State of Washington, et al., v. Trump., et al

Filing 118

Second MOTION to Amend Complaint, filed by Plaintiff State of Washington. (Attachments: # 1 Complaint Second Amended, # 2 Exhibit Exhibits to Second Amended Complaint, # 3 Index of Declarations, # 4 Decl. of R. Althaibani, # 5 Decl. of S. Amin, # 6 Decl. of B. Callaghan, # 7 Decl. of S. Dadgari, # 8 Decl. of A. Elfgeeh, # 9 Decl. of N. Fallah, # 10 Decl. of H. Ghasemzadeh, # 11 Decl. of E. Hassett, # 12 Decl. of A. Mubarez, # 13 Decl. of S. Parsian, # 14 Decl. of Z. Rasouli, # 15 Decl. of A. Shayegan, # 16 Decl. of J. Sime, # 17 Decl. of R. Branon, # 18 Decl. of A. Chaudhry, # 19 Decl. of D. Eaton, # 20 Decl. of D. Heatwole, # 21 Decl. of S. Hemmati, # 22 Decl. of R. Lewin, # 23 Decl. of A. Mehrizi-Sani, # 24 Decl. of V. Rabinowitz, # 25 Decl. of J. Riedinger, # 26 Decl. of V. Shah, # 27 Decl. of J. Wasserheit, # 28 Decl. of J. Wasserheit, # 29 Decl. of J. Wood, # 30 Decl. of N. Zimpher, # 31 Decl. of S. Buell, # 32 Decl. of R. Fullerton, # 33 Decl. of P. Johnson, # 34 Decl. of A. Lavine, # 35 Decl. of D. Pashman, # 36 Decl. of M. Rosenn, # 37 Decl. of M. Saunders, # 38 Decl. of J. Simeone, # 39 Decl. of D. Soike, # 40 Decl. of S. Topiwala, # 41 Decl. of J. Truppman, # 42 Decl. of R. Zawaideh, # 43 Decl. of M. Akhtari, # 44 Decl. of M. de Leon, # 45 Decl. of R. Eskandari, # 46 Decl. of T. Johnson, # 47 Decl. of E. Scherzer, # 48 Decl. of W. Berkovitz, # 49 Decl. of D. Duea, # 50 Decl. of L. Warren, # 51 Proposed Order) Noting Date 3/31/2017, (Melody, Colleen)

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1 THE HONORABLE JAMES L. ROBART 2 3 4 5 6 7 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 8 STATE OF WASHINGTON, and 9 STATE OF MINNESOTA, Civil Action No. 2:17-cv-00141-JLR 10 11 Plaintiffs, MOTION FOR LEAVE TO FILE SECOND AMENDED COMPLAINT v. 12 DONALD TRUMP, in his official capacity as President of the United 13 States; U.S. DEPARTMENT OF HOMELAND SECURITY; JOHN 14 F. KELLY, in his official capacity as Secretary of the Department of 15 Homeland Security; REX W. TILLERSON, in his official capacity 16 as Secretary of State; and the UNITED STATES OF AMERICA, 17 Defendants. 18 Motion Noted: March 31, 2017 19 STATE OF OREGON, 20 21 Intervenor-Plaintiff, v. 22 DONALD TRUMP, et al., 23 Intervenor-Defendants. 24 25 26 MOTION FOR LEAVE TO FILE SECOND AMENDED COMPLAINT ATTORNEY GENERAL OF WASHINGTON 800 Fifth Avenue, Suite 2000 Seattle, WA 98104-3188 (206) 464-7744 1 I. INTRODUCTION AND PROCEDURAL HISTORY 2 On March 6, 2017, President Trump signed Executive Order 13780 (Second Executive 3 Order) “revoking” and “replacing” Executive Order No. 13769 (First Executive Order), the 4 subject of the First Amended Complaint. Second Executive Order § 1(i), ECF No. 108-1. At 5 least two provisions of the Second Executive Order violate the law, like their enjoined 6 predecessors in the First Executive Order: (1) a 90-day ban on entry of persons from several 7 Muslim-majority countries, and (2) a 120-day suspension of the U.S. Refugee Admissions 8 Program. See First Executive Order §§ 3(c), 5(a) (imposing these bans), and ECF No. 52, at 5 9 (enjoining §§ 3(c), 5(a)), and Second Executive Order §§ 2(c), 6(a) (reinstating these bans). 10 The State of Washington (Washington) requests leave to amend its complaint to 11 (1) allege that the Second Executive Order suffers from many of the same constitutional and 12 statutory deficiencies as the First Executive Order,1 (2) add the States of California, Maryland, 13 Massachusetts, New York, and Oregon2 (collectively, the States), as plaintiffs, and (3) reassert 14 that the Executive Orders injure the States’ proprietary interests, sovereign interests, and 15 residents.3 Washington respectfully requests that the Court grant leave to file the 16 accompanying proposed Second Amended Complaint. 