Rehearings at the Fifth Circuit

After attending the en banc arguments in the Texas voter-ID case this past Tuesday, I got curious and decided to dig into rehearing practices at the Fifth Circuit. Here’s what I found:

First, according to the court’s most recent stats report (2014-2015), the court received 236 petitions for rehearing en banc (PFREBs), or a PFREB in 8% of all cases decided with an opinion. But the court granted rehearing en banc just 5 times—and once on the court’s own motion—so just 4 times on a PFREB. That’s only a 2% grant rate. In fact, including these 5 grants, the court took a poll for en banc rehearing only 19 times, or for only about 8% of the PFREBs. In other words, about 92% of PFREBs are denied without even a poll. It takes only one judge to request a poll—so 92% of the time the PFREB fails to get even one of the 15 judges interested enough to request a poll.

Unfortunately, it looks like the court doesn’t keep numbers on regular PFRs (i.e., petitions for rehearing before the panel, instead of en banc). But I’m guessing those numbers are even worse.

A key takeaway from this, in my estimation, is that way too many PFREBs are filed when they shouldn’t be. I once heard one of the Fifth Circuit judges say, at a conference, that PFRs/PFREBs are one of the most abused tools in the attorney’s toolbox. The numbers support this claim. And the broader problem (surely) is that this dilutes the potency of those PFRs/PFREBs that really do have merit. So, generally speaking, it’s probably a good idea for practitioners to steer clients away from a PFR/PFREB whenever possible—because it’s most likely not worth the court’s time, not worth the client’s money, and not worth the hit to your credibility as an advocate.

Besides the numbers, though, I was also curious about the decisions of individual judges. So I pulled as many decisions on rehearing that I could find, from the past 3 years, to take a look at the names of the judges involved. (Note: I’m not sure I found all of them, so this report is limited to the ones I found and may not represent the full results over the past 3 years.)

I found 29 cases, over the past 3 years, in which a PFR or a PFREB was granted. (Oftimes a PFREB was treated as a PFR and granted for rehearing by the panel, instead of by the en banc court.) In these grants, I looked at the judges who were part of the initial panel decision that was withdrawn for reconsideration. Here are the judges who were most frequently part of the initial panel decision that was reheard either by the panel itself or en banc:

  • Prado (8)
  • Stewart (7)
  • Reavley (6) – senior status
  • Davis (5)
  • DeMoss (5) – now retired
  • Owen (5)
  • Elrod (5)
  • Graves (5)
  • Smith (4)
  • Southwick (4)
  • Higginson (4)
  • King (4) – senior status
  • Jolly (3)
  • Higginbotham (3) – senior status
  • Haynes (3)
  • Dennis (3)
  • Clement (2)
  • Costa (2)
  • Barksdale (2) – senior status
  • Wiener (1) – senior status
  • Benavides (1) – senior status

Notably, a panel rehearing means the panel itself recognized that it needed to change something—and panel rehearings are far more common than en banc rehearings. So these numbers don’t necessarily mean that Judge Prado, for example, is part of a lot of decisions that other judges want to reconsider. Rather, these numbers could indicate that Judges Prado and Stewart are the two active judges who are most willing to reconsider their own decisions, to make sure they’re getting it right. Incidentally, Judge Jones is the only active judge on the court who, in the past 3 years, was not part of a single panel decision on which rehearing was granted.

Also worth noting: of these 29 cases in which rehearing was granted, 7 (24%) involved opinions that were initially unpublished. So it appears the “unpublished” status of a decision is not itself dispositive of whether rehearing is warranted.

Next, I looked at the cases in which a PFREB was denied with a dissental. I found 24 of these cases from the past 3 years. (Again: I’m not sure I found all of them, so this report is limited to the ones I found and may not represent the full results over the past 3 years.) Here are the judges who most frequently wrote or joined in a dissental:

  • Jones (15)
  • Clement (13)
  • Owen (11)
  • Smith (11)
  • Dennis (9)
  • Jolly (8)
  • Graves (7)
  • Davis (4)
  • Prado (3)
  • Southwick (3)
  • King (3) – senior status
  • Stewart (2)
  • Elrod (2)
  • Higginson (2)
  • Haynes (1)
  • Costa (1)
  • Garza (1) – now retired

Notably, every active judge on the court has written or joined in a dissental at least once in the past 3 years. And it was common to see some combo of Jones, Clement, Owen, and Smith. Indeed, Jones—who, in the past 3 years, was never part of a panel that decided to reconsider its own decision—was nevertheless involved more than anyone else (63% of the time) in a dissental arguing that the court should have reconsidered another panel’s decision.

Also worth noting: two judges—Haynes and Costa—were at the bottom of both lists, suggesting they are generally uninterested in rehearing cases. Of course, Costa is still new and hasn’t even been on the court for the full 3 years that I was reviewing, so this assessment might be premature for him. But practitioners should take note when Haynes is part of a panel decision, because it might mean your chances at rehearing are even lower than usual.