In Re Ronald Gary Watts in Re Yee Kome Kathy Watts, Debtors, Phillip J. Wolfson v. Ronald Gary Watts Yee Kome Kathy Watts

1077 clear from the record that the Phillip ALJ would Wolfson, Appellant, J. required to find the claimant if disabled v. Id.,

he considered the claimant’s evidence. Gary Watts; Ronald Yee Kome citing Bowen, Rodriguez 759, 876 F.2d Kathy Watts, Appellees. (9th Cir.1989) (crediting treating phy- testimony benefits); sician’s and awarding No. 00-55207. Sullivan, 683, Swenson v. F.2d United (9th Cir.1989) States Court of Appeals, (crediting subjective symp- Ninth Circuit. testimony tom awarding benefits); see Chater, 821, also Lester v. Argued and Submitted Oct. 2001. Cir.1995) (same); Heckler, Stewart v. Aug. Filed 2002. Cir.1984) F.2d (crediting finding VA disability and awarding ben-

efits). case, In this disability the VA’s

finding supported by several hundred

pages of medical records.7 The record is

fully and, developed giving great weight to

the VA disability rating, finding of dis-

ability is clearly required. Smolen, See Therefore,

F.3d at 1292. we hold that

McCartey throughout was disabled the rel-

evant period, and we reverse and remand

to the district court with instructions to

remand to payment the ALJ for of bene-

fits.

REVERSED and REMANDED. Gary WATTS; Ronald In re Yee Kathy

Kome Watts, Debtors, Appeals Council erred in its McCartey’s history determina- depression since tion that medical dated Sep- records after early history pro- 1990s. This is material and tember 1998 were immaterial because bative McCartey the fact that was disabled they documented medical treatment that oc- insured, his date last December curred after ALJ's decision. The treat- ment notes contained in these records record CA, Vista, Switzer, Jr.,

J. Edward appellant. CA, for Diego, Mahoney, San M. Brian appellees. PAEZ, and O’SCANNLAIN Before: KING, District and Judges, Circuit Judge.* OPINION PAEZ, Judge. Circuit creditor, Wolfson, judgment Phillip J. Appellate Panel’s Bankruptcy appeals (“BAP”) the cancellation affirming debtors Ronald lien on judgment of his Kathy Yee Kome Gary Watts’s “Debtors”) declared (collectively, Watts’s recorded time Wolfson At the homestead. the value judgment, his abstract homestead, lien Debtors’ preexisting exemption, the homestead together with of Debtors’ value the fair market exceeded court can property. real in an avoids lien judgment celed Wolfson’s U.S.C. proceeding pursuant anee 522(f) of Jones rationale § under the Jones), F.3d 923 Heskett Cir.1997). Jones, under California we held

In (“CCP”) Procedure of CM Code lien 704.950(c), judgment creditor’s homestead attach to a declared does not the home- equity exists unless records an creditor the time the stead at Jones, After two judgment. abstract rejected our in- appellate courts California 704.950(c) and con- terpretation * wai'i, designation. sitting by King, United Senior P. The Honorable Samuel of Ha- Judge for the District District States that a eluded creditor is entitled dence because there was no surplus equity surplus equity that accrues after the the residence when Wolfson recorded of judgment abstract light is recorded. abstract of judgment. Accordingly, intervening California authority, bankruptcy court canceled Wolfson’s § which the lien Supreme California Court under would The bankruptcy 522®. court, follow, however, we overrule Jones. Accord- likely expressed its disapproval result, we reverse ingly, and remand. explaining that it agreed with two subsequent appellate California court History I.Factual and Procedural Merrill, Smith v. opinions, 64 Cal.App.4th 94, 75 Cal.Rptr.2d 108 1994, (Ct.App.1998), In and Debtors a recorded declaration Wilkinson, Teaman v. homestead, Cal.App.4th $75,000 protected which 1259, 69 Cal.Rptr.2d 705 (Ct.App.1997), equity principal their residence from both of which disagreed with Jones’s in- 704.710(c) execution §§ creditors. CCP terpretation 704.950(c). of section homestead), 704.730(a). (defining 1995, In Wolfson recorded an abstract of judgment appeal, On the BAP agreed with the against Debtors’ property real court bankruptcy that it could “cast off $38,752.47. At the time Wolfson recorded imposed bonds by Jones.” The BAP judgment, abstract of the sum of the reasoned that. the California Supreme debt on the first deed of trust Court, and the which had not had the opportunity exemption homestead exceeded the fair to interpret 704.950(c), could con- market value of Thus, Debtors’ home. ceivably disagree with the California ap- in, surplus there was no equity at that pellate time to court rulings Smith and Tea- man. Accordingly, the BAP affirmed the satisfy the judgment. bankruptcy court’s ruling. When Debtors Chapter a filed 7 bank- ruptcy 1998, petition however, appeal This followed. there was time, equity. At that fair mar- II.Standard of Review ket $295,000 of the value was house the debt on the deed first of trust review We novo the BAP’s de. $188,000. Thus, $32,000 legal Murray v. Bammer there was conclusions. sur- Bammer), re plus equity 788, unencumbered F.3d the first Cir. 1997) (en banc). deed of trust and We also the homestead review de novo exemp- = decisions regarding decisis. Baker v. tion stare ($295,000 $188,000—$75,000 — Lines, Inc., Delta Air $32,000). Cir.1993). Debtors moved to avoid Wolf- son’s judgment lien in the bankruptcy III.Discussion 522(f).1 pursuant court § to 11 U.S.C. A. The Exemp- California Homestead

