The courts of appeals permit cases to bypass the three-judge panel, and proceed directly to the full en banc court.For  my discussion of Hobby Lobby in Unraveled, I researched initial en banc, and found about two dozen instances over the last three decades where the three-judge panel was skipped. It is rare, but not unheard of. In recent years, the 10th Circuit heard Hobby Lobby through initial en banc, as did the D.C. Circuit for the Clean Power Plan case. However, the 11th Circuit denied initial en banc review in Florida v. HHS (the Obamacare litigation).

The 4th Circuit has asked the parties to state their position on “the appropriateness of initial en banc review.” If ever there was a case that screamed for expedited treatment, it is this one.