STATUS OF PENDING EN BANC CASES

September 3, 2020

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.

Tovar v. Zuchowski, No. 18-35072

Three-Judge Panel Opinion: 950 F.3d 581 (9th Cir. 2020)

Order Taking Case En Banc: 957 F.3d 1381 (9th Cir. 2020)

Date of Order Taking Case En Banc: May 7, 2020

Status: Virtual oral argument scheduled at 1:30 p.m. on September 23, 2020

Members of En Banc Court: Not yet available

Subject Matter: Appeal from the district court's summary judgment in favor of government defendants in a case involving the questionof when a spousal relationship must exist in order for a spouse to be eligible for derivative U-visa status.

Holding: Not yet decided

Rojas v. FAA, No. 17-55036

Three-Judge Panel Opinion: 927 F.3d 1046 (9th Cir. 2019)

Order Taking Case En Banc: 948 F.3d 952 (9th Cir. 2020)

Date of Order Taking Case En Banc: January 30, 2020

Status: Virtual oral argument scheduled at 1:30 p.m. on September 22, 2020

Members of En Banc Court: THOMAS, Chief Judge, and GRABER, WARDLAW, RAWLINSON, CALLAHAN, M. SMITH, Jr., IKUTA, WATFORD, HURWITZ, COLLINS, and BUMATAY, Circuit Judges

Subject Matter: Appeal from the district court’s order granting summary judgment in favor of the Federal Aviation Administration in a case concerning a Freedom of Information Act request.

Holding: Not yet decided

Lorenzo-Lopez v. Barr, No. 15-72406

Three-Judge Panel Opinion: 925 F.3d 396 (9th Cir. 2019)

Order Taking Case En Banc: 948 F.3d 989 (9th Cir. 2020)

Date of Order Taking Case En Banc: January 23, 2020

Status: En banc proceedings are stayed and submission of this case for decision by the en banc court is deferred pending the issuance of an opinion by the United States Supreme Court in Niz-Chavez v. Barr, No. 19-863 and further order of this Court.

Members of En Banc Court: THOMAS, Chief Judge, and BERZON, RAWLINSON, CHRISTEN, WATFORD, BENNETT, MILLER, BADE, COLLINS, HUNSAKER, and VANDYKE, Circuit Judges

Subject Matter: Petition for review of the Board of Immigration Appeals' dismissal of petitioner's appeal from an Immigration Judge's denial of cancellation of removal for failure to meet the residence requirement.

Holding: Not yet decided

Torres v. Barr, No. 13-70653

Three-Judge Panel Opinion: 925 F.3d 1360 (9th Cir. 2019)

Order Taking Case En Banc: 946 F.3d 1040 (9th Cir. 2020)

Date of Order Taking Case En Banc: January 13, 2020

Status: Submitted on the briefs on May 28, 2020

Members of En Banc Court: THOMAS, Chief Judge, and WARDLAW, GOULD, RAWLINSON, CALLAHAN, M. SMITH, IKUTA, WATFORD, BRESS, HUNSAKER, and BUMATAY, Circuit Judges

Subject Matter: Petition for review of the Board of Immigration Appeals' dedcision affirming an immigration judge's determination that petitioner, a native and citizen of the Philippines who resides in the Commonwealth of the Northern Mariana Islands, was removable "as an intending immigrant without . . . a valid entry document," 8 U.S.C. section 1182 (a)(7)(A)(i)(I), and was ineligible for cancellation fo removal.

Holding: Not yet decided

United States v. Lozoya, No. 17-50336

Three-Judge Panel Opinion: 920 F.3d 1231 (9th Cir. 2019)

Order Taking Case En Banc: 944 F.3d 1229 (9th Cir. 2019)

Date of Order Taking Case En Banc: December 20, 2019

Status: The oral argument scheduled at 10:00 a.m. on Tuesday, March 10, 2020, is vacated and will be rescheduled at a later date upon further order of the Court.

Members of En Banc Court: THOMAS, Chief Judge, and McKEOWN, W. FLETCHER, BYBEE, IKUTA, NGUYEN, WATFORD, OWENS, BENNETT, COLLINS, and LEE, Circuit Judges

Subject Matter: Appeal from conviction for assaulting a fellow passenger on a commercial flight from Minneapolis to Los Angeles.

