State of Hawaii v. Trump

Filing 23

Emergency MOTION to Stay re 18 Link,,, Michelle R. Bennett appearing for Defendants John F. Kelly, Rex Tillerson, Donald J. Trump, U.S. Department of Homeland Security, U.S. Department of State, United States of America (Attachments: # 1 Memorandum, # 2 Proposed Order)(Bennett, Michelle)

CHAD A. READLER
Acting Assistant Attorney General
FLORENCE T. NAKAKUNI (No. 2286)
United States Attorney
EDRIC CHING (No. 6697)
Assistant United States Attorney
JOSEPH H. HUNT
Director
JOHN R. TYLER
Assistant Branch Director
MICHELLE R. BENNETT (Co. Bar. No. 37050)
DANIEL SCHWEI (N.Y. Bar)
ARJUN GARG (D.C. Bar No. 975335)
Trial Attorneys
United States Department of Justice
Civil Division, Federal Programs Branch
20 Massachusetts Ave NW
Washington DC 20530
Tel: [phone]
Fax: [phone]
E-mail: [e-mail]

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
)
STATE OF HAWAIʻI,
)
)
Plaintiff,
)
)
v.
)
)
DONALD J. TRUMP, in his official )
capacity as President of the United
)
States; U.S. DEPARTMENT OF
)
HOMELAND SECURITY; JOHN F. )
KELLY, in his official capacity as
)
Secretary of Homeland Security; U.S. )

No. 1:17-cv-00050-DKW-KJM
DEFENDANTS’ MEMORANDUM
OF LAW IN SUPPORT OF
EMERGENCY MOTION TO STAY
ALL DEADLINES PENDING
RESOLUTION OF APPELLATE
PROCEEDINGS REGARDING
NATIONWIDE INJUNCTION
Judge: Hon. Derrick K. Watson

DEPARTMENT OF STATE; REX
)
TILLERSON, in his official capacity as)
Secretary of State; and the UNITED )
STATES OF AMERICA,
)
)
Defendants.
)
)
DEFENDANTS’ MEMORANDUM OF LAW IN SUPPORT OF
EMERGENCY MOTION TO STAY ALL DEADLINES PENDING
RESOLUTION OF APPELLATE PROCEEDINGS REGARDING
NATIONWIDE INJUNCTION

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TABLE OF CONTENTS
TABLE OF CONTENTS ......................................................................................... iii
INTRODUCTION .....................................................................................................1
BACKGROUND .......................................................................................................2
STANDARD OF REVIEW .......................................................................................5
ARGUMENT .............................................................................................................6
I.

Compelling Reasons Justify Granting a Stay Pending a Ruling from
the Ninth Circuit. .............................................................................................7
A.

B.

Granting a Stay Is Supported by Judicial Economy and
Simplification of the Proceedings. ........................................................9

C.
II.

There Is No Urgency Requiring Immediate Proceedings
Regarding the State’s Request for a Temporary Restraining
Order. .....................................................................................................7

A Stay of Proceedings Would Avoid Any Potential Harm to the
Government. ........................................................................................10

Defendants’ Proposed Approach Is the Most Sensible Way to Proceed. ...... 11

CONCLUSION ........................................................................................................12

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INTRODUCTION
The State of Hawaii has filed a motion for a temporary restraining order
against certain sections of an Executive Order signed by the President on
January 27, 2017, titled “Protecting the Nation from Foreign Terrorist Entry into
the United States.” See ECF No. 2. This Court set a deadline of Tuesday,
February 7, for the Government’s response to the State of Hawaii’s motion, and
also scheduled a hearing for Wednesday, February 8. See ECF No. 18. Since the
Court set that schedule, however, there have been significant changed
circumstances: the President’s Executive Order is now subject to a nationwide
injunction pursuant to an order from the Western District of Washington, and that
order is now on appeal before the United States Court of Appeals for the Ninth
Circuit.
In light of these significant intervening events, there is no longer any
urgency associated with the State of Hawaii’s motion. The order from the Western
District of Washington already provided all the relief the State of Hawaii is
seeking, so there is no longer any plausible basis for claiming imminent or ongoing
irreparable harm to the State. Moreover, the Ninth Circuit is likely to rule on the
similar (if not identical) claims brought by the State of Washington in relatively
short order. Particularly given that the purported emergency justifying the State of
Hawaii’s original motion has now disappeared, the interests of judicial economy

