State of Washington, et al v. Donald J. Trump, et al
Filing
140
Filed (ECF) Motion to intervene. Date of service: 02/11/2017. [10316343] [17-35105] (Adams, Matt) [Entered: 02/11/2017 03:26 PM]
No. 17- 35105
___________________________________________
IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
___________________________________________
STATE OF WASHINGTON, et al.,
Plaintiffs-Appellees,
v.
Donald J. TRUMP, et al.
Defendants-Appellants.
_______________________________________________
On Appeal from the U.S. District Court for the Western District of Washington
No. 2:17-cv-00141
Honorable James L. Robart, U.S. District Court Judge
_______________________________________________
PROPOSED PLAINTIFFS-INTERVENORS’ MOTION FOR LEAVE TO
INTERVENE
Matt Adams
Glenda Aldana Madrid
Maria Lucia Chavez
Northwest Immigrant Rights Project
615 Second Ave., Ste. 400
Seattle, WA 98104
(206) 957-8611
(206) 587-4025 (fax)
Trina Realmuto
Kristin Macleod-Ball
National Immigration Project of the
National Lawyers Guild
14 Beacon Street, Suite 602
Boston, MA 02108
(617) 227-9727
(617) 227-5495 (fax)
Mary Kenney
Aaron Reichlin-Melnick
Melissa Crow
American Immigration Council
1331 G Street, NW, Suite 200
Washington, D.C. 20005
(202) 507-7512
(202) 742-5619 (fax)
Attorneys for Proposed Plaintiffs-Intervenors
i
TABLE OF CONTENTS
MOTION FOR INTERVENTION UNDER RULE 24 ............................................ 1
STATEMENT OF THE CASE ................................................................................ 1
I. THE ALI PLAINTIFFS ARE ENTITLED TO INTERVENE AS OF RIGHT
PURSUANT TO RULE 24(a)(2). ........................................................................ 7
A. The Ali Plaintiffs’ Motion Is Timely. .......................................................... 7
B. The Ali Plaintiffs Have A Significant Protectable Interest In The Outcome
Of This Appeal. .............................................................................................. 10
C.
The Disposition Of This Action May Impair the Ability of the Ali
Plaintiffs and Proposed Class Members To Protect Their Interests in Lawful
Immigrant Visa Processing. ............................................................................ 12
D. The Interests of the Ali Plaintiffs and Proposed Class Members Cannot
Be Adequately Represented............................................................................ 14
II. PERMISSIVE INTERVENTION IS ALSO APPROPRIATE. .................... 18
CONCLUSION ...................................................................................................... 20
CERTIFICATE OF SERVICE ............................................................................... 21
ii
MOTION FOR INTERVENTION UNDER RULE 24
Plaintiffs, two U.S. citizen parents, one lawful permanent resident and each
of their children, who collectively represent immigrant visa petitioners and
beneficiaries/applicants, respectfully request that this Court grant leave to
intervene in the instant appeal. Plaintiffs ask this Court to grant leave to intervene
as of right under Rule 24(a) of the Federal Rules of Civil Procedure or, in the
alternative, to grant them permissive intervention under Rule 24(b).
On February 10, 2017, undersigned counsel for Plaintiffs contacted counsel
for both parties. Counsel for the States of Washington and Minnesota indicated that
the States take no position on this motion. Counsel for the federal government
indicated their clients oppose Plaintiffs’ request for intervention.
STATEMENT OF THE CASE
On January 27, 2017, President Donald Trump issued Executive Order
13769 (EO), entitled “Protecting the Nation from Foreign Terrorist Entry Into the
United States.” See 82 Fed. Reg. 8977 (Feb. 1, 2017). Section 3 of the EO
suspends entry into the United States of citizens or nationals of Iran, Iraq, Libya,
Somalia, Sudan, Syria, and Yemen—all predominantly Muslim countries—for a
minimum of 90 days, allegedly for national security reasons. Id. at 8978. On
January 30, 2017, three petitioner parents—two U.S. citizens and one lawful
1
permanent resident—and their three beneficiary children—all of whom had
pending or approved immigrant visa applications—filed a class action in the
District Court for the Western District of Washington, challenging Section 3 of the
EO. See Complaint—Class Action for Declaratory and Injunctive Relief, Ali v.
