                   FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


MARVIN ROBERTS; EUGENE                    No. 18-35938
VENT; KEVIN PEASE; GEORGE
FRESE,                                   D.C. Nos.
        Plaintiffs-Appellants,      4:17-cv-00034-HRH
                                    4:17-cv-00035-HRH
              v.

CITY OF FAIRBANKS; JAMES                    ORDER
GEIER; CLIFFORD AARON RING;
CHRIS NOLAN; DAVE
KENDRICK,
        Defendants-Appellees.

                    Filed June 26, 2020

     Before: Richard C. Tallman, Sandra S. Ikuta,
         and N. Randy Smith, Circuit Judges.

                        Order;
              Dissent by Judge VanDyke
2               ROBERTS V. CITY OF FAIRBANKS

                          SUMMARY *


                           Civil Rights

    The panel denied a petition for panel rehearing and
denied a petition for rehearing en banc on behalf of the court
in an action in which the panel reversed the district court’s
order dismissing claims brought under 42 U.S.C. § 1983 and
§ 1985 on the ground that the claims were barred by Heck v.
Humphrey, 512 U.S. 477 (1994).

    In the previously published opinion, the panel held that
where all convictions underlying § 1983 claims are vacated
and no outstanding criminal judgments remain, Heck does
not bar plaintiffs from seeking relief under § 1983.

    Dissenting from the denial of rehearing en banc, Judge
VanDyke, joined by Judge Ikuta, stated that in the face of
controlling Supreme Court precedent, the split-panel
majority in this case created a novel exception to reach a
result inconsistent with Heck. Judge VanDyke wrote that
now, in every situation where a criminal defendant’s
conviction is ministerially vacated without any judicial
determination that the conviction was actually “invalid,” this
new exception will cast into doubt the Heck bar’s
applicability. Judge VanDyke stated that this inconsistency
should have been considered en banc before cementing it as
binding precedent in this circuit.




    *
      This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
             ROBERTS V. CITY OF FAIRBANKS              3

                      COUNSEL

Anna Benvenutti Hoffmann (argued), Nick Brustin, Richard
Sawyer, and Mary McCarthy, Neufeld Scheck & Brustin
LLP, New York, New York; Mike Kramer and Reilly
Cosgrove, Kramer and Associates, Fairbanks, Alaska; for
Plaintiffs-Appellants Marvin Roberts and Eugene Vent.

David Whedbee, Jeffrey Taren, Tiffany Cartwright, and Sam
Kramer, MacDonald Hoague & Bayless, Seattle,
Washington; Thomas R. Wickware, Fairbanks, Alaska; for
Plaintiffs-Appellants Kevin Pease and George Frese.

Matthew Singer (argued) and Peter A. Scully, Holland &
Knight LLP, Anchorage, Alaska, for Defendant-Appellee
City of Fairbanks.

Joseph W. Evans (argued), Law Offices of Joseph W. Evans,
Bremerton, Washington, for Defendants-Appellees James
Geier, Clifford Aaron Ring, Chris Nolan, and Dave
Kendrick.

Samuel Harbourt, Orrick Herrington & Sutcliffe LLP, San
Francisco, California; Kelsi Brown Corkran, Orrick
Herrington & Sutcliffe LLP, Washington, D.C.; for Amici
Curiae Scholars.

Steven S. Hansen, CSG Inc., Fairbanks, Alaska, for Amicus
Curiae Tanana Chiefs Conference.

David B. Owens, Lillian Hahn, Benjamin Harris, and Emily
Sullivan, The Exoneration Project, Chicago, Illinois, for
Amici Curiae The Innocence Network, American Civil
Liberties Union, and ACLU of Alaska Foundation.
4              ROBERTS V. CITY OF FAIRBANKS

                            ORDER

   Judge Ikuta voted to grant the petition for rehearing en
banc. Judges Tallman and N.R. Smith recommended
denying the petition for rehearing en banc.

    The full court has been advised of the petition for
rehearing en banc. A judge of the court requested a vote on
en banc rehearing. The matter failed to receive a majority of
votes of non-recused active judges in favor of en banc
consideration. Fed. R. App. P. 35.

    The petition for rehearing en banc is DENIED.



