State of Washington, et al v. Donald J. Trump, et al

Filing 178

Filed (ECF) Appellants John F. Kelly, Rex W. Tillerson, Donald J. Trump, USA and USDHS Motion to stay appellate proceedings. Date of service: 02/24/2017. [10331849] [17-35105] (Swingle, Sharon) [Entered: 02/24/2017 09:06 AM]

IN THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

STATE OF WASHINGTON and STATE OF
MINNESOTA,
Plaintiffs-Appellees,
ALI PLAINTIFFS; JAMES J. O’HAGAN,
Intervenors-Pending,
v.
No. 17-35105
DONALD J. TRUMP, President of the United
States; U.S. DEPARTMENT OF
HOMELAND SECURITY; REX W.
TILLERSON, Secretary of State; JOHN F.
KELLY, Secretary of the Department of
Homeland Security; UNITED STATES OF
AMERICA,
Defendants-Appellants.

DEFENDANTS-APPELLANTS’ MOTION TO
HOLD PROCEEDINGS IN ABEYANCE
Defendants-appellants Donald J. Trump et al. respectfully move this Court to
hold proceedings in abeyance pending further order of the Court. Counsel for
plaintiffs-appellees oppose this motion. In support of this motion, counsel states as
follows:
1. This appeal is from an injunction entered by the U.S. District Court for the
Western District of Washington, barring defendants-appellants from enforcing
Sections 3(c) and 5(a), (b), and (c) of Executive Order No. 13,769, and from

enforcing Section 5(e) of the Executive Order “to the extent [it] purports to prioritize
refugee claims of certain religious minorities.”
2. On February 9, 2017, a panel of this Court denied defendants-appellants’
motion for an emergency stay of the injunction pending appeal. The panel also
issued an order that, inter alia, set a briefing schedule for appeal, pursuant to which
the opening brief is due March 3, 2017. A judge of the Court subsequently called
sua sponte for a vote as to whether the order denying a stay should be reconsidered
by the en banc Court, and the Court ordered the parties to file briefs setting forth
their respective positions on whether this matter should be reconsidered en banc.
3. Defendants-appellants filed a supplemental brief on en banc consideration
on February 16, 2017. The supplemental brief explained that “the United States does
not seek en banc review of the merits of the panel’s ruling. Rather than continuing
this litigation, the President intends in the near future to rescind the Order and replace
it with a new, substantially revised Executive Order * * *.” Defendants-appellants
asked the Court to “hold its consideration of the case until the President issues the
new Order and then vacate the panel’s preliminary decision.”
4.

On February 16, 2017, the Court issued an order staying en banc

proceedings before the Court pending further order of the Court. The Court’s order
referenced the United States’ “representat[ion] to the Court that the President intends

2

to issue a new Executive Order” and its request that the Court “hold its consideration
of the case until the President issues the new Order.”
5. There is no need at this time for immediate briefing of the appeal as
contemplated by the February 9 order. Although the Court’s February 16 order did
not specifically address the earlier order setting a briefing schedule, the stay of en
banc proceedings reflects the appropriateness of awaiting further developments
before committing further resources of the parties or the Court to appellate
litigation. Defendants-appellants respectfully request that the Court hold all
proceedings on appeal in abeyance pending further order of the Court.
6. Counsel for the plaintiffs-appellees, Ann Egeler, has indicated that the
plaintiffs-appellees oppose this motion.

3

CONCLUSION
Defendants-appellants respectfully request that the Court hold proceedings in
this appeal in abeyance pending further order of the Court.

Respectfully submitted,

/s/ Sharon Swingle
SHARON SWINGLE
[phone]
Attorney, Appellate Staff
Civil Division, Room 7250
Department of Justice
950 Pennsylvania Ave., N.W.
Washington, D.C. 20530-0001

FEBRUARY 2017

4

CERTIFICATE OF SERVICE
I hereby certify that on February 24, 2017, I filed the foregoing DefendantsAppellants’ Motion to Hold Proceedings in Abeyance and served opposing counsel
through the CM/ECF system.

/s/ Sharon Swingle
SHARON SWINGLE
Counsel for Defendants-Appellants

CERTIFICATE OF COMPLIANCE
I hereby certify that the foregoing motion complies with the type-volume
limitations of Fed. R. App. P. 27(d)(2) because it contains 471 words, excluding the
portions of the motion identified in Fed. R. App. P. 32(f).

/s/ Sharon Swingle
SHARON SWINGLE
Counsel for Defendants-Appellants

6