State of Hawaii v. Trump

Filing 331

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 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,

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

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.

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 Enforce or, in the
Alternative, to Modify Preliminary Injunction, filed July 7, 2017 (ECF No. 328).
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 take no position on the motion for leave to file. 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. This Court has already acknowledged the importance of these
state interests by granting amici States leave to file an amicus brief in support of
plaintiff’s earlier motion to clarify (ECF Nos. 319, 320, 321). The amici States have
also previously 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, 16A1191 (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.

1

Executive Order No. 13,780, §§ 2(c), 6(a)-(b) (Mar. 6, 2017), 82 Fed. Reg.
13,209 (Mar. 9, 2017) (“EO-2”).
2

Amici States raise no new arguments, but rather provide a broader perspective
on the state interests at stake, already 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 nationwide injunction as modified
by the Supreme Court’s partial stay. The defendants would not be prejudiced nor the
proceedings delayed by granting this motion to file an amicus brief one day in
advance of the date scheduled by the Court for defendants’ response to plaintiffs’
underlying motion (ECF No. 330). Thus, the amici States and the District of
Columbia should have the opportunity to be heard on this important question.
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
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).
3

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 10, 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

4

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