ON SUGGESTION FOR REHEARING EN BANC
Before WALD, Chief Judge, and ROBINSON, MIKVA, EDWARDS, RUTH B. GINSBURG, BORK, STARR, SILBERMAN, BUCKLEY, WILLIAMS and D.H. GINSBURG, Circuit Judges.
PER CURIAM.
85-5233
ORDER
The Court, on its own motion, has reconsidered appellee’s suggestion for rehearing en banc. Upon such reconsideration, it is
ORDERED, by the Court en banc, on its own motion, that the order of the en banc court of June 8, 1987, and the panel order of the same date, be, and the same hereby are, vacated, and it is
FURTHER ORDERED, by the Court en banc, on its own motion, that the judg[261]*261ment, the panel opinion of March 17, 1987 and the dissenting opinion of the same date be, and the same hereby are, reinstated, and it is
FURTHER ORDERED, by the Court en banc, that appellee’s suggestion for rehearing en banc is denied.
The panel filing the opinion of March 17, 1987 is this date entering an order again denying the petition for rehearing directed to it.
Separate statements are attached, as follows:
1. HARRY T. EDWARDS, Circuit Judge, concurring in the denials of rehearing en banc, with whom WALD, Chief Judge and SPOTTSWOOD W. ROBINSON, III, MIKVA and RUTH BADER GINSBURG, Circuit Judges concur.
2. SILBERMAN, Circuit Judge, concurring in the denials of rehearing en banc.
3-. Joint Statement dissenting from the vacatur of orders and from the denials of rehearing en banc by BORK, STARR, BUCKLEY, WILLIAMS and D.H. GINSBURG, Circuit Judges.
4. STARR, Circuit Judge, dissenting from the denials of rehearing en banc.
No. 85-6071 and Consolidated Case 85-6072
The Court, on its own motion, has reconsidered appellants’ suggestion for rehearing en banc. Upon such reconsideration, it is
ORDERED, by the Court en banc, on its own motion, that the order of the en banc court of May 8, 1987, and the panel order of the same date, be, and the same hereby are, vacated, and it is
FURTHER ORDERED, by the Court en banc, on its own motion, that Section IV of the opinion of February 10, 1987, the dissenting opinion, and the judgment of the same date with respect thereto, be, and the same hereby are, reinstated, and it is
FURTHER ORDERED, by the Court en banc, that appellants’ suggestion for rehearing en banc is denied.
The panel filing the opinion of February 10, 1987 is this date entering an order again denying the petition for rehearing directed to it.
1. HARRY T. EDWARDS, Circuit Judge, concurring in the denials of rehearing en banc, with whom WALD, Chief Judge and SPOTTSWOOD W. ROBINSON, III, MIKVA and RUTH BADER GINSBURG, Circuit Judges concur.
2. SILBERMAN, Circuit Judge concurring in the denials of rehearing en banc.
3. RUTH BADER GINSBURG, Circuit Judge, concurring in the denial of rehearing en banc, with whom HARRY T. EDWARDS, Circuit Judge concurs.
4. Joint Statement dissenting from the vacatur of orders and from the denials of rehearing en banc by BORK, STARR, BUCKLEY, WILLIAMS and D.H. GINSBURG, Circuit Judges.
5. STARR, Circuit Judge, dissenting from the denials of rehearing en banc.
No. 85-6169 and Consolidated Case Nos. 85-6171 and 85-6172
The Court, on its own motion, has reconsidered appellant’s suggestion for rehearing en banc. Upon such reconsideration, it is
ORDERED, by the Court en banc, on its own motion, that the order of the en banc court of April 30, 1987, and the panel order of the same date, be, and the same hereby are, vacated, and it is
FURTHER ORDERED, by the Court en banc, on its own motion, that the judgment and panel opinion of February 13, 1987 be, [262]*262and the same hereby are, reinstated and it is
FURTHER ORDERED, by the Court en banc, that appellant’s suggestion for rehearing en banc is denied.
The panel filing the opinion of February 13, 1987 is this date entering an order again denying the petition for rehearing directed to it.
1. HARRY T. EDWARDS, Circuit Judge, concurring in the denials of rehearing en banc, with whom WALD, Chief Judge and SPOTTSWOOD W. ROBINSON, III, MIKVA and RUTH BADER GINSBURG, Circuit Judges concur.
2. SILBERMAN, Circuit Judge concurring in the denials of rehearing en banc.
3. MIKVA, Circuit Judge, concurring in the denial of rehearing en banc.
4. Joint Statement dissenting from the vacatur of orders and from the denials of rehearing en banc by BORK, STARR, BUCKLEY, WILLIAMS and D.H. GINSBURG, Circuit Judges.
