Most practitioners in most courts complain that there aren't enough en banc petitions granted.... Meanwhile over in the 4th Circuit... the NLJ has 4th Circuit Judge's Worry of En Banc Overuse Spurs Back-and-Forth -- “By subjecting litigation to the en banc detour, we shield it from Supreme Court review while the often year-long proceeding plays itself out," Judge J. Harvie Wilkinson III wrote. "Shielding significant cases from the Supreme Court for prolonged periods can have deleterious consequences.”
- In a concurrence, Judge J. Harvie Wilkinson III argued that the full court hasn’t been as sparingly as it should in conducting en banc polls. Given limited judicial resources, he said mere disagreement with a panel’s decision is rarely enough of a reason to grant review.
- Under the Federal Rules of Appellate Procedure, en banc hearings are disfavored and should only be be ordered if there’s an intra-circuit conflict or the proceeding “involves a question of exceptional importance.”
- Wilkinson argued it’s more appropriate for the U.S. Supreme Court to decide which questions are of exceptional importance and deserve review through certiorari petitions.
- In a separate concurrence, Judges Stephanie Thacker and Robert King pushed back against the idea that the circuit runs the risk of holding en banc hearings too often. They worried Wilkinson’s viewpoint could have an “unintended chilling effect.”
- “[I] acknowledge that en banc proceedings are ‘not favored,’" Thacker wrote in a concurrence King joined. "But it is not an act of anarchy when we as a court work within the rules to correct what a majority of us believe to be an error. Nor is doing so an ‘enormous distraction’ from our workload.”
- The Fourth Circuit held 17 full court hearings for the most recent five years, compared to 55 en banc hearings from 1995 to 1999.