17 18 19 20 21 22 1 In light of changes in the Second Executive Order, the proposed Second Amended Complaint drops what were the Fifth Cause of Action (for violation of the Immigration and Nationality Act based on Denial of Asylum and Withholding of Removal) and Sixth Cause of Action (for violation of the Foreign Affairs Reform and Restructuring Act based on Denial of Convention Against Torture Relief). 2 23 24 25 26 On March 9, 2017, the Court granted Oregon’s motion to intervene as a plaintiff as of right. ECF No. 112. However, to streamline this action procedurally, Oregon and the existing plaintiffs have agreed to join Oregon as a plaintiff rather than having Oregon proceed separately as a plaintiff-intervenor. Therefore, if this Motion is granted, Oregon will withdraw its Complaint-in-Intervention. 3 Washington, California, Maryland, Massachusetts, New York, and Oregon are the Plaintiffs in the proposed Second Amended Complaint. Minnesota joins Washington’s motion in accordance with Federal Rules of Civil Procedure 15 and 21 to reflect that it is not a party to the proposed Second Amended Complaint. MOTION FOR LEAVE TO FILE SECOND AMENDED COMPLAINT 1 ATTORNEY GENERAL OF WASHINGTON 800 Fifth Avenue, Suite 2000 Seattle, WA 98104-3188 (206) 464-7744 1 2 II. A. ARGUMENT Leave to Amend is Proper 3 The Federal Rules of Civil Procedure allow parties to seek leave to amend their 4 pleadings before trial, and “[t]he Court should freely give leave when justice so requires.” Fed. 5 R. Civ. P. 15(a)(2). Indeed, “[f]ederal policy favors freely allowing amendment so that cases 6 may be decided on their merits.” Wizards of the Coast LLC v. Cryptozoic Entm’t LLC, 309 7 F.R.D. 645, 649 (W.D. Wash. 2015) (citing Martinez v. Newport Beach City, 125 F.3d 777, 8 785 (9th Cir. 1997)). “This policy is ‘to be applied with extreme liberality.’ ” Eminence 9 Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1051 (9th Cir. 2003) (quoting Owens v. Kaiser 10 Found. Health Plan, Inc., 244 F.3d 708, 712 (9th Cir. 2001) (additional citation omitted)). 11 “This liberality in granting leave to amend is not dependent on whether the amendment will 12 add causes of action or parties.” DCD Programs, Ltd. v. Leighton, 833 F.2d 183, 186 (9th Cir. 13 1987). 14 When leave to amend is sought before the defendants have filed a responsive pleading, 15 as here, the presumption in favor of granting leave is at its highest. “Under Rule 15(a), leave to 16 amend should be granted freely until the defendant files a responsive pleading.”4 Martinez v. 17 Newport Beach City, 125 F.3d 777, 785 (9th Cir. 1997); see also Johnson v. Mammoth 18 Recreations, Inc., 975 F.2d 604, 607 (9th Cir. 1992) (“Under Rule 15(a), leave to amend 19 should be granted as a matter of course, at least until the defendant files a responsive 20 pleading.”); Eminence Capital, LLC, 316 F.3d at 1052 (holding that, in circumstances like 21 these, “there exists a presumption under Rule 15(a) in favor of granting leave to amend”) 22 (emphasis in original)). The party opposing amendment bears the “burden of showing that 23 amendment is not warranted.” Wizards of the Coast, 309 F.R.D. at 649 (citing DCD Programs, 24 833 F.2d at 187). 25 26 4 “After that point, leave to amend should be granted unless amendment would cause prejudice to the opposing party, is sought in bad faith, is futile, or creates undue delay.” Martinez, 125 F.3d at 785 (citing Ascon Props., Inc. v. Mobil Oil Co., 866 F.2d 1149, 1160 (9th Cir. 1989)); Johnson, 975 F.2d at 607 (same). MOTION FOR LEAVE TO FILE SECOND AMENDED COMPLAINT 2 ATTORNEY GENERAL OF WASHINGTON 800 Fifth Avenue, Suite 2000 Seattle, WA 98104-3188 (206) 464-7744 1 Here, Washington has promptly sought leave to amend within seven days of the 2 President’s issuance of the Second Executive Order, which shares constitutional and statutory 3 infirmities of its predecessor and continues to harm Washingtonians. The States of California, 4 Maryland, Massachusetts, New York, and Oregon have suffered, and continue to suffer, 5 similar harms. Defendants have not yet filed a responsive pleading and will not be prejudiced. 