Before: William C. Canby, Jr. and Kim McLane Wardlaw, Circuit Judges, and Richard Mills,*fn1 District Judge.
This order addresses procedural issues that arose after the filing of our opinion in this matter on July 21, 2009. See United States v. Payton, 573 F.3d 859 (9th Cir. 2009). The issues primarily concern post-opinion mootness and the question whether our opinion should be vacated and the appeal dismissed as moot. We deny vacatur and dismissal.
Our opinion held that a search of Payton's computer was unlawful, and we accordingly reversed the denial of Payton's motion to suppress the fruits of that search. We remanded with instructions to permit Payton to withdraw his conditional guilty plea. See id. at 864-65.
After our opinion was filed, the government asked for and received an extension of time to September 3, 2009, to file a petition for rehearing. The government subsequently decided not to file a petition, and the September 3 deadline passed. On September 8, our Clerk's office issued our mandate, two days early. See Fed. R. App. P. 41(b). The mandate was transmitted to the district court and still appears in its docket. That same day, a judge of our court issued a stop-clock order to our Clerk, which has the effect under our General Orders of extending by 14 days the time to call for rehearing en banc. G.O. 5.4(e). The stop-clock order was timely, having been issued within seven days of the expiration of time for filing petitions for rehearing. G.O. 5.4(d), (e). Recognizing that the mandate had been issued prematurely, our Clerk's office deleted as erroneous the entry in our docket showing that the mandate had issued. The record does not reflect that this correction was sent to or reached the district court.
On September 16, the judge who had stopped the clock called sua sponte for a vote to rehear the case en banc, and requested briefing by the parties as to rehearing en banc. That briefing was ordered on September 21 and was completed by November 4.
Meanwhile, however, on September 14, Payton had moved in district court to withdraw his conditional plea of guilty, pursuant to the mandate from this court that was entered in the district court docket. Relying on that mandate, the government did not oppose the motion and it was granted. The government then moved to dismiss the case and the district court granted the motion.
The government recited these events in its supplemental en banc brief, indicating that the case was finished in the district court. The government further stated that, although it disagreed with our opinion, it did not seek en banc review because, among other reasons, it believed that the decision would "have minimal impact" on law enforcement.
At this point, the judge seeking en banc review noted, correctly, that the case had become moot, and asked our panel to vacate its decision and dismiss the appeal as moot. The panel declined to vacate and dismiss for the following reasons.
First, the mootness did not arise while the decision on appeal was pending, or even while a petition for rehearing was pending. It did not arise because of some external event. It arose because the government, accepting the consequences of our adverse opinion and the mandate that had been entered in the district court, unilaterally determined to dismiss the case. It is true that the mandate was issued in error, but even if we deem the issuance ineffective, that does not change our result. If we vacate our decision in these circumstances, then a party that suffers an adverse opinion from our court can escape the estoppel or precedential consequences of the adverse decision by carrying it out before our mandate properly issues. This precise scenario was anticipated in Armster v. United States District Court, 806 F.2d 1347 (9th Cir. 1986), in which we refused mandamus to vacate an earlier decision on the ground of post-decision mootness allegedly caused by a change in the government's administrative position. We explained:
Implicitly, the Justice Department urges us to adopt a new uniform rule, viz. when a losing party acts in accordance with an appellate court's decision before it becomes "final," that decision becomes ipso jure moot . . . .
. . . [T]he new rule suggested by the Justice Department would encourage manipulation of the judicial system by wrong-doers. It would allow them to seek the benefits of a favorable judicial decision but escape some of the more significant adverse consequences of an unfavorable judgment. In the case of the government, heads of administrative agencies and other public officials could as a matter of course cause the withdrawal of decisions establishing unfavorable precedents or vindicating individual rights by complying with those decisions before the mandate issues. Such a result would be inconsistent with the manner in which our system of checks and balances is intended to operate. Accordingly, we reject the Justice Department's suggestion.
Id. at 1355-56. The same observation has been made by the Third Circuit en banc, Finberg v. Sullivan, 658 F.2d 93, 97 n.6 (3d Cir. 1981) ("We fear that granting defendants' motion for vacation of judgment might have the undesirable consequence in future cases of encouraging the losing party on appeal to seek to delay the issuance of the mandate and in the interim bring ...