State of Washington, et al v. Donald J. Trump, et al
Filed Order for PUBLICATION Amending Order Filed 3/15/17 (WILLIAM C. CANBY, RICHARD R. CLIFTON and MICHELLE T. FRIEDLAND) (Concurrence by Judge Reinhardt, Concurrence by Judge Berzon, Dissent by Judge Kozinski, Dissent by Judge Bybee and Dissent by Judge Bea - (SEE ATTACHED FOR FULL TEXT)) This court in a published order previously denied a motion of the government for a stay of a restraining order pending appeal. 847 F.3d 1151 (9th Cir. 2017). That order became moot when this court granted the government’s unopposed motion to dismiss its underlying appeal. Order, Mar. 8, 2017. No party has moved to vacate the published order. A judge of this court called for a vote to determine whether the court should grant en banc reconsideration in order to vacate the published order denying the stay. The matter failed to receive a majority of the votes of the active judges in favor of en banc reconsideration. Vacatur of the stay order is denied. See U.S. Bancorp Mortgage Co. v. Bonner Mall Partnership, 513 U.S. 18 (1994) (holding that the “extraordinary remedy of vacatur” is ordinarily unjustified when post-decision mootness is caused by voluntary action of the losing party).
This order is being filed along with a concurrence from Judge Reinhardt, a concurrence from Judge Berzon, a dissent from Judge Kozinski, a dissent from Judge Bybee, and a dissent from Judge Bea. No further opinions will be filed.
--[Edited: Attached Webcite. 03/24/2017 by RY] (RMM) [Entered: 03/17/2017 05:57 PM]
Case: 17-35105, 03/17/2017, ID: 10362285, DktEntry: 191-2, Page 1 of 1
Washington v. Trump, No. 17-35105
MAR 17 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
REINHARDT, J., concurring in the denial of en banc rehearing:
I concur in our court’s decision regarding President Trump’s first Executive
Order – the ban on immigrants and visitors from seven Muslim countries. I also
concur in our court’s determination to stand by that decision, despite the effort of a
small number of our members to overturn or vacate it. Finally, I am proud to be a
part of this court and a judicial system that is independent and courageous, and that
vigorously protects the constitutional rights of all, regardless of the source of any
efforts to weaken or diminish them.
Judge Kozinski’s diatribe, filed today, confirms that a small group of judges,
having failed in their effort to undo this court’s decision with respect to President
Trump’s first Executive Order, now seek on their own, under the guise of a dissent
from the denial of en banc rehearing of an order of voluntary dismissal, to decide
the constitutionality of a second Executive Order that is not before this court. That
is hardly the way the judiciary functions. Peculiar indeed!
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