State of Hawaii v. Trump
Filing
251
MEMORANDUM in Opposition re 238 MOTION to Convert Temporary Restraining Order to Preliminary Injunction filed by 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 Sarsour v. Trump Slip Opinion, # 2 Washington v. Trump Order Containing Dissents)(Rosenberg, Brad)
JEFFREY B. WALL
Acting Solicitor General
CHAD A. READLER
Acting Assistant Attorney General
ELLIOT ENOKI (No. 1528)
Acting United States Attorney
EDRIC M. CHING (No. 6697)
Assistant United States Attorney
JOHN R. TYLER
Assistant Branch Director
BRAD P. ROSENBERG (DC Bar No. 467513)
MICHELLE R. BENNETT (CO Bar No. 37050)
DANIEL SCHWEI (NY Bar)
Trial Attorneys
United States Department of Justice
Civil Division, Federal Programs Branch
20 Massachusetts Avenue, N.W.
Washington, D.C. 20530
Tel: (202) 514-3374; Fax: (202) 616-8460
E-mail: brad.rosenberg@usdoj.gov
Attorneys for Defendants
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
STATE OF HAWAI’I and
ISMAIL ELSHIKH,
Plaintiffs,
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. DEPARTMENT OF STATE; REX
TILLERSON, in his official capacity as
Secretary of State; and the UNITED
STATES OF AMERICA,
Defendants.
No. 1:17-cv-00050-DKWKSC
DEFENDANTS’
MEMORANDUM IN
OPPOSITION TO
PLAINTIFFS’ MOTION
TO CONVERT TRO TO PI
Judge: Hon. Derrick K.
Watson
Hearing: Wednesday, March
29, 2017, 9:30 a.m.
Related Documents:
Dkt. No. 238
TABLE OF CONTENTS
INTRODUCTION ...................................................................................................1
BACKGROUND .....................................................................................................4
A.
Section 2 of the Executive Order ........................................................4
B.
Section 6 of the Executive Order ........................................................6
C.
Plaintiffs’ Characterizations of This Case’s Procedural History ........7
ARGUMENT ...........................................................................................................9
I.
Plaintiffs Do Not Even Attempt to Carry Their Burden on Seeking to
Convert the Court’s TRO to a Preliminary Injunction ..................................9
II.
If This Court Enters a Preliminary Injunction, It Should Not Apply
to Section 6 of the Executive Order ............................................................13
A.
Plaintiffs Lack Standing to Challenge Sections 6(a) and 6(b)
Because They Have Failed to Identify Any Particularized and
Judicially Cognizable Injury to Themselves That Arises from
Enforcement of Those Sections ........................................................14
1.
2.
B.
Section 6(a) .............................................................................14
Section 6(b) .............................................................................19
Even if This Court Finds That Plaintiffs Have Standing to
Challenge Section 6, They Are Unlikely to Succeed on the
Merits of Their Claims Regarding Sections 6(a) or 6(b) ..................20
1.
2.
III.
Section 6(a) .............................................................................21
Section 6(b) .............................................................................24
At a Minimum, This Court Should Not Enjoin Those Portions of
Sections 2 and 6 That Relate to Governmental Operations ........................25
CONCLUSION ......................................................................................................29
TABLE OF AUTHORITIES
CASES
Califano v. Yamasaki,
442 U.S. 682 (1979) ...........................................................................................10
Caribbean Marine Servs. Co. v. Baldridge,
844 F.2d 668 (9th Cir. 1988) .............................................................................27
Church of the Lukumi Babalu Aye v. City of Hialeah,
508 U.S. 520 (1993) ...........................................................................................23
Clapper v. Amnesty Int’l,
133 S. Ct. 1138 (2013) .......................................................................................16
Consol. Salmonid Cases,
713 F. Supp. 2d 1116 (E.D. Cal. 2010) .............................................................12
Covenant Media of SC, LLC v. City of N. Charleston,
493 F.3d 421 (4th Cir. 2007) .............................................................................14
DaimlerChrysler Corp. v. Cuno,
547 U.S. 332 (2006) .................................................................................... 14, 23
FW/PBS, Inc. v. City of Dallas,
493 U.S. 215 (1990) .................................................................................... 14, 15
Granny Goose Foods, Inc. v. Bhd. of Teamsters & Auto Truck
Drivers Local No. 70,
415 U.S. 423 (1974) ...................................................................................... 9, 10
HonoluluTraffic.com v. FTA,
Civ. No. 11-00307, 2012 WL 1805484 (May 17, 2012) ...................................15
In re Adelphia Commc’ns Corp.,
No. 02-41729 (REG), 2006 WL 1529357 (Bankr. S.D.N.Y. June 5, 2006) .....11
ii
Int’l Refugee Assistance Project v. Trump,
No. TDC-17-0361, 2017 WL 1018235 (D. Md. Mar. 16, 2017),
appeal docketed, No. 17-1351 (4th Cir. Mar. 17, 2017) ........................ 2, 11, 12
Lewis v. Casey,
518 U.S. 343 (1996) .................................................................................... 14, 23
Lujan v. Defs. of Wildlife,
504 U.S. 555 (1992) .................................................................................... 14, 27
Luxottica Group S.p.A. v. Light in the Box Ltd.,
No. 16-cv-05314, 2016 WL 6092636 (N.D. Ill. Oct. 19, 2016) ........................11
McCormack v. Hiedeman,
694 F.3d 1004 (9th Cir. 2012) ...........................................................................10
Office of Personnel Mgmt. v. Am. Fed’n of Gov’t Employees,
473 U.S. 1301 (1985) .........................................................................................13
Park Vill. Apartment Tenants Ass’n v. Mortimer Howard Tr.,
636 F.3d 1150 (9th Cir. 2011) ...........................................................................10
Price v. City of Stockton,
390 F.3d 1105 (9th Cir. 2004) ...........................................................................10
Prime Media, Inc. v. City of Brentwood,
485 F.3d 343 (6th Cir. 2007) .............................................................................15
Reno Air Racing Ass’n v. McCord,
452 F.3d 1126 (9th Cir. 2006) ...........................................................................10
Sarsour v. Trump,
No. 17-cv-00120-AJT-IDD, slip op. (E.D. Va. Mar. 24, 2017) ........... 22, 23, 24