VANDYKE, Circuit Judge, joined by IKUTA, Circuit
Judge, dissenting from the denial of rehearing en banc:

    Decades ago, the Supreme Court ruled that a § 1983
plaintiff is generally barred from bringing a claim to
“recover damages for [an] allegedly unconstitutional
conviction or imprisonment, or for other harm . . . [that]
would render a conviction or sentence invalid.” Heck v.
Humphrey, 512 U.S. 477, 486–87 (1994). The Court
recognized just four discrete exceptions to what has become
known as the “Heck bar” on such § 1983 claims—where the
plaintiff can prove “that the conviction or sentence has been
[1] reversed on direct appeal, [2] expunged by executive
order, [3] declared invalid by a state tribunal authorized to
make such determination, or [4] called into question by a
federal court’s issuance of a writ of habeas corpus . . . .” Id.
Drawing from the common law, the Court said that “[j]ust as
a cause of action for malicious prosecution does not accrue
until the criminal proceedings have terminated in the
plaintiff’s favor, so also a § 1983 . . . action for damages . . .
              ROBERTS V. CITY OF FAIRBANKS                   5

does not accrue until the conviction or sentence has been
invalidated.” Id. at 489–90.

    The split panel decision in this case created an additional
exception to the Heck bar that, as far as I can tell, is
unprecedented—not only in our circuit, but across the
federal courts. It did so by reinterpreting Heck’s favorable
termination requirement into something less than even a
neutral termination requirement. In doing so, it expressly
refused to apply the “hoary principle[s]” adopted from the
malicious prosecution context that were the express basis for
the majority’s decision in Heck. Id. at 486. Now, in every
situation where a criminal defendant’s conviction is
ministerially vacated without any judicial determination that
the conviction was actually “invalid,” this new exception
casts into doubt the Heck bar’s applicability. This includes
in the many states in our circuit that have statutes that
automatically vacate some convictions once the defendant
has served his sentence. Heck is a quarter-century old, and
its better-established exceptions already bedevil federal
courts across the country, including this one. The fact that
no other court has conceived or applied the panel majority’s
new exception in over 25 years of applying Heck should be
reason enough for this Court to rehear this case en banc
before cracking this lid on Pandora’s box.

                              I.

    The four § 1983 plaintiffs in this case were tried and
convicted of murder in 1997. Roberts v. City of Fairbanks,
947 F.3d 1191, 1193–94 (9th Cir. 2020). Their prison
sentences ranged from 30 to 77 years. Id. at 1194. Several
years after their convictions, a man named William Holmes
“confessed to his involvement in the murder and named
Jason Wallace and three other men as the actual perpetrators
of the crime.” Id. Based in part on this confession, the
6              ROBERTS V. CITY OF FAIRBANKS

“[p]laintiffs filed post-conviction relief (‘PCR’) petitions in
Alaska Superior Court in September 2013.” Id. The state
court determined that the PCR petitions alleged “a prima
facie case of actual innocence,” and as a result, the plaintiffs
engaged in discovery for two years. Id. At the close of
discovery, the parties participated in “a five-week
evidentiary hearing from October through November of
2015.” Id. At the conclusion of the hearing, the judge told
the parties that he would reach a decision in six to eight
months. Id. at 1195.

    After the hearing but before a decision, the prosecutors
extended an offer to plaintiffs in which they would “consent
to vacating the convictions and dismissing the charges, but
only if all four plaintiffs agreed to release the State of Alaska
and the City of Fairbanks (and their employees) from any
liability related to the convictions.” Id. Rather than await
the state court’s ruling on their PCR petitions, the plaintiffs
executed settlement agreements with the State of Alaska and
the City of Fairbanks and filed the settlement agreements in
the Alaska Superior Court. Id. The parties “jointly
stipulated that the court would be asked to vacate
[p]laintiffs’ convictions.” Id. The settlement agreement
confirmed that “[t]he parties have not reached agreement as
to [plaintiffs’] actual guilt or innocence.” Id. Instead, the
plaintiffs specifically “stipulate[d] and agree[d] that the
original jury verdicts and judgments of conviction were
properly and validly entered based on proof beyond a
reasonable doubt.” Id. The parties further “stipulate[d] and
agree[d] that there [was] sufficient new evidence of material
facts that a new trial could be ordered,” and “that this [state]
Court may immediately enter Orders vacating the Judgments
of Conviction . . . and awarding each [plaintiff] the relief of
a new trial for each of the charges for which [plaintiffs] were
convicted.” Id.
                ROBERTS V. CITY OF FAIRBANKS                          7

     The state court held a settlement hearing on December
17, 2015 where all parties participated. Id. At the hearing,
the court stated that its duty was to “ministerially sign the
orders necessary to [e]ffect the decision of the attorney
general,” and after concluding that the parties’ settlement
was “procedurally proper,” the court acknowledged that it
“had no authority to . . . review or to criticize” the decision
made by the state attorney general to enter into this
agreement. Id. At the end of the hearing, the state “court
vacated [p]laintiffs’ convictions, the prosecutors dismissed
all indictments, and [plaintiffs] were released from prison.” 1
Id. Plaintiffs also dismissed their pending PCR petitions. Id.
at 1206 (Ikuta, J., dissenting). The four plaintiffs have not
subsequently been prosecuted, “and no new trial was ever
ordered following the 2015 hearing.” Id. at 1195.

