The Great Writ

The Fifth Circuit Court of Appeals recently granted a petition from the Government seeking a rehearing en banc in W.M.M. v. Trump.  Because there still is a habeas corpus aspect to this case – and a suggestion by the dissent in the panel opinion that class certification isn’t appropriate for habeas cases – it is worth looking at the process and some interesting opinions expressed by some members of the court.  

Rehearings en banc are considered to be unusual – and not court favorites.  As the Fifth Circuit observers in its Internal Operating Procedures, “[p]etitions for rehearing en banc are the most abused prerogative of appellate advocates in the Fifth Circuit.” Despite this attitude, the Fifth Circuit has had the second largest number of en banc rehearings among all the circuits from 2011-2020.  Once a petition has been filed, any active judge of the circuit can request a poll of the active judges to determine if a majority favors a rehearing en banc.  In general, Federal Rule of Appellate Procedure 35(A) states that there are two grounds for granting a rehearing.  First, to secure or maintain uniformity in the court’s decisions. Second, when the proceeding involves a question of exceptional importance.  In the Fifth Circuit, additional grounds for a rehearing include conflicts with prior decisions of the Supreme Court or the circuit, or conflicts with state law precedent. In this case, a member of the court must has asked for a polling and the court noted that fact in its order.  The order also noted that a majority of the active (non-disqualified) judges had voted to rehear the case. The court did not state what aspect of FRAP 35(A) justified the rehearing. As a consequence of the vote, the court vacated the panel opinion issued on September 2, 2025.

There were two opinions attached to the order.  The first, by Judge James C. Ho, was a concurrence.  He made two points that are interesting and/or telling.  First, he notes that the concern expressed by the dissent (soon to be discussed herein) about delay is misguided because, “the burden of any delay falls on the Government.  And the Government asked for the rehearing en banc, rather than seek certiorari in the Supreme Court.”  Thus, Judge Ho correctly notes that if the litigation strategy chosen by the Government has consequences such as delay, it’s their own fault for choosing that strategy.  But don’t mistake Judge Ho’s comments to represent some sort of sympathy for the petitioner/appellee position.  Judge Ho continues by suggesting that the Fifth Circuit is responsible for this problem because it erred by involving itself in the illegal alien’s issue in the first place.  Ho points to United States v. Abbott and suggests that “we could have minimized delay by declaring … that the Judiciary has no business telling the Executive that it can’t treat incursions of illegal aliens as an invasion.”  It’s pretty clear how Ho will decide this particular case.

Judge Leslie H. Southwick (the drafter of the majority panel opinion in this case) argues, in a dissent, that because of the delay associated with a rehearing, the court should reject the petition and, thus force the Government to move the case along to the Supreme Court where it belongs.  Southwick notes that “[t]he parties deserve conclusive answers that only the Supreme Court can give.”  Southwick argues that the cost in delay isn’t worth the slight benefit of have a court majority overturn the panel decision.  Judge Southwick notes that statutes do authorize the Supreme Court to grant a writ of certiorari “before … rendition of judgement or decree.”  However, “petitioning for a writ of certiorari before judgment is an extraordinary procedure.”  Rule 11 of the Rules of the Supreme Court of the United States states that a certiorari petition may be granted prior to judgment “only upon a showing that the case is of such imperative public importance as to justify deviation from normal appellate practice…”.   The Supreme Court has been fairly liberal in granting these sorts of cert petitions involving national issues of some import.  In any event, this wasn’t the path taken by the Government in this case, so we will just have to wait … again.