Unlike some other Courts of Appeals (e.g., the D.C. and Second Circuits), the Ninth Circuit has a remarkably active en banc docket. Here at the En Banc Tracker, we keep tabs on all cases in which rehearing en banc has been granted. We also monitor others that may soon find their way to the en banc court, following petitions for rehearing in which at least one Ninth Circuit judge has demonstrated his or her interest by calling for a response.
Tomczyk v. Garland
The issue: Whether an alien who reentered the United States while inadmissible had necessarily “reentered the United States illegally” within the meaning of 8 U.S.C. § 1231(a)(5).
The panel (W. Fletcher, Bybee [dis.], Watford) held that he had not.
Current status: Rehearing granted 7/6/21.
Olean Wholesale Grocery Cooperative, Inc. v. Bumble Bee Foods, LLC
The issue: Whether Federal Rule of Civil Procedure 23(b)(3) requires a district court to find that no more than a “de minimis” number of class members are uninjured before certifying a class.
The panel (Kleinfeld, Hurwitz [dis.], Bumatay) held that it does.
Current status: Rehearing granted 8/3/21.
City of Oakland v. Wells Fargo & Company
The issue: Whether Oakland has statutory standing under the Fair Housing Act to sue Wells Fargo for its allegedly discriminatory lending practices.
The panel (Cole [CA6], Gould, Murguia) held that it does.
Current status: Argued 6/23/21.
Duncan v. Becerra
The issue: Whether California’s ban on large capacity magazines violates the Second Amendment.
The panel (Callahan, Lee, Lynn [N.D. Texas, dissenting]) held that it does.
Current status: Argued 6/22/21.
D.D. v. Los Angeles Unified School District
The issue: Whether the plaintiff’s claims were for a “Free and Adequate Public Education,” and thus subject to the Individuals with Disabilities Education Act’s exhaustion requirement.
The panel (Lipez [CA1], Rawlinson [dis.]; N.R. Smith) held that they were not.
Current status: Argued 6/24/21.
Lorenzo-Lopez v. Barr
The issue: Whether a notice to appear that omits the time and place at which removal proceedings would occur, but is later supplemented by a document containing that information, suffices to trigger the stop-time rule in 8 U.S.C. § 1229(a).
The panel (D. Nelson, Callahan [dissenting], Korman (E.D.N.Y) held that it did not.
The en banc Court: stayed the case pending the Supreme Court's decision in Niz-Chavez v. Barr, then remanded to the BIA for it to reconsider in light of that opinion.
Cheneau v. Rosen
The issue: Whether the phrase “begins to reside permanently” in the derivative citizenship statute requires the claimant to have lawful permanent resident status at that time.
The panel (Bennett [conc.], Miller, Pearson [N.D. OH]), adhering to Ninth Circuit precedent, held that it does, but all three members of the panel joined a concurrence contending this precedent was incorrect.
The en bacn Court: agreed with the panel's concurrence, overruling its prior precedent to the extent it was inconsistent.
Young v. Hawaii
The issue: Whether the Second Amendment precludes a state from prohibiting individuals from openly carrying firearms outside their homes.
The panel (O’Scannlain, Clifton [dissenting], Ikuta) held that it does.
The en banc Court: disagreed, holding that held that the Second Amendment does not guarantee a general right to openly carry arms in public.
Rojas v. FAA
The issue: The scope of FOIA Exemption 5, which protects from disclosure all “inter-agency or intra-agency” documents that “would not be available by law to a party … in litigation with the agency.” 5 U.S.C. § 552(b)(5).
The panel (Wardlaw, Christen [dissenting], Molloy (D. Mont.)) had held that Exemption 5 does not apply to privileged documents prepared at an agency’s request by a contractor or consultant.
The en banc Court: disagreed, holding that the exception applies to communications prepared by outside consultants acting like agency employees.
United States v. Orona
The issue: Whether a conviction for aggravated assault under an Arizona criminal statute that encompasses reckless conduct qualifies as an Armed Career Criminal Act “violent felony.”
The panel (Hawkins, M. Smith, Hurwitz) held that it did not.
The en banc Court: dismissed the appeal following the petitioner's death.
United States v. Lozoya
The issue: Whether venue in the Central District of California was proper in a prosecution for an assault that took place on a flight from Minnesota to Los Angeles, but not in California airspace.
The panel (M. Smith, Owens [dissenting], Settle (W.D. Wash.) held that it was not.
The en banc Court: disagreed, holding that it was.
Tovar v. Zuchowski
The issue: When a spousal relationship must exist for a spouse to be eligible for derivative U-visa status.
The panel (N.R. Smith, Watford [dissenting], R. Nelson) had held that the BIA’s regulation requiring that the relationship exist at the time of initial visa application was, under Chevron, a reasonable interpretation of the governing statute.
The en banc Court: disgreed, holding instead that the BIA's regulation reflected an unreasonable interpretation of the governing statute.
United States v. Collazo
The issue: When a defendant can be held liable under 21 U.S.C. § 841(b) for the drug quantities attributable to his or her coconspirators.
The panel (Wardlaw, Bea, Murphy (E.D. Mich.), after holding argument, ordered the parties to brief whether the case should be heard initially en banc.
