State of Hawaii v. Trump

Filing 32

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' EMERGENCY MOTION TO STAY DEADLINES PENDING RESOLUTION OF APPELLATE PROCEEDINGS REGARDING NATIONWIDE INJUNCTION. Signed by JUDGE DERRICK K. WATSON on 2/9/2017. -- The Emergency Motion to Stay is GRANTED IN PART. This matter is stayed as long as the February 3, 2017 injunction entered in Washington v. Trump remains in full force and effect, or until further order of this Court. All further relief requested by the Emergency Motion to Stay is DENIED. Re: 23 Emergency MOTION to Stay Deadlines, 27 EO on Motion to Stay (ecs, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAI‘I

STATE OF HAWAI‘I,
Plaintiff,
vs.
DONALD J. TRUMP, et al.,
Defendants.

CV. NO. 17-00050 DKW-KJM

ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANTS’
EMERGENCY MOTION TO STAY
DEADLINES PENDING
RESOLUTION OF APPELLATE
PROCEEDINGS REGARDING
NATIONWIDE INJUNCTION

ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANTS’ EMERGENCY MOTION TO STAY DEADLINES
PENDING RESOLUTION OF APPELLATE PROCEEDINGS
REGARDING NATIONWIDE INJUNCTION

INTRODUCTION
On February 3, 2017, the State of Hawai‘i (“State”) filed a Complaint for
Injunctive and Declaratory Relief and a Motion for Temporary Restraining Order
(“TRO”) seeking to enjoin enforcement nationwide of Sections 3(c), 5(a)-5(c), and
5(e) of the January 27, 2017 Executive Order No. 13,769, entitled “Protecting the
Nation from Foreign Terrorist Entry into the United States” (the “Executive Order”).
Hours after the State’s filings, a federal district judge from the Western District of

Washington entered an injunction that is substantively identical to the one requested
here. See Washington v. Trump, 2:17-cv-00141 (W.D. Wash. Feb. 3, 2017).
Defendants now seek an emergency stay of all deadlines in this case, pending
resolution of another emergency stay and appeal filed by the United States in the
United States Court of Appeals for the Ninth Circuit. No. 17-35105 (9th Cir. 2017).
Through its Ninth Circuit efforts, the United States seeks to invalidate or at least
narrow the scope of the Western District of Washington’s injunction. The United
States’ emergency stay request was argued to a Ninth Circuit motions panel on
February 7, 2017, and a decision is expected shortly.
Because the balance of relevant factors in the instant case – notably, the
orderly course of justice and the balance of hardships to the parties while the existing
injunction is in effect – weighs in favor of Defendants’ request, the Emergency
Motion to Stay is hereby GRANTED IN PART. This matter is stayed so long as the
Western District of Washington’s February 3, 2017 injunction remains in place
undisturbed, or until further order of this Court. All pending deadlines and the
hearing on the State’s Motion for TRO are accordingly vacated. All further relief
requested by the Emergency Motion to Stay is DENIED.

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BACKGROUND
The State’s Motion for TRO asserts that the Executive Order violates the
Establishment Clause of the First Amendment and the Equal Protection and Due
Process protections guaranteed by the United States Constitution. See Mem. in
Supp. of Mot. for TRO, Dkt. No. 2-1 [hereinafter TRO Mem.]. The State also
contends that the Executive Order violates the Administrative Procedure Act
(“APA”), 5 U.S.C. §§ 1001 et seq., and three provisions of the Immigration and
Nationality Act (“INA”), 8 U.S.C. §§ 1101 et seq.—including its prohibitions on
nationality- and religion-based classifications and its limited grant of presidential
discretion to suspend entry into the United States by certain immigrant and
non-immigrant classes under Section 212(f), as amended, 8 U.S.C. § 1182(f). See
TRO Mem. at 26-32.
On February 3, 2017, almost immediately following the filing of the State’s
Complaint and Motion for TRO, the United States District Court for the Western
District of Washington entered a nationwide TRO enjoining the federal defendants
in that case from enforcing the same sections of the Executive Order that the State
challenges here. See W.D. Wash. TRO, 2:17-cv-00141, Dkt. No. 52, at 5–6. On
Saturday, February 4, 2017, the federal government defendants in the Western
District of Washington case filed a notice of appeal (No. 2:17-cv-00141, Dkt. No.

