The dog that didn't bark: Stealth procedures and the erosion of stare decisis in the federal courts of appeals

Fordham Law Review

Volumn 78, Issue 2, 2009, Pages 713-791

  Sloan, Amy E ^a  

^a UNIVERSITY OF BALTIMORE   (United States)

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EID: 73049087618     PISSN: 0015704X     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (557)

1. See generally William M. Richman & William L. Reynolds, Elitism, Expediency, and the New Certiorari: Requiem for the Learned Hand Tradition, 81 cornell L. Rev. 273 (1996
2. See, e.g., Jeffrey O. Cooper & Douglas A. Berman, Passive Virtues and Casual Vices in the Federal Courts of Appeals, 66 brook. L. rev. 685 (2001
3. Penelope Pether, Sorcerers, Not Apprentices: How Judicial Clerks and Staff Attorneys Impoverish U.S. Law, 39 ariz. St. L.J. 1 (2007
4. Richman & Reynolds, supra note 1. The earliest critique of nonprecedential opinions appeared over thirty years ago.
5. William M. Richman & William L. Reynolds, The Non-Precedential Precedent - Limited Publication and No-Citation Rules in the United States Courts of Appeals, 78 COLUM. L. rev. 1167 (1978)
6. D. H. Ginsburg, D. Falk, The Court En Banc: 1981-1990, 59, Geo. Wash. L. Rev. 1008 (1991)
7. Although informal en banc review is mentioned in legal scholarship from time to time, see, e.g., Douglas H. Ginsburg & Donald Falk, The Court En Banc: 1981-1990, 59 Geo. Wash. L. Rev. 1008, 1042-43 (1991), it has been the subject of only one article
8. Steven Bennett & Christine Pembroke, "Mini" In Banc Proceedings: A Survey of Circuit Practices, 34 Clev. St. L. Rev. 531 (1986).
9. See Amy Coney Barrett Stare Decisis, Due Process 74 U. Colo. L. Rev. 1011 1045 n.136 (2003) (noting the lack of studies tracking use of informal en banc review and opining that it is used infrequently). This form of review is sometimes called "mini" en banc review.
10. See, e.g., United States v. Parkes, 497 F.3d 220, 230 n.7 (2d Cir. 2007)
11. Michel v. INS 206 F.3d 253, 268 n.2 (2d Cir. 2000) (Cabranes, J., concurring). This Article, however, uses the term informal en banc.
12. See infra Part III.B.
13. United States v. Guzmán, 419 F.3d 27, 31 (1st Cir. 2005
14. See infra p. 728, fig. 1 and Part III.B. 1.
15. See infra Part III.b.
16. See infra notes 138-140
17. See infra Part III.b.5.
18. See infra Part II.
19. See infra Part III.A.
20. See infra Part III.B.
21. See infra Part IV.
22. See infra Conclusion.
23. Amy Coney Barrett, Procedural Common Law, 94 Va. L. Rev. 813, 827 (2008
24. Amy E. Sloan, A Government of Laws and Not Men: Prohibiting Non-Precedential Opinions by Statute or Procedural Rule, 79 ind. L.J. 711, 712 n.6 (2004
25. Richard B. Cappalli, The American Common Law Method § 7.01, at 79 (1997)
26. Richard B. Cappalli, The American Common Law Method, at 79 Id. ("[Precedent applies, overall, with equal force in the same court as in its inferiors (excluding the power to overrule)."
27. Hart v. Massanari, 266 F.3d 1155, 1163 (9th Cir. 2001) (noting that federal trial court opinions are not binding precedent
28. 928 F.2d. 1336 (1991)
29. Threadgill v. Armstrong World Indus., Inc., 928 F.2d 1366, 1371 (3d Cir. 1991) (explaining that "there is no such thing as 'the law of the district, '" such that federal district court opinions are not binding in later cases)
30. Charles A. Sullivan, On Vacation, 43 Hous. L. Rev. 1143, 1179 (2006) (noting that federal district court opinions do not bind later courts
31. See, e.g., State Oil Co. v. Khan, 522 U.S. 3, 20 (1997) ("We approach the reconsideration of decisions of this Court with the utmost caution. [b]ut 'fsjtare decisis is not an inexorable command.'"
32. quoting Payne v. Tennessee, 501 U.S. 808, 828 (1991)
33. see also Michael J. Gerhardt, The Power of Precedent 9-14 (2008) (discussing patterns in the U.S. Supreme Court's overruling of its own precedent
34. See, e.g., Colby v. J.C. Penney Co., 811 F.2d 1119, 1123 (7th Cir. 1987) (explaining that vertical stare decisis is the simplest form to apply because it is based on the hierarchical relationship between courts, but that the relationship between a court and its own prior opinions is the most complex
35. Payne, 501 U.S. at 827 (noting that adherence to prior precedent "is the preferred course because it promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process")
36. see also CAPPALLI supra note 16,§§ 7.05-.07, at 80-83 (explaining the purposes of stare decisis).
37. CAPPALLI, supra note 16,§§ 7.15 -.16, at 87-88 ("Without a system of binding precedent lawyers would be encouraged to raise the same questions again and again, adding to the court's already intolerable caseloads."
38. See id. § 7.20, at 90 ("Horizontal precedent applies vigorously and the image of law demands as much. But the need to adjust doctrine to current realities and needs beckons also."
39. See, e.g., Colby, 811 F.2d at 1123 (explaining that opinions of superior courts bind subsidiary tribunals and that, while a court must give considerable weight to its own prior opinions, it "is not absolutely bound by them, and must give fair consideration to any substantial argument that a litigant makes for overruling a previous decision"
40. Eulitt ex rel. Eulitt v. Me., Dep't of Educ. (1991) 386 F.3d 344 2004 349 (1st Cir.) (explaining that, although a justice system based on precedent favors the values of finality, stability, and certainty, stare decisis is not an immutable rule, and panels of a court of appeals have some modest amount of flexibility to reevaluate the circuit's own precedents)
41. See, e.g., Eulitt ex rel. Eulitt v. Me., Dep't of Educ., 386 F.3d 344, 349 (1st Cir. 2004) (explaining that, although a justice system based on precedent favors the values of finality, stability, and certainty, stare decisis is not an immutable rule, and panels of a court of appeals have some modest amount of flexibility to reevaluate the circuit's own precedents); see also Cappalli, supra note 16, § 7.14, at 86 (explaining that stare decisis is a doctrine of "flexible stability, " with the "flex" coming from the power to overrule, and the "stability" from the courts' strong reluctance to do so
42. Carpenters Local Union No.26 v. U.S. Fid. & Guar. Co., 215 F.3d 136, 142 (1st Cir. 2000
43. 419 F.3d 27 (2005)
44. See, e.g., United States v. Guzman, 419 F.3d 27, 31 (1st Cir. 2005) (explaining that later panels are ordinarily bound by prior panel decisions and characterizing this requirement as the "law-of-the-circuit doctrine")
45. Eulitt, 386 F.3d at 349 (explaining that the rule that later panels are bound by earlier panel decisions is "a specialized application of the stare decisis principle"
46. See, e.g., Pointer v. Wilkinson, 502 F.3d 369 (6th Cir. 2007
47. Teva Pharms. USA, Inc. v. Novartis Pharms. Corp., 482 F.3d 1330 (Fed. Cir. 2007)
48. Swann v. S. Health Partners, Inc., 388 F.3d 834 (11th Cir. 2004
49. United States v. Wilkerson, 361 F.3d 717, 732 (2d Cir. 2004
50. United States v Pena-Sarabia, 297 F.3d 983, 989 n.2 (10th Cir. 2002)
51. United States v. Chong, 285 F.3d 343 (4th Cir. 2002)
52. United States v. Buckland, 259 F.3d 1157 (9th Cir. 2001
53. Payton v. Woodford, 258 F.3d 905 (9th Cir. 2001
54. United States v. Pollard, 249 F.3d 738 (8th Cir. 2001)
55. BankBoston, N.A. v. Sokolowski (In re Sokolowski), 205 F.3d 532, 535 (2d Cir. 2000
56. United States v. Cont'l Airlines (In re Cont'l Airlines), 134 F.3d 536 (3rd Cir. 1998
57. Billiot v. Puckett, 135 F.3d 311 (5th Cir. 1998)
58. United States v. Allah, 130 F.3d 33, 38 (2d Cir. 1997
59. In re Smith, 10 F.3d 723, 724 (10th Cir. 1993)
60. Colby, 811 F.2d at 1123
61. United States v. Bryant, 471 F.2d, 1040, 1046 (D.C. Cir. 1972).
62. See, e.g., Gonzalez-Mesias v. Mukasey, 529 F.3d 62, 65 (1st Cir. 2008)
63. Gandara v. Bennett, 528 F.3d 823, 829 (11th Cir. 2008
64. Brubaker Amusement Co. v. United States, 304 F.3d 1349, 1360 (Fed. Cir. 2002)
65. Brooks v. Walls, 279 F.3d 518, 522-523 (7th Cir. 2002
66. E. Pilots Merger Comm. v. Cont'l Airlines, Inc. (In re Cont'l Airlines, Inc.), 279 F.3d 226, 233 & n.4 (3d Cir. 2002)
67. Walker v. S. Co. Servs., 279 F.3d 1289, 1293 (11th Cir. 2002)
68. United States v. King, 276 F.3d 109, 112 (2d Cir. 2002
69. Valentine v. Francis, 270 F.3d 1032, 1035 (6th Cir. 2001
70. Martin v. Medtronic, Inc., 254 F.3d 573, 577 (5th Cir. 2001
71. Nat'l Council of Resistance of Iran v. Dep't of State, 251 F.3d 192, 198 (D.C. Cir. 2001
72. Mentavlos v. Anderson, 249 F.3d 301, 312 n.4 (4th Cir. 2001)
73. In re Grand Jury Subpoenas, 123 F.3d 695,697 n.2 (1st Cir. 1997)
74. See generally Alan R. Gilbert, Annotation, In Banc Proceedings in Federal Courts of Appeals, 37 A.L.R. Fed. 274, § 5 (1978 & Supp. 2008-09) (collecting cases).
75. Fed. Cir. R. 35(a)(1) ("[O]only the court en banc may overrule a binding precedent")
76. 3d Cir. Internal Operating Procedure 9.1 ("It is the tradition of this court that the holding of a panel in a precedential opinion is binding on subsequent panels. Thus, no subsequent panel overrules the holding in a precedential opinion of a previous panel. Court en banc consideration is required to do so.")
77. 6th Cm. R. 206(c) ("Reported panel opinions are binding on subsequent panels. Thus, no subsequent panel overrules a published opinion of a previous panel. Court en banc consideration is required to overrule a published opinion of the court."
78. See Patricia M. Wald, Changing Course: The Use of Precedent in the District of Columbia Circuit, 34 Clev. St. L. Rev. 477, 480 (1986) (explaining that the application of the law of the circuit rule is not as tidy as a simple statement of the rule would suggest
79. Guzman, 419 F.3d at 31 (characterizing itself as "firmly bound" by the court's prior panel opinions and noting that the law of the circuit rule applies to prior panel opinions even when those opinions are closely, but not directly, on point)
80. Wilkerson, 361 F.3d at 732 (stating that if the panel were the first to address the issue presented in the case, it might have reached a different conclusion, but deeming itself bound by prior panel opinions pending overruling by the court en banc or the Supreme Court)
81. Wilson v. Taylor, 658 F.2d 1021, 1034 (5th Cir. Unit B Oct. 1981) ("It is the firm rule of this circuit that we cannot disregard the precedent set by a prior panel, even though we perceive error in the precedent. Absent an intervening Supreme Court decision which changes the law, only the en banc court can make the change.")
