"A History of Vacatur"

Prof. Ben Johnson of the University of University of Florida Levin College of Law frequently write appellate-related law review articles. His newest is A History of Vacatur in the Yale Law Journal:

Vacatur, a seemingly routine appellate tool, has evolved into one of the Supreme Court's most potent instruments for declaring law. This article offers the first comprehensive historical account of vacatur, tracing its roots from English and early American practice through its twentieth-century transformations to its contemporary uses. Historically, courts used vacatur to manage dockets, correct procedural irregularities, or enforce reversals on the merits. Modern usage has departed markedly from these roots. The Court now frequently employs vacatur to declare binding legal rules without issuing judgments, effectively circumventing traditional limits on judicial power. Taking seriously the Court's own insistence on history as a guide to judicial authority, this article illuminates the growing tension between the Court's practice and its constitutional and statutory limits.

Fixing the trap?

Today's DJ has appellate specialist David J. Ozeran's article Appeal deadline rules are a trap -- it's time to fix them -- Whether it's titling a notice correctly or complying with strict timing rules, California's appeal deadlines demand precision. He concludes and proposes:

There is no justification for this complex set of rules where a much simpler rule would work. Why not simply apply the outside deadline of 180 days after entry of judgment to all appeals? That way there will be no disputes regarding whether a notice of entry of judgment was actually served, or whether it met the standards for triggering the deadline, or whether an extension based on the filing of a post-trial motion applies. There is no reason why the deadline for filing a notice of appeal should be based on, for example, how a notice of entry of judgment is titled or when a notice of order denying a new trial motion was served rather than on the actual date judgment was entered.

...

The rules regarding the appeal deadline create a trap for the unwary. Replacing the current framework with an easily understood, one-size-fits-all deadline will reduce or virtually eliminate attorney error resulting in late-filed appeals. A less complicated, easily understood and easily applied rule should be adopted requiring a notice of appeal to be filed within 180 days after entry of judgment or appealable order.

Concerns that replacing the current framework with a single 180-deadline will result in delay are unwarranted, as appellants usually want to proceed expeditiously rather than delay unnecessarily. However, if a 180-day deadline is considered to be too long, then a shorter deadline can be enacted. However, a single, easily applied deadline based on the date judgment is entered should replace the current labyrinth of rules that determines the deadline for filing a notice of appeal.

"Understanding Japanese Internment"

The California Judges Association presents Understanding the Japanese Internment, featuring 3 superior court judges and 2/3's Justice Mark Hanasono on Nov. 5 at 4:30 (1.5 hours of Elimination of Bias MCLE/JBEC credit). Register here.

Vexatious litigants on appeal

Q: Can the Court of Appeal sua sponte declare a vexatious litigant?
A: You betcha. See yesterday's Kouvabina v. Veltman:

• "Kouvabina contends appeals do not constitute “litigation” within the meaning of section 391.  California courts have consistently held to the contrary."
• "Kouvabina next argues her appeals do not constitute “litigation” within the meaning of section 391 because they “arose from [her] efforts to defend herself against Veltman’s affirmative claims.”  For various reasons, we disagree." 
• "To the extent she implies the vexatious litigant statutes do not apply — or apply differently — to dissolution matters, we disagree.  The Legislature could have exempted family law matters — as it exempted small claims actions in section 391(b)(1) — but it did not.  To the contrary, Family Code section 210 explicitly provides that the vexatious litigant statutes apply to family law proceedings."

See Prof. Martin's take here. And the MetNews article Commission on Judicial Performance Attorney Is Declared ‘Vexatious Litigant’, which includes comments from Ms. Kouvabina.

9th Cir. Operations Order

ORDER OF THE CHIEF JUDGE REGARDING THE OPERATIONS OF THE UNITED STATES COURT OF APPEALS IN THE ABSENCE OF AN APPROPRIATION OR CONTINUING RESOLUTION

Before: Chief Judge Mary Murguia

An appropriation or continuing resolution funding the operations of the United States Courts not having been enacted into law by midnight October 1, 2025, this Order shall take effect until superseded by such appropriation or continuing resolution.