6 For these reasons, the Court should grant the request for leave to file the accompanying Second 7 Amended Complaint. 8 B. The States Should Be Granted Leave to Seek Redress for Their Ongoing Harms 9 Defendants’ continuing course of conduct harms the States. Like the First Executive 10 Order, the Second Executive Order harms the States’ families, educational institutions, 11 economies, businesses, health care systems, religious organizations, and sovereign interests. 12 1. 13 When President Trump issued the First Executive Order, it immediately tore families 14 apart, causing significant stress and financial hardships. Many families will suffer a similar fate 15 under the Second Executive Order. They will be unable to reunite with relatives, receive visits, 16 and plan for the future. Residents 17 As a direct result of the Second Executive Order, many of the States’ residents will be 18 kept separated from immediate family members. One Washington resident, a U.S. citizen, is 19 separated from his new wife and elderly parents who live in Iran and are awaiting green cards. 20 Decl. of A. Shayegan ¶¶ 2-10. His plans to start a life together with his wife in Seattle were 21 suddenly halted, and both he and his wife are suffering greatly as they do not know when they 22 will be together. Id. at ¶¶ 8-12. Similarly, a New York resident, also a U.S. citizen, is separated 23 from her new husband, a Yemeni national. Decl. of R. Althaibani ¶¶ 1, 3-6. Their separation 24 has caused a great deal of anxiety, and all of their plans have been put on hold. Id. at ¶¶ 4, 14. 25 For many residents, the separation is particularly agonizing because their family 26 members are in vulnerable situations. Another New York resident, a U.S. citizen, is separated MOTION FOR LEAVE TO FILE SECOND AMENDED COMPLAINT 3 ATTORNEY GENERAL OF WASHINGTON 800 Fifth Avenue, Suite 2000 Seattle, WA 98104-3188 (206) 464-7744 1 from his wife and four children who are stranded in Yemen, a country in the midst of war. 2 Decl. of A. Elfgeeh ¶¶ 1, 4-9. He is terrified for their safety. Id. at ¶ 9. Another Washington 3 resident, a dual U.S./Iranian citizen, is separated from her elderly parents who live in Iran and 4 need her care. Decl. of S. Parsian ¶¶ 4-6, 8-11. She is heartbroken that she is unable to care for 5 her parents in their time of need. Id. at ¶ 11. Similarly, another resident has elderly parents who 6 live in Iran and are very sick. Decl. of B. Callaghan ¶ 3. She planned for them to come to the 7 United States so that she could care for her father, but those plans are now on hold. Id. at ¶ 4. A 8 third Washington resident has a 2-year-old niece who has a rare and deadly disease. Decl. of S. 9 Dadgari ¶¶ 2-4. Her niece is in California for a clinical trial, but her niece’s visa is set to expire 10 before the clinical trial is complete. Id. at ¶¶ 5-6. If her niece does not get a visa extension, she 11 will have to return to Iran and likely be unable to return for treatment. Id. 12 These are just a handful of the many heartbreaking stories. There are countless other 13 individuals who are desperately hoping that family members will be able to join them in the 14 United States, or are unable to travel to visit relatives because they are in the United States on 15 single-entry visas. See e.g. Decl. of Z. Rasouli ¶¶ 2, 7-8 (Washington resident waiting for 16 sister); Decl. of N. Fallah ¶ 11 (Washington resident hoping mother can visit); Decl. of H. 17 Ghasemzadeh Ex. A (students at Washington State University on single-entry visas and 18 separated from families); Decl. of S. Amin ¶¶ 2, 4 (PhD Student at Cornell University on 19 single-entry visa and separated from family); Decl. of S. Mubarez ¶¶ 2, 12 (New York resident 20 waiting for husband); Decl. of J. Sime ¶ 9 (New York families separated because they received 21 refugee status at different times); Decl. of E. Hassett ¶ 12 (New York families may face 22 reunification delay of several years). 