Sep 30: In the U.S. Court of Appeals, Ninth Circuit, Case No. 09-35200. The Appeals Court issued an order indicating, "Upon the vote of a majority of nonrecused active judges, it is ordered that this case be heard en banc."
According to a supplemental brief filed by the appellant "Recreation Groups," the panel has asked the parties to file supplemental briefs "on the following question: Whether this case should be heard en banc to decide if this court should abandon the 'federal defendant rule,' which prohibits private parties from intervening of right as defendants under Federal Rule of Civil Procedure 24(a) on the merits of claims arising under the National Environmental Policy Act." The Recreation Groups stated that the "question framed by the panel should be heard en banc. The Court should abandon the Federal Defendant Rule.
The Recreation Groups explain that the panel's question necessitates two distinct inquiries. First is the question of whether en banc review is warranted. This question typically arises in the context of a petition for rehearing filed by one on the losing end of the panel's decision. The less common context here, through a panel call prior to issuing a decision, implies the importance of the question presented and the need for en banc determination.
The Groups indicated that, "It is apparent that the circuit courts are split on the applicability of the Federal Defendant Rule." They cite decisions by the 10th, 5th and 1st circuits. The Groups conclude in their brief, "The Court should convene en banc to consider the ongoing validity of its unique Federal Defendant Rule. Should the Court consider the question en banc the Recreation Groups will gladly submit additional briefing or argument, which, in addition to the information already submitted, will demonstrate that the Federal Defendant Rule disserves all nonfederal interests, federal defendants and the judiciary in resolving important federal lands management questions."
The Western Environmental Law Center disagreed and said, "If this Court wishes to review the federal defendant rule, it should do so in a case that presents the inconsistencies and problems with the rule, rather than in a case such as this one, which is riddled with other procedural issues. Moreover, the district court's denial of intervention in this case should be affirmed regardless of the federal defendant rule, thus making review of the rule almost peripheral to the outcome of this case. In sum, this Court should deny en banc review of the federal defendant rule in this case."
Access the Order (click here). Access the supplemental briefs (click here).
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