En banc Decision in Peruta -- a loss

Elliotte · Jun 24, 2016

Yes, this has only been attempted 5 times in 9th Circuit history and all 5 times it failed. But statistically speaking, 5 times is such a small sample size as to be irrelevant. It's one thing to ask for a full court en banc based solely on loosing the argument, but in this case they're asking because of how the court ignored the question at dispute.

Something else to consider, while the full court voted for the first en banc, only 7 judges voted for the majority opinion. There's 29 judges on the court, even the 11 member en banc panel doesn't represent a majority of the court. While slim, there is the possibility that enough of the rest of the court votes for rehearing in order to compose an opinion that still gets the same result, but does in a way that causes less of a chance their ruling is overturned.

Some folks may get scared away from legal briefs, but the "Rule 35 Statement" starting on pg 6 of the pdf is barely over 2 pages long and a great summary of the case and the argument.

danb · Jun 24, 2016

Elliotte said:
Yes, this has only been attempted 5 times in 9th Circuit history and all 5 times it failed. But statistically speaking, 5 times is such a small sample size as to be irrelevant. It's one thing to ask for a full court en banc based solely on loosing the argument, but in this case they're asking because of how the court ignored the question at dispute.

Something else to consider, while the full court voted for the first en banc, only 7 judges voted for the majority opinion. There's 29 judges on the court, even the 11 member en banc panel doesn't represent a majority of the court. While slim, there is the possibility that enough of the rest of the court votes for rehearing in order to compose an opinion that still gets the same result, but does in a way that causes less of a chance their ruling is overturned.

Some folks may get scared away from legal briefs, but the "Rule 35 Statement" starting on pg 6 of the pdf is barely over 2 pages long and a great summary of the case and the argument.

No matter how rare full en banc is, our cases always seem to get it "because guns."

esqappellate · Jun 24, 2016

And it gets more interesting. Someone on the court has requested a response. This just entered on the court's docket on 06/24/2016 at 1:43:47 PM PDT and filed on 06/24/2016 :

Filed order (SIDNEY R. THOMAS): Appellees and Intervenor are directed to file responses to the petitions for full court rehearing en banc filed on June 23, 2016 by Appellants Peruta and Richards. The response to each petition shall not exceed 15 pages or 4,200 words, and shall be filed within twenty-one (21) days of the date of this order. The parties shall the briefs electronically without submission of paper copies

wolfwood · Jun 24, 2016

If by some act of God this goes full court en banc I would fly out to see that. Paul Clement in front of 29 judges. That would be a sight to see.

esqappellate · Jun 24, 2016

wolfwood said:
If by some act of God this goes full court en banc I would fly out to see that. Paul Clement in front of 29 judges. That would be a sight to see.

Oh, I agree. You could sell tickets to that event and make a bundle.

Peaceful John · Jun 24, 2016

esqappellate said:
En banc petition filed from the en banc decision! This doesn't happen very often

IANAL, but it's unclear to me how a court can, without consequence, not address the question presented. What am I missing?

esqappellate · Jun 25, 2016

Peaceful John said:
IANAL, but it's unclear to me how a court can, without consequence, not address the question presented. What am I missing?

You are 'missing' that they did not want to hold that the right extends outside the home, but couldn't find a way out of that holding without creating a square conflict with Moore. So they didn't address it. Of course, you are not missing that at all. The only consequence is that they look like fools in the SCT if it gets that far. Not impressive.....

Elliotte · Jun 25, 2016

esqappellate said:
And it gets more interesting. Someone on the court has requested a response. This just entered on the court's docket on 06/24/2016 at 1:43:47 PM PDT and filed on 06/24/2016 :

Filed order (SIDNEY R. THOMAS): Appellees and Intervenor are directed to file responses to the petitions for full court rehearing en banc filed on June 23, 2016 by Appellants Peruta and Richards. The response to each petition shall not exceed 15 pages or 4,200 words, and shall be filed within twenty-one (21) days of the date of this order. The parties shall the briefs electronically without submission of paper copies

Maybe I'm just too optimistic, but I always expected this to happen. Now will it actually get reheard, I'm less optimistic of that, but I expect it to go as far as possible, including a scathing dissent from denial of rehearing (if it's denied) or a withering dissent (if it is taken up but still goes against the 2A).

esqappellate · Jun 26, 2016

Elliotte said:
Maybe I'm just too optimistic, but I always expected this to happen. Now will it actually get reheard, I'm less optimistic of that, but I expect it to go as far as possible, including a scathing dissent from denial of rehearing (if it's denied) or a withering dissent (if it is taken up but still goes against the 2A).

I think that is exactly the strategy. The odds of a full en banc are, to put it mildly, remote. But, the more dissents the better. Maybe they are shooting for a Canteano type of disposition. The 9th Circuit has a long history of opinions that draw per curiam reversals from the SCT.

wolfwood · Jun 26, 2016

esqappellate said:
I think that is exactly the strategy. The odds of a full en banc are, to put it mildly, remote. But, the more dissents the better. Maybe they are shooting for a Canteano type of disposition. The 9th Circuit has a long history of opinions that draw per curiam reversals from the SCT.

Did Gura file a petition in Richards?

If not does this mean he has 60 days to file a cert petition or is Richards also impacted by this petition since the two cases were heard together.

esqappellate · Jun 26, 2016

wolfwood said:
Did Gura file a petition in Richards?

If not does this mean he has 60 days to file a cert petition or is Richards also impacted by this petition since the two cases were heard together.

