Welcome back to Ninth Circuit Review-Reviewed, your monthly recap of administrative law before arguably “the second most important court in the land.” Let’s get straight to business.

The Ninth Circuit’s Shadow Silly Docket

Of late, there’s been a lot of talk about the Supreme Court’s sinister sounding “shadow docket”—that is, orders and decisions issued by the Court without full briefing and oral argument.  

In practice, most of the Court’s “shadow” orders follow a similar lifecycle:  

• First, an incumbent administration does something controversial, which is challenged in an original action before a federal district court;
• Then, a district court pauses the government’s action (with a preliminary injunction or temporary restraining order) pending judgment on the merits;
• Next, the government typically asks the district court to reconsider or otherwise grant an administrative stay of its injunctive order pending appeal;
• Depending on the context, the government might or mightn’t wait for a response before seeking an appeal (of the preliminary injunction or TRO) and/or an emergency stay from a U.S. Circuit Court of Appeals;
• If the lower courts demur, and the administrative action remains inoperative, then the Solicitor General may apply to the Supreme Court for an emergency stay.

As tabulated by Prof. Stephen Vladeck, there’s been a tremendous uptick of activity on the Supreme Court’s “shadow docket.” He counts at least 21 applications to the Court for emergency stays since Trump took office. By comparison, there were only eight such applications during the previous 16 years. 

Guess which circuit is the league-leader in shadow docket hits? Naturally, it’s number nine.  

Within the Ninth Circuit, various motions panels recently have issued a flurry of orders, so I decided to dig a bit deeper. What I unearthed is alarming. The Ninth Circuit’s “shadow docket” demonstrates absurdly uneven jurisprudence. A more apt moniker would be the “silly docket.”

Silly Docket Example #1: Shifting Stay Analyses

To appreciate the inconsistencies of the court’s shadow silly docket, consider the utter confusion surrounding something as basic as the court’s criteria for judging a stay request. Until very recently, Ninth Circuit had an established methodology for weighing these emergency motions. Specifically, the court asked four questions:  

1. Whether the stay applicant has made a strong showing that he is likely to succeed on the merits;
2. whether the applicant will be irreparably injured absent a stay;
3. whether issuance of the stay will substantially injure the other parties interested in the proceeding; and
4. where the public interest lies.

Furthermore, it was well-settled in the circuit that “likelihood of success on the merits is the most important factor.”

Last December, however, this law of the circuit appeared to change without explanation in John Doe #1 v. Trump, an immigration controversy. In an order denying an emergency stay, a split motions panel ignored the court’s settled criteria for performing a stay analysis. Instead, the panel focused on whether the “status quo” would be disrupted. Judge Daniel Bress objected to this seemingly silent change in the law. (“The Court appears to suggest, without citation, that when it comes to a request for a temporary stay, the merits are not to be considered.”).

Last week, the court again tacked. On March 5^th, a split motions panel in Al Otro Lado v. Wolf (another immigration controversy) lifted its previously issued stay and denied the government’s appeal of the lower court’s preliminary injunction. In the order, a majority on the panel substituted yet another novel framework in place of the court’s traditional stay analysis. Under the split panel’s new “sliding scale” approach, the operative factor is the strength of the government’s “showing that it will suffer harm.” The weaker this showing, the stronger the government must show its likelihood of success on the merits.

Obviously, the court’s criteria for weighing a stay application is crucial. It’s the sine qua non of the court’s judicial methodology at this stage of the proceedings. Up until a few months ago, the court had a settled framework. Since last December, however, the court sub silentio abandoned its traditional stay analysis. In its stead, various motions panels have adopted wildly divergent frameworks. The result is a hot mess of conflicting standards.

Silly Docket Example #2: When Motions Panels Conflict  

Until very recently, it was law of the circuit that published opinions are precedential. To be sure, a motions panel has the discretion whether to publish its decision; however, once published, there was no difference between motions panel opinions and other opinions. See, e.g., Lair v. Bullock, 798 F.3d 736, 747 (9th Cir. 2015).

