# 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/8408010 ## 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 Scannlain - **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/8408010 ## 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 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. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8408010. Public record. Not legal advice.