STATUS OF PENDING EN BANC CASES

 

July 14, 2015

This report is provided for case identification and background information only and does not reflect the views of the court. When a case is heard or reheard en banc, the en banc court assumes jurisdiction over the entire case, see 28 U.S.C. § 46(c), regardless of the issue or issues that may have caused any member of the Court to vote to hear the case en banc. Summerlin v. Stewart, 309 F.3d 1193 (9th Cir. 2002).  In those cases where the parties have filed petitions for rehearing en banc and oppositions, you can access the pdfs by clicking the case title. 

 

Taylor v. Cate, 11-55247

Three-Judge Panel Opinion: 772 F.3d 842 (9th Cir. 2014)

Order Taking Case En Banc: 2015 WL 3540679 (9th Cir. June 5, 2015)

Date of Order Taking Case En Banc:  June 5, 2015

Status: To be calendared during the week of September 8, 2015, in San Francisco, California

Members of En Banc Court:  Not yet available

Subject Matter: Appeal from district court's denial of a 28 U.S.C. 2254 habeas petition brought by a California state prisoner who was convicted and originally sentenced for felony murder based on a jury finding that he was the shooter, but subsequently resentenced as an aider and abettor after the State of California concluded that he was not the shooter. 

Holding: Not yet decided

 

United States v. Swisher, 11-35796

Three-Judge Panel Opinion: 771 F.3d 514 (9th Cir. 2014)

Order Taking Case En Banc: 785 F.3d 1365 (9th Cir. 2015)

Date of Order Taking Case En Banc:  May 19, 2015

Status: To be calendared during the week of September 8, 2015, in San Francisco, California

Members of En Banc Court:  Not yet available

Subject Matter: Appeal from district court's denial of defendant's 28 U.S.C. 2255 motion challenging his conviction for wearing military medals without authorization in violation of 18 U.S.C. 704(a) (2002 ed.)

Holding: Not yet decided

 

Almanza-Arenas v. Lynch, 09-71415+

Three-Judge Panel Opinion: 771 F.3d 1184 (9th Cir. 2014)

Order Taking Case En Banc: 785 F.3d 366 (9th Cir. 2015)

Date of Order Taking Case En Banc:  May 8, 2015

Status: To be calendared during the week of September 8, 2015, in San Francisco, California

Members of En Banc Court:  Not yet available

Subject Matter: Petition for review of Board of Immigration Appeals' published decision holding that a California state law conviction for vehicle theft under California Vehicle Code 10851(a) constitutes a crime of moral turpitude  

Holding: Not yet decided

 

McMonagle v. Meyer, 12-15360

Three-Judge Panel Opinion: 766 F.3d 1151 (9th Cir. 2014)

Order Taking Case En Banc: 782 F.3d 554 (9th Cir. 2015)

Date of Order Taking Case En Banc:  April 3, 2015

Status: Argued and submitted June 18, 2015, at 9:00 a.m., in San Francisco, California

Members of En Banc Court:  Chief Judge Thomas, Judges Pregerson, Silverman, McKeown, Wardlaw, Clifton, Callahan, M. Smith, Christen, Nguyen and Friedland

Subject Matter: Appeal by California state prisoner from dismissal of 28 U.S.C. 2254 habeas petition as unitimely 

Holding: Not yet decided

 

Richards v. Prieto, 11-16255

Three-Judge Panel Opinion: 560 F. App'x 681 (9th Cir. 2014)

Order Taking Case En Banc: 782 F.3d 417 (9th Cir. 2015) 

Date of Order Taking Case En Banc:  March 26, 2015

Status: Argued and submitted June 16, 2015, at 3:30 p.m., in San Francisco, California; consolidated with Peruta v. County of San Diego, 10-56971

Members of En Banc Court:  Chief Judge Thomas, Judges Pregerson, Silverman, Graber, McKeown, W. Fletcher, Paez, Callahan, Bea, N.R. Smith and Owens

