text:
    Eddie B. ROBINSON, as administrator for the Estate of Willie Robinson, Sr., deceased, Plaintiff-Appellant v. EOR-ARK, LLC; VAJ, LLC; Senior Living Communities of Arkansas, LLC; SLC Operations Holdings, LLC; SLC Operations, LLC; Pine Hills Holdings, LLC; Pine Hills Health and Rehabilitation, LLC, doing business as Pine Hills Health and Rehabilitation; SLC Operations Master Tenant, LLC; SLC Properties, LLC; SLC Property Holdings, LLC; SLC Property Investors, LLC; Arkansas Nursing Home Acquisitions, LLC; CSCV Holdings, LLC; Capital Funding, LLC; Capital Funding Group, Inc.; Capital Finance, LLC; Capital Seniorcare Ventures, LLC; Addit, LLC; SLC Professionals of Arkansas, LLC, doing business as SLC Professionals, LLC; Senior Vantage Point, LLC; 900 Magnolia Road SW, LLC; Quality Review, LLC; Arkansas SNF Operations Acquisition, LLC; SLC Professionals Holdings, LLC; SLC Administrative Services of Arkansas, LLC; John Dwyer, Defendants-Appellees
    No. 15-3406
    United States Court of Appeals, Eighth Circuit.
    Submitted: September 21, 2016
    Filed: November 14, 2016

      Robert Henry Edwards, Wilkes & MeHugh, John O’Grady, Reddick Moss PLLC, Deborah Truby Riordan, Appellate Solutions, PLLC, Little Rock, AR, William Parks Murray, III, Wilkes & McHugh, Philadelphia, PA, for Plaintiff-Appellant.
    Stephen M. Dacus, Mark W. Dossett, Samantha Leñar, Kutak & Rock, Fayette-ville, AR, for Defendants-Appellees.,
    Before RILEY, Chief Judge, MURPHY and SMITH, Circuit Judges.
   MURPHY, Circuit Judge.

Willie Robinson, Sr. entered into an arbitration agreement when he was admitted to the Pine Hills Health and Rehabilitation nursing home. After Willie died, his son and estate administrator Eddie Robinson (Robinson) brought this action against Pine Hills and related entities.'Defendants moved to dismiss and compel arbitration. The district court granted defendants’ motion and Robinson now appeals. We affirm.

I.

When Willie was admitted to Pine Hills in 2010 he signed an arbitration agreement. The arbitration agreement provides that it is governed by the Federal Arbitration Act and includes a severability clause. The agreement also provides that claims arising from Pine. Hills services to Willie must be arbitrated “in accordance with the National Arbitration Forum Code of Procedure, (‘NAF’) which is hereby incorporated into th[e] agreement, and not by a lawsuit or resort to court process.” (footnote omitted). The code lists five possible fora for arbitration: NAF, the International Arbitration Forum, the Arbitration Forum, arbitration-forum.com, and adrfo-rum.com.

The year before the parties had entered into the arbitration agreement, NAF entered into a consent judgment in which it agreed not to process, administer, or in any way participate in any new consumer arbitration. The parties do not state whether the four other arbitration fora listed in the code still perform consumer arbitration. The code provides that if the code is canceled or the parties “are denied the opportunity to arbitrate a dispute, controversy or Claim before” a forum-listed in the code, then the parties “may seek legal and other remedies.”

After Willie died, Robinson filed a complaint in Arkansas state court for alleged injuries and wrongful death Willie suffered at Pine Hills. Defendants are Pine Hills; entities that owned, operated, managed, controlled, and provided services to Pine Hills; and a person who was the corporate manager, officer, owner, and director of the defendant entities. Defendants moved to dismiss the complaint and compel arbitration and then removed the case to federal court. The district court granted the motion to dismiss and compel arbitration. Robinson appeals the district court’s order.

II.

We review the district court’s decision to compel arbitration de novo and its factual findings for clear error. Schultz v. Verizon Wireless Servs., LLC, 833 F.3d 975, 980 (8th Cir. 2016). In reviewing an arbitration agreement, ’ “we ask only (1) whether there is a valid arbitration agreement and (2) whether the particular dispute falls within the terms of that agreement.” Faber v. Menard, Inc., 367 F.3d 1048, 1052 (8th Cir. 2004). If the parties have a valid arbitration agreement that encompasses the dispute, a motion to compel arbitration must be granted. 3M Co. v. Amtex Sec., Inc., 542 F.3d 1193, 1198 (8th Cir. 2008).

State contract law governs whether the parties have entered into a valid arbitration agreement. Donaldson Co. v. Burroughs Diesel, Inc., 581 F.3d 726, 731 (8th Cir. 2009). Robinson does not argue that the agreement is unenforceable, and under Arkansas law the agreement is enforceable even though NAF is unavailable to serve as the arbitrator. Courtyard Gardens Health & Rehab., LLC v. Arnold, 2016 Ark. 62, 485 S.W.3d 669, 674-77 (2016).

Because the arbitration agreement is enforceable, we must determine whether the present dispute falls within its scope given that NAF no longer conducts consumer arbitration. In determining whether a dispute falls within the scope of an arbitration clause, we “construe[] the clause liberally, resolving any doubts in favor of arbitration ... ‘unless.it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute.’ ” 3M Co., 542 F.3d at 1199 (quoting MedCam, Inc, v. MCNC, 414 F.3d 972, 975 (8th Cir. 2005)).

Robinson argues that the terms of the arbitration agreement allow him to litigate his claims because NAF’s unavailability denies him “the opportunity to arbitrate a dispute, controversy or Claim before” the fora listed in the code. As an initial matter, it is not clear whether all possible arbitration fora listed in the code are actually unavailable. NAF has stopped participating in consumer arbitration but paragraph 2(S) of the code lists four other possible arbitration fora. If any of these fora is available, then there is no lapse in naming an arbitrator and the parties are bound to arbitrate. The parties appear to accept, though, that all fora listed in paragraph 2(S) are unavailable.

Even assuming that all listed arbitration fora are unavailable, the arbitration agreement still requires the parties to arbitrate this dispute. The code provides that if a party is denied the opportunity to arbitrate before a listed forum, then it “may seek legal and other remedies in accord with applicable law.” The applicable law here is Section 5 of the Federal Arbitration Act. That statute provides that when there is a lapse in naming an arbitrator, the court must appoint a substitute arbitrator so that the parties may still arbitrate the dispute. 9 U.S.C. § 5.

Many courts have recognized an exception to Section 5 when the choice of arbitrator is integral to the arbitration agreement. Inetianbor v. CashCall, Inc., 768 F.3d 1346, 1350 & n.1 (11th Cir. 2014) (collecting cases). But see Green v. U.S. Cash Advance Ill., LLC, 724 F.3d 787 (7th Cir. 2013). Robinson argues that we should recognize this exception and conclude that the selection of NAF was integral to the arbitration agreement. We need not decide whether to adopt such exception because it would not apply in this case as the choice of arbitrator was not integral to the arbitration agreement. The arbitration agreement does not say that the parties must either arbitrate before one of the five fora listed in the code or else litigate. Instead, the agreement allows the parties to “seek legal and other remedies” which leaves open the possibility of arbitration before a different arbitrator. Moreover, the parties may well have considered the choice of arbitrator unimportant enough that they did not check whether NAF was still available to perform consumer arbitration before they entered into the agreement. If they had checked, they would have learned that NAF had stopped performing such arbitrations nearly a year earlier.

Robinson also argues that he is not required to arbitrate his claims because the code has been canceled, and the code itself allows parties to seek “legal and other remedies” in this situation. He has not shown, however, that NAF has canceled the code. The meaning of the term “cancel” in this context is a matter of contract interpretation, and the code does not define the term. Because the Federal Arbitration Act does not address this issue, state law controls. See DIRECTV, Inc. v. Imburgia, — U.S. -, 136 S.Ct. 463, 468, 193 L.Ed.2d 365 (2015). Interpreting the same contract language, the Arkansas Supreme Court recently ruled that NAF’s cessation of consumer arbitration does not by itself establish that NAF has canceled the code. See Courtyard Gardens, 485 S.W.3d at 676. The fact that NAF has stopped performing, consumer arbitration does not prove that the code has been canceled, and Robinson has not provided additional persuasive evidence to show cancellation.

Robinson finally argues that defendants who did not sign the arbitration agreement may not force his claims to arbitration. State contract law governs the power of nonsignatories to enforce an arbitration agreement. Donaldson, 581 F.3d at 732. Under Arkansas law, “a nonsignatory may compel a signatory to arbitrate claims in limited circumstances.” PRM Energy Sys., Inc. v. Primenergy, L.L.C., 592 F.3d 830, 834 & n.3 (8th Cir. 2010). One such circumstance “relies on agency and related principles to allow á nonsignatory to compel arbitration when, as a result of the nonsignatory’s close relationship with a signatory, a failure to do so would eviscerate the arbitration agreement.” Id. at 834.

According to Robinson’s complaint, his claims arise from most defendants’ participation “in the ownership, operation, management, control and/or services provided to Pine Hills.” The complaint also alleges that all defendants “through a joint venture owned, operated, managed and controlled Pine Hills.” The arbitration agreement says “that it shall inure to the benefit of and bind the parties, their successors, and assigns, including without limitation the agents, employees and .servants of the Facility.”

Under Arkansas law, these allegations are enough for a court to conclude that the parties are closely related and that arbitration is appropriate. See Searcy Healthcare Ctr., LLC v. Murphy, 2013 Ark. 463, 2013 WL 6047164, at *6 (2013) (unpublished). To the extent that nonsigna-tory defendants provided services to Pine Hills, they may compel arbitration because the parties specifically agreed that the arbitration agreement ran to them benefit. To the extent that the nonsignatory defendants owned, operated, and managed Pine Hills, they may compel arbitration because they are closely related to Pine Hills and Robinson’s claims arise from their relationship with Pine Hills. If Robinson were allowed to sue its owners, operators, and managers for Pine Hills’ alleged misconduct, then he would be able to evade the arbitration agreement and thus eviscerate it. In order to honor the arbitration agreement, we should enforce it against the nonsignatory defendants.

For these reasons we affirm the order of the district court.,

      . The Honorable Susan O. Hickey, United States District Judge for the Western District of Arkansas, adopting the report and recommendation of the Honorable Barry A. Bryant, Chief Magistrate Judge, United States District Court for the Western District of Arkansas.


source: Caselaw Access Project

author: MURPHY, Circuit Judge.

license: Public Domain

text:
    IN RE: Casey Drew O’SULLIVAN, Debtor. CRP Holdings, A-1, LLC, Appellant, v. Casey Drew O’Sullivan, Appellee.
    No. 16-1526
    United States Court of Appeals, Eighth Circuit.
    Submitted: September 22, 2016
    Filed: November 14, 2016

      Counsel who presented argument on behalf of the appellant was Michael J. Wam-bolt, of Kansas City, MO. The following attorney appeared on the appellant brief; Neil S. Sader, of Kansas City, MO.
    Counsel who presented argument on behalf of the appellee was Norman E. Rouse, of Joplin, MO.
    Before RILEY, Chief Judge, MURPHY and SMITH, Circuit Judges.
   MURPHY, Circuit Judge.

