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The Ninth Circuit U.S. Court of Appeals on Wednesday gave its panels and lower court judges freer rein to ignore the appeal court’s own precedents when they’ve been undermined by more recent Supreme Court decisions. The decision comes in a case over whether Nevada child welfare workers are entitled to qualified or absolute immunity. But the outcome turned on how much deference to give a prior Ninth Circuit precedent when a more recent Supreme Court decision called that ruling into question. “We hold that the issues decided by the higher court need not be identical in order to be controlling. Rather, the relevant court of last resort must have undercut the theory or reasoning underlying the prior circuit precedent in such a way that the cases are clearly irreconcilable,” wrote Chief Judge Mary Schroeder, writing for what was a unanimous court on the immunity question in Miller v. Gammie, 03 C.D.O.S. 5993. The original Ninth Circuit decision gave immunity to state workers who placed an abusive child in a foster home alongside two younger children — without telling the foster parents about their new ward’s abusiveness. The ward sexually abused one of the children. The judge who grudgingly wrote that decision, Diarmuid O’Scannlain, concurred in Wednesday’s result. Joined by Judge Richard Tallman, O’Scannlain wrote separately, however, to argue that Wednesday’s result was reachable only by a court sitting en banc — in other words, the intervening Supreme Court decision wasn’t sufficiently on point to allow a three-judge panel to ignore what would otherwise be binding circuit precedent. Judge A. Wallace Tashima wrote separately to categorize Schroeder’s analysis of the precedent question as dicta. Judge Alex Kozinski wrote his own separate opinion to call Tashima’s definition of dicta “unworkable,” and to say that his own view — that judges have more latitude when such situations arise — carried the day. The skirmish between Kozinski and Tashima is the resumption of a battle the two first fought in United States v. Johnson, 256 F.3d 895, when each staked out a similar position. Tashima argues that any discussion not critical to the disposition of a case is dicta, no matter how it’s framed. Kozinski opened his opinion by asserting that Tashima’s view “that some rulings of our court may simply be ignored as ‘dicta’ has just flunked its first reality-check.” Wednesday’s decision could have an immediate effect on a closely watched employment law case. In EEOC v. Luce, Forward, Hamilton & Scripps, 00-57222, the Ninth Circuit is considering en banc whether arbitration clauses are enforceable in the Title VII employment discrimination suits. A key question is whether the Supreme Court’s 2001 decision in Circuit City v. Adams, 532 U.S. 105, overruled a 1998 Ninth Circuit ruling, Duffield v. Robertson Stephens & Co., 144 F.3d 1182. “To me, this case suggests there was no need to grant rehearing en banc [in Luce, Forward] because the Circuit City Supreme Court decision had already undermined the holding in Duffield,” said Robert Walker, a partner at Los Angeles’ Paul, Hastings, Janofsky & Walker who helped argue the case for Luce, Forward. “I think they should probably conclude the same thing, that Duffield is not proper law,” said Walker, “and hopefully they’ll overrule the damn thing.” As a practical matter, Wednesday’s ruling probably won’t prevent the circuit’s judges from debating — as they already do — whether an intervening Supreme Court case is really on point. “They can make a conscientious decision whether the Supreme Court has abrogated previous panels, but judges will disagree in good faith” over whether precedents have been struck down, said Arthur Hellman, a University of Pittsburgh School of Law professor who writes frequently about the Ninth Circuit. “The hard cases are still going to be hard cases,” Hellman said.

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