For practically 4 years, there was a unending drumbeat about how the Fifth Circuit was an existential menace to the rule of legislation. But, over the previous two months or so, it has gotten very quiet. That big sucking sound you hear, as Ross Perot may need mentioned, is all the circumstances flooding north to the First and Fourth Circuits.
But, the Fifth Circuit stays probably the most fascinating circuit within the nation. I just lately blogged about an unpublished opinion regarding Deliberate Parenthood. I instructed that the panel’s option to make the opinion unpublished was an try and protect the case from en banc evaluate.
One other case raises some comparable points.
On January 10, 2025, the Fifth Circuit issued a printed opinion in United States v. Bell (23-50755). 4 days later, there was a docket notation that (no less than) one decide has held the mandate. On the Fifth Circuit, any decide can maintain the mandate. As soon as such a maintain is made, there’s a sign to the events that rehearing is extra seemingly. On January 24, 2025, the USA filed a petition for panel rehearing. (The federal government didn’t file a petition for rehearing en banc). On January 27, 2025, the Fifth Circuit requested the defendant to reply to the petition. The response was filed on January 31.
Quick-forward to February 28. There have been a number of docket notations in speedy succession. First, the printed opinion from January 10 was withdrawn. Second, an unpublished opinion was filed as a replacement. I’ve generated a redline model. There have been many substantive modifications made. Third, the judgment was entered and filed. Fourth, it was revealed {that a} member of the Fifth Circuit requested a ballot for rehearing en banc, and that ballot failed (extra on the vote later). And fifth, the order withholding the issuance of the mandate was vacated, that means that a number of judges launched the maintain.
So the bell has tolled for Bell, barring certiorari. Nonetheless, this incident supplies some proof that making a choice “unpublished” is a way to keep away from en banc evaluate.
However there may be rather more to this case.
The federal government solely filed a petition for panel rehearing. DOJ didn’t search a petition for rehearing en banc. However no less than one member of the en banc courtroom sua sponte requested for a ballot, as the principles allow. The order states:
The courtroom having been polled on the request of one in all its members, and a majority of the judges who’re in common energetic service and never disqualified not having voted in favor, on the Court docket’s personal movement, rehearing en banc is DENIED. Within the en banc ballot, 5 judges voted in favor of rehearing (Judges Jones, Smith, Duncan, Engelhardt, and Oldham), and twelve judges voted towards rehearing (Chief Choose Elrod and Judges Stewart, Richman, Southwick, Haynes, Graves, Higginson, Willett, Ho, Wilson, Douglas, and Ramirez).
Choose Ho, who concurred in denial of rehearing wrote a quick assertion:
Our courtroom’s inner working procedures expressly allow rehearing en banc “whether or not or not a celebration filed a petition.” fifth Cir. R. 40 I.O.P. Our procedures even observe that we “continuously” grant en banc on the request of “a decide of the courtroom slightly than a petition by the events.” Id. See additionally Neese v. Becerra, 127 F.4th 601, 603 n.1 (fifth Cir. 2024) (Ho, J., dissenting from denial of rehearing en banc).
. . . Regardless of all of this, it could be tempting at instances to query an en banc ballot the place “the shedding facet selected to not search en banc rehearing” (as was mentioned in Neese). . . .
And it is exactly as a result of we’re flawed that we must always apply the identical rules regardless of how well-liked (or not) the decision for en banc. It was mentioned in Neese that “[t]he ballot failed 16–1.” That vote could be a nightmare for individuals who concern being an outsider. Cf. C.S. Lewis, The Inside Ring (1944), obtainable at https://www.lewissociety.org/innerring/. However judges swear an oath to uphold the legislation, with out concern or favor. A name for en banc may be unpopular but principled. Cf., e.g., Coral Ridge Ministries v. So. Poverty Legislation Ctr., _ U.S. _ (2022) (Thomas, J., solo dissent from denial of certiorari); Ben-Levi v. Brown, 577 U.S. 1169 (2016) (Alito, J., solo dissent from denial of certiorari).