Casey Drew O’Sullivan filed for Chapter 7 bankruptcy and claimed a $15,000 exemption in a homestead he owned as a tenant in the entirety with his wife. O’Sullivan then sought an order from the bankruptcy court avoiding CRP Holdings, A-l, LLC’s (CRP) judicial lien on the homestead property to the extent that it impaired his claimed exemption. The bankruptcy court granted O’Sullivan’s motion to avoid GRP’s judicial lien, and the bankruptcy appellate panel (BAP) affirmed. See In re O’Sullivan, 544 B.R. 407 (B.A.P. 8th Cir. 2016). Judgment creditor CRP appeals, asserting that its judicial lien is not subject to avoidance. We reverse and remand to the bankruptcy court for further proceedings.

I.

In 2015 CRP. obtained a default judgment in Platte County, Missouri circuit court against O’Sullivan and his business in the amount of $765,151.18. O’Sullivan’s wife was not included in the judgment, but she and her husband owned property in Barton County, Missouri (the property) as tenants in the entirety. After obtaining the default judgment, CRP filed a notice of foreign judgment'with the Barton County circuit court in an attempt to obtain a judicial lien on that property. See Mo. Rev. Stat. § 511.440.

A few months later O’Sullivan filed a voluntary Chapter 7 bankruptcy petition which his wife did not join. O’Sullivan listed the property in his schedules and claimed a $15,000 homestead exemption under both Mo. Rev. Stat. § 513.475 and 11 U.S.C. § 522(b)(3)(B). O’Sullivan simultaneously moved to avoid CRP’s purported judicial lien under 11 U.S.C. § 522(f)(1), asserting that the lien impaired his claimed homestead exemption. The bankruptcy court granted the motion, concluding that “CRP’s judgment lien—although perhaps not enforceable—certainly affixed upon [O’Sullivan’s] home upon CRP’s recording of its judgment in Barton Count/’ and therefore impaired O’Sullivan’s claimed exemption.

CRP appealed to the BAP, which affirmed the bankruptcy court order. The BAP similarly concluded that “an unenforceable judgment lien arose” on the property held in the entireties and therefore it was “possible for [O’Sullivan] to avoid it under § 522(f).” In re O’Sullivan, 544 B.R. at 413. CRP appeals the BAP’s affirmance of the bankruptcy court order avoiding its purported judicial lien.

II.

CRP challenges the BAP’s conclusion that O’Sullivan could avoid its purported judicial hen on the property. We have jurisdiction to review final decisions of the BAP under 28 U.S.C. § 158(d). When reviewing a decision of the BAP, “we act as a second reviewing court of the bankruptcy court[] decision, independently applying the same standard of review as the BAP.” In re Lasowski, 575 F.3d 815, 818 (8th Cir. 2009). This appeal turns on the bankruptcy court’s interpretation of law which we review de novo. Id

Chapter 7 of the bankruptcy code provides a means for insolvent debtors to receive a “fresh start” through bankruptcy proceedings. In re Thompson, 750 F.2d 628, 630 (8th Cir. 1984). To ensure that debtors have sufficient property to realize fully that fresh start, the code permits debtors to exempt certain property from their bankruptcy estate. See 11 U.S.C. § 522(b). Ordinarily, “liens and other secured interests survive bankruptcy” and can subsequently be levied against a debtor’s exempted property, thereby impeding a debtor’s ability to obtain a fresh start. Farrey v. Sanderfoot, 500 U.S. 291, 297, 111 S.Ct. 1825, 114 L.Ed.2d 337 (1991); see 11 U.S.C. § 522(c). To shield exempt property from such post bankruptcy collection efforts, 11 U.S.C. § 522(f)(1) provides a mechanism for bankruptcy courts to avoid, or extinguish, secured debts that would otherwise pass through the bankruptcy proceeding.

Under § 522(f)(1), debtors may move to “avoid the fixing of [certain] lien[s] on an interest of the debtor in property to the extent that such lien[s] impair[] an exemption to which the debtor would have been entitled under [§ 522(b)].” To avoid the fixing of CRP’s purported judicial lien, O’Sullivan therefore had to establish that CRP’s notice of foreign judgment had (1) created an avoidable lien under § 522(f)(1), that (2) affixed on O’Sullivan’s interest in property exempted under § 522(b), and (3) impaired O’Sullivan’s claimed exemption in the property. CRP does not challenge O’Sullivan’s claimed $15,000 homestead exemption or the bankruptcy court’s impairment analysis. The only contested issues on appeal are whether a judicial lien existed and, if so, whether that lien affixed on O’Sullivan’s interest in the property.

Throughout the bankruptcy proceedings and on appeal, neither party has addressed whether CRP had a judicial lien properly subject to avoidance under § 522(f)(1)(A). Rather, the parties and the bankruptcy court assumed that CRP had a cognizable judicial lien under Missouri law. On appeal, the BAP noted that it had “serious doubts as to whether CRP has.a lien at all, much less one that attached or fixed to [O’Sullivan’s] interest in property,” but nonetheless proceeded with the avoidance analysis. In re O’Sullivan, 544 B.R. at 412 n.5. Like the BAP, we have serious doubts as to whether CRP has a lien that affixed onto O’Sullivan’s interest in the property. Unlike the BAP, however, we do not think we can definitively rule on the avoidance motion in the absence of such a finding.

The bankruptcy code defines “judicial liens” as liens “obtained by judgment, levy, sequestration, or other legal or equitable process or proceeding.” 11 U.S.C. § 101(36). Judicial liens are a subsét of “liens,” which are defined as “charge[s] against or interest[s] in property to secure payment of a debt or performance of an obligation.” 11 U.S.C. § 101(37). This definition of “liens” suggests that both unenforceable “charge[s] against” property and enforceable “interest[s] in” property fall within its scope. That interpretation is bolstered by the legislative history ■ of the Bankruptcy Reform Act which itself states that the definition of lien is “very broad” and “includes inchoate liens.” S. Rep. No. 95-989, at 25 (1978); H.R. Rep. 95-595, at 312 (1977). We agree with the BAP that unenforceable liens may be avoided under § 522(f)(1).

The question then is whether CRP’s notice of foreign judgment created a lien on the property—either enforceable or unenforceable. As the BAP noted, there is a strong argument that it did not. En-tireties property “is owned by a single entity, the marital community.” Fed. Nat’l Mortg. Ass’n v. Pace, 415 S.W.3d 697, 703 (Mo. Ct. App. 2013). Missouri state court judgments, such as the default judgment CRP obtained against O’Sullivan, are “lien[s] upon the real estate of the person against whom such judgment ... is entered” located within the same county as the judgment. Mo. Rev. Stat. § 511.440 (emphasis added); see also Mo. Rev. Stat. § 511.350. Thus, when CRP filed its notice of foreign judgment, it created a judicial lien on any “real estate” owned by O’Sullivan in Barton County. “Real estate” itself is narrowly defined as an interest in property “liable to be sold upon execution.” Mo. Rev. Stat. § 511.010 (emphasis added). Here, because the real estate was held as entireties property, neither spouse arguably had “a separate interest [in that property] subject to execution,” and a judgment filed against only one spouse could not “constitute a lien on the [entireties] property.” Baker v. Lamar, 140 S.W.2d 31, 35 (Mo. 1940) (emphasis added). There is thus a strong argument that CRP did not obtain any lien on the property.

The distinction between an existent but unenforceable lien and a non existent lien is relevant to an avoidance analysis under § 522(f)(1). Whether a debtor “possessed an interest to which [a] lien fixed, before it fixed, is a question of state law.” Farrey, 500 U.S. at 299, 111 S.Ct. 1825. Nevertheless, the Supreme Court has defined the term “fixed” in § 522(f) as to “fasten a liability upon.” Id. at 296, 111 S.Ct. 1825 (quoting Black’s Law Dictionary 637 (6th ed. 1990)). When there is no lien under state law, however, there is nothing to “fasten” upon the property and give rise to an unenforceable lien. As the Tenth Circuit has persuasively concluded, “when state law does not allow a lien to attach to exempt property, § 522(f) is superfluous and without application.” In re Sanders, 39 F.3d 258, 262 (10th Cir. 1994).

The distinction between existent but presently unenforceable liens and nonexistent liens is reflected in the decisions of other appellate courts analyzing § 522(f). Both the Sixth and Tenth circuits have declined to avoid purported judicial liens in cases where a judgment did not give rise under state law to a judicial lien on the exempted property (not even an unenforceable one). While interpreting Colorado law, the Tenth Circuit' concluded that the judicial liens at issue “never became liens upon the debtors’ homestead” and therefore it was unnecessary to use § 622(f) “to avoid the judgment liens at issue.” In re Shafner, No. 94-1602, 1996 WL 98809, at *2 (10th Cir. Mar. 6, 1996); see also In re Sanders, 39 F.3d at 262 (same under Utah law). Similarly, while interpreting Tennessee law, the Sixth Circuit concluded that a debtor could not avoid a judgment creditor’s lien because the hen did not attach to the debtor’s exempt present possessory interest in the homestead (held with the debtor’s spouse as tenants in the entirety). In re Arango, 992 F.2d 611, 615 (6th Cir. 1993). Rather, the debt attached to the debtor’s non exempt future interest in the right of surviv-orship, which was separately included in the bankruptcy estate. Id.

By contrast, the Fifth Circuit permitted a debtor to avoid a purported judicial lien against exempt property because under Texas law the lien at issue “fasten[ed] a liability against the ... homestead—albeit an unenforceable one.” In re Henderson, 18 F.3d 1305, 1309 (5th Cir. 1994). In that case, the Fifth Circuit relied on a Texas state court decision holding that a homestead “is not exempt from [a] perfected lien” but rather “is exempt from any seizure attempting to enforce [a] perfected lien.” Jd. (quoting Exocet Inc. v. Cordes, 815 S.W.2d 350, 352 (Tex. Ct. App. 1991)). We are persuaded by the distinctions drawn by other appellate courts and conclude that where a judgment gives rise to an unenforceable lien, a debtor may move to avoid that lien under ■ § 522(f). When a judgment fails to give rise to any judicial lien (including an unenforceable lien), however, § 522(f)(1) is superfluous and without application.

In sum, if under Missouri law CRP’s notice of foreign judgment failed to give rise to a lien on O’Sullivan’s exempt homestead property, the debt would have been dischargeable through the bankruptcy proceedings. O’Sullivan would then not need to resort to § 522(f) to avoid CRP’s judgment. Alternatively, O’Sullivan could move to avoid the lien under § 522(f)(1) if CRP’s notice of foreign judgment fastened an existent, but presently unenforceable, hen on his exempt property.

We decline to undertake the question of whether there- is a cognizable lien under § 522(f)(1) in the first instance. Rather, “[o]ut of prudence, we believe it is . appropriate to allow the [bankruptcy] court to address this issue in the first instance,” thereby “permitting] adequate vetting through the adversarial process.” Montin v. Estate of Johnson, 636 F.3d 409, 416 (8th Cir. 2011).

III.

