noting that § 3553(e) and 35(b) were enacted together as part of the Anti-Drug Abuse Act of 1986, and further noting that "it is thus apparent that in drafting section 5K1.1 the [Sentencing] Commission intended that section to be read in pari materia with 18 U.S.C. § 3553(e) and Rule 35(b)”
How later courts described this case
- noting that § 3553(e) and 35(b) were enacted together as part of the Anti-Drug Abuse Act of 1986, and further noting that "it is thus apparent that in drafting section 5K1.1 the [Sentencing] Commission intended that section to be read in pari materia with 18 U.S.C. § 3553(e) and Rule 35(b)”
- stating that the “process of evaluating the extent and significance of a defendant’s ‘assistance in the investigation or prosecution of another person’ ” is the prosecutor’s decision
- rejecting a similar invitation by a defendant to parse the factor at issue under U.S.S.G. 5K1.1, and concluding that "the appropriate characterization of the factor is ... 'Substantial Assistance to Authorities,' simpliciter"
- applying the “legal maxim expressio unius est exclusio alterius (‘the mention of one thing implies the exclusion of another’),” while noting that it “is not always correct”
Written by the judges who cited it.
The opinion
KAREN LeCRAFT HENDERSON, Circuit Judge,
concurring;
I wholeheartedly agree with the majority’s holding which disposes of this case with clarity and in full accord with the decisions of courts, including ours, that have ruled on the issue. I write separately to register my concern about the process leading up to the en banc affirmance of the district court — which process, I am convinced, disregarded our established procedure and, far worse, failed to honor the bedrock principle of stare decisis. Let me explain.
The United States Supreme Court has repeatedly characterized stare decisis as “the preferred course because it promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process.” See, e.g., Hohn v. United States, 524 U.S. 236 , 118 S.Ct. 1969, 1977 , 141 L.Ed.2d 242 (1998) (quoting Payne v. Tennessee, 501 U.S. 808, 827 , 111 S.Ct. 2597 , 115 L.Ed.2d 720 (1991)). For this court, “[t]he doctrine of stare decisis ‘demands that we abide by a recent decision of one panel of this court unless the panel has withdrawn the opinion or the court en banc has overruled it.’ ” Department of Treasury v. FLRA, 862 F.2d 880, 882 (D.C.Cir.1988) (quoting Brewster v. Commissioner, 607 F.2d 1369, 1373 (D.C.Cir.1979)). Since at least the early 1980s, the court has from time to time used the “Irons footnote” to overrule a prior decision without a full-blown en banc rehearing. See Irons v. Diamond, 670 F.2d 265 , 268 n. 11 (D.C.Cir.1981). Under the Irons footnote procedure a panel decision departing from precedent is circulated to the full court for endorsement before issuance and issued with a footnote indicating the endorsement. Over the years, this court has invoked widely varying justifications for using the procedure, including to resolve conflicts in circuit law, 1 to expand or limit earlier de *146 cisions, 2 to reject “dicta” 3 or simply to overrule a decision deemed incorrect or outdated. 4 To impose some order on Irons footnote use, the court promulgated a “policy statement” in 1996 setting out specific circumstances “for which the court reaffirm[ed] the propriety of [the footnote’s] use,” among them when “overruling a more recent precedent which, due to an intervening Supreme Court decision, ... a panel is convinced is clearly an incorrect statement of current law.” Cf. Chemical Waste Management, Inc. v. United States Envtl. Agency, 873 F.2d 1477, 1481 (rejecting circuit precedent presuming that statutory reference to “hearing” requires formal adjudicatory procedure largely bécause of intervening holding in Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843 , 104 S.Ct. 2778 , 81 L.Ed.2d 694 (1984)). As the majority opinion notes, Maj. Op. at 144, the panel here explicitly acknowledged that its holding “contradicts our holding in [United States v. Ortez, 902 F.2d 61, 64 (D.C.Cir.1990) ] that district courts lack authority to consider substantial assistance absent a government motion,” In re Sealed Case, 149 F.3d 1198, 1204 (D.C.Cir.1998). While it did discuss, and then reject, Ottez, eon-eluding that “Koon effectively overrules that aspect of Ortez,” 149 F.3d at 1204 , it did so with no Irons footnote seeking en banc endorsement (based presumably on “an intervening Supreme Court decision” making Ortez “clearly an incorrect statement of current law”). Had the panel opinion been circulated to the full court with an Irons footnote, the opinion would not have been endorsed unanimously as required (as manifested by today’s lopsided vote to the contrary) and it could not have issued in the form it did. 5 The fact that we are correcting our course now does not, and should not, obscure what necessitated the correction.
