For nearly four years, there was a never-ending drumbeat about how the Fifth Circuit was an existential threat to the rule of law. Yet, over the past two months or so, it has gotten very quiet. That giant sucking sound you hear, as Ross Perot might have said, is all of the cases flooding north to the First and Fourth Circuits.
Yet, the Fifth Circuit remains the most interesting circuit in the country. I recently blogged about an unpublished opinion concerning Planned Parenthood. I suggested that the panel’s choice to make the opinion unpublished was an attempt to shield the case from en banc review.
Another case raises some similar issues.
On January 10, 2025, the Fifth Circuit issued a published opinion in United State v. Bell (23-50755). Four days later, there was a docket notation that (at least) one judge has held the mandate. On the Fifth Circuit, any judge can hold the mandate. Once such a hold is made, there is a signal to the parties that rehearing is more likely. On January 24, 2025, the United States filed a petition for panel rehearing. (The government did not file a petition for rehearing en banc). On January 27, 2025, the Fifth Circuit requested the defendant to respond to the petition. The response was filed on January 31.
Fast-forward to February 28. There were several docket notations in rapid succession. First, the published opinion from January 10 was withdrawn. Second, an unpublished opinion was filed in its place. I’ve generated a redline version. There were many substantive changes made. Third, the judgment was entered and filed. Fourth, it was revealed that a member of the Fifth Circuit requested a poll for rehearing en banc, and that poll failed (more on the vote later). And fifth, the order withholding the issuance of the mandate was vacated, meaning that one or more judges released the hold.
So the bell has tolled for Bell, barring certiorari. Still, this incident provides some proof that making a decision “unpublished” is a means to avoid en banc review.
But there is much more to this situation.
The government only filed a petition for panel rehearing. DOJ did not seek a petition for rehearing en banc. But at least one member of the en banc court sua sponte asked for a poll, as the rules permit. The order states:
The court having been polled at the request of one of its members, and a majority of the judges who are in regular active service and not disqualified not having voted in favor, on the Court’s own motion, rehearing en banc is DENIED. In the en banc poll, five judges voted in favor of rehearing (Judges Jones, Smith, Duncan, Engelhardt, and Oldham), and twelve judges voted against rehearing (Chief Judge Elrod and Judges Stewart, Richman, Southwick, Haynes, Graves, Higginson, Willett, Ho, Wilson, Douglas, and Ramirez).
Judge Ho, who concurred in denial of rehearing wrote a brief statement:
Our court’s internal operating procedures expressly permit rehearing en banc “whether or not a party filed a petition.” 5th Cir. R. 40 I.O.P. Our procedures even observe that we “frequently” grant en banc at the request of “a judge of the court rather than a petition by the parties.” Id. See also Neese v. Becerra, 127 F.4th 601, 603 n.1 (5th Cir. 2024) (Ho, J., dissenting from denial of rehearing en banc).
. . . Despite all of this, it may be tempting at times to question an en banc poll where “the losing side chose not to seek en banc rehearing” (as was said in Neese). . . .
And it’s precisely because we’re flawed that we should apply the same principles no matter how popular (or not) the call for en banc. It was said in Neese that “[t]he poll failed 16–1.” That vote might be a nightmare for those who fear being an outsider. Cf. C.S. Lewis, The Inner Ring (1944), available at https://www.lewissociety.org/innerring/. But judges swear an oath to uphold the law, without fear or favor. A call for en banc can be unpopular yet principled. Cf., e.g., Coral Ridge Ministries v. So. Poverty Law 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 those who do not follow the Fifth Circuit’s en banc docket closely (and why would you not!?) Neese v. Becerra was decided on January 31. In this case, the Fifth Circuit voted 16-1 to deny en banc review in a challenge to a Biden-era transgender rule. Only Judge Ho voted to grant review. Judge Duncan concurred in the denial of rehearing en banc, joined by Judges Jones, Smith, Willett, Oldham, Engelhardt, and Wilson. (Five of those seven voted to rehear Bell.) Judge Duncan wrote:
Even though the losing side chose not to seek en banc rehearing, one judge called for an en banc poll. The poll failed 16–1. That should surprise no one, because there was no plausible reason to rehear this case.
Judge Ho replied to Judge Duncan:
A brief response to my concurring colleagues: The fact that Executive Branch officials have dutifully done their job doesn’t mean that we needn’t do ours. Nor is our job obviated by the fact that Plaintiffs calculated (correctly, as it turns out) that a rehearing petition would not be an efficient use of their resources. Our rules plainly authorize us to rehear cases en banc on our own motion, precisely to alleviate litigants of unnecessary litigation burdens. See Fed. R. App. Proc. I.O.P. 40 (“Requesting A Poll On Court’s Own Motion”). The only question is whether a particular case warrants en banc.
By denying rehearing en banc, our court today leaves on the books a published, precedential ruling that overturns the district court’s dutiful efforts and validates administrative overreach in an area of profound sensitivity. I’ve previously expressed my concerns about allowing government officials to engage in procedural stratagems to avoid judicial review. See U.S. Navy SEALs 1-26 v. Biden, 72 F.4th 666, 677 (5th Cir. 2023) (Ho, J., dissenting) (citing Tucker v. Gaddis, 40 F.4th 289, 293 (5th Cir. 2022) (Ho, J., concurring)). Our decision today continues the pattern.
And we’re not quite done. On February 26, 2025, the Fifth Circuit denied en banc review in Spring Siders v. City Brandon, Mississippi. Here, the en banc poll was 15-2. Chief Judge Elrod and Judge Ho would have granted rehearing. Judge Ho wrote a solo dissent. Judge Oldham concurred in the denial of rehearing en banc, which was joined by Judges Jones, Smith, Willett, Duncan, Engelhardt, and Wilson. This septet is the same bloc that concurred in Neese, and includes the same quintet that dissented in Bell. You can see what Judge Ho was getting at by citing C.S. Lewis’s “The Inner Ring.” I need to do a more careful study of voting blocs on the en banc court.
Judge Oldham’s opinion contends that en banc review was not appropriate in Spring Siders:
If this case implicated the First Amendment’s Religion Clauses, the result might have been different. But rhetorical flourish is no substitute for the facts and law in the case before us.
Judge Ho, once again, replies:
I get that my concurring colleagues are content to just let this matter go to trial. But that seems unnecessarily grudging to me. “The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury,” warranting preliminary injunctive relief in advance of trial. Elrod v. Burns, 427 U.S. 347, 373 (1976). See also Opulent Life Church v. City of Holly Springs, 697 F.3d 279, 295 (5th Cir. 2012) (same). Maybe Siders will someday prevail at trial. But until then, her right to evangelize will just have to wait.
There is a lot going on here. The interpersonal dynamics of the Fifth Circuit are unlike any other court in the country, even the U.S. Supreme Court. I realize everyone is focused now on the (yawn) Fourth Circuit and the (snooze) First Circuit. But the real action is deep in the heart of Texas.
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