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

Filing 55

Submitted (ECF) Amicus brief for review and filed Motion to become amicus curiae. Submitted by Service Employees International Union. Date of service: 02/06/2017. [10303775] [17-35105] (Berman, Steve) [Entered: 02/06/2017 01:14 PM]

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, et al.
Defendants-Appellants.
__________________________________________________
On Appeal from the United States District Court
for the Western District of Washington, Seattle
The Honorable James L. Robart
No. 2:17-cv-00141-JLR
_________________________________________________
SERVICE EMPLOYEES INTERNATIONAL UNION’S MOTION FOR
LEAVE TO FILE BRIEF AS AMICUS CURIAE IN SUPPORT OF
PLAINTIFFS-APPELLEES
__________________________________________________
Steve W. Berman
Andrew M. Volk
HAGENS BERMAN SOBOL
SHAPIRO LLP
1918 Eighth Ave., Suite 3300
Seattle, WA 98101
Telephone: [phone]
[e-mail]
[e-mail]

Nicole G. Berner
Deborah L. Smith
Trisha S. Pande
SERVICE EMPLOYEES
INTERNATIONAL UNION
1800 Massachusetts Avenue, NW
Washington, DC 20036
Telephone: [phone]
[e-mail]
[e-mail]
[e-mail]

Attorneys for Amicus Curiae Service Employees International Union
007000-18 934862 V1

TABLE OF CONTENTS
Page
I.

INTRODUCTION ............................................................................. 1

II.

ARGUMENT ..................................................................................... 1
A.
B.

Service Employees International Union Has the
Requisite Interest.................................................................... 3

C.

SEIU Can Provide Helpful Information To The
Court That Will Not Duplicate Arguments
Presented By The Parties ....................................................... 3

D.
III.

This Court Has Broad Discretion To Allow The
Participation Of Amici Curiae ................................................ 2

The Amicus Brief is Timely .................................................... 4

CONCLUSION ................................................................................. 5

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TABLE OF AUTHORITIES
Page(s)
Cases

Miller-Wohl Co., Inc. v. Comm’r of Labor and Indus.,
Montana,

694 F.2d 203 (9th Cir. 1982) .................................................................. 2

NOW, Inc. v. Scheidler,

223 F.3d 615 (7th Cir. 2000) .................................................................. 2
Other Authorities

4 Am. Jur. 2d, Amicus Curiae § 6 (2004) ................................................... 2
Fed. R. App. P. 29(b)(1) .............................................................................. 2
Fed. R. App. P. 29(e) ............................................................................... 4, 5

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I.

INTRODUCTION

The Service Employees International Union (“SEIU”) respectfully
moves for leave to file an amicus curiae brief in support of PlaintiffsAppellees. A copy of the proposed brief is attached is submitted
herewith. The Defendants-Appellants initially gave blanket consent to
the filing of all amicus briefs. However, at 10:34 p.m. PST (1:34 a.m.
EST) on February 5, amici were informed that Defendants-Appellants
altered their position from a uniform consent for the filing of all amicus
briefs, to providing consent solely if the amicus briefs were filed by the
deadline for the State of Washington’s brief of 11:59 p.m. PST (2:59 a.m.
EST)—i.e., less than an hour-and-a-half after the SEIU received notice
of Defendants’ backtracking. Notwithstanding the Department of
Justice’s apparent objection, SEIU respectfully submits that its filing of
the attached brief is timely, desirable, and worthy of this Court’s
consideration.
II.

ARGUMENT

The goal of any amicus curiae is “to call the court’s attention to …
facts or circumstances in a matter then before it that may otherwise

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escape its consideration.”1 The fundamental requirements of Rule 29 of
the Federal Rules of Appellate Procedure are that an amicus curiae
brief be “relevant” and “desirable.”2 The proposed brief here satisfies
both requirements.
A.

This Court Has Broad Discretion To Allow The Participation Of
Amici Curiae
Permitting a nonparty to submit a brief as amicus curiae is, “with

immaterial exceptions, a matter of judicial grace.”3 Circuit courts,
including this Court, have rarely disclosed the considerations weighed
when deciding a motion for leave to file an amicus brief. But the Ninth
Circuit has recognized that the classic role of an amicus is “assisting in
a case of general public interest, supplementing the efforts of counsel,
and drawing the court’s attention to law that escaped consideration.”4

1

4 Am. Jur. 2d, Amicus Curiae § 6 (2004).

2

Fed. R. App. P. 29(b)(1).

