FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MARCIA STEIN; RODOLFO BONE, 

Qui Tam Relators; ex rel. United 

States of America, 

Plaintiffs-Appellants, 

and 

UNITED STATES OF AMERICA, 

Plaintiff, 

 v. 

KAISER FOUNDATION HEALTH 

PLAN, INC., a California corporation; 

KAISER FOUNDATION 

HOSPITALS, a California 

corporation; KAISER FOUNDATION 

HEALTH PLAN OF COLORADO, A 

Colorado Corporation; KAISER 

FOUNDATION HEALTH PLAN OF 

GEORGIA, INC., a Georgia 

corporation; KAISER FOUNDATION 

HEALTH PLAN OF THE MIDATLANTIC STATES, INC., a 

Maryland corporation; KAISER 

No.22-15862 

D.C. Nos.

3:16-cv-05337-

EMC 

3:13-cv-03891-

EMC 

OPINION
2 STEIN V. KAISER FOUND. HEALTH PLAN, INC.

FOUNDATION HEALTH PLAN OF 

THE NORTHWEST, an Oregon 

corporation; KAISER FOUNDATION 

HEALTH PLAN OF WASHINGTON, 

a Washington corporation; 

PERMANENTE MEDICAL GROUP, 

INC., a California corporation; 

SOUTHERN CALIFORNIA 

PERMANENTE MEDICAL GROUP; 

COLORADO PERMANENTE 

MEDICAL GROUP, a Colorado 

corporation; SOUTHEAST 

PERMANENTE MEDICAL GROUP; 

HAWAII PERMANENTE MEDICAL 

GROUP; MID-ATLANTIC 

PERMANENTE MEDICAL GROUP; 

NORTHWEST PERMANENTE, P.C.; 

GROUP HEALTH PERMANENTE; 

KAISER PERMANENTE, 

Defendants-Appellees.

Appeal from the United States District Court

for the Northern District of California

Edward M. Chen, District Judge, Presiding

Submitted June 26, 2024*

Seattle, Washington

Filed September 24, 2024

* The panel unanimously concludes this case is suitable for decision 

without oral argument. See Fed. R. App. P. 34(a)(2).
STEIN V. KAISER FOUND. HEALTH PLAN, INC. 3

Before: Mary H. Murguia, Chief Judge, and Johnnie B. 

Rawlinson, Milan D. Smith, Jr., Jacqueline H. Nguyen, 

Bridget S. Bade, Kenneth K. Lee, Danielle J. Forrest, 

Patrick J. Bumatay, Gabriel P. Sanchez, Roopali H. Desai 

and Anthony D. Johnstone, Circuit Judges.

Opinion by Judge Forrest;

Concurrence by Judge Forrest

SUMMARY**

False Claims Act

Reversing in part the district court’s dismissal of an 

action under the False Claims Act for lack of jurisdiction 

under the Act’s first-to-file rule, the en banc court overruled 

circuit precedent, held that the first-to-file rule is not 

jurisdictional, and remanded to the three-judge panel for 

further proceedings. 

Plaintiffs sued various Kaiser-related entities alleging 

Medicare fraud. The district court dismissed the action as 

barred by the first-to-file rule, 31 U.S.C. § 3730(b)(5), 

because it related to earlier-filed pending actions against the 

same defendants or other Kaiser-related entities. The threejudge panel affirmed, applying circuit precedent that the 

first-to-file rule is jurisdictional. 

** This summary constitutes no part of the opinion of the court. It has 

been prepared by court staff for the convenience of the reader.
4 STEIN V. KAISER FOUND. HEALTH PLAN, INC.

Acknowledging a circuit split, the en banc court 

overruled United States ex rel. Hartpence v. Kinetic 

Concepts, Inc., 792 F.3d 1121 (9th Cir. 2015) (en banc), and 

United States ex rel. Hughes Aircraft Co., 243 F.3d 1181 

(9th Cir. 2001), and held that the first-to-file rule is not 

jurisdictional. Applying the Supreme Court’s more recent 

holding that a statutory bar is jurisdictional only if Congress 

clearly states that it is, the en banc court held that the firstto-file rule is not jurisdictional because § 3730(b)(5) does 

not use the term “jurisdiction” or include any other textual 

clue that points to jurisdiction, unlike other provisions in the 

False Claims Act that use explicitly jurisdictional language. 

Concurring, Judge Forrest, joined by Judge Bumatay, 

wrote that the court should discard its “dicta-is-binding” rule 

because this rule is burdensome and misguided. Judge 

Forrest wrote that in Hughes, the court labeled the first-tofile rule as jurisdictional with no explanation. Then, sitting 

en banc in Hartpence, the court cited Hughes and again 

summarily proclaimed that the first-to-file rule was 

jurisdictional. Judge Forrest wrote that the three-judge panel 

in this case should have been able to analyze the issue 

without constraint, rather than feeling duty bound to follow 

Hughes and Hartpence despite their tension with Supreme 

Court precedent.
STEIN V. KAISER FOUND. HEALTH PLAN, INC. 5

COUNSEL

William K. Hanagami (argued), Hanagami Law APC, 

Incline Village, Nevada; Abram J. Zinberg, The Zinberg 

Law Firm APC, Huntington Beach, California; for 

Plaintiffs-Appellants.

