General Order 3.6: Comeback Cases
Circuit Rules and General Orders of the Ninth Circuit — General Orders — Chapter III: Calendaring
a. Matters on Remand From the United States Supreme Court
Matters on remand from the United States Supreme Court will be referred to the last panel that previously heard the matter before the writ of certiorari was granted.
b. Matters Arising After Remand By an En Banc Court
Where a new appeal is taken following a remand or other decision by an en banc court, the Clerk’s Office shall notify the en banc court that the new appeal is pending, and proceed only after hearing instructions from that en banc court. The en banc court will decide whether to keep the case or to refer it to the three judge panel. The en banc court may elect to refer the case to the three judge panel while retaining jurisdiction over any future en banc proceedings. If the en banc panel so elects, a new en banc court will not be drawn from the eligible pool of judges at the time of future proceedings. (Rev. 12/10/18; 1/11/16)
c. Capital Cases
Subject to the foregoing provisions, comebacks in capital cases are governed by Circuit Rule 22-2(c), which states, “that once a capital case is assigned to a panel it retains jurisdiction for all future appeals.”
d. Appeals Following Remand or Other Decision in the Same
Underlying Case
When a new appeal is taken to this Court from a district court or agency decision following a remand or other decision by an argument panel, the Clerk’s Office will notify the panel that previously heard the case that the new appeal or petition is pending, and will provide a brief description of the issues presented. The prior panel is encouraged to accept a case that predominately involves the interpretation and application of the prior panel decision, except when it is impossible to reconstitute the prior panel. Any motion to assign a new appeal to a prior panel will be referred to the prior panel for decision. A new appeal will be assigned to the prior panel if two of the judges on the prior panel agree to accept the case. If the third judge on the prior panel is unavailable, the Clerk shall draw a replacement, utilizing a list of active judges randomly drawn by lot as provided in G.O. 3.2.h.