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

Filing 146

Submitted (ECF) Amicus brief for review and filed Motion to become amicus curiae, Motion to file oversized brief. Submitted by State of Texas. Date of service: 02/15/2017. [10320027] [17-35105]--[COURT UPDATE: Updated docket text to add second motion relief. 02/15/2017 by LA] (Keller, Scott) [Entered: 02/15/2017 08:28 AM]

No. 17-35105

In the United States Court of Appeals for the Ninth Circuit
State of Washington; State of Minnesota,
Plaintiffs-Appellees,
v.
Donald J. Trump, President of the United States; U.S.
Department of Homeland Security; Rex W. Tillerson,
Secretary of State; John F. Kelly, Secretary of the Department of Homeland Security; United States of America,
Defendants-Appellants.
On Appeal from the United States District Court
for the Western District of Washington
MOTION FOR LEAVE TO FILE BRIEF
FOR THE STATE OF TEXAS AS AMICUS CURIAE
IN SUPPORT OF REHEARING EN BANC
Ken Paxton
Attorney General of Texas

Scott A. Keller
Solicitor General

Jeffrey C. Mateer
First Assistant Attorney General

J. Campbell Barker
Deputy Solicitor General

Office of the Attorney General
P.O. Box 12548 (MC 059)
Austin, Texas 78711-2548
Tel.: [phone]
Fax: [phone]
[e-mail]

Ari Cuenin
Assistant Solicitor General

Motion for Leave to File Brief
Amicus curiae the State of Texas respectfully moves for leave to file a brief of
8,965 words as amicus curiae in support of rehearing en banc. This motion is unopposed and is accompanied by the proposed brief and Form 8 certification.
1.

On January 27, 2017, the President issued Executive Order 13,769, deter-

mining that “[d]eteriorating conditions in certain countries due to war, strife, disaster, and civil unrest increase the likelihood that terrorists will use any means possible
to enter the United States” and taking additional steps “to ensure that those approved for admission do not intend to harm Americans and that they have no ties to
terrorism.” 82 Fed. Reg. 8977, 8977 (Feb. 1, 2017). On February 3, 2017, the district
court temporarily enjoined the Executive Order in its entirety. On February 9, 2017,
a panel of this Court denied the Executive Branch’s motion for a stay pending appeal
of that injunctive relief.
2. On February 10, 2017, this Court noted that it was considering whether the
request for a stay pending appeal should be reheard en banc. This Court directed the
parties to file simultaneous briefs of up to 14,000 words on that issue by Thursday,
February 16, 2017.
3. Federal Rule of Appellate Procedure 29 permits a State to file an amicus
brief without the parties’ consent or leave of court “during a court’s consideration
of whether to grant panel rehearing on rehearing en banc, unless a local rule or order
in a case provides otherwise.” Fed. R. App. P. 29(b)(1), (2). That rule appears to
govern here because no circuit rule provides otherwise. Circuit Rule 29-2 provides
that a State may file an amicus brief without the parties’ consent or leave of court
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“when the Court is considering a petition for panel or en banc rehearing,” and that
“any other amicus curiae” may file only by leave of court or if all parties consent.
Neither clause applies here: the Court does not have a “petition” for en banc rehearing (because the Court raised the issue sua sponte), yet movant is not an “other amicus curiae” than those listed in the first clause of the second sentence of Circuit Rule
29-2(a) (because movant is a State).
4. Nonetheless, in an abundance of caution given potential confusion, amicus
respectfully moves for any necessary leave to file an amicus brief at this stage, in
support of the rehearing en banc currently being considered by the Court. Even if
Circuit Rule 29-2 does not expressly address sua sponte consideration of en banc
review, an amicus brief by a State at this stage is allowed by Federal Rule of Appellate
Procedure 29(b). And the attached proposed brief includes material that is “desirable” and “relevant to the disposition of the case.” Fed. R. App. P. 29(a)(3); see 9th
Cir. R. 29-2(b). The amicus brief provides an overview of the federal immigration
laws against which plaintiffs’ statutory and constitutional claims should be evaluated; explains that the Executive Order reflects a policy decision delegated to the
Executive Branch expressly by Congress, and was issued after multiple federal officials drew public attention to serious flaws in the preexisting vetting scheme for aliens residing abroad who wish to enter this country under visas or as refugees; and
draws the Court’s attention to authorities relevant to the extension of constitutional
rights that plaintiffs advocate here. The attached amicus brief is filed before the February 16, 2017 deadline for the parties’ simultaneous briefs on whether the Court
should grant rehearing en banc.
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5. Amicus also requests leave to exceed the word limit by filing the attached
brief of 8,965 words. See 9th Cir. R. 29-2(c), 32-1(a). This is a case of national interest
with important and far-reaching foreign-affairs and national-security implications.
Every State has a substantial interest in the health and welfare of their citizens, but
the States must rely on the federal Executive to determine when the entry of aliens
should be suspended for public-safety reasons under a regime crafted by the States’
elected representatives in Congress. See generally Arizona v. United States, 132 S. Ct.
2492, 2507 (2012). The State of Texas thus has a substantial interest in the federal
government having the latitude to make policy judgments reserved to it by statute,
and inherent in this country’s nature as a sovereign, regarding the terms and conditions for whether aliens may enter the country.
6. Amicus has endeavored to assist the Court in resolving the weighty issues
in this case in as few words as possible. Critical to that effort is an understanding of
the structure of our nation’s immigration laws, which the attached brief provides, as
well as key precedents bearing on the sweeping constitutional theories that plaintiffs
argue. The attached amicus brief supporting rehearing en banc uses fewer than twothirds of the 14,000 words that this Court has allowed for the parties’ supplemental
en banc briefs and is fewer than the total words allowed if amicus had filed briefs at

