A holding by any other name would smell as sweet. But do you have to follow it?
That's the disputed issue in this morning's Ninth Circuit opinion.
Background Truth No. 1: When a prior Ninth Circuit opinion holds X, a subsequent Ninth Circuit panel has to follow X even if the law should actually be Y. Only an en banc court can reverse circuit precedent.
Background Truth No. 2: Background Truth No. 1 doesn't apply if there's an intervening Supreme Court opinion that changes the result. So if Panel 1 holds X, but the Supreme Court later holds Y, Panel 2 can permissibly rule Y instead of X.
Everyone agrees on the above two Truths.
But today's opinion involves a variant.
What's the rule if (1) Panel 1 holds X, (2) the Supreme Court later holds Y, and (3) Panel 2 then holds X, relying on Panel 1 and not discussing the Supreme Court's intervening opinion? Can Panel 4 hold Y, or is it bound to follow Panel 2's holding of X until reversed en banc?
Where do you come out on this one?
Wherever you come out, you've got some support on the Ninth Circuit. Judge Bade says that if, as here, Panel 2 didn't discuss the intervening Supreme Court opinion, then Panel 3 can rely on that opinion to change circuit precedent (even though Panel 2 didn't). Judge Hurwitz disagrees, and says that Panel 2 made a holding that X is still true, so Panel 3 is bound to follow that holding until reversed en banc.
For now, the rule is the one articulated by Judge Bade, since Judge Tashima agrees with her. It's all kind of silly, akin to (in the present case, anyway) discussing how many angels can dance on the head of a pin, because all three judges on the panel here agree -- as would (I strongly suspect) an en banc Ninth Circuit -- that the rule here should be Y instead of X. So if the Ninth Circuit wanted to take this opinion en banc, I'm sure it could easily dispense with the particular issue here by saying that regardless of whether the majority or dissenting opinion here is correct, the proper rule is Y, so the issue of what a panel is allowed to do is moot.
But it nonetheless remains an important procedural issue. What exactly is the power of a Ninth Circuit panel in the face of (allegedly) conflicting precedent?
For now, at least, that power is fairly expansive.
