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United States District Court

Northern District of California

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

COUNTY OF SANTA CLARA,

Plaintiff,

v.

DONALD J. TRUMP, et al.,

Defendants.

CITY AND COUNTY OF SAN 

FRANCISCO,

Plaintiff,

v.

DONALD J. TRUMP, et al.,

Defendants.

ORDER GRANTING MOTION FOR 

LEAVE TO FILE MOTION FOR 

RECONSIDERATION

Case No. 17-cv-00574-WHO 

Case No. 17-cv-00485-WHO

On May 22, 2017 the government moved for leave to file a Motion for Reconsideration or, 

in the Alternative, Clarification of the Court’s Order of April 25, 2017. Motion for Leave (Mot.) 

(SF Dkt. No. 102) (SC Dkt. No. 108). The Motion for Leave and Motion for Reconsideration are 

brought on the basis of a new memorandum released by Attorney General Sessions on May 22, 

2017, outlining the Department of Justice’s official interpretation of Executive Order 13768. See

AG Memo (SF Dkt. No. 102-1) (SC Dkt. No. 108-1). The government has requested an 

immediate ruling on its Motion for Leave as a result of a procedural complication. Under Ninth 

Circuit precedent, filing a timely motion for reconsideration would toll the government’s time to 

appeal the court’s preliminary injunction order of April 25, 2017. Under Federal Rule 59(e) such 

a motion must be brought within 28 days of the ruling – in this case May 23, 2017. Fed. R. Civ. P. 

Case 3:17-cv-00485-WHO Document 106 Filed 05/23/17 Page 1 of 2
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United States District Court

Northern District of California

59(e). However, under Civil Local Rule 7-9 a party wishing to file a motion for reconsideration in 

this district must obtain leave of court before doing so. Civ. L.R. 7-9(a). It is not clear that filing 

a motion for leave, rather than a motion for reconsideration, would similarly toll the time for 

appeal under Ninth Circuit precedent. See Mot. at 2 n.1.

The City and County of San Francisco and the County of Santa Clara oppose the Motion 

for Leave, asserting that the government was not diligent in bringing the motion and has failed to 

demonstrate a material change in facts or law. They also assert that the government’s request for 

an immediate ruling is an “emergency of [its] own making” because it delayed in releasing the AG 

memorandum. The Counties assert that because the motion for leave was only filed yesterday 

evening they have not had a meaningful opportunity to oppose it and the court has not had a 

meaningful opportunity to consider it.

I am reluctant to reach a substantive decision on the government’s Motion for Leave on 

such short notice. I agree with the Counties that the government’s timing issue is largely an 

“emergency of [its] own making.” But I am more reluctant to create a procedural ambiguity 

regarding the tolling issue the government has identified simply because it failed to provide me 

with sufficient time to consider the government’s motion. As a result I will GRANT the 

government’s Motion for Leave to avoid this procedural complication and deem the government’s 

Motions for Reconsideration, (SF Dkt. No. 102-2) and (SC Dkt. No. 108-2), filed today, May 23, 

2017. The Counties may file their oppositions to the motions in two weeks in accordance with the 

Local Rules. I will consider the issues raised in the Counties’ short oppositions regarding 

diligence and material change of fact when evaluating the merits of the government’s motion for 

reconsideration.

IT IS SO ORDERED.

Dated: May 23, 2017

William H. Orrick

United States District Judge

Case 3:17-cv-00485-WHO Document 106 Filed 05/23/17 Page 2 of 2