reassignment meaning

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/ ˌriːəˈsaɪn /

• to move (personnel, resources, etc) to a new post, department, location, etc

Discover More

Derived forms.

• ˌreasˈsignment , noun

Example Sentences

Leslie H. Gelb on why he must reassign Rahm, dump Larry Summers, and get rid of National Security adviser Jim Jones.

Anyhow, Malone was reasonably sure that he could reassign himself from vacation time, at least until he called Burris.

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Definition of reassignment noun from the Oxford Advanced Learner's Dictionary

reassignment

• Her reassignment is part of a new global restructuring.

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Examples of 'reassign' in a sentence reassign

Synonyms of 'reassign'.

Trends of reassign

View usage for: All Years Last 10 years Last 50 years Last 100 years Last 300 years

Browse alphabetically reassign

• reassess the situation
• reassess the value
• reassessment
• reassortant
• reassortment
• All ENGLISH words that begin with 'R'

Related terms of reassign

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What is the meaning of "reassignment"?

• reassignment

sex reassignment

Gender reassignment surgery, sex reassignment surgery, gender reassignment.

• reason of state
• reassertion
• reassessment
• reassumption
• reassurance
• reassuringly
• reattachment
• reattainment

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Resources For

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Summary of Reassignment

This summary of reassignment covers the following topics:

• Learning About Reassignment
• Definition of Reassignment
• The Agency's Right to Reassign
• Reassignment Without Regard to RIF Retention Standing
• Separation After Declining Geographic Reassignment
• Qualifications and Reassignment
• Relocation Expense Allowances
• Additional Information from the Agency
• Additional Information from OPM

1. Learning About Reassignment

The reassignment regulations give an agency extensive flexibility in reassigning an employee to a different position.

This summary covers the procedures in the reassignment regulations. With this summary, employees, managers, union representatives, and others will have an overview of both the agency's and employees' rights in a reassignment situation.

The appropriate human resource office (HRO) in the agency can provide additional information on specific questions relating to reassignment policies, options, and entitlements.

2. Definition of Reassignment

The regulations published in section 335.102 of title 5, Code of Federal Regulations (5 CFR 335.102) cover reassignment of competitive service employees, while the regulations published in section 302.102(a) (5 CFR 302.102(a)) cover reassignment of excepted service employees.

Section 5 C.F.R. 210.102(b)(12) of the regulations defines reassignment as:

". . . a change of an employee, while serving continuously within the same agency, from one position to another without promotion or demotion."

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3. The Agency's Right to Reassign

An agency may reassign an employee when:

The agency has a legitimate organizational reason for the reassignment; and

The vacant position is at the same grade, or rate of pay (i.e., if the movement is between pay systems such as from a General Schedule position to a Federal Wage System position), as the employee's present position.

The agency's right to direct reassignment includes the right to reassign an employee from a special rate position to a non-special rate position at the same grade, or to a position with less promotion potential than the present position. (Reassignment to a position with more promotion potential than the present position requires competition under the agency's merit staffing plan.) The position to which the agency reassigns an employee may be located in the same or a different geographic area (e.g., reassignment from Houston to Washington, DC).

4. Reassignment Without Regard to RIF Retention Standing

An agency may reassign an employee without regard to the employee's reduction in force retention standing, including an employee's veterans' preference status. A reassignment to a vacant position at the same grade is not a reduction in force action even if the agency abolishes the employee's former position

At its option, an agency may adopt a policy to select employees for reassignment on the basis of considerations such as retention standing, total service with the agency, length of time in a position or in the organization, etc. Again at its option, an agency may canvass its employees to determine whether an individual employee would prefer reassignment to a specific location, a new organization, and/or to a position with different duties and responsibilities.

5. Separation After Declining Geographic Reassignment

The agency must use the 5 CFR part 752 adverse action regulations when separating an employee who declines a directed reassignment to a position in a different geographic area.

An employee who is removed by adverse action for declining geographic relocation is potentially eligible for most of the benefits that are available to a displaced employee separated by reduction in force (e.g., intra- and interagency hiring priority, severance pay, discontinued service retirement, etc.).

An employee who declines reassignment to a position in the same geographic area as the present position (e.g., from an Atlanta position to a different Atlanta position) is not eligible for any career transition assistance or other benefits.

6. Qualifications and Reassignment

The agency's basic right to reassign an employee is based, in part, on the agency's determination that the employee is qualified for the position to which the employee will be reassigned.

An agency may also reassign an employee to a position if the agency modifies or waives qualifications for the vacant position, consistent with OPM's requirements for these actions.

7. Relocation Expense Allowances

An employee is generally eligible for relocation expense allowances for a directed reassignment that requires relocation to a different geographic area

The General Services Administration (GSA) publishes its Federal Travel Regulation (FTR) in 41 CFR subpart F. The complete FTR and other relocation-related information are available on GSA's website at  www.gsa.gov .

