The Ninth Circuit’s Active En Banc Review & Cases Slated to Be Heard En Banc in June

May 22, 2010

June is approaching and three cases are slated for an en banc hearing in Pasadena . . . Norse v. City of Santa Cruz, 07-15814, Guggenheim v. City of Goleta, 06-56306, and United States v. Lopez-Velasquez, 07-30241.  Click here for a link to the Ninth Circuit’s status report of pending en banc cases.

Getting A Case Reheard En Banc (almost a snowball’s chance . . . )

In the Spring 2006 issue of the ABTL Northern California Report, Ninth Circuit Judge Carlos T. Bea authored, “Bettering Your Chances for Ninth Circuit Rehearing En Banc.”  (full article available here).  Last Tuesday, I had the pleasure of listening to Judge Bea discuss the Ninth Circuit’s active en banc caseload at the Bar Association of San Francisco – Appellate Section’s monthly meeting. 

Some estimated statistics regarding the Ninth Circuit from Judge Bea:  Approximately 1000 Petitions for Rehearing En Banc are made each year.  Of those 1000, approximately 40-50 receive an en banc ”call” to vote on whether the case should be reheard en banc, and of those 40-50 only about 15-25 actually receive the simple majority vote of active judges needed to have the case reheard.  That’s a .25% chance – at best.

In both his 2006 article and lunch discussion, Judge Bea suggested some tips for practitioners trying to get their cases through this narrow window.  The biggest take-away is to really understand the role of the brief writer when drafting a Petition for Rehearing En Banc.  Panels get opinions wrong or could be perceived to be wrong regularly.  That’s not enough.  Notes Judge Bea in his ABTL article: “You must convince the reviewing judge that the panel not only got it wrong, but that the opinion is so wrong it will wreak havoc on the Republic (or at least the Ninth Circuit).” As a practical matter explains Judge Bea,”[w]rite like a good Associated Press reporter.  Give the judges a strong lead that will hook them on the importance of the issues presented.  Do not begin with a boring recitation of the standard for granting the PFREB, which the judges have read hundreds of times.”  For more tips, check out Judge Bea’s article “How the Ninth Circuit Works On Your Appeal” (available here). 

If You’re Denied Rehearing En Banc . . . Pray for a Dissent

Since the window for getting a Petition for Rehearing En Banc granted is so small, you’re likely taking the long view and hoping for a grant of certiorari from the U.S. Supreme Court.  If that’s the case, think of your brief for Petition for RehearingEn Banc as a template for a judge’s dissent to the eventual denial.   The brief should feed the judge everything needed to write that dissent.  Why so important? Judge Bea has been watching the cases move from the Ninth Circuit to the Supreme Court and the statistic look something like this: Over the last 8 years approximately 1000 cases from the Ninth Circuit have tried to for the Supreme Court.  Of those 1000, approximately 19-20 cases received a grant of certiorari.  That’s a 1.87% chance.  But, if the case included a written dissent from a denial of rehearing en banc, the chance of receiving the Supreme Court grant improves to approximately 42.9%.  Also noted Judge Bea, when certiorari is granted on a Ninth Circuit case that includes a dissent from a denial of rehearingen banc, approximately 90% of the time the case is reversed and vacated. 

Notably on Friday May 21, 2010 while drafting this post, the Ninth Circuit issued its Order Amending Opinion & Denying Rehearing And Amended Opinion in Pintos v. Pacific Creditors Association & Experience Information Solutions (04-17485, 04-17558, originally filed April 30, 2009, amended May 21, 2010) (available here), which included a dissent from the denial of rehearing en banc by Chief Judge Kozinski, with whom Judges O’Scannlain, Kleinfeld, Gould, Tallman, Callahan and Bea joined, plus separate dissents written by Judges Gould and Clifton. It’s a funny (or not so funny) little case about a woman who had expired tags on her car, parked on a public street, had her car towed.  End result: her credit was run. Question: whether Pacific Creditors Association (PCA) had a permissible purpose for seeking Maria Pintos’s credit report.

Cases Currently Slotted for a June 2010 En Banc Hearing

Norse v. City of Santa Cruz, 07-15814
Three-Judge Panel Opinion
: 586 F.3d 697 (9th Cir. 2009)

Order Taking Case En Banc: 598 F.3d 1061 (9th Cir. 2010)

Date of Order Taking Case En Banc: March 12, 2010

Status: To be calendared the week of June 21, 2010, Pasadena, California.

Members of En Banc Court: Not yet available

Subject Matter: Appeal in 42 U.S.C. sec. 1983 action alleging violation of First Amendment rights.

Holding: Not yet decided

Guggenheim v. City of Goleta, 06-56306
Three-Judge Panel Opinion
: 582 F.3d 996 (9th Cir. 2009)

Order Taking Case En Banc: 598 F.3d 1061 (9th Cir. 2010)

Date of Order Taking Case En Banc: March 12, 2010

Status: To be calendared the week of June 21, 2010, Pasadena, California.

Members of En Banc Court: Not yet available

Subject Matter: Appeal by mobile home park owners challenging City’s mobile home rent control ordinance.

Holding: Not yet decided

United States v. Lopez-Velasquez, 07-30241
Three-Judge Panel Opinion
: 568 F.3d 1139 (9th Cir. 2009)

Order Taking Case En Banc: 599 F.3d 925 (9th Cir. 2010)

Date of Order Taking Case En Banc: March 8, 2010

Status: To be calendared the week of June 21, 2010, Pasadena, California.

Members of En Banc Court:  Not yet available

Subject Matter: Appeal by United States of district court’s dismissal of criminal indictment for illegal reentry following removal

Holding: Not yet decided

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  1. [...] the Ninth Circuit taking a case for en banc review (see Wendy Coats’ article on that subject here), a majority of the judges of the circuit also feel that this First Amendment issue warrants a [...]

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