Shiwon Choe and Benjamin J. Wolinsky, Assistant United 

States Attorneys, United States Department of Justice, 

Office of the United States Attorney, San Francisco, 

California, for Plaintiff United States of America.

Dimitri D. Portnoi (argued), David M. Deaton, Stephen M. 

Sullivan, Caitlin M. Bair, and Kyle M. Grossman, 

O’Melveny & Myers LLP, San Francisco, California; K. Lee 

Blalack, II, O’Melveny & Myers LLP, Washington, D.C.; 

for Defendants-Appellees.

OPINION

FORREST, Circuit Judge:

Plaintiffs Marcia Stein and Rodolfo Bone brought a 

False Claims Act (FCA) action against various Kaiserrelated entities1 alleging Medicare fraud. The district court

dismissed plaintiffs’ lawsuit as barred by the FCA’s first-tofile rule because it “related” to earlier-filed, pending FCA 

actions against the same defendants named in this action or 

other Kaiser-related entities. See 31 U.S.C. § 3730(b)(5). A

three-judge panel of our court affirmed, applying our 

1 Kaiser is a trade name referring to a nationwide integrated healthcare 

provider consisting of Kaiser Health Plans, Permanente Medical Groups, 

and hospitals.
6 STEIN V. KAISER FOUND. HEALTH PLAN, INC.

precedent that the FCA’s first-to-file rule is jurisdictional.

Stein v. Kaiser Found. Health Plan, Inc., No. 22-15862, 

2024 WL 107099, at *1–2 (9th Cir. Jan. 10, 2024) (citing 

United States ex rel. Hartpence v. Kinetic Concepts, Inc., 

792 F.3d 1121 (9th Cir. 2015) (en banc)). We took this case 

en banc and now overrule this jurisdictional precedent. 

The FCA’s first-to-file rule states: “When a person 

brings an action under this subsection, no person other than 

the Government may intervene or bring a related action 

based on the facts underlying the pending action.” 31 U.S.C. 

§ 3730(b)(5). Two decades ago, we labeled this rule 

“jurisdictional” without any analysis. United States ex rel. 

Lujan v. Hughes Aircraft Co. (Hughes), 243 F.3d 1181, 

1186–87 (9th Cir. 2001). Then, sitting en banc in Hartpence, 

we cited Hughes and reiterated that we “treat the first-to-file 

bar as jurisdictional.” 792 F.3d at 1130. But we again 

neglected to provide any analysis. Simply put, the nature of 

the first-to-file rule was hardly part of our consideration of 

these cases. 

Since Hughes and Hartpence, the Supreme Court has 

repeatedly cautioned against the “profligate use of the term 

‘jurisdiction.’” Sebelius v. Auburn Reg’l Med. Ctr., 568 U.S. 

145, 153 (2013). Just last year, the Court again sought “to 

bring some discipline” to the overly expansive and 

“sometimes-loose use” of this term. MOAC Mall Holdings 

LLC v. Transform Holdco LLC, 598 U.S. 288, 298 (2023) 

(quoting Henderson ex rel. Henderson v. Shinseki, 562 U.S. 

428, 435 (2011)). The Court has instructed that a narrow rule

governs: A statutory bar is jurisdictional “only if Congress 

‘clearly states’ that it is.” Santos-Zacaria v. Garland, 598 

U.S. 411, 416 (2023) (quoting Boechler, P.C. v. Comm’r, 

596 U.S. 199, 203 (2022)); see also Auburn Reg’l Med. Ctr., 

568 U.S. at 153 (emphasizing the need for a “clear 
STEIN V. KAISER FOUND. HEALTH PLAN, INC. 7

statement” from Congress); Wilkins v. United States, 598 

U.S. 152, 156–59 (2023) (same).

Applying the Court’s clear-statement rule, we now

conclude that the FCA’s first-to-file rule is not jurisdictional. 

As a starting point, § 3730(b)(5) does not use the term 

“jurisdiction.” Rather, the text speaks only to who may bring 

an action and when. It says nothing about the “court’s 

adjudicatory authority.” Santos-Zacaria, 598 U.S. at 421. 

Nor does it include any other textual clue that points to 

jurisdiction. 

By contrast, other provisions in the FCA use explicitly

jurisdictional language. For example, § 3730(e) enumerates 

several different contexts in which “[n]o court shall have 

jurisdiction over an action brought under subsection (b),”

such as actions against members of the armed forces or 

against certain government officials in specified 

circumstances. 31 U.S.C. 3730(e). Likewise, § 3732—

which itself is titled False Claims Jurisdiction—identifies 

which judicial districts have jurisdiction over specific FCA 

actions and provides for supplemental federal jurisdiction 

over state claims. Id. § 3732(a)–(b).

“Where Congress includes particular language in one 

section of a statute but omits it in another section of the same 

Act, it is generally presumed that Congress acts intentionally

and purposely in the disparate inclusion or exclusion.”

