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

Filing 180

RESPONSE, by Plaintiffs Commonwealth of Massachusetts, State of California, State of Maryland, State of New York, State of Washington, Intervenor Plaintiff State of Oregon, to 175 MOTION to Stay District Court Proceedings Pending Resolution of Appeal in Hawaii v. Trump. (Melody, Colleen)

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The Honorable James L. Robart

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON

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STATE OF WASHINGTON, et al.,
Plaintiffs,
v.

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STATES’ RESPONSE TO DEFENDANTS’
MOTION TO STAY PROCEEDINGS

DONALD J. TRUMP, et al.,

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No. 2:17-cv-00141-JLR

Defendants.

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STATES’ RESPONSE TO DEFENDANTS’
MOTION TO STAY PROCEEDINGS

ATTORNEY GENERAL OF WASHINGTON
800 Fifth Avenue, Suite 2000
Seattle, WA 98104-3188
[phone]

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TABLE OF CONTENTS

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I.

INTRODUCTION ............................................................................................................. 1

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II.

RELEVANT PROCEDURAL BACKGROUND ............................................................. 1

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III.

ARGUMENT .................................................................................................................... 2

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A. Defendants Bear a Heavy Burden in Seeking an Indefinite Stay .............................. 2

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B. The Appeal of Preliminary Relief in Hawai‘i Does Not Justify an Indefinite
Stay Here.................................................................................................................... 3

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1.

An Indefinite Stay Harms Plaintiffs ................................................................... 3

2.

An Indefinite Stay Does Not Benefit Judicial Economy.................................... 7

3.

Defendants Will Not Incur Hardship or Inequity Absent a Stay...................... 10

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C. Even if a Limited Stay is Granted, Third Party Discovery Should Proceed ............ 12
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IV.

CONCLUSION ............................................................................................................... 12

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STATES’ RESPONSE TO DEFENDANTS’
MOTION TO STAY PROCEEDINGS

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ATTORNEY GENERAL OF WASHINGTON
800 Fifth Avenue, Suite 2000
Seattle, WA 98104-3188
[phone]

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I.

INTRODUCTION

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Defendants seek an indefinite stay pending the Ninth Circuit’s decision in Hawai‘i v.

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Trump. Plaintiffs face significant harm if a stay is granted. Crucial relevant evidence, which

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Defendants disclaim any responsibility to locate or preserve, may be lost. Memories of critical

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witnesses will fade. The Ninth Circuit is unlikely to resolve the discovery objections

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Defendants raise, and even less likely to overrule its recent holding that intent evidence is

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relevant. Defendants have not met their burden and the stay should be denied.

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II.

RELEVANT PROCEDURAL BACKGROUND

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The States of Washington, California, Maryland, Massachusetts, New York, and

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Oregon (States) challenge Executive Orders 13769 (First Executive Order) and 13780 (Second

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Executive Order). Second Am. Compl., ECF 152 ¶¶ 1-4. The States allege that both orders

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violate constitutional guarantees including Equal Protection and Due Process, as well as the

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Establishment Clause’s prohibition on government attempts to establish a disfavored religion.

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Id. ¶¶ 194-210, 237-44. The States also allege a number of substantive and procedural statutory

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violations. Id. ¶¶ 211-36.

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After the Ninth Circuit upheld this Court’s injunction against provisions of the First

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Executive Order, Defendants asked this Court “to postpone any further proceedings in the

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district court” pending “[f]urther proceedings in the Ninth Circuit.” ECF 76 at 3. The Court

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denied Defendants’ request for a stay pending appeal and “direct[ed] the parties to proceed

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with this litigation.” ECF 78 at 5. Now, less than two months later, Defendants again ask the

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Court to stay this case based on Ninth Circuit proceedings, this time involving an appeal of a

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preliminary injunction against the Second Executive Order in a different case. Defs.’ Mot. to

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Stay District Court Proceedings Pending Resolution of Appeal in Hawaii v. Trump (Stay

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Motion), ECF 175. The States oppose a stay.

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STATES’ RESPONSE TO DEFENDANTS’
MOTION TO STAY PROCEEDINGS

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ATTORNEY GENERAL OF WASHINGTON
800 Fifth Avenue, Suite 2000
Seattle, WA 98104-3188
[phone]

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III.
A.

