Ninth Circuit Sua Sponte Requests Briefs on Possible Rehearing of Travel Ban

by Jenny North on February 11, 2017

When I first heard a Ninth Circuit judge had requested sua sponte for the parties in Washington v. Trump to submit briefs on whether an en banc panel should rehear the TRO challenge I thought there must be some mistake.

Sua sponte means on the initiative of the court, or on its own motion. A sua sponte action is very unusual as the tenets of our adversarial system normally rely upon the parties to bring desired motions to the court and not the other way around.

Ninth Circuit Court of Appeals, San Francisco

Appellate courts sit with panels of three judges. Appellate circuits have many more judges than three and an en banc panel normally means that the entire court with the full roster of judges will rehear a case. Only an en banc panel can overturn another panel’s ruling.

In the case of the Ninth Circuit, there are 29 appellate judges (the circuit is huge, and probably needs dividing but that’s another story). As a practical matter, the Ninth Circuit en banc panel will only seat nine or ten judges and not all 29, though that would be something to observe!

Why would this happen? My guess is that there is apparently at least one judge, but probably more, on the Ninth Circuit who values national security over travel inconvenience. I assume that, having been invited to do so, the Government would submit a brief advocating for the rehearing. While the Government may not have wasted any time on this otherwise, this is possibly a crack in the fortifications and the Government needs to make the most of this opportunity.

If the Ninth Circuit does vote to rehear the case, the Government needs to get its best oral advocate out in front on this argument. The last guy was embarrassingly bad. There was a failure to land any strong statements, and while the hearing took place by phone, he had poor protocol talking over the judges to the extreme. Maybe he couldn’t hear them, but the States’ attorney did not have the same problem and was much more professional in his presentation.

Sidebar, this is interesting:

The court has asked the parties to submit briefs on whether the matter should be reheard by 11:00 a.m. on Thursday, February 16, 2017. The documents should be available here.

 

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{ 2 comments… read them below or add one }

Elizabeth Raynor Short February 11, 2017 at 4:54 pm

If they vote to hear the case en banc, it means there are enough judges at the 9th Circus in touch with reality to know the existence of the 9th Circuit with any of them on it is in jeopardy because of the decision in this case. Doubtful.

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Jenny North February 12, 2017 at 7:45 am

Right, let’s not get too hopeful!

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