Intl. Refugee Assistance v. Donald J. Trump

Filing 28

Corrected MOTION by Appellants Daniel R. Coats, Department of State, Elaine C. Duke, Office of the Director of National Intelligence, Rex Tillerson, Donald J. Trump and United States Department of Homeland Security in 17-2231, Appellants Elaine C. Duke, Kevin K. McAleenan, James McCament, Jefferson B. Sessions III, Rex Tillerson and Donald J. Trump in 17-2232, Appellants Elaine C. Duke, Rex Tillerson, Donald J. Trump, United States Department of Homeland Security and United States Department of State in 17-2233, Appellees Daniel R. Coats, Department of State, Elaine C. Duke, Office of the Director of National Intelligence, Rex Tillerson, Donald J. Trump and United States Department of Homeland Security in 17-2240 to accelerate case processing.. Date and method of service: 10/24/2017 ecf. [1000180039] [17-2231, 17-2232, 17-2233, 17-2240] Lowell Sturgill [Entered: 10/24/2017 10:09 PM]

IN THE UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
____________________________________
)
INTERNATIONAL REFUGEE
)
ASSISTANCE PROJECT, et al.,
)
Plaintiffs-Appellees,
)
)
v.
)
No. 17-2231 (L)
)
DONALD TRUMP, in his official capacity )
as President of the United States, et al.,
)
Defendants-Appellants.
)
____________________________________)
)
IRANIAN ALLIANCES ACROSS
)
BORDERS, et al.,
)
Plaintiffs-Appellees,
)
)
v.
)
No. 17-2232
)
DONALD TRUMP, in his official capacity )
as President of the United States, et al.,
)
Defendants-Appellants.
)
____________________________________)
)
EBLAL ZAKZOK, et al.,
)
Plaintiffs-Appellees,
)
)
v.
)
No. 17-2233
)
DONALD TRUMP, in his official capacity )
as President of the United States, et al.,
)
Defendants-Appellants.
)
____________________________________)

____________________________________
)
INTERNATIONAL REFUGEE
)
ASSISTANCE PROJECT, et al.,
)
Plaintiffs-Appellees,
)
)
v.
)
)
DONALD TRUMP, in his official capacity )
as President of the United States, et al.,
)
Defendants-Appellants.
)
____________________________________)

No. 17-2240

CORRECTED MOTION BY FEDERAL DEFENDANTS-APPELLANTS TO
EXPEDITE MERITS BRIEFING SCHEDULE
____________________
1.

These consolidated appeals and cross-appeal concern Presidential

Proclamation No. 9645, “Enhancing Vetting Capabilities and Processes for
Detecting Attempted Entry Into the United States by Terrorists or other PublicSafety Threats,” 82 Fed. Reg. 45,161 (2017). The Proclamation was issued after the
Department of Homeland Security, in consultation with the Department of State and
Director of National Intelligence, conducted a global review of foreign
governments’ information-sharing practices and risk factors, culminating in a
decision by the Acting Secretary of Homeland Security to recommend that the
President impose entry restrictions on certain nationals of eight countries the
information-sharing practices of which were deemed inadequate or that posed other
risk factors. The Proclamation imposes country-specific restrictions that, in the
President’s judgment, would most likely “encourage cooperation” in information
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sharing and “protect the United States until such time as improvements occur.” Id.
at 45,164.
2. On October 17, 2017, the district court issued a preliminary injunction in
three cases that bars enforcement of the entry restrictions in the Proclamation (except
for those applicable to North Korea and Venezuela) to nationals of the identified
countries with a credible claim of a bona fide relationship with a person or entity in
the United States. The district court granted a worldwide injunction, enjoining the
defendants at “all places, including the United States, at all United States borders
and ports of entry, and in the issuance of visas, with the above exceptions, pending
further orders from [the] court.”
2. The defendants filed notices of appeal on October 20, 2017, and this Court
consolidated the three cases. The same day, the defendants moved for an emergency
stay pending appeal and an administrative stay, and also moved for expedited
briefing on the stay motion. Those motions remain pending with the Court.
3. On October 23, certain plaintiffs filed a cross-appeal from the same district
court order. This Court consolidated that cross-appeal with the government’s
consolidated appeals, and designated the federal defendants as the appellants for
purposes of the consolidated appeals, to proceed first at briefing and oral argument.