Kucana v. Holder, 558 U.S. 233, 249 (2010) (alteration 

omitted) (quoting Nken v. Holder, 556 U.S. 418, 430 

(2009)). That is particularly true here, where all the 

provisions referenced were added in 1986 as part of an 

overhaul of the FCA. False Claims Amendments Act of 

1986, Pub. L. No. 99-562, §§ 3, 6, 100 Stat. 3153, 3155,

3157, 3158. Because Congress used different terms, we 
8 STEIN V. KAISER FOUND. HEALTH PLAN, INC.

presume different intents, especially when those differences 

show up in provisions “enacted as part of a unified overhaul 

of judicial review procedures.” Nken, 556 U.S. at 431. 

Four of our sister circuits agree that the FCA’s first-tofile rule is not jurisdictional. See United States ex rel. Bryant 

v. Cmty. Health Sys., Inc., 24 F.4th 1024, 1036 (6th Cir. 

2022); United States v. Millenium Lab’ys, Inc., 923 F.3d 

240, 248–51 (1st Cir. 2019); United States ex rel. Hayes v. 

Allstate Ins. Co., 853 F.3d 80, 85–86 (2d Cir. 2017) (per 

curiam); United States ex rel. Heath v. AT&T, Inc., 791 F.3d 

112, 119–21 (D.C. Cir. 2015). Notably, the First and Sixth 

Circuits previously held that this rule was jurisdictional, but 

reversed course as the Court’s clear-statement rule 

developed. See Millenium Lab’ys, 923 F.3d at 248–51

(explaining that Kellogg Brown & Root Servs., Inc. v. United 

States ex rel. Carter, 575 U.S. 650 (2015), casts doubt on the

prior holding that the rule was jurisdictional by 

“‘address[ing] . . . the first-to-file bar on decidedly 

nonjurisdictional terms’” (quoting Heath, 791 F.3d at 121 

n.4)); Bryant, 24 F.4th at 1036 (same).

Three other circuits have held that the first-to-file rule is 

jurisdictional. See United States ex rel. Carter v. Halliburton 

Co., 866 F.3d 199, 203 (4th Cir. 2017); United States ex rel. 

Branch Consultants v. Allstate Ins. Co., 560 F.3d 371, 376 

(5th Cir. 2009); Grynberg v. Koch Gateway Pipeline Co., 

390 F.3d 1276, 1278 (10th Cir. 2004). However, like Hughes

and Hartpence, these cases predate the Supreme Court’s 

reinvigoration of the clear-statement rule and did not engage 

in any independent analysis of the jurisdictional question. In 

fact, the Tenth Circuit relied exclusively on our bare 

assertion in Hughes. See Grynberg, 390 F.3d at 1278. 

Therefore, the circuit split, which exists no matter what we 

do today, does not give us pause. We conclude there simply 
STEIN V. KAISER FOUND. HEALTH PLAN, INC. 9

is no meaningful authority supporting the conclusion that the 

FCA’s first-to-file rule is jurisdictional. 

When our law is wrong, it is our duty to correct it. This 

case brings to light an error in our caselaw. All we do today 

as an en banc court is bring ourselves in line with current 

Supreme Court doctrine. We REVERSE IN PART the 

district court’s holding that it lacked jurisdiction over 

plaintiffs’ case under the FCA’s first-to-file rule, and we 

REMAND to the three-judge panel of this court for further 

proceedings consistent with this opinion.

FORREST, Circuit Judge, concurring, with whom 

BUMATAY, Circuit Judge, joins:

Overruling bad law is good but getting it right in the first 

place is better. This case demonstrates that our dicta-isbinding rule is burdensome and misguided. See Barapind v. 

Enomoto, 400 F.3d 744, 750–51 (9th Cir. 2005) (en banc) 

(per curiam). But even more troubling, it lacks legal 

foundation. We should discard it because it causes 

unnecessary inefficiency and wastes resources, as it did here, 

and because it is contrary to the common-law tradition of 

judging, the jurisprudence of the Supreme Court and every 

other circuit court in the nation, and the Constitution. 

I.

We established that the False Claims Act’s (FCA) firstto-file rule, 31 U.S.C. § 3730(b)(5), is jurisdictional 

seemingly without care or thought. First, in United States ex 

rel. Lujan v. Hughes Aircraft Co. (Hughes), 243 F.3d 1181, 

1186–87 (9th Cir. 2001), we labeled this rule “jurisdictional” 

with no explanation. Then, sitting en banc over a decade 
10 STEIN V. KAISER FOUND. HEALTH PLAN, INC.

later, we cited Hughes and again summarily proclaimed that 

we “treat the first-to-file bar as jurisdictional.” United States 

ex rel. Hartpence v. Kinetic Concepts, Inc., 792 F.3d 1121, 

1130 (9th Cir. 2015) (en banc). In neither case did we 

analyze the jurisdictional question. In every other circuit, a 

future three-judge panel could have analyzed this issue 

without constraint. But not here. The three-judge panel in 

this case felt duty bound to apply our prior pronouncement 

despite its tension with Supreme Court precedent, and the en 

banc court had to convene to tidy up the law. 

II.

