Knight First Amendment Institute at Columbia University et al v. Trump et al

Filing 67

LETTER addressed to Judge Naomi Reice Buchwald from Jameel Jaffer dated March 16, 2018 re: the relevance of the D.C. Circuit's decision in Swan v. Clinton. Document filed by Rebecca Buckwalter, Philip Cohen, Holly Figueroa, Eugene Gu, Knight First Amendment Institute at Columbia University, Brandon Neely, Joseph Papp, Nicholas Pappas.(Jaffer, Jameel)

March 16, 2018
Via ECF and by Fax
The Honorable Naomi Reice Buchwald
United States District Court for the
Southern District of New York
500 Pearl Street, Room 2270
New York, NY 10007-1312
Re:

Knight First Amendment Institute, et al. v. Trump,
et al., Case No. 17-CV-5205 (NRB)

Dear Judge Buchwald,
Because of an exchange between the Court and counsel for the
Government during last Thursday’s oral argument in the above-captioned
matter, counsel for Plaintiffs revisited the D.C. Circuit’s decision in Swan
v. Clinton, 100 F.3d 973 (D.C. Cir. 1996), and their characterization of that
decision in Plaintiffs’ summary judgment briefing. In at least two instances,
Plaintiffs stated that the court in Swan had ordered injunctive relief against
the President’s subordinates in lieu of the President. Pls.’ Cross-Mot. &
Opp’n Br. at 31 n.13, ECF No. 43; Pls.’ Reply Br. at 14, ECF No. 56. In
fact, although the court held that it had jurisdiction to grant such relief,
Swan, 100 F.3d at 979–81, it ultimately ruled against the plaintiff on the
merits, id. at 988.
As counsel for Plaintiffs stated at oral argument, Swan is relevant
here because it makes clear that the Court has authority to order subordinate
officials to remedy injuries stemming from the President’s actions. The
other cases counsel cited during argument further clarify that, for purposes
of standing to obtain injunctive relief against individuals sued in their
official capacities, the relevant question is whether those individuals are in
a position to carry out the ordered relief. See Parkell v. Danberg, 833 F.3d
313, 332 (3d Cir. 2016); Hartmann v. Cal. Dep’t of Corr. & Rehab., 707
F.3d 1114, 1127 (9th Cir. 2013); Luckey v. Harris, 860 F.2d 1012, 1015
(11th Cir. 1988).

475 Riverside Drive, Suite 302, New York, NY 10115 | [phone] | [e-mail]

Respectfully,

Jessica Ring Amunson (pro hac
vice)
Tassity S. Johnson (pro hac vice)
Jenner & Block LLP
1099 New York Avenue, NW,
Suite 900
Washington, DC 20001

/s/ Jameel Jaffer
Jameel Jaffer (JJ-4653)
Katherine Fallow (KF-2535)
Carrie DeCell (CD-0731)
Alex Abdo (AA-0527)
Knight First Amendment Institute
at Columbia University
475 Riverside Drive, Suite 302
New York, NY 10115
[phone]
[e-mail]
Counsel for Plaintiffs

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