In February 2019, the District Court for the Southern District of Mississippi found in Thomas v. Bryant that State Senate District 22 v∂iolated the Votings Rights Act. The state petitioned the Fifth Circuit for a stay. However, a divided three-judge motions panel denied that request. Judge Clement dissented, and provided a glimpse into the court's internal proceedings:
This case presents several extraordinary issues. Unfortunately, this court's usual procedures do not appear to permit en banc review of this denial of a stay even if a majority of the active judges would otherwise grant it. I am afraid defendants have simply had the poor luck of drawing a majority-minority panel.
At the time, I criticized this passage on two grounds. First, she speculated at the likely outcome of a vote that could not be taken by the Fifth Circuit. Second, her reference to a "majority-minority" panel was a "poor attempt at humor will weaken the collegiality on what can be a feisty court."
Putting these barbs aside, was Judge Clement correct that "this court's usual procedures do not appear to permit en banc review of this denial of a stay"?
The Fifth Circuit's Practitioner's Guide offers this advice:
Procedural and interim matters, such as stay orders, injunctions pending appeal, appointment of counsel, leave to appeal in forma pauperis, denial of permission for an abusive litigant to file pleadings, denials of more time to file briefs, etc., are not matters subject to en banc consideration.
However, there is a problem relying solely on this guide. In a 2015 blog post, I observed:
There is nothing in the 5th Circuit's local rules suggesting that stay orders are not subject to an en banc vote. While the practitioner's guide is certainly helpful, it does not trump the FRAP, or the local rules, which expressly provide for an en banc vote for any "proceeding," of which a stay vote counts. The local rules make no specification that stays are excluded from en banc polls: REQUESTING A POLL ON COURT'S OWN MOTION – ANY ACTIVE MEMBER OF THE COURT OR ANY MEMBER OF THE PANEL RENDERING THE DECISION MAY REQUEST A POLL OF THE ACTIVE MEMBERS OF THE COURT WHETHER REHEARING EN BANC SHOULD BE GRANTED, WHETHER OR NOT A PARTY FILED A PETITION FOR REHEARING EN BANC. A REQUESTING JUDGE ORDINARILY SENDS A LETTER TO THE CHIEF JUDGE WITH COPIES TO THE OTHER ACTIVE JUDGES OF THE COURT AND ANY OTHER PANEL MEMBER.
(None other than Leif Olson–yes that Leif Olson–helped me with that post during the Texas v. U.S. litigation.)
On Tuesday, Thomas v. Bryant returned to the Fifth Circuit on direct appeal. And, a divided three-judge panel affirmed the District Court in part. Judge Willett "[r]espectfully, but fervently" dissented. Towards the end of his separate writing, Judge Willett poses, and answers the question Judge Clement flagged:
One might ask, "Well, if a majority of the court thought the order denying the stay was wrong, why didn't they take it en banc and fix it?" Answer: because a majority of our court thinks we are legally prohibited from taking an "interim" decision en banc.
Why is the Fifth Circuit "legally prohibited" from doing so?
Where might such a prohibition come from? It's certainly not in the Federal Rules of Appellate Procedure. Rule 35 says a majority of a circuit's judges "may order that an appeal or other proceeding be heard or reheard by the court of appeals en banc." And our operating procedures say "[a]ny active member of [our] court . . . may request a poll," whether or not the parties ask for one themselves. It's hard to imagine how the proceedings before the panel, which as a matter of constitutional necessity comprised a case or controversy, could not also be a "proceeding" under Rule 35. And they're certainly part of the larger "appeal" currently before our court.
Judge Willett notes that the Fourth, Seventh, Eighth, and Ninth Circuits have all reviewed en banc stay motions.
Perhaps that's why our fellow circuit courts routinely entertain en banc petitions over appeals or proceedings like this one. If the Federal Rules prohibited en banc consideration of such motions, the prohibition would apply in our sister circuits as much as it would in ours. But it doesn't.
Why, then is the Fifth Circuit different? Judge Willett cites the "non-public 'Internal Court Policies.'"
One thing that might differentiate our court from others is our non-public "Internal Court Policies." Might those prohibit us from reconsidering an "interim" decision en banc? Again, no. I cannot quote our internal policies because they are stamped: "NOT FOR PUBLIC DISTRIBUTION." But I don't need to quote them to prove nonpublic "rules" aren't rules at all.
I have heard through the grapevine that such a policy exists, but this is the first time I have seen confirmation of that rumor from the court itself. I agree with Judge Willett. Rules that are not published are not rules.
Indeed, Judge Willett invoked what Justice Scalia referred to as "Nero's nasty practices."
A rule we apply and yet never disclose is worse than a rule posted "high on the columns so that [it] would be harder to read and easier to transgress."
Judge Willett then adds a bit of a wrinkle–if the panel's decision was not subject to en banc review, then it may not bind other panels:
Three judges, who act on behalf of all of us, can issue a decision that binds all of us precisely because there is a mechanism that allows the full Court to revisit that decision. As wrong as it is, the order denying a stay in this case is now published in the Federal Reporter, and it establishes Fifth Circuit precedent on the workings of stay applications. But if the full court cannot take it en banc, then perhaps the other members of this court—who never had the opportunity to reject or bless what the panel did here—should not be bound by it in a future case. Which, of course, invites chaos as each motions panel becomes a law unto itself.
He concludes:
I firmly believe every one of my colleagues strives to get the right answer when he or she sits on a panel or rules on a single-judge motion. But we all make mistakes. By not taking the stay denial en banc, we shirked our duty to correct a serious mistake. Not because this case is unimportant, and not because we're unconvinced a grievous mistake was committed. But rather because we've convinced ourselves that our hands are tied. I hope, in time, we'll recognize that's a mistake too.
I emphatically agree with Judge Willett. This practice is a mistake. The Fifth Circuit should rescind this internal document. It is fundamentally unfair to operate a secret rule practice, with no notice, that is inconsistent with FRAP.
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