Virginia Duncan v. Rob Bonta, 23-55805

Background

Plaintiffs challenge California’s ban on large-capacity magazines (§ 32310); district court enjoined the statute and the case proceeded through multiple appeals and an en banc rehearing in 2021.
In 2021 an 11-judge Ninth Circuit limited en banc court (all active judges at that time) heard and decided the case en banc; the Supreme Court granted certiorari, vacated, and remanded in light of Bruen.
The Ninth Circuit en banc court (the same drawn panel) remanded to the district court for proceedings consistent with Bruen and issued a mandate; the district court again enjoined § 32310 under Bruen.
When California appealed that new district-court decision, the Clerk assigned a new appellate number; under Ninth Circuit General Order 3.6(b) the original en banc court was consulted and elected to retain the case as a “comeback” rather than refer it to a three-judge panel.
Several judges who had been active when the en banc court was constituted in 2021 had taken senior status by the time of the new appeal; a number of new active judges had joined the court and were not part of the original en banc draw.
The en banc majority concluded it has statutory authority under 28 U.S.C. § 46(c) to decide the subsequent appeal as part of the same “case or controversy”; concurring and dissenting opinions dispute that conclusion and its prudence.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the previously constituted en banc court retains statutory authority under 28 U.S.C. § 46(c) to decide a later appeal (a "comeback") after it issued an en banc decision, remanded, and the mandate issued	The en banc authority ends when the mandate issues; a new appeal requires a new en banc vote of the active judges and newly active judges must be able to vote	The en banc vote in 2021 authorized the court to hear the entire “case or controversy,” so senior judges who were active when the en banc court was constituted may continue to participate and the en banc court may retain the case under Gen. Order 3.6(b)	Majority: § 46(c) authorizes the en banc court to decide the entire case or controversy and permits senior judges who were active when the en banc court was constituted to continue participating; the en banc court validly retained this appeal
Whether the phrase "to continue to participate in the decision of a case or controversy" permits senior judges to participate indefinitely after mandate and through later appeals	Plaintiffs: “the decision” is a single decision; once decided and the mandate issues, senior judges no longer can "continue to participate" in new appeals	Defendant: "case or controversy" is a unitary concept that encompasses subsequent appeals; Congress used broad language and intended continuity	Held (majority): "case or controversy" is broad; statute allows senior judges involved when case was en banc to continue participating in later appeals arising from the same case or controversy
Whether Ninth Circuit General Order 3.6(b) — allowing the original en banc court to decide whether to retain a comeback — is consistent with § 46(c)	Plaintiffs: the General Order cannot authorize a process that disenfranchises active judges or substitutes senior judges for active ones for a new en banc call	Defendant: General Order 3.6(b) implements courts’ statutorily permitted procedures and is consistent with § 46(c) and Supreme Court precedent allowing circuits to adopt their own en banc procedures	Held: Majority treats General Order 3.6(b) as consistent with § 46(c) and validly applied it here; concurrence urges revisiting the rule though not invalidating it; dissents say the General Order is an improper stretch
Prudential question whether the en banc court should have retained the comeback (practical consequences)	Plaintiffs: fairness and institutional legitimacy require a new en banc vote and reconstitution so current active judges have a say	Defendant: efficiency and continuity favor retaining the original en banc panel that already litigated the issue and spent substantial work on the case	Held: Majority exercised discretion to retain the case as a comeback given identity of parties, identical legal issue, and short interval; concurrence criticizes the rule but concurs reluctantly; separate dissents argue reconstitution was the better practice and that proceeding erodes statutory design

Key Cases Cited

W. Pac. R.R. Corp. v. W. Pac. R.R. Co., 345 U.S. 247 (1953) (§ 46(c) is a grant of power to courts of appeals and circuits may adopt their own en banc procedures)
United States v. Am.-Foreign S.S. Corp., 363 U.S. 685 (1960) (en banc composition historically limited to active judges; senior participation is exception requiring statutory authorization)
Moody v. Albemarle Paper Co., 417 U.S. 622 (1974) (statutory limits on who may vote to rehear en banc must be respected; active-judge vote requirement emphasized)
City of Chicago v. Int’l Coll. of Surgeons, 522 U.S. 156 (1997) ("case or controversy" encompasses claims deriving from a common nucleus of operative fact)
New York State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1 (2022) (announced new historical-tradition framework for Second Amendment review)
Yovino v. Rizo, 586 U.S. 186 (2019) (a case is "determined" when the decision is publicly released; votes cannot be counted for judges after the decision is released)
Camreta v. Greene, 563 U.S. 692 (2011) (vacatur or reversal by a higher court annuls prior decision and its binding effect)