8. Additional Information from the Agency

The agency's human resources office (HRO) can provide both employees and managers with additional information on OPM's reassignment regulations. The HRO can also provide information on potential benefits, such as eligibility for:

• Career transition assistance
• Separation incentives (if available)
• Rehiring selection priority
• Severance pay
• Unemployment compensation
• Relocation allowances.

9. Additional Information from OPM

OPM provides additional restructuring information on the OPM website at  www.opm.gov .

reassignment

• 1.1 Etymology
• 1.2.1 Derived terms

English [ edit ]

Etymology [ edit ].

re- +‎ assignment

Noun [ edit ]

reassignment ( countable and uncountable , plural reassignments )

• The act of reassigning ; a second or subsequent assignment .

Derived terms [ edit ]

• gender reassignment
• reassignment center
• sex reassignment surgery

• English terms prefixed with re-
• English lemmas
• English nouns
• English uncountable nouns
• English countable nouns

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reassignment noun

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What does the noun reassignment mean?

There is one meaning in OED's entry for the noun reassignment . See ‘Meaning & use’ for definition, usage, and quotation evidence.

How common is the noun reassignment ?

How is the noun reassignment pronounced, british english, u.s. english, where does the noun reassignment come from.

Earliest known use

The earliest known use of the noun reassignment is in the mid 1600s.

OED's earliest evidence for reassignment is from 1650, in the writing of Thomas Fuller, Church of England clergyman.

reassignment is formed within English, by derivation.

Etymons: reassign v. , ‑ment suffix .

Nearby entries

• reassemble, v. ?1473–
• reassembly, n. 1576–
• reassert, v. 1647–
• reassertion, n. 1653–
• reassertor, n. 1859–
• reassess, v. a1689–
• reassessment, n. 1704–
• reassiege, v. 1587
• reassign, v. 1611–
• reassignation, n. 1655–
• reassignment, n. 1650–
• reassimilate, v. 1747–
• reassimilation, n. 1828–
• reassociate, v. a1513–
• reassociated, adj. 1881–
• reassociation, n. ?1792–
• reassort, v. 1817–
• reassortant, adj. & n. 1979–
• reassorted, adj. 1866–
• reassortment, n. 1767–
• reassume, v. 1472–

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Meaning & use

Pronunciation, compounds & derived words, entry history for reassignment, n..

Originally published as part of the entry for reassign, v.

reassignment, n. was revised in June 2009.

reassignment, n. was last modified in July 2023.

oed.com is a living text, updated every three months. Modifications may include:

• further revisions to definitions, pronunciation, etymology, headwords, variant spellings, quotations, and dates;
• new senses, phrases, and quotations.

Revisions and additions of this kind were last incorporated into reassignment, n. in July 2023.

Earlier versions of this entry were published in:

OED First Edition (1904)

• Find out more

OED Second Edition (1989)

• View reassign, v. in OED Second Edition

Please submit your feedback for reassignment, n.

Please include your email address if you are happy to be contacted about your feedback. OUP will not use this email address for any other purpose.

Citation details

Factsheet for reassignment, n., browse entry.

Companies are shuffling people around more than they were a year ago. Here's how to know what your reassignment really means.

• Companies have been moving employees around internally more frequently, per LinkedIn data.
• Some people may be moved because of promotions, others because their jobs have been cut.
• Experts say a reassignment is often a good sign and may mean a company wants to keep you.

Shuffling employees between projects, teams, and managers is becoming more common these days. 

"Reassigning is definitely a huge part of the dynamic right now," Andy Challenger, a senior vice president at the outplacement firm Challenger, Gray & Christmas, said in a recent story in The Wall Street Journal that suggested organizations might be reassigning workers instead of conducting layoffs in a workplace trend called " quiet cutting ."

A recent report from Challenger, Gray & Christmas found that companies announced 42% fewer job cuts in July than in June and 8% fewer cuts than July last year.

Challenger told Insider that over the past few years, companies focused on reassigning workers internally because it was hard to find replacements amid the labor shortage. Now, companies are reassigning tasks or positions so they don't have to hire new employees or lay off current employees while still being able to meet demand, Challenger said.

"The labor market is cooling , but I think because they've built up that ability to reassign people now they're able to use that maybe in ways they haven't always been able to, where in the past they would've just cut jobs," Challenger said.

Research from LinkedIn analyzing global member data across 19 industries showed that internal mobility rates increased between February 2022 and February this year in many industries. In LinkedIn's report, internal mobility included both promotions and lateral moves within a company.

The increase in internal mobility comes as overall layoff rates have remained low over the past few months despite some high-profile companies laying off workers . 

Reassignment by itself isn't a red flag

Being reassigned could actually be a good sign that a company wants to keep you even if your position is no longer needed.

"It's usually a company saying, 'Hey, we don't have this role anymore, but we want to keep you,'" Challenger told Insider. "'We want to find a place for you in the organization.'"

