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

Filing 82

NOTICE OF FILING OF OFFICIAL TRANSCRIPT of the telephone conference held on 2/13/2017 before Judge James L. Robart.Parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days.Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Information regarding the policy can be found on the court's website at www.wawd.uscourts.gov.To purchase a copy of the transcript, contact court reporter Nancy Bauer, [e-mail], 206-370-8506. Release of Transcript Restriction set for 5/15/2017, (NB)

1

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON AT SEATTLE
_____________________________________________________________
STATE OF WASHINGTON, et al.,

)
)
Plaintiffs,
) CASE NO. C17-00141JLR
)
v.
) SEATTLE, WASHINGTON
) February 13, 2017
DONALD J. TRUMP, et al.,
)
) TELEPHONE CONFERENCE
Defendants.
)
)
_____________________________________________________________
VERBATIM REPORT OF PROCEEDINGS
BEFORE THE HONORABLE JAMES L. ROBART
UNITED STATES DISTRICT JUDGE
_____________________________________________________________
APPEARANCES:
For the Plaintiffs:

COLLEEN M. MELODY
Attorney General's Office
800 Fifth Avenue, Suite 2000
Seattle, WA 98104-3188
ALAN I. GILBERT
Attorney General of Minnesota
445 Minnesota Street, #1100
St. Paul, MN 55101-2128

For the Defendants

MICHELLE R. BENNETT
U.S. Department of Justice
Civil Division Federal Programs
20 Massachusetts Avenue NW, Suite 7300
Washington, DC 20530

Reported by:

NANCY L. BAUER, CCR, RPR
Federal Court Reporter
700 Stewart Street, Suite 17205
Seattle, WA 98101
[phone]
[e-mail]

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February 13, 2017

3:00 p.m.
PROCEEDINGS
_____________________________________________________________
THE CLERK:

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Donald Trump.
Counsel, please make your appearances for the record.
MS. MELODY:

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Case No. C17-141, State of Washington v.

Good afternoon, Your Honor.

This is

Colleen Melody for the State of Washington.

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THE COURT:

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MS. BENNETT:

Thank you.
Good afternoon, Your Honor.

This is

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Michelle Bennett for the defendants.

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on the call with me, if you'd like me to identify them as

12

well.
THE COURT:

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MS. BENNETT:

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THE COURT:

MS. BENNETT:

19

THE COURT:

MS. MELODY:

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THE COURT:

They don't need to be

Thank you.
Ms. Melody, are you going to be the only

Yes, Your Honor.
All right.

Do have someone from Minnesota, also?
MR. GILBERT:

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That's fine, then.

person speaking on behalf of the States?

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Yes, Your Honor.

introduced.

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Are you going to be the only one

speaking?

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I also have some others

Gilbert.

Yes, Your Honor.

My name is Alan

I'm the State Solicitor General.

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THE COURT:

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MR. GILBERT:

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THE COURT:

Thank you, Mr. Gilbert.

Welcome.

Thank you.
Counsel, my preference is not telephone

4

conferences, but I understand the logistics on this, where we

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have the United States represented by counsel out of

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Washington, D.C., and counsel from Minnesota, I assume

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probably in the St. Paul or Minneapolis area, and the State

8

of Washington down in Olympia.

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expedient way to get your advice and counsel on where we go

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11

So this seemed the most

from here.
This hearing arose from the telephone conference that was

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requested on an expedited basis last Friday afternoon that

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had to do with the proper interpretation of the Ninth

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Circuit's order in this matter.

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I found both of your status reports to be helpful.

I

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guess I'm not surprised that you are not in agreement, but I

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thought you did a nice job of setting out your respective

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positions.

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What I propose to do today is, I will give the plaintiffs

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up to 15 minutes to explain -- and I don't know how you want

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to divide your time between Washington and Minnesota -- to

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tell me how you see where we are right now.

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Ms. Bennett, I'll give you 15 minutes to do it.

