In Re United States , 875 F.3d 1177 ( 2017 )

FILED
FOR PUBLICATION
NOV 21 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
In re: UNITED STATES OF AMERICA; No. 17-72917
DONALD J. TRUMP; U.S.
DEPARTMENT OF HOMELAND D.C. Nos. 3:17-cv-05211-WHA
SECURITY; ELAINE C. DUKE, 3:17-cv-05235-WHA
______________________________ 3:17-cv-05329-WHA
3:17-cv-05380-WHA
UNITED STATES OF AMERICA; 3:17-cv-05813-WHA
DONALD J. TRUMP; U.S. Northern District of California,
DEPARTMENT OF HOMELAND San Francisco
SECURITY; ELAINE C. DUKE, in her
official capacity as Acting Secretary of the
Department of Homeland Security, ORDER
Petitioners,
v.
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF
CALIFORNIA, SAN FRANCISCO,
Respondent,
REGENTS OF THE UNIVERSITY OF
CALIFORNIA; JANET NAPOLITANO,
In her official capacity as President of the
University of California; STATE OF
CALIFORNIA; STATE OF MAINE;
STATE OF MINNESOTA; STATE OF
MARYLAND; CITY OF SAN JOSE;
DULCE GARCIA; MIRIAM GONZALEZ
AVILA; VIRIDIANA CHABOLLA
MENDOZA; NORMA RAMIREZ;
COUNTY OF SANTA CLARA;
SERVICE EMPLOYEES
INTERNATIONAL UNION LOCAL 521;
JIRAYUT LATTHIVONGSKORN;
SAUL JIMENEZ SUAREZ,
Real Parties in Interest.
Before: WARDLAW, GOULD, and WATFORD, Circuit Judges.
Before the court is the government’s emergency motion for a stay of our
order of November 16, 2017, which denied the government’s petition for a writ of
mandamus and lifted a temporary stay that we had previously imposed. As the
order denying mandamus relief was effective immediately upon its issuance, see
Ellis v. U.S. Dist. Court, 360 F.3d 1022, 1023 (9th Cir. 2004) (en banc),
jurisdiction now lies with the district court, and not with this court. Compare
Daimler-Benz Aktiengesellschaft v. U.S. Dist. Court, 805 F.2d 340, 341–42 (10th
Cir. 1986) (ordering a stay of district court proceedings before any order denying
or granting mandamus had issued). If the government seeks further relief from this
court, it must do so in a new petition for mandamus. The government’s emergency
motion for a stay is therefore DISMISSED.
IT IS SO ORDERED.
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