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

Filing 197

ORDER granting Plaintiffs' 193 Motion to Lift the Stay; granting the States' 194 Motion to amend the complaint. The court orders the States to file their proposed third amended complaint within 5 days of this order. The court schedules a hearing on Monday, October 30, 2017, at 1:30 p.m. PDT before Judge James L. Robart on the States' 195 Motion for Temporary Restraining. Briefing schedule for the States' motion for TRO is as follows: Defendants' response due 10/23/2017, at 12:00 noon PDT; States' reply due 10/26/2017. Signed by Judge James L. Robart. (PM)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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STATE OF WASHINGTON, et al.,
Plaintiffs,

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v.
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DONALD J. TRUMP, et al.,
Defendants.

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CASE NO. C17-0141JLR
ORDER GRANTING
PLAINTIFFS’ MOTIONS TO
LIFT THE STAY AND TO FILE A
THIRD AMENDED COMPLAINT
AND SETTING A SCHEDULE
FOR PLAINTIFFS’ MOTION FOR
A TEMPORARY RESTRAINING
ORDER

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Before the court are three motions: (1) Plaintiffs State of Washington, State of
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California, State of Maryland, Commonwealth of Massachusetts, State of New York, and
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State of Oregon’s (collectively, “the States”) motion to lift the stay on these proceedings
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(Mot. to Lift Stay (Dkt. # 193)); (2) the States’ motion for leave to file a third amended
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complaint to allege that the Presidential Proclamation entitled “Enhancing Vetting
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Capabilities and Processes for Detecting Attempted Entry into the United States by
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Terrorists or Other Public-Safety Threats,” 82 Fed. Reg. 45,161 (September 27, 2017)
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ORDER - 1

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(“EO3”), injures the States and their residents (Mot. for TAC (Dkt. # 194)); and (3) the

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States’ motion for a temporary restraining order (“TRO”) prohibiting the enforcement of

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Sections 1(g) and 2 of EO3 (TRO Mot. (Dkt. # 195)). As discussed below, the court

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grants the first two motions and sets a schedule with respect to the third.

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On September 24, 2017, Executive Order No. 13780 (“EO2”) expired and

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President Donald Trump issued EO3. 1 (See Mot. to Lift Stay at 3.) EO2 had ordered a

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temporary suspension on the entry of foreign nationals from Iran, Libya, Somalia, Sudan,

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Syria, and Yemen, and a temporary suspension on decisions regarding refugee status and

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refugee travel to the United States. See Trump v. Int’l Refugee Assistance Project,

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--- U.S. ---, 137 S. Ct. 2080, 2083-84 (2017). EO3 suspends all immigration from seven

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countries, including Chad, Iran, Libya, Somalia, Syria, Yemen, and North Korea, and

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applies “additional scrutiny” to immigrants from Iraq. EO3 §§ 1(g), 2(a)-(e), (g)-(h).

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The order also suspends entry by classes of non-immigrants like students,

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businesspeople, and tourists from the foregoing listed countries as well as from

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Venezuela. Id. §§ 2(a)-(h). These non-immigrant restrictions vary by country and by

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type of visa. See id. EO3 takes effect October 18, 2017, and, unlike EO2, applies

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indefinitely. See id. § 7(b).

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The court concludes that the States have demonstrated that, by virtue of the

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expiration of EO2 and the issuance of EO3 on September 24, 2017, circumstances have

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changed such that the court should lift the stay. Further, in their motion to lift the stay,

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On March 6, 2017, President Trump issued EO2, which expressly revoked Executive
Order No. 13769 (“EO1”). See EO2 ¶ 13.

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the States represent that Defendants Donald Trump, United States Department of

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Homeland Security, Elaine C. Duke, Rex Tillerson, and United States of America

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(collectively, “Defendants”) do not oppose the motion. (Mot. to Lift Stay at 2

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(“Defendants do not oppose lifting the stay.”).) Accordingly, the court grants the States’

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motion to lift the stay.

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The States also seek leave to file a third amended complaint to allege that EO3,

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like its predecessors EO1 and EO2, injures the States’ interests and their residents. (See

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generally Mot. for TAC.) In this motion, the States also represent that they have

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conferred with Defendants and that Defendants do not oppose the States’ motion to

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amend. (Id. at 2.) Given Defendants’ lack of opposition and the federal policy in favor

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of the amendment of pleadings, which “is ‘to be applied with extreme liberality,’”

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Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1051 (9th Cir. 2003) (quoting

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Owens v. Kaiser Found. Health Plan, Inc., 244 F.3d 708, 712 (9th Cir. 2001) (additional

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citation omitted)), the court also grants the States’ motion to file a third amended

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complaint.

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Finally, the court addresses the scheduling of the parties’ briefing and a hearing on

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the States’ motion for a TRO. In their motion to lift the stay, the States acknowledge that

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the parties are in disagreement concerning these scheduling issues. (See Mot. to Lift Stay

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at 1.) The States ask the court to require Defendants to file their response to the motion

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for a TRO by 12:00 noon Pacific Daylight Time (“PDT”) on Sunday, October 15, 2017.

