Earlier this evening, the D.C. Circuit issued a per curiam order* rescheduling oral argument in West Virginia from June 2 to September 27, 2016 and stating that arguments will now be held before the en banc court. In other words, all active D.C. Circuit judges will hear oral argument instead of the originally assigned three-judge panel.
Under “usual” federal appellate court practice, cases are heard in the first instance by a three-judge panel. After the panel issues its decision, the non-prevailing party may choose to petition the court for en banc review. The standard for granting such a review is high. While it is not unheard of for a court to decide on its own motion to hear an appeal en banc, it is rare.
The D.C. Circuit’s order is silent as to why it decided to forego its normal practice and hold oral argument before the en banc court. The court may be trying to fast track review to shorten the rule’s path to the Supreme Court, or it may be trying to consolidate its workload on the theory that en banc review is inevitable. Or maybe it is trying to accomplish a bit of both.
The court states that it will be issuing a separate order regarding allocation of argument time. It remains to be seen whether the court will follow the petitioners’ proposed five hour oral argument schedule, EPA’s proposed shorter schedule, or will issue something entirely different.
*Neither Chief Judge Garland (who is not participating in cases or matters while his Supreme Court nomination is pending) nor Circuit Judge Pillard participated in the matter.