Serv. Emps. Int’l Union v. Roselli,
No. C 09-00404 WHA, 2009 WL 2246198 (N.D. Cal. July 27, 2009) .............11
Summers v. Earth Island Inst.,
555 U.S. 488 (2009) ...........................................................................................20
iii
Texas v. United States,
523 U.S. 296 (1998) ...........................................................................................27
Washington v. Trump,
No. C17-0141JLR, 2017 WL 1045950 (W.D. Wash. Mar. 16, 2017) ....... 22, 24
Washington v. Trump,
847 F.3d 1151 (9th Cir. 2017) ...........................................................................23
Washington Envtl. Council v. Bellon,
732 F.3d 1131 (9th Cir. 2013) .................................................................... 14, 23
Winter v. Nat. Res. Def. Council, Inc.,
555 U.S. 7 (2008) ...............................................................................................10
Zepeda v. INS,
753 F.2d 719 (9th Cir. 1983) .............................................................................11
RULES
Fed. R. Civ. P. 65(b)(3)............................................................................................9
REGULATIONS
Exec. Order No. 13,769, 82 Fed. Reg. 8977 (Jan. 27, 2017).......................... 21, 22
Exec. Order No. 13,780, 82 Fed. Reg. 13,209 (Mar. 6, 2017) ...................... passim
OTHER AUTHORITIES
11A Charles Alan Wright & Arthur R. Miller,
Federal Practice & Procedure § 2953 (3d ed.) .....................................................9
Stephanie Saul, Amid ‘Trump Effect’ Fear, 40% of Colleges
See Dip in Foreign Applicants, N.Y. Times, Mar. 16, 2017 .............................18
iv
DEFENDANTS’ MEMORANDUM OF LAW
IN OPPOSITION TO PLAINTIFFS’ MOTION TO CONVERT
TEMPORARY RESTRAINING ORDER
TO A PRELIMINARY INJUNCTION
INTRODUCTION
Seeking to bar the provisions of Executive Order No. 13,7801 from taking
effect, Plaintiffs sought a Temporary Restraining Order from this Court “[a]s an
immediate remedy.”2
This Court in turn granted Plaintiffs that immediate,
temporary relief.3
Plaintiffs now seek to convert that temporary relief, awarded after extremely
expedited briefing and argument, into a preliminary injunction of far longer duration.
Yet Plaintiffs effectively treat this significant procedural and substantive step as a
mere formality.4 They fail to offer additional, relevant evidence to support their
request, despite carrying the burden to demonstrate that a preliminary injunction is
necessary, irrespective of the issuance of the prior TRO. And their legal arguments
1
82 Fed. Reg. 13,209 (Mar. 6, 2017).
2
Plaintiffs’ Motion for Temporary Restraining Order at 4 (ECF No. 65).
3
See Order Granting Motion for Temporary Restraining Order (ECF No. 219)
(“TRO”).
4
See generally Mem. in Supp. of Motion to Convert Temporary Restraining
Order to a Preliminary Injunction (ECF No. 238-1) (“Pl. Mem.”).
are equally light, even in the face of Defendants’ filing of their Motion for
Clarification,5 which emphasized that the relief granted by the Court was still
broader in scope than anything justified by Plaintiffs’ arguments and evidence (even
if one were to accept those arguments in full).
The Court should not sidestep its duty to weigh the arguments and evidence
at this critical phase. Now that the Court has an opportunity to more carefully
evaluate Plaintiffs’ claims, Defendants believe they should be rejected in full for the
reasons set forth in Defendants’ Memorandum in Opposition to Plaintiffs’ Motion
for Temporary Restraining Order.6 But at the very least, the Court should limit any
preliminary injunction to the arguments and injuries Plaintiffs have alleged.
In particular, this Court should limit any preliminary injunction to Section 2(c)
of the Executive Order, which is what the Maryland district court did in International
Refugee Assistance Project v. Trump.7 Section 2(c) contains the 90-day suspensionof-entry provision that was (and remains) the focus of Plaintiffs’ briefing, and is the
only section of the Executive Order on which Plaintiffs have submitted any evidence
of alleged injury. Because their alleged injury is limited to Section 2(c), Plaintiffs
5
ECF No. 227.
6
ECF No. 145 (“Def. TRO Mem.”).
7
Civil Action No. TDC-17-0361, 2017 WL 1018235 (D. Md. Mar. 16, 2017),
appeal docketed, No. 17-1351 (4th Cir. Mar. 17, 2017) (hereinafter, “IRAP”).
2
lack standing to seek preliminary relief regarding: (a) Section 6(a)’s 120-day
suspension of certain aspects of the U.S. Refugee Admissions Program (“USRAP”);
or (b) Section 6(b)’s 50,000-refugee cap (which, it bears emphasis, is not mentioned
anywhere in Plaintiffs’ Second Amended Complaint or TRO papers). Nor are
Plaintiffs likely to succeed on the merits of their challenges to these provisions,
which are not limited to the six countries and draw no distinction on the basis of
religion. Accordingly, any preliminary injunction should be limited to Section 2(c)
of the Executive Order.
At an absolute minimum, however, this Court should reject Plaintiffs’ request
to grant a preliminary injunction as to the provisions of Sections 2 and 6 that provide
for inter-governmental reporting and consultation within the Executive Branch and
that also may require requesting information from foreign governments. Plaintiffs
cannot possibly explain how they face immediate and irreparable injury from the
implementation of these provisions. They do not apply to Plaintiffs at all, but instead
simply facilitate the Government’s ability to identify and fix potential gaps in the
Nation’s vetting procedures. Plaintiffs therefore lack standing to challenge these
provisions, any such challenge is not ripe, and these provisions do not even arguably
violate the Establishment Clause.
3
BACKGROUND
Defendants refer to their Memorandum in Opposition to Plaintiffs’ Motion for
a Temporary Restraining Order for the procedural background of this case. See Def.
TRO Mem. Plaintiffs’ motion to convert, however, raises particular issues regarding
the application of the provisions contained in Sections 2 and 6 of the Executive
Order, which are described below. Defendants also provide a brief response to
Plaintiffs’ characterizations regarding certain aspects of the procedural history of
this case.
A.
Section 2 of the Executive Order
Section 2 of the Executive Order concerns vetting procedures for immigration
benefits. It contains two basic sets of provisions.
First, Section 2(c) suspends entry into the United States of certain nationals
from six countries, subject to exceptions and waivers. See Exec. Order No. 13,780
§ 2(c). Section 2(c) was the near-exclusive focus of Plaintiffs’ TRO briefing.
