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

Filing 195

MOTION for Temporary Restraining Order , filed by Plaintiffs Commonwealth of Massachusetts, State of California, State of Maryland, State of New York, State of Washington, Intervenor Plaintiff State of Oregon. Oral Argument Requested. (Attachments: # 1 Exhibit A, # 2 Proposed Order) Noting Date 10/16/2017, (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; STATE
10 OF CALIFORNIA; STATE OF
MARYLAND; COMMONWEALTH
11 OF MASSACHUSETTS; STATE OF
NEW YORK; and STATE OF
12 OREGON,
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Plaintiffs,

CIVIL ACTION NO. 2:17-cv-00141-JLR

[PROPOSED] ORDER GRANTING
MOTION FOR TEMPORARY
RESTRAINING ORDER

v.

15 DONALD TRUMP, in his official
capacity as President of the United
16 States; U.S. DEPARTMENT OF
HOMELAND SECURITY; ELAINE
17 C. DUKE, in her official capacity as
Acting Secretary of the Department of
18 Homeland Security; REX
TILLERSON, in his official capacity
19 as Secretary of State; and the UNITED
STATES OF AMERICA,
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Defendants.
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[PROPOSED] ORDER GRANTING MOTION FOR
TEMPORARY RESTRAINING ORDER

Attorney General of Washington
800 Fifth Avenue, Suite 2000
Seattle, WA 98104-3188
[phone]

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INTRODUCTION

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This matter comes before the Court on the emergency motion for a Temporary

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Restraining Order filed by the States of Washington, California, Maryland, and Oregon and the

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Commonwealth of Massachusetts (“States”). Having considered the motion, the evidence cited

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therein, Defendants’ response, and the argument of the parties, if any, the Court GRANTS the

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States’ emergency motion for a 14-day Temporary Restraining Order effective at 12:01am on

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October 18, 2017. The Court enters the following findings of fact and conclusions of law.

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FACTUAL AND PROCEDURAL HISTORY

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The State of Washington first filed this lawsuit challenging President Trump’s issuance

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of Executive Order No. 13769 (“EO1”) on January 30, 2017. ECF 1. On February 3, 2017, this

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Court granted the State’s motion for a temporary restraining order (“TRO”) and enjoined

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enforcement of several provisions of EO1. ECF 52. The Ninth Circuit denied Defendants’

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emergency motion for a stay of the injunction. Washington v. Trump, 847 F.3d 1151 (9th Cir.

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2017). Defendants chose not to seek review by the Supreme Court.

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On March 6, 2017, President Trump issued Executive Order No. 13780 (“EO2”), which

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revoked EO1. Two days later, Defendants withdrew their Ninth Circuit appeal in this case.

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ECF 111. Following the issuance of EO2, Washington, California, Maryland, Massachusetts,

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New York, and Oregon (“States”)1 filed an amended complaint challenging EO2. ECF 152.

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The States moved for a TRO to enjoin sections 2(c) and 6(a) of EO2. ECF 148.

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On March 15, 2017, in a separate suit against EO2, the district court in Hawai’i

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enjoined Sections 2 and 6 nationwide. Hawai‘i v. Trump, 241 F. Supp. 3d 1119, 1140 (D. Haw.

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2017). The next day, in a third lawsuit, the district court in Maryland issued a nationwide

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injunction against Section 2(c). Int’l Refugee Assistance Project (“IRAP”) v. Trump, 241 F.

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Supp. 3d 539, 566 (D. Md. 2017). In light of the Hawai’i ruling, this Court stayed

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The Court had previously granted Oregon’s motion to intervene on March 9, 2017.
ECF 112.

[PROPOSED] ORDER GRANTING MOTION FOR
TEMPORARY RESTRAINING ORDER

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Attorney General of Washington
800 Fifth Avenue, Suite 2000
Seattle, WA 98104-3188
[phone]

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consideration of the States’ motion for a TRO. ECF 164. The Court then granted Defendants’

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request for a stay of this case pending the Ninth Circuit’s resolution of the Hawai‘i appeal.

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ECF 175, 189.