Holding: Not yet decided

United States v. Orona, No. 17-17508

Three-Judge Panel Opinion: 923 F.3d 1197 (9th Cir. 2019)

Order Taking Case En Banc: 942 F.3d 1159 (9th Cir. 2019)

Date of Order Taking Case En Banc: November 18, 2019

Status: Further en banc proceedings stayed pending the issuance of a decision by the Supreme Court in United States v. Borden, 19-5410, and further order of the Court

Members of En Banc Court: Not yet available

Subject Matter: Appeal from the district court’s judgment granting Selso Randy Orona’s 28 U.S.C. § 2255 motion in connection with a 2012 conviction for which Orona received an enhanced sentence under the Armed Career Criminal Act.

Holding: Not yet decided

United States v. Collazo, Nos. 15-50509, 16-50048, 16-50117, 16-50195, 16-50345

Order Taking Case En Banc: 933 F.3d 944 (9th Cir. 2019)

Date of Order Taking Case En Banc: September 19, 2019

Status: Argued and submitted January 13, 2020, at 2 p.m. in Pasadena, California

Members of En Banc Court: Chief Judge Thomas, Judges W. Fletcher, Callahan, M. Smith, Ikuta, Nguyen, Watford, Hurwitz, Miller, Bade, and Bress, Circuit Judges

Subject Matter: Appeal from jury convictions and sentences for racketeering (RICO) conspiracy and conspiracy to distribute controlled substances.

Holding: Not yet decided

Ross v. Williams, No. 16-16533

Three-Judge Panel Opinion: 896 F.3d 958 (9th Cir. 2018)

Order Taking Case En Banc: 920 F.3d 1222 (9th Cir. 2019)

Date of Order Taking Case En Banc: April 16, 2019

En Banc Opinion: 950 F.3d 1160 (9th Cir. 2020)

Date of En Banc Opinion: February 24, 2020

Members of En Banc Court: THOMAS, Chief Judge, and W. FLETCHER, GOULD, PAEZ, BERZON, CALLAHAN, M. SMITH, Jr., IKUTA, NGUYEN, WATFORD, and FRIEDLAND, Circuit Judges

Subject Matter: Appeal from the district court’s judgment dismissing as untimely California state prisoner Ronald Ross’s amended habeas corpus petition brought pursuant to 28 U.S.C. § 2254.

Holding: The en banc court reversed the district court’s judgment dismissing as untimely Ronald Ross’s amended habeas corpus petition challenging his Nevada state conviction for theft-related offenses, and remanded.

Murray v. BEJ Minerals, LLC, No. 16-35506

Three-Judge Panel Opinion: 896 F.3d 979 (9th Cir. 2018)

Order Taking Case En Banc: 920 F.3d 583 (9th Cir. 2019)

Date of Order Taking Case En Banc: April 4, 2019

En Banc Opinion: 2020 WL 3263031 (9th Cir. June 17, 2020)

Date of En Banc Opinion: June 17, 2020

Members of En Banc Court: THOMAS, Chief Judge, and WARDLAW. BERZON, BYBEE, CALLAHAN, IKUTA, MURGUIA, CHRISTEN, WATFORD, FRIEDLAND, and R. NELSON, Circuit Judges

Subject Matter: Appeal from the district court’s summary judgment in favor of Lige and Mary Ann Murray, owners of a Montana ranch, who brought this action seeking a declaratory judgment that dinosaur fossils found on the ranch belonged to them as owners of the surface estate.

Holding: The en banc court affirmed the district court's order granting summary judgment to plaintiffs and declaring them owners of dinosaur fossils discovered on their ranch.

United States v. Broines, No. 16-10150

Three-Judge Panel Opinion: 890 F.3d 811 (9th Cir. 2018)

Order Taking Case En Banc: 915 F.3d 591 (9th Cir. 2019)

Date of Order Taking Case En Banc: February 13, 2019

En Banc Opinion: 929 F.3d 1057 (9th Cir. 2019)

Date of En Banc Opinion: July 9, 2019

Members of En Banc Court: THOMAS, Chief Judge, and GRABER, McKEOWN, WARDLAW, BERZON, M. SMITH, Jr., IKUTA, CHRISTEN, NGUYEN, BENNETT, and R. NELSON, Circuit Judges

Subject Matter: Appeal from the district court's imposition of a sentence of life without parole on a juvenile offender.

Holding: The en banc court vacated the sentence of life without the possibility of parole (LWOP), which the district court reimposed at resentencing after having granted the defendant’s 28 U.S.C. § 2255 motion following the Supreme Court's decision in Miller v. Alabama, 567 U.S. 460 (2012), and remanded for consideration of the entirety of the defendant’s sentencing evidence.

