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April 16, 2024

Federal 9th Circuit Update – Dissenting Justices File Supplemental Filings –

By John Kraft & Kirk Allen

On March 18, 2017

(ECWd) –

Just as we wrote in early February in “Game changer in the 9th Circuit? – National Media silent” and “The 9th Circuit – more to the story” we believed the decision was faulty and were surprised that a request for sua sponte request for it to be considered en banc was made. We also talked about the Spokio v. Robins case which dealt with the need to prove standing in order maintain an action in federal court and the fact it was never considered in the original decision – and was never raised in this dissention letter.

Now we have the strongly worded letter of dissenting Justices, which paints a picture making the original decision even more perplexing.

While we understand that Federal Justices interpret the law differently on the Travel Ban issue, this document makes that point very clear, with some key points taken from it:

  • consideration of the case en banc did not happen and the letter was to dissent from their failure to correct the panel’s manifest error
  • it contained good background on the President’s authority to exclude aliens
  • it should have been review because the panel made a fundamental error
  • the panel’s analysis conflicts irreconcilably with their previous cases and they had an obligation to vacate the opinion to resolve that conflict and provide consistent guidance to district courts and future panels of the appeals court
  • the panels errors were many and obvious . . . and stands contrary to well-established separation-of-powers principles
  • they even wrote a little about public discourse and personal attacks on the Justices

Now, with the Hawaii decision on Travel Ban 2.0, which if appealed, is also in the US Court of Appeals for the Ninth Circuit. The outcome of any appeal could rest on which three individual Justices are selected to hear the appeal. Whatever the results of any appeal, it will surely be further appealed to the US Supreme Court.

Enjoy reading this letter, which starts on page 2:

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  • Mark Misiorowski
    Posted at 07:59h, 19 March

    Dear Sir/Madam:

    Thanks for covering this historical matter and especially for highlighting the dissenting opinion from certain justices on the US Court of Appeals for the Ninth Circuit. Your reporting puts this issue into sharper perspective.

    As you have correctly noted, the Travel Ban Executive Order (Version 2.0) has received significant attention in two federal courts, Maryland and Hawaii. The Maryland Federal Court ruling has now been appealed to the US Court of Appeals for the Fourth Circuit. That Notice of Appeal was filed last Thursday. From a historical perspective, The Fourth Circuit tends to be conservative in its rulings.

    As to the Hawaii action, the USDOJ filed a motion with the trial court to clarify/narrow the court’s original ruling. That motion was filed last Friday. After that motion is ruled upon, there is strong likelihood that the Hawaii ruling will then be appealed to the US Court of Appeals for the Ninth Circuit. As you have previously reported, the Ninth Circuit tends to be more liberal in its rulings.

    Indeed, this may have been what prompted certain justices from the US Court of Appeals for the Ninth Circuit to issue such a vigorous dissenting opinion to the Travel Ban Ruling Version 1.0 (which you highlighted in your present article). The Dissenting Justices sharply criticized the original Travel Ban ruling from the Ninth Circuit on the basis that the Court failed to consider or distinguish binding US Supreme Court case law, including the Kleindienst decision.

    Thus, two inconsistent rulings could soon be in the making as to Version 2.0 of the Travel Ban Executive Order. A conservative ruling from the 4th Circuit and a more liberal ruling decision from the 9th Circuit. The anticipated conflict between two Appellate Court Circuits, the original decision from the Ninth Circuit, as well as the vigorous dissent filed in the Ninth Circuit, etc. may very well convince the US Supreme Court to hear the Travel Ban Case on the merits–and in so doing resolve all judicial conflicts between and among the Federal Court System.

    In the meantime, Judge Gorsuch’s confirmation hearings in the US Senate are set to begin this week. So it is conceivable that Judge Gorsuch could be well along his confirmation process or confirmed by the US Senate and possibly seated on the US Supreme Court just in time to hear the upcoming appeal on the Travel Ban Executive Order Version 2.0.

    A game of high stakes procedural chess on multiple levels…the Federal Appellate Courts, the US Senate Judiciary Committee, the entire US Senate, the USDOJ, the US Intelligence Community, the White House, and possibly the US Supreme Court, etc.

    Thanks for covering all sides of this important national story. Much appreciated.

    • G.Barraclough
      Posted at 08:44h, 20 March

      I am not really up to speed on the individual judges of the Naughty Ninth and their individual opinions, concurrences and dissents over the last 10 years. It appears you are. Do the recent sua sponte dissenters in this case have a historical track record, revealed in their opinions (and other writings), of reasoned, lawful and constitutional disagreement with the panel who created the current decision or is this just a case of the more intelligent rats deserting a sinking ship?

  • Madison Black
    Posted at 07:39h, 20 March

    Ostensibly the 9th Circuit does not read the law: USC 8. They have disgraced themselves and the offices they hold. The 9th Circuit has a reputation of legislating and they sure have done so
    with the President’s travel bans. I suppose one could argue that the 9th Circuit has put the nation at risk. Good bye Separation of Powers.