Wednesday, November 12, 2014

Garcia v. Google (9th Cir. - Nov. 12, 2014)

Let's just say that "Innocence of Muslims" is now in reruns.  Because this morning the Ninth Circuit took the case en banc.

This is not an especially surprising development.  As I mentioned when the opinion came out, it's a high-profile case that makes fairly new law.  So taking the case en banc was reasonable foreseeable.

I'll just make one comment you may not find elsewhere.  Chief Judge Kozinski wrote the majority opinion that's been taken en banc.  Moreover, as chief judge, under Ninth Circuit Rule 35-3, he's automatically on the en banc panel.  Which means that you likely already know one of the eleven votes.

With one wrinkle.  By my calculation, Judge Kozinski only has 18 more days -- and counting -- as chief judge.  So at the time of the actual argument (indeed, even at the brief submission date), he's not going to be the chief.

I'm not quite sure how Rule 35-5 gets applied in this setting.  I'm assuming that since he's the chief at the time the case is taken en banc, he gets to be on the en banc panel.  Even though that means that the en banc panel won't have the "chief" on it.  (Which somewhat highlights that there's totally no reason to have the chief automatically put on the en banc panel; something that I hope the Ninth Circuit will eventually change.)

A foresighted judge might have delayed the en banc call and/or vote just a few weeks to get a different judge on the en banc panel.  But maybe that'd be too obviously manipulative.  Conversely, maybe the Ninth Circuit will let the new chief sit on the panel.  (Instead of Kozinski?  In addition?)  Though I do not think that likely.  Seems to me that the best interpretation of the relevant (bad) rule is that the person who's the chief at the time the case gets taken en banc gets to sit.  Otherwise you've have to deal with situations like when the transition happens the day before oral argument, etc.

We'll see what happens.

POSTSCRIPT - Or maybe not!  An astute reader applied his substantial legal talents and looked for -- and found -- a precedent.  Seems that in the prior transition, back in 2007, the Ninth Circuit dealt with a similar issue.  A panel opinion got taken en banc on October 29, 2007.  Judge Schroeder was chief on that date.  But not for long; Judge Kozinski took over a month later.  Then the en banc case got argued in December.  Kozinski had been the chief for only two weeks or so.  Who was on the en banc panel?  Kozinski, not Schroeder.

So it looks like it should be Thomas, not Kozinski, on the panel on this one.  Unless, of course, the former chief is drawn by lot.  Which would make the whole thing moot.  (Except for the irrelevant but exciting fight about who gets "listed" as the chief when the en banc opinion comes out.)

Great stuff.