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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Sent by: Discussion cc:
list for con law Subject: CA9 takes case in banc
professors
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09/19/2003 03:21 PM
Please respond to
Discussion list for
con law professors
The order taking the case in banc is available at
http://www.ca9.uscourts.gov/ca9/newopinions.nsf/F656D78784F3200988256DA6006306FE/$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
