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The Ninth Circuit's Dicta on Dictum
By Linda C. Klein
As attorneys, we know that “[w]hat is at stake in
distinguishing holding from dictum is that a dictum is not authoritative. It is the part of an opinion that a later
court, even if it is an inferior court, is free to reject.”[i] Dicta is often found
when “the passage was unnecessary to the outcome of the earlier case,” “the
passage was not an integral part of the earlier opinion,” or “the passage was
not grounded in the facts of the case.”[ii] “All these are reasons for thinking that a
particular passage was not a fully measured judicial pronouncement, that it was
not likely to be relied on by readers, and indeed that it [was] not . . . part
of the decision that resolved the case or controversy on which the court’s
jurisdiction depended (if a federal court),” and therefore should not bind
How can we know whether a court will deem a statement
binding precedent or dictum? Although
courts have given various verbal formulations for recognizing dictum, there is
no singular definition. Instead, “[l]ike obscenity,” courts seemingly “know it when they see it.”[iv] But not all Ninth Circuit judges see “dictum”
when looking at the same statement.[v]
For example, some Ninth Circuit judges define “dictum” as “a
statement made during the course of delivering a judicial opinion, but one that
is unnecessary to the decision in the case and therefore not precedential.”[vi] These judges point out that this definition
is the most widely accepted, and can be found in Black’s Law Dictionary, prior
Ninth Circuit panel decisions, and Supreme Court opinions.[vii] Moreover, as Article Three judges, they feel
that only their decisions on cases and controversies, rather than every
statement “that ends up in F.3d” constitutionally can be the law of the
circuit.[viii] Some of these judges make an exception,
however, for what would otherwise be dicta, if the unnecessary statements were
issued by an en banc court to “provide guidance to
Other judges have advocated abandoning the rule a that “a later panel is free to ignore statements in an
earlier opinion . . . if the later panel concludes that the earlier ruling is
not necessary to the result reached.”[x] These judges believe that defining dicta as
statements “not necessary to the court’s decision” is unworkable because
“judges often disagree about what is and is not necessary to the resolution of
a case.”[xi] In addition, such a definition introduces
“uncertainty into the law of [the] circuit” because “[p]anels often confront
cases raising multiple issues that could be dispositive” and “yet find it
appropriate to resolve several, in order to avoid repetition of errors on
remand or provide guidance for future cases” or “find it appropriate to offer
alternative rationales for the results they reach.”[xii] Rather than allow much of the law of the
circuit to be put in doubt, these judges would “hold, instead, that 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.”[xiii]
In Barapind, a
majority of the Ninth Circuit en banc panel endorsed this second, narrow
definition of dictum and correspondingly expansive definition of what
constitutes circuit law.[xiv] Despite this, a few three-judge panels have
continued to state that the definition of dictum remains unsettled.[xv] Pursuant to the definition adopted in Barapind, however, that case’s statement
about dictum is the law of the circuit.
In sum, it can be difficult to predict which statements a
court will deem dicta. The meaning of
“dictum,” like “obscenity,” depends on the relevant community’s standards,
which tend to change over time.[xvi] The community of the Ninth Circuit has
endorsed both broad and narrow views of “dictum,” with some recent opinions
suggesting that the court has been leaning towards a narrower interpretation of
the word. But because the standard is
subject to change, rather than assuming that we know dictum when we see it, we
may want to check current case law and authority to be sure that we understand
the operative standard in the court where we are practicing.
Linda C. Klein is a
litigation associate at Irell & Manella LLP. She received her doctor of jurisprudence from
UCLA Law School in 2009.
[i] United States v. Crawley,
837 F.2d 291, 292 (7th Cir. 1988).
[iv] Barapind v. Enomoto, 400 F.3d 744, 759
(9th Cir. 2005) (en banc) (per curiam) (Rymer, J., dissenting in part) (paraphrasing Jacobellis v. Ohio, 378 U.S. 184, 197
(1964) (Stewart, J., concurring), who made the statement to highlight the
ambiguity inherent in the test for obscenity announced in Roth v. United States, 354 U.S. 476 (1957), which the Court
clarified in Miller v. California,
413 U.S. 15 (1973)).
[v] See, e.g., id. at 750–51 (criticizing the court below
because it misidentified dicta and “operated under a mistaken understanding of
what constitutes circuit law”).
[vi] Miller v. Gammie, 335 F.3d 889, 902 (9th
Cir. 2003) (en banc) (Tashima, J., concurring) (internal quotation marks
omitted); see Barapind, 400 F.3d at
759 (Rymer, J., dissenting in part) (“I would stick with the traditional
understanding of dictum as a statement that is not necessary to the
[vii] Barapind, 400 F.3d at 759
(Rymer, J., dissenting in part).
[ix] Miller, 335 F.3d at 903 (Tashima, J.,
concurring); see Barapind, 400 F.3d
at 751 & n.8 (“Our opinion provides a supervisory function . . . by
instructing three-judge panels and district courts how to determine what law is
binding on them. It thus constitutes
authoritative circuit law.”).
[x] United States v. Johnson, 256 F.3d 895,
914 (9th Cir. 2001) (en banc) (Kozinski, J., concurring).
F.3d at 750–51 (When “an issue presented for review” is addressed by a
three-judge panel who “decided it in an opinion joined in relevant part by a
majority of the panel,” that articulation becomes the “law of the circuit,
regardless of whether it was in some technical sense ‘necessary’ to [the
panel’s] disposition of the case.” (footnote omitted)). Criticism of this opinion and a thoughtful
argument as to why “dictum” should be defined as “an assertion in a court’s
opinion of a proposition of law which does not explain why the court’s judgment
goes in favor of the winner” can be found in Judge Pierre N. Leval’s article, Judging under the Constitution: Dicta about
Dicta. 81 N.Y.U.
L. Rev. 1249, 1256 (2006).
[xv] See, e.g., Sanchez v. Mukasey, 521 F.3d 1106, 1110 (9th Cir. 2008), rev’d en
banc, 560 F.3d 1028 (9th Cir. 2009) (The Ninth Circuit has “used a number of
verbal formulations to describe ‘dictum.’”); Sosa v. DIRECTV, Inc., 437 F.3d 923, 928 n.3 (9th Cir. 2006)
(observing that there are multiple views “of the nature of dictum”).
[xvi] See Miller,
413 U.S. at 24 (Obscenity is judged by “the average person, applying
contemporary community standards” (internal quotation marks omitted)).
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