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

Filing 184

REPLY, filed by Defendants John Kelly, Rex Tillerson, Donald J. Trump, U.S. Department of Homeland Security, United States of America, TO RESPONSE to 175 MOTION to Stay District Court Proceedings Pending Resolution of Appeal in Hawaii v. Trump (Bennett, Michelle)

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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.,
No. 2:17-cv-00141 (JLR)

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Plaintiffs,
v.

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DONALD TRUMP, in his official capacity as
President of the United States; U.S.
DEPARTMENT OF HOMELAND
SECURITY; JOHN F. KELLY, in his official
capacity as Secretary of the Department of
Homeland Security; REX W. TILLERSON, in
his official capacity as Secretary of State; and
the UNITED STATES OF AMERICA,

REPLY IN SUPPORT OF
DEFENDANTS’ MOTION TO STAY
DISTRICT COURT PROCEEDINGS
PENDING RESOLUTION OF
APPEAL IN HAWAII V. TRUMP

Noted For Consideration:
April 14, 2017

Defendants.

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REPLY IN SUPPORT OF DEFENDANTS’ MOTION TO STAY
DISTRICT COURT PROCEEDINGS PENDING RESOLUTION
OF APPEAL IN HAWAII V. TRUMP
State of Washington, et al. v. Trump, et al., No. 2:17-cv-00141 (JLR)

U.S. DEPARTMENT OF JUSTICE
Civil Division, Federal Programs Branch
20 Massachusetts Ave., NW
Washington, DC 20530
Tel: [phone]

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The district court in Hawaii v. Trump recently stayed all proceedings pending final
disposition of the government’s appeal of the preliminary injunction entered in that case. See
No. CV 17-00050, ECF No. 279 (D. Haw. Apr. 3, 2017). This Court should do the same, as a

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stay is most “efficient for [the Court’s] own docket and the fairest course for the parties[.]”

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Leyva v. Certified Grocers of Cal., Ltd., 593 F.2d 857, 863 (9th Cir. 1979). Defendants

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demonstrated in their opening brief that resolution of the Hawaii appeal is likely to have

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“significant relevance to—and potentially control”—the Court’s analysis of forthcoming issues

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in this case. Wash. v. Trump, 2017 WL 1050354, at *5 (W.D. Wash. Mar. 17, 2017).

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Plaintiffs’ efforts to diminish the relevance of Hawaii serve only to highlight why further
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guidance from the Ninth Circuit is necessary before this case proceeds.
Plaintiffs contend that “the Ninth Circuit has already resolved . . . against Defendants”

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the issue of whether internal government documents regarding the intent, design, issuance, and

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effects of the executive orders are relevant to Plaintiffs’ claims. Opp’n at 7, ECF No. 180. But

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this assertion just begs the question, because this exact issue is now before the Ninth Circuit in

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Hawaii. In the Hawaii appeal, Defendants argue that the district court (like Plaintiffs here)
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“misread [the Ninth Circuit’s] stay ruling in Washington.” Br. of Appellants, No. 17-5589,

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ECF No. 23 at 18 (9th Cir. Apr. 7, 2017). The Ninth Circuit “held only that [Kleindienst v.

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Mandel, 408 U.S. 753 (1972)] does not render [Executive decisions to deny entry to aliens]

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unreviewable;” Mandel thus still “supplies the substantive standard for evaluating a challenge

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by a U.S. citizen who claims his own constitutional rights are violated by the exercise of

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Congress’s or the Executive’s authority to deny entry to aliens outside the United States.” Id.

