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UNITED STATES v. FEE, Judge.

No. 12213.

United States Court of Appeals Ninth Circuit.

May 18, 1949.

A. DeVitt Vanech, Asst. Attorney General, Robert E. Mulroney, Attorney, Dept. *1021of Justice, Hugh F. O’Donnell; Sp. Asst. to the Attorney General, W. Tobin Lennon, Asst. General Counsel, Washington, D. C., for petitioner.

Sabin & Malarkey, Howard H. Campbell, and Robert Sabin, Portland, Ore., and Sterling Carr, San Francisco, Cal., for respondent.

Before DENMAN, Chief Judge, and MATHEWS, STEPHENS, HEALY, BONE, ORR, and POPE, Circuit Judges.

PER CURIAM.

This matter is before the court on petition of the United States of America for a Writ of Mandamus, or other appropriate order, compelling and directing The Honorable James Alger Fee, United States District Judge for the District of Oregon, to rule upon a motion filed by the United States Attorney for the District of Oregon, together with Hugh F. O’Donnell, Special Assistant to the Attorney General of the United States, in a cause entitled Walker et al. v. Reynolds Metal Company, for leave to file a Representation of Interest on behalf of the United States of America, and to enter and file an order in conformity with his decision and directing him to proceed with the trial of the action at a date subsequent to the entry of the order by him on the motion of the United States for leave to file a Representation of Interest.

The respondent Judge, in his return to an order to show cause, has informed this court that he has the said motion under advisement and has not refused to rule thereon. Counsel for respondent Judge has represented to this court that said Judge "has stated he will rule at an appropriate time and before the interests of the government are prejudiced in any way”, which we deem to mean in any proceeding before the court in which is to be considered any matter concerning the issues there to be determined. In view of the expressed attitude of said respondent Judge relative to making a timely disposition of said motion we deem it unnecessary to take further action on the government’s application for a writ of mandamus at this time.

STEPHENS, Circuit Judge

(concurring).

I concur. However, upon the statement of fact recited in the opinion, I would go further and deny and dismiss the petition.

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