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And then,

At the conclusion of that, I will probably state a
conclusion or an order in the form of where we go from here,

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and that will be followed up by a written order, which will

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be more detailed and also offer authority for the

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propositions that I think we ought to proceed with.

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So just to frame the issue:

When we last talked, the

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question arose in the context of the State of Washington, and

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I assume the State of Minnesota is a joinder, in the

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proposition that the Ninth Circuit Court of Appeals, which

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I'll sometimes call "the three-judge panel," order in this

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matter was, effectively, a preliminary injunction, and on

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that basis, the State had concluded that it was not filing a

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preliminary injunction in accordance with the schedule that

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you all had proposed and which I had entered.

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And Ms. Bennett, in that telephone conversation on Friday,

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asked that the United States be given additional time in

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order to determine its approach to this situation.

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believe, Ms. Bennett, you can correct me, but you were asking

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for Thursday or Friday of this week, and I was hesitant to do

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that for reasons that the schedule that you've originally

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proposed, "you" being the parties, certainly was more

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expedited than that, and the three-judge panel set a briefing

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schedule in this matter that's rather aggressive.

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I

This is all a little bit complicated by the fact that

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there was an unnamed judge of the Ninth Circuit Court of

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Appeals who filed a request for en banc review of the

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three-judge panel's ruling.

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Under their procedures, that's circulated to the judges, a

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vote is conducted, and then parties are advised that there

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was sufficient votes to proceed to en banc review or not.

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And they've given you additional homework to do on your

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already rather cluttered schedules.

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long after your briefing is submitted to them they would tell

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you if there is going to be en banc review or not.

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implicit in your pleadings is the fact that there is a

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disagreement as to the impact, if there was en banc review.

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And it's not clear how

And

So with all of that in mind, Ms. Melody, you have the
States' position in 15 minutes.
MS. MELODY:

Thank you, Your Honor.

So the procedural history that you set out is correct, and

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the States were preparing last Thursday afternoon to file

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their preliminary injunction motion in accordance with the

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schedule that the court entered.

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And the intervening event that happened was the issuance

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of the three-judge panel's opinion denying a stay pending

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appeal of this court's February 3rd order.

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And we read that opinion to decide the issue for purposes

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of sort of the law of the case about what -- what this --

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what the February 3rd order is.

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The defendants had taken the position in the Ninth Circuit

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that the February 3rd order was a reviewable preliminary

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injunction, that it had the qualities and characteristics of

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a preliminary injunction such that the Ninth Circuit could

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review it.

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that February 3rd order was a preliminary injunction and not

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a temporary restraining order, this -- its name -- you know,

5

the Ninth Circuit would have had no authority, no

6

jurisdiction to review the order.

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And that's important, because unless -- unless

So the defendants took the position and were to secure a

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Ninth Circuit review that -- that this court's February 3rd

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order was a preliminary injunction, that it had the qualities

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of a preliminary injunction such that the Ninth Circuit could

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review it.

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And, you know, that was the position that we read the

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Ninth Circuit's -- the three-judge panel's opinion to accept.

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And so on page 7 and then again on page 8 of the order

15

denying the stay pending appeal, the -- the three-judge panel

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twice says that, sort of in the extraordinary circumstances

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of this case, the -- the TRO, the February 3rd order, is a

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preliminary injunction, has the qualities of one, such that

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it can be appealed.

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And seeing that language caused us to, you know, determine

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that we -- that we didn't have any relief that we needed

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granted, and such that a preliminary injunction motion was

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unnecessary and would have been duplicative of relief that

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the Ninth Circuit was now telling us we already had.

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The Ninth Circuit panel didn't change any of the

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provisions of the court's February 3rd order, despite being

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requested to do so, argument on that point, and explicitly

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declined to modify the scope of the injunction provisions in

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any way, and so because it became, in effect, by operation of

5

law, a preliminary injunction when the Ninth Circuit accepted

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appellate review of it, that gave it all of the qualities of

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a preliminary injunction that we would have been seeking that

8

same afternoon.