ARGUMENT

Defendants Bear a Heavy Burden in Seeking an Indefinite Stay

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The Court’s inherent power to control its docket includes the power to stay

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proceedings. Clinton v. Jones, 520 U.S. 681, 706-07 (1997). While this power permits a stay to

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await a decision from another court, “[o]nly in rare circumstances will a litigant in one cause

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be compelled to stand aside while a litigant in another settles the rule of law that will define the

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rights of both.” Lockyer v. Mirant Corp., 398 F.3d 1098, 1109-10 (9th Cir. 2005) (citing

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Landis v. N. Am. Co., 299 U.S. 248, 255 (1936)).

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Courts weigh three competing factors in determining whether to grant a stay: (1) the

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possible damage that may result from a stay, (2) the hardship or inequity a party may suffer

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from being required to go forward, and (3) the orderly course of justice measured in terms of

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the simplifying or complicating of issues, proof, and questions of law which could be expected

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to result from a stay. CMAX, Inc. v. Hall, 300 F.2d 265, 268 (9th Cir. 1962). This analysis

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includes an evaluation of the type of relief sought—a stay is more difficult to justify in a case

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involving allegations of continuing harm and a request for “injunctive or declaratory relief”

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than in a suit seeking “only damages.” See Lockyer, 398 F.3d at 1112-13 (vacating stay where

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“the Attorney General seeks injunctive relief against ongoing and future harm”). And “[a] stay

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should not be granted unless it appears likely the other proceedings will be concluded within a

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reasonable time in relation to the urgency of the claims presented to the court.” Levya v.

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Certified Grocers of Cal., Ltd., 593 F.2d 857, 864 (9th Cir. 1979).

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The moving party bears the burden to show that a stay is warranted. Clinton, 520 U.S.

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at 708. A heightened burden applies where “there is even a fair possibility that the stay . . . will

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work damage to some one else.” Landis, 299 U.S. at 255. If such possibility exists, the party

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seeking the stay “must make out a clear case of hardship or inequity in being required to go

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forward.” Id.

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STATES’ RESPONSE TO DEFENDANTS’
MOTION TO STAY PROCEEDINGS

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ATTORNEY GENERAL OF WASHINGTON
800 Fifth Avenue, Suite 2000
Seattle, WA 98104-3188
[phone]

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If the moving party meets its burden to establish the need for a stay, additional

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limitations govern the stay’s duration and scope. “Generally, stays should not be indefinite in

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nature.” Dependable Highway Exp., Inc. v. Navigators Ins. Co., 498 F.3d 1059, 1066 (9th Cir.

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2007). “[T]he general policy favor[s] stays of short, or at least reasonable, duration,” and

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imposition of a longer stay may constitute an abuse of discretion. Id. at 1066-67 (reversing

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where “it [was] unclear when the stay might lift”); see also Landis, 299 U.S. at 256 (district

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court abuses its discretion by granting “a stay of indefinite duration”). Finally, the moving

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party must also justify the proper scope of the stay. See Clinton, 520 U.S. at 708 (recognizing

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that trial of an action may be stayed even though discovery proceeds); In re Galena

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Biopharma, Inc. Derivative Litig., 83 F. Supp. 3d 1033, 1046 (D. Or. 2015) (staying discovery

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only until resolution of a pending motion to dismiss in a related case between the same parties

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and before the same court).

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B.

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The Appeal of Preliminary Relief in Hawai‘i Does Not Justify an Indefinite Stay
Here
Applying the rules detailed above, Defendants cannot justify the indefinite and

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complete stay they seek. Defendants bear a heightened burden because of the real possibility
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that a stay will harm the States’ ability to conduct timely, complete discovery. Any benefit to

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judicial economy from a stay is minimal where the case on appeal involves a grant of
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preliminary relief on one claim, and the case before this Court involves merits issues on eight
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constitutional and statutory claims. Finally, Defendants’ alleged burden is merely the burden of

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defending this suit. The stay should be denied, or at minimum be time-limited and tailored to
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allow the States to conduct third party discovery.
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1.

An Indefinite Stay Harms Plaintiffs

There is a significant possibility that an indefinite stay will harm the States’ ability to

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obtain complete and accurate discovery. This factor weighs heavily against a stay.
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STATES’ RESPONSE TO DEFENDANTS’
MOTION TO STAY PROCEEDINGS

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ATTORNEY GENERAL OF WASHINGTON
800 Fifth Avenue, Suite 2000
Seattle, WA 98104-3188
[phone]

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The States allege eight constitutional and statutory causes of action. Second Am.