Trump, No. 2:17-cv-00135, Dkt. 1 (W.D. Wash.). They brought the case on behalf
of themselves and similarly situated immigrant visa petitioners and beneficiaries
and alleged that Section 3 of the EO violates § 202(a)(1) of the Immigration and
Nationality Act (INA), 8 U.S.C. § 1152(a)(1), the Administrative Procedure Act
(APA), as well as the Due Process Clause of the Fifth Amendment and the
guarantee of equal protection pursuant to the Due Process Clause, and warrants
mandamus relief. Id. The case is assigned to District Court Judge James L. Robart.
Later that same day, the State of Washington filed a complaint and motion
for a temporary restraining order (TRO) in this case, also in the Western District of
Washington. See State of Washington v. Trump, No. 2:17-cv-00141, Dkts. 1, 3
(W.D. Wash.). The case also is assigned to Judge Robart. The State of Washington
challenged Section 3(c) of the EO, along with several other provisions, and also
alleged violations of the INA, APA, Due Process Clause and its guarantee of equal
protection, as well as other constitutional and statutory claims. Id.
On February 1, the State of Washington filed a supplementary brief on
standing outlining the harm caused to the State by the EO, and the State of
2
Minnesota joined the case and filed, with Washington, both an amended complaint
containing the original claims and an amended TRO motion. See State of
Washington, No. 2:17-cv-00141, Dkts. 17, 18, 19.
On February 2, 2017, the Ali Plaintiffs filed a motion seeking certification of
a nationwide class of all nationals of countries designated by Section 3(c) of the
EO who have applied for or will apply for immigrant visas and the visa petitioners
for those nationals, whose visa applications have been or will be suspended or
denied, whose immigrant visas have been or will be revoked, or who have been or
will be denied the ability to travel to the United States, on the basis of the EO. See
Motion for Class Certification, Ali, No. 2:17-cv-00135, Dkt. 3.
Also on February 2, Defendants filed their opposition to the States’ motion
for a TRO. Id., Dkt. 50. On February 3, the district court held a hearing and
enjoined the provisions of the EO challenged by the States, including Section 3(c).
Id. Dkt. 52. On February 4, the federal Defendants filed an emergency motion for
an immediate stay of the district court’s order and a motion for a stay pending
appeal, arguing, inter alia, that the States lacked standing and had not demonstrated
that they would face irreparable harm. ECF 14. On the same day, this Court denied
the request for an immediate stay. ECF 15.
On February 6, 2017, the Ali Plaintiffs filed a motion for a preliminary
injunction and requested that, should this Court, in State of Washington, dissolve
3
the TRO enjoining application of Section 3(c) of the EO on a procedural basis that
does not reach the merits of the claims, the Court convert the preliminary
injunction motion into a motion for a TRO. Exh. A (Plaintiffs’ Motion for
Temporary Restraining Order and Preliminary Injunction, Ali, No. 2:17-cv-00135,
Dkt. 9). The Ali Plaintiffs argued that they had standing and would experience
irreparable harm absent preliminary relief, on grounds different than those asserted
by the States in this case. Id. In support of their motion, they included fifteen
declarations from Ali Plaintiffs, potential class members, and attorneys
representing potential class members, detailing the physical, psychological, and
financial harm they faced absent injunctive relief enjoining Section 3 of the EO.
Exh. B (Declarations and Exhibits in Support of Plaintiffs’ Motion for Temporary
Restraining Order and Preliminary Injunction, Ali, No. 2:17-cv-00135, Dkts. 1125).
On February 7, the district court presiding over State of Washington set an
expedited briefing schedule for the Plaintiffs’ motion for a preliminary injunction.
State of Washington, No. 2:17-cv-00141, Dkt. 57. That same day, this Court
telephonically held oral argument on Defendants-Appellants’ motion for a stay.
ECF 125.
On February 9, this Court denied the emergency stay motion, holding that
the federal Defendants had failed to show that they were likely to prevail on the
4
merits or that they faced irreparable harm absent a stay. ECF 134. Additionally, the
Court found that the TRO “possesses the qualities of an appealable preliminary
injunction,” and set a briefing schedule for the merits of Defendants’ appeal of the
TRO. Id. at 7; ECF 135. Thereafter, the Ali Plaintiffs moved the district court to
renote and amend the briefing schedule for the TRO and preliminary injunction
motion filed in that case to coincide with the schedule set by the district court in
State of Washington. Plaintiffs’ Motion to Renote and Modify the Briefing
Schedule on Their Motion for Temporary Restraining Order and Preliminary
Injunction, Ali, No. 2:17-cv-00135, Dkt. 31.
