Washington v. Trump
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''State of Washington and State of Minnesota v. Trump'', 847 F.3d 1151 (9th Cir. 2017), was a lawsuit that challenged the lawfulness and constitutionality of Executive Order 13769, an executive order signed by U.S. President Donald Trump. A few days after the order was signed, the state of Washington filed suit alleging that the executive order is unconstitutional because it, among other reasons, violates the Fifth Amendment guarantee of equal protection under the law because it was intended to harm and discriminate against their States' residents based upon their national origin or religion, and therefore it also violates the Establishment Clause because it was meant to "disfavor Islam and give preference to Christianity". The federal government argued that the Constitution grants the President of the United States "unreviewable authority" over immigration matters and that the non-citizens the executive order affects do not have
due process Due process of law is application by state of all legal rules and principles pertaining to the case so all legal rights that are owed to the person are respected. Due process balances the power of law of the land and protects the individual pers ...
rights. On February 3, 2017, Judge
James Robart James Louis Robart (born September 2, 1947) is a senior United States district judge of the United States District Court for the Western District of Washington. Early life and education Robart was born in Seattle, Washington, in 1947. Robart's ...
issued a nationwide temporary restraining order which forbade the federal government from enforcing certain provisions of the order. The federal government, in turn, filed an appeal with the United States Court of Appeals for the Ninth Circuit. That court, however, denied the government's request to stay the temporary restraining order as the federal government failed to show it was likely to succeed at trial, thereby maintaining the prohibition on the government in enforcing the executive order.


Background

During his initial election campaign, Trump had proposed a temporary, conditional, and "total and complete" ban on
Muslim Muslims ( ar, المسلمون, , ) are people who adhere to Islam, a monotheistic religion belonging to the Abrahamic tradition. They consider the Quran, the foundational religious text of Islam, to be the verbatim word of the God of Abrah ...
s entering the United States. His proposal was met by opposition by U.S. politicians.
Mike Pence Michael Richard Pence (born June 7, 1959) is an American politician who served as the 48th vice president of the United States from 2017 to 2021 under President Donald Trump. A member of the Republican Party, he previously served as the 50th ...
and
James Mattis James Norman Mattis (born September 8, 1950) is a retired United States Marine Corps four-star general who served as the 26th US secretary of defense from 2017 to 2019. During his 44 years in the Marine Corps, he commanded forces in the Persian ...
were among those who opposed the proposal. On June 12, in reference to the 2016 Orlando nightclub shooting that occurred on the same date, Trump, via Twitter, renewed his call for a Muslim immigration ban. On June 13, Trump proposed to suspend immigration from "areas of the world" with a history of terrorism, a change from his previous proposal to suspend Muslim immigration to the U.S; the campaign did not announce the details of the plan at the time, but Jeff Sessions, an advisor to Trump campaign on immigration, said the proposal was a statement of purpose to be supplied with details in subsequent months. In a speech on August 31, 2016, Trump vowed to "suspend the issuance of visas" to "places like Syria and Libya." Donald Trump was elected president of the United States and inaugurated on January 20, 2017. A week later on January 27, he signed the executive order. Affected travelers immediately began filing legal challenges to the order through habeas corpus petitions and injunctive relief. On January 30, 2017, the
State of Washington Washington (), officially the State of Washington, is a state in the Pacific Northwest region of the Western United States. Named for George Washington—the first U.S. president—the state was formed from the western part of the Washington ...
— represented by Washington State Attorney General Bob Ferguson, with the support of Washington Governor Jay Inslee—filed a civil action in the
United States District Court for the Western District of Washington The United States District Court for the Western District of Washington (in case citations, W.D. Wash.) is the federal district court whose jurisdiction comprises the following counties of the state of Washington: Clallam, Clark, Cowlitz, Grays H ...
, against Trump and the U.S. Department of Homeland Security. The state's suit asked the court for declaratory relief (a declaration that the executive order violates the Constitution) and injunctive relief (to block enforcement of the executive order). The state also filed a motion for a temporary restraining order, seeking an immediate halt to the executive order's implementation. On February 1, 2017, an amended complaint was filed adding the
State of Minnesota Minnesota () is a state in the upper midwestern region of the United States. It is the 12th largest U.S. state in area and the 22nd most populous, with over 5.75 million residents. Minnesota is home to western prairies, now given over to i ...
as a plaintiff alongside Washington.


