State of Hawaii v. Trump

Filing 367

MOTION for Leave to File Third Amended Complaint Neal Katyal appearing for Plaintiff State of Hawaii (Attachments: #1 Exhibit [Proposed] Third Amended Complaint, #2 Exhibit [Proposed] Ex. 1 to Third Amended Complaint, #3 Exhibit [Proposed] Ex. 2 to Third Amended Complaint., #4 Exhibit [Proposed] Ex. 3 to Third Amended Complaint, #5 Exhibit [Proposed] Ex. 4 to Third Amended Complaint, #6 Exhibit [Proposed] Ex. 5 to Third Amended Complaint, #7 Exhibit [Proposed] Ex. 6 to Third Amended Complaint, #8 Exhibit [Proposed] Ex. 7 to Third Amended Complaint, #9 Exhibit [Proposed] Ex. 8 to Third Amended Complaint, #10 Exhibit [Proposed] Ex. 9 to Third Amended Complaint, #11 Exhibit Proposed Order, #12 Certificate of Service)(Katyal, Neal)

DOUGLAS S. CHIN (Bar No. 6465)
Attorney General of the State of Hawaii
DEPARTMENT OF THE ATTORNEY
GENERAL, STATE OF HAWAII
425 Queen Street
Honolulu, HI 96813
Telephone: [phone]
Fax: [phone]
Attorneys for Plaintiff, State of Hawaii

NEAL KUMAR KATYAL*
HOGAN LOVELLS US LLP
555 Thirteenth Street NW
Washington, DC 20004
Telephone: [phone]
Fax: [phone]
*Admitted Pro Hac Vice
Attorneys for Plaintiffs, State of
Hawaii and Ismail Elshikh, and
Prospective Plaintiffs John Does 1
& 2 and Muslim Association of
Hawaii, Inc.

(See Next Page For Additional Counsel)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII

STATE OF HAWAII and ISMAIL ELSHIKH,

PLAINTIFFS’ MOTION
FOR LEAVE TO FILE
Plaintiffs,
THIRD AMENDED
COMPLAINT;
v.
[PROPOSED] THIRD
AMENDED COMPLAINT;
DONALD J. TRUMP, in his official capacity as
EXHIBITS 1-9 TO
President of the United States; U.S.
DEPARTMENT OF HOMELAND SECURITY; [PROPOSED] THIRD
AMENDED COMPLAINT;
ELAINE DUKE, in her official capacity as
[PROPOSED] ORDER;
Acting Secretary of Homeland Security; U.S.
DEPARTMENT OF STATE; REX TILLERSON, CERTIFICATE OF
SERVICE
in his official capacity as Secretary of State; and
the UNITED STATES OF AMERICA,
Civil Action No. 1:17-cv00050-DKW-KSC
Defendants.

ADDITIONAL COUNSEL
CLYDE J. WADSWORTH (Bar No.
8495)
Solicitor General of the State of Hawaii
DEIRDRE MARIE-IHA (Bar No. 7923)
DONNA H. KALAMA (Bar No. 6051)
KIMBERLY T. GUIDRY (Bar No. 7813)
ROBERT T. NAKATSUJI (Bar No. 6743)
KALIKO‘ONALANI D. FERNANDES
(Bar. No. 9964)
KEVIN M. RICHARDSON (Bar No.
10224)
Deputy Attorneys General
DEPARTMENT OF THE ATTORNEY
GENERAL, STATE OF HAWAII
425 Queen Street
Honolulu, HI 96813
Telephone: [phone]
Fax: [phone]
Email: [e-mail]
Attorneys for Plaintiff, State of Hawaii

COLLEEN ROH SINZDAK*
MITCHELL P. REICH*
ELIZABETH HAGERTY*
YURI S. FUCHS**
SUNDEEP IYER**†
REEDY C. SWANSON**††
HOGAN LOVELLS US LLP
555 Thirteenth Street NW
Washington, DC 20004
Telephone: [phone]
Fax: [phone]
Email: [e-mail]
THOMAS P. SCHMIDT*
HOGAN LOVELLS US LLP
875 Third Avenue
New York, NY 10022
Telephone: [phone]
Fax: [phone]
SARA SOLOW*
ALEXANDER B. BOWERMAN*
HOGAN LOVELLS US LLP
1735 Market St., 23rd Floor
Philadelphia, PA 19103
Telephone: [phone]
Fax: [phone]

*Admitted Pro Hac Vice
**Pro Hac Vice Application Forthcoming
†
Admitted only in Maryland; supervised by
firm members
††
Admitted only in Virginia; supervised by
firm members

2

Attorneys for Plaintiffs, State of
Hawaii and Ismail Elshikh, and
Prospective Plaintiffs John Does 1
& 2 and Muslim Association of
Hawaii, Inc.