Accordingly the BAP’s decision is vacated, and the matter is remanded to the bankruptcy court for it to determine whether CRP has a judicial lien on the property (either enforceable or unenforceable).


author: THOMAS, Chief Judge: REINHARDT, Circuit Judge, O’SCANNLAIN, Circuit Judge,

text:
    Leslie FELDMAN; Luz Magallanes; Mercedez Hymes; Julio Morera; Cleo Ovalle; Peterson Zah, Former Chairman and First President of the Navajo Nation; The Democratic National Committee; DSCC, AKA Democratic Senatorial Campaign Committee; The Arizona Democratic Party; Kirkpatrick for U.S. Senate; Hillary for America, Plaintiffs-Appellants, Bernie 2016, Inc., Intervenor-Plaintiff-Appellant, v. ARIZONA SECRETARY OF STATE’S OFFICE; Michele Reagan, in her official capacity as Secretary of State of Arizona; Maricopa County Board of Supervisors; Denny Barney; Steve Chucri; Andy Kunasek; Clint Hickman; Steve Gallardo, member of the Maricopa County Board of Supervisors, in their official capacities; Maricopa County Recorder and Elections Department; Helen Purcell, in her official capacity as Maricopa County Recorder; Karen Osborne, in her official capacity as Maricopa County Elections Director; Mark Brnovich, in his official capacity as Arizona Attorney General, Defendants-Appellees, The Arizona Republican Party, Intervenor-Defendant-Appellee.
    No. 16-16698
    United States Court of Appeals, Ninth Circuit.
    Filed November 2, 2016
    Bruce V. Spiva (argued), Amanda R. Calíais, Elisabeth C. Frost, and Marc E. Elias, Perkins Coie LLP, Washington, D.C.; Joshua L. Kaul, Perkins Coie LLP, Madison, Wisconsin; Sarah R. Gonski and Daniel C. Barr, Perkins Coie LLP, Phoenix, Arizona; for Plaintiffs-Appellants.
    Malcolm Seymour, Garvey Schubert Baker, New York, New York; D. Andrew Gaona, Andrew S, Gordon, and Roopali H. Desai, Coopersmith Brockelman PLC, Phoenix, Arizona, for Intervenor-Plaintiff-Appellant.
    Karen J. Hartman-Tellez (argued) and Kara M. Karlson, Assistant Attorneys General; Mark Brnovich, Attorney General; Office of the Attorney General, Phoenix, Arizona; for Defendants-Appellees.
    Sara J. Agne (argued), Colin P. Abler, and Brett W. Johnson, Snell & Wilmer LLP, Phoenix, Arizona, for Intervenor-Defendants-Appellees.
    Concurrence by Judge REINHARDT;
    Dissent by Judge O’SCANNLAIN
   ORDER

THOMAS, Chief Judge:

Upon the vote of a majority of nonre-cused active judges, it is ordered that this case be reheard en banc pursuant to Federal Rule of Appellate Procedure 35(a) and Circuit Rule 35-3. The three-judge panel opinion shall not be cited as precedent by or to any court of the Ninth Circuit.

Judges Kozinski and McKeown did not participate in the deliberations or vote in this case.

REINHARDT, Circuit Judge,

concurring in the grant of rehearing en banc:

This is an urgent case of extraordinary importance involving the suppression of minority voters on the eve of a presidential election.

“Arizona has criminalized one of the most popular and effective methods by which minority voters cast their ballots.” Thomas Dissent at 840 F.Bd 1057, 1086. The law at issue makes it a felony for most people to accept a ballot that a voter has filled out and deliver it to the appropriate polling place on the voter’s behalf. It punishes the routine actions of many get-out-the-vote organizations and political campaigns. Violators can be sentenced to a year in jail and a $150,000 fine. Despite the panel majority’s opinion to the contrary, the record in this case fully documents the disparate burden that this law imposes on minority voters. “There are many burdens and challenges faced in Arizona by Native Americans, Hispanics, African-Americans, the poor, and the infirm who do not have caregivers or family. With H.B. 2023, Arizona has added another: disenfranchisement.” Thomas Dissent at 840 F.3d at 1097. It is just as clear that the state’s justifications for the law do not withstand any level of scrutiny.

It is indeed no secret' that many states have recently enacted legislation making it more difficult for members of minority groups to vote in presidential elections. Arizona is one. It has done so under the guise of guarding against voter fraud, although not one single case of voter fraud in the history of Arizona elections was identified by the Arizona legislature when it enacted statutes changing its system to attempt to limit the opportunity to vote of members of minority groups—of Hispanics, African Americans, and Native Americans—as well as the poor and infirm. And not one case of voter fraud has been cited to the district court or this court by Arizona when seeking to defend its indefensible and race-based statute.

In the wake of the panel majority’s opinion upholding the invidious Arizona statute by a 2-1 vote, the judges on this court voted to take the case en banc. I am confident that a majority of the members of the court do not support the panel majority’s view that the pretextual risk of voter fraud outweighs the significant burdens on the right to vote imposed by this unconscionable law. I am confident, instead, that the majority of the members of the court agree with Chief Judge Thomas’s persuasive opinion that “the anti-ballot-collection law significantly burdens the voting rights of minorities, particularly Hispanic and Native American voters” and that “[t]he State’s justification of preventing voter fraud was not, and is not, supportable.” Thomas Dissent at 840 F.3d at 1097.

⅜ ⅜ ⅜

Different members of the court embrace differing legal philosophies and historical understandings regarding the significance of the Voting Rights Act and the Constitution with relation to election restrictions and their discriminatory effects. A decision on an issue of such profound legal and political importance that could affect not only the rights of Arizona citizens but the interests of all Americans in the outcome of a presidential election should not depend on a 2-1 vote of three members of a panel of our court. Rather, our en banc process affords a more representative sampling of this court’s group of judges in helping to decide , what fundamental approach to voting rights this Circuit will adopt. An en banc court of eleven is ordinarily far more likely than a panel of three to express the view of the court as a whole.

Unfortunately, however, our en banc process is not perfect and also does not necessarily represent the view of the full court. It is selected by lot, as a full court en banc is ordinarily deemed too unwieldy. Thus, although it is preferable to a three judge panel, in an extraordinary case such as this, it too may not accurately reflect the view of the court as a whole. It is possible that we will be faced with such a case here. The en banc court here is composed of a majority of judges who did not support the en banc call. Although I would hesitate to predict the outcome of the en banc court’s deliberation, it may be that its judgment will not reflect the view of the full court. Nevertheless, although the en banc court is weighted by chance in favor of those who failed to support en banc rehearing, it still has a better chance of representing the view of the court as a whole than does any panel of three. If the en banc court does not reach the conclusion that I believe the full court would have reached, at the least it reflects a proper use of our en banc system. In my own view, regardless of the decision of the en banc court, I am confident that the court as a whole would have rejected the panel majority’s conclusion and enjoined the enforcement of the Arizona ■ statute, although we will probably never know if I am correct..Whether I am or not, I should emphasize that whatever .decision the en banc court reaches will be legitimate and will properly be binding on our court and in pur Circuit.

Judge O’Scannlain, whose view regarding convening an en banc court was rejected by the full court in the only vote in this case the full court is likely to take, asks, “Why the rush?” O’Scannlain Dissent at 794. Here is one answer: a presidential election is just one week away, and the franchise of a potentially decisive number of voters depends upon our decision. If we conclude that we ought to do nothing while we still can because acting now might affect the very election that the challenged statute was enacted to distort, we would not only permit Arizona to frustrate the purposes of the Voting Rights Act and the Constitution, but also encourage other state legislatures to pass laws carefully timed to be effectively unreviewable in court and carefully designed to influence the outcome of specific elections.

It is particularly ironic that Judge O’Scannlain cites Purcell v. Gonzalez, 549 U.S. 1, 127 S.Ct. 5, 166 L.Ed.2d 1 (2006), in support of his argument that the court should sit resolutely aside as discriminatory voter suppression goes unredressed. In Purcell, the Supreme Court stayed an injunction of a different Arizona law affecting the 2006 mid-term election in part because “Arizona [was] a covered jurisdiction under § 5 of the Voting Rights Act of 1965.” Id. at 2, 127 S.Ct. 5. The state was, as a result, “required to preclear any new voting ‘standard, practice, or procedure’ with either the United States Attorney General or the District Court for the District of Columbia to ensure its new voting policy did ‘not have the purpose [or] effect of denying or abridging the right to vote on account of race or color.’ ” Id. Arizona had obtained that pre-clearance for which Congress had provided. Id. at 3, 127 S.Ct. 5.

After the Supreme Court’s 2013 decision in Shelby County v. Holder, however, which effectively invalidated the preclearance provision of § 5, — U.S.-, 133 S.Ct. 2612, 186 L.Ed.2d 651 (2013), the courts provide the only meaningful check on voter suppression and on discrimination in the exercise of the most fundamental civic right in our democracy. The extraordinary circumstances of this case thus make it all the more necessary for us to uphold what remains of the Voting Rights Act and enforce the constitutional, rights of all citizens—including the members of minority groups that the majority of the Arizona state legislature might prefer not to hear from in this election.

Notwithstanding Judge O’Scannlain’s arguments as to what the Supreme Court would do, we have a duty to enforce the law and our constitution as we see it. Equally important, despite a similar injunction issued by the Fourth Circuit, the Supreme Court has not intervened to stay any action taken by a circuit court in advance of the 2016 presidential election, but has left such disputes for the circuit courts to resolve. Moreover, this Arizona criminal statute, which applies to third parties and carries a serious jail sentence, is far different from those which the Supreme Court has declined to enjoin in previous election cycles. To calm Judge O’Scannlain’s fears, however, I would note that the Supreme Court is quite capable of timely staying any injunction that our court may issue if it disagrees with us.

⅜⅜⅜

I concur in the well-advised order granting rehearing en banc. Even should the en banc court not reach the result I am convinced the majority of the full court would have reached, we will have followed the best process that is available to us in our attempt to do so. We will also have exposed, although in dissent, the inequity and essential vice of the Arizona statute. Should, however, the' en banc court adopt the view I believe to be held by the court as a whole, we will have accomplished far more. We will have vindicated the right of all voters to fair and just treatment under the United States Constitution and Section 2 of the Voting Rights Act.

O’SCANNLAIN, Circuit Judge,

with whom TALLMAN, CALLAHAN, BEA, and IKUTA, Circuit Judges, join,

dissenting from the grant of rehearing en banc:

We have made a serious mistake by granting rehearing en banc. Our court risks present chaos and future confusion in pursuit of an outcome the Supreme- Court has explicitly told us to avoid. There are no good reasons—and many bad ones—to take this case en banc six days before the election on such a compressed schedule. Sadly, a majority of this court has ignored such dangers in its unseemly rush to overrule, by any means necessary, a five-day old opinion. One hopes cooler heads prevail and this case receives the attention it deserves—but I fear instead a shoot-first, ask questions later approach that will haunt us for years to come.