Second, the remainder of Section 2 contains inward-facing provisions aimed
at allowing the Government to identify potential cracks in the Nation’s vetting
procedures. These provisions set forth a process by which the President may make
future determinations about whether any restrictions on entry are necessary for
certain foreign nationals or categories of foreign nationals. To begin that process,
Section 2(a) requires the Secretary of Homeland Security, in consultation with the
4
Secretary of State and the Director of National Intelligence, to conduct a worldwide
review to identify whether, and if so what, additional information will be needed
from each foreign country so that in adjudicating an application by a national of that
country for a visa, admission, or other benefit, it can be determined that the
individual is not a security or public safety threat. Section 2(b) requires the
preparation and submission to the President of a report based upon that review. See
id. § 2(a), (b). Section 2(d) provides that, following the submission of the report
referenced in subsection (b), the Secretary of State shall request that foreign
governments begin to supply additional, needed information. Id. § 2(d). Sections
2(e) and 2(f) contain various procedures to assist the President in making any
subsequent determinations about whether restrictions on entry are warranted for
“appropriate categories of foreign nationals of countries that have not provided the
information requested[.]” Id. § 2(e), (f). Finally, Section 2(g) provides that the
Secretaries of State and Homeland Security shall submit to the President various
joint reports on their progress in implementing the provisions of the Order. Id. §
2(g).
Neither Plaintiffs’ TRO briefing, nor this Court’s TRO opinion, addresses
these provisions in any meaningful way (to the extent they even address them at all).
And for good reason: None of these provisions targets specific countries or regions
at all, much less a specific religion. Instead, they call on cabinet agencies to conduct
5
a “worldwide” review to determine whether and how the Nation’s defenses can be
strengthened.
B.
Section 6 of the Executive Order
Section 6 of the Executive Order concerns certain aspects of the USRAP. It
contains three basic sets of provisions.
First, Section 6(a) suspends travel under USRAP and decisions on refugee
applications for a period of 120 days after the effective date of the Executive Order,
subject to waivers provided for in Section 6(c). See Exec. Order No. 13,780
§ 6(a), (c).
Section 6(a) also provides that, during the suspension period, the
Government shall conduct an internal review of USRAP application and
adjudication processes and implement additional procedures identified by the
review. Id. § 6(a). The Secretary of State shall resume allowing travel of refugees
into the United States under USRAP 120 days after the effective date of the Order,
and the Secretary of Homeland Security shall resume making decisions on
applications for refugee status for stateless persons and nationals of countries for
which the Secretary of State, the Secretary of Homeland Security, and the Director
of National Intelligence have jointly determined that adequate additional procedures
to protect the security and welfare of the Nation are in place. Id.
Second, Section 6(b) provides “that the entry of more than 50,000 refugees in
fiscal year 2017 would be detrimental to the interests of the United States” and, on
6
that basis, “suspend[s] any entries in excess of that number until such time as [the
President] determine[s] that additional entries would be in the national interest.” Id.
§ 6(b). Plaintiffs’ Second Amended Complaint and TRO papers do not address this
provision. Nor is it addressed in the Court’s TRO opinion, which again makes sense,
since Section 6(b) applies worldwide and without regard to religion.
Finally, Section 6(d) sets forth a policy of coordinating refugee placement and
settlement with state and local jurisdictions. See id. § 6(d). The provision is intended
to allow those jurisdictions to “have greater involvement in the process of
determining the placement or resettlement of refugees in their jurisdictions.” Id.
Once again, this provision is not referenced in Plaintiffs’ Second Amended
Complaint and TRO papers, or in this Court’s TRO opinion.
C.
Plaintiffs’ Characterizations of This Case’s Procedural History
Plaintiffs assert that Defendants, in opposing Plaintiffs’ TRO motion, failed
to argue the appropriate scope of any TRO that the Court might issue. See Pl. Mem.
at 15. That characterization is incorrect. Defendants’ opposition to Plaintiffs’ TRO
motion addressed Hawaii’s (unsupported) claims regarding the suspension of
aspects of the USRAP. See Def. TRO Mem. at 19, 48. Defendants also argued that
“any emergency relief could extend only to addressing the plaintiffs’ asserted
violations, not the sweeping relief plaintiffs request.” Id. at 52; see also id. at 53
(asserting that any TRO should be narrow in scope). As described herein, Plaintiffs
7
requested sweeping relief but failed to provide supporting facts or arguments to
justify the scope of that relief. Defendants’ response matched, if not exceeded, the
level of detail in Plaintiffs’ briefs.
Plaintiffs also inexplicably accuse Defendants of litigating at a “plodding
pace.” Pl. Mem. at 13. That is simply not true. The same day that Executive Order
No. 13,780 was signed by the President, the parties conferred regarding a briefing
schedule for Plaintiffs’ TRO motion and agreed to such a schedule in short order.
That schedule allowed this Court to issue a decision before the provisions of
Executive Order No. 13,780 were to take effect. A mere two days after the Court
issued its TRO, Defendants filed their motion to clarify. This Court denied that
motion on Sunday, March 19. The very next day, the parties submitted an agreedupon joint schedule for Plaintiffs’ conversion motion, which is also being briefed on
an expedited basis. See ECF No. 235. The fact that Defendants did not, as Plaintiffs
put it, “rush[ ] to the Ninth Circuit,” but instead sought to provide this Court with an
opportunity to refine the scope of its preliminary relief, does not mean that
Defendants “resisted at every turn Plaintiffs’ efforts to expedite these proceedings.”
Pl. Mem. at 13. It means that Defendants respect this Court’s role in issuing findings
with respect to the parties’ dispute.
8
ARGUMENT
I.
Plaintiffs Do Not Even Attempt to Carry Their Burden on Seeking to
Convert the Court’s TRO to a Preliminary Injunction
Plaintiffs have already received from this Court the precise form of relief that
they sought—a temporary restraining order. Having obtained that emergency relief,
Plaintiffs now treat the proposed conversion of the TRO into a preliminary
injunction as a mere formality. Rule 65 dictates otherwise.