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support a stay of these proceedings to allow the parties and this Court to have the
benefit of whatever ruling is issued by the Ninth Circuit on these legal issues.
Accordingly, the Government hereby respectfully requests that the existing
deadlines in this case be stayed pending resolution of the appeal of the Western
District of Washington order. Alternatively, the Government requests that this
Court issue such a stay pending resolution of the appeal, but provide that if the
Western District of Washington’s nationwide injunction is no longer in effect then
the Government must respond to the State of Hawaii’s motion for a temporary
restraining order within 48 hours.
BACKGROUND
On Friday, January 27, 2017, the President issued the Executive Order that is
the subject of this lawsuit. See Compl. (ECF No. 1) ¶ 2 & n.1. The State of
Hawaii filed its Complaint on Friday, February 3, 2017. Id. That same day, the
State also filed a motion for a temporary restraining order, see ECF No. 2, which
sought to enjoin nationwide Sections 3(c), 5(a)-(c), and 5(e) of the Executive
Order. See Proposed Order (ECF No. 2-3) at 3-4, ¶ 1. Later that same day, the
Court set the following schedule regarding the State’s motion for a temporary
restraining order:
The Court is in receipt of Plaintiff State of Hawaii’s Motion for
Temporary Restraining Order (“TRO”). Dkt. No. 2. The Government
shall file a response to the Motion for TRO by Tuesday, February 7,

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2017 at 12:00 noon (HST). The Court will hold a hearing on the
Motion for TRO on Wednesday, February 8, 2017 at 9:30 a.m (HST).
ECF No. 18.
Separately, the State of Washington—later joined by the State of
Minnesota—also challenged the Executive Order. The State of Washington filed
suit in the Western District of Washington on Monday, January 30, 2017. See
Washington v. Trump, Case No. 2:17-cv-141-JLR (W.D. Wash.). Washington also
filed that same day a motion for a temporary restraining order, seeking to enjoin
nationwide enforcement of the Executive Order. See Wash. v. Trump (W.D.
Wash.), ECF No. 3. The Court in that case required a written response from the
Government, and scheduled a hearing on the motion for Friday, February 3, 2017.
See Wash. v. Trump (W.D. Wash.), ECF No. 10 (Minute Entry of Jan. 31, 2017).
The hearing on Washington’s request for a temporary restraining order
occurred as scheduled on February 3. At the conclusion of the hearing, the Court
orally granted Washington’s motion, and enjoined enforcement of Sections 3(c),
5(a)-(c), and 5(e) on a nationwide basis—the same Sections of the Executive Order
challenged by Hawaii. The Court followed its oral ruling with a written order
memorializing the injunction. See Wash. v. Trump (W.D. Wash.), ECF No. 52.
The next day—February 4, 2017—the Government filed a notice of appeal
of the order to the United States Court of Appeals for the Ninth Circuit. See Wash.
v. Trump (W.D. Wash.), ECF No. 53; see also Washington v. Trump, Case No. 17-3-

35105 (9th Cir.). Later that day the Government filed an emergency motion to stay
the district court’s order. See Wash. v. Trump (9th Cir.), ECF No. 14. The Ninth
Circuit rejected the Government’s request for an immediate administrative stay, but
set an expedited briefing schedule on the stay request:
The court has received appellants’ emergency motion (Docket
Entry No. 14). Appellants’ request for an immediate administrative
stay pending full consideration of the emergency motion for a stay
pending appeal is denied.
Appellees’ opposition to the emergency motion is due Sunday,
February 5, 2017 at 11:59 p.m. PST. Appellants’ reply in support of
the emergency motion is due Monday, February 6, 2017 at 3:00 p.m.
PST.
Wash. v. Trump (9th Cir.), ECF No. 15.1
On February 5, 2017, the State of Hawaii filed a motion to intervene in the
Washington v. Trump proceedings in the United States Court of Appeals or,
alternatively, to participate as amicus curiae. See Wash. v. Trump (9th Cir.), ECF
No. 21-1. The United States intends to oppose the State of Hawaii’s intervention,
but will not oppose Hawaii’s participation as amicus.
Undersigned counsel for the United States contacted counsel for the State of
Hawaii about staying the existing deadlines in this case, given that the Executive
Order is currently enjoined nationwide, there are ongoing proceedings in the Ninth
1

The Court of Appeals later changed the deadline for Appellees’ opposition
to be 1:00 a.m. PST on Monday, February 6, 2017, due to a regularly scheduled
ECF outage. See Wash. v. Trump (9th Cir.), ECF No. 16.

