The comment to the circuit rules indicates that the ban on citation applies
to all en banc review.

-----Original Message-----
From: Scarberry, Mark [mailto:[EMAIL PROTECTED]
Sent: Friday, September 19, 2003 12:46 PM
To: [EMAIL PROTECTED]
Subject: Re: CA9 takes case in banc


No, I don't think so, because the mandate has not issued (or effectively was
recalled). In the absence of issuance of the mandate, the panel's opinion
has no effect on the parties, I think. Per Judge Thomas's order of Sept. 16,
the mandate is not to issue except on further order of the court (as I noted
in an earlier post).

Per the court's web site the hearing is set for Monday 1pm Pacific Time. The
en banc panel will consist of Chief Judge Schroeder, and Judges Kozinski,
O'Scannlain, Kleinfeld, Tashima, Silverman, Graber, McKeown, Gould, Tallman
and Rawlinson.

See http://www.ca9.uscourts.gov. Click on "En Banc Court Information."

Mark S. Scarberry
Pepperdine University School of Law


-----Original Message-----
From: Samuel Issacharoff [mailto:[EMAIL PROTECTED]
Sent: Friday, September 19, 2003 12:43 PM
To: [EMAIL PROTECTED]
Subject: Re: CA9 takes case in banc

I notice the order says that the decision is not to be cited as precedent
to not only the Ninth Circuit, but any district court in the Ninth Circuit.
Under Ninth Circuit procedure, does this include not being "cited" to the
district court that refused to stay the election?  If so, is this the
functional equivalent of lifting the stay?

******************************************
Samuel Issacharoff
Harold R. Medina Professor in Procedural Jurisprudence
Columbia Law School
212-854-2527
212-854-7946 (fax)



                      Edward A Hartnett
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The order taking the case in banc is available at

http://www.ca9.uscourts.gov/ca9/newopinions.nsf/F656D78784F3200988256DA60063
06FE/$file/recall_enbanc.pdf?openelement


I notice that the order does not vacate the panel decision, but rather
decrees that it not be cited as precedent in the Ninth Circuit.  Is that
the Ninth Circuit's usual practice?  My understanding was that most courts
of appeals vacated the panel decision upon deciding to rehear the case in
banc, reflecting the view that the court of appeals (whether held by a
panel or sitting in banc) is a unitary court exercising appellate review
over the district court (or administrative agency).  An alternative view
might be that the in banc court exercises appellate jurisdiction over the
panel.  The difference in how the in banc court is conceptualized can
matter if the in banc court divides evenly, but thankfully that should not
be an issue with an eleven member "in banc panel."


Ed Hartnett
Seton Hall

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