Even though this Court issued a TRO, Plaintiffs retain the burden of proof in
seeking a preliminary injunction. Rule 65 specifically contemplates proceedings
during which “the party who obtained the [temporary restraining] order must
proceed with the motion [for preliminary injunction]; if the party does not, the court
must dissolve the order.” Fed. R. Civ. P. 65(b)(3); cf. 11A Charles Alan Wright &
Arthur R. Miller, Federal Practice & Procedure § 2953 (3d ed.) (“If the hearing is
converted into one under Rule 65(a) [for a preliminary injunction], the burden of
persuasion remains on the party who requested the temporary restraining order[.]”);
Granny Goose Foods, Inc. v. Bhd. of Teamsters & Auto Truck Drivers Local No. 70,
415 U.S. 423, 441 (1974) (“At such hearing, as in any other hearing in which a
preliminary injunction is sought, the party seeking the injunction would bear the
burden of demonstrating the various factors justifying preliminary injunctive
relief[.]”).
9
Accordingly, this Court’s TRO anticipated that there would be further
proceedings before a preliminary injunction could be issued. Among other things,
the Court specifically noted that “[t]he underlying purpose of a TRO is to preserve
the status quo and prevent irreparable harm before a preliminary injunction hearing
is held.” TRO at 27 (emphasis added) (citing Granny Goose Foods, 415 U.S. at 439;
Reno Air Racing Ass’n v. McCord, 452 F.3d 1126, 1130-31 (9th Cir. 2006)). To that
end, the Court indicated that it “intends to set an expedited hearing to determine
whether [the TRO] should be extended” and directed the parties to “submit a
stipulated briefing and hearing schedule” on that issue. Id. at 43.
One of the purposes of holding further proceedings is to revisit and, if
appropriate, narrow the scope of emergency relief granted in a TRO. As this Court
is aware, “[i]njunctive relief is an ‘extraordinary remedy’ [which] ‘must be tailored
to remedy the specific harm alleged.’” McCormack v. Hiedeman, 694 F.3d 1004,
1019 (9th Cir. 2012) (quoting Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 24
(2008); Park Vill. Apartment Tenants Ass’n v. Mortimer Howard Tr., 636 F.3d 1150,
1160 (9th Cir. 2011)). In reviewing Plaintiffs’ request for a preliminary injunction,
the Court should therefore narrow the scope of its relief to ensure it is “no more
burdensome to the defendant[s] than necessary to provide complete relief to the
plaintiffs.” Califano v. Yamasaki, 442 U.S. 682, 702 (1979); see Price v. City of
Stockton, 390 F.3d 1105, 1117 (9th Cir. 2004) (noting that an injunction should
10
“remedy only the specific harms shown by the plaintiffs, rather than ‘to enjoin all
possible breaches of the law’” (quoting Zepeda v. INS, 753 F.2d 719, 728 n.1 (9th
Cir. 1983))).
Courts thus routinely narrow the scope of relief previously granted in a TRO
when entering preliminary injunctions that will last for the course of the litigation.
See, e.g., Luxottica Group S.p.A. v. Light in the Box Ltd., No. 16-cv-05314, 2016
WL 6092636, at *4, *9 (N.D. Ill. Oct. 19, 2016) (“[T]he court will narrow the TRO
it previously granted so that the preliminary injunction covers eyewear only” where
plaintiffs failed to present evidence that defendants “sold any products other than
eyewear or eyewear accessories that infringe on its protected trademarks.”); Serv.
Emps. Int’l Union v. Roselli, No. C 09-00404 WHA, 2009 WL 2246198, at *2 (N.D.
Cal. July 27, 2009) (district court issued preliminary injunction that was “more
narrowly tailored than the TRO”); In re Adelphia Commc’ns Corp., No. 02-41729
(REG), 2006 WL 1529357, at *1 (Bankr. S.D.N.Y. June 5, 2006) (“I am granting
the TRO in the form in which it was requested, though at the time of the hearing on
the preliminary injunction, I will [consider] . . . whether I can address the very
substantial needs and concerns of the Debtors and their creditors by a somewhat
narrower injunction[.]”).
In IRAP v. Trump, decided the same day this Court issued its TRO, the
plaintiffs sought to preliminarily enjoin Executive Order No. 13,780 in its entirety,
11
including both Sections 2 and 6. See IRAP, 2017 WL 1018235. That court, however,
declined plaintiffs’ invitation, finding instead that “[p]laintiffs’ Establishment
Clause and INA arguments focused primarily on the travel ban for citizens of the six
Designated Countries in Section 2(c).” Id. at *17. The court therefore “enjoin[ed]
that provision only.” Id. As set forth below, the same is true here: Hawaii and Dr.
Elshikh focus their challenges “primarily on” Section 2(c) of the Executive Order.
Plaintiffs rely upon IRAP for the proposition that this Court should convert its “TRO
into a preliminary injunction granting the same scope of relief” as in its TRO, Pl.
Mem. at 14, but do not mention that the preliminary injunction entered in IRAP was
limited to Section 2(c).
Plaintiffs misapprehend the nature of their own motion when they argue that
Defendants must point to “changed circumstances,” or that the Court has already
“rejected” Defendants’ arguments regarding the scope of the TRO. Pl. Mem. at 2,
15. Plaintiffs’ points might be relevant if Defendants were moving to dissolve the
TRO or a subsequent preliminary injunction, but that is not the procedural posture
here. Instead, Plaintiffs continue to bear the burden of proof in seeking a preliminary
injunction.8 As described in more detail below, Plaintiffs fail to carry that burden,
8
It is questionable whether Plaintiffs can even properly rely on the Court’s legal
conclusions in the TRO decision. See Consol. Salmonid Cases, 713 F. Supp. 2d
1116, 1122 n.1 (E.D. Cal. 2010) (“The denial of a TRO motion is not dispositive of
12
particularly to the extent that they are seeking a preliminary injunction against any
sections of the Executive Order other than Section 2(c).
II.
If This Court Enters a Preliminary Injunction, It Should Not Apply to
Section 6 of the Executive Order
Defendants disagree with the Court’s TRO ruling. For the reasons set forth in
Defendants’ Memorandum in Opposition to Plaintiffs’ Motion for a Temporary
Restraining Order (ECF No. 145) and as explained at the TRO hearing, Defendants
do not believe that Plaintiffs are entitled to any form of preliminary relief.
Defendants incorporate by reference and reiterate those arguments here.
But
accepting this Court’s reasoning, its ruling does not justify a preliminary injunction
with respect to any provision of the Executive Order other than Section 2(c).
Plaintiffs are simply incorrect that the Court’s TRO ruling can justify a preliminary
injunction with respect to Section 6(a), Section 6(b), or the remaining, inward-facing
provisions of Sections 2 and 6.
the merits of a related motion for preliminary injunction.” (citing Office of Personnel
Mgmt. v. Am. Fed’n of Gov’t Emps., 473 U.S. 1301, 1305 (1985)).
