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No. 17-10448
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff/Appellee,
v.
JOSEPH M. ARPAIO,
Defendant/Appellant.
Appeal from the United States District Court
for the District of Arizona, No. 2:16-CR-01012
The Honorable Susan R. Bolton
BRIEF OF AMICI CURIAE THE PROTECT DEMOCRACY PROJECT,
INC., FREE SPEECH FOR PEOPLE, COALITION TO PRESERVE,
PROTECT AND DEFEND, AND RODERICK AND SOLANGE
MACARTHUR JUSTICE CENTER
IN OPPOSITION TO REHEARING EN BANC

Jean-Jacques Cabou
Shane R. Swindle
Katherine E. May
PERKINS COIE LLP
2901 N. Central Ave., Ste. 2000
Phoenix, AZ 85012-2788
Telephone: (602) 351-8000

Ian Bassin
Justin Florence
THE PROTECT DEMOCRACY
PROJECT, INC.
2020 Pennsylvania Ave. NW, #163
Washington, DC 20006
Telephone: (202) 831-2837

Attorneys for Amicus Curiae The Protect Democracy Project, Inc.
(Additional amici and counsel listed on inside cover)
June 22, 2018

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Noah Messing
MESSING & SPECTOR LLP
333 E. 43rd Street, Suite 1
New York, NY 10017
Phil Spector
MESSING & SPECTOR LLP
1200 Steuart Street, #2112
Baltimore, MD 21230
Attorneys for Amicus Curiae The Protect
Democracy Project, Inc.

Ronald A. Fein
Shanna M. Cleveland
FREE SPEECH FOR PEOPLE
1340 Centre St. #209
Newton, MA 02459
Telephone: (617) 564-0672
Dennis Aftergut
Louise H. Renne
COALITION TO PRESERVE,
PROTECT, AND DEFEND
350 Sansome Street, Suite 00
San Francisco, CA 94104
Attorneys for Amici Curiae
Free Speech for People and
The Coalition to Preserve, Protect
and Defend

Locke E. Bowman
David M. Shapiro
RODERICK AND SOLANGE
MACARTHUR JUSTICE CENTER
Northwestern Pritzker School of Law
375 East Chicago Avenue
Chicago, IL 60611
Telephone: (312) 503-0711
Attorneys for Amicus Curiae
the Roderick and Solange
MacArthur Justice Center

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CORPORATE DISCLOSURE STATEMENT
The Protect Democracy Project, Inc. (“Protect Democracy”), Free Speech for
People (“FSFP”), Coalition to Preserve, Protect and Defend (the “Coalition”), and
the Roderick and Solange MacArthur Justice Center (“RSMJC”) (collectively,
“Amici”) state that they are nonprofit organizations with no parent corporations and
in which no person or entity owns stock.

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TABLE OF CONTENTS
Page
INTRODUCTION ....................................................................................................1
FACTUAL AND PROCEDURAL BACKGROUND .............................................3
ARGUMENT ............................................................................................................5
I.

En Banc Review Is Rare and Not Warranted Under the
Standards of Fed. R. App. P. 35 ...........................................................5
A.

En Banc Consideration Is Not Necessary to Secure or
Maintain Uniformity ..................................................................6

B.

The Panel’s Decision Is Not of Exceptional Importance........... 9

CONCLUSION .......................................................................................................10

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TABLE OF AUTHORITIES
Page(s)
CASES

