Back to the Gilmore decision for a second (mods, where are you?). The 9th Circuit originally heard an appeal based on a lower court decision to dismiss based on the pleadings Gilmore filed -- the ruling was that Gilmore's lawsuit should have been filed directly in the 9th Circuit. According to The Practical Nomad:

The judges' misunderstandings were compounded by their decision to jump from an appeal, motions, and oral argument concerning standing and jurisdiction to a decision on the facts and the merits, without there ever having been any discovery, hearing, cross-examination, or fact-finding proceeding of any sort, either before the District Court or before the Court of Appeals. The only factual evidence considered by the Court of Appeals, so far as I can tell, was evidence about the USA government defendants' (purported) policies, submitted and reviewed by the judges secretly, after the oral argument, and unable to be reviewed, rebutted, or cross-examined by Gilmore or his lawyers.