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53) and an emergency motion to stay the Western District of Washington injunction,
pending resolution of defendants’ appeal to the United States Court of Appeals for
the Ninth Circuit (No. 17-35105, Dkt. No. 14). On February 5, 2017, the Ninth
Circuit denied the State of Hawaii’s Emergency Motion to Intervene in the pending
Washington v. Trump appeal but granted the State leave to file an amicus brief in that
case. Order, No. 17-35105, Dkt. No. 77 (ruling on Mot. to Intervene, No.
17-35105, Dkt. No. 21-1). On February 7, 2017, the Ninth Circuit heard oral
argument on the federal defendants’ motion to stay the district court’s TRO, pending
appeal. No. 17-35105, Dkt. Nos. 124 and 125. A decision on that motion to stay is
pending.
In the instant case, Defendants ask the Court to stay existing deadlines and
proceedings pending resolution of the appeal of the Western District of
Washington’s February 3, 2017 TRO. Alternatively, Defendants request that this
Court issue a stay pending resolution of the appeal, but also mandate that if the
Western District of Washington’s nationwide injunction is no longer in effect, then
Defendants would be required to file their response to the State’s Motion for TRO
within 48 hours without further order of this Court.

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DISCUSSION
I.

Legal Standard
“[T]he power to stay proceedings is incidental to the power inherent in every

court to control disposition of the cases on its docket with economy of time and
effort for itself, for counsel, and for litigants.” Landis v. N. Am. Co., 299 U.S. 248,
254 (1936). “The exertion of this power calls for the exercise of sound discretion.”
CMAX, Inc. v. Hall, 300 F.2d 265, 268 (9th Cir. 1962). See Clinton v. Jones, 520
U.S. 681, 706 (1997) (“The District Court has broad discretion to stay proceedings
as an incident to its power to control its own docket.”); Lockyer v. Mirant Corp., 398
F.3d 1098, 1109 (9th Cir. 2005) (citing Landis, 299 U.S. at 255, for the same).
In determining whether to grant a motion to stay, “the competing interests
which will be affected by the granting or refusal to grant a stay must be weighed.”
Id. at 1110 (citing CMAX, 300 F.2d at 268). Those interests include: (A) “the
possible damage which may result from the granting of a stay,” (B) “the hardship or
inequity which a party may suffer in being required to go forward,” and (C) “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.”
Id. Moreover, “[t]he proponent of a stay bears the burden of establishing its need.”

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Clinton, 520 U.S. at 708 (citing Landis, 299 U.S. at 255). Here, the Court finds that
Defendants have met their burden.
II.

Analysis Of Factors
Having considered the relevant factors and in the exercise of its discretion, the

Court concludes that a temporary stay of this action is appropriate during the
pendency of related appellate proceedings so long as the nationwide injunction
entered in Washington v. Trump remains in effect.
A.

Possible Damage Resulting From A Stay

The State of Hawai‘i asks this Court to proceed on the merits of its case,
despite the pending Ninth Circuit appeal from the Western District of Washington,
and argues that the stay, if granted, will cause the State “irreparable harm.” Mem.
in Opp. to Gov’t Mot. to Stay, Dkt. No. 25. Given the state of the proceedings,
however, any prejudice to the State caused by a delay in the instant case will be
minimal. That is, the Western District of Washington’s nationwide injunction
already provides the State with the comprehensive relief it seeks in this lawsuit. As
such, the State will not suffer irreparable damage of the kind discussed in Landis,
299 U.S. 248,1 if the Court were to grant Defendants’ motion to stay.

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See, e.g., Dependable Highway Exp., Inc. v. Navigators Ins. Co., 498 F.3d 1059, 1067 (9th Cir.
2007) (holding that a “fair possibility” of damage to the party opposing the stay existed where an
order granting the stay would effectively “force[ it] to enter into arbitration in a foreign country

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Significantly, the State has procedural recourse from any possible prejudice
that could result if “the Executive Order [goes] back into effect after the orders from
other courts have been lifted or expired.” Mem. in Opp. to Gov’t Mot. to Stay at 2.
That is because “[w]hen circumstances have changed such that the court’s reasons
for imposing [a] stay no longer exist or are inappropriate, the court may lift the stay.”
Crawford v. Japan Airlines, 2013 WL 2420715, at *6 (D. Haw. May 31, 2013)
(quoting Canady v. Erbe Elektromedizin GmbH, 271 F. Supp. 2d 64, 74 (D.D.C.
2002)). Accord CMAX, 300 F.2d at 270 (“Should there be a substantial change in
circumstances indicating that the trial should not be further delayed, [the party
opposing the stay] may seek a district court order setting the case for trial.”).
Moreover, a stay is permissible so long as it is “reasonable” in length. See
Dependable Highway, 498 F.3d at 1067; Leyva v. Certified Grocers of Cal., Ltd.,
593 F.2d 857, 864 (9th Cir. 1979); cf. Yong v. I.N.S., 208 F.3d 1116, 1119 (9th Cir.
2000) (“If a stay is especially long or its term indefinite, we require a greater
showing to justify it.” (citation omitted)). Here, the expedited timeline of appellate
proceedings that has already been on display before the Ninth Circuit in the Western

when it remains unclear whether [the opponents of the stay] even agreed to arbitrate and where a
foreign court ha[d] already levied legal and equitable penalties against it”); Int’l Longshore,
Warehouse Union, Local 142 v. Hawaiian Waikiki Beach, Inc., 2002 WL 32058429, at *9 (D.
Haw. Dec. 13, 2002) (noting that the opposing party’s former employees—“low-wage workers .
. . , many of whom are elderly”—may suffer if adjudication of their right to severance pay was
further delayed).