On February 10, the Court announced that “[a] judge on this Court has made
a sua sponte request that a vote be taken as to whether the order issued by the
three-judge motions panel on February 9, 2017, should be reconsidered en banc”
and ordered the parties to brief whether reconsideration en banc is appropriate by
February 16, 2017. ECF 139.
ARGUMENT
The Ali Plaintiffs and the class members they seek to represent move to
intervene as this Court will likely dispose of their claims in its consideration of the
instant case, in a way that may impair or impede Ali Plaintiffs and class members’
interests. See generally Fed. R. Civ. P. 24. Both Ali and State of Washington were
filed the same day in the Western District of Washington, challenge the same
5
Executive Order, and were assigned to the same judge. Both cases have motions
for preliminary injunctive relief pending before the district court. While the claims
presented by the States encompass the claims presented by the movants, the Ali
Plaintiffs and the class members they seek to represent bring an alternative, and
critical, perspective with respect to such matters as Plaintiffs’ standing, the
irreparable harm Plaintiffs are able to demonstrate in seeking preliminary
injunctive relief, and the zone of interests affected by the statutory claims that are
now before this Court.
Rule 24 of the Federal Rules of Civil Procedure governs an intervention on
appeal. Bates v. Jones, 127 F.3d 870, 873 (9th Cir. 1997). In determining whether
intervention is appropriate, this Court “follow[s] ‘practical and equitable
considerations’ and construe[s] the Rule ‘broadly in favor of proposed
intervenors,’ . . . because a liberal intervention policy ‘serves both efficient
resolution of issues and broadened access to the courts.’” Wilderness Soc’y v. U.S.
Forest Service, 630 F.3d 1173, 1179 (9th Cir. 2010) (citations omitted).
The Ali Plaintiffs and the class members they seek to represent satisfy the
requirements for an intervention as of right under Rule 24(a)(2). In the alternative,
they also satisfy the requirements for permissive intervention under Rule 24(b)(1),
(3).
6
I.
THE ALI PLAINTIFFS ARE ENTITLED TO INTERVENE AS OF
RIGHT PURSUANT TO RULE 24(a)(2).
The Ninth Circuit applies a four-part rule to determine whether a party may
intervene as of right under Rule 24(a)(2):
(1) the motion must be timely; (2) the applicant must claim a
“significantly protectable” interest relating to the property or
transaction which is the subject of the action; (3) the applicant must be
so situated that the disposition of the action may as a practical matter
impair or impede its ability to protect that interest; and (4) the
applicant’s interest must be inadequately represented by the parties to
the action.
United States of America v. Aerojet Gen. Corp., 606 F.3d 1142, 1148 (9th Cir.
2010) (citations omitted). The Ali Plaintiffs satisfy each requirement. They filed
this motion within 48 hours of learning that the Ninth Circuit would treat the
States’ motion as one for a preliminary injunction; a central issue in the appeal is
the legality of Section 3 of the EO, which has harmed all named Plaintiffs and
untold thousands of proposed class members and has the potential to cause further
irreparable harm if not enjoined; and the distinct interests of Plaintiffs and
proposed class members would otherwise not be adequately represented. See Exh.
B.
A.
The Ali Plaintiffs’ Motion Is Timely.
Courts weigh three factors in determining whether a motion to intervene is
timely: “(1) the stage of the proceeding at which an applicant seeks to intervene;
(2) the prejudice to other parties; and (3) the reason for and length of the delay.”
7
Cal. Dep’t of Toxic Substances Control v. Commercial Realty Projects, Inc., 309
F.3d 1113, 1119 (9th Cir. 2002) (citation omitted). The Ali Plaintiffs’ motion to
intervene is timely under all three factors.
First, and most significantly, there has been no delay by the Ali Plaintiffs.