District Court proceedings

The State of Washington alleged nine
causes of action A cause of action or right of action, in law, is a set of facts sufficient to justify suing to obtain money or property, or to justify the enforcement of a legal right against another party. The term also refers to the legal theory upon which a p ...
in its original
complaint In legal terminology, a complaint is any formal legal document that sets out the facts and legal reasons (see: cause of action) that the filing party or parties (the plaintiff(s)) believes are sufficient to support a claim against the party ...
. A tenth cause of action was added in the amended complaint filed by Washington and Minnesota.FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
''Washington v. Trump'', 2:17-cv-00141-JLR (W.D. Wash. February 1, 2017).
The Government argued that the federal courts do not have the authority to review executive actions regarding immigration because the Constitution gives the President of the United States "unreviewable authority" over immigration matters. On February 3, 2017, Judge
James Robart James Louis Robart (born September 2, 1947) is a senior United States district judge of the United States District Court for the Western District of Washington. Early life and education Robart was born in Seattle, Washington, in 1947. Robart's ...
issued a temporary restraining order enjoining the enforcement of the executive order nationwide, and entered a temporary ban regarding immigration restrictions, then directed the parties to the action to file any briefs in support of a
preliminary injunction An injunction is a legal and equitable remedy in the form of a special court order that compels a party to do or refrain from specific acts. ("The court of appeals ... has exclusive jurisdiction to enjoin, set aside, suspend (in whole or in par ...
by February 6, 2017. White House Press Secretary Sean Spicer said in a statement "At the earliest possible time, the Department of Justice intends to file an emergency stay of this outrageous order and defend the executive order of the President, which we believe is lawful and appropriate. The President's order is intended to protect the homeland and he has the constitutional authority and responsibility to protect the American people." Spicer immediately issued an updated statement removing the word 'outrageous'. During the proceedings, Judge Robart requested the defense provide statistics on the number of arrests of nationals from the seven countries since 9/11, thus supporting their burden of proof. The defense failing to provide such evidence forced Robart to incorrectly conclude no extremist arrests had occurred. Trump responded by tweeting, "The opinion of this so-called judge, which essentially takes law-enforcement away from our country, is ridiculous and will be overturned!" Senate Minority Leader Chuck Schumer said that the President showed "a disdain for an independent judiciary that doesn't always bend to his wishes and a continued lack of respect for the Constitution, making it more important that the Supreme Court serve as an independent check on the administration. With each action testing the Constitution, and each personal attack on a judge, President Trump raises the bar even higher for Judge Gorsuch's nomination to serve on the Supreme Court. His ability to be an independent check will be front and center throughout the confirmation process." On February 13, Judge Robart issued a preliminary injunction on the executive order. The District Court stated in its order that since the 9th Circuit Court had ruled the TRO would be treated as a preliminary injunction, the Court need not continue briefing on the request for preliminary injunction, but instead directed the parties to commence discovery proceedings, stating in his order the matters bound up in the TRO/injunction were on appeal to the 9th Circuit Court of Appeals. On March 13, 2017 the Washington State Attorney General filed a second amended complaint addressing executive order 13780 and moved the court to enjoin enforcement of the order under the current preliminary injunction previously issued which barred enforcement of executive order 13769 by filing a motion for emergency enforcement of the preliminary injunction. The State of Washington in their second amended complaint asked the Court to Declare that Sections 3(c), 5(a)–(c), and 5(e) of the First Executive Order 13769 are unauthorized by and contrary to the Constitution and laws of the United States, and that the United States should be enjoined from implementing or enforcing Sections 3(c), 5(a)–(c), and 5(e) of the First Executive Order, including at all United States borders, ports of entry, and in the issuance of visas, pending further orders from this Court. The State of Washington also asked the Court to declare that Sections 2(c) and 6(a) of the Second Executive Order 13780 are unauthorized by and contrary to the Constitution and laws of the United States, and that the United States should also be enjoined from implementing or enforcing Sections 2(c) and 6(a) of the Second Executive Order 13780, including at all United States borders, ports of entry, and in the issuance of visas, and enjoin the United States from implementing or enforcing Section 5(d) of the First Executive Order 13769 and enjoin the United States from implementing or enforcing Section 6(b) of the Second Executive Order 13780. The Court subsequently issued an order directing the United States to file a response to the emergency motion to enforce the preliminary injunction by March 14, 2017.