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So the -- the time -- the piece about the time going

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forward, preliminary injunctions are in place until a

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judgment is reached on the merits or until one is altered by

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a subsequent order of this court or an appellate court.

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And so you asked, Your Honor, you know, what may be the

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effect of the Ninth Circuit en banc proceeding, if any, or

15

review on the merits by the merits panel, and the answer is

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that the preliminary injunction is in place until one of

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those bodies changes it.

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But that's no reason -- that's no reason for this court

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not to proceed toward a determination on the merits of the

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States' claim.

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while a preliminary injunction is in place, the parties can

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proceed with discovery and litigation towards reaching a

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merits determination.

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It is black letter law, in our view, that

So, you know, I don't -- I don't know that it's tenable
for the defendants now to take any other position in this

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court that the February 3rd order is not a preliminary

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injunction, when that is the position that they took in order

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to secure the review that they wanted in the Ninth Circuit.

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So once the Ninth Circuit has said that that's what it is, I

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think that's what it is for purposes of the case going

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forward, whether in the Court of Appeals or in the district

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court.

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9

So I don't think that I need all of the 15 minutes now.
I'm certainly happy to answer questions, or, perhaps,

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preserve the rest of my time in case there are points that

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Ms. Bennett raises that the States may wish to respond to.

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THE COURT:

Thank you.

Mr. Gilbert, do you wish to say anything at this point?
MR. GILBERT:

Your Honor, only that we certainly

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agree with what counsel for Washington indicated, and I think

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it's reflected in the memorandum we filed with the court.

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THE COURT:

All right.

Thank you.

Ms. Bennett?
MS. BENNETT:

Thank you, Your Honor.

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As we indicated in our memorandum, we think that the

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proceedings that are taking place in the Ninth Circuit will

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likely inform the question that Your Honor asked.

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As Your Honor noted, the merits -- or the panel of the

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Ninth Circuit that considered the stay motion did conclude

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that, for purposes of the stay motion, Your Honor's order

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possessed the qualities of an appealable preliminary

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injunction.

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But the court also noted that that conclusion didn't

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preclude consideration of appellate jurisdiction at the

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merits stage, and we also now have the issue of the Ninth

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Circuit considering whether to take this question up en banc,

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and, therefore, we think it would be appropriate to wait to

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address this question until after the Ninth Circuit has

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addressed the en banc question, where we might have more

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insight into what -- what the Ninth Circuit is thinking is

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terms of the scope of Your Honor's order.

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THE COURT:

Would you agree with me that there are

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really two parts to this?

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Circuit has now treated as a preliminary injunction that has

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to do with enforceability, and they've set a briefing

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schedule for you in that; and then the other aspect of it,

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which is the merits, which would ultimately result in a

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motion for a permanent injunction.

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One is the appeal that the Ninth

And I'm curious to know your thoughts on why a vote on the
en banc on issue one would have an impact on issue two.
MS. BENNETT:

Well, Your Honor, we don't understand

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the Ninth Circuit at all to be considering the question of a

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permanent injunction.

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The en banc question right now that's before the court is
whether to take the issue of a stay of Your Honor's

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injunctive order pending our appeal of the merits of that

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order en banc.
THE COURT:

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you.

I'm going interrupt you.

I agree with

I mean, perhaps my question wasn't precise enough.

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That is the issue that's in the Ninth Circuit right now.

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Still pending in the district court, however, are the merits

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of the States' original case, in which they seek a permanent

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injunction.

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at the present time.

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I understand that's not up in the Ninth Circuit

MS. BENNETT:

That's correct, Your Honor.

We think, in terms of the state proceeding with its case

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with respect to a permanent injunction, that it would make

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the most sense and be most efficient for Your Honor to stay

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district court proceedings until the Ninth Circuit is able to

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address the merits, because they will likely be addressing

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legal questions that will be relevant to Your Honor's

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decision on the final merits of this case.