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Compl., ECF 152 ¶¶ 194-244. Some of these claims may be proven through evidence that the

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Executive Orders were implemented for an illegal reason. Id. ¶¶ 194-200 (Equal Protection);

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201-205 (Establishment Clause); 211-220 (Immigration and Nationality Act). Other claims

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may be proven by showing that the Executive Orders were implemented through defective

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process or with unlawful results. Id. ¶¶ 206-210 (Procedural Due Process); 211-220

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(Immigration and Nationality Act); 221-225 (Religious Freedom Restoration Act); 226-236

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(Administrative Procedure Act); 237-44 (Tenth Amendment). Given the breadth of the alleged

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violations, the States require discovery regarding the underlying factual basis, intent, design,

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issuance, and effects of the Executive Orders. See Joint Status Report & Discovery Plan (Joint

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Status Report), ECF 177 at 5.

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The availability and quality of probative evidence is jeopardized by a stay. Delay

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“increase[s] the danger of prejudice resulting from the loss of evidence, including the inability

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of witnesses to recall specific facts, or the possible death [or other unavailability] of a party.”

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Clinton, 520 U.S. at 707-08; see also I.K. ex rel. E.K. v. Sylvan Union Sch. Dist., 681 F. Supp.

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2d 1179, 1193 (E.D. Cal. 2010) (“While the stay is in effect, through no fault of the parties,

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relevant evidence could be lost or destroyed, memories could fade, and pertinent witnesses

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could move out of the jurisdiction.”) (citing New York v. Hill, 528 U.S. 110, 117 (2000)

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(“Delay can lead to a less accurate outcome as witnesses become unavailable and memories

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fade.”)); Shim v. Kikkoman Int’l Corp., 509 F. Supp. 736, 740 (D.N.J. 1981) (“Stays . . . are to

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be avoided if at all possible if only because of the importance that discovery and trial testimony

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be as fresh and close to the event as possible, and to avoid the loss of evidence through fading

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memories and the death of individuals.”), aff’d sub nom. Woohyung Shim v. Kikkoman Int’l

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Corp., 673 F.2d 1304 (3d Cir. 1981).

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Here, the risk of lost evidence is acute. During the Rule 26(f) conference, the States

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requested that Defendants take steps to identify and preserve relevant documents and

STATES’ RESPONSE TO DEFENDANTS’
MOTION TO STAY PROCEEDINGS

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ATTORNEY GENERAL OF WASHINGTON
800 Fifth Avenue, Suite 2000
Seattle, WA 98104-3188
[phone]

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information held by anyone who was “involved in and/or consulted regarding the design of the

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Executive Orders, before and after President Trump took office.” Joint Status Report, ECF 177

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at 9. In response, Defendants disclaimed any obligation to locate or preserve information (1)

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held by third parties, or (2) that predates January 20, 2017. Id. Thus, according to Defendants,

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third parties are free to destroy evidence at any time, and even Defendants themselves may

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discard probative evidence if it was created prior to Inauguration Day.

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An example illustrates the negative potential results. The States have submitted

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evidence that Rudolph Giuliani played a critical role in crafting the First Executive Order. He

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claims to have convened a “commission” in response to then-candidate Trump’s request for a

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“Muslim ban” that would be legal. Second Am. Compl., ECF 152 ¶ 168; ECF 152-1 at 232-33.

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Some or all of the commission’s work may have taken place before January 20, 2017, and been

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performed by individuals who, like Giuliani, are not current federal employees. A stay of

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proceedings raises the very real specter that critical evidence held by Giuliani and the other

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commission members will disappear or fade from memory. This potential loss of evidence

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creates more than a “fair possibility that the stay . . . will work damage” to the States. See

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Landis, 299 U.S. at 255.

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Defendants make two arguments in an effort to downplay the States’ harm from an
indefinite stay. Neither is persuasive.

