I'm not at all confident that a panel's allowed to do this. Regardless, I'm absolutely confident it shouldn't be permitted.
Back in December, the panel issued an unremarkable (unpublished) memorandum disposition in a trademark injunction case. It was a very short disposition that -- as is typical of these things -- merely summarized the facts for the parties and incredibly briefly told them why the Ninth Circuit was reversing the district court.
The losing party then petitioned for rehearing en banc. Good luck with that. The chances of an unpublished, cursory interlocutory ruling going en banc are astronomical. After all, it's not even precedent.
Predictably, not one of the Ninth Circuit judges calls for en banc review. So that's the end of that. The only thing the panel does in light of the petition is to very slightly revise two of the paragraphs of its short opinion (as well as notify the parties that the case is over). It does that around a month ago. End of story.
Except it's not. A third party law firm -- Stoel Rives -- then asks the Ninth Circuit to publish the opinion. A request that's proper and (presumably) well-motivated. Stoel Rives likely has client that'll be helped by the opinion, and unless it's published, it's not precedent. So in comes the request.
If the Ninth Circuit wants to publish the opinion, that's its call. I have no problem with that. And, today, the panel does precisely that. Redesignating the disposition as a published opinion by Judge Gould.
But the panel doesn't stop there. The panel not only recalls the mandate -- which has already issued at this point -- but also changes the opinion (yet again). After all, if someone's actually going to read the thing, you might as well make it look good (and be right).
I could live with all of that. But here's the part I don't think is permissible: At the end of the order that recalls the mandate, amends the opinion, and orders the thing published, the panel says: "No petitions for rehearing and/or rehearing en banc will be entertained."
I don't think a panel can do that. Or at least definitely shouldn't be.
I get that minor changes to an opinion don't justify a new round of petitions for rehearing en banc. But the decision to amend an opinion and publish it doesn't constitute a minor change. It's a major one. At least from the perspective of potential en banc review. Many judges are willing to tolerate an erroneous opinion by one of their colleagues if it's unpublished. Again: It's not precedent, so the only one harmed by the thing is the losing party. By contrast, once an opinion is published, it matters far more broadly. Now there's a real chance for en banc review. At least if the thing's in fact important.
Let me give an (admittedly extreme) example. Imagine that I write a two-sentence memorandum disposition in an otherwise unremarkable habeas case that says "We affirm the decision of the district court. We agree that the evidence supports the state court's factual findings." The losing party petitions for en banc review of this unpublished disposition, but you know full well what happens to that request. Thereafter, I decide to (1) amend the opinion, and (2) publish it. Adding the following to the opinion: "Defendant says that we should not give the state court's factual findings any deference, and we agree, because we hold that AEDPA is unconstitutional, and federal courts must therefore independently evaluate state court factual findings on habeas. But here, we hold that the evidence does in fact support the state court's factual findings. So we affirm." Then concluding the publication order and amendment the same was Judge Gould does: "No petitions for rehearing and/or rehearing en banc will be entertained."
You get why that shouldn't be allowed, right? Regardless of my intent, and even if the amendment was (in my view) absolutely innocuous, a panel shouldn't be able to immunize its opinion from en banc review -- as either a doctrinal or a practical matter -- by initially designating the thing as an unpublished, nonprecedential disposition and thereafter publishing it.
To be clear: I don't think that this is Judge Gould's intent in the present case. Or anyone else's on the panel, for that matter. Moreover, I have a profoundly strong sense that the present case wouldn't get a single vote for en banc review even after it's published.
But you don't do something procedurally wrong just because it doesn't matter. Because it might well matter in a future case. You've got to follow the right rules precisely because they're rules. What's good in one case should be good for another.
So I think the panel should delete the last line of this Order. And/or that the rest of the Ninth Circuit should care that it's there.
Because even if the merits of the opinion are correct -- and I have no reason to believe that they're not -- that last line isn't.
