January 31, 2024

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).  

Martinez v. ZoomInfo Technologies, No. 22-35305

Three-Judge Panel Opinion:  82 F.4th 785 (9th Cir. 2023)

Order Taking Case En Banc:  2024 WL 189137 (9th Cir. Jan. 18, 2024) 

Date of Order Taking Case En Banc:  January 18, 2024 

Status:   To be calendared week of March 18, 2024, in San Francisco, California.

Members of En Banc Court: Not yet available

Subject Matter:    Appeal from the district court’s denial of ZoomInfo Technologies, Inc.’s motion to strike Kim Carter Martinez’s complaint under California’s anti-SLAPP law

Olson v. State of California, No. 21-55757 

Three-Judge Panel Opinion:  62 F.4th 1206 (9th Cir. 2023)

Order Taking Case En Banc:  2023 WL 8707123 (9th Cir. Dec. 18, 2023) 

Date of Order Taking Case En Banc:  December 18, 2023 

Status:   To be calendared week of March 18, 2024, in San Francisco, California.

Members of En Banc Court: Not yet available

Subject Matter:    Appeal from the district court’s orders dismissing plaintiffs’ Second Amended Complaint and denying plaintiffs’ motion for a preliminary injunction in an action seeking to enjoin the State of California and the California Attorney General from enforcing California Assembly Bill 5, as amended by California Assembly Bills 170 and 2257

Duncan v. Bonta, Nos. 23-55805

Three-Judge Panel Opinion:  Not applicable

Order Taking Case En Banc:  83 F.4th 803 (9th Cir. 2023) 

Date of Order Taking Case En Banc:  October 10, 2023 

Status:   To be calendared week of March 18, 2024, in San Francisco, California.  On October 10, 2023, the en banc court granted the California Attorney General’s emergency motion for a partial stay pending appeal and accepted this appeal as a comeback case.  

Members of En Banc Court: MURGUIA, Chief Judge, and S.R. THOMAS, GRABER, WARDLAW, PAEZ, BERZON, IKUTA, HURWITZ, R. NELSON, BUMATAY and VANDYKE, Circuit Judges

Subject Matter:    Appeal from the district court’s order declaring unconstitutional and enjoining enforcement of California Penal Code section 32310(a), which bans large capacity magazines, defined as “any ammunition feeding device with the capacity to accept more than 10 rounds.”

United States v. Moyle/Idaho, Nos. 23-35440+ 

Three-Judge Panel Order:  83 F.4th 1130 (9th Cir. 2023)

Order Taking Case En Banc:  82 F.4th 1296 (9th Cir. 2023) 

Date of Order Taking Case En Banc:  October 10, 2023 

Status:   Oral argument vacated and matter stayed pending a decision by the United States Supreme Court in Moyle v. United States, No. 23-726, 2024 WL 61828 (2024) and Idaho v. United States, No. 23-727, 2024 WL 61829 (2024) 

Members of En Banc Court: Not yet available

Subject Matter:    Appeal from the district court’s order preliminarily enjoining Idaho Code section 18-622, which makes it a crime for a healthcare provider to perform an abortion unless, among a few other exceptions, “the physician determine[s], in his good faith medical judgment and based on the facts known to the physician at the time, that the abortion was necessary to prevent the death of the pregnant woman.”

United States v. Farias-Contreras, No. 21-30055

Three-Judge Panel Opinion:  60 F.4th 534 (9th Cir. 2023)

Order Taking Case En Banc: 83 F.4th 1161 (9th Cir. 2023) 

Date of Order Taking Case En Banc:  October 11, 2023 

Status:   Argued and submitted January 24, 2024, at 10:00 a.m. in Pasadena, California  

Members of En Banc Court: MURGUIA, Chief Judge, and GOULD, RAWLINSON, M. SMITH, Jr., CHRISTEN, FRIEDLAND, BENNETT, MILLER, BRESS, BUMATAY, and DESAI, Circuit Judges

Subject Matter:    Appeal from criminal sentence in a case in which the defendant contended that the government failed to meaningfully abide by its promise in the plea agreement not to recommend a sentence in excess of the low-end of the guidelines range.

