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

Filing 125

MOTION for Leave to File Amicus Curiae Brief in Support of Plaintiffs' Emergency Motion, filed by Amicus International Law Scholars and Nongovernmental Organizations. (Attachments: # 1 Exhibit A, # 2 Proposed Order) Noting Date 3/13/2017, (McMillan, Joseph)

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THE HONORABLE JAMES ROBART

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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STATE OF WASHINGTON, et al.,

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Plaintiffs,
v.
DONALD TRUMP, President of the
United States, et al.,

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Defendants.

No. 2:17-cv-00141-JLR
MOTION FOR LEAVE TO FILE
AMICUS CURIAE BRIEF OF
INTERNATIONAL LAW SCHOLARS
AND NONGOVERNMENTAL
ORGANIZATIONS IN SUPPORT OF
PLAINTIFFS’ EMERGENCY MOTION
TO ENFORCE PRELIMINARY
INJUNCTION

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NOTE ON MOTION CALENDAR:
Monday, March 13, 2017

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(Contingent on Court’s ruling on accompanying
MOTION TO SHORTEN TIME)

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Perkins Coie LLP
MOTION FOR LEAVE TO FILE AMICUS
BRIEF (NO. 2:17-CV-00141-JLR)
134513998

1201 Third Avenue, Suite 4900
Seattle, WA 98101-3099
Phone: [phone]
Fax: [phone]

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I.
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INTRODUCTION

Non-party international law scholars and nongovernmental organizations (“Proposed
Amici”) hereby move for leave to file an amicus curiae brief in support of Plaintiffs’ Emergency
Motion to Enforce Preliminary Injunction (Dkt. #119). Proposed Amici specialize in areas of
international law involving the rights of aliens and refugees, and the obligations of the United
States under various treaties and international covenants to which it has acceded, jurisprudence
which the movants respectfully submit could assist the Court in assessing the legality of
Executive Order 13780, “Protecting the Nation From Foreign Terrorist Entry Into the United
States” (“EO”). The amicus brief that Proposed Amici request be considered is attached as
Exhibit A.

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II.
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The seventy-eight international law scholars include practitioners and tenured faculty
members at law schools in the United States who have devoted extensive efforts to the study and
practice of international law. They research, teach, speak, and publish widely on international
law issues, and they routinely advise and practice in matters addressing such issues before
American courts. The nongovernmental organizations join the international law scholars as
Proposed Amici. The nongovernmental organizations collectively are experts in civil rights law,
immigration law, and international human rights law.

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IDENTITY AND INTEREST OF PROPOSED AMICI CURIAE

As scholars and practitioners in the area, Proposed Amici have a strong interest in
ensuring that the Court reaches a decision that conforms to the existing body of international law.

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III.

ARGUMENT

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A.
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This Court Should Allow the Participation of Proposed Amici Curiae
This Court has “broad discretion” to appoint amici curiae. Skokomish Indian Tribe v.

Goldmark, No. C13-5071JLR, 2013 WL 5720053, at *1 (W.D. Wash. Oct. 21, 2013) (Robart,
J.). Submission of an amicus brief is valuable to the Court because it “suggests the interpretation

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Perkins Coie LLP
MOTION FOR LEAVE TO FILE AMICUS
BRIEF (NO. 2:17-CV-00141-JLR) – 1
134513998

1201 Third Avenue, Suite 4900
Seattle, WA 98101-3099
Phone: [phone]
Fax: [phone]

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and status of the law, gives information concerning it, and advises the Court in order that justice

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may be done . . . .” See Cmty. Ass’n for Restoration of Env’t (CARE) v. DeRuyter Bros. Dairy,

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54 F. Supp. 2d 974, 975 (E.D. Wash. 1999). District courts normally allow amicus briefs when

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the amicus has “unique information or perspective that can help the court beyond the help that

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the lawyers for the parties are able to provide.” Id. Amicus participation is particularly

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appropriate where, as here, the ramifications of the decision extend beyond the parties directly

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involved. Sierra Club v. BNSF Ry. Co., No. C13-967-JCC, 2016 U.S. Dist. LEXIS 124269, at

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*5 (W.D. Wash. Sept. 13, 2016).

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B.

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The Amicus Brief Will Help the Court Assess the Legality of the Executive Order
Under Domestic and International Law
Proposed Amici possess unique information and perspective that can help this Court

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understand the impacts the EO will have on the United States’ international relations and its

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ability to honor its international law obligations—ramifications that extend beyond the
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individuals directly involved in this case.
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The United States is party to several treaties and international covenants that address
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issues that are immediately and urgently raised by the EO, including for example, provisions in
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the Order making distinctions based on national origin. Proposed Amici respectfully submit that
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the accompanying amicus brief, by describing the rights and obligations established by those
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instruments, may assist the Court in assessing the legality of the EO under both international and
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U.S. domestic law. Under the U.S. Constitution, of course, “all Treaties made . . . under the
Authority of the United States, shall be the supreme Law of the Land.” U.S. Const., Art.VI, cl.

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2.
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Moreover, even if the international covenants identified in the amicus brief do not

independently or directly compel the Court to invalidate the EO, they should inform the Court’s

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interpretation of governing statutes based on well-established canons of statutory construction.
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The attached amicus brief may also illuminate the ways in which the international community
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will assess the EO in light of customary international law, which will in turn affect how other
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Perkins Coie LLP
MOTION FOR LEAVE TO FILE AMICUS
BRIEF (NO. 2:17-CV-00141-JLR) – 2
134513998

1201 Third Avenue, Suite 4900
Seattle, WA 98101-3099
Phone: [phone]
Fax: [phone]

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nations view and deal with the United States across a wide range of issues, including cooperation

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on national security matters.