Even worse, the panel made no mention of five more recent circuit opinions (at least two of which the government expressly relied on, see Panel Brief of Appel-lee at 7, 34), which, again as the majority notes, reached the same conclusion as Or-tez. See Maj. Op. at 131 & n. 4. See United States v. Dyce, 91 F.3d 1462, 1469 (D.C.Cir.1996) (“[T]he Sentencing Guidelines make specific provision [in U.S.S.G. § 5K1.1] for a downward departure where a defendant supplies substantial assistance to the Government, but only where the
*147 Government certifies to the district court that the help received has been of sufficient value to warrant the departure.”) (emphasis added); United States v. White, 71 F.3d 920 (D.C.Cir.1995) (holding that “in the absence of a government motion the district court has no authority to depart under section 5K1.1.”); United States v. Jones, 58 F.3d 688, 691 (D.C.Cir.1995) (“[T]he U.S. Attorney enjoys extraordinary power under section 5K1.1 because, by its terms, a motion of the Government is a prerequisite to the exercise of judicial discretion to depart below the Guidelines range.”) (citation omitted); United States v. Watson, 57 F.3d 1093, 1096-97 (D.C.Cir.1995) (“[I]t is well established that a court may not order a departure on the ground of the defendant’s assistance if the government does not so move under section 5K1.1.”) (citing Ortez, 902 F.2d at 64 ); United States v. Doe, 934 F.2d 353, 356-58 (D.C.Cir.1991) (holding that § 5Kl.l’s “government motion requirement” does not violate due process, thereby “adherpng] to prior intimations in our own precedent”) (citing Ortez). 6 With one sub silentio sweep, the panel reversed this substantial body of circuit authority. “Stare decisis” means “to stand by things decided.” Bryan A. Garner, A Dictionary of Modem Legal Usage 515 (1987). Its protection extends to Ortez as well as the five other cases decided by this court.
. See, e.g., Irons v. Diamond, 670 F.2d at 268 n. II; Lorionv. United States Nuclear Regula *146 tory Comm’n, 712 F.2d 1472 , 1479 (D.C.Cir. 1983).
. See, e.g., Londrigan v. FBI, 722 F.2d 840, 844-45 (D.C.Cir.1983) (purporting to "add to what was said”); United States v. Brawner, 32 F.3d 602, 603 (D.C.Cir.1994) ("limiting the scope”).
. See, e.g., United States Dep’t of Navy v. FLRA, 952 F.2d 1434, 1439 (D.C.Cir.1992); Chemical Waste Management, Inc. v. United States Envtl. Protection Agency, 873 F.2d 1477, 1482 (D.C.Cir.1989); Melcher v. Federal Open Market Committee, 836 F.2d 561, 563-64 (D.C.Cir.1987); Center for Science in Pub. Interest v. Regan, 802 F.2d 518, 524 (D.C.Cir.1986).
. See, e.g., Harbor Ins. Co. v. Schnabel Found. Co., Inc., 946 F.2d 930, 936 (D.C.Cir.1991) ("wrongly decided” opinion); United States v. Marble, 940 F.2d 1543, 1547 (D.C.Cir.1991) ("line of cases” that "ha[d] become a victim of the shifting sands of statute and case law”).
.I believe our Irons footnote procedure has serious flaws. It has evolved from an expedient device to reconcile inconsistent circuit holdings into a summary method of overruling unambiguous circuit precedent, without any of the safeguards or formalities attending the en banc process. A three-judge panel determines that full-court consideration is warranted and non-panel members concur without benefit of briefing or argument. The resulting decision is then announced by footnote. Reasoned decisionmaking and stare de-cisis call for a more deliberate process. If we wish to change our precedent, we should invoke the en banc mechanism expressly authorized for that purpose by the Federal Rules of Appellate Procedure. See Fed. R.App. P. 35. As long as the Irons footnote procedure exists, however, the least we should do is follow it. See, e.g., Byrd v. Reno, 180 F.3d 298 (D.C.Cir.1999).
. Nor did the panel note the decision of the United States Supreme Court, discussed at length in United States v. White, that stated:
''[The petitioner’s] position is consistent with the view, which we think is clearly correct, that in both [18 U.S.C.] § 3553(e) and § 5K1.1 the condition limiting the court’s authority gives the Government a power, not a duty, to file a motion when a defendant has substantially assisted.” Wade v. United States, 504 U.S. 181, 185 , 112 S.Ct. 1840 , 118 L.Ed.2d 524 (1992).