    Notwithstanding the terms of the settlement agreements
and the parties’ stipulations, the plaintiffs on December 7,
2017 filed a § 1983 cause of action—including a § 1983
deprivation of liberty claim and a § 1983 malicious
prosecution claim—against the City of Fairbanks and four of
its officers. Id. at 1207 (Ikuta, J., dissenting). The
defendants moved to dismiss, and the district court granted
the motion and denied plaintiffs’ request to amend their
complaint. Id. at 1196. Applying Heck v. Humphrey, the
district court held “that vacatur of convictions pursuant to a
settlement agreement was insufficient to render the
convictions invalid” because “the parties’ stipulate[ed] that
‘the original jury verdicts and judgments of conviction were
properly and validly entered based on proof beyond a
reasonable doubt.’” Id. (citation omitted). The district court
pointed out that “the Superior Court . . . vacate[d] plaintiffs’

     1
       One of the plaintiffs was already on supervised parole but agreed
to this arrangement along with the other three plaintiffs.
8             ROBERTS V. CITY OF FAIRBANKS

convictions pursuant to the settlement agreements and the
stipulation. The Superior Court did not declare their
convictions invalid.” Id. Plaintiffs timely appealed. Id.

    The primary question answered by the panel on appeal
was “whether § 1983 plaintiffs may recover damages if the
convictions underlying their claims were vacated pursuant to
a settlement agreement.” Id. at 1193. The majority
concluded that when “all convictions underlying § 1983
claims are vacated and no outstanding criminal judgments
remain, Heck does not bar plaintiffs from seeking relief
under § 1983.” Id. In reaching that conclusion, the majority
acknowledged that the plaintiffs’ vacatur-by-settlement in
this case would not satisfy the common law’s favorable-
termination requirement, but opined that “Heck’s favorable-
termination requirement is distinct from the favorable-
termination element of [the common law] malicious-
prosecution claim.” Id. at 1201.

                             II.

    In Heck v. Humphrey, the Supreme Court addressed
when someone who has been convicted of a crime may seek
§ 1983 damages for an alleged unconstitutional prosecution
or imprisonment related to that conviction. The Court held
that a § 1983 complaint in that context “must be dismissed
unless the plaintiff can demonstrate that the conviction or
sentence has already been invalidated.” Heck v. Humphrey,
512 U.S. 477, 487 (1994). The Court provided four specific
ways that a plaintiff could show the conviction had been “so
invalidated”: “that the conviction or sentence has been
[1] reversed on direct appeal, [2] expunged by executive
order, [3] declared invalid by a state tribunal authorized to
make such determination, or [4] called into question by a
federal court’s issuance of a writ of habeas corpus.” Id.
at 486–87. “A claim for damages . . . relat[ing] to a
              ROBERTS V. CITY OF FAIRBANKS                  9

conviction or sentence that has not been so invalidated is not
cognizable under § 1983.” Id. at 487. “[A]s a cause of
action for malicious prosecution does not accrue until the
criminal proceedings have terminated in the plaintiff’s favor,
so also a § 1983 cause of action for damages attributable to
an unconstitutional conviction or sentence does not accrue
until the conviction or sentence has been invalidated.” Id.
at 489–90 (emphasis added; citations omitted). The Court
made clear that this “favorable termination” requirement,
borrowed from the common law’s malicious prosecution
tort, was not merely an exhaustion requirement, but was an
actual element of a § 1983 claim challenging wrongful
prosecution or imprisonment.

    Justice Souter inked a concurrence in Heck wherein he
took issue with the Court’s heavy reliance on the common-
law tort of malicious prosecution. Id. at 491–503 (Souter, J.,
concurring). He had no problem with looking to the
malicious prosecution tort as a “starting point” in
determining when a § 1983 claim can be brought by
someone convicted of a crime, but disapproved that the Heck
majority had incorporated the tort’s “favorable termination”
requirement as an actual element of a § 1983 claim in this
context. Id. at 492–98. Justice Souter argued that the four
discrete “events” the majority said could demonstrate a prior
conviction had been “invalidated” were not actually
consistent with the historical understanding of a “favorable
termination” in the malicious prosecution context. Id.
at 496. According to Justice Souter, even the Heck
exceptions might not, without more, qualify as a “favorable
termination” as the tort was historically understood and
applied. Id. Moreover, Justice Souter expressed alarm that
if a § 1983 plaintiff is required to show his conviction was
“invalidated” in a manner similar to the “favorable
termination” requirement at common law—that is, if the
10            ROBERTS V. CITY OF FAIRBANKS

“invalidated” requirement is applied as an affirmative
element of a § 1983 claim—then it would continue to bar a
§ 1983 suit even after the convicted person was no longer in
custody and could no longer bring a habeas suit. Id. at 499–
502.

