In December, the Federal Circuit denied a request for rehearing en banc in Highmark v. Allcare Health Management Systems. The request focused on the de novo standard of review that the panel in Highmark applied in reviewing the objectively baseless element of the district court's exceptional case determination. The denial was narrow, however, with five of the eleven judges dissenting from the decision to deny en banc review. I previously wrote about the denial here.
Since the Federal Circuit denied rehearing en banc in Highmark, however, its composition has changed significantly. Two of the six panel members who did not vote in favor of en banc review have since assumed senior status and Judge Taranto has joined the court. Consequently, there are five judges who have expressed a view that the de novo standard applied in Highmark was erroneous (Chief Judge Rader and Judges Moore, O'Malley, Reyna and Wallach) and four judges who either definitely or likely believe that the de novo standard is correct (Judges Newman, Lourie, Dyk and Prost). As a result, the court's decision whether to grant en banc review on this issue probably depends on the views of the newest member of the court, Judge Taranto. If Judge Taranto joins with the dissenters in Highmark, there would be a 6-4 majority in favor of en banc review; if he joins with the decision not to grant en banc review, there would be a 5-5 tie, which would be insufficient to trigger en banc review.
This is significant because the Checkpoint decision that I wrote about earlier this week provides an opportunity for the court to review this issue en banc. Notably, the three judges on the panel in Checkpoint were not among the dissent in the denial to rehear Highmark en banc. As several of the comments to Thursday's post pointed out, however, it doesn't seem likely this case would have come out differently even under a more deferential standard of review.