STATUS OF PENDING EN BANC CASES

 

May 7, 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. 

 

Brian McMonagle v. Don 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: Calendared June 18, 2015, at 9:00 a.m., in San Francisco, California

Members of En Banc Court:  Not yet available

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: Calendared 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:  Not yet available

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

Members of En Banc Court:  Not yet available

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: Calendared June 17, 2015, at 3:00 p.m., in San Francisco, California

Members of En Banc Court:  Not yet available

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: Calendared June 16, 2015, at 1:00 p.m., in San Francisco, California

Members of En Banc Court:  Not yet available

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: Calendared June 157, 2015, at 9:00 a.m., in San Francisco, California

Members of En Banc Court:  Not yet available

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

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

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: Not yet decided

 

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

Status: Argued and submitted December 15, 2014

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: Not yet decided

 

Sam Francis Foundation v. Christie’s, Inc., 12-56067+

Three-Judge Panel Opinion: None

Order Taking Case En Banc: 769 F.3d 1195 (9th Cir. 2014)

Date of Order Taking Case En Banc:  October 30, 2014

En Banc Opinion:  2015 WL 2059003 (9th Cir. May 5, 2015)

Date of En Banc Opinion:  May 5, 2015

Members of En Banc Court:  Thomas, Pregerson, Reinhardt, O'Scannlain, Silverman, Graber, McKeown, Berzon, Callahan, Bea, Hurwitz

Subject Matter: Consolidated appeals from the district court's order granting joint motions to dismiss diversity actions alleging violations of California’s Resale Royalties Act and Unfair Competition Law

Holding: The en banc court held that a clause of California's Resale Royalty Act regulates sales of fine arts outside the state of California facially violates the dormant Commerce Clause, but the clause is severable from the remainder of the Act. 

 

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: Parties ordered to file simultaneous supplemental briefs, on or before June 5, 2015, on the impact of Williams-Yulee v. Florida State Bar, 2015 WL 1913912 (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

 

Maldonado v. Lynch, 09-71491

Three-Judge Panel Opinion: None

Order Taking Case En Banc: 760 F.3d 1070 (9th Cir. 2014)

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

En Banc Opinion:   781 F.3d 1107 (9th Cir. 2015)

Date of En Banc Opinion:  March 27, 2015

Members of En Banc Court: Kozinski, Wardlaw, Gould, Paez, Clifton, M. Smith, Ikuta, N.R. Smith, Christen, Watford, Friedland

Subject Matter: Petition for review of the Board of Immigration Appeals’ order affirming an Immigration Judge’s denial of petitioner's application for deferral of removal under the Convention Against Torture

Holding:  The en banc court overruled Hassan v. Ashcroft, 380 F.3d 1114 (9th Cir. 2004), Lemus-Galvan v. Mukasey, 518 F.3d 1081 (9th Cir. 2008), Singh v. Gonzales, 439 F.3d 1100 (9th Cir. 2006), and Perez-Ramirez v. Holder, 648 F.3d 953 (9th Cir. 2011), to the extent they conflict with the plain text of the regulations governing internal relocation and deferral of removal under the Convention Against Torture, and granted the petition for review and vacated and remanded to the Board of Immigration Appeals for consideration of the petitioner's claim for deferral of removal.  

 

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..

 

Aircraft Service International Inc. v. Working Washington, 12-36026

Three-Judge Panel Opinion: 742 F.3d 1110 (9th Cir. 2014)

Order Taking Case En Banc: 753 F.3d 1362 (9th Cir. 2014)

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

En Banc Opinion:  2015 WL 1020044 (9th Cir. Mar. 10, 2015) 

Date of En Banc Opinion:  March 10, 2015 

Members of En Banc Court:  Kozinski, O'Scannlain, Kleinfeld, Silverman, Graber, Paez, Berzon, Tallman, Hurwitz, Owens, Friedland

Subject Matter: Appeal by Aircraft Service International employees of the district court’s preliminary injunction prohibiting them from striking or encouraging a strike.

Holding:  The en banc court reversed and vacated the district court's preliminary injunction in favor of Aircraft Service International prohibiting employees from striking because there was no evidence that Aircraft Service International made every effort to settle the dispute, as required by section 8 of the Norris-La Guardia Act. 

 

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

Status:  Argued and submitted September 17, 2014.

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

Subject Matter: Indian tribe appeals the district court’s summary judgment in its action alleging that the State of California violated the Indian Gaming Regulatory Act.

Holding: Not yet decided

  

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: Not yet available

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

Status:  Argued and submitted June 18, 2014.  The parties filed supplemental briefs in response to the court's order. 

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: Not yet decided

 

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. 

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.

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.