In an earlier post about the timing of the appeals from Judge Hanen’s order, I noted that even if the panel rule for the administration and granted a stay, it was very likely that at least one judge on the panel would sua sponte call for en banc. Josh Gerstein of Politico tweeted that the 5th Circuit’s Practitioner’s Guide (p. 85) provides that stays are not subject to en banc.
Reconsideration of denials of relief in administrative motions is by a three-judge panel only. Procedural and interim matters, such as stay orders, injunctions pending appeal, appointment of counsel, leave to appeal in forma pauperis, denial of permission for an abusive litigant to file pleadings, denials of more time to file briefs, etc., are not matters subject to en banc consideration.
However, FRAP 35(a) provides that any “proceeding” can be rehearing en banc. That would seem to include en banc proceedings.
(a) When Hearing or Rehearing En Banc May Be Ordered. A majority of the circuit judges who are in regular active service and who are not disqualified may order that an appeal or other proceeding be heard or reheard by the court of appeals en banc.
There is nothing in the 5th Circuit’s local rules suggesting that stay orders are not subject to an en banc vote. While the practitioner’s guide is certainly helpful, it does not trump the FRAP, or the local rules, which expressly provide for an en banc vote for any “proceeding,” of which a stay vote counts. The local rules make no specification that stays are excluded from en banc polls:
REQUESTING A POLL ON COURT’S OWN MOTION – ANY ACTIVE MEMBER OF THE COURT OR ANY MEMBER OF THE PANEL RENDERING THE DECISION MAY REQUEST A POLL OF THE ACTIVE MEMBERS OF THE COURT WHETHER REHEARING EN BANC SHOULD BE GRANTED, WHETHER OR NOT A PARTY FILED A PETITION FOR REHEARING EN BANC. A REQUESTING JUDGE ORDINARILY SENDS A LETTER TO THE CHIEF JUDGE WITH COPIES TO THE OTHER ACTIVE JUDGES OF THE COURT AND ANY OTHER PANEL MEMBER.
It’s possible this was put into the guide to discourage pro se plaintiffs from seeking frivolous stays. The Internal Operating Procedures make this point implicitly on p. 35:
THE MOST ABUSED PREROGATIVE – PETITIONS FOR REHEARING EN BANC ARE THE MOST ABUSED PREROGATIVE OF APPELLATE ADVOCATES IN THE FIFTH CIRCUIT. FEWER THAN 1% OF THE CASES DECIDED BY THE COURT ON THE MERITS ARE REHEARD EN BANC; AND FREQUENTLY THOSE REHEARINGS GRANTED RESULT FROM A REQUEST FOR EN BANC RECONSIDERATION BY A JUDGE OF THE COURT RATHER THAN A PETITION BY THE PARTIES.
But in any event, this guide will not serve as a barrier if one judge seeks to call for en banc.
H/T to Cato’s inestimable local counsel, Leif Olson, for explaining 5th Circuit procedures to me.