In some cases, it could be the result of companies reorienting their priorities and filling jobs that will be key to future plans while pulling back on roles related to prior strategies.

Related stories

"Just the act of reassignment does not signal that a company wants you gone," Julia Pollak, the chief economist at ZipRecruiter, told Insider. "Companies are constantly leaning into certain business functions and units that are doing best, that are most profitable, and winding down efforts that are past their time or that are not succeeding well."

"The immediate economic incentive for the company is to close your unit and get rid of your job, and instead they want to make an effort to slot you in where you might be happy in an effort to retain you," Pollak said.

It's still worth evaluating whether a role fits with your long-term goals

Even if a company reassigns you to a role where it sees business potential, it's worth considering how that role really matches up with your own interests — or fits into your long-term career goals.

Sometimes a "less attractive" assignment comes simply because a company needs someone to take on that job, Pollak said, "but usually in that case they try to counteract the effect on attrition by offering you something in the future."

Yolanda M. Owens, a career coach who works with platforms like the Muse, told Insider by email that companies can also use reassignments to keep the power dynamics in their favor. Reassignments can eliminate a worker's sense of agency over their career trajectory — and their salary — she said. 

"While you may be reassigned, you may be getting a job with more responsibility and no raise. Or worse, be demoted in title, pay grade, and sense of worth," she said over email. "It's a game of power, not productivity."

More often than not, it'll be obvious

"If you're getting a really bad assignment and you're not being offered a promise of some reward for it down the line, that may be a nudge," Pollak said.

If you're afraid that you are going to be reassigned, there are signs you can look for — and they may look like signs of a layoff, Challenger said.

"You're being excluded from things that you might otherwise have been a part of," he said, or perhaps you're being cut from meetings you used to attend. 

Pollak said a common sign that a worker is quietly being pushed out is a change in the tone of one-on-one meetings with your manager. She said blunt feedback about how someone is doing, such as not meeting expectations, "is there either in the hopes that you change and improve and become a superstar or that you understand that this isn't a great fit for the other side."

"Many people in those kinds of situations do leave for their own pride and enjoyment of work," Pollak said. "It doesn't feel good to be in a job where one isn't appreciated."

Has your job been eliminated and you have been reassigned to a new role? Have you experienced being pushed out of your company? Reach out to these reporters to share your experience for a story at [email protected] and [email protected] .

Watch: How tech layoffs could affect the economy

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gender reassignment

Definition of gender reassignment

Note: This term is sometimes considered to be offensive in its implication that a transgender or nonbinary person takes on a different gender, rather than making changes to align their outward appearance and presentation with their gender identity. Gender transition is the preferred term in the medical and LGBTQ+ communities.

Word History

1969, in the meaning defined at sense 2

Articles Related to gender reassignment

Merriam-Webster's Short List of Gender...

Merriam-Webster's Short List of Gender and Identity Terms

In case you (or someone you know) has questions about what they mean

Dictionary Entries Near gender reassignment

genderqueer

gender reassignment surgery

Cite this Entry

“Gender reassignment.” Merriam-Webster.com Dictionary , Merriam-Webster, https://www.merriam-webster.com/dictionary/gender%20reassignment. Accessed 13 May. 2024.

Medical Definition

Medical definition of gender reassignment.

Note: This term is sometimes considered to be offensive in its implication that a transgender or nonbinary person takes on a different gender, rather than makes changes to align their outward appearance and presentation with their gender identity. Gender transition is the preferred term in the medical and LGBTQ+ communities.

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Reassignment

On this page, introduction.

Reassignment to a vacant position is expressly identified as a form of reasonable accommodation in part 1630 of the title I regulations of the Americans with Disabilities Act (ADA), and also in the Equal Employment Opportunity Commission (EEOC) formal enforcement guidance on Reasonable Accommodation and Undue Hardship Under the ADA . According to the EEOC, this type of reasonable accommodation is to be provided to an employee who, because of a disability, can no longer perform the essential functions of their current position, with or without reasonable accommodation, or when both the employer and the employee voluntarily agree that reassignment is preferable to remaining in the current position with reasonable accommodation. Of course, under both circumstances, this accommodation is only required in the absence of undue hardship.

As part of the interactive process of exploring accommodations, reassignment is often considered when:

• An employee can no longer perform the essential functions of their current position, with or without accommodation
• An alternative position is a more effective solution for retaining a qualified employee, in light of their limitations and ability to perform essential functions, with or without accommodation
• An employee is on a leave of absence and the employer cannot hold the employee’s position open during the entire leave period without incurring undue hardship, and when there is a vacant position to which the employee can be reassigned to continue the leave
• The location where work is performed causes a work-related barrier due to limitations affecting an employee’s commute, or access to specialized healthcare

The duty to consider reassignment as a form of reasonable accommodation under the ADA is essentially well-defined, but still, questions arise about the level of responsibility employers have when exploring this type of accommodation. For example, questions related to whose responsibility it is to search for vacant positions; the duration of time the search should take; and to what extent the search should include vacancies outside of the employee’s department, location, etc. The following information addresses these and many other questions related to reassignment and the ADA. For more information on this topic, or other ADA or accommodation issues,  contact JAN .