With this background in mind, consider the court’s topsy-turvy jurisprudence in Innovation Law Lab v. Wolf (another immigration controversy). Last May, a motions panel granted the government’s motion for a stay of a preliminary injunction. That panel employed a traditional stay analysis, which emphasized the government’s likelihood of success on the merits. To this end, the court performed a searching investigation of the statute, its textual context, and its legislative history. The motions panel chose to publish its order.

Subsequently, a new motions panel was drawn to hear the government’s appeal of the district court’s preliminary injunction in Innovation Law Lab. On February 28^th, over Judge Ferdinand Fernandez’s forceful dissent, the new panel announced that “a motions panel’s legal analysis . . . is not binding on later merits panels.” Thus unencumbered by precedent, the split panel proceeded to deny the government’s appeal and lift its stay.

Stepping back, let’s appreciate the cosmic bizarreness at hand in Innovation Law Lab. At one step of the controversy, a motions panel performed an extensive inquiry into the statute and determined what the law *likely* means. This first motions panel published its decision in the Federal Reporter. Then, a different motions panel of the same court performed an independent and equally searching inquiry of the same statute in the same controversy. This second panel disagreed with the first panel, came to the opposite legal conclusion, and published its order in the Federal Reporter. So, we’ve got two published legal analyses, with opposite conclusions, and we’ve not even reached a merits panel yet!

Again, this is a hot mess.

Silly Docket: What’s Going On?

Alas, there are other conspicuous anomalies with the court’s shadow silly docket.

Consider, for example, a divided en banc panel’s decision last month in in California v. Azar (a family planning controversy). The en banc panel had reheard a motions panels’ June stay of three nationwide injunctions enjoining an action by the Department of Health & Human Services. In a February 24^th order, the split en banc panel sua sponte decided the case on the merits. Somehow, an appeal of an emergency stay became a final decision on the merits!

Together, these examples indicate that the court is flying by the seat of its pants. Why would this be so? I suspect that the court never gave much thought to its motions panels’ jurisprudence until its hand was forced by a wave of injunctive action by district courts within the court’s jurisdiction. The upshot is that the Ninth Circuit is being confronted with these questions on a scale as never before. Faced with this legal terra incognito, the court is lurching about.

Of course, there’s a natural confusion attendant to any “new” problem, and I think that’s what is happening here to an extent. But I also suspect that the court’s size has compounded the confusion. At different steps of the pre-merits process, there’s a new trio of judges (out of almost 50 active and senior judges), with a new perspective on the law. This is a recipe for doctrinal conflict.

What can be done about it? First and foremost, the court must nail down a single framework for reviewing applications for a stay. Ideally, the court would answer this and other outstanding questions in an en banc proceeding.

To lessen the confusion, the court might also alter its rules to allow for the composition of motions panels to remain unchanged until the merits are reached.

Something must be done. As things now stand, the disarray of the court’s shadow docket is an *emergency* unto itself.

On Collegiality (or the lack thereof)

Over the years, Aaron has repeatedly noted the “collegial” nature of the D.C. Circuit.

I’ve often wondered about how well the Ninth Circuit bench gets along. Because it’s so big—it has about three times as many active judges as the average circuit court—judges on the Ninth Circuit are co-panelists at a much lower rate than their peers in other regions. It stands to reason that the infrequency of interpersonal contact on the Ninth’s bench leads to less collegiality.

Whatever its cause, last month marked a low point for comity on the court. In a lengthy article for the LA Times, several anonymous judges imparted negative thoughts about Trump’s nominees in general, while Judges Ryan D. Nelson and Daniel Collins were singled out for individual criticism. As the kids text these days, SMH.

I can express my disappointment no better than did Josh Blackman at Volokh Conspiracy.

William Yeatman is a research fellow at the Cato Institute in Washington, D.C.