PLAINTIFFS’ MOTION FOR LEAVE TO FILE THIRD AMENDED
COMPLAINT
Pursuant to Local Rule 7.6 for the United States District Court for the
District of Hawaii and Rules 7 and 15(a) of the Federal Rules of Civil Procedure,
the State of Hawaii (the “State”) and Ismail Elshikh, PhD (collectively,
“Plaintiffs”), by and through their counsel, respectfully request that the Court grant
Plaintiffs leave to file a Third Amended Complaint (“TAC”) in the form attached
hereto. Plaintiffs’ proposed TAC challenges Defendant Donald J. Trump’s
September 24, 2017 Presidential Proclamation Enhancing Vetting Capabilities and
Processes for Detecting Attempted Entry into the United States by Terrorists or
Other Public-Safety Threats (“EO-3”). It also adds three additional Plaintiffs to
this lawsuit, John Doe 1, John Doe 2, and the Muslim Association of Hawaii, Inc.
(“Muslim Association of Hawaii”).
In the event that Plaintiffs’ request for leave to file the TAC is granted,
Plaintiffs further request that the deadline for Defendants’ response to the TAC be
deferred until the resolution of Plaintiffs’ concurrently-filed Motion for Temporary
Restraining Order and any subsequent proceeding regarding preliminary injunctive
relief.
FACTUAL AND PROCEDURAL BACKGROUND
On February 3, 2017, the State filed a Complaint, Dkt. 1, and a Motion for
Temporary Restraining Order, Dkt. 2, in this Court. That Complaint and motion
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sought injunctive relief against President Trump’s Executive Order No. 13,769
(“EO-1”), which barred individuals from seven Muslim-majority countries and all
refugees from entering the United States. 82 Fed. Reg. 8977. EO-1 was enjoined
before this Court could rule on the State’s request. However, the Court granted
leave to the State to file a First Amended Complaint adding Dr. Elshikh as a
plaintiff. Dkt. 36. On March 6, 2017, President Trump replaced EO-1 with
Executive Order No. 13,780, 82 Fed. Reg. 13,209 (“EO-2”), which blocked
nationals from six of the same countries from entering the United States for 90
days, halted the admission of refugees to the United States for 120 days, and
capped annual refugee admissions at 50,000.
Following the issuance of EO-2, this Court granted leave for Plaintiffs to file
a Second Amended Complaint challenging EO-2. Dkt. 59. The Court granted
Plaintiffs’ concurrently-filed Motion for Temporary Restraining Order against EO2 on March 15, 2017, Dkt. 219, and converted the temporary restraining order to a
preliminary injunction on March 29, 2017, Dkt. 270, enjoining the Government
from implementing EO-2’s 90-day travel ban, 120-day refugee ban, and 50,000refugee cap. On April 3, 2017, the Court issued an Order granting the parties’ joint
motion for a stay of further proceedings related to EO-2 pending the disposition of
the Government’s appeal of the preliminary injunction. Dkt. 279. The Ninth
Circuit affirmed the majority of the injunction on June 12, 2017. Dkt. 288.

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On September 24, 2017, while the Government’s appeal of the Ninth
Circuit’s opinion was pending, President Trump issued EO-3, which replaces the
90-day travel ban in EO-2 with an indefinite travel ban. Effective October 17,
2017, at 6:01 PM Hawaii Standard Time (“H.S.T.”), Section 2 of EO-3, inter alia,
bars nationals of six Muslim-majority countries—Iran, Libya, Syria, Yemen,
Somalia, and Chad—from entering the United States as immigrants. Foreign
nationals of those countries also may not enter the United States with certain types
of nonimmigrant visas. In addition to the six Muslim-majority countries that it
targets, EO-3 bars entry by North Korean nationals and certain Venezuelan
government officials.
On October 6, 2017, Plaintiffs filed a Motion to Lift the Stay, and to
Increase the Word Limit and Set a Schedule for Briefing on Plaintiffs’
Forthcoming Motion for a Temporary Restraining Order. Dkt. 363.1 Plaintiffs
requested that the Court’s April 3, 2017 stay be lifted so that they could seek leave
to file their TAC challenging EO-3 and adding additional plaintiffs. In response,
the Court lifted the stay and directed that Plaintiffs file the instant motion and their
1

Plaintiffs conferred with counsel for the Government on October 5, 2017. By
email correspondence, the Government indicated that it did not oppose Plaintiffs’
motion to lift the stay or their motion for leave to file a TAC. In addition, the
Government asked Plaintiffs to relay to the Court its request that the deadline for
responding to the TAC be extended until after the resolution of Plaintiffs’ Motion
for a Temporary Restraining Order and any subsequent preliminary injunction
motion. Plaintiffs consent to that request.

