9th Circuit Increasing Size of En Banc Panels

Effective January 1, 2006, the Ninth Circuit Court of Appeals will up the number of judges participating in en banc rehearing panels from 11 to 15.

Federal appeals initially are decided by three judge panels. The en banc procedure, used to rehear certain decisions, was designed to maintain uniformity of decisions within a circuit and to resolve exceptionally important issues of law. As a result of this rule amendment, now a majority of Ninth Circuit judges - the Circuit has 28 judges in all - will be participating in en banc hearings.

In a news release, Chief Judge Mary M. Schroeder said the court has been pleased with the 11-judge panel, but this rule change is "intended to respond to criticism tthat we should have a majority of our active judges sitting on each en banc."

This is a positive step. Given its sheer size, it's not unheard of to see conflicting opinions on the same legal issue coming out of different three-judge panels. Now, with a majority of judges involved in the en banc rehearing process, that may change. It will be interesting to see if the new rule has any effect on the number of en banc requests that are granted. According to the news release, in 2004 the Ninth Circuit received 827 requests for rehearing en banc. It granted 22.