Today's en banc decision says in a footnote:
"Marley [v. United States, 567 F.3d 1030 (9th Cir. 2008)] dismissed Alvarez-Machain I as having 'no precedential value' because the panel opinion in that case was vacated and the case was taken en banc. See Marley, 567 F.3d at 1037–38 (citing Alvarez-Machain v. United States (Alvarez-Machain III), 284 F.3d 1039 (9th Cir. 2002)). But the opinion that was vacated by Alvarez-Machain III was not Alvarez-Machain I. Rather, it was a different opinion in the same case: Alvarez-Machain v. United States (Alvarez Machain II), 266 F.3d 1045 (9th Cir. 2001). Thus, Alvarez-Machain I was still good law when Marley was decided. The result was an intracircuit conflict, which we can resolve only through en banc proceedings. See Atonio v. Wards Cove Packing Co., 810 F.2d 1477, 1478–79 (9th Cir. 1987) (en banc)."
That's a bit embarrassing for Judge Graber, who wrote Marley. It's also a little bit embarrassing for the entire court, since a judge requested an en banc vote in Marley, but it failed. Apparently the court now recognizes that the vote should have gone the other way.
Chief Judge Kozinski writes another classic Kozinski concurrence. Including paragraphs like the following:
"We owe Wong the benefit of our compassion and creativity. After all, had the district court acted on her motion within the section 2401(b) six-month period, she wouldn’t be in this fix. But the court took more than seven months to act on this routine motion—a delay Wong didn’t cause and couldn’t have foreseen. The government suggests that, instead of waiting for the district court to act on her motion, Wong should have refiled it. Yeah, right. How many litigants have the nerve to vex a federal judge with a clone motion while the original is still pending? Bad things can happen to those who twist the tiger’s tail. See, e.g., Nugget Hydroelectric, L.P. v. Pac. Gas & Elec. Co., 981 F.2d 429, 439 (9th Cir. 1992) (affirming imposition of sanctions for filing duplicative motions). Instead, Wong used her reply sensibly: She reiterated her request to amend, advanced new arguments in support of that request and pointed out that the court had acquired jurisdiction to grant it. To treat Wong’s document as a legal nullity because she called it a reply rather than a motion is inequitable and nonsensical. I thought we had abandoned such pedantry in 1938."
[I'll note in passing that the district court judge who sat on the motion for seven months is senior judge Robert Jones in Oregon. And add that there's a real problem with some judges sitting on motions forever. Not only in Oregon.]
Chief Judge Kozinski also has this line, however, which I don't understand: "But even if it were novel, so what? Novelty is not an enemy of justice; we’re judges, not plumbers." I agree with him about judges, but disagree about plumbers. Seems like he's saying that it's not good for plumbers to be creative. Not sure where that comes from.