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Courts regularly stay district court proceedings pending

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an appeal of a preliminary injunction, and so we think that

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that would be the appropriate course in this case as well.

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THE COURT:

What is your best authority for the

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proposition that if it is a narrow question that's in the

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circuit now, the ban question, that they're going to give us

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some kind of advisory opinions in regards to the merits?

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MS. BENNETT:

Well, Your Honor, we think the question

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that's before the Ninth Circuit on the merits of our appeal

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is whether plaintiffs have a likelihood of success on the

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merits of their claims, which is, the merits of the claims is

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the very question that Your Honor would be answering if you

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proceeded with the case.

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And so we think that the Ninth Circuit's decision with

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respect to whether the government is likely to appeal on the

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merits -- or, sorry -- whether plaintiffs are likely to

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appeal on the merits would certainly be relevant to the

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underlying litigation of the merits.
THE COURT:

Well, would you agree with me that

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discovery on the question of the merits, without a motion

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that would ultimately decide the question, would be the best

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use of the time?

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MS. BENNETT:

We don't think so, Your Honor.

First

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of all, we would oppose discovery.

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the government should have the opportunity first to, at

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least, respond to the complaint.

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aware, our response to the complaint isn't due until April

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3rd, and we would plan in that motion to raise both

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jurisdictional and legal arguments.

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proceeding with that first would make the most sense before

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getting into any discovery, which, as I said, I don't think

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we think is appropriate anyway.

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THE COURT:

But we also think that

As Your Honor is probably

And we think that

Well, wasn't the purpose of the

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amendments to the civil rules that were done in December of

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2015 to promote early, at least, beginning discovery, even

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before answers were filed so that we would move these cases

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along?
MS. BENNETT:

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Well, Your Honor, I think that might be

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the case where there are no jurisdictional questions in a

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case.

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the plaintiffs' jurisdiction to bring a case, we think it is

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important to resolve that issue first, and, again, I would

But where the government has and intends to challenge

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note also, while questions about the merits are being decided

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by the Ninth Circuit in a way that might provide Your Honor

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guidance on the legal questions that are relevant to the

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case.
THE COURT:

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Counsel, I'm going to suggest you used

the wrong term in there.
Did you mean to say the plaintiffs' standing to bring the
case?
MS. BENNETT:

Yes, Your Honor.

I'm sorry if I said

something else.
THE COURT:

Yes, you said "jurisdiction," and usually

it is the court that has jurisdiction, not a party.
MS. BENNETT:

Right.

Honor has jurisdiction.
THE COURT:

Their standing such that Your

I apologize.

I understand.

Anything else you'd like to say, counsel?

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MS. BENNETT:

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THE COURT:

No.

Thank you, Your Honor.

All right.

Well, I'd like to hear from

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the States on the question of staying discovery until after

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the U.S. files its answer, and, apparently, has an

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opportunity to challenge the jurisdiction of the court.

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MS. MELODY:

This is Colleen Melody, Your Honor.

And the States, you know, believe that discovery should

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proceed expeditiously in this case, in part due to the

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urgencies identified by all parties, you know, and the public

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interests that are at stake here.
And we don't read Rule 26 as preventing discovery

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before -- before a responsive pleading is filed, and

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certainly the States are available to confer with the

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government about, you know, sort of the scope of the

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discovery they expect in discovery, as required by Rule 26(f).

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In terms of standing, you know, the States have sort of

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set out what their injuries are, have described their

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pecuniary harms and their parens patriae harms, and I'm not

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sure what the government is thinking about in terms of what

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additional arguments it may need to prepare or make beyond

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those that it's been making so far between now and April 3rd.

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But, you know, if the government is proposing a motion to

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dismiss on standing grounds, that's something that we think

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we can proceed with, you know, in the near term rather than

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wait, in the interest of then, hopefully, simultaneously

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beginning discovery.
THE COURT:

All right.

Do either side wish to add

anything else to the conversation before we turn to a ruling?
MS. BENNETT:

Your Honor, this is Ms. Bennett.