82. In re Cent. R.R. Co. of N.J., 485 F.2d 208, 211 (3d Cir. 1973) ("Indeed, it is only through the Court En Banc that precedents established by earlier panel decision may be reexamined."). Indeed, when faced with conflicting circuit precedents, the U.S. Court of Appeals for the Fifth Circuit has disregarded the later case on the ground that the later panel lacked the power to rule in a manner contrary to the earlier opinion
83. Wilson, 658 F.2d at 1035.
84. see also Hernandez v. City of Lafayette, 643 F.2d 1188, 1192-93 (5th Cir. Unit A May 1981) (making the point that a later panel is without power to rule differently than an earlier panel, but determining that intervening superior authority rendered the earlier case invalid).
85. see also Hernandez v. City of Lafayette, 643 F.2d 1188, 1192-93 (5th Cir. Unit A May 1981) (making the point that a later panel is without power to rule differently than an earlier panel, but determining that intervening superior authority rendered the earlier case invalid)
86. Contra Three Buoys Houseboat Vacations U.S.A. Ltd. v. Morts, 921 F.2d 775, 779 (8th Cir. 1990) (determining, when faced with conflicting circuit precedents, that it should follow the earlier panel opinion because it was better reasoned).
87. See, e.g., United States v. Rodriguez, 527 F.3d 221, 224-25 (1st Cir. 2008) ("[T]he law of the circuit doctrine has soft edges; it is 'neither a straightjacket nor an immutable rule.'"
88. (quoting Carpenters Local Union No. 26 v. U.S. Fid. & Guar. Co., 215 F.3d 136, 142 (1st Cir. 2000))). The U.S. Court of Appeals for the Seventh Circuit appears to take the most relaxed view of any of the federal circuits, saying that courts are not absolutely bound by their own prior opinions "and must give fair consideration to any substantial argument that a litigant makes for overruling a previous decision."
89. Colby, 811 F.2d at 1123.
90. See, e.g., United States v. Rodriguez, 527 F.3d 221, 224-25 (1st Cir. 2008) ("[T]he law of the circuit doctrine has soft edges; it is 'neither a straightjacket nor an immutable rule.'"
91. (quoting Carpenters Local Union No. 26 v. U.S. Fid. & Guar. Co., 215 F.3d 136, 142 (1st Cir. 2000))). The U.S. Court of Appeals for the Seventh Circuit appears to take the most relaxed view of any of the federal circuits, saying that courts are not absolutely bound by their own prior opinions "and must give fair consideration to any substantial argument that a litigant makes for overruling a previous decision."
92. Colby, 811 F.2d at 1123.
93. See, e.g., United States v. Rodriguez-Pacheco, 475 F.3d 434, 441 (1st Cir. 2007) (explaining that an exception to stare decisis applies when a prior opinion is undermined by subsequent controlling authority, including a Supreme Court opinion, a circuit en banc opinion, or a statute); Cooper v. Cent. & Sw. Servs., 271 F.3d 1247, 1251 (10th Cir. 2001) (stating that, unless a state's courts have changed the law, a prior panel decision on a question of state law is binding on a later panel); Martin, 254 F.3d at 577 (recognizing that a Supreme Court decision may render a prior panel decision invalid and thus empower a later panel to overrule an earlier panel's opinion); United States v. Doe, 819 F.2d 206, 209 n.l (9th Cir. 1985) (explaining circumstances under which a panel opinion undermined by a later en banc opinion can be reexamined).
94. Miller v. Gammie, 335 F.3d 889 (9th Cir. 2003) (en banc). The opinion holds that neither U.S. Court of Appeals for the Ninth Circuit appellate panels nor district courts within that circuit are bound to follow prior panel or en banc opinions that are "clearly irreconcilable with the reasoning or theory of intervening higher authority."
95. 335 F.3d 889, Id. Interestingly, the court made this change to the law of the circuit rule with a formal en banc opinion.
96. For a discussion of this case, see generally, Recent Cases, 117 Harv. L. Rev. 719 (2003).
97. See, e.g., Eulitt ex rel. Eulitt v. Me., Dep't of Educ, 386 F.3d 344, 350 (1st Cir. 2004).
98. Guzmán, 419 F.3d at 31.
99. Guzmán, 419 F.3d, Id.
100. See supra note 28 (citing cases for the proposition that a federal circuit court sits en banc to overrule a prior panel opinion).
101. For a detailed history of the development of en banc review, see A. Lamar Alexander, En Banc Hearings in the Federal Courts of Appeals: Accommodating Institutional Responsibilities (Part I), 40 N.Y.U. L. Rev. 563, 565-574 (1965);
102. see also Ginsburg & Falk, supra note 3, at 1009-1011 (setting out the history of the development of en banc review).
103. Ginsburg & Falk, supra note 3, at 1009 (quoting Act of Mar. 3, 1891, ch. 517, § 2, 26 Stat. 826, 826).
104. Id. (quoting Act of Mar. 3, 1911, ch. 231, § 118, 36 Stat. 1131).
105. Compare Lang's Estate v. Comm'r, 97 F.2d 867, 869 (9th Cir. 1938) (finding no method of rehearing a case with more than three judges), with Comm'r v. Textile Mills Sec. Corp., 117 F.2d 62, 67-71 (3d Cir. 1940) (determining that the court had the authority to sit en banc), ajf*d, 314 U.S. 326 (1941).
106. 314 U.S. 326.
107. 314 U.S. 326. Id. at 331-335
108. Alexander, supra note 40, at 573.
109. Act of June 25, 1948, ch. 646, 62 Stat. 869, 871 (codified as amended at 42 U.S.C. § 46 (1952));
110. see also Alexander, supra note 40, at 573 (noting that 28 U.S.C. § 46 incorporated the rule from Textile Mills Securities Corp. v. Commissioner); Ginsburg & Falk, supra note 3, at 1011 & n.22 (same).
111. 28 U.S.C. § 46 (2006).
112. Barrett, supra note 15, at 828 ("Courts do not purport to interpret any statutory or constitutional text in the development of [horizontal] stare decisis doctrine.").
113. Id.
114. 345 U.S. 247 (1953).
115. 345 U.S. 247 (1953). Id. at 268.
116. 345 U.S. 247 (1953). Id. at 250.
117. 345 U.S. 247 (1953). Id. (explaining that 28 U.S.C. § 46(c) "neither forbids nor requires each active member of a Court of Appeals to entertain each petition for a hearing or rehearing en banc").
118. Fed. R. App. P. 35.
119. See supra notes 27-39 and accompanying text.
120. Ginsburg & Falk, supra note 3, at 1023. The Advisory Committee notes on the 1998 amendments to Federal Rule of Appellate Procedure (FRAP) 35 discuss this issue at length: Intercircuit conflict is cited as one reason for asserting that a proceeding involves a question of "exceptional importance." Intercircuit conflicts create problems. When the circuits construe the same federal law differently, parties' rights and duties depend upon where a case is litigated. Given the increase in the number of cases decided by the federal courts and the limitation on the number of cases the Supreme Court can hear, conflicts between the circuits may remain unresolved by the Supreme Court for an extended period of time. The existence of an intercircuit conflict often generates additional litigation in the other circuits as well as in the circuits that are already in conflict. Although an en banc proceeding will not necessarily prevent intercircuit conflicts, an en banc proceeding provides a safeguard against unnecessary intercircuit conflicts. Some circuits have had rules or internal operating procedures that recognize a conflict with another circuit as a legitimate basis for granting a rehearing en banc. An intercircuit conflict may present a question of "exceptional importance" because of the costs that intercircuit conflicts impose on the system as a whole, in addition to the significance of the issues involved. It is not, however, the Committee's intent to make the granting of a hearing or rehearing en banc mandatory whenever there is an intercircuit conflict. The amendment states that "a petition may assert that a proceeding presents a question of exceptional importance if it involves an issue on which the panel decision conflicts with the authoritative decisions of every other United States Court of Appeals that has addressed the issue.".That language contemplates two situations in which a rehearing en banc may be appropriate. The first is when a panel decision creates a conflict. A panel decision creates a conflict when it conflicts with the decisions of all other circuits that have considered the issue. If a panel decision simply joins one side of an already existing conflict, a rehearing en banc may not be as important because it cannot avoid the conflict. The second situation that may be a strong candidate for a rehearing en banc is one in which the circuit persists in a conflict created by a pre-existing decision of the same circuit and no other circuits have joined on that side of the conflict. Fed. R. App. P. 35 advisory committee notes on the 1998 amendment.
121. Policy Statement on En Banc Endorsement of Panel Decisions (Jan. 17, 1996), http://www.cadc.uscourts.gov/internet/home.nsf/Content/VL%20-%20RPP%20- %20Irons%20Footnote/$FILE/IRONS.PDF [hereinafter Policy Statement].
122. Ginsburg & Falk, supra note 3, at 1022.
123. Id. at 1025-1041
124. As the Advisory Committee notes on the 1998 amendments to FRAP 35 explain, Because of the discretionary nature of the en banc procedure, the filing of a suggestion for rehearing en banc has not required a vote; a vote is taken only when requested by a judge. It is not the Committee's intent to change the discretionary nature of the procedure or to require a vote on a petition for rehearing en banc. The rule continues, therefore, to provide that a court is not obligated to vote on such petitions. It is necessary, however, that each court develop a procedure for disposing of such petitions because they will suspend the finality of the court's judgment and toll the time for filing a petition for certiorari. Fed. R. App. P. 35 advisory committee notes on the 1998 amendment.
125. Ginsburg & Falk, supra note 3, at 1012-13.
126. Ginsburg & Falk, supra note 3, at 1012-13; Stephen L. Wasby, The Supreme Court and Courts of Appeals En Bancs, 33 McGeorge L. Rev. 17, 19 (2002).
127. Wasby, supra note 62, at 19.
128. Id.
129. Id. Indeed, if the parties do not request rehearing en banc, they may be asked to brief the issue of whether the case merits en banc review after a judge initiates en banc activity, thereby reversing the typical order of activity in the case. Id. at 19-20.
130. Id. at 20.
131. Id.
132. Id. at 19-20.
133. The determination of what constitutes a majority was handled on a circuit by circuit basis for many years. See Michael Ashley Stein, Uniformity in the Federal Courts: A Proposal for Increasing the Use of En Banc Appellate Review, 54 U. PrTT. L. rev. 805, 815-816 (1993);
134. see also FED. R. App. P. 35 advisory committee notes on the 2005 amendment. The revision of FRAP 35 in 2005 resolved this question in favor of the so-called "case majority" approach.
135. Wasby, supra note 62, at 21.
136. See Admin. Office of the U.S. Courts, 2007 Annual Report of the Director: Judicial Business of the United States Courts 46 tbl.S-1 (2007), available at http://www.uscourts.gov/judbus2007/JudicialBusinespdfversion.pdf (showing fourteen en banc cases decided without oral argument in 2007).
137. The exception is the Ninth Circuit, which by rule provides that en banc review is conducted by eleven of the court's judges: the chief judge and ten additional judges selected at random from among those eligible to participate in the en banc proceeding. 9th Cir. R. 35-3
138. For a discussion of this limited en banc procedure, see Pamela Ann Rymer, The "Limited" En Banc: Half Full, or Half Empty?, 48 Ariz. L. Rev. 317 (2006).
