State of Washington, et al v. Donald J. Trump, et al
Filing
66
Submitted (ECF) Amicus brief for review and filed Motion to become amicus curiae. Submitted by Law Professors. Date of service: 02/06/2017. [10304086] [17-35105] (Davis, Claire) [Entered: 02/06/2017 02:38 PM]
No. 17-35105
___________________________________________
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
___________________________________________
STATE OF WASHINGTON, et al.,
Plaintiffs-Appellees,
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 AMICI CURIAE
LAW PROFESSORS
IN SUPPORT OF NEITHER PARTY
Claire Loebs Davis
Jessica N. Walder
LANE POWELL PC
1420 Fifth Avenue, Suite 4200
Seattle, WA 98111
Telephone: 206.223.7000
Facsimile: 206.223.7107
Attorneys for Proposed Amici Curiae Law Professors
TABLE OF CONTENTS
Page
I.
INTERESTS OF AMICI CURIAE ............................................................... 1
II.
INTRODUCTION ......................................................................................... 1
III.
ARGUMENT................................................................................................. 2
A.
B.
IV.
Proprietary Interests ............................................................................ 3
Quasi-Sovereign Interests ................................................................... 6
CONCLUSION ........................................................................................... 11
i
TABLE OF AUTHORITIES
Page(s)
Cases
Alfred L. Snapp & Son, Inc. v. Puerto Rico ex rel. Barez,
458 U.S. 592 (1982)................................................................................2, 3, 7, 9
Danvers Motor Co., Inc. v. Ford Motor Co.,
432 F.3d 286, 293 (3rd Cir. 2006) ...................................................................... 4
Georgia v. Tennessee Copper Co.,
206 U.S. 230 (1907)............................................................................................ 7
Grutter v. Gratz,
539 U.S. 306 (2003).......................................................................................... 10
Lujan v. Defenders of Wildlife,
504 U.S. 555 (1992)....................................................................................4, 6, 9
Maryland People’s Counsel v. FERC,
760 F.2d 318 (D.C. Cir. 1985) (Scalia, J.) .......................................................... 7
Massachusetts v. EPA,
549 U.S. 497 (2007)..................................................................................8, 9, 11
Massachusetts v. Mellon,
262 U.S. 447 (1923)......................................................................................7, 10
North Dakota v. Minnesota,
263 U.S. 365 (1923) ........................................................................................... 7
Preminger v. Peake,
552 F.3d 757, 763 (9th Cir. 2008) ...................................................................... 5
United States v. Students Challenging Regulatory Agency
Procedures (SCRAP),
412 U.S. 669, 689 n.14 (1973)............................................................................ 5
United States v. Texas,
809 F.3d 134 (5th Cir. 2015) .............................................................................. 4
ii
Statutes
Administrative Procedure Act.................................................................................. 2
Other Authorities
Kathryn A. Watts & Amy J. Wildermuth, Massachusetts v. EPA:
Breaking New Ground on Issues Other Than Global Warming,
102 NW. U. L. REV. 1029 (2008), 102 NW. U. L. REV. COLLOQUY
1 (2007) ............................................................................................................... 2
Amy J. Wildermuth, Why State Standing in Massachusetts v. EPA
Matters,
27 J. LAND, RESOURCES, & ENVTL. L. 273 (2007).............................................. 2
Bradford Mank, Should States Have Greater Standing Rights Than
Ordinary Citizens?: EPA’s New Standing Test for States, 49 WM.
& MARY L. REV. 1701, 1769–74 (2008) ............................................................. 8
13A CHARLES ALAN WRIGHT ET AL., FEDERAL PRACTICE AND
PROCEDURE JURIS. 2D § 3531.11 (1984) ............................................................. 6
Henry Fountain, Science Will Suffer Under Trump’s Travel Ban,
Researchers Say, N.Y. TIMES (Jan. 30, 2017) .................................................. 10
U.S. Const. art. III ...........................................................................................passim
iii
I.
