Although much commentary has been written on the 9th Circuit’s affirming of the district court in Tibble v. Edison International, the story is not quite over. On April 4, 2013, the Plaintiffs filed a Petition for Rehearing to both the original panel and en banc (all of the active judges of the 9th Circuit). A copy of the Petition is available here.
Last Friday, April 12, the 9th Circuit requested that the Defendants in the case respond to the Plaintiffs’ Petition. Their response is due in 21 days from the 12, or on Friday, May 3, unless an extension is sought. More or less, three outcomes can come of this. First, both the original panel and the en banc judges can vote no for a rehearing. This means that as far as the 9th Circuit is concerned, the Opinion from March stands. The second outcome is that the three judge panel could address the issues raised in Plaintiffs’ Petition. This would result in an additional opinion. The third outcome is that the three judge panel votes no on rehearing, but the en banc judges of the 9th Circuit vote in favor of the rehearing. This could result in new oral arguments before all of the en banc judges. The outcome would be a new written opinion that either replaces the original opinion or modifies it.
This entire situation is interesting for a variety of reasons, but most notably because only one of the judges on the Tibble panel, Circuit Judge O’Scannlain, is an active 9th Circuit judge and thus eligible to vote for the en banc rehearing. Circuit Judge Goodwin is Senior Status and District Judge Zouhary is from the Northern District of Ohio and sat by designation on the panel, presumably because of the massive caseload of the 9th Circuit. To note, the writer of the Opinion was Circuit Judge O’Scannlain. Thus, there is at least a possibility of a split between the original panel and the en banc judges over rehearing.
Another interesting fact is that the Plaintiffs have hired the appellate law firm of Stris & Maher, LLP, who signed and filed the Petition. If you are not aware of the reputation of Stris & Maher directly, you have certainly heard of their most successful representation to date of the plaintiff in LaRue v. DeWolff Boberg & Associates, Inc., 552 U.S. 248 (2008) before the United States Supreme Court. Click here for more information.
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