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 au