139. See supra notes 57-58 and accompanying text.
140. See, e.g., Saban v. U.S. Dep't of Labor, 509 F.3d 376, 379 (7th Cir. 2007) (noting that the panel opinion, which overruled a prior panel opinion, was circulated to the full court and no eligible judge voted for en banc review);
141. United States v. Brutus, 505 F.3d 80, 87 n.5 (2d Cir. 2007) (noting that a decision abandoning the holding in a prior panel decision was circulated to all active members of the court)
142. United States v. Atencio, 476 F.3d 1099, 1105 n.6 (10th Cir. 2007) (noting that a circuit panel may overrule a decision of a prior panel with the authorization of all active judges on the court)
143. United States v. Southerland, 466 F.3d 1083, 1084 n.l (D.C. Cir. 2006) (noting that the opinion had been circulated to and approved by the full court pursuant to the circuit's informal en banc review procedure)
144. Educadores Puertorriqueños en Acción v. Hernández, 367 F.3d 61, 67 n.2 (1st Cir. 2004) (noting that the opinion was circulated to the active judges on the court and that none "interposed an objection to the panel's overruling of prior circuit precedent")
145. Ginsburg & Falk, supra note 3, at 1015-1016 (comparing the U.S. Court of Appeals for the District of Columbia Circuit informal en banc procedure, which requires approval of a majority of judges, with the Seventh Circuit procedure, which allows a panel to overrule if a majority of judges do not object).
146. See cases cited supra note 74.
147. See, e.g., Saban, 509 F.3d at 379
148. Owens v. United States, 387 F.3d 607, 611 (7th Cir. 2004);
149. Coca-Cola Bottling Co. of N.Y., Inc. v. Soft Drink & Brewery Workers Union Local 812, 242 F.3d 52, 55 (2d Cir. 2001).
150. See, e.g., United States v. Parker, 508 F.3d 434, 436 & n.l (7th Cir. 2007).
151. See, e.g., United States v. Cousins, 455 F.3d 1116, 1121 n.4 (10th Cir. 2006)
152. Zerilli-Edelglass v. N.Y. City Transit Auth., 333 F.3d 74, 81 n.7 (2d Cir. 2003);
153. United States v. Wilson, 169 F.3d 418, 427 n.9 (7th Cir. 1999).
154. Watts v. Burkhart, No.89-6160, 1991 WL 261224 (6th Cir. Dec. 13, 1991), vacated and reh g en banc granted, 978 F.2d 269 (6th Cir. 1992) (en banc).
155. Bell v. United States, 521 F.2d 713, 715 n.3 (4th Cir. 1975).
156. Three Buoys Houseboat Vacations U.S.A. Ltd. v. Morts, 921 F.2d 775, 779 n.5 (8th Cir. 1990);
157. Firestone Tire & Rubber Co. v. Risjord (In re Multi-Piece Rim Prods. Liab. Litig.), 612 F.2d 377, 378 n.2 (8th Cir. 1980);
158. United States v. Kasto, 584 F.2d 268, 272 n.4 (8th Cir. 1978).
159. Milofsky v. Am. Airlines, Inc., 404 F.3d 338, 346 n.19 (5th Cir. 2005);
160. United States v. Vasquez-Olvera, 999 F.2d 943, 943 n.* (5th Cir. 1993)
161. Estate of Farrar v. Cain, 941 F.2d 1311, 1316 n.22 (5th Cir. 1991)
162. United States v. Edelman, 873 F.2d 791, 795 n.l (5th Cir. 1989);
163. Dornbusch v. Comm'r, 860 F.2d 611, 612 n.l (5th Cir. 1988);
164. Koonce v. Quaker Safety Prods. & Mfg. Co., 798 F.2d 700, 706 n.8 (5th Cir. 1986);
165. Affholder, Inc. v. S. Rock, Inc., 746 F.2d 305, 311 (5th Cir. 1984).
166. See infra Appendix A for lists of cases by circuit. The figures reported here vary considerably from those of the only other compilation of informal en banc cases. See Bennett & Pembroke, supra note 3. That study, however, dates from 1986. To find the informal en banc cases, I used "opinion /10 circulat!" as a word search in the Westlaw database for each individual circuit (e.g., CTA1, CTA2, etc.). This is because virtually all of the cases in which informal en banc review is used contain language saying that the opinion was circulated to the full court. The search overall was too broad in that it retrieved some number of cases that did not concern informal en banc procedures, such as those involving circulation of publications or circulatory disorders. In the Seventh Circuit, which has established its process by rule, I also searched by rule number.I also Shepardized and KeyCited cases cited as authority for the procedure to find additional cases in which the procedure was invoked. Finally, I searched by West key number. Under the topic Courts, key number 90(2), cases discussing the scope of the law of the circuit rule are collected. I reviewed all of these cases for any informal en banc cases. Notwithstanding these multiple search techniques, it is possible that my research missed informal en banc cases in which no language indicates that the opinion was circulated, in which the terms opinion and circulate appeared more than ten words apart from each other, and which were not located by alternative means. If anything, this search may undercount slightly the number of informal en banc cases. For the formal en banc cases, I used statistics compiled by the Administrative Office of the U.S. Courts. I aggregated those cases decided by the en banc court with additional briefing and oral argument with those decided without additional briefing or oral argument to compile the total number of cases considered in formal en banc proceedings. The Administrative Office of the U.S. Courts compiles en banc statistics only as far back as 1970-1971. To locate earlier en banc cases for the U.S. Courts of Appeals for the Second and Seventh Circuits, I searched for "in banc" or "en banc" with a date restriction. This search was overinclusive in that it retrieved every case in which those terms appeared (such as those citing en banc cases) as well as cases decided en banc. Nevertheless, because it is possible that some en banc cases lack the term en banc and indicate en banc status only through the list of judges hearing the case, this search may have failed to identify some en banc cases decided before the Administrative Office began compiling statistics.
167. Appendix A lists informal en banc cases by circuit along with the total number issued. Statistics on formal en banc opinions are available for 1997 through 2007 from the Administrative Office of the United States Courts by viewing Table S.l in each year's Annual Report of the Director. See Judicial Business of the United States Courts, http://www.uscourts.gov/judbususc/judbus. html (last visited Oct. 12, 2009). The Administrative Office's statistics for 1970-1996 are on file with the Fordham Law Review, and those for earlier years were compiled manually as noted in note 83, supra.
168. Sloan, supra note 15, at 712-713
169. Barrett, supra note 15, at 825.
170. Gary Lawson, Controlling Precedent: Congressional Regulation of Judicial Decision-Making, 18 Const. comment. 191, 212-214 (2001);
171. Gary Lawson, Mostly Unconstitutional: The Case Against Precedent Revisited, 5 Ave Maria L. Rev. 1 (2007);
172. see also Sloan, supra note 15, at 713 (discussing the use of local procedural rules to authorize nonprecedential opinions).
173. See infra notes 138-142 and accompanying text.
174. See infra notes 115-120 and accompanying text.
175. See supra p. 728, fig. 1.
176. Watts v. Burkhart, No.89-6160, 1991 WL 261224 (6th Cir. Dec. 13, 1991), vacated and reh g en banc granted, 978 F.2d 269 (6th Cir. 1992) (en banc).
177. United States v. Bucuvalas, 909 F.2d 593 (1st Cir. 1990).
178. 962 F.2d 120 (1st Cir. 1992).
179. 977 F.2d 1 (1st Cir. 1992).
180. As of 2007, twelve cases cited one or both of the opinions as authority for informal en banc review: Educadores Puertorriqueños en Acción v. Hernández, 367 F.3d 61, 67 n.2 (1st Cir. 2004);
181. Crowe v. Bolduc, 365 F.3d 86, 89 n.l (1st Cir. 2004);
182. Carpenters Local Union No.26 v. U.S. Fid. & Guar. Co., 215 F.3d 136, 138 n.l (1st Cir. 2000);
183. Hollingsworth & Vose Co. v. A-P-A Transp. Corp., 158 F.3d 617, 620 n.5 (1st Cir. 1998);
184. Grant-Chase v. Comm'r, N.H. Dep't of Corr., 145 F.3d 431, 435 n.3 (1st Cir. 1998);
185. Kelley v. Airborne Freight Corp., 140 F.3d 335, 357 n.15 (1st Cir. 1998);
186. In re Grand Jury Subpoenas, 123 F.3d 695, 697 n.2 (1st Cir. 1997);
187. Ionics, Inc. v. Elmwood Sensors, Inc., 110 F.3d 184, 187 n.3 (1st Cir. 1997);
188. United States v. Indelicate, 97 F.3d 627, 629 n.2 (1st Cir. 1996);
189. N.L.R.B. v. Hosp. San Rafael, Inc., 42 F.3d 45, 51 n.l (1st Cir. 1994);
190. Wright v. Park, 5 F.3d 586, 591 n.7 (1st Cir. 1993);
191. United States v. Rivera, 994 F.2d 942, 951 (1st Cir. 1993).
192. 962 F.2d at 124 n.4.
193. 909 F.2d at 598 n.9.
194. 977 F.2d at 9 n.5. (citing Gallagher, 962 F.2d at 124 n.4).
195. United States v. Freeman, 357 F.2d 606 (2d Cir. 1966);
196. United States v. Malafronte, 357 F.2d 629 (2d Cir. 1966). The two cases were companion appeals.
197. United States v. Taylor, 464 F.2d 240 (2d Cir. 1972).
198. In re Phillips, 510 F.2d 126 (2d Cir. 1975).
199. Boothe v. Hammock, 605 F.2d 661 (2d Cir. 1979)
200. Grimes v. United States, 607 F.2d 6 (2d Cir. 1979);
201. Lee v. Joseph E. Seagram & Sons, Inc., 592 F.2d 39 (2d Cir. 1979).
202. See supra p. 728, fig. 1.
203. For example, United States v. Brutus, 505 F.3d 80, 87 n.5 (2d Cir. 2007)
204. cites United States v. Gonzales, 420 F.3d 111, 132 n.l8 (2d Cir. 2005)
205. United States v. Mincey, 380 F.3d 102, 103 n.l (2d Cir. 2004), without explanation upon invoking the procedure
206. Gonzales, in turn, cites Mincey and United States v. Crosby, 397 F.3d 103, 105 n.l (2d Cir. 2005), to invoke the procedure, again without explanation. Crosby cites no authority for the procedure
207. Crosby, 397 F.3d at 105 n.l.
208. Mincey cites Tesser v. Board of Education, 370 F.3d 314, 320 n.3 (2d Cir. 2004)
209. Adeleke v. United States, 355 F.3d 144, 155 n.9 (2d Cir. 2004), with no explanation. Tesser also cites Adeleke, among other cases, Tesser, 370 F.3d at 320 n.3, and so on. The trail of unexplained citations leads back to other unexplained citations, but nowhere is any justification for or explanation of the purpose of informal en banc review provided.
210. See, e.g., Crosby, 397 F.3d at 105 n.l
211. United States v. Walker, 353 F.3d 130, 134 n.2 (2d Cir. 2003), vacated on other grounds, Nnebe v. United States, 534 F.3d 87 (2d Cir. 2008);
212. New Pac. Overseas Group (U.S.A.) Inc. v. Excal Int'l Dev. Corp., 252 F.3d 667, 670 n.l (2d Cir. 2001);
213. United States v. Mapp, 170 F.3d 328, 338 n.15 (2d Cir. 1999).
214. See, e.g., Zerilli-Edelglass v. N.Y. City Transit Auth., 333 F.3d 74, 81 n.7 (2d Cir. 2003).
215. 505 F.3d 80 (2d Cir. 2007).
216. Id. at 87 n.5 (quoting United States v. Wilkerson, 361 F.3d 717, 732 (2d Cir. 2004)) (additional citations omitted).
217. 746 F.2d 305 (5th Cir. 1984).
