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

Filing 143

Received original and 0 copies of Amicus Curiae - Pending Kim Blandino amicus brief in 10 pages. Served on 02/13/2017. Deficiencies: None. Reason not filed: motion to become amicus is pending. [10319489] (LA) [Entered: 02/14/2017 03:00 PM]

ECEVD

CLERK
RMOLLY C.
U.S. COURT 0A

FEB 1 4 2017

No. 17-35105
FILED
DOCKETED

,,TE

~N TIAL

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

STATE OF WASHINGTON, et al.,
Plaintiffs-Appelles

V.

DONALD TRUMP, President of the United States, et al.,
Defendant-Appellants.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF WASHINGTON
BRIEF OF AMICUS CURIAE KIM BLANDINO, PRO SE
IN SUPPORT OF DEFENDANT-APPELLANTS URGING IMMEDIATE
ACTION TO VACATE THE TRO OR IN THE ALTERNATIVE TO TREAT
THIS SUBMISSION AS AN EXTRAORDINARY WRIT OF MANDAMUS,
PROHIBITION OR ANY OTHER EXTRAORDINARY WRIT AS KIM IS AN
AFFECTED PERSON THAT IS EXPOSED TO DANGER BY THE TRO
ISSUED BY THE DISTRICT COURT

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Kim Blandino Pro Se
C/O 441 N. 16t St.
Las Vegas Nv. 89101
Tele: [phone]
Fax Call before sending
Email: [e-mail]
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TABLE OF CONTENTS
RELEVANTFACTS .....................................................................................................1
ARGUMENT..............................................................................................................1
CONCLUSION...........................................................................................................10
CERTIFICATE OF COMPLIANCE ...........................................................................11
CERTIFICATEOF SERVICE ....................................................................................12
TABLE OF AUTHORITIES
U.S. Federal Cases
Dames and Moore v Regan 453 U.S. 654 (1981) .............................................3,8
Muscarello v U.S. 524 U.S. 125 (1998) .................................................................5
Neder v U.S. 527 U.S. 1 (1999) ..........................................................................1
Nken v Holder, 566 U.S. 418, 433 (2009) ........................................................2,3,4
Planned Parenthood v Abbott 134 S.Ct 506 (2013) ...................................... . .
Turner Brodcasting System , Inc. v. FCC 507 U.S. 1301, 113 S.Ct. 1806..........4
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U.S. v. Chemical Foundation 272 U.S. 1 (1926) ....................................................8,9
Title 8 of the United State Code (Immigration and Nationality Act)

8 U.S.0 . ..................................................................................................................5
8 U.S.C. and 8 U.S.C. 1182 ......................................................................................3
8 U.S.C. 1182 section 212(f) ..................................................................................4
Federal Regulations

28 C.F.R. 17 ...........................................................................................................10
28 C.F.R.17.17(a) .....................................................................................................7
28 C.F.R. 17.17 (c) ...................................................................................................6
Secondary Sources

Amicus brief filed by Daniel Escamilla .............................................................. 4
The original Magnificent Seven Movie, Steve Mcqueen ......................................5,6

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RELEVANT FACTS
The facts have been reiterated numerous times in this case, so Kim will not repeat
A updated summary is all that bis required that a restraining Order was granted in
the district court against the Executive Order 13769 "Order". The defendants
appealed to this court. A three judge panel denied relief. On Feb. 10, 2017 an en banc
call was made by unknown "Judge Doe" on this court and briefing was was ordered
to be completed by Feb. 16, 2017
ARGUMENT
BOTH THE DISTRICT COURT AND THIS CIRCUIT COMMITTED
STRUCTURAL ERROR THAT REQUIRE THE EXECUTIVE ORDER TO BE
PUT BACK INTO FULL FORCE AND EFFECT IMMEDIATELY
in Neder v U.S. 527 U.S. 1 (1999) the supreme court established that there are
classes of errors that do not lend themselves to harmless error analysis, that require
reversal. These structural errors in numerous cases it has been held, cannot have been
waived for failure to raise them in the lower courts.
The structural error that both the district court and this court made revolves
around presumptions, which are absolutely essential in law Also, what is the status
quo? It is with this status quo issue that the late and great Justice Scalia (may God
rest his soul!) speaks to us clearly and precisely as though he were still here in
person.
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In Planned Parenthood v Abbott 134 S.Ct 506 (2013):