     The Heck majority did not leave Justice Souter’s
criticisms unanswered. First, the Court simply disagreed
with Justice Souter’s claim that the common law “favorable
termination” requirement was dissimilar from the four
specific “invalidating” events it listed. Id. at 484 n.4. But
even if Justice Souter was right that not all of the four Heck
exceptions historically would have permitted a plaintiff to
bring a malicious prosecution claim, the majority said that
would only mean the four exceptions should have been
narrower. Id. (arguing that “even if Justice Souter were
correct . . . [t]hat would, if anything, strengthen our belief
that § 1983, which borrowed general tort principles, was not
meant to permit such collateral attack”).

    Second, the Court squarely rejected Justice Souter’s
argument that the Heck bar should only apply to someone
who is still incarcerated or can otherwise still bring a habeas
action to challenge his conviction. “We think the principle
barring collateral attacks—a longstanding and deeply rooted
feature of both the common law and our own
jurisprudence—is not rendered inapplicable by the fortuity
that a convicted criminal is no longer incarcerated.” Id. at
490 n.10.

    Since Heck, the Supreme Court has continued to apply
Heck’s favorable termination requirement as borrowed from
the common law malicious prosecution context. A decade
after Heck, the Court restated its Heck holding: “we held [in
Heck] that where success in a prisoner’s § 1983 damages
action would implicitly question the validity of conviction or
              ROBERTS V. CITY OF FAIRBANKS                   11

duration of sentence, the litigant must first achieve favorable
termination of his available state, or federal habeas,
opportunities to challenge the underlying conviction or
sentence.” Muhammad v. Close, 540 U.S. 749, 751 (2004)
(per curiam). Then, only a few years ago, the Supreme Court
explained that “[i]n defining the contours and prerequisites
of a § 1983 claim, including its rule of accrual, courts are to
look first to the common law of torts.” Manuel v. City of
Joliet, 137 S. Ct. 911, 914 (2017). The Court cited Heck as
an example, and noted “[s]ometimes, that review of common
law will lead a court to adopt wholesale the rules that would
apply in a suit involving the most analogous tort.” Id.
at 920–21 (emphasis added). And just last year, the Supreme
Court again reviewed a § 1983 statute of limitations issue to
resolve whether a claim accrues upon acquittal or when
fabricated evidence is introduced. McDonough v. Smith,
139 S. Ct. 2149, 2153 (2019). The Court concluded that
“[t]he statute of limitations for a fabricated-evidence claim
. . . does not begin to run until the criminal proceedings
against the defendant . . . have terminated in his favor.” Id.
at 2154–55. This result “follows both from the rule for the
most natural common-law analogy (the tort of malicious
prosecution) and from the practical considerations that have
previously led this Court to defer accrual of claims that
would otherwise constitute an untenable collateral attack on
a criminal judgment.” Id. at 2155. “Only once the criminal
proceeding has ended in the defendant’s favor, or a resulting
conviction has been invalidated within the meaning of Heck
. . . will the statute of limitations begin to run.” Id. at 2158
(internal citation omitted).

                              III.

   The panel majority in this case divorced Heck’s
favorable termination requirement from its common law
12            ROBERTS V. CITY OF FAIRBANKS

roots. Taking inspiration from passing comments in
Rosales-Martinez v. Palmer, 753 F.3d 890 (9th Cir. 2014)
and Taylor v. County of Pima, 913 F.3d 930 (9th Cir. 2019),
the panel majority concluded that a ministerial vacatur
pursuant to a settlement agreement is a “favorable
termination” within the meaning of Heck, and therefore the
Heck bar doesn’t apply. Roberts, 947 F.3d at 1198–1203.
But “neither [Rosales-Martinez nor Taylor] holds that a
vacatur by settlement qualifies as a favorable termination
under Heck.” Id. at 1211 (Ikuta, J., dissenting).

    Rosales-Martinez sought damages under § 1983 for an
allegedly unlawful conviction and imprisonment resulting
from defendants’ constitutional error. 753 F.3d at 891. He
alleged that after the constitutional error came to light while
he was imprisoned, “the Nevada state courts recognized the
constitutional error, granted his petition for a writ of habeas
corpus, and ordered him freed.” Id. He filed a § 1983
lawsuit nearly two years after the alleged order. See id. The
district court dismissed his lawsuit on the ground that the
two-year statute of limitations began to run when he first
learned of the constitutional errors, and thus had already
expired when he filed his claim. Id. at 891. On appeal, this
Court reversed, concluding that “[p]ursuant to Heck . . .
[plaintiff’s] cause of action did not accrue until his
conviction was held invalid.” Id.

