August 14, 2020 - Federal Circuit Insights

Agreeing to Disagree, en Banc Style: How Often Do Judges Dissent From Denial of Rehearing En Banc?

As we mentioned in one of our previous posts, the Federal Circuit recently denied a long-pending petition for rehearing en banc in American Axle & Manufacturing v. Neapco Holdings, a Section 101 case. More than 8 months after the filing of a rehearing petition, the original panel modified its opinion, and the en banc court evenly divided over whether to rehear the case. (A majority of eligible active judges must vote to take a case en banc, so if the Court is evenly divided, the en banc poll fails.)

That piqued our curiosity about the Court’s other dissents from denials of en banc rehearing (sometimes called “dissentals”)—how often they occur, what types of cases are more likely to draw such dissents, and how such dissents affect the likelihood that the Supreme Court will grant review. So, as we often do here at Federal Circuitry, we dug into the data.

Between January 1, 2015, and August 12, 2020, we counted 33 denials of en banc rehearing that drew at least one noted dissent. There were a few instances where multiple rehearing petitions raised the same issue; we combined those for purposes of our tabulation. Note also that Judge Stoll, the Court’s most recent appointee, joined the Court midway through 2015, so there were a few en banc polls in our data set in which she didn’t have an opportunity to participate.

The following chart shows how many times each judge has dissented from denial of en banc rehearing and how many votes for en banc rehearing each judge’s panel majority opinions received. The chart omits rows for senior judges who did not author a panel majority opinion that garnered a dissent from denial of rehearing en banc (and columns for all senior judges, since senior judges cannot participate in the en banc process).

As you can see, the numbers vary widely among the judges. With 27 noted dissents from denial of en banc rehearing, Judge Newman had nearly twice as many such dissents as the next most prolific dissenter. Judges Wallach, O’Malley, and Reyna also recorded a fair number of such dissents—14, 11, and 11, respectively. (Those names may look somewhat familiar to those who read our earlier post about how often judges dissent at the panel stage—Judges Newman and Reyna also were the source of most of the Court’s panel-stage dissents.) By contrast, Judges Taranto and Chen had no noted dissents from denials of rehearing en banc.

On the other side of the ledger, panel majority opinions authored by Judge Dyk drew by far the most dissents from denial of en banc rehearing (29), while those from Judges Newman, Taranto and Chen garnered no such dissents. Another interesting statistic not captured in the above chart: of the 33 en banc denials with a dissent in our data set, 25 (about 75%) had either a concurring or dissenting opinion at the panel stage. These separate opinions perhaps signal to off-panel judges that a rehearing petition is worth a closer look.

The next chart shows the distribution of the number of judges dissenting from any given denial of en banc rehearing. As we suspected, the Court is rarely evenly divided as it was in American Axle. More often, only 1, 2, or 3 judges have noted dissents. Of course, the number of judges needed to take a case en banc changes if some active judges do not participate, e.g., if they are recused from that case. For instance, if 1 of the Court’s 12 active judges is recused, 6 votes are enough to grant en banc rehearing.

We also looked at the types of cases and issues that drew dissents from denials of rehearing en banc. The chart below shows the number of cases in our data set from each originating tribunal.

District-court cases make up a disproportionate share of denials of en banc rehearing that garnered a dissent. Cases from district courts made up 37% of the Court’s docket in 2015 and 22% of the Court’s caseload in 2019, but they were 14 of the 33 (42%) cases in our data set. The high proportion of district-court cases is perhaps unsurprising. After all, litigating a district-court case through judgment and appeal is comparatively more expensive and time-consuming, which may lead parties to settle if the law or facts clearly favor one outcome. So the cases that remain and reach the Federal Circuit are more likely to have unsettled legal issues or complicated facts on which reasonable minds might disagree.

By contrast, PTAB cases are underrepresented—they made up 24% of the Court’s docket in 2015 and 43% of the Court’s caseload in 2019, but only 7 of the 33 (21%) cases in our set of en banc denials with a dissent. The origins of the other cases that drew dissents from denials of rehearing en banc were fairly representative of the remainder of the Court’s docket.

Our next chart shows the issues involved in the patent cases that resulted in dissents from denials of en banc rehearing.

The district-court cases concerned a variety of issues, the most common being patent eligibility under Section 101, damages issues, and indefiniteness. The PTAB cases, by contrast, all involved constitutional or statutory issues unique to the PTAB setting, like the constitutionality of the appointment process for administrative patent judges (Arthrex) and the propriety of using the broadest-reasonable-interpretation standard in IPRs (Cuozzo). And the one case from the ITC involved a statutory-interpretation issue that arises only in ITC proceedings.

Finally, we examined how the cases in our data set fared when the losing party at the Federal Circuit sought review in the Supreme Court. Of our 33 cases, 25 have resulted in cert petitions thus far; of those, 7 were granted, 13 were denied, 3 are still pending, 1 was dismissed because the parties settled the underlying case, and 1 resulted in vacatur of the judgment below as moot. Thus, of the 20 cert petitions that have gotten a thumbs up or down from the Supreme Court, 35% were granted. That’s substantially higher than the proportion of all paid cert petitions that are granted—approximately 5%. Our data thus seem to confirm the conventional wisdom that a dissent from denial of en banc rehearing increases the likelihood that a case will get the attention of the Justices and their clerks.

Of the 7 cases that have resulted in cert grants, the Supreme Court reversed the Federal Circuit in 5, affirmed in 1, and vacated the judgment as moot in 1. Interestingly, the 1 affirmance followed the closest en banc poll (6-5); the 5 cases resulting in reversals only garnered 1, 2, or 3 votes for rehearing en banc. And of the 5 reversals, Judge Newman dissented from denial of en banc rehearing in 4; Judges O’Malley and Wallach dissented in 2; and Judges Moore, Reyna, and Hughes dissented in 1 each.

If you found this post interesting, check out our sister blog Left Coast Appeals, which is doing a series on en banc proceedings in the Ninth Circuit. The first two entries are here and here.

Samuel B. Goldstein co-authored this article as an associate in our Appellate + Supreme Court practice before departing the firm for a judicial clerkship.