23 2. 24 The Second Executive Order will harm the States’ educational institutions in several 25 ways. They have hundreds of students and faculty members from the six countries affected by 26 the Second Executive Order. See 4th Decl. of A. Chaudhry ¶¶ 5, 7 (Washington State Educational Institutions MOTION FOR LEAVE TO FILE SECOND AMENDED COMPLAINT 4 ATTORNEY GENERAL OF WASHINGTON 800 Fifth Avenue, Suite 2000 Seattle, WA 98104-3188 (206) 464-7744 1 University); Decl. of J. Riedinger ¶ 5, 3d Decl. J. Riedinger ¶ 2 (University of Washington); 2 Decl. of J. Boesenberg ¶¶ 4, 6 (Washington State community and technical colleges); Decl. of 3 D. Galvan ¶ 7 (University of Oregon); Decl. of R. Adams ¶ 8 (Oregon State University); Decl. 4 of M. Everett ¶ 7 (Portland State University); Decl. of D. Heatwole ¶¶ 4-6 (University of 5 Massachusetts); Decl. of R. Lewin ¶¶ 3-4 (University of Maryland College Park); Decl. of N. 6 Zimpher ¶ 9 (State University of New York); Decl. of V. Rabinowitz ¶ 6 (The City University 7 of New York); 2d Amend. Compl. ¶ 55 (University of California, California State University 8 System, and University of Southern California). 9 For students and faculty without multiple-entry visas, foreign travel for personal or 10 academic reasons risks an inability to return. Decl. of V. Shah ¶¶ 5-6; Decl. of R. Lewin ¶¶ 4- 11 6; Decl. of S. Amin ¶¶ 2, 4; 2d Decl. of R. Branon ¶ 11. As a result, some are forced to decline 12 important academic opportunities. See, e.g., Decl. of A. Mehrizi-Sani ¶ 3 (Iranian Ph.D. 13 student planning on turning down 8,500 Euro research scholarship due to uncertainty about his 14 visa). Students and faculty members will also be unable to receive visitors from the affected 15 countries, creating significant emotional hardships and impacting their studies. See Decl. of V. 16 Shah ¶ 6; Decl. of R. Lewin ¶ 5; Decl. of S. Amin ¶¶ 5-7; Decl. of S. Hemmati ¶ 7. 17 In addition, by banning travelers from certain countries, the Second Executive Order 18 prevents the States’ educational institutions from considering attractive student candidates or 19 faculty from the affected countries. As a result, these institutions will lose out on exceptional 20 student candidates, will be unable to employ faculty members with specialized expertise, and 21 will be unable to host visiting scholars from the affected countries, which they have done in the 22 past. See, e.g., 2d Decl. of A. Chaudhry ¶ 7; 2d Decl. of J. Riedinger ¶¶ 9-10; Decl. of M. 23 Everett ¶ 13. This deprives the institutions of the diverse perspectives that such students and 24 scholars bring and harms the universities’ educational missions as a whole. 25 The ban on travel also harms research projects and academic programs. University 26 faculty members regularly conduct research in the affected countries and collaborate with MOTION FOR LEAVE TO FILE SECOND AMENDED COMPLAINT 5 ATTORNEY GENERAL OF WASHINGTON 800 Fifth Avenue, Suite 2000 Seattle, WA 98104-3188 (206) 464-7744 1 foreign scholars from those countries. See, e.g., Decl. of J. Riedinger ¶ 8 (University of 2 Washington); 2d Decl. of J. Wasserheit ¶ 7 (University of Washington Department of Global 3 Health); Decl. of D. Galvan ¶ 10 (University of Oregon); Decl. of V. Rabinowitz ¶¶ 14-18 4 (City University of New York). This research will be impaired if scholars are unable to travel 5 or return here, harming the universities’ funding and reputation. See, e.g., Decl. of D. Galvan 6 ¶¶ 10, 12 (decrease in international collaboration will likely reduce international grants, 7 contracts, and donations); Decl. of R. Lewin ¶ 13 (decrease in collaborative research or 8 international students and faculty will likely affect University of Maryland College Park’s 9 global university rankings). 