State of Washington, et al v. Donald J. Trump, et al

Filing 113

Submitted (ECF) Amicus brief for review and filed Motion to become amicus curiae. Submitted by Law Firms of the Employment Law Alliance. Date of service: 02/07/2017. [10305896] [17-35105]--[COURT UPDATE: Attached motion, resent notice. 02/07/2017 by LA] (Runkles-Pearson, Patricia) [Entered: 02/07/2017 02:02 PM]

No. 17-35105
IN THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
__________________________________________________________________
STATE OF WASHINGTON; STATE OF MINNESOTA, et al.
Plaintiffs-Appellees,
v.
DONALD J. TRUMP, President of the United States, et al.,
Defendants-Appellants.
__________________________________________________________________
On Appeal From The United States District Court
For The Western District of Washington at Seattle
Case No.: 2:17-cv-00141
The Honorable James L. Robart
United States District Court Judge
__________________________________________________________________
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THE EMPLOYMENT LAW ALLIANCE IN SUPPORT OF APPELLEES

MELANIE GURLEY KEENEY
Missouri Bar No. 37789
Tueth, Keeney, Cooper, Mohan &
Jackstadt, P.C.
34 N. Meramec Ave. Suite 600
St. Louis, MO 63105
[e-mail]
Attorneys for Amicus Curiae
Tueth, Keeney, Cooper, Mohan &
Jackstadt, P.C.

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P.K. RUNKLES-PEARSON
Oregon Bar No. 061911
Miller Nash Graham & Dunn LLP
3400 U.S. Bancorp Tower
111 S.W. Fifth Avenue
Portland, OR 97204
Telephone: [phone]
[e-mail]
Attorneys for Amicus Curiae
Miller Nash Graham & Dunn, LLP

MARY ELLEN SIMONSON
Arizona SBN 009298
Lewis Roca Rothgerber Christie LLP
201 East Washington Street, #1200
Phoenix, AZ 85004
[e-mail]
Attorneys for Amicus Curiae
Lewis Roca Rothgerber Christie LLP

NATASHA J. BAKER
California SBN 226981
Hirschfeld Kraemer LLP
505 Montgomery Street, 13th Floor
San Francisco, CA 94111
[e-mail]
Attorneys for Amicus Curiae
Hirschfeld Kraemer LLP
ALISON M. HAMER
California SBN 258281*
Hirschfeld Kraemer LLP
233 Wilshire Boulevard, Suite 600
Santa Monica, CA 90401
[e-mail]
Attorneys for Amicus Curiae
Hirschfeld Kraemer LLP
* Ninth Circuit admission pending

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TABLE OF CONTENTS
CORPORATE DISCLOSURE STATEMENT.......................................... ......... ii
I. INTEREST OF AMICI CURIAE ....................................................................... 1
II. ARGUMENT ....................................................................................................... 2
A. The Haphazard Implementation of the Executive Order Created
Unprecedented Chaos and Uncertainty for Employers. ........................ 4
B. The Order Harms U.S. Employers ELA represents. ................................... 9
1. The Sudden, Chaotic Impact of the Executive Order Harmed
Many Employers' Operations...................................................... 9
2. Uncertainty About the Executive Order is Hindering
Business Travel and Investment. .............................................. 11
3. The Order Negatively Impacts Recruitment. .................................. 13
C. The Order Harms U.S. Institutions of Higher Education. ........................ 14
III. CONCLUSION ................................................................................................ 15

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CORPORATE DISCLOSURE STATEMENT
Pursuant to Rule 26.1(a) of the Federal Rules of Appellate Procedure,
Amici state as follows:
Dinse, Knapp & McAndrew PC has no parent corporation and no
publicly held corporation owns 10% or more of its stock.
Fortney & Scott, LLC has no parent corporation and no publicly held
corporation owns 10% or more of its stock.
Hirschfeld Kraemer, LLP has no parent corporation and no publicly
held corporation owns 10% or more of its stock.
Lewis Roca Rothgerber Christie LLP has no parent corporation and
no publicly held corporation owns 10% or more of its stock.
Miller Nash Graham & Dunn LLP has no parent corporation and no
publicly held corporation owns 10% or more of its stock.
Partridge, Snow & Hahn LLP has no parent corporation and no
publicly held corporation owns 10% or more of its stock.
Shawe Rosenthal LLP has no parent corporation and no publicly held
corporation owns 10% or more of its stock.