INTERESTS OF AMICI CURIAE
The non-party law professors are Todd Aagaard of Villanova University,
David E. Adelman of the University of Texas, Robin Kundis Craig of the
University of Utah, Lincoln L. Davies of the University of Utah, Noah Hall of
Wayne State University, David Owen of the University of California Hastings,
Zygmunt J. B. Plater of Boston College, Alexander T. Skibine of the University of
Utah, Lisa Grow Sun of Brigham Young University, Joseph P. Tomain of
University of Cincinnati, and Amy J. Wildermuth of the University of Utah (“the
Law Professors”). 1 The Law Professors research, teach, and write on federal courts,
constitutional law, and administrative law. They are scholars who have spent
considerable time studying state standing. As such, the Law Professors are
interested in ensuring that the Court’s decision on standing is consistent with this
evolving body of law. The Law Professors maintain a neutral position on the
underlying merits of the case, and are therefore not filing this brief in support of
either party.
II.
INTRODUCTION
The States of Washington and Minnesota (“States”) have brought a
1
Amici affirm that no counsel for any party authored this brief in whole or in
part, and no counsel or party made a monetary contribution intended to fund the
preparation or submission of this brief. No person other than Amici or their counsel
made a monetary contribution to its preparation or submission.
1
challenge to the Executive Order issued on January 27, 2017, asserting claims
under the U.S. Constitution as well as several federal statutes, including the
Administrative Procedure Act. The district court concluded that the State of
Washington (“Washington”) has Article III standing to sue based on both
proprietary and quasi-sovereign interests.
To date, there are few cases on state standing and, as a result, the Supreme
Court has provided limited guidance in this area. Amici offer this brief to provide
guidance on the appropriate analysis under existing law. 2
Based on our analysis of the factual pleadings and supporting declarations
filed by Washington, as clarified during oral argument, we believe the district
court was correct in finding that the States have standing to bring suit.
III.
ARGUMENT
When analyzing state standing, the first task is to identify the interest being
asserted by the state. In Alfred L. Snapp & Son, Inc. v. Puerto Rico ex rel. Barez,
458 U.S. 592 (1982), the Supreme Court articulated three categories of potential
2
This brief draws from two of the principal drafter’s articles: Amy J.
Wildermuth, Why State Standing in Massachusetts v. EPA Matters, 27 J. LAND,
RESOURCES,
&
ENVTL.
L.
273
(2007),
http://epubs.utah.edu/
index.php/jlrel/article/view/53/46, and Kathryn A. Watts & Amy J. Wildermuth,
Massachusetts v. EPA: Breaking New Ground on Issues Other Than Global
Warming, 102 NW. U. L. REV. 1029 (2008), 102 NW. U. L. REV. COLLOQUY 1
(2007),
http://www.law.northwestern.edu/lawreview/Colloquy/2007/17/
LRColl2007n17Watts.pdf.
2
interests when a sovereign brings suit:
(1) proprietary interests,
(2) quasi-sovereign interests, and
(3) sovereign interests.
Id. at 601–02. Each category requires a different analysis. It is therefore essential
in a case involving state standing that the analysis correctly identify the interest(s)
at stake. In this case, Washington has not claimed that a sovereign interest gives
rise to its ability to bring this suit. 3 Instead, it asserted both proprietary and quasisovereign interests as the basis for this lawsuit. We examine each in turn.
A.
Proprietary Interests
The most straightforward path for the State in this case to bring suit is to
demonstrate (1) that a federal action has harmed a proprietary interest of the State
and (2) that the State, on that basis, has satisfied the traditional test for standing.
Here, the district court correctly found that Washington demonstrated standing
based on harm to its proprietary interests.
Proprietary interests are direct interests of a state, such as ownership of land
or participation in a business venture. Id. These interests are the same kind that a
private party would assert in litigation. Id. As a result, when a state asserts an injury
3
Sovereign interests are unique to a state, such as the “power to create and
enforce a legal code, both civil and criminal.” Snapp, 458 U.S. at 601. Because the
State has not asserted a sovereign interest, we will not examine it further.
