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

Filing 94

MOTION to Intervene Attorney Scott J Kaplan added to party State of Oregon(pty:pla), filed by Plaintiff State of Oregon. (Attachments: # 1 Exhibit 1 to State of Oregon's Motion to Intervene) Noting Date 3/17/2017, (Kaplan, Scott)

The Honorable James L. Robart

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IN THE UNITED STATES DISTRICT COURT

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FOR THE WESTERN DISTRICT OF WASHINGTON

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STATE OF WASHINGTON, et al.,
Plaintiffs,

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v.
DONALD J. TRUMP, et al.,
Defendants.

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STATE OF OREGON,

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CIVIL ACTION NO. 2:17-cv-00141-JLR

STATE OF OREGON'S MOTION TO
INTERVENE

Intervenor-Plaintiff
v.

NOTE ON MOTION CALENDAR:
March 17, 2017

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 TILLERSON, in his
official capacity as Secretary of State; and the
UNITED STATES OF AMERICA,
Intervenor-Defendants

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STATE OF OREGON'S MOTION TO INTERVENE
(2:17-cv-00141-JLR)
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OREGON DEPARTMENT OF JUSTICE
100 SW Market Street
Portland, OR 97201
[phone] / Fax: [phone]

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I. MOTION
Pursuant to Fed. R. Civ. P. 24, the State of Oregon moves to intervene as of right. Fed. R.

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Civ. P. 24(a)(2). In the alternative, the State of Oregon moves for permissive intervention.

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Fed. R. Civ. P. 24(b)(1)(B). This motion is based on the declarations of Tobias Read, Howard N.

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Kenyon, Janet Billups, Richard Birkel, David G. Ellis, Margaret Everett, Dennis Galvan, Lee Po

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Cha, Ronald L. Adams, and Marc Overbeck, the pleadings and papers on file herein, and the

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accompanying points and authorities. The State of Oregon’s proposed Complaint-in-Intervention

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is attached hereto as Exhibit 1.

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II. INTRODUCTION
On January 27, 2017, after campaigning on a promise to impose “a total and complete

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shutdown of Muslims entering the United States” (Dkt. #18, ¶¶ 42-43), President Donald J.

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Trump signed Executive Order No. 13769, which he titled, “Protecting the Nation from Foreign

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Terrorist Entry into the United States” (the “Executive Order”). (Dkt. #18, ¶ 49). The State of

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Washington filed suit in this Court on January 30 (Dkt. #1, 3), soon joined by the State of

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Minnesota, to enjoin enforcement of certain portions of the Executive Order. (Dkt. #18, 19). In

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particular, Washington and Minnesota allege that the Executive Order is motivated by a

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discriminatory animus toward Muslims, violates a host of federal constitutional protections, and

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runs afoul of several federal statutes. They further allege that the Executive Order harms their

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state interests and the interests of their residents.

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Oregon is both similarly and uniquely harmed. The Executive Order has caused—and

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threatens to further cause—harm to Oregon and its residents, employers, agencies, educational

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institutions, healthcare system, and economy. Moreover, the Executive Order forces Oregon to

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violate its own laws against discrimination, frustrating Oregon’s sovereign interest in providing a

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welcoming home to people from all over the world. In order to vindicate its rights and to protect

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its unique interests, and because no party would be prejudiced by Oregon’s participation in this

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matter, Oregon now seeks to intervene.
STATE OF OREGON'S MOTION TO INTERVENE
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OREGON DEPARTMENT OF JUSTICE
100 SW Market Street
Portland, OR 97201
[phone] / Fax: [phone]

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III. STATEMENT OF FACTS

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The procedural and substantive facts underlying this litigation are familiar to this Court

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and were recently set forth at length by published order of the Ninth Circuit Court of Appeals.

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See Washington v. Trump, No. 17-35105, 2017 WL 526497, at *1–*2 (9th Cir. Feb. 9, 2017)

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(recounting facts). In the interests of judicial efficiency and economy, Oregon does not recount

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that history in detail here. Any additional facts relevant to Oregon’s claims are set forth below, as

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appropriate.

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IV. ARGUMENT

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“Intervention is governed by Fed. R. Civ. Proc. 24(a) and (b).” In re Estate of

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Ferdinand E. Marcos Hum. Rts. Litig., 536 F.3d 980, 984 (9th Cir. 2008). Here, Oregon is

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entitled to intervene as of right under Rule 24(a)(2). In the alternative, this court should permit

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Oregon to intervene under Rule 24(b)(1)(B).

