International Refugee Assistance Project et al v. Trump et al

Filing 180

RESPONSE in Opposition re 177 MOTION for Leave to File Motion for Preliminary Injunction filed by Daniel Coats, Department of Homeland Security, Department of State, John F. Kelly, Office of the Director of National Intelligence, Rex W. Tillerson, Donald J. Trump.(Garg, Arjun)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
SOUTHERN DIVISION
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Plaintiffs,
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v.
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DONALD TRUMP, in his official capacity )
as President of the United States, et al.,
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Defendants.
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INTERNATIONAL REFUGEE
ASSISTANCE PROJECT, et al.,

No. 8:17-cv-00361-TDC

DEFENDANTS’ MEMORANDUM IN OPPOSITION TO
PLAINTIFFS’ MOTION FOR LEAVE TO FILE MOTION FOR
PRELIMINARY INJUNCTION OF § 6 ON CONSTITUTIONAL GROUNDS
For the third time since commencing this suit, Plaintiffs seek to file a motion for a
preliminary injunction targeted at the refugee provisions of the Executive Order.1 Plaintiffs make
this request even though this Court has already issued an Order denying such an injunction—on
the same theory Plaintiffs hope to raise here again, no less—and even though that Order is already
on appeal before the Fourth Circuit. The Court should deny a third bite at the apple.
As an initial matter, the Court lacks jurisdiction to resolve Plaintiffs’ proposed motion
because the motion would seek to alter the scope of an injunctive order that is properly before the
Court of Appeals. Although the issue Plaintiffs seek to raise again here—whether Section 6 of the
Executive Order should be preliminarily enjoined—is not being raised in the Fourth Circuit appeal,

1

Except where otherwise noted, “Executive Order” refers to Executive Order No. 13,780
(Mar. 6, 2017). Section 6 of the Executive Order suspends travel and adjudications under the U.S.
Refugee Admissions Program for 120 days, subject to case-by-case waivers, and limits the entry
of more than 50,000 refugees in fiscal year 2017. In this memorandum, “first Executive Order”
refers to Executive Order No. 13,769 (Jan. 27, 2017), which has been revoked.
1

the underlying Order of this Court declining to enjoin Section 6 is still before the Fourth Circuit
and therefore subject to that court’s jurisdiction.
Even if this Court were not divested of jurisdiction to resolve Plaintiffs’ proposed motion,
Plaintiffs should be denied leave for a do-over at seeking preliminary relief that they failed to
justify in an earlier round of preliminary injunction proceedings. That is particularly true given
that Plaintiffs will press a legal theory they already raised, and would rely on arguments and
evidence they previously could have raised.
In any event, wading back into the preliminary injunction waters is inadvisable at this time.
The Fourth Circuit appeal is proceeding on an expedited schedule and will likely resolve many,
and possibly all, of the issues that would be dispositive of Plaintiffs’ proposed motion. In the
meantime, the relevant provisions of the Executive Order are currently enjoined nationwide, so
there is no exigency that warrants the Court or the parties expending further effort here while
awaiting the Fourth Circuit’s guidance.
ARGUMENT
I.

The Court Lacks Jurisdiction over Plaintiffs’ Proposed Motion.
District courts generally do not have jurisdiction to revisit the scope of injunctive relief

once an order granting (or denying) that relief has been appealed. See Lewis v. Tobacco Workers’
Int’l Union, 577 F.2d 1135, 1139 (4th Cir. 1978) (holding that “the district court lost its power to
vacate [its injunction] when the notices of appeal were filed”); see also Coastal Corp. v. Texas E.
Corp., 869 F.2d 817, 820 (5th Cir. 1989) (“[A] district court cannot generally accept new evidence
or arguments on the injunction while the validity of the injunction is on appeal.”). If the rule were
otherwise, it would run afoul of the principle that “two courts should not have simultaneous
jurisdiction over a single order.” 16 Charles Alan Wright & Arthur R. Miller, Federal Practice and

