                  FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


IN RE RODRIGO ZERMENO-             No. 17-71867
GOMEZ; GUSTAVO
HERNANDEZ-GUTIERREZ;                  D.C. Nos.
MARTIN RIOS-ARIAS,              2:17-mj-09200-ESW-1
                                2:17-cr-00803-DLR-1
                                2:15-cr-00280-SMM-1
RODRIGO ZERMENO-GOMEZ;
GUSTAVO HERNANDEZ-
GUTIERREZ; MARTIN RIOS-               ORDER
ARIAS,
               Petitioners,

             v.

UNITED STATES DISTRICT
COURT FOR THE DISTRICT OF
ARIZONA, PHOENIX,
               Respondent,

UNITED STATES OF AMERICA,
      Real Party in Interest.



            Petition for Writ of Mandamus
     Edward C. Voss, Magistrate Judge, Presiding
      Douglas L. Rayes, District Judge, Presiding
    Stephen M. McNamee, District Judge, Presiding
2                    IN RE ZERMENO-GOMEZ

        Submitted to Motions Panel August 15, 2017
                 San Francisco, California

                     Filed August 25, 2017

      Before: Alfred T. Goodwin, Alex Kozinski, and
             Marsha S. Berzon, Circuit Judges.

                               Order


                          SUMMARY *


                           Mandamus

    The panel granted a petition for a writ of mandamus
ordering the judges within the District of Arizona to comply
with this court’s decision in United States v. Sanchez-
Gomez, 859 F.3d 649 (9th Cir. 2017) (en banc), which held
that before placing a defendant in shackles, the district court
must “make an individualized decision that a compelling
government purpose would be served and that shackles are
the least restrictive means for maintaining security and
order.”

   The petitioners are three defendants whose requests to be
unshackled were denied based on the stayed mandate in
Sanchez-Gomez.




    *
      This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
                  IN RE ZERMENO-GOMEZ                      3

    The panel held that the petitioners satisfied the
requirements for mandamus relief set forth in Bauman v.
U.S. Dist. Ct., 557 F.2d 650 (9th Cir. 1977). The panel
explained that whether a published decision of this court is
binding on lower courts within the circuit, notwithstanding a
stay of the mandate, is plainly an issue of major importance
to the administration of the district courts. The panel held
that petitioners have demonstrated that the judges within the
District of Arizona who found that Sanchez-Gomez was not
binding on them committed clear error, as this court has
unequivocally stated that a published decision constitutes
binding authority and must be followed unless and until it is
overruled by a body competent to do so. The panel
explained that the remaining Bauman factors also weigh in
favor of granting relief.


                        COUNSEL

Daniel L. Kaplan, Assistant Federal Public Defender; Jon M.
Sands, Federal Public Defender; Office of the Federal Public
Defender, Phoenix, Arizona; for Petitioners.

Krissa M. Lanham and Dominic W. Lanza, Assistant United
States Attorneys; Elizabeth A. Strange, Acting United States
Attorney; United States Attorney’s Office, Phoenix,
Arizona; for Real Party in Interest.
4                 IN RE ZERMENO-GOMEZ

                          ORDER

    On May 31, 2017, this court held in United States v.
Sanchez-Gomez, 859 F.3d 649, 661 (9th Cir. 2017) (en banc)
that before placing a defendant in shackles, the district court
must “make an individualized decision that a compelling
government purpose would be served and that shackles are
the least restrictive means for maintaining security and
order.” About two weeks later, this court granted the
government’s motion to stay the mandate, so the government
could seek full en banc review or file a petition for a writ of
certiorari.

    Citing the stay of the mandate, several judges within the
District of Arizona found that Sanchez-Gomez was not
binding on them and accordingly denied defendants’
requests to be unshackled. A court-established committee
tasked with providing a recommendation on how to comply
with Sanchez-Gomez likewise concluded that no action was
required until the mandate issued.

    The petitioners in this case are three defendants whose
requests to be unshackled were denied based on the stayed
mandate in Sanchez-Gomez. On June 26, 2017, petitioners
filed this petition for a writ of mandamus asking that we
order the District Court for the District of Arizona to comply
with our decision in Sanchez-Gomez. That same date,
petitioners also filed an emergency motion for injunctive
relief, which the government opposed.

   We granted petitioners’ emergency motion on July 14,
2017, stating, “Pending further order of the court, respondent
United States District Court for the District of Arizona is
ordered to comply with our decision in United States v.
Sanchez-Gomez, 859 F.3d 649 (9th Cir. 2017) (en banc).”
Three weeks later, the Chief Judge for the District of Arizona
                      IN RE ZERMENO-GOMEZ                               5

issued a memorandum establishing a district-wide procedure
for determining, prior to a defendant’s appearance in court,
whether and how the defendant should be restrained. The
memorandum instructs judges that a defendant should not be
restrained absent a showing that restraint is necessary.