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Circuit, and the State of Hawaii seeks to participate in those proceedings. The
Attorney General of the State of Hawaii informed undersigned counsel that the
State opposes this motion to stay.
STANDARD OF REVIEW
“The District Court has broad discretion to stay proceedings as an incident to
its power to control its own docket.” Clinton v. Jones, 520 U.S. 681, 706 (1997).
That power applies “especially in cases of extraordinary public moment,” when “a
plaintiff may be required to submit to delay not immoderate in extent and not
oppressive in its consequences if the public welfare or convenience will thereby be
promoted.” Id. at 707 (modifications omitted).
The Ninth Circuit has described various factors that should be considered
when evaluating a motion to stay:
Where it is proposed that a pending proceeding be stayed, the
competing interests which will be affected by the granting or refusal
to grant a stay must be weighed. Among these competing interests are
the possible damage which may result from the granting of a stay, the
hardship or inequity which a party may suffer in being required to go
forward, and the orderly course of justice measured in terms of the
simplifying or complicating of issues, proof, and questions of law
which could be expected to result from a stay.
CMAX, Inc. v. Hall, 300 F.2d 265, 268 (9th Cir. 1962). Related to the last factor,
courts frequently grant stays when there are ongoing “independent proceedings
which bear upon the case,” because a stay is most “efficient for [the court’s] own
docket and the fairest course for the parties[.]” Leyva v. Certified Grocers of
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California, Ltd., 593 F.2d 857, 863 (9th Cir. 1979). Courts also issue stays in order
to respect “the general principle” that federal district courts should “avoid
duplicative litigation.” Colorado River Water Conservation Dist. v. United States,
424 U.S. 800, 817 (1976); see also M.M. v. Lafayette Sch. Dist., 681 F.3d 1082,
1091 (9th Cir. 2012) (“It is well established that a district court has broad
discretion to control its own docket, and that includes the power to dismiss
duplicative claims.”).
ARGUMENT
Since the Court issued the briefing and scheduling order in this case, see
ECF No. 18, there have been changed circumstances that have eliminated the need
for urgent action by this Court. First, there is now a nationwide injunction in place
that has provided the State of Hawaii with all of the relief requested in its own
motion for a temporary restraining order. Thus, there is no present urgency
requiring this Court’s involvement on an emergency, expedited basis. Second, the
United States has appealed that nationwide injunction to the United States Court of
Appeals for the Ninth Circuit, which is expected to issue a ruling in relatively short
order. That ruling is likely to have substantial bearing on—if not entirely
resolve—how this Court should analyze the claims raised by the State of Hawaii
here. Together, these changed circumstances offer compelling reasons for the
Court to stay the deadlines in this case pending resolution of the appeal of the

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Western District of Washington’s order. At a minimum, the Court should stay the
deadlines pending resolution of that appeal, but provide that if the Western District
of Washington’s nationwide injunction is no longer in effect then the Government
must respond to the State of Hawaii’s motion for a temporary restraining order
within 48 hours.
I.

Compelling Reasons Justify Granting a Stay Pending a Ruling from the
Ninth Circuit.
Turning to the particular factors identified by the Ninth Circuit—prejudice to

each party and simplification of the issues resulting from a stay—they all
convincingly weigh in favor of a stay. The changed circumstances above have
eliminated any need for this Court to undertake expedited, emergency
consideration of the important issues at stake in this lawsuit.
A.

There Is No Urgency Requiring Immediate Proceedings
Regarding the State’s Request for a Temporary Restraining
Order.

