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The 9th Circuit – more to the story

February 11, 2017   ·   7 Comments

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US Government (ECWd) –

After finding glaring omissions in the recent opinion from the 9th Circuit, coupled with the fact the Chief Judge is taking steps to possibly have the full court review the matter, we dug a little deeper to see if we could find other irregularities.

What was the “Obama” administration’s position on “standing” in the case of Spokeo Inc. v. Robins?  Reading the government’s  “BRIEF FOR THE UNITED STATES AS AMICUS CURIAE SUPPORTING RESPONDENT”, and comparing case law used in that case with the recent ruling out of the 9th Circuit I think we have found something.

The 9th Circuit was overturned by the US Supreme Court on a 6-2 vote in the Spokeo case, which points to a ruling far from ideological or along any claimed party line.  Or in other words, they ruled on good law. In today’s heated political environment, that vote tally is important as it tends to separate the political emotions running wild and out of check, on both sides of the isle in my opinion.

In the Government’s Spokeo brief they referenced three cases of interest in our review.  (Lujan v. Defenders of Wildlife- 1992, Massachusetts v. EPA- 2007, and In Zivotofsky v. Secretary of State-2012)

Keep in mind, the US Government’s support of the 9th Circuit in the Spokeo case failed and was overturned in 2016, making 2016 the most recent case law on the matter as it relates to standing.

So fast forward to the current case and what do we see in the 9th Circuit’s opinion?  The very same case references presented by the prior administration in the Spokeo case, which was overturned by SCOTUS.  In addition, it’s what we don’t see that concerns us.  There is no mention of Spokeo as we pointed out in our previous article here.

I find it very odd, as mentioned in the previous article, that the 9th Circuit made no mention of Spokeo, the most current case law, especially since that case law came from a 9th Circuit case that was overturned. Even more concerning was their reliance on those three cases all while knowing those cases were part of the Spokeo case.

Spokeo is the most recent case law and it was ignored.  That should concern everyone that understands the importance of the rule of law.

I am going to go out on a limb and predicting this is one of the key reasons the Cheif Judge filed a sa sponte request.  The Chief Judge knows Spokeo is the most recent case law and for the 9th circuit to ignore that case law, which came out of a case in their district, indicates to us the Spokeo is the game changer when it comes to standing in this case.

Time will tell!

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Readers Comments (7)

  1. Mark Misiorowski says:

    Dear Sir/Madam:

    The Ninth Circuit Court of Appeals ruled on February 9, 2017 that the Executive Order violated the Establishment Clause of the First Amendment. The Ninth Circuit’s ruling in this regard is wrong in two respects.

    First, the Ninth Circuit misinterpreted key provisions of the Executive Order, starting with Section 5(B). A plain reading of Section 5(B) demonstrates that it is meant to protect and safeguard individuals who suffer or experience “religious-based persecution.”

    In this vein, the central tenet or goal of Section 5(B) is to provide safe harbor to those who are victimized, abused or ill-treated because they are people of faith (any faith), not to establish a particular religion. This is what the Ninth Circuit got wrong.

    Second, the Ninth Circuit faulted the Executive Order for something it did not do. The Ninth Circuit said that the Executive Order Established (i.e. prioritized) one religion over that of another, without naming which religion had been so “prioritized.” This is a disingenuous criticism for the Ninth Circuit to make.

    The language of the Executive Order contains no language which establishes, prioritizes, sponsors or supports any one religion. It does not give greater or lesser consideration to those who are: Yazidi; Copt; Samaritan; Zoroastrian; Druze; Christian; Sabian of Harran; Manichean; Alawite; Mithra; Aramaic; Shamanist; Baha’i Faith; Ishikism; Shabaks; Sufism; Vedism; Islam; Judaism, Agnostic; Atheist; all faiths practiced across the Middle East.

    The Executive Order says simply that if you hold a religious belief (meaning that if you are a person of faith) and you are persecuted for holding that set of beliefs, then our country will welcome the applicant so they can exercise Freedom of Religion in the US without fear of persecution in the future.

    In that fashion, the language of the Executive Order should not be interpreted to violate the Establishment Clause of the First Amendment.

     Reply
  2. Madison Black says:

    Pure and simple: The 9th Circuit did
    not apply 8 USC 1152, or for that matter, even make a footnote of the Code in their written decision. Anyone think those judges read 8 USC? The three judge panel that came down with this ruling should run for Congress since their legislative prowess far out-weighs their ability to comport with long standing federal law.

     Reply
  3. Mark Misiorowski says:

    Dear Sir/Madam:

    Doesn’t the US Supreme Court case of Ashwander v. US (Doctrine of Constitutional Avoidance), further support the argument for en banc reconsideration by the US Court of Appeals for the Ninth Circuit. Recent decisions from Chief Justice Roberts support that proposition as well.

     Reply
  4. Mark Misiorowski says:

    Dear Sir/Madam:

    Seems to me that a strong case can also be made that the Sua Sponte Motion for en banc reconsideration is to give the full panel of the Ninth Circuit Court of Appeals the opportunity to analyze and explain the scope and operative effect of both 8 USC 1182 and 8 USC 1152.

     Reply
  5. Mark Misiorowski says:

    Dear Sir/Madam:
    So if I understand your bottom line here:

    1) The standing cases cited by the 9th Cir. Ct. of Appeals in its February 9, 2017 Decision are still good law;

    2) The US Solicitor General apparently agreed that the standing cases cited are still good law–per the Sept. 2015 USA Amicus Brief you provided from the Spokeo case;

    3) However, the May 16, 2016 Spokeo S. Ct. decision now mandates that federal courts must now undertake a more comprehensive standing analysis than before.

    4) The Ninth Cir. did not cite Spokeo in its February 9th Decision

    5) Therefore the Ninth Cir. may not have undertaken the more rigorous standing analysis as required by Spokeo Supreme Ct decision.

     Reply
  6. G.Barraclough says:

    Sorry, fellow travelers.

     Reply
  7. G.Barraclough says:

    What Michelle Friedland and her fellow travellers in the “Noxious Ninth” Circuit have just done is a foretaste of the progeny of the last 8 years of executive department lawlessness.

     Reply




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