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A.

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Oregon has a Right to Intervene Under Federal Rule of Civil Procedure 24(a)(2).
Oregon has a right to intervene under Fed. R. Civ. P. 24(a)(2). That rule provides, in

pertinent part:
On timely motion, the court must permit anyone to intervene who: . . . (2) claims
an interest relating to the property or transaction that is the subject of the action,
and is so situated that disposing of the action may as a practical matter impair or
impede the movant’s ability to protect its interest, unless existing parties
adequately represent that interest.
Fed. R. Civ. P. 24(a)(2).
This Court examines four factors to determine whether an applicant should be permitted

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to intervene as a matter of right under Rule 24(a)(2): (1) the motion must be timely; (2) the

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applicant must have a “significantly protectable interest” relating to the property or transaction

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which is the subject of the action; (3) the applicant must be so situated that the disposition of the

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action may impair or impede the applicant’s ability to protect that interest; and (4) the applicant’s

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interest must be inadequately represented by the parties to the action. Arakaki v. Cayetano,

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STATE OF OREGON'S MOTION TO INTERVENE
(2:17-cv-00141-JLR)
SK/rh2/8069134-v1

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OREGON DEPARTMENT OF JUSTICE
100 SW Market Street
Portland, OR 97201
[phone] / Fax: [phone]

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324 F.3d 1078, 1083 (9th Cir. 2003) (citation omitted). Oregon’s motion satisfies each of these

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factors.

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1.

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Oregon plainly meets the timeliness factor. To determine whether a motion to intervene is

Oregon’s motion is timely.

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timely, this Court considers (1) “the stage of the proceeding at which an applicant seeks to

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intervene,” (2) “the prejudice to other parties,” and (3) “the reason for and length of the delay.”

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United States v. Alisal Water Corp., 370 F3d 915, 921 (9th Cir. 2004). Here, as the Ninth Circuit

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observed less than two weeks ago, this case is at a “very preliminary stage” of the proceedings.

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See Washington, 2017 WL 526497, at *1. This case has not substantially progressed since that

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time—for example, discovery has not commenced, nor has this Court held evidentiary

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proceedings. In the absence of any such additional proceedings, defendants cannot plausibly

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claim that intervention would result in any form of prejudice. Moreover, any delay in

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intervention has been short and reasonably attributable to the need to gather evidence. Cf. Day v.

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Apoliona, 505 F.3d 963, 965–66 (9th Cir. 2007) (finding motion timely when made two years

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after case was filed); Smith v. Los Angeles Unified Sch. Dist., 830 F.3d 843, 854 (9th Cir. 2016)

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(finding motion timely when made twenty years after case was filed). Accordingly, Oregon’s

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motion is timely.

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2.

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Oregon also meets the second factor, because it has a “significantly protectable interest”

Oregon has a “significantly protectable interest” related to this case.

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related to this case. See Arakaki, 324 F.3d at 1083 (stating requirement). A significantly

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protectable interest exists where “the interest is protectable under some law, and . . . there is a

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relationship between the legally protected interest and the claims at issue.” Id. at 1084 (quotation

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marks and citation omitted). The “relationship” requirement is generally met where the

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“resolution of the plaintiff's claims actually will affect the applicant.” Id. (quotation marks and

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STATE OF OREGON'S MOTION TO INTERVENE
(2:17-cv-00141-JLR)
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OREGON DEPARTMENT OF JUSTICE
100 SW Market Street
Portland, OR 97201
[phone] / Fax: [phone]

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citation omitted). Here, Oregon holds a number of legally protected interests that actually will

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be affected by the resolution of this litigation.1

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Effect on Oregon’s Finances

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First, Oregon’s own finances will suffer if the unlawful immigration ban is enforced. Of

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Oregon’s $92 billion investment portfolio, more than 19 million shares are held in technology

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companies who have expressed alarm at the likely impacts of the Executive Order on their

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businesses. (See Declaration of Tobias Read, ¶¶ 6-12). Additionally, because Oregon

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companies employ immigrants, refugees, and others who would be affected by the ban in more

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indirect ways (such as spouses of immigrants), threats to Oregon’s companies will result in

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serious risks to Oregon’s financial investments, credit ratings, companies, and tax revenue. (See

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Read Dec., ¶¶ 5-13.).

