Betz v. Trainer Wortham & Co. (9th Cir. - July 7, 2010)

Judge Gould writes a majority opinion that concludes by saying (in the process of remanding to the district court): "[W]e do not see how it can ever be incorrect, once the Supreme Court has vacated a circuit court decision and remanded for further assessment in light of one of its decisions, for the court of appeals simply to vacate the district court’s decision and to remand for further proceedings in the light of the pertinent Supreme Court decision."

To which I might respond: "Depends on what you mean by 'incorrect'."

If he means "procedurally improper" or "precluded as a matter of law," I largely agree. Remand is permissible, and no one (including the party opposing remand here) argues otherwise.

But if Judge Gould means something more meaningful -- as in "we do not see how it can ever be wrong" to remand -- then I'll respectfully disagree. Imagine a case in which the district court entered a judgment in favor of X on two independent grounds. The loser appeals, and the Court of Appeals affirms on Ground 1, and does not reach Ground 2. The loser obtains certiorari in the Supreme Court, which reverses Ground 1, and remands to the Court of Appeal for proceedings consistent with its opinion. Neither the Supreme Court nor the Court of Appeals has ever made any decision relevant to Ground 2, which is wholly separate from Ground 1.

In that situation, it'd be "incorrect," in my view, for the Court of Appeal to remand. We already know the district court's decision on that issue. Remand would be both unnecessary and a waste of time. It'd normally be "wrong".

This is a not-unusual situation. You can also add additional (not-unusual) facts, if you'd like, that would make it even more "wrong" to remand. The winning party is elderly, and may not survive the delay in the district court. Or is losing their home and needs a decision quickly. Or the loser wants remand because the district court judge who initially decided the case has left the bench, and the loser thinks her replacement may be more sympathetic.

In short, there are lots of situations in which the Court of Appeals should not remand a case to the district court after a decision and remand by the Supreme Court. So I'd replace the broad and potentially misunderstood word "incorrect" in the opinion with "procedurally barred." A phrase that's simultaneously more accurate but that indicates that Judge Gould's final argument in favor of remand doesn't really say much of anything that anyone disagrees with (though at least doesn't say anything wrong).