International Refugee Assistance Project v. Trump
Corrected MOTION by Appellants Daniel R. Coats, Department of Homeland Security, Department of State, John F. Kelly, Office of the Director of National Intelligence, Rex Tillerson and Donald J. Trump to expedite decision, to accelerate case processing.. Date and method of service: 03/22/2017 ecf.  [17-1351] H. Thomas Byron
IN THE UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
PROJECT, et al.,
DONALD J. TRUMP, et al.,
CORRECTED MOTION TO EXPEDITE APPEAL
AND SET BRIEFING DEADLINES
Pursuant to 28 U.S.C. § 1657(a), FRAP 27 and 31(a)(2), and this Court’s
Local Rule 12(c), defendants-appellants (the “government”) respectfully
move for expedited hearing of this appeal from the district court’s
preliminary injunction. The order on appeal enjoins enforcement of a key
provision of an Executive Order, which presents an issue of national
significance; courts addressing both this and an earlier Executive Order have
expedited their consideration of cases such as this.
respectfully asks this Court to enter a schedule to allow prompt, coordinated
consideration of both (1) the government’s appeal from the preliminary
injunction entered by the district court on March 16, 2017, and (2) the
government’s forthcoming motion for a stay of that injunction pending
The reasons supporting expedition are set forth below, along with a
proposed schedule for briefing. For the same reasons, oral argument on the
appeal is appropriate, and the government is prepared to present argument
following expedited briefing. A transcript of the district court hearing has
been prepared, and the government believes that the parties can present
briefing of this appeal on the existing record. Pursuant to this Court’s Rule
27(a), counsel for plaintiffs-appellees have been notified of the government’s
intent to file this motion, and have informed us that they oppose this motion.
This case concerns plaintiffs’ challenge to Executive Order No.
13,780, issued by the President on March 6, 2017, titled “Protecting the
Nation from Foreign Terrorist Entry Into the United States.” See 82 Fed. Reg.
13209 (Mar. 9, 2017) (“Order”). Following highly expedited briefing and a
hearing, the district court entered a preliminary injunction on March 16,
2017, and denied a stay of its injunction pending appeal. The district court’s
government from enforcing § 2(c) of the Order, which suspends for 90 days
the entry into the United States of certain foreign nationals from six
The government filed a notice of appeal from the district court’s
injunction on March 17, 2017. The Court docketed the appeal and issued a
standard briefing schedule. Under that schedule, the government’s opening
brief is due April 26, 2017, and briefing would be completed by June 9, 2017.
This appeal from a preliminary injunction should be expedited
to permit this Court’s full review as soon as possible, with the benefit of full
briefing by the parties. “[U]nder 28 U.S.C. § 1657(a) the granting or denying
of a preliminary injunction is the basis for an expedited appeal.” American
Bioscience, Inc. v. Thompson, 269 F.3d 1077, 1084 n.8 (D.C. Cir. 2001).
Moreover, this case presents constitutional and statutory issues of
nationwide significance. The district court here enjoined the President and
government agencies from enforcing a key provision of the Order, which is
designed to protect national security, an interest that this Court has
recognized as paramount. See, e.g., United States v. Abu Ali, 528 F.3d 210, 240
(4th Cir. 2008) (“no governmental interest is more compelling than the
security of the Nation”) (quoting Haig v. Agee, 453 U.S. 280, 307 (1981)).
Recognizing the need for prompt consideration of the issues
presented, courts adjudicating challenges to the Order, and to an earlier
Executive Order, No. 13,769 (the “Revoked Order”), have expedited their
review of those cases. For example, the district court in this case considered
the parties’ briefs and argument addressing the motion for injunctive relief
over the course of five days (including a weekend).
See Int’l Refugee
Assistance Project, Inc. v. Trump, D. Md. No. 8:17-cv-00361-TDC, DE# 86. And
a district court in Hawaii granted plaintiffs’ motion for a temporary
restraining order of two sections of the Order following briefing and a
hearing conducted in seven days; that court is now considering plaintiffs’
motion to convert that order to a preliminary injunction, and has entered a
briefing and hearing schedule that will be completed over 9 days. Hawaii v.
Trump, 2017 WL 1011673 (Mar. 15, 2017); see D. Haw. Civ. No. 17-00050
DKW-KSC (Orders Mar. 8 & Mar. 20, 2017). Similarly, a district court in
Washington entered a nationwide injunction concerning the Revoked Order
after briefing and hearing conducted over four days. See Washington v.
Trump, 2017 WL 462040 (W.D. Wash. Feb. 3, 2017). And the Ninth Circuit
considered a stay pending appeal in that case after ordering briefing and
argument conducted over three days. Washington v. Trump, 847 F.3d 1151
(9th Cir. 2017); reh’g en banc denied, 2017 WL 992527 (Mar. 15, 2017).