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Effect on Oregon’s Educational Institutions

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Second, the Executive Order harms Oregon’s educational institutions. Oregon has 7 state

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universities, 17 community colleges, and at least 12 to 20 private colleges and universities.

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Hundreds of students and professors at those universities and colleges are from one of the seven

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countries covered by the Muslim travel ban. As a result, the work of those colleges is adversely

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affected by the ban. For example, of the 3,016 international students currently studying at the

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University of Oregon (“UO”), a public research university, 38 are citizens of the seven affected

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countries, and are here on valid student visas. International students typically pay substantially

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more than in-state students, providing more than $100 million in tuition each year, in total. That

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“In general, an applicant for intervention need not establish Article III standing to intervene.”
Perry v. Schwarzenegger, 630 F.3d 898, 906 (9th Cir. 2011) (per curiam); but see Laroe Estates,
Inc. v. Town of Chester, 828 F.3d 60, 65 (2d Cir. 2016), cert. granted sub nom. Town of Chester,
N.Y. v. Laroe Estates, Inc., No. 16-605, 2017 WL 125674 (U.S. Jan. 13, 2017) (noting that “there
is a circuit split on this issue”). To the extent that Oregon is required to demonstrate Article III
standing in order to intervene, it has standing for the same reasons that the Ninth Circuit
concluded that Washington and Minnesota have standing. See Washington, No. 17-35105, 2017
WL 526497, at *3–*5, *5 n 5 (concluding that the States had standing to challenge the harm to
their proprietary interests at a minimum).
STATE OF OREGON'S MOTION TO INTERVENE
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OREGON DEPARTMENT OF JUSTICE
100 SW Market Street
Portland, OR 97201
[phone] / Fax: [phone]

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tuition allows UO to subsidize Oregon students. (See Declaration of Dennis Galvan, ¶¶ 7-8).

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The Executive Order damages UO’s funding, its ability to attract international students, and its

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ability to retain faculty who may not be able to return to the United States after travel. (Id., ¶¶ 9-

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17).

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Similarly, Portland State University (“PSU”) has over 1900 international students, 59 of

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whom are citizens of five of the countries affected by the Executive Order: Iran, Iraq, Yemen,

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Libya and Syria. (Declaration of Margaret Everett, ¶ 7). PSU also relies on tuition from

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international students, which constituted approximately 13 percent of its net tuition and fees for

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2015-2016. (Id., ¶ 8). PSU admitted thirteen international students from the affected countries

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for the Spring 2017 term. Their tuition revenue will be lost if they are unable to travel to

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Oregon. (Id., ¶ 16). The Executive Order has also damaged research being conducted at PSU.

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For example, a researcher who is an Iranian national was conducting research funded by a

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university in Finland related to water resources engineering in collaboration with faculty in

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PSU’s Maseeh College of Engineering and Computer Sciences. He returned to Finland over the

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winter break and was scheduled to leave Europe to return to the United States on January 27,

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2017. He was not allowed to board his flight, despite holding a valid J-1 visa. To date, the

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visiting researcher has not returned to PSU and it is unclear at this time whether he will do so,

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thereby harming this important research. (Id., ¶ 13).

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Oregon State University (“OSU”) has 3,529 international students enrolled, comprising

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more than 11 percent of its student body of 30,354 students. Approximately 165 current students

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are citizens of the affected countries, studying in Oregon on student visas. As with other students

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from outside Oregon, those 165 students typically pay full non-resident rates; OSU’s international

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students represent approximately $85 million in annual gross tuition revenue to OSU. (See

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Declaration of Ronald Adams, ¶¶ 5-8.) Those students, as well as the school’s international

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scholars (faculty, post-doctoral students, and others) are all affected by the Executive Order in

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STATE OF OREGON'S MOTION TO INTERVENE
(2:17-cv-00141-JLR)
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OREGON DEPARTMENT OF JUSTICE
100 SW Market Street
Portland, OR 97201
[phone] / Fax: [phone]

1

ways that are affecting OSU’s resources and staff, and draining away time and resources that

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otherwise would be spent on other community needs. (Id., ¶¶ 9-19.)

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Oregon’s private colleges and universities are also affected by the Executive Order,

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resulting in a loss of tax dollars, employment, and diversity that these students bring to the state.

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For example, Lewis & Clark College in Portland, Oregon has approximately 200 international

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students from six continents and more than 70 counties. (Declaration of David G. Ellis, ¶ 4.