Subject Matter: Appeal by Yolo County residents and others challenging under the Second Amendment the County's policies for issuing a license to carry a concealed weapon

Holding: Not yet decided

 

Peruta v. County of San Diego, 10-56971

Three-Judge Panel Opinions: 742 F.3d 1144 (9th Cir. 2014); 771 F.3d 570 (9th Cir. 2014) 

Order Taking Case En Banc: 781 F.3d 1106 (9th Cir. 2015)

Date of Order Taking Case En Banc:  March 26, 2015

Status: Argued and submitted June 16, 2015, at 3:30 p.m., in San Francisco, California; consolidated with Richards v. Prieto, 11-16255

Members of En Banc Court:  Chief Judge Thomas, Judges Pregerson, Silverman, Graber, McKeown, W. Fletcher, Paez, Callahan, Bea, N.R. Smith and Owens

Subject Matter: Appeal by County of San Diego residents challenging under the Second Amendment the County's policies for obtaining a license to carry a concealed weapon  

Holding: Not yet decided

 

United States v. Dreyer, No. 13-30077

Three-Judge Panel Opinion: 767 F.3d 826 (9th Cir. 2014)

Order Taking Case En Banc: 782 F.3d 416 (9th Cir. 2015) 

Date of Order Taking Case En Banc:  March 25, 2015

Status: Argued and submitted June 17, 2015, at 3:00 p.m., in San Francisco, California

Members of En Banc Court:  Chief Judge Thomas, Judges Reinhardt, Silverman, Berzon, Callahan, M. Smith, Murguia, Christen, Watford, Owens and Friedland

Subject Matter: Appeal by criminal defendant of his conviction for distribution and possession of child pornography based on an investigation launched by a special agent of the Naval Criminal Investigative Service

Holding: Not yet decided

 

McDaniels v. Kirkland, 09-17339; Jenkins v. Evans, 11-15030

Three-Judge Panel Opinion: 760 F.3d 933 (9th Cir. 2014)

Order Taking Case En Banc: 778 F.3d 1100 (9th Cir. 2015)

Date of Order Taking Case En Banc:  February 26, 2015

Status: Argued and submitted June 16, 2015, at 1:00 p.m., in San Francisco, California

Members of En Banc Court:  Chief Judge Thomas, Judges Pregerson, McKeown, W. Fletcher, Berzon, Tallman, Callahan, Ikuta, Christen, Hurwitz and Friedland

Subject Matter: Appeal of the district court's judgment denying two 28 U.S.C. section 2254 habeas corpus petitions alleging that the prosecutor excluded African-American jurors based on race during jury selection

Holding: Not yet decided

 

America’s Servicing Company v. Schwartz-Tallard, 12-60052

Three-Judge Panel Opinion: 765 F.3d 1096 (9th Cir. 2014)

Order Taking Case En Banc: 774 F.3d 959 (9th Cir. 2014)

Date of Order Taking Case En Banc:  December 19, 2014

Status: Argued and submitted June 17, 2015, at 9:00 a.m., in San Francisco, California

Members of En Banc Court:  Chief Judge Thomas, Judges Reinhardt, O'Scannlain, McKeown, W. Fletcher, Tallman, Bea, M. Smith, Ikuta, Watford and Hurwitz

Subject Matter: Appeal of the Bankruptcy Appellate Panel's decision permitting debtor in bankruptcy to recover, as damages, attorneys’ fees for defending against a creditor’s appeal of a finding that the creditor violated the automatic stay

Holding: Not yet decided

 

United States ex rel. Hartpence v. Kinetic Concepts, Inc., 12-55396+

Three-Judge Panel Opinion: None

Order Taking Case En Banc:  772 F.3d 1183 (9th Cir. 2014)

Date of Order Taking Case En Banc:  December 3, 2014

En Banc Opinion:   2015 WL 4080739 (9th Cir. July 7, 2015)

