Recused Federal Appellate Judges Should Not Be Counted As Voting Against Petitions For Rehearing En Banc
By Howard J. Bashman
Monday, April 9, 2001

Appeals are heard en banc in the U.S. Courts of Appeals only on rare occasions. In the twelve-month period ending September 30, 2000, the twelve regional federal courts of appeals decided 27,516 appeals on the merits after briefing or oral argument, and only 73 of those appeals were decided en banc. Appeals heard "en banc" are considered by the full membership of a court (or, in the Ninth Circuit, by an eleven-judge panel), rather than by a panel consisting of three judges.

Despite their rarity, en banc sessions play a critical role in the federal appellate process. The ruling of a three-judge U.S. Court of Appeals panel binds all subsequent panels in a given circuit until overturned by the Supreme Court of the United States or by the appellate court sitting en banc. As the Supreme Court has explained, "the in banc court is normally reserved for questions of exceptional importance, or to secure or maintain uniformity of decision within the circuit." Moody v. Albemarle Paper Co., 417 U.S. 622, 626 (1974) (per curiam). En banc courts "are convened only when extraordinary circumstances exist that call for authoritative consideration and decision by those charged with the administration and development of the law of the circuit." United States v. American-Foreign S.S. Corp., 363 U.S. 685, 689 (1960). In Moody, the Supreme Court described en banc courts as having "exceptional power to determine the major doctrinal trends of the future for a particular circuit." 417 U.S. at 626.

Given the singularly important role that en banc courts fulfill in the federal appellate process, it is unfortunate that the procedure for determining whether to take an appeal en banc is the subject of a contentious circuit split. Section 46(c) of Title 28, United States Code, provides that appeals to the U.S. Courts of Appeals "shall be heard and determined by a court or panel of not more than three judges . . . unless a hearing or rehearing before the court in banc is ordered by a majority of the circuit judges of the circuit who are in regular active service." Federal appellate courts are currently divided over whether this language requires, for an appeal to be considered en banc, only that a majority of the non-recused active judges votes in favor, or must an absolute majority of all active judges (including any who are recused) vote in favor.

A simple example illustrates this issue. Assume a federal appellate court has twelve judges in regular active service. In an appeal in which none of those judges is recused, seven must vote in favor of rehearing en banc in order for it to be granted. Now assume a case in which one of those twelve judges is recused, leaving only eleven non-recused judges. Assume further that six judges vote in favor of rehearing en banc and the remaining five vote against. In a circuit requiring that a majority of all active circuit judges votes in favor of rehearing en banc for it to be granted, a 6-5 vote in favor of rehearing en banc with one recusal would result in rehearing en banc being denied. This is because an absolute majority of seven votes remained necessary to grant the petition. In a circuit requiring only that a majority of non-recused active circuit judges votes in favor of rehearing en banc, a 6-5 vote in favor of rehearing en banc with one recusal would cause the appeal to be reheard en banc.

The Philadelphia-based U.S. Court of Appeals for the Third Circuit currently appears to be in the midst of deciding which of these two alternate approaches it will follow. Just over sixty years ago, the Third Circuit decided the very first case ever reheard en banc in the federal appellate system. In Commissioner v. Textile Mills Secs. Corp., 117 F.2d 62 (3d Cir. 1940), a three-judge panel heard the Internal Revenue Service's petition for review of a decision of the Board of Tax Appeals in favor of a corporation. The panel voted 2-1 to affirm the Board's decision, but the remaining two judges on the Third Circuit (which then had a total of five judges) agreed with the dissenting judge and took the case en banc, where the vote was 3-2 to reverse the Board's decision. Because the Third Circuit's decision authorizing en banc review was contrary to an earlier Ninth Circuit decision holding that en banc review was unavailable even if a majority of judges favored it, the Supreme Court granted review of the Third Circuit's decision to determine the lawfulness of en banc courts. The Supreme Court unanimously ruled that federal appellate courts had the power to hold rehearings en banc. See Textile Mills Secs. Corp. v. Commissioner, 314 U.S. 326, 333-35 (1941). Several years later, Congress codified the Supreme Court's ruling in Textile Mills, providing explicit statutory authorization for hearings and rehearings en banc in the U.S. Courts of Appeals. See 28 U.S.C. 46(c).