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Tueth Keeney Cooper Mohan & Jackstadt, PC has no parent
corporation and no publicly held corporation owns 10% or more of its stock.
Pursuant to Federal Rule of Appellate Procedure 29(c), Amici state
that no party or person other than Amici authored or contributed funding for this
brief.

/s/ P.K. RUNKLES-PEARSON
P.K. RUNKLES-PEARSON
OSB No. 061911
Miller Nash Graham & Dunn, LLP
111 S.W. Fifth Avenue, Suite 3400
Portland, Oregon 97204
Telephone: [phone]
Facsimile: [phone]
p.k.runkles-pearson @millernash.com
Attorneys for Amicus Curiae
Miller Nash Graham & Dunn, LLP

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I.

INTEREST OF AMICI CURIAE
The Employment Law Alliance (“ELA”) is an integrated global

practice network whose independent law firm members are well-known and wellrespected for their employment and labor law practices. With more than 3,000
lawyers across more than 120 countries, all 50 U.S. states, and every Canadian
province, the ELA is the world’s largest such network. The following U.S. law
firm members of the ELA, each of which has significant expertise in employmentrelated matters, hereby submit this brief:
Dinse, Knapp & McAndrew PC
Fortney & Scott, LLC
Hirschfeld Kraemer, LLP
Lewis Roca Rothgerber Christie LLP
Miller Nash Graham & Dunn LLP
Partridge, Snow & Hahn LLP
Shawe Rosenthal LLP
Tueth, Keeney, Cooper, Mohan, & Jackstadt, P.C.
Collectively, ELA member law firms represent hundreds of U.S.based employers that have been and would continue to be adversely impacted by
the Executive Order Protecting the Nation from Foreign Terrorist Entry into the
United States, issued January 27, 2017 (“Order”). Many of the ELA member law
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firms represent employers that are institutions of higher education; the Order also
adversely affects their educational and financial interests.
Amici submit this brief to provide examples of how the Order
adversely affects the ability of its member clients to do business and fulfill their
educational missions.
II.

ARGUMENT
On Friday, January 27, 2017, President Trump signed an "Executive

Order Protecting the Nation from Foreign Terrorist Entry into the United States"
(the “Order”). The Order bars people from seven foreign countries (“EO
Countries”) from entering the United States for an initial period of 90 days with the
potential for an indefinite ban. These people include employees, students,
affiliates, and contractors of U.S. employers that ELA members represent.
The Order and its implementation have caused – and, unless this court
upholds the district court's decision, will continue to cause – harmful financial and
operational consequences to ELA member clients. The Order prevents employees,
students, affiliates, and contractors who pose absolutely no security risk from
returning to the United States, separating them from their families and homes
potentially indefinitely and without notice. These people fear that if they leave the
United States, they will not be allowed to return. For those reasons, the Order

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hampers travel for ordinary and legitimate travelers on business for and related to
ELA member clients.
Even if such employees and contractors are eventually admitted,
many have been subjected to lengthy investigation and questioning by Department
of Homeland Security ("DHS") officers and detained upon arrival for, sometimes,
several hours. These investigations often include searches of cell phones and
social media accounts, inquiries into religious practices and beliefs, extensive
interrogation of personal residence and travel histories and other subjects. The
investigations and detentions may separate families of business travelers, including
young children. This is not only personally frightening. It also severely disrupts
work, study, and business of the travelers and their ELA-represented institutions.
These concerns are causing employers to suspend travel for
vulnerable employees and advise vulnerable students not to travel. This, of course,
causes further disruption to their business efforts and relationships.
Such disruption – should it be allowed to continue – would inevitably
and irreparably erode business opportunities for U.S. employers. Employers may
lose valuable employees, students, affiliates, and contractors who – precisely
because of their skills, talents, education, experience, foreign origin, knowledge of
language, culture and business practices, and special relationships – are uniquely
able to advance employers’ interests in and connections to the EO Countries.
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A.