218. Id. at 311.
219. See, e.g., Dornbusch v. Comm'r, 860 F.2d 611, 612 n.l (5th Cir. 1988) (recognizing that one panel cannot overrule another, formally circulating the opinion with a notation regarding the panel's proposed departure from prior circuit precedent, and deeming lack of objection or request for en banc review as authorization to depart from the prior opinion);
220. Koonce v. Quaker Safety Prods. & Mfg. Co., 798 F.2d 700, 706 n.8 (5th Cir. 1986) (recognizing that one panel cannot overrule another even on questions of state law in diversity cases but treating lack of objection or request for rehearing en banc as authorization to depart from a prior opinion).
221. See, e.g., Milofsky v Am. Airlines, Inc., 404 F.3d 338, 346 n.19 (5th Cir. 2005);
222. United States v. Vasquez-Olvera, 999 F.2d 943, 943 n.* (5th Cir.1993)
223. Estate of Farrar v. Cain, 941 F.2d 1311, 1316 n.22 (5th Cir. 1991). The source of this policy is not clear. The only reference in the Fifth Circuit's Local Rules and Internal Operating Procedures to policies relating to conflicts with prior circuit precedent concerns description of the bases for en banc review, 5th Cir. R. 35, and criteria for publication of opinions, 5th Cir. R. 47.5.
224. United States v. Brown, 411 F.2d 930, 934 n.5 (7th Cir. 1969).
225. See, e.g., Korman v. United States, 486 F.2d 926, 932 n.ll (7th Cir. 1973);
226. United States v. Nordlof, 440 F.2d 840, 845 n.10 (7th Cir. 1971)
227. vacated, 454 F.2d 739 (7th Cir. 1971) (relying on intervening Supreme Court authority
228. Chi. & Nw. Ry. Co. v. United Transp. Union, 422 F.2d 979 (7th Cir. 1970).
229. It is unclear exactly when the rule was promulgated. The first reference to it in an opinion was in 1977. Zeigler Coal Co. v. Local Union No. 1870, 566 F.2d 582, 585 n.** (7th Cir. 1977). A copy of the local circuit rules containing rules effective July 1, 1976, includes rule 16(e). Practitioner's Handbook for Appeals to the United States Court of Appeals for the Seventh Circuit 127 (1981 ed.) (on file with the Fordham Law Review). Thus, it appears that the rule was promulgated sometime in 1976.
230. 7th Cir. R. 16(e), in Practitioner's Handbook, supra note 115, at 127.
231. 7th Cm. R. 40(f), in Practitioner's Handbook for Appeals to the United States Court of Appeals for the Seventh Circuit 126 (1987 ed.) (on file with the Fordham Law Review).
232. Historical research into local circuit rules is difficult because earlier versions are rarely archived. The current version of the rule appears in Seventh Circuit Local Rule 40(e). Cases began referring to Rule 40(e) instead of Rule 40(f) in 1996.
233. See, e.g., Hogan v. McBride, 74 F.3d 144, 147 (7th Cir. 1996). Thus, the
234. 7th Cm. R. 40(e). One interesting aspect of this rule is its placement within the local rules. Federal Rule of Appellate Procedure 40 and 7th Circuit Local Rule 40 both concern panel rehearings, not rehearing en banc. It seems unusual that a provision authorizing informal en banc review to overrule prior precedent would be included with a rule on panel rehearing instead of being included with 7th Circuit Local Rule 35, governing en banc review.
235. See, e.g., Spiegla v. Hull, 371 F.3d 928, 942 n.7 (7th Cir. 2004);
236. United States v. Mitrione, 357 F.3d 712, 718 n.2 (7th Cir. 2004)
237. vacated on other grounds, 543 U.S. 1097
238. Gibson v. West, 201 F.3d 990, 994 n.3 (7th Cir. 2000).
239. See, e.g., Colby v. J.C. Penney Co., 811 F.2d 1119, 1123 (7th Cir. 1987) (stating that a court is "not absolutely bound by [its own prior decisions], and must give fair consideration to any substantial argument that a litigant makes for overruling a previous decision").
240. See, e.g., Ali v. Gonzales, 502 F.3d 659, 661 n.l (7th Cir. 2007) (four judges voted to rehear the case en banc)
241. Owens v. United States, 387 F.3d 607, 611 (7th Cir. 2004) (three judges voted to rehear the case en banc)
242. Smith v. Office of Civilian Health & Med. Program of Uniformed Health Servs., 97 F.3d 950, 950 n.l (7th Cir. 1996) (four judges voted to rehear the case en banc);
243. Lester v. City of Chicago, 830 F.2d 706, 713 n.6 (7th Cir. 1987).
244. Walker v. O'Brien, 216 F.3d 626, 640 (7th Cir. 2000) (Easterbrook, J., Posner, C.J., & Manion, J., dissenting from denial of rehearing en banc)
245. French v. Duckworth, 178 F.3d 437, 448 (7th Cir. 1999) (Easterbrook, J., joined by Posner, C.J., & Manion, J., dissenting from denial of rehearing en banc), overruled by Miller v. French, 530 U.S. 327 (2000).
246. EEOC v. Gaddis, 733 F.2d 1373 (10th Cir. 1984).
247. United States v. Flowers, 464 F.3d 1127, 1130 n.l (10th Cir. 2006);
248. Amoco Prod. Co. v. Heimann, 904 F.2d 1405, 1414 n.8 (10th Cir. 1990);
249. Gaddis, 733 F.2d at 1377 n.3
250. 476 F.3d 1099 (10th Cir. 2007).
251. Id. at 1105 n.6 (citing United States v. Meyers, 200 F.3d 715, 721 n.3 (10th Cir. 2000)).
252. 200 F.3d 715.
253. United States v. Meyers says only this about its use of informal en banc review: "This opinion has been circulated to all active members of this court, and it is their unanimous decision to overturn the following point of law articulated in" two prior cases.
254. Id. at 716 n.3.
255. See supra notes 92-98 and accompanying text.
256. 569 F.2d 114 (D.C. Cir. 1977). That decision announced a new evidentiary standard in rape cases. It simply included a general notation that the opinion rejected the evidentiary standard applied in some earlier, unspecified opinions and was, therefore, circulated to full court, which voted unanimously against en banc review
257. Id. at 119 n.l8
258. 670 F.2d 265 (D.C. Cir. 1981).
259. Id. at 266-267
260. Id. at 267-268
261. Id. at 268.
262. Id. at 268 n.l 1.
263. Ginsburg & Falk, supra note 3, at 1015-1016 (internal quotation marks omitted).
264. In re Sealed Case, 181 F.3d 128, 143-44, 146 (D.C. Cir. 1999) (Henderson, J., concurring).
265. Letter from Mark J. Langer, Clerk of Court, U.S. Court of Appeals for the D.C. Circuit, to author (Jan. 18, 2008) (on file with the Fordham Law Review). The Policy Statement on En Banc Endorsement of Panel Decisions is now posted on the court's website. Policy Statement, supra note 58.
266. Policy Statement, supra note 58, at 1.
267. Id.
268. Wald, supra note 31, at 486 n.30.
269. See infra p. 738, fig.2 and Appendix A.
270. See infra Appendix A. Criminal cases are identified by asterisk. Of a total of 428 informal en banc cases (including one each from the U.S. Courts of Appeals for the Fourth and Sixth Circuits), 174 (40.65%) were criminal and 254 (59.35%) were civil.
271. For a list of cases by circuit with their individual categorizations, see Appendix A, infra.
272. See, e.g., Gaertner v. United States, 763 F.2d 787, 788 n.l (7th Cir. 1985) (noting that the opinion was circulated pursuant to the local rules without explaining why);
273. Dickinson v. Heinold Sec, Inc., 661 F.2d 638, 638 n.b (7th Cir. 1981) (noting that the opinion was circulated pursuant to the local rules without explaining why). Most often, these cases were categorized as resolving a question not previously addressed in the circuit because, although not specifically stated in the opinion, that is what they appeared to do.
274. See, e.g., Felzen v. Andreas, 134 F.3d 873 (7th Cir. 1998) (overruling three panel opinions on one issue, overruling a fourth panel opinion on a second issue, overruling a fifth panel opinion that had been undermined by later Supreme Court authority, and creating intercircuit conflicts with the U.S. Courts of Appeals for the Third and Ninth Circuits); Donnelly v. Yellow Freight Sys. Inc., 874 F.2d 402, 402 n.l (7th Cir. 1989) (noting that the opinion both overruled prior circuit precedent and created a conflict with the Ninth Circuit). These cases are categorized as overruling prior panel precedent.
275. For examples compare the following cases. In United States v. Canoy, 38 F.3d 893 (7th Cir. 1994), the court states that it "depart[s] from" a portion of an earlier ruling. Id. at 907 n.l2. Reading the case and reviewing later treatment, it is clear that the earlier case was effectively overruled, so Canoy is categorized as an overruling opinion. By contrast, in Cement Division, National Gypsum Co. v. City of Milwaukee, 31 F.3d 581 (7th Cir. 1994), the court "depart[s] from" a portion of an earlier case. Id. at 586. Reading that case and looking at later treatment, it is clear that the earlier case is still valid and that its language was merely clarified in this opinion. Thus, Cement Division is categorized as resolving a conflict or ambiguity. In Pence v. Rosenquist, 573 F.2d 395 (7th Cir. 1978), the majority states that it is "withdrawing the categorical holding" of a prior case, in part in light of later Supreme Court precedent, id. at 400 n.8, while the dissent characterizes the majority's opinion as a "retreat from" the prior case. Id. at 400 (Pell, J., concurring in part and dissenting in part). Is the earlier decision overruled in part or simply clarified? I characterized the opinion as overruling a case invalidated by intervening authority.
276. Two general decisions I made about categorizing cases are worth noting. One concerns cases challenging criminal sentences imposed under the federal sentencing guidelines after the Supreme Court determined that the guidelines were advisory rather than mandatory in United States v. Booker, 543 U.S. 220 (2005). The federal appellate courts have had to decide a number of cases in which a defendant failed to challenge the sentencing guidelines, was sentenced pursuant to the guidelines, and then appealed the sentence post- Booker on the ground that failure to challenge the guidelines was plain error. See, e.g. United States v. Castillo, 406 F.3d 806 (7th Cir. 2005). This small subset of cases does not always fit neatly into the six categories articulated above, but most are characterized as presenting a question of first impression because of the unique circumstances of each case. Additionally, cases involving the appellate courts' supervisory authority over district courts and attorneys practicing before the federal courts are generally treated as addressing questions of first impression because they state rules or policies where none existed before.
277. Because the Seventh Circuit has used informal en banc review more often than all other circuits combined, the sheer number of opinions means that many of the examples cited throughout this Article come from that circuit. Indeed, the Seventh Circuit's extensive use of informal en banc review provides a case study in both the advantages and disadvantages of regular use of the procedure.
278. See Fed. R. App. P. 35 (setting out criteria for en banc review).
279. For example, the Second Circuit used informal en banc review in United States v. Schwartz, 924 F.2d 410 (2d Cir. 1991), although a footnote indicating that the opinion was circulated to the full court did not explain why. Id. at 414 n.l United States v. Novod, 923 F.2d 970 (2d Cir. 1991), explains that Schwartz and Novod were both circulated to the full court on the question of the proper interpretation of the federal mail and wire fraud statutes. Id. at 973. The opinion goes on to explain that two of the three judges in Novod disagreed with Schwartz but felt bound to follow it based on the outcome of the informal en banc review. Id.
