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The 9th U.S. Circuit Court of Appeals appears bent on reining in potential conflicts between its precedents and those in other circuits before they catch the eye of the U.S. Supreme Court. The nation’s largest federal appellate court issued 25 orders to rehear appeals by 15-judge en banc panels in 2006, the highest number in decades, with a whopping nine orders in one five-week period between Dec. 21, 2006, and Jan. 23, 2007, according to court records. The latest spate of nine orders all came in criminal or habeas petitions. “This is a noteworthy flurry of activity,” said Arthur Hellman, a professor at the University of Pittsburgh School of Law who has written a book about the circuit and follows it closely. “One thing it says is the court is being proactive in clarifying its law.” Judge Alex Kozinski, a 9th Circuit judge since 1985 and slated to be chief judge at the end of the year, agreed. “There seems to be a greater willingness on the part of judges to view the en banc process as a continuing part of our responsibility in shaping circuit law,” he said. Circuit rules provide that a majority of the court’s 26 active judges may order a full court reconsideration of three-judge panel decisions in a process known as en banc review. Because of the impracticality of all 26 judges sitting for rehearing, the circuit adopted a system of limited en bancs with random selections of 15 judges to rehear cases. The en banc process is intended to eliminate conflicting panel decisions within the circuit and conflicts with precedents in other circuits. In three of the nine cases that the court most recently voted to review en banc, the lower court panel had yet to issue a ruling. That generally happens when the three judges find a conflict within the circuit and refer the case to the entire court, according to Kozinski. Under circuit rules, three judges can’t resolve the internal split; it must be done by en banc review. Pro-government rulings Significant public policy issues may also drive en banc sessions, as in the case of a challenge to California’s gubernatorial recall election that was reviewed and approved by an en banc panel in a nationally televised hearing. In the late 1990s, former Supreme Court Justice Sandra Day O’Connor encouraged 9th Circuit judges to take more cases en banc as a means of cutting down on its high reversal rate at the Supreme Court. The worst year for reversals was the high court’s 1996-97 term, when it overturned 27 of 28 cases from the 9th Circuit. After 1996, which had a low of 12 en banc reviews, the numbers fluctuated, with the highest, 23 cases, coming in 2003, until a new high of 25 cases was set last year, circuit figures show. Hellman said one thing that stands out among the most recent cases taken up for en banc review is that in five of the panel decisions, four were in favor of the government and against the defendant. “I don’t think you would see that in any other circuit, four out of five cases taken in quick succession to reconsider a favorable government ruling,” he said. In one of those cases, the court will examine the question of whether a potential airline passenger who passes successfully through a metal detector can then prevent the secondary screening by telling agents he has decided not to fly. U.S. v. Aukai, No. 04-10226. The three-judge panel said screeners should be allowed to search the passenger. Another case under review held as harmless error the government’s failure to disclose to the defense in a bank robbery case that someone who looked like the defendant had been convicted of nearby bank robberies. U.S. v. Jernigan, No. 05-10086. Kozinski said the en banc process is “very disruptive and takes lots of resources.” A lot of judges tend to vote against granting en bancs automatically because they philosophically oppose the en banc process. “It is a big bother and inconvenience,” he said. But among newer judges, “it is viewed as an integral part of our work,” he said. He did not comment on individual cases but said, in general, “we pay attention to what other circuits do and if we look like an outlier we may take the case en banc.” The thought is that the full court should do the extra work rather than create disagreement with another circuit, he said.

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