10 The universities will also have difficulty attracting and retaining faculty members and 11 scholars. See Decl. of D. Galvan ¶ 11-12 (students outside the affected countries are “already 12 signaling interest in non-US alternatives” and the University of Oregon’s admissions 13 department has reported a 15% decrease in international applications); Decl. of R. Lewin ¶ 8 14 (researcher with “singular expertise” accepted offer to join team at the University of Maryland 15 College Park but backed out because of the First Executive Order). Valued faculty who are 16 here may not be able to stay. Some faculty members have family members in the banned 17 countries and may have to leave their jobs in the United States if their family members can no 18 longer visit. See Decl. of J. Riedinger ¶ 4 (University of Washington faculty member may find 19 it necessary to leave the University, which would be a “very significant loss”). Other faculty 20 members and scholars may face difficulties maintaining work authorization or renewing their 21 visas. Decl. of M. Williams ¶ 6; Decl. of V. Rabinowitz ¶ 10. This harms the universities’ 22 ability to effectively compete with other institutions around the world. 23 Finally, the States’ educational institutions will suffer financial harm, as they did with 24 the First Executive Order. See Decl. of D. Eaton ¶ 5 (refunds on application fees); Decl. of J. 25 Wood ¶ 8 (visa costs related to cancelled internship). Many have received applications or 26 extended offers of admission to prospective students from these countries. E.g. 3d Decl. of A. MOTION FOR LEAVE TO FILE SECOND AMENDED COMPLAINT 6 ATTORNEY GENERAL OF WASHINGTON 800 Fifth Avenue, Suite 2000 Seattle, WA 98104-3188 (206) 464-7744 1 Chaudhry ¶ 4 (Washington State University); Decl. of R. Branon ¶¶ 5-6, 2d Decl. of R. Branon 2 ¶¶ 6-10 (University of Washington’s Continuum College); Decl. of D. Eaton ¶ 3 (The Graduate 3 School of the University of Washington); Decl. of D. Galvan ¶ 11 (University of Oregon); 4 Decl. of R. Adams ¶ 15 (Oregon State University); Decl. of M. Everett ¶¶ 15-16 (Portland 5 State University); Decl. of M. Williams ¶ 9 (University of Massachusetts); Decl. of R. Lewin ¶ 6 10 (University of Maryland College Park). If these students are unable to enroll, the 7 universities will lose application fees, program fees, and tuition revenue. See, e.g., 2d Decl. of 8 R. Branon ¶¶ 9-10 (Continuum College will lose program fees if accepted students cannot 9 obtain visas in time). 10 3. 11 The States’ economies will also be harmed by the Second Executive Order. Barring 12 visitors from the six countries will cost the States a substantial amount of lost tax revenue from 13 travelers who would otherwise visit the States. See Decl. of D. Soike ¶ 11 (in 2016, more than 14 6,000 passengers traveled between Washington and the six banned countries); Decl. of K. 15 Oline ¶¶ 3-7 (in 2015, travelers from the Middle East spent $96 million in Washington, 16 including more than $9 million in state and local tax revenue); 2d Am. Compl. ¶ 126 (Oregon 17 received 670,000 international travelers in 2016); 2d Amend. Compl. ¶ 63 (in 2015, California 18 received 286,000 visitors from the Middle East, who spent approximately $681 million 19 generating $49,372,500 in tax revenue); see also Decl. of A. Lavine ¶ 17 (would-be foreign 20 tourists have canceled plans to attend events in New York because of executive orders). 21 Tourism is particularly critical to the economy of California, supporting more than 500,000 22 jobs in Los Angeles alone. 2d Amend. Compl. ¶ 66. In addition, the States will lose income tax 23 revenue from lost jobs, as several organizations will be forced to terminate employees who 24 work with refugees. See Decl. of R. Birkel ¶ 8; Decl. of L. Po Cha ¶ 7; Decl. of H. Kenyon ¶¶ 25 7-8; Decl. of E. Hassett ¶ 21. The States may also lose tax revenue as a result of decreasing 26 hospital revenues caused by physician shortages. Decl. of R. Fullerton ¶ 22. Economy and Businesses MOTION FOR LEAVE TO FILE SECOND AMENDED COMPLAINT 7 ATTORNEY GENERAL OF WASHINGTON 800 Fifth Avenue, Suite 2000 Seattle, WA 98104-3188 (206) 464-7744 1 Additionally, the