They are filing this motion at the first point in the litigation at which it was
reasonable to do so. It comes within 48 hours of this Court’s February 9, 2017
order rejecting the federal Defendants’ request for a stay of the temporary
restraining order, finding that the district court’s order “possesses the qualities of
an appealable preliminary injunction,” and setting a briefing schedule for the
appeal of this order. ECF 134, 135. Soon after this Court ruled, the States informed
the district court that, unless notified otherwise, they would not file their motion
for a preliminary injunction later that day as previously scheduled. State of
Washington, No. 2:17-cv-00141, Dkt. 70. Until this point, the Ali Plaintiffs’ intent
had been to seek to amend the briefing schedule on their own preliminary
injunction motion, which was already pending before the district court along with
their motion for class certification, so that the district court could hear and decide
the motions in the two cases concurrently. See Plaintiffs’ Motion to Renote and
Modify the Briefing Schedule on Their Motion for Temporary Restraining Order
and Preliminary Injunction, Ali, No. 2:17-cv-00135, Dkt. 31.
8
Given the turn of events on February 9, moving to have the two motions
proceed simultaneously before the district court was no longer the most prudent
option for the Ali Plaintiffs. Instead, the present motion to intervene became
necessary; they sought to intervene at the stage of the lawsuit in which their
interests were implicated—when the possibility of proceeding concurrently on a
parallel track with the States’ case in district court was no longer feasible. See
United States v. Oregon, 745 F.2d 550, 552 (9th Cir. 1984) (indicating that a
“change of circumstances, which suggests that the litigation is entering a new
stage” can be a factor that “militate[s] in favor” of intervention); United States v.
Alisal Water Corp., 370 F.3d 915, 921 (9th Cir. 2004) (“Prior cases suggest that a
party’s interest in a specific phase of a proceeding may support intervention at that
particular stage of the lawsuit.”). For this reason, the fact that this motion is filed
during an appeal does not render it untimely, particularly given the extraordinary
nature of the proceedings in this case and the expedited basis on which this Court
is hearing the appeal.
Finally, there is no prejudice to either party. The States take no position on
intervention. While Defendants oppose the motion, they will not be prejudiced by
having to litigate new or additional claims, because the four claims raised in Ali are
encompassed within the claims raised by the States in this case. Finally, this
motion is made within 48 hours of this Court setting the briefing schedule, and
9
three weeks in advance of the federal Defendants’ next scheduled brief. Moreover,
the Ali Plaintiffs already have filed their motion for preliminary injunctive relief.
Exh. A. As such, the federal Defendants have ample time to address the arguments
raised in Plaintiffs’ motions for class certification and for preliminary injunction,
filed on February 2 and 6, respectively.
B.
The Ali Plaintiffs Have A Significant Protectable Interest In The
Outcome Of This Appeal.
An applicant for intervention must have a “significantly protectable
interest,” meaning that “(1) it asserts an interest that is protected under some law,
and (2) there is a relationship between its legally protected interest and the
plaintiff’s claims.” State ex. rel. Lockyer v. U.S., 450 F.3d 436, 440-41 (9th Cir.
2006) (citation and internal quotation marks omitted). The central concern is
whether the intervenors “will suffer a practical impairment of [their] interests as a
result of the pending litigation.” Id. at 441 (rejecting as not determinative such
“technical distinctions” as whether the proposed intervenor has an enforceable
right).
The Ali Plaintiffs seek to intervene to protect their own and class members’
rights under the U.S. Constitution and the INA. In particular, as set forth in their
Complaint and their Motion for a TRO and Preliminary Injunction, they seek nondiscriminatory and constitutional application of the immigration laws. See
Complaint—Class Action for Declaratory and Injunctive Relief, Ali, No. 2:17-cv10
00135, Dkt. 1; Exh. A. All of the Ali Plaintiffs and an untold number of proposed
class members already have suffered grievous harm from the implementation of
the EO, and will suffer irreparable harm if the EO is not enjoined. See id.; Exh. B.
The Ali Plaintiffs have an interest in ensuring that their interests are fully
presented with respect to any future determination made by this Court establishing
precedent that could impair their pending motion for a preliminary injunction.
Hours before the State of Washington filed this suit, the Ali Plaintiffs filed their
lawsuit. Like the State of Washington, the Ali Plaintiffs argued that Section 3 of
the EO violated the equal protection and due process components of the Due
Process Clause, the INA, and the APA. Within days of filing their complaint, and
prior to the district court’s TRO in State of Washington, the Ali Plaintiffs moved to
certify a class. Thus, they have a responsibility to represent an untold number—
although reasonably estimated to be in the tens of thousands—of purported class
members. See Fed. R. Civ. P. 23(g)(2)(A) advisory comm. nn. (Am.
