Federal appellate courts ordinarily grant en banc hearings or rehearings only when “(1) en banc consideration is necessary to secure or maintain uniformity of the court’s decisions; or (2) the proceeding involves a question of exceptional importance.” Fed. R. App. P. 35(a). So, what happens when an en banc hearing produces no uniformity, or fails to decide anything at all?
In 2012, we noted that an evenly divided Seventh Circuit (actually split 4-1-5) had left the circuit’s pleading standard for class-of-one equal-protection claims up in the air after a failed en banc attempt at resolution. Earlier this week—with a seat on the court still vacant—the Seventh Circuit’s 10 active judges again affirmed by a divided court, in Markadonatos v. Village of Woodridge, No. 12-2619. This time, the court fractured 3-2-1-4. Judge Diane Sykes summarized, explaining that “the en banc court cannot agree on what questions the case raises, whether the plaintiff is the right person to raise them, whether they have been properly preserved, or what doctrinal framework applies.”