Following my previous post about the weight given to district judges sitting by designation, what do we make of judges from other circuits sitting by designation?
I was reminded of an opinion from the 9th Circuit, authored by Judge Cudahy, a 7th Circuit judge. In MetroPCS, Inc. v. City & Cnty. of San Francisco, Judge Cudahy adopted a more deferential interpretation of a provision of the Telecommunications Act, called the “least intrusive manner standard.”
In discussing precedents from other Circuits, Judge Cudahy had occasion to comment on the 7th Circuit’s prevailing law. He said it was “too exacting.”
On the other hand, the First and Seventh Circuit requirement that a provider demonstrate that its proposed facility is the only viable option seems too exacting.
In case you were wondering, the opinion he disagreed with was by Ripple, joined by Wood and Evans.
I wonder how common this is? That’s one way to dissent from your own circuit’s precedents—sit on the Ninth Circuit by designation.
Update: Will H. on FB notes that in McCoy v. Chase Manhattan Bank (CA9, 2009), Judge Cudahy, sitting by designation dissented, disagreeing with the First and Seventh Circuits. The case went up to the Supreme Court, and Justice Sotomayor reversed the 9th, agreeing with Cudahy. Cudahy FTW!