STATUS OF PENDING EN BANC CASES

 

April 21, 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 jurwisdiction 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.

 

McKinney v. Ryan, 09-99018

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

Order Taking Case En Banc: 2014 WL 1013859 (9th Cir. March 12, 2014)

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

Status:  To be calendared the week of June 16, 2014, in Seattle, Washington.

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

 

State of Arizona v. Asarco LLC, 11-17484

Three-Judge Panel Opinion: 733 F.3d 882 (9th Cir. 2013)

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

Date of Order Taking Case En Banc: February 28, 2014

Status:  To be calendared the week of June 16, 2014, in Seattle, Washington.

Members of En Banc Court: Not yet available

Subject Matter: Appeal from the district court’s reduction of the jury’s punitive damages award in a Title VII hostile work environment action. 

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: 2014 WL 522977 (9th Cir. February 10, 2014)

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

Status:  To be calendared the week of June 16, 2014, in Seattle, Washington.

Members of En Banc Court: Not yet available

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

 

Romo v. Teva Pharmaceuticals USA, Inc., 13-56310

Corber v. Xanodyne Pharmaceuticals, Inc., 13-56306

Three-Judge Panel Opinion in Romo v. Teva: 731 F.3d 918 (9th Cir. 2013)

Unpublished memorandum disposition in Corber v. Xanodyne: 2013 WL 5313831 (9th Cir. Sept. 24, 2013)

Order Taking Cases En Banc: 742 F.3d 909 (9th Cir. 2014)

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

Status:  To be calendared the week of June 16, 2014, in Seattle, Washington.

Members of En Banc Court: Not yet available

Subject Matter: Appeals by defendants Teva Pharmaceuticals and Xanodyne Pharmaceuticals, of the district court’s orders remanding plaintiffs’ products liability case back to California state court following defendants’ removal of the cases to federal court under the mass action provisions of the Class Action Fairness Act.  

Holding: Not yet decided

 

C.B. v. City of Sonora, 11-17454

Three-Judge Panel Opinion: 730 F.3d 816 (9th Cir. 2013)

Order Taking Case En Banc: 2014 WL 351676 (9th Cir. February 3, 2014)

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

Status:  Argued and submitted March 17, 2014.

Members of En Banc Court: Kozinski, O'Scannlain, Thomas, Silverman, Graber, Gould, Paez, Berzon, Tallman, Bybee, M. Smith

Subject Matter: Appeal by police deputies and former Chief of Police of the City of Sonora from the district court's denial of their motion for judgment as a matter of law in an action alleging excessive use of force, unlawful seizure and false arrest.

Holding: Not yet decided

 

Lopez-Valenzuela v. County of Maricopa, 11-16487

Three-Judge Panel Opinion: 719 F.3d 1054 (9th Cir. 2013)

Order Taking Case En Banc: 714 F.3d 1015 (9th Cir. 2014)

Date of Order Taking Case En Banc: January 2, 2014

Status:  Argued and submitted March 18, 2014.

Members of En Banc Court: Kozinski, O'Scannlain, Thomas, McKeown, Fisher, Berzon, Tallman, Bybee, M. Smith, Nguyen, Watford

Subject Matter: Appeal challenging the constitutionality of Arizona’s Proposition 100, which prohibits state courts from setting bail for detainees who are in the United States illegally.

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.

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

 

Gonzalez v. City of Anaheim, 11-56360

Three-Judge Panel Opinion: 715 F.3d 766 (9th Cir. 2013)

Order Taking Case En Banc: 733 F.3d 979 (9th Cir. 2013)

Date of Order Taking Case En Banc: October 28, 2013

En Banc Opinion: 2014 WL 1274551 (9th Cir. March 31, 2014)

Date of En Banc Opinion: March 31, 2014

Status: Affirmed in part, reversed in part, and remanded.

Members of En Banc Court: Kozinski, Trott, Silverman, Graber, McKeown, Gould, Berzon, Tallman, Clifton, Bea, Christen

Subject Matter: Appeal by the family of decedent Adolph Sanchez Gonzalez from the district court's summary judgment in their 42 U.S.C. § 1983 action alleging that Anaheim police officers used excessive deadly force against Gonzalez during a traffic stop.  