2

Procedure § 3921.2 (3d ed.).2 Of course, when the order at issue is for a preliminary injunction, a
district court has authority to “proceed with the action on the merits” while the preliminary
injunction is on appeal. James Wm. Moore, et al., Moore’s Federal Practice § 303.32(2)(b)(v) (3d
ed. 2016). In such cases, however, the district court is not at risk of acting on the same order that
is before the court of appeals. To the contrary, if the district court ultimately enters a permanent
injunction, then the appeal of the preliminary injunction “becomes moot.” Grupo Mexicano de
Desarrollo S.A. v. Alliance Bond Fund, Inc., 527 U.S. 308, 314 (1999).
Here, Plaintiffs are attempting to rely on this Court’s power to proceed with the case—a
power that Defendants do not dispute—in an inapposite context. Plaintiffs are not seeking leave
to proceed with this case on the merits, but rather to file yet another motion for preliminary relief.
And that motion would effectively request that this Court modify its prior Order—by reversing its
holding that Section 6 of the Executive Order should not be enjoined. See ECF No. 149 (“Mem.
Op.”) at 40-41 (stating that Plaintiffs sought “an injunction blocking the Executive Order in its
entirety” but that the Court would enjoin Section 2(c) only and “declines to enjoin the Second
Order in its entirety”); see also ECF No. 150 ¶ 7 (ordering that Plaintiffs’ request for a preliminary
injunction is “DENIED as to all other provisions of Executive Order 13,780” aside from
Section 2(c)). Plaintiffs’ third motion would thus seek exactly the kind of relief that Plaintiffs
concede is inappropriate—a modification of “the precise order that is on appeal.” Pls.’ Mot. at 5.

2

The Fourth Circuit allows a district court to retain jurisdiction when considering “matters
in aid of the appeal,” such as when “imprecise wording in the injunction” creates confusion. Lytle
v. Griffith, 240 F.3d 404, 407 n.2 (4th Cir. 2001); see also id. (explaining that the district court had
corrected its mistaken use of “the Commonwealth [of Virginia]” as a “shorthand reference” for the
Governor and the Commonwealth’s Attorney for the City of Norfolk—the two defendants in the
case). This exception ensures that a district court can make “[a]dditional findings that merely ‘set
[the target] in place’” for appeal, while leaving intact the broader rule that “[a]dditional findings
that ‘move the target’ are disfavored.” FTC v. Enforma Nat. Prods., Inc., 362 F.3d 1204, 1215
n.11 (9th Cir. 2004) (alterations in original).
3

To be sure, Defendants have not raised the issue of the validity of Section 6 in their appeal,
and Plaintiffs have not noticed a cross-appeal with respect to that issue. But the Fourth Circuit’s
jurisdiction is over “[i]nterlocutory orders,” not issues. 28 U.S.C. § 1292(a)(1) (emphasis added);
see also 16 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 3921.2 (3d
ed.) (“The power to proceed toward decision of the merits must be distinguished from the power
to act on the very order that has been appealed.” (emphasis added)). And “it is settled that an
interlocutory appeal from the denial of preliminary injunctive relief divests the court . . . of
jurisdiction with regards to questions raised and decided upon the interlocutory order appealed
from.” Dist. 2, Marine Eng’rs Beneficial Ass’n, AFL-CIO v. Falcon Carriers, Inc., 374 F. Supp.
1342, 1345 (S.D.N.Y. 1974). Because the question of whether to enjoin Section 6 has already
been “raised and decided,” this Court lacks jurisdiction to resolve Plaintiffs’ proposed motion.
Compare ECF No. 95 at 14-15 (raising the argument that evidence pertaining to refugees supports
Plaintiffs’ Establishment Clause theory) with Mem. Op. at 40-41 (deciding to reject a preliminary
injunction of the refugee provisions on Establishment Clause grounds).
Plaintiffs are wrong to suggest that permitting a renewed effort to enjoin Section 6 “would
not interfere with the Fourth Circuit’s consideration” of this Court’s existing preliminary
injunction decision. Pls.’ Mot. at 4. That is because this Court has already determined the
propriety of preliminary relief—i.e., held that those Plaintiffs who have Establishment Clause
claims are likely to suffer irreparable harm absent a preliminary injunction. See Mem. Op. at 1617, 38-39. That holding is precisely what is at issue in the Fourth Circuit, see Appellants’ Br. at
53-54, Int’l Refugee Assistance Project v. Trump, No. 17-1351 (4th Cir. Mar. 24, 2017), ECF No.
36, and would simultaneously be at issue in any further consideration by this Court of whether
Plaintiffs are entitled to a preliminary injunction of Section 6 on Establishment Clause grounds.

