En banc

"En banc", "in banc", "in banco" or in bank is a French term used to refer to the hearing of a legal case where all judges of a court will hear the case, rather than a panel of them. [ [http://www.lectlaw.com/def/e015.htm Legal Definition of En Banc ] ] [http://dictionary.law.com/default2.asp?selected=625 law.com Law Dictionary ] ] It is often used for unusually complex cases, or cases considered of unusual significance. Appellate courts in the United States sometimes grant rehearing "en banc" to reconsider a decision of a panel of the court (a panel generally consisting of only three judges) where the case concerns a matter of exceptional public importance or the panel's decision appears to conflict with a prior decision of the court. [Fed. R. App. P. 35(a).] In rarer instances, an appellate court will order hearing "en banc" as an initial matter, instead of the panel hearing it first.

Some appellate courts, such as the Supreme Court of the United States and the highest courts of most U.S. states, do not sit in panels, but hear substantially all of their cases "en banc" (with the exception of cases where a judge is ill or recused).

United States Courts of Appeals

Cases in United States Courts of Appeals are heard by a three-judge panel. A majority of the active circuit judges may decide to hear or rehear a case "en banc". Parties may suggest an "en banc" hearing to the judges, but have no right to it. Federal law states "en banc" proceedings are disfavored but may be ordered in order to maintain uniformity of decisions within the circuit or if the issue is exceptionally important. Each court of appeals also has particular rules regarding "en banc" proceedings. Only an "en banc" court or a Supreme Court decision can overrule a prior decision in that circuit; in other words, one panel cannot overrule another panel.

Pub.L. No. 95-486 states that for courts with more than 15 judges, an "en banc" hearing may consist of "such number of members of its en banc courts as may be prescribed by rule of the court of appeals." So far, only the United States Court of Appeals for the Ninth Circuit, with 28 judges, utilizes that procedure, and its "en banc" court consists of 11 judges. (Theoretically, the Ninth Circuit can hear the case with all judges participating. In practice, however, such a hearing has only been asked for three times, and has been denied each time.) ["See" "Compassion in Dying v. Washington", 85 F.3d 1440 (9th Cir. 1996); "United States v. Penn", 647 F.2d 876, 889-91 (9th Cir. 1980); "Campbell v. Wood," 20 F.3d 1050, 1051, 1053 (9th Cir. 1994)).]

The United States Court of Appeals for the Fifth Circuit, with 17 judges, is eligible to adopt a similar procedure, but has not done so.

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