Volker Keith Meinhold, Plaintiff-appellee, v. United States Department of Defense; United Statesdepartment of the Navy, Defendant-appellant, 131 F.3d 842 (9th Cir. 1997)

ORDER

Prior report: 123 F.3d 1275.

The opinion in the above-entitled case is amended as follows:

At slip opinion page 10792 [123 F.3d at 1280], first line of the citation after Philips v. Perry, there shall be added:

We do note that there is a great deal of dicta in both parts of the district court's opinion, dicta which were not relevant to the question before it as to whether Meinhold was entitled to attorney fees because of the Navy's interpretation of its regulation. Our opinion should not be read as expressing approval of these dicta. We note only that on the sole question before it the district court held that the Navy was not substantially justified in its interpretation of its phase of the case, Meinhold raised the argument that the Navy has taken a position from this early stage up to the decision of this court in Meinhold II that is contrary to the decision of the circuit court in Meinhold II that this interpretation of the regulation cannot be sustained.

KOZINSKI, Circuit Judge, Amended Dissent:

The dissent is amended at Slip Op. page 10794 [123 F.3d at 1281], paragraph 2, line 2, after "district court.", by inserting the following footnote (renumbering subsequent footnotes accordingly):

Paradoxically, the majority also repudiates the district court's reasoning. Maj. op. at 10792 [123 F.3d at 1280]. How one can defer to and, at the same time, reject the district court's reasoning is a lesson I missed in judges school.