Ninth Circuit Travel Ban Order May...Or May Not...Go En Banc (Feb. 10, 2017)

Ninth Circuit, Feb. 10, 2017 - "A judge on this Court has made a sua sponte request that a vote be taken as to whether the order issued by the three judge motions panel on February 9, 2017, should be reconsidered en banc.  A sua sponte en banc call having been made, the parties are instructed to file simultaneous briefs setting forth their respective positions on whether this matter should be reconsidered en banc.  The briefs should be filed on or before 11:00 a.m., Pacific time, on Thursday, February 16.  The supplemental briefs shall be filed electronically and consist of no more than 14,000 words.  See General Order 5.4(c)(3)."

What does that mean?  Here's your decoder ring:

"Ninth Circuit En Banc Procedure Summary

This explanation may provide some background on the Ninth Circuit en banc procedure.

Following the issuance of a three judge panel order or opinion, parties may seek rehearing before
an en banc court. The parties may also elect to bypass that process and seek review by the United
States Supreme Court. Under Federal Rules of Appellate Procedure and the Ninth Circuit General
Orders, a circuit judge can also request that a vote be held on whether a decision should be reheard
by an en banc panel, even if the parties have not requested it. This procedure is termed a "sua
sponte en banc call." Under Court procedure, the judge who made the request is not identified.

When a sua sponte en banc call is made, the parties are ordinarily requested to provide their views
on whether a case should be reheard en banc before the Court conducts a vote. That briefing
request is made through an order of the Chief Judge or En Banc Coordinator. In this case, at the
request of a judge on the court, the Chief Judge issued an order directing the parties to file briefs to
provide their views. The briefs are due February 16. After the briefs are filed, a vote is scheduled
on the en banc call, unless it has been withdrawn. If a majority of the active, non-recused judges
vote in favor of rehearing en banc, then the case is reheard by the en banc court. If the vote
succeeds, the en banc court assumes control over the case. Ordinarily, oral argument will be
scheduled before the en banc court at a time set by the Chief Judge. A decision is issued some
time after the judges confer on the case. The en banc court consists of the Chief Judge, and ten
non-recused judges who are randomly drawn. Senior judges are not eligible to serve on the en
banc court, unless they served on the three judge panel.

If the vote fails, the three judge panel retains control of the case. In either event, an order is issued
announcing the results, but the votes are not disclosed.

En banc calls, including sua sponte en banc calls, are a common occurrence. In an average year in
the Ninth Circuit, there are approximately 1,500 requests by parties for rehearing en banc.
Typically, there are approximately fifty requests each year by a judge for a vote on whether to
rehear the case en banc. On the average, the Ninth Circuit hears between 15-25 en banc cases a
year.

Specific information about the en banc procedure may be found in Federal Rule of Procedure 35,
Ninth Circuit Rules 27 and 35, and the Ninth Circuit General Orders, all of which may be found on
the Ninth Circuit website."