Publication Date
4-3-2023
Abstract
The vast majority of decisions of the U.S. Court of Appeals for the Tenth Circuit are rendered by a panel of three judges. But sometimes, all active members of the court, and any senior judge who was part of the original three-judge panel, will sit together to decide a particular issue. This process is called “en banc” review. Parties often ask the Tenth Circuit to “go en banc,” as it has been colloquially dubbed, but the court rarely entertains such requests. The substantial disparity between the total number of appeals in the Tenth Circuit each year, the number of en banc petitions filed, and the number of petitions granted suggests that practitioners might benefit from a primer on some of the strategic and pragmatic considerations of seeking en banc review. That is what we aim to provide in this Article. We begin by providing a brief overview of the governing standards for en banc proceedings in the Tenth Circuit. After laying the groundwork for our discussion, we share some statistics about the fate of most en banc petitions filed in recent years. The statistics reveal that en banc consideration truly is “extraordinary”—not only in theory but also in fact. Against this backdrop, we offer some pointers and considerations for appellate attorneys and their clients to keep in mind when contemplating whether their case merits the “extraordinary procedure” of en banc review. By discussing these considerations and providing examples of how they apply in practice, we hope that appellate attorneys and their clients will have a better sense of whether and how to urge the Tenth Circuit to go en banc.
First Page
325
Recommended Citation
Bobby R. Baldock, Joel M. Carson II. & Bryston C. Gallegos, Strategic Considerations for Going en banc in the Tenth Circuit, 100 DENV. L. REV. 325 (2023).