Status of Pending En Banc CasesOctober 1, 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). United States v. Duarte, No. 22-50048 Three-Judge Panel Opinion: 101 F.4th 657 (9th Cir. 2024) Order Taking Case En Banc: 108 F.4th 786 (9th Cir. 2024) Date of Order Taking Case En Banc: July 17, 2024 Status: To be calendared week of December 9, 2024, in Pasadena, California Members of En Banc Court: Not yet available Subject Matter: Appeal from criminal conviction for violating 18 U.S.C. § 922(g)(1), which makes it a crime for any person to possess a firearm if he has been convicted of an offense punishable by imprisonment for a term exceeding one year, on Second Amendment grounds. United States v. Moyle/Idaho, Nos. 23-35440, 23-35450 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: To be calendared week of December 9, 2024, in Pasadena, California 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.” Estate of Hernandez v. City of Los Angeles, Nos. 21-55994, 21-55995 Three-Judge Panel Opinion: 96 F.4th 1209 (9th Cir. 2024) Order Taking Case En Banc: 106 F.4th 940 (9th Cir. 2024) Date of Order Taking Case En Banc: July 8, 2024 Status: Argued and submitted 2:00 p.m. on September 24, 2024, in San Francisco, California Members of En Banc Court: MURGUIA, Chief Judge, and RAWLINSON, NGUYEN, R. NELSON, BADE, COLLINS, BRESS, BUMATAY, H.A. THOMAS, MENDOZA, Jr., and JOHNSTONE, Circuit Judges Subject Matter: Appeal from the district court’s grant of summary judgment to the City of Los Angeles, the Los Angeles Police Department, and Officer McBride in plaintiffs’ 42 U.S.C. § 1983 action arising from the shooting death of Daniel Hernandez during a confrontation with LAPD officers. Briskin v. Shopify, Inc., No. 22-15815 Three-Judge Panel Opinion: 87 F.4th 404 (9th Cir. 2023) Order Taking Case En Banc: 101 F.4th 706 (9th Cir. 2024) Date of Order Taking Case En Banc: May 14, 2024 Status: Argued and submitted 9:30 a.m. on September 26, 2024, in San Francisco, California Members of En Banc Court: MURGUIA, Chief Judge, and WARDLAW, RAWLINSON, CALLAHAN, CHRISTEN, FRIEDLAND, BENNETT, COLLINS, BUMATAY, H.A. THOMAS, and DESAI, Circuit Judges Subject Matter: Appeal from the district court’s dismissal, due to lack of specific personal jurisdiction over the defendants, of a putative class action alleging that Shopify, Inc. violated various California privacy and unfair competition laws because it deliberately concealed its involvement in certain consumer transactions. Huntsman v. Corp. of the President of the Church of Latter-Day Saints, No. 21-56056 Three-Judge Panel Opinion: 76 F.4th 962 (9th Cir. 2023) Order Taking Case En Banc: 94 F.4th 781 (9th Cir. 2024) Date of Order Taking Case En Banc: March 1, 2024 Status: Argued and submitted 2:30 p.m. on September 25, 2024, in San Francisco, California Members of En Banc Court: MURGUIA, Chief Judge, and M. SMITH, Jr., NGUYEN, OWENS, FRIEDLAND, BRESS, BUMATAY, VANDYKE, SUNG, SANCHEZ, and DE ALBA, Circuit Judges Subject Matter: Appeal from the district court’s summary judgment in favor of the Corporation of the President of the Church of Jesus Christ of Latter-Day Saints in a diversity action brought by James Huntsman, a former member of the Church, alleging fraud under California state law. Stein v. Kaiser Foundation Health, No. 22-15862 Three-Judge Panel Opinion: 2024 WL 107099 (9th Cir. Jan. 10, 2024) Order Taking Case En Banc: 103 F.4th 543 (9th Cir. 2024) Date of Order Taking Case En Banc: May 4, 2024 En Banc Opinion: 2024 WL 4271950 (9th Cir. Sep. 24, 2024) Date of En Banc Opinion: September 24, 2024 Members of En Banc Court: Chief Judge Murguia, Judges Rawlinson, M. Smith, Nguyen, Bade, Lee, Forrest, Bumatay, Sanchez, Desai, and Johnstone Subject Matter: Appeal by relators Marcia Stein and Rodolfo Bone from the district court's dismissal of their False Claims Act (FCA) suit as barred by that statute's first-to-file rule. Holding: Reversing in part the district court’s dismissal of an action under the False Claims Act for lack of jurisdiction under the Act’s first-to-file rule, the en banc court overruled circuit precedent, held that the first-to-file rule is not jurisdictional, and remanded to the three-judge panel for further proceedings. Project Veritas v. Schmidt, No. 22-35271 Three-Judge Panel Opinion: 72 F.4th 1043 (9th Cir. 2023) Order Taking Case En Banc: 95 F.4th 1152 (9th Cir. 2024) Date of Order Taking Case En Banc: March 19, 2024 Status: Argued and submitted June 25, 2024, at 1:30 p.m. in Seattle, Washington Members of En Banc Court: MURGUIA, Chief Judge, and WARDLAW, CHRISTEN, BENNETT, COLLINS, LEE, SUNG, SANCHEZ, DESAI, JOHNSTONE, and DE ALBA, Circuit Judges Subject Matter: Appeal from the district court’s dismissal of a complaint challenging, as an unconstitutional restriction of protected speech, Section 165.540(1)(c) of the Oregon Revised Code, which generally prohibits unannounced recordings of conversations, subject to several exceptions. Teter v. Lopez, No. 20-15948 Three-Judge Panel Opinion: 76 F.4th 938 (9th Cir. 2023) Order Taking Case En Banc: 93 F.4th 1150 (9th Cir. 2024) Date of Order Taking Case En Banc: February 22, 2024 Status: Argued and submitted June 25, 2024, at 10:00 a.m. in Seattle, Washington Members of En Banc Court: MURGUIA, Chief Judge, and GOULD, NGUYEN, R. NELSON, MILLER, BADE, COLLINS, LEE, VANDYKE, SANCHEZ, and DE ALBA, Circuit Judges Subject Matter: Appeal from the district court’s summary judgment in favor of Hawaii state officials in plaintiffs' action challenging Hawaii’s ban on butterfly knives, Haw. Rev. State. § 134- 53(a), under the Second Amendment. 