Sixth Circuit Judges Spar Over Whether En Banc Court Could Decide Stay Pending Appeal in Abortion Waiting-Period Case

In Bristol Regional Women’s Center, PC v. Slatery, No. 20-6267 (6th Cir. Feb. 19, 2021), the panel denies a motion to stay pending appeal of an injunction of a Tennessee statute that imposes a waiting period on abortions in the state. The majority and dissenting opinions clash not only over the merits, but (for purposes relevant to this blog) over whether such interim relief is entitled to en banc review.

“On October 14, 2020, following five years of litigation and a four-day bench trial, the district court issued a comprehensive, 136-page opinion setting forth the findings of fact and conclusions of law that supported its ultimate conclusion that [the Tennessee statute] § 39-15-202(a)–(h)’s waiting period (whether 48 or 24 hours) violates the Due Process Clause of the Fourteenth Amendment ….  Accordingly, the district court declared the statute’s waiting period unconstitutional and permanently enjoined its enforcement.”

The same day that the state appealed the adverse judgment, it also moved in the district court to stay the judgment pending appeal. The lower court denied that relief. The state then moved for the same relief in the Sixth Circuit under Fed. R. App. P. 8(a).

The panel majority (signed by Judge Moore, joined by Judge White) denies a stay, holding that the state failed to show that it was likely to succeed on the merits. “[W]e conclude that this is the ordinary constitutional case where likelihood of success on the merits is determinative on the issue of whether to grant a stay pending appeal.”

The panel majority confronts a challenge by the dissent (signed by Judge Thapar) that the stay motion ought to be taken up by the full court. It makes a multi-pronged attack on the suggestion for en banc review in a lengthy footnote.

First, it locates no case authority supporting the dissent. “Indeed, despite our dissenting colleague’s impressive string citation, he fails to reference a single case where this court has assembled en banc to review a premerits stay order. Rather, each involves en banc review of a panel opinion resolving a direct appeal of a preliminary injunction—something that the court unquestionably has the authority to do, but something that is inapposite in the context of a stay order.”

Second, it finds such preliminary en banc review contrary to efficiency. “It is one thing for the en banc court to take on a matter once it has run its course with the merits panel; it is something else entirely to burden the court and the parties with en banc proceedings on a pre-merits stay order while the panel and the parties proceed on the merits of the appeal. Such a course of action would be exceedingly wasteful, especially when the en banc court is able to review the panel’s resolution of the appeal itself in due course.”

Third, “this court’s Internal Operating Procedures preclude such a wasteful result. They specify that only ‘[p]etitions seeking rehearing en banc from an order that disposes of the case on the merits or on jurisdictional grounds are circulated to the whole court’ with limited exceptions that do not apply here. See 6 Cir. I.O.P. 35(g). Otherwise, ‘[p]etitions seeking rehearing en banc from other orders will be treated in the same manner as a petition for panel rehearing: They will be circulated only to the panel judges.’ See 6 Cir. I.O.P. 35(h).”

Finally, the state could have – but chose not to – seek initial hearing en banc, a suggestion that the dissent makes sua sponte. “[W]e think that Defendants are quite capable of making their own strategic decisions without our dissenting colleague’s assistance. Suffice it to say, there are good reasons for leaving our ordinary procedures in place and allowing an appeal to run its course before calling upon the full court to resolve an issue. The parties soon will have fully briefed the merits, expanding upon their initial arguments here. With the benefit of more detailed briefing and (if required) oral argument, the resulting opinion(s) will be all the more informed.”

In dissent, Judge Thapar finds a route for immediate en banc consideration. “Rule 35 says a majority of a circuit’s judges ‘may order that an appeal or other proceeding be heard or reheard by the court of appeals en banc.’ Fed. R. App. P. 35(a) (emphasis added). And the United States Code provides that a majority of active circuit judges may hear any ‘case or controversy’ en banc. 28 U.S.C. § 46(c). Finally, our operating procedures say that any active judge may request a poll sua sponte. 6th Cir. I.O.P. 35(e). When that occurs, ‘the clerk will immediately circulate voting forms to the en banc court.’”