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The Ninth Circuit issued its opinion in Hawai‘i on June 12, 2017, largely affirming the

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injunction. Hawai‘i v. Trump, 859 F.3d 741 (9th Cir. 2017) (per curiam). Defendants

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petitioned the Supreme Court for a writ of certiorari, applied for a stay pending appeal, and

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requested that the Hawai‘i case be consolidated with IRAP, where the Fourth Circuit had

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largely affirmed the injunction entered by the district court. 857 F.3d 554 (4th Cir. 2017) (en

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banc). The Supreme Court granted certiorari, granted the stay application “to the extent the

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injunctions prevent enforcement of § 2(c) with respect to foreign nationals who lack any bona

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fide relationship with a person or entity in the United States,” consolidated the two cases, and

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set the case for argument. Trump v. IRAP, 137 S. Ct. at 2087 (2017). The parties in this case

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agreed that the stay should remain in place pending the outcome of the Supreme Court

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proceedings, but that any party could move to lift the stay if circumstances changed. ECF 192.

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On June 28, 2017, Defendants began to enforce the non-enjoined parts of EO2 and

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published guidance interpreting the Supreme Court’s definition of “bona fide relationship” to

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exclude many family members and most refugees. See Hawai‘i v. Trump, --- F. Supp. 3d ----,

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No. CV 17-00050 DKW-KSC, 2017 WL 2989048, at *5-6 (D. Haw. July 13, 2017)

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(summarizing guidance). Plaintiffs in the Hawai‘i litigation successfully challenged

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Defendants’ interpretation of “bona fide relationship,” and the Ninth Circuit upheld the lower

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court’s injunction preventing Defendants from enforcing EO2 against grandparents and other

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family members or refugees who have formal assurances from resettlement agencies or are in

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the U.S. Refugee Admissions Program. Hawai‘i v. Trump, --- F.3d ----, No. 17-16426, 2017

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WL 3911055, at *14 (9th Cir. Sep. 7, 2017). The Supreme Court stayed the Ninth Circuit

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mandate with respect to refugees covered by a formal assurance. Trump v. Hawai‘i, --- S. Ct.

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----, Nos. 17A275, 16-1540, 2017 WL 4014838, at *1 (U.S. Sept. 12, 2017).

[PROPOSED] ORDER GRANTING MOTION FOR
TEMPORARY RESTRAINING ORDER

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Attorney General of Washington
800 Fifth Avenue, Suite 2000
Seattle, WA 98104-3188
[phone]

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On September 24, EO2 expired, and President Trump issued EO3, a Presidential

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Proclamation titled, “Enhancing Vetting Capabilities and Processes for Detecting Attempted

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Entry into the United States by Terrorists or Other Public-Safety Threats,” 82 Fed. Reg. 45,161

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(Sept. 27, 2017). EO3 again suspends immigration by hundreds of millions of people from six

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Muslim-majority countries, and applies “additional scrutiny” to immigrants from Iraq, another

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Muslim-majority country. EO3 §§ 1(g), 2(a)–(c), (e), (g)-(h).2 The order also suspends large

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classes of non-immigrants like students, businesspeople, and tourists. EO3 §§ 2(a)-(h). The

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non-immigrant restrictions vary by country and by type of visa. The new entry restrictions and

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limitations go into effect at 12:01 a.m. EST on October 18, 2017. EO3 § 7(b).

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Following the issuance of EO3, the Supreme Court removed the Hawai‘i and IRAP

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cases from the oral argument calendar and directed the parties to file letter briefs addressing

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whether, or to what extent, EO3 rendered the cases moot. Trump v. Hawai‘i, --- S. Ct. ----, No.

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16-1540, 2017 WL 2734554, at *1 (U.S. Sept. 25, 2017). On October 10, the Supreme Court

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dismissed IRAP as moot and directed the Fourth Circuit to vacate its opinion, finding that there

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was no longer a live controversy because the only section of EO2 enjoined in IRAP had

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“expired by its own terms on September 24, 2017.” Trump v. IRAP, --- S. Ct. ----, No. 16-1436,

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2017 WL 4518553 (U.S. Oct. 10, 2017). The Court “express[ed] no view on the merits.” Id.

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FINDINGS OF FACT & CONCLUSIONS OF LAW

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The Court finds it has jurisdiction over Defendants and the subject matter of this

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lawsuit. The States notified Defendants and substantially complied with the requirements of

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Federal Rule of Civil Procedure 65(b). The Court deems no security bond is required under

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Federal Rule of Civil Procedure 65(c).