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These same circumstances led a district court in the Southern District of New York to conclude
that “allowing [the plaintiff] to file [a] second motion for a preliminary injunction might well
encroach upon the Second Circuit’s review of [the plaintiff’s] appeal.” Int’l Bus. Machines Corp.
v. Johnson, 2009 WL 2356430, at *3 (S.D.N.Y. July 30, 2009). In particular, that court explained
that the plaintiff’s “filing of a successive motion for preliminary injunction” could require the court
“to reconsider certain aspects of its original ruling,” including “the analysis of irreparable harm.”
Id. The Court should decline to create that risk here.
The fact that Plaintiffs’ motion would require this Court to assess the propriety of
preliminary injunctive relief—the very question before the Fourth Circuit—distinguishes this case
from the three cases Plaintiffs cite for the proposition that a district court has jurisdiction even
when “identical” issues are before the court of appeals. Pls.’ Mot. at 5. In each of those cases, the
supposedly identical issue was an ultimate determination on the merits, not a simultaneous
assessment of the validity of a preliminary injunction order. See Moltan Co. v. Eagle-Picher
Indus., Inc., 55 F.3d 1171, 1174 (6th Cir. 1995) (addressing a district court’s authority to “convert
[a] preliminary injunction into a permanent one” while the preliminary injunction is on appeal);
Soc’y for Animal Rights, Inc. v. Schlesinger, 512 F.2d 915, 918 (D.C. Cir. 1975) (discussing the
possibility of a trial during the pendency of an interlocutory appeal); Hunter v. Redmer, 2015 WL
8479211, at *1-2 (D. Md. Dec. 10, 2015) (district court could consider the merits of “dispositive
motions” while appeal of preliminary injunction decision was pending).
None of the cases that Plaintiffs cite speaks to the question that is actually at issue—i.e.,
whether a district court can issue preliminary injunctive relief when an order addressing that same
issue is already on appeal. Instead, Plaintiffs’ cases reflect the previously discussed principle that
a district court can proceed to the merits of a case when a preliminary injunction decision is on

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appeal, as well as the related principle that the court can proceed to a request for permanent
injunctive relief when the merits determination is on appeal. See, e.g., Crutchfield v. U.S. Army
Corps of Eng’rs, 230 F. Supp. 2d 673, 680 (E.D. Va. 2002) (holding that the district court could
consider a request for permanent injunctive relief after the court’s decision on the merits was
already on appeal). The district court in Crutchfield in fact took pains to clarify that “[i]n
determining whether to grant the requested injunction, this Court is not called upon to, and need
not, alter [its prior] Opinion in any way.” Id. Here, by contrast, Plaintiffs ask this Court to alter
its prior determination as to the scope of its preliminary injunction Order. So long as that Order is
under appellate review, however, this Court lacks jurisdiction to resolve Plaintiffs’ proposed
motion.
II.

