Spears

*1005 Statement of

with whom Circuit Judges O’SCANNLAIN, T.G. NELSON, GRABER and TALLMAN join, concerning the denial of the petitions for rehearing en banc:

For the second time in eight months, judges of this court have advised the public and the other courts of this circuit to ignore portions of an opinion that commands a majority of the panel that decided it. See also United States v. Johnson, 256 F.3d 895, 921 (9th Cir.2001) (Tashima, J., concurring) (“Because they are, in fact, dicta, subsequent panels are not bound either by [the majority’s] self-proclaimed ‘holding’ or by [its] purported ‘overruling’ of our prior cases.”). For the reasons I explained in Johnson, 256 F.3d at 914-16 , this is a dangerous practice that will cause no end of confusion and disarray in our circuit caselaw.

Judge Reinhardt, like Judge Tashima in Johnson , argues that a portion of the majority opinion here is “dicta” or “unnecessary” or “an advisory opinion,” Dissent at 999, but adds flourishes of his own. See Dissent at 997 (the opinion “has no legal effect [and] should simply be ignored and allowed to die a quiet death”); id. at 998 (“neither we, nor any other court is bound by the panel’s…

REINHARDT, Circuit Judge, with whom Circuit Judges HAWKINS, THOMAS, and PAEZ join dissenting and with whom Circuit Judge TASHIMA joins except as to Part IV(as to which he withholds judgment); Circuit Judge RAWLINSON joins except as to Part JV.A; and Circuit Judges PREGERSON, WARDLAW, W. FLETCHER, FISHER, and BERZON join as to Parts I, II, & III:

Opinion by

ORDER

The opinion filed September 24, 2001, is amended as follows:

On slip opinion page 13530, footnote 2, change to:

On slip opinion page 13551: delete footnote 19.

On slip opinion page 13552, line 2: delete “substantially.”

With these amendments, the panel has voted to deny the petitions for panel rehearing. Judges Graber and McKeown have voted to deny the petitions for rehearing en banc, and Judge Hill has taken no position.

The full court was advised of the petitions for rehearing en banc. A judge of the court requested a vote on whether to rehear the matter en banc. The matter failed to receive a majority of the votes of the nonrecused active judges in favor of en banc consideration. Fed. R.App. P. 35.

The petitions for rehearing and petitions for rehearing en banc are DENIED.

The decision in this case is similar…