280. See Stephen R. Bamett, From Anastasoff to Hart to West's Federal Appendix: The Ground Shifts Under No-Citation Rules, 4 J. APP. Prac. & process 1, 23-24 (2002) (discussing the potential for judges to use finespun distinctions and aggressive claims of dictum to avoid following prior nonprecedential opinions). Indeed, even in the context of informal en banc review, courts have made questionable characterizations of overruled statements in prior opinions as dictum. Ginsburg & Falk, supra note 3, at 1016 (noting that a statement that determined the outcome of a prior case was characterized as "a 'passing and conclusory remark'" by the informal en banc opinion that overruled the prior case (quoting Hobson v. Wilson, 737 F.2d 1, 16 & n.46 (D.C. Cir. 1984))).
281. See, e.g., Arthur D. Hellman, Breaking the Banc: The Common-Law Process in the Large Appellate Court, 23 Ariz. St. L.J. 915, 942-948 (1991) (discussing Ninth Circuit cases that failed to cite contrary precedent).
282. Wright v. Park, 5 F.3d 586, 590 (1st Cir. 1993) (quoting Ala. Pub. Serv. Comm'n v. S. Ry. Co., 341 U.S. 341, 357 (1951) (Frankfurter, J., concurring)).
283. See Arthur D. Hellman, Jumboism and Jurisprudence: The Theory and Practice of Precedent in the Large Appellate Court, 56 U. Chi. L. Rev. 541, 582-584 (1989).
284. Some informal en banc opinions addressed circuit conflicts directly instead of trying to finesse the language. See, e.g., United States v. Hamilton, 499 F.3d 734, 737 (7th Cir. 2007) (overruling an outlier case, United States v. Bessesen, 445 F.2d 463 (7th Cir. 1971))
285. Meridian Sec. Ins. Co. v. Sadowski 441 F.3d 536 543-43 (7th Cir. 2006) (not overruling any case, but clarifying language from prior opinions that was a source of confusion)
286. Milofsky v. Am. Airlines, Inc., 404 F.3d 338, 346 n.19 (5th Cir. 2005) (circulating an opinion that created a conflict with the Sixth Circuit)
287. Bassett v. Mashantucket Pequot Tribe, 204 F.3d 343, 355 (2d Cir. 2000) (rejecting dictum from Schoenberg v. Shapolsky Publishers, Inc., 971 F.2d 926 (2d Cir. 1992), in favor of the earlier test for jurisdiction in federal copyright claims, as stated in T. B. Harms Co. v. Eliscu, 338 F.2d 823 (2d. Cir. 1964))
288. Byrd v. Reno, 180 F.3d 298, 302 n.* (D.C. Cir. 1999) (circulating the opinion because the holding may be inconsistent with circuit dicta); In re Flannery, 186 F.3d 143 (2d Cir. 1999) (adopting a new policy regarding sanctions for attorney misconduct)
289. Hollingsworth & Vose Co. v. A-P-A Transp. Corp., 158 F.3d 617, 620 (1st Cir. 1998) ("[W]e think it better candidly to disavow the reasoning " of a prior opinion instead of relying on a contrary opinion that was distinguishable from the prior opinion)
290. United States v. Cruz, 156 F.3d 366, 372 n.6 (2d Cir. 1998) (explaining that a prior decision to the contrary was not controlling because the statement was dictum and treating resolution of the case as one of first impression)
291. United States v. Indelicato, 97 F.3d 627, 629 n.2 (1st Cir. 1996) (circulating an opinion for informal en banc review even though an earlier en banc opinion had effectively undermined the panel opinion whose status was at issue)
292. Bohn v. Park City Group, Inc., 94 F.3d 1457, 1460 n.2 (10th Cir. 1996) (circulating an opinion that overruled a case decided in 1953 that had been overruled sub silentio by a later en banc opinion)
293. Lester v. City of Chicago, 830 F.2d 706, 713 (7th Cir. 1987) (explaining that the panel chooses to overrule a prior panel opinion " rather than attempt to distinguish and isolate [the earlier panel opinion] (and engender the confusion that results from having two inconsistent standards govern the same claims)")
294. Irons v. Diamond, 670 F.2d 265, 268 (D.C. Cir. 1981) (rejecting the government's attempt to distinguish two inconsistent cases and resolving the conflict directly)
295. Lee v. Joseph E. Seagram & Sons, Inc., 592 F.2d 39, 44 (2d Cir. 1979) (overruling an outlier case from 1944 inconsistent with later circuit precedent)
296. Bennett & Pembroke, supra note 3, at 558 (explaining that informal en banc review is efficient because it resolves an issue in a single opinion and focuses the court's attention on that issue); Ginsburg & Falk, supra note 3, at 1043 (justifying the use of informal en banc review on efficiency grounds); Wald, supra note 31, at 486 n.30 (noting that informal en banc review is reserved for efficient overruling of precedents that are obsolete or unpopular).
297. Ginsburg & Falk, supra note 3, at 1018-22 (detailing the costs and other burdens associated with formal en banc review); see also Wald, supra note 31, at 482-483
298. Ginsburg & Falk, supra note 3, at 1016-18 ("Harmonious circuit life. depends upon a high degree of mutual trust among the judges, and preferably a healthy respect for each other's intelligence."); id. at 1013 ("The court, like any team, functions best when each member feels responsible to each of the others, and responsible for the performance of the whole.");
299. Wald, supra note 31, at 488.
300. Wald, supra note 31, at 488. See generally Deanell Reece Tacha, The "C" Word: On Collegiality, 56 Ohio St. L.J. 585 (1995).
301. See supra note 62 and accompanying text.
302. Bennett & Pembroke, supra note 3, at 543; Wald, supra note 31, at 488.
303. Ginsburg & Falk, supra note 3, at 1021. Judge Douglas H. Ginsburg and Donald Falk also argue that too little en banc review threatens collegiality by creating the prospect of rogue panels subject only to weak, informal sanctions for deterrence.
304. Id.
305. Patrick J. Schiltz, Much Ado About Little: Explaining the Sturm Und Drang over the Citation of Unpublished Opinions, 62 Wash. & lee l. Rev. 1429, 1483-1484 (2005);
306. Amy E. Sloan, If You Can't Beat 'Em, Join 'Em: A Pragmatic Approach to Nonprecedential Opinions in the Federal Appellate Courts, 86 Neb. l. Rev. 895, 937 (2008). Schiltz describes judicial concerns about uses of nonprecedential opinions in the context of opposition to FRAP 32.1, which eliminated citation restrictions on nonprecedential opinions: Several judges who oppose Rule 32.1 have told me privately that what really concerns them is not that unpublished opinions will be cited, but that courts will eventually be forced to treat unpublished opinions as precedential. The courts of appeals have issued hundreds of thousands of unpublished opinions, and judges have no idea what is in them.Judges are terrified that they will wake up one day and find themselves bound by this mountain of unpublished opinions. Schiltz, supra, at 1483. Requiring courts to use the en banc procedure to correct every mistake in nonprecedential opinions issued over the years would create decades of work.
307. Id. at 1484
308. See Sloan, supra note 164, at 930 (proposing giving nonprecedential opinions an intermediate "overrulable" status).
309. See infra Part III.B. 1.
310. See infra Part III.B.2.
311. See infra Part III.B.3.
312. See infra Part III.B.4.
313. See infra Part III.B.5.
314. See infra Part III.B.6.
315. See infra Part III.B.7.
316. See supra Part II.B. Although the Seventh Circuit's local rules says its informal en banc procedure is to be used to overrule panel opinions, it does not differentiate among the types of circumstances justifying overruling the way the District of Columbia Circuit's policy statement does. 7TH Cm. R. 40(e). General statements, like those from the U.S. Courts of Appeals for the First Circuit, stating that informal en banc review is to be "in rare instances" when prior precedent is "erroneously decided, " infra note 96 and accompanying text, do not provide meaningful standards governing the use of the procedure.
317. Fed. R. App. P. 35;
318. see supra notes 55-60 and accompanying text.
319. See supra notes 28-35 and accompanying text.
320. See, e.g., United States v. Mitrione, 357 F.3d 712, 718 & n.2 (7th Cir. 2004) (overruling Larrison v. United States, 24 F.2d 82 (7th Cir. 1928))
321. vacated on other grounds, 543 U.S. 1097 (2005);
322. Trailer Marine Transp. Corp. v. Rivera Vazquez, 977 F.2d 1, 9 & n.5 (1st Cir. 1992) (overruling Buscaglia v. Ballester, 162 F.2d 805 (1st Cir. 1947));
323. Cont'l Corp. v. Aetna Cas. & Sur. Co., 892 F.2d 540, 540 ?.* (7th Cir. 1989) (overruling Paddleford v. Fidelity & Casualty Co. of New York, 100 F.2d 606 (7th Cir. 1938), regarding the construction of an exclusion clause in an insurance contract)
324. United States v. Read, 658 F.2d 1225 (7th Cir. 1981) (overruling a 1977 case regarding burden of persuasion on withdrawal from a conspiracy by reconsidering a 1912 Supreme Court case).
325. See. e.g., United States v. Ortiz, 143 F.3d 728, 729 & n.l (2d Cir. 1998) (overruling United States v. Collado, 106 F.3d 1097 (2d Cir. 1997), decided the previous year);
326. Lester v. City of Chicago, 830 F.2d 706, 713 & n.6 (7th Cir. 1987) (overruling Gumz v. Morrissette, 772 F.2d 1395 (7th Cir. 1985), decided two years earlier).
327. United States v. Flowers, 464 F.3d 1127, 1130 n.l (10th Cir. 2006) (overruling seven cases dating back to 1991 concerning whether certain statutory requirements were jurisdictional).
328. Dornbusch v. Comm'r, 860 F.2d 611, 612 n.l (5th Cir. 1988).
329. Spiegla v. Hull, 371 F.3d 928, 941-942 (7th Cir. 2004) (overruling a line of eight prior cases decided between 1987 and 2003 by disavowing "the requirement that a plaintiff alleging First Amendment retaliation has the burden of providing but-for causation").
330. Fed. Sav. & Loan Ins. Corp. v. Ticktin, 832 F.2d 1438 (7th Cir. 1987)
331. rev'd, 490 U.S. 82 (1989)
332. Lorion v. U.S. Nuclear Regulatory Comm'n, 712 F.2d 1472 (D.C. Cir. 1983).
333. United States v. Jacobson, 15 F.3d 19, 21-22 (2d Cir. 1994).
334. Koonce v. Quaker Safety Prods. & Mfg. Co., 798 F.2d 700, 706 n.8 (5th Cir. 1986);
335. Huff v. White Motor Corp., 565 F.2d 104 109-110 & n.7 (7th Cir. 1977).
336. 414 F.3d 783 (7th Cir. 2005).
337. Id. at 783.
338. 746 F.2d 1205 (7th Cir. 1984)
339. overruled by Russ v. Watts, 414 F.3d 783 (7th Cir. 2005)
340. Id. at 1243.
341. 414 F.3d at 784 n.l.
342. Id. at 787-788
343. Id. at 788 (quoting United States v. Hill, 48 F.3d 228, 232 (7th Cir. 1995)). United States v. Hill, the case cited in Russ v. Watts to support the panel's decision to overrule Bell v. City of Milwaukee, is an informal en banc case as well. In Hill, however, the government agreed that the earlier opinion that the panel overruled was erroneously decided and no longer constituted the government's position on the issue. Hill, 48 F.3d at 232. Of course, in Russ, the plaintiffs did not agree with the court's treatment of the earlier case.
344. See supra notes 23-26.
345. Russ, 414 F.3d at 784 n.l.
346. Russ, 414 F.3d at 785-791
347. For another example, see United States v. Nordlof, 440 F.2d 840, 845 n.10 (7th Cir. 1971)
348. 134 F.3d 873 (7th Cir. 1998).
