Ellis
Ellis v. United States District Court for the Western District of Washington
Opinion
Lead Opinion
ORDER
We hereby DENY Respondent’s Motion for Recall and Stay of Mandate because, due to the nature of mandamus proceedings, we have not issued a “mandate.” As we explain below, our grant of Ellis’s petition for a writ of mandamus operated as “a writ of mandate,” which took immediate effect.
A writ of mandate is “an order from an appellate court directing a lower court to take a specified action.” Black’s Law Dictionary 973 (7th ed.1999). Because a writ *1023 of mandate functions as an order, we do not issue along with it a “mandate” in the sense of a secondary decree relinquishing jurisdiction over the case to the district court. See Sgaraglino v. State Farm Fire & Cas. Co., 896 F.2d 420, 421 (9th Cir.1990) (defining the “issuance of the mandate” as “returning] [the case] to the district court’s jurisdiction”); Nelson, Goelz & Watts, Federal Ninth Circuit Civil Appellate Practice (The Rutter Group 2003) § 13:323 (“The court does not issue a separate mandate after it grants or denies mandamus relief. The order is effective immediately.”).
Indeed, in the context of an extraordinary writ such as mandamus, there is no need for us to relinquish our jurisdiction to the district court…
Dissenting Opinion
Gould, J.
with whom KLEINFELD, Circuit Judge, concurs, dissenting.
I respectfully dissent. There is no good reason why we cannot stay our mandate as a courtesy to the District Court-respondent, which has indicated its intent to file, with the United States Supreme Court, a petition for a writ of certiorari. I do not understand why my colleagues, who routinely grant stays of mandate to almost any party who wishes to present a non-frivolous claim to the Supreme Court, turn a blind eye on the District Court-respondent here, telling it “no dice” from us but if you want you may feel free to try for a remedy by applying to yourself for the relief of a stay. If the District Court has authority to suspend proceedings, and to delay implementation of our mandate, and if such a delay does not jeopardize prosecution, all to the end of permitting a petition for a writ of certiorari to be filed by the District Court-respondent and acted upon, in the Supreme Court’s discretion, before events render the legal issue moot, then the District Court-respondent may have a remedy but it is more complex and cumbersome than is necessary. To my thinking, it is not sound for us to encourage the District…