I

A brief background: On September 23, 2016, the district court denied plaintiffs’ motion for a preliminary injunction blocking Arizona from implementing certain provisions in Arizona House Bill 2023. These provisions restrict the collection of voters’ early ballots to family members, household members, certain government officials, and caregivers. Plaintiffs appealed. A Ninth Circuit motions panel unanimously denied plaintiffs’ emergency motion for an injunction pending' appeal on October 11th. On October 14th that same panel süa sponte amended its October 11th ruling to expedite the appeal. In fourteen days a merits panel received briefing, heard oral argument, and issued an opinion affirming the district court and denying the request for a preliminary injunction by a two to one majority. The case was called en banc the same day the opinion was issued (October 28th). Eschewing our normal en banc schedule, memo exchange and voting took place over five days.

Why the rush?

II

A

The closer we are to election day the more a preliminary injunction is disfavored. See, e.g., Lair v. Bullock, 697 F.3d 1200, 1214 (9th Cir. 2012) (staying, a district court’s injunction “given the imminent nature of the election”). Early voting began in Arizona on October 12th. Upsetting the applecart 90% of the way through voting by issuing an injunction a couple of days before November 8th would fly in the face of Supreme Court guidance counseling against this exact type of last-minute interference. Purcell v. Gonzalez, 549 U.S. 1, 4-6, 127 S.Ct. 5, 166 L.Ed.2d 1 (2006) (vacating a Ninth Circuit injunction against the State of Arizona because of “the imminence of the election and the inadequate time to resolve the factual disputes”). We should follow other circuits and respect Purcell. See, e.g., Crookston v. Johnson, No. 16-2490, 841 F.3d 396, 2016 WL 6311623 (6th Cir. Oct. 28, 2016) (“Call it what you will—laches, the Purcell principle, or common sense—the idea is that courts will not disrupt imminent elections absent a powerful reason.... ”).

B

A second serious problem is that we risk creating a mess of current law by trying to produce a ruling under self-imposed time pressure. The en banc court could render a decision in the next five days in hopes of enjoining Arizona’s law before electiop day and then deal with the consequences of its decision later. Or, it could take whatever time it deems necessary to gain a thorough mastery of the record, to hear oral argument from the parties, and to write a considered opinion in plenty of time for the next election. This case has an extensive record and could potentially set an important precedent.

“Allowing the election to proceed without enjoining the statutory provisions at issue will provide the courts with a better record on which to judge their constitutionality. ... Given the importance of the constitutional issues, the Court wisely takes action that will enhance the likelihood that they will be resolved correctly on the basis of historical facts rather than speculation.” Purcell, 549 U.S. at 6, 127 S.Ct. 5 (J. Stevens, concurring). .

We should heed Justice Stevens’s advice.

III

I respectfully dissent from the ill-advised order granting rehearing en banc under these contrived conditions.

      . Other circuits have repeatedly recognized that this kind of meddling right before an election is almost never appropriate. Veasey v. Perry, 769 F.3d 890, 895 (5th Cir. 2014) (staying an injunction "in light of the importance of maintaining the status quo on the eve of an election”); Colon-Marrero v. Conty-Perez, 703 F.3d 134, 139 n.9 (1st Cir. 2012) (noting that "even where plaintiff has demonstrated a likelihood of success, issuing an injunction on the eve of an election is an extraordinary remedy with risks of its own”); Serv. Emps. Int’l Union Local 1 v. Husted, 698 F.3d 341, 345 (6th Cir. 2012) ("As a general rule, last-minute injunctions changing election procedures are strongly disfavored.”).

      . The majority may argue that the importance of ensuring everyone has the right to vote trumps any concern about jumping the gun or improperly interfering in an election. But, Purcell addressed this exact question, and the Supreme Court decided 9-0 against the position the majority espouses. Indeed, the law at issue in that case, identification requirements, affected far more people and potentially took away their right to vote entirely, whereas this law affects fewer voters and only restricts one aspect of one way of early voting. Id. at 2-3, 127 S.Ct. 5; see also Crawford v. Marion County Election Bd., 553 U.S. 181, 187-88, 128 S.Ct. 1610, 170 L.Ed.2d 574 (2008) (discussing potential reach of ID law). We cannot overturn Supreme Court precedent, even if some judges wish it wére otherwise. See, e.g., Richter v. Hickman, 578 F.3d 944 (9th Cir. 2009), rev’d, Harrington v. Richter, 562 U.S. 86, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011) ("[Jjudicial disregard [for sound and established principles] is inherent in the opinion of the Court of Appeals for the Ninth Circuit here under review.”).


author: TALLMAN, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Joshua LUCAS, Defendant-Appellant.
    No. 15-10103
    United States Court of Appeals, Ninth Circuit.
    Argued and Submitted March 16, 2016, San Francisco, California
    Filed November 8, 2016

      Daniel Blank (argued), Assistant Federal Public Defender; Carmen A. Smaran-doiu, Research and Writing Attorney; Steven G. Kalar, Federal Public Defender; Office of the Federal Public Defender, San Francisco, California; for Defendant-Appellant.
    Anne M. Voigts (argued), Assistant United States Attorney; Barbara J. Valli-ere, Chief, Appellate Division; Brian J. Stretch, Acting United States Attorney; United States Attorney’s Office, San Francisco, California; for Plaintiff-Appellee.
    Before: M. MARGARET McKEOWN, KIM McLANE WARDLAW, and RICHARD C. TALLMAN, Circuit Judges.
   OPINION

TALLMAN, Circuit Judge:

Joshua Lucas-appeals his federal conviction for being a felon in possession of a firearm and ammunition after his earlier California conviction for the same conduct. His appeal turns on a discovery issue: whether the district-court erred by denying his motion to compel information he contends will support a motion to dismiss the federal indictment under the Double Jeopardy Clause of the United States Constitution. See Petite v. United States, 361 U.S. 529, 530-31, 80 S.Ct. 450, 4 L.Ed.2d 490 (1960); Abbate v. United States, 359 U.S. 187, 189-96, 79 S.Ct. 666, 3 L.Ed.2d 729 (1959). Because Lucas failed to either make the requisite showing of materiality under Federal Rule of Criminal Procedure 16 or adequately challenge the government’s representation that it does not have any Brady material, we affirm.

I

On October 15, 2013, two Bay Area Rapid Transit (“BART”) police officers saw Lucas and two others evade the fare to ride a BART-train at the Powell .Street Station in San Francisco, California. One of the officers approached Lucas, who admitted he did not have a BART ticket. When the- officer turned to speak to the second officer, Lucas started to run. The officers chased after him and warned him that he would be tased if he did not stop. Lucas kept running. One of the officers then activated his taser, striking Lucas in the back. As Lucas fell to the ground, a Taurus PT738 ■ .380-caliber handgun fell out of his shorts. The pistol, the officers discovered, was loaded with four rounds of .380-caliber Hornady ammunition and two rounds of 7.65-millimeter ammunition. During the incidental search of Lucas following his arrest, officers found a second handgun—a stolen Colt firearm—loaded with one round of .380-caliber Hornady ammunition, five rounds of .32-caliber PAC ammunition, and one round of 7.65-millimeter ammunition. Subsequent investigation established that both firearms and the ammunition had previously traveled in interstate commerce.

California state authorities charged Lucas by information with being a felon in possession of a firearm in violation of California Penal Code section 29800. Lucas pleaded guilty to this charge on October 31, 2013. On December 9, 2013, he was given a tworyear suspended sentence, one year in county jail, and three years of probation. Because he had earned good-time credits and credit for time served, Lucas was set for release from state custody on April 15, 2014.

On April 3, 2014, a federal grand jury returned a one-count indictment against Lucas, charging him with being a felon in possession of a firearm in violation of 18 U.S.C.- § 922(g)(1). The federal charge was based on the same October 15, 2013 BART incident for which Lucas had been prosecuted and punished in state court. On April 14, 2014, the district court issued a writ of habeas corpus ad prosequendum directing state authorities to bring Lucas before the district court to face his federal criminal charge. On April 16, 2014, Lucas completed his state sentence and was taken directly from state custody to the district court for an initial appearance on his federal charge.

II

After Lucas was federally charged, his defense counsel asked the federal prosecutor whether she had obtained a waiver of the government’s Petite policy, which generally precludes a successive federal prosecution after a state prosecution based on the same conduct unless (1) the case involves a substantial federal interest; (2) the prior prosecution left that substantial federal interest unvindicated; (3) the defendant’s conduct constitutes a criminal offense and the government believes sufficient evidence exists to sustain a conviction; and (4) the subsequent prosecution has been approved by the appropriate Assistant Attorney General. See U.S. Attorneys’ Manual § 9-2.031 (1997) (“Petite policy”). The prosecutor replied that she had obtained a Petite waiver and that the substantial federal interest was twofold: the incident had taken place in a BART station, and Lucas had not received an adequate state sentence.

Lucas’s defense counsel later sent the prosecutor a discovery request, seeking information that he hoped would demonstrate that federal and state authorities had colluded in prosecuting Lucas in violation of the Double Jeopardy Clause of the Fifth Amendment. Citing Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), defense counsel specifically requested:

any and all information regarding the coordination of firearm investigations and prosecutions between the federal government here in the Northern District of California and state law enforcement authorities in the City and County of San Francisco, California, for the past 10 years and particularly in the instant case of Joshua Lucas.

The prosecutor refused to provide the information, asserting that neither Federal Rule of Criminal Procedure 16 nor Brady authorized counsel’s request. She further contended that Rule 16 expressly barred the disclosure of internal memoranda and reports between the various authorities.

Lucas then moved to compel the production of five categories of evidence:

• Any formal policy or memorandum of understanding between the U.S. Attorney’s Office and the San Francisco District Attorney’s Office, Sheriffs Department or Police Department regarding coordination in the investigation or prosecution of firearm cases, including the “Trigger Lock” program, that may have played a role in the successive charging of Mr. Lucas in this case....
• All letters, emails, memoranda or other existing documentation regarding any informal agreement, understanding or practice of coordination between the U.S; Attorney’s Office and the San Francisco District Attorney’s Office, Sheriff’s Department or Police Department in the investigation or prosecution- of firearm cases that may have played a role in the successive charging of Mr. Lucas in this case_
• Any state/federal cross-designation of law enforcement officials involved in firearms cases in San Francisco, that may have played a role in the successive charging of Mr. Lucas in this case_
• All letters, emails, memoranda or other existing documentation showing the point at which federal authorities became aware of the state prosecution against Mr. Lucas and what communications occurred between federal and state authorities, when they occurred. .and who initiated them_
• Any record of the claimed Petite waiver in Mr, Lucas’s case, including when it was obtained.

A

The district court referred the motion to United States Magistrate Judge Laurel Beeler, whp denied it after a hearing. In her written order, Judge Beeler concluded that Lucas had failed to make a preliminary showing of inter-sovereign collusion to obtain discovery under Federal Rule of Criminal Procedure 16, as required by United States v. Zone, 403 F.3d 1101 (9th Cir. 2005). Judge Beeler also found that the first three categories of evidence Lucas sought would establish only cooperation and could not establish collusion. She further rejected Lucas’s argument that he was entitled to the requested evidence under Brady and noted in her written order that the government had represented that no Brady material existed. Lucas timely objected to the magistrate judge’s ruling.

