How the Second Circuit overrules its decisions

Prior to 1891, there were no courts of appeals in the federal system.  In the decades following the Civil War, however, Congress increased federal jurisdiction and litigation began to overload the federal courts. 

In 1891, Congress created courts of appeals between the trial courts and the Supreme Court with the Evarts Act, an act named after its primary sponsor Senator William Evarts of New York.  The Act created nine new courts, originally known as the “United States circuit courts of appeals.”  (The name was changed to its current form in 1948.  Today, for example, the Second Circuit is officially “The Court of Appeals for the Second Circuit”).

The Evarts Act provided that the new appellate courts “shall consist of three judges.”  Consistent with this tradition, and now pursuant to 28 U.S.C. § 46(c), the appellate courts continue to hear cases with three-judge panels.[1] 

Each panel of the court is considered to be the court of appeals, and a decision of a three-judge panel carries the full weight of the court.  Every federal appellate court has held that a three-judge panel is bound by the opinions of prior panels until the decision is overruled either by the Supreme Court or that court sitting en banc.[2]  “En banc” is a hearing in which all the active judges of the court participate.  In Textile Mills Securities Corp. v. Conmissioner, the Supreme Court held that a court of appeals has the inherent power to sit en banc.[3] 

In addition, in 1978, Congress passed the Omnibus Judgeship Act, and authorized federal circuit courts consisting of more than fifteen judges to delegate en banc authority to a division of the full court, referred to “limited en banc court.”  Only Ninth Circuit has exercised this option formally, where an en banc court consists of eleven judges.

Unlike other circuits, however, the Second Circuit, however, has a “tradition of hearing virtually no cases” en banc.”[4]  Because of this fact, lawyers should be aware of the two primary ways that the Second Circuit will decide that one of its prior decisions should be reconsidered. 

“[I]f there has been an intervening Supreme Court decision that casts doubt on our controlling precedent, one panel of this Court may overrule a prior decision of another panel even if the intervening decision does “not address the precise issue decided by the panel.”  The second is a frequently referred to as “mini en banc.”

In broad terms, mini-en banc review works as follows: A three-judge panel tentatively decides that a precedent should be overruled. One of the judges on the panel writes a draft opinion on behalf of the panel overruling the precedent. The draft opinion is then circulated to all of the Second Circuit’s active judges, together with a note stating that the panel proposes to overrule a precedent. The panel then proceeds with overruling the precedent, presumably on the assumption that en banc review, while technically necessary, would have been a waste of time and resources in light of the views expressed by the active judges in response to the draft opinion.

Steven M. Witzel & Samuel P. Groner, Mini-En Banc Review In the Second Circuit, January 7, 2016, New York Law Journal.

[1] See Western Pac. R.R. Corp. v. Western Pac. R.R., 345 U.S. 247, 254 (1953).  The three-judge panel goes back to the Judiciary Act of 1869, ch. 22, § 2, 16 Stat. 44, 44, which provided a circuit would be composed of two Supreme Court justices and one district court judge from the district in which the case was pending.  See Roscoe Pound, Organization of Courts 103–04 (1940).

[2] The term “in banc” appeared in earlier versions of Federal Rule of Appellate Procedure 35. See FED. R. APP. P. 35 (1967).

[3] 314 U.S. 326 (1941). See generally Note, The Power of a Circuit Court of Appeals to Sit

En Banc, 55 Harv. L. Rev. 663 (1942). 

[4] See Ricci v. DeStefano, 530 F.3d 88, 92 (2d Cir. 2008) (Jacobs, C.J., dissenting from the denial of rehearing en banc); see also id. at 89-90 (Katzmann, J., concurring in the denial of rehearing en banc) (“Throughout our history, we have proceeded to a full hearing en banc only in rare and exceptional circumstances.”); see also Wilfred Feinberg, Unique Customs and Practices of the Second Circuit, 14 Hofstra L. Rev. 297, 311 (1986)