5. STARR, Circuit Judge, dissenting from the denials of rehearing en banc.
HARRY T. EDWARDS, Circuit Judge, concurring in the denials of rehearing en banc, with whom WALD, Chief Judge, ROBINSON, MIKVA and RUTH BADER GINSBURG, Circuit Judges, concur:
In decrying the “instability and confusion” allegedly created by our orders vacating en banc review in these cases, my colleague Judge Starr elevates some imagined precept of immutability and a self-styled notion of orderliness over correctness as a guiding principle. This utterly misperceives the gravity of the decision to accord rehearing en banc — a determination that calls for us to exercise the best of our collective wisdom.
Justice Stewart's admonition that “ ‘[wjisdom too often never comes, and so one ought not to reject it merely because it comes late,’ ” Boys Markets, Inc. v. Retail Clerks Local 770, 398 U.S. 235, 255, 90 S.Ct. 1583, 1595, 26 L.Ed.2d 199 (1970) (quoting Henslee v. Union Planters National Bank and Trust Co., 335 U.S. 595, 600, 69 S.Ct. 290, 293, 93 L.Ed. 259 (1949) (Frankfurter, J., dissenting)), is especially apt in this context. The decision to grant en banc consideration is unquestionably among the most serious non-merits determinations an appellate court can make, because it may have the effect of vacating a panel opinion that is the product of a substantial expenditure of time and effort by three judges and numerous counsel. Such a determination should be made only in the most compelling circumstances.
Contrary to the suggestion made by my dissenting colleague, there is absolutely nothing wrong with a majority of this court acting to reconsider and vacate the ill-conceived grants of en banc rehearings in these cases. Under the applicable Federal Rules, this court retains the full authority to act on its own motion to determine whether to hear or rehear cases en banc.
Free access — add to your briefcase to read the full text and ask questions with AI
ON SUGGESTION FOR REHEARING EN BANC
Before WALD, Chief Judge, and ROBINSON, MIKVA, EDWARDS, RUTH B. GINSBURG, BORK, STARR, SILBERMAN, BUCKLEY, WILLIAMS and D.H. GINSBURG, Circuit Judges.
PER CURIAM.
85-5233
ORDER
The Court, on its own motion, has reconsidered appellee’s suggestion for rehearing en banc. Upon such reconsideration, it is
ORDERED, by the Court en banc, on its own motion, that the order of the en banc court of June 8, 1987, and the panel order of the same date, be, and the same hereby are, vacated, and it is
FURTHER ORDERED, by the Court en banc, on its own motion, that the judg[261]*261ment, the panel opinion of March 17, 1987 and the dissenting opinion of the same date be, and the same hereby are, reinstated, and it is
FURTHER ORDERED, by the Court en banc, that appellee’s suggestion for rehearing en banc is denied.
The panel filing the opinion of March 17, 1987 is this date entering an order again denying the petition for rehearing directed to it.
Separate statements are attached, as follows:
1. HARRY T. EDWARDS, Circuit Judge, concurring in the denials of rehearing en banc, with whom WALD, Chief Judge and SPOTTSWOOD W. ROBINSON, III, MIKVA and RUTH BADER GINSBURG, Circuit Judges concur.
2. SILBERMAN, Circuit Judge, concurring in the denials of rehearing en banc.
3-. Joint Statement dissenting from the vacatur of orders and from the denials of rehearing en banc by BORK, STARR, BUCKLEY, WILLIAMS and D.H. GINSBURG, Circuit Judges.
4. STARR, Circuit Judge, dissenting from the denials of rehearing en banc.
No. 85-6071 and Consolidated Case 85-6072
The Court, on its own motion, has reconsidered appellants’ suggestion for rehearing en banc. Upon such reconsideration, it is
ORDERED, by the Court en banc, on its own motion, that the order of the en banc court of May 8, 1987, and the panel order of the same date, be, and the same hereby are, vacated, and it is
FURTHER ORDERED, by the Court en banc, on its own motion, that Section IV of the opinion of February 10, 1987, the dissenting opinion, and the judgment of the same date with respect thereto, be, and the same hereby are, reinstated, and it is
FURTHER ORDERED, by the Court en banc, that appellants’ suggestion for rehearing en banc is denied.
The panel filing the opinion of February 10, 1987 is this date entering an order again denying the petition for rehearing directed to it.
1. HARRY T. EDWARDS, Circuit Judge, concurring in the denials of rehearing en banc, with whom WALD, Chief Judge and SPOTTSWOOD W. ROBINSON, III, MIKVA and RUTH BADER GINSBURG, Circuit Judges concur.
2. SILBERMAN, Circuit Judge concurring in the denials of rehearing en banc.
3. RUTH BADER GINSBURG, Circuit Judge, concurring in the denial of rehearing en banc, with whom HARRY T. EDWARDS, Circuit Judge concurs.