As appellate judges, we show our work. We give reasons 

to explain our decisions. Still, we are not “freakishly austere 

mouthpiece[s] of the law.” Neil Duxbury, The Intricacies of 

Dicta and Dissent 4 (2021). Sometimes, in explaining a 

decision, we digress. Id. Enter dicta. Shorthand for obiter 

dictum—Latin for “a remark by the way”—dictum is “an 

observation or remark made by a judge in pronouncing an 

opinion upon a cause, concerning some rule, principle, or 

application of law, or the solution of a question suggested by 

the case at bar, but not necessarily involved in the case or 

essential to its determination.” Dictum, Black’s Law 

Dictionary (1st ed. 1891). Put another way, as explained in 

1854, dicta are simply “judicial opinions expressed by the 

judges on points that do not necessarily arise in the case.” 

Dictum (Obiter Dictum or Dicta), Bouvier Law Dictionary

(2012).

Dicta have been non-binding for centuries. In 1617, Sir 

Francis Bacon declared dicta “the vapours and fumes of 

law.” Francis Bacon, The Lord Keeper’s Speech in the 

Exchequer, in 2 The Works of Francis Bacon 478 (B. 

Montagu ed., 1887). As early as 1808, the U.S. Supreme 
STEIN V. KAISER FOUND. HEALTH PLAN, INC. 11

Court noted that a lower court was bound by a statement that 

“was not a mere dictum, but the very ground of [another] 

court’s decision,” Alexandria v. Patten, 8 U.S. (4 Cranch) 

317, 319 (1808), and cautioned that “[i]t is extremely 

dangerous to take general dicta upon supposed cases not 

considered in all their bearings, and, at best, inexplicitly 

stated as establishing important law principles,” Alexander 

v. Balt. Ins. Co., 8 U.S. (4 Cranch) 370, 379 (1808). A decade 

later, Chief Justice Marshall offered the Court’s most 

thorough—and most cited—early treatment of dicta:

It is a maxim not to be disregarded, that 

general expressions, in every opinion, are to 

be taken in connection with the case in which 

those expressions are used. If they go beyond 

the case, they may be respected, but ought not 

to control the judgment in a subsequent suit 

when the very point is presented for decision. 

The reason of this maxim is obvious. The 

question actually before the Court is 

investigated with care, and considered in its 

full extent. Other principles which may serve 

to illustrate it, are considered in their relation 

to the case decided, but their possible bearing 

on all other cases is seldom completely 

investigated.

Cohens v. Virgina, 19 U.S. (6 Wheat.) 264, 399–400 (1821)

(emphasis added). 

The principle that dicta are non-binding is rooted in the 

common law. In Caroll v. Lessee of Caroll, the Court 

explained that “this court and other courts organized under 

the common law, has never held itself bound by any part of 
12 STEIN V. KAISER FOUND. HEALTH PLAN, INC.

an opinion, in any case, which was not needful to the 

ascertainment of the right or title in question between the 

parties.” 57 U.S. (16 How.) 275, 287 (1854). Just this term, 

Justice Gorsuch elaborated on this history: 

[C]ourts had to be careful not to treat every 

“hasty expression . . . as a serious and 

deliberate opinion.” Steel v. Houghton, 1 Bl. 

H. 51, 53, 126 Eng. Rep. 32, 33 (C. P. 1788). 

To do so would work an “injustice to [the] 

memory” of their predecessors who could not 

expect judicial remarks issued in one context 

to apply perfectly in others, perhaps 

especially ones they could not foresee. Ibid.

Also, the limits of the adversarial process, a 

distinctive feature of English law, had to be 

borne in mind. When a single judge or a small 

panel reached a decision in a case, they did so 

based on the factual record and legal 

arguments the parties at hand have chosen to 

develop. Attuned to those constraints, future 

judges had to proceed with an open mind to 

the possibility that different facts and 

different legal arguments might dictate 

different outcomes in later disputes. 

Loper Bright Enters. v. Raimondo, 144 S. Ct. 2244, 2277 

(2024) (Gorsuch, J., concurring). All of this is to say, our 

legal tradition is clear: dicta are persuasive and informative; 

they are not binding. 
STEIN V. KAISER FOUND. HEALTH PLAN, INC. 13

III.

The modern Supreme Court maintains this traditional 

view of dicta. See, e.g., NCAA v. Alston, 594 U.S. 69, 93 

(2021) (“aside” and “stray comments” are not binding); id. 

at 108 (Kavanaugh, J., concurring) (“The Court makes clear 

that the decades-old ‘stray-comments’ . . . were dicta and 

have no bearing on [the current case].”); Ohio v. Clark, 576 

U.S. 237, 253 (2015) (Scalia, J., concurring in the judgment) 

(“[S]nide detractions do no harm; they are just indications of 

motive. Dicta on legal points, however, can do harm, 

because though they are not binding they can mislead.”); S. 

Union Co. v. United States, 567 U.S. 343, 352 n.5 (2012) 

(“In any event, our statement in [a previous case] was 

unnecessary to the judgment and is not binding.”); Cent. Va. 

Cmty. Coll. v. Katz, 546 U.S. 356, 363 (2006) (“For the 

reasons stated by Chief Justice Marshall in Cohens v. 

Virginia, we are not bound to follow our dicta in a prior case 

in which the point now at issue was not fully debated.” 