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District of Washington case indicates that any delay in this case pending resolution
of that appeal will be reasonable in length.2 And if that does not turn out to be the
case, any party may petition the Court to lift or partially lift the stay for good cause,
as the State did on February 8, 2017. State Mot. to Partially Lift Stay, Dkt. No. 30.
On balance, this factor does not weigh strongly against the grant of a
discretionary stay.
B.

Possible Hardship Or Inequity Resulting From Going Forward

The proponent of a stay need not make a showing of hardship or inequity
unless its opponent first demonstrates that there is a “fair possibility” that a stay will
cause it injury. See Dependable Highway, 498 F.3d at 1066. That has not been
done here. If it had, there is scant evidence of hardship or inequity if the Court were
to require Defendants to proceed. Defendants summarize their hardship in these
terms: they “should not be required to defend against the State of Hawaii’s identical
legal claims in two cases simultaneously.” Mem. in Supp. of Mot. to Stay at 10–11.
Why the United States Department of Justice, what some describe as the largest law

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Indeed, the Ninth Circuit heard oral arguments just three days after the defendants filed their
notice of appeal in the Western District of Washington case, indicating that adjudication of the
emergency TRO effectively nullifying the countrywide Executive Order that is the subject of this
dispute, will be greatly accelerated. Cf., e.g., Unitek Solvent Servs. v. Chrysler Grp., 2014 WL
12576648, at *3 (D. Haw. Jan. 14, 2014) (explaining that stay of district court’s proceedings
pending the Ninth Circuit’s resolution of an interlocutory appeal was “reasonable in length”
because the appeal “ha[d] been expedited in accordance with Ninth Circuit rules” and “briefing
[would] be completed [within] th[e] month”).

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firm in the world, is not able to litigate similar claims on a mere two fronts without
claiming burden is beyond this Court.3 Moreover, in this circuit, “being required to
defend a suit, without more, does not constitute a clear case of hardship or inequity”
for purposes of a stay. Lockyer, 398 F.3d at 1112 (internal quotations omitted).
Indeed, hardship or inequity may result to both parties if the Court does not pause to
consider issues in the Western District of Washington appeal because of the
potential for inconsistent rulings and resulting confusion to law enforcement
agencies and the public, as discussed more fully below.
In any event, because Defendants are only required to “make out a clear case
of hardship” if there is a “fair possibility that the stay. . .will work damage to
someone else,” CMAX, 300 F.2d at 268, and given that no such damage can occur
while the Western District of Washington TRO remains in place, the Court finds that
this factor is neutral.
C.

The Orderly Course Of Justice

Last, the Court considers “the orderly course of justice measured in terms of
the simplifying or complicating of issues, proof, and questions of law which could

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The Court is not asserting that this case, together with the one pending in the Western District of
Washington, represent the only two cases nationwide that present similar issues surrounding
challenges to the Executive Order. The Court simply asserts that these are the only two cited by
Defendants in support of their hardship contentions.

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be expected from a stay.” CMAX, 300 F.2d at 268 (citing Landis, 299 U.S. at 254–
55).
Given the significant overlap of the issues presented here and in Washington
v. Trump, granting the stay while the nationwide injunction continues in place
pending the outcome of appellate proceedings would facilitate the orderly course of
justice. In particular, the Ninth Circuit’s ruling – and any subsequent appellate
pronouncement – will likely be dispositive of, or at least dispositive of many of the
issues presented by, the State’s Motion for TRO. These issues include State
standing, as well as the Establishment Clause, Due Process and/or Equal Protection
bases for relief cited by the State. The appellate court’s binding decisions in
Washington v. Trump could obviate the need for this Court to decide the same issues
where the scope of the relief sought by the State is identical to the nationwide TRO
already in place. The State acknowledges as much. See State’s Emergency Mot.
to Intervene, Wash. v. Trump, No. 17-35105 (9th Cir.), Dkt. No. 21-1 at 4-5, 9.4

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According to the State, the pending appeal in Washington v. Trump concerns the validity of an order that is protecting Hawai‘i and its citizens
from irreparable harm, and that is identical to one Hawai‘i is seeking in the
District of Hawai‘i. [The Ninth Circuit’s] resolution of this matter will
decide whether the state and its citizens are once again subjected to travel
bans and discrimination, and may decide whether the State can secure a
similar order in its own case.