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First, Defendants liken their Stay Motion to the Court’s recent sua sponte order staying

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consideration of a temporary restraining order (TRO) against provisions of the Second

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Executive Order. See ECF 164. Defendants assert that, as with the TRO motion, the injunction

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granted in Hawai‘i alleviates any harm to the States from a stay here. See Stay Motion, ECF

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175 at 11-12. But equating the limited stay of the TRO motion with a complete stay of all

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proceedings on the merits is comparing apples and oranges. The TRO motion was stayed

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because, by the time it came before the Court for decision, “the federal district court of

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Hawai‘i’s nationwide injunction already provide[d] Plaintiffs the [preliminary] relief they

STATES’ RESPONSE TO DEFENDANTS’
MOTION TO STAY PROCEEDINGS

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ATTORNEY GENERAL OF WASHINGTON
800 Fifth Avenue, Suite 2000
Seattle, WA 98104-3188
[phone]

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[sought] in their TRO motion.” ECF 164 at 8. By contrast, a stay here would forestall any

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progress on the States’ claims for permanent injunctive relief—something no court has yet to

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consider or decide.

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Moreover, the Hawai‘i injunction is based entirely on the likelihood that plaintiffs there

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will prevail on their Establishment Clause claim. Hawai‘i v. Trump, No. 17-cv-50-DKW-KSC,

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2017 WL 1167383, at *5-6 (D. Haw. Mar. 29, 2017); id., 2017 WL 1011673, *11-16 (Mar. 15,

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2017). The Hawai‘i court expressed no view on the merits of the other constitutional or

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statutory claims. Id., 2017 WL 1167383, at *5 n.3. Here, the States seek adjudication of eight

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constitutional and statutory claims, and the harm from delay and risk of lost evidence are not

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ameliorated by a preliminary determination that the Hawai‘i plaintiffs are likely to prevail on

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one overlapping claim. See I.K., 681 F. Supp. 2d at 1193 (“Another form of potential damage

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to Plaintiffs if this case is stayed is the inability, during the stay, to conduct timely discovery

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and gather evidence as to non-overlapping aspects of the federal litigation.”); cf. In re Galena

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Biopharma, Inc., 83 F. Supp. 3d at 1043 (finding only minimal harm from a stay where future

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discovery was likely from parties that “will remain under an obligation to preserve evidence”).

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Defendants’ second reason for dismissing any harm from a stay is their insistence that

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the proposed stay will be a “brief delay.” Stay Motion, ECF 175 at 11. The States see no

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reason to believe that will be the case. The duration of the proposed stay is not limited to a

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ruling from the Ninth Circuit panel that will hear argument on May 15. See ECF 179 at 2 n.1.

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Instead, Defendants propose a stay pending resolution of the entire appeal. Stay Motion, ECF

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175 at 1. As the Court has noted, President Trump has vowed to pursue the appeal “as far as it

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needs to go, including all the way up to the Supreme Court.” ECF 164 at 6 (quoting Donald J.

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Trump, Remarks by the President at Make America Great Again Rally (Mar. 15, 2017)). The

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Supreme Court’s final arguments for the current term are scheduled for April 2017, before the

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Ninth Circuit will rule on the Hawai‘i appeal. Supreme Court consideration of the Hawai‘i

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appeal is therefore unlikely before October 2017, with a decision sometime thereafter. A stay

STATES’ RESPONSE TO DEFENDANTS’
MOTION TO STAY PROCEEDINGS

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ATTORNEY GENERAL OF WASHINGTON
800 Fifth Avenue, Suite 2000
Seattle, WA 98104-3188
[phone]

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to await the outcome of that appeal is precisely the sort of “indefinite” and “immoderate” delay

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that the Supreme Court directs against. See Landis, 299 U.S. at 251, 255-56, 259 (vacating the

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stay requested by the federal government “until the validity of [a challenged federal law] has

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been determined by the Supreme Court of the United States” in a related case); Belize Soc.

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Dev. Ltd. v. Gov’t of Belize, 668 F.3d 724, 732 (D.C. Cir. 2012) (citing party’s characterization

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that “indefinite” stays “encompass all possible appeals”).

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The possibility of harm to the States from indefinite delay and lost evidence is

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significant and unmitigated by the Hawai‘i injunction or Defendants’ prediction that a stay

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may be brief. The harm to the States counsels heavily against a stay. See Landis, 299 U.S. at

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255.

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2.

An Indefinite Stay Does Not Benefit Judicial Economy

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Defendants bear the burden to show a benefit to “the orderly course of justice measured

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in terms of the simplifying or complicating of issues, proof, and questions of law which could

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be expected to result from a stay.” CMAX, Inc., 300 F.2d at 268. They fall short.