3
to or interference with this kind of interest, the state should be treated just as a
private party would when determining Article III standing. Id. at 611 (Brennan, J.,
concurring) (“At the very least, the prerogative of a State to bring suits in federal
court should be commensurate with the ability of private organizations.”). Courts
therefore require that sovereigns asserting a proprietary interest satisfy the wellknown requirements of Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992): In
order to have Article III standing to bring suit in federal court, a state must show
that (1) it has an actual and concrete injury, (2) the injury is traceable to the
defendant’s conduct, and (3) a favorable decision will likely redress the injury. Id.
at 560–61.
When any party—state or otherwise—claims monetary harm as its injury for
standing purposes, there is no minimum amount of harm that must be shown. In
fact, when monetary harm is alleged, the injury-in-fact “is often assumed without
discussion.” Danvers Motor Co., Inc. v. Ford Motor Co., 432 F.3d 286, 293 (3rd
Cir. 2006). For example, in United States v. Texas, 809 F.3d 134 (5th Cir. 2015),
the State of Texas brought suit against the federal government, challenging the
Deferred Action for Parents of Americans and Lawful Permanent Residents
(“DAPA”) program, including the requirement that the State issue drivers licenses
to undocumented aliens. The Fifth Circuit concluded that Texas had suffered a
proprietary injury-in-fact because the State had to incur “a minimum of $130.89”
4
in administrative costs for each license. Id. at 155; see also Preminger v. Peake,
552 F.3d 757, 763 (9th Cir. 2008) (relying on United States v. Students Challenging
Regulatory Agency Procedures (SCRAP), 412 U.S. 669, 689 n.14 (1973), which
held that the Court has “allowed important interests to be vindicated by plaintiffs
with no more at stake in the outcome of an action than a fraction of a vote, a $5
fine and costs, and a $1.50 poll tax.”)).
Here, Washington asserted, inter alia, that its institutions of higher
education, which are arms of the State, have lost and will continue to lose money
as a result of the Executive Order. 4 As documented in its complaints and
declarations, and clarified in argument before the district court, Washington has
proprietary interests in its universities that have been harmed by the Executive
Order. As a result of the travel ban, scholars and faculty affiliated with the
university will have to cancel trips and events that require international travel. See
ECF 17-2 5 (“Second Riedinger Decl.”) at ¶¶ 5-6; ECF 17-4 (“Second Chaudry
Decl.”) at ¶ 3. These cancellations will cost the universities the money they paid
for these trips, including potentially airfare, accommodations, and administrative
costs incurred for booking travel. See Second Chaudry Decl. at ¶ 7 (detailing
cancelled trip of a student impacted by the ban). In addition, because students and
4
Amici focus on the claims related to the State’s universities because they
are strong examples of the State’s proprietary interests.
5
ECF cites refer to the documents on the district court docket.
5
scholars who were admitted but are now banned from travel will be unable to
enroll, the universities will lose the money paid in processing the applications and
visas for these individuals, as well as any tuition dollars that would have been
collected. Second Riedinger Decl. at ¶ 10(b)-(d). In addition, for those performing
specific research or teaching tasks, replacements will need to be found, which, at a
minimum, requires additional administrative costs. See, e.g., ECF 9 (“First
Riedinger Decl.”) at ¶ 8.
Because Washington demonstrated (1) that its institutions of higher
education will suffer monetary damage, (2) that such damage is a result of the travel
ban, and (3) that they would not lose or have lost that money if the travel ban did
not exist, Washington has satisfied the traditional Lujan requirements for Article
III standing to sue and therefore is a proper party to bring this suit.
B.
Quasi-Sovereign Interests
The district court also properly found that Washington has standing on the
basis of its quasi-sovereign interests, i.e., in its role as parens patriae for its
citizens. Although this is a more difficult path for standing in this case, there is
clear support for the district court’s holding.
