Appellate Circuit

Ninth Circuit Judge Sidney R. Thomas to Take Senior Status

Sidney Thomas, who replaced Alex Kozinski as Chief Judge on the U.S. Court of Appeals for the Ninth Circuit, filed a complaint against him.

N E W S  R E L E A S E

March 29, 2022                                                                               Contact: Katherine Rodriguez

Ninth Circuit Chief Judge Emeritus Sidney R. Thomas to Take Senior Status

MAR 29, 2022 | REPUBLISHED BY LIT: MAR 30, 2022

SAN FRANCISCO – Chief Judge Emeritus Sidney R. Thomas, of the United States Court of Appeals for the Ninth Circuit, has informed President Joseph R. Biden, Jr., that he will assume senior status effective upon the appointment of his successor.

In his letter to President Biden, Judge Thomas noted that it has been “a great honor and a privilege to serve as an active judge on the Ninth Circuit Court of Appeals for 26 years.” He recently celebrated the 26th anniversary of his appointment to the Ninth Circuit on March 11, 2022.

To date, Judge Thomas has heard 11,550 appeals and authored 406 precedential opinions. He will continue to hear appeals as a circuit judge in senior status.

Judge Thomas, who stepped down as chief judge on Dec. 1, 2021, greatly expanded the use of technology to improve operations and make the judicial process more accessible to the public. He oversaw the improvement of overall court processing times, the onboarding of numerous new judges, the deaths of longtime colleagues, several government shutdowns and budget related crises, numerous natural disasters, the Ninth Circuit’s response to COVID-19 and the effort to maintain the continuity of justice as the courts adapted to virtual proceedings.

Judge Thomas served as a member of the Judicial Conference of the United States, which is the governing body for the federal courts, and was appointed by Chief Justice John G. Roberts, Jr., to serve on its Executive Committee.

Judge Thomas was confirmed by the U.S. Senate to serve as a Ninth Circuit judge in 1996.

He served as chief judge of the court from Dec. 1, 2014 to Nov. 30, 2021.

A native of Bozeman, Montana, Judge Thomas received his Bachelor of Arts from Montana State University in 1975 and his Juris Doctor from the University of Montana School of Law, where he graduated with honors in 1978. Before joining the federal bench, he engaged in private practice in Billings and was an adjunct instructor of law at Rocky Mountain College in Billings.

The U.S. Court of Appeals for the Ninth Circuit had 9,487 new filings in fiscal year 2021 ending September 30.

The court is authorized 29 judgeships and currently has three future vacancies with dates to be determined.

Kozinski Argues Case at 9th Circuit After Sex Misconduct Claims

DEC 9, 2019 | REPUBLISHED BY LIT: MAR 30, 2022

Former chief judge Alex Kozinski argued an intellectual property dispute before the Ninth Circuit Dec. 9, the first case he’s argued before his old colleagues since retiring from the bench two years ago following sexual misconduct allegations.

In 2017, at least 15 women, including some former law clerks, accused Kozinski of groping them, showing them pornography, or making off-color comments. Kozinski retired shortly after.

Sidney Thomas, who replaced Kozinski as chief judge on the U.S. Court of Appeals for the Ninth Circuit, filed a complaint in December 2017 against Kozinski in light of the allegations, and the court’s investigation into the alleged misconduct was officially terminated in February 2018.

Kozinski began his “comeback tour” into the public spotlight in the summer of 2018, which included an interview with a California radio station on what it’s like to be a judge, and a tribute he wrote in the Los Angeles Daily Journal to retired U.S. Supreme Court Justice Anthony Kennedy, for whom he’d clerked.

Kozinski now represents David Zindel, who lost in California federal court on claims that Fox Searchlight’s Academy Award-winning film “The Shape of Water” copied his father Paul Zindel’s 1969 play “Let Me Hear You Whisper.” The U.S. District Court for the Central District of California dismissed the case after finding that any extrinsic similarities between the works were too general to merit copyright protection.

Kozinski said during oral argument that it’s “virtually unheard of” to dismiss a copyright case comparing literary works before discovery, calling it “not only unwise, but even a denial of due process.”

“What we are doing here is comparing a full-fledged motion picture—you can see it on the screen, you can hear the dialogue—to the script of a play, something that’s presented on a stage,” which is “particularly difficult” without evidence and expert testimony, Kozinski said.

“When you take a film and compare it to a piece of paper, you have to imagine what the audience feels when it’s acted out,” Kozinski said. “At the very least, a plaintiff as a matter of due process should be entitled to put in evidence.”

Judge Kim McLane Wardlaw expressed concern about ending substantial similarity cases early. “Even grants of summary judgment should be extremely rare in this kind of a case,” Wardlaw said. “I do not want to encourage district court judges to do this.”

Jonathan Zavin of Loeb & Loeb LLP represents Fox Searchlight. Zavin told the court that, “if it requires an expert to explain similarities in a plot, it’s not substantially similar as a matter of law.”

“This is not that close case that your honors are worried about,” Zavin said. “Virtually every element is different” except for “the janitor, the cleaning lady, a creature, a laboratory—and by the way, the laboratories aren’t even similar.”

Kelli L. Sager of Davis Wright Tremaine LLP argued on behalf of MacMillan Publishers Ltd., which published the book version of “Shape of Water.” Unlike the film version, the book and the script can be compared easily at the dismissal stage, Sager said.

President Ronald Reagan nominated Kozinski to the Ninth Circuit in 1985, and he served as chief judge from 2007 to 2014.

Judges Kenneth K. Lee and Matthew F. Kennelly were also on the panel.

The case is Zindel v. Fox Searchlight Pictures, 9th Cir., No. 18-56087, oral arguments heard 12/9/19.

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Ninth Circuit Judge Sidney R. Thomas to Take Senior Status
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