Following Jones’s interpretation of section Bankruptcy tion Federal Law 704.950(c),the court bankruptcy found that Wolfson’s lien had not attached Federal bankruptcy provide laws debt- and could never attach to Debtors’ resi- ors with exemptions, various which exclude 522(f)(1) (A) U.S.C. pertinent states in judicial a lien[.] part: 522(f)(2)(A) provides Section a formula .for may fixing A debtor extent, avoid the aof lien calculating any, to what if lien im- an interest of the property debtor in to the pairs ability exempt debtor's property impairs that such exemption extent lien the bankruptcy from estate. to which the debtor would have been enti- ..., tled if such lien is— (B.A.P. Cir.1996); property bankruptcy 667-68 9th see also certain fromthe es- (In Pladson), Say. tate. Kendallv.Pladsort re BankofAm.Nat'lTrust& Ass'nv. (9thCir.1994); Hanger(In Hanger), 35F.3d 11U.S.C. 217B.R. 594- 522(d). 522(b)(1), (B.A.P. Cir.1997)(holding § § Pursuant to 11 U.S.C. 95 9th that the opted bankruptcy California outofthefed- courtmustdeterminethe ex exemptions impairs. exemption eral emptions. and enactedits ownex- tenttowhicha lien only § 703.130; CCP Little v. andthat that amountmustbe avoid (In Reaves), ed). only inquiry

Reaves re 285F.3d 1155 We address the first (9thCir.2002). here. A Californiadebtorin must B. Attachmentof a JudicialLienon a exemptions electbetweentwosets of un DeclaredHomesteadUnderCalifor- applies law, der California onewhich to niaLaw generally ap debtors andthe otherwhich plies bankruptcy. Priorto ifa homeownerrecordeda to debtorsin CCP 703.140(a)~ California, § declarationofhomesteadin Californiahomestead Farrar v. McKown re exemptionprotected McKown), 203F.3d 1189 Cir. 2000). exemption Jones, the entirevalueofthe residence. Thehomestead available judgment judgment Thus, debtors, § 704.730, 106F.3dat 926. no lien to more CCP onlyoption generous exemption attach, could enforcehis anda creditor's than the judgment judicial applies bankruptcy, wasto seeka to debtors in id. property. 703.140(b)(1). prior filing 1982,however, § Here, saleofthe Id.In for bankruptcy, Legislature Debtorsrecordeda declara the California enactedtheEn- judgment Judgments Law, tion of homesteadavailableto forcementof CCP therebyentitling §~680.010-724.260, debtors, whichamendedthe Debtorsto a exemption, provisions. $75,000 homestead id. declaredhomestead Pursuant 704.730(a), judgment § 704.950, whichremainedeffectiveaf to section lienscould bankruptcypetition.2nowattachto declaredhomesteadsifthere ter filedtheir surplusequity in excessof the total filing bankruptcy, After Debt amountofliensandencumbrancesandthe sought pursuant judgment ors to avoidWolfson's exemption. homestead Section704.950 522(f) § lien ground to 11U.S.C. onthe provides pertinentpart: impaired that it their homestead (a)Except provided subdivision[] exemption. as To determinewhetheror to (c), judgment property judgment lienonreal whatextentWolfson's liencould doesnotattachto a declaredhome- 522(f) be avoidedunder becauseit im followingrequire- paired steadif bothof the Debtors'state-lawhomesteadex mentsaresatisfied: emption, bankruptcy apply (1) courthadto (1) describing A homesteaddeclaration Californialawto determinewhether the declaredhomesteadwas recorded prior Wolfson'slien attachedto Debtors'resi (2) dence, attached, to the timethe abstractor certi- and if the lien deter copy judgment fied ofthe wasrecorded mineunderfederal lawwheth judgment impaired tocreatethe lien. er or to what extentthe lien Debtors'homestead (2) exemption. Wiget The homesteaddeclarationnames See (In Nielsen), judgment spouse v.Nielsen re 197B.R. debtoror the "separate 1999); Wynns § 704.720; 2. Thereisalsoa anddistinct"auto- CCP seealso exemption, (In Wilson), matic, whichisnotrelevanthere.Katzv.Pike non-declaredhomestead Wilson re 90F'.3d 350 (Inye 1996). Cir. Pike,), (B.A.P. 243B.R. 6970 9thCir. judgment as a Commission, debtor declared Law Revision 16 Cal. L. Re homestead owner. (1982) (“Com vision Reports Comm’n

