International Refugee Assistance Project et al v. Trump et al

Filing 181

REPLY to Response to Motion re 177 MOTION for Leave to File Motion for Preliminary Injunction filed by HIAS, Inc., Paul Harrison, International Refugee Assistance Project, Jane Doe # 2, John Does 1 & 3, Muhammed Meteab, Middle East Studies Association of North America, Inc., Ibrahim Ahmed Mohomed. (Attachments: # 1 Joint Record 1-127)(Keaney, Melissa)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
SOUTHERN DIVISION

Civil Action No.: 8:17-CV-00361-TDC

INTERNATIONAL REFUGEE
ASSISTANCE PROJECT, et al.,

PLAINTIFFS’ REPLY MEMORANDUM
IN SUPPORT OF THEIR MOTION FOR
LEAVE TO FILE MOTION FOR
PRELIMINARY INJUNCTION OF § 6 ON
CONSTITUTIONAL GROUNDS

Plaintiffs,
v.
DONALD TRUMP, et al.,
Defendants.

INTRODUCTION
This Court has jurisdiction to consider Plaintiffs’ constitutional claims against § 6 of the
Executive Order, and the Court should exercise that jurisdiction if it becomes necessary to do so
to prevent irreparable harm. This Court has not made any findings as to whether § 6 violates the
Constitution, and § 6’s constitutionality is not before the Fourth Circuit. Critically, Defendants
have failed to suggest any material way in which this Court’s consideration of Plaintiffs’ claims
would disrupt the Fourth Circuit’s review of Defendants’ appeal of the injunction against § 2(c)—
even though the primary concern animating the district court divestment rule is whether a district
court’s action would interfere with an appellate court’s jurisdiction on appeal. There is therefore
no jurisdictional impediment to this Court’s consideration of Plaintiffs’ proposed motion.
Moreover, prudential factors, including the likelihood of irreparable harm to Plaintiffs and
their clients, tip the scales sharply in favor of exercising jurisdiction. In the interest of efficiency,
however, and in light of the current nationwide injunction against § 6, Plaintiffs agree to a stay of

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proceedings seeking a preliminary injunction against § 6, to be lifted if the Hawai‘i injunction is
vacated.
ARGUMENT
1.

To begin, Defendants’ suggestion that Plaintiffs’ proposed motion requests a “third

bite at the apple,” or that Plaintiffs are acting in an “inequitable fashion,” Defs.’ Mem. in Opp’n
to Pls.’ Mot. for Leave, ECF No. 180 (“Opp.”), at 1, 9, ignores the government’s own responsibility
for the fits and starts of this and related litigation.
Plaintiffs’ first motion, to enjoin the cut in the Fiscal Year 2017 refugee cap, was filed just
after the Ninth Circuit Court of Appeals denied the government a stay of the Western District of
Washington’s nationwide preliminary injunction of the 90-day nationality ban and 120-day
refugee ban. Washington v. Trump, 847 F.3d 1151 (9th Cir. 2017). Instead of seeking to enjoin
an order already subject to an injunction, Plaintiffs accordingly sought to enjoin the one nonenjoined provision that was still causing irreparable harm.1
After the government chose to issue the revised Executive Order on March 6, Plaintiffs
informed the Court that they intended to file an amended complaint and a new motion to enjoin
the revised order before it was to go into effect. Pls.’ Letter Dated Mar. 9, 2017, ECF No. 83.
Over the following days, the parties worked diligently to brief and present to the Court as many of
the relevant issues as possible in the short window available to do so. On the day the Order was
to go into effect, the Court issued an opinion that made various findings of fact, resolved several

