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The Supreme Court has its own style guide that describes the manner in which sources should be cited within Supreme Court opinions.^[1]

En Banc

En banc is typically associated with the United States Courts of Appeals. Rule 35 of the Federal Rules of Appellate Procedure explains when en banc hearings may be permitted. Due to the strain on judicial resources that en banc hearings entail, Rule 35 cautions that an en banc hearing "is not favored."^[2] Nevertheless, Rule 35 permits an en banc hearing when either "(1) en banc consideration is necessary to secure or maintain uniformity of the court's decisions; or (2) the proceeding involves a question of exceptional importance."^[2]

Initially, there was uncertainty as to whether a Federal appeals court even had the power to sit en banc. In 1789, the Congress passed the Judiciary Act. The Judiciary Act grouped states and placed them into one of three judicial circuits: the eastern, the middle, and the southern.^[3] Each circuit contained several districts. The Judiciary Act thereafter provided, "that there shall be held annually in each district of said circuits, two courts, which shall be called Circuit Courts, and shall consist of any two justices of the Supreme Court, and the district judge of such districts, any two of whom shall constitute a quorum."^[3] Here, the Circuit Courts were comprised of judges appointed to other courts, as opposed to judge appointed directly to the Circuit Courts. This changed in 1869, when Congress passed legislation providing that "there shall be appointed a circuit judge, who shall reside in his circuit, and shall possess the same power and jurisdiction therein as the justices of the Supreme Court allotted to the circuit."^[4]

the fact that the law which established the precursor courts to the modern Circuit Courts of Appeals^[5] did not contain a provision for appointing a new group of judges to these courts.^[4]

The United States Court of Appeals for the Third Circuit decided the first en banc case in Commissioner of Internal Revenue v. Textile Mills Securities Corp., 117 F.2d 62 (3d Cir. 1940). Before Textile Mills, there was uncertainty as to whether a Federal appeals court had the power to sit en banc at all. The Ninth Circuit, in Lang's Estate v. Commissioner of Internal Revenue, 97 F.2d 867 (9th Cir. 1938)

in the United States sometimes grant rehearing en banc to reconsider the decision of a panel of the court (consisting of only three judges) in which the case concerns a matter of exceptional public importance or the panel's decision appears to conflict with a prior decision of the court.^[6] In rarer instances, an appellate court will order hearing en banc as an initial matter instead of the panel hearing it first.^{[citation needed]}

Cases in United States courts of appeals are heard by three-judge panels, randomly chosen from the sitting appeals court judges of that circuit. If a party loses before a circuit panel they may appeal for a rehearing en banc. A majority of the active circuit judges must agree to hear or rehear a case en banc. The Federal Rules of Appellate Procedure state that en banc proceedings are disfavored but may be ordered to maintain uniformity of decisions within the circuit or if the issue is exceptionally important (Fed. R. App. P. 35(a)). Only the U.S. Supreme Court can overrule an en banc decision.

Each federal circuit has their own particular rules regarding en banc proceedings. The circuit rules for the Seventh Circuit provide a process where, under certain circumstances, a panel can solicit the consent of the other circuit judges to overrule a prior decision and thus avoid the need for an en banc proceeding. Federal law provides that for courts with more than 15 judges, an en banc hearing may consist of "such number of members of its en banc courts as may be prescribed by rule of the court of appeals."^[7] The Ninth Circuit, with 29 judges, uses this procedure, and its en banc court consists of 11 judges. Theoretically, the Ninth Circuit can render en banc decisions with all 29 judges participating; such a hearing would overrule a prior 11-judge en banc hearing on the same case. Though no rule exists barring a party from requesting such a hearing, none has ever been granted.^[8]^[9]^[10] The Fifth Circuit, with 17 judges, adopted a similar procedure in 1986. State of La. ex rel. Guste v. M/V TESTBANK, 752 F.2d 1019 (5th Cir. 1985) (en banc). The Sixth Circuit has 16 judges^[11] but as of September 2016^[update]^[12] but has not adopted such a policy yet. The FISA Court sat en banc for the first time in 2017 in a case concerning bulk data collection.^[13]

