State of Hawaii v. Trump

Filing 319

MOTION for Leave to File [Motion of the State of New York for Leave to File Amicus Brief] Barbara D. Underwood appearing for Amicus State of New York (Attachments: #1 Memorandum in Support of Motion, #2 Declaration of Barbara D. Underwood, #3 Exhibit 1-Brief Amicus Curiae of New York and Other States, #4 Certificate of Service)(Underwood, Barbara)

UNITED STATES DISTRICT COURT
DISTRICT OF HAWAI‘I

STATE OF HAWAI‘I and ISMAIL
ELSHIKH,
Plaintiffs,
v.

Civil No. 1:17-cv-00050
(DKW/KSC)
MEMORANDUM OF LAW IN
SUPPORT OF MOTION

DONALD J. TRUMP, in his official capacity
as President of the United States; U.S.
Related Documents: Dkt. No. 293
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.

MEMORANDUM OF LAW IN SUPPORT OF MOTION
The States of New York, California, Connecticut, Delaware, Illinois, Iowa,
Maine, Maryland, Massachusetts, New Mexico, Oregon, Rhode Island, Vermont,
Virginia, and Washington, and the District of Columbia, respectfully request leave
to file brief as amici curiae in support of Plaintiffs’ Motion to Clarify the Scope of
the Preliminary Injunction, filed June 29, 2017 (ECF No. 293). The proposed amicus
brief is attached as Exhibit “1” to the Declaration of Barbara D. Underwood.
Plaintiffs consent to the filing of the amicus brief. Defendants have advised that they

would ordinarily take no position, but they oppose the motion for leave to file on the
ground that plaintiffs’ reply submissions have been filed (ECF No. 303) and, thus in
defendants’ view briefing is closed. Underwood Decl. ¶ 4.
Amici States have important proprietary, sovereign, and quasi-sovereign
interests that are affected by the provisions of Executive Order No. 13,780, that are
challenged in this lawsuit,1 and by the preliminary injunction barring its enforcement
in certain respects. Amici states have already filed an amicus brief in this Court
supporting Hawaii’s Motion for a Temporary Restraining Order, see Brief of the
State of Illinois et al. (ECF No. 154), and amicus briefs in the Supreme Court of the
United States opposing a stay of this Court’s injunction (Brief of Virginia et al.,
Trump v. IRAP, Nos. 16-A1190, 16A-1191 (Sup. Ct. June 21, 2017)), and opposing
the petition for certiorari (Brief of New York et al., Trump v. IRAP, Nos. 16-A1190,
16A-1191 (Sup. Ct. June 21, 2017)). Now that the Supreme Court has stayed the
injunction in part, amici States continue to have a strong interest in preserving so
much of the injunction as the Supreme Court left undisturbed.
Defendants do not—and cannot—identify any way in which they would be
prejudiced by the filing of this amicus brief. Amici States raise no new arguments,
but rather provide a broader perspective on the state interests at stake, already

1

Executive Order No. 13,780, §§ 2(c), 6(a)-(b) (Mar. 6, 2017), 82 Fed. Reg.
13,209 (Mar. 9, 2017) (“EO-2”).
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identified by Hawaii. The broad experience and perspective of the fifteen amici
States and the District of Columbia will assist this Court in its consideration of the
scope of its injunction as modified, an injunction which is nationwide in scope.
Nor would the proceedings be delayed by granting this motion to file a brief
today, which is the day originally scheduled by the court as the date for plaintiffs’
reply brief. Finally, amici States, relying on the date scheduled for the reply brief,
have worked diligently during the time between the filing of Hawaii’s motion and
today, including through the Fourth of July holiday, to prepare this brief and consult
with each other and obtain the necessary approvals in each State. The circumstance
that Hawaii filed its reply brief one day early should not deprive fifteen States and
the District of Columbia of the opportunity to be heard on this important question,
nor should this Court be deprived of the benefit of hearing the views of amici States.
This Court has broad discretion to grant a prospective amicus participation.
See Hoptowit v. Ray, 682 F. 2d 1237, 1260 (9th Cir. 1982), abrogated on other
grounds, Sandin v. Connor, 515 U.S. 472 (1995). In deciding whether to grant a
motion for leave to file an amicus brief, a court should consider whether the brief
“assist[s] in a case of general public interest” or “supplement[s] the efforts of
counsel,” among other factors. Miller-Wohl Co., Inc. v. Comm’r of Labor & Indus.
State of Mont., 694 F. 2d 203, 204 (9th Cir. 1982). “An amicus brief should normally
be allowed” if the amicus “has unique information or perspective that can help the
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court beyond the help that the lawyers for the parties are able to provide.” Cmty.
Ass’n for Restoration of Env’t v. DeRuyter Bros. Dairy, 54 F. Supp. 2d 974, 975
(E.D. Wash. 1999). Moreover, courts have permitted not only amicus filings but also
intervention over a party’s objection to the timing of the motion, when the objecting
party asserted prejudice but failed to explain how. See, e.g., Jordan v. Nationstar
Mortgage, LLC, 2016 WL 7494297, at *4 (E.D. Wash. 2016); Day v. Apoliona, 505
F. 3d 963, 966 (9th Cir. 2007).
CONCLUSION
For the foregoing reasons, the proposed amici States respectfully request that
this Court grant its motion for leave to file the attached brief as amici curiae.
Dated:

New York, NY
July 6, 2017
Respectfully submitted,

ADAMS MIYASHIRO KREK
A Limited Liability Law Partnership

ERIC T. SCHNEIDERMAN
Attorney General
State of New York

DUANE R. MIYASHIRO
. /S/ Barbara D. Underwood
BARBARA D. UNDERWOOD*
Solicitor General
*
Admitted pro hac vice
ANISHA DASGUPTA
Deputy Solicitor General
ZAINAB A. CHAUDHRY
Assistant Solicitor General
of Counsel

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