States’ businesses will be harmed by the Second Executive Order. For 2 example, many companies are dependent on foreign workers to operate and grow their 3 businesses. See, e.g., Decl. of A. Blackwell-Hawkins ¶¶ 3-4 (Amazon); Decl. of R. Dzielak ¶¶ 4 4, 7 (Expedia); Decl. of J. Simeone ¶¶ 5, 7 (Etsy); Decl. of J. Truppman ¶¶ 2-4 (Casper Sleep 5 Inc.). The Second Executive Order affects their ability to retain employees from the six 6 affected countries as well as from other Muslim-majority nations, which affects their ability to 7 compete in the global marketplace. See e.g., Decl. of M. Rosenn ¶¶ 2-4, 8 (Kickstarter, a New 8 York company, anticipates that the Second Executive Order will negatively impact its ability to 9 recruit and retain employees from Muslim-majority nations); Decl. of D. Pashman ¶¶ 4, 6-8 10 (Meetup, New York based company, expressing similar concerns); Decl. of J. Simeone ¶¶ 5, 7 11 (Etsy, New York corporation, same). The uncertainty created by the Second Executive Order 12 also impacts business operations. E.g. Decl. of S. Buell ¶ 8 (uncertainty about employees’ 13 ability to travel harms the ability of MongoDB, a New York company, to serve its customers); 14 see also Decl. or J. Truppman ¶¶ 5-6 (uncertainty about immigration policy imposes financial 15 and administrative burdens on Casper Sleep Inc.). 16 Other businesses that will be harmed include those in real estate. Real estate companies 17 have already lost customers over concerns about immigration policy and President Trump’s 18 Executive Orders. Decl. of M. Saunders ¶¶ 7-15 (Washington based real estate brokerage 19 company Redfin has lost at least five potential customers who decided not to purchase homes); 20 See also Decl. of P. Johnson ¶¶ 3-7 (Washington mortgage consultant lost two clients due to 21 First Executive Order). These businesses lose potential revenue each time a customer ends his 22 or her home buying search before buying a home, and they will continue to incur business 23 costs assisting and advising customers who may be affected by the Second Executive Order. 24 See Decl. of M. Saunders ¶¶ 7, 13. 25 Local travel companies will also be devastated by the Second Executive Order. The 26 uncertainty and anxiety created by the First Executive Order forced travel companies to cancel MOTION FOR LEAVE TO FILE SECOND AMENDED COMPLAINT 8 ATTORNEY GENERAL OF WASHINGTON 800 Fifth Avenue, Suite 2000 Seattle, WA 98104-3188 (206) 464-7744 1 many trips, which significantly impaired their business and operations. Decl. of R. Zawaideh 2 ¶¶ 3-6 (Washington travel company forced to cancel more than 20 tours, company has lost 3 “almost all of its revenue,” and business “has completely evaporated”); Decl. of S. Topiwala ¶¶ 4 6-9 (by forcing travel company to cancel pilgrimage to Iraq, the First Executive Order had a 5 “significant negative financial impact” on travel company); see also Decl. of R. Dzielak ¶¶ 12- 6 14 (uncertainty surrounding First Executive Order created “significant difficulties for the 7 operation of Expedia’s business”). These harms will continue as a result of the Second 8 Executive Order. 9 4. Health Care 10 The Second Executive Order will harm the States’ health care systems. For one, it 11 impedes the States’ efforts to ensure that residents in rural and underserved areas receive health 12 care. Recruitment of foreign-born physicians is critical to the States’ efforts to address Health 13 Professional Shortage Areas and their need for primary care, dental health, and mental health 14 physicians. Decl. of R. Fullerton ¶¶ 5-7, 14-19; Decl. of M. Akhtari ¶¶ 13, 16-17; Decl. of M. 15 Overbeck ¶¶ 3-5; 2d Amend. Compl. ¶¶ 60-61. The Second Executive Order, like the first, will 16 significantly harm recruitment efforts. See Decl. of M. Overbeck ¶¶ 4-7; Decl. of R. Fullerton 17 ¶¶ 17-19. This, in turn, will harm patients in underserved areas. When there is a shortage of 18 physicians, patients may have to delay treatment, travel long distances for care, or go without 19 care altogether. Decl. of R. Fullerton ¶¶ 18-19. 