I can often accurately predict which Ninth Circuit cases are likely to be taken en banc.
But I will forthrightly concede that I was totally blindsided by this one.
Sure, there was a dissent in the original panel opinion. But Judge Paez didn't write anything that would be considered blistering. And the majority consisted of Judges Clifton and Kozinski. Not someone crazy and/or sitting by designation.
Moreover, Judge Paez's argument was largely that the majority simply misread a holding from a Supreme Court case, not that it created an intracircuit split or conflicted with the decision of a prior Ninth Circuit panel. So you gotta figure that if the Supreme Court really thought its opinion was misinterpreted, it could take care of it itself.
Finally, the clincher: This is a bankruptcy case. Come on. Who's going to take a bankruptcy case en banc?!
Apparently the Ninth Circuit.
Whodathunk?
