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

Filing 78

ORDER by Judge James L. Robart. The court concludes that the Ninth Circuit has construed the court's TRO (Dkt. # 52 ) as an appealable preliminary injunction and that further briefing or the submission of evidence concerning a preliminary injunction would not be appropriate in this court during the pendency of Defendants' appeal. However, the court ORDERS the parties to continue with other aspects of this litigation in accordance with the Federal Rules of Civil Procedure and this court's Local Civil Rules. If issues or motions subsequently arise that either party believes are inextricably bound up with the injunctive order, the court will address those motions or issues on a case-by-case basis in accordance with the case law set forth above. Finally, the court VACATES the briefing schedule set forth in its February 7, 2017, order (Dkt. # 57 ). (PM)

Case 2:17-cv-00141-JLR Document 78 Filed 02/14/17 Page 1 of 5

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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STATE OF WASHINGTON, et al.,
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Plaintiffs,

CASE NO. C17-0141JLR
ORDER

v.
DONALD J. TRUMP, et al.,

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Defendants.

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I.

INTRODUCTION

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On February 10, 2017, the court issued a minute order directing the parties to
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submit simultaneous memoranda concerning how this matter should proceed in the
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district court during the pendency of Defendants’ appeal of this court’s February 3, 2017,
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order to the Ninth Circuit Court of Appeals. (2/10/17 Order (Dkt. # 74).) The parties
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timely submitted memoranda in response to the court’s February 10, 2017, minute order.
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(States Mem. (Dkt. # 75); Def. Mem. (Dkt. # 76).) In addition, the court heard the
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ORDER - 1

Case 2:17-cv-00141-JLR Document 78 Filed 02/14/17 Page 2 of 5

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argument of counsel in a telephonic hearing on February 13, 2017. The court now

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considers this issue.

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II.

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BACKGROUND

On February 3, 2017, the court entered what it considered a temporary restraining

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order (“TRO”) with the intention of holding a subsequent hearing and issuing a

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subsequent more detailed order on Plaintiff State of Washington and State of Minnesota’s

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(“the States”) anticipated motion for a preliminary injunction. (See TRO (Dkt. # 52).)

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On February 4, 2017, Defendants appealed the court’s TRO. (Notice of App. (Dkt.

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# 53).)

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On February 6, 2017, in response to the court’s TRO, the parties filed a joint status

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report (“JSR”) setting forth a proposed schedule for briefing on the States’ motion for

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preliminary injunction. (JSR (Dkt. # 56).) In the JSR, Defendants stated that it was their

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“position that the Court lacks jurisdiction to decide Plaintiff’s forthcoming motion for

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preliminary injunction until the Ninth Circuit resolves Defendants’ pending appeal of this

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Court’s February 3, 2017[,] Order.” (Id. at 2.) Nevertheless, Defendants agreed that was

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“appropriate for the parties to proceed with briefing on [P]laintiffs’ motion for

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preliminary injunction despite Defendants’ pending appeal.” (Id.) On February 7, 2017,

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the court entered a scheduling order granting the parties’ joint request regarding a

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briefing schedule on Plaintiffs’ motion for a preliminary injunction. (2/7/17 Order (Dkt.

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# 57).)

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On February 9, 2017, the Ninth Circuit denied Defendants’ emergency motion for

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a stay of this court’s February 3, 2017, order. (See 1st 9th Cir. Order (Dkt. # 68).) In so

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Case 2:17-cv-00141-JLR Document 78 Filed 02/14/17 Page 3 of 5

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ruling, the Ninth Circuit characterized the court’s order as an order “possessing the

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qualities of an appealable preliminary injunction.” (Id. at 7; see also id. at 8 (“[W]e

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believe that . . . the TRO should be considered to have the qualities of a reviewable

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preliminary injunction.”).) On the same day, the Ninth Circuit issued a separate order

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setting forth a briefing schedule on the merits of Defendants’ appeal of the court’s

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February 3, 2017, order. (2d 9th Cir. Order (Dkt. # 69) at 2.)