4. Joint Statement dissenting from the vacatur of orders and from the denials of rehearing en banc by BORK, STARR, BUCKLEY, WILLIAMS and D.H. GINSBURG, Circuit Judges.
5. STARR, Circuit Judge, dissenting from the denials of rehearing en banc.
No. 85-6169 and Consolidated Case Nos. 85-6171 and 85-6172
The Court, on its own motion, has reconsidered appellant’s suggestion for rehearing en banc. Upon such reconsideration, it is
ORDERED, by the Court en banc, on its own motion, that the order of the en banc court of April 30, 1987, and the panel order of the same date, be, and the same hereby are, vacated, and it is
FURTHER ORDERED, by the Court en banc, on its own motion, that the judgment and panel opinion of February 13, 1987 be, [262]*262and the same hereby are, reinstated and it is
FURTHER ORDERED, by the Court en banc, that appellant’s suggestion for rehearing en banc is denied.
The panel filing the opinion of February 13, 1987 is this date entering an order again denying the petition for rehearing directed to it.
1. HARRY T. EDWARDS, Circuit Judge, concurring in the denials of rehearing en banc, with whom WALD, Chief Judge and SPOTTSWOOD W. ROBINSON, III, MIKVA and RUTH BADER GINSBURG, Circuit Judges concur.
2. SILBERMAN, Circuit Judge concurring in the denials of rehearing en banc.
3. MIKVA, Circuit Judge, concurring in the denial of rehearing en banc.
4. Joint Statement dissenting from the vacatur of orders and from the denials of rehearing en banc by BORK, STARR, BUCKLEY, WILLIAMS and D.H. GINSBURG, Circuit Judges.
5. STARR, Circuit Judge, dissenting from the denials of rehearing en banc.
HARRY T. EDWARDS, Circuit Judge, concurring in the denials of rehearing en banc, with whom WALD, Chief Judge, ROBINSON, MIKVA and RUTH BADER GINSBURG, Circuit Judges, concur:
In decrying the “instability and confusion” allegedly created by our orders vacating en banc review in these cases, my colleague Judge Starr elevates some imagined precept of immutability and a self-styled notion of orderliness over correctness as a guiding principle. This utterly misperceives the gravity of the decision to accord rehearing en banc — a determination that calls for us to exercise the best of our collective wisdom.
Justice Stewart's admonition that “ ‘[wjisdom too often never comes, and so one ought not to reject it merely because it comes late,’ ” Boys Markets, Inc. v. Retail Clerks Local 770, 398 U.S. 235, 255, 90 S.Ct. 1583, 1595, 26 L.Ed.2d 199 (1970) (quoting Henslee v. Union Planters National Bank and Trust Co., 335 U.S. 595, 600, 69 S.Ct. 290, 293, 93 L.Ed. 259 (1949) (Frankfurter, J., dissenting)), is especially apt in this context. The decision to grant en banc consideration is unquestionably among the most serious non-merits determinations an appellate court can make, because it may have the effect of vacating a panel opinion that is the product of a substantial expenditure of time and effort by three judges and numerous counsel. Such a determination should be made only in the most compelling circumstances.
Contrary to the suggestion made by my dissenting colleague, there is absolutely nothing wrong with a majority of this court acting to reconsider and vacate the ill-conceived grants of en banc rehearings in these cases. Under the applicable Federal Rules, this court retains the full authority to act on its own motion to determine whether to hear or rehear cases en banc. The simple point here is that a majority of this court has now recognized, albeit belatedly, that the cases at hand do not deserve en banc treatment.
The dissent urges that en banc review is appropriate in these cases because they are cases of “exceptional importance” where the panel’s decision allegedly was either “clearly wrong” or “highly dubious.” The problem with this view, however, is that it reduces the “exceptional importance” test to a self-serving and result-oriented criterion. Under the dissenters’ standard, one judge’s case of “exceptional importance” is another judge’s “routine or run-of-the-mill” case, a point well-illustrated by the dissenters’ specious characterization of Bartlett v. Bowen, 816 F.2d 695 (D.C.Cir.1987). The dissenters have labelled Bartlett a “sweeping and revolutionary decision,” almost as if to suggest that it represents the seminal opinion in constitutional adjudication. Such a statement is quite extraordinary, however, because, as any reader of it can plainly see, the decision in Bartlett merely [263]*263follows well-established Supreme Court precedent.
The dissenters also claim that Bartlett “purported to decide the highly controversial question of Congress’ power to remove Supreme Court jurisdiction over constitutional challenges under the exceptions clause of article III of the Constitution;” but this is a flagrant misstatement of the opinion. The majority in Bartlett merely observed that
[Cjourts and legal scholars routinely assume that there is a due process right to have the scope of constitutional rights determined by some independent judicial body — and the Supreme Court has never held or hinted otherwise. On the contrary, although it is undisputed that Congress has some leeway to affect the jurisdiction of the lower federal courts, Congress may not deny to a person attacking a statute “the independent judgment of a court on the ultimate question of constitutionality.” St. Joseph Stock Yards Co. v. United States, 298 U.S. at [38] 84 [56 S.Ct. 720 at 740, 80 L.Ed.2d 1033 (1936)] (Brandéis, J., concurring).
