# John v. United States

> Court of Appeals for the Ninth Circuit · May 7, 2001 · 247 F.3d 1032

URL: https://www.frixlaw.com/law-library/cases/6996411

## Case

- **Full name:** Katie JOHN Doris Charles Mentasta Village Council Alaska Federation of Natives v. UNITED STATES of America Gale A. Norton, in her official capacity as Secretary of Interior Ann M. Veneman, in her official capacity as Secretary of Agriculture and Daniel Demientieff, Niles Cesar, Fran Cherry, Robert Barbee, Dave Allen, and Rick Cables, in their capacities as members of the Federal Subsistence Board, and State of Alaska and Frank Rue, in his capacity as Commissioner of the Alaska Department of Fish and Game
- **Court:** Court of Appeals for the Ninth Circuit
- **Decided:** May 7, 2001
- **Citations:** 247 F.3d 1032; 2001 WL 474127
- **Precedential status:** Published
- **Opinion:** Concurrence by Reinhardt
- **Judges:** Fletcher, Graber, Hawkins, Kozinski, McKeown, Reinhardt, Rymer, Scannlain, Schroeder, Tallman, Tashima
- **Cited by:** 26 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/6996411

## How later opinions describe it (automated extraction)

- stating that ANILCA must be given “the breadth and scope sufficient to achieve Congress’s express purpose”

## Opinion text

REINHARDT, Circuit Judge,
with whom Judge TASHIMA joins, concurring:
Courts make mistakes too. Given the volume of the judicial workload these days, the Ninth Circuit makes remarkably few— indeed, fewer than some in even the judiciary may think. I believe it important to state, however, that in this case, we made an error in granting an initial en banc hearing, a procedure in which we engage 'infrequently. There was no justification for taking so unusual an action here.
The en banc court took this case directly from the district court, thus bypassing our regular three-judge panel hearing process. We ordinarily do this only when there is a direct conflict between two Ninth Circuit opinions and a panel would not be free to follow either. See Atonio v. Wards Cove Packing Co., 810 F.2d 1477, 1478-79 (9th Cir.1987) (en banc). Here, no such conflict was asserted. Nevertheless, we voted on whether to take this appeal en banc without the benefit of a panel opinion or opinions that would, at a minimum, have provided a clear statement of the issues raised. In this case, a panel opinion would likely have emphasized the points raised by Judge Rymer in her separate opinion: that the present appeal asks this court to resolve the precise question we had al *1034 ready decided in the same case, and as to which we had previously declined to grant en banc review. The issue before the panel then would have been whether the law of the case applied, or whether this case falls into one of the exceptions to that doctrine — and there is nothing presented by the parties that would lead me to believe that an exception would have been applicable. If the panel had determined that law of the case applied, we would then have been able to vote on whether en banc consideration was warranted with the benefit of the panel’s analysis of at least two issues: whether the prior panel’s opinion was clearly erroneous and whether its result caused a manifest injustice. See Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg’l Planning Agency, 216 F.3d 764 , 787 & n. 43 (9th Cir.2000) (discussing exceptions to law of the case doctrine). Although those questions would not have been dispositive, 1 at least we would have known far more about the case than we did when we cast our ill-advised en banc votes.
Our mistake in deciding to accept this ♦ appeal for initial en banc consideration caused eleven judges an inordinate amount of work, including reading 13 briefs totaling 454 pages, ruling before the hearing on various motions, and preparing, reviewing and voting on five separate opinions. All of this produced (understandably) a con-clusory per curiam opinion. Under these circumstances, it would be helpful to acknowledge our error and commit ourselves to examine more carefully any future suggestion by a judge (or anyone else) that we hear a case initially en banc.
Having said all that, I concur in the per curiam opinion. 2
. The law of the case would not be dispositive because it does not bind this court sitting en banc. Jeffries v. Wood, 114 F.3d 1484, 1492 (1997) (en banc).
. Judge Tashima also joins in Judge Tallman’s concurring opinion.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6996411. Public record. Not legal advice.