Quasi-sovereign interests are difficult to describe. The Supreme Court has
never precisely defined these interests, leading scholars to characterize them as
“admittedly vague.” 13A CHARLES ALAN WRIGHT ET AL., FEDERAL PRACTICE AND
6
PROCEDURE JURIS. 2D § 3531.11, at 31 (1984). When a sovereign brings suit based
on quasi-sovereign interests, “the State must articulate an interest apart from the
interests of particular private parties.” Snapp, 458 U.S. at 607. Snapp generally
described this separate interest as the State’s interest “in the well-being of its
populace,” id. at 602, and provided two examples of quasi-sovereign interests: (1)
a sovereign’s interest in protecting the health and well-being—“both physical and
economic”—of its citizens from injuries, such as transboundary pollution; 6 and (2)
a sovereign’s interest in seeing that its “residents are not excluded from the benefits
that flow from participation in the federal system,” such as when railroads conspire
to discriminatorily fix freight rates in a manner that harms a particular state’s
shippers. Id. at 607–08 (citation omitted).
Even where a state properly asserts a quasi-sovereign interest, if the state is
suing the federal government, one issue that arises is whether a state should be able
to sue to protect its residents from the federal government because the federal
government has a similar duty to protect those same residents. Previously,
Massachusetts v. Mellon, 262 U.S. 447 (1923), was understood to have erected a
bar to such suits: states could not sue the federal government based on their parens
patriae interests unless Congress waived the restriction. See Maryland People’s
6
See, e.g., North Dakota v. Minnesota, 263 U.S. 365 (1923) (flooding) and
Georgia v. Tennessee Copper Co., 206 U.S. 230 (1907) (air pollution in Georgia
caused by discharge of noxious gases from the defendant’s plant in Tennessee).
7
Counsel v. FERC, 760 F.2d 318, 322 (D.C. Cir. 1985) (Scalia, J.). In Massachusetts
v. EPA, 549 U.S. 497 (2007), however, the Court appeared to lift the bar to a state
litigating against the federal government when a quasi-sovereign interest is at stake.
In doing so, the Court explained:
there is a critical difference between allowing a State “to protect her
citizens from the operation of federal statutes” (which is what Mellon
prohibits) and allowing a State to assert its rights under federal law
(which it has standing to do). Massachusetts does not here dispute that
the Clean Air Act applies to its citizens; it rather seeks to assert its
rights under the Act.
Id. at 520 n.17. Although this passage seems to confuse the different interests a
state might have, the Court has never offered further clarification on this point. As
a result, it appears that after Massachusetts, a state can assert Article III standing
based on a quasi-sovereign interest of ensuring that its citizens are provided the
benefits of federal law, such as when the federal government acts or fails to act in
a way that violates federal statutory (as reflected in an APA claim) or constitutional
law. See, e.g., Bradford Mank, Should States Have Greater Standing Rights Than
Ordinary Citizens?: Massachusetts v. EPA’s New Standing Test for States, 49 WM.
& MARY L. REV. 1701, 1769–74 (2008).
Accordingly, once a state asserts a quasi-sovereign interest, what further
showing, if any, is required in order to establish standing? The Court’s most recent
articulation of what is required is also found in Massachusetts. There, the Court
8
recited the Lujan factors—injury-in-fact, causation, and redressability—and went
on to analyze each requirement. As the dissenting opinion pointed out, however,
the Court’s analysis appeared to substantially “[r]elax[]Article III standing
requirements.” Massachusetts, 549 U.S. at 536–37 (Roberts, C.J., dissenting).
Instead of a more rigid, traditional analysis of the Lujan factors, the Court
employed a “Lujan-lite” analysis, finding that Massachusetts had standing even
though its injury—the loss of coastal lands—would occur many years in the future,
and even though the relief sought by the parties was less than certain to
substantially remedy that harm. In so holding, the Court acknowledged that its
analysis was informed by the notion that states are entitled to “special solicitude”
when they assert quasi-sovereign interests. Id. at 520. 7
Because Massachusetts appears to have changed much and there has been
little additional guidance from the Court, the path for a state to assert standing on
the basis of a quasi-sovereign interest is less clear. In this case, Washington has
argued that at least two of its relevant interests related to the state’s universities are
quasi-sovereign.
