FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ANDREW TETER; JAMES GRELL, No. 20-15948
Plaintiffs-Appellants, D.C. No.
1:19-cv-00183-
v. ACK-WRP
ANNE E. LOPEZ; DARRYL NG,
ORDER
Defendants-Appellees.
Filed April 30, 2025
Before: Mary H. Murguia, Chief Judge, and Ronald M.
Gould, Jacqueline H. Nguyen, Ryan D. Nelson, Eric D.
Miller, Bridget S. Bade, Daniel P. Collins, Kenneth K. Lee,
Lawrence VanDyke, Gabriel P. Sanchez and Ana de Alba,
Circuit Judges.
Order;
Concurrence by Judge Miller;
Concurrence by Judge Collins;
Concurrence by Judge VanDyke
2 TETER V. LOPEZ
SUMMARY *
Attorney’s Fees
The en banc court denied plaintiff Andrew Teter’s
motion for attorney’s fees pursuant to 42 U.S.C. § 1988(b)
in a case involving a Second Amendment challenge to a
Hawaii statute prohibiting butterfly knives.
In a prior decision, the en banc court vacated, as moot,
the district court’s summary judgment for the Hawaii
Attorney General and the Hawaii Sheriff Division
Administrator, concluding that the Hawaii Legislature’s
amendment to the challenged statute gave plaintiff
everything he hoped to achieve in this litigation. Because no
further relief could be granted, the case was moot, and this
court lacked Article III jurisdiction.
Concurring, Judge Miller, joined by Chief Judge
Murguia and Judge Gould, joined in the court’s decision to
deny fees under § 1988(b), because Teter was not a
prevailing party. Judge Miller wrote separately to respond
to Judge Collins’s and VanDyke’s concurrences, which took
issue with the court’s prior decision dismissing the case as
moot. First, nothing in the Supreme Court’s recent opinion
in Lackey v. Stinnie, 145 S. Ct. 659 (2025), changed the law
on mootness because Lackey did not consider whether the
legislative repeal mooted the case before it. Instead, it simply
reiterated the principles articulated in the voluntary-cessation cases that this court applied in the prior decision.
Second, Judge VanDyke’s proposed remedy of “vacating the
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
TETER V. LOPEZ 3
vacatur”—thereby “reinstating the panel’s judgment”—
would require the court to exercise judicial power by
entering an order resolving the merits of the case. But
because this case is moot, the court lacks jurisdiction to enter
such an order.
Concurring, Judge Collins, joined by Judge Lee, wrote
that under the Supreme Court’s opinion in Lackey, plaintiffs
were not the prevailing parties in light of the en banc court’s
decision in this case dismissing the case as moot. He
therefore concurred in the court’s order denying attorney’s
fees. On the other hand, Lackey itself confirmed that the en
banc court’s prior decision was incorrect and plaintiffs
should have been the prevailing parties because, under the
voluntary cessation mootness standard, the governmental
defendants had not satisfied their burden of showing that
Hawaii could not reasonably be expected to resume its
challenged conduct. Nevertheless, because the mandate has
issued, the court is powerless to correct the error on the
merits.
Concurring, Judge VanDyke wrote that the decision to
deny attorney’s fees highlighted additional problems with
the en banc majority’s prior resolution of this case. This
court’s practice of automatically vacating panel opinions
upon the grant of rehearing en banc creates perverse
incentives for government defendants. Parties like Hawaii
can strategically deploy mootness to lock in the effect of the
court’s auto-vacatur without the risk of losing on the merits
before the en banc court. And now, the order denying
plaintiffs their fees in this case shows even more
unwarranted upside for government defendants like Hawaii:
by gaming this court’s en banc process they can also
eliminate the risk of attorney’s fee awards, even when the
government lost the only decision on the merits before this
4 TETER V. LOPEZ
court. In response to Judge Miller’s statement about
mootness, Judge VanDyke explained that his proposed
remedy of vacating the prior vacatur order would be
consistent with the court’s practice in other cases, as the
court has long vacated prior orders in moot cases and has
issued opinions in moot cases to explain the basis for a prior
order.
COUNSEL
Alan A. Beck (argued), Law Offices of Alan Beck, San
Diego, California; Stephen D. Stamboulieh, Stamboulieh
Law PLLC, Olive Branch, Mississippi; for Plaintiffs-Appellants.