The Third Circuit has traditionally counted itself among those courts that required the vote of an absolute majority of all circuit judges (including recused judges) to take a case en banc. See Hon. Albert Branson Maris, Hearing and Rehearing Cases In Banc, The Procedure of the U.S. Court of Appeals for the Third Circuit, 14 F.R.D. 91, 95 (1953) (explaining that rehearing en banc will not be ordered unless four of the seven judges then serving on the court voted in favor). Thus, in Lewis v. University of Pittsburgh, 725 F.2d 910, 929-30 (3d Cir. 1983) (Adams, J., sur petition for rehearing), rehearing en banc was denied even though five active judges voted to grant rehearing, three voted against rehearing, and two were recused. Similarly, in Curtiss-Wright Corp. v. General Elec. Co., 599 F.2d 1259, 1265 (3d Cir. 1979) (Gibbons, J., dissenting from denial of petition for rehearing), the Third Circuit denied a petition for rehearing en banc that four judges voted to grant, three judges voted to deny, and two were recused.

Similar absolute majority requirements applied in the Fifth and Eleventh Circuits have come under spirited challenge from dissenters on those courts in recent years. Eleventh Circuit Judge Edward E. Carnes launched a persuasive attack on the absolute majority requirement in Gulf Power Co. v. FCC, 226 F.3d 1220, 1221-26 (11th Cir. 2000) (Carnes, J., concerning the denial of rehearing en banc), where he called on Congress or the Supreme Court to make clear "that disqualified judges are not counted, in effect, as a vote against rehearing en banc." According to Judge Carnes, the absolute majority rule "can even operate to impose on the circuit and its judges law with which every non-disqualified judge in active service disagrees," especially if the original panel consisted of one active judge and two senior or visiting judges. Fifth Circuit Judge Jerry E. Smith has similarly criticized the absolute majority rule as an "onerous requirement." See Flanagan v. Ahearn (In re Asbestos Litig.), 101 F.3d 368, 370 (5th Cir. 1996) (Smith, J., dissenting from denial of rehearing en banc).

At least four other circuits have abandoned the absolute majority rule and instead require only that a majority of non-recused active judges votes in favor for rehearing en banc to be granted. See Second Circuit Local Rule 35 ("Neither vacancies nor disqualified judges shall be counted in determining the base on which a majority of the circuit judges of the circuit who are in regular active service shall be calculated . . . for purposes of ordering a hearing or rehearing in banc."); Seventh Circuit Internal Operating Procedure 5(d)(1) ("A simple majority of the voting active judges is required to grant a rehearing en banc."); Ford Motor Co. v. FTC, 673 F.2d 1008, 1012 n.1 (9th Cir. 1981) (Reinhardt, J., dissenting from denial of rehearing en banc) (stating that only a majority of non-recused active judges is required to take an appeal en banc); Tenth Circuit Local Rule 35.5 ("A majority of the active judges who are not disqualified may order rehearing en banc.").

Mirroring the split among the circuits over whether to require an absolute majority to send a case en banc, the Third Circuit today has a Local Rule directly in conflict with an Internal Operating Procedure on this very issue. Third Circuit Local Rule 35.3 indicates that the court's longstanding practice of counting recused judges as votes against taking a case en banc remains in effect. That rule, entitled "Composition of En Banc Quorum," provides: "For purposes of determining the majority number necessary to grant a petition for rehearing, all circuit judges currently in regular active service will be counted." In contrast, Third Circuit Internal Operating Procedure 9.5.3 states that "rehearing en banc shall be ordered only upon the affirmative votes of a majority of the judges of this court in regular active service who are not disqualified, provided that the judges who are not disqualified constitute a majority of the judges who are in regular active service."

In Western Pac. R.R. Corp. v. Western Pac. R.R. Co., 345 U.S. 247, 267 (1953), the Supreme Court explained that while the federal courts of appeals were free to "adopt any particular procedure governing the exercise of the [en banc] power[,] whatever the procedure which is adopted, it should be clearly explained." In accordance with the Western Pacific decision, the Third Circuit should promptly clarify whether it follows the absolute majority rule or whether it merely requires a majority of non-recused judges voting in favor to order an appeal en banc.

Given the critical importance of the en banc function, the large number of appeals in which certain Third Circuit judges currently in regular active service will be recused from participating, and the persuasive reasons voiced by Eleventh Circuit Judge Edward E. Carnes in his dissenting opinion in Gulf Power Co., 226 F.3d at 1221-26, I believe the Third Circuit should abandon all remnants of the absolute majority requirement in favor of permitting a case to go en banc when a majority of non-recused active judges favors that outcome. A future installment of this column will provide an update if the Third Circuit takes action to resolve the conflict between its local rule and internal operating procedure on the subject of en banc voting.

This article is reprinted with permission from the April 9, 2001 issue of The Legal Intelligencer 2001 NLP IP Company.



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