The Haphazard Implementation of the Executive Order Created
Unprecedented Chaos and Uncertainty for Employers.
The Order took effect on January 27, 2017. In the week after

implementation and before the Western District of Washington enjoined
enforcement of various sections of the Order in its February 3, 2017 Temporary
Restraining Order, the scope and effect of the Order remained fluid, and the federal
government implemented it in an inconsistent and contradictory manner.
Amici address the shifting interpretation of the Order here because it
contributes directly to the sense of unpredictability they face. While every new
law or regulation is subject to interpretation, the inconsistencies and contradictions
associated with the Order are truly unprecedented in our experience. The changes
have whipsawed back and forth over the course of a single week with life-changing
consequences for the affected employees and students each time. As we describe
more fully in Sections B and C, the resulting climate stunts the growth and disrupts
the orderly administration of the business and educational enterprises that amici
represent.
For example, the Department of State ("DOS") and DHS have applied
the Order inconsistently to lawful permanent residents from the affected countries.
By its plain language, the Order purports to bar immigrants and nonimmigrants –
including lawful permanent residents and other long-time U.S. residents – from
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entering the United States.1 The same day the Order was issued, Edward J.
Ramatowski, Deputy Assistant Secretary of the Bureau of Consular Affairs for
DOS, provisionally revoked all valid nonimmigrant and immigrant visas of
nationals of the EO Countries, except certain specified diplomatic visas and visas
of foreign nationals granted the national interest exception under Section 3(g) of
the Order. The DOS estimated that this provisional revocation impacted 60,000
people, while the Department of Justice estimated the impact at 100,000. The
provisional revocation of these visas renders the affected individuals potentially
deportable.
Even long-term permanent residents of the U.S. were denied return to
the U.S. upon the signing of the Order if they had been born in EO Countries. But
on January 29, 2017, two days after the Order was signed, John Kelly, the
Secretary of DHS, stated that the entry of lawful permanent residents would be
deemed to be in the national interest and that “absent the receipt of significant
1

“Immigrants” include individuals lawfully admitted for permanent residence,
often referred to as LPRs or green card holders. LPRs have been “accorded the
privilege of residing permanently in the United States … in accordance with
immigration laws,” see 8 U.S.C. § 1101(a)(20), and they often reside in, work, and
raise their families in the United States over period of many years. LPRs are also
eligible to apply for U.S. citizenship after a specified period of time, typically five
years. “Nonimmigrants” include visitors, individuals with student visas (F, J, or M
visas), highly-skilled workers (H-1Bs), intracompany transferees (L-1As and L1Bs), and numerous other temporary classifications (Os, TNs, etc.). See 8 U.S.C. §
1101(a)(15)(A)-(V).
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derogatory information indicating a serious threat to public safety and welfare,
permanent resident status will be a dispositive factor in [the agency’s] case-by-case
determinations.” That guidance was welcome, but because it addressed an entire
category of people at once, it contradicted the Order's statement that
determinations would be made on a case-by-case basis.2 That guidance could be
changed at any time, and there still is no guidance regarding how to apply or
qualify for a case-by-case waiver or exemption.
On January 31, 2017, Secretary Kelly and other leaders from DHS
spoke at a news conference about how DHS and the DOS were implementing the
Order. Kevin McAleenan, Acting Commissioner of U.S. Customs and Border
Protection (“CBP”), (part of DHS), addressed dual nationals (i.e., individuals who
are nationals of both an EO Country and another country), stating that “[t]ravelers
will be assessed at our border based on the passport they present.” In other words,
foreign nationals from one of the EO Countries would still be able to enter the
United States if they present a valid passport from a non-EO Country.
But on or about February 1, 2017, DOS announced on its website that
it had “temporarily stopped scheduling appointments and halted processing of
2