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(Id.) The States also ask the court to schedule a hearing on the motion on Monday,

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October 16, 2017, at 1:00 p.m. PDT. (Id.) The States lastly offer to forgo filing a reply

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brief. (Id.)

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Defendants oppose the expedited schedule that the States propose. (See id. at 7-8.)
Defendants state:
[T]he Government does not believe it is either necessary or appropriate for
the Court to decide Plaintiffs’ TRO motion before October 18. There will be
no irreparable injury to Plaintiffs from a brief delay in entry from the
Proclamation while the issues are adjudicated on a reasonable briefing
schedule. Moreover, the Government believes it should be given at least 14
days to file its opposition to [P]laintiffs’ TRO motion. Any less time would
be prejudicial, especially since Plaintiffs have created any urgency by
waiting 17 days after the Proclamation was issued before filing their TRO
motion, despite knowing the Proclamation would take effect after 23 days.
The Government should not be disadvantaged, nor the Court burdened, by
Plaintiffs’ delay.

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(Id. (citing E-mail from Michelle Bennett, Trial Attorney, U.S. Department of Justice,

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Civil Division, Federal Programs Branch, to Colleen Melody, Civil Rights Unit Chief,

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Washington State Attorney General’s Office (Oct. 11, 2017, 08:49 PDT)).)

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The court agrees with Defendants. The issues raised by the States’ motion for a

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TRO are complex and weighty. (See generally TRO Mot.) EO3 was issued on

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September 24, 2017; yet the States did not file their motion seeking a TRO until October

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11, 2017—17 days after EO3 was issued and less than a week before its effective date.

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(See TRO Mot.) The court’s comment on the States’ timing of its motion is not meant as

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a criticism. Indeed, the court is confident that the States’ attorneys were working

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diligently to analyze EO3, marshal evidence, and craft their arguments from the moment

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President Trump issued EO3. Rather, the court’s comment is aimed at recognizing that

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the issues the States raise require time to properly analyze and consider. Like the States,

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Defendants also require time to respond, and the court needs time to evaluate the issues

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as well. Further, the court believes that it should decide these issues on a record that

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includes complete briefing from the parties, including a reply memorandum from the

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States. Finally, the court agrees with Defendants that the States fail to show irreparable

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injury or undue prejudice by brief implementation of EO3 for a few days while the issues

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in the States’ motion are adjudicated on a reasonable briefing schedule. 2

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Accordingly, the court establishes the following schedule with respect to the

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States’ motion for a TRO. The court orders Defendants to file their response to

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Plaintiffs’ motion no later than Monday, October 23, 2017, at 12:00 noon PDT. 3 The

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court orders the States to file their reply no later than Thursday, October 26, 2017.

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Finally, the court will hold a hearing on the States’ motion for a TRO on Monday,

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October 30, 2017, at 1:30 p.m. PDT.

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In addition to the foregoing schedule, the court directs the parties to address an

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issue in their memoranda that is not addressed in the States’ motion. In their section on

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balancing the equities, the States do not address the Supreme Court’s opinion in Trump v.

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International Refugee Assistance Project, --- U.S. ---, 137 S. Ct. 2080, 2087-89 (2017)

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(hereinafter, “IRAP”), which primarily discussed balancing the equities on a preliminary

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The court, however, makes no ruling or comment concerning any irreparable injury or
harm that the States may incur by the indefinite implementation of EO3.
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Defendants assert that they need at least 14 days to respond to the States’ motion for a
TRO. (See Mot. to Lift Stay at 7-8.) However, given the resources available to the United States
Department of Justice, which “refers to itself as ‘the world’s largest law office’” (see 4/13/17
Order (Dkt. # 183) at 2), the court is comfortable with providing Defendants 11½ days to
respond.

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injunction involving EO2. (See TRO Mot. at 23-24.) Without assuming any outcome

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with respect to any of the elements necessary for preliminary injunctive relief, see Winter

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v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008), the court directs the parties to

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include an analysis of the Supreme Court’s opinion in IRAP in their respective response

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and reply memoranda and how that opinion may or may not apply to balancing the

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equities with respect to the injunctive relief the States seek regarding EO3.

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In summary, the court GRANTS the States’ motion to lift the stay (Dkt. # 193)

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and the States’ motion to amend the complaint (Dkt. # 194). The court further ORDERS

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the States to file their proposed third amended complaint (see Dkt. # 194-1) within five

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(5) days of the filing of this order. Finally, the court establishes a briefing schedule for

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the States’ motion for a TRO as described above, directs the parties to discuss IRAP in

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their memoranda, and schedules a hearing on Monday, October 30, 2017, at 1:30 p.m.

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PDT.

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Dated this 12th day of October, 2017.

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A

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JAMES L. ROBART
United States District Judge

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ORDER - 6