State of Washington v. Trump, 031717 FED9, 17-35105

Docket Nº:17-35105
Party Name:STATE OF WASHINGTON and STATE OF MINNESOTA, Plaintiffs-Appellees, 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, Defendants-Appellants.
Judge Panel:Before: CANBY, CLIFTON, and FRIEDLAND, Circuit Judges. REINHARDT, J., concurring in the denial of en banc rehearing: BERZON, J., concurring in the denial of reconsideration en banc. KOZINSKI, Circuit Judge, with whom Circuit Judges BYBEE, CALLAHAN, BEA and IKUTA join, dissenting from the denial o...
Case Date:March 17, 2017
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit



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.

No. 17-35105

United States Court of Appeals, Ninth Circuit

March 17, 2017

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

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. 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.

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!

BERZON, J., concurring in the denial of reconsideration en banc.

I concur in the court's denial of rehearing en banc regarding vacatur. I have full confidence in the panel's decision. I write to emphasize that, although one would think otherwise from the three dissents from denial of rehearing en banc, judges are empowered to decide issues properly before them, not to express their personal views on legal questions no one has asked them. There is no appeal currently before us, and so no stay motion pending that appeal currently before us either. In other words, all the merits commentary in the dissents filed by a small minority of the judges of this court is entirely out of place.

Here is the background: A three-judge panel of this court decided that the Government was not entitled to a stay pending appeal of the district court's Temporary Restraining Order enjoining enforcement of the President's January 27, 2017 Executive Order. Washington v. Trump, 847 F.3d 1151, 1156 (9th Cir. 2017). The Government chose not to challenge the panel's order further but instead to draft a revised Executive Order, revoking the one that was before this court's panel. Exec. Order 13780 of March 6, 2017 §§ l(i), 13, 82 Fed. Reg. 13209 (published Mar. 9, 2017). That Order was expressly premised on the panel opinion. Id. § 1(c), (i). The Government has since elected to dismiss this appeal, and with it its stay request; it filed an unopposed motion to dismiss, which we granted, and did not in that motion ask that the panel, or an en banc court, vacate the panel's opinion.1

So there is now no live controversy before our court regarding either the merits of the underlying case or the propriety of the original restraining order. "In our system of government, courts have no business deciding legal disputes or expounding on law in the absence of . . . a case or controversy." Already, LLC v. Nike, Inc., 133 S.Ct. 721, 726 (2013) (internal quotation marks omitted) (citing DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 341 (2006)).

One judge of the court nonetheless called for a vote of the active judges as to whether to convene an en banc court for the sole purpose of vacating the panel's opinion. As the panel's March 15, 2017 order, denying rehearing en banc, notes, vacating an opinion where the losing party's voluntary actions have mooted the appeal is ordinarily improper. See U.S. Bancorp Mortg. Co. v. Bonner Mall P'ship, 513 U.S. 18, 25-27 (1994); United States v. Payton, 593 F.3d 881, 883-86 (9th Cir. 2010). And as Judge Bybee's dissent reflects, the only justification offered for vacating the opinion was a disagreement on the merits.

It is simply not an "exceptional circumstance[]" justifying the "extraordinary remedy of vacatur" that members of our court disagree with a panel opinion. See Bonner Mall, 513 U.S. at 26, 29. I am aware of no instance in which we have convened an en banc panel to vacate a precedential opinion on the basis of its merits, where no party seeks further appellate review or vacatur. Compare Animal Legal Def. Fund v. Veneman, 490 F.3d 725, 725-27 (9th Cir. 2007) (en banc) (Bybee, J., concurring) (vacating a panel opinion in light of a settlement agreement dependent on vacatur reached after a majority of the court already had voted to take the case en banc and designated the panel's opinion non-precedential). Rather, it is "inappropriate . . . to vacate mooted cases, in which we have no constitutional power to decide the merits, on the basis of assumptions about the merits." Bonner Mall, 513 U.S. at 27.

We as a court make the vast majority of our decisions through three-judge panels, and we abide by the decisions of those panels absent a decision by a majority of the active judges that there is good reason to reconsider the case with a larger, eleven-judge panel, determined by lot. See Fed. R. App. P. 35; Ninth Cir. R. 35-3; Ninth Cir. Gen. Order 5.1-5.5. Reconsidering a case before an en banc panel after full argument and coming to a new, reasoned decision-which might reach the same result as the earlier panel decision or might conclude otherwise-is an entirely different matter from what was sought here: wiping out the panel's decision and leaving a vacuum. The en banc court would have no authority whatever to opine on the merits of the case or the propriety of the district court's stay, as there is simply no live appeal before us.

Article III of the United States Constitution precludes us from revisiting the issues addressed in the panel opinion at this point, as any decision rendered by the en banc court necessarily would be advisory. See Already LLC, 133 S.Ct. at 726. A few dissenting colleagues have nonetheless used the decision by the active judges of the court to decline to rewrite history as the occasion to attack the panel opinion on myriad grounds. As there is nothing pending before us, it would be entirely inappropriate to respond in detail-which, I presume, is precisely why the panel did not do so.

In some ways that is too bad. There is much to discuss, and such discussion would show that the panel's opinion was quite correct.

To take but one example: The cases Judge Bybee cites regarding the applicability of Kleindienst v. Mandel, 408 U.S. 753 (1972), do not govern the case as it came to the panel. None addresses whether the "facially legitimate and bona fide reason" standard articulated in Mandel applies to executive action that categorically revokes permission to enter or reenter the country already granted by the Executive Branch. See Kerry v. Din, 135 S.Ct. 2128, 2139 (2015) (Kennedy, J., concurring in the judgment); Fiallo v. Bell, 430 U.S. 787, 792-95 (1977); Cardenas v. United States, 826 F.3d 1164, 1171-72 (9th Cir. 2016); An Na Peng v. Holder, 673 F.3d 1248, 1258 (9th Cir. 2012); Bustamante v. Mukasey, 531 F.3d 1059, 1062 (9th Cir. 2008); Padilla-Padilla v. Gonzales, 463 F.3d 972, 978-79 (9th Cir. 2006); Nadarajah v. Gonzales, 443 F.3d 1069, 1082 (9th Cir. 2006); Barthelemy v. Ashcroft, 329 F.3d 1062, 1065-66 (9th Cir. 2003); Noh v. INS, 248 F.3d 938, 942 (9th Cir. 2001). That the Second Circuit applied Mandel's test to a program requiring certain non-immigrants to provide information to authorities (and to face removal only after undergoing "generally applicable legal [removal] proceedings to enforce pre-existing immigration laws"), see Rajah v. Mukasey, 544 F.3d 427, 439 (2d Cir. 2008), in no way portends that application of Mandel was appropriate here. The question before our panel, unlike the one in Rajah, concerned a sweeping Executive Order that barred from entry whole groups of legal permanent residents and visa holders, among many others, without any individualized determination regarding the revocation. Presumably recognizing the weight of these individuals' constitutional interests, the President excepted them from the revised Executive Order. See Exec. Order 13780 § 3.

Judges Kozinski and Bea likewise used the filing of the order denying rehearing en banc as to the question of vacating the...

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