General Order 4.1: Prevention of Conflicts
Circuit Rules and General Orders of the Ninth Circuit — General Orders — Chapter IV: Dispositions
a. Questions Pending Concurrently Before Two or More Panels
Whenever an author of a proposed disposition knows that the disposition may decide a question pending concurrently before one or more other panels of the Court, the author shall circulate copies of the proposed disposition to all members of such other panels. The author shall include a memorandum explaining the purpose of the circulation and setting a 14-day time period within which a response, if any, will be expected.
The panel with the earliest originally scheduled oral argument in a case has priority over the disposition of a common legal question pending before two or more panels. A case in oral or written screening is not eligible to have priority. If two or more oral arguments concerning a common legal question are scheduled on the same day, the panel hearing oral argument in the case with the earliest notice of appeal date has priority. If the panel with priority postpones oral argument in the case, refers the case to mediation, elects to forego priority, or does not decide the question in a precedential opinion, then it will no longer have priority over the common legal question. In such an event, the panel will notify the Court as soon as possible, and the next panel with priority will be determined using the same procedure.
If a dispute or uncertainty arises among panels as to priority, or if, for good cause, a panel wishes that, notwithstanding the rules set forth above, the Chief Judge make a decision as to which panel shall be afforded priority over the disposition of a common legal issue pending before two or more panels, priority will be determined by the Chief Judge within fourteen (14) days of the submission of the matter to the Chief Judge by one or more panels.
Within seven (7) days following the notification to the Court by the Chief Judge of a determination concerning priority, any member of the Court may request that the Chief Judge’s decision be reviewed by the Court, in which case the determination as to priority will be made by a majority of the non-recused active judges in attendance at the next regularly scheduled Court Meeting, in person, or by electronic media. This provision is intended to provide guidance for internal case processing only, and does not confer a right on any third party. (Rev. 9/7/16)
b. Deferring Submission Pending Decision by Another Court
Whenever a panel decides to defer or vacate submission pending decision in another case before another court or administrative agency, the panel shall enter an order identifying the case by name and number and the court in which the decision is pending.