The Court of Appeals has a constitutional duty to continue to hear and resolve cases, even during a lapse in government appropriations. To perform that duty, which includes the performance of functions necessary and essential to the continued resolution of cases, judges rely on their chambers staff, as well as the officers and employees of the Court.

On September 30, 2025, I issued an order, consistent with national policy, directing all staff, officers and employees of the Court of Appeals, the Office of the Circuit Executive, and the Ninth Circuit Libraries to report to work during their normally scheduled hours, if appropriations for the current fiscal year were not continued or funded prior to the expiration of any carryover funding or continuing resolution.

The Judiciary has maintained funding since then using available fees and carryforward balances. These funds are projected to be exhausted on or before midnight, October 17, 2025.  Accordingly, in keeping with the requirements of the AntiDeficiency Act, my Order of September 30, 2025, concerning the continuity of court operations during a period of lapse of appropriations, is modified for Phase 2 operations as follows:

1. In fulfillment of the Court’s constitutional duty to hear and resolve cases, I will continue to evaluate the court’s day-to-day needs and make furlough determinations as warranted.

2. Oral arguments will go on as scheduled, and the court will continue to schedule cases ready for argument. 

3. Government attorneys, while expected to appear as scheduled, may continue to request to appear by video.  Non-Government attorneys impacted by shutdown related air traffic issues may also move for video appearances.

4. Motions, Screening and COA panels will continue as scheduled, as will Mediation Conferences.

5. Absent an order in a specific case from an individual panel, all nonjurisdictional, non-argument deadlines for all federally funded attorneys continue to be stayed and will be reset upon conclusion of the shutdown.

6. No new financial obligations should be incurred without permission of the Chief Judge or delegated Unit Executives.

7. All court units should review current financial obligations to ensure that they are necessary for the continued resolution of cases and controversies and proceed to deobligate unnecessary commitments where permitted.

8. Performance under fully- funded contracts should continue and performance under incrementally funded contracts that were awarded prior to the lapse in appropriations should continue until a new obligation of funds is required.

9. No new personnel should be hired.

10. The United States Marshal Service, the Federal Protective Service and the General Services Administration are requested to maintain all functions necessary for the continued security, protection and safe use of all United States Courthouses used by the Court of Appeals, as well as in any other setting where the Court is in session.

Tension, tone, perception problems

After Justices Scold Judges, Some Worry About Public Perception of Lower Courts-- Over the past few months, there has been simmering tension and a shift in tone between the high court and lower courts sparked by the Supreme Court’s emergency-docket decisions

Shutdown update: limited operations

A government-wide shutdown began Oct. 1. The Judiciary was able to continue paid operations through Oct. 17, with limited additional work performed over the weekend of Oct. 18-19, using court fee balances and other funds not dependent on a new appropriation.

Judiciary Funding Runs Out; Only Limited Operations to Continue
Published on October 17, 2025

The judicial branch announced that beginning on Monday, Oct. 20, it will no longer have funding to sustain full, paid operations. Until the ongoing lapse in government funding is resolved, federal courts will maintain limited operations necessary to perform the Judiciary’s constitutional functions.

Federal judges will continue to serve, in accordance with the Constitution, but court staff may only perform certain excepted activities permitted under the Anti-Deficiency Act.

Examples of excepted work include activities necessary to perform constitutional functions under Article III, activities necessary for the safety of human life and protection of property, and activities otherwise authorized by federal law. Excepted work will be performed without pay during the funding lapse. Staff members not performing excepted work will be placed on furlough.

Each appellate, district, and bankruptcy court will make operational decisions regarding how its cases and probation and pretrial supervision will be conducted during the funding lapse. Each court and federal defender’s office will determine the staffing resources necessary to support such work.

