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

Filing 75

MEMORANDUM Re: NInth Circuit Construal of TRO as Preliminary Injunction by Plaintiffs State of Minnesota, State of Washington (Melody, Colleen)

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Case 2:17-cv-00141-JLR Document 75 Filed 02/13/17 Page 1 of 7 1 2 3 4 5 6 7 8 9 The Honorable James L. Robart NOAH G. PURCELL, WSBA #43492 Solicitor General COLLEEN M. MELODY, WSBA #42275 Civil Rights Unit Chief Office of the Attorney General 800 Fifth Avenue, Suite 2000 Seattle, WA 98104 206-464-7744 ALAN I. GILBERT, Admitted Pro Hac Vice Solicitor General JACOB CAMPION, Admitted Pro Hac Vice Assistant Attorney General 445 Minnesota Street, Suite 1100 St. Paul, Minnesota 55101-2128 (651) 757-1450 10 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 11 12 STATE OF WASHINGTON and 13 STATE OF MINNESOTA, Plaintiffs, 14 15 CIVIL ACTION NO. 2:17-cv-00141-JLR v. 16 DONALD TRUMP, in his official capacity as President of the United 17 States; U.S. DEPARTMENT OF HOMELAND SECURITY; JOHN F. 18 KELLY, in his official capacity as Secretary of the Department of 19 Homeland Security; REX W. TILLERSON, in his official capacity 20 as Secretary of State; and the UNITED STATES OF AMERICA, 21 Defendants. 22 23 I. STATES’ MEMORANDUM ON NINTH CIRCUIT ORDER CONSTRUING TEMPORARY RESTRAINING ORDER AS PRELIMINARY INJUNCTION INTRODUCTION 24 The Court ordered the parties to submit memoranda “discuss[ing] whether the Ninth 25 Circuit has construed the court’s temporary restraining order as a preliminary injunction, such that 26 additional briefing and possible evidence on a motion for a preliminary injunction is no longer STATES’ MEMORANDUM ON NINTH CIRCUIT ORDER CONSTRUING TEMPORARY RESTRAINING ORDER AS PRELIMINARY INJUNCTION 1 Attorney General of Washington 800 Fifth Avenue, Suite 2000 Seattle, WA 98104-3188 (206) 464-7744 Case 2:17-cv-00141-JLR Document 75 Filed 02/13/17 Page 2 of 7 1 required in the district court.” Minute Order, ECF 74 at 2. Washington and Minnesota (the States) 2 respectfully submit that the answer is yes. The Ninth Circuit’s ruling treats this Court’s prior order 3 as a preliminary injunction, rendering further preliminary injunction proceedings unnecessary and 4 allowing the parties to proceed directly to discovery. 5 II. RELEVANT PROCEDURAL HISTORY 6 On February 3, the Court granted the States’ motion for a nationwide temporary 7 restraining order enjoining Defendants from enforcing sections 3(c), 5(a)-(c), and 5(e) of 8 Executive Order 13,769. ECF 52 (February 3 Order). On February 4, Defendants filed a notice 9 of appeal and an Emergency Motion Under Circuit Rule 27-3 for Administrative Stay and 10 Motion for Stay Pending Appeal. ECF 53; Washington v. Trump, No. 17-35105 (9th Cir. filed 11 Feb. 4, 2017), ECF 14 (Ninth Circuit Docket). A Ninth Circuit motions panel denied 12 Defendants’ request for an immediate administrative stay of the February 3 Order and set a 13 briefing schedule for the emergency motion for a stay pending appeal. Id., ECF 15. 14 In briefing the emergency stay motion, the parties disagreed about the proper 15 characterization and reviewability of the February 3 Order. Defendants conceded that 16 temporary restraining orders ordinarily are not appealable, but argued that the Ninth Circuit 17 should treat the February 3 Order as “an appealable injunctive order” and exercise jurisdiction 18 under 28 U.S.C. § 1292(a)(1), the statute authorizing interlocutory appellate review of 19 preliminary injunctions. Ninth Circuit Docket, ECF 14 at 8 (citing Serv. Emps. Int’l Union v. 