Thursday, December 04, 2014

Hartpence v. Kinetic Concepts (9th Cir. - Dec. 3, 2014)

It seems like a fairly straightforward order:  "Upon the vote of a majority of nonrecused active judges, it is ordered that this case be reheard en banc pursuant to Federal Rule of Appellate Procedure 35(a)
and Circuit Rule 35-3."

Which made me think:  "Hmmm.  Don't remember that one.  Hartpence v. Kinetic, you say?  Usually I'm pretty good about recalling high-profile and/or 'might-go-en-banc' cases.  Let me go back and read what I said."

So I searched.  Didn't say anything at the time.  Must not have thought it was important.

But it is now.  Going en banc.  So let's take a look at the panel opinion.

Searching.  Searching.  Searching.  Nothing.

Strange.  Well, there are two case numbers on the caption.  Maybe it's the second one.

Search again.  Nope.

Oh.  I get it.  Must be an en banc call over an unpublished disposition.  Rare, but happens sometimes.  Let's pull it up.

Searching.  Nothing.  Searching under the second number.  No.

What the heck?

So I dig and dig.  Turns out that there's no panel opinion.  At all.  It got argued in July.  But that's it.  No opinion.  You've got the oral argument and then next thing that happens the thing gets taken en banc.

Which is darn rare.

When you listen to the oral argument, it's pretty clear what happens.  Appellant argues that the law in the Ninth Circuit is X but that an intervening Supreme Court decision holds Y, so Y's the law, not X.  But as the panel recognized at oral argument, there's a post-Supreme Court holding from the Ninth Circuit that reiterates that X is the law.  As Judge Berzon noted at the oral argument, "We're pretty strict here in the Ninth Circuit about what a panel can do" in such situations.  Short of an en banc call, the law's X, and the panel is bound to follow it.

What normally happens in these situations is the the panel writes a short opinion that says they're bound to X even if X is wrong, and then someone on the panel (or someone else) subsequently calls for en banc review.  Seen that tons of times.

Not here.

The departure from typical practice initially struck me as strange.  But the more I thought about it, the more it made sense.  Why not find out now whether the court wants to take it en banc instead of later?  Certainly faster.  More importantly, it leave you options.  If the whole Ninth Circuit wants to take it up, that'll make things easier:  We'll know quickly whether the law's X or Y.  And if the Ninth Circuit doesn't want to take it en banc, the panel's got more options:  they can try to distinguish the present case from the cases that hold X, try to rationalize X and Y, etc.  Or they can simply apply X.

No need to go through all those mental gymnastics initially if we can first persuade the court to take the case en banc.

So I like it.