Questions and Answers

Are applicants or probationary employees entitled to reassignment as an accommodation.

Per the ADA regulations, reassignment is not available to job applicants as an accommodation because an applicant must be qualified for, and be able to perform the essential functions of, the position for which they seek to be hired. If an applicant is not qualified, there is no duty for an employer to consider assigning the individual to a different job.

Once hired, during the early probationary period of employment, individuals with disabilities are entitled to reasonable accommodation, which can include reassignment. According to the EEOC, a key factor in determining if a probationary employee is eligible for reassignment is whether the employee adequately performed the essential functions of the probationary position, with or without reasonable accommodation, before the need for a reassignment became apparent. If not, then the probationary employee is not entitled to reassignment. This is because the employee was not qualified for the original position.

Is there a duty to create a vacant position, by either creating a new job or bumping another employee from a job, in order to reassign an employee as an accommodation?

No. When reassigning an employee as an accommodation, there is no duty to create a vacant position. Reassignment is to a position that is vacant when the need for accommodation becomes apparent, or that will become vacant in a reasonable amount of time. A vacant position can be one that is unoccupied and posted, or not posted but the employer is aware it is, or will be, available.

Is an employee who is being reassigned as an accommodation required to compete for a vacant position?

According to the EEOC, provided the employee is qualified for the vacant position, reassignment means that the employee is given the vacant position; there is no requirement to compete for the position. An employee can be required to compete for any vacant position that would constitute a promotion. Promotion is not required as reasonable accommodation under the ADA.

Contrary to EEOC’s interpretation of reassignment as an accommodation under the ADA, some United States courts (e.g., 6th, 8th, and 11th Circuits) have ruled that employers are not required to give employees with disabilities “preferential treatment” when considering reassignment as an accommodation. Employers may find it useful to seek-out relevant court rulings in their geographical area to learn more about reassignment.

Who is responsible for searching for vacant positions, the employer or the employee, and how long should the search take?

From a practical stand-point, the employer will generally be in the best position to know about available positions, and positions that may become vacant in a reasonable period of time. According to the EEOC, the employer is thus obligated to inform an employee about available vacancies. However, both parties can and should engage in the search for available positions.

The search for vacancies should proceed as expeditiously as possible, but the duration of the process will vary based on the circumstances (e.g., size of the employer and number of vacancies to review). The ADA imposes no required duration to search for vacant positions when exploring reassignment as an accommodation. Some employers search for vacancies for thirty or sixty days. This is not an ADA requirement, but rather, an employer policy or practice.

When no vacant position is available at the time the employee requests reassignment, but the employer knows an equivalent position for which the individual is qualified will become vacant in a reasonable period of time, the EEOC says the employer should reassign the individual to the position when it becomes available.

Does the ADA limit the obligation to offer reassignment as an accommodation only to positions within the employee’s particular department or worksite location?

No language exists within the ADA to limit the obligation to reassign only to positions within an office, branch, agency, etc. This means that private employers may cast a wide net to find vacancies outside of the employee’s current location, when applicable. It is possible that the only position that exists may be located in a different geographical area that will require the employee to relocate. When this is the case, the employee may be required to pay relocation expenses, unless the employer routinely pays such expenses for employees who voluntarily transfer.

When reassigning an employee as an accommodation under Section 501 of the Rehabilitation Act, a federal employer is not obligated to look federal government-wide, but must look at vacancies within its department (e.g., all agencies within the U.S. Department of Labor, etc.), absent undue hardship. The federal employer must search for available vacancies throughout the department. The employee does not have the burden of identifying open positions without the employer's assistance.

Must the employee be reassigned to an equivalent position?

Yes, if an equivalent vacancy exists. When implementing reassignment as an accommodation, an employee should be placed in an equivalent position, in terms of pay, status, benefits, etc., so long as the employee is qualified for the position. There is no duty to assist the individual to become qualified. For example, if the position requires a special license, the individual must possess the license to be qualified.

When there is no equivalent vacancy for which the employee is qualified, the employee may be reassigned to a vacant lower level position in an effort to maintain employment. The employee’s original rate of pay is not required to be maintained in the lower level position, unless the employer routinely transfers employees without disabilities to lower level positions and maintains their original pay.

If the only vacancy is perhaps a demotion involving a pay cut, or is located in another state, can the employee refuse reassignment as an accommodation?

