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A three-judge federal appeals panel got cold feet with one of its own opinions Tuesday when it retracted a January decision and issued a new, more limited version. At issue was whether Vernon Vu Luong could appeal the decision of an arbitrator who had denied his claim against Circuit City. The result of both versions of the opinion is the same: Luong’s arguments were denied. But the Ninth Circuit U.S. Court of Appeals judges changed how they got there. They offered no explanation, but it appears that Senior Judge Ferdinand Fernandez and Judge Pamela Ann Rymer were swayed by a dissent by Judge Alex Kozinski, who had accused his colleagues of causing “both an intra- and inter-circuit conflict” with their first holding in Luong v. Circuit City Stores, Inc., 04 C.D.O.S. 4481. In the first version, Rymer and Fernandez held that Luong’s appeal did not meet the threshold for federal jurisdiction because the arbitrator awarded him no money. In order for them to intervene, the award amount needed to be at least $75,000, according to the January opinion. In his dissent, Kozinski said his colleagues misapplied American Guaranty Co. v. Caldwell, 72 F.2d 209. Where the other judges brushed aside that opinion’s holding that jurisdiction is determined by the amount in controversy and not the amount awarded, Kozinski said that was a mistaken and dangerous reading of a key passage in American Guaranty. “The statement is phrased as a rule of law, not idle chatter; if this is not a holding, I’m not sure what is,” Kozinski wrote. The disagreement among the three judges disappears in the new opinion. After the ruling earlier this year, Luong filed a petition for an en banc hearing. Instead of granting 11-judge review, though, the three-judge panel decided to change gears in its reasoning. In so doing, Kozinski withdrew his dissent, and the holding shrunk in scope and length — 21 pages to seven. Luong still loses. But an issue that was a mere couple of paragraphs in the January opinion now gets full attention in the revision. This time around, the judges more fully explored subject matter jurisdiction. In his appeal, Luong argued that the arbitrator had disregarded another case, 2002′s Toyota Motor Mfg., Inc. v. Williams, 534 U.S. 184, that he thought would help him. “However, �manifest disregard of the law’ has a well-defined meaning that Luong’s petition cannot possibly meet,” according to Tuesday’s opinion, which, like the January version, was written by Rymer. “Virtually every line of the opinion and award discusses Toyota and how it plays out on the facts in Luong’s case. That cannot amount to �manifest disregard of the law.’” Luong’s attorney, Mai Wells of Infinity Law Group in Anaheim, did not return calls seeking comment, nor did Circuit City’s lawyer, Rex Darrell Berry of Livingston & Mattesich in Sacramento.

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