Ashcraft v. Conoco, Inc.,
218 F.3d 288 (4th Cir. 2000) ................................................................................ 9
Church of Scientology of Cal. v. Foley,
640 F.2d 1335 (D.C. Cir. 1981) (Robinson, J., dissenting) ........................5, 9, 10
Ex parte Grossman,
267 U.S. 87 (1925) ............................................................................................3, 8
Hoptowit v. Ray,
682 F.2d 1237 (9th Cir. 1982), overruled on other grounds by
Bown v. Reinke, No. 16-35573, 2018 WL 2011036, 722 Fed.
App’x 681 (9th Cir. May 8, 2018) ........................................................................ 7
In re Bayshore Ford Trucks Sales, Inc.,
471 F.3d 1233 (11th Cir. 2006) ............................................................................7
In re Special Proceedings,
373 F.3d 37 (1st Cir. 2004) ...................................................................................9
In re Troutt,
460 F.3d 887 (7th Cir. 2006) ................................................................................ 8
Makaeff v. Trump Univ., LLC,
736 F.3d 1180 (9th Cir. 2013) .............................................................................. 2
Matter of Providence Journal Co.,
820 F.2d 1342 (1st Cir. 1986) ............................................................................... 9
Mitts v. Bagley,
626 F.3d 366 (6th Cir. 2010) ................................................................................ 1
Planned Parenthood Ass’n of Utah v. Herbert,
839 F.3d 1301 (10th Cir. 2016) ........................................................................2, 6

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Thompson v. Calderon,
120 F.3d 1045 (9th Cir. 1997) rev’d on other grounds, 523 U.S.
538 (1998) .............................................................................................................6
U.S. v. American-Foreign S.S. Corp.,
363 U.S. 685 (1960) ..............................................................................................1
U.S. v. Arpaio,
887 F.3d 979 (9th Cir. 2018) ............................................................................1, 8
U.S. v. Cutler,
58 F.3d 825 (2d Cir. 1995) ...................................................................................9
U.S. v. Hooker Chems. & Plastics Corp.,
749 F.2d 968 (2d Cir. 1984) .................................................................................7
U.S. v. State of Mich.,
116 F.R.D. 655 (W.D. Mich. 1987) ...................................................................... 7
Young v. U.S. ex rel. Vuitton et Fils S.A.,
481 U.S. 787 (1987) ..........................................................................................7, 8
OTHER AUTHORITIES

FED. R. APP. P. 35...................................................................................................2, 5
FED. R. CRIM. P. 1 ..................................................................................................6, 8
FED. R. CRIM. P. 42 ...........................................................................................passim
Brian P. Goldman, Should the Supreme Court Stop Inviting Amici
Curiae to Defend Abandoned Lower Court Decisions?, 63 STAN.
L. REV. 907, 909-10 (2011) ..................................................................................6

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Pursuant to this Court’s June 1, 2018 Order (Doc. 26), Amici submit this Brief
in Opposition to Rehearing En Banc.1 For the reasons below, this Court should
decline to reconsider the panel’s procedural order en banc.
INTRODUCTION
There are no grounds for rehearing this matter en banc. In a well-reasoned,
fact-bound opinion, a majority of the panel concluded that it had inherent authority,
as well as authority under FED. R. CRIM. P. 42(a)(2), to appoint a private attorney to
ensure that this Court will have the benefit of full briefing and argument on the merits
of this case. The panel also found that a private attorney was necessary and
appropriate in this case, given the unusual circumstances presented by the
Government’s refusal to defend its contempt conviction on appeal. U.S. v. Arpaio,
887 F.3d 979, 981-82 (9th Cir. 2018).
Neither the Government nor Arpaio petitioned for rehearing of the panel’s
order, nor did they file a request for rehearing en banc―and for good reason. It has
long been established that “[e]n banc courts are the exception, not the rule,” U.S. v.
American-Foreign S.S. Corp., 363 U.S. 685, 689 (1960), and that en banc rehearing
“should be made only in the most compelling” or “rarest of circumstances,” Mitts v.

