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

Filing 151

ORDER of USCA (17-35105) as to 53 Notice of Appeal, filed by U.S. Department of Homeland Security, John Kelly, United States of America, Tom Shannon, Donald J. Trump (SG)

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Case: 2:17-cv-00141-JLR Document 151 Filed 03/15/17 Page 1 1 of 2 Case 17-35105, 03/15/2017, ID: 10358462, DktEntry: 190-3, Page of 2 FILED FOR PUBLICATION MAR 15 2017 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT STATE OF WASHINGTON; STATE OF MINNESOTA, Plaintiffs-Appellees, No. 17-35105 D.C. No. 2:17-cv-00141 Western District of Washington, Seattle v. 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, ORDER Defendants-Appellants. Before: CANBY, CLIFTON, and FRIEDLAND, Circuit Judges. 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 Case 17-35105, 03/15/2017, ID: 10358462, DktEntry: 190-3, Page of 2 Case: 2:17-cv-00141-JLR Document 151 Filed 03/15/17 Page 2 2 of 2 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 the concurrence of Judge Reinhardt and the dissent of Judge Bybee. Filings by other judges may follow. 2

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