349. It is possible, however, that there was disagreement over the outcome. See infra notes 251-258 (discussing cases in which unanimous votes regarding rehearing en banc masked disagreement on the court).
350. Patterson v. Stovall, 528 F.2d 108 (7th Cir. 1976)
351. Research Corp. v. Asgrow Seed Co., 425 F.2d 1059 (7th Cir. 1970)).
352. Id. at 876 (overruling Tryforos v. Icarian Development Co., S. A., 518 F.2d 1258 (7th Cir. 1975)).
353. Id. at 877 (overruling Snyder v. Smith, 736 F.2d 409 (7th Cir. 1984)).
354. Other examples include Walker v. O'Brien, 216 F.3d 626 (7th Cir. 2000)
355. in which the court used informal en banc review because one portion of the opinion overruled in part a prior panel opinion and two other portions addressed important administrative issues regarding habeas corpus review, Korman v. United States, 486 F.2d 926 (7th Cir. 1973), which overruled three prior panel opinions on two separate issues, and United States v. Cousins, 455 F.3d 1116, 1121 n.4 (10th Cir. 2006), which overruled an unspecified number of cases and listed three as examples of those its ruling invalidated.
356. See supra note 21 and accompanying text.
357. Fed. R. App. P. 35.
358. Wald, supra note 31, at 486 n.30.
359. 902 F.2d 1221 (7th Cir. 1990).
360. Id. at 1225. The panel first traced the origins of the Seventh Circuit's "slight evidence" rule, analyzing the cases on which it was based and explaining the approaches taken by other circuits. Id. at 1225-26. The court then adopted the "substantial evidence" test, explaining why this test was more consistent with Supreme Court precedent
361. Id. at 1227.
362. 371 F.3d 928 (7th Cir. 2004).
363. Id. at 941-42 ("Therefore, we disavow the requirement that a plaintiff alleging First Amendment retaliation has the burden of proving but-for causation as recited in the following cases": Galdikas v. Fagan, 342 F.3d 684, 696 (7th Cir. 2003);
364. Abrams v. Walker, 307 F.3d 650, 654 (7th Cir. 2002)
365. Love v. City of Chicago Board of Education, 241 F.3d 564, 569 (7th Cir. 2001)
366. Thomsen v. Romeis 198 F.3d 1022 1027 (7th Cir. 2000)
367. Johnson v. University of Wisconsin-Eau Claire, 70 F.3d 469 (7th Cir. 1995)
368. O'Connor v. Chicago Transit Authority 985 F.2d 1362, 1368 (7th Cir. 1993)
369. Rakovich v. Wade, 850 F.2d 1180, 1190 (7th Cir. 1988)
370. Button v. Harden, 814 F.2d 382, 383 (7th Cir. 1987)).
371. Id. at 942.
372. 57 F.3d 193, 202 (2d Cir. 1995)
373. overruled on other grounds by Fisher v. Vassar Coll., 114 F.3d 1332, 1340 (2d Cir. 1997) (en banc).
374. 189 F.3d 561, 562-563 (7th Cir. 1999).
375. 712 F.2d 1472, 1478-1479 (D.C. Cir. 1983) (noting the court's inability to reconcile the rationale of two prior opinions with its holding in a third opinion and an administrative agency's interpretation of the law in light of the federal statute conferring jurisdiction).
376. 979 F.2d 575, 577 (7th Cir. 1992).
377. 863 F.2d 1346 (7th Cir. 1988)
378. overruled by Metro. Life Ins. Co. v. Christ, 979 F.2d 575 (7th Cir. 1992)
379. Christ, 979 F.2d at 577-82. The verbiage associated with the overruling of a case is not a perfect proxy for the importance of an issue. Sometimes unimportant issues are complicated and require significant explanation, and sometimes courts gloss over important issues with minimal or cryptic analysis. Nevertheless, when the analysis of an issue spans multiple pages, it suggests that the issue is more involved than the less important issues to which informal en banc review is supposed to be confined.
380. See, e.g., Russ v. Watts, 414 F.3d 783, 785-91 (7th Cir. 2005) (using approximately five and a half pages of analysis to justify overruling a prior panel opinion)
381. United States v. Durrive, 902 F.2d 1221, 1225-1229 (7th Cir. 1990) (using roughly three and a half pages of analysis to resolve a conflict between two lines of authority).
382. 832 F.2d 1438 (7th Cir. 1987)
383. rev'd, 490 U.S.
384. 28 U.S.C. § 1292(b) (2006).
385. 832 F.2d 1438 (7th Cir. 1987)
386. 28 U.S.C. § 1292(b) (2006).
387. 832 F.2d 1438 (7th Cir. 1987)
388. 28 U.S.C. § 1292(b) (2006).
389. 832 F.2d 1438 (7th Cir. 1987)
390. 28 U.S.C. § 1292(b) (2006).
391. For discussion of this and other exceptions to the final order doctrine, see generally Amy E. Sloan, Appellate Fruit Salad and Other Concepts: A Short Course in Appellate Process, 35 U. Balt. L. Rev. 43 (2005).
392. Ticktin, 832 F.2d at 1446 n.3.
393. See Ginsburg & Falk, supra note 3, at 1031-32 & nn. 127-28 (explaining that even opinions that are exceptionally important only to the parties are appropriate cases for formal en banc review); Wald, supra note 31, at 486 n.29 (noting that judges may call for formal en banc review in cases that, although not significant for the development of circuit law, are exceptionally important to the parties).
394. In re Sealed Case, 181 F.3d 128, 146 n.5 (D.C. Cir. 1999) (Henderson, J., concurring).
395. See generally Penelope Pether, Inequitable Injunctions: The Scandal of Private Judging in the U.S. Courts, 56 Stan. L. Rev. 1435 (2004)
396. Richman & Reynolds, supra note 2; Sloan, supra note 15.
397. See generally K.K. DuVivier, Are Some Words Better Left Unpublished?: Precedent and the Role of Unpublished Decisions, 3 J. APP. PRAC. & PROCESS 397 (2001);
398. see also Richman & Reynolds, supra note 2, at 1182-1185
399. During the twelve months ending September 30, 2007, 83.5% of cases terminated on the merits in twelve of the federal circuits were disposed of by unpublished opinion. Admin. Office of the U.S. Courts, 2007 Annual Report of the Director, supra note 71, at 48 tbl.S-3. For these twelve circuits, the percentage ranged from a low of 55% in the Seventh Circuit to a high of 93% in the U.S. Court of Appeals for the Fourth Circuit. Id. The U.S. Court of Appeals for the Federal Circuit does not report the number of nonprecedential opinions it issues to the Administrative Office of the U.S. Courts. See id. One study, however, concluded that the Federal Circuit resolved 77% of its cases from October 1, 1982, through October 23, 2003, with nonprecedential opinions, with annual figures ranging from a low of 62% in 1983 to a high of 84% in 1996
400. Beth Zeitlin Shaw, Comment, Please Ignore This Case: An Empirical Study of Nonprecedential Opinions in the Federal Circuit, 12 Geo. Mason L. Rev. 1013, 1028 (2004).
401. See supra p. 738, fig.2 (Second Circuit chart).
402. See supra p. 739, fig.2 (Seventh Circuit chart). Indeed, the Seventh Circuit has used informal en banc review more times than all of the other circuits combined.
403. Patrick J. Schiltz, The Citation of Unpublished Opinions in the Federal Courts of Appeals, 74 Fordham L. Rev. 23, 73 (2005) (making the "avert their gaze" comment in the context of nonprecedential opinions and FRAP 32.1).
404. See supra notes 164-165 and accompanying text.
405. See supra notes 77-78 and accompanying text.
406. This is most common in the Seventh Circuit. See, e.g., Deppe v. Tripp, 863 F.2d 1356, 1368 ?.* (7th Cir. 1988) (deciding a case with informal en banc review with the entire dissent from denial of rehearing en banc appearing in the footnote); Lester v. City of Chicago, 830 F.2d 706, 713 n.6 (7th Cir. 1987) (dissenting reasoning included entirely within the footnote); Huff v. White Motor Corp., 565 F.2d 104, 109 n.7 (7th Cir. 1977) (dissenting reasoning and a comment from another judge included entirely within a footnote); Calvert Fire Ins. Co. v. Will, 560 F.2d 792, 796 n.5 (7th Cir. 1977) (dissenting view entirely in a footnote)
407. rev'd, 437 U.S. 655 (1978).
408. Again, this is most common in the Seventh Circuit. See, e.g., United States v. West, 670 F.2d 675, 675 ?.* (7th Cir. 1982) (containing a footnote placed in the caption immediately following the date of the opinion providing only as follows: "Pursuant to Circuit Rule 16, this opinion has been circulated among all judges of this Court in regular active service. No judge favored a hearing en banc");
409. Dickinson v. Heinold Sec, Inc., 661 F.2d 638, 638 n.b (7th Cir. 1981) (containing a footnote placed in the caption immediately following the date of the opinion providing only as follows: "Pursuant to Circuit Rule 16(e), this opinion has been circulated among all of the active judges of the court. No judge requested a rehearing en banc").
410. See, e.g., United States v. Hardman, 297 F.3d 1116, 1131 (10th Cir. 2002);
411. Universal City Studios, Inc. v. Corley, 273 F.3d 429, 445 (2d Cir. 2001);
412. Nat'l Foreign Trade Council v. Natsios, 181 F.3d 38, 60 n.17 (1st Cir. 1999);
413. United States v. White, 879 F.2d 1509, 1513 (7th Cir. 1989);
414. United States v. Bentley, 825 F.2d 1104, 1109 (7th Cir. 1987).
415. United States v. Mapp, 170 F.3d 328, 332 n.8 (2d Cir. 1999).
416. Amy E. Sloan, Basic Legal Research: Tools & Strategies 83-84, 99-104 (4th ed. 2009).
417. Id at 84.
418. Compare Ionics, Inc. v. Elmwood Sensors, Inc., 110 F.3d 184 (1st Cir. 1997) (overruling of a prior case by informal en banc review noted in the West editorial summary and headnotes), with Mapp, 170 F.3d 328 (2d Cir. 1999) (overruling of a prior case by informal en banc footnote not noted in the West editorial summary or headnotes).
419. Sloan, Basic Legal Research, supra note 236, at 129.
420. See Sloan, supra note 164, at 925 n.203 (discussing ambiguities in citator treatment descriptions).
421. Pether, supra note 224, at 1438-1439
422. Admin. Office of the U.S. Courts, 2007 Annual Report of the Director, supra note 71, at 90 tbl.B-lA (showing 14, 505 criminal cases out of 38, 740 total, constituting about 37.44% of all cases); Admin. Office of the U.S. Courts, 2006 Annual Report of the Director: Judicial Business of the United States Courts 107 tbl.B-lA (2006), available at http://www.uscourts.gov/ judbus2006/completejudicialbusiness.pdf (snowing 14, 589 criminal cases out of 38, 366 total, constituting about 38.02% of all cases); Admin. Office of the U.S. Courts, 2005 Annual Report of the Director: Judicial Business of the United States Courts 106 tbl.B-lA (2005), available at http://www.uscourts.gov/ judbus2005/appendices/bla.pdf (showing 11, 681 criminal cases out of 35, 141 total, constituting about 33.24% of all cases); Admin. Office of the U.S. Courts, 2004 Annual Report of the Director: Judicial Business of the United States Courts 81 tbl.B-lA (2004), available at http://www.uscourts.gov/ judbus2004/appendices/bla.pdf (showing 10, 217 criminal cases out of 32, 655 total, constituting about 31.28% of all cases); Admin. Office of the U.S. Courts, 2003 Annual Report of the Director: Judicial Business of the United States Courts 75 tbl.B-lA (2003), available at http://www.uscourts.gov/ judbus2003/appendices/bla.pdf (showing 9925 criminal cases out of 33, 419 constituting about 29.69% of all cases).
