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

Filing 196

NOTICE of Intent to Oppose Plaintiffs' Motion for Temporary Restraining Order ; filed by Defendants John Kelly, Rex Tillerson, Donald J. Trump, U.S. Department of Homeland Security, United States of America. (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.,

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

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Plaintiffs,

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v.

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DONALD TRUMP, in his official capacity as
President of the United States, et al.,

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DEFENDANTS’ NOTICE OF INTENT
TO OPPOSE PLAINTIFFS’ MOTION
FOR TEMPORARY RESTRAINING
ORDER

Defendants.
Noted For Consideration:
October 16, 2017

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On October 11, 2017, Plaintiffs filed a Motion to Lift Stay of Proceedings, ECF No.
193; a Motion for Leave to File Third Amended Complaint, ECF No. 194; and a Motion for
Temporary Restraining Order, ECF No. 195 (“TRO Motion”). Plaintiffs seek to lift the stay
currently in effect in this case so that they can seek a temporary restraining order against

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enforcement of the Proclamation issued by the President on September 24, 2017. See

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Proclamation No. 9645, 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).

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Defendants do not believe their time to respond to Plaintiffs’ TRO Motion begins to run
unless and until the Court lifts the stay of proceedings that is currently in place.1 In an

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Defendants have not opposed Plaintiffs’ motion to lift the stay.
DEFENDANTS’ NOTICE OF INTENT TO OPPOSE
PLAINTIFFS’ MOTION FOR TEMPORARY
RESTRAINING ORDER
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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abundance of caution, however, Defendants are filing this notice, pursuant to Local Rule
65(b)(5), to indicate that Defendants do intend to oppose Plaintiffs’ TRO Motion once the stay
is lifted.
Plaintiffs have proposed that Defendants’ opposition to the TRO Motion should be due

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by 12:00 noon Pacific Daylight Time (PDT) on Sunday, October 15, 2017. Plaintiffs have

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further proposed that the Court schedule a hearing on the TRO Motion for 1:00 p.m. PDT on

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October 16, 2017—before the Proclamation goes into effect on October 18. Defendants do not

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believe this proposed schedule is reasonable.

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It is not necessary or appropriate for the Court to decide Plaintiffs’ TRO Motion before

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October 18, because there will be no irreparable injury to Plaintiffs from a brief delay in entry

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from the Proclamation while the issues in their motion are adjudicated on a reasonable briefing

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schedule. Defendants believe a reasonable schedule would provide Defendants with 14 days

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after the stay is lifted to file their opposition; and Plaintiffs could file a reply 7 days thereafter.

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Any less time for Defendants would be prejudicial, as Plaintiffs have created any emergency by

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using up more than 70% of the delay in the Proclamation’s effective date before filing their

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TRO Motion. Plaintiffs waited 17 days after the Proclamation was issued to file their motion,

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despite knowing the Proclamation would take effect after 23 days. Defendants should not be

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disadvantaged—nor the Court burdened—by Plaintiffs’ delay.

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If the Court is nevertheless inclined to rule on Plaintiffs’ TRO Motion by October 18,

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then Defendants respectfully request that they be given until 9:00 a.m. PDT on Monday,

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October 16, 2017 to file their opposition. This deadline is less than two-and-a-half business

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days after Plaintiffs filed their TRO Motion (and the voluminous exhibits attached to their
proposed third amended complaint). In addition, this deadline would not require Defendants to
file a brief on a Sunday (as Plaintiffs propose in their schedule). Defendants also note that a
preliminary injunction hearing in another challenge to the Proclamation is already scheduled
for the afternoon that Plaintiffs propose for a hearing in this case. Specifically, in International
Refugee Assistance Project v. Trump, No. 8:17-cv-00361-TDC (D. Md.), the plaintiffs moved
for a preliminary injunction on October 6, and the district court has scheduled a hearing for
DEFENDANTS’ NOTICE OF INTENT TO OPPOSE
PLAINTIFFS’ MOTION FOR TEMPORARY
RESTRAINING ORDER - 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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2:00 p.m. Eastern Daylight Time on October 16, 2017. Therefore, if the Court decides to
schedule a hearing on Plaintiffs’ TRO Motion, Defendants respectfully request that it not be
scheduled on October 16. The District Court for the District of Hawaii has indicated that it
intends to rule on the plaintiffs’ TRO motion in that case without a hearing. See Hawaii v.

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Trump, No. 17-cv-00050-DKW-KSC, ECF No. 366 (D. Haw. Oct. 6, 2017). And, in a fourth

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case challenging the Proclamation, Pars Equality Center v. Trump, No. 17-cv-255 (D.D.C.), the

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court has ordered Defendants to respond to the plaintiffs’ preliminary injunction motion by

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October 19, 2017, and has set a hearing for November 2, 2017. See ECF No. 105.

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DATED: October 12, 2017

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

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JOHN R. TYLER
Assistant Director, Federal Programs Branch

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/s/ Michelle R. Bennett
MICHELLE R. BENNETT
DANIEL SCHWEI
Senior Trial Counsel
U.S. Department of Justice
Civil Division, Federal Programs Branch
20 Massachusetts Avenue, NW
Washington, DC 20530
Tel: [phone]
Fax: [phone]
Email: [e-mail]

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Attorneys for Defendants

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DEFENDANTS’ NOTICE OF INTENT TO OPPOSE
PLAINTIFFS’ MOTION FOR TEMPORARY
RESTRAINING ORDER - 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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CERTIFICATE OF SERVICE
I hereby certify that on October 12, 2017, I electronically filed the foregoing Notice of
Intent to Oppose Plaintiffs’ Motion for Temporary Restraining Order.

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/s/ Michelle R. Bennett
MICHELLE R. BENNETT

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DEFENDANTS’ NOTICE OF INTENT TO OPPOSE
PLAINTIFFS’ MOTION FOR TEMPORARY RESTRAINING ORDER
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]