"A watchdog for the good of the order": the Ninth Circuit's en banc coordinator.

• Author: Wasby, Stephen L.

1. INTRODUCTION

   Little is written about en banc sittings of the United States Courts of Appeals, and en banc decisions are often excluded from studies of their judges' voting. What is written tends to be based on outcomes and votes in en banc cases, with attention to factors affecting them. But what of the process leading to granting rehearing en banc? Understanding that process would be important in learning more about how the courts of appeals deal with their dockets, about which relatively little is known. Lawyers may not be much concerned about mechanisms of en banc rehearing so long as clients' cases proceed expeditiously, but they might want to know about activity, short of a full en banc decision, that takes place after a panel opinion when either a panel rehearing is denied or an amended opinion is released, the latter a sure indication that some post-panel activity has taken place.

   Our deficit of knowledge about en banc-ing of cases results in large measure from the fact that after a three-judge panel files its disposition, decisionmaking takes place in a black box until announcement that the panel opinion has been amended, rehearing is denied, or the case has been taken en bane. We know there is activity, although exactly what has taken place is not visible. Dissents from denial of rehearing en bane may also cast some light on judges' views, and some courts make public the judges' votes on whether to rehear en bane, but the resulting information remains fragmentary. (1)

   Frequent misunderstanding of how en bane hearings originate shows why we need to know more. While it is often assumed that parties' petitions for rehearing en banc (PFREB) drive the en banc process, (2) and this is reinforced by media stories of losing parties "considering asking the full court to rehear the case," relatively few en banes result from the petitions. Even when filed, they may not be the trigger for rehearing because a judge may have already made an en bane call or said one is forthcoming. Indeed, the initiation of the process that might lead to a positive vote to go en bane often originates not from a member of the panel but from another judge of the court. That judge, having monitored the panel's ruling, makes a sua sponte en bane call, (3) often because of dislike for the panel's decision, (4) although a dissenter on the panel may initiate the en banc call, and at times a panel itself does so prior to disposition upon identifying intra-circuit conflicts. (5) When a judge initiates the process, the parties may then be asked to comment on whether the case should be taken bane, thus reversing the order of events in which party petition precedes judicial action.

   We know that each court of appeals has a chief judge--who is chief of the entire circuit, not only of the appellate court (6)--and non-judicial staff such as the clerk of court or court executive, and, for the circuit as a whole, the circuit executive. And they have governing bodies, a meeting of all the judges wearing their administrative hats or a smaller executive committee, and some appellate judges participate in the circuit council of both circuit and district judges. Yet only in the Ninth Circuit is there another important judicial position, the en bane coordinator.

   In some courts of appeals, panels may circulate to the entire court all opinions to be published, (7) in an informal en banc process in which other judges can raise questions, with that circulation and any resulting revisions thought to decrease the likelihood of formal en bane consideration. (8) Yet, even where such practices exist, and more particularly where they do not, post-panel activity requires supervision to be kept within channels. If, after filing of a panel's disposition, the litigants file only a petition for panel rehearing (PFR) and no other judge suggests altering the opinion, the matter remains within the purview of the panel alone. When, however, an off-panel judge, with either an implicit or explicit threat to call for en bane consideration, seeks to have the panel amend its ruling, there may be many communications among the judges, and it might be useful to have someone superintend the process. Perhaps in a small court of appeals, this en banc process can function without difficulty, operating with the invisible hand of implicit coordination, but, particularly in larger appellate bodies, a coordinating mechanism would seem to be necessary. For the Ninth Circuit, the en banc coordinator, directing the process by which the court considers whether to hear a case en banc, is that mechanism.

   The position of en banc coordinator was created by a chief judge who believed that other judges should be reminded about deadlines not by court staff but by a judge, who, after the panel disposition was filed, would supervise matters leading to the vote on hearing a case en banc. The Ninth Circuit's Clerk of Court could monitor the process of deciding to rehear a case en banc, and more recently someone in that office has done so, but the Circuit has given to a judge the direction of the process up to and including the vote on whether to (re)hear the case en banc, including judges' "stop-clock" requests, (9) the exchange of memos supporting and opposing an en banc call, and the balloting on whether to proceed en banc.