Young v. State of Hawaii, No. 12-17808

Three-Judge Panel Opinion: 896 F.3d 1044 (9th Cir. 2018)

Order Taking Case En Banc: 915 F.3d 681 (9th Cir. 2019)

Date of Order Taking Case En Banc: February 8, 2019

Status: Virtual oral argument scheduled at 1:30 p.m. on September 24, 2020

Members of En Banc Court: Not yet available

Subject Matter: Appeal from the district court's dismissal of plaintiff’s 42 U.S.C. § 1983 action alleging that the County of Hawaii's denial of his application for a handgun license violated his Second Amendment right to carry a loaded firearm in public for self-defense.

Holding: Not yet decided

DNC v. Hobbs, No. 18-15845

Three-Judge Panel Opinion: 904 F.3d 686 (9th Cir. 2018)

Order Taking Case En Banc: 911 F.3d 942 (9th Cir. 2019)

Date of Order Taking Case En Banc: January 2, 2019

En Banc Opinion: 948 F.3d 989 (9th Cir. 2020)

Date of En Banc Opinion: January 27, 2020

Members of En Banc Court: THOMAS, Chief Judge, and O'SCANNLAIN, W. FLETCHER, BERZON, RAWLINSON, CLIFTON, BYBEE, CALLAHAN, MURGUIA, WATFORD, and OWENS, Circuit Judges

Subject Matter: Appeal from the district court’s judgment, entered following a bench trial, in an action challenging under the First, Fourteenth and Fifteenth Amendments, and § 2 of the Voting Rights Act, two state of Arizona election practices: (1) Arizona’s requirement that in-person voters cast their ballots in their assigned precinct, which Arizona enforces by not counting ballots cast in the wrong precinct; and (2) House Bill 2023, which makes it a felony for third parties to collect early ballots from voters, unless the collector falls into one of several exceptions.

Holding: The en banc court reversed the district court’s judgment following a bench trial in favor of defendants, the Arizona Secretary of State and Attorney General in their official capacities, in an action brought by the Democratic National Committee and others challenging, first, Arizona’s policy of wholly discarding, rather than counting or partially counting, ballots cast in the wrong precinct; and, second, House Bill 2023, a 2016 statute criminalizing the collection and delivery of another person’s ballot.

Marinelarena v. Sessions, No. 14-72003

Three-Judge Panel Opinion: 869 F.3d 780 (9th Cir. 2017)

Order Taking Case En Banc: 886 F.3d 737 (9th Cir. 2018)

Date of Order Taking Case En Banc: March 29, 2018

En Banc Opinion: 930 F.3d 1039 (9th Cir. 2019)

Date of En Banc Opinion: July 18, 2019

Members of En Banc Court: THOMAS, Chief Judge, and TASHIMA, GRABER, W. FLETCHER, BERZON, RAWLINSON, BYBEE, M. SMITH, Jr., IKUTA, WATFORD, and FRIEDLAND, Circuit Judges

Subject Matter: Petition for review of the Board of Immigration Appeals' decision finding petitioner Aracely Marinelarena ineligible for cancellation of removal because she had failed to meet her burden of proof to show that her conviction was not for a disqualifying controlled substance offense.

Holding: Granting Aracely Marinelarena’s petition for review, reversing a decision of the Board of Immigration Appeals, and remanding, the en banc court overruled Young v. Holder, 697 F.3d 976 (9th Cir. 2012) (en banc) and held that, in the context of eligibility for cancellation of removal, a petitioner's state law conviction does not bar relief where the record is ambiguous as to whether the conviction constitutes a disqualifying predicate offense.

Ibrahim v. US Dep't of Homeland Security, Nos. 14-16161+

Three-Judge Panel Opinion: 835 F.3d 1048 (9th Cir. 2016)

Order Taking Case En Banc: 878 F.3d 703 (9th Cir. 2017)

Date of Order Taking Case En Banc: December 29, 2017

En Banc Opinion: 912 F.3d 1147 (9th Cir. 2019)

Date of En Banc Opinion: January 2, 2019

Members of En Banc Court: Chief Judge Thomas, Judges McKeown, Wardlaw, W. Fletcher, Berzon, Callahan, M. Smith, N.R. Smith, Christen, Nguyen, and Watford

Subject Matter: Appeal from the district court’s award of attorney’s fees and expenses pursuant to the Equal Access to Justice Act and the Supreme Court’s decision in Hensley v. Eckerhart, 461 U.S. 424 (1983).

Holding: The en banc court reversed the district court, vacated the award of attorneys’ fees under the Equal Access to Justice Act, and remanded with instructions to recalculate the fees for the civil rights law firm that represented Dr. Rahinah Ibrahim in her successful challenge to her inclusion on the Transportation Security Administration’s "No Fly" list.