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 purchase a copy of the transcript, contact court reporter Nancy Bauer,, 206-370-8506. Release of Transcript Restriction set for 5/15/2017, (NB)

Download PDF
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 (206) 370-8506 2 1 2 February 13, 2017 3:00 p.m. PROCEEDINGS _____________________________________________________________ THE CLERK: 3 4 5 Donald Trump. Counsel, please make your appearances for the record. MS. MELODY: 6 7 Case No. C17-141, State of Washington v. Good afternoon, Your Honor. This is Colleen Melody for the State of Washington. 8 THE COURT: 9 MS. BENNETT: Thank you. Good afternoon, Your Honor. This is 10 Michelle Bennett for the defendants. 11 on the call with me, if you'd like me to identify them as 12 well. THE COURT: 13 14 MS. BENNETT: 16 THE COURT: MS. BENNETT: 19 THE COURT: MS. MELODY: 22 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: 24 25 That's fine, then. person speaking on behalf of the States? 21 23 Yes, Your Honor. introduced. 18 20 Are you going to be the only one speaking? 15 17 I also have some others Gilbert. Yes, Your Honor. My name is Alan I'm the State Solicitor General. 3 1 THE COURT: 2 MR. GILBERT: 3 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 5 have the United States represented by counsel out of 6 Washington, D.C., and counsel from Minnesota, I assume 7 probably in the St. Paul or Minneapolis area, and the State 8 of Washington down in Olympia. 9 expedient way to get your advice and counsel on where we go 10 11 So this seemed the most from here. This hearing arose from the telephone conference that was 12 requested on an expedited basis last Friday afternoon that 13 had to do with the proper interpretation of the Ninth 14 Circuit's order in this matter. 15 I found both of your status reports to be helpful. I 16 guess I'm not surprised that you are not in agreement, but I 17 thought you did a nice job of setting out your respective 18 positions. 19 What I propose to do today is, I will give the plaintiffs 20 up to 15 minutes to explain -- and I don't know how you want 21 to divide your time between Washington and Minnesota -- to 22 tell me how you see where we are right now. 23 Ms. Bennett, I'll give you 15 minutes to do it. 24 25 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, 4 1 and that will be followed up by a written order, which will 2 be more detailed and also offer authority for the 3 propositions that I think we ought to proceed with. 4 So just to frame the issue: When we last talked, the 5 question arose in the context of the State of Washington, and 6 I assume the State of Minnesota is a joinder, in the 7 proposition that the Ninth Circuit Court of Appeals, which 8 I'll sometimes call "the three-judge panel," order in this 9 matter was, effectively, a preliminary injunction, and on 10 that basis, the State had concluded that it was not filing a 11 preliminary injunction in accordance with the schedule that 12 you all had proposed and which I had entered. 13 And Ms. Bennett, in that telephone conversation on Friday, 14 asked that the United States be given additional time in 15 order to determine its approach to this situation. 16 believe, Ms. Bennett, you can correct me, but you were asking 17 for Thursday or Friday of this week, and I was hesitant to do 18 that for reasons that the schedule that you've originally 19 proposed, "you" being the parties, certainly was more 20 expedited than that, and the three-judge panel set a briefing 21 schedule in this matter that's rather aggressive. 22 I This is all a little bit complicated by the fact that 23 there was an unnamed judge of the Ninth Circuit Court of 24 Appeals who filed a request for en banc review of the 25 three-judge panel's ruling. 5 1 Under their procedures, that's circulated to the judges, a 2 vote is conducted, and then parties are advised that there 3 was sufficient votes to proceed to en banc review or not. 4 And they've given you additional homework to do on your 5 already rather cluttered schedules. 6 long after your briefing is submitted to them they would tell 7 you if there is going to be en banc review or not. 8 implicit in your pleadings is the fact that there is a 9 disagreement as to the impact, if there was en banc review. 10 11 12 13 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 14 the States were preparing last Thursday afternoon to file 15 their preliminary injunction motion in accordance with the 16 schedule that the court entered. 17 And the intervening event that happened was the issuance 18 of the three-judge panel's opinion denying a stay pending 19 appeal of this court's February 3rd order. 20 And we read that opinion to decide the issue for purposes 21 of sort of the law of the case about what -- what this -- 22 what the February 3rd order is. 23 The defendants had taken the position in the Ninth Circuit 24 that the February 3rd order was a reviewable preliminary 25 injunction, that it had the qualities and characteristics of 6 1 a preliminary injunction such that the Ninth Circuit could 2 review it. 3 that February 3rd order was a preliminary injunction and not 4 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. 7 And that's important, because unless -- unless So the defendants took the position and were to secure a 8 Ninth Circuit review that -- that this court's February 3rd 9 order was a preliminary injunction, that it had the qualities 10 of a preliminary injunction such that the Ninth Circuit could 11 review it. 12 And, you know, that was the position that we read the 13 Ninth Circuit's -- the three-judge panel's opinion to accept. 14 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 16 twice says that, sort of in the extraordinary circumstances 17 of this case, the -- the TRO, the February 3rd order, is a 18 preliminary injunction, has the qualities of one, such that 19 it can be appealed. 