Yes, same petition in Peruta and Richards.

rlc2 · Jun 27, 2016

Thank you.

esqappellate said:
They would have to grant cert and, unlike Caetano, the question is not likely to be answered per curiam as it is not in direct conflict with any passage in Heller (per curiam GVR is possible on the refusal to address open carry, but not likely, as they might feel that they would need to get into the merits). I think there are multiple reasons for doing this which have been alluded to above by others. First, it buys at least a month, maybe a lot more. Add that to the 90 days for filing cert, plus another 60 days you can get on extension requests with the SCT. That's half a year. We could have a 9th Justice by then. I don't think a cert petition has any chance whatsoever without a 9th Justice. Second, since a full en banc petition is addressed to the full court, any member of the court can write a dissent from the denial of en banc. Cue Judge O'Scannlain (and others). Judge O'Scannlain has done that before, as the new petition notes (at page 2). An O'Scannlain dissent can carry a lot of weight as he is highly respected by members of the SCT (his dissents usually carry the day in cases in which cert is granted). See, e.g., page 2 of the new petition. A more recent example is Walden v. Fiore, 134 SCT 1115 (2014), reversing unanimously a 9th Cir panel decision where O'Scannlain dissented from a denial of en banc. Finally, on the merits, the panel en banc decision is a bad joke in refusing to address the California ban on open carry; it cries out for correction. Courts do not and should not adjudicate constitutional questions in this manner. Disingenuous is too kind a word for that sort of decision. It's a good call, filing this full en banc petition. I approve It does take big ones though....

Outrageous, disreputeable, despicable, are the words that come to this layman mind...
Judge Thomas engineered this travesty. He should be recalled...

Southwest Chuck · Jun 27, 2016

rlc2 said:
Outrageous, disreputeable, despicable, are the words that come to this layman mind...
Judge Thomas engineered this travesty. He should be recalled...

I think you mean Impeached ... :party29:

Kharn · Jun 27, 2016

I think the question now is if O'Scannlain and Kozinski will dissent together, or write individual tomes.

Elliotte · Jun 28, 2016

Kharn said:
I think the question now is if O'Scannlain and Kozinski will dissent together, or write individual tomes.

The best would be to write individual tomes, taking different approaches to how poor the en banc majority decision is written, and then each one concur with the other's dissent.

esqappellate · Jun 28, 2016

Elliotte said:
The best would be to write individual tomes, taking different approaches to how poor the en banc majority decision is written, and then each one concur with the other's dissent.

What would be ideal (if we have to lose the en banc vote), is as close to a 50-50 split as possible with biting dissents that have great logical and policy force to their reasoning. Judge O'Scannlain does that sort of dissent routinely.

Elliotte · Jun 28, 2016

esqappellate said:
What would be ideal (if we have to lose the en banc vote), is as close to a 50-50 split as possible with biting dissents that have great logical and policy force to their reasoning. Judge O'Scannlain does that sort of dissent routinely.

Considering 18 judges were appointed by Democrats and 9 by Republicans, I'm going to guess a vote somewhere around 16-11 against rehearing.

Any idea, btw, when we should hear the results? I know there's a response in the works by the CA AG and friends, but after that?

esqappellate · Jun 28, 2016

Elliotte said:
Considering 18 judges were appointed by Democrats and 9 by Republicans, I'm going to guess a vote somewhere around 16-11 against rehearing.

Any idea, btw, when we should hear the results? I know there's a response in the works by the CA AG and friends, but after that?

I imagine the full en banc works the same way as the panel en banc.
The time periods are in the 9th Circuit's local rules, quoted below:
---------------

If a petition for rehearing en banc has been made, any judge may, within 21 days from receipt of the en banc petition, request the panel to make known its recommendation as to en banc consideration. Upon receipt of the panel’s recommendation, any judge has 14 days to call for en banc consideration, whereupon a vote will be taken. If no judge requests or gives notice of an intention to request en banc consideration within 21 days of the receipt of the en banc petition, the panel will enter an order denying rehearing and
rejecting the petition for rehearing en banc. Any active judge who is not recused or disqualified and who entered upon active service before the request for an en banc vote is eligible to vote. A judge who takes senior status after a call for a vote may not vote or be drawn to serve on the en banc court. This rule is subject to two exceptions: (1) a judge who takes senior status during the pendency of an en banc case for which the judge has already been chosen as a member of the en banc court may continue to serve on that court until the case is finally disposed of; and (2) a
senior judge may elect to be eligible, in the same manner as an active judge, to be selected as a member of the en banc court when it reviews a decision of a panel of which the judge was a member.

wolfwood · Jun 28, 2016

Elliotte said:
Considering 18 judges were appointed by Democrats and 9 by Republicans, I'm going to guess a vote somewhere around 16-11 against rehearing.

Any idea, btw, when we should hear the results? I know there's a response in the works by the CA AG and friends, but after that?

I'd be surprised if all the Rep. judges vote for super en banc unless they are convinced that their vote will be a protest vote. Normal ninth circuit en banc takes 5 times as much resources as one published opinion if not more. That is just 11 judges. Super en banc would be a logistical nightmare with 29 judges having to coordinate. The opinion would take years to write. A lot of judges may just not care that much one way or another regarding Peruta. A lot of judges are more concerned about other areas of law.

Elliotte · Jun 29, 2016

wolfwood said:
I'd be surprised if all the Rep. judges vote for super en banc unless they are convinced that their vote will be a protest vote. Normal ninth circuit en banc takes 5 times as much resources as one published opinion if not more. That is just 11 judges. Super en banc would be a logistical nightmare with 29 judges having to coordinate. The opinion would take years to write. A lot of judges may just not care that much one way or another regarding Peruta. A lot of judges are more concerned about other areas of law.

I don't think it will be straight party line, I think there might be a few cross overs on each side. Some that don't want to waste the time, and others who simply want to write an anti-2A opinion that is less likely to be taken and overturned by SCOTUS.

En banc Decision in Peruta -- a loss

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