Anyone with Judiciary business should direct questions to the appropriate clerk of court’s office, probation and pretrial supervision office, or federal defender organization, or consult their websites. Find contact information and websites for federal court units.

Other shutdown information: The Case Management/Electronic Case Files (CM/ECF) system will remain in operation for electronic filing of documents. Case information will be available on PACER.
Individual courts will determine which cases will continue on schedule, and which may be delayed.
The jury program is funded by money not affected by the appropriations lapse and will continue to operate. Jurors should follow instructions from courts and report to courthouses as directed.
The Administrative Office of the U.S. Courts, which maintains this website on behalf of the Judiciary, will not have staffing to answer the AO’s public telephone number. View contact information for the Administrative Office during the funding lapse.

Bloomberg Law has US Courts Face First Furloughs Under Shutdown in 30 Years -- Federal courts across the US are preparing to furlough some staffers and curb operations as the judiciary prepares to run out of funding amid an ongoing government shutdown.

The Supreme Court expects to run out of funding on Saturday and will need to “make changes in its operations” to comply with federal shutdown rules, spokesperson Patricia McCabe said in a statement. The Supreme Court building will be closed to the public, though it will remain open for official business, and the high court will continue to hear and decide cases, according to McCabe.

3d Dist. pro tem update

In the 3d District, Associate Justice Rebecca A. Wiseman, retired, will be sitting in pro tempore beginning July 15, 2023, through December 18, 2025.

CJA hearing in SF for 3 COA appointments

The Commission on Judicial Appointments will hold public in-person hearings in San Francisco on Nov. 17 starting at 9 a.m. to consider three appointments by Gov. Gavin Newsom.

The commission will consider the following appointments:

• 9 a.m.: Matthew Scherb, as associate justice of the Second Appellate District, Division Eight (Los Angeles)
• 10 a.m.: Judge Corey Lee, as associate justice of the Fourth District Court of Appeal, Division Two (Riverside)
• 11 a.m.: Judge Arlan L. Harrell, as associate justice of the Fifth Appellate District (Fresno)

The hearing webcast will be streamed live on the California Courts Newsroom.

Testimony and Comment
Requests to testify or written comments on the appointment must be received by the commission no later than 5 p.m. on Nov. 10 (five court days prior to hearing). Anyone wishing to testify before the commission must state that request in writing and include a summary of the facts on which any testimony or opinion will be based. Submissions via email to coja@jud.ca.gov are strongly encouraged. Hard copies are not required.

And now available: The CLA Litigation Section's October 2025 Litigation Update

California Supreme Court to Honor Late Justice Joseph R. Grodin -- The California Supreme Court will honor the legacy of former Justice Joseph R. Grodin at the start of its oral argument session on November 4.

For a tale about a late appeal, see this unpub D084830.PDF

On the federal side, see Ninth Circuit Rules that Decision Reimposing the Automatic Stay is Immediately Appealable -- In 2020, the Supreme Court ruled that a bankruptcy court’s decision to lift the automatic stay of pending litigation imposed by the Bankruptcy Code is a final, appealable order. But what if a bankruptcy court lifts the stay and later reimposes it? Is the latter order also immediately appealable, or is it considered interlocutory?

Attorney job in 4/1

Division One, San Diego is Recruiting for an Appellate Court Attorney (Level D-Senior) -- Division One in San Diego is accepting applications for an Appellate Court Attorney (Level D – Senior). The job can be found here. The posting is open until October 30, 2025.

CSBA--Court Surety Bond Agency has posted Appeal Bonds in a World of Nuclear Verdicts and Higher Interest Rates

Bloomberg Law has Judiciary Panel Debates Easing Bar Admissions at Appeals Courts

Federal judges warned that a proposal to streamline bar admissions rules across the appeals courts could make it harder to discipline attorneys, though lawyers raised concerns that some circuit requirements can burden nonprofits and firms.

The debate over the proposal came during a Wednesday meeting in Washington of the Judicial Conference’s advisory committee on appellate rules, which considers potential changes to rules governing the federal appeals courts.