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C.

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The Amicus Brief is Timely, Filed in Support of Plaintiffs’ Emergency Motion to
Enforce Preliminary Injunction
The Federal Rules of Civil Procedure and this Court’s local rules are silent with respect

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to the filing of amicus briefs. For that reason, this Court has looked to the Federal Rules of
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Appellate Procedure for guidance on procedural matters relating to such briefs.

See, e.g.,

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Skokomish Indian Tribe, 2013 WL 5720053, at *2 (adhering to the Federal Rules of Appellate
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Procedure with respect to timing for filing an amicus brief because “there are no particular local
rules governing when an amicus curiae must file its brief”). The Rules advise that “[a]n amicus

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curiae must file its brief, accompanied by a motion for filing when necessary, no later than 7
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days after the principal brief of the party being supported is filed.” Fed. R. App. P. 29(a)(6).
Proposed Amici’s brief supports Plaintiffs’ Emergency Motion to Enforce Preliminary Injunction

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(Dkt. #119), which was filed on March 13, 2017, and noted for consideration on March 14, 2017.
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Accordingly, in filing this motion and the attached amicus brief on March 13, 2017, this
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submission by Proposed Amici is timely.
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D.

Plaintiffs Consent to the Filing of the Amicus Brief; Defendants Take No Position
Proposed Amici have obtained Plaintiffs’ consent to the filing of the attached amicus

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brief. Counsel for Defendants have stated that they take no position with respect to the filing of
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the amicus brief. Proposed Amici therefore submit this motion for leave to file their amicus brief
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in satisfaction of the Federal Rules of Appellate Procedure. See Correll v. United States, Nos.
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C07-460RSL, CR04-251-RSL, 2007 WL 4209424, at *2 n.2 (W.D. Wash. Nov. 26, 2007)
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(concluding that proposed amicus’ brief was not properly filed “because he failed to first seek
leave of court or to obtain the consent of all parties” as required by Federal Rule of Appellate

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Procedure 29).
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Perkins Coie LLP
MOTION FOR LEAVE TO FILE AMICUS
BRIEF (NO. 2:17-CV-00141-JLR) – 3
134513998

1201 Third Avenue, Suite 4900
Seattle, WA 98101-3099
Phone: [phone]
Fax: [phone]

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IV.

CONCLUSION

Proposed Amici respectfully request permission to file the attached amicus curiae brief in
support of Plaintiffs.

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RESPECTFULLY SUBMITTED this 13th day of March, 2017.

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By: s/ Aaron X. Fellmeth
Aaron X. Fellmeth
Arizona State University
Sandra Day O’Connor College of Law
Mail Code 9520
111 E. Taylor St.
Phoenix, AZ 85004-4467
Telephone: [phone]
[e-mail]

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By: s/ Jonathan Hafetz
Jonathan Hafetz
Seton Hall University School of Law
One Newark Center
Newark, NJ 07102
Telephone: [phone]
[e-mail]

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Counsel for Proposed Amici Curiae
(Pro Hac Vice Application Pending)

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By: s/ Joseph M. McMillan
By: s/ Michelle L. Maley
Joseph M. McMillan, WSBA No. 26527
Michelle L. Maley, WSBA No. 51318
Perkins Coie LLP
1201 Third Avenue, Suite 4900
Seattle, WA 98101-3099
Telephone: [phone]
Facsimile: 206.359.9000
[e-mail]
[e-mail]

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Local Counsel for Proposed Amici Curiae

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Perkins Coie LLP
MOTION FOR LEAVE TO FILE AMICUS
BRIEF (NO. 2:17-CV-00141-JLR) – 4
134513998

1201 Third Avenue, Suite 4900
Seattle, WA 98101-3099
Phone: [phone]
Fax: [phone]

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CERTIFICATE OF SERVICE

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I hereby certify that on March 13, 2017, I electronically filed the foregoing with the Clerk

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of the Court using the United States District Court ECF system, which will send notification of

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such filing to all attorneys of record.

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DATED: March 13, 2017
By: s/ Aaron X. Fellmeth
Aaron X. Fellmeth
Arizona State University
Sandra Day O’Connor College of Law
Mail Code 9520
111 E. Taylor St.
Phoenix, AZ 85004-4467
Telephone: [phone]
[e-mail]

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By: s/ Jonathan Hafetz
Jonathan Hafetz
Seton Hall University School of Law
One Newark Center
Newark, NJ 07102
Telephone: [phone]
[e-mail]

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Counsel for Proposed Amici Curiae
(Pro Hac Vice Application Pending)

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By: s/ Joseph M. McMillan
By: s/ Michelle L. Maley
Joseph M. McMillan, WSBA No. 26527
Michelle L. Maley, WSBA No. 51318
Perkins Coie LLP
1201 Third Avenue, Suite 4900
Seattle, WA 98101-3099
Telephone: [phone]
Facsimile: 206.359.9000
[e-mail]
[e-mail]

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Local Counsel for Proposed Amici Curiae
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Perkins Coie LLP
CERTIFICATE OF SERVICE
(NO. 2:17-CV-00141-JLR) – 1
134513998

1201 Third Avenue, Suite 4900
Seattle, WA 98101-3099
Phone: [phone]
Fax: [phone]