R-E-S-P-E-C-T(ing) The Denial Of Rehearing En Banc
Paging all legal nerds....
The James R. Browning U.S. Court of Appeals Building, the Ninth Circuit’s headquarters in San Francisco.
When my former boss, Judge Diarmuid F. O’Scannlain of the Ninth Circuit, took senior status earlier this year, I wondered what would happen to his participation in the court’s en banc process. The Ninth Circuit goes en banc more often than any other federal appeals court — albeit in a modified way, with an 11-judge panel as opposed to all active judges of the court — and en banc activity is a crucial part of that court.
During his 30 years as an active judge, Judge O’Scannlain was a major player in the en banc process. A leading judicial conservative, he would often call for rehearing en banc when his liberal colleagues strayed from the straight and narrow path. And in cases when his call for en banc rehearing failed, he would often write a dissent from denial of rehearing en banc — aka a “dissental” — that would call attention (often the U.S. Supreme Court’s attention) to the problematic opinion in question.
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A few months ago, I had an interesting Twitter exchange, prompted by a question from @JHEisenman, concerning whether senior judges can dissent from denials of rehearing en banc even though, as senior rather than active judges, they can’t vote on rehearing en banc. It seemed to me that they could not; you can’t “dissent” from a decision you didn’t vote on. Judge Alex Kozinski, whom I posed this question to, agreed with me, saying that it would be like his trying to file a dissent, as a Ninth Circuit judge, from an opinion handed down by the Third Circuit.
But as I just learned this afternoon, going senior doesn’t exclude you from all the reindeer games. Check this out, from the Ninth Circuit case of United States v. Washington (a case about salmon habitats and culverts, not to be confused with that other Ninth Circuit litigation between the State of Washington and the United States):
Well! This is almost as much fun for legal nerds and #appellatetwitter as a “dubitante” opinion.
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Some might criticize Judge O’Scannlain for butting his nose into the en banc process now that he’s a senior judge. But in his defense, note that he was joined in his “quasi-dissental” by eight active judges — meaning that if he hadn’t written this opinion, someone else would have. So essentially what happened here is that a senior judge helped out his active colleagues by doing some of their work for them — which is, after all, why senior judges are such a valuable resource to the federal judiciary.
During his years as an active judge, Judge O’Scannlain had a strong track record of using dissentals to get the Supreme Court to take up — and generally reverse — problematic precedents from the Ninth Circuit. I’ve previously called this “flashing the Bat Signal” at the Supreme Court.
Will Judge O’Scannlain’s opinion “respecting” the denial of rehearing en banc have the same power as a dissental to snag SCOTUS review? Stay tuned — same bat time, same bat channel.
P.S. As appellate guru Howard Bashman of How Appealing pointed out to me on Twitter, a senior judge of the Ninth Circuit purported to “dissent” from denial of rehearing en banc back in 2003. That strikes me as improper, at least as a technical matter; the judge in question should have done what Judge O’Scannlain did here and issued an opinion “respecting the denial of rehearing en banc.”
United States v. Washington: Order [U.S. Court of Appeals for the Ninth Circuit]
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Earlier: A Leading Light Of The Federal Judiciary Will Take Senior Status By Year’s End
David Lat is the founder and managing editor of Above the Law and the author of Supreme Ambitions: A Novel. He previously worked as a federal prosecutor in Newark, New Jersey; a litigation associate at Wachtell, Lipton, Rosen & Katz; and a law clerk to Judge Diarmuid F. O’Scannlain of the U.S. Court of Appeals for the Ninth Circuit. You can connect with David on Twitter (@DavidLat), LinkedIn, and Facebook, and you can reach him by email at dlat@abovethelaw.com.
