One of the downsides of sitting by designation is that you don't get a vote on any en banc call. That downside is doubled when the only other person you can persuade to join your opinion for the panel is (as here) senior, particularly when you've got an active judge (as here) dissenting.
Add to your troubles when your opinion is arguing that circuit precedent has been implicitly overruled by intervening authority. Make it an even more difficult task when a big portion of the opinion is about that age-old question -- quite familiar to at least one ex-President -- of what "is" means.
Put it all together and you get a panel opinion in January that this afternoon gets taken en banc.
Thanks for the help, District Judge Block. We appreciated your flying all the way from the Eastern District of New York to assist the Ninth Circuit in San Francisco. Which is no small task, I might add, for someone who turned eighty years old on Friday.
Happy Birthday!
Now watch from the sidelines while everything you wrote disappears.