ment”). The Comment explained that judgment liens do not (c) attach to property A judgment lien attaches to a de- subject that is prior to a homestead decla clared homestead in the any amount of ration, but similar to the law over the total of the following: amendments, the 1982 a judgment (1) creditor All liens and encumbrances on the could reach any equity value in excess of declared homestead at the time the ab- the homestead exemption by levy of execu judgment stract of or certified copy Jones, tion on property. 106 F.3d at is recorded to create the specifically We noted the Com judgment hen. ment “was not revised to reflect the addi (2) exemption homestead set forth to;Section (c) tion of subdivision 704.950[.]” in Section 704.730.3 Id. Thus, (c) we concluded that subsection Jones, without the benefit of any Cali- was an “afterthought”-and that it “carve[d] fornia cases guide our interpretation of out a exception narrow to the general and 704.950(c), we addressed whether a long-standing California rule that judg judgment lien attach a could to declared ment liens do not attach to a declared homestead if there was no surplus equity homestead.” Id. Judge Ferguson dissent at the time the abstract judgment of ed for several of the reasons later adopted recorded. We held that a judgment credi- by the California appellate courts, dis (1) tor’s lien attaches only surplus if equity cussed below. at exists the time the creditor records the Jones, Under lien, Wolfson’s judgment (2) judgment, abstract of or the creditor by created recording the abstract of judg- on judgment, executes thereby creat- ment, did not and could never attach to ing a lien that two-year has a life. 106 Debtors’ residence because there was no Jones, Thus, F.3d at 927. under even if surplus equity when he recorded the ab- surplus equity accrues after a creditor rec- stract judgment. The only way that ords abstract judgment, judg- Wolfson could reach any surplus equity creditor, ment confronted with a bankrupt- would be to rerecord the of judg- abstract cy petition, is not any entitled to surplus ment when surplus equity accrued. equity. Jones,

We reasoned in After Jones that California Ap- Court of Califor Smith, nia exemption peal homestead Cal.Rptr.2d laws 75 111-13, were de at Teaman, signed to prevent individuals from losing Cal.Rptr.2d 707-09, at homes, their disagreed and thus the homestead with our interpretation laws of sec- should liberally 704.950(c), tion construed in holding favor of judgment a Id. at homesteaders. creditor is We re entitled to surplus equity that history viewed the legislative the 1982 accrues a declared homestead after an amendments to the homestead as abstract of judgment statutes is recorded.4 We n reflected the Comment of the California find Smith and Teaman persuasive.

