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

Filing 148

Filed (ECF) Amicus Curiae Freedom Watch, Inc. Motion to file oversized brief. Date of service: 02/15/2017. [10320148] [17-35105] (Klayman, Larry) [Entered: 02/15/2017 09:16 AM]

CASE NO. 17-35105
IN THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

STATE OF WASHINGTON, et al.,
Appellants
v.
DONALD J. TRUMP, PRESIDENT, et al.,
Appellees

ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WASHINGTON,
CASE NO. 2:17-cv-00141-JLR
MOTION FOR LEAVE TO FILE AMICUS CURIAE BRIEF BY
FREEDOM WATCH, INC., IN EXCESS OF 4,200 WORDS
IN SUPPORT OF EN BANC REVIEW OF APPELLANT'S
EMERGENCY MOTION FOR STAY PENDING APPEAL
Larry Klayman, Esq.
FREEDOM WATCH, INC.
2020 Pennsylvania Ave. NW, Suite 345
Washington, DC 20006
Telephone: [phone]
Email: [e-mail]
Attorney for Amicus Curiae
February 15, 2017

MOTION FOR LEAVE TO FILE AMICUS CURIAE BRIEF
IN EXCESS OF 4,200 WORDS
Amicus Curiae Freedom Watch, Inc. (“Freedom Watch”) hereby moves
this Court for leave to file its Amicus Curiae brief as currently written at the
current length of 6,373 words -- including the Statement of Interest of Amicus
Curiae -- notwithstanding the normally-governing rules for briefs on rehearing
by en banc review.
Based on the clerk’s notification we now understand that an amicus brief
submitted to support or oppose rehearing is limited to 15 pages or 4,200 words,
pursuant to 9th Cir. R. 29-2(c)(2). The proposed brief is 6,373 words.
However, in this extraordinary case the Chief Judge of the U.S. Court of
Appeals for the Ninth Circuit issued a Supplemental Briefing Order on February
10, 2017, ordering inter alia in relevant part:
The briefs should be filed on or before 11:00 a.m.,
Pacific time, on Thursday, February 16. The
supplemental briefs shall be filed electronically and
consist of no more than 14,000 words. See General
Order 5.4(c)(3).
Id. (emphasis added).
Pursuant to Federal Rules of Appellate Procedure ("FRAP") Rule 29(a)(5)
regarding contents and form and the maximum length:

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(d) Length. Except by the court’s permission, an amicus
brief may be no more than one-half the maximum length
authorized by these rules for a party’s principal brief. If
the court grants a party permission to file a longer brief,
that extension does not affect the length of an amicus
brief.
Following this rule of one-half the maximum length ordered by this
Court's Chief Judge for a party’s principal brief of 14,000 words, an amicus brief
could be one-half of 14,000 words or 7,000 words. The brief filed by Freedom
Watch is only 6,373 words.
Nevertheless, as advised by the clerk, FRAP Rule 29(a)(5)(d) by its
express terms does not automatically adjust the maximum word length for an
amicus curiae brief upon an enlargement of the word limits for a principal party's
brief.
Yet FRAP Rule 29(a)(5)(d) does permit an enlargement of the word limits
for an amicus curiae brief, stating that the subparagraph of the Rule applies
"Except by the court’s permission, ...."
Here, the controversy in this case turns largely on factual issues
concerning the balance of the harm in evaluating a Temporary Restraining Order
("TRO") and/or injunction staying that TRO and the existence of a bona fide
threat of terrorism, as well as factual claims that an Executive Order which
entirely ignores aliens from 42 other Muslim-majority nations and applies only to

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those from 7 out of the world's 49 Muslim-majority nations (sometimes counted
as 51 or 52 total) is motivated by animus toward Muslims rather than by a
determination of actual national security threats, and whether aliens cannot be
meaningfully vetted from those 7 nations because of the lack of reliable records
from the 7 "failed states" and terrorist sponsor Iran identified by President
Barack Obama's administration.
Therefore, it is unusually challenging to cover the topics at issue without
consuming 6,373 words.

Also implicated are issues of standing, the non-

justiciability political question doctrine, severability, the legal definition of
irreparable harm and dismissal of the case under forum non conveniens.
Furthermore, while the unfolding filings are a fluid situation, it appears as
Freedom Watch's impression that the amicus curiae briefs submitted have been
overwhelmingly on one side, on the side of the Appellees, and only a few on the
side of the Appellant. Therefore, it would seem to be of substantial benefit to the
Court's consideration to ensure that all points of view are before this Court in the
record and during its contemplation of these complex issues.
The Amicus Curiae's brief is filed concurrently herewith on February 14,
2017. Freedom Watch is a public interest group dedicated to preserving freedom,
pursuing individual rights and civil liberties, preserving the rule of law and
public confidence in the courts, and fighting for ethics in government and the
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judicial system, as well as investigating and prosecuting government corruption
and abuse. As part of its goal to remain constant to the principles of the Founding
Fathers, Freedom Watch is dedicated to ensuring the rights of all citizens through
action, frequently with legal cases and other means.

As set forth in the

accompanying brief, Freedom Watch’s Amicus Brief would be useful given
Freedom’s Watch’s experience in this arena, among other reasons.
Pursuant to Circuit Rule 29-3, Freedom Watch sought consent from
Appellees and Appellant for the filing the Amicus Brief. All parties have
consented. Thus, this Court is relieved of its duty to consider a motion pursuant
to Circuit Advisory Committee Note to Rule 29-3. (“FRAP 29(a) permits the
timely filing of an amicus curiae brief without leave of the Court if all parties
consent to the filing of the brief; obtaining such consent thus relieves the Court
of the need to consider a motion.”). Freedom Watch now respectfully asks that
leave be granted to file its brief of 6,373 words.
Dated: February 15, 2017

Respectfully submitted,
/s/ Larry Klayman, Esq.
Larry Klayman, Esq.
FREEDOM WATCH, INC.
2020 Pennsylvania Avenue N.W.,
Suite 345
Washington, D.C. 20006
Telephone: [phone]
[e-mail]
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CERTIFICATE OF SERVICE
I hereby certify that service of the foregoing motion and proposed brief will
be delivered electronically on February 15, 2017, to counsel for Plaintiffs and
Defendants through the District’s Electronic Case Filing system.
/s/ Larry Klayman, Esq.
Larry Klayman, Esq.
FREEDOM WATCH, INC.

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