B

■District Judge Edward Chen then held a hearing on Lucas’s objections. At the hearing, Lucas’s counsel acknowledged that he had to make “some kind of threshold showing” to obtain the requested discovery. He contended, however, that he had made the required, showing. His proffer included a 2005 news- article on federal “intervention” into state firearm prosecutions, which described San Francisco’s initiative to lower gun violence by referring convicted felons who were caught with guns to the U.S. Attorney’s Office for prosecution under federal “Trigger Lock” laws that provided for extended sentences. See Jaxon Van Derbeken, ‘Trigger Lock’ Law Helps Cut Gang-Related Killings in Half, SFGate (July 21, 2005, 4:00 AM) (“Trigger Lock”), http://www.sfgate.com/bayarea/ article/SAN-FRANGISCO-Trigger-Lock-law-helps-cut-2621421.php.

Lucas also presented an affidavit attesting to the unique circumstances of his case and highlighting the fact that he was taken from state custody directly to federal court upon completing his state sentence. The prosecutor represented at the hearing that no state district attorney or law enforcement officer had been cross-designated in this matter. This representation was responsive to Lucas’s request for information about whether officers involved in the federal and state prosecutions were cross-designated. The prosecutor reported at the hearing that the case agent in Lucas’s federal case was an FBI agent.

Judge Chen overruled Lucas’s objections at the hearing and later in a written order, concluding that Lucas had failed to make a preliminary showing of inter-sovereign collusion under Rule 16 as required under Zone. The district court rejected Lucas’s claim that he was entitled to discovery under Brady, finding that Lucas had not shown a “substantial basis for claiming materiality exists” to justify his discovery requests under Brady. The court also found that Lucas was not entitled to an » camera review of the government’s files. The district court relied upon the government’s representation that iio Brady material regarding inter-sovereign' collusion existed and the government’s promise that such evidence would be produced if it were discovered.

To perfect the discovery issue for appeal, Lucas filed a motion to dismiss the indictment under the Double Jeopardy Clause. In his motion, Lucas conceded that he could not meet his burden to obtain relief without the requested discovery that the district court ostensibly denied him. The district court denied Lucas’s motion to dismiss.

On December 17, 2014, Lucas was convicted of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1) following a stipulated-testimony bench trial that preserved Lucas’s right to appeal the district court’s discovery ruling. On March 4, 2015, he was sentenced to twenty-two months’ imprisonment and three years’ supervised release. Lucas filed a timely appeal of his judgment and sentence. On January 26, 2016, Lucas was released from federal custody. See Fed. Bureau of Prisons, Inmate Locator, https://www.bop.gov/inmateloc/ (results for “Joshua Lucas” or BOP Register Number 19687-111) (last visited Oct. 19, 2016); see also United States v. Basher, 629 F.3d 1161, 1165 & n.2 (9th Cir. 2011) (taking judicial notice of publicly-available information from the BOP Inmate Locator).

Ill

We have jurisdiction to review the order denying Lucas’s discovery requests under Í8 U.S.C. § 1291 because a final judgment has issued. See United States v. Doe, 705 F.3d 1134, 1149-50 (9th Cir. 2013). We review alleged Brady violations de novo. Id. Lucas, however, does not present a standard Brady• claim, which would require him to show that he was prejudiced by the government’s willful or inadvertent suppression of favorable evidence. Id. at 1152; see also Strickler v. Greene, 527 U.S. 263, 281, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999) (“[Sjtrictly speaking, there is never a real ‘Brady violation’ unless the nondisclosure was so serious that there is a reasonable probability that the suppressed evidence would have produced a different verdict.”). Here, Lucas cannot point to any existing favorable evidence to support his speculation. Instead, he asserts that he is entitled to more information to prove his suspicions under Brady or, in the alternative, under Federal Rule of Criminal Procedure 16. Lucas requests, however, that we remand to the district court to conduct further review to confirm that the government has discharged its Brady obligations.

Lucas’s appeal thus presents questions about a ruling on discovery, which we review for an abuse of discretion. United States v. Alvarez, 358 F.3d 1194, 1210 (9th Cir. 2004) (“We review discovery questions, including alleged Brady and Jencks Act rulings, for abuse of-discretion.”); see also United States v. Michaels, 796 F.2d 1112, 1115 (9th Cir. 1986) (reviewing denial of request for discovery under Brady for abuse of discretion). “To find ah abuse of discretion, we must ‘have a definite and firm conviction that the district court committed a clear error of judgment.’” Doe, 705 F.3d at 1150 (citation omitted). We cannot say this standard is met on the record before us.

IV

The Double Jeopardy Clause provides that no person shall be “subject for the same offence to be twice put in jeopardy of life and limb.” U.S. Const, amend. V. This clause does not prohibit successive prosecutions by separate sovereigns—such as the federal government and the State of California—arising out of the same acts:

“Every citizen of the United States is also a citizen of a State or territory. He may be said to owe allegiance to two sovereigns, and may be liable to punishment for an infraction of the laws of either. The same act may be an offence or transgression of the laws of both.”

Bartkus v. Illinois, 359 U.S. 121, 131, 79 S.Ct. 676, 3 L.Ed.2d 684 (1959) (quoting Moore v. Illinois, 55 U.S. 13, 20, 14 How. 13, 14 L.Ed. 306 (1852)). There is, however, a narrow exception to this dual-sovereign doctrine.

In Bartkus, the Supreme Court warned that the Double Jeopardy Clause might proscribe' consecutive federal and state prosecutions when a later state prosecution is “a sham and a cover for a federal prosecution, and thereby in essential' fact another federal prosecution.” Id. at 124, 79 S.Ct. 676. We have adopted the Bartkus exception and found that, while cooperation between prosecuting sovereigns does not implicate .the Double Jeopardy Clause, “collusion between federal and state authorities could bar the second prosecution.” United States v. Bernhardt, 831 F.2d 181, 182 (9th Cir. 1987); see also Zone, 403 F.3d at 1104.

In short: Cooperation is constitutional; collusion is not. Impermissible collusion may be found when the prosecutors of one sovereign “so thoroughly dominate[] or manipulate[ ]” the prosecutorial machinery of the other sovereign “that the latter retains little or no volition in its own proceedings.” Zone, 403 F.3d at 1105 (alterations in original) (quoting United States v. Guzman, 85 F.3d 823, 827 (1st Cir. 1996)), Such collusion may occur when a second prosecution “is not pursued to vindicate the separate interests of the second sovereign, but is merely pursued as a sham on behalf of the sovereign first to prosecute.” United States v. Guy, 903 F.2d 1240, 1242 (9th Cir. 1990).

We have recognized that, under Bart-kus, “it is extremely difficult and highly unusual” for a defendant to show that a prosecution by one government was a “tool, a sham or a cover for the other government.” United States v. Figueroa-Soto, 938 F.2d 1015, 1019 (9th Cir. 1991). Indeed, in Figueroa-Soto, we found that the Bartkus exception did not apply when: (1) the state prosecuted the defendant at the request of federal authorities; (2) federal agents assisted with the state prosecution, sitting at the prosecutor’s table at trial and testifying as witnesses; (3) the federal authorities provided evidence against the defendant for use during the state trial; (4) the federal sentencing hearing of a key witness was delayed until after the witness testified in the state trial against the defendant; (5) a federal forfeiture proceeding was delayed so the state prosecution would not be adversely affected; (6) federal agents contacted the state’s witnesses before trial; and (7) the state prosecutor was cross-designated as a special assistant U.S. attorney to prosecute the defendant in federal court and was paid by the state for his role in the federal prosecution. Id. at 1018-19. We noted that Bartkus permits “very close coordination in the prosecutions, in the employment of agents of one sovereign to help the other sovereign in its prosecution, and in the timing of the court proceedings so that the maximum assistance is mutually rendered by the sovereigns.” Id. at 1020.

Defendants in other cases have faced similar difficulty in seeking remand for an evidentiary hearing on their double jeopardy defense. In United States v. Koon, for example, a defendant’s “conelusory allegations” of collusion were insufficient to obtain an evidentiary hearing despite evidence that:

(1) the federal investigation began when the crime occurred and remained active during the state investigation and prosecution; (2) federal and state authorities cooperated with each other, and the state delivered evidence and investigative reports to federal authorities after the state prosecution; (3) witnesses who testified in the federal trial were interviewed by the federal authorities soon after the incident; and (4) [a] videotape [recording of testimony in the state trial] was admitted into evidence in the federal trial.

34 F.3d 1416, 1439 (9th Cir. 1994), rev’d in part on other grounds, 618 U.S. 81, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996). We held that such evidence “at most show[s] cooperation between federal and state authorities” and does not justify remand for an evidentiary hearing. Id.

A

Lucas contends that, to the extent it applies, Federal Rule of Criminal Procedure 16 authorizes his requests for discovery regarding the degree to which federal and state authorities cooperated in his case. Subject to the exemptions described in Rule 16(a)(2), Rule 16(a)(1)(E) requires that, upon a defendant’s request, the government must “disclose any documents or other objects within its possession, custody or control” that are “material to preparing the defense.” United States v. Hernandez-Meza, 720 F.3d 760, 768 (9th Cir. 2013) (quoting Fed. R. Crim. P. 16(a)(1)(E)). “[T]o obtain discovery under Rule 16, a defendant must make a prima facie showing of materiality.” Zone, 403 F.3d at 1107 (quoting United States v. Mandel, 914 F.2d 1215, 1219 (9th Cir. 1990)). This “low threshold” is satisfied if the information requested would have “helped” Lucas prepare a defense. Hernandez-Meza, 720 F.3d at 768. “Neither a general description of the information sought nor conelusory allegations of materiality suffice; a defendant must present facts which would tend to show that the [g]overnment is in possession of information helpful to the defense.” Mandel, 914 F.2d at 1219. Lucas’s assertion that he met this threshold for materiality under Rule 16 is foreclosed by Zone.

In Zone, we applied Rule 16 to.facts nearly identical to those in Lucas’s case and found that the district court did not abuse its discretion in denying Zone’s, request for discovery to develop his double jeopardy defense. 403 F.3d at 1107. Similar to the facts here, after Zone pleaded guilty to a firearm charge in state court, he was indicted in federal court for being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). Id. at 1103. Like Lucas, Zone’s federal charge was based on the same conduct as his state charge. Id. Suspecting that federal prosecutors had sought to secure a guilty plea in state court to use in the federal case, Zone asked for discovery to develop a double jeopardy defense. Id. at 1103-06. Specifically, Zone requested records from the weekly meetings of a federally-funded task force comprising the U.S. Attorney’s Office, federal agents, county deputy district attorneys, and local police department investigators. Id. at 1103. The task force was formed to address gun violence by “pro-mot[ing] cooperation and information-sharing” and “discuss[ing] and coordinat[ing] participants’ activities” for gun-related offenses. Id.

