En banc error-correction

Regular readers know I’ve been critical of the Third Circuit for denying en banc rehearing of some recent panel decisions I thought wrong. The retroactivity ruling in Reyes was one: “Wrong, and okay with it,” I wrote. The appeal-waiver ruling in Erwin was another: “An ignominious ending to 2014,” said I.

So I read with interest this blog post by Professor Richard Re on Re’s Judicata, lucidly discussing whether correcting obvious panel errors is an appropriate use of en banc rehearing. My recent scolding of the court rested on my view that panel error correction (or at least big error correction) is a core en banc purpose. Re’s post shows why that ain’t necessarily so.

Here’s the nub:

The more interesting issue is whether Judge Thompson is correct that en banc is inappropriate when based on “disagree[ment] with the result reached by the original panel.” At first blush, Judge Thompson seems to be on solid ground. If mere disagreement were enough, that would indeed mean that “nearly every case would attract the full court’s attention.”

But what if a panel decision were obviously wrong–something, one hopes, that is fairly rare? That possibility isn’t ruled out by FRAP 35(a), which speaks only of what is ordinarily appropriate for en banc. Moreover, that approach would have pragmatic appeal. When a panel makes a tough call, the mere possibility or suspicion of error might not justify the costs of sorting through the merits via en banc review. Only major stakes or disuniformity could then provide the extra justification for en banc. But if a panel issued a decision that is wrong on its face, then why not just reverse it en banc? Writing the en banc opinion shouldn’t take too much effort, and the legal system would avoid the normal costs associated with bad precedent. So long as judges can reliably and quickly identify obvious errors, en banc review for obvious error would seem sensible.

If it makes sense to go en banc to correct obvious error, why doesn’t FRAP 35(a) say that? Perhaps because such a rule would introduce an unfortunate element of disrespect into the en banc process. It is unpleasant enough to write a panel decision that gets rejected en banc. It would be all the more unpleasant if a majority of your colleagues expressly do so because they think you really badly missed the boat. This kind of thing isn’t good for collegiality and might even deter courts from going en banc.

Although Re’s blog has been around since May, I only recently found it, thanks, invevitably, to How Appealing. Re is ludicrously accomplished–Harvard, Yale Law, Kavanaugh and Kennedy clerkships, DOJ Honors Program, a UCLA law professor who surely still gets carded when he orders a beer–and the quality of his posts is extraordinary. Here’s another gem for fellow CA3 nerds, discussing the recent en banc ruling in Katzin.