Pls.’ Mot. for Prelim. Inj. of § 5(d), ECF No. 64. The parties have agreed that this motion, which
initially addressed § 5(d) of the January 27 Order, applies to § 6(b) of the March 6 Order.
Defendants do not contest that the Court retains jurisdiction to resolve this motion, which remains
pending.
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disputes between the parties regarding the law, and resulted in a preliminary injunction of § 2(c)
of the March 6 Order. Mem. Op., ECF No. 149.
One dispute that the Court expressly did not resolve, however, is whether the refugee
provisions in § 6 violate the Constitution. Instead, the Court stated in relevant part as follows:
The Plaintiffs’ Establishment Clause and INA arguments focused primarily on the
travel ban for citizens of the six Designated Countries in Section 2(c) of the Second
Executive Order. The Court will enjoin that provision only. Although Plaintiffs
have argued that sections relating to the temporary ban on refugees also offend the
Establishment Clause, they did not sufficiently develop that argument to warrant
an injunction on those sections at this time.
Id. at 40-41. In other words, instead of deciding whether Plaintiffs are likely to establish that § 6
violates the Establishment Clause, the Court determined that it lacked sufficient information to
enjoin that provision at that time. The Court, moreover, said nothing at all about Plaintiffs’ other
constitutional claim regarding § 6: that it violates the equal protection component of the Due
Process Clause of the Fifth Amendment. See id. at 38; see also First Am. Compl. ¶¶ 222-25, ECF
No. 93. In sum, Plaintiffs prevailed as to one section, and the Court essentially reserved judgment
as to another; the cases cited by the government involving vexatious or frivolous claims are thus
plainly inapposite. See, e.g., Opp. at 9 (citing F.W. Kerr Chem. Co. v. Crandall Assoc., Inc., 815
F.2d 426, 429 (6th Cir. 1987) (per curiam)).
Because the Court did not decide Plaintiffs’ constitutional claims regarding § 6, and
because Plaintiffs have not cross-appealed, the constitutionality of § 6 is simply not before the
Fourth Circuit. Indeed, Defendants’ own briefing before the Fourth Circuit confirms as much. On
appeal, Defendants have taken pains to ensure that the Fourth Circuit not consider the
constitutionality of the refugee provisions. Defendants’ opening brief, for example, presents “the”
issue on appeal as: “Whether the district court abused its discretion in entering a nationwide
preliminary injunction barring enforcement of Section 2(c) of the Order.” See Appellants’ Br. at
4, Int’l Refugee Assistance Project v. Trump, No. 17-1351 (4th Cir. Mar. 24, 2017), ECF No. 36,
J.R. 17 (emphasis added). Defendants’ brief goes on to explain to the Fourth Circuit that the

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provisions in § 6 are “not at issue” in the appeal. Id. at 11, 25, J.R. 24, J.R. 38. Defendants made
the same representation in their concurrently filed Motion for a Stay Pending Expedited Appeal.
See Appellants’ Mot. for a Stay Pending Expedited Appeal at 10, Int’l Refugee Assistance Project
v. Trump, No. 17-1351 (4th Cir. Mar. 24, 2017), ECF No. 35, J.R. 88 (“[O]ther provisions of the
Order addressing refugees . . . are not at issue in this appeal”). Defendants cannot have it both
ways, arguing to this Court that it lacks jurisdiction to consider the “propriety of preliminary
injunctive relief” from § 6 because that question is on appeal to the Fourth Circuit, Opp. at 5, while
simultaneously representing to the Fourth Circuit that those very portions of the Order are “not at
issue” in the appeal before it.2
2.

Defendants cite no authority for their theory that an appeal of one matter decided

in an order divests the district court of jurisdiction over other matters that were mentioned in the
same order, but not decided or appealed.3 Nor have they identified any case in which a district
court was divested of jurisdiction to take an action where, as here, it was clear that such action
would not affect the appellate court’s disposition of the appeal. And Defendants have made no
effort to articulate how this Court’s resolution of the Plaintiffs’ claims against § 6 would impact
the Fourth Circuit’s disposition of the appeal of the injunction over § 2(c). In fact, Defendants’
have conceded that an injunction of § 6 would not hamper the appeal, because they have taken the
position that the Court does have jurisdiction over Plaintiffs’ statutory motion. By contrast, every
case invoked by Defendants involved the propriety of the district court retaining jurisdiction over
issues that were actually pending before the court of appeals. See Opp. at 2-3.
For example, in Lewis v. Tobacco Workers’ International Union, 577 F.2d 1135 (4th Cir.
1978) (cited Opp. at 2), the Fourth Circuit simply held that “the district court lost its power to

