holding that a three-judge panel of this court is bound by prior circuit law unless “the reasoning or theory of [the] prior circuit authority is clearly irreconcilable with the reasoning or theory of intervening ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Lynn S. Adelman, United States District Judge for the Eastern District of Wisconsin, sitting by designation. 2 higher authority”
How later courts described this case
- holding that a three-judge panel of this court is bound by prior circuit law unless “the reasoning or theory of [the] prior circuit authority is clearly irreconcilable with the reasoning or theory of intervening ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Lynn S. Adelman, United States District Judge for the Eastern District of Wisconsin, sitting by designation. 2 higher authority”
- concluding, in response 12 to the question of “when, if ever, a district court . . . is free to reexamine the holding of a 13 prior [Ninth Circuit] panel in light of an inconsistent decision by a court of last resort on a 14 closely related, but not identical issue,” that “the relevant court of last resort must have 15 undercut the theory or reasoning underlying the prior circuit precedent in such a way that 16 the cases are clearly irreconcilable”
- concluding, in response to the question 5 of “when, if ever, a district court . . . is free to reexamine the holding of a prior [Ninth 6 Circuit] panel in light of an inconsistent decision by a court of last resort on a closely 7 related, but not identical issue,” that “the relevant court of last resort must have undercut 8 the theory or reasoning underlying the prior circuit precedent in such a way that the cases 9 are clearly irreconcilable”
- explaining that though § 1983 does not include a defense of immunity, “the Supreme Court has recognized that when Congress enacted § 1983, it was aware of a well-established and well-understood common-law tradition that extended absolute immunity to individuals performing functions necessary to the judicial process” (citing Forrester v. White, 484 U.S. 219, 225-26, 108 S.Ct. 538, 98 L.Ed.2d 555 (1988) (superseded by statute))
Written by the judges who cited it.
Later courts went against this
Overruled on other grounds by Sanchez v. Mayorkas, 593 U.S. 409 (2021)
335 F.3d 889, 896 (9th Cir. 2003) (en banc) (quoting Imbler, 424 U.S. at 431), overruled on other grounds, Sanchez v. Mayorkas, 141 S. Ct. 1809
Overruled on other grounds by Jose Hernandez v. Merrick Garland, 47 F.4th 908 (2022)
335 F.3d 889, 890, 893 (9th Cir. 2003) (en banc), overruled on different grounds as recognized in Hernandez v. Garland, 47 F. 4th 908, 910
Limited by Teamsters Local 617 Pension & Welfare Funds v. Apollo Group, Inc., 282 F.R.D. 216 (2012)
The Miller Court carefully limited its holding to “circumstances like those presented [t Viere [in ][.
The opinion
KOZINSKI, Circuit Judge,
concurring:
Judge Tashima’s view in United States v. Johnson, 256 F.3d 895, 919 (9th Cir.2001) (Tashima, J., concurring), that some rulings of our court may simply be ignored as “dicta” has just flunked its first reality-check. When confronted with a legal issue *901 that is clearly presented to the en banc court, yet is not necessary to the resolution of the case — precisely what Judge Ta-shima called non-binding dicta in Johnson — Judge Tashima blinks. Now, we are told, there is ordinary non-binding dicta, and then there is “technically dicta” that is nonetheless binding. Judge Tashima’s Concurrence at 902. The latter type of dicta is binding because there is an exception for en banc courts that Judge Tashima previously neglected to mention.
But, as Judge Tashima is careful to note, the newly-conceived exception would not apply to all en banc decisions. (Johnson, after all, is itself an en banc case.) Instead, it would apply only when an en banc court exercises its “supervisory power” to “provid[e] guidance ho three-judge panels on important issues dealing with Ninth Circuit precedent,” id. at 904 , or when the guidance is “vital to the administration and development of the law of the-circuit,” id. (internal quotation marks omitted).
As I explained before, Judge Tashima’s definition of dicta is unworkable because “judges often disagree about.what is and what is not necessary to the resolution of a case.” Johnson, 256 F.3d at 914 (Kozinski, J., concurring). Here, Judge Tashima goes one better. He would have judges and lawyers reading our en banc cases ask, not only whether a holding was necessary to the decision in some strict logical sense, but, also whether the en banc court was exercising some loosely defined “supervisory power” over three-judge panels, or over discrete issues “vital” to the circuit. Judge Tashima’s Concurrence at 903. These infinitely amorphous inquiries undermine the guidance litigants are entitled to expect from our en banc opinions. They demonstrate neatly why Judge Tashima’s regime is wholly unworkable.
Fortunately, Judge Tashima’s ruminations are only a historical curiosity, because my view that all legal questions presented to the court and expressly resolved by it are binding is now the law of the circuit. See Miranda B. v. Kitzhaber, 328 F.3d 1181, 1186 (9th Cir.2003) (per curiam) (“As we have noted before, ‘where a panel confronts an issue germane to the eventual resolution of the case, and resolves it after reasoned consideration in a published opinion, that ruling becomes the law of the circuit, regardless of whether, doing so is necessary in some strict logical sense.’ ” (quoting Johnson, 256 F.3d at 914 )). 1
. In discussing Miranda B., Judge Tashima adds yet another wrinkle to his hidebound theory. Tashima Concurrence at 903 n. 2. According to Judge Tashima, the portion of Miranda B. adopting my position in Johnson is itself dicta (and can be ignored) because Miranda B. failed to state explicitly it was relying on a concurrence rather than an opinion, though, such acknowledgment is implicit in its use of "noted,” rather than "held.” In any event, Miranda B. is an opinion and its ruling is no less binding because it didn’t conform exactly to Judge Tashima’s citation preferences. Judge Tashima’s theory is now so riddled with lesions and encrustations we can never be quite sure which portions of our case law are holdings and which dicta, unless and until the Oracle at Pasadelphi tells us.