"The Court of Appeals concluded that the fourth factor also favored the
stay, reasoning that the State's interest in enforcing a valid law merges
with the public interest. See Nken, supra, at 435. The dissent declines to
criticize that reasoning, though we are presumably meant to infer from its
disapproving comments about the stay's "seriou[s] disrupt[ion of the]
status quo," post, at 3, that the dissent believes preservation of the
status quo—in which the law at issue is not enforced—is in the public
interest. Many citizens of Texas, whose elected representatives voted for
the law, surely feel otherwise. But their views go unacknowledged by the
dissent, which again fails to cite any "accepted standar[d] " requiring a
court to delay enforcement of a state law that the court has determined is
likely constitutional on the ground that the law threatens disruption of the
status quo. "at 507 (emphasis added)
Here, Scalia is absolutely correct the statute that was passed IS THE STATUS
QUO! In this case the Executive Order "Order" as well, IS THE STATUS QUO!
Despite what this court or the lower court state. The TRO issued by the lower court
admits on page 2-3 lines 16 — 1 that the purpose of a TRO is to preserve the status
quo. This ultimately means that the lower court presumed the Order to be legal
garbage and gave the Order no effect, just as the dissent in Abbott above wanted to
do with the statute at issue in that case.
Because of the above wrongful presumption, the entire theory of this case is
upside down. In point of fact the plaintiffs in the district court were asking fora
STAY OF THE ORDER by the president and thus the plaintiffs should be subject
to Nken v Holder, 566 U.S. 418, 433 (2009) "a stay is not a matter of right, even if
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irreparable injury might result" (emphasis added) See per curiam order of this
court page 18 3m! paragraph. This reversed position is like "Alice through the looking
glass" and just as Scalia saw things in Abbott vs. the dissenters.
Before, President Trump issued the order pursuant to 8 U.S.C. and 8 U.S.C. 1182
the status quo was one thing, then Trump "altered the status quo" with the order
which became the new status quo. Because it must be presumed by law that the
executive order, or proclamation is regular and lawful See Dames and Moore v
Regan 453 U.S. 654 (1981) "Long continued executive practice ...... raises a
presumption that the President's action has been taken pursuant to Congree' consent."
id. At 657
Also, "President's action ...... taken pursuant to specific congressional authorization
it is supported by the strongest presumptions and the widest latitude of judicial
interpretation" id at 656 (emphasis added) The district court nor this court treated
the order with this respect as required in Dames. It must be pointed out that that in
Dames there was only financial ramifications. President Trump's order involves
matters of life or death thus Kim argues the presumption must be even stronger.
With the above being said, the President "altered the status quo" with his order
which became the, new status quo. So the plaintiffs in point of fact wanted to
"suspend the [presidential] alteration of the status quo" This foregoing language
should be familiar to the court, because in Nken at 429 "A stay "simply suspends]
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judicial alteration of the status quo." Also, "( By seeking an injunction,
applicants request that I issue an order altering the legal status quo") Nken at 429
citing Turner Brodcasting System, Inc. v. FCC 507 U.S. 1301, 113 S.Ct. 1806
It is of no small importance that the president gets a daily Presidential briefing.
See Amicus brief filed by Daniel Escamilla page 3-4 lines 15- 22. The 8 U.S.C.
1182 section 212(f) requires a finding by the President. It therefore, must be
presumed that the President bases his findings in part on classified information that
was not available to the lower court or this court when the order was examined. It
cannot be overstated either that section 212(f) does not even require a written order
The President can merely proclaim suspension for such period as he deems
necessary.
It must be judicially noticed by this court that the lower court stated:
"the court is mindful of the considerable impact its order may have
on the parties before it, the executive branch of our government, and the
country's citizens and residents. The court concludes....... that it must
intervene to fulfill its constitutional role in our tripart government." TRO
at pg 7 lines 7-12

With all due respect to Judge Robart the foregoing statement is ridiculous and
foolish unless Judge Robart gathered all of the intelligence data that the President has
been made aware of since the President first started being briefed by intelligence
agencies. The statement is an absolute insult to all of the men and women that risk
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their lives in many cases gathering necessary information about threats to America
and its allies around the world!!
If Kim can be allowed to "channel" Justice Scalia for a moment, (and Kim can
because Kim's last name also ends in a vowel). Justice Scalia in response to Judge
Robart would ask this, "Suppose that President Trump was briefed by intelligence
agencies by corrborated information that, within days weeks or months from one of
the countries at issue in the Order there was a high probability that individuals from
said countries were going to detonate "dirty" nuclear bombs in several major cities
including Seattle and that the President should suspend travel under 8 U.S.C.?" Can
there be any doubt in light of Scalia's reasoning in Abbott above that Scalia would
not give proper deference to the President and be astounded By Judge Robart's
presumption that he is "mindful" of the impact of ignoring classified information.
The lower court nor this court can satisfy themselves with the fact that since Judge
Robart's TRO no terrorists attacks have happened in America so far. Justice Scalia's
fast friend Justice Ginsburg herself in Muscarello v U.S. 524 U.S. 125 (1998) cited
the original movie The Magnificent Seven. So Kim will do so here to prove the point.
Steve Mcqueen playing Vin says in response to the questions "Are you ready for him
[refers to Calvera played by Eli Wallach]? What if he comes now huh?" :
"McQueen says: Reminds me of that fellow back home that fell off a ten
story building. .... Well, as he was falling people on each floor kept
hearing him say, "So far, so good." Tch...so far so good!"

