Turns out that it's very rare, but has happened at least half a dozen times in recent decades; and it appears to be authorized by 28 USC 132, 137, which allows district courts to depart from the one-judge norm by court order. Here's what I just blogged:
http://volokh.com/2003_07_13_volokh_archive.html#105823024300522867 [Eugene Volokh, 5:50 PM] More on en banc district court rehearings: I've also come across United States v. Bogle, 689 F.Supp. 1121 (S.D. Fla. 1988); United States v. Allen, 685 F.Supp. 827 (N.D. Ala. 1988) (en banc); United States v. Bolding, 683 F.Supp. 1003 (D. Md. 1988) (en banc), also in cases challenging the constitutionality of the Sentencing Guidelines; and United States v. Anaya, 509 U.S. 289 (S.D. Fla. 1980) (mass resolution of issues related to the Mariel boat lift). Anaya actually explains why the judges chose to sit en banc (that, of course, isn't binding on other en banc courts, which may have their own reasons), and also explains its statutory justification for the decision -- the authorization in 28 U.S.C. secs. 132, 137, for departures from the norm of single-judge district courts either by statute (not uncommon, especially in the past) but also by court order, which seems to be the means used here: Pursuant to 28 U.S.C. [secs.] 132, 137 and in accordance with an order authorized by all active judges and issued by the Chief Judge of the United States District Court for the Southern District of Florida, these eighty-four (84) criminal cases were transferred to this Court en banc for the specific purpose of hearing argument and ruling upon certain substantially similar motions to dismiss. The commonality of the facts and the legal issue set forth above was the primary impetus for our decision to treat en banc the pending motions to dismiss. We note further, that several salutary policies are served by doing so. First, en banc consideration and disposition will establish uniformity of treatment for similarly situated defendants. Where, as here, criminal sanctions are involved, the significance of uniformity, from both an individual and societal point of view, cannot be understated. Moreover, implicit in our desire for uniformity is our disinclination to depart from the doctrine of intra-court comity. That well-recognized doctrine, establishes a general rule that, absent unusual or exceptional circumstances, judges of coordinate jurisdiction within a jurisdiction should follow brethren judges' rulings. Second, from a pragmatic, but nonetheless judicious point of view, treatment en banc, rather than in an individual, piecemeal fashion will avoid or at least limit unnecessary duplication of effort thereby conserving scarce judicial, governmental and private resources. Here, the Court is convinced that the interests of society and the defendants in an orderly, expeditious and fair disposition of the charges are best served by an en banc proceeding. The Court is not unmindful that countervailing considerations may exist, but neither the government nor the defendants have identified or raised, and the Court is unable to discern, any compelling considerations weighing against en banc disposition. The mere possible existence of such considerations is not, without more, sufficient to undercut our conclusion that en banc treatment of the motions to dismiss is warranted. With respect to our authority to sit en banc, we conclude that Congress, in enacting 28 U.S.C. [sec.] 132(c) as part of the comprehensive 1948 revision of the Judiciary Code, see Act of June 25, 1948, ch. 646, 62 Stat. 895, contemplated that a District Court might, pursuant to "rule or order of Court," conduct an en banc session. [footnote: En banc decisions are to be distinguished from those in which District Courts have designated a panel of several judges, but fewer than all, to establish uniformity within the district on recurring questions. See, e. g., Lucas v. "Brinkness" Shiffahrts Ges., 379 F.Supp. 759 (E.D.Pa.1974); Turner v. Transportacion Maritima Mexicana S.A., 44 F.R.D. 412 (E.D.Pa.1968); Close v. Calmar S.S. Corp., 44 F.R.D. 398 (E.D.Pa.1968). In the latter type of case, the panels acknowledged their decisions were not actually binding upon other judges in the same district. See Turner, supra, at 414 n.1. Further, en banc decisions are to be differentiated from those cases in which the judge hearing the case will state in his opinion that he has shown the opinion to the other judges of the district and that they concur in it. See, e. g., Slomberg v. Pennabaker, 42 F.R.D. 8, 12 (M.D.Pa.1967); Dziwanoski v. Ocean Carriers Corp., 26 F.R.D. 595, 599 (D.Md.1960).] The legislative history to 28 U.S.C. [sec.] 132(c) makes clear that the statute "merely recognize(d) (this) established practice." On at least three occasions prior to the enactment of 28 U.S.C. [sec.] 132(c), judges in the Eastern District of Pennsylvania sat en banc to hear certain matters. Hickman v. Taylor, 4 F.R.D. 479 (E.D.Pa.1945); Matter of Clover Drugs, Inc., 21 F.Supp. 107 (E.D.Pa.1937); Matter of Jay & Dee Store Co., 37 F.Supp. 989 (E.D.Pa.1941). Inasmuch as these 84 cases were transferred pursuant to an "order of court," we conclude that 28 U.S.C. s 132(c) authorizes this en banc Court to hear and decide the motions to dismiss now pending before us. [end of block quote from case] http://volokh.com/2003_07_13_volokh_archive.html#105822841745236329 [Eugene Volokh, 5:20 PM] Update on the Nevada Supreme Court stay: My friend and ex-colleague Evan Caminker, responding to a message that I posted to a constitutional law professors' discussion list, pointed out that U.S. v. Ortega Lopez, 684 F. Supp. 1506 (C.D. Cal. 1988), involved the district court judges in the Central District of California sitting en banc to consider the constitutionality of the Federal Sentencing Guidelines. (They held the Guidelines unconstitutional, though the Supreme Court soon thereafter disagreed.) I quickly skimmed the decision and found no citation to a specific statutory authorization -- perhaps it's part of the federal district courts' inherent power, which I'll be investigating shortly. I did see that the majority's order stated that "This decision is binding upon the members of this Court in all relevant cases unless and until we receive a contrary ruling from the Ninth Circuit or the Supreme Court," something that is usually not the rule -- district court decisions aren't binding precedent for future cases even as to the judge who issued them, and certainly aren't binding on his colleagues on the same district. Curiouser and curiouser.