Ninth Circuit proceedings

On February 4, 2017, the United States filed an emergency motion in the
U.S. Court of Appeals for the Ninth Circuit The United States Court of Appeals for the Ninth Circuit (in case citations, 9th Cir.) is the U.S. federal court of appeals that has appellate jurisdiction over the U.S. district courts in the following federal judicial districts: * District ...
, seeking a stay of the District Court's temporary restraining order. In its request, the federal government contended that the temporary restraining order should be stayed because the judicial branch lacks the authority to review presidential actions over immigration. The 9th Circuit denied the request for an immediate stay and scheduled oral arguments. A three-judge motions panel of the Ninth Circuit heard oral argument on the federal government's motion for a stay on February 7. The panel consisted of Judges
William Canby William Cameron Canby Jr. (born May 22, 1931) is a Senior United States circuit judge of the United States Court of Appeals for the Ninth Circuit, sitting in Phoenix, Arizona. As both a professor at Arizona State University College of Law and ...
,
Richard Clifton Richard Randall “Rick” Clifton (born November 13, 1950) is a senior United States circuit judge of the United States Court of Appeals for the Ninth Circuit. Education and legal training Clifton received an Artium Baccalaureus degree at Princ ...
, and
Michelle Friedland Michelle Taryn Friedland (born July 4, 1972) is a United States federal judge, United States circuit judge of the United States Court of Appeals for the Ninth Circuit. Biography Early life and education Friedland was born in Berkeley, Californi ...
. The arguments were live streamed as is typical for the 9th Circuit but rare in other federal courts. Washington Solicitor General
Noah Purcell Noah Guzzo Purcell (born 1980) is an American attorney serving as the solicitor general of the U.S. state of Washington. He gained national attention when he halted President Donald Trump's first Travel Ban with a successful lawsuit on behalf o ...
represented the plaintiff-appellee states of Washington and Minnesota. Lawyers August Flentje and
Edwin Kneedler Edwin Smiley Kneedler (born January 4, 1946) is an American lawyer who has served as Deputy United States Solicitor General since 1993. As of June 2020, he has argued more cases before the Supreme Court of the United States than any other active ...
represented the U.S. government to defend the order, replacing Acting Associate Attorney General
Chad Readler Chad Andrew Readler (; born August 23, 1972)Acting Solicitor General
Noel Francisco Noel John Francisco (born August 21, 1969) is an American lawyer who served as Solicitor General of the United States from 2017 to 2020. He was the first Asian Americans, Asian American confirmed by the United States Senate to hold the position. ...
, whom the Trump administration removed from that role just hours before the February 7 hearing.