1

Pursuant to Federal Rule of Appellate Procedure 29(a)(4)(e), amici state that
no party’s counsel has authored this brief in whole or in part. No party, no party’s
counsel, and no one else other than amici curiae, their members, and their counsel
have contributed money intended to fund preparing or submitting this brief.
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Bagley, 626 F.3d 366, 370 (6th Cir. 2010) (Sutton, J., concurring in the denial of
rehearing en banc (citations omitted)); see also, e.g., Planned Parenthood Ass’n of
Utah v. Herbert, 839 F.3d 1301, 1302 (10th Cir. 2016) (Briscoe, J., concurring in
the denial of rehearing en banc) (circuit courts “should be extraordinarily cautious
in exercising [their] inherent authority to sua sponte rehear a case when the parties
themselves have chosen not to seek en banc review”). Indeed, FEDERAL RULE OF
APPELLATE PROCEDURE 35 cautions that en banc review “is not favored” and is
reserved for “a question of exceptional importance” or “to secure or maintain
uniformity of the court’s decisions.” FED. R. APP. P. 35(a).
The panel’s decision does not meet either standard, as it neither conflicts with
Supreme Court or Ninth Circuit precedent, nor presents a precedent-setting error of
exceptional public importance. While there is no denying the importance of the
merits of this case, the panel’s decision appointing a private attorney merely resolves
the question of whether anyone will oppose Arpaio’s arguments on appeal, while
adhering to precedent from both the Supreme Court and this Court interpreting RULE
42 and the Court’s inherent authority.
Because the panel’s decision fails to meet the high standard for en banc review
that FEDERAL RULE

OF

APPELLATE PROCEDURE 35 demands, the Court should

decline to consider this matter en banc. E.g., Makaeff v. Trump Univ., LLC, 736
F.3d 1180 (9th Cir. 2013) (call to rehear panel order en banc failed to win a majority
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vote, where order created no inter-circuit split and did not present an issue of
exceptional importance).
FACTUAL AND PROCEDURAL BACKGROUND
On July 31, 2017, Arpaio was found guilty of criminal contempt for willfully
violating a federal judge’s order prohibiting him from detaining persons in violation
of their constitutional rights. On August 25, 2017, President Trump declared that
Arpaio was “convicted for doing his job” and issued the Pardon. Arpaio accepted
the Pardon and subsequently moved for two forms of relief based on the Pardon:
(1) dismissal of the case with prejudice; and (2) vacatur of the conviction and all
other orders in the case.
The Department of Justice refused to oppose the extraordinary relief Arpaio
sought. Instead, the Department of Justice agreed with Arpaio that vacatur and
dismissal was proper. Multiple amici, including amici here, filed briefs in the district
court arguing that the Pardon was unconstitutional, and that appointment of a Rule
42 attorney was necessary in light of the Government’s apparent refusal to continue
the prosecution.
On October 4, 2017, the district court denied amici’s request for a Rule 42
attorney and, believing itself bound by Ex parte Grossman, 267 U.S. 87 (1925),
found the Pardon valid and that the Pardon required that the action be dismissed with
prejudice. Concerned that no party with standing to do so would appeal from the

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district court’s order, amici filed a supplemental brief requesting that the court
appoint a RULE 42 attorney that could appeal the order of dismissal.
While amici’s RULE 42 request was pending, on October 19, 2017, the district
court issued its order denying vacatur, from which this appeal was taken. Amici
subsequently filed a brief with this Court requesting appointment of a RULE 42
attorney. By order dated November 22, 2017, this Court directed the Government
to “file a statement indicating whether it intends to enter an appearance and file an
answering brief in this appeal.” (Doc. 9, at 1-2). The Government responded that it
“does not intend to defend the district court’s order from October 19, 2017 . . . ;
instead, the government intends to argue, as it did in the district court, that the motion
to vacate should have been granted.” (Doc. 12, at 2). The Government took “no
position on whether the Court should appoint counsel [under Rule 42] to make any
additional arguments.”

(Id.)

Nor did Arpaio address amici’s request for

appointment of a RULE 42 attorney.
On April 17, 2018, the panel issued its order declaring its intention to appoint
counsel to defend the district court’s denial of Arpaio’s request for vacatur. (Doc.
25). Neither Arpaio nor the Government petitioned for rehearing of that order, nor
did they file a request for rehearing en banc. On June 1, 2018, the En Banc
Coordinator issued an order notifying the parties that a judge had made a sua sponte
request for a vote on whether to rehear the panel’s order en banc, and requesting that
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the parties file briefs setting forth their positions with respect to whether the order
should be reheard en banc. (Doc. 26). The order also stated that amici were
permitted, but not required, to file a brief stating their positions on whether the order
should be reheard en banc. (Id.)
ARGUMENT
I.

