More On Unpublished Opinions And En Banc Stratagems In The Fifth Circuit
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 I recently blogged about an unpublished opinion concerning Planned Parenthood. I suggested that the panel’s choice to make the opinion unpublished was an attempt to shield the case from en banc review.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 First, the published opinion from January 10 was withdrawn. Second, an unpublished opinion was filed in its place.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 Still, this incident provides some proof that making a decision “unpublished” is a means to avoid en banc review.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 disqualifie
Article from Reason.com
The Reason Magazine website is a go-to destination for libertarians seeking cogent analysis, investigative reporting, and thought-provoking commentary. Championing the principles of individual freedom, limited government, and free markets, the site offers a diverse range of articles, videos, and podcasts that challenge conventional wisdom and advocate for libertarian solutions. Whether you’re interested in politics, culture, or technology, Reason provides a unique lens that prioritizes liberty and rational discourse. It’s an essential resource for those who value critical thinking and nuanced debate in the pursuit of a freer society.