   We now hold that petitioners have satisfied the
requirements for mandamus relief. We grant their petition
and order the judges within the District of Arizona to comply
with our decision in Sanchez-Gomez.

    “The Supreme Court and all courts established by Act of
Congress may issue all writs necessary or appropriate in aid
of their respective jurisdictions and agreeable to the usages
and principles of law.” 28 U.S.C. § 1651(a). We have
authority to issue a supervisory or advisory writ in “cases
involving questions of law of major importance to the
administration of the district courts.” In re Cement Antitrust
Litig. (MDL No. 296), 688 F.2d 1297, 1307 (9th Cir. 1982).

     The issue of whether a published decision of this court is
binding on lower courts within the circuit, notwithstanding a
stay of the mandate, is plainly an issue of “major importance
to the administration of the district courts.” Id. The exercise
of our authority is therefore appropriate in this matter. See
United States v. U.S. Dist. Ct., 334 U.S. 258, 264 (1948) (“It
is, indeed, a high function of mandamus to keep a lower
tribunal from interposing unauthorized obstructions to
enforcement of a judgment of a higher court.”). 1



    1
      The parties do not contest, and so we assume for purposes of this
decision only, that the separate issuance of a mandate is appropriate in a
case such as this one. But see Ellis v. U.S. Dist. Ct., 360 F.3d 1022 (9th
Cir. 2004) (en banc).
6                 IN RE ZERMENO-GOMEZ

    When considering whether to grant mandamus relief,
this court considers the five factors enumerated in Bauman
v. U.S. Dist. Ct., 557 F.2d 650 (9th Cir. 1977):

       (1) whether the petitioner has no other means,
       such as a direct appeal, to obtain the desired
       relief; (2) whether the petitioner will be
       damaged or prejudiced in any way not
       correctable on appeal; (3) whether the district
       court’s order is clearly erroneous as a matter
       of law; (4) whether the district court’s order
       is an oft repeated error or manifests a
       persistent disregard of the federal rules; and
       (5) whether the district court’s order raises
       new and important problems or issues of first
       impression.

Perry v. Schwarzenegger, 591 F.3d 1147, 1156 (9th Cir.
2010) (citing Bauman, 557 F.2d at 654–55). “While all the
factors need not be present to issue the writ,” the absence of
clear error is fatal to a request for mandamus relief. In re
U.S., 791 F.3d 945, 955 (9th Cir. 2015).

    We begin our analysis by examining whether there is
clear error, given the significance of the inquiry. The clear
error standard is deferential, “and is not met unless the
reviewing court is left with a definite and firm conviction
that a mistake has been committed.” Id. Notwithstanding
this high threshold, petitioners have demonstrated that the
judges within the District of Arizona who found that
Sanchez-Gomez was not binding on them committed clear
error.

   Under our “law of the circuit doctrine,” a published
decision of this court constitutes binding authority “which
‘must be followed unless and until overruled by a body
                   IN RE ZERMENO-GOMEZ                        7

competent to do so.’” Gonzalez v. Arizona, 677 F.3d 383,
389 n.4 (9th Cir. 2012) (en banc) (quoting Hart v.
Massanari, 266 F.3d 1155, 1170 (9th Cir. 2001)). In
recognition of this principle, we have held that a stay of the
mandate does not “destroy the finality of an appellate court’s
judgment,” and that a published decision is “final for such
purposes as stare decisis, and full faith and credit, unless it
is withdrawn by the court.” Wedbush, Noble, Cooke, Inc. v.
SEC, 714 F.2d 923, 924 (9th Cir. 1983); see also United
States v. Gomez-Lopez, 62 F.3d 304, 306 (9th Cir. 1995)
(“The government first urges us to ignore Armstrong since
we have stayed the mandate to allow filing of a petition for
certiorari; this we will not do, as Armstrong is the law of this
circuit”); cf. Yong v. INS, 208 F.3d 1116, 1119 n.2 (9th Cir.
2000) (“[O]nce a federal circuit court issues a decision, the
district courts within that circuit are bound to follow it and
have no authority to await a ruling by the Supreme Court
before applying the circuit court’s decision as binding
authority”).

    Despite this clear authority, the government alleges, and
several judges within the District of Arizona found, that
there are contrary cases within this circuit suggesting that a
decision is not binding on lower courts until the mandate has
issued. They are mistaken, as the cited cases have nothing
to do with when a holding becomes law of the circuit.