   We do not know very much about how the en banc coordinator's position might operate across many courts because it exists in only the Ninth Circuit. There one judge, Alfred T. Goodwin, served as en banc coordinator from the creation of the position in the early 1970s until the early 1990s, through his two-and-one-half year tenure as chief judge and until 1993, roughly two years after taking senior status. (10) His tenure thus extended from a smaller court with more informal procedures to a much larger one that perforce operated with greater formality. The length of his time in the position allows us to learn about the coordinator's position by examining Judge Goodwin's actions.

   This article focuses on Judge Goodwin's service as en banc coordinator. It is based on his papers and on the author's interviews with him. The judge's papers include case files containing communications among judges on any activity related to possible en banc rehearing, that is, for the period after the filing of the panel's initial decision, (11) judges' calls to go en banc, and the votes on whether to do so, but also, short of that, messages when any off-panel judge asked the panel to reconsider its result and wording. (12) The article begins with treatment of the en banc coordinator's position itself, with its origins and development. Drawing on actual cases, it continues with what the en banc coordinator has in fact done, including his role in developing the court's formal en banc policy. The article ends with brief attention to operation of the en banc coordinating function since Judge Goodwin stepped down from the position.

2. THE EN BANC COORDINATOR

   1. Origins and Continuation in Position

      The position of en banc coordinator did not exist in the Ninth Circuit before the early 1970s. The court once had fewer than a dozen active judges and then only thirteen until 1978. Although memos were exchanged by mall, (13) the judges were able to discuss and vote on taking cases en banc at meetings of the Court and Council. (14) Moreover, there was little en banc traffic, in part because long-time Chief Judge Richard Chambers discouraged en bancs. He is said to have believed in the Second Circuit's view--that if a case was important enough for en banc rehearing, it was important enough for the Supreme Court to hear it, so the court of appeals should let the case go there without further delay. (15) No more than four en bane cases were decided each year between 1970 and 1980 except for 1974-76, with a record eighteen handed down in 1974, including half a dozen en bane rulings on border searches. During this period, calls to rehear cases en bane often resulted from other judges' unhappiness at decisions by the two most liberal judges, Walter Ely and Shirley Hufstedler, or from Judge Hufstedler as to rulings by the court's more conservative majority.

      Even with relatively few en bane requests, "[e]ach time a call came, there was much paperwork." (16) This led Chief Judge Chambers, who, because he "had chief judge stuff to do" and "didn't have enough secretarial help" to manage en bane paperwork, to ask Judge Goodwin "to take care of shuffling cases--to make sure they didn't get delayed." (17) There were additional reasons why Chief Judge Chambers created the position:

      (1) He believed that Article III judges, not staff, should remind other judges of deadlines. ("Judges talk to judges.").

      (2) He thought Judge Goodwin might be the court's chief judge one day (as he was, from 1988-1991), and that undertaking the duties of coordinator "would be a training ground."

      (3) He further believed that Judge Goodwin "had diplomatic skills and attention to detail." (18)

      (Judge Goodwin has said, "What I had was Helen Murdock," referring to his long-time secretary, who was good on attention to detail and would keep track of matters. (19)) In short, "Chief Judge Chambers was outsourcing to someone he could work with." (20)

      The en banc coordinator position remained separate from the chief judgeship throughout Chief Judge James Browning's long tenure (1976-88). Judge Goodwin did try to relinquish the position shortly before he became chief judge. During court discussion of not burdening one judge with the coordination task, he asked for volunteers to assume the position, but there were none, and his colleagues said, "Let him continue to do it," so he retained the position while chief judge. (21) And even after he stepped down and took senior status, his successor, Judge J. Clifford Wallace, asked him to be coordinator until Wallace was "comfortable in the chief judgeship." (22) It took until late 1993 before a new...