For individuals who don’t observe the Fifth Circuit’s en banc docket intently (and why would you not!?) Neese v. Becerra was selected January 31. On this case, the Fifth Circuit voted 16-1 to disclaim en banc evaluate in a problem to a Biden-era transgender rule. Solely Choose Ho voted to grant evaluate. Choose Duncan concurred within the denial of rehearing en banc, joined by Judges Jones, Smith, Willett, Oldham, Engelhardt, and Wilson. (5 of these seven voted to rehear Bell.) Choose Duncan wrote:
Regardless that the shedding facet selected to not search en banc rehearing, one decide referred to as for an en banc ballot. The ballot failed 16–1. That ought to shock nobody, as a result of there was no believable purpose to rehear this case.
Choose Ho replied to Choose Duncan:
A short response to my concurring colleagues: The truth that Govt Department officers have dutifully completed their job does not imply that we needn’t do ours. Neither is our job obviated by the truth that Plaintiffs calculated (accurately, because it seems) {that a} rehearing petition wouldn’t be an environment friendly use of their sources. Our guidelines plainly authorize us to rehear circumstances en banc on our personal movement, exactly to alleviate litigants of pointless litigation burdens. See Fed. R. App. Proc. I.O.P. 40 (“Requesting A Ballot On Court docket’s Personal Movement”). The one query is whether or not a selected case warrants en banc.
By denying rehearing en banc, our courtroom right now leaves on the books a printed, precedential ruling that overturns the district courtroom’s dutiful efforts and validates administrative overreach in an space of profound sensitivity. I’ve beforehand expressed my issues about permitting authorities officers to have interaction in procedural stratagems to keep away from judicial evaluate. See U.S. Navy SEALs 1-26 v. Biden, 72 F.4th 666, 677 (fifth Cir. 2023) (Ho, J., dissenting) (citing Tucker v. Gaddis, 40 F.4th 289, 293 (fifth Cir. 2022) (Ho, J., concurring)). Our resolution right now continues the sample.
And we’re not fairly completed. On February 26, 2025, the Fifth Circuit denied en banc evaluate in Spring Siders v. Metropolis of Brandon, Mississippi. Right here, the en banc ballot was 15-2. Chief Choose Elrod and Choose Ho would have granted rehearing. Choose Ho wrote a solo dissent. Choose Oldham concurred within the denial of rehearing en banc, which was joined by Judges Jones, Smith, Willett, Duncan, Engelhardt, and Wilson. This septet is identical bloc that concurred in Neese, and contains the identical quintet that dissented in Bell. You possibly can see what Choose Ho was getting at by citing C.S. Lewis’s “The Inside Ring.” I have to do a extra cautious examine of voting blocs on the en banc courtroom.
Choose Oldham’s opinion contends that en banc evaluate was not applicable in Spring Siders:
If this case implicated the First Modification’s Faith Clauses, the end result may need been totally different. However rhetorical flourish is not any substitute for the details and legislation within the case earlier than us.
Choose Ho, as soon as once more, replies:
I get that my concurring colleagues are content material to simply let this matter go to trial. However that appears unnecessarily grudging to me. “The lack of First Modification freedoms, for even minimal intervals of time, unquestionably constitutes irreparable harm,” warranting preliminary injunctive aid prematurely of trial. Elrod v. Burns, 427 U.S. 347, 373 (1976). See additionally Opulent Life Church v. Metropolis of Holly Springs, 697 F.3d 279, 295 (fifth Cir. 2012) (similar). Perhaps Siders will sometime prevail at trial. However till then, her proper to evangelize will simply have to attend.
There’s a lot occurring right here. The interpersonal dynamics of the Fifth Circuit are not like every other courtroom within the nation, even the U.S. Supreme Court docket. I notice everybody is concentrated now on the (yawn) Fourth Circuit and the (snooze) First Circuit. However the true motion is deep within the coronary heart of Texas.
