XXVIII. En Banc Procedure
From Ca7Wiki
En banc hearings or rehearings, i.e., hearings by all the judges currently in regular active service on the court, are infrequent. “An en banc hearing or rehearing is not favored and ordinarily will not be ordered unless (1) en banc consideration is necessary to secure or maintain uniformity of the court’s decision, or (2) the proceeding involves a question of exceptional importance.” Fed. R. App. P. 35(a). Such a hearing or rehearing will be held only if a majority of the circuit judges who are in regular active service so determine. Although the judges may order a hearing en banc on their own initiative before the oral argument, this rarely occurs in the Seventh Circuit. A more frequent occurrence is for the panel after oral argument to circulate a proposed opinion, which would establish a new rule of procedure or overrule a prior decision of the court, to all the active judges. Cir. R. 40(e).
A request for a hearing en banc is to be made by the filing date of the appellee’s brief. Fed. R. App. P. 35(c). En banc hearings are even rarer than en banc rehearings.
A petition for rehearing en banc must be made within the time allowed by Rule 40(a) for the filing of a petition for rehearing. Fed. R. App. P. 35(c). Thirty copies must be filed. The title page and cover should reflect that a petition for rehearing en banc is being made in order to facilitate its distribution.
A party who petitions that an appeal be reheard en banc must state in a concise sentence at the beginning of the petition why the appeal is of exceptional importance or with what decision of the United States Supreme Court, this court, or another court of appeals the panel decision is claimed to be in conflict. Fed. R. App. P. 35(b). A party who files a petition for rehearing en banc without complying with this provision runs a serious risk of sanctions. See H M Holdings v. Rankin, Inc., 72 F.3d 562, 563 (7th Cir. 1995).
When a petition for rehearing en banc is made, the petition for rehearing is distributed to each active judge on the court, including the panel that originally heard and decided the appeal. Unless a judge in regular active service or a judge who was a member of the initial panel requests that a vote be taken on the en banc request, no vote will be taken. Fed. R. App. P. 35(f). If no vote is requested, the panel’s order acting on the petition for rehearing will bear the notation that no member of the court requested a vote on the en banc request. Only active circuit judges are authorized to vote. Rehearing en banc will be granted only if a majority of the voting active judges vote to grant such a rehearing. 28 U.S.C. § 46(c), Fed. R. App. P. 35(a), 7th Cir. Oper. P. 5(d)(1).
Only active Seventh Circuit judges and senior circuit judges who were members of the original panel are authorized to sit on a rehearing en banc. 28 U.S.C. § 46(c). The order granting rehearing en banc vacates the panel decision. Thus, if the court en banc should be equally divided, the judgment of the district court and not the judgment of the panel will be affirmed.
It bears repeating that hearings and rehearings en banc are very rare.