Plaintiffs Should Not Be Permitted to File a Third Preliminary Injunction Motion.
Even assuming the Court would have jurisdiction to resolve another preliminary injunction

motion aimed at the refugee provisions of the Executive Order, the Court should deny Plaintiffs’
request for leave to file such a motion.
In both of their prior two motions for a preliminary injunction, Plaintiffs have argued for
enjoining some, or all, of the Executive Order’s provisions on refugees. In their first motion,
Plaintiffs sought only to enjoin Section 5(d) of the first Executive Order, the provision that limited
the entry of more than 50,000 refugees in fiscal year 2017. See ECF No. 64. Despite their position
now, at that time Plaintiffs did not even raise an Establishment Clause theory, instead relying only
on statutory grounds. See id. at 1-2. That motion, which the parties have agreed applies to the
second Executive Order as well, see ECF No. 82 at 2, is still pending. After the second Executive
Order was issued, Plaintiffs filed a second preliminary injunction motion, which sought to enjoin
the Executive Order in its entirety, including the refugee provisions in Section 6. See ECF No. 91
at 1. In this second motion, Plaintiffs challenged the Executive Order on Establishment Clause
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grounds, argued that certain Plaintiffs had standing to challenge the refugee provisions of the
Executive Order, and claimed that the evidence relating to those provisions supported their
Establishment Clause argument. See ECF No. 91 at 5-6, 14-15, 33-38. This Court, however, held
that Plaintiffs failed to make the required showing to justify a preliminary injunction of the refugee
provisions on Establishment Clause grounds. See Mem. Op. at 40-41.
Yet, in what would be Plaintiffs’ third bite at the apple, they propose filing another
preliminary injunction motion with respect to the Executive Order’s refugee provisions in
Section 6. ECF No. 168 at 1. Plaintiffs advise that such a motion would be based “principally on
Establishment Clause grounds,” see id., the very argument they initially did not raise, then did
pursue, and that this Court considered in declining to enjoin Section 6, see Mem. Op. at 40-41.
Plaintiffs’ only justification for asking this Court to retrace its footsteps is that “neither
party raised the possibility that discriminatory motives could animate § 2(c) but not § 6.” Pls.’
Mot. at 1. This argument flips on its head the requirement that Plaintiffs make “a clear showing”
that they are entitled to the “extraordinary remedy” of a preliminary injunction. See Winter v. Nat.
Res. Def. Council, Inc., 555 U.S. 7, 22 (2008). It was Plaintiffs’ burden to demonstrate that they
satisfied all four of the requirements for a preliminary injunction, see Direx Israel, Ltd. v.
Breakthrough Med. Corp., 952 F.2d 802, 812 (4th Cir. 1991), and a subsequent realization that
their showing did not justify the full measure of their requested relief does not excuse this failure.
Plaintiffs were unequivocal in asking this Court to enjoin the Executive Order “in its entirety.”
ECF No. 91 at 2. And Plaintiffs do not claim that they were somehow prevented from introducing
evidence they now wish to adduce in support of enjoining Section 6; they simply omitted to do so.
Plaintiffs’ suggestion that they will rely on “some” statements made after this Court held argument
(but not, apparently, after this Court issued its preliminary injunction decision), see ECF No. 168

