Maintaining Consistency in the Law of the Large Circuit: The Origins and Operation of the Ninth Circuit's Limited En Banc Court

Abstract

Once again, Congress is considering legislation to divide the largest of the federal judicial circuits, the Ninth Circuit Court of Appeals. The Ninth Circuit extends over nine western states, including California, and it has 29 active judges, almost twice the number of the next-largest circuit. Much of the debate over proposals for restructuring focuses on a feature unique to the Ninth Circuit, the limited en banc court (LEBC). In all of the other circuits, when the court of appeals grants rehearing en banc, the case is heard by all active judges. In the Ninth Circuit, the en banc court is composed of 11 judges – the chief judge and 10 other judges selected at random for each case from among the active judges. Eleven judges constitute little more than one-third of the full court. Proponents of restructuring argue that the LEBC cannot satisfactorily perform the functions of en banc rehearing – in particular, maintaining consistency in the law of the circuit.

This book chapter examines the origins and operation of the Ninth Circuit’s limited en banc court. It draws on internal court memoranda and interviews with the judges; it also includes an empirical study of en banc balloting during the first six years under the LEBC rule.

The LEBC was authorized by legislation enacted by Congress in 1978. Even before the bill was passed, the Ninth Circuit’s judges began discussing how the en banc function might be performed by a body composed of fewer than all active judges. The discussions continued over a period of two years before the en banc rule – still in force today, with minor changes – was adopted.

This book chapter traces in detail the evolution of the rule. It shows that the judges initially favored a nine-judge LEBC and a “permanent rotation” system, under which judges would serve for a designated period of time, with new judges rotating on at staggered intervals. Examining the process by which the judges shifted to the random selection approach provides a fascinating picture of judges working together to reshape an institution within the court. It also sheds light on the judges’ view of how an intermediate appellate court should function.

The chapter also examines the Ninth Circuit’s efforts, during the first six years under the LEBC rule, to maintain consistency and coherence in the law of the circuit. The research shows that the formal en banc process is only one way in which the judges take steps to avoid conflicts between panel decisions. At the same time, en banc rehearing has not been not treated primarily as a device for maintaining consistency within the circuit. For example, review of the memoranda exchanged by the judges reveals that assertions of intracircuit conflict were made in fewer than half of the cases in which a judge called for a vote on rehearing a case en banc.

Keywords: limited en banc court, Ninth Circuit, en banc, intracircuit conflict, appellate adjudication, courts of appeals, appellate courts