In Abraham Watkins Nichols Agosto Aziz & Stogner v. Festeryga, No. 23-20337 (5th Cir. May 16, 2025) (en banc), the Fifth Circuit unanimously overrules a 45-year-old circuit precedent and holds that an order remanding a removed case based on the defendant’s alleged waiver by participation in a state-court case falls within the court’s appellate jurisdictionContinue reading “En Banc Fifth Circuit Holds That Waiver-Based Remand Orders Are Appealable Under 28 U.S.C. § 1447, Overruling the Circuit’s Long-Standing Contrary Authority”
Tag Archives: En Banc Review
En Banc Fifth Circuit Divides 8-8 on Transfer of SpaceX Lawsuit Against NLRB from Texas to California, With the Dissent Accusing NLRB Counsel of “Improper Conduct”
In a published order, In re Space Exploration Technologies, No. 24-40103 (5th Cir. April 17, 2024), the Fifth Circuit denies en banc rehearing of a 2-1 panel order denying mandamus to vacate a district court’s decision under 28 U.S.C. § 1406(a) to transfer plaintiff SpaceX’s suit challenging the constitutionality of hearings before the National LaborContinue reading “En Banc Fifth Circuit Divides 8-8 on Transfer of SpaceX Lawsuit Against NLRB from Texas to California, With the Dissent Accusing NLRB Counsel of “Improper Conduct””
Full Fifth Circuit Splits Over Whether to Mandamus District Court to Suspend Trial Schedule in Rio Grande Floating Barrier Case While It Is Pending En Banc
In United States v. State of Texas, No. 23-50632 (5th Cir. Feb. 13, 2024), the Fifth Circuit – which voted to rehear the USA case to block Texas from erecting a floating barrier with Mexico – denies a stay of trial proceedings in the district court while the case is pending on appeal en banc;Continue reading “Full Fifth Circuit Splits Over Whether to Mandamus District Court to Suspend Trial Schedule in Rio Grande Floating Barrier Case While It Is Pending En Banc”
Tenth Circuit Grants Sua Sponte, Initial En Banc Hearing in Direct Federal Criminal Appeal, Prompting A “Dissental” by Two Judges
In an order published today, United States v. Hohn, No. 22-3009 (10th Cir. Jan. 31, 2024), a majority of the active judges of the Tenth Circuit order an en banc initial hearing in a direct federal criminal appeal, raising the prospect of overruling a 1995 panel decision. Two judges, in a separate opinion, express concernContinue reading “Tenth Circuit Grants Sua Sponte, Initial En Banc Hearing in Direct Federal Criminal Appeal, Prompting A “Dissental” by Two Judges”
Fifth Circuit Judge Expounds on Internal Operations, Castigates Justice Department in Dissent from Denial of Rehearing En Banc
In a dissent from denial of a sua sponte vote for rehearing en banc in a direct federal criminal appeal, United States v. Ramirez, No. 22-50042 (5th Cir. Sept. 19, 2023), Judge Jerry E. Smith rakes over the panel majority, the majority of active judges who voted against rehearing, and the Justice Department (for notContinue reading “Fifth Circuit Judge Expounds on Internal Operations, Castigates Justice Department in Dissent from Denial of Rehearing En Banc”
Sixth Circuit and En Banc Eleventh Circuit Each Forgive the Government’s Abandonment of Fourth Amendment Arguments, Finding Them Forfeited Rather Than Waived
Two courts issue decisions the same day considering Fourth Amendment arguments that the government forfeited, holding that federal courts of appeals have the power and can properly exercise their discretion to reach such issues. United States v. Campbell, No. 16-10128 (11th Cir. Feb. 16, 2022): Defendant Campbell was indicted for possessing a firearm as aContinue reading “Sixth Circuit and En Banc Eleventh Circuit Each Forgive the Government’s Abandonment of Fourth Amendment Arguments, Finding Them Forfeited Rather Than Waived”
Fourth Circuit Judge Decries Proliferation of “Advisory” Dissents from Denial of Rehearing En Banc
In Doe v. Fairfax Cnty. Sch. Bd., No. 19-2203 (4th Cir. Aug. 30, 2021) (order), denying rehearing en banc of a Title IX case involving sexual harassment, a Fourth Circuit judge calls for curtailing separate dissenting opinions that signal “disrespect for the hard work of the panel and for the full court’s decision not toContinue reading “Fourth Circuit Judge Decries Proliferation of “Advisory” Dissents from Denial of Rehearing En Banc”
Culture Wars in the Eleventh Circuit? En Banc Court Votes to Vacate Conviction Because Christian Juror Who “Trusted the Holy Ghost” Was Erroneously Dismissed from Trial
In United States v. Brown, No. 17-15470 (11th Cir. May 6, 2021) (en banc), a strict partisan split yields a 7-4 decision to vacate the fraud conviction of a former U.S. Representative because the judge removed a juror during deliberations who said that “A Higher Being told me [the defendant] was Not Guilty on allContinue reading “Culture Wars in the Eleventh Circuit? En Banc Court Votes to Vacate Conviction Because Christian Juror Who “Trusted the Holy Ghost” Was Erroneously Dismissed from Trial”
Sixth Circuit Grants Initial Hearing En Banc in Review of Tennessee Abortion Law, Over Dissent of Six Judges
In Bristol Regional Women’s Center, PC v. Slatery, No. 20-6267 (6th Cir. Apr. 9, 2021), the Sixth Circuit took the unusual step under Fed. R. App. P. 35(a) of granting initial hearing en banc of a challenge to Tennessee’s abortion waiting period law. A prior three-judge panel had denied the state’s motion for a stayContinue reading “Sixth Circuit Grants Initial Hearing En Banc in Review of Tennessee Abortion Law, Over Dissent of Six Judges”
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 purposesContinue reading “Sixth Circuit Judges Spar Over Whether En Banc Court Could Decide Stay Pending Appeal in Abortion Waiting-Period Case”
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