''Amici curiae'' and proposed intervenors

On February 5, a group of 97 companies, mostly from the tech industry, filed an amicus brief opposing the executive order. Companies that signed onto the amicus included Airbnb, Uber, Twitter, Google, Facebook, Apple, Microsoft, Dropbox, eBay,
GoPro GoPro, Inc. (marketed as GoPro and sometimes stylized as GoPRO) is an American technology company founded in 2002 by Nick Woodman. It manufactures action cameras and develops its own mobile apps and video-editing software. Founded as Woodman La ...
, Lyft, Spotify, Yelp and Levi Strauss & Co. Additional amicus briefs were filed by the Fred T. Korematsu Center for Law and Equality at
Seattle University Seattle University (SeattleU) is a private Jesuit university in Seattle, Washington. Seattle University is the largest independent university in the Northwestern United States, with over 7,500 students enrolled in undergraduate and graduate prog ...
, the
ACLU The American Civil Liberties Union (ACLU) is a nonprofit organization founded in 1920 "to defend and preserve the individual rights and liberties guaranteed to every person in this country by the Constitution and laws of the United States". T ...
, and a group of law professors and law school clinicians. On the same day, the
State of Hawaii Hawaii ( ; haw, Hawaii or ) is a state in the Western United States, located in the Pacific Ocean about from the U.S. mainland. It is the only U.S. state outside North America, the only state that is an archipelago, and the only state ...
filed a motion to
intervene Intervention, Interventions, The Intervention or An Intervention may refer to: Entertainment Film and television * ''Intervention'' (1968 film), a Russian film * ''Intervention'' (2007 film), a British film * ''The Intervention'', a 2008 film ...
in the case on the side of Minnesota and Washington. The motion, prepared by
Hawaii Attorney General The Attorney General of Hawaii ( haw, Loio Kuhina) is the chief legal officer and chief law enforcement officer of Hawaii. In present-day statehood within the United States, the Attorney General is appointed by the elected governor with the approv ...
Doug Chin Douglas S. Chin (born July 21, 1966) is an American attorney and politician who served as the 13th Lieutenant Governor of Hawaii from February to December 2018. A member of the Democratic Party, Chin previously was the 14th Attorney General of Haw ...
, former acting Solicitor General
Neal Katyal Neal Kumar Katyal (born March 12, 1970) is an American lawyer and academic. He is a partner at Hogan Lovells and the Paul and Patricia Saunders Professor of National Security Law at Georgetown University Law Center. During the Obama administrati ...
, and others, states that the executive order halted tourism in Hawaii "from the banned countries, and chilled tourism from many more, threatening one of the pillars of the state's economy. It prevented a number of Hawaii's residents from traveling abroad. It required Hawaii to participate in discrimination against members of the Muslim faith." However, the court denied the motion to intervene.Ariane de Vogue
9th Circuit Court of Appeals to hear challenge to Trump's ban Tuesday
CNN (February 7, 2017).
Hawaii has filed its own suit, in the
U.S. District Court for the District of Hawaii The United States District Court for the District of Hawaii (in case citations, D. Haw.) is the principal trial court of the United States Federal Court System in the state of Hawaii. The court's territorial jurisdiction encompasses the st ...
. On February 6, a group of former top U.S. foreign policy, national security and intelligence officials filed a joint declaration in support of Washington and Minnesota. The group stated that the executive order "cannot be justified on national security or foreign policy grounds"; was "ill-conceived, poorly implemented and ill-explained"; and injures U.S. interests. Madeleine Albright, Avril Haines, Michael Hayden, John Kerry,
John E. McLaughlin John Edward McLaughlin (born June 15, 1942) is an American intelligence official who served as Deputy Director of Central Intelligence and briefly as acting Director of Central Intelligence. He currently serves as a Senior Fellow and Distinguish ...
, Lisa Monaco,
Michael Morell Michael Joseph Morell (; born September 4, 1958) is an American former career intelligence analyst. He served as the deputy director of the Central Intelligence Agency from 2010 to 2013 and twice as its acting director, first in 2011 and then fr ...
, Janet Napolitano, Leon Panetta, and
Susan Rice Susan Elizabeth Rice (born November 17, 1964) is an American diplomat, policy advisor, and public official serving as Director of the United States Domestic Policy Council since 2021. A member of the Democratic Party, Rice served as the 27th ...
signed the declaration. On the same day, amicus briefs in support of the challenge were filed by
Americans United for Separation of Church and State Americans United for Separation of Church and State (Americans United or AU for short) is a 501(c)(3) nonprofit organization that advocates for the disassociation of religion and religious organizations from government. The separation of church ...
and the Southern Poverty Law Center; HIAS; the
Anti-Defamation League The Anti-Defamation League (ADL), formerly known as the Anti-Defamation League of B'nai B'rith, is an international Jewish non-governmental organization based in the United States specializing in civil rights law. It was founded in late Septe ...
; the Service Employees International Union (SEIU); and a group of four constitutional scholars (Kristin Collins, Judith Resnik,
Stephen I. Vladeck Stephen Isaiah Vladeck (born September 26, 1979) is the Charles Alan Wright Chair in Federal Courts at the University of Texas School of Law, where he specializes in national security law, especially with relation to the prosecution of war cr ...
, and
Burt Neuborne Burt Neuborne (born January 1, 1941) is the Norman Dorsen Professor of Civil Liberties at New York University School of Law and the founding legal director of the Brennan Center for Justice.District of Columbia, represented by their respective attorneys general. The states signing on to the brief were
New York New York most commonly refers to: * New York City, the most populous city in the United States, located in the state of New York * New York (state), a state in the northeastern United States New York may also refer to: Film and television * '' ...
, California, Connecticut, Delaware, Illinois, Iowa, Maine, Maryland, Massachusetts, New Mexico, Oregon, Pennsylvania, Rhode Island, Vermont, and Virginia.
Memorandum of Law of the States of New York, California, Connecticut, Delaware, Illinois, Iowa, Maine, Maryland, Massachusetts, New Mexico, Oregon, Pennsylvania, Rhode Island, Vermont, and Virginia, and the District of Columbia As Amici Curiae States in Support of Plaintiffs-Appellees
No. 17-35105 (9th Cir. February 6, 2017).
Brief of the States of Pennsylvania, Massachusetts, New York, California, Connecticut, Delaware, Illinois, Iowa, Maine, Maryland, New Hampshire, New Mexico, North Carolina, Oregon, Rhode Island, Vermont, and Virginia, and the District of Columbia as Amici Curiae States in Support of Plaintiffs-Appellees
No. 17-35105 (9th Cir. February 7, 2017) (amended amicus brief, adding New Hampshire and North Carolina). *Patrick McGreevy

