Wednesday, May 22, 2019

Perez v. City of Roseville (9th Cir. - May 21, 2019)

In February 2018, Judge Reinhardt authors a majority opinion that reverses the district court's grant of summary judgment.  There's no dissent; Judge Tashima concurs in the result.

A judge on the Ninth Circuit calls for en banc review.  Judge Reinhardt then dies.  Judge Ikuta is drawn to replace him.

With its new member, the newly constituted panel completely reverses course, and affirms the grant of summary judgment.  The original member of the majority opinion (alongside Judge Reinhardt) dissents, saying not only that the original opinion was correct, but arguing that once an en banc call is made, only the en banc court should reverse the panel's opinion -- that it's unseemly that a judge's death should change things.  (Parenthetically, Judge Tashima never explains what made him change his mind from the original opinion, in which he concurred in the result, but now reaches an opposite conclusion.)

We'll see if the Ninth Circuit wants to take this en banc.  I suspect they'll be at least several votes to do so.