Reedy Swanson (argued), Neal K. Katyal, and Dana A.
Raphael, Hogan Lovells US LLP, Washington, D.C.; Robert
T. Nakatsuji, First Deputy Solicitor General; Ryan M.
Akamine and Caron M. Inagaki, Deputy Attorneys General;
Kalikoonalani D. Fernandes, Deputy Solicitor; Kimberly T.
Guidry, Solicitor General; Clare E. Connors, Al Cummings,
William Oku Jr., and Holly T. Shikada, Attorneys General
of Hawaii; Office of the Attorney General Hawaii, Honolulu,
Hawaii; Neal K. Katyal, Milbank, LLP, Washington, D.C.;
for Defendants-Appellees.
Kevin O'Grady, Law Office of Kevin O'Grady LLC,
Honolulu, Hawaii; David T. Hardy, David T. Hardy PC,
Tucson, Arizona; for Amicus Curiae Hawaii Firearms
Coalition.
Cody J. Wisniewski, Mountain States Legal Foundation,
Lakewood, Colorado, for Amicus Curiae Mountain States
Legal Foundation.
TETER V. LOPEZ 5
John W. Dillon, Dillon Law Group APC, Carlsbad,
California, for Amici Curiae San Diego County Gun Owners
Political Action Committee, Firearms Policy Coalition, and
Knife Rights Foundation Inc..
Michael R. Dreeben and David K. Roberts, O'Melveny &
Myers LLP, Washington, D.C.; Danielle R. Feuer and
Vincent S. Weisband, O'Melveny & Myers LLP, New York,
New York; Wendy F. Hanakahi and Pamela W. Bunn,
Dentons US LLP, Honolulu, Hawaii; William J. Taylor Jr.,
Lisa M. Ebersole, Carina B. Gryting, and Janet Carter,
Everytown Law, New York, New York; for Amici Curiae
Gun-Violence Prevention Groups and Policy Researchers.
John D. Echeverria, Deputy Attorney General; Mica L.
Moore and Helen H. Hong, Deputy Solicitors General;
Michael J. Mongan, Solicitor General; Rob Bonta, Attorney
General of California; Los Angeles, California; Kristen K.
Mayes, Attorney General of Arizona, Phoenix Arizona;
Philip J. Weiser, Attorney General of Colorado, Denver,
Colorado; William Tong, Attorney General of Connecticut,
Hartford, Connecticut; Kathleen Jennings, Attorney General
of Delaware, Wilmington, Delaware; Kwame Raoul,
Attorney General of Illinois, Chicago, Illinois; Anthony G.
Brown, Attorney General of Maryland, Baltimore,
Maryland; Andrea J. Campbell, Attorney General of the
Commonwealth of Massachusetts, Boston, Massachusetts;
Dana Nessel, Attorney General of Michigan, Lansing,
Michigan; Keith Ellison, Attorney General of Minnesota, St.
Paul, Minnesota; Matthew J. Platkin, Attorney General of
New Jersey, Trenton, New Jersey; Letitia James, Attorney
General of New York, New York, New York; Ellen F.
Rosenblum, Attorney General of Oregon, Salem, Oregon;
Michelle Henry, Attorney General of the Commonwealth of
Pennsylvania, Harrisburg, Pennsylvania; Peter F. Neronha,
6 TETER V. LOPEZ
Attorney General of Rhode Island, Providence, Rhode
Island; Robert W. Ferguson, Attorney General of
Washington, Olympia, Washington; Brian L. Schwalb,
Attorney General of the District of Columbia, Washington,
D.C.; for Amicus Curiae States of California, Arizona,
Colorado, Connecticut, Delaware, Illinois, Maryland,
Massachusetts, Michigan, Minnesota, New Jersey, New
York, Oregon, Pennsylvania, Rhode Island, Washington,
and the District of Columbia.
Daniel M. Gluck, Deputy Corporation Counsel; Dana M. O.
Viola, Corporation Counsel; Honolulu City & County
Department of the Corporation Counsel, Honolulu, Hawaii,
for Amicus Curiae City & County of Honolulu.