The lower court and this court have "fallen off a judicial cliff' so to anyone that
says, "so far so good" gives no comfort whatsoever. Kim requests this court take
judicial notice that .for days after 911, the airspace above Canada and the U.S. was
restricted to military aircraft just by proclamation, obviously for safety reasons. It
should go without saying that had the air flight restriction been on September 10,
2001, for days thousands of lives would have been spared. President Trump is
presumptively trying to save lives from a demonstrable threat to people and property
that is ever present. Neither the lower court nor this court have knowledge of the
classified information , nor does Kim. In fact, Kim doubts that the Justice department
lawyers that briefed and argued the case had such classified information. This court
states in its order:
"The Government has pointed to no evidence that any alien from any of
the countries named in the Order has perpetrated a terrorist attack in the
United States." at page 26-27 (emphasis added)

Again, Justice Scalia would be saying in response: "the Order is based on
classified intelligence that a future threat exists not what has been done, before
December 7, 1941 there was no evidence of a japanese attack before September 11
2001 there was no evidence of an attack by Saudis ........
This court wants to hang its hat on 28 C.F.R. 17.17 (c) which reads in pertitnent
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(c) In judicial proceedings other than Federal criminal cases where CIPA
is used, the Department, through its attorneys, shall seek appropriate
security safeguards to protect classified information from unauthorized
disclosure, including, but not limited to, consideration of the following:
(emphasis added)
In other words the Department is given almost unlimited power to determine what
safeguards the Department needs in order to protect the classified info. Moreover this
court ignores 17.17(a) which states:
"(1)Any Department official or organization receiving an order or
subpoena from a federal or state court to produce classified information,
required to submit classified information for official Department
litigative purposes, or receiving classified information from another
organization for production of such in litigation, shall immediately
determine from the agency originating the classified information whether
the information can be declassified. If declassification is not possible,
the Department official or organization and the assigned Department
attorney in the case shall take all appropriate action to protect such
information pursuant to the provisions of this section.
(2) If a determination is made to produce classified information in a
judicial proceeding in any manner, the assigned Department attorney
shall take all steps necessary to ensure the cooperation of the court and,
where appropriate, opposing counsel in safeguarding and retrieving the
information pursuant to the provisions of this regulation."
(emphasis added)
Sec.17.17 therefore requires an order or subpoena from a federal or state court to
produce the classified information. Moreover, as seen above, sec 17.17(a)
contemplates that it is possible that the information cannot be declassified. This court
seems to take the subject of classified information very casually, which is very very
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disturbing. This court must know, that often if classified information is leaked it can
directly cause deaths of hundreds of people that were the source of such classified
information as the information itself can lead to the source.
Had the Department without a subpoena or an order and/or sufficient safeguards
given over classified information the supplying party could well have been
prosecuted criminally. Further, the plaintiffs were the parties that should have sought
a subpoena or order. The plaintiffs by all appearances were not interested in seeking a
subpoena or order for the classified information. By all appearances the parties
opposing President Trump were "forum shopping". And successful the opponents to
the President have been. "so far so good"! Kim is certain that the infamous Bernie
Madoff right up to before he was arrested, was saying "so far so good":
As stated above as to presumptions, this court is clearly not giving the President
the presumption under Dames that the President properly relied on classified
information to make his decision. In fact it appears that the lower court and this court
presumed that the- President had no support in the classified information for the
Order. In U.S. v. Chemical Foundation 272 U.S. 1 (1926) the court said:
The presumption of regularity supports the official acts of public
officers, and, in the absence of clear evidence to the contrary, courts
presume that they have properly discharged their official duties.
Confiscation Cases, 20 Wall. 92, 108, 22 L. Ed. 32OUnited States v.
Page, 137 U. S. 673, 679-680, 11 S. Ct. 219, 34 L. Ed. 828; United States
v. Nix, 189 U. S. 199, 205, 23 S. Ct. 495, 47 L. Ed. 775. Under that
presumption, it will be taken that Mr. Polk acted upon knowledge of the