We know that employers cannot force employees to accept any reasonable accommodation against their will, including a reassignment. The EEOC has informally explained that an employee can turn down a proffered vacancy for any reason, but if an employee turns down a valid accommodation offer, the employer's reasonable accommodation obligation ends once the offer is made. What this means is, assuming there are no other vacancies, and the demotion or a position in a different geographical location are closest to the employee's current position in terms of pay, status, etc., then the employer is offering a valid accommodation under the ADA. If the employee chooses to refuse the reassignment offer, the result could be termination if the employee is unable to perform their current job duties. The employer is under no obligation to keep looking until a vacancy occurs in a job that the employee prefers, but can.

Must an employee be reassigned if it will violate a seniority system?

The EEOC and some courts seem to agree that it will generally be “unreasonable” to modify a seniority system or violate seniority rules, whether collectively-bargained or not, to reassign an employee with a disability as an accommodation under the ADA. This is understood to apply in situations where there are expectations of consistent, uniform treatment under the seniority system. However, when special circumstances exist – where employers retain the right to make exceptions to a seniority system – then an employer may need to consider bypassing the seniority system in order to reassign a qualified employee as a reasonable accommodation.

Must an employee whose disability is exacerbated by conflicts with a supervisor or co-worker be reassigned as an accommodation?

Informally, the EEOC has shared the opinion that employers probably do not have to reassign an employee because the employee's disability is exacerbated by a bad working relationship with a supervisor or coworker. However, the answer could be different in limited situations where egregious behavior on the part of a supervisor or coworker is shown to have an effect on an employee’s disability. The facts of the situation, such as evidence of harassing behavior, could lead to a responsibility to separate coworkers or to change an employee’s supervisor through reassignment. Of course, there is a difference between the effects of a bad working relationship, because individuals are simply unable to get along, versus being on the receiving end of harassing behavior.

Another limited situation may be one where an employee is only having problems with one supervisor, perhaps due to the supervisor’s appearance triggering PTSD symptoms because the supervisor resembles someone who assaulted the employee. Accommodations like changing supervisory methods will not work in this situation and so reassigning the employee to a job with a different supervisor may need to be considered. The nature of PTSD means that another supervisor most likely will not trigger the same response in the employee. This distinguishes the situation from other situations where the bad relationship with the supervisor is the issue.

Must an employer consider reassigning an employee to a position in a different location so the employee can receive medical treatment?

The EEOC has not clearly addressed this issue. An argument can be made that the employee's need for reassignment is not because the disability prevents the individual from performing the duties of the current job, but rather, the employee is seeking medical treatment elsewhere. In other words, treatment could be obtained closer to home and the employee is choosing to move elsewhere, which does not trigger an obligation for an employer to make a reassignment. Reassignment for medical treatment might be required in a situation where treatment facilities are limited and adequate treatment does not exist in the employee’s current location. Of course, an employer is not precluded from considering a request for reassignment to enable an employee to obtain medical care elsewhere.

Is there an obligation under the ADA to consider reassigning an employee who is on extended leave to a vacant position when it poses an undue hardship to hold the employee’s position?

According to the EEOC, in the event that holding an employee’s position for an extended period of time creates an undue hardship on the employer, the employer should consider whether it has a vacant, equivalent position to which the employee can be reassigned for the duration of the leave period. When the employee is ready to return to work, the employee will then return to the new position.

Situations and Solutions:

The following situations and solutions are real-life examples of accommodations that were made by JAN customers. Because accommodations are made on a case-by-case basis, these examples may not be effective for every workplace but give you an idea about the types of accommodations that are possible.

Due to having a seizure, an automotive parts delivery driver could not operate a motor vehicle for six months.

He was unable to drive to deliver parts during this time, which was an essential function. The employee had extensive knowledge of automotive parts, and the business had a vacant parts stocking position available. The employer permanently reassigned the employee to that position.

A retail sales customer service representative developed dysphonia.

She experienced chronic hoarseness and required significant effort to speak, which limited her ability to effectively communicate with customers over the telephone for any period of time. The online retailer offered customer service by telephone, email, and live chat. Technology was explored to enable the employee to use a text to voice solution to communicate, but because there was a vacant equivalent position that only required chat and e-mail communication with customers, reassignment was chosen as an effective accommodation.

A nursing aid for a healthcare facility could no longer lift patients.

The employee requested to be reassigned to an alternative position. There were no available positions at the time of the request, but the employer was aware that a patient greeter position would be vacant in three weeks. The employee was excused from duties that required lifting patients for the temporary three week period, and then was reassigned to the greeter position.

An assembly line worker with diabetes had neuropathy in his feet that was affecting his ability to stand for long periods of time.

The employee’s position required constant standing and moving. He tried taking breaks when possible, and had anti-fatigue matting, but the situation did not improve. A position became available on a different part of the assembly line that did not require constant standing and allowed sitting most of the time. The employee was reassigned to this position.

An employee working for an insurance company had been working successfully for nine months when she was in a severe motor vehicle accident.

