What is the test for a panel of this court to hold that a prior decision of the court has been effectively overruled?

MultiRegion, United States of America

The following excerpt is from Close v. Sotheby's, Inc., 894 F.3d 1061 (9th Cir. 2018):

under which one panel of this court may hold that a prior decision of the court has been "effectively overruled." Id. at 900. A prior decision is effectively overruled if intervening higher authority has so "undercut the theory or reasoning underlying the prior circuit precedent" as to make the precedent "clearly irreconcilable" with the intervening authority. Id. "The clearly irreconcilable requirement is a high standard." United States v. Robertson , 875 F.3d 1281, 1291 (9th Cir. 2017) (quotation marks omitted). Accordingly, "[i]t is not enough for there to be some tension between the intervening higher authority and prior circuit precedent, or for the intervening higher authority to cast doubt on the prior circuit precedent." Id. "So long as the court can apply our prior circuit precedent without running afoul of the intervening authority it must do so." Id. (quotation marks omitted).

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