If I remember correctly, the statutory authorization for courts of appeals
to sit in banc came _after_ the United States Court of Appeals for the
Third Circuit began to sit in banc and the Supreme Court had approved of
the practice. The Court of Appeals for the Third Circuit used the in banc
practice in order to secure the uniformity of its decisions after Congress
had expanded its size (I believe to five judges). I am at home and don't
have the citations handy, but if anyone is interested, I will follow up
with citations later.
Ed Hartnett
Seton Hall
"Volokh, Eugene"
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Sent by: Discussion Subject: Mystery of the en banc
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list for con law or less solved, I thin k
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07/14/03 08:42 PM
Please respond to
Discussion list for
con law professors
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.
