While Intra-Circuit Splits Ordinarily May Be Resolved Only En Banc, a Three-Judge Panel May Overrule One Line of Cases Clearly Irreconcilable with Intervening Supreme Court Decision
United States ex rel. Air Control Techs., Inc. v. Pre Con Indus., Inc., 2013 U.S. App. LEXIS 13314 (9th Cir. June 28, 2013):
Ordinarily, intra-circuit splits may only be resolved by an en banc panel. Atonio v. Wards Cove Packing Co., Inc., 810 F.2d 1477, 1478-79 (9th Cir. 1987) (en banc). But when intervening higher authority has "undercut the theory or reasoning underlying  prior circuit precedent in such a way that the cases are clearly irreconcilable," Miller v. Gammie, 335 F.3d 889, 900 (9th Cir. 2003) (en banc), a three-judge panel may overrule one line of cases in the split, see, e.g., Leeson v. Transamerica Disability Income Plan, 671 F.3d 969, 979 (9th Cir. 2012) (overruling Ninth Circuit cases holding "participant status" was a jurisdictional limitation on ERISA claims because those cases were "clearly irreconcilable" with intervening higher authority). Celanese Coatings is clearly irreconcilable with intervening Supreme Court authority on jurisdictional requirements.
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