13
A.
Plaintiffs Lack Standing to Challenge Sections 6(a) and 6(b)
Because They Have Failed to Identify Any Particularized and
Judicially Cognizable Injury to Themselves That Arises from
Enforcement of Those Sections
To have standing, Plaintiffs must demonstrate a “concrete and particularized”
injury that is “actual or imminent, not conjectural or hypothetical.” Lujan v. Defs.
of Wildlife, 504 U.S. 555, 560-61 (1992) (citation omitted). However, “standing is
not dispensed in gross.” Lewis v. Casey, 518 U.S. 343, 358 n.6 (1996). Instead, “a
plaintiff must demonstrate standing for each claim he seeks to press.”
DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 352 (2006); see Washington Envtl.
Council v. Bellon, 732 F.3d 1131, 1139 (9th Cir. 2013) (“A plaintiff must
demonstrate standing for each claim he or she seeks to press and for each form of
relief sought.” (citation omitted)). Here, Plaintiffs lack standing to challenge either
Section 6(a) or Section 6(b) of the Executive Order.
1.
Section 6(a)
In order to obtain a preliminary injunction regarding Section 6(a), Plaintiffs
must demonstrate that they have standing to challenge the provisions of that Section.
See FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 233-35 (1990) (refusing to assess
constitutionality of certain provisions of ordinance that no plaintiff had standing to
challenge); Covenant Media of SC, LLC v. City of N. Charleston, 493 F.3d 421, 430
(4th Cir. 2007) (“[A] plaintiff must establish that he has standing to challenge each
14
provision of an ordinance by showing that he was injured by application of those
provisions.” (citing FW/PBS, 493 U.S. at 230)); Prime Media, Inc. v. City of
Brentwood, 485 F.3d 343, 350 (6th Cir. 2007) (A plaintiff’s standing with respect to
one provision of an ordinance “does not magically carry over to allow it to litigate
other independent provisions of the ordinance without a separate showing of an
actual injury under those provisions.”); HonoluluTraffic.com v. FTA, Civ. No. 1100307, 2012 WL 1805484, at *2-*4 (May 17, 2012) (plaintiffs challenging Honolulu
rail project for failure to consider site impacts were required to show standing with
regard to each challenged site separately).
Plaintiffs lack standing to challenge Section 6(a) because they have failed to
demonstrate any concrete and particularized injury to judicially cognizable interests
of theirs that arise from the enforcement of the Executive Order’s 120-day
suspension of certain aspects of USRAP. To the contrary, Plaintiffs’ briefing for
both the TRO and their conversion motion focuses on the 90-day suspension-ofentry provision contained in Section 2(c) of the Executive Order and the alleged
impact that the application of that provision would have on them.
For example, in its TRO papers Hawaii claimed that its university system
would be harmed by the Executive Order because it would not be able to recruit and
retain foreign students and faculty from the six countries subject to the suspension
of entry provision.
See Mem. in Supp. of Plaintiffs’ Mot. for a Temporary
15
Restraining Order at 14-15 (ECF No. 65-1) (“Pl. TRO Mem.”). Hawaii also claimed
that the Executive Order would harm the State’s economy and, in particular, would
have a negative impact on tourism. See id. at 17-18.9 The State’s TRO briefing
barely discussed the refugee provisions at all, relegating them to occasional
references in passing, see, e.g., id. at 12 (noting that Section 6(a) “suspends
[USRAP] for a period of 120 days”), or vague predictions that the State’s “small”
program “to resettle and assist refugees” would be hindered, id. at 16; see id. at 48
(conclusory assertion that Hawaii would be forced to “abandon” its refugee
program).
Nor did the State submit any declarations identifying any injuries
deriving specifically from or relating to any of the refugee provisions of the
Executive Order. See ECF No. 66 (declarations in support of TRO motion).
Based on the claims Plaintiffs presented, this Court concluded that Hawaii has
Article III standing “[f]or purposes of” the TRO because “(1) its universities will
suffer monetary damages and intangible harms; (2) the State’s economy is likely to
9
Defendants reiterate that Plaintiffs’ standing showing is conspicuously weak
even with regard to these claims. See Def. TRO Mem. at 15-18. For example,
Hawaii’s declarations do not identify any particular persons whom it seeks to recruit
or who have concrete plans to relocate to Hawaii, but are precluded from doing so
within the next 90 days by the provisions of Section 2(c). See id. at 15-16. Nor do
its declarations regarding the impacts on tourism provide evidence of a concrete and
particularized injury. See id. at 17-18. These claims of possible future injury are
insufficient to confer standing. See Clapper v. Amnesty Int’l, 133 S. Ct. 1138, 1147
(2013).
16
suffer a loss of revenue due to a decline in tourism; (3) such harms can be sufficiently
linked to the Executive Order; and (4) the State would not suffer the harms to its
proprietary interests in the absence of implementation of the Executive Order.” TRO
at 21. Notably, none of these harms relied upon by the Court has any relation to the
Executive Order’s refugee provisions in Section 6 (let alone provisions regarding
internal review of the Nation’s screening and vetting procedures as discussed in Part
III, infra).
For the reasons given in our brief opposing Plaintiffs’ TRO motion, it is
Defendants’ position that Plaintiffs’ submissions do not warrant relief even as to
Section 2(c). But Plaintiffs have now moved to convert the TRO to a preliminary
injunction, and have done nothing to address these deficiencies or otherwise
supplement the record regarding their supposed injuries. Like their TRO briefs,
Plaintiffs’ conversion brief contains references to the 120-day suspension of certain
aspects of USRAP, see, e.g., Pl. Mem. at 4, 18-20, but otherwise offers no factual
evidence, or even unsupported argument, about how that suspension will cause
concrete and cognizable harm to the State. Instead, Hawaii merely reiterates its prior
arguments that the Executive Order will impact tourism and the University of Hawaii
17
system, see id. at 12, even though neither of these impacts has anything at all to do
with refugees.10
As for Dr. Elshikh’s injury, Plaintiffs rely entirely on this Court’s TRO to
assert that he “can still easily make a showing ‘of direct, concrete injuries to the
exercise of his Establishment Clause rights.’” Pl. Mem. at 12 (quoting TRO at 40).
