Most en banc cases are difficult. That's because a panel's already decided the case a particular way, there's been a successful en banc call, and there's typically a whole lot of disagreement about how the case should be resolved. That's why it went en banc, after all.
For example, here, the initial panel heard oral argument in July 2010, and eventually issued a split opinion in February 2012. It went en banc shortly thereafter, in July 2012. Then, in September 2012, there's a spirited oral argument in the en banc court. It looks like it'll be interesting. A (secret) vote is taken, and opinion(s) start to get drafted. It'll almost undoubtedly be a fight.
But you know what makes things easy? Two months later, in November 2012, the Supreme Court grants certiorari in a case that's virtually identical to this one, albeit from another circuit. Thereafter, in June 2013, the Supreme Court comes down with its opinion. 5-4. Interesting lineup, well argued on both sides, but there's a definite answer.
So put the opinion writing process on hold. Because the world's now changed.
A couple months later, the Ninth Circuit tells the parties: Hold tight. Given the intervening decision, we're going to have to get this thing reargued. We'll do it sometime in December. We'll give you a date shortly.
Come December, the second argument happens. This one's much less spirited. Sure, there are parties on both sides. Presenting their positions forcefully. But it's nonetheless pretty clear which way this one's coming out given the Supreme Court's holding in the intervening case. Even to the parties.
Sure enough, four months later -- this morning -- the en banc court releases its opinion. This one's much shorter than the court originally anticipated in 2012. Four short paragraphs. Per curiam. With the assent of 10 of the 11 judges. Easy.
(Though that doesn't stop Judge Milan Smith from writing a nine-page concurrence, in which he complains about -- and disagrees with -- the last paragraph of the per curiam opinion. Even easy stuff isn't necessarily easy when you've got to get eleven different judges on board.)
I hope whichever clerk was assigned the original en banc opinion didn't get started early, but instead procrastinated. Because that'd have been a good strategy. (Parenthetically, one advanced by my friend and colleague at USD Law, Frank Partnoy, in his recent book Wait: The Art and Science of Delay.) No wasted energy. The thing essentially resolves itself.
Sometimes everything comes together nicely. Or at least easily. Like here.
