Gammie

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…

concurring:

Judge Tashima’s view in United States v. Johnson, 256 F.3d 895, 919 (9th Cir.2001) (Tashima, J., concurring), that some rulings of our court may simply be ignored as “dicta” has just flunked its first reality-check. When confronted with a legal issue *901 that is clearly presented to the en banc court, yet is not necessary to the resolution of the case — precisely what Judge Ta-shima called non-binding dicta in Johnson — Judge Tashima blinks. Now, we are told, there is ordinary non-binding dicta, and then there is “technically dicta” that is nonetheless binding. Judge Tashima’s Concurrence at 902. The latter type of dicta is binding because there is an exception for en banc courts that Judge Tashima previously neglected to mention.

But, as Judge Tashima is careful to note, the newly-conceived exception would not apply to all en banc decisions. (Johnson, after all, is itself an en banc case.) Instead, it would apply only when an en banc court exercises its “supervisory power” to “provid[e] guidance ho three-judge panels on important issues dealing with Ninth Circuit precedent,” id. at 904 , or when the guidance is “vital to the administration and development of the…

concurring:

I concur fully in Chief Judge Schroeder’s opinion. I write separately only to explain why, in my judgment, Part V.B of the opinion, entitled “Whether En Banc Review Was Required,” which, while technically dicta, is nonetheless authoritative and binding precedent for this circuit.

Part V.B’s discussion of the three-judge panel’s conclusion that it was bound by Babcock v. Tyler, 884 F.2d 497 (9th Cir.1989), and its guidance for future panels similarly faced with circuit precedent that has been undercut by later Supreme Court case law is unnecessary to the decision of this case and is, therefore, dicta. See Best Life Assurance Co. v. Comm’r, 281 F.3d 828, 834 (9th Cir.2002) (defining 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 ...’”) (quoting Black’s Law Dictionary 1100 (7th ed.1999)); Export Group v. Reef Indus., Inc., 54 F.3d 1466, 1472 (9th Cir.1995) (holding that statements were dicta where they “were not necessary to the decision”);’ see also United States v. Johnson, 256 F.3d 895, 919-21 (9th Cir.2001) (en banc) (Tashima, J.,…

Opinion by Chief Judge SCHROEDER; Concurrence by Judge KOZINSKI, Concurrence by Judge O’SCANNLAIN, Concurrence by Judge TASHIMA.

I. OVERVIEW

We took this case en banc to clarify the narrow scope of absolute immunity after Supreme Court decisions have taken an approach that is fundamentally inconsistent with the reasoning of our earlier circuit authority involving immunity for family-service social workers. Compare Babcock v. Tyler, 884 F.2d 497, 502-03 (9th Cir.1989), with Kalina v. Fletcher, 522 U.S. 118, 127-29 , 118 S.Ct. 502 , 139 L.Ed.2d 471 (1997), and Antoine v. Byers & Anderson, Inc., 508 U.S. 429, 432-37 , 113 S.Ct. 2167 , 124 L.Ed.2d 391 (1993).

The three-judge panel felt itself bound by Babcock and therefore held that the social worker and the therapist in this case enjoyed absolute rather than qualified immunity for all their actions “taken in connection with, and incident to, ongoing child dependency proceedings.” Miller v. Gammie, 292 F.3d 982, 989 (9th Cir.2002) (emphasis omitted) (quoting Babcock, 884 F.2d at 503 ). The Supreme Court adopted a different analysis in Antoine and Kalina^ however, that makes absolute immunity depend on the particular function…