Posted on 08/06/2014 1:29:15 PM PDT by SteveH
It is well understood that just because a court’s opinion is “wrong” does not make it en banc worthy. Judge Jeffery Sutton U.S. Court of Appeals for the Sixth Circuit made this point some years ago. It’s also a point that Judge Edwards made in his opinion respecting the denial of en banc review in Bartlett v. Bowen (1987). Judge Edwards’s opinion in Bartlett is worth quoting at length:
The decision to grant en banc consideration is unquestionably among the most serious non-merits determinations an appellate court can make, because it may have the effect of vacating a panel opinion that is the product of a substantial expenditure of time and effort by three judges and numerous counsel. Such a determination should be made only in the most compelling circumstances. . . .
...
The Federal Rules of Appellate Procedure explicitly recognize that en banc rehearing is “not favored and ordinarily will not be ordered,” except when consideration is necessary to secure or maintain uniformity of decisions or when a case involves a question of exceptional importance. FED.R.APP.P. 35(a). Under this rule, it is well-understood that it is only in the rarest of circumstances when a case should be reheard en banc. In other words, for the appellate system to function, judges on a circuit must trust one another and have faith in the work of their colleagues, including Senior Judges and visiting judges from other circuits. Obviously, no judge agrees with all of the decisions handed down in the circuit, nor would every judge write a particular opinion in the same fashion. But if such disagreements determined whether or not a case should be reheard en banc, the number of en banc rehearings would increase at least a hundredfold.
(Excerpt) Read more at washingtonpost.com ...
It’s OBAMAcare ..... I think the lib judges on the circuit will find a reason or make one up to hear it. Pretty cynical about this, but after Roberts twisting Obamacare into a pretzel to keep it going, don’t trust any of them. I hope they surprise me and refuse to hear ‘en banc’.
King might be headed to Supreme Court; perhaps Halbig to follow?
Carrie Severino
The National Review
August 5, 2014
http://www.freerepublic.com/focus/f-news/3189752/posts
Alder writes under the supposition that Democrat judges will act with dignity and integrity, when, to Progressives, the end justifies the means.
Interesting times, for sure.
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