''Los Angeles Times'' (February 6, 2017).
This followed the release of a joint statement by the attorneys general calling the executive order "unconstitutional, un-American and unlawful."
Edward Isaac Dovere Edward is an English given name. It is derived from the Anglo-Saxon name ''Ēadweard'', composed of the elements '' ēad'' "wealth, fortune; prosperous" and '' weard'' "guardian, protector”. History The name Edward was very popular in Anglo-Sax ...

Democratic state attorneys general vow action against refugee order
''Politico'' (January 29, 2017).
On February 7, New Hampshire and North Carolina as represented by their respective attorneys general joined the amicus brief in support of the challenge. This brings the total states in support of the challenge to 17 in addition to the District of Columbia. Also on February 7, 45 additional companies and 14 startups also joined the tech industry amicus brief in support of the challenge. Notable companies include
Adobe Adobe ( ; ) is a building material made from earth and organic materials. is Spanish for ''mudbrick''. In some English-speaking regions of Spanish heritage, such as the Southwestern United States, the term is used to refer to any kind of e ...
, Akamai,
GoDaddy GoDaddy Inc. is an American publicly traded Internet domain registrar and web hosting company headquartered in Tempe, Arizona, and incorporated in Delaware. , GoDaddy has more than 21 million customers and over 6,600 employees worldwide. The co ...
, HP Inc,
SpaceX Space Exploration Technologies Corp. (SpaceX) is an American spacecraft manufacturer, launcher, and a satellite communications corporation headquartered in Hawthorne, California. It was founded in 2002 by Elon Musk with the stated goal of ...
, and Tesla. This brings the total number of companies in support of the challenge to 156.


Denial of stay

On February 9, the three-judge panel of the Ninth Circuit, in a per curiam decision, unanimously denied the request for a stay of the temporary restraining order. The court, quoting the Supreme Court case '' Nken v. Holder'', made clear that "a stay is not a matter of right, even if irreparable injury might otherwise result."''Washington v. Trump'' No. 17-35105 (9th Circ.), slip op. at 18 Because of this, the court needed to answer four questions under ''Nken'', with the first two being most important: "(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceedings; and (4) where the public interest lies." The court denied the stay as they found the federal government failed to prove the first two questions, and that the last two tip in favor of the plaintiffs, Washington and Minnesota. The court ruled that the federal government is unlikely to succeed on the merits against Washington's due process claim. Though the court discussed Washington State's contention that the executive order violates the First Amendment prohibition on religious discrimination, they withheld ruling on that claim, as being unlikely to succeed against a due process claim is sufficient to fail the first question. The federal government did not provide evidence or argument as to why the executive order needed to be enacted immediately and thus a stay required. In showing the federal government was unlikely to succeed on the merits against a due process claim, the court argued that it showed the States and their citizens would be irreparably harmed by a stay as "the deprivation of constitutional rights 'unquestionably constitutes irreparable injury.'" The court found that "aspects of the public interest favor both sides", but that in light of the prior three questions, "these competing public inteterests do not justify a stay."