References

^ Metzler, Jack (2016). The Supreme Court's Style Guide (PDF). Washington, D.C.: InterAlias Press. ISBN 978-0-9911163-3-1. Archived from the original (PDF) on December 5, 2021. {{cite book}}: |archive-date= / |archive-url= timestamp mismatch; January 30, 2021 suggested (help)
^ ^a ^b Fed. R. App. P. 35, available https://www.law.cornell.edu/rules/frap/rule_35
^ ^a ^b Judiciary Act, 1 Stat. 73, 74-75 (1789).
^ ^a ^b Commissioner of Internal Revenue v. Textile Mills Securities Corp., 117 F.2d 62, 68 (3d Cir. 1940) (quoting 16 Stat. 44 (1869)).
^ 26 Stat. 826 (1891).
^ Fed. R. App. P. 35(a).
^ Pub. L. 95–486
^ See Abebe v. Holder, 577 F.3d 1113 (2009); Compassion in Dying v. Washington, 85 F.3d 1440 (9th Cir. 1996); United States v. Penn, 647 F.2d 876, 889-91 (9th Cir. 1980); Campbell v. Wood, 20 F.3d 1050, 1051, 1053 (9th Cir. 1994).
^ Paul Elias (2009-11-25). "Feds seek rehearing of baseball drug list ruling". Associated Press.
^ "Feds seek rehearing of baseball drug list ruling". USA Today. 2009-11-24.
^ "U.S. Courts of Appeals; Additional Authorized Judgeships" (PDF).
^ "TYLER v. HILLSDALE COUNTY SHERIFF'S DEPARTMENT" (PDF).
^ "IN RE OPINIONS & ORDERS OF THIS COURT ADDRESSING BULK COLLECTION OF DATA UNDER THE FOREIGN INTELLIGENCE SURVEILLANCE ACT" (PDF). Sitting en banc for the first time in our history, we now vacate that decision.

[1] Metzler, Jack (2016). The Supreme Court's Style Guide (PDF). Washington, D.C.: InterAlias Press. ISBN 978-0-9911163-3-1. Archived from the original (PDF) on December 5, 2021. {{cite book}}: |archive-date= / |archive-url= timestamp mismatch; January 30, 2021 suggested (help)

[:02-2] Fed. R. App. P. 35, available https://www.law.cornell.edu/rules/frap/rule_35

[:0-3] Judiciary Act, 1 Stat. 73, 74-75 (1789).

[:1-4] Commissioner of Internal Revenue v. Textile Mills Securities Corp., 117 F.2d 62, 68 (3d Cir. 1940) (quoting 16 Stat. 44 (1869)).

[5] 26 Stat. 826 (1891).

[6] Fed. R. App. P. 35(a).

[7] Pub. L. 95–486

[8] See Abebe v. Holder, 577 F.3d 1113 (2009); Compassion in Dying v. Washington, 85 F.3d 1440 (9th Cir. 1996); United States v. Penn, 647 F.2d 876, 889-91 (9th Cir. 1980); Campbell v. Wood, 20 F.3d 1050, 1051, 1053 (9th Cir. 1994).

[9] Paul Elias (2009-11-25). "Feds seek rehearing of baseball drug list ruling". Associated Press.

[10] "Feds seek rehearing of baseball drug list ruling". USA Today. 2009-11-24.

[11] "U.S. Courts of Appeals; Additional Authorized Judgeships" (PDF).

[12] "TYLER v. HILLSDALE COUNTY SHERIFF'S DEPARTMENT" (PDF).

[13] "IN RE OPINIONS & ORDERS OF THIS COURT ADDRESSING BULK COLLECTION OF DATA UNDER THE FOREIGN INTELLIGENCE SURVEILLANCE ACT" (PDF). Sitting en banc for the first time in our history, we now vacate that decision.

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