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New Chief of 9th Circuit|Hails From Montana

SAN FRANCISCO (CN) - Judge Sidney Thomas will take over Dec. 1 as chief judge of the 9th Circuit, the biggest federal appellate court in the nation and the final stop for the lion's share of federal litigation in the western United States.

The news was first published in Thomas' hometown newspaper in Billings, Mont., where the judge practiced law and now has his chambers. His new post was confirmed Tuesday by the 9th Circuit.

Thomas will replace Chief Judge Alex Kozinski, who has been in the court's lead position for seven years. "He'll be fabulous," Kozinski told the Billings Gazette. "He'll be a really epic chief judge.

"It's humbling," Thomas told the same newspaper, "but I hope I can bring Montana values of common sense and collegiality to the task. I hope I can bring some credit to Montana."

He said he will not move to San Francisco, where the 9th Circuit is based, but will maintain his chambers in Montana and commute to California.

Dave Madden, a spokesman for the 9th Circuit, said the selection of the chief judge is based on seniority and age. "The most senior active judge under the age of 65 is eligible to serve as chief judge for a term of up to seven years," Madden said.

He pointed to Section 45 of Title 28, which says the term of office for a chief judge is seven years, or until the incumbent turns 70.

Thomas emphasized to the Gazette: "it's purely mathematical."

Appointed to the 9th Circuit by President Bill Clinton in 1996, the 61-year-old Thomas is 20th in seniority of the circuit's 45 judges.

He went to Bozeman High School and received his bachelor's degree in speech communications from Montana State University in 1975. He received his law degree from the University of Montana in 1978.

From his graduation until 1995, Thomas worked as a partner in private practice with the Billings law firm of Moulton, Bellingham, Longo and Mather. He was also an adjunct law professor at Rocky Mountain College in Billlings from 1982 to 1995.

In 2010, he was on President Barack Obama's short list for nomination to the Supreme Court, after the retirement of Justice John Paul Stevens, and came under attack by political conservatives for his ruling enforcing the Bill of Rights in a death penalty case.

In 2006, Thomas wrote the decision in Nadarajah v. Gonzales, which brought an end to the four-year detention of Sri Lankan-born terror suspect Ahilan Nadarajah.

Nadarajah, a member of the Tamil ethnic minority, was accused of being a member of the Liberation Tigers of Tamil Eelam, and was arrested and tortured repeatedly for years by the Sri Lankan army. He fled the country and was smuggled into the United States in 2001, where he was detained by U.S. immigration officials for nearly five years.

A unanimous 9th Circuit panel granted his motion for release.

Thomas wrote that Immigration and Customs Enforcement abused its discretion by denying Nadarajah parole, writing, "general immigration detention statutes do not authorize the attorney general to incarcerate detainees for an indefinite period."

More recently, Thomas was the dissenting voice in Keller v. Electronic Arts, a July 2013 ruling where the majority found that the use of student-athlete likenesses in sports video games was not constitutionally protected free speech.

"Because the creative and transformative elements of Electronic Arts' NCAA Football video game series predominate over the commercial use of the athletes' likenesses, the First Amendment protects EA from liability," he wrote in dissent.

"As expressive works, video games are entitled to First Amendment protection. Because football is a matter of public interest, the use of the images of athletes is entitled to constitutional protection, even if profits are involved."

This year, Thomas dissented in a gun-rights case in San Diego, where the court found that San Diego County's requirement for "good cause" to carry a concealed weapon violates the Second Amendment.

The February 2014 opinion by Judge Diarmuid O'Scannlain was a landmark victory for gun-rights supporters. But Thomas wrote that the ruling "upends the entire California firearm regulatory scheme."

He added: "A careful examination of the narrow questions before us can only lead to the conclusion that San Diego County's 'good cause' policy falls squarely within the Supreme Court's definition of 'presumptively lawful regulatory measures.'"

In 2012, Thomas wrote the majority opinion in Holmes v. Merck, a wrongful death lawsuit brought by Erin and Shawn Holmes that claimed the pharmaceutical company's vaccine for measles, mumps and rubella killed their 1-year-old son Jacob, who developed encephalopathy and died nine days after receiving the vaccine.

The 9th Circuit upheld the district court's application of Section 22 of the Vaccine Act, which says vaccine manufacturers cannot be held liable in a civil action for damages from injuries or death caused by a vaccine's unavoidable side effects.

"If we were to conclude that the parents of those suffering a vaccine-related injury could bring design defect and failure to warn claims outside of Section 22's limitations, we would be acting contrary to the statute's central purpose of managing vaccine manufacturers' liability because our construction would do little to protect the vaccine manufacturers from suit," Thomas wrote.

In his recent comments to the Billings newspaper, "We all get along very well. I've worked very hard to work with everyone on the court."

While the 9th Circuit is often described as a liberal court compared to many of the other federal circuits, Thomas rejected that characterization. "We're pretty much in the mainstream," he said, "if you take an honest look at it."

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