It stemmed from a request by the National Women’s Law Center, a nonprofit that advocates for gender equality, for the committee to consider making bar admissions rules more uniform across the circuits. Disparate rules have left the nonprofit “scrambling” to call clerk’s offices to clarify procedures to list attorneys on amicus briefs, according to the nonprofit’s proposal.

Minute Orders & splitting the Ninth

Law360 has:

Justices Won't Decide If 'Minute Entry' Triggers Appeal Clock - Law360 -- "The U.S. Supreme Court said Tuesday it won't review the Second Circuit's finding that a Connecticut federal judge's oral ruling and follow-up minute entry were formal orders that triggered a 30-day countdown to appeal losses in a sales representation contract dispute worth $1.7 million. BI-QEM Inc. ... asked the high court to resolve what they said was a split between the Second and Ninth circuits over whether an unsigned docket item labeled a "minute entry" is an appealable order."

And

Has The 9th Circ.'s Rightward Shift Ended Bids To Split It? - Law360 --Now, with the court nearly evenly divided among Democratic and Republican appointees — thanks to the 10 Trump nominees confirmed during his first administration — interest in carving up the circuit appears to have died down.

5th District pro tem update

The following are currently sitting on assignment in the 5th District:

• Judge Gregory T. Fain of the Fresno County Superior Court will be sitting pro tempore until November 30, 2025. 

• Judge Wayne Ellison (retired from Fresno County Superior Court) will be sitting pro tempore until October 31, 2025. 

• Judge Amy K. Guerra of the Fresno County Superior Court will be sitting pro tempore until December 14, 2025. 

LASC App Div 2026 Hearing Dates

Appellate Division 2026 Oral Argument Hearing Dates

The Appellate Division of the Superior Court of Los Angeles County has announced its 2026 oral argument hearing schedule. Hearings will generally be set at 9 a.m. for infraction and misdemeanor cases and at 1:30 p.m. for limited civil cases in the Appellate Division Courtroom Room 615 at the Stanley Mosk Courthouse, 111 N. Hill St., Los Angeles, on the following dates, subject to further order of this court:          

• 
  January 8 and 22
• February 5 and 19
• March 5 and 19
• April 2 and 16
• May 7 and 21
• June 4 and 18
• July 2 and 16
• August 6 and 20
• September 3 and 17 
• October 1 and 15
• November 5 and 19
• December 3 and 17

Remote appearances before the Appellate Division will be conducted via LACourtConnect. Participants can access the platform through the LACC welcome page. For more information on the Court’s current programs and services, follow the Court on X (@LASuperiorCourt), Instagram (@LASuperiorCourt), Threads (@LASuperiorCourt) or visit the Court’s website, www.LACourt.ca.gov. 

2d District pro tem update

The following are currently sitting on assignment in the 2d District:

• Judge Stephen Goorvitch of the Los Angeles County Superior Court will be sitting Pro Tem in Division Two until October 31, 2025

• Justice Peter J. Siggins (Retired) of the First District Court of Appeal will be sitting Pro Tem in Division Two from October 8, 2025, until December 31, 2025

• Judge Craig B. Van Rooyen of the San Luis Obispo County Superior Court will be sitting Pro Tem in Division Four until November 24, 2025

• Judge Sunjay Kumar (Retired) of the Los Angeles County Superior Court will be sitting Pro Tem in Division Five until December 16, 2025

• Justice Laurence D. Rubin (Retired) of the Second District Court of Appeal will be sitting Pro Tem in Division Eight until October 31, 2025

• Judge Jessica Uzcategui of the Los Angeles County Superior Court will be sitting Pro Tem in Division Eight until November 14, 2025

Political rift at the 9th Circuit?

Law360 has 9th Circ. Flouting 'Imperial Judiciary' Warning, Judges Assert

A large contingent of Ninth Circuit judges accused colleagues Friday of ignoring recent U.S. Supreme Court decisions limiting legal remedies in politically charged disputes, adding fresh fuel to a heated debate over the judiciary's handling of suits against the Trump administration.

