The Ninth Circuit U.S. Court of Appeals is due to decide whether to grant en banc review in Chamber of Commerce v. Bonta, a case involving Federal Arbitration Act (FAA) preemption of California’s AB 51 law on arbitration agreements.
“A losing party in the Court of Appeals can submit a petition for en banc rehearing, so it's a normal part of the procedural process,” James M. Anderson, director of the Justice Policy Program at RAND, told the Northern California Record.
Most are not granted. More than 1,500 requests for en banc hearings are filed in the Ninth Circuit each year, of which the court ultimately agrees to hear between 15 and 25. Petitions for en banc are required to start by stating the how the initial ruling conflicts with a U.S. Supreme Court precedent, or presents an issue of exceptional importance that conflicts with other U.S. Court of Appeals decisions.
It is not known whether Ninth Circuit Justice Sandra S. Ikuta, who authored the dissent in the initial 2-1 ruling, would be on the Ninth Circuit panel if it goes to en banc.
In other federal circuit courts, all judges hear an en banc case, Anderson said.
But in the Ninth Circuit, which has 27 justices, it’s the chief justice joined by 10 other randomly selected justices who serve on an en banc panel.
Similar to a petition for en banc review, components of a petition for writ of certiorari before the nation’s highest court would show how the appellate panel decision conflicts with other U.S. appellate court decisions.
The Chamber of Commerce v. Bonta petition states the appellate decision conflicts with the U.S. Supreme Court ruling in Kindred Nursing Centers Ltd. Partnership v. Clark, 137 S. Ct. 1421, 1425 (2017), as well as decisions by the First and Fourth federal circuits.
There can be many grounds by which a judge votes to hear a case en banc, but most of the process takes place internally.
“It could be a really wide range of reasons that a particular judge votes for en banc or not,” Anderson said.
With the en banc petition pending, the district court’s original decision that enjoins enforcement of AB 51 remains in effect.
If the Ninth Circuit doesn’t approve the petition for en banc review, there could be a petition for review by the U.S. Supreme Court. The petitioners also could file to stay the Ninth Circuit’s 2-1 decision going into effect pending Supreme Court review.
(Editor's note: The Northern California Record is owned by the U.S. Chamber Institute for Legal Reform).