Dan MANCINELLI, Plaintiff-Appellee, v. INTERNATIONAL BUSINESS MACHINES CORPORATION, Defendant-Appellant

Dissent to Order by

Pursuant to the parties’ joint motion for dismissal, the Memorandum disposition, filed June 13, 1996, is withdrawn. The appeal is DISMISSED and the case is REMANDED to the district court for its determination of whether its judgment should be vacated. See U.S. Bancorp Mortgage Co. v. Bonner Mall Partnership, — U.S. -, -, 115 S.Ct. 386, 393 , 130 L.Ed.2d 233 (1994); Dilley v. Gunn, 64 F.3d 1365, 1371 (9th Cir.1995).

KLEINFELD, Circuit Judge, dissenting:

This case went all through the appellate process. After we decided it and issued a memorandum disposition, the parties settled. We do not know the terms of the settlement.

Our order today, withdrawing our disposition, is based on the parties’ stipulation that the disposition should be withdrawn, nothing else. We have not reconsidered the disposition on the merits. I dissent from the order because I think there is a substantial risk that other litigants might infer that we have reconsidered our disposition and withdrawn it based on the merits of the case.

U.S. Bancorp Mortgage Co. v. Bonner Mall Partnership, — U.S. -, 115 S.Ct. 386 , 130 L.Ed.2d 233 (1994) establishes that “[i]t is petitioner’s burden ... to…