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Ninth Circuit Denies En Banc Rehearing In Volpicelli v. U.S.

Posted on Apr. 10, 2015

On January 30, in Volpicelli v. United States, 777 F.3d 1042, the Ninth Circuit reaffirmed its previous precedents from 20 years ago that held that the 9-month period at section 6532(c) in which to file a wrongful levy suit was not jurisdictional and was subject to equitable tolling.  See our post of that date summarizing the holding.  On March 16, the DOJ requested en banc rehearing — alleging a Circuit split and an unmanageable parade of future wrongful levy cases alleging equitable tolling.  See our post of March 18 for an analysis of how the DOJ may have exaggerated both the Circuit split and the administrative problems.  On April 8, the Ninth Circuit denied the request for an en banc rehearing.  The ball is now in the Solicitor General’s court to ask for cert. or not.  We will keep you posted.

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