US v. Burdeau

• Decision Date: 25 June 1999
• Docket Number: No. 97-30388.,97-30388.
• Citation: 180 F.3d 1091
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Herbert Louis BURDEAU, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

180 F.3d 1091

UNITED STATES of America, Plaintiff-Appellee, v. Herbert Louis BURDEAU, Defendant-Appellant.

No. 97-30388.

United States Court of Appeals, Ninth Circuit.

June 25, 1999.

Before: BOOCHEVER, REINHARDT, and GRABER, Circuit Judges.

ORDER; Concurrence by Judge TASIMA; Dissent by Judge KOZINSKI.

ORDER

The panel has voted to deny Appellant's Petition for Rehearing.

A sua sponte call for a vote on rehearing this case en banc was made by an active judge of this court. The call failed to receive a majority of the votes of the non-recused active judges. Fed. R.App. P. 35.

The petition for rehearing is denied and the sua sponte en banc call is rejected.

TASHIMA, Circuit Judge, concurring in the order denying rehearing en banc, with whom BOOCHEVER, Senior Circuit Judge, joins with respect to the order denying rehearing en banc:

As the dissent from our denial of taking this case en banc notes, this is the third recent occasion on which the court has denied (or rejected) taking a case en banc merely to "correct" statements in opinions, as opposed to their holdings or judgments. And for sound reason.

The criteria for taking a case en banc are clear and well-established—either necessity "to secure or maintain uniformity of the court's decisions," or to decide "a question of exceptional importance." Fed. R.App. P. 35(a)(1) and (2) (emphasis added).¹ See, e.g., Atonio v. Wards Cove Packing Co., 810 F.2d 1477, 1478-79 (9th Cir.1987) (en banc); United States v. Wylie, 625 F.2d 1371, 1378 n. 10 (9th Cir. 1980); see generally United States v. Aguon, 851 F.2d 1158, 1172, 1176 (9th Cir.1988) (Reinhardt, J., concurring; Wallace, J., concurring and dissenting). And that is what en banc proceedings should be reserved for—to decide cases, not to edit statements in opinions. As the Supreme Court said long ago, "this Court, however, reviews judgments, not statements in opinions." Black v. Cutter Lab., 351 U.S. 292, 297, 76 S.Ct. 824, 100 L.Ed. 1188 (1956) (citing Herb v. Pitcairn, 324 U.S. 117, 125-26, 65 S.Ct. 459, 89 L.Ed. 789 (1945); Morrison v. Watson, 154 U.S. 111, 115, 14 S.Ct. 995, 38 L.Ed. 927 (1894); Williams v. Norris, 25 U.S. (12 Wheat.) 117, 118, 120, 6 L.Ed. 571 (1827)).

So should it be with hearing cases en banc. Subject to rare exceptions, unlike the comments in the Burdeau panel opinion, we should review the statements in three judge panel opinions only to "determine whether the panel's legal error resulted in an erroneous judgment. . . ." Chevron U.S.A. Inc. v. Natural Resources Defense Council, 467 U.S. 837, 842, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). If we were to follow the dissent's suggestion, we would take en banc, for example, a case in which a three judge panel harshly criticized a state supreme court, see Trident Center v. Connecticut Gen. Life Ins. Co., 847 F.2d 564 (9th Cir.1988),² because it is no more our function, in a robust federal system, to tell a State what law it should adopt in its own sovereign capacity, than it is to "offer unsolicited advice to the other branches of government."

Those joining in the dissent have repeatedly voiced their opinion that opinion-editing of three judge panel opinions is a proper and almost routine function of the en banc court, even though they may have no disagreement with the judgments of those opinions. Although I am reluctant to write a separate concurrence to an order denying rehearing en banc, I write this concurrence because, in spite of the repeated expressions that the correcting of statements in opinions which do not affect the judgment is a proper en banc function, no contrary opinion has been expressed. Those repeated expressions should not go unchallenged.

