Sunday, December 20, 2009

Case o' The Week: "Super" En Banc Petition (or More Accurately, a Petition for Super En Banc)

The gaul of the Ninth Circuit: giving us the first appellate decision to deal with the realities of the Information Age, without first obtaining DOJ approval. United States v. Comprehensive Drug Testing, __ F.3d __, 2009 WL 2605378 (9th Cir. Aug. 31 2009) (en banc), decision available here.

Players: Solicitor General Elena Kagan, on behalf of Rome - er, the Department of Justice - seeking super rehearing en banc in the Ninth Circuit (rehearing by the entire Ninth Circuit Court of Appeals).

Facts: You’ll recall this fall we trumpeted the most technologically-savvy opinion on computer searches ever written: Chief Judge Kozinski’s en banc decision in Comprehensive Drug Testing (“CDT”). See blog here.

To recap, in CDT the ND Cal USAO had snagged a vast amount of private information from third parties, gleaned from computer searches that roamed far beyond the data originally sought.

Three district judges quashed later subpoenas based on this computer data, and peppered their quashals with allegations of government manipulation and misrepresentations. The original three-judge Ninth panel reversed the quashals, but the en banc reversed the panel and sustained the district courts. C.J. Kozinski ended the en banc CDT opinion by setting forth procedures with which the government should (must?) comply for future computer searches.

The government – and specifically, S.G. Kagan – has now sought, for the first time in history, a full rehearing en banc by the entire court of the Ninth Circuit.

Issue(s): Did the en banc panel “step[ ] outside of the proper role of an Article III court when it set forth detailed protocols that purport to bind, and that are being understood as binding, magistrate and district judges in future cases[?]” Brief for the United States in Support of Rehearing En Banc by the Full Court, at 2.

Held: “The court is considering whether it should grant panel or full-court rehearing in this matter and will issue an order granting or denying rehearing in due course.” Ord., Chief Judge Kozinski, Dec. 18, 2009.

Of Note: When Blakely was decided, DOJ cried the sky was falling and warned that sentencing would grind to a halt. Defendants, however, continued to be incarcerated with grim efficiency.

When Booker was decided, DOJ cried the sky was falling and concocted emergency measures to “save” the guidelines. Defendants, however, continued to be shuffled away to serve depressingly long terms, with barely a blip on the sentencing stats.

Given its track record with Blakely and Booker, Justice’s latest cry that the sky is falling after CDT merits a healthy skepticism.

The government’s super en banc petition frets that its investigations are off-track because of the CDT procedures. It does not reveal, however, that filter-teams have long been routinely used in white collar cases with little impact on conviction rates. DOJ neglects to disclose how many computer investigations have in fact gone forward using CDT procedures. The brief omits the CDT-like protocol that enlightened ND Cal magistrates have had in place since 2000, with no negative impact on computer searches or prosecutions. Finally, DOJ ignores new technology which can filter and focus computer searches in ways that were impossible even a decade ago, making the CDT procedures both realistic and workable. Let’s hope the Ninth recognizes that CDT is the wrong case for the very first super en banc.

How to Use: How to best use CDT has been the subject of much discussion in the ND Cal FPD and among the Northern District panel. Given the current procedural posture of the case, best to e-mail or call to discuss CDT issues.

For Further Reading: “The government has moved to further stay the mandate ‘through the disposition of [this court’s] consideration whether to grant en banc review and its en banc consideration of the case or, if [this court] denies en banc review, through the expiration of the time for filing a petition for a writ of certiorari, or, if a petition is filed, the disposition of such a petition for a writ of certiorari.’ Quite a mouthful, and wholly unnecessary. I have already stayed the mandate through the time for filing a timely petition for certiorari. What qualifies as timely is between the government and a higher authority.” Ord., Chief Judge Kozinski, Nov. 12, 2009.

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Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at


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