20 Nat’l Union of Healthcare Workers, 598 F.3d 1061, 1067 (9th Cir. 2010)). The States opposed 21 that characterization, arguing that the February 3 Order was just what it purported to be: a 22 temporary restraining order. Ninth Circuit Docket, ECF 28 at 5-6. The States urged the 23 motions panel to allow this Court to rule on the States’ anticipated motion for a preliminary 24 injunction. Ninth Circuit Docket, ECF 28 at 5-6; see also Oral Argument at 30:28, 53:13, 25 Washington 26 http://www.ca9.uscourts.gov/media/view_video.php?pk_vid=0000010885 (argument by the v. Trump, No. STATES’ MEMORANDUM ON NINTH CIRCUIT ORDER CONSTRUING TEMPORARY RESTRAINING ORDER AS PRELIMINARY INJUNCTION 17-35105 2 (9th Cir. Feb. 7, 2017), Attorney General of Washington 800 Fifth Avenue, Suite 2000 Seattle, WA 98104-3188 (206) 464-7744 Case 2:17-cv-00141-JLR Document 75 Filed 02/13/17 Page 3 of 7 1 States that the February 3 Order is not appealable and may only be reviewed through a writ of 2 mandamus). 3 The Ninth Circuit denied Defendants’ request for a stay pending appeal, leaving in 4 place all of the injunctive provisions contained in the February 3 Order. Ninth Circuit Docket, 5 ECF 134 at 3, 23-24 (Order Denying Stay) (“declin[ing] to modify the scope” of the February 6 3 Order in any respect). In doing so, however, the Ninth Circuit adopted Defendants’ position 7 that the February 3 Order “possesses the qualities of an appealable preliminary injunction.” Id. 8 at 7. The court issued a briefing schedule for the merits of Defendants’ appeal of the February 9 3 Order. Ninth Circuit Docket, ECF 135 at 2; see also Order Denying Stay at 8 n.2 (referring to 10 next step of Ninth Circuit proceedings as “the merits stage of this appeal”).1 The States 11 anticipate that the Ninth Circuit will now review the February 3 Order under the familiar abuse 12 of discretion standard applicable to preliminary injunctions. See Am. Trucking Ass’ns, Inc. v. 13 City of Los Angeles, 559 F.3d 1046, 1052 (9th Cir. 2009). 14 15 III. DISCUSSION A. The Ninth Circuit Construed the February 3 Order as a Preliminary Injunction 16 The Ninth Circuit held that the February 3 Order “possesses the qualities of an appealable 17 preliminary injunction.” Order Denying Stay at 7. In reaching that conclusion, the Ninth Circuit 18 relied on a line of cases outlining the limited circumstances under which an appellate court may 19 construe a temporary restraining order as a preliminary injunction. See id. (citing Bennett v. 20 Medtronic, Inc., 285 F.3d 801, 804 (9th Cir. 2002); Serv. Emps. Int’l Union v. Nat’l Union of 21 Healthcare Workers, 598F.3d 1061, 1067 (9th Cir. 2010)). Under these cases, appellate 22 jurisdiction arises under 28 U.S.C. § 1292(a)(1) if a temporary restraining order is “akin to a 23 preliminary injunction.” Bennett, 285 F.3d at 804; see also Sampson v. Murray, 415 U.S. 61, 86- 24 1 25 26 On February 10, following a sua sponte request that an en banc vote be taken, Ninth Circuit Chief Judge Thomas ordered the parties to submit simultaneous briefs on whether the Order Denying Stay should be reconsidered en banc. Ninth Circuit Docket, ECF 139. The briefing order did not alter the terms of the February 3 Order. STATES’ MEMORANDUM ON NINTH CIRCUIT ORDER CONSTRUING TEMPORARY RESTRAINING ORDER AS PRELIMINARY INJUNCTION 3 Attorney General of Washington 800 Fifth Avenue, Suite 2000 Seattle, WA 98104-3188 (206) 464-7744 Case 2:17-cv-00141-JLR Document 75 Filed 02/13/17 Page 4 of 7 1 89 & n.58 (1974) (“view[ing] the [temporary restraining] order at issue here as a preliminary 2 injunction” where it had “the same practical effect as the issuance of a preliminary injunction”) 3 (emphasis added) (quoting Pan Am. World Airways, Inc. v. Flight Eng’rs’ Int’l Ass’n, 306 F.2d 4 840, 843 (2d Cir. 1962). 