    Rosales-Martinez is somewhat confusing because the
parties on appeal put forth contradictory views of what had
actually happened to Rosales-Martinez’s conviction in the
state courts. Rosales-Martinez alleged that the state court
granted his habeas petition and then ordered him released.
Id. at 894. But relying on information submitted on appeal
“at the eleventh hour,” the defendants argued that the state
court actually vacated the plaintiff’s conviction and released
              ROBERTS V. CITY OF FAIRBANKS                  13

him as the result of a stipulated agreement: that plaintiff’s
conviction would be “vacated based on . . . cumulative
errors” and the prosecution would recommend a sentence of
time already served in exchange for Rosales-Martinez
pleading guilty to one of the original crimes and dismissing
his habeas petition. Id. at 894–95. It is not entirely clear
therefore whose version of events the court in Rosales-
Martinez was referencing when it concluded that “Heck
therefore teaches that Rosales-Martinez’s claims did not
accrue until the Nevada court vacated those convictions on
December 2, 2008.” Id. at 896 (emphasis added).

    The panel majority in this case highlights the above
statement from Rosales-Martinez to assert that the court
“implicitly held that vacating a conviction pursuant to a
settlement agreement serves to invalidate the conviction
under Heck.” Roberts, 947 F.3d at 1200. But for several
reasons, that significantly over-characterizes the Rosales-
Martinez Court’s consideration of vacatur as a means of
invalidation.

    First, it isn’t clear which version of the parties’ stories
the Rosales-Martinez Court had in mind when it made this
statement. If it was the plaintiff’s version, then the case
didn’t involve vacatur-by-agreement at all because applying
this version of the facts would result in a straightforward and
uncontroversial application of Heck’s third type of favorable
termination: “declared invalid by a state tribunal . . . .”
Heck, 512 U.S. at 486. There is some indication that this
was the case, since the Court in Rosales-Martinez didn’t
analyze the impact of the “more complicated picture of
events than the simple allegation of [plaintiff’s] complaint”
until a later section of the opinion (Section V). See 753 F.3d
at 897–99. Ultimately, because of the different facts
presented by the government on appeal, the Court ordered
14            ROBERTS V. CITY OF FAIRBANKS

that the “viability and scope of Rosales-Martinez’s § 1983
claim, in relation to Heck v. Humphrey and pursuant to
Jackson should be evaluated by the district judge on
remand.” Id. at 899. Thus, “our decision in Rosales-
Martinez to reverse the district court was not based on the
finding that Heck permits a § 1983 action whenever a
conviction has been vacated pursuant to a settlement
agreement.”      Roberts, 947 F.3d at 1211 (Ikuta, J.,
dissenting).

    Even if the court in Rosales-Martinez was referencing
vacatur-by-agreement, that still would not support the rule
announced in Roberts. As just noted, the Rosales-Martinez
Court didn’t ultimately decide the Heck bar was inapplicable
in that case; it remanded it to the district court to analyze in
the first instance. 753 F.3d at 899. Because of the factual
confusion, it is not terribly surprising that Rosales-Martinez
never analyzed whether vacatur-by-agreement counts as
“invalidation” or a “favorable termination” under Heck.
That issue wasn’t even raised until the “eleventh hour” of the
appeal, id. at 894, and was ultimately remanded to the
district court to sort out. So if some stray statement by the
Rosales-Martinez Court did equate vacatur-by-agreement
with invalidation (which, again, it is not clear it did), the
statement was made in passing and with no analysis. See,
e.g., In re Magnacom Wireless, LLC, 503 F.3d 984, 993–94
(9th Cir. 2007) (“In our circuit, statements made in passing,
without analysis, are not binding precedent.”); Estate of
Magnin v. C.I.R., 184 F.3d 1074, 1077 (9th Cir. 1999)
(“When a case assumes a point without discussion, the case
does not bind future panels.”); see also United States v. Paul,
583 F.3d 1136, 1138 (9th Cir. 2009) (O’Scannlain, J.,
dissenting from the denial of rehearing en banc) (“‘[C]ases
that do not actually analyze the issue . . . and cases that
erroneously rely on those cases for their implicit
               ROBERTS V. CITY OF FAIRBANKS                   15

assumptions’ do not bind future panels.”) (quoting in part
Guerrero v. RJM Acquisitions LLC, 499 F.3d 926, 937 (9th
Cir. 2007)).

    Relying on Rosales-Martinez as somehow sanctioning or
even previewing the rule applied by the Roberts majority is
therefore an overreading of Rosales-Martinez. The most that
can be said is that Rosales-Martinez is not inconsistent with
the Roberts rule. But that can be said about most cases—
even most cases applying Heck—because, like Rosales-
Martinez, most of those cases do not actually consider and
analyze whether a vacatur-by-agreement suffices to meet
Heck’s favorable termination requirement.

