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STATUS OF PENDING EN BANC CASES |
June 17, 2013
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.
United States v. Maloney, 11-50311
Three-Judge Panel Opinion: 699 F.3d 1130 (9th Cir. 2012)
Order Taking Case En Banc: 2013 WL 2358595 (9th Cir. May 30, 2013)
Date of Order Taking Case En Banc: May 30, 2013
Status: To be calendared the week of September 16, 2013, in San Francisco, California
Members of En Banc Court: Not yet available
Subject Matter: Appeal by criminal defendant of his jury conviction and sentence for possession of marijuana with intent to distribute.
Holding: Not yet decided
United States v. Valdes-Vega, 10-50249
Three-Judge Panel Opinion: 685 F.3d 1138 (9th Cir. 2012)
Order Taking Case En Banc: 714 F.3d 1134 (9th Cir. 2013)
Date of Order Taking Case En Banc: April 25, 2013
Status: Calendared June 25, 2013, 10:00 a.m., Seattle, Washington
Members of En Banc Court: Kozinski, Pregerson, Reinhardt, Thomas, McKeown, Gould, Bybee, Ikuta, Christen, Watford, Hurwitz
Subject Matter: Appeal from the district court's denial of the defendant's motion to suppress cocaine found in his truck stopped by Border Patrol agents 70 miles north of the U.S.-Mexico Border.
Holding: Not yet decided
Barabin v. AstenJohnson, Inc., 10-36142
Three-Judge Panel Opinion: 700 F.3d 428 (9th Cir. 2013)
Order Taking Case En Banc: 710 F.3d 1074 (9th Cir. 2013)
Date of Order Taking Case En Banc: March 25, 2013
Status: Calendared June 25, 2013, 2:00 p.m., Seattle, Washington
Members of En Banc Court: Kozinski, O’Scannlain, McKeown, W. Fletcher, Tallman, Rawlinson, Bybee, M. Smith, N. Smith, Nguyen, Watford
Subject Matter: Appeal from the district court’s judgment, following a jury trial, in a diversity action alleging damages arising out of a paper mill worker’s occupational exposure to asbestos.
Holding: Not yet decided
Three-Judge Panel Opinion: 697 F.3d 1023 (9th Cir. 2012)
Order Taking Case En Banc: 709 F.3d 994 (9th Cir. 2013)
Date of Order Taking Case En Banc: March 12, 2013
Status: Calendared June 27, 2013, 10:00 a.m., Seattle, Washington
Members of En Banc Court: Kozinski, Reinhardt, Wardlaw, W. Fletcher, Tallman, Bybee, M. Smith, Ikuta, N. Smith, Murguia, Watford
Subject Matter: Appeal from the district court's summary judgment dismissal of a prisoner's 42 U.S.C. § 1983 action for failure to exhaust administrative remedies as required by the Prison Litigation Reform Act, 42 U.S.C. § 1997e(a).
Holding: Not yet decided
Natural Resources Defense Council v. Salazar, 09-17661
Three-Judge Panel Opinion: 686 F.3d 1092 (9th Cir. 2012)
Order Taking Case En Banc: 710 F.3d 874 (9th Cir. 2013)
Date of Order Taking Case En Banc: February 25, 2013
Status: To be calendared the week of September 16, 2013, San Francisco, California.
Members of En Banc Court: Not yet available
Subject Matter: Appeal from the district court's summary judgment in environmental groups’ action challenging water diversion operations from Central Valley Project.
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
Status: Calendared June 26, 2013, 9:30 a.m., Seattle, Washington
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.
Holding: Not yet decided
Patel v. City of Los Angeles, 08-56567
Three-Judge Panel Opinion: 686 F.3d 1085 (9th Cir. 2012)
Order Taking Case En Banc: 708 F.3d 1075 (9th Cir. 2013)
Date of Order Taking Case En Banc: February 13, 2013
Status: Calendared June 24, 2013, 2:00 p.m., Seattle, Washington
Members of En Banc Court: Kozinski, O'Scannlain, Fisher, Berzon, Tallman, Clifton, Callahan, M. Smith, Murguia, Christen, Watford
Subject Matter: Appeal from the district court's judgment following a bench trial in a 42 U.S.C. § 1983 action challenging the City of Los Angeles' motel register inspection ordinance, which permits the police to search and seize motel registration records without consent or a warrant.