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: In light of letter from ZoomInfo providing notice of Memorandum of Understanding between the parties that would resolve the dispute, on March 1, 2024, the court issued an order vacating oral argument and directing the parties to file a status report within 60 days. On April 30, 2024, the panel issued an order directing the parties to file another status report within 90 days. On July 30, 2024, the panel issued an order directing the parties to file another status report within 120 days. 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: 88 F.4th 781 (9th Cir. 2023) Date of Order Taking Case En Banc: December 18, 2023 En Banc Opinion: 2024 WL 2887392 (9th Cir. June 10, 2024) Date of En Banc Opinion: June 10, 2024 Members of En Banc Court: MURGUIA, Chief Judge, and GOULD, NGUYEN, BENNETT, BADE, LEE, SANCHEZ, H.A. THOMAS, MENDOZA, Jr., DESAI, and JOHNSTONE, Circuit Judges 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 Holding: In an action brought by Postmates, Inc., Uber Technologies, Inc., and two individuals challenging the constitutionality of California Assembly Bill 5, enacted by the California legislature to address a systemic problem of businesses improperly characterizing their workers as independent contractors to avoid fiscal responsibilities owed to employees, the en banc court affirmed the district court’s dismissal of plaintiffs’ state and federal Equal Protection claims and its denial of preliminary injunctive relief. Duncan v. Bonta, No. 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: Argued and submitted at 9:30 a.m. on March 19, 2024, in San Francisco, California 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. 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 En Banc Opinion: 2024 WL 2809369 (9th Cir. June 3, 2024) Date of En Banc Opinion: June 3, 2024 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. Holding: The en banc court affirmed a sentence in a case in which the defendant argued that the government breached its promise under the plea agreement not to recommend a sentence in excess of the low-end of the sentencing guidelines range when the government implicitly urged the district court to impose a harsher sentence. 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 En Banc Opinion: 2024 WL 1919741 (9th Cir. May 2, 2024) Date of En Banc Opinion: May 2, 2024 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). Holding: The en banc court vacated Lucas's sentence, and remanded, holding that clear and convincing evidence is not required for factual findings under the advisory Sentencing Guidelines, even when potentially large enhancements are at stake; fact finding by a preponderance of the evidence is sufficient to satisfy due process at sentencing. 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 En Banc Opinion: 2024 WL 1920298 (9th Cir. May 2, 2024) Date of En Banc Opinion: May 2, 2024 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: The en banc court reversed the district court’s denial of a motion to suppress a firearm found during a warrantless search of the defendant’s truck in a case that presented the question whether an officer’s failure to comply with governing administrative procedures is relevant in assessing the officer’s motivation for conducting an inventory search. 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 decision in Wilkinson v. Garland, 22-666. On April 3, 2024, following the Supreme Court's decision in Wilkinson v. Garland, 601 U.S. 209 (2024), the Court referred this case to the original three-judge panel to decide any remaining open questions. 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). 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. On February 1, 2024, an order was filed staying appellate proceedings pending settlement. 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 Banc: 56 F.4th 636 (9th Cir. 2022) Date of Order Taking Case En Banc: November 17, 2022 En Banc Opinion: 2024 WL 884564 (9th Cir. March 1, 2024) Date of En Banc Opinion: March 1, 2024 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: The en banc court affirmed the district court’s order denying Apache Stronghold’s motion for a preliminary injunction against the federal government’s transfer of Oak Flat—federally owned land within the Tonto National Forest—to a private company, Resolution Copper.
|
|