Joseph G.S. Greenlee and Erin M. Erhardt, National Rifle
Association of America, Institute for Legislative Action,
Fairfax, Virginia, for Amicus Curiae National Rifle
Association of America.
Edward A. Paltzik, Serge Krimnus, and Meredith Lloyd,
Bochner PLLC, New York, New York, for Amicus Curiae
Second Amendment Foundation.
Benjamin E. Lowenthal, Law Office of Benjamin E.
Lowenthal, Honolulu, Hawaii, for Amicus Curiae the Office
of the Public Defender.
ORDER
The motion for attorney’s fees (Dkt. No. 200) is
DENIED.
TETER V. LOPEZ 7
MILLER, Circuit Judge, with whom MURGUIA, Chief
Circuit Judge, and GOULD, Circuit Judge, join, concurring:
I join the court’s unanimous decision denying Teter’s
motion for attorney’s fees. Under 42 U.S.C. § 1988(b), we
may award attorney’s fees to “the prevailing party” in an
action under section 1983. In Lackey v. Stinnie, the Supreme
Court clarified that “a plaintiff ‘prevails’ under the statute
when a court conclusively resolves a claim by granting
enduring judicial relief on the merits that materially alters
the legal relationship between the parties.”
145 S. Ct. 659,
669 (2025). Teter did not receive such “enduring” relief: He
lost before the district court, and although he received a
favorable decision from a three-judge panel of this court, that
decision was vacated, and we then dismissed the case as
moot. Lackey also reaffirmed prior Supreme Court precedent
clarifying that plaintiffs are not prevailing parties under
§ 1988(b) even when the plaintiffs’ lawsuit, such as the one
here, is the catalyst for “a voluntary change in the
defendant’s conduct.” Id. at 668 (quoting Buckhannon Bd. &
Care Home, Inc. v. West Va. Dep’t of Health & Human Res.,
532 U.S. 598, 601 (2001)). Teter therefore is not a prevailing
party. See Maryville Baptist Church v. Beshear,
132 F.4th
453, 456 (6th Cir. Mar. 25, 2025).
I write separately to respond to Judges Collins and
VanDyke, who agree that Teter is not a prevailing party but
who continue to take issue with our prior decision to dismiss
the case.
Judge Collins argues that Lackey shows that this case
continues to present a live controversy and that we should
not have dismissed it as moot. That is incorrect. As we
acknowledged in our prior opinion, the Supreme Court has
made clear that a defendant may not “‘automatically moot a
8 TETER V. LOPEZ
case’ by the simple expedient of suspending its challenged
conduct after it is sued.” FBI v. Fikre, 601 U.S. 234, 241
(2024) (quoting Already, LLC v. Nike, Inc.,
568 U.S. 85, 91
(2013)). Nevertheless, we have held that “the repeal,
amendment, or expiration of challenged legislation is
generally enough to render a case moot.” Board of Trs. of
Glazing Health & Welfare Tr. v. Chambers,
941 F.3d 1195,
1198 (9th Cir. 2019) (en banc). That is so for two reasons.
First, in a case such as this one, the repeal of legislation is
not an action of the defendant (the Attorney General) but of
an independent branch of government (the Legislature). And
second, the difficulty of strategically repealing and
reenacting legislation means that once the challenged statute
has been repealed, a defendant can show that enforcement
“cannot ‘reasonably be expected to recur’”—at least in the
absence of some unusual circumstance not present here.
Fikre,
601 U.S. at 241 (quoting Friends of the Earth, Inc. v.
Laidlaw Envt’l Servs. (TOC), Inc.,
528 U.S. 167, 189
(2000)).
Nothing in Lackey changes that analysis. There, the
plaintiffs had obtained a preliminary injunction against the
enforcement of a Virginia statute. 604 U.S. at 664. The
Virginia Legislature then repealed the statute, and “the
parties agreed that the action had become moot,” an
agreement entirely consistent with our holding here.
Id. at
665. In explaining why the preliminary injunction was not
enough to make the plaintiffs prevailing parties, the Court
addressed the concern “that government defendants who
have lost at the preliminary injunction stage will strategically
moot litigation rather than risk a fee award.”
