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to the judicial process” (citing Forrester v. White, 484 U.S. 219, 225-26, 108 S.Ct. 538, 98 L.Ed.2d 555 (1988) (superseded by statute))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
O’SCANNLAIN, Circuit Judge,
with whom Circuit Judge TALLMAN joins, concurring in part:
While I concur in the outcome reached by the majority today, I write separately to note my firm conviction that such an outcome was reachable only by way of en banc review. Thus, I cannot join the majority’s pronouncement in Part V.B, “Whether En Banc Review Was Required,” implying as it does that the three-judge panel in this case was free to disregard prior Ninth Circuit precedent.
We took this case en banc to determine whether our court’s holding in Babcock *902 was still good law. We have properly concluded that it is not. I am as comfortable with this court’s conclusion as I was uncomfortable when writing for the three-judge panel, see Miller, 292 F.3d at 990 (“Indeed, we are profoundly disturbed that persons acting in the name of the State of Nevada would place a known sexual predator into a home with two small children ... ”) (emphasis in original), but my conviction as to the ultimate rectitude of each decision flows from the same source: the clear authority of the en banc court to do what three-judge panels normally cannot— namely, overrule prior decisions of three-judge panels.
I do not believe that the Supreme Court’s intervening precedent — as set forth in cases such as Antoine and Kali-na — had so clearly undermined Babcock as to allow a three-judge panel to overrule it. The en banc court, however, is unencumbered by any obligation to follow the decision of a three-judge panel, and therefore is free to do what, in my view, the panel could not. I agree that recent Supreme Court precedent indicates that Babcock’s central holding had, at best, an uncertain future. Accordingly, I concur in all but Part V.B of the Court’s opinion.