(citation omitted)); Jama v. ICE, 543 U.S. 335, 351 n.12 

(2005) (“Dictum settles nothing, even in the court that utters 

it.”).

And in line with the Supreme Court, every other circuit 

court also treats dicta as persuasive but not precedential. See, 

e.g., Sexual Minorities Uganda v. Lively, 899 F.3d 24, 35 n.6 

(1st Cir. 2018) (“[T]he suggestion is dictum and, as such, 

lacks any binding effect.”); Jimenez v. Walker, 458 F.3d 130, 

142 (2d Cir. 2006) (“[D]icta are not and cannot be binding.” 

(alteration, internal quotation mark, and citation omitted)); 

United States v. Mallory, 765 F.3d 373, 381 (3d Cir. 2014) 

(“[I]t is well established that a subsequent panel is not bound 

by dictum in an earlier opinion.” (internal quotation marks 

and citation omitted)); Payne v. Taslimi, 998 F.3d 648, 654 

(4th Cir. 2021) (“[W]e also recognize that dictum is not 
14 STEIN V. KAISER FOUND. HEALTH PLAN, INC.

binding.”); Knight v. Kirby Offshore Marine Pac., L.L.C., 

983 F.3d 172, 177 (5th Cir. 2020) (“[T]he statement . . . is 

dictum and concomitantly, not binding precedent.”); Wright 

v. Spaulding, 939 F.3d 695, 700 (6th Cir. 2019) (“Like most 

circuits, this circuit follows the rule that the holding of a 

published panel opinion binds all later panels unless 

overruled or abrogated en banc or by the Supreme Court. But 

only holdings are binding, not dicta.”); Ricci v. Salzman, 976 

F.3d 768, 773 (7th Cir. 2020) (“And dicta it was, so we are 

free to depart from it.”); Sanzone v. Mercy Health, 954 F.3d 

1031, 1039 (8th Cir. 2020) (“[W]e need not follow dicta.” 

(citation omitted)); United States v. Titties, 852 F.3d 1257, 

1273 (10th Cir. 2017) (“[A] panel of this Court is bound by 

a holding of a prior panel of this Court but is not bound by a 

prior panel’s dicta.” (citation omitted)); Welch v. United 

States, 958 F.3d 1093, 1098 (11th Cir. 2020) (“[O]ur 

discussion . . . was dicta, and it is not binding.”); Doe v. Fed. 

Democratic Republic of Eth., 851 F.3d 7, 10 (D.C. Cir. 2017) 

(“[B]inding circuit law comes only from the holdings of a 

prior panel, not from its dicta.” (citation omitted)); Curver 

Lux., SARL v. Home Expressions Inc., 938 F.3d 1334, 1342 

(Fed. Cir. 2019) (“[T]he statement [in a prior case] is dictum 

and thus not binding.”).

Across the board, federal courts define dicta as aspects 

of an opinion not necessary to the determination of the legal 

questions presented. See, e.g., Sarnoff v. Am. Home Prods. 

Corp., 798 F.2d 1075, 1084 (7th Cir. 1986) (“A dictum is a 

statement in a judicial opinion that could have been deleted 

without seriously impairing the analytical foundations of the 

holding—that, being peripheral, may not have received the 

full and careful consideration of the court that uttered it.”), 

abrogation on other grounds by Hart v. Schering-Plough 

Corp., 254 F.3d 272 (7th Cir. 2001); Mallory, 765 F.3d at 
STEIN V. KAISER FOUND. HEALTH PLAN, INC. 15

381 (same); Payne, 998 F.3d at 654–55 (same); United States 

v. Segura, 747 F.3d 323, 328 (5th Cir. 2014) (adopting the 

Sarnoff definition of dictum and clarifying that “[a] 

statement is not dictum if it is necessary to the results or 

constitutes an explication of the governing rules of law.” 

(citation omitted)); Arcam Pharm. Corp. v. Faria, 513 F.3d 

1, 3 (1st Cir. 2007) (“[Dictum] ‘comprises observations in a 

judicial opinion or order that are not essential to the 

determination of the legal question then before the court.’” 

(quoting Municipality of San Juan v. Rullan, 318 F.3d 26, 29 

n.3 (1st Cir. 2003))); Jimenez, 458 F.3d at 142 (“Holdings—

what is necessary to a decision—are binding. Dicta—no 

matter how strong or how characterized—are not.” (citation 

omitted)); United States v. McMurray, 653 F.3d 367, 375–76 

(6th Cir. 2011) (“Because the statement . . . was not 

necessary to the outcome in that case, it is dicta that is not 

binding.” (internal quotation marks and citation omitted)), 

abrogated on other grounds by United States v. Verwiebe, 

874 F.3d 258, 261 (6th Cir. 2017); Sanzone, 954 F.3d at 1039 

(“Dicta is ‘a judicial comment made while delivering a 

judicial opinion, but one that is unnecessary to the decision 

in the case and therefore not precedential.’” (alterations 

omitted) (quoting Passmore v. Astrue, 533 F.3d 658, 661 (8th 

Cir. 2008))); Kan. Nat. Res. Coal. v. U.S. Dep’t of Interior, 

971 F.3d 1222, 1256 (10th Cir. 2020) (Lucero, J., dissenting) 

(“[A] statement is dicta and not binding on a future court if 

it is ‘unnecessary to the outcome of the earlier case and 

therefore perhaps not as fully considered as it would have 

been if it were essential to the outcome.’” (quoting ExbyStolley v. Bd. of County Comm’rs, 906 F.3d 900, 912 (10th 

