UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
FILED
FEB 10 2017
MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS
STATE OF WASHINGTON and STATE OF MINNESOTA,
Plaintiffs-Appellees,
v.
DONALD J. TRUMP, President of the United States; et al.,
Defendants-Appellants.
No. 17-35105
D.C. No. 2:17-cv-00141 Western District of Washington, Seattle
ORDER
THOMAS, Chief Judge and En Banc Coordinator:
A judge on this Court has made a sua sponte request that a vote be taken as
to whether the order issued by the three judge motions panel on February 9, 2017, should be reconsidered en banc. A sua sponte en banc call having been made, the parties are instructed to file simultaneous briefs setting forth their respective positions on whether this matter should be reconsidered en banc. The briefs should be filed on or before 11:00 a.m., Pacific time, on Thursday, February 16. The supplemental briefs shall be filed electronically and consist of no more than 14,000 words. See General Order 5.4(c)(3).
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What does this mean? Well, having spent eight years on a “collegial appellate court” I can think of three possibilities.
First, a Judge may request en banc consideration when he or she thinks the panel decision went against the views of the majority of 9th Circuit Judges and wants the full Court to reverse it. Given that the panel that heard Washington v. Trump was fairly representative of the composition of the 9th Circuit, that seems unlikely here.
A second possibility is that a Judge wants the full Court to “put its weight” behind the panel decision, given the importance of the issue. But, because the 9th Circuit has a somewhat diverse makeup, with Judges often disagreeing, it seems unlikely that a majority of Judges would see an advantage to the court in having a potentially “split” en banc ruling in place of the unanimous panel ruling.
A third possibility, and the one that I think is most likely, is that one or more Judges disagree with the panel decision and want to go on record with that disagreement. While there seems to be little chance that a majority of the 9th Circuit Judges will vote to hear the case en banc, the denial of the en banc request would give those Judges who disagree with the panel a chance to write a public dissent from the decision to deny rehearing en banc.
We might or might not find out. Often, en banc reconsideration is simply denied without any reasons being given.
PWS
02/10/17