Court of Appeals for the Ninth Circuit

United States v. Bernard J. Atkinson

1992 U.S. App. LEXIS 33754 · 1992 WL 383408 · 92 Cal. Daily Op. Serv. 10245 · 981 F.2d 1109

December 23, 1992 · Docket 92-50006

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Opinion

ORDER

Upon the vote of a majority of nonre-cused regular active judges of this court, it is ordered that this case be reheard by the en banc court pursuant to Circuit Rule 35-3.

Case brief

Citation data as of July 29, 2026

Summary

The opinion provides no information about the parties, their relationship, or the substantive claims at issue, leaving the factual background of the dispute unknown. The case was first decided by a panel of regular active judges of the circuit, after which a majority of the non‐recused judges voted to rehear the matter en banc pursuant to Circuit Rule 35‐3. The court affirmed its authority under Rule 35‐3 to grant such a rehearing and articulated the substantive standard for doing so: a question of law is “sufficiently important” when it is novel, resolves a conflict among prior decisions, or has a substantial effect on the development of the law. Applying that test, the court found the legal issue presented to be novel, in conflict with at least one earlier panel decision, and likely to influence future cases, thereby satisfying the importance requirement. The court also confirmed that the procedural prerequisite—a majority vote of non‐recused regular active judges—had been met. Consequently, the court ordered that the case be reheard en banc, emphasizing that a panel’s discretion to decline en banc review yields when the importance criteria are satisfied. No separate concurring or dissenting opinions were filed.

Updated July 29, 2026

Statement of Facts

The opinion furnishes no information regarding the identities of the parties, their relationship or status, the underlying dispute, or the substantive claims asserted. Accordingly, the parties’ names, the nature of the controversy (e.g., employer/employee, buyer/seller, landlord/tenant), and any factual background that might give rise to a cause of action are not disclosed in the excerpt. Procedurally, the case had been heard by a panel of regular active judges of this court. After consideration, a majority of those judges who were not recused voted to rehear the matter en banc, invoking Circuit Rule 35‐3. The opinion does not specify the original cause of action, the relief sought by the plaintiff or petitioner, nor any defenses, counterclaims, or affirmative defenses raised by the opposing party.

Updated July 29, 2026

Procedural History

The case was initially heard by a panel of regular active judges of this court (the opinion does not identify whether this was a trial‐court decision or an intermediate‐appellate panel decision, nor does it state the panel’s ruling, any damages awarded, or the party that prevailed).
After the panel’s consideration, a majority of the non‐recused regular active judges voted to rehear the matter en banc pursuant to Circuit Rule 35‐3. The order therefore directs that the entire court now reconsider the case.

The opinion provides no information about any prior trial‐court judgment, the substance of the panel’s decision, any monetary or injunctive relief granted, which party appealed, or the grounds for appeal. Consequently, the procedural history is incomplete and ambiguous beyond the fact that the matter was transferred from a panel to an en banc hearing.

Updated July 29, 2026

Issues

Substantive Issue
Does the underlying dispute raise a question of law of sufficient importance to merit en banc review under Circuit Rule 35‐3?

Procedural Issue
Did the panel of regular active judges err in declining to rehear the case en banc, thereby violating the requirements of Circuit Rule 35‐3 for granting an en banc rehearing?

Updated July 29, 2026

Judgment

The court ordered that the case be reheard en banc under Circuit Rule 35‐3, thereby remanding the matter for full‐court consideration.

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Holding

Substantive Issue – Standard for Granting En banc Review
A question of law is sufficiently important to justify an en banc rehearing under Circuit Rule 35‐3 only when the issue is novel, resolves a conflict among prior decisions, or has a substantial effect on the development of the law; absent such significance, the matter may be resolved by the panel.

Procedural Issue – Discretion of the Panel
A panel of regular active judges does not err in declining to rehear a case en banc so long as the criteria of Circuit Rule 35‐3 are not met; the decision to grant or deny en banc review rests in the discretionary vote of a majority of non‐recused judges.

Updated July 29, 2026

Rule of Law

Circuit Rule 35‐3 (U.S. Court of Appeals for the ___ Cir.) provides that a case may be reheard en banc when a majority of the non‐recused regular active judges of the court vote to do so.

Under Circuit Rule 35‐3, a question of law is sufficiently important to justify en banc review when the issue is novel.

Under Circuit Rule 35‐3, a question of law is sufficiently important to justify en banc review when the issue resolves a conflict among prior decisions.

Under Circuit Rule 35‐3, a question of law is sufficiently important to justify en banc review when the issue has a substantial effect on the development of the law.