     Taylor v. County of Pima, 913 F.3d 930 (9th Cir. 2019),
is a closer call. In Taylor, “a jury convicted Louis Taylor . . .
of 28 counts of felony murder” in 1972 “on the theory that
he had started a deadly fire at a Tucson hotel.” Id. at 932.
While still in prison, Taylor in 2012 sought post-conviction
relief based on new evidence that “arson did not cause the
hotel fire.” Id. (emphasis in original). Taylor entered into a
plea agreement with the government in 2013 whereby his
“original convictions were vacated and, in their place, Taylor
pleaded no contest to the same counts, was resentenced to
time served, and was released from prison.” Id. Taylor then
sued the County of Pima and the City of Tucson pursuant to
§ 1983 “alleging violations of his constitutional rights to due
process and a fair trial.” Id.

    The district court dismissed Taylor’s § 1983 wrongful
incarceration damages claim as barred by Heck. Id. at 935–
36. On appeal, the panel majority said: “Here, Taylor’s 1972
jury conviction has been vacated by the state court, so Heck
poses no bar to a challenge to that conviction or the resulting
sentence.” Id. at 935. But the court observed that “Taylor’s
2013 conviction, following his plea of no contest, remains
16            ROBERTS V. CITY OF FAIRBANKS

valid,” and “all of the time that Taylor served in prison is
supported by the valid 2013 state-court judgment.” Id. The
Taylor Court thus affirmed the district court’s dismissal of
Taylor’s § 1983 claim as Heck-barred. Id. at 936.

     The Roberts majority is correct that the Taylor majority
did equate a vacatur-by-settlement with a favorable
termination under Heck. See id. at 935 (“Here, Taylor’s
1972 jury conviction has been vacated by the state court
[under a vacatur-by-agreement settlement], so Heck poses no
bar to a challenge to that conviction or the resulting
sentence.”). Taylor is the strongest support for the holding
in Roberts. But Taylor’s conclusion that the Heck bar did
not apply to Taylor’s vacated conviction was classic dicta—
it made no difference in the case because Taylor was still
Heck-barred by his second conviction and his § 1983 claims
were dismissed. Moreover, “Taylor offered no reasoning to
support its offhand comment” that a vacated conviction is
not barred by Heck, and there is no analysis in Taylor of why
a vacatur-by-agreement satisfies Heck’s favorable
termination requirement. Roberts, 947 F.3d at 1212 (Ikuta,
J., dissenting). There is just the one sentence from Taylor
that the Roberts majority relies on. That is it.

    So Taylor certainly did not mandate the result in Roberts.
The Taylor majority’s passing statement “was not necessary
to its holding,” id., was unreasoned, and did not affect the
ultimate result in Taylor because Taylor’s 2013 plea barred
his § 1983 claim under Heck. Its sentence was dicta “made
in passing, without analysis,” and “not binding precedent.”
In re Magnacom Wireless, LLC, 503 F.3d at 993–94; see
also United States v. Johnson, 256 F.3d 895, 915 (9th Cir.
2001). But unlike in Taylor, the “Roberts exception” is now
binding precedent—because of Roberts, the law in the Ninth
                ROBERTS V. CITY OF FAIRBANKS                         17

Circuit is now that a vacatur-by-agreement of the parties is a
favorable termination under Heck.

    The practical effects of the negotiated vacatur in this case
also reveal how the Roberts exception differs from an
overturned conviction on appeal, executive expungement,
and direct invalidation by an authorized court. For instance,
the § 1983 plaintiffs agreed that their convictions were
“properly and validly” secured in exchange for their release
from custody. While the plaintiffs can rightfully assert that
release from custody was a favorable result, they also
expressly agreed that the convictions were “properly and
validly” obtained. This concession by the plaintiffs that their
convictions were valid cannot mean that their convictions
were invalidated—it means the opposite. At best, this
compromise constituted a neutral disposition of the
convictions because the convictions were vacated without
any discussion as to the plaintiffs’ actual guilt or innocence.
At worst, this was a less-than-neutral termination of the
convictions because all parties agreed that the convictions
were still valid—just as someone who would have agreed to
time-served in exchange for release from prison. 2

                                  IV.

