Friday, September 23, 2016

In Re Sunnyslope Housing Ltd. Partnership (9th Cir. - Sept. 22, 2016)

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.