En banc, in banc, in banco or in bank is a French term used to refer to the hearing of a case by all the judges of a court. Appellate courts in the United States sometimes grant rehearing en banc to reconsider a decision of a panel of the court (a panel generally consisting of only three judges), where the case concerns a matter of exceptional public importance or the panel's decision appears to conflict with a prior decision of the court. In rarer instances, an appellate court will order hearing en banc as an initial matter, instead of the panel hearing it first.
Some appellate courts, such as the Supreme Court of the United States and the highest courts of most U.S. states, do not sit in panels, but hear substantially all of their cases en banc.
United States Courts of Appeals
Cases in United States Courts of Appeals are heard by a three-judge panel. A majority of the active circuit judges may decide to hear or rehear a case en banc. Parties may suggest en banc hearings to the judges, but they have no right to them. Federal law states en banc proceedings are disfavored but may be ordered in order to maintain uniformity of decisions within the Circuit or if the issue is exceptionally important. Each Court of Appeal also has particular rules regarding en banc proceedings. Only an en banc court or a Supreme court decision can overrule a prior decision in that Circuit. (In other words, one panel cannot overrule another panel). Pub L. No. 95-486 states that for Courts with more than 15 judges, an en banc hearing may consist of "such number of members of its en banc courts as may be prescribed by rule of the court of appeals." So far, only the United States Court of Appeals for the Ninth Circuit, with 28 judges utilizes that procedure, and its "en banc" court consists of 15 judges. (Theoretically, the Ninth Circuit can hear the case with all judges participating. In practice, however, such a hearing has only been asked for thrice and denied each time. See Compassion in Dying v. Washington, 85 F.3d 1440 (9th Cir. 1996); United States v. Penn, 647 F.2d 876, 889-91 (9th Cir. 1980); Campbell v. Wood, 20 F.3d 1050, 1051, 1053 (9th Cir. 1994)),
The United States Court of Appeals for the Fifth Circuit with 17 judges is eligible to adopt a similar procedure, but has not done so.
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