Fourth Circuit Weighs “Exceptional Importance” and Possible En Banc Hearing on Travel Ban 2.0

By Derek Stikeleather

President Trump’s revised “travel ban,” which targets six predominantly Muslim nations, has drawn intense media scrutiny and legal challenges across the nation. The proceedings in the federal Ninth Circuit Court of Appeals, which includes Hawaii and Washington, have garnered the lion’s share of the media spotlight. But proceedings here in the Fourth Circuit may yield the first substantive appellate court decision on the travel ban’s constitutionality.

As often happens in high-profile appeals, unusual procedural questions have also arisen. Last week, the Fourth Circuit received briefing, which it had ordered from the parties just days earlier, “on the appropriateness of initial en banc review” by the entire court. This is atypical for many reasons. First, Fourth Circuit appeals are ordinarily resolved by a three-judge panel (and normally on the papers without a live hearing). Second, only a tiny fraction of cases (roughly 0-4 per year) are heard en banc, i.e., by the entire court, which consists of fifteen active (i.e., non-senior status) judges. And these en banc reviews normally follow a split-panel decision. So en banc review without a prior panel decision presents an extremely unusual procedural posture. Third, the court’s decision to order the parties to brief whether they consider initial en banc review appropriate is even more unusual because the purely discretionary decision has no underlying legal principle that must be upheld. Unlike a question of subject-matter jurisdiction or evidence admissibility, it is not a decision that the court can possibly “get wrong.” Instead, the decision on the propriety of hearing the case initially en banc rests entirely on the preference of the court. It really doesn’t matter what the parties think.

Intrigued by this procedural posture, I immediately began to wonder whether the parties would have anything beyond Federal Rule of Appellate Procedure 35 to direct the court to as the basis for its decision. Federal Rule of Appellate Procedure 35(a) provides that a majority of circuit judges “may order that an appeal or other proceeding be heard … by the court of appeals en banc.” But it immediately warns that an “en banc hearing is not favored and ordinarily will not be ordered.” The rule provides two exceptions to the presumption against ordering en banc determination of an appeal: when “(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.”

Section (b), which addresses the limited circumstances where parties may petition for en banc review, sheds a thin ray of light on what constitutes a “question of exceptional importance.” Specifically, FRAP 35(b)(1)(B) states, “for example, a petition may assert that a proceeding presents a question of exceptional importance if it involves an issue on which the panel decision conflicts with the authoritative decisions of other United States Courts of Appeals that have addressed the issue.” But this provision not only presumes that a panel decision exists but also echoes subsection (A)’s alternative requirement that a petition for en banc review from a panel decision be “necessary to secure and maintain uniformity of the court’s decisions.” Outside of cases that present conflicting holdings within the federal appellate system, practitioners are left with little guidance on what meets the nebulous threshold of “exceptional importance.”

Practitioners must wrestle with the circular wisdom that a proceeding presents a question of exceptional importance when the court thinks that the question presented is exceptionally important. Not surprisingly, both parties filed briefs assuring the court that the case is “exceptionally important” and worthy of en banc review. (Neither side argued that the appeal presents conflicting holdings.) It’s been my experience that virtually all appellate attorneys consider their cases “exceptionally important” (at least until they prevail in a 2-1 panel decision and are asked to answer a petition for en banc review). Nor would I disagree with the view that the case is, in fact, exceptionally important. But, in asking the parties to brief the issue of initial en banc review, it appears that the court has ordered the parties to tell it what it already knows: this case is a very big deal.