Holding: Not yet decided
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
Status: Argued and submitted March 21, 2013.
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: Not yet decided
Three-Judge Panel Opinion: 688 F.3d 1054 (9th Cir. 2012)
Order Taking Case En Banc: 704 F.3d 816 (9th Cir. 2013)
Date of Order Taking Case En Banc: January 4, 2013
Status: Calendared June 24, 2013, 10:00 a.m., Seattle, Washington
Members ofcar 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 felony first degree murder, armed robbery and conspiracy to commit armed robbery.
Holding: Not yet decided
Three-Judge Panel Opinion: None
Order Taking Case En Banc: 704 F.3d 816 (9th Cir. 2013)
Date of Order Taking Case En Banc: January 3, 2013
Status: Argued and submitted March 20, 2013.
Members of En Banc Court: Kozinski, Pregerson, Tashima, McKeown, W. Fletcher, Berzon, Clifton, Bybee, Bea, M. Smith, Murguia
Subject Matter: Appeal by Kwai Wong, the Matriarch of the Tao Heritage, and the Wu-Wei Tien Tao Association, from the district court's summary judgment in her action alleging that visual cavity strip searches performed on her while in custody of the former INS (now Department of Homeland Security) at the Multnomah County Jail, violated her constitutional rights.
Holding: Not yet decided
Three-Judge Panel Opinion: 692 F.3d 1021 (9th Cir. 2012)
Order Taking Case En Banc: 704 F.3d 1067 (9th Cir. 2012)
Date of Order Taking Case En Banc: December 19, 2012
Status: Argued and submitted March 19, 2013.
Members of En Banc Court: Kozinski, Pregerson, O'Scannlain, Thomas, Silverman, Graber, Wardlaw, Paez, Murguia, Christen, Nguyen
Subject Matter: Appeal by bankruptcy trustee of the bankruptcy court’s order confirming debtors’ Chapter 13 plan.
Holding: Not yet decided
Three-Judge Panel Opinion: 689 F.3d 1094 (9th Cir. 2012)
Order Taking Case En Banc: 704 F.3d 1043 (9th Cir. 2012)
Date of Order Taking Case En Banc: December 11, 2012
Status: Argued and submitted March 20, 2013.
Members of En Banc Court: Kozinski, Pregerson, Reinhardt, O’Scannlain, Graber, Paez, Berzon, Rawlinson, Callahan, Bea, M. Smith
Subject Matter: Appeal by a City of Burbank police officer of the district court's Fed. R. Civ. P. 12(b)(6) dismissal of his 42 U.S.C. § 1983 action.
Holding: Not yet decided
Minority Television Project v. FCC, 09-17311
Three-Judge Panel Opinion: 676 F.3d 869 (9th Cir. 2012)
Order Taking Case En Banc: 704 F.3d 1009 (9th Cir. 2012)
Date of Order Taking Case En Banc: November 21, 2012
Status: Argued and submitted March 19, 2013, 10:00 a.m.
Members of En Banc Court: Kozinski, Noonan, Silverman, McKeown, Wardlaw, W. Fletcher, Gould, Berzon, Rawlinson, Callahan, Hurwitz
Subject Matter: Appeal by public broadcast television station of the district court’s summary judgment in favor of the Federal Communications Commission.
Holding: Not yet decided
Three-Judge Panel Opinion: 677 F.3d 958 (9th Cir. 2012)
Order Taking Case En Banc: 696 F.3d 1265 (9th Cir. 2012)
Date of Order Taking Case En Banc: October 3, 2012
Status: Argued and submitted December 10, 2012.
Members of En Banc Court: Kozinski, Pregerson, Reinhardt, Graber, W. Fletcher, Gould, Bea, Murguia, Christen, Nguyen, Watford
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 first degree murder and kidnapping.
