A Disagreement from the Denial of Rehearing En Banc -- Rodriguez Diaz v. Garland

Rodriguez Diaz v. Garland, 53 F.4th 1189 (9th Cir. 2022) is an immigration case concerning a bond hearing during a prolonged detention. Judge Wardlaw dissented arguing that the majority opinion misapplied circuit precedent. Rodriguez filed for rehearing or rehearing en banc. And the drama begins. 

The short story explains that the Court denied rehearing and rehearing en banc. Judge Wardlaw voted to rehear the case by the panel and en banc. Judge Paez disagreed with the vote to deny en banc and issued an opinion to that effect. The first interesting point is that Judge Paez "disagreed" and did not dissent from the denial of rehearing en banc. I don't think that the Ninth Circuit is getting away from the labels of dissental and concurral. 

The judges disagreeing with the order denying rehearing Rodriguez Diaz en banc:

PAEZ,
MURGUIA, Chief Judge,
WARDLAW,
GOULD,
BERZON,
KOH,
SUNG,
SANCHEZ,
H.A. THOMAS,
MENDOZA, and
DESAI

Judge Paez and Judge Berzon took senior status. They actually don't get a vote on what cases get reheard en banc. They have simple disagreement, hence the lack of a dissental. That leaves nine judges with a vote that joined in the disagreement. There are 28 sitting active judges on the Ninth Circuit. Former Judge Watford's seat has a nomination pending before the Senate. To get the case reheard en hanc, a majority of non-recused judges must vote to grant the petition.

Judge Paez in his disagreement and Judge Wardlaw in her dissenting opinion make a strong case that the Court now has conflicting precedent. As a closet libertarian, I hoped that this kind of due process issue would garner greater attention from both sides of the aisle. None of the Trump appointees nor the remaining Bush appointees voted to rehear the case. Eight Obama and Biden appointees are also absent from the disagreement list.

The en banc process is closeted in judicial secrecy. We cannot discern whether any other judges also disagreed, only that they did not publicly join the disagreement. But I did unravel for myself why Judge Paez wrote a disagreement rather than a dissental.

Figured out one thing today. 

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Suggested Citation:

Lawrence Rohlfing, A Disagreement from the Denial of Rehearing En Banc -- Rodriguez Diaz v. Garland California Social Security Attorney (October 12, 2023)   https://californiasocialsecurityattorney.blogspot.com

The author has been AV-rated since 2000 and listed in Super Lawyers since 2008.