Date of En Banc Opinion:  July 7, 2015

Members of En Banc Court:  Thomas, Reinhardt, Kozinski, Wardlaw, W. Fletcher, Gould, Berzon, Callahan, Bea, Ikuta, N.R. Smith

Subject Matter: Appeal of the district court’s Fed. R. Civ. P. 12(b)(1) dismissals of qui tam claims under the False Claims Act alleging that companies improperly billed Medicare

Holding: The en banc court reversed the district court's dismissal of consolidated civil qui tam suits brought on the government's behalf under the False Claims Act, holding that a whistleblower need not have played any role in making a disclosure public to be considered an original source under the Act.

 

Garcia v. Google, Inc., 12-57302

Three-Judge Panel Opinion: 743 F.3d 1258 (9th Cir. 2014)

Order Taking Case En Banc: 771 F.3d 647 (9th Cir. 2014)

Date of Order Taking Case En Banc:  November 12, 2014

En Banc Opinion: 786 F.3d 733 (9th Cir. 2015)

Date of En Banc Opinion:  May 18, 2015

Members of En Banc Court:  Thomas, Kozinski, McKeown, Berzon, Rawlinson, Clifton, Callahan, N.R. Smith, Murguia, Christen, Watford

Subject Matter: Appeal of the district court’s denial of a preliminary injunction sought by an actress who received death threats due to her performance in an unreleased film that was modified and incorporated into an anti-Islamic video uploaded to YouTube

Holding:  The en banc court held that the district court did not abuse its discretion in denying Garcia's motion for a preliminary injunction requiring Google, Inc. to remove the film from all its platforms becaue the law and facts did not clearly favor her claim to a copyright in her acting performance as it appeared in Innocence of Muslims.

  

Wolfson v. Concannon, 11-17634

Three-Judge Panel Opinion: 750 F.3d 1145 (9th Cir. 2014)

Order Taking Case En Banc: 768 F.3d 999 (9th Cir. 2014)

Date of Order Taking Case En Banc: September 26, 2014

Status: On June 12, 2015, the parties filed simultaneous supplemental briefs on the impact of Williams-Yulee v. Florida State Bar, 135 S. Ct. 1656 (2015), on this appeal

Members of En Banc Court: Not yet available

Subject Matter: Appeal by a candidate for elected judicial office, of the district court's summary judgment in his 42 U.S.C. § 1983 action challenging the constitutionality of provisions of the Arizona Code of Judicial Conduct on the ground that they violate the First Amendment

Holding: Not yet decided

  

Organized Village of Kake v. U.S. Dept. of Agriculture, 11-35517

Three-Judge Panel Opinion: 746 F.3d 970 (9th Cir. 2014)

Order Taking Case En Banc:  765 F.3d 1117 (9th Cir. 2014)

Date of Order Taking Case En Banc:  August 29, 2014

Status:   Argued and submitted  December 16, 2014

Members of En Banc Court:  Thomas, Pregerson, Kozinski, W. Fletcher, Tallman, Clifton, Callahan, M. Smith, Christen, Nguyen, Hurwitz

Subject Matter:  Appeal by intervenor State of Alaska of the district court’s summary judgment in favor of the Organized Village of Kake and others, invalidating a U.S. Department of Agriculture regulation exempting the Tongass National Forest from application of the Roadless Rule

Holding:  Not yet decided

 

United States v. Bonds, 11-10669

Three-Judge Panel Opinion: 730 F.3d 890 (9th Cir. 2013)

Order Taking Case En Banc:  757 F.3d 994 (9th Cir. 2014)

Date of Order Taking Case En Banc: June 12, 2014

En Banc Opinion:   2015 WL 1842752 (9th Cir. Apr. 22, 2015)

Date of En Banc Opinion:  April 22, 2015

Status:  Order filed staying mandate until July 22, 2015

Members of En Banc Court:  Kozinski, Reinhardt, O'Scannlain, Graber, Wardlaw, W. Fletcher, Rawlinson, Callahan, N.R. Smith, Nguyen, Friedland

Subject Matter: Appeal by baseball player Barry Bonds of his conviction for obstruction of justice, in violation of 18 U.S.C. § 1503

Holding:  The en banc court reversed Barry Bonds's conviction for obstruction of justice in a case in which Bonds gave a rambling, non-responsive answer to a question during grand jury proceedings. 

