Case: 12-17808, 02/21/2019, ID: 11202785, DktEntry: 216, Page 1 of 7
No. 12-17808
In the United States Court of Appeals
for the Ninth Circuit
George K. Young, Jr.
Plaintiff-Appellant,
v.
State of Hawaii, et al.
Defendants-Appellees.
Appeal from a Judgment of United States District Court
For the District of Hawaii
Civ. No. 12-00336-HG-BMK
United States District Court Judge Helen Gillmor
MOTION FOR RECONSIDERATION
ALAN BECK STEPHEN D. STAMBOULIEH
Attorney at Law STAMBOULIEH LAW, PLLC
2692 Harcourt Drive P.O. Box 4008
San Diego, California 92123 Madison, MS 39130
Telephone: (619) 905-9105 Telephone: (601) 852-3440
[email protected] [email protected] Attorneys for Appellant, George K. Young, Jr.
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Comes now, Appellant George K. Young, by and through counsel, and
submits this, his Motion for Reconsideration (“Motion”) pursuant to Circuit Rule
27-10(a)(2)1 and would show unto the Court the following:
This Court, sua sponte, stayed en banc proceedings in this matter “pending
issuance of an opinion by the United States Supreme Court in New York State Rifle
& Pistol Association, Inc. v. City of New York, No. 18-280…” less than one week
after ordering this case to be heard en banc. See Docket No. 209. This is the second
stay of proceedings in this case since Mr. Young’s case was first docketed in this
Court on December 24, 2012. 2 Mr. Young has now been in the appeals process for
approximately six years, two months and nine days.
“The power to stay proceedings is incidental to the power inherent in every
court to control the disposition of the causes on its docket with economy of time and
effort for itself, for counsel, and for litigants.” Landis v. N. Am. Co., 299 U.S. 248,
254-55, 57 S. Ct. 163, 166 (1936) (additional citation omitted). But, “[o]nly in rare
circumstances will a litigant in one cause be compelled to stand aside while a litigant
in another settles the rule of law that will define the rights of both.” Id.
1
Counsel for Mr. Young requested Appellees’ position on this motion and
Appellees’ counsel stated that they oppose said Motion. Ironically, Appellees
petitioned this Court to take this matter en banc.
2
See Docket No. 101 – (staying proceedings pending this Court’s mandate in Baker
v. Kealoha, 12-16258); See also Docket No. 209, supra.
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In New York State Rifle & Pistol Association (“NYSRPA”), the question
presented to the Supreme Court is: “Whether the City’s ban on transporting a
licensed locked, and unloaded handgun to a home or shooting range outside city
limits is consistent with the Second Amendment, the Commerce Clause, and the
constitutional right to travel.” See Petition for Certiorari, p.2.3,4 Neither the
Commerce Clause nor the constitutional right to travel are at issue in Mr. Young’s
case. Additionally, Mr. Young has not asked this Court whether he can transport a
licensed locked and unloaded firearm to a second home or to a shooting range
outside the city limits. Hawaii does not prohibit that activity as New York City does.
As such, NYSPRA does not directly implicate Mr. Young’s issues.
The NYSRPA matter was granted certiorari on January 22, 2019 and the Order
granting en banc in Mr. Young’s case was filed on February 8, 2019. In NYSRPA,
counsel for petitioners requested that their brief be due on May 7, 2019 and
respondents’ brief to be due on August 5, 2019.5 The parties have not briefed the
3
https://www.supremecourt.gov/DocketPDF/18/18-
280/62499/20180904122332608_NYSRPA%20cert%20petition%209-04-
18%20FINAL.pdf (last accessed 2/21/2019).
4
See also https://www.supremecourt.gov/docket/docketfiles/html/qp/18-
00280qp.pdf (demonstrating question presented to the Court and granting
certiorari).
5
https://www.supremecourt.gov/DocketPDF/18/18-
280/88055/20190212144347429_2019-02-
12%20extension%20letter%20FINAL.pdf (last accessed 2/21/2019).
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matter and oral argument is not even scheduled in NYSRPA. Given that the matter
has not been briefed; has not presented the questions at issue in Young; and has not
been set for oral argument, it is quite possible that Young’s case will be stayed for at
a minimum of a year and half, possibly more, while the Supreme Court decides
NYSPRA, and it is speculation as to whether anything in NYSPRA will affect any
issue presented in Young.
Had the Supreme Court already heard oral argument, one could anticipate that
a decision would be forthcoming without much delay – a stay may make sense.
However, given the current posture of NYSPRA, it is an open-ended question as to
when Mr. Young will be able to have his matter resolved by the en banc panel. The
Ninth Circuit has previously held that “[a] stay should not be granted unless it
appears likely the other proceedings will be concluded within a reasonable time in
relation to the urgency of the claims presented to the court.” Leyva v. Certified
Grocers of Cal., Ltd., 593 F.2d 857, 864 (9th Cir. 1979). Any “reasonable time”
calculation is completely speculative at this point given the NYSPRA litigation’s
procedural posture. We simply don’t know when it will be decided, nor do we know
what issue the case will turn upon. The opinion could simply ignore the Second
Amendment entirely and decide the issue on the Commerce Clause or the right to
travel claim – claims that are not relevant to Mr. Young’s case.
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As such, because there is no evidence that an opinion from the Supreme Court
in NYSPRA will narrow (or resolve) the issues before this Court in this case and
because the stay is open-ended and predicated on a decision from the Supreme Court
which no one knows when will be handed down, Mr. Young respectfully urges this
Court to allow his case to continue and be heard, as previously scheduled, during the
March 25, 2019 en banc hearings. Mr. Young continues to be prejudiced by the time
in this appeals process. Mr. Young strenuously opposed the en banc petition because
he wants his day in court. See Mr. Young’s Response to Petition to En Banc, Docket
No. 171-1.
Conclusion
Mr. Young respectfully requests that this Court reconsider its Order staying
this case until NYSRPA is decided by the Supreme Court given the length of the time
the stay will likely affect Mr. Young’s case and to reset the argument for the March
25, 2019 hearing schedule as previously ordered.
Respectfully submitted, this the 21st day of February, 2019.
s/ Alan Beck
ALAN BECK (HI Bar No. 9145) s/ Stephen D. Stamboulieh
Attorney at Law STEPHEN D. STAMBOULIEH
2692 Harcourt Drive Stamboulieh Law, PLLC
San Diego, California 92123 P.O. Box 4008
Telephone: (619) 905-9105 Madison, MS 39130
Email: Telephone: (601) 852-3440
[email protected] Email: [email protected]
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CERTIFICATE OF COMPLIANCE
1. This Motion complies with the type-volume limitations of Fed. R. App. P. 27
because it contains 906 words.
2. This Motion complies with the typeface requirements of Fed. R. App.
P.32(a)(5) and the type-style requirements of Fed. R. App. P. 32(a)(6) because it has
been prepared in a proportionally spaced typeface using Microsoft Word 365 in 14-
point Times New Roman.
/s/ Stephen D. Stamboulieh
Stephen D. Stamboulieh
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CERTIFICATE OF SERVICE
I hereby certify that on February 21st, 2019, I filed the foregoing Document
with the Clerk of the Court for the United States Court of Appeals for the Ninth
Circuit by using the appellate CM/ECF system.
I certify that all participants in the case are registered CM/ECF users and
that service will be accomplished by the appellate CM/ECF system.
/s/ Stephen D. Stamboulieh
Stephen D. Stamboulieh