Id. at 669. The
Court dismissed that concern by pointing to the voluntary-cessation exception to mootness and explaining that a
defendant cannot easily moot a case by abandoning its
TETER V. LOPEZ 9
challenged conduct. Id. As Judge Collins concedes, the
Court in Lackey did not consider whether the legislative
repeal mooted the case before it—as I have already
explained, the parties agreed on that point—so its opinion
did nothing to change the law on mootness. Instead, it simply
reiterated the principles articulated in the voluntary-cessation cases that we applied in our prior decision.
For his part, Judge VanDyke reasserts his position that
the en banc court should have vacated what he calls the
“ministerial order” that vacated the panel’s opinion upon the
grant of rehearing en banc. As he put it in his previous
dissent, “even if the majority was correct that this case is
moot,” the appropriate remedy would be “reinstating the
panel’s judgment.” Teter v. Lopez, 125 F.4th 1301, 1310 (9th
Cir. 2025) (VanDyke, J., dissenting).
Judge VanDyke believes that this court should not vacate
panel opinions when we grant rehearing en banc. Whether or
not that should be our practice, there is no denying what our
practice is, or, more relevantly, what it was in this case: Like
it or not, the panel’s decision was vacated more than a year
ago. At this point, no decision on the merits is in effect.
Judge VanDyke’s proposed remedy of “vacating the
vacatur”—thereby “reinstating the panel’s judgment”—
would require us to exercise judicial power by entering an
order resolving the merits of the case. But because this case
is moot, we lack jurisdiction to enter such an order. See
Already, LLC, 568 U.S. at 90–91.
10 TETER V. LOPEZ
COLLINS, Circuit Judge, with whom LEE, Circuit Judge,
joins, concurring:
Plaintiffs’ motion for attorney’s fees places me in a
difficult position. On the one hand, I am compelled to
concur in the court’s order denying Plaintiffs’ motion for
attorney’s fees because, under the Supreme Court’s recent
opinion in Lackey v. Stinnie, 145 S. Ct. 659, 669 (2025),
Plaintiffs are plainly not prevailing parties in light of the en
banc court’s decision in this case. On the other hand, Lackey
itself confirms that, as I argued in my dissent, the en banc
court’s decision was incorrect and Plaintiffs should have
been the prevailing parties. However, because we have
already issued the mandate, we are powerless to correct our
error on the merits. I thus reluctantly concur in denying
Plaintiffs’ motion.
A party prevails for purposes of an attorney’s fee award
under 42 U.S.C. § 1988(b) “when a court conclusively
resolves his claim by granting enduring relief on the merits
that alters the legal relationship between the parties.”
Lackey,
145 S. Ct. at 671. Plaintiffs fail to satisfy that
“bright-line rule.”
Id. at 669. Although a three-judge panel
of this court had previously rendered an opinion in Plaintiffs’
favor on the merits, that opinion was vacated before the
legislative repeal that (according to a majority of the en banc
court) mooted this case. See Teter v. Lopez,
125 F.4th 1301,
1305–06 (9th Cir. 2025) (en banc). Therefore, at the time
that this case became moot (according to the en banc court),
Plaintiffs’ claim had not been conclusively resolved by
judicially sanctioned, enduring relief on the merits that
altered the legal relationship between the parties.
Accordingly, given the en banc court’s mootness holding,
Plaintiffs do not satisfy Lackey’s bright-line test.
TETER V. LOPEZ 11
Having said that, I cannot avoid noting that Lackey
further confirms that, as I argued in my dissent, the en banc
majority’s mootness holding is wrong.
As I explained, because the asserted mootness here
“occurred only through the voluntary action of the
appropriate state actors (namely, the Hawaii Legislature),”
this case can be deemed to be moot only if “the defendant”
can carry the “formidable burden” of showing that Hawaii
“cannot reasonably be expected to resume its challenged
conduct.” Teter, 125 F.4th at 1318 (Collins, J., dissenting)
(citations omitted). That is, the governmental Defendants
here must satisfy the same voluntary-cessation mootness
standard that applies to private defendants, and in this case,
Defendants made no effort to carry that heavy burden. And,
as I noted, it is particularly important to hold Defendants to
that burden here, given that “there are strong reasons to
suspect that the very lawsuit at hand was in fact the impetus
for the legislative amendment.”