The Order provides a highly discretionary exception, stating that “the Secretaries
of State and Homeland Security may, on a case-by-case basis, and when in the
national interest, issue visas or other immigration benefits to nationals of countries
for which visas and benefits are otherwise blocked.” See Order, § 3(g).
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immigrant visa applications for individuals who are nationals or dual nationals" of
the EO Countries. The announcement further stated that all interviews scheduled
for these applicants in February 2017 had been cancelled. This directly
contradicted the January 31 statements that dual nationals would not be affected.
The same day, on January 31, 2017, CBP also published additional
information relating to the Order in a "question and answer" format on its website,
stating that “USCIS will continue to adjudicate N-400 applications for
naturalization and administer the oath of citizenship consistent with prior
practices.” That guidance is inconsistent with reports amici have received from
clients who have been told that processing of their naturalization applications
and/or administration of the oath have been suspended.
On February 1, 2017, Donald F. McGahn II, Counsel to the President,
released a Memorandum to the Acting Secretary of State, the Acting Attorney
General, and the Secretary of DHS providing “Authoritative Guidance” on the
Executive Order. In this memorandum, Mr. McGahn acknowledged that there had
been “reasonable uncertainty” about whether the 90-day ban on entries applies to
lawful permanent residents from the EO Countries and clarified that Sections 3(c)
and 3(e) of the Order do not apply to such individuals.
The unclear government interpretations and communications
regarding the intended scope of the Order and the lack of advance notice, agency
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guidance and inter-agency collaboration on the Order's scope caused substantial
concern and chaos. Dual nationals of the U.S and EO Countries, and their
employers, fearing they were subject to the travel ban, sought legal counsel to
confirm they still were authorized to return to the U.S. in their capacity as U.S.
citizens with U.S. passports. Lawful permanent residents of the U.S. whose
country of origin is among the EO Countries were informed the travel ban applied
to them and were blocked from their planned return to the U.S. for several days.
Some lawful permanent residents were even forced to sign an I-407, abandoning
their rights as a permanent resident, at which time they were immediately deported.
The fear associated with the Order has even resulted in foreign nationals
questioning the ability to travel domestically within the U.S.
This uncertainty did cause and is causing ELA-represented employers
substantial harm. Not only did it cause actual harm as to those who were unable to
travel or who were traveling and could not return, but it also caused future harm
for those who fear the Order's impact and potential expansion or further executive
orders on immigration and are thus cancelling work-related or education-related
travel on behalf of their organizations. The prospect that additional executive
orders could be issued with similar lack of clarity and guidance amplifies the
climate of uncertainty for U.S. employers.

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B.

The Order Harms U.S. Employers ELA represents.
The Order has harmed and is harming U.S. employers in several ways.

The ban was implemented so suddenly that many executives and employees were
stranded abroad, potentially indefinitely, or had to cancel work-related travel plans
for meetings, conferences and other travel on behalf of their employers.
Employers cancelled work-related travel extensively across many industries out of
fear of the ban being reinstated or expanded.
These circumstances harm U.S. employers’ ability to recruit and
retain employees who had been previously vetted and approved, and who have
specialized skill and knowledge.
All of this puts U.S. employers at a competitive disadvantage. It
cannot continue without severe harm to U.S. employers and the U.S. economy.
1.

The Sudden, Chaotic Impact of the Executive Order
Harmed Many Employers' Operations.

Many U.S. employers with global operations employ temporary
nonimmigrant foreign workers and U.S. permanent resident green card holders
who are based in the United States but who travel internationally for work. Such
workers require flexible international travel to attend meetings at worldwide
company offices, to visit various customer locations, and to participate in global
industry activities. U.S. employers that are institutions of higher education also
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routinely admit students from other countries, including hundreds of students from
the seven countries named in the Order.
The Order's sudden implementation immediately affected employees
and students who were traveling outside the U.S. and were not able to return,
despite being already vetted and approved for employment or scholarship in this
country and actively engaged in such activities in the U.S.
A few examples demonstrate the problems ELA-employer clients face
across the country. For example, employees with valid visas who were traveling
abroad temporarily when the Order was issued were unable to return, with no
warning. Employees with valid visas were unable to travel on behalf of their
employers and had to cancel long-standing meetings and professional
engagements. Visiting researchers and tenure-track university faculty members
employed in H-1B status and traveling abroad temporarily when the Order was
issued were unable to return to campus to resume teaching and research duties,
with no warning. Students who have already been admitted or were temporarily
away have been barred from traveling to their campuses.
Employers have lost the work that those employees would have
performed upon their return to the U.S. They have covered the lodging and travel
costs of stranded employees. In addition, employers' interest is not limited to

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immediate financial loss. In many cases, the loss of a critical employee damages
future business plans.
2.