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To obtain a temporary restraining order, the States must establish standing, as well as 1)

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a likelihood of success on the merits; 2) that irreparable harm is likely in the absence of

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The order also suspends immigration from North Korea, EO3 § 2(d)(ii), and certain
Venezuelan non-immigrants connected with specific government officials, id. § 2(f)(ii).

[PROPOSED] ORDER GRANTING MOTION FOR
TEMPORARY RESTRAINING ORDER

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Attorney General of Washington
800 Fifth Avenue, Suite 2000
Seattle, WA 98104-3188
[phone]

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preliminary relief; 3) that the balance of equities tips in the States’ favor; and 4) that an

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injunction is in the public interest. Winter v. Nat’l Res. Def. Council, Inc., 555 U.S. 7, 20

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(2008).

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The Court finds that the States have satisfied these standards and that the Court should
issue a Temporary Restraining Order.

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The States have also shown that they are likely to succeed on the merits of the claims

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that would entitle them to relief. Specifically, the States have shown it likely that Sections 1(g)

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and 2 of EO3 violates the Immigration and Nationality Act’s prohibition against national origin

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discrimination, that Defendants exceeded its authority to suspend entry under 8 U.S.C.

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§ 1182(f), and that EO3 likely violates the Establishment Clause and the constitutional

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guarantee of Equal Protection.

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The States have also shown that they are likely to suffer irreparable harm in the absence

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of preliminary relief. Sections 1(g) and 2 of EO3 directly impacts state public universities and

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other institutions of higher learning, the provision of health care, state tax revenue, and state

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businesses. Sections 1(g) and 2 also impact state residents, including residents who seek to

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reunify with family members. Sections 1(g) and 2 also harm the States’ interest in being free

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from efforts by the federal government to express a religious preference. These harms are

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significant and ongoing.

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The Court concludes the balance of the equities favor the States, and that it is in the

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public interest to enjoin implementation of EO3 until the States’ motion for a preliminary

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injunction motion may be adjudicated.

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The Court concludes that a 14-day, time-limited Temporary Restraining Order against

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implementation of the operative sections of EO3 is warranted. The Court also issues a briefing

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schedule governing the States’ motion for a preliminary injunction.

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[PROPOSED] ORDER GRANTING MOTION FOR
TEMPORARY RESTRAINING ORDER

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Attorney General of Washington
800 Fifth Avenue, Suite 2000
Seattle, WA 98104-3188
[phone]

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TEMPORARY RESTRAINING ORDER

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Accordingly, it is hereby ORDERED that Defendants 3 and their officers, agents,

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servants, employees, attorneys, and all members and persons acting in concert or participation

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with them, from the date of this Order, are:

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1. Enjoined and restrained from enforcing Sections 1(g) and 2 of EO3, which suspend

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or restrict the entry of immigrants and non-immigrants based on national origin.

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Pursuant to Federal Rule of Civil Procedure 65(b)(2), this Temporary Restraining Order

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will expire 14 days from the date of its entry. As such, the Court hereby orders the following

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briefing schedule for the States’ motion for a preliminary injunction:

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Plaintiffs shall file their motion for a preliminary injunction no later than 11:59pm PDT

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on Friday, October 20, 2017;

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Defendants shall file their response no later than 11:59pm PDT on Wednesday, October

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25, 2017;

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Plaintiffs shall file their reply in support of their motion no later than 11:50pm PDT on

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Friday, October 27, 2017.

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A hearing on Plaintiffs motion for preliminary injunction is set for Monday, October

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30, 2017, at 10:00 am PDT.

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IT IS SO ORDERED.

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DATED this _____ day of October, 2017.

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____________________________________

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UNITED STATES DISTRICT JUDGE

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This injunction does not run against the President.

[PROPOSED] ORDER GRANTING MOTION FOR
TEMPORARY RESTRAINING ORDER

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Attorney General of Washington
800 Fifth Avenue, Suite 2000
Seattle, WA 98104-3188
[phone]

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Presented by:

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_/s/ Noah G. Purcell________________
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
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
[phone]
[e-mail]
[e-mail]

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[PROPOSED] ORDER GRANTING MOTION FOR
TEMPORARY RESTRAINING ORDER

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Attorney General of Washington
800 Fifth Avenue, Suite 2000
Seattle, WA 98104-3188
[phone]