Monday, September 26, 2016

U.S. v. Martinez-Lopez (9th Cir. - Sept. 26, 2016)

Sometimes it's hard to figure out what's going on inside the Ninth Circuit.

Today the Ninth Circuit takes this case en banc.  But I didn't remember the published opinion at issue.

So I looked it up.

Nope.  No published opinion.

That's rare.  Apparently they decided to take up an unpublished disposition.

Nope.  No unpublished opinion either.

So I looked up whether the case has had oral argument already.  Yep, it did.

So I watched the oral argument.  Was there a big fight about an intracircuit split that the panel talked about at oral argument and made it clear that this case should be taken en banc?

Nope.  Just a regular old oral argument.  (Maybe made slightly different by the empty chair in the upper left of the video.)

Indeed, if anything, it was a somewhat tame argument.  Not many questions to the government at all.

So it might have just been that the panel decided, after writing its draft opinion, that this was a case that should be taken en banc.

Which is strange -- or at least unusual -- itself.  But made perhaps even stranger by the fact that the oral argument was in 2015, and here we are taking the case en banc in September 2016.

That's a long time.

Now, there are apparently other cases -- or at least one -- pending in the Ninth Circuit that raise similar issues.  So maybe they all get taken en banc.  But I'm just totally speculating at this point.

Sometimes you can figure out easily why a particular opinion gets taken up.  This case isn't one of 'em.  At least for me.