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at 18, 35. Plaintiffs obviously disagree about the applicability of Mandel, but the important

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point for purposes of this stay motion is that resolution of the Hawaii appeal is likely to provide

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REPLY IN SUPPORT OF DEFENDANTS’ MOTION TO STAY
DISTRICT COURT PROCEEDINGS PENDING RESOLUTION
OF APPEAL IN HAWAII V. TRUMP - 1
State of Washington, et al. v. Trump, et al., No. 2:17-cv-00141 (JLR)

U.S. DEPARTMENT OF JUSTICE
Civil Division, Federal Programs Branch
20 Massachusetts Ave., NW
Washington, DC 20530
Tel: [phone]

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significant guidance on this issue. Indeed, as this Court has recognized, the New Executive

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Order is “significant[ly] differen[t]” than the Revoked Executive Order, such that the Ninth

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Circuit’s preliminary ruling as to the Revoked Order “does not preordain how the Ninth Circuit

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will rule in [Hawaii] with respect to [the New Order].” Wash., 2017 WL 1050354, at *5.1
Furthermore, even if the Ninth Circuit were to determine in Hawaii that,

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notwithstanding Mandel, courts may look beyond the four corners of the New Order, resolution

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of the Hawaii appeal is likely to provide guidance regarding the scope of any such review. As

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explained in Defendants’ opening brief, the Ninth Circuit will likely address whether review is

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limited to openly available data that is accessible to an objective observer or instead extends to
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internal government documents, as well as whether statements or records that predate President

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Trump’s assumption of office are relevant. Plaintiffs point out that the Hawaii appeal will not

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require the Ninth Circuit to “resolve . . . discovery objections.” Opp’n at 1. That, of course,

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oversimplifies the issue. The Ninth Circuit will not adjudicate discovery issues, but it will

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decide legal questions that are likely to impact this Court’s resolution of forthcoming discovery

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disputes by clarifying “the applicable law or the relevant landscape of facts that need to be
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developed.” Wash., 2017 WL 1050354, at *5. And, contrary to Plaintiffs’ assertion, see Opp’n

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at 9, these legal questions have been teed up in the Hawaii appeal, see, e.g., Br. of Appellants at

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45-53 (arguing statements made before President Trump assumed office are not relevant); id. at

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47 (describing discovery sought in this case and urging Ninth Circuit to “reject a rule that

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[would] invite[] such probing”); id. at 47-49 (contending courts’ analysis must be based on

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Plaintiffs also maintain that the Ninth Circuit’s stay ruling in Washington establishes that “evidence of purpose
beyond the face of the [executive orders] may be considered in evaluating Establishment and Equal Protection
Clause claims.” Opp’n at 8, 11. But far from “holding” anything as to those claims, id. at 1, the Ninth Circuit
explicitly “reserve[d] consideration” of them, Wash. v. Trump, 847 F.3d 1151, 1168 (9th Cir. 2017).
REPLY IN SUPPORT OF DEFENDANTS’ MOTION TO STAY
DISTRICT COURT PROCEEDINGS PENDING RESOLUTION
OF APPEAL IN HAWAII V. TRUMP - 2
State of Washington, et al. v. Trump, et al., No. 2:17-cv-00141 (JLR)

U.S. DEPARTMENT OF JUSTICE
Civil Division, Federal Programs Branch
20 Massachusetts Ave., NW
Washington, DC 20530
Tel: [phone]

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official acts and openly available data); id. at 37-38 (arguing courts cannot second-guess the

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President’s national security judgments, which would render experts unnecessary here).

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Plaintiffs also contend that resolution of the Hawaii appeal will be of limited relevance

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because Plaintiffs raise “seven other claims” in addition to the Establishment Clause claim

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raised in the Hawaii appeal. Opp’n at 10. This assertion, however, ignores the fact that

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Defendants contend the Mandel standard applies to all of Plaintiffs’ constitutional claims. See,

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e.g., Mandel, 408 U.S. at 760 (First Amendment right to “hear[] and meet[]” with alien”);

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Fiallo v. Bell, 430 U.S. 787, 791 (1977) (applying Mandel to claims that statute discriminated

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based of sex and illegitimacy in violation of the Equal Protection and Due Process Clauses);
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Rajah v. Mukasey, 544 F.3d 427, 438 (2d Cir. 2008) (applying Mandel to equal protection

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claim alleging discrimination based on “religion, ethnicity, gender, and race”). Thus,

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resolution of the Hawaii appeal could “narrow the merits issues this Court will eventually have

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to resolve” on other claims, Opp’n at 9, in addition to affecting the scope of discovery.