20 The Second Executive Order will also harm the States’ best-known health care 21 institutions. Hundreds of physicians from the banned countries work in the States. Decl. of M. 22 de Leon ¶¶ 6-8; Decl. of M. Akhtari ¶¶ 5-9, 14; Decl. of E. Scherzer ¶¶ 6, 12; Decl. of T. 23 Johnson ¶ 13. The States’ health care institutions will have trouble retaining these physicians 24 and recruiting other qualified physicians. The States’ health care employers have already lost 25 highly qualified physicians due to the uncertainty created by the First Executive Order. E.g. 26 Decl. of R. Fullerton ¶¶ 17, 19 (multiple Washington healthcare employers lost physician MOTION FOR LEAVE TO FILE SECOND AMENDED COMPLAINT 9 ATTORNEY GENERAL OF WASHINGTON 800 Fifth Avenue, Suite 2000 Seattle, WA 98104-3188 (206) 464-7744 1 candidates from the affected countries). These losses will undoubtedly continue. See Decl. of 2 S. Hemmati ¶¶ 1, 4, 7-8 (postdoctoral research fellow at Cancer Research Center at Albert 3 Einstein College of Medicine in New York may not be able to renew visa and will likely leave 4 United States); Decl. of R. Eskandari ¶ 6 (postdoctoral scientist at Memorial Sloan Kettering 5 Cancer Center unsure whether she will be able to renew visa and continue cancer research); 6 Decl. of E. Scherzer ¶¶ 10 (medical students will likely elect to do residency abroad). As a 7 result, these institutions will also suffer a reduction in revenue, as physicians are the central 8 revenue generators for hospitals. Decl. of R. Fullerton ¶ 22. 9 The Second Executive Order will also harm the States’ medical schools, particularly 10 those that participate in the National Resident Matching Program, which includes schools in 11 the States. E.g. Decl. of M. Collins, MD ¶¶ 6-9 (Massachusetts); Decl. of E. Scherzer ¶¶ 15-17 12 (New York); 2d Amend. Compl. ¶ 59 (California). After the First Executive Order, these 13 institutions had significant concerns about extending residency offers to medical students from 14 the banned countries. See Decl. of M. Collins, MD ¶¶ 6-9. These concerns are still present, as 15 the Second Executive Order will ban travel for nationals from six of the seven countries. 16 5. 17 The Second Executive Order will harm members of the States’ diverse faith 18 communities and religious organizations. Many of the States’ residents perform refugee 19 resettlement or ministry as part of an organizational or religious mission. Decl. of D. Duea ¶¶ 20 2, 8 (Lutheran Community Services Northwest); Decl. of Rabbi W. Berkovitz ¶¶ 1-5, 10, 12 21 (Jewish Family Service of Seattle); Decl. of R. Birkel ¶ 3 (Catholic Charities of Oregon). The 22 Second Executive Order will prevent these organizations from administering services to 23 hundreds of refugees. Decl. of D. Duea ¶¶ 7-8 (Lutheran Community Services Northwest will 24 be unable to provide assistance to between 100 and 200 refugees); see also Decl. of Rabbi W. 25 Berkovitz ¶ 13 (Jewish Family Services of Seattle expects to resettle 65 additional refugees in 26 fiscal year 2017). By preventing these individuals and organizations from providing services to Religious Organizations MOTION FOR LEAVE TO FILE SECOND AMENDED COMPLAINT 10 ATTORNEY GENERAL OF WASHINGTON 800 Fifth Avenue, Suite 2000 Seattle, WA 98104-3188 (206) 464-7744 1 refugees, the Second Executive Order prevents them from exercising their beliefs and fulfilling 2 their missions. See, e.g., Decl. of D. Duea ¶ 8 (work with refugees “is a religious calling” and 3 one way in which [Christians] serve [their] faith”); Decl. of Rabbi W. Berkovitz ¶¶ 10 (refugee 4 resettlement services “is a critical way that Jewish individuals and families in the Puget Sound 5 region are able to fulfill their religious, cultural, and historical obligations”). 