The en banc Court: held that the government need not prove the defendant knew the drug type and quantities attributable to his or her coconspirators.
United States v. Bacon
The issue: The proper remedy when the Court of Appeals concludes that a criminal defendant’s expert testimony was erroneously excluded as irrelevant and that Court cannot discern whether the error was harmless.
The panel (Watford, Bennet, Rakoff (S.D.N.Y)) held that a new trial is required, but all three joined a separate concurrence criticizing the Ninth Circuit precedent that mandated that remedy, contending that the remedy should instead be to conditionally vacate the judgment and remand with instructions for the district court to consider whether the testimony would have been otherwise excluded.
The en banc Court: reversed this prior precedent, holding that there was no bright-line rule governing the remedy in these circumstances, and remanding to the panel to exercise its discretion in determining the proper remedy here.
Torres v. Barr
The issue: Whether Congress’ two-year reprieve for immigrants residing in the Commonwealth of the Northern Mariana Islands at the time the United States imposed its immigration laws on the territory in 2009 applied to those immigrants who “at the time of application for admission” lacked a “valid entry document.”
The panel (Wardlaw, Berzon, Bennett) held that it did not, but all three judges joined a concurrence contending that the Ninth Circuit precedent compelling the panel to reach that result was wrongly decided.
The en banc Court: overruled that prior precedent and held the petitioner was not removable on grounds of having lacked a valid entry document.
EN BANC PETITIONS WE’RE WATCHING
Nieves Martinez v. United States
The issue: Whether the Federal Tort Claims Act’s discretionary function exception shielded a border patrol agent from liability for his conduct of a drug search at the border that led to the 40-day imprisonment of the plaintiff, who had committed no criminal offense.
The panel (W. Fletcher [dis.], Ikuta, Schreier [D. S.D.]) held that it did.
Current status: Awaiting Defendant-Appellee’s response.
Ford v. Peery
The issue: Whether a California prisoner is entitled to federal habeas relief in a case in which the prosecutor, in his closing argument, told the jury that the presumption of innocence was no longer applicable.
The panel (W. Fletcher, R. Nelson [dissenting], Molloy [D. Mont.]) originally held that he was. The panel then granted the State’s petition for rehearing and reversed itself, ultimately deferring to the state court’s conclusion that the verdict had not been affected.
Current status: Following issuance of the amended opinion, a member of the Court sua sponte called for a vote as to whether the case should reheard en banc. The Court asked the parties to address the following question: “Hypothetically, if the California Court of Appeal had decided that the prosecutor’s statements at issue in this case, when viewed together in context, did not misstate the law, would that decision be ‘contrary to, or involve an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States;’ or would that decision be ‘based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding’?”
Silva v. Barr
The issue: Whether petty theft under Cal. Penal Code section 484(a) is a “crime involving moral turpitude.”
The panel: (Berzon, Ikuta, Lemelle [E.D. La.]) held that it was, while questioning the precedent that compelled that result.
Current status: After requesting a response to the initial rehearing petition, the panel issued a revised opinion on 3/30/21 reaching a similar result, denying the rehearing petition as moot. The Court then again called for a response to the rehearing petition from the revised opinion. Awaiting Repondent's response.
United States v. Bastide-Hernandez
The issue: Whether the jurisdiction of an immigration court vests upon a filing of a notice to appear that does not inform the alien of the time, date, and location of a hearing.
The panel (Boggs [CA6], M. Smith [dis.], Bennett) held that it does.
Current status: Awaiting vote; Plaintiff-appellant’s response filed 4/6/21.
United States v. Gear
The issue: Whether a conviction for unlawfully possessing a firearm as a nonimmigrant-visa holder requires the prosecution to prove the defendant knew his legal status, and whether the trial court’s failure to instruct the jury on the knowledge element required reversal under plain error review.
The panel (Lee, Bumatay [conc. and dis.], Silber [D. Ariz.; conc.]) held that the defendant must have known that he has a nonimmigrant visa, but that the instructional error did not affect the defendant’s substantial rights here.
Current status: Awaiting vote; Plaintiff-appellee’s response filed 4/6/21.
United States v. Moalin
The issue: Whether the Fourth Amendment requires that the government provide criminal defendants notice of evidence acquired for foreign intelligence purposes through electronic surveillance overseas, and whether the government’s use of telephone metadata without following certain procedural requirement was harmless.
The panel (Berzon, Nguyen, Zouhary [N.D. OH]) concluded that the government had violated the defendants’ right, but nevertheless upheld their convictions. Both sides petitioned for rehearing.
Current status: Awaiting vote; responses filed 2/5/21.
Ramos v. Wolf
The issues: Whether Congress stripped jurisdiction over all APA claims challenging Temporary Protected Status (TPS) designations, and whether the district court abused its discretion in concluding that the plaintiffs had established a likelihood of success on the merits of their Equal Protection challenge to their TPS terminations.
The panel (Callahan, Christen [dissenting], R. Nelson [concurring]) answered both questions in the affirmative.
Current status: Case stayed while the new adminstration considers whether to take any action affecting this case.