Can I

just make a couple more points?

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THE COURT:

7

MS. BENNETT:

Certainly.
Just to the extent that plaintiffs are

8

attempting to sort of have this case move faster than a

9

normal case, we think they haven't shown any basis for that.

10

For some sort of expedited discovery, they would need to show

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good cause.

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currently enjoined from enforcing the Executive Order,

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there's no basis for that.

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And in light of the fact that the government is

So whether it is speeding up the deadline for defendants

15

to respond to the complaint or doing some sort of expedited

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discovery, we think there's just -- there's no basis for

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that, particularly in light of the fact that the plaintiffs

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aren't being harmed at the moment, in light of the

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injunction.

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THE COURT:

Counsel, I'm a little surprised to hear

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you say that, since the President announced he wanted to see

22

each other in court.

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that's where we are.

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It strikes me that that -- you know,

Are you confident that's the argument you want to make?
MS. BENNETT:

Yes, Your Honor.

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THE COURT:

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2

All right.

You said "a

couple of points."
MS. BENNETT:

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I'm sorry.

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sort of two combined points.

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THE COURT:

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Anything else?

Your Honor.

Those were

That's all I had.

All right.

Well, as I indicated, this is going to be an oral ruling.

7

It will be supplemented with an actual written order.

And as

8

you all learned -- what is it now? -- two Fridays ago, we

9

sometimes get written orders out fairly promptly so that you

10

can do what you did, which is to seek review of my handling

11

of the case, if you think that is appropriate.

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My view of this, roughly, follows the following:

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On February 3rd, 2017, I entered a temporary restraining

14

order -- that's found in the docket at 52 -- with the

15

intention of holding a subsequent hearing and issuing a

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subsequent, more detailed order on a motion for preliminary

17

injunction.

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proceed.

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That's the way the civil rules instruct me to

The federal defendants appealed that order to the Ninth
Circuit.

That's found in the docket at 53.

It would have been a bit of an uphill task to have the

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Court of Appeals review, on an appellate basis, a temporary

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restraining order, which is really intended to do nothing

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more than preserve the status quo.

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And in their pleadings that were filed with the Circuit,

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they indicated that they felt this was, effectively, a

2

preliminary injunction, and, therefore, they could appeal and

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that the Court of Appeals should issue a ruling.

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On, I believe it was February 7, an argument before the

5

Ninth Circuit, the initial positions were the United States

6

wanted this to be treated as a preliminary injunction, and

7

the States were adamant that it was a temporary restraining

8

order.

9

I've heard the transcript of that hearing, and, in

10

particular, towards the end of it, after the parties had the

11

benefit of listening to the questions from the court, there

12

was sort of like a change of ends in a football match.

13

United States was arguing that it was a temporary restraining

14

order and that they specifically wanted it to be remanded to

15

the district court, and the States were now arguing that it

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was a preliminary injunction.

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The

So much for fluid positions.

The Ninth Circuit opinion makes it quite clear that they

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viewed it as a preliminary injunction, and I don't think

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there was really much of a way to get around that ruling.

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think the language was something to the effect of,

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"possessing the qualities of an appealable preliminary

22

injunction."

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I

So that seems to me that the question that's up the Ninth

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Circuit is on a preliminary injunction on the questions of

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the effectiveness of the ban, or the continued application of

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the ban.
The Ninth Circuit issued two orders that day.

The second

3

order is a separate order, and it sets forth a briefing

4

schedule concerning the merits of the appeal.

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docket at 69.

6

That's in the

It seems to me that that's what governs your continued

7

work in regards to that appeal, is the order of the Ninth

8

Circuit, and I'm certainly not going to do anything to

9

interfere with that.

10

On February 9th, the State filed a letter with the court

11

saying that because of the court's finding -- the Ninth

12

Circuit's finding that the TRO possesses the quality of an

13

appealable preliminary injunction, the State assumes that a

14

district court briefing schedule is no longer applicable, and

15

they, accordingly, did not intend to file a motion for a

16

preliminary injunction.