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Lewis & Clark has at least one student from the affected counties who cannot participate in the

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college’s overseas study program. (Id., ¶ 5-6). Additionally, if the Executive Order takes effect,

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it will harm the college’s efforts to recruit international students, causing not only a loss of tuition

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revenue, but also harming Lewis & Clark’s efforts to foster a diverse and global student body.

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(Id., ¶ 8)

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Impact on Oregon’s Voluntary Organizations

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Third, the Executive Order harms Oregon’s voluntary organizations (“VOLAGS”) that

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work in the field of refugee resettlement. Since 2010, more than 8,500 refugees have arrived in

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Oregon, with the majority resettling in Portland, and the numbers have steadily increased each

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year. Three of the six most common refugee groups come from Iran, Iraq, and Somalia.2 Once

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those refugees arrive in Oregon, the resettlement process is facilitated by VOLAGS. But if the

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immigration ban is enforced, Oregon VOLAGS will lose federal funding for refugee resettlement

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programs, which will force those organizations to lay off staff and reduce operations—resulting

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in a loss of tax revenue to Oregon. (See generally Declaration of Howard N. Kenyon;

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Declaration of Richard Birkel; Declaration of Lee Po Cha).

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See Refugees in Oregon Data, Oregon Department of Human Services, available online at
http://www.oregon.gov/DHS/ASSISTANCE/REFUGEE/Pages/data.aspx (last accessed Feb. 21,
2017).
STATE OF OREGON'S MOTION TO INTERVENE
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OREGON DEPARTMENT OF JUSTICE
100 SW Market Street
Portland, OR 97201
[phone] / Fax: [phone]

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Impact on Oregon’s Health Care System

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Fourth, the Executive Order harms Oregon’s health care system. Six medical residents at

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Oregon Health & Science University—a public academic medical center—are from the countries

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affected by the Executive Order. Those residents perform critically needed medical care in a

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variety of fields. If they were prevented from returning to the United States after a trip abroad,

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or if they left the country due to the effects of the Executive Order, OHSU likely would not be

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able to replace them. As a result, OHSU would lack the necessary work force to provide the

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services currently provided by those Residents. The loss of even one Resident to a program

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carries a very high risk of an adverse impact on OHSU’s ability to provide the patient care that

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the State of Oregon and Oregonians need. (See Declaration of Janet Billups ¶¶ 3, 5, 7-9).
The Executive Order also threatens Oregon’s ability to attract and retain physicians to

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practice in rural and underserved areas, though the J-1 visa program. (See Declaration of Marc

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Overbeck, ¶¶ 3-6). Already, one physician from a country affected by the Executive Order who

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had been willing to work in Florence, Oregon, an area affected by a physician shortage, has

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indicated through his counsel that because of the Executive Order, he was unlikely to obtain a

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visa. (Overbeck Dec., ¶ 4). Currently, J-1 visa physicians from Iran and Iraq are practicing in

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underserved areas in Oregon. Without those J-1 visa physicians, Oregon patients will have to

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either delay treatment or travel farther to obtain it, resulting in additional Oregon Health Plan and

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Medicare Costs to the State. (See Overbeck Dec., ¶¶ 5-6.).

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Impact on Oregon’s Sovereign Interests
Sixth, the Executive Order harms Oregon’s sovereign interest in enforcing its own laws.

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Oregon has codified its state policy that practices of unlawful discrimination against any of its

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inhabitants because of religion or national origin are “a matter of state concern,” and that such

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discrimination “menaces the institutions and foundation of a free democratic state.” See Or. Rev.

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Stat. § 659A.006(1). But the Executive Order gives effect to discriminatory policies and

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STATE OF OREGON'S MOTION TO INTERVENE
(2:17-cv-00141-JLR)
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OREGON DEPARTMENT OF JUSTICE
100 SW Market Street
Portland, OR 97201
[phone] / Fax: [phone]

1

practices that necessarily affect Oregon’s inhabitants, thereby frustrating Oregon’s ability to

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effectuate its statutorily codified sovereign duty toward its residents.

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In short, because the executive order harms Oregon’s finances, educational institutions,

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voluntary organizations, health care system, and sovereign interests, Oregon has a significantly

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protectable interest related to this case.

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3.

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The disposition of this action may impair Oregon’s ability to protect its
interests.