2003)(“[A]ttorney who acts on behalf of the class before certification must act in
the best interests of the class as a whole.”); Staton v. Boeing Co., 327 F. 3d 938,
960 (9th Cir. 2003) (“[C]lass attorneys, purporting to represent a class, also owe
the entire class a fiduciary duty once the class complaint is filed.” (quoting In re
GMC Pick–Up Truck Fuel Tank Prods. Liab. Litig., 55 F.3d 768, 801 (3d Cir.
1995)). Moreover, the Ali Plaintiffs also moved for a preliminary injunction on
11
February 6, 2017. Exhs. A and B. Any decision by this Court could have a binding
effect on their pending motion for preliminary injunctive relief.
The congruence of the claims in the two lawsuits demonstrates the strong
relationship between the interests of the Ali Plaintiffs and the States’ claims, and
favors intervention. See, e.g., In re Estate of Ferdinand E. Marcos Human Rights
Litig., 536 F.3d 980, 986-87 (9th Cir. 2008) (holding intervention proper where “an
issue [the intervenor] raised in one proceeding …. lands in another proceeding for
disposition”); United States v. Oregon, 839 F.2d 635, 638 (9th Cir. 1988) (granting
intervention where “an appellate ruling will have a persuasive stare decisis effect
in any parallel or subsequent litigation”). Because this suit may directly determine
the merits of the Ali Plaintiffs’ motion for a preliminary injunction, they have a
significant protectable interest in the outcome of this case.
C.
The Disposition Of This Action May Impair the Ability of the Ali
Plaintiffs and Proposed Class Members To Protect Their Interests in Lawful
Immigrant Visa Processing.
The Ali Plaintiffs and proposed class members are “so situated that the
disposition of the action may as a practical matter impair or impede [their] ability
to protect [their] interest.” Fed. R. Civ. P. 24(a)(2). Here, the advisory committee
notes to Rule 24(a) are instructive: “[i]f an absentee would be substantially
affected in a practical sense by the determination made in an action, he should, as a
12
general rule, be entitled to intervene.” Fed. R. Civ. P. 24 advisory comm. nn. (Am.
1966).
There is no doubt that the relief federal Defendants seek in this case—
rejecting the preliminary injunctive relief barring the suspension of entries and
immigrant visa processing for nationals of the seven countries—will directly
impair the lives of the Ali Plaintiffs and all proposed class members, disrupting
ongoing and expensive immigrant visa processing, suspending entries to the United
States, and potentially resulting in indefinite separation of family members and
undermining the stability of U.S. employers. If this Court reverses the district
court’s order granting injunctive relief, it will immediately re-subject the Ali
Plaintiffs and proposed class members to the irreparable harms inflicted by Section
3(c) of the EO. Moreover, whatever opinion this Court issues as to the merits of the
claims presented likely will control the resolution of any future motions for relief.
At that point, the Ali Plaintiffs and proposed class may very well have little if any
recourse.
The Ali Plaintiffs cannot wait until the conclusion of the State of Washington
litigation to vindicate their interests and the interests of the proposed class. Courts
have recognized that parties seeking intervention would face a “practical
impairment” in asserting their rights once a court has rendered a decision. United
States v. Stringfellow, 783 F.2d 821, 826 (9th Cir. 1986), vacated on other grounds
13
sub nom. Stringfellow v. Concerned Neighbors in Action, 480 U.S. 370 (1987)
(“The prospect of stare decisis may, under certain circumstances, supply the
requisite practical impairment warranting intervention as of right.”); Oregon, 839
F.2d at 638 (“We have said that such a stare decisis effect is an important
consideration in determining the extent to which an applicant’s interest may
be impaired.”); Chiles v. Thornburgh, 865 F.2d 1197, 1214 (11th Cir. 1989)
(“Where a party seeking to intervene in an action claims an interest in the very
property and very transaction that is the subject of the main action, the
potential stare decisis effect may supply that practical disadvantage which
warrants intervention as of right.”). Because this Court’s decision may well set
precedent that will be binding on the merits of the Ali Plaintiffs’ pending motion
for preliminary injunctive relief, which requests that Judge Robart in the Western
District of Washington declare Section 3(c) unlawful and enjoin its application, the
Ali Plaintiffs and proposed class members need to press their claims in this Court
and in this appeal.
