International Refugee Assistance Project v. Trump
RESPONSE/ANSWER by Daniel R. Coats, Department of State, John F. Kelly, Office of the Director of National Intelligence, Rex Tillerson, Donald J. Trump and United States Department of Homeland Security to Motion to intervene , Motion to file amicus curiae brief . Nature of response: in opposition. [17-1351] Lowell Sturgill
IN THE UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
INTERNATIONAL REFUGEE ASSISTANCE
PROJECT, et al.,
DONALD J. TRUMP, et al.,
DEFENDANTS’ OPPOSITION TO
JOHN DOE #8’S MOTION TO INTERVENE
Three days after defendants filed their reply brief in this highly expedited
appeal, and only 14 days before oral argument before the en banc Court, a plaintiff
(John Doe #8) in Sarsour v. Trump, No. 1:17-cv-00120 (E.D. Va.), moved to
intervene in the appeal. The motion is untimely, wrongly seeks to introduce a new
issue that was not decided by the district court or briefed by the parties on appeal,
and represents an improper collateral attack on the Sarsour district court’s holding
that the plaintiffs there failed to demonstrate a likelihood of success on the merits on
that issue. The motion should be denied. Intervention at this late date would be
highly disruptive to the parties and the Court, and is not necessary to protect John
Doe #8’s interests in his separate lawsuit.
This case involves a challenge by various parties to Executive Order
13,780 (2017) (Order), Section 2(c) of which suspends the entry of certain foreign
nationals from Iran, Sudan, Syria, Libya, Somalia, and Yemen for 90 days while the
new Administration reviews the Nation’s screening and vetting procedures to ensure
that they adequately detect terrorists.
The district court entered a nationwide preliminary injunction on March 16,
2017, barring enforcement of Section 2(c) of the Order. Defendants filed a notice
of appeal on March 17, 2017, and shortly thereafter, moved for accelerated case
processing, with a suggested opening brief due date of March 24, 2017; a response
brief due date of March 31, 2017; a reply brief due date of April 5, 2017; and oral
argument as soon as practicable following the completion of briefing. The court
granted the motion, but made the response brief due April 14, 2017, and the reply
brief due April 21, 2017. In the same order, this Court also established an expedited
schedule for responding to defendants’ motion for a stay pending appeal, with
briefing on the stay to be completed by April 5, 2017. On March 23, 2017, this Court
calendared this case for oral argument on May 8, 2017. Subsequently, the Court sua
sponte granted initial hearing en banc.
John Doe #8, along with other plaintiffs, filed a separate action in the
Eastern District of Virginia challenging the previous Executive Order. See Sarsour
v. Trump, No. 1:17-cv-00129 (E.D. Va.). The motion to intervene describes John
Doe #8 as a lawful permanent resident of Sudanese national origin who resides in
Missouri and who has filed a marriage petition for his alien wife, which has been
approved. John Doe #8 alleges that his wife’s visa application remains pending, and
that he believes the application will be denied under the new Order based on his
wife’s Muslim religion and her Sudanese national origin.
After Executive Order 13,780 was issued, the Sarsour plaintiffs filed an
amended complaint along with a motion for a temporary restraining order or a
preliminary injunction. The amended complaint alleges that the Order violates the
Establishment Clause, the Equal Protection component of the Fifth Amendment; the
Administrative Procedure Act, 5 U.S.C. § 706, and Section 1152(a)(1)(A) of the
Immigration and Nationality Act. The district court denied the Sarsour plaintiffs’
motion for temporary or preliminary relief, however, finding that those plaintiffs
failed to show a likelihood of success on the merits of any of their claims; that the
balance of the equities did not tip in their favor; and that the public interest did not
support temporary or preliminary relief. See Mem. Op. (Mot. App. B).
The Sarsour plaintiffs subsequently consented to a motion (which the court
granted) to stay proceedings in that case in light of the nationwide preliminary
injunction entered in this matter and this expedited appeal.