Cir. 2018), vacated on reh’g, 979 F.3d 784 (10th Cir. 2020) 

(en banc))); United States v. Kaley, 579 F.3d 1246, 1253 n.10 

(11th Cir. 2009) (“[D]icta is defined as those portions of an 
16 STEIN V. KAISER FOUND. HEALTH PLAN, INC.

opinion that are ‘not necessary to deciding the case then 

before us.’ Conversely, the holding of a case is . . . comprised 

both of the result of the case and those portions of the 

opinion necessary to that result by which we are bound.” 

(citations omitted) (quoting United States v. Eggersdorf, 126 

F.3d 1318, 1322 n.4 (11th Cir. 1997))); Gersman v. Grp. 

Health Ass’n, 975 F.2d 886, 897 (D.C. Cir. 1992) (“[Analysis 

that] is not determinative of the result . . . must be deemed 

not a holding, but rather a dictum . . . .”); Curver Lux., SARL, 

938 F.3d at 1342 (“[T]he statement . . . was unnecessary to 

reach [the] holding” and therefore “is dictum.”). 

IV.

We stand out like a flamingo in a flock of finches in 

treating dicta as binding. But it was not always so. For most 

of our history, we subscribed to the traditional approach. See, 

e.g., Exp. Grp. v. Reef Indus., Inc., 54 F.3d 1466, 1472–73 

(9th Cir. 1995); Sanders v. City of San Diego, 93 F.3d 1423, 

1432 (9th Cir. 1996). And the most fascinating part of our 

current practice is how it happened. 

In United States v. Johnson, the en banc court fractured 

in a Fourth Amendment search-warrant case. 256 F.3d 895, 

897–98 (9th Cir. 2001). One six-judge majority concluded 

the officers did not have probable cause, id. at 898–909 

(Ferguson, J.), another six-judge majority separately 

addressed curtilage, id. at 909–19 (Kozinski, J.), and four 

judges concurred, id. at 919–21 (Tashima, J., concurring); id. 

at 921–22 (Gould, J., joined by Berzon, J., concurring); id. 

at 922 (Paez, J., concurring). Neither majority writing is 

styled as a concurrence; they are presented as two parts of a 

per curiam opinion. 

The understanding of dicta took an unprecedented turn 

in the curtilage majority’s writing. Responding to a 
STEIN V. KAISER FOUND. HEALTH PLAN, INC. 17

concurrence suggesting that the discussion of curtilage was 

unnecessary—and, accordingly, not binding—the curtilage 

writing declared: “We hold . . . 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.” Id. at 914 (Kozinski, J.). It continued, “[w]here . . . it 

is clear that a majority of the panel has focused on the legal 

issue presented by the case before it and made a deliberate 

decision to resolve the issue, that ruling becomes law of the 

circuit and can only be overturned by an en banc court or by 

the Supreme Court.” Id. at 915–16. 

Irony upon irony, this pronouncement about dicta was, 

itself, dictum. See id. at 920 (Tashima J., concurring); id. at 

922 (Gould, J., concurring). But the new dicta-is-binding 

approach was problematic for other reasons. The issue of 

dicta was never briefed, argued, or conferenced. Id. at 921. 

Moreover, the curtilage writing failed to fully consider the 

implications of the new pronouncement in light of the 

common-law tradition, Supreme Court precedent, and 

Article III. In fact, authoritative precedent is notably absent 

from the analysis. The two out-of-circuit opinions that were 

cited do not support the dicta-is-binding rule. The first case, 

United States v. Crawley, was anchored in the rule that 

“dictum is not authoritative.” 837 F.2d 291, 292 (7th Cir. 

1988). There, Judge Posner merely promoted alternative 

considerations for determining whether something is—or is 

not—dicta. Id. at 292–93. The second case, United States v. 

Oshatz, simply stated that appellate guidance about some 

aspects of trial court procedure is in a limited category of 

statements that, even if dicta, should not be disregarded. 912 

F.2d 534, 540–41 (2d Cir. 1990). Oshatz is a slight nuance in 
18 STEIN V. KAISER FOUND. HEALTH PLAN, INC.

the Second Circuit’s otherwise traditional view of dicta. See, 

e.g., Dr.’s Assocs. v. Distajo, 66 F.3d 438, 452 (2d Cir. 1995) 

(distinguishing a previous Second Circuit case as dicta). 

And there was one other problem: only four judges 

joined the dicta-is-binding discussion. Johnson, 256 F.3d at 

909, 914; see also id. at 921–22 (Gould, J., concurring). 

That’s right—not even the entire curtilage majority joined 

this fundamental reshaping of a longstanding and otherwise 

universally accepted rule. Four judges started us on this path. 