Courts of appeals considering similar cases involving constitutional
and national security questions of this significance have similarly ordered
expedited briefing and argument. For example, the D.C. Circuit ordered
expedited briefing of the merits, completed in 18 days after the court’s order,
in Kiyemba v. Obama, 555 F.3d 1022 (2009), vacated, 130 S. Ct. 1235 (2010). See
D.C. Cir. No. 08-5424 (Order Oct. 20, 2008). Similarly, that court ordered
merits briefing over a 36-day period in Munaf v. Geren, 482 F.3d 582 (D.C.
Cir. 2007, vacated 553 U.S. 674 (2008). See D.C. Cir. No. 06-5324 (Order Dec.
1, 2006). And the Sixth Circuit ordered expedited briefing to be completed
within 27 days in Detroit Free Press v. Ashcroft, 303 F.3d 681 (6th Cir. 2002).
See 6th Cir. No. 02-1437 (Order April 10, 2002). The Supreme Court has
likewise expedited briefing in such cases. See, e.g., Dames & Moore v. Regan,
453 U.S. 654, 660 (1981) (noting expedited briefing and argument schedule).
The government also intends to seek a stay of the district court’s
injunction pending appeal, and the government believes that the Court
would be best served by having full briefing on the merits of the underlying
appeal before ruling on that motion. The parties presented full briefs and
argument to the district court in this case on an even more expedited
schedule, as explained above, at the urging of plaintiffs. See Int’l Refugee
Assistance Project, Inc. v. Trump, D. Md. No. 8:17-cv-00361-TDC, DE# 86
(order); see also DE# 83 (plaintiffs’ pre-motion letter proposing schedule).
The district court authorized the parties to file overlength briefs, so that it
would have the benefit of full briefing before adjudicating the plaintiffs’
motion for a preliminary injunction or temporary restraining order. Id. DE#
87 (order authorizing briefs up to 40 pages in 12-point font). Similarly, the
government believes that this Court would benefit from receiving briefing
on both the government’s motion for a stay pending appeal and the merits.
Because the government is prepared to file its appellate brief on a highly
expedited basis, it is not necessary to consider the two matters separately.
We urge this Court to enter a schedule that would allow full briefing of the
issues on an appropriately expedited schedule.
The government proposes the following schedule:
• Friday, March 24, 2017: the government files its opening merits
brief and its motion for stay pending appeal;
• Friday, March 31, 2017: Plaintiffs-Appellees file their response
merits brief and their response to the government’s stay motion;
• Wednesday, April 5, 2017: the government files its reply merits
brief and its reply in support of its stay motion;
• At the earliest possible opportunity after briefing is complete, the
Court should schedule oral argument.
Government counsel proposed this schedule to plaintiffs’
counsel on Tuesday, March 21, 2017, and plaintiffs did not agree. Instead,
plaintiffs proposed a significantly more extended schedule for the appellate
merits briefs. Under that schedule, plaintiffs’ response merits brief would
not be due until May 10, 2017, and briefing would not be completed until
May 17, 2017. In the government’s view, that would not permit the prompt,
expedited review by this Court that is appropriate in light of the preliminary
injunction prohibiting enforcement of a key provision of the Order, as well
as the nationwide significance of the underlying legal questions. Plaintiffs
also proposed to separate briefing on the merits of the appeal from briefing
of the stay motion. As explained above, we believe there is no basis for such
disjunctive filings or serial consideration of the issues. Instead, we urge the
Court to consider the stay motion and the merits of the government’s appeal
For the foregoing reasons, this Court should issue an expedited
schedule for briefs and the government’s motion for stay pending appeal.
/s/ H. Thomas Byron III
H. THOMAS BYRON III
Attorneys, Appellate Staff
U.S. Department of Justice
950 Pennsylvania Ave., N.W.
Washington, D.C. 20530
CERTIFICATE OF SERVICE
I hereby certify that on March 22, 2017, I electronically filed the
foregoing corrected motion for expedited briefing schedule by using the
appellate CM/ECF system.
I certify that the participants in the case are registered CM/ECF users
and that service will be accomplished by the appellate CM/ECF system.
/s/ H. Thomas Byron III
H. THOMAS BYRON III
CERTIFICATE OF COMPLIANCE
Pursuant to FRAP 32(g)(1), I hereby certify that the foregoing corrected
motion complies with the type-volume limitation in FRAP 27(d)(2)(A).
According to Microsoft Word, the motion contains 1,404 words and has been
prepared in a proportionally spaced typeface using Palatino Linotype in 14
/s/ H. Thomas Byron III
H. THOMAS BYRON III
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