United States v. Lucas, No. 22-50064

Three-Judge Panel Opinion:  70 F.4th 1218 (9th Cir. 2023)

Order Taking Case En Banc: 77 F.4th 1275 (9th Cir. 2023) 

Date of Order Taking Case En Banc:  August 16, 2023 

Status:   Argued and submitted January 23, 2024, at 3:00 p.m. in Pasadena, California  

Members of En Banc Court: MURGUIA, Chief Judge, and WARDLAW, RAWLINSON, CALLAHAN, IKUTA, CHRISTEN, BENNETT, BADE, LEE, KOH, and H.A. THOMAS, Circuit Judges

Subject Matter:  Appeal from the district court’s sentencing order, which imposed a heightened base offense level under U.S.S.G. § 2K2.1(a)(4)(B) in a case in which Francisco Lucas, Jr., pleaded guilty to unlawful possession of a firearm in violation of 18 U.S.C. § 922(g)(1).   

Kohn v. State Bar of California, No. 20-17316

Three-Judge Panel Opinion:  Not issued

Order Taking Case En Banc:  75 F.4th 985 (9th Cir. 2023) 

Date of Order Taking Case En Banc:  July 21, 2023 

En Banc Opinion:  2023 WL 8441781 (9th Cir. Dec. 6, 2023)

Date of En Banc Opinion:  December 6, 2023

Members of En Banc Court: Chief Judge Murguia, Judges Rawlinson, Ikuta, Owens, Bress, Forrest, Bumatay, Sung, Sanchez, H.A. Thomas, and Mendoza

Subject Matter:   Appeal from the district court’s dismissal of Benjamin Kohn's action alleging that the State Bar of California violated Title II of the Americans with Disabilities Act, § 504 of the Rehabilitation Act, and California state law in handling Kohn's requests for disability-based testing accommodations on several administrations of the California Bar Exam.  

Holding: The en banc court (1) affirmed in part the district court’s dismissal of attorney Benjamin Kohn’s action against the State Bar of California and the California Committee of Bar Examiners under Title II of the Americans with Disabilities Act, Section 504 of the Rehabilitation Act, and California law; and (2) remanded to the original three-judge panel for consideration of the remaining issues

United States v. Anderson, No. 20-50345

Three-Judge Panel Opinion:  56 F.4th 748 (9th Cir. 2022) 

Order Taking Case En Banc:  75 F.4th 984 (9th Cir. 2023) 

Date of Order Taking Case En Banc:  July 19, 2023 

Status:  Argued and submitted September 21, 2023, at 9:30 a.m. in San Francisco, California  

Members of En Banc Court:   Chief Judge Murguia, Judges Callahan, Ikuta, Christen, Owens, Bress, Forrest, VanDyke, Sanchez, Mendoza, and Desai 

Subject Matter:  Appeal from the district court’s order denying Jonathan Anderson’s motion to suppress a handgun found during an inventory search of his truck in a case in which Anderson entered a conditional guilty plea to being a felon in possession of a firearm.  

Holding: Not yet decided

De La Rosa-Rodriguez v. Garland, No. 20-71923

Three-Judge Panel Opinion:  49 F.4th 1282 (9th Cir. 2022) 

Order Taking Case En Banc:  62 F.4th 1232 (9th Cir. 2023) 

Date of Order Taking Case En Banc:  March 22, 2023 

Status:  On May 17, 2023, the Court filed an order vacating oral argument and holding this case in abeyance pending the Supreme Court’s determination of whether to grant certiorari in Wilkinson v. Garland, 22-666.  