423. See Douglas H. Ginsburg & Brian M. Boynton, The Court En Banc: 1991-2002, 70 Geo. Wash. L. Rev. 259, 261 tbl.l (2002) (noting the infrequency with which the District of Columbia Circuit heard criminal cases en banc from 1981-2002).
424. Ginsburg & Falk, supra note 3, at 1013; see also supra notes 160-163 and accompanying text.
425. See infra notes 246-250 and accompanying text.
426. Ginsburg & Falk, supra note 3, at 1032-33. If the vote for en banc review were the equivalent of consideration on the merits, reargument and rebriefing would be unnecessary in formal en banc review because the panel's decision and proffered justification for overruling Precedent A'would be sufficient to determine the merits. Id. at 1033.
427. Policy Statement, supra note 58, at 2. Not only must the decision be unanimous among all voting judges, but the total affirmative votes, even including recusals, must constitute an absolute majority of the court's active members. Id.
428. See, e.g., United States v. Goode, 483 F.3d 676, 681 n.l (10th Cir. 2007) (indicating that all judges agreed with the panel's disposition); United States v. Flowers, 464 F.3d 1127, 1130 n.l (10th Cir. 2006) (indicating that each member of the court concurred with the panel's holding); Estate of True v. Comm'r, 390 F.3d 1210, 1226 n.13 (10th Cir. 2004) (indicating that the members of the en banc court unanimously agreed with the panel's disposition).
429. See supra notes 122-123 (citing informal en banc cases from the Seventh Circuit without unanimous acquiescence).
430. Compare Crowe v. Bolduc, 365 F.3d 86, 89 n.l (1st Cir. 2004) (indicating that no judge objected to the panel's disposition of the case), with In re Grand Jury Subpoenas, 123 F.3d 695, 697 n.2 (1st Cir. 1997) (indicating that a majority of the judges approved of the panel's disposition of the case).
431. See, e.g., United States v. Gonzalez, 420 F.3d 111, 132 n.18 (2d Cir. 2005);
432. Schulz v. IRS, 395 F.3d 463, 465 n.l (2d Cir. 2005);
433. Adeleke v. United States, 355 F.3d 144, 155 n.9 (2d Cir. 2004). Occasionally, the Second Circuit will indicate that no judge requested rehearing en banc
434. see, e.g., Zerilli-Edelglass v. N.Y. City Transit Auth., 333 F.3d 74, 81 n.7 (2d Cir. 2003), or that all judges agree with the disposition
435. see, e.g., New pav. Overseas Group (U.S.A.) Inc., v. Excal Int'l Dev. Corp., 252 F.3d 667, 670 n.l (2d Cir. 2001).
436. see, e.g., Zerilli-Edelglass v. N.Y. City Transit Auth., 333 F.3d 74, 81 n.7 (2d Cir. 2003), or that all judges agree with the disposition
437. see, e.g., New pav. Overseas Group (U.S.A.) Inc., v. Excal Int'l Dev. Corp., 252 F.3d 667, 670 n.l (2d Cir. 2001).
438. see, e.g., Zerilli-Edelglass v. N.Y. City Transit Auth., 333 F.3d 74, 81 n.7 (2d Cir. 2003), or that all judges agree with the disposition
439. see, e.g., New pav. Overseas Group (U.S.A.) Inc., v. Excal Int'l Dev. Corp., 252 F.3d 667, 670 n.l (2d Cir. 2001).
440. see, e.g., Zerilli-Edelglass v. N.Y. City Transit Auth., 333 F.3d 74, 81 n.7 (2d Cir. 2003), or that all judges agree with the disposition
441. see, e.g., New pav. Overseas Group (U.S.A.) Inc., v. Excal Int'l Dev. Corp., 252 F.3d 667, 670 n.l (2d Cir. 2001).
442. see, e.g., Zerilli-Edelglass v. N.Y. City Transit Auth., 333 F.3d 74, 81 n.7 (2d Cir. 2003), or that all judges agree with the disposition
443. see, e.g., New pav. Overseas Group (U.S.A.) Inc., v. Excal Int'l Dev. Corp., 252 F.3d 667, 670 n.l (2d Cir. 2001).
444. 476 F.3d 1099 (10th Cir. 2007).
445. Id. at 1105 n.6
446. see also Calvert Fire Ins. Co. v. Will, 560 F.2d 792, 796 n.5 (7th Cir. 1977) (noting that the vote to rehear the case en banc was evenly split)
447. rev'd, 437 U.S. 655 (1978).
448. Atencio, 476 F.3d at 1100 (order denying initial en banc review).
449. Id. at 1108 (Murphy, J., joined by Kelly & Briscoe, JJ., dissenting).
450. 863 F.2d 1356 (7th Cir. 1988).
451. Id. at 1368 n.* (Ripple, J., dissenting from denial of rehearing en banc).
452. Id.
453. Boston and Maine Corp. v. Chicago Pacific Corp., 785 F.2d 562 (7th Cir. 1986), is another example of the ways disagreement creeps into decisions characterized as unanimous. In that case, a footnote (n.*) accompanying the caption of the case states that no judge requested rehearing en banc regarding the overruling of a prior panel bankruptcy opinion in a case related to the case before the court. The majority panel opinion in fact mentions the prior bankruptcy opinion only in note* and in the explanation of the background of the case; it does not analyze or otherwise discuss the case. Id. at 563-64. In an opinion concurring in part and dissenting in part, however, Judge John Coffey states that the majority's holding effectively overrules the prior bankruptcy opinion. Id. at 567 (Coffey, J., concurring in part and dissenting in part). He then states that he agrees that the earlier opinion should be overruled, but that the court should do so overtly, rather than ignoring the prior bankruptcy opinion. Id. Further, although he agrees with one part of the majority's holding, he disagrees with another part of it. Id. The en banc footnote, therefore, does not seem to capture fully the differences of opinion regarding proper disposition of the case that existed even among the members of the three-judge panel.
454. 181 F.3d 128 (D.C. Cir. 1999).
455. Id. at 146 (Henderson, J., concurring) (citations and footnotes omitted); see also United States v. VanMeter, 278 F.3d 1156, 1167 (10th Cir. 2002) (Lucero, J., concurring) (criticizing the majority for failing to seek en banc review before rejecting a prior panel opinion, citing Romano v. Gibson, 239 F.3d 1156 (10th Cir. 2001), which employed informal en banc review to overrule prior circuit precedent); United States v. Castiglia, 894 F.2d 533, 540 (2d Cir. 1990) (Winter, J., concurring in part and dissenting in part) (dissenting from the majority's opinion on the ground that it effectively overrules a prior panel opinion without invoking either formal or informal en banc review), reh g denied, id. (per curiam) (stating that prior to filing the opinion was circulated to all active judges).
456. 345 U.S. 247, 261 (1953)
457. see also Part H.A (discussing the development of formal en banc review procedures).
458. See supra notes 27-30 and accompanying text.
459. Bennett & Pembroke, supra note 3, at 536-37. Even the Seventh Circuit, which has a fairly liberal view of the law of the circuit rule, applies the rule strictly to formal en banc opinions: [N]o matter how many other courts may have reached a conclusion contrary to our own, absent Supreme Court pronouncement to the contrary or legislative revision, a panel of this court is bound by a prior (and recent) decision of the court reached en banc. En banc consideration is required to overrule such a decision.Hence, for purposes of decision by this panel, [a prior formal en banc opinion] states the applicable law, and we must reject respondents' argument that it should be overruled.
460. United States v. Am.-Foreign S.S. Corp., 363 U.S. 685, 689 (1960) (emphasis added).
461. Formal en banc review is not a frequent occurrence in most circuits. See Barren, supra note 3, at 1046 (estimating that the federal appellate courts hear less than one percent of their cases en banc); supra p. 728, fig. 1.
462. Procedural irregularities can also render the status of cases subject to informal en banc procedures uncertain. For example, in one case, a divided panel circulated its opinion to the full court seeking approval to overrule two prior panel opinions. Anschul v. Sitmar Cruises, Inc., 544 F.2d 1364, 1365 n.** (7th Cir. 1976). The full court voted with the panel dissenter not to overrule the cases. Id. The opinion, therefore, which is denominated a per curiam opinion, is written by the original panel's dissenter and is said to represent the views of that judge and the majority of the full court. The two other judges on the panel filed a dissenting opinion. Id. at 1369 (Swygert & Bauer, JJ., dissenting). It is unclear how a panel opinion with two dissenting judges should be treated; presumably, the per curiam "majority" opinion has some force as the opinion of all but two members of the court, especially because it declines to overrule the earlier cases, but this is not clear.
463. Irons v. Diamond, 670 F.2d 265, 268 n.l 1 (D.C. Cir. 1981)
464. Accord Chung v. U.S. Dep't of Justice, 333 F.3d 273, 278 n.* (D.C. Cir. 2003
465. United States v. Rostenkowski, 59 F.3d 1291, 1299 n.* (D.C. Cir.1995).
466. Trailer Marine Transp. Corp. v. Rivera Vazquez, 977 F.2d 1, 9 n.5 (1st Cir. 1992). This notation, that the court is not ruling en banc and does not preclude a suggestion for en banc review, first appears in Trailer Marine Transportation Corp. v. Rivera Vazquez and then in footnotes in later cases.
467. See, e.g., Educadores Puertorriquen̈os en Acción v. Hernández, 367 F.3d 61, 67 n.2 (1st Cir. 2004)
468. Crowe v. Bolduc, 365 F.3d 86, 89 n.l (1st Cir. 2004)
469. Carpenters Local Union No.26 v. U.S. Fid. & Guar. Co., 215 F.3d 136, 138 n.l (1st Cir. 2000).
470. United States v. Brutus, 505 F.3d 80, 87 n.5 (2d Cir. 2007).
471. Dornbusch v. Comm'r, 860 F.2d 611, 612 n.l (5th Cir. 1988)
472. Koonce v. Quaker Safety Prods. & Mfg. Co., 798 F.2d 700, 706 n.8 (5th Cir. 1986)
473. 7TH Cm. R. 40(e).
474. Three Buoys Houseboat Vacations U.S.A. Ltd. v. Morts, 921 F.2d 775, 779 n.5 (8th Cir. 1990).
475. See, e.g., United States v. Allen, 895 F.2d 1577, 1580 n.l (10th Cir. 1990);
476. Accord Reppy v. U.S. Dep't of Interior, 874 F.2d 728, 730 n.5 (10th Cir. 1989);
477. EEOC v. Gaddis, 733 F.2d 1373, 1377 n.3 (10th Cir. 1984).
478. Estate of True v. Comm'r, 390 F.3d 1210, 1226 n.13 (10th Cir. 2004);
479. see also United States v. Flowers, 464 F.3d 1127, 1130 n.l (10th Cir. 2006)
480. United States v. Goff, 314 F.3d 1248, 1250 n.l (10th Cir. 2003)
481. United States v. Pena-Sarabia, 297 F.3d 983, 989 n.2 (10th Cir. 2002)
482. United States v. Atencio, 476 F.3d 1099, 1105 n.6 (10th Cir. 2007).
483. See supra notes 251-254 and accompanying text.
484. See supra Part III.B.7 (discussing the problem of potentially inadequate consideration of informal en banc cases).
485. See Sloan, supra note 164, at 921-922 (discussing the uncertain status of nonprecedential opinions in the District of Columbia Circuit).
