The Fifth Circuit recently voted to rehear en banc the panel opinion in Aramark Services v. Aetna, which involves a question about ERISA remedies and whether Circuit precedent comports with Supreme Court opinions in the area. The panel concurrence that prompted en banc review makes an intriguing observation about dicta and its precedential value:

Montanile does not distinguish Amara factually based on the identity of the Amara defendant as a fiduciary. Moreover, rarely has the Supreme Court so thoroughly distanced itself from “dicta” in a previous case. To have purported to “overrule” this point in Amara, after all, would not have comported with Amara itself, which recognized its statements as dicta and mere ruminations. A court cannot “overrule” its own dicta, which were never precedential to begin with.

(emphasis added).