Although there is no definitive answer to the question whether there are constitutional restraints when Congress seeks to limit the jurisdiction of all federal courts, we need not address that question here.
Bartlett, 816 F.2d at 706 (footnote omitted). The majority in Bartlett expressly declined to define the full reach of Congress’ power under the exceptions clause of article III. Id. In light of the dissenters’ misstatement of the holding in Bartlett, it is difficult to resist the conclusion that my dissenting brethren would like to rehear Bartlett en banc so that they might create some “sweeping and revolutionary” new law in the area of constitutional adjudication. This would be a gross abuse of the en banc process.
My dissenting colleague leaves the impression that rehearings en banc involve no significant expenditure of judicial energies. In fact, the institutional cost of rehearing cases en banc is extraordinary. Each year, every judge has a heavy schedule of brief-reading, oral arguments, motions work and opinion-writing in connection with cases on the regular calendar. It is an enormous distraction to break into this schedule and tie up the entire court to hear one case en banc. It especially burdens judges who already are carrying a large backlog of cases, and it substantially delays the case being reheard, often with no clear principle emanating from the en banc court.
Underlying the dissenters’ calls for rehearings en banc, and especially their resort to a “clearly wrong”/“highly dubious” test to determine when to rehear a case en banc — is the implicit view that every time a majority of the judges disagree with a panel decision, they should get rid of it by rehearing the case en banc. The error in this proposition is the concept that it is somehow desirable that majority rule should determine the outcome of cases. However salutary that principle may be in the context of popularly elected legislatures where a majority decision reflects the will of the voters who chose the lawmakers, it has no equivalent value in an intermediate court of review. The fact that 6 of 11 judges agree with a particular result does not invest that result with any greater legal validity than it would otherwise have. The reason we use majority rule on a panel is because there must be some device for reaching a decision where there is disagreement among three judges; it is not because correctness is assured by having as many legal minds as possible in agreement.
The dissent's “clearly wrong”/“highly dubious” test not only serves no useful purpose in this intermediate appellate judicial context, it does substantial violence to the collegiality that is indispensable to judicial decisionmaking. Collegiality cannot exist if every dissenting judge feels obliged to lobby his or her colleagues to rehear the case en banc in order to vindicate that judge’s position. Politicking will replace the thoughtful dialogue that should characterize a court where every judge respects the integrity of his or her colleagues. Furthermore, such a process would impugn the integrity of panel judges, who are both intelligent enough to know the law and [264]*264conscientious enough to abide by their oath to uphold it.
The Federal Rules of Appellate Procedure explicitly recognize that en banc rehearing is “not favored and ordinarily will not be ordered,” except when consideration is necessary to secure or maintain uniformity of decisions or when a case involves a question of exceptional importance. Fed.R. App.P. 35(a). Under this rule, it is well-understood that it is only in the rarest of circumstances when a case should be reheard en banc. In other words, for the appellate system to function, judges on a circuit must trust one another and have faith in the work of their colleagues, including Senior Judges and visiting judges from other circuits. Obviously, no judge agrees with all of the decisions handed down in the circuit, nor would every judge write a particular opinion in the same fashion. But if such disagreements determined whether or not a case should be reheard en banc, the number of en banc rehearings would increase at least a hundredfold.
By declining to rehear a case, “[w]e do not sit in judgment on the panel; we do not sanction the result it reached.” Jolly v. Listerman, 675 F.2d 1308, 1311 (D.C.Cir.) (Robinson, C.J., concurring in denial of rehearing en banc) (footnote omitted), cert. denied, 459 U.S. 1037, 103 S.Ct. 450, 74 L.Ed.2d 604 (1982). We decide merely that, because the case does not present questions of “ ‘real significance to the legal process as well as to the litigants,’ ” review by the full court is not justified. Id. at 1310 (quoting Church of Scientology v. Foley, 640 F.2d 1335, 1341 (D.C.Cir.) (en banc) (dissenting opinion), cert. denied, 452 U.S. 961, 101 S.Ct. 3110, 69 L.Ed.2d 972 (1981)).
In conclusion the court’s decisions denying the suggestions for rehearing en banc in these cases are fully justified and commendably in accord with the legal standards that appropriately guide the determination to rehear a case en banc. Anyone who doubts the wisdom of that determination here would be well-advised to go directly to the original panel opinions for an accurate statement of the case holdings.