800 F.3d 1177-1193

CANBY, Circuit Judge,
concurring:
I concur in the order of reversal. I write separately only because Judge Kozinski has, and my view of the state of our circuit precedent differs from his.
Reddy v. Litton Industries, Inc., 912 F.2d 291 (9th Cir.1990), cited by the district court, upheld the dismissal of an insufficient complaint without leave to amend because no amendment consistent with prior pleadings could cure the insufficiency. Reddy made its reason clear: “Although leave to amend should be liberally granted, the amended complaint may only allege ‘other facts consistent with the challenged pleading.’ ” Id. at 296-97 (quoting Schreiber Distrib. Co. v. Serv-Well Furniture Co., 806 F.2d 1393, 1401 (9th Cir.1986)). We have cited Reddy for this proposition as recently as United States v. Corinthian Colleges, 655 F.3d 984, 985 (9th Cir .2011).
In my view, PAE Gov’t Servs., Inc. v. MPRI, Inc., 514 F.3d 856 (9th Cir.2007), is irreconcilable with Reddy and its rationale: PAE holds that inconsistency with a prior complaint is not a basis for dismissing a later amended complaint. Id. at 859. It explains that “[t]he short of it is that there is nothing in the Federal Rules of Civil Procedure to prevent a party from filing successive pleadings that make inconsistent or even contradictory allegations.” Id. at 860.
If our decision of the present appeal required us to depend on one or the other view of the permissibility of inconsistent pleading — that of Reddy or that of PAE— I would feel compelled to call for en banc rehearing to address the inconsistency in our precedent. See Atonio v. Wards Cove Packing Co., 810 F.2d 1477, 1478-79 (9th Cir.1987) (en banc). Happily, there is no need for en banc proceedings and their ensuing delay here, because we have concluded that the proposed amended complaint offered by Shirley was not actually inconsistent with his prior pleadings. There is accordingly no reason to address the proper rule concerning inconsistent pleadings — a subject that I leave to some future en banc court and upon which I express no opinion.

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