Holding: Not yet decided
Kilgore v. Keybank, National Association, 09-16703+
Three-Judge Panel Opinion: 673 F.3d 947 (9th Cir. 2012)
Order Taking Case En Banc: 697 F.3d 1191 (9th Cir. 2012)
Date of Order Taking Case En Banc: September 21, 2012
En Banc Opinion: 2013 WL 1458876 (9th Cir. April 11, 2013)
Date of En Banc Opinion: April 11, 2013
Status: Reversed the district court’s dismissal of plaintiffs’ claims and the denial of defendants’ motion to compel arbitration, and remanded with instructions to compel arbitration.
Members of En Banc Court: Kozinski, Pregerson, McKeown, W. Fletcher, Tallman, Callahan, M. Smith, Murguia, Christen, Watford, Hurwitz
Subject Matter: Consolidated appeals in student loan borrowers’ putative class action against lenders seeking to enjoin them from collecting loans or reporting loan balances to credit reporting agencies.
Holding: The district court should have compelled arbitration under California law. The arbitration clause was neither substantively nor procedurally unconscionable under California law.
Stengel v. Medtronic Inc., 10-17755
Three-Judge Panel Opinion: 676 F.3d 1159 (9th Cir. 2012)
Order Taking Case En Banc: 686 F.3d 1121 (9th Cir. 2012)
Date of Order Taking Case En Banc: July 25, 2012
En Banc Opinion: 704 F.3d 1224 (9th Cir. 2013)
Date of En Banc Opinion: January 10, 2013
Status: Reversed the district court's order dismissing appellants' state-law failure-to-warn claim as preempted by the Medical Device Amendments to the Food, Drug, and Cosmetic Act.
Members of En Banc Court: Kozinski, Thomas, Silverman, Graber, McKeown, W. Fletcher, Gould, Rawlinson, Clifton, N. Smith, Watford
Subject Matter: Appeal from the district court’s dismissal, as preempted by federal law, of state law claims against the manufacturer of a medical pain pump.
Holding: The Amendments do not preempt a state-law claim for violating a state-law duty that parallels a federal-law duty under the Amendments.
Three-Judge Panel Opinion: 669 F.3d 1049 (9th Cir. 2012)
Order Taking Case En Banc: 686 F.3d 1121 (9th Cir. 2012)
Date of Order Taking Case En Banc: July 25, 2012
Status: Argued and submitted September 19, 2012. Submission deferred pending the U.S. Supreme Court’s decision in King v. Maryland, 42 A.3d 549 (Md. 2012), cert. granted, 81 U.S.L.W. 3127 (U.S. Nov. 9, 2012) (No. 12–207).
Members of En Banc Court: Kozinski, Pregerson, McKeown, Fisher, Gould, Paez, Tallman, Rawlinson, M. Smith, N. Smith, Watford
Subject Matter: Appeal from the district court’s denial of a preliminary injunction in a class action seeking to stop enforcement of the 2004 Amendment to California's DNA and Forensic Identification Data Base and Data Bank Act of 1998 (DNA Act).
Holding: Not yet decided
Oshodi v. Holder, 08-71478
Three-Judge Panel Opinion: 671 F.3d 1002 (9th Cir. 2012)
Order Taking Case En Banc: 678 F.3d 776 (9th Cir. 2012)
Date of Order Taking Case En Banc: May 3, 2012
Status: Argued and submitted December 11, 2012.
Members of En Banc Court: Kozinski, Reinhardt, Wardlaw, W. Fletcher, Gould, Paez, Rawlinson, Bybee, M. Smith, Murguia, Christen
Subject Matter: Petition for review from the Board of Immigration Appeals’ order affirming an Immigration Judge’s denial of asylum, withholding of removal and relief under the Convention Against Torture.
Holding: Not yet decided
Cuellar De Osorio v. Mayorkas, 09-56786+
Three-Judge Panel Opinion: 656 F.3d 954 (9th Cir. 2011)
Order Taking Case En Banc: 677 F.3d 921 (9th Cir. 2012)
Date of Order Taking Case En Banc: April 20, 2012
En Banc Opinion: 695 F.3d 1003 (9th Cir. 2012)
Date of En Banc Opinion: September 26, 2012
Status: Reversed the district court's grants of summary judgment in favor of the United States Citizen and Immigration Services.
Members of En Banc Court: Kozinski, Pregerson, McKeown, Wardlaw, W. Fletcher, Fisher, Gould, Paez, Rawlinson, M. Smith, Murguia
Subject Matter: Appeal of the district court’s summary judgment upholding the Board of Immigration Appeals’ determination finding that appellants’ children were not entitled to relief under the Child Status Protection Act.