En Banc Review Is Rare and Not Warranted Under the Standards of
FED. R. APP. P. 35.
“An en banc hearing or rehearing is not favored and ordinarily will not be

ordered unless . . . en banc consideration is necessary to secure or maintain
uniformity of the court’s decisions, or the proceeding involves a question of
exceptional importance.” FED. R. APP. P. 35(a). Indeed, en banc review in the Ninth
Circuit is markedly more limited than review allowed under RULE 35 because the
Ninth Circuit Rules require that the panel decision “directly conflicts with an
existing opinion by another court of appeals and substantially affects a rule of
national application in which there is an overriding need for national uniformity.”
9TH CIR. R. 35-1 (emphasis added). In other words, this Court will only exercise its
discretion to rehear a case en banc if the decision both creates an intra- or intercircuit split and raises a pressing national issue.
The fact that a judge disagrees, or even that a few judges disagree, with the
result reached by the panel is insufficient to justify en banc review. Church of
Scientology of Cal. v. Foley, 640 F.2d 1335, 1341 (D.C. Cir. 1981) (Robinson, J.,
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dissenting). The function of en banc hearings “is not to review alleged errors for the
benefit of losing litigants,” but rather to “bring consistency within [the] law.”
Thompson v. Calderon, 120 F.3d 1045, 1070 (9th Cir. 1997) (Kozinski, J.,
dissenting), rev’d on other grounds, 523 U.S. 538 (1998). And especially where, as
here, no party has even sought en banc review, this Court should not strain to
exercise its inherent authority to do so sua sponte. Herbert, 839 F.3d at 1302.
A.