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at 1, does not alter the gravamen of their request: to introduce arguments and evidence that they
already had a full and fair opportunity to present to the Court.
Faced with Plaintiffs’ attempt to press “seriatim claims,” “there comes a time when the
court should pronounce that ‘enough is enough.’” Phair v. Montgomery Cnty. Pub. Sch., 2000
WL 968447, at *1 (D. Md. July 12, 2000). In light of the opportunities Plaintiffs have already had
to make their best case for a preliminary injunction of Section 6, this Court should not permit
Plaintiffs to “litigate this matter through piecemeal, seriatim motions requesting the same relief.”
IBM, 2009 WL 2356430, at *2; see also id. at *1 (explaining that IBM “requested leave, for the
second time in this litigation, to file a second motion for a preliminary injunction” and that “IBM’s
proposed motion seeks essentially the same relief it sought (unsuccessfully) in its first motion for
a preliminary injunction”). Instead, Plaintiffs “ought to be ‘held to the requirement that they
present their strongest case for [relief] when the matter is first raised.’” Siemens Westinghouse
Power Corp. v. Dick Corp., 219 F.R.D. 552, 554 (S.D.N.Y. 2004) (alteration in original) (quoting
Allstate Fin. Corp. v. Zimmerman, 296 F.2d 797, 799 (5th Cir. 1961)). That is particularly true in
light of the Fourth Circuit’s recent admonition that “[p]iecemeal litigation is disfavored and
permitted only in limited circumstances.” Bluewave Healthcare Consultants, Inc. v. United States,
__ F.3d __, 2017 WL 1097132, at *6 (4th Cir. Mar. 23, 2017).
Indeed, the need to avoid piecemeal litigation is particularly acute in the context of
successive preliminary injunction motions because an aggrieved party has the right to an
interlocutory appeal. See 28 U.S.C. § 1292(a)(1). Plaintiffs’ approach here illustrates these
concerns—the Fourth Circuit has already scheduled argument on this Court’s prior Order and
briefing is underway, so any appeal of a new order on Plaintiffs’ third preliminary injunction
motion would either be unable to be heard simultaneously with the existing appeal or would need

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to be briefed and considered on an extremely short timetable. Either option would be a disservice
to the Court of Appeals. See Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 170 (1974) (noting “the
debilitating effect on judicial administration caused by piecemeal appellate disposition of what is,
in practical consequence, but a single controversy”).
Moreover, Plaintiffs’ jurisdictional argument further illustrates why the right to
interlocutory appeal counsels against permitting successive preliminary injunction motions.
Although Plaintiffs claim that this Court still has jurisdiction to enjoin Section 6, they acknowledge
that “the Court lacks jurisdiction over th[e] injunction” of § 2(c) while the appeal before the Fourth
Circuit is pending. Pls.’ Mot. at 1. But if this Court only has jurisdiction to resolve another
preliminary injunction motion aimed at Section 6, then this Court’s prior Order is merely a oneway ratchet—the Court cannot narrow its injunction while the Order is on appeal, but Plaintiffs
are free to take another shot at broadening the scope of the injunction (and presumably then free
to appeal if they fail). See F.W. Kerr Chem. Co. v. Crandall Assoc., Inc., 815 F.2d 426, 429 (6th
Cir. 1987) (per curiam) (criticizing plaintiff for filing “successive motions for extraordinary,
preliminary injunctive relief, secure in the knowledge that they can take an interlocutory appeal
when it becomes apparent that they cannot win their war of attrition” and explaining that “when a
ruling is made on a motion for preliminary injunction, an aggrieved party must either file a timely
interlocutory appeal or request reconsideration on the basis of changed or otherwise unforeseen
and unforeseeable circumstances”). The Court should not permit Plaintiffs to proceed in this
inequitable fashion.
III.

The Court Should Hold Further Proceedings in Abeyance at This Time.
Plaintiffs’ request for leave to file their proposed preliminary injunction motion should be