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Defendants’ primary argument based on judicial economy is that “[t]he Ninth Circuit’s

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decision in Hawaii is likely to provide important guidance to the Court in resolving [discovery]

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disputes.” Stay Motion, ECF 175 at 6. They claim that awaiting the Ninth Circuit’s ruling will

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clarify discovery obligations because the Ninth Circuit might agree with Defendants, based on

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Kleindienst v. Mandel, 408 U.S. 753 (1972), that “Defendants need only demonstrate a

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‘facially legitimate and bona fide reason’ for the Executive’s exclusion of aliens,” making any

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other evidence of intent irrelevant. Stay Motion, ECF 175 at 6. This argument makes no sense

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because the Ninth Circuit has already resolved this issue against Defendants in this case.

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In ruling on Defendants’ prior appeal in this case, the Ninth Circuit explicitly rejected

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application of the Mandel standard to executive policymaking like that at issue here, saying:

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“Such exercises of policymaking authority at the highest levels of the political branches are

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plainly not subject to the Mandel standard.” Washington v. Trump, 847 F.3d 1151, 1162 (9th

STATES’ RESPONSE TO DEFENDANTS’
MOTION TO STAY PROCEEDINGS

7

ATTORNEY GENERAL OF WASHINGTON
800 Fifth Avenue, Suite 2000
Seattle, WA 98104-3188
[phone]

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Cir. 2017). Rather, the Court emphasized, “[i]t is well established that evidence of purpose

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beyond the face of the challenged law may be considered in evaluating Establishment and

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Equal Protection Clause claims.” Id. at 1167; see also McCreary Cty. v. ACLU, 545 U.S. 844,

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862 (2005) (proper evidence of purpose for Establishment Clause claim includes “the historical

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context,” “the specific sequence of events,” and “change of wording from an earlier statute to a

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later one”) (citation omitted).1 Given that the Ninth Circuit already rejected en banc

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reconsideration of these conclusions, there is no plausible scenario in which the Ninth Circuit

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panel might alter these conclusions now.2 Indeed, courts across the country have arrived at the

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same conclusion reached by the Ninth Circuit: the purpose and intent behind the Executive

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Orders is reviewable and relevant.3

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To the extent that Defendants claim that the appeal in Hawai‘i v. Trump may simplify

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other aspects of discovery, such as “the appropriate time frame for any discovery,” the parties’

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“forthcoming privilege disputes,” or “the appropriateness of experts,” Stay Motion, ECF 175 at

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After holding that purpose and intent evidence is relevant, the Supreme Court remanded McCreary for
the parties to engage in discovery. See ACLU v. McCreary, No. 6:99-cv-00507 (E.D. Ky. Jan. 17, 2006), ECF No.
104.
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See Rodriguez v. AT&T Mobility Servs. LLC, 728 F.3d 975, 979 (9th Cir. 2013) (“As a three-judge
panel of this circuit, we are bound by prior panel decisions . . . and can only reexamine them when their
‘reasoning or theory’ of that authority is ‘clearly irreconcilable’ with the reasoning or theory of intervening higher
authority.” (quoting Miller v. Gammie, 335 F.3d 889, 893 (9th Cir. 2003) (en banc)). “‘This is a high standard.’”
Rodriguez, 728 F.3d at 979 (quoting Lair v. Bullock, 697 F.3d 1200, 1207 (9th Cir. 2012)).
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See Sarsour v. Trump, No. 1:17-cv-00120-AJT-IDD, 2017 WL 1113305, at *11 (E.D. Va. Mar. 27,
2017) (“[T]he Court rejects the Defendants’ position that since President Trump has offered a legitimate, rational,
and non-discriminatory purpose stated in EO-2, this Court must confine its analysis of the constitutional validity
of EO-2 to the four corners of the Order.”); Int’l Refugee Assistance Project v. Trump, No. TDC-17-0361, 2017
WL 1018235, at *16 (D. Md. Mar. 16, 2017) (rejecting Mandel as a limit on review of the purpose behind Second
Executive Order in evaluating Establishment Clause claim); Hawai‘i, 2017 WL 1011673, at *12 (D. Haw. Mar.
15, 2017) (rejecting argument that “the [Second] Executive Order’s neutral text is what this Court must rely on to
evaluate purpose”); id., 2017 WL 1167383, *6 (D. Haw. Mar. 29, 2017) (rejecting Mandel as a limit on the
court’s inquiry into purpose because “[n]o binding authority . . . has decreed that Establishment Clause
jurisprudence ends at the Executive’s door”); Aziz v. Trump, No. 1:17-CV-116-LMB-TCB, 2017 WL 580855, at
*8 (E.D. Va. Feb. 13, 2017) (“Moreover, even if Mandel did apply, it requires that the proffered executive reason
be ‘bona fide.’ As the Second and Ninth Circuits have persuasively held, if the proffered ‘facially legitimate’
reason has been given in ‘bad faith,’ it is not ‘bona fide.’ That leaves the Court in the same position as in an
ordinary secular purpose case: determining whether the proffered reason for the EO is the real reason.”) (internal
citations omitted).

