Late last July, the agency complied with the en banc court’s order and exhausted the administrative appeal by issuing a final denial of the environmental groups’ petition. The EPA then moved to dismiss the original suit (over the agency’s failure to finalize a response to the groups’ petition). At the same time, the environmental groups filed new petitions for review of the agency’s now‐final action (to deny their rulemaking petition).
In an order published on October 16th, the en banc court granted the EPA’s motion to dismiss the original case. But with respect to the environmental groups’ petitions for review of the final agency action, the court did something interesting.
Specifically, the court invoked Ninth Circuit General Order 3.6(b) to accept LULAC as a “comeback case”—that is, the controversy will return to the original three‐judge panel that heard the environmental groups’ first complaint over administrative exhaustion.
Judge Carlos Bea, joined by Judge Mark Bennett, objected to the en banc court’s decision to treat LULAC as a comeback case. According to their dissenting opinion, the environmental groups’ complaints are sufficiently different so as to warrant a new three‐judge panel to perform judicial review on the substance of the EPA’s action.
For my part, I strongly suspect that this dissent implicates an unstated competition between the Ninth Circuit and the EPA, which is going on behind the scenes. As I’ve before observed, the original LULAC panel was extraordinarily aggressive. Indeed, a majority on that panel imposed a nationwide ban on the most widely used conventional insecticide in the country. By sending it back to the original panel, the EPA faces an uphill climb.
Now that President Trump has filled all the vacant active seats on the Ninth, it bears keeping in mind that the court’s “liberal” judges still hold a three‐judge majority (16 – 13).
“Respecting the Denial of Rehearing” [*NOT* a dissent]: How Senior Status Judges Play the En Banc Game
Due to its size, the Ninth Circuit hears more en banc cases than her sister circuits. Also due to its size, the Ninth Circuit has more than twice as many active judges than does the average circuit court. The combination of these factors threatens to strain administrative efficiency. If all 29 active judges had to hear every en banc rehearing, then such proceedings would occupy too much of the court’s time.
To avoid (further) slowing the wheels of justice, the Ninth Circuit has adopted unique en banc procedures in the court’s Circuit Rules and General Orders. While other circuits employ their full roster of active judges on an en banc panel, the Ninth Circuit normally uses only a subset of judges. Under Circuit Rule 35–3, the typical en banc panel consists of the Chief Judge and ten additional judges drawn by lot from the active judges of the court.
For a fascinating demonstration of the Ninth Circuit’s idiosyncratic process, consider the court’s October 22nd denial of an en banc re‐hearing in Dai v. Barr, which involved an asylum controversy. Setting aside any discussion of the merits, the original panel split in ruling against the government; Judge Stephen Trott, who is on senior status, wrote a forceful dissent. Then the government timely sought an en banc rehearing.
Even though Judge Trott participated on the original panel and penned a powerful dissent, he was ineligible to vote on the petition for rehearing because only active judges are permitted to vote for whether the court should hear a case en banc. See 28 U.S.C. § 46(c); Fed. R. App. P. 35(a).
Judge Trott was not, however, entirely silenced. General Order 5.5(a) permits judges on senior status to participate in discussions of en banc proceedings. Most often, ineligible judges exercise this participatory privilege by filing opinions “Respecting the Denial of Rehearing En Banc.”
Judge Trott filed multiple such quasi‐dissents in last month’s denial of the government’s petition in Dai. On his own behalf, he filed an opinion “respecting” the denial, which was joined by (active) Judge Ryan Nelson. In addition, Judge Trott joined fellow senior‐status Judge Diarmuid O’Scannlain in “respecting” denial. Their one‐sentence opinion merely announced agreement with the dissent filed by (active) Judge Consuelo Callahan.
Judge Callahan’s dissent, in turn, was joined by nine other active Judges (Jay Bybee, Carlos Bea, Milan Smith, Sandra Ikuta, Mark Bennett, Ryan Nelson, Bridget Bade, Daniel Collins, Kenneth Lee).
Finally, Judge Daniel Collins filed a separate dissent, which was joined by six other active judges (Jay Bybee, Carlos Bea, Sandra Ikuta, Ryan Nelson, and Bridget Bade).
I don’t have the space to give this curious case the discussion it deserves, but I’d be remiss if I failed to make a couple observations:
- Under the court’s Advisory Committee Notes to Circuit Rule 35, these vote tallies are supposed to be kept secret. Here, however, the sheer volume of signatories makes secrecy impossible. When the full court denied an en banc rehearing in Dai (October 22nd) there were 28 active judges on the Ninth Circuit, of whom twelve were appointed by Republican presidents. Judge Eric Miller, a Trump appointee, was recused. Of the remaining eleven “conservative” judges, ten either wrote or joined dissents. The only exception was the newest member of the court—Judge Daniel Bress—who received his judicial commission on July 26th, 2019. New judges are allowed a “transition period,” during which they don’t have to vote on whether to proceed to an en banc rehearing (see General Order1(a)(3)); I don’t know if Judge Bress availed himself of this option in Dai. In any case, the vote demonstrates a stark partisan divide.
- All told, twelve judges (ten active) wanted to rehear the case. And the government’s petition still failed. Perhaps it’s just me, but I find this outcome to be amazing. After all, the average circuit court (excluding the Ninth Circuit) has about twelve judges.
Given the unusual degree of opinion‐writing and opinion‐joining in this case, it’s one to keep an eye on if, as seems likely, the government petitions for certiorari.
Practical Dimension of Debate over Nationwide Injunctions
Recently, Notice & Comment hosted a fantastic back–and–forth discussion between Professors Mila Sohoni & Sam Bray over the propriety of nationwide injunctions. In California v. Little Sisters of the Poor, which was delivered on Oct. 22nd, a Ninth Circuit panel addressed a practical matter attendant to this ongoing academic debate—namely, does the existence of a nationwide injunction moot suits in other circuits that seek the same ends?
Little Sisters of the Poor centered on a multi‐agency rule to exempt religious employers from the Affordable Care Act’s requirement that group health plans cover contraceptive care without cost sharing. On September 30th, a federal district court in California issued a preliminary injunction barring the enforcement of the rule in the thirteen plaintiff states. In Little Sisters of the Poor, the government sought to lift this injunction.
There was, however, a complicating factor. Before the government appealed the September 30th preliminary injunction for the thirteen plaintiff states, a federal district court in Pennsylvania had issued a nationwide preliminary injunction for the same rule. Because Article III courts always have a duty to ensure their own jurisdiction, the Little Sisters of the Poor panel called for supplemental briefing as to whether the intervening nationwide injunction served to moot the controversy in the Ninth Circuit.
After first acknowledging the court was in “uncharted waters,” a split panel determined that the nationwide injunction did not foreclose percolation in other circuits. In holding that the case was not mooted, the majority based its reasoning on the “limited duration” of the Pennsylvania case’s preliminary injunction. Because the other court’s injunction came with an expiration date, the panel assumed that the controversy remained live in the Ninth Circuit.
As such, it remains to be seen how a permanent nationwide injunction affects justiciability. Stay tuned.