En Banc Consideration Is Not Necessary to Secure or Maintain
Uniformity

The panel’s decision is entirely consistent with―not “contrary” to―existing
precedent and therefore does not justify the extraordinary remedy of en banc review.
There was nothing new in the panel’s reaffirmance of the long-standing rule that this
Court has inherent authority to appoint a private attorney to support an undefended
judgment below, or to take a specific position as amicus. Nor was there anything
novel in the panel’s straightforward application of RULE 42, which by its terms
governs criminal proceedings not only in the district court, but also “in the United
States courts of appeals and the Supreme Court of the United States.” FED. R. CRIM.
P. 1. Notably, the dissenting judge cited no case (and amici are aware of none) that
conflicts with the majority’s opinion.
First, the panel’s conclusion that it has inherent authority to appoint a private
attorney is entirely consistent with the relevant precedents of the Supreme Court and
this Court. See Brian P. Goldman, Should the Supreme Court Stop Inviting Amici
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Curiae to Defend Abandoned Lower Court Decisions?, 63 STAN. L. REV. 907, 90910 (2011) (noting that the Supreme Court has appointed counsel to support an
undefended judgment below, or to take a specific position as amicus forty-three
times since 1954); Hoptowit v. Ray, 682 F.2d 1237, 1260 (9th Cir. 1982) (affirming
district court’s order appointing amicus to “investigate fully the facts alleged in the
complaint, [and] participate in the case with the full rights of parties”), overruled on
other grounds by Bown v. Reinke, No. 16-35573, 2018 WL 2011036, 722 Fed. App’x
681 (9th Cir. May 8, 2018); see also Young v. U.S. ex rel. Vuitton et Fils S.A., 481
U.S. 787, 793 (1987) (“[I]t is long settled that courts possess inherent authority to
initiate contempt proceedings for disobedience to their orders, authority which
necessarily encompasses the ability to appoint a private attorney to prosecute the
contempt.”). The panel’s conclusion is also consistent with that of other courts that
have addressed the issue. See, e.g., U.S. v. Hooker Chems. & Plastics Corp., 749
F.2d 968, 992 (2d Cir. 1984) (affirming district court’s order granting proposed
intervenors “elevated amicus status” that would have allowed them to call their own
witnesses and cross-examine witnesses); In re Bayshore Ford Trucks Sales, Inc., 471
F.3d 1233, 1249 n.34 (11th Cir. 2006) (recognizing federal courts’ “inherent
authority to appoint ‘friends of the court’ to assist in their proceedings” (citation
omitted)); U.S. v. State of Mich., 116 F.R.D. 655, 657 (W.D. Mich. 1987) (granting
civil liberties group amicus litigating status under its inherent authority).
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Likewise, the panel’s opinion with respect to RULE 42 is entirely consistent
with existing precedent and the mandatory text of the rule. See Arpaio, 887 F.3d at
981-82. RULE 42 is directed to “the court,” defined as “a federal judge performing
functions authorized by law.” FED. R. CRIM. P. 1(b)(2). And RULE 42 requires that
in a prosecution for criminal contempt, if the Government declines to prosecute the
matter, “the court must appoint another attorney to prosecute the contempt.” FED.
R. CRIM. P. 42(a)(2) (emphasis added); see In re Troutt, 460 F.3d 887, 894 (7th Cir.
2006) (“The requirement in Rule 42(a)(2) to appoint a prosecutor is spelled out in
mandatory language.”).
To be sure, as the majority recognized, “[i]n RULE 42(a)(2)’s most common
application, the district court appoints a special prosecutor to investigate and try a
criminal contempt when the government declines to perform that function.” Arpaio,
887 F.3d at 981 (citations omitted). But the majority also properly concluded that
“the operation of RULE 42(a)(2) is not confined to investigations and trials in the
district court,” and that “[a] private attorney appointed under the rule has the
authority to act as a special prosecutor not only in the district court but also in the
court of appeals.” Id.; see, e.g., Ex parte Grossman, 267 U.S. at 108 (where special
counsel employed by the Department of Justice appeared to uphold the legality of
the detention, while the Attorney General appeared as amicus curiae to defend the
validity and effectiveness of the pardon); Young, 481 U.S. at 808-09 (invalidating
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the appointment of special prosecutor because he was an interested party, not
because he prosecuted an appeal); In re Special Proceedings, 373 F.3d 37, 39-40
(1st Cir. 2004) (accepting without comment private attorney’s briefing and argument
on behalf of United States in appeal by a contemnor); Ashcraft v. Conoco, Inc., 218
F.3d 288, 294 (4th Cir. 2000) (same); U.S. v. Cutler, 58 F.3d 825, 831-32 (2d Cir.
1995) (same); Matter of Providence Journal Co., 820 F.2d 1342, 1345 (1st Cir.
1986) (same).
The fact that no other appellate court decision has appointed a RULE 42
attorney in the rare circumstances presented here should come as no surprise. And
the rarity of these circumstances is no reason to reconsider the panel’s decision to
follow the mandatory language of RULE 42.
B.

The Panel’s Decision Is Not of Exceptional Importance

The panel’s decision appointing a private attorney also does not meet the strict
requirements to meet the “exceptional importance” prong of en banc review. “There
is now general agreement among the circuits that the ‘truly extraordinary’ cases
meriting en banc treatment are those involving ‘issue(s) likely to affect many other
cases’ in other words, those of real significance to the legal process as well as to the
litigants.” Foley, 640 F.2d at 1341 (Robinson, J., dissenting) (footnotes and citations
omitted). The panel order does not meet that standard. The panel’s decision to
appoint a special prosecutor was based on the unusual circumstances presented by