After the accident, she was restricted from driving further than five miles for at least six months due to a severe shoulder injury and PTSD that resulted from the accident. She was able to return to work and perform the essential job duties, but her commute was forty-five miles, one way. The employer had a second location, located within the employee’s driving restriction, where there was a vacant position that was similar to the employee’s original job. The employer reassigned the employee to the position in the closer location.

JAN Publications & Articles regarding Reassignment

Publications.

• Changing a Supervisor as an Accommodation under the ADA
• The Path to Reassignment as an Accommodation
• As the Old Saying Goes…

Events Regarding Reassignment

• Upcoming Events
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• Past Exhibit Booths
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Other Information Regarding Reassignment

External links.

• EEOC's Reasonable Accommodation and Undue Hardship Guidance Under the ADA

Organizations

• Job Accommodation Network
• Office of Disability Employment Policy
• U.S. Equal Employment Opportunity Commission

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The Second Amendment and Appellate Procedure

• May 10, 2024
• Categories:
• Dangerous and Unusual Weapons
• Second Amendment

By: Andrew Willinger

On March 19, the Ninth Circuit Court of Appeals  heard en banc oral argument in Duncan v. Bonta , a Second Amendment challenge to California’s ban on large-capacity magazines.   The Ninth Circuit’s ultimate decision in Duncan could have major consequences, especially if it creates a circuit split with rulings from the Seventh and First Circuits upholding categorical bans of certain types of weapons and weapon accessories. [1]   Yet a surprisingly large portion of the oral argument in Duncan focused on obscure procedural questions surrounding the case—including whether the en banc panel is properly constituted, under both Ninth Circuit rules and federal statutes, and even has jurisdiction to decide the case.  

Duncan has a long and tortured procedural history.   California banned the possession of large-capacity magazines (LCMs) through a voter ballot initiative effective in 2017, [2] and the lawsuit challenging that restriction under the Second Amendment was originally filed later that year.   District Judge Roger Benitez struck down the LCM ban in a June 2017 opinion under intermediate scrutiny, finding that “[t]he statute hits close to the core of the Second Amendment and is more than a slight burden” and later granted the plaintiffs’ motion for summary judgment and enjoined the statute.   The state appealed, a Ninth Circuit panel heard oral argument in April 2020, and the panel subsequently affirmed Judge Benitez’s summary judgment decision as to the Second Amendment claim applying a strict scrutiny analysis and finding that “the state’s chosen method — a statewide blanket ban on possession everywhere and for nearly everyone — is not the least restrictive means of achieving the compelling interest [in public safety].”   Judge Lee wrote the majority panel opinion, joined by Judge Callahan, and Barbara Lynn (a district judge in the Northern District of Texas sitting by designation) dissented.  

The Ninth Circuit subsequently took the case en banc in February 2021 after “a majority of nonrecused active judges” voted in favor.   Oral argument before the en banc panel occurred in June 2021, and the en banc court vacated and reversed Judge Benitez’s decision in November 2021—finding that “California’s ban on large-capacity magazines is a reasonable fit for the compelling goal of reducing gun violence” (that decision was 7-4 and included two dissents [3] ).   The plaintiffs filed a cert petition that was pending when Bruen was decided, and at that time the Supreme Court granted, vacated and remanded the case for further proceedings—as it did with several other pending Second Amendment petitions.   The Ninth Circuit en banc panel that had heard the case in 2021 was next to act, remanding the case back to Judge Benitez over dissents from Judges Bumatay and VanDyke (who both presumably preferred to apply Bruen at the appellate level in the first instance).   Judge Benitez then again struck down the law in September 2023, this time on the basis that “[t]here is no American history or tradition of regulating firearms based on the number of rounds they can shoot.”   And the case is now back at the Ninth Circuit, where the same en banc panel from 2021 granted a stay of Judge Benitez’s most recent order pending appeal, in a divided October 2023 opinion, and then heard oral argument in March.

The procedural spat in Duncan relates primarily to a federal statutory provision regulating circuit court conduct and the assignment of judges to panels: 28 U.S.C. § 46 .   The statute provides in relevant part that “[c]ases and controversies shall be heard and determined by a court or panel of not more than three judges . . . unless a hearing or rehearing before the court in banc is ordered by a majority of the circuit judges of the circuit who are in regular active service,” and it sets forth rules for how a circuit court must constitute any en banc panel.   The federal statute is mandatory, but circuits may employ different procedures for en banc re-hearing within the bounds permitted by § 46.   The debate surrounding § 46 in Duncan stems largely from the fact that the Ninth Circuit—with 29 active judges—is the only court where en banc rehearing does not mean that all active judges sit together to hear the case.   Rather, according to the Ninth Circuit , “[t]he en banc court consists of the Chief Judge, and ten non-recused judges who are randomly drawn.”   The Circuit’s general orders provide that active judges and any “senior judge who was a member of the three-judge panel assigned to the case being heard or reheard en banc [and] elect[s] to be eligible” may constitute the limited en banc panel.