Members of En Banc Court:  Not yet available

Subject Matter:   Petition for review of a decision of the Board of Immigration Appeals denying Antonio De La Rosa’s application for cancellation of removal on the ground that he had not established that his United States citizen children would suffer “exceptional and extremely unusual hardship” if he were removed. 8 U.S.C. § 1229b(b)(1). 

Holding: Not yet decided

J.K.J. v. City of San Diego, No. 20-55622

Three-Judge Panel Opinion:  42 F.4th 990 (9th Cir. 2021) (amended August 2, 2022)

Order Taking Case En Banc:  59 F.4th 1327 (9th Cir. 2023) 

Date of Order Taking Case En Banc:  February 17, 2023 

Status:  Argued and submitted June 21, 2023, at 1:30 p.m. in Seattle, Washington 

Members of En Banc Court:   MURGUIA, Chief Judge, and CHRISTEN, FRIEDLAND, BENNETT, MILLER, BADE, LEE, BUMATAY, VANDYKE, SUNG, and DESAI, Circuit Judges

Subject Matter:   Appeal from the district court’s dismissal of an action brought pursuant to 42 U.S.C. § 1983 alleging constitutional violations by police officers in their treatment of Aleah Jenkins, who was arrested at a traffic stop, fell ill while in police custody, and died nine days later. 

Holding: Not yet decided

Fellowship of Christian Athletes v. San Jose Unified Sch. Dist.No. 22-15827 

Three-Judge Panel Opinion: 46 F.4th 1075 (9th Cir. 2022)

Order Taking Case En Banc: 59 F.4th 997 (9th Cir. 2023) 

Date of Order Taking Case En Banc:  January 18, 2023 

En Banc Opinion:  82 F.4th 664 (9th Cir. 2023)

Date of En Banc Opinion:  September 13, 2023

Members of En Banc Court:  MURGUIA, Chief Judge, and CALLAHAN, M. SMITH, Jr., IKUTA, BENNETT, MILLER, BADE, BRESS, FORREST, BUMATAY, and SUNG, Circuit Judges

Subject Matter:   Appeal from the district court’s denial of a motion for a preliminary injunction sought by a student club, the Fellowship of Christian Athletes, after the San Jose Unified School District revoked FCA's status as an official student club at its high schools, on the grounds that FCA’s religious pledge requirement violated the School District’s non-discrimination policy.

Holding: The en banc court reversed the district court’s denial of a motion for a preliminary injunction in an action brought by the Fellowship of Christian Athletes (FCA) and others against the San Jose Unified School District (the District) for violation of FCA’s First Amendment rights to free exercise of religion and free speech, and directed the district court to enter an order reinstating FCA’s recognition as an official Associated Student Body (ASB) approved student club

Yoshikawa v. Seguirant, No. 21-15970

Three-Judge Panel Opinion: 41 F.4th 1109 (9th Cir. 2022)

Order Taking Case En Banc:  59 F.4th 998 (9th Cir. 2023) 

Date of Order Taking Case En Banc:  February 13, 2023 

En Banc Opinion:  74 F.4th 1042 (9th Cir. 2023)

Date of En Banc Opinion:  July 25, 2023

Members of En Banc Court:  Chief Judge Murguia, Judges S.R. Thomas, Wardlaw, Gould, Callahan, Christen, Nguyen, Miller, Collins, Mendoza, and Desai   

Subject Matter:   Appeal from the district court’s order denying building inspector Troy Seguirant’s motion to dismiss, on the basis of qualified immunity, a claim brought by Hitoshi Yoshikawa under 42 U.S.C. § 1981.

Holding:  Vacating the district court’s order denying qualified immunity on a claim under 42 U.S.C. § 1981, and remanding, the en banc court held that § 1981 does not provide an implied cause of action against state actors.

