I've got to be honest with you. I can't figure out the entirety of what's going on here. And I've tried. Anyone smarter than me -- and there are plenty, plenty of you people out there -- who can figure it out are free to send me an e-mail and thereby enlighten my dull, unsophisticated, and uniformed brain.
Here's the tortured, multi-year procedural history of this appeal. Back on April 20, 2004, the panel decides -- in a unanimous opinion -- that the California statute at issue (which bars employers who receive state grants from using such funds to advocate for or, as always, against union organizing) was preempted by the National Labor Relations Act. Judge Fisher writes the opinion, and Judge Beezer and District Judge England join. Just another routine disposition. Affirmed. No problem, right?
But then, over a year later, on May 13, 2005, the panel withdraws its own (unanimous) opinion. Strange, but what's even more strange is that they don't contemporaneously replace it with a different disposition. Weird. Prompting one observer -- me -- to say, basically, "This is weird."
Then, on September 6, 2005, we learn a little bit more. Judge Fisher -- the author of the original opinion -- has apparently now changed his mind. So now Judge Beezer is writing the majority opinion, joined by Judge England, which again affirms the district court and finds the statute preempted. But this time, Judge Fisher dissents.
Okay, a little strange. But it happens. People sometimes change their mind. We're all down with that.
Then, on January 17, 2006, the Ninth Circuit votes to take the case en banc. Not surprising. It's a difficult and controversial issue. And, in doing so, the Ninth Circuit issues the usual order that accompanies such a vote: "The three judge panel opinion shall not be cited as precedent by or to this court or any district court of the Ninth Circuit, except to the extent adopted by the en banc court." You know, the typical thing. Happens every single time the court votes to take a case en banc.
I'm on board so far. Here's the thing I don't understand, though. Earlier today, the Ninth Circuit issues this order: "Upon the vote of a majority of the en banc court, the opinion and dissent filed on September 6, 2005, slip op. 12167, and appearing at 422 F.3d 973 (9th Cir. 2005), are withdrawn." Huh? You already said that the case couldn't be cited. What's the point of separately withdrawing it? Sure, that means it also can't be cited to other courts (though what's the point anyway of citing a case that's actively being taken up?), but why are we doing that in this case but not any of the others that we vote to take en banc? Plus, why the three-week delay between taking it up and withdrawing it?
Back in the old days -- a practice that stopped, I think, back in 1999 -- the Ninth Circuit would pretty much automatically withdraw the panel opinion once the vote was taken to rehear the case en banc. I doubt that the court is returning to those days as a general practice, so don't understand the reason to do so in this one particular case.
But, again, maybe I'm stupid. Maybe there's an obvious reason out there that I'm just missing -- that is clear to everyone else in the universe, but that my feeble brain just can't fathom. It's presumably not, by the way, that the panel has changed its mind again, since the withdrawn opinion is pursuant to a vote of the en banc court (not the panel). Though I suppose it is possible that the panel did change its mind, but only after the case was taken en banc, at which point it required a vote of the en banc court (rather than the panel) to withdraw the opinion, since that's the entity that had jurisdiction over the appeal at that point. Though if that's really the case, what an utter clusterfart. (Yes, I know, that's not the actual word, but hey, this is a family blog.)
Weird, weird, weird.
P.S. - If you care at all about the merits of the underlying dispute, here's a good paper by Professors Befort and Smith at the University of Minnesota Law School -- an entity, by the way, that is essentially a feeder school for the University of San Diego School of Law at this point, since we've hired so many of their outstanding faculty members away from them during the past several years (ho ho ho) -- that discusses the issue and is deeply and intelligently critical of the panel opinion(s).
