No.

14-2526
In The United States Court of Appeals
For The Seventh Circuit
VIRGINIA WOLF, et al.,
Plaintiffs-Appellees,
v.
SCOTT WALKER, et al.,
Defendants-Appellants.
Appellees Response to Appellants Petition for
Initial Hearing En Banc
__________________________________________
Plaintiffs respectfully urge this Court to deny Defendants request for
initial consideration of this matter by the full Court sitting en banc. July 17,
2014 Motion (Doc. 18). En banc consideration will delay this appeal and
impose a heavy burden on this Court, without any benefit to the Court or the
litigants.
Rule 35(a) of the Federal Rules of Appellate Procedure grants to a
Circuit Court the discretion to hear a matter en banc. Id. (A majority of the
circuit judges who are in regular active service and who are not disqualified
may order that an appeal or other proceeding be heard or reheard by the
court of appeals en banc. (emphasis added)). However, [a]n en banc hearing
or rehearing is not favored. Id. In this Court, use of the en banc procedure
is infrequent, and [e]n banc hearings are even rarer than en banc
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2
rehearings. PRACTITIONERS HANDBOOK FOR APPEALS TO THE UNITED STATES
COURT OF APPEALS FOR THE SEVENTH CIRCUIT, (2014) at 160 (available at
http://www.ca7.uscourts.gov/rules/handbook.pdf). In one of the very few
examples of initial consideration en banc in the last twenty years, the Court
was concerned with the possibility of inconsistent panel rulings, a concern
which has been addressed here by consolidation. See Hope Clinic v. Ryan,
195 F.3d 857, 891 (7th Cir. 1999), vacated on other grounds, 530 U.S. 1271
(2000).
The basic reason for this parsimony is that a rehearing en banc
imposes a heavy burden on an already overburdened court. Roberts v.
Sears, Roebuck & Co. (723 F.2d 1324) (Posner, J., dissenting). Here, the
expenditure of resources and the delay occasioned by the en banc procedure
cannot be justified. Because a petition to the Supreme Court for a writ of
certiorari is almost a certainty in this case, en banc review will draw out
what already promises to be a lengthy appeal process. Relief in this case has
been stayed pending appeal, meaning that every day of delay increases the
irreparable harm suffered by Plaintiffs. The Court has already determined
that speedy resolution is necessary here by ordering expedited review. En
banc consideration is at odds with that determination.
In addition, there is simply nothing to be gained by initial hearing en
banc without panel review. Congress has decided that the basic unit for
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3
hearing an appeal from the judgment of the district court is a panel of three.
Belk v. Charlotte-Mecklenburg Bd. of Educ., 211 F.3d 853, 854 (4th Cir. 2000)
(Wilkinson, C.J., concurring). Even when the Court decides to rehear a
matter en banc, prior consideration by the panel still serves to refine,
narrow, and focus issues before the court. Id. Nor does en banc review
guarantee more definite resolution. Just as at the Supreme Court level, [en
banc review] has the potential for producing splintered decisions. That
potential is magnified when there has been no prior panel consideration of a
case. Id.
Finally, other circuit courts reviewing similar decisions have found
consideration by a three-judge panel to be perfectly adequate. The Tenth
Circuit has decided two appeals concerning marriage bans, neither of which
involved hearing (or rehearing) en banc. See Bishop v. Holder, Nos.14-5003 &
14-5006 (10th Cir. July 18, 2014) (panel ruling on the merits); Kitchen v.
Herbert, ---F.3d --- No 2014 WL 2868044 (10th Cir. June 25, 2014) (same).
Similar cases are pending in the Fourth, Fifth, Sixth, and Ninth Circuits, not
one of which has seen the necessity for en banc review. See Bostic v. Rainey,
No. 14-1169, ECF No. 217 (4th Cir. May 13, 2014) (noting oral argument
having been held on that date before three judges); De Leon v. Perry, No. 14-
50196 (5th Cir. 2014); DeBoer v. Snyder, No. 14-1341, ECF No. 42 (6th Cir.
Apr. 28, 2014) (denying petition for initial hearing en banc); Latta v. Otter,
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4
Nos. 14-35420 & 14-35421, ECF No. 67 (9th Cir. July 3, 2014) (scheduling
oral argument before a panel more than a month after defendant requested
initial hearing en banc).
WHEREFORE, Plaintiffs respectfully request that this court deny the
motion for hearing en banc and allow this case to be decided initially by a
panel of three judges of this Court.
Dated: July 21, 2014 Respectfully submitted,
By: s/ Frank M. Dickerson
Counsel for Plaintiffs
JOHN A. KNIGHT
American Civil Liberties Union
Foundation
Lesbian Gay Bisexual Transgender
Project
180 North Michigan Ave.,
Ste. 2300
Chicago, IL 60601
(312) 201-9740
jaknight@aclu.org
JAMES D. ESSEKS
American Civil Liberties Union
Foundation
Lesbian Gay Bisexual Transgender
Project
125 Broad Street
New York, NY 10004
(212) 549-2623
jesseks@aclu.org
LAURENCE J. DUPUIS
American Civil Liberties Union of
Wisconsin Foundation
207 E. Buffalo St., Ste. 325
Milwaukee, WI 53202
(414) 272-4032
ldupuis@aclu-wi.org
HANS J. GERMANN
GRETCHEN E. HELFRICH
FRANK DICKERSON
Mayer Brown LLP
71 S. Wacker Dr.
Chicago, IL 60606
(312) 782-0600
hgermann@mayerbrown.com
ghelfrich@mayerbrown.com
fdickerson@mayerbrown.com
Case: 14-2526 Document: 27 Filed: 07/21/2014 Pages: 5
CERTIFICATE OF SERVICE
I hereby certify that on July 21, 2014, I caused the foregoing Appellees
Response to Appellants Petition for Initial Hearing En Banc to be
electronically filed with the Clerk of the United States Court of Appeals for
the Seventh Circuit by using the CM/ECF system.
All parties are registered CM/ECF users and are being served by the
CM/ECF system.
Dated: July 21, 2014 By: s/ Frank M. Dickerson
Counsel for Plaintiffs
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