Wednesday, October 14, 2015

In Re Schwartz-Tallard (9th Cir. - Oct. 14, 2015)

It's an 11-member en banc panel.  It's a straightforward statutory interpretation question:  When the statute entitles you to attorney's fees because a creditor has violated the automatic stay in bankruptcy, are you merely entitled to fees incurred in fighting the stay, or for fees incurred in obtaining damages that resulted from the violation of the stay as well?

Eight members of the panel say that the answer is clearly "Yes".  The text of the statute is clear.  The purpose of the statute is clear.  You get to recover all your fees.

Two members of the panel (Judges Bea and O'Scannlain) agree that the text of the statute is clear, so (in a classic move by textualists) don't want to say anything about the statutory purpose.  You get to recover all your fees.

That leaves one member of the panel.  Judge Ikuta.  Who dissents.  She agrees that the text of the statute is clear.  But she (alone) thinks that it means that you don't get to recover all your fees.

When there's a ten to one vote in an en banc case, especially when (as here) it's a low-profile one that's not inherently political, the typical reason for the sole dissenting vote is that the dissenter was on the panel whose decision is being vacated by the en banc court.  So I looked.

Nope.  Judge Ikuta wasn't on the panel.  Indeed, none of the judges on the panel were drawn for the en banc court.

So that doesn't explain it.

Aha!  But the en banc court decided to overrule circuit precedent from 2010.  Judge Ikuta was on the court back then.  Perhaps she was on that panel, and doesn't like her prior opinion overruled.

So I looked.

Nope.  She wasn't on that panel either.  And, interestingly, Judges Hawkins, Berzon, and Clifton were on the panel of that now-overruled precedent, but none of them were drawn for the present en banc court either.

So we're left with a simple explanation.  It's not a prior decision.  She simply disagrees with every single one of her colleagues on the en banc court.

On the one hand, I kind of appreciate a dissent in this context.  When the outcome is preordained, and you're the sole outlier in an 11-member panel, I'm sure it's easy -- or at least easier -- to go along with the uniform consensus of everyone else on the panel.  Especially (again, as here) in a low-profile case in which your ire isn't up, and especially when (as Judge Ikuta says in her dissent) you believe that the interpretation of the statute adopted by the majority achieves a better policy result than the one you think the text actually articulates.  It'd be super easy to simply join with the majority.  So, on one level, my hat's off to Judge Ikuta for dissenting notwithstanding the more difficult path that the futile articulation of her position requires.

But, on the other hand, you've got to reflect at least a tiny bit when you're the only person on an 11-member panel -- one composed of very smart people -- that thinks a statute clearly says X, when to a person everyone else says that the statute clearly says Y.  You can't get a much starker conflict than that, right?  You've got to think a little bit, don't you, that you might well be wrong when every other person to think about the topic thinks that the answer is clearly different than the one that you think is crystal clear, no?  You'd think that might give one a little pause.  And, if you often ended up on the bottom of similar 10-1 votes, that might be even more reason to reflect upon your decision making, right?

None of which says that Judge Ikuta shouldn't have dissented.  If that's the way she views the thing, so be it.  Say what you feel's right.

But it might be a good occasion to at least pause for a second and wonder what everyone else, of all political stripes, seems to see that you do not.