3. The exemption homestead apply accrues, does not at or equity when Tea- child, judgment a lien family, spousal man, or Cal.Rptr.2d at issue 709—this need support. 704.950(b). §CCP not be undisputed resolved here because it is surplus equity had accrued the time Although appellate California courts dis- Thus, bankruptcy petition. Debtors filed their agreed judgment as to when lien attaches— approach, judgment under either lien whether it attaches the time at the abstract of would have attached that date. recorded, Smith, judgment is Cal.Rptr.2d rejected (Cal.1975)). According- Both California courts 541 P.2d interpretation ly, despite "exception Jones `s section for section 704.950(c), noting 704.950, provisions that it leads to an ano none of the of section requires judgment reasonably prevent malous result. It cred 704.950 can be read to "continually applying

itors to rerecord" their ab section 697.340 from to an in- judgment equity property." stracts of to ensure that their crease in in homestead surplus equity accrued, lien attaches if has Id. "cripple[s priority ] and it the doctrine of Teaman also relied Teaman, Cal.Rptr.2d of liens." at 708 704.800(a), provides which that homestead- (citing Jones, (Ferguson, 106 F.3d at 928 property may ed not be sold if there is no dissenting)). rerecording J. This continual surplus equity. attempts If a creditor judgment of an abstract of conflicts with judgment execute on his lien and the grants priority §CCP which to liens homestead is not sold because of lack of based on the date that are recorded. surplus equity, creditor must interpretation 704.950(c)by of section year attempting subject wait one before correctly the Smith and Teaman courts property judicial to another sale. CCP "giving greater significance avoids much 704.800(a). 704.800(a) Section demon- the act of recordation than what it was legislature's [if] designed provide strates the "intent that for-to notice." Jones v. judgment creditor['sl d[oes] Jones), ... lien Heskett 180 B.R. initially [us (B.A.P. Cir.1995), by Jones, attach because there no sur- 9th overrated plus equity judg- 106 F.3d 923. [his] when abstract of recorded," [i]s ment the creditor has later interpretation The California courts' opportunities equi- 704.950(c) to execute on the lien if section also follows from the ty develops. T~aman, Cal.Rptr.2d at statutory text. The clause "at the time the judgment abstract of is recorded" only "[aIll modifies liens and encum- Had the court here followed brances," any but not "the amount of sur- the rationale of Smith and Teaman in- plus." Thus, surplus equity may the Jones, stead of it would have concluded date, calculated at a later such as at the by that Wolfson's lien had attached the judgment bankrupt- time the debtor files a Chapter time Debtors filed their 7 bank- cy petition. Jones, (Fer- 106 F.3d at 928 ruptcy petition, and thus the lien could not guson, dissenting). J. have been avoided on this basis. We statutory provisions, adopt approach Two other CCP that here. 704.800(a), support §~ 697.340 and the We are bound to follow Smith interpretation Smith and Teaman of sec- convincing 704.950(c). Teaman, and Teaman absent evidence tion See 69 Cal. Supreme Rptr.2d pro- that the California Court would at 708-09. Section 697.340 reject interpretation that, "[eI]xcept provided of section vides as in Section 704.950(c)by 704.950," judgment these two courts. See Owen lien attaches to both States, present prop- ex rel. Owen v. United 713 F.2d and future interests in real (9th Cir.1983). erty. Thus, property 1464-65 In reexam a creditor can reach ining interpretation the debtor did not ov~n when the our of 704.950(c) light Teaman, recorded, of Smith and abstract of was such that, equity we conclude if confronted with the as future increases in the value of issue, Supreme property. (citing Kinney the California Court would real Id. v. Vat- lentyne, Cal.Rptr. 897, follow the rationale of Smith and Teaman 15 Cal.3d not the approach adopted that we in with court); appellate FDIC v. explained Jones. As we in Owen: McSweeney, 976 F.2d 535-36 Cir. 1992) by (explaining These recent decisions the California in the absence of an appeal courts of that have appeared intervening sub- California Supreme Court sequent to our Commercial Union deci- opinion concerning the relevant issue or an require sion us to reconsider proper appellate opinion court “at odds with” the interpretation §of 877. Our interpreta- prior Ninth Circuit opinion, the three- tion Commercial Union only judge panel was by “bound our deci binding any absence of subse- sions interpreting state as well as federal quent indication from the California law”). Accordingly, as in Stephan, 733 interpretation courts our was incor- F.2d at we overrule hold, Jones and rect. The recent decisions from the consistent with the intervening California of appeal courts light cast new on the law, case that a judgment creditor is enti question. the absence a pro- of tled to equity that accrues in a by highest nouncement court aof declared homestead after an abstract of state, the courts must federal follow judgment is recorded.5 decision appellate intermediate of REVERSED AND REMANDED. courts the state unless there is con- of vincing evidence highest that the court O’SCANNLAIN, Circuit Judge, would, the state decide differently. concurring in judgment: (internal Id. quotation marks and citations I find myself the perplexing position omitted) added) (emphasis (holding that being by bound a precedent counseling convincing evidence existed that the Cali- that I need not be bound a precedent. Supreme fornia Court would not follow Although there is much in the court’s appellate decisions); state Stephan courts’ fine opinion with agree which I entirely' Dowdle, .(9th Cir.1984) —I would quarrel have no with analysis its (concluding that an panel earlier California law were the issue one of first longer was “no binding ... and must be impression am profoundly troubled —I overruled” because the Arizona Court the notion reaching this result our had Appeals subsequently interpreted the “overruling,” as a three-judge panel, the relevant Arizona contrary); statute to the precedent set panel earlier in Jones Lewis, see also TwoRivers v. 174 F.3d v. Jones), (9th Heskett (9th 106 F.3d 923 Cir.1999) 996 (applying federal law Cir.1997). the decide issue in the case but explaining panel had the law, applied state it I would be bound by a state appellate court opinion that with an It is a conflicted earlier bedrock pan- principle of our court el opinion absent convincing evidence that the published that decision one three- the supreme state court would disagree judge panel binds every panel,1 other from we Because conclude that Wolfson's lien bound. yet Even when a is not attached, upon enforceable, remand the opinion court the pre- remains circuit extent, must determine to any, if what the lien cedent majority unless and until a judges impairs exemption the and banc, must be avoided vote to point take it en at may it which 522(f). Hanger, under 11 U.S.C. See 5.5(d); see, 217 not be cited. 9th Cir. Gen. Order B.R. at 594-95. e.g., (9th Cong., v. U.S. Newdow 292 F.3d 597 Cir.2002), judgment purportedly "stayed” by Indeed, three-judge panels (9th our are one-judge 2002) (No. bound order Cir. June litigants even 00-16423). before the themselves are the big to use panels our permit We also way, one Put another day forward.2