D.
The Interests of the Ali Plaintiffs and Proposed Class Members Cannot
Be Adequately Represented.
The burden under this prong is “satisfied if [the Proposed PlaintiffsIntervenors] show[] that representation of [their] interest ‘may be’ inadequate; and
the burden of making that showing should be treated as minimal.” Trbovich v.
United Mine Workers of Am., 404 U.S. 528, 538 n.10 (1972) (citing 3B J. Moore,
14
Federal Practice 24.09 (1969)). In conducting this inquiry, courts examine: “‘(1)
whether the interest of a present party is such that it will undoubtedly make all of a
proposed intervenor’s arguments; (2) whether the present party is capable and
willing to make such arguments; and (3) whether a proposed intervenor would
offer any necessary elements to the proceeding that other parties would neglect.’”
Citizens for Balanced Use v. Montana Wilderness Ass’n, 647 F.3d 893, 898 (9th
Cir. 2011) (quoting Arakaki v. Cayetano, 324 F.3d 1078, 1086 (9th Cir.2003)). The
Ali Plaintiffs and proposed class members meet each factor.
First, the Ali Plaintiffs, who are themselves petitioners and beneficiaries in
the immigrant visa process and represent a putative class of similarly situated
individuals, are uniquely placed to raise the statutory argument that Section 3 of
the EO conflicts with Congress’ prohibition against discrimination as to the
“issuance of immigrant visas.” 8 U.S.C. § 1152(a)(1)(A) (“Except as specifically
provided in paragraph (2) and in sections 1101(a)(27), 1151(b)(2)(A)(i),
and 1153 of this title, no person shall receive any preference or priority or be
discriminated against in the issuance of an immigrant visa because of the person’s
race, sex, nationality, place of birth, or place of residence.”). Notably, this Court
did not address the statutory claims under the Immigration and Nationality Act in
its order denying the federal Defendants’ request to stay the district court’s order in
State of Washington v. Trump. In addition, as individuals who suffered physically,
15
psychologically, and financially because of the EO, the arguments of the Ali
Plaintiffs and proposed class members regarding irreparable harm are different
from the arguments about harm put forward by the States. The Ali Plaintiffs are
uniquely situated to present the harm suffered by individual immigrant visa
petitioners, both family members and employers, who are facing indefinite
separation from children, spouses, parents, siblings, and employees.
Courts have recognized that governmental representation of private, nongovernmental intervenors may be inadequate. For example, in Dimond v. District
of Columbia, the D.C. Circuit held that because the government was responsible
for representing a broad range of public interests rather than the more narrow
interests of intervenors, the “application for intervention . . . falls squarely within
the relatively large class of cases in this circuit recognizing the inadequacy of
governmental representation of the interests of private parties in certain
circumstances.” 792 F.2d 179, 192 (D.C. Cir. 1986); see also Natural Res. Def.
Council v. Costle, 561 F.2d 904, 911-12 (D.C. Cir. 1977) (holding that the
government does not adequately represent private organizations because
intervenors’ interests are different and more focused).
Second, the States, as government entities—as opposed to petitioners for and
recipients of immigrant visas—do not and cannot present the same standing and
irreparable injury arguments as the Ali Plaintiffs. The States have undoubtedly
16
suffered harm to their proprietary interests, i.e., injury to their public universities.
ECF 134 at 12 (“We therefore conclude that the States have alleged harms to their
proprietary interests traceable to the Executive Order”). The Ali Plaintiffs and
proposed class members, however, have suffered harm to their personal interests,
namely their constitutionally protected interests in family life, marriage, and childrearing. In addition, members of the proposed class in Ali include U.S.-based
corporations, private academic and other institutions, all of which have suffered
financial and other harms caused by the EO. Exh. A at 19-20; Exh. B at 55-51,
Siskind Decl., ¶¶10-12; at 63-65, Updahye Decl., ¶8.