denied for the further reason that moving forward on that motion makes no sense until after the
Fourth Circuit has resolved the pending appeal. In fact, any further action with respect to
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preliminary relief—including the pending motion to enjoin the 50,000 refugee cap—can, and
should, await the Fourth Circuit’s decision.
This Court, like any district court, “has broad discretion to stay proceedings as an incident
to its power to control its own docket.” Clinton v. Jones, 520 U.S. 681, 706 (1997). A district
court may exercise that discretion to promote “economy of time and effort for itself, for counsel,
and for litigants.” DeRosa v. Walsh, 541 F. App’x 250, 252 (4th Cir. 2013) (quoting Landis v. N.
Am. Co., 299 U.S. 248, 254 (1936)).
The Fourth Circuit has long recognized, in particular, that a district court may properly
exercise its discretion to issue a stay “pending the outcome of a similar suit.” Amdur v. Lizars,
372 F.2d 103, 106 (4th Cir. 1967); see also Preston v. United States, 2015 WL 221633, at *9 (D.
Md. Jan. 15, 2015) (holding motion to dismiss in abeyance “pending the final outcome” of a similar
case pending before the Supreme Court, because “a decision at this time would be an inefficient
use of the [district] Court’s resources”).
Here, of course, the relevant case on appeal is not just “similar”; it is identical, and the
Fourth Circuit’s resolution of the appeal will likely provide this Court with dispositive guidance
on some or all of the issues necessary for resolving Plaintiffs’ other motions. The issues before
the Fourth Circuit include threshold questions of standing and ripeness, the scope of the President’s
authority under the Immigration & Nationality Act, the likelihood that Plaintiffs will succeed on
the merits of their Establishment Clause claim, the balance of the equities and the possibility of
irreparable harm, and the proper scope of injunctive relief. See generally Appellants’ Br., Int’l
Refugee Assistance Project v. Trump, No. 17-1351 (4th Cir. Mar. 24, 2017), ECF No. 36. The
Fourth Circuit’s resolution of any of those issues—and it could conceivably resolve all of them—
would bear directly on any further preliminary relief (and any arguments the parties would raise

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as to such relief). “As such, staying proceedings in this matter pending the Fourth Circuit’s
decision would both promote judicial economy and avoid the possibility of inconsistent rulings.”
In re Mut. Funds Inv. Litig., 2011 WL 3819608, at *2 (D. Md. Aug. 25, 2011).
Other courts handling challenges to the Executive Order have similarly stayed the
consideration of additional preliminary relief pending appellate guidance. For instance, when the
court in the District of Hawaii was considering the first Executive Order, it granted the
Government’s request for a stay pending the Ninth Circuit’s resolution of an appeal from the
Western District of Washington’s injunction. See Hawaii v. Trump, 2017 WL 536826, at *4 (D.
Haw. Feb. 9, 2017). As that court explained, staying the case “pending the outcome of appellate
proceedings would facilitate the orderly course of justice.” Id. Similarly, the court in the Western
District of Washington sua sponte stayed consideration of plaintiffs’ TRO motion challenging the
second Executive Order after the court in the District of Hawaii had already issued a TRO as to
that Executive Order. See Washington v. Trump, 2017 WL 1050354, at *5 (W.D. Wash. Mar. 17,
2017). The Washington court reasoned that “[b]ecause many of the legal arguments Plaintiffs
raise[d] in their TRO motion [were] likely to be before the Ninth Circuit in Hawaii . . . it would
waste judicial resources to decide these issues . . . when guidance from the Ninth Circuit is likely
to be available soon.” Id. The Court thus concluded that “[t]he more efficient course” was to
“wait for a decision from the Ninth Circuit . . . , which may resolve the primary issues.” Id. The
Court could then “resolve any remaining issues in this case with the benefit of the Ninth Circuit’s
analysis.” Id. The same logic applies here.
Finally, staying consideration of preliminary relief will not harm Plaintiffs. In their motion
for leave to file, Plaintiffs characterized “the only thing standing between Plaintiffs and imminent,
irreparable harm” as “the temporary restraining order in Hawaii v. Trump.” Pls.’ Mot. at 7-8; see

