Last week, the U.S. Court of Appeals for the Sixth Circuit denied a petition for rehearing en banc in Mitts v. Bagley, a habeas case in which a divided panel granted a writ of habeas corpus on the grounds that the jury instructions were unconstitutional under the standard set forth in Justice Stevens sole concurring opinion in Smith v. Spisak. Interestingly enough, the order denying rehearing was accompanied by an opinion concurring in the petition denial explaining why the case was not en banc-worthy, even though it was incorrect.
The opinion by Judge Sutton, which whom Judge Kethledge, declares up front that “with all respect to the panel majority, this case was not decided correctly,” and proceeds to explain the initial panel’s mistake. The second part of Judge Sutton’s opinion,however, explains that a three-judge panel’s error, by itself, does not justify en banc review. As he explains:
While the Federal Rules of Appellate Procedure provide one option—en banc rehearing—it is not a preferred one. En banc rehearing is “not favored and ordinarily will not be ordered.” Fed. R. App. P. 35(a). “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.” . . .
Most of the traditional grounds for full court review are not “compelling” here. There is no circuit split. No other circuit to my knowledge (or for that matter to the parties’ knowledge) has invoked this ground for relief or otherwise disagreed with it. This is not an important federal question, at least under Appellate Rule 35(a), since the Ohio courts stopped giving this instruction in 1996. . . . There is no intra-circuit conflict. . . . Nor is this a case in which a large number of judges on the court have come to doubt the validity of our own precedent.
That leaves one other possibility—that disagreement with the panel’s decision on the merits warrants en banc review. In the run-of-the-mine case that ground rarely suffices, else many cases a year would be decided in panels of 16, a rarely satisfying, often unproductive, always inefficient process. No one thinks a vote against rehearing en banc is an endorsement of a panel decision, as other judges have said and as my explanation in this case confirms. “By declining to rehear a case, we do not sit in judgment on the panel; we do not sanction the result it reached . . . [w]e decide merely that . . . review by the full court is not justified.” . . .
If the goal is to produce consistent and principled circuit law, moreover, it is fair to wonder whether a process that requires a majority of circuit judges to sit in judgment of two or three colleagues does more to help than to deter that objective, particularly when the central ground for review is mere disagreement on the merits. The judges of a circuit not only share the same title, pay and terms of office, but they also agree to follow the same judicial oath, making them all equally susceptible to error and making it odd to think of the delegation of decisionmaking authority to panels of three as nothing more than an audition. Saving en banc review for “the rarest of circumstances,” particularly when the leading ground for review is disagreement on the merits, thus “reflects a sound, collegial attitude,” one worth following here. . . . Skepticism about the value of meritsbased en banc review reflects one other thing: We are not the only Article III judges concerned with deciding cases correctly. Sometimes there is nothing wrong with letting the United States Supreme Court decide whether a decision is correct and, if not, whether it is worthy of correction.