Id. at 1319. Although the
majority acknowledged that the mootness standards for
governmental and private defendants are generally the same,
it nonetheless held that, in the specific context of a
legislative repeal, a burden-shifting presumption applies in
which the plaintiff must “establish[] that there is ‘a
reasonable expectation that the legislative body is likely to
enact the same or substantially similar legislation in the
future.’” Teter,
125 F.4th at 1307 (majority opinion)
(citation omitted). But as I argued, this special rule for
legislative repeals lacks any support in Supreme Court
caselaw and is “flatly contrary” to another recent Court
decision, namely, FBI v. Fikre,
601 U.S. 234, 240 (2024).
Teter,
125 F.4th at 1320 (Collins, J., dissenting).
Only one month after we issued our en banc decision,
Lackey has confirmed that it is wrong. In Lackey, the case
12 TETER V. LOPEZ
was rendered moot by a legislative repeal of the challenged
statute, but at that point in the litigation the plaintiffs had
only obtained a preliminary injunction. See Lackey, 145
S. Ct. at 664–65. The plaintiffs argued that a “bright-line
rule” requiring plaintiffs to secure enduring relief to be
eligible for attorney’s fees could create “perverse
incentives” by enabling governmental defendants who faced
a likely loss to “strategically moot litigation rather than risk
a fee award.” Id. at 669. But the Supreme Court reasoned
that any such risk of manipulation was sufficiently remote,
even in injunctive-relief-only cases, precisely because a
governmental defendant bears the “formidable” burden of
showing that “it is absolutely clear that the allegedly
wrongful behavior could not reasonably be expected to
recur.” Id. (simplified). The Court thus squarely confirmed
that the same “formidable” burden applies even in a case,
such as Lackey, involving a legislative repeal. 1 Lackey is
thus directly contrary to the en banc majority’s governmentfriendly rule in which we instead “presume that the repeal
. . . of legislation will render an action challenging the
legislation moot” and shift the burden to the plaintiff to
“rebut[] that presumption.” Teter,
125 F.4th at 1307
(emphasis added) (citation omitted). Indeed, this case
perfectly illustrates the “perverse incentives” that, under
Lackey, should have been avoided by application of the
regular demanding standards: even though the repeal here
seems to have been suspiciously strategically timed to
maximize its litigation impact, see
id. at 1314 (VanDyke, J.,
dissenting in part), Hawaii’s own voluntary actions have
1
The Court in Lackey was not presented with any issue as to whether
and how the defendant in that case had properly carried that burden,
because all parties stipulated in the district court that the case was moot
and should be dismissed. See Lackey,
145 S. Ct. at 665.
TETER V. LOPEZ 13
now succeeded both in mooting the original suit and in
avoiding fees.
Regrettably, there is nothing this court can do at this
point to correct our error on the merits. Although we have
“an inherent power” to recall our mandates, “the power can
be exercised only in extraordinary circumstances.”
Calderon v. Thompson, 523 U.S. 538, 549–50 (1998). “The
sparing use of the power demonstrates it is one of last resort,
to be held in reserve against grave, unforeseen
contingencies.”
Id. at 550. Although we had previously held
that we could recall our mandate “when an intervening . . .
Supreme Court decision has undermined the basis of our
decision,” Thompson v. Calderon,
120 F.3d 1045, 1048 (9th
Cir. 1997) (en banc) (collecting cases), rev’d,
523 U.S. 538,
I do not think that line of authority survived the Supreme
Court’s reversal in Calderon, and I have found no postCalderon case in which we have recalled a mandate on that
basis.
For these reasons, I concur, with misgivings, in the
denial of attorney’s fees in this case.
14 TETER V. LOPEZ
VANDYKE, Circuit Judge, concurring:
Our decision today highlights additional problems with
the en banc majority’s prior resolution of this case. See Teter
v. Lopez, 125 F.4th 1301 (9th Cir. 2025) (en banc). While it
is too late to fix those errors now that our mandate has issued,
it is never too late to shine a spotlight on them. As I
explained in my partial dissent from our prior en banc
decision, “this court’s practice of automatically vacating
panel opinions upon the grant of rehearing en banc creates
perverse incentives for government defendants.”
Id. at 1310
(VanDyke, J., dissenting in part). “[P]arties like Hawaii can
strategically deploy mootness to lock in the effect of our
auto-vacatur without the risk of losing on the merits before
the en banc court.”
