Edward Allen White v. Wayne McGinnis

I concur in the conclusion reached by the majority insofar as it affirms the judgment of the district court in favor of the defendant. I write separately because, unlike my colleagues, I would not reach the merits of this appeal.

Appellant did not object to a bench trial in the district court. A majority of the active judges of this court voted to take this case en banc to determine whether the opinion in Palmer v. United States, 652 F.2d 893 (9th Cir.1981), was correctly decided. In Palmer, the majority reversed the judgment on the ground that the plaintiff was denied his right to a trial by…