Hotze Health Wellness Center International One, LLC, et al. v. Environmental Research Center, Inc.

FED. R. APP. P. 35(a)(1) provides appellate parties the opportunity for rehearing en banc as an important mechanism to avoid intra-circuit splits. FED. R. APP. P. 47(a)(1) allows local appellate rules that are consistent with the federal rules and relevant statutes. A three-judge motions panel summarily dismissed the appeal for lack of appellate jurisdiction, without addressing petitioners’ argument that circuit precedent deemed the challenged action a nonjurisdictional abuse of discretion. Petitioners sought rehearing en banc under the local rules. Acting under those local rules, the three-judge motions panel denied en banc review for the en banc court (i.e., without notifying or polling the en banc court). The question presented is: Whether the Ninth Circuit’s local rules for en banc review violate FED. R. APP. P. 47(a)(1) by allowing a three-judge motions panel to deny en banc review for the en banc court, which conflicts with FED. R. APP. P. 35(a)(1)’s provisions for en banc review.