20 And seeing that language caused us to, you know, determine 21 that we -- that we didn't have any relief that we needed 22 granted, and such that a preliminary injunction motion was 23 unnecessary and would have been duplicative of relief that 24 the Ninth Circuit was now telling us we already had. 25 The Ninth Circuit panel didn't change any of the 7 1 provisions of the court's February 3rd order, despite being 2 requested to do so, argument on that point, and explicitly 3 declined to modify the scope of the injunction provisions in 4 any way, and so because it became, in effect, by operation of 5 law, a preliminary injunction when the Ninth Circuit accepted 6 appellate review of it, that gave it all of the qualities of 7 a preliminary injunction that we would have been seeking that 8 same afternoon. 9 So the -- the time -- the piece about the time going 10 forward, preliminary injunctions are in place until a 11 judgment is reached on the merits or until one is altered by 12 a subsequent order of this court or an appellate court. 13 And so you asked, Your Honor, you know, what may be the 14 effect of the Ninth Circuit en banc proceeding, if any, or 15 review on the merits by the merits panel, and the answer is 16 that the preliminary injunction is in place until one of 17 those bodies changes it. 18 But that's no reason -- that's no reason for this court 19 not to proceed toward a determination on the merits of the 20 States' claim. 21 while a preliminary injunction is in place, the parties can 22 proceed with discovery and litigation towards reaching a 23 merits determination. 24 25 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 8 1 court that the February 3rd order is not a preliminary 2 injunction, when that is the position that they took in order 3 to secure the review that they wanted in the Ninth Circuit. 4 So once the Ninth Circuit has said that that's what it is, I 5 think that's what it is for purposes of the case going 6 forward, whether in the Court of Appeals or in the district 7 court. 8 9 So I don't think that I need all of the 15 minutes now. I'm certainly happy to answer questions, or, perhaps, 10 preserve the rest of my time in case there are points that 11 Ms. Bennett raises that the States may wish to respond to. 12 13 14 THE COURT: Thank you. Mr. Gilbert, do you wish to say anything at this point? MR. GILBERT: Your Honor, only that we certainly 15 agree with what counsel for Washington indicated, and I think 16 it's reflected in the memorandum we filed with the court. 17 18 19 THE COURT: All right. Thank you. Ms. Bennett? MS. BENNETT: Thank you, Your Honor. 20 As we indicated in our memorandum, we think that the 21 proceedings that are taking place in the Ninth Circuit will 22 likely inform the question that Your Honor asked. 23 As Your Honor noted, the merits -- or the panel of the 24 Ninth Circuit that considered the stay motion did conclude 25 that, for purposes of the stay motion, Your Honor's order 9 1 possessed the qualities of an appealable preliminary 2 injunction. 3 But the court also noted that that conclusion didn't 4 preclude consideration of appellate jurisdiction at the 5 merits stage, and we also now have the issue of the Ninth 6 Circuit considering whether to take this question up en banc, 7 and, therefore, we think it would be appropriate to wait to 8 address this question until after the Ninth Circuit has 9 addressed the en banc question, where we might have more 10 insight into what -- what the Ninth Circuit is thinking is 11 terms of the scope of Your Honor's order. 12 THE COURT: Would you agree with me that there are 13 really two parts to this? 14 Circuit has now treated as a preliminary injunction that has 15 to do with enforceability, and they've set a briefing 16 schedule for you in that; and then the other aspect of it, 17 which is the merits, which would ultimately result in a 18 motion for a permanent injunction. 19 20 21 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 22 the Ninth Circuit at all to be considering the question of a 23 permanent injunction. 24 25 The en banc question right now that's before the court is whether to take the issue of a stay of Your Honor's 10 1 injunctive order pending our appeal of the merits of that 2 order en banc. THE COURT: 3 4 you. I'm going interrupt you. I agree with I mean, perhaps my question wasn't precise enough. 5 That is the issue that's in the Ninth Circuit right now. 6 Still pending in the district court, however, are the merits 7 of the States' original case, in which they seek a permanent 8 injunction. 9 at the present time. 10 11 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 12 with respect to a permanent injunction, that it would make 13 the most sense and be most efficient for Your Honor to stay 14 district court proceedings until the Ninth Circuit is able to 15 address the merits, because they will likely be addressing 16 legal questions that will be relevant to Your Honor's 17 decision on the final merits of this case. 18 Courts regularly stay district court proceedings pending 19 an appeal of a preliminary injunction, and so we think that 20 that would be the appropriate course in this case as well. 21 THE COURT: What is your best authority for the 22 proposition that if it is a narrow question that's in the 23 circuit now, the ban question, that they're going to give us 24 some kind of advisory opinions in regards to the merits? 25 MS. BENNETT: Well, Your Honor, we think the question 11 1 that's before the Ninth Circuit on the merits of our appeal 2 is whether plaintiffs have a likelihood of success on the 3 merits of their claims, which is, the merits of the claims is 4 the very question that Your Honor would be answering if you 5 proceeded with the case. 6 And so we think that the Ninth Circuit's decision with 7 respect to whether the government is likely to appeal on the 8 merits -- or, sorry -- whether plaintiffs are likely to 9 appeal on the merits would certainly be relevant to the 10 11 underlying litigation of the merits. THE COURT: Well, would you agree with me that 12 discovery on the question of the merits, without a motion 13 that would ultimately decide the question, would be the best 14 use of the time? 15 MS. BENNETT: We don't think so, Your Honor. First 16 of all, we would oppose discovery. 