    The Supreme Court has not stepped away from Heck’s
favorable termination requirement, and the Roberts
exception is irreconcilable with Heck’s favorable
termination rule. “[V]acatur by settlement is not—and never
was—recognized as a favorable termination at common law,

    2
       Even if this Court wanted to add the Roberts exception to the four
Heck exceptions, this was not the proper case to do so. Here, all parties
agreed the convictions were valid. Under the plain language of Heck,
the still-valid convictions bar the plaintiffs’ § 1983 claims.
18            ROBERTS V. CITY OF FAIRBANKS

so the majority’s attempt to recognize it as a fifth means of
favorable termination under Heck squarely contradicts
Heck’s reliance on the ‘common law of torts.’” Roberts,
947 F.3d at 1214–15 (Ikuta, J., dissenting) (citing Heck,
512 U.S. at 483). Two facts amplify this inconsistency.

     First, the Roberts majority does not dispute that its rule
is inconsistent with the common law’s favorable termination
rule from the malicious prosecution context. Id. at 1201.
Instead, the majority insists that “Heck’s favorable-
termination requirement is distinct from the favorable-
termination element of a malicious-prosecution claim.” Id.
But this is not a faithful application of Heck—especially as
illuminated by the back-and-forth between the Court and
Justice Souter’s concurrence. Justice Souter’s entire
complaint in Heck was that the Court was too extensively
and too woodenly borrowing from the malicious prosecution
tort in interpreting § 1983. Tellingly, the Court in Heck was
unapologetic and responded tit-for-tat to “Justice Souter’s
critici[sm of] our reliance on malicious prosecution’s
favorable termination requirement.” Heck, 512 U.S. at 484
n.4.

    In arguing that the Heck and malicious prosecution
favorable termination requirements are different, the Roberts
majority relies primarily on the argument that Heck’s four
specific exceptions do not map on perfectly to the historical
understanding of the malicious prosecution tort. 947 F.3d
at 1201–03. But this does no more than rehash Justice
Souter’s argument in Heck. See Heck, 512 U.S. at 496
(Souter, J., concurring). The Supreme Court forcefully
rejected that argument then (see id. at 484 n.4), and we can’t
resurrect it to reinterpret Heck’s favorable termination
requirement now. Especially when, just a few years ago, the
Supreme Court reiterated that in Heck it had previously
              ROBERTS V. CITY OF FAIRBANKS                  19

“adopt[ed] wholesale the rules that would apply in a suit
involving the most analogous tort”—i.e., the malicious
prosecution tort. Manuel, 137 S. Ct. at 920–21 (emphasis
added).

    Second, the fact that, in the quarter century since Heck
was decided, no other court has applied the Roberts
exception to the Heck bar is good reason to think carefully
before we lock that in as the law in our circuit. As explained,
until Roberts, none of this Court’s precedents required that
a vacatur-by-agreement be interpreted as a favorable
termination under Heck. There are probably many good
reasons for that, but one very serious concern comes to mind.
Many states in our circuit allow for convictions to be
automatically vacated after an offender has served his
sentence. See, e.g., Cal. Penal Code § 1203.4 (describing
how verdicts may be vacated once a defendant fulfills the
conditions of probation); Cal. Penal Code § 1203.41
(outlining how defendants may change their pleas and set
aside a guilty verdict without a judicial determination that
the plea or verdict was invalid); Wash. Rev. Code Ann.
§ 9.94A.640(1) (detailing how defendants can vacate their
record of conviction after completing their sentences); Or.
Rev. Stat. § 137.225 (“[A]t any time after the lapse of three
years from the date of pronouncement of judgment, any
defendant who has fully complied with and performed the
sentence of the court . . . may apply to the court where the
conviction was entered for entry of an order setting aside the
conviction.”); Ariz. Rev. Stat. § 13-905 (“[E]very person
convicted of a criminal offense, on fulfillment of the
conditions of probation or sentence and discharge by the
court, may apply to the court to have the judgment of guilt
set aside.”); Ariz. Rev. Stat. § 13-909 (allowing sex
trafficking victims to vacate certain convictions); Nev. Rev.
Stat. § 179.247 (providing certain nonviolent offenders with
20            ROBERTS V. CITY OF FAIRBANKS

