United States v. Opio Moore
110 F.3d 99
D.C. Cir.
1997
Check Treatment

*1 after, majority court in they of of the may have lie else- ment, any remedies in favor of regular active service did not vote where. Upon suggestion. consideration of plaintiffs’ given the consistent Accordingly, foregoing, it is properly lawsuit certi- position that the conclude, (b)(2) ORDERED, action, sug- class that the fied as appel- light opportunities gestion afforded to denied. of the be of evidence and review lants to evidence, that the district court did Judges Circuit they in concluding WILLIAMS, its discretion grant

abuse and RANDOLPH would required that “basic to show fairness” suggestion. failed opt out Separate Judge statement filed Circuit agreement, and we affirm settlement SENTELLE, concurring the denial opt the class nial motions out of of their rehearing en banc. settlement. Circuit filed

SILBERMAN, dissenting from the denial of rehearing en banc.

SENTELLE, Judge, concurring in Circuit rehearing banc: the denial my Although exchanges with dissent- America, Appellee approaching UNITED STATES ing colleague dangerously are shedding light point heat than prompted of this I feel MOORE, Opio Appellant. briefly reply to his call for in banc review. that an in banc Because of demands Nos. 96-3046. places on resources of proceeding the limited Appeals, judiciary, rule Columbia Circuit. hearing or is not favored such a except ordinarily will not be ordered April (1) full court is when consideration of the uniformity necessary secure maintain proceeding or when the of its impor- exceptional involves a tance. EDWARDS, WALD, Judge, Chief Before: Fed.R.App.P. GINSBURG, SILBERMAN, WILLIAMS, generally this to mean I have construed RANDOLPH,

SENTELLE, HENDERSON, should waste the assets that we *, ROGERS, TATEL GARLAND unless the proceeding on an in banc Judges. (a) panel decision at least is erroneous (b) establishes maintains

ORDER this case fits nei- importance. Since some criteria, ill- particularly ther of those it is Appellee’s Suggestion for On for in banc review. suited Rehearing En Banc by my dissent- As for the errors asserted PER CURIAM. “holding[ ] colleague, he relies first on the custody’ pur- ‘in Suggestion Rehearing En ... that a defendant is Appellee’s when he poses of the full court. has been circulated to the Banc ” lan- merely ‘not free to leave.’ While requested. vote was There- taking of a * participate in this matter. GARLAND did not

100 certainly surely “postarrest.” that I alluded to dissenter is guage agree my colleague “appellate that opinion, strong it dicta with is at most and holding. saying, I do not courts do not sit as self-directed boards In so concede as wrong dicta it that questions presented ar holding. holding But affir- arbiters of the actual is our 384-85) (104 gued parties before them.” mance F.3d 377 at of the Dis- Carducci (D.C.Cir.1983). v. 177 ruling prose- Court’s at the time of the However, I not read cutor’s comment on the defendant’s silence compelling as decide the comment us to that referred si- challenge argued did not which are more lence. As the those issues for ruling, page than a and a half or in Court’s either then or which us, parties’ of an general aspect our statement on discussion essential before opinion Power in the is not a the issue is extensive. See Alabama indicia Gorsuch, holding in 7 n. that it was not essential to our Co. 34 authorities). 1982) curiam) (collecting If conceding any (per decision. while not er- one, rule, ror, if very might in either a we made such a it was commend briefs, might fact-specific holding affirming better the District counsel to write or it dicta, brevity. place productive Judge on this case or neither of a counter tax on importance sup- which rises to the level short, rarely I have ever seen porting an in banc review. petition United States file for in banc justification review with less than is Secondly, my colleague rehashes the Mi- here. opinion. our randa-based issue from He “patently illogical,” finds it somehow to dis- Judge, dissenting