Nine of the appeals court's judges signed on to Friday's accusation, which pervaded a 20-page dissent in litigation involving the attempted termination of federal funding for immigration counsel. The dissent criticized a legal challenge to that termination, and it portrayed a majority's contrary view as emblematic of broader judicial overreach in lawsuits against White House policies.

The DJ has 9th Circuit keeps legal aid funding for unaccompanied migrant children -- A divided 9th U.S. Circuit Court of Appeals refused to revisit a lower court order keeping federal funding flowing to lawyers who represent unaccompanied migrant children. The decision preserves a program the Trump administration tried to cut off, with sharp disagreement among the judges over whether the case involves protecting vulnerable minors or judicial overreach into executive spending.

Bloomberg Law has Reagan Judges Are Unrestrained Critics of Trump’s Legal Moves, referencing judges from various districts and circuits.

Distinguished Service Award for PJ Gilbert

Judicial Council Announces 2025 Distinguished Service Award Recipients

The Judicial Council of California today announced three recipients of its 2025 Distinguished Service Award, which recognizes people and organizations for their extraordinary leadership and contributions to the administration of justice in California. This year’s recipients are Presiding Justice Arthur Gilbert, Judge Jonathan Conklin, and Court Executive Officer Rebecca Fleming.



Presiding Justice Arthur Gilbert
Court of Appeal, Second Appellate District, Division Six (Ventura)

Throughout his 50 years on the bench, Presiding Justice Arthur Gilbert has sought to improve the statewide administration of justice. He has served on many Judicial Council committees, including the Court Interpreters Advisory Panel, Advisory Committee on Legal Forms, and the Center for Judicial Education and Research Governing Committee.

Having a passion for judicial education and raising the public’s awareness of the courts, Presiding Justice Gilbert has served as faculty for many judicial education programs, lectured frequently at State Bar events, and participated in moot court sessions at law schools. His long-time monthly Daily Journal column “Under Submission” also serves to spread his knowledge of the courts and the rule of law to fellow judges and attorneys. In addition, his “Gilbert Submits” blog features popular legal commentary from his Daily Journal columns—more than 300 pieces spanning two decades, compiled into two books.

Presiding Justice Gilbert began his judicial service at the Los Angeles Municipal Court in 1975, was appointed to the Court of Appeal by former Governor Jerry Brown in 1982, and became presiding justice of his division in 1999. He has served on several Governors' judicial selection committees to help recruit and evaluate qualified applicants for judicial appointment, helping to diversify the applicant pool to communities that have been underrepresented.

Myron on Moots

The last two DJ columns by Myron Moskvitz has focused on moot courts (Sep. 22, 2025 -- Setting up a moot court: Common pitfalls and how to avoid them - Moot courts can sharpen appellate skills, but only when designed to measure persuasion rather than polish & Oct. 13, 2025 -- How to set up a useful moot court: Part 2 - Traditional moot courts, whether for students or practicing lawyers, often fall short of preparing attorneys to win real appeals, but a more candid, private, and strategically timed approach can turn them into powerful tools for success.)

• An effective oral argument is not one that looks good, but one that changes the judges' minds -- from "leaning against you" to "leaning towards you." Very difficult to accomplish, but occasionally it happens.
• do the moot court in private
• "Assume that you have drafted an opinion against the attorney we're helping. Grill the attorney on the reasons you did so. During the feedback session, be prepared to advise the attorney on how she might overcome your reasons."
• try to hold the moot court after [counsel has] prepared a draft of their final brief (appellant's reply brief or respondent's brief) -- but before they file it. This might require some planning to squeeze the moot court into a narrow time window. But it allows the lawyer to use the moot court feedback to improve that final brief before filing. That's when it counts most, and it might well turn a loser into a winner.