5 The Ninth Circuit’s decision that the February 3 Order is an appealable preliminary 6 injunction necessarily implies that it “must be treated as a preliminary injunction” going forward. 7 See Sampson, 415 U.S. at 86. Treating the order as a preliminary injunction is also consistent with 8 the law of the case doctrine, which requires that the appellate court’s ruling on a legal issue be 9 followed in subsequent proceedings in the same case. Herrington v. Cty. of Sonoma, 12 F.3d 901, 10 904 (9th Cir. 1993); Liberty Mut. Ins. Co. v. EEOC, 691 F.2d 438, 441 (9th Cir. 1982) (explaining 11 that district courts are precluded “from reconsidering . . . issues decided explicitly or by necessary 12 implication in [the Ninth Circuit’s] previous disposition”). The alternative approach—treating the 13 February 3 Order as a preliminary injunction for purposes of appeal, but as something else for 14 purposes of the concurrent district court proceedings—would create the type of confusion that the 15 law of the case doctrine is intended to prevent. See Harrington, 12 F.3d at 904. Accordingly, the 16 Ninth Circuit’s ruling that the temporary restraining order is a preliminary injunction applies 17 equally in the appellate and district court. 18 B. A Renewed Preliminary Injunction Motion Is Unnecessary 19 The States’ planned preliminary injunction motion was rendered moot by the Ninth 20 Circuit’s determination that the February 3 Order “possesses the qualities” of a preliminary 21 injunction. See Order Denying Stay at 7. The purpose of a preliminary injunction is to “preserve 22 the status quo and the rights of the parties until a final judgment issues in the cause.” U.S. Philips 23 Corp. v. KBC Bank N.V., 590 F.3d 1091, 1094 (9th Cir. 2010) (citing Univ. of Tex. v. Camenisch, 24 451 U.S. 390, 395 (1981)). Absent an order from this Court modifying the February 3 Order, or a 25 subsequent decision from the Ninth Circuit or Supreme Court altering it, the February 3 Order 26 will “last[] until the completion of the trial on the merits.” See 11A Charles Alan Wright et al., STATES’ MEMORANDUM ON NINTH CIRCUIT ORDER CONSTRUING TEMPORARY RESTRAINING ORDER AS PRELIMINARY INJUNCTION 4 Attorney General of Washington 800 Fifth Avenue, Suite 2000 Seattle, WA 98104-3188 (206) 464-7744 Case 2:17-cv-00141-JLR Document 75 Filed 02/13/17 Page 5 of 7 1 Federal Practice & Procedure § 2947, Westlaw (3d ed. & Suppl. Apr. 2016); see also id. (“A 2 preliminary injunction remains in effect until a final judgment is rendered or the complaint is 3 dismissed, unless it expires earlier by its own terms, or is modified, stayed, or reversed.”) 4 (footnote omitted). 5 The February 3 Order granted each of the specific terms of the injunction sought by the 6 States. See ECF 3-1 (proposed temporary restraining order). The Order Denying Stay left the 7 injunctive terms of the February 3 Order untouched. It would thus be unnecessary for the States to 8 file another motion seeking the exact same relief. Kwai Fun Wong v. Beebe, 732 F.3d 1030, 1054 9 (9th Cir. 2013) (en banc) (Kozinski, J., concurring) (warning that “[b]ad things can happen” to 10 litigants who have “the nerve to vex a federal judge with a clone motion”); F.W. Kerr Chem. Co. 11 v. Crandall Assoc., Inc., 815 F.2d 426, 428-49 (6th Cir. 1987) (describing “successive motions for 12 preliminary injunction” as “unwarranted” absent a material change to factual or legal claims).2 13 In short, because the Ninth Circuit has construed the February 3 Order to grant all the 14 preliminary relief the States would have sought through a motion for a preliminary injunction, no 15 additional briefing or evidence is required in the district court on the propriety of preliminary 16 relief. 