The district court denied Zone’s discovery request and subsequently denied Zone’s motion to dismiss after concluding that he had not established a prima facie double jeopardy claim. See id. at 1105. In support of his motion to dismiss, Zone .had proffered newspaper articles about the task force. Id. We held that Zone’s proffered articles contained “general information that at most suggested] that federal and state prosecutors collaborate[d] as equal, independent partners in the task force’s weekly strategy sessions.” Id. We further held that Zone failed to “make a prima facie showing of materiality” under Rule 16 because he did not make “a preliminary showing of ‘inter-sovereign collusion,’ as opposed to mere ‘inter-sovereign cooperation.’” Id. at 1107 (quoting Man-del, 914 F.2d at 1219). We therefore upheld the district court’s denial of Zone’s discovery request and motion to dismiss and denied Zone’s “request that we remand for an evidentiary hearing and further discovery.” Id.

Here, the district court properly found that Zone is indistinguishable from Lucas’s case and that Lucas failed to make the threshold showing of materiality. Lucas’s arguments to the contrary are unpersuasive. The Trigger Lock article that Lucas presented to the district court, like the news articles in Zone, merely describes the cooperation between federal and state authorities in attempting to reduce gun violence in San Francisco. Lucas’s defense counsel even acknowledged to the district court that the cooperation described in the article “seems benign and seems just cooperative.” See Trigger Lock, swpra at 9 (“The number of killings in San Francisco attributed to gangs ... has dropped by more than 50 percent so far this year from 2004, thanks in part to intervention by federal law enforcement ... to identify the city’s most violent predators and subject them to federal prosecution ....”).

In addition to the Trigger Lock article, Lucas’s proffer included: (1) an affidavit from his defense counsel stating that it was exceedingly rare for a firearm case to be charged federally after an individual had completed a state court sentence for the same conduct; (2) an argument that the “weak” federal interest in this case— the incident’s occurrence at a mass transit station—demonstrated that the federal prosecution sought to vindicate state, rather than federal, interests in violation of the Petite policy; and (3) a claim that the federal prosecution’s “perfect timing” with the end of Lucas’s state sentence evidenced that federal and state authorities engaged in more than mere cooperation.

We hold that the district court did not abuse its discretion in finding that Lucas’s proffer failed to meet the threshold for materiality under Rule 16. As the district court noted, the prosecutor represented that an informal poll of federal prosecutors in her office revealed that, in the previous five years, five federal cases like Lucas’s were prosecuted after the defendant had completed a state sentence for the same conduct. Lucas contends that this informal poll actually supports his argument that his prosecution was unusual. But an unusual prosecution is not enough to meet the threshold for materiality under Rule 16.

Lucas’s claim of collusion based on the “weakness” of the federal interest in this case and the inadequacy of his state sentence is similarly unavailing. As Lucas acknowledges, the Petite policy does not confer substantive rights upon him. See United States v. Snell, 592 F.2d 1083, 1087 (9th Cir. 1979). Thus, while he may quarrel with the strength of the federal interest asserted in this case, our review does not extend to revisiting the wisdom of the internal prosecutorial decisions made by the Department of Justice. It is perfectly sensible that federal authorities sought to prosecute Lucas after his comparatively light state sentence for possessing a firearm as a convicted felon. Their decision to do so is not emblematic of any undue influence by state authorities.

The allegedly “perfect timing”' of the federal prosecution also fails to establish the threshold materiality showing under Rule 16. Lueás argues on appeal that, because of California’s complicated scheme for awarding good-time credits, release dates for state inmates are difficult to predict. According to Lucas, the fact that he was transferred from state custody directly to federal court is “suspicious[ ]” and “indicates an unusually close relationship between the state and federal authorities.” We find nothing unusual about the federal prosecutor’s petition for a writ of habeas corpus ad prosequendum and the district court’s issuance of that writ just prior to Lucas’s release from state custody. Additionally, at the time, the federal prosecutor believed that Lucas had three months remaining on his state sentence. Her mistaken belief suggests that federal and state authorities were not operating as one collusive machine, but permissively communicating—:and even miscommunicat-ing —about Lucas’s release date.

We conclude on this record that, under Zone and the high evidentiary standard in double jeopardy claims, the district court did not' abuse its discretion in ruling that Lucas failed to make a sufficient showing of materiality under Rule 16.

B

Seeking to avoid Rule 16’s materiality requirement, Lucas argues that he is not required to make a preliminary showing of materiality because he brought his discovery requests under Brady. However, Lucas has yet to identify any Brady material that supports his claim.

1

Under Brady, the government must disclose information favorable to the accused that “is material either to guilt or to punishment.” 373 U.S. at 87, 83 S.Ct. 1194. Evidence is material for Brady purposes if a “reasonable probability” exists that the result of a proceeding would have been different had the government disclosed the information to the defense. United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985). A reasonable probability is one that is “sufficient to undermine confidence in the outcome” of either the defendant’s guilty plea or trial. Id.; see Smith v. Baldwin, 510 F.3d 1127, 1148 (9th Cir. 2007) (en banc) (citing Sanches v. United States, 50 F.3d 1448, 1454 (9th Cir. 1995)). “The government has a duty to disclose Brady .material even in the absence of a request by the defense.” United States v. Blanco, 392 F.3d 382, 387 (9th Cir. 2004).

Here, the government affirmatively represented that it did not possess evidence of inter-sovereign collusion. Lucas contends that this “conclusory representation” did not discharge-the government’s obligations under Brady because the government must either produce information responsive to his discovery requests or submit whatever it possesses to the district court for an in camera review to confirm that no such evidence exists. Lucas’s argument, however, is flawed..

It is the government, not the defendant or the trial court, that decides prospectively what information, if any, is material and-must be disclosed under Brady. While we have encouraged the government to submit close questions regarding materiality to the court for in camera review, the government is not required to do so. See Milke v. Ryan, 711 F.3d 998, 1016 (9th Cir. 2013). And, as the Supreme Court has explained, Brady does not permit a defendant to sift through information held by the government to determine materiality:

A defendant’s right to discover exculpatory evidence does not include the unsupervised authority to search through the [government’s] files. Although the eye of an advocate may be helpful to a defendant in ferreting out information, this Court has never held ... that a defendant alone may make the determination as to the materiality of the information. Settled practice is to the contrary. In the typical case where a defendant makes only a general request for exculpatory material under Brady, it is the State that decides which information must be disclosed.... Defense counsel has no constitutional right to conduct his own search of the State’s files to argue relevance.

Pennsylvania v. Ritchie, 480 U.S. 39, 59-60, 107 S.Ct. 989, 94 L.Ed.2d 40 (1987) (footnote and citations omitted); see also Weatherford v. Bursey, 429 U.S. 545, 559, 97 S.Ct. 837, 51 L.Ed.2d 30 (1977) (“There is no general constitutional right to discovery in a criminal case, and Brady did not create one.”).

“Unless defense counsel becomes aware that other exculpatory evidence was withheld and brings it to the court’s attention, the prosecutor’s decision on disclosure is final.” Ritchie, 480 U.S. at 60, 107 S.Ct. 989 (footnote omitted). To challenge the government’s representation that it lacks Brady information, Lucas must either make a showing of materiality under Rule 16 or otherwise demonstrate that the government improperly withheld favorable evidence. See, e.g., id. at 58 n.15, 107 S.Ct. 989 (“[Defendant], of course, may not require the trial court to search through [a statutorily-protected child abuse] file without first establishing a basis for his claim that it contains material evidence.”). He has not done so here.

For example, in United States v. Michaels, we upheld a denial of the defendant’s motion to compel certain interview notes under Brady where the defendant “offer[ed] no reason for believing that the notes contained] significant material that [was] not contained in the typed [interview] summaries” the government had already provided. 796 F.2d at 1116. We also observed that “Brady does not establish a ‘duty to provide defense counsel with unlimited discovery of everything known by the prosecutor’ ” or permit the defendant to “compel production of the notes so that he could search through them for anything useful.” Id. (citation omitted).

Similarly, in United States v. Mincoff, we affirmed the district court’s denial of a Brady motion where the defendant had “not identified any potentially exculpatory evidence that was not disclosed to him.” 574 F.3d 1186, 1199-2000 (9th Cir. 2009). We held that “ ‘mere speculation about materials in the government’s files’ [does] not require the district court to make those materials available, or mandate an in camera inspection.” Id. at 1200 (quoting Michaels, 796 F.2d at 1116).

By contrast, in United States v. Blanco, we remanded to the district court to “order full disclosure by the government of any and all potential Brady ... material” related to a particular trial witness where the defendant showed that the government had suppressed Brady material concerning that witness. 392 F.3d at 392-95. Likewise, in United States v. Doe, we remanded to the district court to determine whether the government violated its Brady obligations in responding to the defendant’s discovery requests after the defendant had made the required showing of materiality under Rule 16. 705 F.3d at 1150-53.

2

Relying on United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976), Lucas argues that the government must disclose all relevant material in response to a defendant’s specific request for information because Brady’s materiality standard is more lenient in this circumstance than it is when the defense makes no request or only a general request. Lucas recognizes, however, that although Agurs “suggested that the standard [of materiality] might be more lenient [where the defense makes a specific request and the prosecutor fails to disclose responsive evidence] than ... [where] the defense makes no request or only a general request,” Bagley later set forth a single test for materiality that applies regardless whether there was a specific request, a general request, or no request for Brady material. Bagley, 473 U.S. at 681-82, 105 S.Ct. 3375 (modifying Agurs, 427 U.S. at 106, 96 S.Ct. 2392). Under Bagley’s standard, “evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” Id. at 682, 105 S.Ct. 3375. The government’s obligation under Brady thus does not change simply because Lucas made a “specific” request for information.

Lucas further attempts to redefine the government’s obligations under Brady by citing dicta discussing the difficulty that prosecutors face before trial in determining what information will be material after trial. In United States v. Olsen, we stated in a footnote that a “prosecutor’s speculative prediction about the likely materiality of favorable evidence ... should not limit the disclosure of such evidence, because it is just too difficult to analyze before trial whether particular evidence ultimately will prove to be ‘material’ after trial.” 704 F.3d 1172, 1183 n.3 (9th Cir. 2013). Relying on this observation, Lucas asserts that the government here should not be permitted to speculate about whether the district court may find certain evidence sufficient to support a double jeopardy claim. Instead, Lucas argues that the government must disclose all of the evidence in its possession responsive to Lucas’s discovery requests.

While Olsen encouraged prosecutors to err on the side of disclosure, it did not alter the fundamental construct of Brady, which makes the prosecutor the initial arbiter of materiality and disclosure. See Rit-chie, 480 U.S. at 60, 107 S.Ct. 989. Thus, unless Lucas can make a showing of materiality or demonstrate that the government has withheld favorable evidence, he must rely on “the prosecutor’s decision [regarding] disclosure.” Id. Lucas has not made the requisite showing under Brady to contest the prosecutor’s assertion that the government lacks any evidence of inter-sovereign collusion.

