Ouch. It's bad enough when your panel opinion gets taken en banc. It's worse when the opinion that they've taken en banc was per curiam, which (as I understand it, anyway) is latin for "This thing is so totally easy that it's not even worth writing about at length, much less telling anyone which set of clerks bothered to puke this thing out." And then there's the ultimate insult. Having your opinion unanimously dismissed by the en banc court, with not even your closest crony backing you up.
But that's precisely what happens here. To Judges Hall, Brunetti, and Graber. They're each on the panel that, back in October of 2004, decides that an immigration petitioner's appeal is so easy that they can dismiss it on the merits in a per curiam opinion and without oral argument. Oopsies. Apparently the rest of the court isn't equally convinced that the panel correctly resolved the case. So they take the case en banc. And decide -- in a unanimous opinion -- that the panel shouldn't have decided the case on the merits, and instead get rid of the case on procedural grounds.
I can't recall the last time I've read a case in which the en banc court was unanimous in deciding that the panel had gotten it wrong. I am certain that I can't remember the last time an en banc court decided an immigration case that garnered the uniform assent of such disparate jurists as (as here) Pregerson, Reinhardt, Kleinfeld, Tallman, Bybee and Bea. When all those dudes -- and, notice, that they're indeed all dudes -- are arrayed in a uniform line against you, you've probably made a mistake. As indeed the panel did here. And got smacked down -- albeit very nicely, and sub silentio -- for it.
Admittedly, it could have been worse. At least luck spared Judges Hall, Brunetti, and Graber from being chosen for the en banc panel, and hence were spared the indignity of either (1) trying to lamely support their panel opinion, or (2) having to vote against the result they previously reached. It's unclear which of these two options would have been more embarrassing. Thank goodness for small favors, eh?
