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

Filing 165

AMENDED ORDER of USCA (17-35106) 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)

Case: 2:17-cv-00141-JLR Document 165 Filed 03/17/17 Page 1 1 of 2
Case 17-35105, 03/17/2017, ID: 10362285, DktEntry: 191-1, Page of 2

FILED

FOR PUBLICATION

MAR 17 2017

UNITED STATES COURT OF APPEALS

MOLLY C. DWYER, CLERK

FOR THE NINTH CIRCUIT
STATE OF WASHINGTON and STATE
OF MINNESOTA,
Plaintiffs-Appellees,

No.

U.S. COURT OF APPEALS

17-35105

D.C. No. 2:17-cv-00141
Western District of Washington,
Seattle

v.
AMENDED ORDER
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.
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 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.

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Case 17-35105, 03/17/2017, ID: 10362285, DktEntry: 191-1, Page of 2

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.

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