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Plaintiffs’ argument also overlooks the fact that the Hawaii appeal challenges the

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State’s standing to sue. Plaintiffs note that, in Washington, the Ninth Circuit determined that
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Plaintiffs had made a sufficient showing of standing to challenge the Revoked Order at a

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preliminary stage. Opp’n at 9. But that decision hinged on the Revoked Order’s application to

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identified aliens with substantial connections to the United States. See Wash., 847 F.3d at

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1159-60. The New Order is narrower in scope. Thus, in the Hawaii appeal, Defendants have

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argued that Hawaii lacks Article III and prudential standing because, respectively, it cannot

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identify aliens abroad with non-speculative injuries and neither Hawaii nor such aliens have

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any constitutional rights to the alien’s entry. See Br. of Appellants at 22-31. The Ninth

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Circuit’s decision on these threshold questions will undoubtedly impact this Court’s resolution

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REPLY IN SUPPORT OF DEFENDANTS’ MOTION TO STAY
DISTRICT COURT PROCEEDINGS PENDING RESOLUTION
OF APPEAL IN HAWAII V. TRUMP - 3
State of Washington, et al. v. Trump, et al., No. 2:17-cv-00141 (JLR)

U.S. DEPARTMENT OF JUSTICE
Civil Division, Federal Programs Branch
20 Massachusetts Ave., NW
Washington, DC 20530
Tel: [phone]

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of standing issues in this case, which is brought by six states alleging harms similar to

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Hawaii’s. In addition, Defendants note that the Hawaii plaintiffs filed a Petition for Initial

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Hearing En Banc. See No. 17-15589, ECF No. 52. If the Ninth Circuit grants that request, the

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stay ruling in Washington will not only be distinguishable, but non-controlling as well.2
In any event, resolution of the Hawaii appeal need not “settle every question of . . . law”

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to justify a stay. Landis v. N. Am. Co., 299 U.S. 248, 256 (1936). It is sufficient that the

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Hawaii appeal is likely to “settle many” issues and “simplify” others, id., such that a stay will

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facilitate the orderly course of justice and conserve resources for both the Court and the parties.

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See Fairview Hosp. v. Leavitt, 2007 WL 1521233, at *3 n.7 (D.D.C. May 22, 2007) (granting
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stay pending resolution of another matter that would likely settle or simplify issues even though

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it “would not foreclose the necessity of litigation in [the stayed] case”); In re Literary Works in

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Elec. Databases Copyright Litig., 2001 WL 204212, at *3 (S.D.N.Y. Mar. 1, 2001) (same).

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Indeed, this Court stayed consideration of Plaintiffs’ TRO motion notwithstanding the fact that

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the motion asserted claims under the INA, Equal Protection Clause, and Due Process Clause—

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in addition to an Establishment Clause claim. See ECF No. 148.
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Despite the benefits of awaiting a decision from the Ninth Circuit that “may resolve the

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primary issues,” Wash., 2017 WL 1050354, at *5, Plaintiffs urge the Court to deny a stay

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because of a purported risk that “evidence . . . may be lost,” Opp’n at 1. In particular, Plaintiffs

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assert that third parties may destroy potentially relevant evidence during the stay. See id. at 4-

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5. But this is pure speculation and Plaintiffs, in any event, can take steps to eliminate this

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purported risk. Although Defendants have no obligation or ability to ensure that third parties