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On February 9, 2017, the State of Washington filed a letter with the court stating

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that, because the Ninth Circuit held that the court’s TRO “possesses the qualities of an

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appealable preliminary injunction,” “the States assume the district court briefing schedule

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is no longer applicable.” (Letter (Dkt. # 70).) Accordingly, the States did not file a

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motion for a preliminary injunction, which under the court’s scheduling order was due

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that day. (See id.; see generally Dkt.)

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On February 10, 2017, in response to the States’ letter, the court issued a minute

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order directing the parties to file a JSR concerning how this matter should proceed in the

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district court while Defendants’ appeal of the TRO is pending. (Ord. re: Letter (Dkt.

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# 71).) Later that day, the court revised the schedule and ordered the parties to submit

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simultaneous memoranda on the same issue by 12:00 p.m., Pacific Standard Time, on

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February 13, 2017. (See 2/10/17 Order.) The court is now in receipt of those

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memoranda. (States Mem.; Def. Mem.) In addition, the court heard the argument of

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counsel on that topic during a telephonic hearing on February 13, 2017.

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III.

ANALYSIS

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The parties agree that no further briefing is required in this court on a motion for a

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preliminary injunction, and that the court’s February 3, 2017, TRO is now on appeal as a

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preliminary injunction; however, the parties disagree about what further proceedings

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should take place in the district court at this time. (See States Mem. at 5-6; Def. Mem. at

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3.) Defendants would like to “postpone any further proceedings in the district court”

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pending further direction from the Ninth Circuit. (Def. Mem. at 3.) The States would

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like to “[p]roceed directly to discovery, including a prompt Rule 26(f) conference by the

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parties.” (States Mem. at 6.)

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Based on its interpretation of the Ninth Circuit’s order, the court agrees that the

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Ninth Circuit has construed the TRO as a preliminary injunction and that further briefing

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in this court on a motion for a preliminary injunction is not warranted or appropriate

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while the present appeal is pending. However, the court does not see a basis for

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postponing other aspects of the litigation and agrees with the States that the case should

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otherwise proceed. Indeed, “it is firmly established that an appeal from an interlocutory

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order does not divest the trial court of jurisdiction to continue with other phases of the

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case.” Plotkin v. Pac. Tel. & Tel. Co., 688 F.2d 1291, 1293 (9th Cir. 1982). Thus, the

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Ninth Circuit’s jurisdiction “extends only to the ‘matters inextricably bound up with the

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injunctive order from which the appeal is taken.’” Paige v. State of Cal., 102 F.3d 1035,

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1039 (9th Cir. 1996) (quoting Self-Realization Fellowship Church v. Ananda, 59 F.3d

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902, 905 (9th Cir. 1995)). If an issue or motion arises during the course of this litigation

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that is “inextricably bound up with the injunctive order from which the appeal [was]

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taken,” see id., the court can address any such issue at the time it arises in accordance

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with the case law discussed above. In the meantime, the court directs the parties to

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proceed with this litigation in accordance with the Federal Rules of Civil Procedure and

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this court’s Local Civil Rules.

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IV.

CONCLUSION

The court concludes that the Ninth Circuit has construed the court’s TRO (Dkt.

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# 52) as an appealable preliminary injunction and that further briefing or the submission

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of evidence concerning a preliminary injunction would not be appropriate in this court

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during the pendency of Defendants’ appeal. However, the court ORDERS the parties to

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continue with other aspects of this litigation in accordance with the Federal Rules of Civil

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Procedure and this court’s Local Civil Rules. If issues or motions subsequently arise that

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either party believes are “inextricably bound up with the injunctive order,” the court will

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address those motions or issues on a case-by-case basis in accordance with the case law

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set forth above. Finally, the court VACATES the briefing schedule set forth in its

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February 7, 2017, order (Dkt. # 57).

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Dated this 14th day of February, 2017.

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A

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JAMES L. ROBART
United States District Judge

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