material facts. The validity of the reasons stated in the orders, or the
basis of fact on which they rest will not be reviewed by the courts.
Chemical at 14-15 (emphasis added)
Therefore the lower court and this court are obligated by law, by case law to
presume that the Presdident acted on the basis of valid facts and reasons and
intelligence information to protect the safety of all persons within America in
suspending some travel. The burden must be on the plaintiffs all around.
It is therefore irresponsible and reckless to basically pronounce the President as
guilty without any evidence or even requiring the plaintiffs to meet their burden of at
least presenting evidence. To again channel Scalia he would ask: "If President Trump
had intelligence that demonstrated a high probability of the deaths of hundreds or
thousands within the U.S. if a temporary suspension was not instituted ? Are you
seriously stating that the balance of hardships and the public interest tips toward
the plaintiffs?"
If this situation regarding the Order were a movie by an ironic screen writer
Seattle and San Francisco would see a terrorist attack that kills thousands or more in
each city from persons from the countries listed, who came in after the TRO in the
Order.In the aftermath the actor plating Judge Robart would read how the court "is
mindful of the considerable impact its order may have on the parties......" Please,
God do not let that scenario occur in real life. "So far so good" is not good enough.
This circuit has granted stronger presumption toward criminal defendants than to

President Trump. In Mclean v. Moran 963 F.2d 1306 (1992) "Mandatory
presumptions, however, pose greater potential for constitutional problems because
they may affect not only the strength of the "beyond a reasonable doubt" burden but
also the placement of that burden." Moran at 1309.
Under Dames the president is entitled to the strongest of presumptions that the
Order was proper and necessary to protect against terrorism and the safetl and lives
of those within the U.S.
CONCLUSION
Kim believes that President Trump sincerely is very concerned with the safety of
all persons within America's borders and that the President is acting in accord with
information gathered from intelligence agencies and that there is a real threat from
entities within the listed countries. That Kim believes his sons lives, and his life are
in greater danger because of the TRO.
That if the plaintiffs want to actually examine the classified information that the
President relied on for his order let the plaintiffs ask for a subpoena or an order to try
and examine that classified information under 28 C.F.R. 17 and have Robart rule.
For the foregoing reasons this court must immediately vacate the TRO issued in
the court below immediately and modify or vacate the denial filed on Feb, 9, 2017. In
the altenative grant an extraordinary writ or grant such other relief as returns full
force and effect to the Order until a full hearing can be made in the District Court
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DATED this 13th day of February, 2017.

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KIM BLANDINO PRO SE
C/O 441 N. 16`, Street
Las Vegas, Nevada 89101
(702 )219-5657
[e-mail]
CERTIFICATE OF COMPLIANCE
Pursuant to FRAP 32(a)(7)(C)(i) the undersigned individual, appearing pro se,
certifies that this submission:
(i) Complies with the typeface requirements of Rule 32(a)(5) and the type
style requirements of Rule 32(a)(6). It has been prepared using OpenOffice
Writer and is set in Times New Roman with a font size of 14-point,
(ii) Complies with the length requirement of Rule 29(a)(5) because it is 11
pages absent the exclusions and Kim has filed a motion for leave to file in accord
with the FRAP

DATED this 13th day of February, 2017.

KIM BLANDINO PRO SE
C/O 441 N. 16' Street
Las Vegas, Nevada 89101
(702 )219-5657
kim43 [e-mail]

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CERTIFICATE OF SERVICE
I hereby certify that on February 13, 2017, a true and correct copy of the foregoing:
BRIEF OF AMICUS CURIAE KIM BLANDINO, PRO SE IN SUPPORT OF
DEFENDANT-APPELLANTS with first class postage prepaid has been deposited in
the U.S. Mail in Santa Ana, California, and properly addressed to the persons whose
names and addresses are listed below.
Noah G. Purcell
Washington Attorney General's Office
800 Fifth Avenue, Suite 2000
Seattle, WA 98104-3188
(Courtesy copy e-mailed to [e-mail])
Noel J. Francisco
Acting Solicitor General, U.S. Department of Justice
950 Pennsylvania Avenue, N.W.
Washington, DC 20530
(Courtesy copy e-mailed to Noel [e-mail])
DATED: February 13, 2017

KIM BLANDINO PRO SE
C/O 441 N. 16t Street
Las Vegas, Nevada 89101
(702 )219-5657
[e-mail]
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