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Defendants have not argued that they are “unable” to file a motion to dismiss, Opp’n at 10, but rather, that doing
so now would be inefficient and potentially “waste[]” “considerable . . . resources” of the parties and the Court if
the Ninth Circuit’s decision in Hawaii “changes the applicable law.” Wash., 2017 WL 1050354, at *5.
REPLY IN SUPPORT OF DEFENDANTS’ MOTION TO STAY
DISTRICT COURT PROCEEDINGS PENDING RESOLUTION
OF APPEAL IN HAWAII V. TRUMP - 4
State of Washington, et al. v. Trump, et al., No. 2:17-cv-00141 (JLR)

U.S. DEPARTMENT OF JUSTICE
Civil Division, Federal Programs Branch
20 Massachusetts Ave., NW
Washington, DC 20530
Tel: [phone]

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preserve information that is outside of Defendants’ possession, custody, or control, see, e.g.,

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Quest Integrity USA v. A. Hak Indus. Servs., 2016 WL 4533062, at *4 (W.D. Wash. Mar. 23,

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2016), nothing prevents Plaintiffs themselves from sending preservation letters to non-parties to

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notify them of the litigation and request that they preserve any potentially relevant evidence.
Regardless, Plaintiffs’ unsupported speculation about a potential loss of evidence does

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not outweigh “the hardship [and] inequity” Defendants would suffer “in being required to go

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forward” without guidance from the Ninth Circuit. CMAX, Inc. v. Hall, 300 F.2d 265, 268 (9th

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Cir. 1962). Contrary to Plaintiffs’ assertion, the burden on Defendants is not “merely the

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burden of defending” a lawsuit. Opp’n at 3. Plaintiffs seek extraordinarily broad, burdensome,
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and intrusive discovery in an area where the President’s authority is at its apex. See Joint

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Status Report & Discovery Plan, ECF No. 177.3 And Plaintiffs’ anticipated discovery will

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raise a multitude of discovery disputes. See, e.g., id. at 5-7 (relevance objections); id. at 7-8

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(privilege issues); id. at 11-12 (objections to depositions of high-ranking officials and discovery

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of White House). Defendants should not be required to respond to such resource intensive

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discovery without the benefit of guidance from the Ninth Circuit that is likely to inform the
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appropriateness, scope, and necessity of the discovery Plaintiffs seek. Rather, “the high respect

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that is owed to the office of the Chief Executive,” which is to “inform . . . the timing and scope

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of discovery,” warrants a stay pending resolution of the Hawaii appeal. Cheney v. U.S. District

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Court, 542 U.S. 367, 385 (2004); see Clinton v. Jones, 520 U.S. 681, 707 (1997) (The power to

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stay proceedings applies “especially in cases of extraordinary public moment[.]”).

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In addition to the subjects and time frames described in Defendants’ opening brief, Plaintiffs indicated in their
initial disclosures that they believe the following high-level government officials are likely to have discoverable
information: President Trump, Secretary of Homeland Security Kelly, Secretary of State Tillerson, Attorney
General Sessions, former National Security Advisor Michael Flynn, White House Counsel Donald McGahn,
Presidential advisors Stephen Miller and Stephen Bannon, and White House Press Secretary Sean Spicer.

REPLY IN SUPPORT OF DEFENDANTS’ MOTION TO STAY
DISTRICT COURT PROCEEDINGS PENDING RESOLUTION
OF APPEAL IN HAWAII V. TRUMP - 5
State of Washington, et al. v. Trump, et al., No. 2:17-cv-00141 (JLR)

U.S. DEPARTMENT OF JUSTICE
Civil Division, Federal Programs Branch
20 Massachusetts Ave., NW
Washington, DC 20530
Tel: [phone]

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Plaintiffs suggest that the burden on Defendants and the Court can be eliminated by
tailoring the stay to allow only third-party discovery. See Opp’n at 12. But third-party
discovery likely will raise the same relevance issues as discovery against Defendants, meaning

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the Court will derive a similar benefit from awaiting the Ninth Circuit’s guidance before

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resolving these disputes as well. Indeed, resolution of the Hawaii appeal could eliminate any

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need for the Court to address third-party (or other) discovery disputes at all. In addition,

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depending on the time period for which third-party discovery is sought (e.g., during the

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presidential campaign, the transition period, and/or post-Inauguration) and the individuals from

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whom it is sought (e.g., former government employees and/or transition team members), third11
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party discovery could raise complex privilege and other issues in which Defendants would have

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a strong interest. Thus, contrary to Plaintiffs’ claim, see id., it is likely that third-party

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discovery would burden Defendants. And, of course, it will undoubtedly burden the Court.

