Ninth Circuit judge requests en banc review of own panel’s ruling

Richard R. Clifton William C. Canby Michelle T. Friedland
L to r: Richard R. Clifton, William C. Canby, Michelle T. Friedland

SAN FRANCISCO – On Feb. 9, a three-judge panel of the Ninth Circuit Court of Appeals upheld the order issued by U.S. District Judge James L. Robart of the Western District of Washington, which enjoined President Donald Trump’s executive order temporarily barring citizens from Iraq, Syria, Iran, Libya, Somalia, Sudan and Yemen from entering the United States, as well as a temporary ban on all refugee admissions, a ban on all Syrian refugees, a reprioritization of minority religion refugees and capping the number of annual refugee admissions at 50,000.

The panel was made up of senior judges William C. Canby, a Carter appointee, and Richard R. Clifton, a George W. Bush appointee, and Judge Michelle T. Friedland, an Obama appointee.

On Feb. 10, Ninth Circuit Chief Judge and En Banc Coordinator Sidney R. Thomas issued an order stating, “A judge on this court has made a sua sponte request that a vote be taken as to whether the order issued by the three judge motions panel on Feb. 9, 2017, should be considered en banc,” and instructed the parties to file simultaneous briefs consisting of no more than 14,000 words on or before 11 a.m. Pacific Time on Thursday, Feb. 16 setting forth their respective positions on whether the matter should be considered en banc.

Despite the president having unquestionable power to suspend the entry of aliens when he believes it would be detrimental to interests of the United States, the Ninth Circuit panel claimed the U.S. Government was not likely to succeed on the merits and stated, “The Government has pointed to no evidence that any alien from any of the countries named in the order has perpetrated a terrorist attack in the United States.”

However, on Feb. 11, contrary to the court’s assertion, the Center for Immigration Studies (CIS) issued a report by Jessica Vaughan, CIS director of policy studies, stating, “A review of information compiled by a Senate committee in 2016 reveals that 72 individuals from the seven countries covered in President Trump’s vetting executive order have been convicted in terror cases since the 9/11 attacks. These facts stand in stark contrast to the assertions by the Ninth Circuit judges who have blocked the president’s order on the basis that there is no evidence showing a risk to the United States in allowing aliens from these seven terror-associated countries to come in.”

According to the Senate report, at least 17 individuals of the 72 individuals entered as refugees from the seven named terror-prone countries, while three entered on student visas and one arrived on a diplomatic visa.

At least 25 eventually became citizens, ten were lawful permanent resident aliens and four were illegal aliens.

Those 72 terrorists resided in 16 or more different states with the largest numbers living in New York, Minnesota, California and Michigan, while at least two were living in Washington.

Vaughan called out the irony that Minnesota, joined by Washington, sued to block Trump’s order, claiming it harmed the stated.

In 1950 the U.S. Supreme Court noted it was inherent in the executive power to exclude aliens as a “fundamental act of sovereignty.”

Two years later, Congress adopted a provision stating the president “may by proclamation and for such period as he shall deem necessary, suspend the entry of all aliens and any class of aliens as immigrants or non-immigrants” whenever he thinks it “would be detrimental to the interests of the United States.”

In conjunction with Thomas’s order, the Ninth Circuit issued a media advisory summarizing the en banc procedure, stating, “Following the issuance of a three judge panel order or opinion, parties may seek a rehearing before an en banc court (before the entire bench). The parties may elect to bypass that process and seek review by the United States Supreme Court. Under Federal Rules of Appellate Procedure and the Ninth Circuit General Orders, a circuit judge can also request that a vote be held on whether a decision should be reheard by an en banc panel, even if the parties have not requested it. This procedure is termed a ‘sua sponte en banc call.’ Under court procedures, the judge who made the request is not identified.”

According to the media advisory en banc calls, including sua sponte en banc calls, are a common occurrence in the Ninth Circuit with an average of 1,500 requests made per year with approximately 50 of those requests made by a judge for a vote on whether to rehear a case en banc.

However, the Ninth Circuit only votes to hear about 15-25 en banc cases per year.

While the Ninth Circuit has consistently maintained its position over the years as the most overturned court in the country with a reversal rate exceeding 80 percent, one judge on this panel is apparently questioning his/her own decision in this matter.