FILED FOR PUBLICATION JUL 11 2019 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

STATE OF CALIFORNIA, by and Nos. 19-15974 through Attorney General Xavier Becerra,

Plaintiff-Appellee, D.C. No. 3:19-cv-01184-EMC Northern District of California, v. San Francisco

ALEX M. AZAR II, in his Official Capacity as Secretary of the U.S. ORDER Department of Health & Human Services; U.S. DEPARTMENT OF HEALTH & HUMAN SERVICES,

Defendants-Appellants.

ESSENTIAL ACCESS HEALTH, INC.; Nos. 19-15979 MELISSA MARSHALL, M.D.,

Plaintiffs-Appellees, D.C. No. 3:19-cv-01195-EMC Northern District of California, v. San Francisco

ALEX M. AZAR II, Secretary of U.S. Department of Health and Human Services; UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES,

Defendants-Appellants. STATE OF OREGON; et al., No. 19-35386

Plaintiffs-Appellees, D.C. Nos. 6:19-cv-00317-MC 6:19-cv-00318-MC v. District of Oregon, Eugene ALEX M. AZAR II; et al.,

Defendants-Appellants.

STATE OF WASHINGTON; et al., Nos. 19-35394

Plaintiffs-Appellees, D.C. Nos. 1:19-cv-03040-SAB v. 1:19-cv-03045-SAB Eastern District of Washington, ALEX M. AZAR II, in his official capacity Yakima as Secretary of the United States Department of Health and Human Services; et al.,

Defendants-Appellants.

Before: THOMAS, Chief Judge, and LEAVY, WARDLAW, W. FLETCHER, PAEZ, BYBEE, CALLAHAN, M. SMITH, JR., IKUTA, MILLER, AND LEE, Circuit Judges.

Pending before the en banc court are several emergency motions for an

administrative stay of the three-judge panel order staying the district courts’

2 preliminary injunction orders. See Oregon, et. al. v. Azar, No. 19-35386 (Dkt. nos.

59 and 66); Washington, et. al. v. Azar, No. 19-35394 (Dkt. nos. 35, 37, and 40).

Pursuant to prior order of the Court upon granting reconsideration en banc,

the three-judge panel Order on Motions for Stay Pending Appeal in these cases

was ordered not be cited as precedent by or to any court of the Ninth Circuit.

However, the order granting reconsideration en banc did not vacate the stay order

itself, so it remains in effect. Thus, the motions for administrative stay remain

pending and were not mooted by the grant of reconsideration en banc.

After due consideration of the emergency motions, the motions for

administrative stay of the three-judge panel order are DENIED. The en banc court

will proceed expeditiously to rehear and reconsider the merits of the Appellants’

motions for stay of the district courts’ preliminary injunction orders pending

consideration of the appeals on the merits. Until further order of the Court, no

further briefing is required of the parties for the en banc court’s reconsideration of

the three-judge panel order. The briefing schedule established for the merits

appeal shall remain as originally ordered.

Chief Judge Thomas and Judges Wardlaw, W. Fletcher, and Paez would

grant the motions for administrative stay and therefore respectfully dissent from

this order.

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