State of Washington, et al., v. Trump., et al
Filing
76
MEMORANDUM re 74 Minute Order,,,,,,,, Set/Reset Hearings,,,,,,, by Defendants John Kelly, Tom Shannon, Donald J. Trump, U.S. Department of Homeland Security, United States of America (Bennett, Michelle)
Case 2:17-cv-00141-JLR Document 76 Filed 02/13/17 Page 1 of 4
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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 and
STATE OF MINNESOTA,
Plaintiffs,
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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,
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No. 2:17-cv-00141 (JLR)
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DEFENDANTS’ MEMORANDUM IN
RESPONSE TO FEBRUARY 10, 2017
MINUTE ORDER
Defendants.
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In a February 10, 2017 Minute Order (ECF No. 74), the Court instructed the parties to
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file a memorandum discussing “whether the Ninth Circuit has construed the court’s temporary
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restraining order (“TRO”) (TRO (Dkt. # 52)) as a preliminary injunction, such that additional
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briefing and possible evidence on a motion for preliminary injunction is no longer required in the
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district court . . . or whether the parties should submit additional briefing and evidence in the
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district court concerning the issue of a preliminary injunction.” Defendants’ position is set forth
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below.
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DEFENDANTS’ MEMORANDUM IN RESPONSE TO
FEBRUARY 10, 2017 MINUTE 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: (202) 305-8902
Case 2:17-cv-00141-JLR Document 76 Filed 02/13/17 Page 2 of 4
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On February 3, 2017, this Court entered a nationwide injunction barring enforcement of
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sections 3(c), 5(a)-(c), and 5(e) of the Executive Order: Protecting the Nation from Foreign
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Terrorist Entry into the United States. The injunctive order contained no explicit expiration date.
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The Court’s order directed the parties to jointly propose a briefing schedule for plaintiffs’ motion
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for preliminary injunction, and after the parties submitted a joint status report, the Court directed
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that plaintiffs’ forthcoming motion for preliminary injunction be filed no later than February 9,
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2017.
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The day after this Court entered its injunctive order, defendants noticed their appeal of
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the order and also moved the Ninth Circuit to stay the injunctive order pending resolution of the
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appeal. A panel of the Ninth Circuit denied defendants’ motion for a stay pending appeal on
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February 9, 2017. In doing so, the court determined that it had appellate jurisdiction over the
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stay motion because “the district court’s order possesses the qualities of an appealable
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preliminary injunction.” Washington v. Trump, No. 17-35105, slip op. at 7, Dkt. No. 134 (9th
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Cir. 2017); see id. at 7-8 (“[W]e believe . . . that the TRO should be considered to have the
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qualities of a reviewable preliminary injunction.”).
The court noted, however, that this
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“conclusion . . . does not preclude consideration of appellate jurisdiction at the merits stage of
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this appeal.” Id. at 8 n.2. The court set a briefing schedule for the merits stage of the appeal,
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which concludes on March 29, 2017. See Washington, No. 17-35105, Order at 2, Dkt. No. 135
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(9th Cir. 2017). Later on February 9, plaintiffs declined to file their motion for preliminary
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injunction.
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On February 10, 2017, the parties were notified that a Ninth Circuit judge had sua sponte
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requested a vote on whether to reconsider en banc the panel’s order denying defendants’ motion
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for a stay pending appeal. See Washington, No. 17-35105, Order, Dkt. No. 139 (9th Cir. 2017).
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DEFENDANTS’ MEMORANDUM IN RESPONSE TO
FEBRUARY 10, 2017 MINUTE 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: (202) 305-8902
Case 2:17-cv-00141-JLR Document 76 Filed 02/13/17 Page 3 of 4
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The parties have been directed to file briefs on whether reconsideration en banc is appropriate
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by February 16, 2017.
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Further proceedings in the Ninth Circuit will likely inform what additional proceedings
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on a preliminary injunction motion are necessary in district court. Accordingly, at this time,
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defendants believe the appropriate course is to postpone any further proceedings in the district
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court. Defendants respectfully request that they be permitted to file a status report with the Court
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no later than two business days after the Ninth Circuit decides whether to hear defendants’ stay
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motion en banc. The status report will update the Court on the Ninth Circuit’s proceedings and
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advise the Court of any update on defendants’ position regarding preliminary injunction
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proceedings in light of the Ninth Circuit’s actions.
DATED: February 13, 2017
Respectfully submitted,
CHAD A. READLER
Acting Assistant Attorney General
JENNIFER RICKETTS
Director, Federal Programs Branch
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JOHN R. TYLER
Assistant Director, Federal Programs Branch
/s/ Michelle R. Bennett
MICHELLE R. BENNETT
DANIEL SCHWEI
ARJUN GARG
Trial Attorneys
U.S. Department of Justice
Civil Division, Federal Programs Branch
20 Massachusetts Avenue, NW
Washington, DC 20530
Tel: (202) 305-8902
Fax: (202) 616-8470
Email: michelle.bennett@usdoj.gov
arjun.garg@usdoj.gov
Attorneys for Defendants
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DEFENDANTS’ MEMORANDUM IN RESPONSE TO
FEBRUARY 10, 2017 MINUTE 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: (202) 305-8902
Case 2:17-cv-00141-JLR Document 76 Filed 02/13/17 Page 4 of 4
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CERTIFICATE OF SERVICE
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I hereby certify that on February 13, 2017, I electronically filed the foregoing
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Memorandum in Response to February 10, 2017 Minute Order using the Court’s CM/ECF
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system, causing a notice of filing to be served upon all counsel of record.
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Dated: February 13, 2017
/s/ Michelle R. Bennett
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DEFENDANTS’ MEMORANDUM IN RESPONSE TO
FEBRUARY 10, 2017 MINUTE 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: (202) 305-8902
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