Rochelle Garza v. Eric Hargan [ORDER IN SLIP OPINION FORMAT]

United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT FILED ON: OCTOBER 24, 2017 No. 17-5236 ROCHELLE GARZA, AS GUARDIAN AD LITEM TO UNACCOMPANIED MINOR J.D., ON BEHALF OF HERSELF AND OTHERS SIMILARLY SITUATED, APPELLEE v. ERIC D. HARGAN, ACTING SECRETARY, HEALTH AND HUMAN SERVICES, ET AL., APPELLANTS On Petition for Rehearing En Banc Before: Garland, Chief Judge; Henderson***, Rogers, Tatel, Griffith***, Kavanaugh***, Srinivasan, Millett**, Pillard*, and Wilkins, Circuit Judges ORDER Upon consideration of appellee’s petition for rehearing en banc and the supplements thereto, the response to the petition and the supplement to the response, the corrected brief for amici curiae States of New York, California, Connecticut, Delaware, Hawai‘i, Illinois, Iowa, Maine, Massachusetts, Oregon, Pennsylvania, Vermont, and Washington, and the District of Columbia in support of appellee’s petition, and the vote in favor of the petition by a majority of the judges eligible to participate; 2 and appellee’s motion to recall the mandate and petition for en banc consideration of appellee’s motion to recall the mandate, it is ORDERED that the mandate be recalled. The Clerk of the district court is directed to return forthwith the mandate issued October 20, 2017. It is FURTHER ORDERED that appellee’s petition for rehearing en banc be granted. This case has been considered by the court sitting en banc without oral argument, no judge having requested oral argument. It is FURTHER ORDERED that the order filed October 20, 2017 be vacated, except that the administrative stay remains dissolved. It is FURTHER ORDERED that appellants’ emergency motion for stay pending appeal be denied because appellants have not met the stringent requirements for a stay pending appeal, see Nken v. Holder, 556 U.S. 418, 434 (2009), substantially for the reasons set forth in the October 20, 2017 dissenting statement of Circuit Judge Millett.1 The case is hereby remanded to the district court for further proceedings to amend the effective dates in paragraph 1 of its injunction. The dates in paragraph 1 have now passed, and the parties have proffered new evidence and factual assertions concerning the expected duration of custody and other matters. The district court is best suited to promptly determine in the first instance the appropriate dates for compliance with the injunction. In so doing, the district court retains full discretion to conduct proceedings and make any factual findings deemed necessary and appropriate to the district court’s exercise of its equitable judgment, consistent with this order, including with regard to any of the factual disputes that were raised for the first time on appeal. See Ayotte v. Planned Parenthood of N. New England, 546 U.S. 320, 330-31 (2006); Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290, 305 (D.C. Cir. 2006). 3 The Clerk is directed to issue the mandate forthwith. Per Curiam FOR THE COURT: Mark J. Langer, Clerk BY: /s/ Ken Meadows Deputy Clerk * Circuit Judge Pillard did not participate in this matter. ** A statement by Circuit Judge Millett, concurring in the disposition of the case, is ...

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