Even if that were true, his showing has nothing at all to do with the Executive Order’s
refugee provisions, and Plaintiffs’ reliance on this Court’s prior ruling does not
demonstrate otherwise. This Court’s TRO focused on Dr. Elshikh’s Declaration,11
which in turn discussed the impacts of the suspension-of-entry provision.12 That is
10
The only new “evidence” that Plaintiffs offer regarding harm comes in the
form of a New York Times article about the impact of the Executive Orders on foreign
student enrollment at American universities. See Pl. Mem. at 12 (citing Stephanie
Saul, Amid ‘Trump Effect’ Fear, 40% of Colleges See Dip in Foreign Applicants,
N.Y. Times, Mar. 16, 2017, Katyal Decl. Ex. C). That article, which does not even
mention the University of Hawaii system other than a reference to this Court’s TRO,
says nothing about the impact of Executive Order No. 13,780’s refugee provisions.
11
The Court’s TRO also cited Plaintiffs’ Second Amended Complaint, but the
referenced paragraphs—which are allegations only at this early stage of the
proceedings—discussed the Executive Order in general terms. See TRO at 26 (citing
SAC ¶¶ 88-90).
12
See Elshikh Decl. ¶ 1 (ECF No. 66-1) (describing how Elshikh is “deeply
saddened by the passage of the Executive Order barring nationals from now-six
Muslim majority countries from entering the United States” (emphasis added)); id.
¶ 3 (describing Elshikh’s claim that the Executive Order “prevent[s] people from
certain Muslim countries from entering the United States” (emphasis added)); id. ¶
4 (claiming the “revised travel ban will have a direct personal effect on me, my wife,
and my children because it creates an obstacle to the ability of my mother-in-law”
18
not surprising, as Dr. Elshikh’s mother-in-law is not a refugee, and the refugee
provisions contained in Section 6 apply on a global basis without regard to religion
or nationality.
Dr. Elshikh has therefore failed to identify any concrete and
particularized injury arising directly from the refugee provisions contained in
Section 6.
Because neither Hawaii nor Dr. Elshikh has identified any injury that arises
specifically from the refugee provisions contained in Section 6(a) of the Executive
Order, neither has standing to challenge that Section. This Court therefore lacks
jurisdiction over Plaintiffs’ claims regarding Section 6(a) and, accordingly, should
not issue a preliminary injunction that enjoins enforcement or implementation of that
Section.
2.
Section 6(b)
As set forth above, Plaintiffs do not provide any factual support to show that
they have standing to challenge the 120-day suspension of certain aspects of
USRAP. That is equally, if not even more, true with regard to the 50,000-refugee
to visit); id. ¶ 6 (“President Trump’s issuance of the new Executive Order banning
Syrian nationals from entering the United States has directly impacted my family”
(emphasis added)); id. ¶ 7 (claiming that “the travel ban targets Muslim citizens”
and referring to Mosque members who “have family and friends still living in the
countries affected by the revised travel plan” (emphasis added)); id. ¶ 8 (personal
knowledge of community and Mosque members “who have immediate relatives in
the six designated countries” (emphasis added)).
19
cap contained in Section 6(b). That provision is cited nowhere in Plaintiffs’ Second
Amended Complaint, TRO papers, or conversion brief, save for a cryptic reference
to provisions that “limit and control the admission of refugees going forward,” Pl.
Mem. at 4 (citing Exec. Order No. 13,780 § 6(b)-(d)), and a note that “all of the
provisions of Section 6 are components of an integrated process for ‘suspend[ing]’
and ‘review[ing]’ refugee admission rules,” see id. at 18 (quoting Mem. in Supp. of
Motion for Clarification at 4, ECF No. 227-1). Plaintiffs’ complete silence on this
point makes it impossible to understand how the operation of that provision could
have injured them.
Plaintiffs have therefore failed to carry their burden of
identifying, for standing purposes, a “concrete [action] that threatens imminent harm
to [their] interests” arising from Section 6(b) of the Executive Order. Summers v.
Earth Island Inst., 555 U.S. 488, 494 (2009).
B.
Even if This Court Finds That Plaintiffs Have Standing to
Challenge Section 6, They Are Unlikely to Succeed on the Merits of
Their Claims Regarding Sections 6(a) or 6(b)
On the merits, Plaintiffs rely primarily on a bootstrapping argument that,
because the Court has already issued a TRO as to Sections 2 and 6 based on
Plaintiffs’ prior briefing about Section 2, it should now grant a preliminary
injunction regarding both Sections. But the mere fact that the Court has already
entered a TRO does not perforce entitle Plaintiffs to a preliminary injunction—in
particular as to both Sections 6(a) and 6(b).
20
1.
Section 6(a)
As noted above, the 120-day suspension of refugee admissions contained in
Section 6(a) operates on a global basis without regard to religion or nationality.
Plaintiffs, however, fail to address this point, other than referring to provisions
contained in the prior Executive Order, as well as “the factual record [that they] have
developed in this case,” to argue generally that Section 6 “was motivated by
discriminatory animus toward Muslims.” Pl. Mem. at 18; see id. at 18-20. But on
review, their “factual record” fails to support this conclusion.
For their “record,” Plaintiffs argue that the changes made to the new Executive
Order were merely a superficial attempt to “sanitize” or “water[ ]-down” the prior
Order. See id. at 18-20. The various public statements on which Plaintiffs rely do
not constitute a record that is even relevant to Section 6, much less facts on which
this Court should rely. To the contrary, a substantive comparison of Executive Order
No. 13,769 to Executive Order No. 13,780—including, in particular, a comparison
of the refugee provisions—reveals that the Executive Branch revised the new
Executive Order to avoid any Establishment Clause concerns. At a general level,
Executive Order No. 13,780 involved a detailed review of the national security risks
21
that pose the greatest threats to the nation, and it then provided targeted measures to
address those security risks in a religiously neutral manner.13
Indeed, the New Executive Order eliminated preferences for religious
minorities and the indefinite suspension that applied to Syrian refugees. See Sarsour
v. Trump, No. 17-cv-00120-AJT-IDD, slip op. at 18 (E.D. Va. Mar. 24, 2017) (“The
text of [Executive Order No. 13,780], unlike that of [Executive Order No. 13,769],
makes no mention of religion as a criterion for benefits or burdens”) (attached
hereto). As two district courts have now concluded, these changes are substantial
and reflect the Executive’s “response to judicial decisions that identified problematic
aspects of [Executive Order No. 13,769] and invited revisions.” Sarsour, slip op. at
23; see Wash. v. Trump, Case No. C17-0141JLR, 2017 WL 1045950, at *3 (W.D.