 

Big Lagoon Rancheria v. California, 10-17803+

Three-Judge Panel Opinion: 741 F.3d 1032 (9th Cir. 2014)

Order Taking Case En Banc:  758 F.3d 1073 (9th Cir. 2014)

Date of Order Taking Case En Banc: June 11, 2014

En Banc Opinion:   2015 WL 3499884 (9th Cir. June 4, 2015)

Date of En Banc Opinion:  June 4, 2015; amended July 8, 2015

Members of En Banc Court: Kozinski, Pregerson, Reinhardt, O'Scannlain, Graber, W. Fletcher, Paez, Bybee, M. Smith, Christen, Nguyen

Subject Matter:  Appeal by both parties from the district court’s summary judgment in favor of an Indian tribe in the tribe's action alleging that the State of California violated the Indian Gaming Regulatory Act.

Holding:  The en banc court affirmed the district court's summary judgment in favor of an Indian tribe in the tribe's action alleging that the State of California failed to negotiate in good faith for a gaming compact under the Indian Gaming Regulatory Act, rejecting the State's argument that the tribe lacked standing to compel the State to negotiate in good faith under the Act.

  

McKinney v. Ryan, 09-99018

Three-Judge Panel Opinion: 730 F.3d 903 (9th Cir. 2013)

Order Taking Case En Banc:  745 F.3d 963 (9th Cir. 2014)  

Date of Order Taking Case En Banc: March 12, 2014

Status:   Argued and submitted December 15, 2014.

Members of En Banc Court:  Thomas, Kozinski, Wardlaw, W. Fletcher, Gould, Berzon, Tallman, Callahan, Bea, Christen, Nguyen

Subject Matter: Appeal by Arizona state prisoner of the district court’s denial of his 28 U.S.C. § 2254 habeas corpus petition challenging his jury conviction and capital sentence for two counts of murder.

Holding: Not yet decided

  

United States v. Zepeda, 10-10131

Three-Judge Panel Opinion: 738 F.3d 201 (9th Cir. 2013)

Order Taking Case En Banc: 742 F.3d 910 (9th Cir. 2014)

Date of Order Taking Case En Banc: February 10, 2014

En Banc Opinion:  2015 WL 4080164 (9th Cir. July 7, 2015)

Date of En Banc Opinion:  July 7, 2015 

Members of En Banc Court:  Kozinski, Pregerson, Silverman, Wardlaw, W. Fletcher, Gould, Paez, Tallman, Callahan, Ikuta, Christen

Subject Matter: Appeal by criminal defendant of his conviction for conspiracy to commit assault with a dangerous weapon and other offenses under the Major Crimes Act, which provides for federal jurisdiction for certain crimes committed by Indians in Indian country.

Holding:  The en banc court affirmed the defendant's conviction, holding that the evidence at trial was sufficient to support a finding that the defendant was an Indian within the meaning of the Indian Major Crimes Act at the time of his crimes.

 

Mondaca-Vega v. Holder, 03-71369

Three-Judge Panel Opinion: 718 F.3d 1075 (9th Cir. 2013)

Order Taking Case En Banc: 735 F.3d 1093 (9th Cir. 2013)

Date of Order Taking Case En Banc: November 6, 2013

Status:  Argued and submitted March 17, 2014.  Submission was vacated and the matter referred to the Circuit Mediation Office for further proceedings on April 1, 2014.  Resubmitted on February 3, 2015. 

