*122SUPPLEMENTAL OPINION ON SUGGESTION FOR REHEARING
En Banc.
Before BAZELON, Chief Judge, WRIGHT, McGOWAN, TAMM, LEVEN-THAL, ROBINSON, MacKINNON, ROBB and WILKEY, Circuit Judges.ORDER
On consideration of the suggestion for rehearing en banc of appellant Daniel Jackson, and a majority of the Judges of the Court in regular active service not having voted in- favor thereof, it is
ORDERED by the Court, en banc, that the aforesaid suggestion for rehearing en banc is denied.
Statement of McGOWAN, Circuit Judge, in which BAZELON, Chief Judge, LEVEN-' THAL, ROBINSON and WILKEY, Circuit Judges, join, is attached.STATEMENT OF CIRCUIT JUDGE McGOWAN
In voting to deny rehearing en banc, it seems to me desirable to identify the considerations which have impelled me to do so.
Part I of the panel’s opinion deals — correctly, I think — with the issue of whether D.C.Code § 24-301(d) (1973) includes within its coverage a person who is mentally retarded. In § 24-301(d) Congress addressed itself to the question of the disposition to be made of any criminal defendant who is found not guilty by reason of insanity. In this jurisdiction both mental disease and mental defect have always been regarded by this court as comprehended within the criminal insanity defense. There is no reason to believe that, in providing in terms for the commitment of any such defendant to a hospital for the mentally ill, Congress intended to include the one and not the other. Thus, insofar as this issue of statutory interpretation is concerned, there seems clearly to be no occasion to en banc this case.
This statutory interpretation question was the only issue raised in the District Court in appellant’s motion for unconditional release and in the supporting memorandum of points and authorities. At the oral hearing held by Judge Gasch on the motion, it was the only question pressed upon the court by counsel who, in response to Judge Gasch’s express invitation, disclaimed any purpose or need to adduce evidence, except as the Government might challenge the fact of appellant’s retardation. There being no such challenge, appellant’s counsel saw no need for the taking of evidence, and none was taken. Counsel never contended in this hearing that appellant was not in fact receiving proper treatment and, of course, no evidence was adduced with respect to that question.
As Part II of the panel’s opinion recognizes, only for the first time on appeal was the claim made that appellant was being deprived of his constitutional right to appropriate treatment; and the panel expressly stated that the District Court had been denied “an opportunity to make findings of fact relating directly” to this and the associated constitutional claims. Despite this, the panel in Part II went ahead— improvidently, I think — to deal with the right to treatment argument, and concluded its discussion of that matter by purporting to “hold that on the record in this case it is equally apparent that adequate treatment is being provided to appellant.” Since the panel had stated in terms that no record regarding adequacy of treatment had been made in the District Court in this case, it seems anomalous that the panel should have affected to make a ruling by reference to isolated statements in past proceedings not directly focused upon the treatment issue. I do not think that that “holding,” or anything else that is said in Part II of the opinion, has any binding effect on anyone. I also do not believe that the work of this court permits it the luxury of putting cases en banc simply for the purpose of eradicating dicta.
*123This has not been a right to treatment case from its very inception, but that is the issue which sparks the petition for rehearing en banc. I can understand the concerns of those who are described as having expressed alarm with the “holding” in Part II of the panel opinion with respect to treatment, but it is an alarm which is surely unfounded when Part II is placed in the proper perspective.
I do not denigrate the seriousness or the importance of the issue of right to treatment in the case of one situated as is appellant. It is, however, an issue which may be raised by the initiation of a proper proceeding in the District Court — a proceeding which will inevitably entail extensive evidentiary exploration of many specialized areas of knowledge, such as the nature of mental retardation, the kinds of treatment appropriate for it, and the availability of such treatment. Considerations of orderly procedure lead me to think that the time has come to end this non-treatment case, leaving appellant and his counsel free hereafter to initiate a true right to treatment case if they should be so advised.
STATEMENT OF CHIEF JUDGE BAZELON
I join Judge McGowan’s statement but think that one point deserves further clarification. Section 301(d) states: “If any person . . . raises the defense of insanity and is acquitted solely on the ground that he was insane at the time of its commission, he shall be committed to a hospital for the mentally ill. . . . ” In both the District Court and the Court of Appeals, appellant raised the question of whether the commitment mandated by this section extended to the mentally retarded as well as the mentally ill; appellant did not present either court with the issue of where commitment should occur if § 301(d) were found applicable or whether “a hospital for the mentally ill” might include facilities other than St. Elizabeths. In any new action brought by appellant, I would hope that these legal questions would be considered along with the factual issues suggested by Judge McGowan, including which government facilities in the District of Columbia provide suitable care and treatment, by education and training, for the mentally retarded.