Holding: Not yet decided

 

Ceron v. Holder, 08-70836

Three-Judge Panel Opinion: 712 F.3d 426 (9th Cir. 2013)

Order Taking Case En Banc: 730 F.3d 1133 (9th Cir. 2013)

Date of Order Taking Case En Banc: September 19, 2013

En Banc Opinion: 2014 WL 1274096 (9th Cir. March 31, 2014)

Date of En Banc Opinion: March 31, 2014

Status:  Granted petition for review from Board of Immigration Appeals' decision. 

Members of En Banc Court: Kozinski, Reinhardt, Silverman, Graber, Gould, Paez, Clifton, Bea, N. Smith, Murguia, Hurwitz

Subject Matter: Petition for review from the Board of Immigration Appeals’ order holding that petitioner’s conviction for assault with a deadly weapon, in violation of California Penal Code § 245(a)(1), constituted a crime involving moral turpitude.

Holding: Remanded for the BIA to determine in the first instance whether petitioner’s conviction for assault with a deadly weapon other than a firearm, in violation of California Penal Code § 245(a)(1), constitutes a categorical crime involving moral turpitude.

 

United States v. Hernandez-Estrada, 11-50417

Three-Judge Panel Opinion: 704 F.3d 1015 (9th Cir. 2012)

Order Taking Case En Banc:  729 F.3d 1224 (9th Cir. 2013)

Date of Order Taking Case En Banc: September 9, 2013

Status: Argued and submitted December 10, 2013.

Members of En Banc Court: Kozinski, Thomas, Silverman, Graber, Gould, Paez, Rawlinson, Bea, M. Smith, N. Smith, Nguyen

Subject Matter: Appeal by criminal defendant of his jury conviction for being a deported alien found in the United States, in violation of 8 U.S.C. § 1326.

Holding: Not yet decided

 

United States v. Preston, 11-10511

Three-Judge Panel Opinion: 706 F.3d 1106 (9th Cir. 2013)

Order Taking Case En Banc: 727 F.3d 894 (9th Cir. 2013)

Date of Order Taking Case En Banc: August 14, 2013

Status: Argued and submitted December 10, 2013.

Members of En Banc Court: Kozinski, Reinhardt, Noonan, Thomas, Graber, Wardlaw, Gould, Paez, Berzon, Christen, Watford

Subject Matter: Appeal by criminal defendant of his jury conviction and sentence for aggravated sexual abuse of a minor.

Holding: Not yet decided

 

Peralta v. Dillard, 09-55907

Three-Judge Panel Opinion:  704 F.3d 1124 (9th Cir. 2013)

Order Taking Case En Banc: 719 F.3d 1128 (9th Cir. 2013)

Date of Order Taking Case En Banc: June 26, 2013

En Banc Order: 2014 WL 878830 (9th Cir. March 6, 2014)

Date of En Banc Order: March 6, 2014

Status: Affirmed the district court's judgments in favor of prison administrators and dentist. 

Members of En Banc Court: Kozinski, Silverman, Graber, Tallman, Rawlinson, Clifton, Bybee, M. Smith, Christen, Nguyen, Hurwitz

Subject Matter: Appeal from the district court's judgments in a prisoner's 42 U.S.C. § 1983 action claiming that doctors were deliberately indifferent to his medical needs related to dental care.

Holding: A prison official sued for money damages under 42 U.S.C. § 1983 may raise a lack of resources as a defense.  Prior decisions in Jones v. Johnson, 781 F.2d 769 (9th Cir. 1986), and Snow v. McDaniel, 681 F.3d 978 (9th Cir. 2012), are overruled to the extent they can be read to apply to monetary damages against an official who lacks authority over budgeting decisions.

 

United States v. Maloney, 11-50311

Three-Judge Panel Opinion:  699 F.3d 1130 (9th Cir. 2012)

Order Taking Case En Banc: 717 F.3d 1042 (9th Cir. 2013)

Date of Order Taking Case En Banc: May 30, 2013

En Banc Order: 2014 WL 801450 (9th Cir. February 28, 2014)

Date of En Banc Order: February 28, 2014

Status: Granted the United States Attorney’s motion to reverse defendant’s conviction, vacate his sentence, and remand to the district court.  Mandate issued March 25, 2014.