Velaquez-Gaspar v. Barr
The issue: Whether substantial evidence supported the BIA’s determination that the Guatemalan government was unable to protect the petitioner from further domestic abuse, notwithstanding the petitioner’s own contrary testimony and the BIA’s failure to address her credibility.
The panel (Paez [dissenting], Callahan, VanDyke [concurring]) upheld the BIA’s determination.
Current status: Case stayed pending Supreme Court decision in Dai v. Sessions.
Setty v. Suandhalaya (BNG) LLP
The issue: Whether, in a case arising under the district court’s federal-question jurisdiction, the court was required to enforce an arbitration provision that would have been enforceable under the law of India.
The panel (D.W. Nelson, Rawlinson, Bea [dis.]) applied federal common law and held that it was not.
Current status: Opinion withdrawn 6/4/21 and rehearing petition denied as moot.
Lam v. United States
The issue: Whether the Federal Tort Claims Act “discretionary function” exception shields the government from liability for failing to cut down a tree that fell and injured the plaintiff.
The panel (M. Smith, Hurwitz [dissenting], Royal [M.D. Ga.]) held that it did. The Court sua sponte called for both sides to address the possibility of en banc rehearing.
Current status: Sua sponte call withdrawn and mandate issued on 5/3/21.
Boule v. Egbert
The issue: Whether Bivens authorized First and Fourth Amendment claims against a border patrol agent.
The panel (Graber, W. Fletcher, Freudenthal [D.Wy.]) held that it did. The Court sua sponte called for responses regarding rehearing en banc.
Current status: Rehearing denied 5/20/21.
Nunes v. Stephens
The issue: Whether there is a clearly established right to privacy in juvenile records for purposes of qualified immunity.
The panel (Tallman, Hunsaker [conc.], Silver [D. Az.]) held that there is not, with Judge Hunsaker, joined by Judge Silver, writing a concurrence asserting the Ninth Circuit should clarify the constitutional question.
Current status: Rehearing denied 5/4/21.
Rico v. Ducart
The issue: Whether corrections officers that instituted nightly welfare checks causing inmates to suffer long-term sleep deprivation were entitled to qualified immunity from the inmates’ Eighth Amendment claim.
The panel (Tallman, Hunsaker, Silver [D.Az., dissenting]) held that they were.
Current status: Rehearing denied 4/28/21.
East Bay Sanctuary Covenant v. Trump
The issue: Whether the district court correctly issued a nationwide preliminary injunction against a rule stripping asylum eligibility from migrants who cross into the country from Mexico between designated ports of entry.
The panel (Fernandez [concurring], Paez, Fletcher) held that it did.
Current status: Rehearing denied 3/24/21.
Lambert v. Saul
The issue: Whether, in Social Security disability benefits cases, a claimant’s prior disability determination entitles her to a presumption of continuing disability.
The panel (Graber, Bress, Dawson [W.D. Ak.]), deferring to the Social Security Administration’s intervening interpretation of the statute (which contradicted the Ninth Circuit’s prior interpretation) held that it does not.
Current status: Rehearing denied 3/9/21.
Juliana v. United States
The issue: Whether plaintiffs-appellees—a group of children—lack Article III standing to challenge the federal government’s actions contributing to climate change because of their inability to demonstrate redressability.
The panel (Murguia, Hurwitz, Staton (C.D. Cal) [dissenting]) held the plaintiffs lack standing.
Current status: Rehearing denied 2/10/21.
Kipp v. Davis
The issue: Whether a state court made an “unreasonable determination of facts” within the meaning of AEDPA in rejecting the capital habeas petitioner’s due process challenge to the prosecution’s use of other bad acts evidence.
The panel (Paez, Murguia, Nguyen [dis]) held that it did.
Current status: Rehearing denied 2/9/21.
Northern Alaska Environmental Center v. U.S. Department of the Interior
The issue: Whether a management plan was an “ongoing” federal action for purposes of NEPA’s supplementation requirements.
The panel (M. Smith, N.R. Smith, Tunheim [D. Minn.]) held that it was.
Current status: Rehearing denied 12/22/20.
Southcentral Foundation v. Alaska Native Tribal Health Consortium
The issue: Whether a tribal health organization had sufficiently alleged Article III standing in challenging the governance of the Alaska Native Tribal Health Consortium.
The panel (Gould, Bea, Murguia) held that it did, focusing on the plaintiff organization’s information injury and statutory right of participation.
Current status: Rehearing denied 12/21/20.
Smith v. Baker
The issue: Whether either the jury’s improper consideration of aggravating factors, or trial counsel’s deficient performance, prejudiced the capital habeas petitioner.
The panel (N.R. Smith [concurring], Murguia, Christen) held that they did not.
Current status: Rehearing denied 12/21/20.
Harvest Rock Church Inc. v. Newsom
The issue: Whether California’s pandemic-related restrictions are unconstitutional as applied to in-person worship services.
The panel (O’Scannlain [dissenting], Rawlinson, Christen) denied the Plaintiffs’-appellants emergency motion for an injunction against the state restrictions.
Current status: The panel vacated its denial and remanded; rehearing petition denied as moot 12/3/20.