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the Government’s refusal to continue to prosecute the contempt or to defend its
contempt conviction on appeal. The appointment of a private attorney may have
some impact on the parties in this case. But, the fact that another lawyer will now
appear to argue a position the United States itself long espoused will have no
appreciable effect on any other case or the legal process.
Nor does the fact that Judge Tallman dissented justify en banc review. See,
e.g., Foley, 640 F.2d at 1341 (Robinson, J., dissenting) (en banc review is not
justified “merely because (a judge) disagrees with the result reached by the panel”).
At best, Judge Tallman’s dissent disagrees with the majority’s application of the law
to the record. Any purported error in the application of the law to the record would
not affect a rule of national application as required to justify en banc review. See
9TH CIR. R. 35-1.
Tellingly, the Government took no position on whether the Court should
appoint a RULE 42 attorney in its statement to the Court (Doc. 12). And, neither the
Government nor Arpaio sought en banc review of the order appointing a private
attorney. If there were some legal or prudential barrier to appointment of a private
attorney in this case, the parties would have raised it in a filing. Their failure to do
so confirms that en banc review is inappropriate here.
CONCLUSION
For the reasons set forth above, this Court should decline to reconsider the

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panel order en banc.

Respectfully submitted on June 22, 2018.
PERKINS COIE LLP
By: s/ Jean-Jacques Cabou
Jean-Jacques Cabou
Shane R. Swindle
Katherine E. May
2901 North Central Avenue, Suite 2000
Phoenix, Arizona 85012-2788
Ian Bassin
Justin Florence
THE PROTECT DEMOCRACY PROJECT,
INC.
2020 Pennsylvania Avenue NW, #163
Washington, DC 20006
Noah Messing
MESSING & SPECTOR LLP
333 E. 43rd Street, Suite 1
New York, NY 10017
Phil Spector
MESSING & SPECTOR LLP
1200 Steuart Street, #2112
Baltimore, MD 21230
Attorneys for Amicus Curiae The Protect
Democracy Project, Inc.
RODERICK AND SOLANGE
MACARTHUR JUSTICE CENTER
By: s/ David M. Shapiro (with permission)
Locke E. Bowman
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David M. Shapiro
Northwestern Pritzker School of Law
375 East Chicago Avenue
Chicago, Illinois 60611
locke.bowman@law.northwestern.edu
david.shapiro@law.northwestern.edu
Attorneys for Amicus Curiae Roderick and
Solange MacArthur Justice Center
FREE SPEECH FOR PEOPLE
By: s/ Shanna M. Cleveland (with permission)
Ronald A. Fein
Shanna M. Cleveland
1340 Centre St. #209
Newton, Massachusetts 02459
rfein@freespeechforpeople.org
scleveland@freespeechforpeople.org
COALITION TO PRESERVE, PROTECT,
AND DEFEND
By: s/ Dennis Aftergut (with permission)
Dennis Aftergut
Louise H. Renne
350 Sansome Street, Suite 00
San Francisco, California 94104
dal.cppd@gmail.com
lrenne@publiclawgroup.com
Attorneys for Amici Curiae Free Speech for
People and Coalition to Preserve, Protect and
Defend

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CERTIFICATE OF SERVICE
I, Jean-Jacques Cabou, attorney for Amicus Curiae The Protect Democracy
Project, hereby certify that on June 22, 2018, an electronic copy of this document
was served by notice of electronic filing via this Court’s ECF system upon opposing
counsel.

s/ Jean-Jacques Cabou

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CERTIFICATE OF COMPLIANCE
1.

This brief complies with the type-volume limitations provided in the

Court’s Order on June 1, 2018 because it contains 2,524 words, excluding the parts
of the brief exempted by Fed. R. App. P. 32(f).
2.

This brief complies with the typeface requirements of Fed. R App. P.

32(a)(5) and the type of style requirements of Fed. R. App. P. 32(a)(6) because it has
been prepared in a proportionally spaced typeface using Microsoft Word 2016 in
Times New Roman 14-point font in text.
3.

This brief complies with the privacy redaction requirement of Fed. R.

App. 25(a)(5) because it contains no personal data identifiers.
4.

The digital version electronically filed with the Court on this day is an

exact copy of the written document to be sent to the Clerk.
Dated: June 22, 2018
s/ Jean-Jacques Cabou

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