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An Appellate Procedure Perspective on the High School Anti-Homosexuality T-Shirt Case:

A reader writes:

[The Ninth Circuit panel decision in Harper v. Poway Unified School District is indeed] not binding precedent on the Circuit because it has been vacated by the Supreme Court. [But] I think it creates what is called a "come-back" situation. If appealed (certainty) the case should be assigned to the same panel as had the brother's case. Guess what they will do. By the time the case is ready for en banc, Kelsie (the sister) will have graduated from high school. The predictability of the panel re-doing what it did is pretty high. So the precedent will be back.

Very interesting.

Gregory Conen (mail):
Well, it's possible the school district will decide not to litigate it again. Or it will go through the system faster. Or the 9th Circuit will recognize the Supreme Court's subtle hint that they're in the wrong.
3.6.2007 10:58pm
Respondent (mail):
Why do you think the Supreme Court was hinting at anything at all after dismissing a case on grounds of mootness?
3.6.2007 11:23pm
Justice Fuller:
Because it was.
3.6.2007 11:37pm
Dave N (mail):
I am not sure why an appeal would necessarily go back to the same panel. I recently had a case with the SAME litigants that came back several years ago. I was surprised because the oral argument was in Pasadena since my cases are usually heard in San Francisco.

Then I noticed that two of the 3 original panel were hearing cases in Pasadena the week before my scheduled oral argument (before MY panel listing was made). The Pasadena setting made sense if those judges were in southern California.

Surprise, surprise, NONE of the original 3 judges were on the new panel. I had a whole new panel. So is there a rule applicable in this case not applicable in mine?
3.7.2007 12:12am
Dave N (mail):
I want to clarify. My oral argument was this year--in fact, it was last month. The original oral argument was in 1999.
3.7.2007 12:13am
Respondent (mail):
Justice Fuller,
It is highly unwise to infer anything at all from Roberts Court procedural decisions. Case in point: The Colorado redistricting plantiffs won a per curiam last term, and just as summarily lost this term. (I would attribute this increase in resolving cases on procedural grounds to Roberts' attempts to create more consensus.)
3.7.2007 12:40am
rothmatisseko (mail) (www):
Isn't this case a perfect example of why we have the "capable of repetition yet evading review" exception/exemption to/from mootness?
3.7.2007 1:00am
Daniel Chapman (mail):
That exception usually anticipates that the issue is capable of repetition (at least in theory) for the same plaintiff, not for some other plaintiff in the future. In this case, it's not capable of repetition for this kid.
3.7.2007 2:13am
anonVCfan:
If appealed (certainty) the case should be assigned to the same panel as had the brother's case.

How do the Ninth Circuit's procedures work? The courts of appeals with which I am more familiar do not do this, and if a case bounces back and forth several times between a trial court and the court of appeals, the appellate panel is usually different every time.

If the CA9 assigns its panels randomly (even in successive appeals in the same case), then the chances of the same panel getting the case are quite low given the number of judges on that court.
3.7.2007 9:52am
anonVCfan:
I suppose my question is the same as DaveN's. If the CA9 is like other courts of appeals, a different panel will probably get the next round.

Also, if the reader is correct, then end of the story is that the Supreme Court does again what it did in the first round, and the precedent disappears again.
3.7.2007 9:54am
Spitzer:
In the original appeals decision, the panel did not state its intention to maintain jurisdiction over the case. Obviously the remand from SCOTUS goes to that panel, but it is not mandatory that the sister's (likely) forthcoming appeal go to the same panel. The parties may file a motion to bring the matter to the same panel (I assume the school will want to do so) but it is for the panel to decide the matter (although I do not know whether it requires a unanimous vote by the original panel members, or if a mere majority will do).
3.7.2007 10:22am
Oren (mail):

That exception usually anticipates that the issue is capable of repetition (at least in theory) for the same plaintiff, not for some other plaintiff in the future. In this case, it's not capable of repetition for this kid.


So every high school student in the great state of California must be subject to a policy that is incapable of review? I should hope that Robert's drive for consensus does not leave our procedural jurisprudence that rigid.
3.7.2007 12:00pm
LawClerk1 (mail):
Dave N et. al., Eugene is right that the case will be re-assigned to the same panel, at least sort of. What will happen is that the panel will be given the option to accept or reject the case when the second appeal is filed. They usually just vote over e-mail. It's not an issue of maintaining jurisdiction or anything, it's just how the 9th Circuit does it.

See 9th Cir. General Order 3.7:
3.7. Comeback Cases
When a new appeal is taken to this court from a district court or agency decision following a remand, the calendaring staff shall notify the panel that remanded the case that the new appeal is pending. The notification shall contain a brief description of the issues presented. If the issues predominantly involve the interpretation and application of the original panel decision, the panel in its discretion shall consider the time and manner of submission and notify the staff whether it will accept the appeal. If the new appeal presents no issues that would benefit from the earlier panel research, or if it is impossible to reconstitute the panel, then the panel has no obligation to accept jurisdiction of the appeal. If the appeal is one that would not ordinarily be submitted on the briefs by a randomly drawn panel without oral argument, and if oral argument cannot be timely and conveniently calendared, then, in its discretion, the panel may reject the appeal. In the exercise of its discretion to accept or reject a return appeal, the panel should balance its convenience with that of the other judges of the court, with due regard to the interests of the litigants in a timely and appropriate disposition.

Note: Capital cases are governed by Circuit Rule 22-2(c), which states, A that once a capital case is assigned to a panel it retains jurisdiction for all future appeals. @
3.7.2007 4:34pm
anonVCfan:
Under the terms of that order, it's unclear whether the same panel could take it.

The panel is only supposed to take it "[i]f the issues predominantly involve the interpretation and application of the original panel decision," which they clearly wouldn't. It happens a lot that "comeback cases" present questions regarding what has already been decided and what hasn't. Here, there's no such question, because the Supreme Court has explicitly "cleared the way for relitigation" (the exact words escape me).

On the other hand, the grounds for rejection don't necessarily apply either: "If the new appeal presents no issues that would benefit from the earlier panel research, or if it is impossible to reconstitute the panel, then the panel has no obligation to accept jurisdiction of the appeal." Assuming that the panel can be reconstituted, since the issues would likely be identical, they'd certainly "benefit from the earlier panel research."

I suppose the end result is that the panel can have the case if it wants, or decline if it doesn't want. Whether the panel will want the case again is anyone's guess.
3.7.2007 5:07pm
LawClerk1 (mail):
anonVCfan (whatever that's about): Maybe they should take it back, maybe they shouldn't. But they definitely can. As far as I know, nobody has ever objected to a panel taking a comeback case (or not taking one). They vote on it, majority rules, and that's that.
3.7.2007 5:38pm
zirakzigil (mail):
I bet the Court will say enough about Tinker in "bong hits 4 jesus" (Morse v. Frederick, No. 06-278) to make it clear that Judge Reinhardt's approach will merit a GVR if the same case appears via Kelsie Harper or one of the other kids involved in their group.
3.8.2007 2:33am