Dwindling appeals and nonexistent en banc review in the Tenth Circuit

Recently, the Denver Law Review published an Article by two Tenth Circuit Judges and a former clerk. The Article offers lawyers advice for best practices when seeking en banc review in the Tenth Circuit. This Response to that Article is not a critique of the sensible suggestions the authors offer. We regard the suggestions as solid advice for litigants attempting to present the strongest petition possible to the court.

And we certainly do not seek to diminish the expertise and good intentions of the authors. But we do question the practicality of giving guidance on seeking en banc review in a circuit that seems to have given up almost entirely on granting such petitions. The Tenth Circuit averages just over one en banc review every two years. This is one of the lowest rates among all circuits.

In our Response, we argue that practice pointers for en banc review will be of minimal value in this circuit. Until the odds of being granted en banc review in the Tenth Circuit are more realistic, any stylistic pointers on the subject seem categorically quixotic.