that is based the earlier when another; eraser pow- the overrule not may panel demonstrably has law that state on banc to the en confided is to overrule' er Herein intervening period. in the changed Pan- alone.3 court en banc court, the demonstrabil- proposition’s A the rub. lies they may question; distinguish; may els receptivity. on the audience’s ity depends other virtually any of the may deploy they panels our must we ask skeptical How But vocabulary. Shepard’s in the verbs the to exercise they urged are when be overrule. may not supervening of a light in to overrule power con- need not We exceptions. are There law? underlying change the Supreme court when en banc vene not act in mind, must panel a my To we Nor must directly. us reverses Court without be- precedent of our contravention Court, a case reviewing that when do so do so. authority to of its certain ing highly circuit, out props knocks another from easily obtained certainty is that And See, e.g., of our decisions. one under from here, change state when, alleged as Inc., Cos., F.2d Skaggs v. Le Vick rather than statu- case law from law comes Cir.1983); Label Co. v. (9th Piedmont tory law. Co., F.2d Packing Sun Garden has that a statute is state When it also, Cir.1979); (9th e.g., Circuit see simpler, is much question changed, the Stores, Najd, 294 F.3d Inc. City codifica- of formal age in this particularly Cir.2002) v. Rob- (noting that Duffield tion.4 Co., & Stephens ertson cases, longer no hunt we need In most implicitly over- Cir.1998), likely been has Califor- of the volumes through yellowing confi- ruled). represents our practice This laws; either state nia state session court, three-judge our dence, that aas statutory sec- has altered legislature be- tell difference are able panels decision, or it upon in the tion relied ruling rips that Court Supreme a tween has not. Federal Re- from our decisions one of at that leaves law, and one com- altogether pure porter case whether But with it also But statutory chad behind. judicial glosses hanging law least mon or the Su- difficult. We can law, confidence is more question represents our author- law an and to case ready to review certain state stands preme Court only (a law when it expression state necessary proposition itative us when reverse last resort.5 court of the state’s comes from think, which, required). no citation is I judges of this court specifically restricted pan- occasionally because backward: 2. And (and, exception, 28 U.S.C. see controlling one with any given case is el’s decision service). afterward, 26(c)(1), regular judges active § to in decision submitted others over but de- is first occasionally case submitted a the consoli- codification” refers to “Formal 4. second, necessitating the amendment or cided readily legislative enactments under of dation second but the case submitted of withdrawal an subject headings, than at- rather indexed 4.1(a). Gen. 9th Order first. See Cir. decided law the all substantive tempt to reduce circuit, court of common the en law to exclusion Although, this banc form of the code Weiss, authority the first in- A. The Enchantment exercises that law. Gunther of World, (cid:127) limited, eleven-judge panel rather the Law Common a stance is Codification 35-3, (2000). court, the & n. Cir. R. L. see 9th Yale X the full Int’l than is banc court made the en convene decision law is authorita- active, Certainty state case an by majority nonrecused a court's of law is at enduring expression of state tive and man- governing statute judges, as the circuit court last resort highest a 46(c); when state its R.App. § P. 35. Fed. dates. U.S.C. statute, than state’con- a rather construes banc court' is on en participation And Anything leaves room for less doubt—in- er can find persuasive one more than the cluding a decision an only by intermediate other a state hairsbreadth —the winner court, which, appellate though perhaps by a preponderance, but not clear and weightier authority than a trial court’s rul- convicing evidence. require Yet we “con- an ing, attorney general’s vincing opinion, or a evidence” before disregarding the learned pronouncement, commentator’s intermediate appellate court. Owen, inevitably less than conclusive. And it 713 F.2d at 1465. In this example, seems to me that where there neither is room for decision is weighty enough justi- doubt, stay fy we must our erasers. disregarding other. A panel of this court situation, confronted with this but