Id. It’s all upside and no downside for
the government in mooting a case after taking it en banc.
And now, our order denying Plaintiffs their fees in this
case shows even more unwarranted upside for government
defendants like Hawaii: by gaming our en banc process they
can also eliminate the risk of attorney’s fee awards, even
when the government lost the only decision on the merits
before our court.
The law is clear enough, particularly after the Supreme
Court’s recent clarification: a plaintiff can receive a fee
award for actions under 42 U.S.C. § 1983 only if he is a
“prevailing party.” § 1988(b). “A party ‘prevails’ when a
court conclusively resolves his claim by granting enduring
relief on the merits that alters the legal relationship between
the parties. Critically, both the change in relationship and its
permanence must result from a judicial order.” Lackey v.
Stinnie,
145 S. Ct. 659, 671 (2025).
TETER V. LOPEZ 15
So given the posture of this case—where our court
concluded that Hawaii mooted the appeal after we took the
case en banc and vacated the panel opinion—the plaintiffs
here cannot be prevailing parties within the meaning of
§ 1988(b). The en banc court’s decision concluding the
appeal was moot, vacating the district court’s order, and
remanding is not a final judgment on the merits. See Teter,
125 F.4th at 1310. And while Plaintiffs obtained much—if
not all—of the relief that they sought through Hawaii’s
legislative enactment, that win isn’t enough to render
Plaintiffs the prevailing party for purposes of § 1988(b), as
the legislative enactment “lacks the necessary judicial
imprimatur on the change” in the legal relationship.
Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep’t of
Health & Hum. Res.,
532 U.S. 598, 605 (2001).
But if our en banc court had done what I urged—if it had
“reinstate[d] the panel opinion by vacating our prior vacatur
order”—not only would it have eliminated the undesirable
governmental incentives I previously discussed, Teter, 125
F.4th at 1310–11 (VanDyke, J., dissenting in part), it would
have also fixed the additional perverse incentive illustrated
by today’s order. If we had reinstated the three-judge panel
opinion that had been administratively vacated, the plaintiffs
here would almost certainly be the prevailing parties under
§ 1988(b) upon the conclusion of proceedings on remand.
The three-judge panel of our court concluded on the merits
that Hawaii’s law violated the Second Amendment as
incorporated against the states through the Fourteenth
Amendment. See Teter v. Lopez, 76 F.4th 938, 954–55 (9th
Cir. 2023), vacated on grant of rehearing en banc,
93 F.4th
1150 (9th Cir. 2024). But Plaintiffs were then stripped of
their prevailing party status when our court issued an
unreasoned, ministerial vacatur of the panel’s opinion.
16 TETER V. LOPEZ
Teter, 93 F.4th at 1150. And then the en banc majority
mooted the case for Hawaii, eliminating any possibility of a
decision on the merits from our court. Teter,
125 F.4th at
1308. So our automatic vacatur and Hawaii’s strategic
mooting are all that prevented Plaintiffs from receiving the
fee award they would otherwise be due under § 1988(b).
That only exacerbates the improper incentives we’ve
specially created for government defendants. Plaintiffs were
vindicated by the only decision on the merits they received
from our court, and were further vindicated by Hawaii’s
legislative capitulation, yet they are somehow no better off
than when they initiated their appeal—all because our court
has applied en banc procedural rules that encourage and
invite governmental gamesmanship and manipulation.
Given this obvious one-sided injustice, our practice of
“automatic vacatur plainly flouts the requirement of an
individualized, circumstance-driven fairness evaluation,
which … is the hallmark of an equitable remedy.” Acheson
Hotels, LLC v. Laufer, 601 U.S. 1, 16 (2023) (Jackson, J.,
concurring in the judgment).
Again, I would have avoided such unfairness in this case
by vacating our court’s ministerial vacatur order. Teter, 125
F.4th at 1315 (VanDyke, J., dissenting in part). By refusing
to do so, our court further undermined the availability of
competent attorneys representing litigants who bring
challenges against disfavored rights in our circuit. Given our
undefeated record for en banc calls of panel opinions
upholding a Second Amendment challenge, the likelihood
that a Second Amendment plaintiff can ever be a prevailing
party in our circuit is already slim. See
id. at 1314 & n.3.