Nor has Lucas shown that he is entitled to an evidentiary hearing regarding the degree of cooperation between federal and state authorities. In Zone, we denied the defendant’s “request for remand and an evidentiary hearing because [the defendant had] not presented any evidence of undue coercion or collusion by federal authorities.” 403 F.3d at 1106 (citing Koon, 34 F.3d at 1439). Moreover, in Koon, we held that the defendants’ proffered evidence did not warrant remand for an evidentiary hearing where the defendants provided more evidence of cooperation between federal and state authorities than Lucas has here. Compare Koon, 34 F.3d at 1439, and supra at 804, with supra at 805-06, Accordingly, the evidence Lucas has submitted does not warrant remand for an evi-dentiary hearing.

y

For nearly forty years, the Supreme Court has reminded us that “[t]here is no general constitutional right to discovery in a criminal case, and Brady did not create one.” Weatherford, 429 U.S. at 559, 97 S.Ct. 837. To obtain discovery under Rule 16, Lucas must make the requisite showing of materiality. And to challenge the government’s representation that it does not have Brady evidence, Lucas must do more than speculate that Brady material exists. Because Lucas’s proffer is insufficient to compel the government to provide the information he seeks, the district court did not err in denying his request for that information.

AFFIRMED.

      . The government describes this ammunition as "hollow point,” a type of ammunition that expands inside the target’s tissue to "increase its effective diameter” and "greatly increase[]” the "wounding performance” of a bullet. Tom Warlow, Firearms, the Law, and Forensic Ballistics 212 (3d ed. 2012), https:// books.google.com/books/about/Firearms_the_ Law_and_Forensic_Ballistics.html?id=lj HNBQAAQBAJ (book sample).

      . Although the federal prosecutor at Lucas’s initial appearance represented that Lucas had three months remaining on his state sentence, she later confirmed and agreed with defense counsel that Lucas had served his entire state sentence.

      . The Petite policy is a set of internal guidelines promulgated by the Department of Justice “for the exercise of discretion by appropriate officers of the Department of Justice in determining whether to bring a federal prosecution based on substantially the same act(s) or transactions involved in a prior state or federal proceeding. See Rinaldi v. United States, 434 U.S. 22, 27 [98 S.Ct. 81, 54 L.Ed.2d 207] (1977); Petite v. United States, 361 U.S. 529 [80 S.Ct. 450, 4 L.Ed.2d 490] (1960).” U.S. Attorneys’ Manual § 9-2.031.

      . "Cross-designation” refers to the practice of swearing in a state law enforcement officer as a special deputy United States marshal to assist in joint state/federal task forces. It also includes administering a similar oath to federal officers assisting in state prosecutions.

      . Prior to issuing her ruling, the magistrate judge reviewed the following discovery produced by the government: (1) a record of proceedings in state court; (2) the BART police reports, which identify the transit agency police officers involved in the investigation; (3) witness statements; (4) the indictment in the federal case; (5) Lucas’s criminal history; and (6) the firearm analysis showing that the firearms recovered from Lucas had an interstate commerce nexus.

      . "Although we are dealing here with [Lucas’s] discovery request rather than his motion to dismiss, the two are clearly related: The purpose of the discovery request is to [find evidence to] provide a basis for the motion to dismiss. [Lucas] seeks information that, he hopes, will establish his right, by virtue of the Double Jeopardy Clause, not to be tried.” Zone, 403 F.3d at 1106.

      . We reject the government’s argument that Lucas waived any reliance on Rule 16 in his discovery efforts. The district court applied Zone and Rule 16 to Lucas's discovery requests. Lucas contends on appeal that, if Rule 16 does apply, he has met the required showing of materiality. Therefore, the Rule 16 argument is properly before us.

      . Neither the appellate exceipts of record nor Lucas’s motions before the district court include the Trigger Lock article upon which Lucas relies. See Fed. R. App. P. 10(a) (stating that the record on appeal includes original papers and exhibits filed in the district court, the transcript of proceedings, and a certified copy of the district court’s docket entries). At the hearing on Lucas’s motion to compel, however, the district- judge asked to see a copy of the Trigger Lock article, noting that it had not been attached to Lucas’s motion to compel. Lucas’s defense counsel then gave á copy of the article to the court and discussed its contents with the court. Both the district court's order denying the motion to compel and the government's brief on appeal provide the website address for the article. The Trigger Lock article is thus part of the record and we may consider it here. See Townsend v. Columbia Operations, 667 F.2d 844, 849 (9th Cir. 1982) (holding that documents were properly part of the appellate record when "they were submitted at the request of the district judge, were physically in the courtroom at the argument, were referred to and relied on by both sides in that argument, and were the basis of the opinion dictated by the court at the end of the argument").

      . Lucas correctly observes that we have yet to decide whether Brady applies to evidence that is relevant to a double jeopardy claim. We need not decide that question here because, even assuming that Brady applies to such evidence, Lucas still has not met the requisite showing to challenge the government’s contention that it does not possess evidence of inter-sovereign collusion.


author: N.R. SMITH, Circuit Judge:

text:
    IN RE Gary Lawrence OZENNE, Debtor, Gary Lawrence Ozenne, Petitioner-Appellant, v. Chase Manhattan Bank; Ocwen Loan Servicing; Ocwen Federal Bank FSB, Respondents-Appellees.
    No. 11-60039
    United States Court of Appeals, Ninth Circuit.
    Submitted En Banc September 8, 2016  San Francisco, California
    Filed November 9, 2016

      Gary Lawrence Ozenne, Corona, California, pro se Petitioner-Appellant.
    Jeffrey S. Allison and Eric D. Houser, Houser & Allison, Irvine, California,' "for Respondents-Appellees.
    Thomas R. Phinney, President, Sacramento, California, as and for Amicus Curiae California Bankruptcy Forum.
    Pauletté Brown, President, American Bar Association, Chicago, Illinois; Ahmed R. Jinnah and Samuel R. Maizel, Dentons US LLP, Los Angeles, California; for Ami-cus Curiae American Bar Association.
    John A.E. Pottow, University of Michigan Law School, Ann Arbor, Michigan, for Amicus Curiae John A. E. Pottow.

      Before: SIDNEY R. THOMAS, Chief Judge, and ALEX KOZINSKI, SUSAN P. GRABER, M. MARGARET McKEOWN, RICHARD A. PAEZ, MARSHA S. BERZON, CONSUELO M. CALLAHAN, N. RANDY SMITH, PAUL J. WATFORD, JOHN B. OWENS and MICHELLE T. FRIEDLAND, Circuit Judges.

       The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R, App. P, 34(a)(2).

   OPINION

N.R. SMITH, Circuit Judge:

This matter comes before the en banc court on an appeal, filed by Gary Ozenne, from the Ninth Circuit Bankruptcy Appellate Panel (“BAP”). The BAP determined that it had jurisdiction to hear Ozenne’s petition for a writ of mandamus and then denied the petition. However, the BAP did not have jurisdiction to hear Ozenne’s petition. Mandamus was not available to Oz-enne because he filed the petition as a substitute for filing the timely appeal required by the Federal Rules of Bankruptcy Procedure. Ozenne’s failure to file a timely appeal jurisdictionally barred the BAP from considering the petition for writ of mandamus.

FACTUAL AND PROCEDURAL BACKGROUND

A.Ozenne’s Initial Bankruptcy Petition

The history of this litigation is lengthy. This case—Ozenne’s fifth chapter 13 bankruptcy—was filed on May 17, 2001, in the United States Bankruptcy Court for the Central District of California. At that time, Chase Manhattan Bank, Ocwen Loan Servicing, and Ocwen Federal Bank FSB (“the Financial Institutions”) held and/or serviced a mortgage on Ozenne’s home, and they were scheduled to foreclose on the mortgage on May 17, 2001. However, Ozenne filed for bankruptcy that same day in an attempt to stop the foreclosure. Oz-enne was unable to make his scheduled payments under this fifth chapter 13 plan. Thus, on a motion to dismiss filed by the trustee, the bankruptcy court dismissed the case in March 2002. Ozenne filed for chapter 13 bankruptcy at least two more times, and both cases were dismissed. The Financial Institutions finally successfully foreclosed on Ozenne’s mortgage on July 31, 2002.

B.Ozenne’s First Attempt to Reopen the Case

In February 2003, Ozenne filed a motion in the bankruptcy court to reopen this fifth bankruptcy. Ozenne alleged that his creditors sold his residence unlawfully in violation of an automatic stay. The bankruptcy court denied the motion on March 28, 2003. The United States District Court for the Central District of California affirmed on August 5, 2003. We affirmed on June 24, 2005, Ozenne v. Chase Manhattan Bank (In re Ozenne), 137 Fed.Appx. 62 (9th Cir. 2005) (unpublished), and the Supreme Court denied certiorari, Ozenne v. Chase Manhattan Bank, 546 U.S. 1178, 126 S.Ct. 1350, 164 L.Ed.2d 62 (2006).

C.Ozenne’s Second Attempt to Reopen the Case

In April 2007, Ozenne filed another motion in the bankruptcy court. This time he sought to set aside the bankruptcy court’s judgment under Federal Rule of Civil Procedure 60 and sought damages under 11 U.S.C. § 362. Section 362(k) permits a debtor to recover damages in the case of a violation of a bankruptcy stay. The bankruptcy court returned the motion to Oz-enne, stating that the case had been dismissed and that the court no longer had jurisdiction to consider the case.

Ozenne appealed to the district court, contesting the bankruptcy court’s determination that it lacked jurisdiction over the case. The district court affirmed on the ground that the Rule 60 motion was filed four years too late. Ozenne appealed the ruling to this court, and we affirmed on June 30, 2009. However, before we ruled on the appeal, Ozenne filed a petition for writ of mandamus here in February 2009. The petition asserted that Chase Manhattan Bank “unlawfully issued a trustees [sic] deed” for his property to a third party “in violation of the bankruptcy automatic stay” and sought “a hearing under 11 [U.S.C. § ] 362(k) ... to determine the damages caused by this violation of law.” We denied the petition, and the Supreme Court denied Ozenne’s petition for writ of certiorari. Ozenne v. Chase Manhattan Bank, 559 U.S. 943, 130 S.Ct. 1510, 176 L.Ed.2d 121 (2010).

D. Ozenne’s Third Attempt to Reopen the Case

On November 13, 2009, Ozenne filed another motion for sanctions with the bankruptcy court for violations of 11 U.S.C. § 362(a). On January 27, 2011, the bankruptcy court again denied the motion and returned it to Ozenne, reiterating that the case was closed and that the court lacked jurisdiction to hear the motion.

Ozenne never appealed this denial. Instead, on May 2, 2011, he filed a petition for writ of mandamus with the BAP, asking the BAP to order the bankruptcy court to hold a trial or hearing on the alleged § 362(a) violations. On May 20, 2011; without receiving a response from the Financial Institutions, the BAP determined that it had the authority to issue a writ of mandamus but denied the petition because Ozenne “ha[d] not met the burden to establish that a writ of mandamus should be issued.” Ozenne filed his notice of appeal to this court on June 20, 2011. That appeal is currently before us.