First, Washington residents attending state universities have had their
7
It is important to note that Massachusetts v. EPA did limit its standing
analysis to territorial injuries. See Ex. E at 34:22–36:9 (ECF 14). The Court in
Massachusetts specifically noted, as Snapp did, the “direct and important economic
consequences” as part of the injury. Massachusetts, 549 U.S. 521–22.
9
education impacted by the federal government’s actions. When the federal
government restricted entry from the listed countries, it reduced the institutions’
ability to attract and retain students and faculty from certain countries, thus
diminishing and devaluing the rich and diverse learning environment that is core to
the mission of higher education. See Grutter v. Gratz, 539 U.S. 306, 330 (2003)
(“student body diversity promotes learning outcomes, and better prepares students
for an increasingly diverse workforce and society”); see also ECF 17-3
(“Boesenberg Decl.”) at ¶ 8.
Second, the ban inhibits the ability of Washington residents who are
members of the university communities to do important, life-saving research. Many
researchers must travel to present their work at conferences, which is critical to the
progress of research. Second Riedinger Decl. at ¶¶ 5-6. Equally important is the
ability to physically travel to sites where raw data or information is located that is
the subject of their research, as well as to travel to labs around the globe to learn
new techniques and processes. See, e.g., Henry Fountain, Science Will Suffer Under
Trump’s Travel Ban, Researchers Say, N.Y. TIMES (Jan. 30, 2017),
https://www.nytimes.com/2017/01/30/science/scientists-donald-trump-travelban.html?_r=0.
Because both of these grounds are quasi-sovereign interests, it appears
proper for Washington to bring suit on these bases. If, as explained above, there is
10
no Mellon-bar to a state bringing this suit against the federal government in its role
as parens patriae, then the district court’s finding that Washington also had
standing on these interests is correct. In fact, Washington’s asserted quasisovereign interests in this case are stronger than those in Massachusetts.
Massachusetts relied on injury to coastal lands many years in the future, a lengthy
causal chain, and unclear redressability in terms of solving climate change because
the regulation impacted only greenhouse gas emissions from new motor vehicles
in the United States. Here, Washington’s asserted injuries—e.g., to a student’s
learning environment and to a researcher’s ability to do her work—are clear, can
be directly tied to the travel ban, and would be immediately remedied by lifting the
ban.
IV.
CONCLUSION
Although amici offer no recommendation on the ultimate outcome of this
case, based on the analysis above, we believe the district court correctly found that
Washington has standing to bring this suit.
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DATED: February 6, 2017
LANE POWELL PC
By s/Claire Loebs Davis
Claire Loebs Davis, WSBA No. 39812
Jessica N. Walder, WSBA No. 47676
1420 5th Avenue, Suite 4200
Seattle, WA 98111
Telephone: 206.223.7000
Facsimile: 206.223.7107
Attorneys for Proposed Amicus Curiae
Law Professors
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CERTIFICATE OF COMPLIANCE
I hereby certify that the foregoing Motion complies with the type-volume
limitation of Fed. R. App. P. 29 because it contains 2596 words. This Motion
complies with the typeface and the type style requirements of Fed. R. App. P. 27
because this brief has been prepared in a proportionally spaced typeface using Word
14-point Times New Roman typeface.
s/ Claire Loebs Davis
Claire Loebs Davis
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CERTIFICATE OF SERVICE
I hereby certify that on February 6, 2017, I electronically filed the foregoing
with the Clerk of the Court for the United States Court of Appeals for the Ninth
Circuit using the appellate CM/ECF system. I certify that all participants in this
case are registered CM/ECF users and that service will be accomplished by the
appellate CM/ECF system.
DATED: February 6, 2017
Respectfully submitted,
s/Claire Loebs Davis
Claire Loebs Davis
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