And now, to add insult to injury, even when a case goes to
an en banc panel one might think could be favorable to a
Second Amendment challenge, states can play their two-for-
TETER V. LOPEZ 17
one get-out-of-bad-precedent-free and get-out-ofattorney’s-fees card by intentionally mooting the case after
the panel opinion is ministerially vacated. So the slim
chance of winning on the merits is effectively diminished to
none. This means attorneys bringing Second Amendment
civil rights challenges—some of whom presumably depend
upon attorney’s fee awards by representing prevailing
parties—essentially have no chance of victory. Among
other problems, that disincentive surely carries bad
consequences for the quality of the advocacy in our circuit.
Judge Miller’s concurrence makes a few points in
response to my concerns. First, he contends that “our
practice” was to “vacate[]” a panel opinion upon the grant of
rehearing en banc, so “like it or not, the panel’s decision was
vacated more than a year ago.” But that’s not exactly true.
To reiterate what I said before, it is not correct that it was
“our practice”—in the sense of a practice actually authorized
by our court—to vacate the panel’s decision. The full court
never voted to vacate the panel decision. Nor did the en banc
panel. And the court never voted on a rule authorizing the
automatic vacatur in this case. Instead, “the court just
issue[d] a ministerial order under the Chief Judge’s name
taking the case en banc and vacating the panel opinion”—
with no authorization for the vacatur whatsoever. Id. at
1312. While Judge Miller noticeably uses the passive voice
to elide who it was that vacated the panel’s decision (it
certainly wasn’t any action authorized by “our” court), this
effort only goes so far toward papering over this procedural
irregularity and ignoring the ultra vires character of the
original vacatur order.
Second, Judge Miller contends that because this case was
deemed moot, we lack jurisdiction to enter an order
reinstating the panel’s judgment. But I already explained
18 TETER V. LOPEZ
why that argument is wrong. I did not propose that we
simply reinstate the panel’s judgment. Rather, I would have
“reinstate[d] the panel opinion by vacating our prior vacatur
order.” Id. at 1310–11 (emphasis added). Judge Miller does
not explain why we lack jurisdiction to do that. Nor could
he, given that our court has long vacated prior orders in moot
cases, as I explained.
Id. at 1316.
It is true that vacating our prior order would have had
substantially the same effect as directly reinstating the
panel’s judgment. But it is not as clear as Judge Miller
asserts that we would not have jurisdiction to do even the
latter, as reinstating the decision would be consistent with
our court’s practice in other cases. As I (again) previously
explained, it would be odd for us to not have jurisdiction to
reinstate a decision here but to still have jurisdiction to
“(a) take a moot case en banc and vacate it and (b) issue an
opinion in a moot case to explain the basis for a prior order.”
Id. at 1317. Rather than issuing a new opinion that makes
lots of brand new law, as our court has done in other moot
cases, see, e.g., United States v. Perez-Garcia,
96 F.4th 1166
(9th Cir. 2024), we would simply be reinstating the reasoned
decision made in a case back before it was moot, which
seems far less problematic.
The reality is that none of the procedural irregularities
that happened in this case were required or permitted by our
court’s rules. No rule required or authorized the automatic
vacatur of the panel’s opinion without the vote of the entire
en banc panel. And nothing prevented our court from
remedying that earlier ultra vires action by vacating the
vacatur—certainly no clearly established and uniformly
applied mootness doctrine. To pretend otherwise now by
simple ipse dixit unfortunately does little to shake the
perception that our court is willing to play fast-and-loose
TETER V. LOPEZ 19
with our procedural rules—so long as it undermines the
Second Amendment.
…
Whether intentionally or not, Hawaii has played the
“panel-erasure game” here like a champ—ridding itself of
adverse panel precedent, sidestepping the risk of losing on
the merits before the en banc court, and now dodging a fee
award. Whatever Hawaii is paying its own counsel, it should
double it. But as clever as Hawaii’s strategy was, it never
would have worked unless our en banc court played along.
None of this gamesmanship would have been rewarded if
we, as the en banc court, had simply vacated the ministerial
order vacating the panel opinion. But we did not. In the
Ninth Circuit, at least when it comes to the Second
Amendment, if you’re litigating against the government,
even when you’re winning, you’re losing.