Uncertainty About the Executive Order is Hindering
Business Travel and Investment.

The harm to U.S. employers is not limited to stranded individuals.
Reasonable employers are concerned that the manner in which the Order has
already been implemented is a warning of other radical changes in the Order or its
interpretation. Employers are concerned that the list of seven countries will be
expanded to other countries in a similar manner. Changing the list without notice
would strand other employees outside the U.S., separated from family, school, and
jobs. Employers are also concerned about the "case-by-case" waiver process
described in the Order. We do not know what that process will involve, or what
criteria will be used to make a determination.
As a result of this uncertainty, many employees are afraid to travel,
even if they are not from one of the seven EO Countries. The fear of being denied
entry or re-entry has increased employee unwillingness to come to the U.S. for
business or to leave the U.S. for business. This has caused multinational business
executives with visas or admission stamps for visiting one of the listed countries on
business or holiday to question their continued ability to travel to the U.S. for
business purposes. It has caused physicians from non-EO Countries in the Middle
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East who are employed in the U.S. on H-1B visas to question whether the U.S.
government will allow them to stay in this country to provide medical care in
underserved areas of the U.S.
U.S. employers with cross-border business are restricted as to which
foreign national employees are eligible to travel to and from work on a daily basis.
Many cross-border commuters now fear entering the U.S. for work or departing the
U.S. for work regardless of whether they are from the named countries in the order.
Such fear has caused disruption in business in border states where employees are
electing to remain on one side or the other until they fully understand what risks
they face when traveling internationally.
The uncertainty is not limited to employees. U.S. investors and
entrepreneurs who work with U.S. employers are putting their plans to bring startup and other business ventures to the U.S. on hold given the immediate and
potential impact of the Order. Those from the EO Countries may not have the
opportunity to invest in the U.S. economy, and the ban may deter others from
doing so entirely.
Due to these circumstances, employers are hesitant to require
employees to travel, because there is no certainty that employees will be admitted
into (or back into) the U.S. Some employers are putting business on hold, at

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significant expense. This cannot continue indefinitely, or the companies and
institutions will lose their competitive edge and standing in the global economy.
3.

The Order Negatively Impacts Recruitment.

U.S. employers are already experiencing a negative impact on
recruitment, hiring, and retention practices as a result of the Order. For example,
U.S. employers in the STEM fields (Science, Technology, Engineering, and Math)
have difficulty recruiting and hiring qualified U.S. workers to fill STEM roles.
Workers and students from other countries, including EO Countries, fill STEM
roles that U.S. workers are not otherwise able to fill. But because of the Order,
U.S. employers do not know whether they may continue to employ workers from
EO Countries, or whether they can pursue qualified workers from EO Countries for
future positions.
Examples of these recruitment problems are already arising. For
example, valued recruits for employment in the United States have been unable to
travel to the U.S. for scheduled job interviews and worksite tours based on their
country of birth, even if they are currently residing in a country not subject to the
Order. New permanent residents in the U.S. whose immediate family still resides
elsewhere (pending the long immigration process) are suddenly facing a much
longer family separation because the family members was born in a country
subject to the Order. These hardships will make it less likely that these valuable
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employees will come here or that they will stay. The loss of their expertise will be
substantial.
C.

