Wednesday, March 13, 2019

Fowler v. Guerin (9th Cir. - March 13, 2019)

Judge Bennett makes his presence on the Ninth Circuit felt in today's dissent from denial of rehearing en banc.

You'd think that the underlying opinion was hardly something that would garner much controversy.  It's an opinion authored by Judge Gould that's joined by Judge Ikuta.  Two individuals who are far from radical left-wingers.  It concerns, according to Judge Gould, a class action brought by a couple of teachers who ask for a "return [of] interest that was allegedly skimmed from their state-managed retirement accounts."  Hardly the most unsympathetic of claims.  And the panel opinion is without dissent or -- at least when you read the opinion -- much controversy.

Yet Judge Bennett, who joined the Ninth Circuit in July, pens a 17-page, single-spaced dissent that argues that the panel's opinion radically conflicts with the Eleventh Amendment.  So thinks that the opinion should be taken en banc.

The only other judge who joins Judge Bennett's dissent is Judge Ryan Nelson.  Who's another Trump appointee also new to the Ninth Circuit, having joined the court even later than Judge Bennett (Judge Nelson took his seat in October).

It's still early.  It's only one opinion.  But the early returns nonetheless suggest that we may hear a lot from the first two Trump appointees on the Ninth Circuit for some time.