The Ninth Circuit's San Francisco CourthouseUnlike 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.

CASES CURRENTLY PENDING BEFORE THE EN BANC COURT

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:  
Argued 9/21/21.

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:  Argued 9/22/21.

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.

RECENTLY RESOLVED

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.
The en banc Court: disagreed, holding that the City's claimed injuries were too attenuated from the challenged practices.  

Alam v. Garland
The issue: Whether the Court must sustain an adverse credibility finding if “one of the [BIA's] identified grounds is supported by substantial evidence.”   
The panel (Bybee, Collins, Stearns [D. Mass.]), adhering to Ninth Cirucit precedent, held that it must.
The en banc Court:  reversed that Circuit precedent, holding that the Court must consider all relevant factors, and not just a single factor.

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 banc 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.

EN BANC PETITIONS WE’RE WATCHING

NEW ADDITIONS: 

Columbia Export Terminal v. ILWU
The issue:  Whether the Labor Management Relations Act precludes a RICO claim that requires interpretation of a collective bargaining agreement containing an arbitration provision.
The panel (Graber, Clifton, Ikuta [dis.]) held that it does.
Current status:  Awaiting vote; Defendant-Appellee’s response filed 9/27/21.

Thompson v. Hebdon
The issue:  Whether Alaska’s limits on the amounts individuals can contribute to political candidates or to election-related groups, and its aggregate limit on the amount a candidate can accept from nonresidents of Alaska, violate the First Amendment.
The panel (Thomas [dis.], Callahan, Bea) held that they do.
Current status:  Awaiting vote; following a sua sponte en banc call, the parties submitted supplemental briefs on 9/10/21. 

Soto-Soto v. Garland
The issue:  Whether the BIA erred in concluding that the petitioner—who was tortured by the Mexican state police until she confessed to kidnapping and murdering a 5-year-old boy—was not entitled to deferral of removal under the Convention Against Torture.
The panel (Wallace [dis. in part], M. Smith, Restani (Int. Trade) held that it did.
Current status:  Awaiting supplemental briefing following a sua sponte en banc call. 

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 [conc.], Bennett) after withdrawing an initial opinion following a petition for rehearing, again issued an opinion holding that it does.
Current status:  
Awaiting vote; Plaintiff-appellant’s response filed 8/30/21.

STILL LINGERING:

United State v. Olsen
The issue:  Whether continuance of the criminal defendant’s trial during the pandemic under the Speedy Trial Act’s “ends of justice” provision was permissible.
The panel (Murguia, Christen, Lynn [N.D. Tex.]) held that it was.
Current status:  Awaiting vote; Plaintiff-Appellent's response filed 7/12/21.

United States v. Begay
The issue:  Whether second degree murder is a “crime of violence” for purposes of 18 U.S.C. § 924(c).
The panel (D. Nelson, Clifton, N.R. Smith [dis.]) held that it is not.
Current status:  Awaiting vote; supplemental briefs directed by the Court filed 9/8/21.

Jones v. Ryan
The issue:  Whether the Arizona unreasonably applied Supreme Court law and made an unreasonable determination of facts in holding that the capital habeas petitioner was not denied the effective assistance of counsel at the sentencing phase.
The panel (Thomas, Hawkins, Christen) held that it did, directing that the writ be granted.
Current status: Awaiting Petitioner-Appellant's response.   

Lemos v. County of Sonoma
The issue:  Whether the plaintiff’s conviction for resisting arrest barred her section 1983 claim for excessive force related to that arrest given the manner in which the jury in the criminal case had been instructed. 
The panel (Berzon [dis.], Ikuta, Lemell [E.D. La.]) held that it did.
Current status:  Awaiting vote; Defendants-Appellees' response filed 8/23/21.

Brach v. Newsom
The issue:  Whether California’s pandemic-related restrictions on in-person schooling in private schools violated parents’ substantive due process rights.
The panel (Siler [CA6], Hurwitz [dis.], Collins) held that it did.
Current status: Awaiting vote; Plaintiffs-Appellants' response filed 8/26/21. 

United States v. Lopez
The issue:  Whether the First Step Act, which allows for sentencing “safety valve” relief for any defendant who “does not have” more than four criminal history points, a prior three point offense, “and” a prior two point violent offense, authorizes relief for any defendant who does not meet all three of these requirements (rather than any one of them).
The panel (Boggs [CA6], M. Smith [conc. and dis.], Murguia) held that it does.
Current status:  Awaiting Defendant-Appellee's response.

Navajo Nation v. United States Department of the Interior
The issue:  Whether the Department of the Interior is obligated to secure the Navajo Nation’s water rights in the Colorado River. 
The panel (Gould, Berzon, Lee [con.]) held that it is.
Current status:  Awaiting Plaintiff-Appellant’s response.

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 vote; Defendant-Appellee’s response filed 6/30/21.

Silva v. Garland
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 vote.

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.

RECENT DEPARTURES:

In re: PRGE&J Ret. Sys. Admin. v. Volkswagen AG
The issue:  Whether, in securities-fraud cases in which the plaintiffs allege both omissions and affirmative misrepresentations, the Affiliated Ute presumption of reliance applies.
The panel (Wallace [dis.], M. Smith, Restani [Int. Trade]) held that it does not. 
Current status:  Rehearing denied 9/23/21.

Setty v. Suandhalaya (BNG) LLP
The issue:  Whether federal law governs the application of equitable estoppel to arbitration agreements subject to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards.
The panel (D.W. Nelson, Rawlinson, Bea [dis.]) held that it does.
Current status:  Rehearing denied 9/10/21.

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:
  Rehearing denied 8/30/21.

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:  Rehearing denied 8/18/21.

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.