In another opinion from a divided Ninth Circuit panel last Friday, Judge Ronald Gould, joined by Judge Richard Paez, ruled (in Parker v. BNSF Railway Co.) that the district court applied the wrong legal standard when it determined that a railway company did not unlawfully fire an employee in retaliation for his refusal to violate a safety rule. Both Gould and Paez were appointed by Bill Clinton.
The dissent, which on a quick read strikes me as clearly correct, is scathing:
This is an easy appeal that warrants a short memorandum disposition [i.e., unpublished opinion] affirming the district court. The only question before us is whether the court’s factual findings are clearly erroneous; they are not. The majority opinion has distorted the case beyond recognition by misreading both the relevant statute and the district court’s decision and by telling the district court to redo exactly what it already did right. Moreover, the majority opinion’s mangling of the law will affect a wide range of retaliation cases. I respectfully but emphatically dissent….
[T]he [majority] opinion crafts a new, confusing, nonsensical, and unsupported legal standard and pointlessly remands for the district court to apply that bizarre standard….
[The majority’s] nebulous standard is wrong in so many ways, it is hard to know where to begin. Fundamentally, the majority opinion conflates the employee’s substantive burden with the employer’s affirmative defense.
I’m not going to dig deeper into the legal issue here. What I will instead highlight is that the dissenter is not one of the usual suspects: Daniel Collins, say, or Lawrence VanDyke. Indeed, the dissenter is not even an appointee of a Republican president. The dissenter is Judge Susan Graber, who like Gould and Paez was appointed by Clinton.
I have to wonder how Gould would go ahead and publish his majority opinion in the face of Graber’s withering dissent—and without making any effort to answer her criticisms. For whatever it’s worth, I used to have the impression that Gould was (along with Graber) among the more sensible of the Democratic appointees on the Ninth Circuit. But his performance in recent years has destroyed that impression.