6 In addition, the Second Executive Order will have a financial impact on religious 7 organizations that provide refugee services. If refugees are not permitted to enter the United 8 States, these organizations will lose revenue. Decl. of R. Birkel ¶¶ 5-7 (Catholic Charities of 9 Oregon will lose $310,000 of government funding during the 120 day period); Decl. of H. 10 Kenyon ¶ 8 (Ecumenical Ministries of Oregon would lose $75,000 per year in government 11 funding). The refugee ban will also result in staffing reductions and will threaten the 12 organizations’ continued ability to operate. Decl. of D. Duea ¶ 9 (Lutheran Community 13 Services Northwest will be forced to terminate half of its refugee assistance staff); Decl. of H. 14 Kenyon ¶¶ 7-8 (Ecumenical Ministries of Oregon will have to terminate entire refugee 15 resettlement staff and may have to reduce staffing in other areas); Decl. of R. Birkel ¶ 8 16 (Catholic Charities may terminate 7 full time employees); Decl. of L. Warren ¶¶ 17-18 17 (Catholic Family Center of Rochester, New York, may have to terminate employees). Reduced 18 staffing, in turn, may also directly impact previously resettled refugee clients. Decl. of R. 19 Birkel ¶ 10; see also J. Sime ¶ 12 (reduction in resources jeopardizes continued services for 20 refugees in United States). 21 6. 22 Finally, the Second Executive Order will violate the States’ sovereign interests in 23 preventing the federal government from establishing a favored or disfavored religion and in 24 creating and enforcing anti-discrimination laws. Through their state statutory schemes, the 25 States all prohibit discrimination on the basis of religion and national origin. See generally 26 Rev. Code Wash. § 49.60.030(1); Cal. Gov. Code § 12900 et. seq.; Cal. Civ. Code §51; Md. Sovereign interests MOTION FOR LEAVE TO FILE SECOND AMENDED COMPLAINT 11 ATTORNEY GENERAL OF WASHINGTON 800 Fifth Avenue, Suite 2000 Seattle, WA 98104-3188 (206) 464-7744 1 Code Ann., State Gov’t § 20-101 to 1203; Md. Code Ann., State Fin. & Proc. § 19-101; Mass. 2 Gen. Laws, ch. 151B; N.Y. Exec. Law, art. 15; Or. Rev. Stat. § 659A.006. In addition to 3 enforcing these laws, the States are bound by them in their capacities as employers, educators, 4 and providers of public services. The breadth and generality of the ban on admission of 5 individuals from six countries effectively nullifies provisions of state anti-discrimination law 6 applicable to state-regulated entities and the States themselves. This displacement of state law 7 injures the core sovereignty of the States. 8 9 10 III. CONCLUSION For the foregoing reasons, Washington respectfully requests that the Court grant leave to file the Second Amended Complaint submitted concurrently herewith. 11 12 RESPECTFULLY SUBMITTED this 13th day of March 2017. 13 14 15 16 17 18 19 20 21 22 23 24 25 26 ROBERT W. FERGUSON Washington Attorney General s/ Robert W. Ferguson BOB FERGUSON, WSBA #26004 Attorney General NOAH G. PURCELL, WSBA #43492 Solicitor General COLLEEN M. MELODY, WSBA #42275 Civil Rights Unit Chief ANNE E. EGELER, WSBA #20258 Deputy Solicitor General MARSHA CHIEN, WSBA #47020 PATRICIO A. MARQUEZ, WSBA #47693 Assistant Attorneys General Office of the Attorney General 800 Fifth Avenue, Suite 2000 Seattle, WA 98104 (206) 464-7744 MOTION FOR LEAVE TO FILE SECOND AMENDED COMPLAINT 12 ATTORNEY GENERAL OF WASHINGTON 800 Fifth Avenue, Suite 2000 Seattle, WA 98104-3188 (206) 464-7744 1 CERTIFICATE OF SERVICE 2 I hereby certify that the foregoing document was electronically filed with the United 3 States District Court using the CM/ECF system. I certify that all participants in the case are 4 registered CM/ECF users and that service will be accomplished by the appellate CM/ECF 5 system. 6 7 March 13, 2017 s/ Noah G. Purcell NOAH G. PURCELL, WSBA 43492 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 MOTION FOR LEAVE TO FILE SECOND AMENDED COMPLAINT 13 ATTORNEY GENERAL OF WASHINGTON 800 Fifth Avenue, Suite 2000 Seattle, WA 98104-3188 (206) 464-7744

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