This is a great way to end the month.
Chief Judge Kozinski writes a dissent from the denial of a petition for rehearing en banc (i.e., for him, a "dissental") that's classic Alex. Strongly worded. Powerful. Relatively persuasive.
But Judge Wardlaw -- joined by the rest of the panel that issued the underlying opinion -- writes a fairly responsive concurrence in the denial. She even adopts Judge Kozinski's informal tone.
Check out how her concurrence begins:
"Whoa!!! The Chief has put the proverbial cart before the horse. The district court did not touch upon the merits of the claims alleged in the complaint in any manner whatsoever, and neither did our panel’s disposition. Nor did we or the district court invoke the doctrine of 'hypothetical jurisdiction' in an effort to reach the merits, quite contrary to the dissent’s assertion. Rather, based on the record before the district court, the panel concluded only that the district court abused its discretion when it dismissed this action under the forum non conveniens doctrine. This was, by definition, 'a non-merits ground for dismissal.'"
Referring to him as "The Chief." Using phrases like "cart before the horse." Exclamation points (two, even!!). Contractions. All she'd have to do to make you think that Judge Kozinski himself wrote the thing is to number the sections.
It's a neat little debate. If you're a huge procedure/appeals/standing nerd, anyway. Judge Kozinski says you have to resolve standing first unless you're affirming a dismissal on forum non conveniens grounds. But Judge Wardlaw says that it's not a one-way ratchet: that just like you're not required to reach standing first before affirming a forum non conveniens dismissal you're not required to reach it first before reversing a dismissal on those grounds either. Especially when the district court hasn't yet reached that issue.
Both sides have arguments. For me, I'd have been interested to have Judge Kozinski tell me if there's a similar one-way ratchet in any other area of appellate review. Are there any other issues that a Court of Appeals is required to reach only if they reverse a dismissal, but may ignore if they affirm?
Maybe there are. Qualified immunity, perhaps? (Though even there, if the district court dismissed the complaint only on the "not a violation" prong, you could surely affirm on that basis alone, but I'm not sure the Court of Appeals would be obligated to reach the "clearly established" part if it reversed. I'm not sure about this, though: I'd have to think about it more.) It's surely not the case with "regular" standing or subject matter jurisdiction issues: Those you've got to reach regardless of whether you're affirming or reversing. Does standing fall somewhere in the middle? I'd like to hear a reason why: Why you have to reach it as an appellate tribunal only in cases in which you're reversing.
But the substance -- while fascinating -- takes a back seat to style in this one. To see who can out-Kozinski Alex.