What Is en Banc Review? How Federal Appellate Courts Rehear Cases
When an appellate case raises an unusually important legal question—or a decision may conflict with other decisions in the same court—a party may ask for en banc review. The phrase means “on the bench” and generally refers to a rehearing by a larger group of appellate judges rather than the original three-judge panel. En banc review is uncommon, governed by specific rules, and focused on legal issues in the existing record, not a new trial.
What Is En Banc Review?
En banc review is a procedure through which an appellate court reconsiders a case with a broader group of its judges. In the federal system, it usually means that a U.S. court of appeals rehears a case after a three-judge panel has issued a decision. The exact size and composition of the en banc court depend on the circuit and applicable law.
“En banc” is commonly pronounced “on bonk.” It is a French phrase meaning “on the bench.” The term describes the court sitting together, not a different kind of lawsuit or a new level of trial.
Most federal appeals are decided by a three-judge panel. A party that loses may seek panel rehearing, en banc rehearing, or both. Panel rehearing asks the original judges to reconsider their decision; en banc rehearing asks the court’s eligible judges to do so. Neither request automatically suspends the effect of a judgment or guarantees another hearing.
When Do Courts Grant En Banc Review?
Federal appellate courts reserve en banc review for exceptional cases. Under Federal Rule of Appellate Procedure 35, a rehearing en banc ordinarily is not favored. It may be appropriate when needed to maintain consistency in the court’s decisions or when the case involves a question of exceptional importance.
Examples of issues that may prompt a petition include:
- A conflict within the circuit: A panel decision appears inconsistent with an earlier decision from the same court, and the disagreement affects how lower courts should apply the law.
- An important legal question: The case concerns a significant constitutional issue, federal statute, or recurring legal rule with broad consequences.
- A need to clarify circuit law: Rehearing could resolve uncertainty that affects courts, government agencies, businesses, or individuals across the circuit.
- A conflict with another circuit: A disagreement between federal circuits may support review when the issue is especially important, although a circuit split alone does not guarantee en banc consideration.
A petition is not a routine opportunity to repeat arguments that a panel has already rejected. It generally must identify a substantial reason for the full court to act, explain the conflict or importance, and connect that concern to the panel’s decision.
How En Banc Review Works
The panel issues a decision
The process typically begins when a three-judge panel decides an appeal. The panel reviews the record from the lower court and the parties’ legal arguments. It may affirm, reverse, vacate, or modify the judgment, or send the case back for further proceedings. The panel’s decision may be published or unpublished, depending on the court’s rules and the decision’s status.
A party files a petition
A party seeking further review files a petition for rehearing, a petition for rehearing en banc, or a combined petition under the applicable rules. Under Federal Rule of Appellate Procedure 40, a rehearing petition generally must be filed within 14 days after entry of judgment. In a civil case where the United States, a federal agency, or a federal officer is a party, the deadline is generally 45 days. Special rules and case-specific orders can affect deadlines, so the court’s rules and docket should be checked promptly.
A petition must follow federal and circuit-specific requirements for length, format, service, and content. Rule 35 calls for a concise statement of the basis for en banc review, including why the case meets the rule’s standards. A party should not assume that filing the petition pauses every deadline or changes the judgment’s enforceability.
Judges decide whether to rehear the case
The court first decides whether to grant the petition. The decision is ordinarily made without oral argument on the petition. If the court denies rehearing, the panel decision remains in place. A denial is not usually a ruling that the panel’s reasoning was correct on every point; it means the court did not grant the requested rehearing.
If rehearing is granted, the court sets the next steps. It may request additional briefs, schedule oral argument, or decide the case on the existing submissions. Granting en banc review can vacate the panel’s judgment or opinion, but the effect depends on the court’s order. The order and subsequent docket entries specify what remains in effect.