486. See, e.g., Nat'l Council of Resistance of Iran v. Dep't of State, 251 F.3d 192, 198 (D.C. Cir. 2001).
487. I have not found cases in which an opinion that uses informal en banc review to overrule a prior panel opinion is itself overruled by a later informal en banc opinion. In Granberry v. Thieret, 823 F.2d 1212, 1214-15 (7th Cir. 1987), the panel declined to overrule a prior panel opinion that had employed informal en banc review to overrule yet another panel opinion. The Seventh Circuit has, however, used multiple informal en banc cases to develop rules of law
488. For example, United States v. Stillwell, 900 F.2d 1104, 1104 n.* (7th Cir. 1990), used informal en banc review to decide, as a question of first impression in the circuit, that a federal arson statute applied to a private residence whose only connection to interstate commerce was the natural gas hook up. This opinion was later modified by an informal en banc footnote in United States v. Martin, 147 F.3d 529, 529 n.l (7th Cir. 1998), which said that the question of connection to interstate commerce was properly raised for the first time on appeal as plain error. Id. at 532.
489. Stillwell was later abrogated on the substantive issue in Jones v. United States, 529 U.S. 848, 852 n.2 (2000).
490. In another instance, the court used an informal en banc footnote to decide a question of first impression in United States v. West, 670 F.2d 675, 675 n.* & 686 (7th Cir. 1982). West was later overruled by informal en banc footnote in United States v. Green, 258 F.3d 683, 692 n.4 (7th Cir. 2001). United States v. Anton, 683 F.2d 1011 (7th Cir. 1982), provides a third example. In that case, the court used informal en banc review to create an intercircuit conflict with the Ninth Circuit regarding the intent requirement in a federal criminal statute. Id. at 1011 n.*. Anton was later overruled by informal en banc review in United States v. Carlos-Colmenares, 253 F.3d 276, 277 (7th Cir. 2001).
491. Although it is unusual for a court to use informal en banc review to overrule a prior en banc opinion, this has occurred from time to time
492. See, e.g., United States v. Marble, 940 F.2d 1543, 1547 & n.* (D.C. Cir. 1991) (overruling United States v. Wright, 627 F.2d 1300 (D.C. Cir. 1980)
493. United States v. Robertson, 507 F.2d 1148 (D.C. Cir. 1974)
494. Whalem v. United States, 346 F.2d 812 (D.C. Cir. 1965) (en banc), in light of later statutory and Supreme Court authority)
495. Feit v. Ward, 886 F.2d 848, 849 n.* (7th Cir. 1989) (overruling Egger v. Phillips, 710 F.2d 292 (7th Cir. 1983) (en banc)
496. in light of a later Supreme Court opinion, Schweiker v. Chilicky, 487 U.S. 412 (1988)). Because the earlier cases had been undermined by intervening superior authority, however, the panels could have overruled them by invoking an exception to the law of the circuit rule without seeking informal en banc approval. See supra note 34 and accompanying text. Accordingly, although a panel's use of informal en banc review to overrule an earlier en banc case could be questioned, doing so in these cases was not clearly in violation of the law of the circuit rule.
497. See, e.g., Policy Statement, supra note 58, at 2 (requiring a "substantive memorandum" from the panel explaining why informal en banc review is appropriate for the case).
498. Dornbusch v. Comm'r, 860 F.2d 611, 612 n.l (5th Cir. 1988) (indicating that none of the judges objected or called for the case to be heard en banc); Koonce v. Quaker Safety Prods. & Mfg. Co., 798 F.2d 700, 706 n.8 (5th Cir. 1986) (same).
499. The Seventh Circuit's rule provides that the panel can act so long as a majority of the court's judges "do not vote to rehear en banc the issue of whether the position should be adopted." 7TH Cm. R. 40(e). This is a bit different from the Fifth Circuit's approach because it appears to invite a formal en banc vote. But it is still a "no objection" approach as opposed to an affirmative agreement approach. Ginsburg & Falk, supra note 3, at 1016.
500. Policy Statement, supra note 58, at 2.
501. See cases cited supra note 247 (indicating agreement or concurrence with the panel's disposition, not mere lack of objection thereto).
502. See, e.g., Zerilli-Edelglass v. N.Y. City Transit Auth., 333 F.3d 74, 81 n.7 (2d Cir. 2003) (indicating that no active judge sought formal en banc review);
503. Carpenters Local Union No.26 v. U.S. Fid. & Guar. Co., 215 F.3d 136, 138 n.l (1st Cir. 2000) (noting that the opinion was circulated and no active judge objected to the proposed action).
504. See, e.g., New Pac. Overseas Group (U.S.A.) Inc. v. Excal Int'l Dev. Corp., 252 F.3d 667, 670 n.l (2d Cir. 2001) (indicating that the opinion was circulated and all active judges on the court expressed agreement with the panel's disposition of the case); In re Grand Jury Subpoenas, 123 F.3d 695, 697 n.2 (1st Cir. 1997) (noting that the majority of active judges approved the panel's action).
505. See, e.g., United States v. Brutus, 505 F.3d 80, 87 n.5 (2d Cir. 2007);
506. Adeleke v. United States, 355 F.3d 144, 155 n.9 (2d Cir. 2004).
507. See Ginsburg & Falk, supra note 3, at 1032-1034 (describing the inherent uncertainty about the merits of a case in a vote on formal en banc review and the comparatively greater expertise panel judges have with respect to the case).
508. See supra cases cited notes 253-257
509. This again is a concern that arises in the context of nonprecedential opinions: that judges do not give the same degree of attention to opinions that will not be binding on future tribunals and delegate decision making to clerks and staff attorneys. See generally Pether, supra note 2.
510. Cf. Deppe v. Tripp, 863 F.2d 1356, 1368 n.* (7th Cir. 1988) (Ripple, J., dissenting from denial of rehearing en banc) (arguing that the panel's informal en banc opinion on questions of first impression requires further thought and development and therefore should be considered through formal en banc review).
511. William M. Richman, Much Ado About the Tip of an Iceberg, 62 Wash. & Lee L. Rev. 1723, 1726 (2005).
512. Barrett, supra note 3.
513. Admin. Office of the U.S. Courts, 2007 Annual Report of the Director, supra note71, at 48 tbl.S-3.
514. See supra note 224 and accompanying text (discussing the impact of nonprecedential opinions on principles of stare decisis).
515. Sloan, supra note 164, at 929-31;
516. see also DuVivier, supra note 225, at 418 (arguing in favor of retaining nonprecedential opinions as a less binding form of precedent).
517. Sloan, supra note 164, at 929-931
518. Id.
519. Id. at 951.
520. Policy Statement, supra note 58.
521. See supra note 28 (collecting cases stating the law of the circuit rule).
522. See supra note 34 (collecting cases).
523. See Shannon, supra note 220, at 690-691
524. See Sloan, supra note 15, at 737 n.125 (explaining supervisory power).
525. See, e.g., Fed. Sav. & Loan Ins. Corp. v. Ticktin, 490 U.S. 82, 83 n.l (1989) (noting the panel's overruling of a prior case, but not commenting on the informal en banc procedure)
526. rev'g 832 F.2d 1438 (7th Cir. 1987). 308.
527. See, e.g., Watts v. Burkhart No. 89- 6160, 1991 WL 261224, at *10-11 (6th Cir. Dec. 13, 1991) (Contie, J., dissenting)
528. vacated, 978 F.2d 269 (6th Cir. 1992) (en banc) (overruling Manion v. Michigan Board of Medicine, 765 F.2d 590 (6th Cir. 1985)).
529. See supra notes 160-163 (discussing the importance of collegiality on the court).
530. Ginsburg & Falk, supra note 3, at 1017 (noting that an individual circuit judge has little authority because substantive decisions require at least two judges to agree).
531. See Cappalli, supra note 16,§§ 7.03-.06, at 80-83.
532. See, e.g., Louisiana ex rel. Caldwell v. Allstate Ins. Co., 536 F.3d 418, 432 (5th Cir. 2008) (acknowledging the state's arguments regarding waiver but deeming itself bound by prior panel precedent, whether right or wrong)
533. United States v. Wilkerson, 361 F.3d 717, 732 (2d Cir. 2004) (stating that if the panel were the first to address the issue presented in the case, it might have reached a different conclusion, but deeming itself bound by prior panel opinions pending overruling by the court en banc or the Supreme Court).
534. See, e.g., Russ v. Watts, 414 F.3d 783, 784 n.l (7th Cir. 2005)
535. see also cases cited supra Part III.J3.1
536. Statistics from the Administrative Office of the U.S. Courts indicate that the federal appellate courts decide a small number of formal en banc cases without additional briefing or argument. See, e.g., Admin. Office of the U.S. Courts, 2007 Annual Report of the Director, supra note 71, at 46 tbl.S-1.
537. Ginsburg & Falk, supra note 3, at 1034 (noting that formal en banc opinions that affirm the panel operate to increase the confidence of both the parties and the public in the result).
538. See supra p. 738, fig.2.
539. Act of Oct. 20, 1978, Pub. L. No.95-486, § 6, 92 Stat. 1629, 1633 (providing that "[a]ny court of appeals having more than 15 active judges. may perform its en banc function by such number of members of its en banc courts as may be prescribed by rule of the court of appeals").
540. 9th Cir. R. 35-3. See generally Rymer, supra note 72.
541. For a critique of the Ninth Circuit's practice, see generally Rymer, supra note 72.
542. See generally Sloan, supra note 15; Sloan, supra note 164.
543. See supra p. 738-739, fig.2 (Second Circuit table and Seventh Circuit table).
544. See supra notes 244-245 and accompanying text (discussing how informal en banc review changes the status quo in ways that votes on formal en banc review do not).
545. Deppe v. Tripp, 863 F.2d 1356, 1368 n.* (7th Cir. 1988) (Ripple, J., dissenting from denial of rehearing en banc).
546. See supra notes 251-254 and accompanying text (discussing the intense disagreement among the judges over proper disposition of the case).
547. Obviously, a panel may not be aware of every previously decided case in the circuit and therefore may not be able to list each affected case in the informal en banc opinion. Nevertheless, every effort in that regard should be made. Of course, adopting this requirement is not the same as following it. The Seventh Circuit presently requires such disclosure in its Local Rule 40(e), but not all Seventh Circuit informal en banc cases contain the required information.
548. See, e.g., Irons v. Diamond, 670 F.2d 265, 268 n.l 1 (D.C. Cir. 1981).
549. See supra Part II.B.2 (discussing the development of informal en banc review in individual circuits).
550. See Sloan, supra note 15, at 712-13 (noting that courts traditionally established rules of precedent using adjudicatory, rather than rulemaking, power)
551. see also Miller v. Gammie, 335 F.3d 889, 893 (9th Cir. 2003) (en banc) (creating an exception to the law of the circuit rule).
552. For an example of use of adjudicatory power to make rules of precedent, see Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981) (en banc), in which the U.S. Court of Appeals for the Eleventh Circuit, which had recently been formed from the Fifth Circuit's rib, adopted Fifth Circuit precedent as binding in the new circuit and indicated that adjudication, not rulemaking, was the appropriate mechanism for making that type of jurisprudential decision. Id. at 1207.
553. Shannon, supra note 220, at 649; Sloan, supra note 164, at 934.
554. Sloan, supra note 15, at 733-746
555. Sloan, supra note 164, at 937-940
556. Cf. id. at 927-929 (arguing that development of consistent standards for issuance of nonprecedential opinions through FRAP would be desirable).
557. New Pac. Overseas Group (U.S.A.) Inc., V. Excal Int'l Dev. Corp.