This is the mess that can happen when a law clerk makes a mistake.
There are three different opinions in this case. Two of them involve issues about what constitutes binding circuit dicta. A panel of the Ninth Circuit in Miranda B. adopted a particular standard on this issue by quoting from a purported en banc opinion written by Chief Judge Kozinski, with a citation to "United States v. Johnson, 256 F.3d 895, 914 (9th Cir. 2001) (en banc)." The problem is that Chief Judge Kozinski didn't write the opinion for the court; rather, this was a concurring opinion that only garnered the support of three of the judges on the en banc court. So it wasn't the law. But once the pnael in Miranda B. adopted this language, it suddenly was the law of the circuit. Oops.
You can't tell which chambers made this mistake because it's a per curiam opinion -- the members of the panel were Judges Fernandez, Fisher and O'Scannlain. But just because it's unsigned doesn't mean it can't distort circuit precedent. As it did here.
You might be wondering, by the way, why an appeal from an order of the Bonneville Power Administration results in three separate opinions, as well as the involvement of a couple of dozen lawyers. It's not even an environmental case. It's just about how much a particular factory owned by Alcoa has to pay for electricity. How much could that matter? How could it justify the expenditure of a huge amount of attorney's fees?
You'd spend a lot too. If the amount at stake was -- as it is here -- around of a third of a billion dollars. That's how much the petitioners say the government's going to lose to Alcoa if Alcoa gets to pay submarket electricity rates.
As indeed it does.
A good day for Alcoa. (Reminding me, randomly, of those old commercials from the '70s. "Alcoa Can't Wait!")
