State of Hawaii v. Trump

Filing 388

NOTICE by Ismail Elshikh, John Doe 1, John Doe 2, Muslim Association of Hawaii, Inc., State of Hawaii (Joint) re: Stipulation to Convert TRO to Prelim. Injunction Ismail Elshikh, John Doe 1, John Doe 2, Muslim Association of Hawaii, Inc., State of Hawaii. (Attachments: #1 Exhibit Joint Stipulation to Convert TRO to Prelim. Injunction, #2 Certificate of Service)(Katyal, Neal)

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)
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

NEAL K. KATYAL*
HOGAN LOVELLS US LLP
555 Thirteenth Street NW
Washington, DC 20004
Telephone: [phone]
Fax: [phone]
Email:
[e-mail]
*Admitted Pro Hac Vice

Attorneys for Plaintiffs

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

STATE OF HAWAII, ISMAIL ELSHIKH, JOHN
DOES 1 & 2, and MUSLIM ASSOCIATION OF
HAWAII, INC.,
Plaintiffs,
v.
DONALD J. TRUMP, in his official capacity as
President of the United States; U.S.
DEPARTMENT OF HOMELAND SECURITY;
ELAINE DUKE, in her official capacity as Acting
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.

JOINT NOTICE
REGARDING
STIPULATION TO
CONVERT TEMPORARY
RESTRAINING ORDER
TO PRELIMINARY
INJUNCTION; JOINT
STIPULATION TO
CONVERT TEMPORARY
RESTRAINING ORDER
TO PRELIMINARY
INJUNCTION;
CERTIFICATE OF
SERVICE
Civil Action No. 1:17-cv00050-DKW-KSC

ADDITIONAL COUNSEL
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]
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]
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
†
Admitted only in Maryland;
supervised by firm members
††
Admitted only in Virginia;
supervised by firm members
Attorneys for Plaintiffs

JOINT NOTICE REGARDING STIPULATION TO CONVERT
TEMPORARY RESTRAINING ORDER TO PRELIMINARY
INJUNCTION
On October 17, 2017, this Court issued a temporary restraining order
(“TRO”) prohibiting Defendants from enforcing the Proclamation issued on
September 24, 2017, entitled “Enhancing Vetting Capabilities and Processes for
Detecting Attempted Entry into the United Stated States by Terrorists or Other
Public-Safety Threats,” across the Nation. Dkt. 387. The Court also ordered the
parties to submit a stipulated briefing and hearing schedule to determine whether
the TRO should be extended, or to “promptly indicate whether they jointly consent
to the conversion of this Temporary Restraining Order to a Preliminary Injunction
without the need for additional briefing or a hearing.” Id. at 39.
The parties, having met and conferred, stipulate and agree that the TRO shall
be converted to a Preliminary Injunction. The parties’ joint stipulation regarding
conversion is attached hereto and is being submitted to chambers consistent with
Local Rules 10.4 and 100.8.2. The Government reserves its right to appeal the
injunction.
The Government wishes to note, however, that it has requested that the
Supreme Court vacate as moot the Ninth Circuit’s prior decision, relied on by the
district court as precedent. And the Government will notify the Supreme Court of
further developments regarding mootness after Section 6(a)’s review process

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expires on October 24, 2017. See Letter Brief Regarding Mootness, Trump v.
Hawaii, No. 16-1540 (Oct. 5, 2017); cf. Trump v. IRAP, No. 16-1436, --- S. Ct. ---,
2017 WL 4518553 (Oct. 10, 2017) (vacating the Fourth Circuit’s decision as moot
due to expiration of Section 2(c) of EO-2 on September 24, 2017). Accordingly, to
the extent vacatur of the Ninth Circuit’s decision would affect this Court’s decision
regarding conversion of its temporary restraining order to a preliminary injunction,
the Government notes that the Court may wish to wait until after the Supreme
Court acts on the Government’s request for vacatur. See Camreta v. Greene, 563
U.S. 692, 713 (2011) (“The point of vacatur is to prevent an unreviewable decision
‘from spawning any legal consequences[.]’” (quoting United States v.
Munsingwear, Inc., 340 U.S. 36, 40-41 (1950))).
Plaintiffs note that the Supreme Court has not vacated the Ninth Circuit’s
opinion. Moreover, even if the Supreme Court does ultimately vacate that opinion,
that vacatur order would “express no view on the merits,” IRAP, 2017 WL
4518553, and “a vacated opinion still carries informational and perhaps even
persuasive or precedential value,” DHX, Inc. v. Allianz AGF MAT, Ltd., 425 F.3d
1169, 1176 (9th Cir. 2005) (Beezer, J., concurring) (collecting cases). For the
reasons set forth in the Ninth Circuit’s opinion in Hawaii v. Trump, 859 F.3d 741
(9th Cir. 2017), and in Plaintiffs’ memorandum and reply in support of a TRO, the
Ninth Circuit’s and this Court’s holdings regarding the meaning of 8 U.S.C.

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§§ 1152(a)(1)(A), 1182(f), and 1185(a) are entirely correct. Therefore, Plaintiffs
respectfully submit that there is no reason for this Court to delay conversion.
In addition, Plaintiffs continue to reserve their right to seek leave to amend
their complaint to challenge any future actions regarding refugees, as appropriate.
See Mem. 5-6 n.3, Dkt. No. 368-1.
DATED: Washington, DC, October 20, 2017.

/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)
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
Attorneys for Plaintiff, State of Hawaii

NEAL K. KATYAL*
COLLEEN ROH SINZDAK*
MITCHELL P. REICH*
ELIZABETH HAGERTY*
YURI S. FUCHS*
SUNDEEP IYER*†
REEDY C. SWANSON*††
THOMAS P. SCHMIDT*
SARA SOLOW*
ALEXANDER B. BOWERMAN*
HOGAN LOVELLS US LLP
*Admitted Pro Hac Vice
†
Admitted only in Maryland;
supervised by firm members
††
Admitted only in Virginia;
supervised by firm members
Attorneys for Plaintiffs

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