Peruta/Richards going en banc

[Maestro Pistolero]

It is the entire case rather than merely the request for intervenor status that is being struck and reheard.

 

[swinokur]

So if Peruta is not reversed, the CA AG could still theoretically be granted intervenor status by another En Banc panel and then ask SCOTUS for CERT?

Geez.

 

[randian]

So if Peruta is not reversed, the CA AG could still theoretically be granted intervenor status by another En Banc panel and then ask SCOTUS for CERT?

Geez.

She won't be asking for cert. It's guaranteed CA9 will overturn.

 

[OleCuss]

She won't be asking for cert. It's guaranteed CA9 will overturn.

Pretty likely that the en banc will not go our way, but not at all guaranteed.

 

[randian]

Pretty likely that the en banc will not go our way, but not at all guaranteed.

Barring a clear Republican majority, and even then we can't be certain all 6 will vote to sustain Peruta, under what circumstance would that happen?

 

[swinokur]

I'll rephrase. Could the CA AG ask for an En Banc hearing for the panel that denied her intervenor status if Peruta is not overturned En Banc?

Just trying to understand the logistics of this.

 

[press1280]

Barring a clear Republican majority, and even then we can't be certain all 6 will vote to sustain Peruta, under what circumstance would that happen?

I believe there are a few Dem nominated on the 9th that could vote our way if the 9th is pinned down on public carry as a whole(not just CCW as Thomas' dissent tries to). That's why the Nichols case has just become extremely important in my non-legal mind.

 

[Kharn]

I'll rephrase. Could the CA AG ask for an En Banc hearing for the panel that denied her intervenor status if Peruta is not overturned En Banc?

Just trying to understand the logistics of this.

You're always allowed to ask for a rehearing.
You're virtually guaranteed of not getting it.

 

[kcbrown]

You're always allowed to ask for a rehearing.
You're virtually guaranteed of not getting it.

Unless it's a gun case in the 9th and you're the government. Then you're almost guaranteed a rehearing.

 

[Maestro Pistolero]

I am unaware of any instance where a court of appeals took a decision en banc in order to uphold it.

 

[Kharn]

I am unaware of any instance where a court of appeals took a decision en banc in order to uphold it.

At this point, my main hope is Kozinski gets on the panel and rips everyone a new one. Kozinski and O'Scannlain both saying a theory is bull poopie is sure to get attention in DC.

 

[esqappellate]

I am unaware of any instance where a court of appeals took a decision en banc in order to uphold it.

It is rare, but it does happen in the 9th. See, e.g., Carrera v. Ayers 699 F.3d 1104 C.A.9 (Cal.),2012.

 

[kcbrown]

I am unaware of any instance where a court of appeals took a decision en banc in order to uphold it.

The purpose may be to reverse, but reversal is not guaranteed because the vote on whether or not to take the case en banc is performed by the entire court whereas the en banc decision is issued by a (supposedly randomly selected) subset of the court. As a result, it is possible for there to be a mismatch between the political preferences of the court as a whole and the political preferences of the selected panel.

In this case, however, the probability of that mismatch is extremely low: roughly 2.8%.

I agree with you, however, that the court will not vote to take a case en banc with upholding it in mind, as that would be a complete waste of time.

It is rare, but it does happen in the 9th. See, e.g., Carrera v. Ayers 699 F.3d 1104 C.A.9 (Cal.),2012.

Were those cases taken en banc with the predetermined purpose of upholding them, or were they taken with the purpose of reversing them, but the panel draw was such that the panel ended up upholding? Those are two different scenarios and, frankly, I don't know that it's possible to tell the difference between them.

 

[esqappellate]

The purpose may be to reverse, but reversal is not guaranteed because the vote on whether or not to take the case en banc is performed by the entire court whereas the en banc decision is issued by a (supposedly randomly selected) subset of the court. As a result, it is possible for there to be a mismatch between the political preferences of the court as a whole and the political preferences of the selected panel.

In this case, however, the probability of that mismatch is extremely low: roughly 2.8%.

I agree with you, however, that the court will not vote to take a case en banc with upholding it in mind, as that would be a complete waste of time.




Were those cases taken en banc with the predetermined purpose of upholding them, or were they taken with the purpose of reversing them, but the panel draw was such that the panel ended up upholding? Those are two different scenarios and, frankly, I don't know that it's possible to tell the difference between them.

There is no earthly reason to take a case with the "predetermined purpose of upholding them." A panel decision establishes circuit precedent unless overturned by the SCT or by an en banc decision. Hence, taking a case en banc just to affirm is pointless.

 

[esqappellate]

At this point, my main hope is Kozinski gets on the panel and rips everyone a new one. Kozinski and O'Scannlain both saying a theory is bull poopie is sure to get attention in DC.

That is my hope as well.

 

[zenMonkey]

How are the judges randomly selected for the En Banc panel? Names in a hat... picking straws... bingo style ball cage?

 

[randian]

At this point, my main hope is Kozinski gets on the panel and rips everyone a new one.

While psychologically satisfying it's legally meaningless.

 

[Jerzee Transplant]

In light of Woollard, piczt(whatever nj case) plus ny case all the ccw non starts:

Is there any reasonable chance of scouts taking this in case of en banc reversal?

 

[esqappellate]

How are the judges randomly selected for the En Banc panel? Names in a hat... picking straws... bingo style ball cage?

The chief judge always sits (Thomas). The random draw (and yes it is really random) is thus for 10 judges for a total of 11. The clerk uses a computer program for this. The judges would not tolerate anything less than completely random, you can believe that.

 

[esqappellate]

In light of Woollard, piczt(whatever nj case) plus ny case all the ccw non starts:

Is there any reasonable chance of scouts taking this in case of en banc reversal?

No way of telling. This would be the first case in which the panel ruled for plaintiffs only to get reversed en banc. The scotus chances are enhanced by the fact the panel decision was authored by Judge O'Scannlain, who is very highly respected and plaintiffs' counsel (Clements and Gura) are known players at this level. All you can do is roll your dice and take your chances.