3

NOW, Inc. v. Scheidler, 223 F.3d 615, 616 (7th Cir. 2000).

4

Miller-Wohl Co., Inc. v. Comm’r of Labor and Indus., Montana, 694 F.2d 203,
204 (9th Cir. 1982).

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B.

Service Employees International Union Has the Requisite Interest
The Service Employees International Union is an international

labor organization representing approximately two million working men
and women in the United States and Canada employed in the private
and public sectors. In the State of Washington alone, SEIU’s localunion membership exceeds 126,000. Members include public school
teachers, janitors, security officers, nurses, and long-term care workers
who provide quality healthcare, education, and building services to
Washington residents. Many of SEIU’s Washington-resident members
are foreign-born U.S. citizens, lawful permanent residents, or
immigrants authorized to work in the United States. And many of
SEIU’s Washington-resident members have mixed-status families.
C.

SEIU Can Provide Helpful Information To The Court That Will
Not Duplicate Arguments Presented By The Parties
The accompanying amicus brief from SEIU provides additional

information showing why the State of Washington has standing to
challenge President Donald J. Trump’s January 27, 2017 Executive
Order (“Executive Order.”). The amicus brief contains factual
information that will assist the Court in resolving the parties’

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competing claims on that issue, without duplicating the parties’
arguments. The brief documents that the impact of the Executive
Order on the SEIU and Washington residents and others across the
nation – including SEIU members – is profound. These immediate,
real-word impacts highlight the States’ pressing interest in protecting
their residents and their tax bases by providing real-life examples of the
immediate and irreparable harm that will occur if the Executive Order
is allowed to stand.
D.

The Amicus Brief is Timely
The filing of this motion with the accompanying brief is timely.

Under the Federal Rules of Appellate Procedure, the brief of an amicus
is due “no later than seven days after the principal brief of the party
being supported is filed.” Fed. R. App. P. 29(e). In this case, the parties
being supported by SEIU are the States of Washington and Minnesota,
and the States of Washington and Minnesota filed their principal briefs
on Sunday, February 5, 2017. The United States has not yet filed its
response. Accordingly, the instant motion and brief are being filed well
within the seven day time frame that would apply under the appellate

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rules. Alternatively, and again drawing on the appellate rules, this
Court can exercise its discretion, as it deems necessary and appropriate,
and specify a time within which the United States may “answer” the
amicus brief from SEIU. See Fed. R. App. P. 29(e).
III.

CONCLUSION

The Court should therefore exercise its discretion to permit SEIU
to file the attached amicus brief. Counsel of record for SEIU is familiar
with the scope of the arguments presented by the parties and will not
unduly repeat those arguments. Instead, the SEIU draws from its
communications with residents from Washington and around the nation
– including SEIU members and their families. These communications
illustrate the profound, widespread, and irreparable harm the
Executive Order has caused and would continue to cause if the District
Court’s Temporary Restraining Order were undone.

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DATED: February 6, 2017
Nicole G. Berner
Deborah L. Smith
Trisha S. Pande
SERVICE EMPLOYEES
INTERNATIONAL UNION
1800 Massachusetts Avenue, NW
Washington, DC 20036
Telephone: [phone]
[e-mail]
[e-mail]
[e-mail]

HAGENS BERMAN SOBOL
SHAPIRO LLP
By

/s/ Steve W. Berman

Steve W. Berman
Andrew M. Volk
1918 Eighth Avenue, Suite 3300
Seattle, Washington 98101
Telephone: [phone]
[e-mail]
[e-mail]

Attorneys for Amicus Curiae Service Employees
International Union

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CERTIFICATE OF SERVICE
I 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 6, 2017.
All participants in the case are registered CM/ECF users and will
be served by the appellate CM/ECF system.
HAGENS BERMAN SOBOL SHAPIRO LLP
By

/s/ Steve W. Berman

Steve W. Berman
1918 Eighth Avenue, Suite 3300
Seattle, Washington 98101
Telephone: [phone]
[e-mail]

Attorney for Amicus Curiae Service
Employees International Union

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