Brown v. State of Arizona, No. 20-15568

Three-Judge Panel Opinion: 23 F.4th 1173 (9th Cir. 2022)

Order Taking Case En Banc:  56 F.4th 1169 (9th Cir. 2022) 

Date of Order Taking Case En Banc:  December 9, 2022 

En Banc Opinion:  82 F.4th 863 (9th Cir. 2023)

Date of En Banc Opinion:  September 25, 2023

Members of En Banc Court:  MURGUIA, Chief Judge, and W. FLETCHER, RAWLINSON, M. SMITH, Jr., NGUYEN, OWENS, FRIEDLAND, R. NELSON, LEE, KOH, and SUNG, Circuit Judges

Subject Matter:   Appeal from the district court’s summary judgment in favor of the University of Arizona in a Title IX action brought by Mackenzie Brown, who suffered physical abuse at the hands of her former boyfriend and fellow University student at his off-campus residence.

Holding:  The en banc court reversed the district court’s summary judgment in favor of the University of Arizona and remanded in an action brought under Title IX by Mackenzie Brown.

United States v. Montoya, No. 21-50129

Three-Judge Panel Opinion: 48 F.4th 1028 (9th Cir. 2022)

Order Taking Case En Banc:  54 F.4th 1168 (9th Cir. 2022) 

Date of Order Taking Case En Banc:  December 14, 2022 

En Banc Opinion:  82 F.4th 640 (9th Cir. 2023)

Date of En Banc Opinion:  September 13, 2023

Members of En Banc Court:  MURGUIA, Chief Judge, and RAWLINSON, IKUTA, CHRISTEN, NGUYEN, FRIEDLAND, R. NELSON, COLLINS, SANCHEZ, H.A. THOMAS, and DESAI, Circuit Judges

Subject Matter:   Appeal from a criminal judgment in a case in which Cynthia Leon Montoya, who pleaded guilty to importing cocaine and methamphetamine, entered a plea agreement under Federal Rule of Criminal Procedure 11(c)(1)(B). 

Holding: Affirming in part and vacating in part a sentence imposed on Cynthia Montoya, and remanding, the en banc court held that a district court must orally pronounce all discretionary conditions of supervised release, including those referred to as “standard” in U.S.S.G. § 5D1.3(c), in order to protect a defendant’s due process right to be present at sentencing.

Apache Stronghold v. United States, No. 21-15295

Three-Judge Panel Opinion:  238 F.4th 742 (9th Cir. 2022)

Order Taking Case En Banc56 F.4th 636  (9th Cir. 2022) 

Date of Order Taking Case En Banc:  November 17, 2022

Status:  Argued and submitted March 21, 2023, at 10:00 a.m. in Pasadena, California

Members of En Banc Court:  MURGUIA, Chief Judge, and GOULD, BERZON, BEA, BENNETT, R. NELSON, COLLINS, LEE, FORREST, VANDYKE, and MENDOZA, Jr., Circuit Judges

Subject Matter:   Appeal from the district court’s denial of Apache Stronghold’s motion for a preliminary injunction seeking to stop a land exchange and prevent any copper mining on Oak Flat, a plot of land in Arizona.  

Holding: Not yet decided

Friends of Alaska Nat’l Wildlife Refuges v. Haaland, Nos. 20-35721+

Three-Judge Panel Opinion:  29 F.4th 432 (9th Cir. 2022)

Order Taking Case En Banc:  54 F.4th 608 (9th Cir. 2022) 

Date of Order Taking Case En Banc:  November 10, 2022

Status:  On June 15, 2023, Chief Judge Murguia issued an order granting the government's motion to dismiss this appeal as moot.     