Defendants also maintain that the harm caused by § 6 is “precisely what is at issue in the Fourth
Circuit,” Opp. at 4, despite having argued to the Fourth Circuit that § 6 and § 2(c) cause distinct
harms. See Appellants’ Mot. for a Stay Pending Expedited Appeal at 10-11, J.R. 88-89.
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Indeed, Defendants make no argument at all for how this Court is divested of jurisdiction to
consider Plaintiffs’ equal protection claim as to § 6, which the Court expressly did not address
with regard to any provisions of the Order. See Mem. Op. at 38.
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vacate” the very injunction that was on appeal once “the notices of appeal were filed.” Id. at 1139.
That analysis underscores why Defendants’ argument fails in this case: this Court has not made
any determination regarding the legality of § 6, has not ordered any relief requiring the Defendants
to act or refrain from acting with respect to § 6, nor has it rejected Plaintiffs’ claims on the merits
as to § 6. Lewis’ holding is therefore inapposite.
District 2, Marine Engineers Beneficial Association v. Falcon Carriers, Inc., 374 F. Supp.
1342 (S.D.N.Y. 1974) (cited Opp. at 4) in fact illustrates why this Court has jurisdiction despite
the overlap between the appeal and proceedings in this Court. There, the district court held that it
retained jurisdiction to decide whether an “oral side agreement” was arbitrable, even though the
plaintiffs had appealed the court’s order declining to enjoin defendants pursuant to the operation
of that same side agreement. Although the existence and effect of the side agreement formed the
basis of both the plaintiffs’ appeal and the defendants’ motion to stay arbitration of the side
agreement, the district court held that the plaintiffs’ appeal of the court’s denial of injunctive relief
did not “divest the court of all jurisdiction in this case.” Id. at 1345. To the contrary, the court
held that its denial of the plaintiffs’ preliminary injunction motion did not implicate a decision on
whether the side agreement was arbitrable, and that it therefore had jurisdiction to entertain the
defendants’ motion to stay arbitration of the side agreement. The same is true here.
Defendants’ reliance on Coastal Corp. v. Texas E. Corp., 869 F.2d 817 (5th Cir. 1989),
likewise fails to further their argument. Opp. at 2. There, the Court merely held that a district
court generally cannot examine “new evidence or arguments on the injunction while the validity
of the injunction is on appeal.” Id. at 820 (emphases added); see FTC v. Enforma Nat. Prods.,
Inc., 362 F.3d 1204, 1215 n.11 (9th Cir. 2004) (cited Opp. at 3 n.2) (prohibiting district court from
taking action that “move[s] the target” for the appeal) (internal citations omitted). That holding is
plainly irrelevant here, where the injunction on appeal is an injunction of § 2(c) of the Executive
Order, and Plaintiffs wish to present additional evidence and arguments on a different section of
the Executive Order—§ 6—which is not on appeal, as the government agrees. Indeed, as the Fifth
Circuit explained in Coastal Corporation, the general rule was meant to place a “limit on the
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district court’s power to modify an injunction pending appeal, where the effect of its order would
be to oust the appellate court’s jurisdiction.” Id. at 819; see also Pls.’ Mot. for Leave to File Mot.
for Prelim. Inj. of § 6 on Constitutional Grounds at 6-7, ECF No. 177. That concern is simply not
present here.4
3.

As Plaintiffs previously explained, exercise of the jurisdiction this Court retains is

