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

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 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.
Current status: Rehearing granted 9/4/20.

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.
Current Status: Petition for rehearing en banc granted 5/7/20; argument scheduled for week of 9/21/20.

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 applies to privileged documents prepared at an agency’s request by a contractor or consultant.
En banc panel: Thomas, Graber, Wardlaw, Rawlinson, Callahan, M. Smith, Ikuta, Watford, Hurwitz, Collins, Bumatay.
Current status: Rehearing granted 1/30/20; originally scheduled for argument 3/11/20; argument deferred.

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.
En banc panel: Thomas, Berzon, Rawlinson, Christen, Watford, Bennett, Miller, Bade, Collins, Hunsaker, VanDyke.
Current status: Rehearing granted 1/23/20; originally scheduled for argument 3/10/20; argument deferred.

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.
En banc panel: Thomas, McKeown, Fletcher, Bybee, Ikuta, Nguyen, Watford, Owens, Bennett, Collins, Lee.
Current status: Rehearing granted 12/20/19; originally scheduled for argument 3/10/20; argument deferred

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.
Current status: Rehearing granted 11/18/19; case stayed pending the Supreme Court’s decision in Borden v. United States, No. 19-5410.

United States v. Collazo
The issue: Whether a defendant can be held liable under 21 U.S.C. § 841(b) for the drug quantities attributable to his or her coconspirators only if the coconspirator’s actions were both (1) in furtherance of that defendant’s agreement and (2) reasonably foreseeable to that defendant, or simply if one of these two requirements is satisfied.
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.
En banc panel: Thomas, Fletcher, Callahan, M. Smith, Ikuta, Nguyen, Watford, Hurwitz, Miler, Bade, Bress.
Current status: Ordered en banc 9/19/19; argued 1/13/20.

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.
Current status: Rehearing granted 2/8/19; case stayed pending the Supreme Court’s decision in New York State Rifle & Pistol Association, Inc, v. City of New York, No. 18-820; stay lifted 4/30/20.

RECENTLY RESOLVED

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

NEW ADDITIONS:

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:  Awaiting Defendant-appellee’s response. 

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: Awaiting Plaintiff-appellee’s response.

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:  Awaiting Plaintiff-appellant’s response.

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:  Awaiting Respondent’s response.

National Family Farm Coalition v. EPA
The issue:  Whether the EPA’s registration of a challenged pesticide had violated the Endangered Species Act. 
The panel (N.R. Smith, Watford [dissenting]; R. Nelson) held that it did not.
Current status:  Awaiting vote; Respondents’ and Intervenor’s responses filed 10/21/20.

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:  Awaiting Defendants-appellees’ response.

Nutrition Distribution LLC v. IronMag Labs, LLC
The issue:  Whether Rule 4(a)’s 30-day requirement for filing a notice of appeal is jurisdictional. 
The panel (M. Smith, Bade, Bress) held that it was.
Current status:  Awaiting vote; Defendants-appellees’ response filed 10/5/20.

AMA Multimedia, LLC v. Wanat
The issue:  Whether and how federal courts may exercise personal jurisdiction over foreign defendants that distribute online video content.
The panel (Gould [dissenting], Ikuta, R. Nelson) held that the personal jurisdiction was lacking because the defendant did not expressly aim its allegedly tortious conduct at the United States.
Current status:  Awaiting vote; Defendant-appellee’s response filed 9/18/20.

STILL LINGERING:

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:  Awaiting vote; Plaintiffs-appellees' response filed 9/18.

Kia Davidson v. O’Reilly Auto Enterprises, LLC
The issue:  Whether the district court abused its discretion by refusing to extend the deadline for the plaintiff to file a motion for class certification. 
The panel (Boggs [CA6], Ikuta, Christen [dissenting in part]) held that it did not. 
Current status:  Awaiting vote; Defendant-appellee’s response filed 9/17. 

Benson v. Chappell
The issue:  Whether the California Supreme Court’s decision denying a capital habeas petitioner’s ineffective assistance of counsel claim was reasonable. 
The panel (Callahan, Bea, Murguia [dissenting in part]) held that it was. 
Current status:  Awaiting Respondent-appellee’s response.