So, the dicta-is-binding rule did not have the numbers to 

be real law. And yet, it quickly begat progeny. Some panels 

adopted Johnson’s dicta-is-binding pronouncement, 

mischaracterizing it as a rule established by the en banc 

court, see, e.g., Miranda B. v. Kitzhaber, 328 F.3d 1181, 1186 

(9th Cir. 2003) (per curiam), whereas others simply cited it 

as a concurrence, see, e.g., Cetacean Cmty. v. Bush, 386 F.3d 

1169, 1173 (9th Cir. 2004). Then, fait accompli, less than 

four years after Johnson, an actual en banc majority held that 

an articulation of the law in an opinion, whether necessary 

or not, becomes the law of the circuit. See Barapind, 400 

F.3d at 750–51 (relying on the authority of Cetacean 

Community, Miranda B., and the four-judge pronouncement 

in Johnson). 

The stated rationale for the dicta-is-binding rule was to 

provide certainty about what constitutes the law of the circuit 

and not have future panels, lower courts, and litigants 

struggling to figure out what was necessary to the holding 

and what was extraneous and non-binding. Johnson, 256 

F.3d at 914–15; see also Barapind, 400 F.3d at 751 n.8 

(characterizing the rule as an exercise of our “supervisory 

function . . . [to] instruct[] three-judge panels and district 

courts about how to determine what law is binding on 
STEIN V. KAISER FOUND. HEALTH PLAN, INC. 19

them”). A laudable objective, for sure. But it was 

undermined immediately. Apparently having some 

reservation about the logical reach of the new approach, the 

curtilage writing in Johnson instructed that precedential 

value is afforded only to those issues “decided . . . after 

careful analysis, rather than through a casual, off-hand 

remark or a broad statement of principle.” 256 F.3d at 916. 

And in the decades since, we have repeatedly stated that only 

“[w]ell-reasoned dicta is the law of the circuit.” See, e.g., Li 

v. Holder, 738 F.3d 1160, 1164 n.2 (9th Cir. 2013) (emphasis 

added) (citing Johnson, 256 F.3d at 914); United States v. 

McAdory, 935 F.3d 838, 843 (9th Cir. 2019). 

Whatever ground we might have gained in not having to 

parse what is and is not dicta, we lost in having to parse what 

is and is not well-reasoned. And this was not an equivalent 

trade. Whether something is “well-reasoned” depends on 

who you ask: not much of a legal standard. See Ford v. Peery, 

9 F.4th 1086, 1094–96 (9th Cir. 2021) (VanDyke, J., 

dissenting from the denial of rehearing en banc). While not 

perfect or easy to apply, at least there is some objectivity in 

tussling with whether something is dictum. 

Perhaps that is why the “well-reasoned” qualifier means 

little in practice. This case proves the point. Hartpence’s 

pronouncement that the False Claims Act’s first-to-file rule 

is jurisdictional was not reasoned, let alone well-reasoned. 

And yet, the three-judge panel felt bound to apply it. If we 

started on this path because we thought the expansion of 

judicial decision-making authority would be limited, it has 

not turned out that way in practice. And it makes one 

wonder: if all the other federal appellate courts can figure out 

what is and isn’t dicta without destabilizing their law, why 

can’t we?
20 STEIN V. KAISER FOUND. HEALTH PLAN, INC.

V.

Our solitary path is most troubling because it implicates 

serious questions about the scope of our constitutional 

authority. As one dissenter stressed when we officially 

elevated dicta to binding law, “Article III judges have 

authority only to decide cases and controversies.” Barapind, 

400 F.3d at 759 (Rymer, J., dissenting in part); see also 

Valley Forge Christian Coll. v. Ams. United for Separation 

of Church & State, Inc., 454 U.S. 464, 471 (1982) (“Article 

III of the Constitution limits the ‘judicial power’ of the 

United States to the resolution of ‘cases’ and 

‘controversies.’”); U.S. Const. art. III, § 2. Because the 

federal judicial power exists only “to adjudge the legal rights 

of litigants in actual controversies,” Valley Forge Christian 

Coll., 454 U.S. at 471 (quoting Liverpool, N.Y. & Phila. S.S. 

Co. v. Comm’rs of Emigration, 113 U.S. 33, 39 (1885)), our 

“power to bind is limited to the issue that is before [us],”

United States v. Rubin, 609 F.2d 51, 69 n.2 (2d Cir. 1979) 

(Friendly, J., concurring) (emphasis added). For that reason, 

Article III courts do not issue advisory opinions. FDA v. All. 

for Hippocratic Med., 602 U.S. 367, 378–79 (2024) (citing 

13 Papers of George Washington: Presidential Series 392 

(C. Patrick ed. 2007)).

To treat dicta as binding challenges this critical 

constitutional limitation. When we analyze issues that reach 

beyond the case or controversy presented, that exercise “can 

be many things—deliberate or hasty, compelling or 

unpersuasive, thorough or thinly reasoned—but one thing it 

cannot be is an exercise of judicial power.” Wright, 939 F.3d 

at 701. And yet, in the Ninth Circuit, it is. Our rule “give[s] 

judges too much power.” Wilder v. Apfel, 153 F.3d 799, 803 

(7th Cir. 1998) (Posner, J.). By “offer[ing] our thoughts, 

however well considered” on peripheral and nonessential 
STEIN V. KAISER FOUND. HEALTH PLAN, INC. 21

issues, and deeming those thoughts precedent, we take 

ourselves outside the “Anglo-American tradition” of judging 

and render our opinions “essentially legislative.” Id.

