IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT DEFENDANTS-APPELLEES/CROSS-APPELLANTS’ PETITION FOR

3 Case: 23-35097, 04/22/2024, ID: 12879120, DktEntry: 66, Page 5 of 28 But in the thicket of this court’s jumbled doctrine, the panel majority found a path to the conclusion that the case is not moot―despite taking no issue with the district court’s findings of fact. [...] In the alternative, pursuant to Ninth Circuit Rule 36-4, the panel should issue a published opinion that announces the new legal rule that necessarily underlies its disposition of this appeal: that a case is not moot when a plaintiff challenges a standing policy, even if he will not be injured by the policy in the future, as long as the policy could later be subject to change. [...] That rule is the lynchpin of the panel majority’s decision; it is the nub of disagreement with the dissent; and if it controls this case, the court should say so in a published decision. [...] The Panel Majority’s Decision Holds The Case Is Not Moot Despite No Likelihood of Recurrence, In Contravention Of Fikre In an appeal from a decision of this court, the Supreme Court this term clarified the voluntary cessation doctrine by reducing it to a simple formulation: “[A] defendant’s voluntary cessation of a challenged practice will moot a case only if the defendant can show that the practi. [...] The court deemed it relevant that the FBI adopted no policy change and that it had not “acquiesce[d] to the righteousness of Fikre’s contentions” by “repudiat[ing] the decision” to list Fikre in the first place.