En Banc Tracker

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.

CASES CURRENTLY PENDING BEFORE THE EN BANC COURT

Brice v. Plain Green, LLC
The issue:  Whether arbitration provisions in certain tribal lending contracts that preclude federal-law claims may be enforced.
The panel (W. Fletcher [dis.], Forrest, VanDyke] held that they may.
Current status:  Review granted 6/6/22.

Alfred v. Garland
The issue:  Whether Washington convictions for attempted and completed second degree robbery qualify as aggravated felonies under the Immigration and Naturalization Act.
The panel: (Rawlinson [conc.], Bybee, England [E.D. Cal.]) held that they do not, though all three judges filed or joined separate opinions expressing disagreement with the Ninth Circuit precedent that compelled that result.
Current status:  Review granted 6/3/22. 

The Geo Group, Inc. v. Newsom
The issue:  Whether the United States, joined by a plaintiff operating a private immigration detention centers on the government’s behalf, was entitled to a preliminary injunction on preemption and intergovernmental immunity grounds against California’s law phasing out private detention centers.
The panel: (Murguia [dis.], Bade, Lee) held that it was.
Current status:  Review granted 4/6/22; argued 6/21/22.

Diaz-Rodriguez v. Garland
The issue:  Whether child endangerment under California Penal Code § 273a(a) is “a crime of child abuse, child neglect, or child abandonment” within the meaning of 8 U.S.C. § 1227(a)(2)(E)(i).
The panel (Callahan [dis.], Watford, Rakoff [S.D.N.Y]) held that it was not.
Current status:  Review granted 4/1/22; argued 6/22/22.

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:  Review granted 1/21/22; argued 3/23/22.

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:  Review granted 12/29/21; argued 3/22/22.

RECENTLY RESOLVED

McDougall v. County of Ventura
The issue:  Whether pandemic-related health orders mandating the closure of gun shops, ammunition shops, and firing ranges violated the Second Amendment.
The panel (Kleinfeld [conc.], R. Nelson, VanDyke [conc.]) held that it did.
The en banc Court: vacated the underlying judgment and remanded for consideration in light of New York State Rifle & Pistol Ass’n, Inc. v. Bruen.

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.
The en banc Court:  dismissed the appeal as moot.

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.
The en banc Court:  disgreed and held that it is.

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.
The en banc Court:  disagreed and rejected the "argument that Rule 23 does not permit the certification of a class that potentially includes more than a de minimis number of uninjured class members."

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.
The en banc Court:  disagreed, holding that an individual’s inadmissible status renders that individual’s reentry illegal. 

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.
The en banc Court:  disagreed, holding that the plaintiff was required to satisfy the Individuals with Disabilities Education Act’s exhaustion requirement.

Duncan v. Bonta
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. 
The en banc Court: disagreed, holding the challenged law was consistent with the Second Amendment.

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. GarlandThe 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. BarrThe 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. RosenThe 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. HawaiiThe 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.

EN BANC PETITIONS WE’RE WATCHING

NEW ARRIVALS:

California River Watch v. City of VacavilleThe issue: Whether the carcinogen hexavalent chromium is “solid waste” under the Resource Conservation and Recovery Act, and whether a city can be held liable for contributing to the transportation of that waste by withdrawing water from its wells.The panel(Tashima [dis.],Bumatay, Rayes [D. Ariz.]) held that there were triable issues of fact on these questions.Current status:Awaiting vote; response filed 12/14/21.

Center for Community Action v. FAAThe issue:  Whether the FAA violated the National Environmental Policy Act by approving a new airport terminal without preparing a full environmental impact statement.The panel(Siler[CA6], Rawlinson [dis.], Bumatay [conc.]) held that it did not.Current status:  Awaiting vote; response filed 3/10/22.

Brown v. State of ArizonaThe issue:  Whether the University of Arizona can be held liable under Title IX for a female student’s physical abuse at the hands of her former boyfriend—a student on the university’s football team—that occurred at his off-campus residence.The panel(W. Fletcher [dis.], Miller,Forrest) held that it could not.Current status:  Awaiting potential invited amicus brief from the United States.

Mountain Communities for Fire Safety v. ElliotThe issue:  Whether U.S. Forest Service regulations allow the agency to reduce fire hazards by thinning commercially viable trees that it then sells to private parties?The panel(R. Nelson,Lee, Stein [S.D.N.Y.] [dis.]) held that the regulations permit such thinning.Current status:  Awaiting vote; response filed 5/31/22.

Rauda v. JenningsThe issue:  Whether the district court lacked jurisdiction to entertain the plaintiff’s request for an order precluding the government from deporting him until it had ruled on his motion to reopen his immigration proceedings.The panel(Rawlinson, Callahan, VanDyke) held that it did.Current status:  Awaiting government’s response.

Twitter, Inc. v. PaxtonThe issue:  Whether Twitter’s First Amendment challenge to Texas’s civil investigative demand into Twitter’s content moderation decisions was prudentially ripe.The panel(Bennett, R. Nelson, Bumatay) held that it was not.Current status:  Awaiting vote; response filed 5/24/22.

California Chamber of Commerce v. Council for Education and Research on ToxicsThe issue:  Whether the district court had properly issued a preliminary injunction, on First Amendment grounds, against further California Proposition 65 litigation concerning acrylamide in food products.The panel(Gould,Bennett, R. Nelson) held that it had.Current status:  Awaiting vote; response filed 5/27/22.

Friends of Alaska National Wildlife Refuges v. HaalandThe issue:  Whether the Secretary of the Interior had adequately explained his decision to change policy and approve a land exchange for construction of a road in the Izembek National Wildlife Refuge.The panel(Wardlaw [dis.],Miller, Bade) held that he had. Current status:Awaiting response. 

Singh v. GarlandThe issue:Whether an in absentia removal order is subject to rescission if the noncitizen did not receive a notice to appear in a single document specifying the time and date of the noncitizen’s removal proceedings.The panel(McKeown,Gould, Molloy [D. Mont.]) held that it is.Current status:  Awaiting vote; petitioner’s response filed 6/13/22.

United States v. RosenowThe issue:  Whether, in searching the defendant’s chat messages, Yahoo was working as a government agent for purposes of the Fourth Amendment.The panel(Graber [dis.], Callahan,Forrest) held that it was not.Current status:  Awaiting government’s response.

STILL LINGERING:

Jones v. RyanThe 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 vote; Petitioner-Appellant's response filed 12/2/21.

United States v. LopezThe 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 vote; Defendant-Appellee's response filed 10/12/21.

United States v. MoalinThe 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. WolfThe 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.

RECENT DEPARTURES:

Navajo Nation v. United States Department of the InteriorThe 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:  Rehearing denied 2/17/22.

Velaquez-Gaspar v. BarrThe 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:Rehearing denied 1/25/22.

United State v. OlsenThe 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:  Rehearing denied 1/6/22.

Columbia Export Terminal v. ILWUThe 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:  Rehearingdenied 1/5/22.

Nieves Martinez v. United StatesThe 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: Rehearing denied 12/3/21.

Soto-Soto v. GarlandThe 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:  Rehearing denied 11/18/21.

Thompson v. HebdonThe 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:  Review denied 10/27/21.

Silva v. GarlandThe 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.  Rehearing denied 10/22/21.

In re: PRGE&J Ret. Sys. Admin. v. Volkswagen AGThe 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) LLPThe 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. GearThe 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. PeeryThe 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:  Rehearingdenied 8/18/21.

Setty v. Suandhalaya (BNG) LLPThe 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 StatesThe 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.