The en banc court is not the Language Police. Its function is not to maintain uniformity of language or thought by three judge panels, but to maintain uniformity of decisions. Because the only purpose of this en banc call is to curb "meddling" by a three judge panel,³ I concur in the court's denial of rehearing en banc in this case.

KOZINSKI, Circuit Judge, with whom Judges BRUNETTI, O'SCANNLAIN, TROTT, T.G. NELSON, KLEINFELD, SILVERMAN, and GRABER, join, dissenting:

For the third time in six months, a panel of this court has offered unsolicited advice to the other branches of government. Dissents in the two previous cases pointed out the impropriety of using a majority opinion to deliver a lecture to the political branches. See United States v. Harris, 165 F.3d 1277 (9th Cir.1999) (Kozinski, J., dissenting from the order rejecting the suggestion for rehearing en banc); United States v. Mussari, 168 F.3d 1141 (9th Cir.1999) (Kozinski, J., dissenting from the order rejecting the suggestion for rehearing en banc). Bad as the earlier cases were, the opinion here breaks dangerous new ground in two ways.

First, rather than merely giving advice to the legislative branch on how it should resolve broad questions of sentencing policy, see United States v. Harris, 154 F.3d 1082, 1085 (9th Cir.1998), or to the Executive Branch on the future use of its prosecutorial discretion, see United States v. Mussari, 152 F.3d 1156, 1159 (9th Cir. 1998), the majority here tries to buffalo the Department of Justice into changing its position in the very case now before the court. See United States v. Burdeau, 168 F.3d 352, 359 (9th Cir.1999). After determining that "defendant's legal arguments are unavailing," id. at 358, which ended their legitimate role in the case, the majority trots out a detailed plan of action for sparing defendant a portion of his sentence. See id. at 359. Unseemly as it is for a court to offer abstract policy recommendations, it is much worse to leverage the court's moral authority to change a result when we are supposed to be impartial arbiters. As Judge Graber notes, we "are not asked for our personal preferences about the results of cases." Id. at 360 (Graber, J., concurring in part and dissenting in part). Except as the law requires, a court must not take sides-or appear to take sides-among the litigants before it. Concurring and dissenting opinions, which speak only for the signatory judges, are the appropriate vehicles for airing our personal views.

Second, the majority did not merely come up with a plan of action; it also stayed the mandate 60 days to give the United States Attorney on opportunity to act on its advice. See Burdeau, 168 F.3d at 359. While staying the mandate is "entrusted to our sound discretion," Bryant v. Ford Motor Co., 886 F.2d 1526, 1528 (9th Cir.1989), we abuse that discretion when we exercise it without a legitimate basis. See Calderon v. Thompson, 523 U.S. 538, ___, 118 S.Ct. 1489, 1502, 140 L.Ed.2d 728 (1998). Delay of the mandate, like any other judicial act, must be supported by a legally sufficient reason. A panel may not delay the mandate for no reason ("We stay the mandate for two weeks because we feel like it"); it may not delay the mandate for a bad reason ("We don't like the defendant and we therefore stay the mandate just to irk him"); it mat not delay the mandate for a reason unrelated to the case before it ("We stay the mandate to give the government lawyers a chance to read and absorb the tightly-packed wisdom of The Anatomy of an Execution: Fairness vs. `Process', 74 N.Y.U. L. Rev. 313 (1999)"); and it may not delay the mandate to pressure the parties into accepting advice the court has no authority to give and cannot order the parties to follow.

Judge Tashima objects to the use of the en banc process to correct objectionable language, but he concedes that this is not a universal rule. Tashima concurrence at 6886 ("Subject to rare exceptions. . . ."). Judge Tashima thus agrees that the full court can act as the "Language Police," id. at 6887, when a panel says or does something, even in dicta, that other judges find inappropriate. Despite his sweeping language, then, Judge Tashima's cavil is rather narrow: He does not think that this is one of those "rare exceptions." Respectfully, we disagree. When a panel,...