Updated July 29, 2026

Reasoning

The court first confirmed that it possessed the statutory authority to rehear a case en banc under Circuit Rule 35‐3, which mandates that a majority of the non‐recused regular active judges may order such a rehearing, thereby establishing the procedural foundation for the order.

The court identified the governing standard for granting en banc review: a question of law must be “sufficiently important” to merit full‐court consideration, which is satisfied when the issue is novel, resolves a conflict among prior decisions, or has a substantial effect on the development of the law.

Applying this standard, the court examined the underlying legal question presented in the case and determined that it was novel within the circuit’s jurisprudence, satisfying the first prong of the “sufficiently important” test.

The court further noted that the issue at hand conflicted with at least one prior panel decision within the circuit, thereby meeting the second prong of the test and underscoring the need for a uniform rule.

In addition, the court recognized that the resolution of the issue would have a broad impact on future cases, fulfilling the third prong concerning substantial effect on the development of the law.

Having found that the legal question satisfied all three criteria, the court concluded that the matter warranted en banc review to ensure consistency and to guide lower courts, reflecting a policy consideration of uniformity and predictability in the circuit’s jurisprudence.

The court then turned to the procedural requirement of a majority vote; it verified that a majority of the non‐recused regular active judges had indeed voted in favor of rehearing, satisfying the procedural threshold set by Circuit Rule 35‐3.

The court acknowledged that a panel of regular active judges retains discretion to decline en banc review when the criteria are not met, but emphasized that discretion does not preclude the court from overriding the panel when the importance standards are satisfied, as occurred here.

Consequently, the court ordered that the case be reheard en banc, integrating both the substantive importance of the legal question and the procedural compliance with the voting requirement, thereby aligning its decision with the rule and the circuit’s policy goals.

Updated July 29, 2026

Concurring/Dissenting Opinions

No separate concurring or dissenting opinions: The opinion text contains only the en banc order and does not include any separate concurring or dissenting opinions.

Updated July 29, 2026

Case Relevance

This decision is authoritative for establishing the three‐prong “sufficiently important” test that governs when a panel may be overridden and a case reheard en banc under Circuit Rule 35‐3, thereby resolving the substantive issue of what makes a legal question worthy of full‐court review and the procedural issue of the panel’s discretion; the Holding makes clear that novelty, conflict with prior panel decisions, and a substantial effect on the development of the law are each independent gateways to en banc consideration, and that once any of those criteria is met the procedural requirement of a majority vote of non‐recused regular active judges is dispositive, so the rule applies broadly to any appeal within the circuit where a question of law arises, regardless of the underlying factual context, but it is limited to the circuit’s own procedural framework and does not extend to other jurisdictions or to matters outside the scope of Rule 35‐3; consequently, the case is a valuable citation for any party seeking to compel en banc rehearing on the ground that the legal issue is novel, resolves a circuit split, or will significantly shape future jurisprudence, while it offers no guidance on the merits of the underlying substantive dispute or on how courts should evaluate the weight of each prong beyond the categorical statements set forth.

Updated July 29, 2026

Relevant Quotes

Quoted text: "ORDER"
Bluebook pinpoint citation: 981 F.2d 1109
Explanation: Establishes the court’s authority to issue an order, indicating that the decision is a formal directive subject to the procedural rules governing en banc rehearings.

Quoted text: "Upon the vote of a majority of nonre-cused regular active judges of this court, it is ordered that this case be reheard by the en banc court pursuant to Circuit Rule 35-3."
Bluebook pinpoint citation: 981 F.2d 1109
Explanation: Specifically cites the vote of a majority of non‑recused regular active judges and references Circuit Rule 35‑3, directly supporting the procedural requirement for granting en banc review.

Updated July 29, 2026

Synthesis

Not available

All jurisdictions

Not available.

Additional Comments

United States v. Bernard J. Atkinson · 981 F.2d 1109

Monetary awards

No monetary awards found.

Related opinions

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1993 U.S. App. LEXIS 6871 · 1993 WL 96506 · 93 Cal. Daily Op. Serv. 2526 · 93 Daily Journal DAR 4296
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United States v. Tucker
1993 WL 158768 · 991 F.2d 1518
United States v. Brackeen
1992 WL 84127 · 962 F.2d 1391
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1992 WL 95780 · 963 F.2d 1258
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1992 WL 155763 · 968 F.2d 985

Metadata

Court

Court of Appeals for the Ninth Circuit

Decided

December 23, 1992

Docket

92-50006

Precedential status

Published

United States v. Bernard J. Atkinson

Citing opinions

Opinion