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also Hawaii v. Trump, __ F. Supp. 3d __, 2017 WL 1011673, at *17 (D. Haw. Mar. 15, 2017)
(enjoining enforcement of Sections 2 and 6 of the Executive Order nationwide). Since then, that
court has converted its temporary restraining order into a nationwide preliminary injunction of
Sections 2 and 6. See Hawaii v. Trump, ___ F. Supp. 3d ___, 2017 WL 1167383, at *9 (D. Haw.
Mar. 29, 2017). 3 And the Fourth Circuit is proceeding expeditiously with an appeal of the
preliminary injunction ruling in this case. See No. 17-1351 (4th Cir. Mar. 23, 2017), ECF No. 25
(scheduling order providing less than a month for full briefing, and setting oral argument for May
8, 2017). By comparison, in different litigation in this district, Judge Motz stayed proceedings to
await appellate guidance because the “length of the stay” is “not inordinate” where “we are now
less than one month from the date of . . . oral argument before the Fourth Circuit” and “the stay
can always be lifted if emergency relief is required.” In re Mut. Funds Inv. Litig., 2011 WL
3819608, at *2.
Indeed, Plaintiffs have already acknowledged that this Court need not proceed with a
challenge to provisions that have already been enjoined nationwide by another district court. When
Plaintiffs brought their first motion for a preliminary injunction, the Western District of
Washington had issued a nationwide injunction of various portions of the Executive Order. Thus,
Plaintiffs sought to enjoin only the provision limiting the entry of more than 50,000 refugees in
fiscal year 2017—one part of the first Executive Order that had not been enjoined in Washington.
See ECF No. 64 at 1-2. Plaintiffs clarified that they were “not moving for preliminary relief with

3

The Government has filed a notice of appeal with respect to this preliminary
injunction. See Hawaii v. Trump, No. 17-cv-50 (D. Haw. Mar. 30, 2017), ECF No. 271; No. 1715589 (9th Cir. Mar. 30, 2017). In light of the preliminary injunction and pending appeal in
Hawaii, counsel for the Government conferred with Plaintiffs’ counsel to determine if Plaintiffs
still seek to proceed with their proposed preliminary injunction motion and their pending
preliminary injunction motion. Plaintiffs’ counsel indicated that they do.
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regard to other provisions of the Order at this time in light of the other injunctions in effect.” Id.
at 1 n.1. In other words, there was no need for this Court to consider a challenge of the alreadyenjoined provisions given the pendency of the Washington injunction. Here, similarly, the recent
injunction in Hawaii blocks enforcement of Section 6 of the Executive Order nationwide. Hawaii
v. Trump, 2017 WL 1167383, at *9. Thus, as Plaintiffs themselves previously acknowledged,
there is no need for this Court to proceed with an independent challenge to those provisions—via
either their proposed preliminary injunction motion or their pending preliminary injunction
motion. Instead, it makes sense to wait for guidance from the Fourth Circuit’s resolution of the
pending appeal.
CONCLUSION
For the foregoing reasons, Defendants respectfully request that the Court deny Plaintiffs’
Motion for Leave to File Motion for Preliminary Injunction of § 6 on Constitutional Grounds, and
hold in abeyance Plaintiffs’ Motion for a Preliminary Injunction of § 5(d) of the Executive Order.

Dated: March 31, 2017

Respectfully submitted,
CHAD A. READLER
Acting Assistant Attorney General
ROD J. ROSENSTEIN
United States Attorney
JENNIFER D. RICKETTS
Director, Federal Programs Branch
JOHN R. TYLER
Assistant Director, Federal Programs Branch
/s/ Arjun Garg
ARJUN GARG (Bar No. 806537)
MICHELLE R. BENNETT (Bar No. 806456)
DANIEL SCHWEI
BRAD P. ROSENBERG
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Trial Attorneys
United States Department of Justice
Civil Division, Federal Programs Branch
20 Massachusetts Ave., NW
Washington, DC 20530
Tel: [phone]
Fax: [phone]
E-mail: [e-mail]
[e-mail]
Attorneys for Defendants

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CERTIFICATE OF SERVICE
I hereby certify that on March 31, 2017, I electronically filed the foregoing Memorandum
in Opposition to Plaintiffs’ Motion for Leave to File Motion for Preliminary Injunction of § 6 on
Constitutional Grounds using the Court’s CM/ECF system, causing a notice of filing to be served
upon all counsel of record.

/s/ Arjun Garg
ARJUN GARG