The Financial Institutions claim they received no notice of the petition, the BAP’s decision, or the appeal. When the Financial Institutions had not filed a response by October 24,2012, this court issued a notice, informing them that they had fourteen days to file an answering brief. Despite this notice, the Financial Institutions did not appear until August of 2015. After allowing the Financial Institutions to file a late brief, a • three-judge panel issued an opinion on March 25, 2016, vacating the BAP’s order. The majority held that the BAP lacked, jurisdiction under the All Writs Act, because the BAP, established by the circuit judicial council pursuant to 28 U.S.C. § 158(b)(1), was not “established by Act .of Congress.” Ozenne v. Chase Manhattan Bank (In re Ozenne), 818 F.3d 514, 515 (9th Cir. 2016) (quoting 28 U.S.C. § 1651(a)). Accordingly, the panel “remand[ed] the case with instructions' to dismiss the petition for lack of jurisdiction.” Id. at 522. Judge Bybee “concurr[ed] in the judgment but vigorously disagreed] with” the majority’s decision to raise constitutional issues when the appeal could have been decided on alternate grounds, and also disagreed with the majority’s characterization of the BAP. Id. (Bybee, J., dissenting).

Thereafter, we asked the parties to submit briefs as to whether the case should be heard en banc. A majority of non-recused active judges ultimately voted to rehear the case en bane.

DISCUSSION

We have jurisdiction to hear Ozenne’s appeal from the BAP. See 28 U.S.C. § 158(d)(1). We address whether the BAP had jurisdiction to hear Ozenne’s mandamus petition.

Generally, a federal court must first determine whether it has jurisdiction before reaching the merits of a case. Sinochem Int’l Co. v. Malaysia Int’l Shipping Corp., 549 U.S. 422, 430-31, 127 S.Ct. 1184, 167 L.Ed.2d 15 (2007). On appeal, the appellant has the burden of establishing that the appellate court has jurisdiction to hear the case. Melendres v. Maricopa Cty., 815 F.3d 645, 649 (9th Cir. 2016). The deadline to file an appeal is “mandatory and jurisdictional.” Browder v. Dir., Dep’t of Corr., 434 U.S. 257, 264, 98 S.Ct. 556, 54 L.Ed.2d 521 (1978) (internal quotation marks and citation omitted); see also Melendres, 815 F.3d at 649 (“[W]e are not at liberty to overlook a defect with the notice of appeal no matter how compelling an appellant’s argument may be.”). This rule also applies to federal bankruptcy appeals. Anderson v. Mouradick (In re Mouradick), 13 F.3d 326, 327-28 (9th Cir. 1994) (“[T]he untimely filing of a notice of appeal deprives the appellate court of jurisdiction to review the bankruptcy court’s order.”).

A party to a bankruptcy proceeding has fourteen days to appeal a bankruptcy judge’s order. Fed. R. Bankr. P. 8002(a)(1). Ozenne’s November 2009 motion asked the bankruptcy court “to conduct a hearing or a trial with a jury of peers under 11 [U.S.C. § ] 362(k), to legally inspect these violations of bankruptcy law, and determine damages.” Ozenne had the right to appeal the bankruptcy court’s January 27, 2011 decision that it lacked jurisdiction to hear this motion either to the district court or to the BAP. See Fed. R, Bankr. P, 8003; 28 U.S.C. § 158(a). Ozenne did not appeal the decision within the mandatory and jurisdictional time limit. Therefore, the BAP lacked jurisdiction to consider any appeal of this decision.

Instead of filing a timely appeal, Ozenne filed a mandamus petition with the BAP on May 2, 2011. Ozenne’s petition sought “ah order from [the BAP] ordering a trial or hearing for the violations of law under 11 [U.S.C. § ] 362.” Thus, Ozenne’s mandamus petition sought exactly what a proper appeal of the bankruptcy court’s January 2011 order would have sought: relief from the bankruptcy court’s determination that it did not have jurisdiction to hear the case. The mandamus petition sought the precise relief that would have been available in an appeal had Ozenne filed a timely notice of appeal. We must then determine whether such a writ of mandamus can substitute for a timely appeal.

We acknowledge that “a federal court has leeway ‘to choose among threshold grounds for denying audience to a case on the merits.’” Sinochem, 549 U.S. at 431, 127 S.Ct. 1184 (quoting Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 585, 119 S.Ct. 1563, 143 L.Ed.2d 760 (1999)). However, as a “fundamental rule of judicial restraint,” we “must consider nonconstitu-tional grounds for decision” before “reaching any constitutional questions.” Jean v. Nelson, 472 U.S. 846, 854, 105 S.Ct. 2992, 86 L.Ed.2d 664 (1985) (citations and internal, quotation marks omitted). Accordingly, we must first ¡address whether the BAP had jurisdiction to hear Ozenne’s appeal as a matter of procedure and only reach the constitutional question of whether the BAP had jurisdiction to hear Ozenne’s appeal under the. All. Writs Act if we determine there is no procedural bar.

Procedurally, a writ of mandamus cannot substitute for a timely appeal. Calderon v. U.S. Dist. Court for Cent. Dist. of Cal., 137 F.3d 1420, 1421 (9th Cir. 1998) (dismissing a mandamus petition for lack of jurisdiction where the petitioner had filed it after the deadline to file ■ a notice of appeal, and explaining that “[b]e-cause [the petitioner] could have obtained review of the district court’s order through an ordinary appeal, mandamus is not available”). Thus, where a party has the option of filing “a contemporaneous ordinary appeal,” mandamus relief “is not available.” Herrington v. Sonoma Cty., 706 F.2d 938, 940 (9th Cir. 1983) (citing Moses H. Cone Mem’l Hosp. v. Mercury Constr. Co., 460 U.S. 1, 8 n.6, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983)). In short, an appellate court does not have “mandamus jurisdiction over a matter subject to direct appeal.” Diamond v. U.S. Dist. Court for Cent. Dist. of Cal., 661 F.2d 1198, 1198 (9th. Cir. 1981) (order) (citation omitted) (refusing to construe a mandamus petition as a notice of appeal when the petitioner filed the mandamus petition after the deadline for filing a notice of appeal had passed); see also Roche v. Evaporated Milk Ass’n, 319 U.S. 21, 26, 63 S.Ct. 938, 87 L.Ed. 1185 (1943) (“[Mandamus] may not appropriately be used merely- as a substitute for the appeal procedure prescribed by the statute.”); Ex parte Rowland, 104 U.S. 604, 617, 26 L.Ed. 861 (1881) (“The general principle which governs proceedings by mandamus is, that whatever can be done without the employment of that extraordinary remedy, may not be done with it. It only lies when there is practically no other remedy.” (emphasis in original)). To allow a party to seek a writ .of mandamus in an appellate court in order to obtain relief from an appealable district court decision—after the time to .appeal that decision has passed—would be a plain evasion of rules that are, as noted above, mandatory and jurisdictional.

Finally, a writ of mandamus could not issue. The writ of mandamus is “one of ‘the most potent weapons in the judicial arsenal.’ ” Cheney v. U.S. Dist. Court for D.C., 542 U.S. 367, 380, 124 S.Ct. 2576, 159 L.Ed.2d 459 (2004) (quoting Will v. United States, 389 U.S. 90, 107, 88 S.Ct. 269, 19 L.Ed.2d 305 (1967)). Accordingly, three conditions must be present before a writ of mandamus may issue. Id. “First, ‘the party seeking issuance of the writ [must] have no other adequate means to attain the relief he desires.’ ” Id. (alteration in original) (quoting Kerr v. U.S. Dist. Court for N. Dist. of Cal., 426 U.S. 394, 403, 96 S.Ct. 2119, 48 L.Ed.2d 725 (1976)). Second, the petitioner’s right to issuance of the writ must be “clear and indisputable.” Id. at 381, 124 S.Ct. 2576 (quoting Kerr, 426 U.S. at 403, 96 S.Ct. 2119). “Third, even if the first two prerequisites have been met, the issuing court, in the. exercise of its discretion, must be satisfied that the writ is appropriate under the circumstances.” Id. (citation omitted). The Ninth Circuit has also articulated the following five factors, laid out in Bauman v. U.S. District Court, 557 F.2d 650 (9th Cir. 1977), in determining whether mandamus relief is appropriate:

(1) The party seeking the writ has no other adequate means, such as a direct appeal, to attain the relief he or she desires. (2) The petitioner will be damaged or prejudiced in a way not correctable on appeal. (This guideline is closely related to the first.) (3) The district court’s order is clearly erroneous as a matter of law. (4) The district court’s order is an oft-repeated error, or manifests a persistent disregard of the federal rules. (5) The district court’s order raises new and important problems, or issues of law of first impression.

United States v. U.S. Dist. Court for Dist. of Nev. (In re United States), 791 F.3d 945, 955 & n.7 (9th Cir. 2015) (quoting Bauman, 557 F.2d at 654-55).

Although Ozenne fails to satisfy any of the conditions for mandamus relief, we need only discuss the first condition in determining whether a writ could issue: The party seeking issuance of the writ must have no other adequate means to attain the desired relief. The first condition is “designed to ensure that the writ will not be used as a substitute for the regular appeals process.” Cheney, 542 U.S. at 380-81, 124 S.Ct. 2576 (citing Ex parte Fahey, 332 U.S. 258, 260, 67 S.Ct. 1558, 91 L.Ed. 2041 (1947)). Because appellate review of the bankruptcy court’s order dismissing the motion for sanctions was available to Ozenne, a writ of mandamus granting him relief from that order could not issue.

CONCLUSION

Ozenne could have appealed the bankruptcy court’s January 2011 decision. But he did not. Instead Ozenne waited for the notice of appeal deadline to pass and then filed a mandamus petition seeking precisely the same relief he would have sought in an appeal. In effect, then, despite its label, the petition was an untimely appeal. The BAP would not have had jurisdiction to consider the untimely appeal. See In re Mouradick, 13 F.3d at 327. As a writ of mandamus cannot substitute for a timely appeal, the BAP also did not have jurisdiction to consider the appeal labeled as a mandamus petition. See Calderon, 137 F.3d at 1422; Diamond, 661 F.2d at 1198. Ozenne will not be permitted to use mandamus to circumvent the jurisdictional requirement that he file a timely appeal. The BAP should have dismissed the petition for that reason.

We vacate the BAP’s May 20, 2011, Order and remand the case with instruction to dismiss the petition for lack of jurisdiction, Parties shall bear their own costs for the appeal.

VACATED and REMANDED.

      . These documents do not appear on the bankruptcy court docket but were submitted in the parties' excerpts of record.

      . This denial also does not appear on the bankruptcy court's docket but was submitted in the excerpts of record.

      . Ozenne v. Chase Manhattan Bank (In re Ozenne), 828 F.3d 1012 (9th Cir. 2016) (order granting rehearing en banc).

      . Ozenne has stated that he did not become aware of the bankruptcy court’s order until February 14, 2011, a few days after the fourteen-day deadline to appeal had passed. However, Ozenne still had time to file a motion for extension of time to appeal. Fed. R. Bankr. P. 8002(d)(1)(B) (permitting a party to, file a motion to extend the time to appeal, so long as the motion is filed within twenty-one days of the fourteen-day deadline and the party shows excusable neglect). Ozenne failed to file such a motion; rather, he filed nothing until his petition for writ of mandamus.

      . Because of the ground on which we resolve this appeal, we need not and do not decide whether the BAP had consensual jurisdiction to hear Ozenne's mandamus petition, whether the BAP required consensual jurisdiction to hear it, or whether the BAP had authority to entertain petitions under the All Writs Act.