3

4. The parties have conferred regarding a briefing schedule for the merits of
these consolidated appeals but have been unable to reach agreement on a proposed
schedule.
The federal defendants propose that the opening brief be due November 1,
2017; the response/cross-appellants’ brief be due November 15, 2017; the
reply/cross-appellees’ brief be due November 22, 2017; and the cross-appeal reply
brief be due November 29, 2017, with oral argument scheduled at the Court’s
soonest convenience following the conclusion of briefing.
The plaintiffs propose a lengthier briefing schedule, under which the federal
defendants’ opening brief would be due November 1, 2017; the response brief on
the government’s appeal and the opening cross-appeal brief would be due November
22, 2017; the government’s reply on its appeal and cross-appeal response would be
due November 29, 2017; and plaintiffs’ cross-appeal reply would be due December
6, 2017.
5. The federal defendants believe their suggested schedule is preferable and
should be adopted. The schedule proposed by the federal defendants would allow
for this Court’s timely consideration of the case, with the opportunity for it to be
heard by the Court at its regularly scheduled December 5-7, 2017 oral argument
sitting. Furthermore, the case could likely be heard by the Supreme Court this Term
with reasonable expedition by the Parties. The parties in the Hawaii v. Trump
4

litigation challenging the Proclamation, in which an appeal of a preliminary
injunction is also pending, have agreed to a very similar briefing and argument
schedule, which would allow for oral argument in that case by December 4-8, 2017.
It makes sense for the two cases to be heard on a similar timeline, and to be heard
together by the Supreme Court, and only the federal defendants’ proposed briefing
schedule achieves that end.
This case warrants expedition that leaves open the possibility of prompt
Supreme Court review. The district court’s nationwide injunction prevents the
government from implementing a national-security measure issued in response to a
global review, undertaken by the Departments of Homeland Security and State, of
foreign governments’ information-sharing practices and risk factors. The injunction
prevents the President from responding as he deems fit to risks the government has
identified as currently affecting the Nation’s safety. The immense public interest in
the security of the Nation, and the injunction’s significant incursion into areas
ordinarily committed to the Executive and Legislative branches of government,
together require that the case be heard as soon as is reasonably feasible, on a schedule
that will allow for Supreme Court review in the current Term.
The additional time proposed by the IRAP plaintiffs also is unnecessary for
briefing these appeals, given that plaintiffs are making—and the district court
accepted—arguments that already have been briefed in whole or in part multiple
5

times. In addition, the briefing on the cross-appeal should not be substantial, given
that the cross-appeal should be limited to the relief the district court declined to grant
in the order on appeal—an injunction on behalf of individuals who lack a credible
claim of a bona fide relationship with a person or entity in the United States, as
defined in the court’s opinion.
Respectfully submitted,
s/Sharon Swingle
Sharon Swingle
[phone]
Lowell V. Sturgill Jr.
[phone]
Attorneys, Civil Division
Appellate Staff, Room 7250
U.S. Department of Justice
950 Pennsylvania Avenue, N.W.
Washington, D.C. 20530

6

CERTIFICATE OF COMPLIANCE
I hereby certify that this motion complies with the type-face requirements of
Federal Rule of Appellate Procedure 32(a)(5) and the type-volume limitations of
Federal Rule of Appellate Procedure 27(d)(2)(A). This motion contains 871 words,
excluding the parts of the motion excluded by Federal Rules of Appellate Procedure
27(d)(2) and 32(f).
s/Lowell V. Sturgill Jr.
Lowell V. Sturgill Jr.

CERTIFICATE OF SERVICE
I hereby certify that on this 24th day of October, 2016, I filed the foregoing
motion by use of the Fourth Circuit’s CM/ECF system. Participants in the case are
registered CM/ECF users, and service will be accomplished by the appellate
CM/ECF system.
s/Lowell V. Sturgill Jr.
Lowell V. Sturgill Jr.