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Finally, Defendants do not seek an “indefinite” stay. Id. at 1. Defendants request a stay
pending final disposition of appellate proceedings concerning the preliminary injunction in

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Hawaii, which is the same, reasonable stay entered by the district court in Hawaii itself. See
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No. CV 17-00050, ECF No. 279. Considering that the Ninth Circuit has ordered expedited

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briefing and set oral argument for May 15, 2017, see Hawaii, No. 17-15589, ECF Nos. 14, 18,

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there is no reason to believe the stay will be of inordinate duration. Plaintiffs’ conjecture about

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a possible petition for certiorari and further speculation about when any Supreme Court review

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might take place, see Opp’n at 6, does not justify denying a stay. If the Court is concerned

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about the duration of any stay, it could require a status report once the Ninth Circuit has issued

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its decision to reevaluate the circumstances at that time. For these reasons, the Court should

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stay district court proceedings in this case pending resolution of the Hawaii appeal.

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REPLY IN SUPPORT OF DEFENDANTS’ MOTION TO STAY
DISTRICT COURT PROCEEDINGS PENDING RESOLUTION
OF APPEAL IN HAWAII V. TRUMP - 6
State of Washington, et al. v. Trump, et al., No. 2:17-cv-00141 (JLR)

U.S. DEPARTMENT OF JUSTICE
Civil Division, Federal Programs Branch
20 Massachusetts Ave., NW
Washington, DC 20530
Tel: [phone]

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DATED: April 14, 2017

Respectfully submitted,
CHAD A. READLER
Acting Assistant Attorney General
JENNIFER D. RICKETTS
Director, Federal Programs Branch
JOHN R. TYLER
Assistant Director, Federal Programs Branch

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/s/ Michelle R. Bennett
MICHELLE R. BENNETT
DANIEL SCHWEI
ARJUN GARG
BRAD P. ROSENBERG
Trial Attorneys
U.S. Department of Justice
Civil Division, Federal Programs Branch
20 Massachusetts Avenue, NW
Washington, DC 20530
Tel: [phone]
Fax: [phone]
Email: [e-mail]
[e-mail]
Attorneys for Defendants

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REPLY IN SUPPORT OF DEFENDANTS’ MOTION TO STAY
DISTRICT COURT PROCEEDINGS PENDING RESOLUTION
OF APPEAL IN HAWAII V. TRUMP - 7
State of Washington, et al. v. Trump, et al., No. 2:17-cv-00141 (JLR)

U.S. DEPARTMENT OF JUSTICE
Civil Division, Federal Programs Branch
20 Massachusetts Ave., NW
Washington, DC 20530
Tel: [phone]

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CERTIFICATE OF SERVICE

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I hereby certify that on April 14, 2017, I electronically filed the foregoing Reply in

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Support of Defendants’ Motion to Stay District Court Proceedings Pending Resolution of

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Appeal in Hawaii v. Trump.

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/s/ Michelle R. Bennett
MICHELLE R. BENNETT

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REPLY IN SUPPORT OF DEFENDANTS’ MOTION TO STAY
DISTRICT COURT PROCEEDINGS PENDING RESOLUTION
OF APPEAL IN HAWAII V. TRUMP
State of Washington, et al. v. Trump, et al., No. 2:17-cv-00141 (JLR)

U.S. DEPARTMENT OF JUSTICE
Civil Division, Federal Programs Branch
20 Massachusetts Ave., NW
Washington, DC 20530
Tel: [phone]