The central issue is whether this specific en banc panel—the panel that heard argument in June 2021 and reversed Judge Benitez that November—can take the case “back” directly for a new en banc argument, or whether the case must instead be reassigned to either a new panel or a newly-drawn limited en banc court.   That question was raised in the context of the October 2023 stay order .   Dissenting from that order, Judge Nelson argued that “[n]o other circuit court would allow a prior en banc panel to hear a comeback case without an intervening majority vote of the active judges.”   He opined that there were only two options when the case reappeared at the Ninth Circuit in September 2023: first, the case could have been reassigned to a new, randomly selected panel; or, second, a new en banc vote could have been taken, with a new, randomly selected en banc panel drawn upon a favorable vote for rehearing.   Judge Nelson argued that the decision by the prior en banc panel to retain the case “raise[d] serious questions about this panel’s statutory authority under § 46(c)” because a number of judges in the en banc majority have now taken senior status (namely, Judges Paez, Thomas, Graber, Berzon, and Hurwitz).   Judge Bumatay echoed these concerns, noting that it was “perhaps the first time [the Ninth Circuit] ha[d] ever” retained a case with the same en banc panel in this manner.   In the context of § 46, the concern seems to be the requirement in subsection (c) that any “case or controversy” be heard “by a court or panel of not more than three judges” unless a favorable en banc vote is taken.   Judge Nelson’s argument is that the federal statute requires reassignment or a new vote, which would be taken among only active judges.

The parties then briefed the issue prior to oral argument. The state argued that the en banc court had authority to keep the case, relying in large part on the Ninth Circuit’s General Order 3.6(b) which says that:

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.

This procedure, the state said in its brief, was consistent with § 46 because there simply is not a new “case or controversy” in Duncan despite the Supreme Court’s GVR.   And the state also opined that changes in status (judges taking senior status) were not relevant because § 46(c) expressly contemplates that a senior judge may “continue to participate in the decision of a case or controversy that was heard or reheard by the court in banc at a time when such judge was in regular active service.”  

By contrast, the plaintiffs in the case argued that the panel “should not issue any merits decision because it is unlawfully constituted”—in other words, that failure to follow mandatory en banc requirements means the panel lacks jurisdiction.   Relying on the initial part of § 46(c), the plaintiffs argued that any en banc rehearing can occur only with a vote of active judges at the time any new appeal is filed.   And the plaintiffs stressed that senior judges “cannot vote on whether to constitute en banc proceedings in the first place—let alone override the majority of voting active judges and cast the decisive votes to do so.”   To the plaintiffs, it also would not “make any sense as a policy matter to let a single en banc vote authorize 11 members of the Court to sit en banc in perpetuity.”

In its reply , the state contended that “case or controversy” is a “term of art that extends to the entire adversarial dispute between two parties, not just a single appeal within that dispute,” and argued that “[p]laintiffs’ fears about senior judges using General Order 3.6(b) to control the law of this Circuit in perpetuity are not persuasive, especially in light of the possibility of rehearing en banc before the full Court.”  

What is motivating all this, of course, is the fact that the Ninth Circuit is now almost evenly divided between Democrat and Republican appointed judges.   Democrat-appointed judges currently hold a slight 16-13 majority, by my count.   The en banc panel that currently has the case is 7-4 majority Democrat.   Thus, any type of reassignment short of a full en banc sitting [4] would mean there is a relatively good chance of a Republican-majority three-judge, or limited en banc, panel.   I think the state likely has the better of the “comeback” argument given that § 46 is generally applied so as to allow some variation in en banc procedure among the individual circuits.   As one scholar has explained , “[d]espite similar standards, [] considerable variations [in en banc procedures] exist among the circuits.”   And it simply isn’t clear to me that the federal statute requires that an en banc vote reflect a majority of active judge preferences at any particular point in the case —rather, that seems to be something left to circuit discretion.

That said, it is somewhat jarring to see so much energy devoted to this kind of procedural wrangling, at the expense of time spent on the actual merits of the case.   And lawyers on both sides exuded thinly-veiled frustration at being asked to spend time on the issue.   As a practical matter, it also seems relatively bizarre for an en banc panel with five senior judges to decide such a high-profile appeal and to potentially keep control over the case for years into the future (if, for example, their upcoming decision is ultimately overturned by the Supreme Court).   That’s a separate question, of course, from whether exercising such control is statutorily permissible.   Recent efforts to crack down on “judge-shopping” and single-judge districts at the district court level are a welcome change and, I believe, should have bipartisan appeal.   The fact that these discussions are often tinged with partisan valence is unfortunate, especially because cases like Duncan illustrate that the temptation to use procedural maneuvers to dictate substantive outcomes is not limited to one side of the political spectrum.

[1] A cert petition asking the Supreme Court to review the Seventh Circuit’s decision in Bevis is currently pending.

[2] The state had previously banned the manufacture and sale, but not the possession, of LCMs.