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both the panel stage and this stage.1 Amicus submits that granting the request to exceed the word limit is particularly appropriate in light of the fact that over fifteen
amicus briefs were submitted in support of appellees at the panel-hearing stage.
7. Appellants consent to the relief requested in this motion, and appellees take
no position on it.

Conclusion
The State of Texas respectfully requests leave to file the attached brief as amicus
curiae supporting rehearing en banc.

1

“[A]micus filings during a court’s initial consideration of a case on the merits,”
Fed. R. App. P. 29(a)(1), have a word limit of 7,000 words, as one-half of the partybrief limit. Fed. R. App. P. 29(a)(5); 9th Cir. R. 32-1(a). A second brief “during a
court’s consideration of whether to grant panel rehearing or rehearing en banc,”
Fed. R. App. P. 29(b)(1), then has either a word limit of 2,600 words, Fed. R. App.
P. 29(b)(4), or an alternative 4,200-word limit for briefs while a “petition for rehearing” is pending, 9th Cir. R. 29-2(c)(2). The total words permitted for amicus briefs
at the initial and en-banc-consideration stages is thus either 9,600 or 11,200.
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Respectfully submitted.
Ken Paxton
Attorney General of Texas
Jeffrey C. Mateer
First Assistant Attorney General
s/ Scott A. Keller
Scott A. Keller
Solicitor General
J. Campbell Barker
Deputy Solicitor General
Ari Cuenin
Assistant Solicitor General
Office of the Attorney General
P.O. Box 12548 (MC 059)
Austin, Texas 78711-2548
Tel.: [phone]
Fax: [phone]
[e-mail]

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Certificate of Conference
This motion has been conferenced with counsel for the parties, and neither will
oppose the relief requested in this motion. Appellants consent to that relief, and appellees take no position on it.
s/ Scott A. Keller
Scott A. Keller

Certificate of Service
On February 15, 2017, this motion was served by CM/ECF on the following
counsel for the parties:
Counsel for Plaintiffs-Appellees:
Noah G. Purcell
Office of the Washington Attorney General
P.O. Box 40100
1125 Washington St., SE
Olympia, WA 98504
[e-mail]
Counsel for Defendants-Appellants:
Edwin S. Kneedler
United States Department of Justice
950 Pennsylvania Ave., N.W.
Room 5139
Washington, DC 20530
[e-mail]
s/ Scott A. Keller
Scott A. Keller

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Circuit Rule 32-2(a) Declaration
Pursuant to Circuit Rule 32-2(a), I declare that the State of Texas’s motion for
its amicus brief to exceed the type-volume limit is supported by substantial need.
This is a case of national interest with important and far-reaching foreign-affairs and
national-security implications. The State of Texas has a substantial interest in the
health and welfare of its citizens, and the States rely on the federal Executive to restrict the entry of aliens for public-safety reasons under a regime crafted by the
States’ elected representatives in Congress. See Arizona, 132 S. Ct. at 2507. The
State of Texas thus has a substantial interest in the federal government having the
latitude to make the policy judgments reserved to it by statute, and inherent in this
country’s nature as a sovereign, regarding the terms and conditions for whether aliens may enter the country.
I further declare that amicus has been diligent in endeavoring to assist the Court
in resolving the weighty issues in this case in as few words as possible. Critical to that
effort is an understanding of the structure of our nation’s immigration laws, which
the attached brief provides, as well as key precedents bearing on the sweeping constitutional theories that plaintiffs argue. The attached amicus brief supporting rehearing en banc uses fewer than 9,000 words to achieve these ends.
s/ Scott A. Keller
Scott A. Keller

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