The en banc court issues its decision
After rehearing, the en banc court may affirm or reverse the panel’s result, modify it, or send the case back to the lower court. The court may issue a majority opinion and, where judges disagree, concurring or dissenting opinions. The en banc ruling becomes the controlling decision of that circuit on the legal questions it resolves, subject to later review by the U.S. Supreme Court and relevant changes in law.
Who Sits on a Federal En Banc Court?
Federal law provides that a court of appeals ordinarily hears a case through a three-judge panel, while en banc proceedings generally involve all active circuit judges. Under 28 U.S.C. § 46, a senior judge who participated in the panel decision may be eligible to sit in the en banc proceeding if the required active judges permit it. Circuit rules and statutory exceptions also matter.
The Ninth Circuit uses a limited en banc court rather than assembling every active judge. Federal law permits a circuit with more than 15 active judges to use a court of at least 11 judges for en banc proceedings. The Ninth Circuit’s limited en banc court is composed of 11 judges, including the chief judge and other judges selected under the circuit’s procedures. This system allows the circuit to conduct en banc review despite its large number of judges.
En banc review is not the same as having every judge in every case. Courts may deny most petitions, and the judges who participate can depend on the circuit’s rules, the case’s procedural posture, and eligibility requirements.
En Banc Review Compared With Other Appeals
| Procedure | Who reviews the case? | Typical purpose |
|---|---|---|
| Panel rehearing | The original appellate panel | Ask the panel to correct or reconsider an issue it may have overlooked or misunderstood |
| En banc rehearing | The circuit’s eligible en banc judges | Address an intra-circuit conflict or a question of exceptional importance |
| Petition for certiorari | The U.S. Supreme Court | Ask the Supreme Court to review a decision, often involving a federal question or disagreement among courts |
These options are distinct, but a party may request panel and en banc rehearing together when the rules allow. En banc review takes place within the same court of appeals; it is not an appeal to a higher court. A later petition for certiorari asks the Supreme Court to review the appellate decision. The Supreme Court selects a small share of the cases submitted to it, and filing a petition does not mean review will be granted.
What En Banc Review Does Not Do
En banc review is not a retrial. Appellate judges generally decide legal questions based on the record created in the lower court. They do not ordinarily hear new witnesses, receive new evidence, or reconsider facts from scratch. The standard of review—such as de novo review for certain legal questions or clear-error review for many factual findings—continues to shape what the court may examine.
It also is not an automatic second appeal. The losing party must meet the applicable procedural requirements and persuade the court that the case warrants the extraordinary step of en banc consideration. A disagreement with the outcome, without a qualifying legal reason, is usually insufficient.
Finally, “en banc” can be used in state appellate systems and in other legal contexts, but the rules are not identical nationwide. State courts set their own procedures. In the federal system, the Federal Rules of Appellate Procedure operate alongside circuit-specific local rules and orders.
What Happens After an En Banc Decision?
After the en banc court issues its decision, the parties generally must follow the judgment unless the court or a higher court orders otherwise. The losing party may seek a stay where appropriate or file a petition for a writ of certiorari with the U.S. Supreme Court. Supreme Court review is discretionary, and strict filing deadlines apply.
An en banc ruling can have importance beyond the parties. Because it speaks for the circuit, it can settle a disagreement among panels and guide federal district courts within that circuit. When circuits reach different conclusions on a recurring federal issue, the disagreement may remain until the Supreme Court resolves it or Congress changes the governing law.
Why En Banc Review Matters
En banc review helps federal appellate courts maintain consistent legal rules within their jurisdictions. Without it, separate panels could issue conflicting decisions that leave lower courts and litigants uncertain about which rule controls. It also gives a court a way to address an issue whose significance extends beyond the individual appeal.
For people following a case, the key points are straightforward: en banc review is a rare rehearing by a larger group of appellate judges; a petition must meet demanding standards and filing deadlines; and the court may decide the request without oral argument. The governing sources are Federal Rule of Appellate Procedure 35, Rule 40, 28 U.S.C. § 46, and the relevant circuit’s local rules.