheard en bane. The U.S. Courts of Appeals, which effectively have become the courts of last resort for most litigants and the source of doctrinal development for most legal issues,' decide the vast majority of cases by way of panels. * Associate Professor of Law and Adjunct Assistant Professor of Political Science, University of Missouri. B.A., B.S., Southern Methodist University, 1989; J.D., Stanford University, 1992. Earlier versions of this paper were presented at the 1998 Conference on the Scientific Study of Judicial Politics and at the 1998 Meeting of the Law & Society Association. I thank Lee Epstein, Joel Grossman, Chris Guthrie, Valerie Hoekstra, Bruce Kobayashi, Bob Lawless, Leandra Lederman, Ronald Mann, Lynn Mather, Adam Pritchard, Bob Pushaw, Jeff Raehlinski, Michael Solimine, Maxwell Steams, Steve Wasby, and Chris Wells for their thoughtful feedback and guidance. My thanks also to participants in a faculty workshop at George Mason University School of Law for their valuable comments. I am grateful to Mo Mitra-Edwards and Becky Williams for their excellent research assistance. I gratefully acknowledge the generous financial support provided by the Missouri Law School Foundation. The title of this Article is derived from a book chapter on Supreme Court certiorari decisions by Richard L. Pacelle, Jr., The Dynamics and Determinants of Agenda Change in the Rehnquist Court, in Contemplating Courts 251 (Lee Epstein ed., 1995). 1. In the 1996-1997 term, the U.S. Supreme Court decided 101 cases, compared to the more than 25,000 cases decided by the U.S. Courts of Appeals; fewer than 4% of the parties who sought a definitive ruling from the Court by way of a writ of certiorari were able to obtain it. The Supreme Court's 1996 Term, IIl Harv. L. Rev. 51, 435-36 (1997) (reporting Supreme Court figures); 1997 U.S. Jud. Conf. Ann. Rep. Table B-1 (reporting court of appeals figures). As can be seen by comparing these figures, the actual rate of Supreme Court review of lower court rulings is in fact lower than its rate of certiorari grants, as petitions seeking certiorari are filed from only a fraction of circuit court decisions. A study of three circuits estimated that the rate of Supreme Court review of circuit court holdings is only .5%. See Sue Davis & Donald R. Songer, The Changing Role of the United States Courts of Appeals: The Flow of Litigation Revisited, 13 Just. Sys. J. 323, 335 (1988Washington Law Review Vol. 74:213, 1999 Acceptance of the panel practice is in part a product of the availability of review of selected panel rulings by the court's full membership, termed "en banc" review.' At the behest of a judge or a party and with the concurrence of a majority of the circuit's active membership, all active members of the court, as well as any senior judge from the circuit who was a member of the original panel, will sit to decide an appeal en banc. The en banc court's ruling becomes the circuit's decision in the case, and the court vacates any earlier panel decision. Circuit courts rarely invoke the en banc procedure; courts of appeals resolve fewer than one percent of their cases en banc. 5 89); see also J. Woodford Howard, Jr., Courts of Appeals in the Federal Judicial System: A Study of the Second, Fifth, and District of Columbia Circuits xvii, 9-10, 23-56 (1981) (examining role of circuit courts of appeals "[a]s courts of last resort in the vast majority of federal cases, and as primary organs of judicial review of federal administrative agencies"); Donald R. Songer, The Circuit Courts ofAppeals, in The American Courts: A Critical Assessment 35 (John B. Gates & Charles A. Johnson eds., 1991) (discussing methodology and implications of Songer's work with Davis). 2. This Article deals solely with en bane rehearings by U.S. Courts of Appeals of general jurisdiction. The Federal Circuit also has en bane power. Fed. R. App. P. 35. Federal district courts have also heard cases en bane, although very rarely. John R. Bartels, United States District Courts En Banc-Resolving the Ambiguities, 73 Judicature 40, 40 (1989) (identifying en bane hearings in 38 reported decisions and nine unpublished decisions from 1928-1989). State supreme courts that normally sit in divisions also retain the en bane hearing option, as do some state intermediate appellate courts and at least one state trial court. See, e.g., Daniel J. Meador et al., Appellate Courts: Structures, Functions, Processes, and Personnel 397-98 (1994) (discussing varying approaches at intermediate level); A. Lamar Alexander, Jr., Note, En Banc Hearings in the Federal Courts of Appeals: Accommodating Institutional Responsibilities (pt. 1), 40 N.Y.U. L. Rev. 563, 566-67 (1965) (explaining that state supreme courts that normally sit in divisions continue to review certain matters as entire body); John J. Connolly, Comment, Maryland's Right ofin Banc Review, 51 Md. L. Rev. 434 (1992) (describing Maryland's constitutional right to en bane review at trial court level). 3. 28 U.S.C. § 46(c) (1994); Fed. R. App. P. 35. 4. See, e.g., 1st Cir. R. Int. Op. P. X(D); 4th Cir. R. 35(c); 5th Cir. R. 41.3; 6th Cir. R. 14(a); 10th Cir. R. 35.6; 1 1th Cir. R. 35-11. 5. The extremely low relative number of en bane decisions has been observed in studies focusing on different periods spanning the life of the intermediate appellate system. See, e.g., Sheldon Goldman & Tom Jahnige, The Federal Courts as a Political System 23 (3d ed. 1985) (observing that use of en bane procedure is "rare"); Howard, supra note 1, at 42, 193 (reporting that en bane cases comprise fewer than one percent of all cases from 1965-1967); Richard A. Posner, The Federal Courts: Challenge and Reform 133-34 (1996) (reporting that only 78 en bane decisions were rendered out of more than 25,000 decisions on merits in 1993); Sheldon Goldman, Voting Behavior on the United States Courts ofAppeals Revisited, 69 Am. Pol. Sci. Rev. 491, 493 n.7 (1975) (finding that en bane cases amounted to less than 1% of circuit caseload from 1965-1971); Michael E. Solimine, Ideology and En Banc Review, 67 N.C. L. Rev. 29, 46 (1988) (reporting for 1980-1987 period that approximately .5% of caseload of courts of appeals were en bane decisions); Alexander, supra note 2, at 564, 608 (finding that only 423 cases were decided en bane by all circuits from 1940-1964 and that 1.5% of decisions rendered in 1964 were en bane).