Published opinions this past week exposed a fierce dispute on the D.C. Circuit over whether to take a case en banc. Two judges thought for sure that a certain case should go en banc; four thought not; two recused. Result? No en banc review—again. No. 19-5161, Citizens for Responsibility and Ethics in Washington v. FEC (12/12/22).
We say “again” because the D.C. Circuit is notoriously stingy in taking cases en banc, often taking only one case a year. So what do you do if you think your client may need en banc review, but you don’t like the odds? Consider asking for an Irons footnote.
A what? We’ll let the court explain:
As the court has long recognized, see, e.g., Irons v. Diamond, 670 F.2d 265, 267-68 and n.11 (D.C. Cir. 1981), cases occasionally arise in which action by the court en banc may be called for, but the circumstances of the case or the importance of the legal questions presented do not warrant the heavy administrative burdens of full en banc hearing. … [P]rovided that certain safeguards are maintained, a panel of the court may seek for its proposed decision the endorsement of the en banc court, and announce that endorsement in a footnote to the panel’s opinion.
When is this en banc shortcut appropriate? According the court, it’s useful for:
(1) resolving an apparent conflict in the prior decisions of panels of the court;
(2) rejecting a prior statement of law which, although arguably dictum, warrants express rejection to avoid future confusion;
(3) overruling an old or obsolete decision which, although still technically valid as precedent, has plainly been rendered obsolete by subsequent legislation or other developments; and
(4) overruling a more recent precedent which, due to an intervening Supreme Court decision, or the combined weight of authority from other circuits, a panel is convinced is clearly an incorrect statement of current law.
Regrettably, the court doesn’t use this handy tool very often. But it does do it. As Professor Aaron Nielson has pointed out, one time Judge Edwards got the full court to cut back an earlier decision he himself wrote. So keep this option in mind.
Do you know of any other circuits that offer an en banc shortcut?