John Doe #8 has moved for leave to intervene in this appeal. The
motion, which attaches his proposed brief, was filed on April 24, 2017—five days
after the deadline for amicus briefs in this appeal, and three days after defendants
filed their reply brief on appeal. The motion asserts that intervention is necessary
because of the supposed need to introduce a new issue into this appeal: whether the
new Order complies with the APA. John Doe #8 asserts that “the existing parties
* * * did not address the APA issue in their primary briefs on appeal,” Mot. 10, and
his proffered brief elaborates that resolution of his APA arguments could have
“[b]road [i]mplications” for claims “that have yet to come before this Court,” such
as challenges to the refugee provisions of the Order, Section 6. Br. 9. The district
court in this case did not enjoin Section 6, and that provision of the Order is not at
issue in this appeal.
To establish that intervention as of right is warranted, on appeal or in
district court, a party must submit a timely motion demonstrating that the applicant
has a significant protectable interest relating to the property or transaction that is the
subject of the action; that the disposition of the action may impair or impede the
party’s ability to protect that interest; and that the applicant’s interest is not
adequately represented by existing parties. See Consol. Gas Elec. Light & Power
Co. of Baltimore v. Pennsylvania Water & Power Co., 194 F.2d 89, 91 (4th Cir.
1952) (discussing Fed. R. Civ. P. 24(a)(2)).
John Doe #8 cannot satisfy any of these requirements.
The motion is
untimely, and insertion of a new issue into this appeal at this very late date would be
disruptive to the court and the parties and would impair preparation for the upcoming
oral argument. The motion also lacks merit because it is principally grounded on
the supposed need to introduce a new legal issue—whether the new Order complies
with the APA—that is not before the Court and is unlikely to be decided in this
At bottom, the motion to intervene and proposed intervention brief
constitute an inappropriate collateral attack on the district court’s denial of plaintiffs’
motion for injunctive relief in Sansour. The motion should be denied.
John Doe #8’s motion for intervention is untimely. The motion was
filed after the completion of the expedited briefing schedule the Court ordered for
this appeal, and only days before oral argument is scheduled before the en banc
Court. Granting the motion, which is principally grounded on the asserted need to
introduce a new issue into the appeal that has not been briefed by any of the parties
(the Sarsour plaintiffs’ APA claim), would be highly disruptive at this very late
stage, and would impair the Court’s and the parties’ efforts to prepare for oral
John Doe #8 contends that his intervention motion is timely because he did
not learn that plaintiffs would not make an APA argument in this appeal until April
14, when plaintiffs’ brief was filed. Mot. 12. It was evident well before that date,
however, that the order currently on appeal did not reach that issue, and that the
parties had not briefed that question in the context of that order. Furthermore, even
after plaintiffs’ opening appeal brief was filed, John Doe #8 waited ten days to file
his motion to intervene, three days after defendants had filed their reply brief. The
motion also does not reflect any earlier effort on John Doe #8’s part to consult with
counsel for plaintiffs to learn what issues they planned to brief. The motion is far
too late to be considered without disrupting the briefing schedule for this appeal, as
well as the parties’ and the Court’s preparations for oral argument. The motion
should be denied based on its lack of timeliness alone. See League of United Latin
American Citizens v. Wilson, 131 F.3d 1297, 1302 (9th Cir. 1997) (“[I]f we find that
the motion to intervene was not timely, we need not reach any of the remaining
elements of Rule 24.”) (brackets and internal quotation marks omitted).
John Doe #8 also lacks a significant, protectable interest in the outcome
of this appeal that the disposition of the action may impair or impede. The primary
ground he offers in favor of intervention is the need to address the Sarsour plaintiffs’
APA challenge to the Order. The district court in Sarsour held that those plaintiffs
failed to demonstrate a likelihood of success on the merits of that claim, however,
see Mot. App. B, pp. 16-17, and John Doe #8’s attempt to intervene in this appeal to
raise that issue is an inappropriate collateral attack on that ruling, which the Sarsour
plaintiffs can challenge after the district court has entered final judgment. See
Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 817 (1976)
(noting that “the general principle is to avoid duplicative litigation” in two federal
district courts, in order to further “considerations of ‘[w]ise judicial administration,
giving regard to conservation of judicial resources and comprehensive disposition
of litigation’”) (quoting Kerotest Mfg. Co. v. C-O-Two Fire Equipment Co., 342 U.S.