II blessed with prior, on-point Ninth Cir- For the contrary position, the court’s precedent, cuit would likely sigh with relief opinion primarily relies on Owen ex rel. and apply circuit, the law of the even if one States, Owen v. United 713 F.2d 1461 or both of the state postdated eases Cir.1983). at Supra, 1082-83. I do not earlier panel’s decision. The law in our disagree with the court’s discussion of court and those by our rulings bound re- Owen, Ibut find the reasoning of that case mains unchanged, predictable, un- reliable troubling. Owen relied our on cases re- til the highest state’s court tells us other- quiring that we “follow the decision of the wise. appellate intermediate courts of the state I believe this salutary predictability jus- unless is ‘compelling there evidence that tifies following circuit precedent even highest court of the state would decide when a state appellate intermediate court ” Otoen, differently.’ 713 F.2d at 1464 subsequently issues a contrary opinion. (quoting Phoenix, City Andrade v. knows, all, One never after when the other (9th Cir.1982) curiam)) F.2d (per shoe will drop and another state court will (internal omitted). quotation marks take opposite position. California Oiven court reasoned that because we dispersed maintains appel- intermediate must presumptively follow decisions of court, late with independent six districts. state appellate intermediate courts when Cal. Gov’t Code 69100. Are we to revis- questions

we decide impression, first we it rulings our each time the weight of must also revisit our decisions on the same (If authority shifts? the First District de- I basis. do think that the proposi- one A, holding cides on the Second and Third tion follows from the other. hand down holding year, not-A next

Consider a state with an intermediate Fourth, Fifth, and the weigh Sixth appeals court whose two divisions do not with holding A the following year, we will bind one another with their decisions. have to undertake three overrulings, with Suppose the two simultaneously divisions a fourth when the California Supreme opposite reach conclusions the identical not-A?) finally Court settles on outcome I question Suppose of law. further that the prefer keep would to a minimum the issue thorny is so and the two decisions so frequency with which we receive a new well-reasoned despite datum, the diametrical- revise our view state law accord- ly opposed outcomes, impartial the ingly, observ- and reverse ourselves. law, stitution or the (1989). common due to the cus- 132 possibility L.Ed.2d But that the tomary rule that stare strongly is most highest decisis the day state's court will one overrule applicable cases, see, statutory in construction itself not rulings any does make its extant less

e.g., Union, Patterson v. McLean Credit purposes, 491 authoritative for our if not his- the 164, 172-73, 2363, U.S. 109 S.Ct. 105 torians’. 1086 Roemer, v. 501 Chisom ry protection. our own from not ascertain we But Can Cf. 2354, L.Ed.2d 380, 400, 111 115 S.Ct. that this U.S. likely it is how law the