Judicial opinions are supposed to be different than 

legislation because we “render a judgment based only on the 

factual record and legal arguments the parties at hand have 

chosen to develop.” Loper Bright, 144 S. Ct. at 2281 

(Gorsuch, J., concurring). In performing our function, 

“[t]here are good reasons why courts write dicta.” Nat’l 

Fed’n of the Blind v. United Airlines, Inc., 813 F.3d 718, 746 

(9th Cir. 2016) (Kleinfeld, J., concurring). It might “make 

the discussion of the law easier to understand, such as by 

discussing hypothetical and analogous cases” or it might be 

“written accidentally, because a judge explaining why the 

court reaches its outcome in one case will not be able to 

perceive every factual circumstance that will arise in the 

future, and potentially be covered by an accidentally 

overbroad rule articulated in the instant case.” Id. The 

trouble is that dicta are always “observations which, 

however carefully formulated, are set forth without 

immediate, very likely without any, cost.” Duxbury, supra,

at 77. When we offer dicta, we are spared the hard reckoning 

of the legal implications of our words or what happens when 

they are put to the test. Id.

For that reason, we should heed the caution against 

“read[ing] judicial opinions like statutes.” Loper Bright, 144 

S. Ct. at 2281 (Gorsuch, J., concurring); see also Nat’l Fed’n 

of the Blind, 813 F.3d at 746 (Kleinfeld, J., concurring) 

(“When cases are not alike, the common law method is to 

determine whether to extend or distinguish and limit 

pronouncements in prior cases, not to treat all the 

pronouncements like statutes.”). When assessing our past 

decisions, we would be wise to humbly appreciate both “the
22 STEIN V. KAISER FOUND. HEALTH PLAN, INC.

possibility that different facts and different legal arguments 

may dictate a different outcome” and that “like anyone else, 

judges are ‘innately digressive,’ and [our] opinions may 

sometimes offer stray asides about a wider topic that may 

sound nearly like legislative commands.” Loper Bright, 144 

S. Ct. at 2281 (Gorsuch, J., concurring) (quoting Duxbury, 

supra, at 4).

VI.

In raising the problems with our dicta-is-binding rule, I 

join a chorus that has existed since the beginning. See 

Johnson, 256 F.3d at 920 (Tashima, J., concurring) 

(describing the new dicta-as-binding rule as so “wholly 

subjective and completely unworkable” that it “is no 

standard at all”); Barapind, 400 F.3d at 759 (Rymer, J., 

joined by Kleinfeld, Tallman, Rawlinson, and Callahan, JJ., 

concurring in the judgment in part and dissenting in part) 

(“Everything that ends up in F.3d cannot possibly be the law 

of the circuit. Views of two or three judges in an opinion on 

matters that are not necessarily dispositive of the case are no 

different from the same views expressed in a law review 

article; neither should be treated as a judicial act that is 

entitled to binding effect.”); Irons v. Carey, 506 F.3d 951, 

952 (9th Cir. 2007) (Kleinfeld, J., joined by Bea, J., 

dissenting from denial of rehearing) (“In our court, two 

judges on a panel make law for 20% of Americans as a 

‘supervisory’ matter, even where the case does not require 

the matter to be decided. . . . The traditional view, which we 

seem to have rejected in Barapind, is that since we are 

empowered only to decide cases, not to legislate, only those 

principles necessary to the decision are binding law of the 

circuit.”); Alcoa, Inc. v. Bonneville Power Admin., 698 F.3d 

774, 804 n.4 (9th Cir. 2012) (Bea, J., concurring in part and 

dissenting in part) (“[W]e are not bound by this dicta, which 
STEIN V. KAISER FOUND. HEALTH PLAN, INC. 23

was based purely on a hypothetical situation. We are bound 

only by dicta that is well-reasoned dicta.”); Alcoa, 698 F.3d

at 796 (Tashima, J., concurring) (outlining the odd series of 

cases that led to the dicta-is-binding rule); Nat’l Fed’n of the 

Blind, 813 F.3d at 745–48 (Kleinfeld, J., concurring) (“Our 

circuit, unlike traditional common law courts, the Supreme 

Court, and our sister circuits, purports in Barapind v. 

Enomoto to treat all our considered pronouncements, 

whether necessary to the decision or not, as binding law. . . . 

Writing what purports to be law of the circuit entirely outside 

the necessity of deciding the case before us increases the risk 

of troublesome error, and of exercising power beyond our 

authority.”); Ford, 9 F.4th at 1095 (VanDyke, J., dissenting 

from denial of rehearing) (“Our binding dicta rule, while no 

doubt well-intentioned, has serious difficulties.”).

Fixing our error regarding the False Claims Act’s firstto-file rule is good, but the proper role of dicta is what we 

really need to set right. Our treatment of dicta is contrary to 

our common-law tradition, the jurisprudence of the Supreme 

Court and all our sister circuits, and our proscribed 

constitutional role. It is within our power to get back on 

track. I hope that someday soon we will.