180, 183 (1952)).
Because the APA issue that John Doe #8 seeks to present is not currently
presented in this appeal, this Court’s disposition of the present appeal will not have
any likely adverse effect on John Doe #8’s ability to protect his interests in Sarsour.
Thus, while the prospect of stare decisis may “supply the requisite practical
impairment warranting intervention as of right,” United States v. Stringfellow, 783
F.2d 821, 826 (9th Cir. 1986), the outcome of this appeal will likely not foreclose
John Doe #8’s APA claim in Sarsour. See Order, Dkt. #203 (Apr. 21, 2017), State
of Hawaii v. Trump, No. 17-15589 (9th Cir.) (denying intervention in appeal of
district court nationwide injunction for similar reasons) (copy attached as
John Doe #8 also has failed to show that the parties to this appeal do
not adequately represent his interests. To the extent he asserts an interest in the
presentation of his statutory claims under 8 U.S.C. § 1152, appellees have fully
briefed that issue on appeal. John Doe #8 does not contend that appellees’ briefing
on that issue is deficient. Instead, he argues that his statutory claims under Section
1152 also are independently actionable under Section 706 of the APA, see Mot. 5,
because the Order’s asserted failure to comply with Section 1152 constitutes action
that is arbitrary and capricious and lacks a rational basis. See Sarsour Amended
Compl. ¶ 118. As noted, however, that argument is not currently presented on appeal
Defendants also note that John Doe #8’s APA challenge to the issuance of the
Executive Order cannot prevail, given that “the President’s actions [a]re not
reviewable under the APA.” Sarsour Mem. Op. (Mot. App. B. 17) (quoting Dalton
v. Spencer, 511 U.S. 462, 469 (1994)). John Doe #8 argues that the Sarsour APA
claim also “sought to prohibit the agency defendants * * * from implementing the
Order as directed,” Mot. App. A at 7, but he appears to concede, appropriately, that
this claim fails to identify any “final agency action” reviewable under the APA. Id.
at 8. He also suggests that a court could review agencies’ implementation of the
Order under section 706 of the APA as “agency action made reviewable by statute,”
id., but the statute he identifies (8 U.S.C. § 1152) does not purport to authorize
judicial review of any agency action. Moreover, the fact that section 1152 does not
preclude judicial review does not mean it authorizes review. Cf. Mot. App. A at 13.
Neither of the cases he cites, see id. (citing Japan Whaling Ass’n v. Amer. Cetacean
Soc’y, 478 U.S. 221, 239 n.4 (1986), and Block v. Community Nutrition Inst., 467
U.S. 340, 345 (1984)), holds to the contrary, and 5 U.S.C. § 701(a) does not
authorize judicial review of agency action in the absence of final agency action as
defined in 5 U.S.C. § 706.
and this Court’s disposition of the appeal will not prejudice his ability to pursue the
argument in Sarsour. For all these reasons, intervention as of right should be denied.
Permissive intervention also should be denied.
John Doe #8’s
unwarranted delay in seeking to intervene in this litigation, and the consequent
prejudice to the parties that would result from his eleventh-hour appearance, also
preclude permissive intervention. Permissive intervention, at this late date, also
would disrupt the briefing schedule in this case and the parties’ and the Court’s
preparation for oral argument on May 8, 2017; wrongly add new issues to this
appeal; end-run the Sansour district court’s handling of John Doe #8’s APA claim;
and represent the kind of duplicative litigation the Supreme Court has held
impermissible. John Doe #8’s alternative request that the Court accept his proposed
brief as an amicus brief also is untimely, given that he filed the brief five days after
the deadline for amicus briefs in this appeal. At a minimum, however, John Doe
#8’s participation in this case should be limited to filing as an amicus curiae, rather
than as an intervening party.
For the foregoing reasons, defendants respectfully request that the Court deny
John Doe #8’s motion for leave to intervene.
s/Lowell V. Sturgill Jr.
LOWELL V. STURGILL JR.
