Ortega-Mendez v. Gonzales, 450 F.3d 1010 (9th Cir. Jun. 15, 2006) ("As Miller v. Gammie, 335 F.3d 889 (9th Cir.2003) (en banc), explained, a three-judge panel may not itself overrule a prior decision of the court, id. at 899, but "where the reasoning or theory of our prior circuit authority is clearly irreconcilable with the reasoning or theory of intervening higher authority," id. at 893, three-judge panels "should consider themselves bound by the intervening higher authority and reject the prior opinion of this court as having been effectively overruled," id. at 900. We are " bound not only by the holdings of [such intervening] decisions but also by their mode of analysis. " Gill v. Stern (In re Stern ), 345 F.3d 1036, 1043 (9th Cir.2003) (quoting Miller, 335 F.3d at 900)). "Intervening higher authority" includes intervening decisions of the Supreme Court, Miller, 335 F.3d at 900, and of this court sitting en banc, Overstreet v. United Bhd. of Carpenters & Joiners of Am., Local Union No. 1506, 409 F.3d 1199, 1205 n. 8 (9th Cir.2005).")



On August 30, 2006, the government filed a petition for rehearing in Ortega-Mendez v. Gonzales, 450 F.3d 1010 (9th Cir. 2006).