The federal courts of appeals routinely operate in randomly assigned panels of three judges. Appeals from their decisions may be taken to the United States Supreme Court and are heard mostly as a matter of the Supreme Court’s discretion. When a federal appellate decision conflicts with a previous decision of the same court, or with a decision of the United States Supreme Court, or (more rarely) presents a question of exceptional importance, the appellate court sitting en banc may rehear the case. Such rehearings are almost always on the motion of one of the parties. The Ninth Circuit’s gloss on Rule 35 of the Federal Rules of Appellate Procedure sets forth the applicable criteria.
The Ninth Circuit per curiam opinion authorizing the continued injunction prohibiting enforcement of President Trump’s executive order is a farrago of nonsense. The court should be embarrassed by its decision. Indeed, it appears that at least one of the Ninth Circuit judges may actually be embarrassed by it.
The court filed an order this afternoon stating: “A judge on this Court has made a sua sponte request that a vote be taken as to whether the order issued by the three judge motions panel on February 9, 2017, should be reconsidered en banc.” In other words, no party moved for the rehearing; one of the court’s many judges did so on his own (i.e., sua sponte). I’m guessing it might be Judge Kozinski or Judge Bybee. I would love to hear from a knowledgeable court watcher on this point.
The Ninth Circuit has posted the order online here. The Ninth Circuit has also posted a media advisory explaining the en banc rehearing procedure. The sua sponte request for the court to vote on whether to rehear the case is unusual. Briefing on the question whether the court should rehear the case en banc is to be filed by the parties simultaneously next Thursday.
The Ninth Circuit is so unwieldy it doesn’t actually rehear cases en banc; it rehears them in enlarged panels drawn from the whole roster of regular active judges on the court and calls the enlarged panels en banc.
A list of Ninth Circuit judges is posted here. Only judges in regular active service on the court are to vote on whether the case is to be reheard. This excludes the court’s many senior judges.
The Ninth Circuit is insanely liberal. Evidence of its insanity is all over the oral argument of the case and the opinion on which the vote for rehearing has been called.
The Ninth Circuit gets a lot wrong in its 29-page opinion, but can it be rectified by this court? Not bloody likely. Nevertheless, hope springs eternal. Cooler heads should prevail. Unfortunately, cooler heads are in short supply on the court.
As a supporter of the president’s prerogative to act in defense of the national security under relevant provisions of immigration law, I can’t suppress my unsophisticated reaction to the Ninth Circuit order: Somebody get me out of here.