Attorneys, Appellate Staff
Civil Division, Room 7241
U.S. Department of Justice
950 Pennsylvania Avenue, N.W.
Washington, D.C. 20530
CERTIFICATE OF SERVICE
I hereby certify that on April 27, 2017, I electronically filed the foregoing
Opposition by using the Court’s CM/ECF system, and that service of the Opposition
on counsel will be accomplished by that system.
s/Lowell V. Sturgill Jr.
Lowell V. Sturgill Jr.
CERTIFICATE OF COMPLIANCE
Pursuant to Federal Rule of Appellate Procedure 32(g)(1), I hereby certify that
the foregoing opposition complies with the typeface and type-style requirements of
Federal Rule of Appellate Procedure 27(e)(1)(E) and the type-volume limitations of
Federal Rule of Appellate Procedure 27(e)(2). The Opposition contains 2254 words
as calculated by Microsoft Word, and has been prepared in a proportionately spaced
typeface using 14-point Times New Roman font.
s/Lowell V. Sturgill Jr.
Lowell V. Sturgill Jr.
Order, Dkt. #203 (Apr. 21, 2017), State of Hawaii v. Trump, No. 17-15589 (9th Cir.)
Case: 17-15589, 04/21/2017, ID: 10406960, DktEntry: 203, Page 1 of 3
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
STATE OF HAWAII; ISMAIL
ALI PLAINTIFFS; JOSEPH DOE;
JAMES DOE; EPISCOPAL DIOCESE OF
APR 21 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
District of Hawaii,
DONALD J. TRUMP, in his official
capacity as President of the United States;
U.S. DEPARTMENT OF HOMELAND
SECURITY; JOHN F. KELLY, in his
official capacity as Secretary of Homeland
Security; U.S. DEPARTMENT OF
STATE; REX W. TILLERSON, in his
official capacity as Secretary of State;
UNITED STATES OF AMERICA,
The Ali Plaintiffs’ motion to intervene, Dkt. No. 20, and the Doe Plaintiffs’
motion to intervene, Dkt. No. 57, are denied for the purposes of this expedited
appeal only. See Bates v. Jones, 127 F.3d 870, 873 (9th Cir. 1997) (“Intervention
at the appellate stage is . . . unusual and should ordinarily be allowed only for
Case: 17-15589, 04/21/2017, ID: 10406960, DktEntry: 203, Page 2 of 3
imperative reasons.” (internal quotation marks omitted)); Fed. R. Civ. P. 24(a)(2)
(intervention as of right must be given where “disposing of the action may as a
practical matter impair or impede the movant’s ability to protect its interest”); Fed.
R. Civ. P. 24(b)(3). The interests of the Ali Plaintiffs may be pursued through their
case, Ali v. Trump, No. 2:17-cv-00135-JLR (W.D. Wash. filed Jan. 30, 2017), and
possibly on appeal to our court. The same goes for the Doe Plaintiffs, who may
protect their interests in their case, Doe v. Trump, No. 2:17-cv-00178-JLR (W.D.
Wash. filed Feb. 7, 2017).
Although “[t]he prospect of stare decisis may, under certain circumstances,
supply the requisite practical impairment warranting intervention as of right,”
United States v. Stringfellow, 783 F.2d 821, 826 (9th Cir. 1986), vacated on other
grounds, 480 U.S. 370 (1987), the outcome of this appeal will not “for all practical
purposes . . . foreclose” the Ali and Doe Plaintiffs’ claims, Blake v. Pallan, 554
F.2d 947, 954 (9th Cir. 1977). See In re Estate of Ferdinand E. Marcos Human
Rights Litig., 536 F.3d 980, 986 (9th Cir. 2008) (noting that a non-party’s concerns
about the precedential effect of an opinion may not warrant intervention).
The Ali and Doe Plaintiffs may file briefs as amici curiae no later than
Wednesday, April 26, 2017.
Case: 17-15589, 04/21/2017, ID: 10406960, DktEntry: 203, Page 3 of 3
FOR THE COURT:
MOLLY C. DWYER
CLERK OF COURT
By: Omar Cubillos
Ninth Circuit Rule 27-7
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