Members of En Banc Court: Kozinski, Pregerson, Thomas, McKeown, Wardlaw, W. Fletcher, Paez, Rawlinson, Clifton, N. Smith, Hurwitz

Subject Matter: Appeal by criminal defendant of his jury conviction and sentence for possession of marijuana with intent to distribute. 

Holding: The en banc court granted the United States Attorney’s motion to reverse defendant’s conviction and vacate the sentence, based on her representation that she and senior attorneys in her office reviewed the video of the en banc oral argument and reconsidered their position regarding the propriety of the prosecutor’s argument in rebuttal during closing argument in the district court.

 

Albino v. Baca, 10-55702

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

En Banc Opinion: 2014 WL 1317141 (9th Cir. April 3, 2014)

Date of En Banc Opinion: April 3, 2014

Status: Reversed and remanded district court's summary judgment.

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: Remanded with instructions to enter summary judgment for plaintiff on the issue of whether he exhausted his administrative remedies, pursuant to the Prison Litigation Reform Act, 42 U.S.C. § 1997e(a), prior to bringing suit.

 

Natural Resources Defense Council v. Jewell, 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

En Banc Opinion: 2014 WL 1465695 (9th Cir. April 16, 2014)

Date of En Banc Opinion: April 16, 2014

Status: Reversed the district court’s judgment in favor of federal defendants.

Members of En Banc Court: Kozinski, McKeown, Wardlaw, Fisher, Gould, Tallman, Rawlinson, Clifton, Callahan, M. Smith, N. Smith

Subject Matter: Appeal from the district court's summary judgment in environmental groups’ action challenging water diversion operations from Central Valley Project.

Holding: The en banc court held that intervening events did not render the action moot, and that contractual provisions of the Services Contracts did not deprive plaintiffs of standing to bring a procedural challenge under the Endangered Species Act.

 

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: Argued and submitted June 26, 2013

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

 

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: Reversed the district court's dismissal of an action for lack of subject matter jurisdiction.

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.

 

Dickens v. Ryan, 08-99017

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

En Banc Opinion: January 23, 2014

Date of En Banc Opinion: 740 F.3d 1302 (9th Cir. 2014)

Status: Affirmed in part and vacated in part the district court’s denial of 28 U.S.C. § 2254 habeas corpus petition.  Mandate issued April 14, 2014.

Members of En Banc Court: Kozinski, Pregerson, Wardlaw, Berzon, Bybee, Callahan, Ikuta, N. Smith, Murguia, Christen, 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 felony first degree murder, armed robbery and conspiracy to commit armed robbery.

Holding: The Arizona Supreme Court did not unreasonably conclude that petitioner was eligible for the death sentence because he was a major participant in the victims’ robbery/murder and acted with reckless indifference to human life. The state court’s decision was not based on an unreasonable determination of fact.  Petitioner’s ineffective assistance of counsel claims was procedurally defaulted and should be remanded.

 

Detrich v. Ryan, 08-99001

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

En Banc Opinion:  740 F.3d 1237 (9th Cir. 2013)

Date of En Banc Opinion: September 3, 2013

Status: Granted petitioner’s motion to remand for the district court to rule on his motion under Martinez v. Ryan, 132 S. Ct. 1309 (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: After the district court found petitioner's ineffective assistance claims procedurally defaulted, the Supreme Court changed the law with Martinez and Trevino v. Thaler, 133 S. Ct. 1911 (2013), by creating an exception to the "cause" and "prejudice" rule for excusing the state-court procedural default of claims raised in a federal habeas petition. 

 

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.  

 

Haskell v. Harris, 10-15152

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

En Banc Opinion: 2014 WL 1063399 (9th Cir. March 20, 2014)

Date of En Banc Opinion: March 20, 2014

Status: Affirmed the district court’s denial of a preliminary injunction in a class action challenging a California requiring felony arrestees to submit DNA samples.  Mandate issued April 16, 2014.

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: California's DNA collection scheme was constitutional as applied to anyone "arrested for, or charged with, a felony offense by California state or local officials." 

 

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.  Cert granted June 24, 2013.

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.  

 

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

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.  The Supreme Court vacated the judgment on June 27, 2013, vacated, and remanded for further consideration in light of Salinas v Texas, 570 U.S.____(2013).  On 7/15/13, the court ordered the parties to file supplemental briefs regarding the relevance of Salinas v. Texas, 570 U.S. ___ (2013).  Argued and submitted March 18, 2014.

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 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.