In 2018, the Trump administration adopted a rule that limited eligibility for asylum to those who enter the United States at a port of entry. A district court blocked the rule from taking effect, and a Ninth Circuit panel affirmed the district court. In an order yesterday in East Bay Sanctuary Covenant v. Biden, the Ninth Circuit denied en banc review of the panel decision, and the panel filed an amended ruling. Judge Patrick Bumatay, joined by five of his colleagues, dissented from the denial of rehearing en banc.
In this post, I’m going to pass over the substantive disagreement between the panel and Bumatay and instead highlight a separate dissent written by Judge Lawrence VanDyke (who also joined Bumatay’s dissent). In his dissent (pp. 97-115), VanDyke exposes some remarkable shenanigans—“judge-jitsu,” in his colorful phrase—by the two judges in the panel majority, Judge Richard Paez and Judge William Fletcher. The issue is somewhat arcane, and I’m addressing only a part of it, so I encourage you to read VanDyke’s opinion and Paez’s response (pp. 76-79) if you are interested.
As VanDyke spells out, the panel on which Paez and Fletcher sat heard on the same day two high-profile cases challenging different Trump administration immigration policies. In East Bay, a Ninth Circuit motions panel had denied the government’s request to stay the district court’s injunction. But in the other case (Innovation Law Lab v. Wolf), a different Ninth Circuit motions panel had granted the government’s stay request. Both motions panels issued their rulings in published opinions.
Under Ninth Circuit precedent, “a motions panel’s published opinion binds future panels the same as does a merit panel’s published opinion.” (I’m quoting the precedent, not VanDyke’s summary of it.) That presented a serious obstacle to Paez and Fletcher in their effort to affirm the district-court ruling in Innovation Law. So despite the fact that though they had no cause to address the issue, they first purported to overrule circuit precedent in East Bay—even though only the en banc court can overturn circuit precedent—and announced a new rule: “we treat the motions panel’s decision as persuasive, but not binding.” They then applied their new rule (in an opinion issued the same day) in Innovation Law.
One thing that’s very amusing about Paez’s response is that he pretends that the “mischief” that VanDyke is condemning is that the panel “amend[ed] its opinion during the en banc process.” In the back and forth of the drafting, even after VanDyke points out that Paez is misconstruing his objection (see p. 105, note 6), Paez sticks to his pretense. That’s quite a sign that Paez has no defense for what he and Fletcher tried to pull off.