The Second Circuit is notorious for denying nearly every request for en banc review. Other Circuits are more generous in this regard. Still, the Second Circuit's stingy en banc practice does not stop attorneys from getting that second bite at the apple. We've all been there. Appellate attorneys always want their cases heard en banc, especially when their cases run up against a Second Circuit precedent which can only be set aside through en banc review or the Supreme Court. Without regular en banc cases, old precedents of the Second Circuit remain the law of the Circuit for years.
The Court of Appeals recently issued a some written opinions from the judges over whether to hear an employment discrimination case en banc. The case involves a municipality's determination to put aside test scores for a firefighter's position because the test had a disparate impact on racial minorities. The City took facially-neutral but race-conscious measures to avoid liability. The City did this because Title VII of the Civil Rights Act of 1964 recognizes the "disparate impact" theory of liability if the test is not sufficiently job-related for the position.
Separate opinions have been streaming out of the Court of Appeals over the past week. Today's entry is from Dennis Jacobs, the Second Circuit's chief judge. What makes Judge Jacobs' opinion dissenting from the Court's determination not to hear the case en banc is that the Court is not hearing enough cases in this posture. He notes that "The grant or denial of in banc review is governed by [Rule] 35, which says that in banc rehearing is disfavored--unless such review is needed for coherence of the Court’s decisions or 'the proceeding involves a question of exceptional importance.'" He suggests that other judges on the Court are going out of their way to deny en banc petitions when the Court of Appeals should be taking up those cases. While the judges have discretion not to hear cases en banc,
No doubt, the proper exercise of discretion results in the denial of review in the overwhelming number of cases. And the resulting pattern may resemble the pattern of denial that would result from saying “no” by tradition. But the decision to grant or deny in banc review is like any other discretionary decision in the sense that discretion should be exercised, not elided or stuck in a default position.
While some judges believe that an issue of overriding importance should be heard by the Supreme Court, Judge Jacobs offers a cogent response:
I do not think it is enough for us to dilate on exceptionally important issues in a sheaf of concurrences and dissents arguing over the denial of in banc review. If issues are important enough to warrant Supreme Court review, they are important enough for our full Court to consider and decide on the merits. . . . [T]o rely on tradition to deny rehearing in banc starts to look very much like abuse of discretion.