State’s Emergency Mot. to Interv., Wash. v. Trump, No. 17-35105 (9th Cir.), Dkt. No. 21-1 at 5.

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Because many of the State’s legal arguments presented in its Motion for TRO are
presently before the Ninth Circuit, it makes little sense to expend the resources
necessary for a full presentation of those same issues in this forum while awaiting
guidance from the appellate court.5 The more efficient course is to await a
pronouncement from the governing appellate bodies, at which point the bulk of the
determinative issues may very well be settled in most material respects. See, e.g.,
Landis, 299 U.S. at 256 (explaining that even if a decision of the pending case “may
not settle every question of fact and law” in suits in other states, “in all likelihood it
will settle many and simplify them all.”); Fed. Home Loan Mortg. Corp. v. Kama,
2016 WL 922780, at *8–9 (D. Haw. Mar. 9, 2016) (ordering a stay, sua sponte, of
the proceedings pending resolution of related cases before the Ninth Circuit because
resolution of those cases “w[ould] likely involve an analysis of” issues obscured by
recent jurisprudence from the Hawaii Supreme Court, thereby “provid[ing] further
guidance” to this Court with respect to the case in question). Any remaining issues
can then be taken up by this Court, as needed, with the benefit of the Ninth Circuit’s
analysis.

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According to the State, it asserts unique arguments not yet raised in Washington v. Trump,
including: (1) that Sections 3 and 5(e) of the Executive Order violate the Establishment Clause;
(2) allegations of additional violations of the INA based on the nationality-based classifications
and the limited grant of authority to the President under Section 212(f); and (3) limits on the
President’s plenary powers over immigration and foreign affairs. See generally State’s
Emergency Mot. to Interv., Wash. v. Trump, No. 17-35105 (9th Cir.), Dkt. No. 21-1.

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In fact, granting the stay request would not only promote judicial economy,
but would also reduce the risk of inconsistent rulings that the appellate courts might
then need to disentangle. Moreover, in cases where significant litigation is likely to
take place during the pendency of an appeal, courts have granted a stay as a means of
conserving judicial resources. See, e.g., Canal Properties LLC v. Alliant Tax
Credit V, Inc., 2005 WL 1562807, at *3 (N.D. Cal. June 29, 2005) (granting stay
where case on appeal was likely to have preclusive effect and substantial litigation
would likely take place during the pendency of the appeal).
Considerable resources necessary for litigating the State’s Motion for TRO
may be wasted if the appellate court’s controlling decision changes the applicable
law or the relevant landscape of facts that need to be developed. Consequently, a
stay would preserve resources for both the parties and the Court and serve “the
orderly course of justice” by “simplifying . . . issues, proof, and questions of law.”
This factor weighs significantly in favor of a stay.
D.

Summary

Having considered the relevant factors, the Court, in its discretion, concludes
that a stay of pending deadlines in this action is appropriate to allow the appellate
courts to consider the pending, related proceedings on an expedited basis. A
temporary stay during which the existing nationwide injunction remains in place

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permits the Court and the parties to benefit from any appellate rulings that are
binding on this district court. The risk of inconsistent rulings and duplicative
litigation warrants granting the motion, particularly where, as here, there is an
absence of significant harm from the granting of a stay. See Lockyer, 398 F.3d at
1112 (weighing the balance of hardships between the parties and the prospect of
narrowing the factual and legal issues in the other proceeding in deciding the motion
for stay). Accordingly, the Court finds that a stay is the most efficient and fairest
course of action where there are independent and likely controlling proceedings
which bear upon this case. See Levya, 593 F.2d at 863.
CONCLUSION
Based on the foregoing, the Emergency Motion to Stay is GRANTED IN
PART. This matter is stayed as long as the February 3, 2017 injunction entered in
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///

///

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Washington v. Trump remains in full force and effect, or until further order of this
Court. All further relief requested by the Emergency Motion to Stay is DENIED.
IT IS SO ORDERED.
Dated: February 9, 2017 at Honolulu, Hawai‘i.

____________________________________________________________________________________________

State of Hawai‘i v. Trump, et al.; CV 17-00050 DKW-KJM; ORDER
GRANTING IN PART AND DENYING IN PART DEFENDANTS’
EMERGENCY MOTION TO STAY DEADLINES PENDING
RESOLUTION OF APPELLATE PROCEEDINGS REGARDING
NATIONWIDE INJUNCTION

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