tinguish speech between and silence in an in- from the denial of en banc: correct, custody situation. If he were but not arrested Miranda-ized defendant ease, separately I I When wrote would be faced with two courses of conduct: majority de- assumed that because the had utterance, he could make a termined the errors found were “harmless” him; against could used or he could stand the case would not be suitable for further silent, against which could be used him. Moore, review. United States patent illogie in rejecting fail to see the (D.C.Cir.1997) proposition. For set forth in the reasons curring). I do not recall another occasion opinion, neither of sought rehearing when the by my dissenting cited colleague decisions suggested banc a con- review where they support my and indeed upheld. viction But position. To the that United extent right; errors concluded the 1568 & n. 11 were “harmless” should not affect our deci- Cir.1991), conflict, is in that conflict amounts sion whether rehear the ease because single sentence, supplying to a reasoning, no panel opinion major adopts holdings resting on a to Fletcher v. citation will have a impact broad holdings law enforcement. Those are: (1982). For the set forth in reasons custody” is “in defendant ruling our in this case is not purposes of the Fifth Amendment he when in conflict with Weir. Fletcher v. Insofar as merely “not free to leave.” occurs This disagrees, Eleventh it is miscon- stop Terry stop after a or routine traffic struing police when the discover contraband Finally, any interrogation. the dissent asserts that the before This arguments “reaches well conflict with the rea presented by However, soning McCarty, defense counsel.” in Berkemer v. asserting admits that dissent fendant devoted and half of his brief this circuit. caselaw See Gale, to the silence he asserted 1414-15 n. (D.C.Cir.1992). argument appeal at trial or on It contradicts sort defining “arrest” for in this circuit the defendant was in short ar- cases See, e.g., rest, purposes. purposes Amendment when Fourth Clark, States his silence was observed —defense counsel (D.C.Cir.1994); Clipper, simply support asserted before with no *3 (D.C.Cir.1992), 944, record, cert. 951-52 citation to the denied, 1070, 1025, 122 113 S.Ct. 506 U.S. “post-arrest.” panel The did not even have (1993); L.Ed.2d portion entire of the record which a the (D.C.Cir.), Jones, 928, va 929-31 “custody” finding supposedly based or pending grounds cated in which described defendant’s reaction banc, 980 F.2d 746 timing of relevant events. The banc, 1992), rehearing en points now out that the actual' circumstances denied, 1065, (D.C.Cir.1993), 510 U.S. cert. very close to what I discussed as a (1994).1 741, 126 L.Ed.2d 704 114 S.Ct. hypothetical separate opinion. in When discovered, not though defendant was drugs the defendant’s the government was not interrogated and the response sigh,” was to “let out a warning, the obliged give a Miranda dejected, say nothing. look permitted to intro government was not government, The in at a mini- silence at the duce evidence defendant’s mum, to vacate the Fifth Amendment hold- when the contraband was discov moment majority, relies on one of our opinion ac ered. Since Sentelle’s eases, famous knowledges that a defendant’s (D.C.Cir.1983), then-Judge in Sca- under those circumstances lia, rejecting go beyond an effort the admissible, 104 F.3d at 389 n. see said, parties’ arguments, “appellate courts do that his silence is constitu to conclude not sit as self-directed boards illog tionally only patently protected is but as arbiters of ical, reasoning of to the presented argued by legal questions see, cases, e.g., governing Supreme Court at The diffi- parties before them.” Id. Robinson, States v. 485 U.S. culty rigor integrity of is that Car- 33-34, 108 99 L.Ed.2d 23 S.Ct. severely impaired by unani- ducci was 603, 607, (1988); Fletcher v. 455 U.S. mous decision 1309, 1312, 71 L.Ed.2d 490 102 S.Ct. Oregon Independent Ins. Nat. Bank of (1982), with at least direct conflict America, Inc., Agents 508 U.S. circuit. one other See United 2173, 124 Cir. explicitly appeals courts of encour- Zanabria, 1991); see nonjurisdictional issues not aged to decide (5th Cir.1996). (even issues waived presented particularly aggravated govemmént The by plaintiffs) long as a court views well because reaches presented. as anterior to those issues arguments presented by defense In Insurance we had decided sua counsel. See 104 F.3d at 391-92 notes, disput- on which a J., sponte that a 1916 statute concurring). As the repealed regulation rested had itself been only ed counsel devoted a defense (albeit years inadvertently) so-called half of its brief to the defendant’s (wisely it any though plaintiff determined “post-arrest silence” and never made finding passing protests custody remark now such Sentelle —it objection response to the use actually a to defense counsel’s determination is not silence, objection Concurring that the dis at See Statement (Sil 104 F.3d at 392 that Moore was in trict court overruled. See 1-2. But the determination insists, berman, concurring). government correctly And the as the always reaction pivot upon insisted that the defendant’s which the entire of de- sponte prearrest. devel protected sua silence turns. It cannot be fendant’s post- "ruling” oped silence occurred of the dis- the notion dismissed as an uncontested court, pre-arrest. the district court made no because out) justices statutory repeal suspect, is that the did not wish to argue not to turned ability Independent Ins. their own to reach out to See restrict America, Clarke, presented brought 955 F.2d 731 issues not eases Inc. rev’d, (D.C.Cir.1992), justify prac- 508 U.S. nor did wish (1993). by openly acknowledging tice “located and statute banks Court as not to normal (A any place population of which Compare business “non-court court?” straints five thousand inhabitants” does exceed Sys. Board the Fed. Reserve Governors at to sell insurance. Id. 732. This Corp., v. Dimension Fin. sup- compelled to brief the issue 691.(1986), 681, 683, 106 S.Ct. 88 L.Ed.2d plementally and then decided that the stat- banks”). which refers to “non-bank indeed, had, repealed. been Not sur- ute event, it is an indicia of *4 policy consequences— prisingly given — (if activism) overreaching endorsed Court reversed but properly present- court to decide issues not panel’s reaching of the issue. overreaching or activism in the ed. Judicial however, ducked the courts, federal much discussed these lower obliged to whether the reach the days, invariably to traces back stating only question, anterior involving Court often decisions en- court’s decision to do so was not an abuse of matter, tirely different for the lower discretion. That meant that federal courts federal courts are even more influenced free, follow, without standards to to the manner which the depending or not on decide such an issue particular than decides cases substan- pleased whether it so. Un- tive results. Insurance —a thinking, if der that mode of particularly egregious example of the Su- contract, litigating a breach of a federal preme cutting traditional to conduct a would entitled “self- impact. Judges, comers —has had a broad inquiry” directed into whether contract disciplined judges, willing are more formed, if was even con- prior than to that curred on that theory, vinced to fit the seek I am inclined believe that one can ex- controversy theory, before them to that rath- plain agreement the Court’s unanimous er than vice versa. This case is one of those issue, despite Insurance examples. unfortunate flaws,2 opinion’s analytical obvious (the gov- same judi- complaining ernment now similar about behavior),

cial which wished to reverse this placed

court’s on the merits since legality selling

cloud over the of banks insur-

ance, But, practice years. of the last 70

perhaps important even more agreeing reasoned a court cannot be ties statute or case means stipulation something plaintiff refusing bound of law and in it does not and a ignored par- validity the obvious difference between both make a claim based on the of a statute.