International Refugee Assistance Project et al v. Trump et al
MEMORANDUM ORDER denying without prejudice 177 Plaintiff's Motion for Leave to File Motion for Preliminary Injunction; staying courts resolution of Plaintiff's Motion for Preliminary Injunction. Signed by Judge Theodore D. Chuang on 4/10/2017. (jf3s, Deputy Clerk)
UNITED STATES DISTRICT COURT
DISTRICT OF MARYLAND
ASSISTANCE PROJECT, a project of the
Urban Justice Center, Inc., on behalf of itself
and its clients,
HIAS, INC., on behalf of itself and its clients,
MIDDLE EAST STUDIES ASSOCIATION of
North America, Inc., on behalf of itself and its
IBRAHIM AHMED MOHOMED,
JOHN DOES Nos. 1 & 3, and
JANE DOE No. 2,
Civil Action No. TDC-17-0361
DONALD J. TRUMP, in his official capacity
as President of the United States,
DEPARTMENT OF HOMELAND
DEPARTMENT OF STATE,
OFFICE OF THE DIRECTOR OF
JOHN F. KELLY, in his official capacity as
Secretary of Homeland Security,
REX W. TILLERSON, in his official capacity
as Secretary of State, and
MICHAEL DEMPSEY, in his official capacity
as Acting Director of National Intelligence,
Plaintiffs filed this action challenging Executive Order 13,780, “Protecting the Nation
from Foreign Terrorist Entry into the United States” (“Second Executive Order”), 82 Fed. Reg.
13209 (Mar. 9, 2017), on various statutory and constitutional grounds. On March 10, 2017,
Plaintiffs filed a Motion for a Preliminary Injunction and/or Temporary Restraining Order of the
Executive Order, seeking to enjoin the Second Executive Order in its entirety. On March 16,
2017, the Court issued a Memorandum Opinion and Order granting in part and denying in part
Plaintiffs’ Motion, construed as a Motion for a Preliminary Injunction.
After finding that
Plaintiffs are likely to succeed on the merits of their claim that the Second Executive Order
violates the Establishment Clause of the First Amendment to the United States Constitution, the
Court concluded that a preliminary injunction was warranted. Although Plaintiffs sought a
nationwide injunction against the entirety of the Second Executive Order, and Defendants argued
that any injunction should be limited to address the specific impacts on Plaintiffs, the Court
defined the scope of the injunction as barring enforcement of Section 2(c) of the Second
Executive Order on a nationwide basis. The Court declined to enjoin the remaining sections of
the Second Executive Order. Defendants have appealed the Court’s ruling on the Motion to the
United States Court of Appeals for the Fourth Circuit, which has set a briefing schedule leading
up to oral argument on May 8, 2017.
Plaintiffs now seek leave to file a new Motion for a Preliminary Injunction requesting
that the Court enjoin, on Establishment Clause grounds, Section 6 of the Second Executive
Order, which bars the entry of refugees to the United States for a 120-day period and reduces to
50,000 the maximum number of refugees to be admitted during fiscal year 2017. The Court
concludes, however, that it has been divested of jurisdiction over such a motion by the pending
The filing of a notice of appeal “divests the district court of its control over those aspects
of the case involved in the appeal.” Griggs v. Provident Consumer Disc. Co., 459 U.S. 56, 58
(1982); see also Lytle v. Griffith, 240 F.3d 404, 407 n.2 (4th Cir. 2001) (“Generally, the filing of
a notice of appeal immediately transfers jurisdiction of all matters relating to the appeal from the
district court to the court of appeals.”). Although the district court may nevertheless proceed
with matters outside the “interlocutory order” on appeal, Columbus-Am. Discovery Grp. v. Atl.
Mut. Ins. Co., 203 F.3d 291, 301-02 (4th Cir. 2000), Plaintiffs’ proposed motion seeks to revisit
an issue that was specifically addressed in the proceedings leading to, and in the content of, the
interlocutory order now on appeal:
the scope of the Court’s injunction based on the
Establishment Clause. In its March 16, 2017 Memorandum Opinion, the Court addressed the
scope of relief as follows:
Plaintiffs have asked the Court to issue an injunction blocking the Executive
Order in its entirety. The Court declines to grant such broad relief. 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. As for the remaining
portions of the Second Order, Plaintiffs have not provided a sufficient basis to
establish their invalidity.
Mem. Op. 40-41, ECF No. 149. Now, Plaintiffs seek to rely on the Court’s legal conclusions
regarding the Establishment Clause and offer further evidence to support the argument that
Section 6 should also be enjoined. The proposed motion, therefore, can only fairly be construed
as a request to modify or expand the scope of the existing injunction based on the Establishment
The Fourth Circuit, however, has made clear that “a district court loses
jurisdiction to amend or vacate its order after the notice of appeal has been filed.” Lewis v.
Tobacco Workers’ Int’l Union, 577 F.2d 1135, 1139 (4th Cir. 1978); see also Coastal Corp. v.