Wash. Mar. 16, 2017) (“The Court agrees with Defendants that the Ninth Circuit
implicitly invited Defendants to attempt to ‘rewrite’ [Executive Order 13,769] ‘to
make appropriate distinctions’ and ‘eliminate constitutional defects.’” (quoting
13
The entire Executive Order, including Section 2, is neutral with respect to
religion. Section 1 of the Executive Order lays out detailed findings of fact with
respect to the six countries covered by the temporary travel suspension, and
critically, Section 1(g) of the Order excludes Iraq, a Muslim-majority country
covered by Executive Order No. 13,769, from the scope of this Order because, “since
Executive Order 13769 was issued, the Iraqi government has expressly undertaken
steps to enhance travel documentation, information sharing, and the return of Iraqi
nationals subject to final orders of removal.” Exec. Order No. 13,780 § 1(g).
22
Wash. v. Trump, 847 F.3d 1151, 1167 (9th Cir. 2017)).
Based on “the real
substantive differences between the two orders,” Sarsour, slip op. at 27, there is no
basis to enjoin enforcement of Section 6(a).14
For this reason, Plaintiffs’ citation to Church of the Lukumi Babalu Aye v. City
of Hialeah, 508 U.S. 520 (1993), is inapposite. See Pl. Mem. at 16-17. In that case,
there was no evidence that the challenged ordinance was enacted for any reason other
than for religious purposes, notwithstanding the ordinance’s non-religious
applications. 508 U.S. at 539-40. Here, by contrast, the Executive Order’s refugee
provisions were substantially modified in order to address constitutional concerns.15
As a result, this Court is not at all “faced with a facially discriminatory order” and
these changes satisfy the Supreme court’s instruction for “[d]istrict courts [to]
14
Defendants also wish to make the Court aware of a recent development in the
appeal of Washington v. Trump, 847 F.3d 1151 (9th Cir. 2017). In that case, Judges
Bybee, Kozinski, Callahan, Bea, and Ikuta issued three separate opinions dissenting
from the denial of reconsideration en banc of a panel decision affirming the denial
of the Government’s motion to stay the preliminary injunction issued by the
Washington district court against the prior Executive Order. See id. (panel decision).
A copy of the slip opinion containing the dissents from the denial of reconsideration
en banc is attached hereto.
15
Even if Lukumi were applicable, it does not address the requirement that this
Court limit its injunctive relief to those portions of the Executive Order that Plaintiffs
can show would cause them a concrete and particularized injury. See Lewis, 518
U.S. at 358 n.6; DaimlerChrysler, 547 U.S. at 352; Washington Envtl. Council, 732
F.3d at 1139; Part II.A, supra.
23
adjust[ ] preliminary relief to take account of genuine changes in constitutionally
significant conditions.” Sarsour, slip op. at 23 (denying a motion to enjoin the
enforcement of Executive Order No. 13,780 as violating Establishment Clause)
(quoting McCreary County, Ky. v. Am. Civil Liberties Union of Ky., 545 U.S. 844,
848 (2005)); Wash. v. Trump, 2017 WL 1045950, at *3 (denying Washington’s
motion to enforce TRO of prior Executive Order against Executive Order No. 13,780
because of “substantial distinctions” in implementation and rationale between the
Orders).
2.
Section 6(b)
Plaintiffs present no argument on the merits at all regarding the
implementation of the 50,000-person refugee cap contained in Section 6(b).
Although Plaintiffs cite various statements regarding refugees, describe the
provisions of Section 6 as being “components of an integrated process,” and argue
that the Executive Order was motivated by animus, see Pl. Mem. at 18-20, they make
no effort whatsoever to tie any of their Establishment Clause claims to the specific
provisions of Section 6(b). It is therefore impossible to ascertain what argument
they are presenting on this point, to the extent they are even challenging this
provision at all. No other court addressing either Executive Order No. 13,780 or the
revoked Order has enjoined Section 6(b) (or the refugee cap contained in the prior
24
Order).
This Court should likewise decline to enjoin implementation of that
provision.
III.
At a Minimum, This Court Should Not Enjoin Those Portions of Sections
2 and 6 That Relate to Governmental Operations
At the very least, this Court should not enjoin the remaining, internal-facing
provisions of Sections 2 and 6 of Executive Order No. 13,780, including the
following:
•
Section 2(a) (requiring the Secretary of Homeland Security to conduct
a worldwide review to ensure that foreign governments are providing
whatever information may be necessary to ensure that individuals
seeking visas or other immigration benefits are not a security or public
safety threat);
•
Section 2(b) (requiring the preparation and submission to the President
of a report based upon the review described in Section 2(a));
•
Section 2(d) (providing that the Secretary of State shall request that
foreign governments begin to supply additional, needed information
about their nationals);
•
Section 2(e) (instructing the Secretary of Homeland Security to submit
to the President, after the period in Section 2(d) expires,
recommendations regarding future restrictions on entry of appropriate
25
categories of foreign nationals of countries that have not provided the
requested information);
•
Section 2(f) (authorizing the Secretary of Homeland Security to make
additional recommendations to the President following the initial
recommendations);
•
Section 2(g) (providing that the Secretaries of State and Homeland
Security shall submit various joint reports on their progress in
implementing the provisions of the Order);
•
Portions of Section 6(a) to the extent those portions call for review of
the USRAP application and adjudication process, including the
implementation of additional procedures; and
•
Section 6(d) (encouraging the coordination of refugee placement with
state and local jurisdictions).
These provisions involve only internal governmental activities (such as conducting
reviews and updating policies) or inter-governmental diplomatic activities. They
cannot have any immediate impact on Plaintiffs.
Plaintiffs clearly lack standing to challenge these provisions of the Executive
Order because they have failed to identify any injury that they have suffered or
would suffer that arises from the implementation of these specific provisions.
