# Miller v. Gammie > Court of Appeals for the Ninth Circuit · July 9, 2003 · 335 F.3d 889 URL: https://www.frixlaw.com/law-library/cases/8408009 ## Case - **Full name:** Christine L. MILLER, Guardian Ad Litem Tonnie Savage, Guardian Ad Litem v. Nancy GAMMIE Fran Zito, and Nevada Child And Family Services Department Nevada Child Welfare Division State of Nevada Volunteers of America of Nevada - **Court:** Court of Appeals for the Ninth Circuit - **Decided:** July 9, 2003 - **Citations:** 335 F.3d 889; 2003 WL 21540416 - **Precedential status:** Published - **Opinion:** Concurrence by Kozinski - **Judges:** Clifton, Fisher, Kozinski, McKeown, Nelson, Paez, Rymer, Scannlain, Schroeder, Tallman, Tashima - **Cited by:** 1,451 later opinions in the Frix Law Library ## Citator (automated) - **Red flag:** Overruled on other grounds by Sanchez v. Mayorkas, 593 U.S. 409 (2021). - Negative treatments: 3 - Distinguished by: 0 - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/8408009 ## How later opinions describe it (automated extraction) - 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… - 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 re… - 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 func… - holding that, where “the relevant court of last resort . . . undercut the theory or reasoning underlying the prior [Ninth C]ircuit precedent in such a way that the cases are clearly irreconcilable,” Ninth Circuit three- judge panels and district courts within the Ninth Circuit… ## Opinion text 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. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8408009. Public record. Not legal advice.