particularly appropriate when necessary to maintain the status quo and to prevent irreparable harm.
Id. at 6. As of now, a nationwide injunction issued by a district court in Hawai‘i prevents
Defendants from implementing § 6. See Order, Hawai‘i v. Trump, No. 17-00050 (D. Haw. Mar.
29, 2017) (converting temporary restraining order into preliminary injunction), J.R. 104-127.
Defendants have appealed that decision to the Ninth Circuit on an expedited briefing schedule,
with the appeal and motion for stay pending appeal to be fully briefed by April 28, 2017.
Defendants’ suggestion that it “makes sense to wait for guidance from the Fourth Circuit’s
resolution of the pending appeal,” Opp. at 13, wholly ignores the irreparable harm that would befall
Plaintiffs and their clients if the Hawai‘i injunction against § 6 were vacated. Plaintiffs therefore
respectfully request that the Court grant leave to file the requested motion. That said, because the
Hawai‘i injunction is currently protecting Plaintiffs from § 6, Plaintiffs are agreeable, should the
Court be so inclined, to a stay of proceedings against § 6—both briefing of the requested motion
and decision on Plaintiffs’ statutory motion—and request that the Court lift the stay and set an
expedited briefing schedule if Plaintiffs lose the protection of the Hawai‘i injunction. That course
of action will both preserve judicial and litigant resources and ensure that Plaintiffs can seek
protection from the irreparable harm § 6 would cause if allowed to go into effect.

Similarly misplaced is Defendants’ assertion that Plaintiffs, in filing a motion for a preliminary
injunction of § 6 on constitutional grounds, would be asking this Court for a “modification” of the
order up on appeal. Opp. at 3. Not so. Plaintiffs’ motion would ask for a new order, and
Defendants make no argument as to why that would constitute a “modification.” Nor is the rule
prohibiting modification of the injunction a “one-way ratchet.” Opp. at 9. The injunction of § 2(c)
can be neither expanded nor contracted (nor vacated) in the district court while it remains on
appeal.
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CONCLUSION
For the reasons outlined above and in Plaintiffs’ opening brief, Plaintiffs respectfully
request that this Court grant them leave to file a motion for a preliminary injunction against § 6
on constitutional grounds, to be submitted and considered if necessary, and at the same time as
their fully-briefed motion to preliminarily enjoin § 6(b) on statutory grounds.

Respectfully submitted,

Dated: April 5, 2017

/s/ Melissa S. Keaney
Karen C. Tumlin†
Nicholas Espíritu†
Melissa S. Keaney†
Esther Sung†
National Immigration Law Center
3435 Wilshire Boulevard, Suite 1600
Los Angeles, CA 90010
Tel: [phone]
Fax: [phone]
[e-mail]
[e-mail]
[e-mail]
[e-mail]

Omar C. Jadwat†
Lee Gelernt†
Hina Shamsi†
Hugh Handeyside†
Sarah L. Mehta†
Spencer E. Amdur†
American Civil Liberties Union
Foundation
125 Broad Street, 18th Floor
New York, NY 10004
Tel: [phone]
Fax: [phone]
[e-mail]
[e-mail]
[e-mail]
[e-mail]
[e-mail]
[e-mail]

Justin B. Cox (Bar No. 17550)
National Immigration Law Center
1989 College Ave. NE
Atlanta, GA 30317
Tel: [phone]
Fax: [phone]
[e-mail]

Cecillia D. Wang†
Cody H. Wofsy†
American Civil Liberties Union
Foundation
39 Drumm Street
San Francisco, CA 94111
Tel: [phone]
Fax: [phone]
[e-mail]
[e-mail]

† Appearing pro hac vice

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David Cole†
Daniel Mach†
Heather L. Weaver†
American Civil Liberties Union
Foundation
915 15th Street NW
Washington, DC 20005
Tel: [phone]
Fax: [phone]
[e-mail]
[e-mail]
[e-mail]
/s/ David Rocah
David Rocah (Bar No. 27315)
Deborah A. Jeon (Bar No. 06905)
Sonia Kumar (Bar No. 07196)
Nicholas Taichi Steiner (Bar
No.19670)
American Civil Liberties Union
Foundation of Maryland
3600 Clipper Mill Road, Suite 350
Baltimore, MD 21211
Tel: [phone]
Fax: [phone]
[e-mail]
[e-mail]
[e-mail]
[e-mail]

Counsel for Plaintiffs

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CERTIFICATE OF SERVICE
I hereby certify that on this 5th day of April, 2017, I electronically filed the foregoing
Plaintiffs’ Reply Memorandum in Support of their 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/ Melissa S. Keaney

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