The Rehearing and En Banc Processes -- Settling the Law of the Circuit

Using an immigration case to illustrate the rehearing and en banc processes, the case in Salguero Sosa v. Garland. The Court published Salguero Sosa in December 2022, Judge Milan Smith writing the opinion and District Judge George Wu concurring. 

Judge Wu agreed that the case should be remanded under the Convention Against Torture but did not agree with the alleged past prosecution claim. Judge Wu argued that the requirement of cumulative review effect was not required by the precedent. Judge Wu queried about the detail required in a cumulative effect analysis. Judge Wu complained that the majority opinion did not state the elements or steps in a cumulative review analysis. 

The Attorney General sought panel rehearing. Judges Smith and Sidney Thomas voted to deny panel rehearing. Judge Wu voted to grant panel rehearing. Judge Smith describes that petition for panel rehearing in the concurrence to the denial of en banc review:

Indeed, it was not until its petition for panel rehearing only that the government made the remand-accepting argument on which the dissent now piggy-backs. By doing so, the government took a heads-I-win, tails-you-lose approach to this case. At the panel stage, the government argued: The court should not remand because cumulative-effect review is not a legal requirement. After we rejected that argument, the government then argued at the panel-rehearing stage: The court’s discussion of cumulative-effect review being a legal requirement was unnecessary—it should just remand. At a minimum, the government forfeited this remand-accepting argument by raising it for the first time in its petition for panel rehearing. 

So how did this en banc review process start? One judge called for a vote to rehear the matter en banc even though the AG did not ask for en banc review. 

Historically, the public knew two things about the en banc process, that it was granted or denied. See I Say Dissental, You Say Concurral. Alex Kozinski and James Burnham observed:

By our count, 45 judges have filed some 290 dissentals in over 230 cases in the Ninth Circuit. This includes 41 of the 71 who have served as active judges since 1970. 32 And all but 10 of those 71 have joined dissentals written by others.34 Hundreds more dissentals have been filed in the courts of appeals nationwide.35 Some judges are so dissental-happy they file two in the same case.36

Judge Wu is not a judge of the Court of Appeals. He cannot call for en banc review nor sit on an en banc panel. Someone else called for the en banc vote. And now we have a 33-page concurral and dissental opinion of the court that functions as a treatise on the cumulative review analysis, how to discern precedent from prior cases, and the dangers of misplacing the modifier on when facts may lead to a conclusion and when the agency must conduct an analysis. Judge Smith's concurral is mandatory reading for anyone serious about administrative law, not just immigration substantive law.

Enjoy the ride. 

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1 Judge Wu identifies the person as Sosa. Judge Smith identifies the person as Salguero Sosa. I have a passing familiarity with Latin culture by immersion for 30+ years. Nery Adeli Salguero Sosa's surname (or his father's surname) is Salguero and his mother's surname is Sosa.  Adeli is what Anglos would call the middle name. If we identified Nery by a singular name in formal respectful address, it would be Senor Salguero. To call Nery by his mother's last name is culturally wrong. Nery is either Salguero or Salguero Sosa, but never Sosa.

Not to be outdone, Judge Callahan furthers the name confusion in her dissent from the denial of the sua spone en banc call. Judge Callahan identifies Sosa v. Callahan, 55 F.4th 1213 (9th Cir. 2022). Judge Smith identifies the case as Salguero Sosa v. Callahan, 55 F.4th 1213 (9th Cir. 2022). Misnaming a case will lead to confusion in the future.  

Example, the leader of the PRC from 1949 to his death was Mao Zedong (or Mao Tse Tung in the older translation). The world called him Chairman Mao not Zedong to Tse Tung. Why? Because it is common in East Asian culture to put the family surname first and the familiar name later in the sequence with variations between people groups. Where the person's surname appears in the full name is a matter of cultural history. 

Back to Latin culture, it gets confusing when a family assimilates into the predominant Anglo culture. There is no firm convention. Some keep a "maiden" name as a middle name and some hyphenate with the  maiden name before and the adopted name second. Some people insist on the hyphenated version of their name, others prefer just the terminal name in the sequence. How do we figure it out? Look at the way that the person signs or writes their name. The proper noun by which we identify is a culturally agreed upon and negotiated process that warrants respect. Does Salguero Sosa use the name Sosa alone? I doubt it. The observation that the majority opinion uses Salguero Sosa and the concurrence uses Sosa does tell us that one of the opinions is wrong. We don't refer to Chairman Zedong. 

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Suggested Citation:

Lawrence Rohlfing, The Rehearing and En Banc Processes -- Settling the Law of the Circuit, California Social Security Attorney (August 18, 2023) https://californiasocialsecurityattorney.blogspot.com

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