Holding: The BIA’s holding in precedential decision Matter of Wang, 25 I. & N. Dec. 28 (BIA 2009), that the CSPA does not apply to all derivative beneficiaries, is not entitled to deference. The CSPA grants automatic conversion and priority date retention to aged-out derivative beneficiaries.
United States v. Cotterman, 09-10139
Three-Judge Panel Opinion: 637 F.3d 1068 (9th Cir. 2011)
Order Taking Case En Banc: 673 F.3d 1206 (9th Cir. 2012)
Date of Order Taking Case En Banc: March 19, 2012
En Banc Opinion: 709 F.3d 952 (9th Cir. 2013)
Date of En Banc Opinion: March 8, 2013
Status: Reversed the district court’s order suppressing evidence of child pornography obtained from a forensic examination of defendant’s laptop.
Members of En Banc Court: Kozinski, Thomas, McKeown, Wardlaw, Fisher, Gould, Clifton, Callahan, M. Smith, Murguia, Christen
Subject Matter: Interlocutory appeal by the United States from the district court's order suppressing evidence found on a laptop computer, in a prosecution for production of child pornography and other charges.
Holding: A border search of a computer is not transformed into an "extended border search" requiring particularized suspicion simply because the device is transported and examined beyond the border. Forensic examination of defendant's computer required a showing of reasonable suspicion. The examination of his electronic devices was supported by reasonable suspicion, and the scope and manner of the search were reasonable under the Fourth Amendment.
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
En Banc Opinion: 691 F.3d 1054 (9th Cir. 2012)
Date of En Banc Opinion: August 16, 2012
Status: Reversed the district court’s denial of petitioner’s habeas corpus petition.
Members of En Banc Court: Kozinski, Schroeder, B. Fletcher, Silverman, 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 unreasonably applied clearly established Supreme Court precedent in concluding that petitioner was required under Davis v. United States, 512 U.S. 452, 459 (1994), to unambiguously invoke his right to counsel.
Movsesian v. Versicherung AG, 07-56722
Three-Judge Panel Opinion: 629 F.3d 901 (9th Cir. 2010)
Order Taking Case En Banc: 671 F.3d 856 (9th Cir. 2011)
Date of Order Taking Case En Banc: November 7, 2011
En Banc Opinion: 670 F.3d 1067 (9th Cir. 2012)
Date of En Banc Opinion: February 23, 2012
Status: Reversed district court's order in class action.
Members of En Banc Court: Kozinski, Schroeder, Reinhardt, Thomas, Silverman, Graber, McKeown, Fisher, Paez, Rawlinson, IIkuta
Subject Matter: Appeal of district court's order granting in part and denying in part insurer’s motion to dismiss complaint by plaintiff class alleging breach of contract and other claims arising from insurance policies issued to Armenian Genocide victims.
Holding: California Code of Civil Procedure § 354.4, vesting California courts with jurisdiction over certain insurance claims brought by Armenian Genocide victims and extending the statute of limitations, is preempted under the foreign affairs doctrine.
Beeman v. Anthem Prescription, 07-56692+
Three-Judge Panel Opinion: 652 F.3d 1085 (9th Cir. 2011)
Order Taking Case En Banc: 661 F.3d 1199 (9th Cir. 2011)
Date of Order Taking Case En Banc: October 31, 2011
En Banc Order: 682 F.3d 779 (9th Cir. 2012); 682 F.3d 779 (9th Cir. 2012)
Date of En Banc Order: June 6, 2012
Status: The en banc court certified the following question to the California Supreme Court: Does California Civil Code § 2527 compel speech in violation of article I, section 2 of the California Constitution?
Members of En Banc Court: Kozinski, Pregerson, O’Scannlain, Thomas, Wardlaw, W. Fletcher, Gould, Berzon, Rawlinson, Clifton, N. Smith
Subject Matter: Appeal by defendants, pharmacy benefit managers, in action brought by plaintiffs, independent retail pharmacies, to enforce California Civil Code §§ 2527 and 2528.
Holding: Not yet decided