Finally, the Ali Plaintiffs may offer “necessary elements to the proceeding”
the States and the federal government might not present. If the States’ standing is
called into question with respect to any of the claims, the Ali Plaintiffs may be
critical to the Court’s retaining Article III jurisdiction over that claim. In addition,
the Ali Plaintiffs and proposed class members are ideally situated to represent the
harm and human suffering caused by the EO. Finally, counsel for the Ali Plaintiffs
and proposed class members are established immigrant rights organizations; they
are intimately familiar with immigration law, including visa processing, the
national security-related provisions of the INA, the security checks conducted by
the U.S. government in conjunction with visa processing, and, furthermore, with
the impact that the EO already has had on the lives of U.S. citizen and lawful
17
permanent resident petitioners and their beneficiaries. Accord INS v. National
Center for Immigrants’ Rights, Inc., 502 U.S. 183, 195 (1991) (noting the
“complex regime of immigration law”); Ardestani v. INS, 502 U.S. 129, 138
(1991) (referring to “the complexity of immigration procedures and the enormity
of the interests at stake”).
*****
In sum, the interests of the Ali Plaintiffs and proposed class members are too
vital and too distinct from the interests of the States for them to be denied an active
role as intervenors. For these reasons, the Ali Plaintiffs respectfully request that the
Court grant them intervention as a matter of right.
II.
PERMISSIVE INTERVENTION IS ALSO APPROPRIATE.
Even if the Court finds that the Ali Plaintiffs and the proposed class are not
entitled to intervene as of right, they should nonetheless be permitted to intervene
pursuant to Federal Rule of Civil Procedure 24(b). This Court may allow
“‘permissive intervention where the applicant for intervention shows (1)
independent grounds for jurisdiction; (2) the motion is timely; and (3) the
applicant’s claim or defense, and the main action, have a question of law or a
question of fact in common.’” United States v. City of Los Angeles, 288 F.3d 391,
403 (9th Cir. 2002) (quoting Northwest Forest Res. Council v. Glickman, 82 F.3d
18
825, 839 (9th Cir. 1996)). In considering whether to grant permissive intervention,
the Court “must consider whether the intervention will unduly delay or prejudice
the adjudication of the original parties’ rights.” Fed. R. Civ. P. 24(b)(3).
As a threshold matter, the Ali Plaintiffs’ motion to intervene is timely. See
supra Section I.A. Second, the Ali Plaintiffs’ claims share substantial questions of
law and fact with the case now before this Court, as the States similarly seek to
enjoin the EO as unlawful and unconstitutional. Third, as discussed above,
intervention will not create delay or prejudice the existing parties. See id. Adding
the Ali Plaintiffs as plaintiffs-intervenors at this juncture of the lawsuit will not
needlessly increase cost, delay disposition of the litigation, or prejudice the
existing parties. The Ali Plaintiffs already have presented their arguments in their
motion for preliminary injunctive relief, and the federal Defendants thus have
ample time to prepare any additional arguments that may be necessary.
Importantly, the participation of the Ali Plaintiffs in this lawsuit will offer evidence
and argument from a proposed class of immigrant visa petitioners and beneficiaries
who are the direct targets of the EO and who have a direct and personal stake in the
outcome of this case. Thus, at a minimum, on behalf of themselves and the
proposed class, the Ali Plaintiffs ask the Court to exercise its broad discretion and
grant them permissive intervention.
19
CONCLUSION
For the foregoing reasons, the Proposed Plaintiffs-Intervenors respectfully
request that the Court grant their motion to intervene in this action as Plaintiffs on
behalf of themselves and the putative class they seek to represent.
Dated: February 11, 2015
Respectfully submitted,
s/Matt Adams
Matt Adams
Glenda Aldana Madrid
Maria Lucia Chavez
Northwest Immigrant Rights Project
615 Second Ave., Ste. 400
Seattle, WA 98104
(206) 957-8611
(206) 587-4025 (fax)
Trina Realmuto
Kristin Macleod-Ball
National Immigration Project of the
National Lawyers Guild
14 Beacon Street, Suite 602
Boston, MA 02108
(617) 227-9727
(617) 227-5495 (fax)
Mary Kenney
Aaron Reichlin-Melnick
Melissa Crow
American Immigration Council
1331 G Street, NW, Suite 200
Washington, D.C. 20005
(202) 507-7512
(202) 742-5619 (fax)
Attorneys for Proposed Intervenors
20
CERTIFICATE OF SERVICE
U.S. Court of Appeals Docket No. 17-35105
I, Matt Adams, hereby certify that I electronically filed the foregoing 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 11, 2017.
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.
s/ Matt Adams
Matt Adams
Date: February 11, 2017
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