''En banc'' proceedings

The day after the denial of stay, the 9th Circuit ordered the parties to submit supplemental briefs on whether the motion should be reheard '' en banc''. The order was issued at the request of an unidentified judge of the Ninth Circuit to be voted on by all 25 active judges (though, if successful, a rehearing would be by a panel of 11 judges). The parties were instructed to submit their briefs by February 16. On February 16, the Trump administration asked to postpone further proceedings because they expected to replace executive order with a new one the following week. In response, the 9th Circuit issued an order on the same day staying the ''en banc'' review of its previous ruling.


Dismissal of the appeal

On March 6, 2017, President Trump issued Executive Order 13780, which revoked and replaced Executive Order 13769 (at issue in this appeal). Two days later, on March 8, 2017, the government moved to dismiss the appeal as moot, which the Court granted the same day.


Further ''en banc'' proceedings

On March 15, 2017, the Ninth Circuit denied rehearing ''en banc''. Judge Stephen Reinhardt added a concurrence, alone, where he wrote "I am proud to be a part of this court and a judicial system that is independent and courageous". Judge Jay Bybee, joined by Judges Alex Kozinski,
Consuelo María Callahan Consuelo María Callahan (born June 9, 1950) is a United States circuit judge of the United States Court of Appeals for the Ninth Circuit. Background Consuelo María Callahan was born June 9, 1950 in Palo Alto, California. She was raised in Fre ...
,
Carlos Bea Carlos Tiburcio Bea (born April 18, 1934) is a Senior United States circuit judge of the United States Court of Appeals for the Ninth Circuit. He was appointed to that court by President George W. Bush in 2003 to replace Judge Charles Edward Wi ...
, and
Sandra Segal Ikuta Sandra Segal Ikuta (born June 24, 1954) is a United States circuit judge of the United States Court of Appeals for the Ninth Circuit. Background Ikuta was born and raised in Los Angeles, California. She completed an Artium Baccalaureus degree ...
dissented from denial of reconsideration, writing that the court had committed "manifest error". On March 17, Judge Kozinski, joined by the other dissenters, added another opinion dissenting from denial of reconsideration. Judge Bea added an additional opinion.''State of Washington v. Trump''
No. 17-35105 (9th Cir. March 17, 2017) (order denied denying reconsideration ''en banc'').
Judge
Marsha Berzon Marsha Lee Berzon ( Siegel; born April 17, 1945) is a Senior United States circuit judge of the United States Court of Appeals for the Ninth Circuit. Education and legal training Berzon graduated with a Bachelor of Arts degree from Radcliffe ...
, however, alone, added a concurrence to the denial of reconsideration where she criticized the dissenters for the procedural irregularity of attempting to reconsider a case without a request by either party and after the appeal had been dismissed.


Subsequent developments


New executive order

On March 17, 2017, Judge Robart refused to grant an additional restraining order after the President's new Executive Order 13780 was blocked by U.S. District Judge Derrick Watson in Honolulu, Hawaii.


The U.S. Supreme Court

In a ''per curiam'' decision, on June 26, 2017, the United States Supreme Court reinstated key provisions narrowed to apply only to foreign nationals who have no "credible claim of a bona fide relationship with a person or entity in the United States" and set case for final consideration in October. The court also granted
certiorari In law, ''certiorari'' is a court process to seek judicial review of a decision of a lower court or government agency. ''Certiorari'' comes from the name of an English prerogative writ, issued by a superior court to direct that the record of ...
and set oral arguments for the fall term.Shear, Michael D.; Liptak, Adam (June 26, 2017). "Supreme Court to Hear Travel Ban Case". The New York Times. ISSN 0362-4331. Retrieved June 26, 2017 In an unsigned statement the Supreme Court stated that denying entry to foreign nationals abroad who have no connection to the United States "does not burden any American party by reason of that party's relationship with the foreign national."


See also

* Legal challenges to Executive Order 13769 * Executive Order 13780 * Legal challenges to the Trump travel ban


References

{{Executive Order 13769 Executive Order 13769 Donald Trump litigation United States immigration and naturalization case law Immigration to the United States Legal history of Washington (state) First Amendment to the United States Constitution Fourteenth Amendment to the United States Constitution Freedom of religion in the United States Articles containing video clips United States Court of Appeals for the Ninth Circuit cases