The Order Harms U.S. Institutions of Higher Education.
Amici represent many employers who are higher education

institutions. The Order presents particular challenges for them.
Knowledge is universal, and teachers, researchers, and students are
part of a global academic community. U.S. colleges and universities employ
numerous instructors and researchers from the seven EO Countries. The Order has
barred scholars from entering the country. Others have been afraid to leave the
country for conferences or research for fear they would not be allowed to return.
The inability to invite scholars from the EO Countries causes more
harm than the loss of those scholars alone. In some cases, academics may hold
conferences in other countries so that all can attend. Research and scholarship will
move elsewhere, causing both economic and academic loss.
Students are also significantly affected. U.S. colleges and universities
enroll many students from EO countries. Students who are already admitted to
colleges and universities for this and the upcoming term may not be able to enter
the country to attend class. Since the Order, universities are prudently advising
vulnerable students who are already here not to leave the country to visit family, to
study abroad, for internships and field work, or to vacation over the upcoming
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spring break, because they will not be allowed to return. These travel restrictions
create impossible dilemmas for students who in some cases must leave the country
to renew student visas, only to be denied reentry. And even students whose visas
are intact for now must cope with the loss of family visits. Some families may not
be able to attend their student's graduation ceremonies.
The loss of international students and scholars is more than financial.
It represents a hole in the fabric of the university community – a loss of
scholarship, innovation, understanding, and perspective that is simply not
replaceable. This loss will quickly have a significant negative impact on the
economy of the United States.
III.

CONCLUSION
Based on the foregoing, amici respectfully request that the Court deny

Appellants’ Motion.

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Respectfully submitted this 7th day of February, 2017.

/s/ P.K. RUNKLES-PEARSON
P.K. RUNKLES-PEARSON
Oregon Bar No. 061911
Miller Nash Graham & Dunn LLP
3400 U.S. Bancorp Tower
111 S.W. Fifth Avenue
Portland, OR 97204
Telephone: [phone]
[e-mail]
Attorneys for Amicus Curiae
Miller Nash Graham & Dunn, LLP
/s/ NATASHA J. BAKER
NATASHA J. BAKER
California SBN 226981
Hirschfeld Kraemer LLP
505 Montgomery Street, 13th Floor
San Francisco, CA 94111
[e-mail]
Attorneys for Amicus Curiae
Hirschfeld Kraemer LLP

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/s/ ALISON M. HAMER
ALISON M. HAMER
California SBN 258281
Hirschfeld Kraemer LLP
233 Wilshire Boulevard, Suite 600
Santa Monica, CA 90401
[e-mail]
Attorneys for Amicus Curiae
Hirschfeld Kraemer LLP
/s/ MARY ELLEN SIMONSON
MARY ELLEN SIMONSON
Arizona SBN 009298
Lewis Roca Rothgerber Christie LLP
201 East Washington Street, Suite 1200
Phoenix, AZ 85004
[e-mail]
Attorneys for Amicus Curiae
Lewis Roca Rothgerber Christie LLP
/s/ MELANIE GURLEY KEENEY
MELANIE GURLEY KEENEY
Missouri Bar No. 37789
Tueth, Keeney, Cooper, Mohan & Jackstadt, P.C.
34 N. Meramec Ave. Suite 600
St. Louis, MO 63105
[e-mail]
Attorneys for Amicus Curiae
Tueth, Keeney, Cooper, Mohan & Jackstadt, P.C.

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CERTIFICATE OF COMPLIANCE
I certify that this brief complies with the type-volume limitation of
Fed. R. App. P. 28.1(e)(2) because this brief contains 3,405 words, excluding the
parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii). This brief
complies with the typeface requirement of Fed. R. App. P. 32(a)(5) and the type
style requirements of Fed. R. App. P. 32(a)(6) because this brief has been
prepared in a proportionally spaced typeface using Microsoft Word for Windows
software in 14 pt. Times New Roman.
/s/ P.K. RUNKLES-PEARSON
P.K. RUNKLES-PEARSON
OSB No. 061911
Miller Nash Graham & Dunn, LLP
111 S.W. Fifth Avenue, Suite 3400
Portland, Oregon 97204
Telephone: [phone]
Facsimile: [phone]
p.k.runkles-pearson @millernash.com
Attorneys for Amicus Curiae
Miller Nash Graham & Dunn, LLP

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CERTIFICATE OF SERVICE
I, P.K. RUNKLES-PEARSON, hereby certify that I electronically
filed the following 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 on
February 7, 2017.
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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.
Executed February 7, 2017, at Portland, Oregon.

/s/ P.K. RUNKLES-PEARSON
P.K. RUNKLES-PEARSON
Oregon SBN 061911

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