    For example, in United States v. Ruiz, 935 F.2d 1033 (9th
Cir. 1991), a criminal defendant argued that the district court
was required to sentence him in accordance with a decision
that was in effect at the time of his plea agreement, but had
been withdrawn by the time of sentencing. Id. at 1034. On
appeal, this court rejected the defendant’s argument,
explaining that the decision “was not yet fixed as settled
Ninth Circuit law.” Id. at 1037. To the extent the defendant
8                 IN RE ZERMENO-GOMEZ

based his willingness to enter into the plea agreement on a
decision that was subject to withdrawal, we noted that the
defendant took a “gamble, but one that did not pay off as he
had hoped.” Id.

    In Carver v. Lehman, 558 F.3d 869 (9th Cir. 2009), this
court issued an amended opinion that affirmed a district
court order denying relief in a civil rights lawsuit. While the
original opinion had the effect of reversing the district court
order by a two-to-one vote, one of the judges in the majority
died before the mandate issued. His replacement on the
panel joined the previously dissenting judge to form a new
majority. The new majority noted, “[u]ntil the mandate has
issued, opinions can be, and regularly are, amended or
withdrawn, by the merits panel at the request of the parties
pursuant to a petition for panel rehearing, in response to an
internal memorandum from another member of the court . . .
or sua sponte by the panel itself.” Id. at 878–79.
Accordingly, “the prior majority’s holding in this case may
or may not have survived until the mandate issued, but it was
certainly not yet enshrined as a binding construction of the
Constitution” at the time the original panel member died. Id.
at 879.

    These cases stand for the unremarkable proposition that,
until the mandate has issued, a published decision by a panel
of this court is subject to modification, withdrawal, or
reversal. See Nat. Res. Def. Council, Inc. v. Cty. of Los
Angeles, 725 F.3d 1194, 1203 (9th Cir. 2013) (“[W]e have
explained that a ‘court of appeals may modify or revoke its
judgment at any time prior to issuance of the mandate, sua
sponte or by motion of the parties.’”) (quoting United States
v. Foumai, 910 F.2d 617, 620 (9th Cir. 1990)); see also Fed.
R. App. P. 41(c) advisory committee’s note to 1998
amendment (“A court of appeals’ judgment or order is not
                     IN RE ZERMENO-GOMEZ                              9

final until issuance of the mandate; at that time the parties’
obligations become fixed.”). They have no bearing on the
distinct issue presented here: whether a published decision
that has not been modified or withdrawn is binding on lower
courts within the circuit.      On that point, we have
unequivocally stated that a published decision constitutes
binding authority and must be followed unless and until it is
overruled by a body competent to do so. Gonzalez, 677 F.3d
at 389 n.4. 2

    Not only does it constitute clear error for a district court
to disregard a published opinion of this court, but the
remaining Bauman factors also weigh in favor of granting
mandamus relief. See Bauman, 557 F.2d 654–55. Because
this case concerns a practice among several judges
throughout the District of Arizona that is unrelated to
defendants’ individual criminal cases, “[t]here is no danger
that the writ will supplant the normal appeals process.”
Sanchez-Gomez, 859 F.3d at 656. Next, this case involves
an oft-repeated error and a persistent disregard of this court’s
authority. Without intervention, several judges within the
District of Arizona may erroneously continue to believe
themselves free to ignore a controlling decision of this court,
so long as the mandate has not issued. Finally, this case
raises new and important problems, namely, a fundamental
misunderstanding of when a decision of this court becomes
binding on lower courts.

    Noting that the Chief Judge has issued a memorandum
instituting a district-wide procedure intended to meet the
requirements of Sanchez-Gomez, the government asks that

    2
       Such a “body” may, of course, include a panel of this court. See,
e.g., Ruiz, 935 F.2d at 1037; Carter, 558 F.3d at 879; Nat. Res. Def.
Council, 725 F.3d at 1203.
10                IN RE ZERMENO-GOMEZ

we deny this petition or dismiss it as moot. However, the
memorandum was issued after we granted petitioners’
emergency motion for injunctive relief and explicitly
ordered the district court to comply with our decision in
Sanchez-Gomez pending our decision on the petition for writ
of mandamus. If we decline to grant this petition and
terminate the injunction, the Chief Judge could decide to
withdraw the memorandum. This case therefore presents a
live controversy that warrants the exercise of our supervisory
authority. See Sanchez-Gomez, 859 F.3d at 659.

   The judges within the District of Arizona are ordered to
comply with this court’s decision in Sanchez-Gomez.
Accordingly, the petition for a writ of mandamus is granted.

     GRANTED.