reading of (1991); Pipeline Constr. in Northern actually march will horribles of parade Co., 458 here, Line U.S. Pipe would so we v. Marathon To do Co. case? given any 2858, L.Ed.2d 598 panel’s 10, 102 the Jones S.Ct. 59 n. whether evaluate have to ill (1982) status line with California Our opinion). of (plurality out is so decision likely indeed, is the Fram Appeal of lawmaking; other Court no us to law that suits of that sort precisely it mak And is we would be it. that not adopt expectation to ers’ pre- of judicial indepen reexamination us our on-the-merits law secured ing leave to supposed we are that cedent place. in the first dence court.6 banc the en reassur provides crucial decisis Stare it point: demonstrates on the latter ance HI the more than represent our decisions that the mere argue certainly that could One concurring of the subjective preferences given not be opinion panel fact of should 78, at 471 No. The Federalist judges. all, the After weight. this near-conclusive Hamilton) (Clinton (Alexander ed. Rossiter two) (or at the who arrived judges three in 1961) (“To arbitrary discretion avoid may or question holding precedential courts, they that it is indispensable thorough benefit have had may not and rules by strict should bound down state pertinent in the immersion briefing, and point to define which serve precedents balanced break law, aor nutritious case that every particular duty out their Tennessee, 501 v. U.S. Payne fast. Cf. also, ”); e.g., them.... see comes before 115 L.Ed.2d 834, 111 S.Ct. Co., 157 & Trust Loan Pollock Farmers’ v. (“[WJhat J., (1991) (Scalia, concurring) 429, 652, L.Ed. 759 S.Ct. U.S. governing as the power enshrine would (“The (White, J., funda (1895) dissenting) that an is the notion this Court principle body is that judicial conception of mental with constitutional important which precedents hedged of one about support rational must inadequate plainly regard to on court without binding are that it the sole reason in place for be left members.”). In the of its personality votes.”) five once attracted . three-judge panels courts we appeals, our usual rule—and that is not But mast and rigorously to this bind ourselves particular is of decisis reason. Stare good us. court to release only the en banc allow are, af- courts. We federal importance and Ste that Owen I unfortunate find it do jurisdiction that all, courts of limited ter Dowdle, F.2d 642 Cir. phan lawmaking common general enjoy this rule. See 1984), from departed have do. And many state courts authority that supra at judges are not law- that federal fact have, must re- and I depart But fact from the that inextricable makers is they cannot be holdings, for spect those armoring that enjoy the constitutional we See, Spears v. e.g., as dicta. dismissed independence appointment our secures — Cir.2002) Stewart, tenure, (rather election), life and sala- than principles to ascertain way same .Erie-derived to reduce the add one I that should law, give precedential exer- also this difficult situation but we state must incidence publishing prece- the utmost restraint application cise law in federal effect our However, diversity cases. decisions in cases, dential prece- creating federal court thus some in cases like us tool is not available principles may law Erie dent state one, incorporates or law this where federal later undermine. apply We law. must with state intersects (Kozinski, J., concerning statement the de- banc) petitions

nial of for rehearing en

(“[S]o as the is long presented issue expressly

case and addressed in opin-

ion, that holding binding and cannot be or ignored by

overlooked later panels of

this court or by other courts of the cir-

cuit.”)- Nor have been overruled.

Thus, reluctantly applying the Owen

rule, I agree with the majority’s conclusion is no longer Jones viable and must be

rejected although, for the reasons de- — above, tailed I decline to use the term Accordingly,

“overruled.” I concur

judgment.

Hugo TORBET, Plaintiff-Appellant, AIRLINES, INC.;

UNITED Board

Airport Commissioners, City of Los

Angeles; Mike Edwards and Does 1

through 50, inclusive, Defendants-Ap

pellees.

No. 01-55319. States Appeals,

United Court of

Ninth Circuit.

Argued July Submitted Aug.

Filed

Case Details

Case Name: In Re Ronald Gary Watts in Re Yee Kome Kathy Watts, Debtors, Phillip J. Wolfson v. Ronald Gary Watts Yee Kome Kathy Watts

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Aug 6, 2002

Citation: 298 F.3d 1077

Docket Number: 00-55207

Court Abbreviation: 9th Cir.