Since December 2016, we have been monitoring the status of the North Carolina Court of Appeals’ new en banc authority. Several motions for en banc review have been filed, but to our knowledge, the North Carolina Court of Appeals has not yet accepted a case for en banc review.
Not to be outdone, the Fourth Circuit is generating its own en banc buzz. The Fourth Circuit has long had the authority to hear cases en banc. En banc review in the Fourth Circuit is extremely rare (at least in recent years). Initial en banc review–before a three-judge panel decides the case–is virtually unheard of in the Fourth Circuit. That may be about to change.
As reported by Maryland’s Appellate Blog, the Fourth Circuit recently took the unusual step of sua sponte ordering the parties to brief the “appropriate[ness] of initial en banc review” of the revised federal travel ban. As noted by the Maryland blog,
The decision to order the parties to brief whether they consider initial en banc review appropriate is even more unusual because the purely discretionary decision has no underlying legal principle that must be upheld. Unlike a question of subject-matter jurisdiction or evidence admissibility, it is not a decision that the court can possibly “get wrong.” Instead, the decision on the propriety of hearing the case initially en banc rests entirely on the preference of the court. It really doesn’t matter what the parties think.
Both parties have reportedly rushed to assure the Fourth Circuit that the case is “exceptionally important” and worthy of initial en banc review. For federal appellate practice and procedure aficionados, the Maryland blog post on this case is worthy of an independent read. [Side Note: the Fourth Circuit judges’ individual email boxes were recently flooded with approximately 7,500 outside messages urging the judges to overturn the federal district court’s travel ban injunction–which lead the Fourth Circuit Clerk to issue this notice to the attorneys of record.]
Like Rule 31.1 of the North Carolina Rules of Appellate Procedure, Federal Appellate Rule 35 utilizes the same criteria for determining whether to grant initial hearing en banc as for determining whether to grant rehearing en banc. Under both the state and federal rule, hearing or rehearing may be ordered if (1) en banc consideration is necessary to secure or maintain uniformity of the court’s decisions; or (2) the proceeding involves a question of exceptional importance. These two criteria are generally easier to show when a party is requesting rehearing en banc.
So while we wait to see what case will trigger the North Carolina Court of Appeals’ first en banc review, we also wait to see whether the Fourth Circuit will be hearing its first initial en banc hearing in recent memory.