The fundamental premise of a party’s request for a temporary restraining
order is that irreparable harm is so imminent that immediate action is needed. Cf.
R.F. v. Delano Union Sch. Dist., --- F. Supp. 3d ----, 2016 WL 7338597, at *4 (E.D.
Cal. Dec. 19, 2016) (noting that a temporary restraining order “is granted only if
there is a true emergency which requires ‘preserving the status quo and preventing
irreparable harm’” (quoting Granny Goose Foods, Inc. v. Bhd. of Teamsters & Auto
Truck Drivers, 415 U.S. 423, 439 (1974))).
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Here, however, there is no such immediate danger of irreparable harm: the
challenged provisions of the Executive Order are currently enjoined on a
nationwide basis. Indeed, the order entered by the District Court in the State of
Washington litigation provides exactly the same relief that Hawaii is seeking in its
motion for a temporary restraining order. Compare Hawaii’s Proposed TRO (ECF
No. 2-3) at 3-4 ¶ 1 (requesting nationwide injunction prohibiting enforcement of
“Sections 3(c), 5(a)-(c), and 5(e) of the Executive Order”), with Wash. v. Trump
(W.D. Wash.), TRO Order (ECF No. 52) at 5-6 ¶¶ 1-2 (“This TRO is granted on a
nationwide basis and prohibits enforcement of Sections 3(c), 5(a), 5(b), 5(c), and
5(e) of the Executive Order[.]”).
Given that there is no threat of irreparable injury to the State of Hawaii for
as long as the Western District of Washington’s nationwide injunction remains in
place, there is simply no need for expedited, emergency proceedings in this action.
To the extent the State of Hawaii seeks to ensure a nationwide injunction remains
in effect, it is free to make those arguments before the Ninth Circuit as an amicus
curiae, which the Government does not oppose. But given that the State of Hawaii
cannot plausibly claim there is any present urgency—the Executive Order is
enjoined nationwide—there is simply no need for this Court to continue with the
expedited briefing and hearing schedule previously ordered.

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B.

Granting a Stay Is Supported by Judicial Economy and
Simplification of the Proceedings.

The nationwide injunction issued by the Western District of Washington is
now on appeal before the Ninth Circuit. Staying the proceedings in this case
pending resolution of that appeal makes eminent sense because it would support
judicial economy, and would allow the parties here to address the relevant issues
with the benefit of any ruling from the Ninth Circuit.
As the State of Hawaii itself argued to the Ninth Circuit, the resolution of
that appeal “could have a binding effect” on the present lawsuit. See Wash. v.
Trump (9th Cir.), ECF No. 21-1 at 4-5; see also id. at 9. Given that many (if not
all) of the critical legal issues presented in Hawaii’s motion for a temporary
restraining order are now before the Ninth Circuit, it makes little sense for this
Court (and the parties) to expend the resources necessary for a full presentation of
those issues at this time. It would be far more efficient for the parties to await a
decision from the Ninth Circuit, at which point most (if not all) of the legal issues
may then have definitive resolution, and briefing and consideration of any
remaining legal issues would be better informed by having the benefit of the Ninth
Circuit’s analysis. There can be no question, therefore, that a stay would serve “the
orderly course of justice” by “simplifying . . . issues, proof, and questions of law”
that this Court would need to confront. CMAX, 300 F.2d at 268; see also Leyva,
593 F.2d at 863 (“A trial court may, with propriety, find it is efficient for its own
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docket and the fairest course for the parties to enter a stay of an action before it,
pending resolution of independent proceedings which bear upon the case.”).
The Government’s request in the Ninth Circuit for a stay of the nationwide
injunction is being heard on an extremely fast timeline—the Government has less
than 24 hours to prepare its reply brief, which is scheduled to be submitted later
this evening. See Wash. v. Trump (9th Cir.), ECF No. 15. Particularly given that
the appeal proceedings are occurring on such an expedited timeline, a stay of these
proceedings is warranted. See Unitek Solvent Servs., Inc. v. Chrysler Grp. LLC,
2014 WL 12576648, at *3 (D. Haw. Jan. 14, 2014) (“Plaintiff’s appeal has been
expedited in accordance with Ninth Circuit rules relating to preliminary injunction
appeals, and briefing will already be completed this month. Under this timeline,
the Court finds that a delay pending appeal is reasonable and does not preclude the
issuance of a stay.” (citation omitted)).
Staying these proceedings to allow the parties and the Court to have the
benefit of the Ninth Circuit’s ruling makes eminent sense. A stay here is wellsupported by judicial economy and conserving the parties’ resources.
C.

A Stay of Proceedings Would Avoid Any Potential Harm to the
Government.

Granting a stay of the district court proceedings in this case would also avoid
potential harm to the Government. Specifically, the Government should not be
required to defend against the State of Hawaii’s identical legal claims in two cases
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simultaneously. Nor should the Government be compelled to submit briefing on an
expedited, emergency basis when there is no longer any plausible claim of urgency
by the State—especially given the important public policy issues at stake. Cf.
Clinton, 520 U.S. at 707 (explaining that “especially in cases of extraordinary
public moment, a plaintiff may be required to submit to delay” (modifications
omitted)). For all these reasons, a short stay of district court proceedings is amply
warranted.
II.

