This is the only thing published by the Ninth Circuit today. I'm not quite sure what to make of it.
The panel published its original opinion earlier this month. It was unanimous. Judge Gertner, sitting by designation from the District of Massachusetts, wrote the opinion, which was joined by Judges Thomas and Betty Fletcher. Sounds pretty routine.
The opinion was also published on the last day of Judge Gertner's judicial career; she retired from the bench the same day the opinion was issued. That's not routine at all, but not surprising. She knew when her last day would be, and annouced her pending retirement many months ago.. She made sure she got her work done by then. Good job.
But today, the remaining members of the panel -- Judges Thomas and Fletcher -- withdraw the opinion, saying that a new opinion will come out "in due course."
The usual explanation for withdrawing an opinion is that the panel either read a petition for rehearing and thought that there was something pretty good in there or started getting heat from one or more of their colleagues on the Ninth as a result of a petition for rehearing en banc. But here, no petition for rehearing (or rehearing en banc) has been filed; instead, the losing party asked for (and received) an extension until October 11th to file one. Plus, even when a petition has been filed, the more traditional practice is to do the edits and then simultaneously file the new opinion and withdraw the old one.
Sometimes a panel withdraws its opinion because it has decided an issue that a different (lower-numbered) panel currently has under consideration, which gives the other panel priority -- something that the higher-numbered panel sometimes only learns about after publishing its opinion. But I don't see anything especially novel about the opinion here, so that doesn't facially seem to be the case either.
The other possibility, I guess, is that whomever was drawn to replace Judge Gertner wants to dissent. But today's order is only signed by two members of the court. Which suggests that the Clerk hasn't even drawn the replacement yet. Which is slightly unusual itself. Maybe not surprising that they didn't originally draw the replacement already; after all, it looked to everyone like nothing needed to be done until October 11th anyway. But given that we're in fact doing something before then, why not draw the replacement member and put him or her on the panel to vote? (Which I know wouldn't change the result, since we already have the decision by a majority to withdraw it, but still; I think that'd be the usual practice.)
Maybe there's a simple explanation for all this. But I don't know it. Haven't seen this unusual confluence of events before.