United States v. Kelley
The issue:  Whether the First Step Act, which granted re-sentencings to those sentenced of crack-cocaine offenses under prior versions of the Sentencing Guidelines, permits district courts to consider other subsequent changes in the law.  
The panel (Ikuta, R. Nelson, and Oliver [N.D. Ohio]) held that it did not. 
Current status:  Awaiting Plaintiff-appellee’s response. 

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:  Awaiting Respondents-appellees’ response.

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:  Awaiting vote; Plaintiffs-appellees’ response filed 7/21/20.

Vega-Anguiano v. Barr
The issue: Whether Petitioner could challenge ICE’s order reinstating of a prior removal order on the ground that the prior removal order was invalid.
The panel (Fletcher, Callahan [dissent], Christen) held that he could.
Current status: Awaiting vote; Petitioner’s response filed 5/22/20.

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: Awaiting vote; Defendants-Appellants’ response filed 3/24/20.

RECENT DEPARATURES:

Pakdel v. San Francisco
The issue:  Whether plaintiffs challenging local regulations as unconstitutional takings must first properly use available administrative procedures to seek a variance from those regulations.
The panel (Gould, Bea [dissenting], Friedland) held that they must.
Current status:  Rehearing denied 10/13/20.

Booker v. C.R. Bard, Inc. 
The issue:  Whether the express preemption provision of the Medical Device Amendments to the Food, Drug and Cosmetic Acts, 12 U.S.C. § 360k(a), applies to Class II medical devices. 
The panel (Graber, Hurwitz, Miller) rejected the Defendant-appellant’s preemption arguments. 
Current status:  Rehearing denied 10/7/20.

United States v. Gagarin
The issue:  Whether the aggravated identity theft offense, 18 U.S.C. § 1028A, encompasses individuals who use another person’s identification in a crime even when that second person consented to the use.
The panel (Gould, Bea, Friedland [concurring]) held that it does.
Current status:  Rehearing denied 10/1/20. 

Cook v. Kernan
The issue: Whether, under AEDPA, the California Supreme Court had reasonably rejected the claim of the plaintiff-appellant that he had not knowingly and intelligently waived his Miranda rights given his intellectual disability.
The panel (Callahan, N.R. Smith, Murguia [dissenting]) held that it had, and affirmed denial of the habeas petition.
Current status: Rehearing denied 9/28/20.

Allen v. Ives
The issue:  Whether a federal prisoner who claims that he is “actually innocent” of a sentencing enhancement, but not the underlying crime of conviction, may file a habeas petition under 28 U.S.C. § 2241.
The panel (Fletcher, Callahan [dissenting], Christen) held that he could.
Current status:  Rehearing denied 9/22/20.

NLRB v. IAB, Local 229
The issue: Whether the NLRB’s order directing the respondent union to “[c]ease and desist from inducing or encouraging” certain persons “to engage in a strike or a refusal to perform work in the course of employment” violates the First Amendment. 
The panel (Schroeder, Rawlinson, Lasnik (W.D. Wash.)) held it did not.
Current status: Rehearing denied 9/11/20.

Andersen v. Neven
The issue:  Whether the state court unreaosnably denied the habeas petitioner's claim of ineffective assistance of counsel.  
The panel (Thomas, Tashima, Wardlaw) held, in a memorandum disposition, that it did.
Current status:  Rehearing denied 9/11/20.

Mai v. United States
The issue: Whether 18 U.S.C. § 922(g)(4)—which prohibits anyone whom a state court has committed involuntarily to a mental institution from possessing a firearm—is unconstitutional as applied to someone whose commitment ended nearly twenty years ago. 
The panel (Graber, Gould, Ezra [D. Haw.]) upheld the statute’s constitutionality. 
Current status: Rehearing denied 9/10/20.

United States v. Cano
The issue: The scope of the border search exception to the Fourth Amendment. 
The panel (Graber, Bybee, Harpool (W.D. Mo.)) held that “cell phone searches at the border, whether manual or forensic, must be limited in scope to a search for digital contraband,” such as child pornography.
Current status: Rehearing denied 9/2/20.