17 the government should have the opportunity first to, at 18 least, respond to the complaint. 19 aware, our response to the complaint isn't due until April 20 3rd, and we would plan in that motion to raise both 21 jurisdictional and legal arguments. 22 proceeding with that first would make the most sense before 23 getting into any discovery, which, as I said, I don't think 24 we think is appropriate anyway. 25 THE COURT: But we also think that As Your Honor is probably And we think that Well, wasn't the purpose of the 12 1 amendments to the civil rules that were done in December of 2 2015 to promote early, at least, beginning discovery, even 3 before answers were filed so that we would move these cases 4 along? MS. BENNETT: 5 Well, Your Honor, I think that might be 6 the case where there are no jurisdictional questions in a 7 case. 8 the plaintiffs' jurisdiction to bring a case, we think it is 9 important to resolve that issue first, and, again, I would But where the government has and intends to challenge 10 note also, while questions about the merits are being decided 11 by the Ninth Circuit in a way that might provide Your Honor 12 guidance on the legal questions that are relevant to the 13 case. THE COURT: 14 15 16 17 18 19 20 21 22 23 24 25 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? 13 1 MS. BENNETT: 2 THE COURT: No. Thank you, Your Honor. All right. Well, I'd like to hear from 3 the States on the question of staying discovery until after 4 the U.S. files its answer, and, apparently, has an 5 opportunity to challenge the jurisdiction of the court. 6 7 MS. MELODY: This is Colleen Melody, Your Honor. And the States, you know, believe that discovery should 8 proceed expeditiously in this case, in part due to the 9 urgencies identified by all parties, you know, and the public 10 11 interests that are at stake here. And we don't read Rule 26 as preventing discovery 12 before -- before a responsive pleading is filed, and 13 certainly the States are available to confer with the 14 government about, you know, sort of the scope of the 15 discovery they expect in discovery, as required by Rule 26(f). 16 In terms of standing, you know, the States have sort of 17 set out what their injuries are, have described their 18 pecuniary harms and their parens patriae harms, and I'm not 19 sure what the government is thinking about in terms of what 20 additional arguments it may need to prepare or make beyond 21 those that it's been making so far between now and April 3rd. 22 But, you know, if the government is proposing a motion to 23 dismiss on standing grounds, that's something that we think 24 we can proceed with, you know, in the near term rather than 25 wait, in the interest of then, hopefully, simultaneously 14 1 2 3 4 5 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? 6 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 11 good cause. 12 currently enjoined from enforcing the Executive Order, 13 there's no basis for that. 14 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 16 discovery, we think there's just -- there's no basis for 17 that, particularly in light of the fact that the plaintiffs 18 aren't being harmed at the moment, in light of the 19 injunction. 20 THE COURT: Counsel, I'm a little surprised to hear 21 you say that, since the President announced he wanted to see 22 each other in court. 23 that's where we are. 24 25 It strikes me that that -- you know, Are you confident that's the argument you want to make? MS. BENNETT: Yes, Your Honor. 15 THE COURT: 1 2 All right. You said "a couple of points." MS. BENNETT: 3 I'm sorry. 4 sort of two combined points. 5 THE COURT: 6 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. 12 My view of this, roughly, follows the following: 13 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 16 subsequent, more detailed order on a motion for preliminary 17 injunction. 18 proceed. 19 20 21 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 22 Court of Appeals review, on an appellate basis, a temporary 23 restraining order, which is really intended to do nothing 24 more than preserve the status quo. 25 And in their pleadings that were filed with the Circuit, 16 1 they indicated that they felt this was, effectively, a 2 preliminary injunction, and, therefore, they could appeal and 3 that the Court of Appeals should issue a ruling. 4 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 16 was a preliminary injunction. 17 The So much for fluid positions. The Ninth Circuit opinion makes it quite clear that they 18 viewed it as a preliminary injunction, and I don't think 19 there was really much of a way to get around that ruling. 20 think the language was something to the effect of, 21 "possessing the qualities of an appealable preliminary 22 injunction." 23 I So that seems to me that the question that's up the Ninth 24 Circuit is on a preliminary injunction on the questions of 25 the effectiveness of the ban, or the continued application of 17 1 2 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. 5 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. 17 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. 23 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 18 1 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. 18 appropriate course is to postpone any further proceedings in 19 the district court." 20 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 20 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: 6 THE COURT: 7 MS. BENNETT: 8 THE COURT: 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 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

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?