[3] One dissent, by Judge Bumatay, would have rejected tiers of scrutiny entirely and employed a Bruen -like historical inquiry to find that the ban was unconstitutional.

[4] This possibility was discussed at oral argument, with neither party voicing serious objections.   The Ninth Circuit has never had a full en banc rehearing of a case (with all 29 active judges sitting together), but its General Order 5.8 contemplates that a case could be heard by the full complement of active judges either on motion or sua sponte.

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Appeals Court Finds a Constitutional Right to Gender Reassignment Surgery

The 14th Amendment to the Constitution is truly a magical amendment. It was used to justify attempts to kick Donald Trump off the 2024 ballot. Through the decades, judges who want to play at social engineering have used it frequently to justify questionable law. 

It's even been invoked to bypass Congress to raise the debt limit.

Now, the Fourth Circuit Court of Appeals has decided that the amendment's "equal protection" clause means that state Medicaid programs have to cover gender reassignment surgeries.

The appeals court ruled that West Virginia's Medicaid rules on mastectomies are unconstitutional because they violate the "equal protection standard" by not covering mastectomies for gender dysphoria.

Yes, really.

The ruling also includes a North Carolina Medicaid case that the state government won't cover "sex changes." The Fourth Circuit nullified the state ban on gender change surgeries, citing the 14th Amendment’s guarantee of “equal protection of the laws.”

This was a court looking for an excuse to make law.

Judge Roger Gregory who wrote the majority opinion in Kadel v. Folwell (8-6) asked, “Is removing a patient’s breasts to treat cancer the same procedure as removing a patient’s breasts to treat gender dysphoria?” He continued, “There is no case law to ground this discussion nor obvious first principles.”

Wall Street Journal:

He is undeterred, and he concludes that gender dysphoria and transgender status are intertwined, so that such insurance exclusions are nothing more than a proxy for discriminating against gender identity. Then he goes further, finding that West Virginia’s and North Carolina’s policies also unconstitutionally discriminate based on sex. How so? Imagine, Judge Gregory says, an unidentified patient seeking a vaginoplasty. Is this a biological female with a rare birth defect? Is it a transgender patient? “By virtue of the fact that they are seeking a vaginoplasty, we know that they were born without a vagina,” he writes. “But we do not know what sex they were assigned at birth. Without that information, we cannot say whether the Plan or Program will cover the surgery.” Ergo, sex discrimination.

Gregory gets even nuttier.

The differences in coverage "is rooted in a gender stereotype: the assumption that people who have been assigned female at birth are supposed to have breasts, and that people assigned male at birth are not."

It's not a "gender stereotype." It's a biological fact. 

"No doubt, the majority of those assigned female at birth have breasts, and the majority of those assigned male at birth do not. But we cannot mistake what is for what must be.”

Not just a "majority." It's a universal biological fact with a tiny number of exceptions.

Treating different things differently doesn’t violate the 14th Amendment’s Equal Protection Clause, and jurists aren’t supposed to ignore the obvious. Writing in dissent at the Fourth Circuit, Judge Julius Richardson struggles to contain his exasperation. “The states,” he says, “have chosen to cover alterations of a person’s breasts or genitalia only if the person experiences physical injury, disease, or (in West Virginia) congenital absence of genitalia.” That determination does not turn on the patient’s sex or gender. “Christopher Fain—one of the plaintiffs below—received coverage for a hysterectomy based on a diagnosis unrelated to Fain’s transgender status,” the dissent says. Likewise, males with gynecomastia qualify for surgery coverage in West Virginia only “if they have physical symptoms, like breast pain,” meaning that isn’t a procedure done merely “to affirm a patient’s biological sex.”

The ruling that opened this can of worms was Bostock v. Clayton County, a case that "held that Title VII of the Civil Rights Act of 1964 protects employees against discrimination because of  sexuality or gender identity." Now, as a dissenting judge in Kadel v. Folwell,  Judge J. Harvie Wilkinson III is saying that this ruling could be a Roe v Wade  ruling for the transgender community.

“This is imperial judging at its least defensible,” he says, “What plaintiffs propose is nothing less than to use the Constitution to establish a nationwide mandate that States pay for emerging gender dysphoria treatments.”

He's not wrong. But getting the ruling past this Supreme Court would be a stretch. 

Rick Moran has been writing for PJ Media for 18 years. His work has appeared in dozens of media outlets including the Washington Times  and ABC News. He was an editor at American Thinker for 14 years. His own blog is Right Wing Nut House . For media inquiries, please contact [email protected] .

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Meaning of assignment in English

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• It was a jammy assignment - more of a holiday really.
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• She first visited Norway on assignment for the winter Olympics ten years ago.
• He fell in love with the area after being there on assignment for National Geographic in the 1950s.
• act as something
• all work and no play (makes Jack a dull boy) idiom
• be at work idiom
• be in work idiom
• housekeeping
• in the line of duty idiom
• undertaking

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