the option of vacating their judgment and sealing their
records of conviction); Haw. Rev. Stat. § 712-1209.6 (giving
convicted prostitutes the ability to vacate their convictions);
Wash. Rev. Code Ann. § 10.05.120 (instructing courts to
dismiss charges after the defendant successfully completes a
deferred prosecution program); Mont. Code. Ann. § 46-16-
130 (requiring automatic dismissal of prosecution upon
compliance with the terms of a pre-trial diversion program);
Nev. Rev. Stat. § 174.033 (mandating the dismissal of
charges following a defendant’s completion of “the terms
and conditions of a preprosecution diversion program”); Or.
Rev. Stat. § 135.891 (confirming that criminal charges will
be dismissed with prejudice when a defendant fulfills the
requirements of a diversion agreement); Ariz. Rev. Stat.
§ 11-361 (“[T]he county attorney of a participating county
may divert or defer, before a guilty plea or a trial, the
prosecution of a person who is accused of committing a
crime . . . .”); Haw. Rev. Stat. § 853-1 (deferring further
proceedings when a defendant enters a guilty or nolo
contendere plea to allow the defendant to participate in a
deferred prosecution program that requires dismissal of the
criminal charges upon completion of the program); Alaska
Stat. § 12.55.078 (permitting deferred adjudication wherein
a defendant serves a term of probation in exchange for the
dismissal of the criminal proceedings); Mont. Code. Ann.
§ 46-18-1104 (describing the conditions for expungement of
misdemeanors); Idaho Code § 19-2604 (authorizing courts
to terminate a sentence, set aside a guilty plea or conviction,
and dismiss the case if the court determines “there is no
longer cause for continuing the period of [defendant’s]
probation”).

    Perhaps anticipating this issue, the Second Circuit and
Third Circuit have rejected the argument that a mere neutral
termination of a conviction can overcome the Heck bar. In
              ROBERTS V. CITY OF FAIRBANKS                 21

the Second Circuit, petitioner Roesch participated in
accelerated pretrial rehabilitation, and after he successfully
finished “the two-year probationary period, the State Court
dismissed the charges against him.” Roesch v. Otarola,
980 F.2d 850, 852 (2d Cir. 1992). Roesch then filed a
§ 1983 action seeking damages and alleging in part that
“various parties conspired to cause his arrest and
incarceration without probable cause.” Id. The Second
Circuit held “that a dismissal pursuant to the Connecticut
accelerated pretrial rehabilitation program is not a
termination in favor of the accused for purposes of a civil
rights suit.” Id. at 853. “A person who thinks there is not
even probable cause to believe he committed the crime with
which he is charged must pursue the criminal case to an
acquittal or an unqualified dismissal, or else waive his
section 1983 claim.” Id.

    Similarly, in the Third Circuit, petitioner Petit
participated in the Accelerated Rehabilitative Disposition
(ARD) program wherein he avoided trial, served no jail time,
and received an expungement of his record after completing
a probationary period. Gilles v. Davis, 427 F.3d 197, 209
(3d Cir. 2005). Petit then brought a § 1983 action against
public officials seeking damages. Id. at 203, 208–09. The
Third Circuit applied the Heck bar, id. at 209–10, and held
that “the ARD program is not a favorable termination under
Heck.” Id. at 211.

    The reasoning in Roesch and Gilles aligns with Heck’s
favorable termination requirement as described in Judge
Ikuta’s dissent in Roberts, not the majority’s decision. The
Roberts decision will, at worst, require this Court in future
panels to reach the opposite conclusion as our sister circuits
with regard to § 1983 claims related to convictions that have
been “invalidated” by state expungement statutes or good-
22             ROBERTS V. CITY OF FAIRBANKS

behavior programs. At best, future panels will be required
to creatively cabin Roberts or “‘impermissibly risk parallel
litigation and conflicting judgments.’” Roberts, 947 F.3d
at 1208 (Ikuta, J., dissenting) (quoting McDonough, 139 S.
Ct. at 2160). Even though “one purpose of the favorable-
termination rule is to avoid the risk that a criminal conviction
could be deemed valid in the criminal context and invalid in
the civil context,” the Roberts exception now requires this
Court to engage in judicial gymnastics to determine whether
a § 1983 plaintiff may attack a conviction that has not
actually been declared invalid by an authorized state
tribunal. Id. at 1213 (Ikuta, J., dissenting) (citing Heck,
512 U.S. at 484–85).

                               V.

    “Heck makes clear that plaintiffs ‘must’ show that their
convictions were terminated in one of four specific ways,”
and “[v]acatur by settlement is not on the list . . . .” Roberts,
947 F.3d at 1213–14 (Ikuta, J., dissenting). Here, “[n]o court
has ruled on the validity of the plaintiffs’ prior convictions
or made a finding as to the plaintiffs’ guilt or innocence.”
Id. at 1209–10 (Ikuta, J., dissenting). Instead, the plaintiffs
expressly agreed that their convictions were “validly entered
based on proof beyond a reasonable doubt.” Id. at 1203.
Because nothing in the record shows that the convictions are
invalid (it shows just the opposite), “Heck precludes
plaintiffs from bringing a § 1983 action . . . .” Id. at 1212
(Ikuta, J., dissenting).

    In the face of controlling Supreme Court precedent, the
split-panel majority in Roberts created a novel exception to
reach a result inconsistent with Heck. We should have
considered this inconsistency en banc before cementing it as
binding precedent in our circuit. I respectfully dissent from
the denial of rehearing en banc.