26
Instead, all they offer is a bare-bones assertion that “the remainder of Section 2 is
designed to help the President extend his discriminatory ban on entry to additional
countries and for additional periods of time.” Pl. Mem. at 18. Even if there were
factual support for this assertion—Plaintiffs offer none—the President has not yet
taken any action to extend the provisions of the Executive Order. And any extension
could undermine this Court’s rationale for issuing a TRO, especially if applied to
countries that do not have a majority-Muslim population. Plaintiffs’ claims, if any,
are therefore speculative and hypothetical, Lujan, 504 U.S. at 560-61; and they
certainly are not ripe, see Texas v. United States, 523 U.S. 296, 300 (1998) (“A claim
is not ripe for adjudication if it rests upon contingent future events that may not occur
as anticipated, or indeed may not occur at all.” (quotation omitted)).16
Plaintiffs also claim that it would be “particularly illogical to enjoin only parts
of the ban” because these provisions are, in Plaintiffs’ view, “inextricably linked” to
the suspension of entry provision in Section 2(c). Pl. Mem. at 17. That argument,
of course, ignores that Plaintiffs themselves seek to “enjoin only parts of” the
16
Even if Plaintiffs somehow had standing, they have made no attempt to
demonstrate that they will be irreparably harmed by the implementation of these
specific provisions. That, too, is fatal to their attempt to enjoin the implementation
of these provisions. See Caribbean Marine Servs. Co. v. Baldridge, 844 F.2d 668,
674 (9th Cir. 1988) (to secure an injunction, plaintiffs “must do more than merely
allege imminent harm sufficient to establish standing”; they “must demonstrate
immediate threatened injury” that only “preliminary injunctive relief” can prevent).
27
Executive Order. Moreover, as a matter of both law and logic, the provisions are
severable. As to the former, the Executive Order contains an express severability
provision. See Exec. Order No. 13,780 § 15.17 As to the latter, an internal review
of procedures obviously can take place independently of the 90-day suspension-ofentry provision (though doing so would place additional burdens on the Executive
Branch, which is one of the several reasons for the 90-day suspension). See Exec.
Order No. 13,780 § 2(c).
Further, limiting the scope of any injunction at this stage to permit these
operational activities of the Government to proceed would be consistent with the
goals expressed in this Court’s previous Order. As the Court explained, it did not
intend the TRO to suggest that it “forever” barred “any effort by [the Executive
Branch] to address the security concerns of the nation.” TRO at 38. Yet precluding
the Secretary of Homeland Security or the Secretary of State from engaging in these
activities limits the ability of those officers to fulfill their duty to assess future
security concerns and identify the means to address such concerns consistent with
the Court’s recognition that “context may change during the course of litigation.”
Id. at 39.
17
That provision provides, in relevant part, that “[i]f any provision of this order
. . . is held to be invalid, the remainder of this order . . . shall not be affected thereby.”
Exec. Order No. 13,780 § 15(a).
28
Plaintiffs characterize Defendants’ concern about the application of an
injunction to these provisions as “meritless.” Pl. Mem. at 20. Instead, Plaintiffs put
their own gloss on the current TRO (and the preliminary injunction that they are
seeking), asserting that the TRO “merely prevents Executive [B]ranch action under
the auspices of an illegal Executive Order” and noting that “[t]he Government could
engage in appropriate consultations and an appropriate review of the immigration
system as a whole independent of this Order.” Pl. Mem. at 21. Defendants, however,
do not have the luxury of defining for themselves the scope of this Court’s orders;
as it stands now, the Court’s TRO does not contain a carve-out for “appropriate
consultations,” as Plaintiffs put it. Plaintiffs’ concession acknowledges the basic
inappropriateness of an injunction against internal governmental communications
and activities, most if not all of which could take place in the absence of the
Executive Order but the status of which is now, at the very least, unclear in view of
the current TRO.
CONCLUSION
For the reasons stated herein, in Defendants’ opposition to Plaintiffs’ TRO
motion, and by Defendants at the TRO hearing, the Court should not enter a
preliminary injunction. To the extent that the Court issues a preliminary injunction,
it should limit the scope of that preliminary injunction to particular identifiable aliens
affected by the Executive Order to the extent that they have ripe claims and the
29
application of the Order causes irreparable injury to judicially cognizable rights of
the Plaintiffs. In the alternative, the Court should limit the scope of a preliminary
injunction to Section 2(c) of the Executive Order. At the very least, the Court should
not enjoin the inward-facing provisions of Sections 2 and 6.
Dated: March 24, 2017
Respectfully submitted,
JEFFREY B. WALL
Acting Solicitor General
CHAD A. READLER
Acting Assistant Attorney General
ELLIOT ENOKI (No. 1528)
Acting United States Attorney
EDRIC M. CHING (No. 6697)
Assistant United States Attorney
JOHN R. TYLER
Assistant Director, Federal Programs Branch
/s/ Brad P. Rosenberg
BRAD P. ROSENBERG (DC Bar. No. 467513)
MICHELLE R. BENNETT (CO Bar. No. 37050)
DANIEL SCHWEI (NY Bar)
Trial Attorneys
U.S. Department of Justice
Civil Division, Federal Programs Branch
20 Massachusetts Avenue, N.W.
Washington, D.C. 20530
Tel: (202) 514-3374
Fax: (202) 616-8460
E-mail: brad.rosenberg@usdoj.gov
Attorneys for Defendants
30
CERTIFICATE OF SERVICE
I hereby certify that, on this 24th day of March, 2017, 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:
Alexander Bowerman
Clyde J. Wadsworth
Colleen Roh Sinzdak
Deirdre Marie-Iha
Donna H. Kalama
Douglas S.G. Chin
Elizabeth Hagerty
Kimberly T. Guidry
Mitchell Reich
Neal Katyal
Robert T. Nakatsuji
Sara Solow
Thomas Schmidt
Date: March 24, 2017
alexander.bowerman@hoganlovells.com
clyde.j.wadsworth@hawaii.gov
colleen.rohsinzdak@hoganlovells.com
deirdre.marie-iha@hawaii.gov
Donna.H.Kalama@hawaii.gov
hawaiig@hawaii.gov
elizabeth.hagerty@hoganlovells.com
kimberly.t.guidry@hawaii.gov
mitchell.reich@hoganlovells.com
neal.katyal@hoganlovells.com
robert.t.nakatsuji@hawaii.gov
sara.solow@hoganlovells.com
thomas.schmidt@hoganlovells.com
/s/ Brad P. Rosenberg
Brad P. Rosenberg
Trial Attorney
United States Department of Justice
Civil Division, Federal Programs Branch
20 Massachusetts Ave, N.W.
Washington, DC 20530
Tel: (202) 514-3374
Fax: (202) 616-8460
E-mail: brad.rosenberg@usdoj.gov
Attorney for Defendants
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