Ninth Circuit Balks in BALCO Case, Denying Super En Banc in United States v. Comprehensive Drug Testing But Amending Opinion To Remove Challenged Section

The new opinion is here, and it comes almost a year after the DOJ petitioned for super-en-banc rehearing.

On a very quick read, it seems that the weird mandatory rules part of Judge Kozinski’s initial en banc majority opinion in CDT is now just part of a Kozinski concurrence to what has been relabeled a per curiam majority opinion. Further, Kozinski’s concurrence now explicitly states that those rules are just “guidance” to magistrate judges that “offers the government a safe harbor” that “significantly increases the likelihood that the searches and seizures of electronic storage that they authorize will be deemed reasonable and lawful” rather than as some sort of mandatory scheme. Judge Callahan notes:

The concurrence is not joined by a majority of the en banc panel and accordingly the suggested guidelines are not Ninth Circuit law.

I’ll have to give this a more careful read to figure out exactly what parts of the original CDT en banc opinion may still be in the final en banc version, but clearly this is a major change: The truly dramatic and revolutionary parts of the original en banc CDT opinion are no longer Ninth Circuit law.

The original set of judges who joined the en banc majority opinion in full was Kozinski joined by Kleinfeld, Graber, Wardlaw, W. Fletcher, Paez, Berzon, and M. Smith. The same judges joined the new shortened majority opinion, and Judge Kozinski’s concurrence was joined by Kleinfeld, W. Fletcher, Paez, and M. Smith. Thus, Judges Graber, Wardlaw, and Berzon were the judges who originally joined the en banc majority opinion but did not join even the softened guidance section after DOJ petitioned for super-en-banc.