Defendants’ Proposed Approach Is the Most Sensible Way to Proceed.
Consistent with the above reasons for granting a stay, the Government

requests a stay of these proceedings until the conclusion of all appellate
proceedings regarding the Western District of Washington’s nationwide order. This
stay would further the interests of judicial economy, by ensuring that any rulings
necessary in this case would have the full benefit of the Ninth Circuit’s (and
potentially the Supreme Court’s) analysis on similar (if not identical) claims
presented by the State of Washington.
At a minimum, this Court should stay district court proceedings pending
resolution of the appeal, but provide that if the Western District of Washington’s
nationwide injunction is no longer in effect then the Government must respond to
the State of Hawaii’s motion for a temporary restraining order within 48 hours.
This could occur, for example, if the Ninth Circuit were to grant the Government’s

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request for a stay of the injunction pending appeal. As long as the Western District
of Washington’s nationwide injunction remains in effect, however, there is no need
for expedited proceedings in this Court. While the injunction remains in effect,
there is no plausible harm to the State of Hawaii in awaiting the outcome of the
appellate proceedings. And this proposed schedule would not impose any
meaningful delay or harm on the State of Hawaii; any slight delay is amply
justified by the interests of judicial economy and avoiding duplicative litigation.
CONCLUSION
The Government respectfully requests a stay of these proceedings until the
conclusion of all appellate proceedings regarding the Western District of
Washington’s nationwide order. Alternatively, the Government respectfully
requests that this Court stay the existing deadlines pending resolution of that
appeal, but provide that if the Western District of Washington’s nationwide
injunction is no longer in effect then the Government must respond to the State of
Hawaii’s motion for a temporary restraining order within 48 hours.
Dated: February 6, 2017

Respectfully submitted,
CHAD A. READLER
Acting Assistant Attorney General
FLORENCE T. NAKAKUNI
United States Attorney
EDRIC CHING
Assistant United States Attorney
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JOSEPH H. HUNT
Director
JOHN R. TYLER
Assistant Branch Director
/s/ Michelle R. Bennett
MICHELLE R. BENNETT (Co. Bar No.
37050)
DANIEL SCHWEI (N.Y. Bar)
ARJUN GARG (D.C. Bar No. 975335)
Trial Attorneys
United States Department of Justice
Civil Division, Federal Programs Branch
20 Massachusetts Ave NW
Washington DC 20530
Tel: [phone]
Fax: [phone]
E-mail: [e-mail]
E-mail: [e-mail]
Attorneys for Defendants

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CERTIFICATE OF COMPLIANCE WITH WORD LIMITATION
I hereby certify that the foregoing memorandum complies with the word
limitation specified in Local Rule 7.5(c) of the Local Rules of Practice for the U.S.
District Court for the District of Hawaii. The memorandum is set in Times New
Roman 14-point type and, according to the word-count facility of the word
processing system used to produce the memorandum, contains 2897 words.
Date: February 6, 2017
/s/ Daniel Schwei
DANIEL SCHWEI
Trial Attorney
United States Department of Justice
Civil Division, Federal Programs Branch
20 Massachusetts Ave NW
Washington DC 20530
Tel: [phone]
Fax: [phone]
E-mail: [e-mail]
Attorney for Defendants

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CERTIFICATE OF SERVICE
I hereby certify that, on the dates and by the methods of service noted below,
a true and correct copy of the foregoing was served on the following at their last
known addresses:
Served Electronically through CM/ECF:
Clyde J. Wadsworth
Deirdre Marie-Iha
Donna H. Kalama
Douglas S.G. Chin
Kimberly T. Guidry
Neal Katyal
Robert T. Nakatsuji

[e-mail]
[e-mail]
[e-mail]
[e-mail]
[e-mail]
[e-mail]
[e-mail]

February 6, 2017
February 6, 2017
February 6, 2017
February 6, 2017
February 6, 2017
February 6, 2017
February 6, 2017

Date: February 6, 2017
/s/ Daniel Schwei
DANIEL SCHWEI
Trial Attorney
United States Department of Justice
Civil Division, Federal Programs
Branch
20 Massachusetts Ave NW
Washington DC 20530
Tel: [phone]
Fax: [phone]
E-mail: [e-mail]
Attorney for Defendants

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