STATES’ RESPONSE TO DEFENDANTS’
MOTION TO STAY PROCEEDINGS

8

ATTORNEY GENERAL OF WASHINGTON
800 Fifth Avenue, Suite 2000
Seattle, WA 98104-3188
[phone]

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7, there is no reason to think that is the case. None of these issues are on appeal in Hawai‘i, as

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evidenced by their complete absence from Defendants’ opening brief in that case. See Brief of

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Appellants, Hawai‘i v. Trump, No. 17-5589 (9th Cir. Apr. 7, 2017) (Appellants’ Br. in

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Hawai‘i), ECF 23 at 20-54. This is most glaringly true for the seven of the States’ eight causes

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of action that are not implicated by the Hawai‘i appeal at all. The Ninth Circuit simply has no

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reason to reach any decision on those issues. Defendants’ claims to the contrary are “overstated

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and unpersuasive.” I.K., 681 F. Supp. 2d at 1194.

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Defendants never meaningfully argue that resolution of the Hawai‘i appeal will narrow

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the merits issues this Court will eventually have to resolve, and with good reason—there is no

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reason to think that it will. The Ninth Circuit proceedings in Hawai‘i will resolve a narrow

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issue: “[w]hether the district court abused its discretion in entering a nationwide preliminary

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injunction barring enforcement of Section 2 and 6 of the [Second Executive] Order.”

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Appellants’ Br. in Hawai‘i at 5 (Statement of the Issue). While the decision is likely to provide

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guidance to this Court in ruling on the States’ motion for a TRO against the same provisions of

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the Second Executive Order, a stay of that motion is already in place. ECF 164.

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Defendants suggest in passing that the Ninth Circuit’s decision could help the Court

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resolve Defendants’ anticipated motion to dismiss the Second Amended Complaint. Stay

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Motion, ECF 175 at 6. It will not. There are fundamental differences between the Hawai‘i

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appeal and this case that critically limit the “factual or legal benefit” that can derive from that

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appeal. I.K., 681 F. Supp. 2d at 1197. For example, the preliminary injunction in Hawai‘i

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involves only the Second Executive Order, while the States’ Second Amended Complaint

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challenges both Executive Orders. See Second Am. Compl., ECF 152 ¶ 4. And the Ninth

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Circuit has already determined that Washington has standing to challenge the First Executive

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Order, Washington, 847 F.3d at 1161, a challenge that is not moot and in which the States seek

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STATES’ RESPONSE TO DEFENDANTS’
MOTION TO STAY PROCEEDINGS

9

ATTORNEY GENERAL OF WASHINGTON
800 Fifth Avenue, Suite 2000
Seattle, WA 98104-3188
[phone]

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declaratory and injunctive relief.4 See Lockyer, 398 F.3d at 1112-13 (vacating stay where

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California Attorney General sought “injunctive relief” and not “only damages”). Similarly, the

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Hawai‘i appeal involves solely the Establishment Clause, while the States here present seven

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other claims. Meanwhile, this Court has already rejected Defendants’ request to indefinitely

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stay their obligation to answer or move to dismiss in Ali v. Trump, No. 2:17-cv-00135-JLR

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(W.D. Wash. Apr. 5, 2017), ECF 91 at 4, which challenges the same Executive Orders.

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Defendants will therefore have to file an answer or motion to dismiss in that case by April 14,

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before the Court will have ruled on this motion. Id. Defendants fail to meaningfully explain

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why they are able to file a responsive pleading in that case but unable to in this one.

