STATUS OF PENDING EN BANC CASES

 

October 20, 2014

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.

 

Chula Vista Citizens for Jobs v. Norris, 12-55726

Three-Judge Panel Opinion: 755 F.3d 671 (9th Cir. 2014)

Order Taking Case En Banc: 2014 WL  (9th Cir. October 7, 2014)

Date of Order Taking Case En Banc:  October 7, 2014

Status: To be calendared the week of December 15, 2014, in Pasadena, California.

Members of En Banc Court:  Not yet available

Subject Matter: Appeal by Chula Vista Citizens and Associated Builders & Contractors, of the district court's summary judgment in their 42 U.S.C. § 1983 action challenging the constitutionality of sections of the California Elections Code on the ground that they violate the First Amendment. 

Holding: Not yet decided

 

Wolfson v. Concannon, 11-17634

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

Order Taking Case En Banc: 2014 WL 4802863 (9th Cir. September 26, 2014)

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

Status: Submission of this case is deferred pending the issuance of an opinion by the United States Supreme Court in Williams-Yulee v. Florida State Bar, No. 13-1499.

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

 

Henry v. Ryan, 09-99007

Three-Judge Panel Opinion: 748 F.3d 940 (9th Cir. 2014)

Order Taking Case En Banc: 2014 WL 4397948 (9th Cir. September 4, 2014)

Date of Order Taking Case En Banc: September 4, 2014

Status: Not yet available.

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 murder, kidnaping, robbery and theft.

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:  To be calendared the week of December 15, 2014, in Pasadena, California.

Members of En Banc Court:  Not yet available

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. Holder, 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

Status:   Argued and submitted September 19, 2014.

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 his application for deferral of removal under the Convention Against Torture. 

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

Status:  Argued and submitted September 18, 2014.

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: Not yet decided

 

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

Status:  Argued and submitted September 18, 2014. 

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 temporary restraining order prohibiting them from striking or encouraging a strike.

Holding: Not yet decided

 

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

 

Abdisalan v. Holder, 10-73215+

Three-Judge Panel Opinion: 728 F.3d 1122 (9th Cir. 2013)

Order Taking Case En Banc: 759 F.3d 1098 (9th Cir. 2014)

Date of Order Taking Case En Banc: May 7, 2014

Status:  Argued and submitted June 19, 2014.

Members of En Banc Court:  Kozinski, Thomas, Wardlaw, Gould, Paez, Berzon, Tallman, Ikuta, Murguia, Nguyen, Hurwitz

Subject Matter: Petition for review of the Board of Immigration Appeals’ order affirming an Immigration Judge’s denial of petitioner’s asylum application on timeliness grounds.

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:  To be calendared the week of December 15, 2014, in Pasadena, California.

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:  755 F.3d 1044 (9th Cir. 2014)

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

Status:  Argued and submitted June 18, 2014.

Members of En Banc Court: Kozinski, Reinhardt, Thomas, Silverman, Gould, Berzon, Clifton, N.R. Smith, Murguia, Christen, Nguyen

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: 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 were ordered to file supplemental briefs, 9/5/14. 

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

 

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:  Argued and submitted June 19, 2014.

Members of En Banc Court:  Kozinski, Silverman, Graber, Gould, Berzon, Tallman, Rawlinson, Clifton, Murguia, Christen, Hurwitz

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:  755 F.3d 1043 (9th Cir. 2014)

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

En Banc Opinion:  2014 WL 5151632 (9th Cir. October 15, 2014)

Date of En Banc Opinion:  October 15, 2014

Status:  Affirmed in part and reversed in part the district court’s judgment entered following jury trial.

Members of En Banc Court:  Kozinski, O'Scannlain, Thomas, Silverman, Graber, Gould, Paez, Berzon, Tallman, Bybee, M. SmithMembers 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: The 2003 amendment to Fed. R. Civ. P. 51 abrogated prior case law that denied review of jury instructions in civil cases in the absence of a timely objection. The plain error standard of review in the civil context is similar to, but stricter than, the plain error standard of review applied in criminal cases.

 

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

En Banc Opinion: 2014 WL 5151625 (9th Cir. October 15, 2014)

Date of En Banc Opinion: October 15, 2014

Status:  Reversed the district court’s summary judgment in a class action challenging Proposition 100.

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:  Proposition 100, and its implementing laws and rules, violate the substantive component of the Due Process Clause of the Fourteenth Amendment.

 

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

 

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: 749 F.3d 776 (9th Cir. 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

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

Date of En Banc Opinion: April 29, 2014

Status: Reversed the district court’s denial of a habeas corpus petition challenging the court’s decision to preclude defense counsel from making a reasonable doubt argument to the jury.

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: The trial court infringed petitioner’s Sixth and Fourteenth Amendment rights by precluding counsel from making a reasonable doubt argument to the jury.

 

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.

 

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:  2014 WL 4668005 (9th Cir. September 22, 2014)

Date of En Banc Opinion On Remand from the Supreme Court:  September 22, 2014

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.

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.