Federal Judiciary

Anderson v. Neven (9th Cir. - Sept. 11, 2020)

By Shaun Martin

Come on, Judge Wardlaw.  Stop holding back.  Tell us what you really think.

Judge Wardlaw authored an unpublished memorandum disposition.  Her new colleague Judge VanDyke, who joined the court earlier this year, pens today a published dissent from the refusal to hear the case en banc.  Judge VanDyke's dissent is fairly . . . strident.  Judge Wardlaw responds with some choice words of her own, saying (among other things):

"Our panel?s unpublished memorandum disposition had no precedential effect. It therefore could not disturb the ?uniformity of [our] court?s decisions.? Fed. R. App. P. 35(a) (criteria for en banc rehearing). Nor did this appeal present a ?question of exceptional importance.? Id. While undoubtedly important to the parties, there was nothing to distinguish this case from the hundreds of habeas petitions our court adjudicates every year. Thus, it is little surprise that a majority of active judges concluded this was not the rare case worthy of en banc review.

Yet to read the dissent from denial of rehearing en banc, one would think that we mounted a full-on federal takeover of the Nevada state courts. In the dissent?s eyes, our ?resultsdriven? decision, through its ?layers of irony,? ?menaces federalism? and was ?deeply disrespectful? to our colleagues on the state bench. Dissent at 12, 28, 39, 40. Indeed, the dissent claims that the reasoning behind our unpublished 10- paragraph disposition leaves readers lucky to escape ?disaster? or even death by ?dysentery.? Dissent at 13.

I will not attempt to refute these histrionics point by point. Instead, for the benefit of those who have managed to survive their exposure to the panel disposition, I add only a few words in response to the dissent?s more egregious mischaracterizations of what transpired in this case."

Yikes.  Enjoy working together on the Ninth Circuit for the next many years, my friends.  (Chief Judge Thomas joined Judge Wardlaw's concurrence, and Judge Tashima writes:  "Because, as a senior judge, I am prohibited from voting on whether to hear or rehear a case en banc, I file this separate statement. For the reasons briefly and succinctly stated therein, I agree wholeheartedly with Judge Wardlaw?s opinion concurring in the denial of rehearing en banc.")

Judge Bumatay was the only person to join Judge VanDyke's dissent from the refusal to rehear this case en banc.  For whatever that's worth.

Full post as published by California Appellate Report on September 11, 2020 (boomark / email).