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Motion for Temporary Restraining Order by 6:00 AM H.S.T on October 10, 2017.
Dkt. 366.
ARGUMENT
Plaintiffs respectfully request permission to file a TAC challenging EO-3
and adding additional plaintiffs as parties. Federal Rule of Civil Procedure
15(a)(2) provides that leave to amend a complaint “shall be freely given when
justice so requires.” The district court has discretion to allow a party to amend a
pleading, see Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321, 330
(1971) (citation omitted), which the Ninth Circuit has explained should be
exercised with “extreme liberality,” Jackson v. Bank of Hawaii, 902 F.2d 1385,
1387 (9th Cir. 1990) (quoting United States v. Webb, 655 F.2d 977, 979 (9th Cir.
1981)). In determining whether to permit a litigant to amend its pleadings, courts
consider: (1) whether the movant has acted with undue delay, bad faith, or dilatory
motive; (2) whether the nonmovant would be unduly prejudiced by the
amendment; (3) whether there have been repeated failures to cure a pleading
deficiency, and (4) whether the proposed amendment would be futile. See Foman
v. Davis, 371 U.S. 178, 182 (1962).
The Foman factors overwhelmingly favor permitting Plaintiffs to file their
TAC. First, Plaintiffs have not acted with undue delay, bad faith, or a dilatory
motive; immediately upon the release of EO-3, Plaintiffs began studying the new

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Proclamation and gathering information regarding the grave harms it would inflict
on Plaintiffs. They then promptly sought leave to amend their complaint before
EO-3’s travel bans are scheduled to take effect.
Second, while Plaintiffs would be significantly prejudiced if they are not
allowed to amend their complaint to challenge the legality of EO-3, Defendants
will not be prejudiced by the filing. Defendants have indicated that they do not
oppose the instant motion, see n.1, supra, and in any event Defendants necessitated
a new complaint by issuing a Proclamation that threatens many of the same harms
as the Executive Orders that preceded it. Moreover, the two new individual
plaintiffs proposed to be added to the lawsuit—John Doe 1 and John Doe 2—filed
declarations supporting the State’s initial motion for a temporary restraining order
in February 2017, see Dkts. 10, 10-1, 10-2, 15, and the other proposed plaintiff—
the Muslim Association of Hawaii—is the governing association for Dr. Elshikh’s
mosque. Thus, the circumstances of each of the prospective plaintiffs have been
known to Defendants since the initiation of this case.
Finally, the third and fourth factors are met. There have been no failures to
cure pleading deficiencies and there are no issues related to futility.
Given the foregoing, it is in the interests of justice to allow Plaintiffs to
amend their complaint to challenge the illegality of EO-3. Fed. R. Civ. P. 15(a)(2).
Allowing Plaintiffs to file a TAC challenging EO-3 will enable the State of Hawaii

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to act to protect its sovereign interests, its universities, and its residents and
employers. It also will enable the individual Plaintiffs to vindicate their rights to
reunite with family members abroad—many of whom remain in the countries
targeted by EO-3—and to be free of an unconstitutional establishment of religion.
And it will permit the Muslim Association of Hawaii to avoid the diminishment of
its community, the harm to its finances, and the impediment to its religious practice
that will occur if EO-3 is implemented.
This Court previously allowed Plaintiffs to amend their complaint in nearly
identical situations following President Trump’s replacement of EO-1 with EO-2,
Dkt. 59, and in order to add Dr. Elshikh as a plaintiff, Dkt. 36. Now that President
Trump has permitted the travel ban in Section 2(c) of EO-2 to expire and replaced
it with EO-3, Plaintiffs request that the Court grant similar relief by allowing
Plaintiffs to amend their complaint to challenge EO-3 and add additional plaintiffs.
CONCLUSION
For the foregoing reasons, Plaintiffs respectfully request leave to file a Third
Amended Complaint. If the Court grants Plaintiffs’ motion, Plaintiffs further
request that the deadlines for Defendants’ response to the Third Amended
Complaint be extended until after this Court has resolved Plaintiffs’ Motion for
Temporary Restraining Order and any subsequent proceeding regarding
preliminary injunctive relief.

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DATED:

Washington, DC, October 10, 2017.
Respectfully submitted,
/s/ Neal K. Katyal

DOUGLAS S. CHIN (Bar No. 6465)
Attorney General of the State of Hawaii
CLYDE J. WADSWORTH (Bar No. 8495)
Solicitor General of the State of Hawaii
DEIRDRE MARIE-IHA (Bar No. 7923)
KIMBERLY T. GUIDRY (Bar No. 7813)
DONNA H. KALAMA (Bar No. 6051)
ROBERT T. NAKATSUJI (Bar No. 6743)
KALIKO‘ONALANI D. FERNANDES
(Bar No. 9964)
KEVIN M. RICHARDSON (Bar No.
10224)
Deputy Attorneys General
DEPARTMENT OF THE ATTORNEY
GENERAL, STATE OF HAWAII
Attorneys for Plaintiff, State of Hawaii

NEAL K. KATYAL*
COLLEEN ROH SINZDAK*
THOMAS P. SCHMIDT*
SARA SOLOW*
MITCHELL P. REICH*
ELIZABETH HAGERTY*
ALEXANDER B. BOWERMAN*
YURI S. FUCHS**
SUNDEEP IYER**†
REEDY C. SWANSON**††
HOGAN LOVELLS US LLP
*Admitted Pro Hac Vice
**Pro Hac Vice Application
Forthcoming
†
Admitted only in Maryland;
supervised by firm members
††
Admitted only in Virginia;
supervised by firm members
Attorneys for Plaintiffs, State of
Hawaii and Ismail Elshikh, and
Prospective Plaintiffs John Does 1
& 2 and Muslim Association of
Hawaii, Inc.

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