Members of En Banc Court:  Before: MURGUIA, Chief Judge, and CHRISTEN, BENNETT, R. NELSON, BADE, BRESS, FORREST, BUMATAY, KOH, SUNG, and DESAI, Circuit Judges

Subject Matter:   Appeal from the district court’s judgment, which set aside a land-exchange agreement between the Secretary of the Interior and King Cove Corporation, an Alaska Native village corporation    

Seaview Trading, LLC v. Comm’r of Internal Revenue, No. 20-72416

Three-Judge Panel Opinion:  34 F.4th 666 (9th Cir. 2022)

Order Taking Case En Banc:  54 F.4th 608 (9th Cir. 2022) 

Date of Order Taking Case En Banc:  November 10, 2022

En Banc Opinion:  62 F.4th 1131 (9th Cir. 2023)

Date of En Banc Opinion:  March 10, 2023

Members of En Banc Court:  MURGUIA, Chief Judge, and GOULD, CHRISTEN, WATFORD, BENNETT, FORREST, BUMATAY, SUNG, H.A. THOMAS, MENDOZA, Jr., and DESAI, Circuit Judges

Subject Matter:   Appeal from the Tax Court’s summary judgment in favor of the government, in a petition challenging a Final Partnership Administrative Adjustment and involving whether the three-year limitations period for adjustment of partnership losses under 26 U.S.C. § 6229(a) had begun to run, and remanded for further proceedings.

Holding: Affirming the Tax Court’s decision concluding that the Internal Revenue Service’s notice of final partnership administrative adjustment was timely, the en banc court held that neither Seaview Trading LLC’s faxing a copy of their delinquent 2001 tax return to an IRS revenue agent in 2005, nor mailing a copy to an IRS attorney in 2007, qualified as a “filing” of the partnership’s return, and therefore the statute of limitations did not bar the IRS’s readjustment of the partnership’s tax liability.

Lee v. Fisher, No. 21-15923

Three-Judge Panel Opinion:  34 F.4th 777 (9th Cir. 2022)

Order Taking Case En Banc: 54 F.4h 608 (9th Cir. 2022) 

Date of Order Taking Case En Banc:  October 24, 2022

En Banc Opinion:  70 F.4th 1129 (9th Cir. 2023)

Date of En Banc Opinion:  June 1, 2023

Members of En Banc Court:  MURGUIA, Chief Judge, and S.R. THOMAS, IKUTA, NGUYEN, FRIEDLAND, R. NELSON, BADE, BRESS, FORREST, BUMATAY, and MENDOZA, Jr., Circuit Judges

Subject Matter:   Appeal from the district court’s dismissal of Noelle Lee’s shareholder derivative action alleging that The Gap, Inc. and its directors failed to create meaningful diversity within company leadership roles, and that Gap made false statements to shareholders in its proxy statements about the level of diversity it had achieved.    

Holding:  The en banc court affirmed the district court’s judgment dismissing, on forum non conveniens grounds, Noelle Lee’s putative derivative action alleging that The Gap, Inc. and Gap’s directors (collectively “Gap”) violated § 14(a) of the Securities Exchange Act of 1934 (the Exchange Act) and Securities and Exchange Commission (SEC) Rule 14a-9 by making false or misleading statements to shareholders about its commitment to diversity.

Alfred v. Garland, No. 19-72903

Three-Judge Panel Opinion:  15 F.4th 976 (9th Cir. 2021)

Order Taking Case En Banc:  35 F.4th 1218 (9th Cir. 2022) 

Date of Order Taking Case En Banc:  June 3, 2022

En Banc Opinion:  64 F.4th 1025 (9th Cir. 2023)

Date of En Banc Opinion:  March 30, 2023 

Members of En Banc Court:  Chief Judge Murguia, Judges S.R. Thomas, McKeown, Bybee, Callahan, R. Nelson, Miller, Bade, Collins, Lee, and VanDyke  

Subject Matter:   Petition for review of an order of the Board of Immigration Appeals (“BIA” or “Board”) that found petitioner removable as an alien convicted of an aggravated felony offense.  

Holding: Denying McKenzy Alii Alfred’s petition for review of a Board of Immigration Appeals’ decision that he was removable for having been convicted of an aggravated felony theft offense under 8 U.S.C. § 1101(a)(43)(G), the en banc court held that second-degree robbery under Wash. Rev. Code § 9A.56.190 is a categorical match with generic theft and is therefore a theft offense under § 1101(a)(43)(G).