Members of En Banc Court: Kozinski, Pregerson, Thomas, Silverman, W. Fletcher, Rawlinson, Bybee, N.R. Smith, Murguia, Nguyen, Hurwitz

Subject Matter: Petition for review from the district court’s decision finding that petitioner is not a United States citizen.

Holding: Not yet decided

 

Frost v. Van Boening, 11-35114

Three-Judge Panel Opinion:  692 F.3d 924 (9th Cir. 2012)

Order Taking Case En Banc: 707 F.3d 1143 (9th Cir. 2013)

Date of Order Taking Case En Banc: February 25, 2013

En Banc Opinion: 757 F.3d 910 (9th Cir. 2014)

Date of En Banc Opinion: April 29, 2014

Status:  United States Supreme Court reversed and remanded on December 17, 2014.  The en banc court ordered the parties to file simultaneous briefs on or before July 20, 2015, on the question of whether the state's error was harmless.

Members of En Banc Court: Kozinski, Reinhardt, Thomas, Wardlaw, Paez, Tallman, Rawlinson, Bybee, Callahan, M. Smith, Nguyen

Subject Matter: Appeal from the district court's denial of a 28 U.S.C. § 2254 habeas corpus petition challenging a jury conviction of robbery, burglary, assault and attempted robbery.  

 

Sachs v. Republic of Austria, 11-15458

Three-Judge Panel Opinion: 695 F.3d 1021 (9th Cir. 2012)

Order Taking Case En Banc: 705 F.3d 1112 (9th Cir. 2013)

Date of Order Taking Case En Banc: January 25, 2013

En Banc Opinion: 737 F.3d 584 (9th Cir. 2013)

Date of En Banc Opinion: December 6, 2013

Status: United States Supreme Court granted certiorari on January 22, 2015. 

Members of En Banc Court: Kozinski, Reinhardt, O'Scannlain, Silverman, Graber, Wardlaw, Fisher, Gould, Berzon, Rawlinson, Hurwitz

Subject Matter: Appeal by rail passenger of the district court’s dismissal for lack of subject matter jurisdiction under the Foreign Sovereign Immunities Act of her action for injuries sustained while she attempted to board a train in Austria.

Holding: A foreign-state owned common carrier engages in commercial activity in the United States, and thus is not immune from suit under the Foreign Sovereign Immunities Act, when it sells tickets in the United States through a travel agent, regardless of whether the travel agent is a direct agent or subagent of the common carrier.

 

Sessoms v. Runnels, 08-17790

Three-Judge Panel Opinion: 650 F.3d 1276 (9th Cir. 2011)

Order Taking Case En Banc: 665 F.3d 1104 (9th Cir. 2011)

Date of Order Taking Case En Banc:  December 15, 2011

Date of Initial En Banc Opinion:  August 16, 2012

En Banc Opinion On Remand from the Supreme Court:  768 F.3d 882 (9th Cir. 2014); amended by 776 F.3d 615 (9th Cir. 2015)

Date of En Banc Opinion On Remand from the Supreme Court:  September 22, 2014; amended January 23, 2015

Status:  On remand from the Supreme Court, the en banc court reversed the district court’s judgment denying a 28 U.S.C. § 2254 habeas corpus petition.  Amended opinion denied petition for rehearing.  Government's motion to stay the mandate granted on February 2, 2015.  Second motion to stay the mandate granted on April 21, 2015.  Petition for writ of certiorari filed on May 22, 2015

Members of En Banc Court:  Kozinski, Schroeder, Silverman, McKeown, Wardlaw, Fisher, Paez, Callahan, M. Smith, Ikuta, Murguia

Subject Matter:  Appeal of district court’s denial of habeas corpus petition challenging a felony murder conviction.

Holding:  The California Court of Appeal’s conclusion that Sessoms did not make an unequivocal or unambiguous request for an attorney as required under Davis v. United States, 512 U.S. 452, 459 (1994), was an unreasonable application of Supreme Court precedent.