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Simply put, the Hawai‘i appeal “is unlikely to decide, or to contribute to the decision

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of, the factual and legal issues before the district court” such that it would justify a stay of all

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proceedings in this case. Lockyer, 398 F.3d at 1113. The procedural posture and issues in the

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two cases are different, and Defendants cannot show any plausible danger that continuing the

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present litigation while the Hawai‘i appeal is pending “could result in ‘inconsistent rulings’

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that will need to be ‘disentangle[d].’” Cf. Stay Motion, ECF 175 at 9 (citing Washington, 2017

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WL 1050354, at *5 (W.D. Wash. Mar. 17, 2017)).

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3.

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Due to the “fair possibility” of damage to the States, Defendants face a “heightened

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burden” to obtain a stay and “must make out a clear case of hardship or inequity.” Zillow, Inc.

Defendants Will Not Incur Hardship or Inequity Absent a Stay

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4

Voluntarily “revoking” the First Executive Order did not moot the States’ challenge to it. See, e.g., Ne.
Fla. Chapter of Associated Gen. Contractors of Am. v. City of Jacksonville, 508 U.S. 656, 660-62 (1993)
(concluding controversy was not moot where City “repealed” and “replaced” challenged ordinance, though new
ordinance differed in certain respects from the prior one, because it disadvantaged complainants “in the same
fundamental way”); see also Rosenstiel v. Rodriguez, 101 F.3d 1544, 1548 (8th Cir. 1996) (“The Supreme Court
has held that where a new statute ‘is sufficiently similar to the repealed [statute] that it is permissible to say that
the challenged conduct continues’ the controversy is not mooted by the change . . . .” (alteration in original)
(quoting Ne. Fla. Chapter of Associated Gen. Contractors, 508 U.S. at 662 n.3)); Smith v. Exec. Dir. of Ind. War
Mem’ls Comm’n, 742 F.3d 282, 287 (7th Cir. 2014) (“When a challenged policy is repealed or amended midlawsuit—a ‘recurring problem when injunctive relief is sought’—the case is not moot if a substantially similar
policy has been instituted or is likely to be instituted.” (quoting ADT Sec. Servs., Inc. v. Lisle-Woodridge Fire
Prot. Dist., 724 F.3d 854, 864 (7th Cir. 2013))).

STATES’ RESPONSE TO DEFENDANTS’
MOTION TO STAY PROCEEDINGS

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ATTORNEY GENERAL OF WASHINGTON
800 Fifth Avenue, Suite 2000
Seattle, WA 98104-3188
[phone]

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v. Trulia, Inc., No. 2:12-cv-01549-JLR, 2013 WL 594300, *3 (W.D. Wash. Feb. 15, 2013)

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(quoting Lockyer, 398 F.3d at 1109-11).

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Defendants make no such showing. Defendants claim that they will suffer an

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“enormous burden” if “Plaintiffs are permitted to pursue discovery before the Ninth Circuit

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resolves the Hawaii appeal.” Stay Motion, ECF 175 at 10. This alleged burden stems from the

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fact that, in compiling the Joint Status Report, the States indicated their intent to seek the

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categories of discovery provided by the Federal Rules of Civil Procedure: written discovery,

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document requests, and depositions. Id. Although beginning discovery would mean Defendants

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“must proceed toward trial in the suit,” it is well established that “being required to defend a

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suit, without more, does not constitute a ‘clear case of hardship or inequity.’” Lockyer, 398

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F.3d at 1112 (quoting Landis, 299 U.S. at 255)). As a matter of law, the simple reality that

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litigation requires a responsive pleading and participation in discovery is insufficient to justify

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a stay.

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Defendants’ burden argument is just a restatement of Defendants’ familiar position that

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discovery is unavailable because the States’ challenge must be limited to the four corners of

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the Executive Orders. See Stay Motion, ECF 175 at 10 (questioning the “appropriateness” of

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discovery); Joint Status Report, ECF 177 at 4 (“Defendants do not believe any discovery is

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appropriate in this case”); accord Appellants’ Br. in Hawai‘i at 46 (renewing argument that

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“courts evaluating a presidential policy decision should not second-guess the President’s stated

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purpose by looking beyond the policy’s text and operation”). The Ninth Circuit has already

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rejected this argument. Washington, 847 F.3d at 1167 (“It is well established that evidence of

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purpose beyond the face of the challenged law may be considered in evaluating Establishment

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and Equal Protection Clause claims.”).