17 C. The Case on the Merits Should Proceed Promptly 18 The Ninth Circuit’s current appellate jurisdiction is limited to the February 3 Order. See 19 Nat’l Res. Def. Council, Inc. v. Sw. Marine Inc., 242 F.3d 1163, 1166 (9th Cir. 2001) (limiting 20 appellate jurisdiction to “the matters being appealed”). When appeal is made from an order 21 granting preliminary injunction, the appeal “does not divest the district court of jurisdiction to 22 proceed with the action on the merits.” G & M, Inc. v. Newbern, 488 F.2d 742, 746 (9th Cir. 23 1973). “The case, except for the hearing on the appeal from the interlocutory order, is to 24 proceed in the lower court as though no such appeal had been taken, unless otherwise specially 25 2 26 Of course, the States stand ready to file their preliminary injunction motion if the Court determines that it is appropriate. STATES’ MEMORANDUM ON NINTH CIRCUIT ORDER CONSTRUING TEMPORARY RESTRAINING ORDER AS PRELIMINARY INJUNCTION 5 Attorney General of Washington 800 Fifth Avenue, Suite 2000 Seattle, WA 98104-3188 (206) 464-7744 Case 2:17-cv-00141-JLR Document 75 Filed 02/13/17 Page 6 of 7 1 ordered.” Phelan v. Taitano, 233 F.2d 117, 119 (9th Cir. 1956) (quoting Ex parte Nat’l 2 Enameling & Stamping Co., 201 U.S. 156, 162 (1906)). 3 The States favor expeditious proceedings in this Court. Proceeding directly to 4 discovery, including a prompt Rule 26(f) conference by the parties, will not interfere with the 5 case on appeal. To the contrary, it will allow this Court to consider the merits of the case in an 6 efficient manner. Given the gravity of the States’ constitutional allegations, Defendants’ stated 7 national security concerns, and the public interests at stake, the States respectfully submit that 8 discovery should proceed without delay. 9 IV. CONCLUSION 10 As detailed above, the Ninth Circuit has determined that the February 3 Order operates as 11 a preliminary injunction. In light of that conclusion, the parties should now begin discovery so 12 that the Court may determine the merits of the States’ claims. 13 DATED this 13th day of February, 2017. 14 Respectfully submitted, 15 ROBERT W. FERGUSON Attorney General State of Washington 16 17 /s/ Noah G. Purcell________________ 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 (206) 464-7744 Noahp@atg.wa.gov 18 19 20 21 22 23 24 25 26 STATES’ MEMORANDUM ON NINTH CIRCUIT ORDER CONSTRUING TEMPORARY RESTRAINING ORDER AS PRELIMINARY INJUNCTION 6 Attorney General of Washington 800 Fifth Avenue, Suite 2000 Seattle, WA 98104-3188 (206) 464-7744 Case 2:17-cv-00141-JLR Document 75 Filed 02/13/17 Page 7 of 7 1 LORI SWANSON Attorney General State of Minnesota 2 3 /s/ Alan I. Gilbert ALAN I. GILBERT Solicitor General Atty. Reg. No. 0034678 4 5 6 JACOB CAMPION Assistant Attorney General Atty. Reg. No. 0391274 7 8 445 Minnesota Street, Suite 1100 St. Paul, Minnesota 55101-2128 (651) 757-1450 (Voice) (651) 282-5832 (Fax) al.gilbert@ag.state.mn.us 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 STATES’ MEMORANDUM ON NINTH CIRCUIT ORDER CONSTRUING TEMPORARY RESTRAINING ORDER AS PRELIMINARY INJUNCTION 7 Attorney General of Washington 800 Fifth Avenue, Suite 2000 Seattle, WA 98104-3188 (206) 464-7744

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