For a lesson on "plain error," see J.Graber's dissent here:

In short, in assessing whether an error is “plain,” we must consider the views of other circuits even if no binding precedent is on point. Our objective is to determine whether the issue at hand is “subject to reasonable dispute,” Puckett, 556 U.S. at 135, not to determine simply whether the issue is controlled by binding precedent. And, as the cases above illustrate, how other circuits have decided the issue can inform our analysis as to the existence—or not—of a reasonable dispute. ....

This approach to plain-error review also comports with how at least seven other circuits analyze the question of plain error. ....

Our old formulation of the test, as well as its variants, is thus doubly wrong: asking a question about the wrong time (at the time of trial rather than at the time of appeal) and about the wrong subject matter (the district judge’s perspicacity rather than the obviousness of the error). .... The proper inquiry is simply whether, at the time of appeal, an error is “clear” or instead is “subject to reasonable dispute.”

Cal Supreme Court seat: Let the speculation begin!

The DJ has 2028 ambitions loom over Newsom's next state Supreme Court pick -- Civil rights advocates urge a second Latino justice on the seven-member court, while others say the bench is already highly diverse. Potential nominees include appellate Justices Gonzalo C. Martinez, Jose S. Castillo, Tracie L. Brown and Lamar W. Baker.

• Gov. Gavin Newsom has nominated three justices to the California Supreme Court during his two terms in office, including Justice Martin J. Jenkins, his former judicial appointments secretary. But his selection this time will be different in one significant way.
• there are several sitting Latino judges, including many appointed by Newsom, who would be qualified candidates. One who was mentioned by several lawyers is 2nd District Court of Appeal Justice Gonzalo C. Martinez, a former deputy judicial appointments secretary who worked for Newsom before the governor appointed him to the bench in 2023.
• Another Latino candidate who won praise is 4th District Court of Appeal Justice Jose S. Castillo, who was born in Mexico, moved to the United States as a child, then joined the U.S. Marine Corps at 17, serving four years.
• Another popular candidate is 1st District Court of Appeal Justice Tracie L. Brown, a former associate with Morrison & Foerster LLP and Cooley LLP who was an assistant U.S. attorney in San Francisco for more than a decade. Brown, whose mother was born in Japan, was appointed as a San Francisco County Superior Court judge in 2013 until Gov. Jerry Brown appointed her to the 1st District five years later.
• Justice Lamar W. Baker on the 2nd District Court of Appeal, a former special assistant in the Obama White House, previously was a prosecutor in the Central District of California. Baker, who is Black, graduated from Yale Law School.

Gopher's out of the hole! Anti-SLAPP appeals not allowed...

A sad day for slapp-happy appellate lawyers? Today the Ninth Circuit issued Gopher Media v. Melone:

Overruling Batzel v. Smith, 333 F.3d 1018 (9th Cir. 2003), and dismissing an appeal for lack of jurisdiction, the en banc court held that a district court’s denial of a motion to strike under the California anti-SLAPP statute does not satisfy the requirements for an interlocutory appeal under the collateral order doctrine.

The MetNews has Anti-SLAPP Motion Denials Are Not Immediately Appealable -- En Banc Court Overrules Case Finding That Such Orders Qualify for Interlocutory Relief

Law360 has 9th Circ. Changes Stance On Appeals Of Anti-SLAPP Denials

Mongan to WilmerHale

Bloomberg Law reports Ex-California Solicitor General Joins WilmerHale’s Trial Group

Former California Solicitor General Michael Mongan is joining WilmerHale, just more than two months after he stepped down from the role he described as the “job of a lifetime.” Mongan, who will be based in the law firm’s San Francisco office starting in December, will advise clients on complex state and federal appeals, WilmerHale said in a statement Thursday. He will work closely with the firm’s crisis management and state attorneys general practice groups.

The Recorder has Former California Solicitor General Michael Mongan Joins WilmerHale

Law360 has Former California Solicitor General Joins WilmerHale In SF - Law360