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In sum, Defendants’ burdens related to discovery do not overcome the harm to the

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States from the proposed stay. And, given the differences between the preliminary injunction

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STATES’ RESPONSE TO DEFENDANTS’
MOTION TO STAY PROCEEDINGS

11

ATTORNEY GENERAL OF WASHINGTON
800 Fifth Avenue, Suite 2000
Seattle, WA 98104-3188
[phone]

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on appeal and the merits claims pending in this Court, a stay will not benefit the orderly course

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of justice. The Court should deny the request for an indefinite and complete stay.

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C.

Even if a Limited Stay is Granted, Third Party Discovery Should Proceed

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At minimum, the States should be allowed to proceed with third party discovery so that

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relevant non-party records and information are not lost. The Rule 26(f) conference process

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required the parties to discuss the preservation of evidence and acknowledge their duty to

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“preserve potentially relevant information.” Joint Status Report, ECF 177 at 16. But there is no

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similar mechanism by which non-parties can be made to commit to preserve evidence relevant

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to this litigation. Despite the States’ request, Defendants disclaim any role in ensuring

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preservation of evidence by “third parties who were involved in and/or consulted regarding the

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design of the Executive Orders, before and after President Trump took office.” Joint Status

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Report, ECF 177 at 7, 9. Under Defendants’ view, highly probative evidence may be destroyed

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or lost in the ordinary course, including during the stay they seek. Third party discovery is the

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only mechanism available to the States to obtain, and thereby preserve, documents and

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information from non-party witnesses.

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“The proponent of a stay bears the burden of establishing its need.” Clinton, 520 U.S. at

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708. Defendants do not establish any basis to stay third party discovery, or any burden to them

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should the Court allow third party discovery to proceed. “The district court has wide discretion

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in controlling discovery.” Little v. City of Seattle, 863 F.2d 681, 685 (9th Cir. 1988). Because a

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stay of third party discovery would be unfair to the States and would not burden Defendants,

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the Court should allow third party discovery to proceed even if it grants a limited stay of party

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discovery.

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IV.

CONCLUSION

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The Court should deny Defendants’ motion to stay the district court proceedings

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pending resolution of the appeal in Hawai‘i v. Trump. If a limited stay is granted, the States

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respectfully request that they be permitted to conduct third party discovery.

STATES’ RESPONSE TO DEFENDANTS’
MOTION TO STAY PROCEEDINGS

12

ATTORNEY GENERAL OF WASHINGTON
800 Fifth Avenue, Suite 2000
Seattle, WA 98104-3188
[phone]

1

RESPECTFULLY SUBMITTED this 10th day of April 2017.

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ROBERT W. FERGUSON
Washington Attorney General

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s/ Noah G. Purcell
ROBERT W. FERGUSON, WSBA #26004

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NOAH G. PURCELL, WSBA #43492
Solicitor General

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COLLEEN M. MELODY, WSBA #42275
Civil Rights Unit Chief

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ANNE E. EGELER, WSBA #20258
Deputy Solicitor General

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MARSHA CHIEN, WSBA #47020
PATRICIO A. MARQUEZ, WSBA #47693
Assistant Attorneys General

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Office of the Attorney General
800 Fifth Avenue, Suite 2000
Seattle, WA 98104
[phone]
[e-mail]

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STATES’ RESPONSE TO DEFENDANTS’
MOTION TO STAY PROCEEDINGS

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ATTORNEY GENERAL OF WASHINGTON
800 Fifth Avenue, Suite 2000
Seattle, WA 98104-3188
[phone]

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CERTIFICATE OF SERVICE

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I hereby certify that the foregoing document was electronically filed with the United

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States District Court using the CM/ECF system. I certify that all participants in the case are

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registered CM/ECF users and that service will be accomplished by the appellate CM/ECF

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system.

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Dated: April 10, 2017

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/s/ Noah G. Purcell
NOAH G. PURCELL, WSBA 43492

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STATES’ RESPONSE TO DEFENDANTS’
MOTION TO STAY PROCEEDINGS

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ATTORNEY GENERAL OF WASHINGTON
800 Fifth Avenue, Suite 2000
Seattle, WA 98104-3188
[phone]