Seven judges on the Ninth Circuit join this concurrence from the denial of rehearing en banc, which likely reflects a little bit of historical (and continuing) annoyance at Judge VanDyke. Here's a snippet:
"In United States v. Perez-Garcia, 96 F.4th 1166 (9th Cir. 2024), we unanimously held that the Government could temporarily disarm two criminal defendants—Jesus Perez-Garcia and John Fencl—pending their felony trials consistent with the Bail Reform Act of 1984 and the Second Amendment. Perez-Garcia stood accused of importing eleven kilograms of methamphetamine and half a kilogram of fentanyl through the southern border. Id. at 1171. Fencl faced up to seventy years in prison for felony unlawful possession of three unlicensed short-barreled rifles and four unlicensed silencers. Id.
Because neither Fencl nor Perez-Garcia remains subject to any pretrial release conditions, all agree that “there is now no live controversy before our court regarding either the merits of the underlying case or the propriety of the [firearms condition].” Washington v. Trump, 858 F.3d 1168, 1169 (9th Cir. 2017) (Berzon, J., concurring in the denial of reconsideration en banc). And “[i]n our system of government, courts have ‘no business’ deciding legal disputes or expounding on law in the absence of such a case or controversy.” Already, LLC v. Nike, Inc., 568 U.S. 85, 90 (2013) (quoting DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 341 (2006)). Nevertheless, Fencl and Perez-Garcia filed a petition for rehearing en banc seeking the concededly “unusual remedy” of equitable vacatur. See Dkt. 31, at 3. Today, our court correctly denied the petition.
A single judge of our court dissents from the order denying the petition for rehearing en banc. I join my colleagues who have voiced concern about these so-called “dissentals,” which often present a “distorted presentation of the issues in the case, creating the impression of rampant error in the original panel opinion although a majority— often a decisive majority—of the active members of the court . . . perceived no error.” Defs. of Wildlife Ctr. for Biological Diversity v. EPA, 450 F.3d 394, 402 (9th Cir. 2006) (Berzon, J., concurring in denial of rehearing en banc); see also Marsha S. Berzon, Dissent, "Dissentals," and Decision Making, 100 Cal. L. Rev. 1479, 1491 (2012).
The dissent in this case, though, is particularly curious. In a case where—everyone agrees—we lack jurisdiction to rehear the merits of the appeals, one judge has taken it upon himself to write a 61-page advisory opinion. Only about 5 of those 61 pages purport to address the relevant question at hand—what exceptional circumstance, if any, renders en banc review appropriate? The rest details Judge VanDyke’s views of the Second Amendment and his disagreements with the three-judge panel decision. As we have long recognized, critiques of this nature are irrelevant because “[w]e do not take cases en banc merely because of disagreement with a panel’s decision, or rather a piece of a decision.” Hart v. Massanari, 266 F.3d 1155, 1172 n.29 (9th Cir. 2001) (quoting E.E.O.C. v. Ind. Bell Tel. Co., 256 F.3d 516, 529 (7th Cir. 2001) (en banc) (Posner, J., concurring)).
I concur in the denial of rehearing en banc, and I write separately to make two brief points. First, this appeal is clearly unworthy of en banc review. Second, the Supreme Court’s recent decision in United States v. Rahimi, 144 S. Ct. 1889 (2024), vindicates the analysis in Perez-Garcia."
Everyone's free to write pretty much whatever they want, of course. That's the beauty of (amongst other things) the First Amendment.
But maybe there's a time and place for everything. Judge VanDyke thinks that the appropriate place is in a dissent from the denial from rehearing en banc. Judge Sanchez (the author of the concurrence) is of a contrary view.
For his part, Judge VanDyke's fairly annoyed at his colleagues as well. Here's a snippet of what he has to say on that front:
"For a majority of the judges on the Ninth Circuit, “any loss in a Second Amendment challenge at the Supreme Court is celebrated as a tool to further our artificial cabining of Bruen.” Duarte v. United States, 108 F.4th 786, 788 (9th Cir. 2024) (VanDyke, J., dissenting from the grant of rehearing en banc). Now, barely weeks after I levied this pointed charge in my Duarte disgrantle, our circuit seems determined to prove I’m right. The court not only declines to vacate a lengthy, deeply flawed, and wholly unnecessary Second Amendment opinion issued long after the defendants’ constitutional challenges became moot. It also piles on even more advisory commentary in a concurral, this time about United States v. Rahimi, 144 S. Ct. 1889 (2024)— a decision released months after the panel issued its opinion—and what Rahimi means for the analogical approach required by Bruen moving forward.
The observation I have made repeatedly in cases like this keeps being validated: our circuit is “more interested in sidestepping than following the [Supreme] Court’s Second Amendment precedent” by “latch[ing] onto phrases” and “conveniently overlooking such bothersome details like the government’s burden of supplying relevantly similar historical analogues.” Duarte, 108 F.4th at 788 (VanDyke, J., dissenting). Add this case to the top of the list. This latest effort stems from a particularly enticing opportunity for Second Amendment shenanigans, as the panel first rushed to issue a terse, unreasoned order affirming the district court. That order deliberately moot-proofed the panel’s ability to issue what was effectively, if not technically, an advisory opinion long after subsequent events overtook the defendants’ claims. More than a year later, the panel then made the most of the opportunity it had generated for itself, announcing as much new law as possible in a moot case where it was wholly unnecessary to do so, and then using mootness as a shield to argue against en banc review. Judge Reinhardt would be proud. . . .
I must say I respect the feisty energy emanating from my concurring colleagues’ attempted pushback. But there is that thing about living in glass houses and throwing rocks. Consider what the panel did here: (1) it took the highly unusual step of quickly issuing a summary decision in a case that was likely to become moot, which served no discernable purpose except to ensure the panel could still issue its opinion long after doing so became unnecessary; (2) it later issued that lengthy and needless opinion notwithstanding the fact that everyone—including the panel—agreed the case was moot; (3) it unnecessarily provided redundant alternative rationales in its opinion deciding important Second Amendment issues in this circuit that could have far-reaching effects well beyond just this moot case; and (4) it deliberately reached outside the history and resources provided by the government in this case in an obvious attempt to help the government meet its burden rather than hold the government to it. That many off-panel members of the court now gratuitously rush to signal their agreement with the panel’s gratuitous legal reasoning in a concurral strangely criticizing my disagreement as gratuitous really deepens the irony. Projection, anyone?"
That's a pretty bitter -- and personal -- attack. One that includes throwing in a seemingly gratuitous slam on a long-dead colleague (Judge Reinhardt) to boot. (Conflict disclosure: I clerked for Judge Reinhardt. It's not wrong to say that he felt strongly about particular things. Though in my experience, he worked as hard to get his colleagues to not say unnecessary things that he thought would be counterproductive -- even things he agreed with -- as he did to say things that he thought were right. Regardless, it seems kind of unnecessary to zing the guy. My usual rule is that comparing living people to dead people -- be they Adolph Hitler, Justice Taney, Joe McCarthy, etc. -- rarely advances the ball.)
In any event, some fairly vitriolic stuff out of the Ninth Circuit today.
