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July 20, 2024

Game changer in the 9th Circuit? – National Media silent

By Kirk Allen & John Kraft

On February 11, 2017

9th District Appellate Court(ECWd) –

Yesterday, the Chief Judge of the 9th District, Judge Thomas, took steps that may prove to be a game-changer yet we find nothing in the national news on this matter?  The Chief Judge “made a sua sponte request that a vote be taken as to whether the order issued by the three-judge panel on February 9, 2017, should be reconsidered en banc.

O Romeo, Romeo! wherefore art thou Romeo

Or should it be;

O Romeo, Romeo! wherefore art thou Spokeo, as in SPOKEO, INC. v. ROBINS?

Or in layman’s terms, what is missing from the 9th District Appellate Court’s recent opinion that denied the Governments motion to stay?

The Spokeo case was a 9th District case that was overturned by the US Supreme court only 9 months ago and dealt with a matter of standing.  Does anyone else find it very odd that the recent ruling dealing with standing heard in the 9th Circuit involving the US Government, and the State of Washington & Minnesota, failed to cite the most recent case law on the matter of standing?  Their 9th Circuit opinion can be found here.

Is this the reason for the Chief Judge filing his sua sponte request? For those not familiar with the legal terms “sua sponte” and “en banc” let us explain.

sua sponte – “Latin for “of one’s own accord; voluntarily.” Used to indicate that a court has taken notice of an issue on its own motion without prompting or suggestion from either party.”

Did you catch that?  The “Court” has taken notice of an issue on its own motion without prompting or suggestion from either party.  That points to them realizing something is wrong.  I can only wonder if the Chief Judge sees what appears to be a glaring omission from the three-judge ruling in his court, as in language from Spokeo v. Robins.

en banc – “French for “in the bench,” it signifies a decision by the full court of all the appeals judges in jurisdictions where there is more than one three- or four-judge panel. The larger number sit in judgment when the court feels there is a particularly significant issue at stake or when requested by one or both parties to the case and agreed to by the court.”

How serious is this request?  According to Cornell University Law School, “An en banc hearing or rehearing is not favored and ordinarily will not be ordered unless:

  • en banc consideration is necessary to secure or maintain uniformity of the court’s decisions; or
  • the proceeding involves a question of exceptional importance.

The request asks for briefs from all parties, not just the plaintiff and defendant.  That means each and every party involved in this case is being asked to provide a brief on their position on whether this matter should be reconsidered by the full court; “en banc”

The filing, found below, indicates this matter is not finished before the 9th District Court as so many have insisted is the case.  It would appear there is something missing from the recent ruling and I am going to guess this action is being taken in order to secure or maintain uniformity of the court’s decisions, or in this case, one that was recently overturned by the Supreme Court.

O Romeo, Romeo! wherefore art thou Spokeo!

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  • Gerard H Schilling
    Posted at 10:36h, 11 February Reply

    I submit they are scared Congress (two bills pending) will break up their liberal cabal by either trimming their area or dissolving the 9th district completely.

  • Dave
    Posted at 10:48h, 11 February Reply

    Activist judges, those who willfully cherry-pick the law and allows their liberal passions, wants and desires to prejudice their legal opinion should be removed from the bench and exiled from America.

    They are no different than a third world banana republic dictator and as such are not honorable.

  • Mark Misiorowski
    Posted at 17:33h, 11 February Reply

    Dear Sir/Madam:

    Your article raises an interesting point. Thank you for highlighting.

    On a related note, 8 U.S.C. 1182 provides “Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.” Why was this law not cited, analyzed or distinguished in the February 9th Decision from US Appellate Court? 8 U.S.C. 1182 is still on the books, isn’t it?

    Another possible explanation for the Sua Sponte motion from the Court to review the order of February 9, 2017.

  • Natalie
    Posted at 18:41h, 11 February Reply

    The 9th went way too far this time- a clear power grab by a court to override a president’s authority. The court arrogantly did not even try to justify their decision. I think it’s too late for the 9th to fix this by the sua sponte. The 9th needs to be broken up period.

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