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That's what got us all together on the phone for me to set

18

a briefing schedule, which was, I asked for -- by minute

19

order, I asked the parties to file a joint status report no

20

later than midnight on Sunday.

21

that day, that was revised in order to give the parties more

22

time to submit a simultaneous memorandum.

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noon today, and I appreciate you giving up your weekend for

24

that project.

25

In the telephone call later

That happened at

The matter is now ripe before me to rule on where we go

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2

from here.
In summary, the parties agree that no further briefing in

3

this court is required on the motion for preliminary

4

injunction, as the court's order is now on appeal as a

5

preliminary injunction.

6

There is a clear disagreement as to what should happen at

7

this point going forward in the district court.

Reading from

8

the States' brief, and I'm quoting, it says, "The States

9

favor expeditious proceedings in this court," meaning the

10

district court, "proceeding directly to discovery, including

11

a prompt Rule 26(f) conference by the parties, will not

12

interfere with the case on appeal."

13

I contrast that to the United States' position, in which

14

Ms. Bennett wrote, "Further proceedings the Ninth Circuit

15

will likely inform what additional proceedings on a

16

preliminary injunction motion are necessary in district

17

court.

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appropriate course is to postpone any further proceedings in

19

the district court."

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Accordingly, at this time defendants believe the

I am not persuaded that the call for an en banc review by

21

one judge, with briefing that doesn't really occur until

22

later in the month, and then, apparently, a vote by the Ninth

23

Circuit judges, ought to interfere with moving this case

24

forward, which, I have the sense from reading all of the

25

pleadings, a number of which I would note are deemed

19
1

emergency pleadings, that there is a very sensitive time

2

issue, particularly with representations that have been made

3

that the court's enjoining provisions of the Executive Order

4

is allowing bad consequences to the citizens of the United

5

States.

6

down.

7

If that is the case, I'm not prepared to slow this

So it seems to me that the best that we should do is,

8

based on the interpretation of the Ninth Circuit order, the

9

court agrees that its temporary restraining order has been

10

construed as a preliminary injunction, that that's now on

11

appeal, and that further briefing of that motion or on a

12

motion for preliminary injunction is not warranted or

13

appropriate while the appeal is pending.

14

Second, the court, however, does not see a basis for

15

postponing other aspects of the case, and agrees with the

16

States that the case should otherwise proceed.

17

are required to -- require the court to consider matters that

18

are already on appeal, the court can consider those issues on

19

a case-by-case basis if they arise.

20

directing the parties to continue to prepare the aspect of

21

the case which is not covered by the court's earlier ruling,

22

and that would include preparation of information to allow

23

you to meaningfully argue the motion for permanent

24

injunction, which would potentially result at the conclusion

25

of this proceeding.

If motions

Otherwise, I am

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1

So as I said, a written order will follow, but that should

2

give you some guidance, since I know you'll be back to

3

burning the midnight oil tonight.

4

Ms. Melody, anything further on behalf of the States?

5

MS. MELODY:

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THE COURT:

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MS. BENNETT:

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THE COURT:

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25

No, Your Honor.
Ms. Bennett?
No, Your Honor, thank you.
All right.

Thank you, counsel.

I found

your material helpful, and I appreciate your assistance.
We will be in recess.
(The proceedings concluded at 3:34 p.m.)

21

C E R T I F I C A T E

I, Nancy L. Bauer, CCR, RPR, Court Reporter
for the United States District Court in the Western District
of Washington at Seattle, do hereby certify that I was
present in court during the foregoing matter and reported
said proceedings stenographically.
I further certify that thereafter, I have
caused said stenographic notes to be transcribed under my
direction and that the foregoing pages are a true and
accurate transcription to the best of my ability.

Dated this 14th day of February 2017.

/S/

Nancy L. Bauer

Nancy L. Bauer, CCR, RPR
Official Court Reporter