Tex. E. Corp., 869 F.2d 817, 819 (5th Cir. 1989) (“[T]he powers of the district court over an
injunction pending appeal should be limited to maintaining the status quo.”). The recognized
exception to this rule, which permits the district court to take limited actions “in aid of the
appeal,” is not applicable here. Grand Jury Proceedings Under Seal v. United States, 947 F.2d
1188, 1190 (4th Cir. 1991) (permitting, after the filing of a notice of appeal, the entry of a written
order memorializing the district court’s oral ruling that was the subject of the appeal); see Lytle,
240 F.3d at 407 n.2 (permitting the district court to correct “imprecise wording” in the order).
Having considered the issue of whether Section 6 should be enjoined on Establishment Clause
grounds in defining the scope of the injunction now on appeal, this Court may not address,
during the pendency of the appeal, Plaintiffs’ new evidence in support of extending the
injunction to cover Section 6. See Coastal Corp., 869 F.2d at 820 (“[A] district court cannot
generally accept new evidence or arguments on the injunction while the validity of the injunction
is on appeal.”); District 2, Marine Eng. Beneficial Ass’n v. Falcon Carriers, Inc., 374 F. Supp.
1342, 1345 (S.D.N.Y. 1974) (“[A]n interlocutory appeal from the denial of preliminary
injunctive relief divests the court . . . of jurisdiction with regard to questions raised and decided
upon the interlocutory order appealed from.”).
Plaintiffs’ assertion that the pending appeal relates only to the propriety of enjoining
Section 2(c), not Section 6, fails to appreciate that this Court’s determination of the proper scope
of the preliminary injunction based on the Establishment Clause is, in fact, a subject of the
pending appeal. A ruling by the district court that Section 6 should now be covered by the
preliminary injunction would impermissibly “move the target” for the court of appeals, FTC v.
Enforma Nat. Prods., Inc., 362 F.3d 1204, 1215 n.11 (9th Cir. 2004) (quoting Kern Oil & Ref.
Co. v. Tenneco Oil Co., 840 F.2d 730, 734 (9th Cir. 1988)), and would run the risk of
simultaneous, incompatible rulings on the scope of the Establishment Clause injunction if the
Fourth Circuit were to rule that its scope must be narrowed. Plaintiffs’ claim that their proposed
motion is permissible because it seeks a new injunction, rather than a modification of the existing
injunction, is also unpersuasive. To permit a party to circumvent the bar on modifying an
injunction on appeal by repackaging its argument as a new motion would thwart the purposes of
the rule, which are to “prevent a trial court and an appellate court from considering the same
issues simultaneously”—here, the scope of the Establishment Clause injunction—and to
“prevent the trial court from taking actions that might duplicate or confuse issues before the
appellate court.” Crutchfield v. U.S. Army Corps of Eng’rs, 230 F. Supp. 2d 673, 679-80 (E.D.
Even if the Court had jurisdiction over the proposed motion, it would exercise its
discretion to stay both the briefing of the motion and its determination pending the Fourth
Circuit’s review of the March 16, 2017 preliminary injunction. “[T]he power to stay proceedings
is incidental to the power inherent in every court to control the disposition of the causes on its
docket with economy of time and effort for itself, for counsel, and for litigants.” Landis v. N.
Am. Co., 299 U.S. 248, 254 (1936).
The Fourth Circuit’s forthcoming analysis on the
Establishment Clause claim on appeal would provide this Court with useful guidance on how to
resolve the issues to be presented in the proposed motion. Moreover, in light of the current
nationwide injunction of Section 6 by the United States District Court of the District of Hawaii, a
stay would not impose any hardship on Plaintiffs or result in irreparable harm. Plaintiffs may
renew their request, if applicable, once the Fourth Circuit has ruled on the pending appeal.
For comparable reasons of judicial economy, and in accordance with Plaintiffs’ proposal,
the Court will also stay its disposition of Plaintiffs’ Motion for a Preliminary Injunction of § 5(d)
of the Executive Order, now directed to Section 6(b) of the Second Executive Order, while the
nationwide injunction of Section 6 remains in place. This stay would, as noted by Plaintiffs,
conserve the resources of both the Court and the parties. Pls.’ Reply Br. 6, ECF No. 181; see
also, e.g., Washington v. Trump, 2017 WL 1050354, at *5 (W.D. Wash. Mar 17, 2017).
Plaintiffs may request that the Court lift the stay should circumstances change.
Accordingly, it is hereby ORDERED that:
1. Plaintiffs’ Motion for Leave to File Motion for Preliminary Injunction of § 6 on
Constitutional Grounds, ECF No. 177, is DENIED WITHOUT PREJUDICE; and
2. The Court STAYS its resolution of Plaintiffs’ Motion for a Preliminary Injunction of
§ 5(d) of the Executive Order, ECF No. 64, during the pendency of the nationwide
preliminary injunction of Section 6 of the Second Executive Order by the United States
District Court for the District of Hawaii.
Date: April 10, 2017
THEODORE D. CHUANG
United States District Judge
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?