Oregon also meets the third requirement, because the disposition of the action “may as a
practical matter” impair or impede Oregon’s ability to safeguard its protectable interests. See

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Smith, 830 F.3d at 862; Arakaki, 324 F.3d at 1083. For the reasons discussed above, that test is

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met here. A decision in favor of defendants would have far-reaching practical consequences for

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Oregon’s ability to safeguard its protectable interests—both those that it shares with Washington

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and Minnesota, and its unique interests arising under Oregon law. Therefore, Oregon meets the

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third Rule 24(a)(2) factor.

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4.

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Finally, Oregon’s interests are inadequately represented by the parties to this action. The

Oregon’s interests are inadequately represented by the parties to the action.

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burden on a proposed intervenor to demonstrate inadequate representation is “minimal,” and is

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satisfied by a showing that representation of its interests “may be” inadequate. Arakaki, 324 F.3d

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at 1086 (quotation marks and citation omitted; emphasis added). Three factors are relevant to

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that inquiry: “(1) whether the interest of a present party is such that it will undoubtedly make all

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of a proposed intervenor’s arguments; (2) whether the present party is capable and willing to

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make such arguments; and (3) whether a proposed intervenor would offer any necessary

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elements to the proceeding that other parties would neglect.” Id. (citation omitted). Those

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factors weigh in favor of intervention here.

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Oregon has an interest separate from, and as critical as, the interest advanced by
Washington and Minnesota—Oregon’s statutorily codified sovereign interest in protecting its
STATE OF OREGON'S MOTION TO INTERVENE
(2:17-cv-00141-JLR)
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OREGON DEPARTMENT OF JUSTICE
100 SW Market Street
Portland, OR 97201
[phone] / Fax: [phone]

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residents from discrimination. See Or. Rev. Stat. § 659A.006(1). As noted above, this statute

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provides that discrimination because of religion or national origin is “a matter of state concern,”

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and that such discrimination “menaces the institutions and foundation of a free democratic state.”

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Oregon seeks to protect this unique Oregon legislative policy in this case. The State of Oregon

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also seeks to protect its state coffers and universities from damage, as well as its citizens and

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organizations; the States of Washington and Minnesota are not in a position to speak to the

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injuries suffered in Oregon.

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If Washington and Minnesota prevail in this case, as they should, it is possible that this

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Court may craft a more limited remedy, short of a nationwide injunction, that will not address the

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harm to Oregon’s unique sovereign interests. Moreover, because it has no independent power to

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regulate federal immigration law, Oregon has no independent recourse to remediate that harm.

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In short, for all of the foregoing reasons, Oregon is entitled to intervene in this action as a

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matter of right.

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B.

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Should the Court determine that Oregon does not have a right to intervene, it
should grant permissive intervention under Rule 24(b).
In the alternative, this Court should exercise its discretion to grant Oregon permission to

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intervene under Rule 24(b). That rule provides in pertinent part that, “On timely motion, the

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court may permit anyone to intervene who . . . (B) has a claim or defense that shares with the

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main action a common question of law or fact.” Blum v. Merrill Lynch Pierce Fenner & Smith

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Inc., 712 F3d 1349, 1353 (9th Cir 2013) (quoting Fed. R. Civ. P. 24(b)(1)). Generally,

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permissive intervention requires “(1) an independent ground for jurisdiction; (2) a timely motion;

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and (3) a common question of law and fact between the movant’s claim or defense and the main

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action.” Blum, 712 F3d at 1353 (quotation marks and citation omitted). In determining whether

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to exercise its discretion to grant permissive intervention, the Court considers “whether the

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intervention will unduly delay or prejudice the adjudication of the original parties’ rights.”

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Fed. R. Civ. P. 24(b)(3). Oregon meets the requirements for permissive intervention here.
STATE OF OREGON'S MOTION TO INTERVENE
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OREGON DEPARTMENT OF JUSTICE
100 SW Market Street
Portland, OR 97201
[phone] / Fax: [phone]

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First, jurisdiction is easily established, because this is a federal-question case. See

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Freedom from Religion Found., Inc. v. Geithner, 644 F3d 836, 844 (9th Cir 2011) (explaining

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that jurisdictional requirement of permissive intervention satisfied where case presented federal

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question). See also 28 U.S.C. §1331 (“The district courts shall have original jurisdiction of all

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civil actions arising under the Constitution, laws, or treaties of the United States.”). Second,

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Oregon’s motion is timely, as explained above. Third, also for the reasons described above, this

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case squarely presents a common question of law and fact between Oregon’s claims and the

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main action. Finally, defendants will suffer no conceivable prejudice, at this very early stage in

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the proceedings, due to intervention by Oregon. Allowing Oregon to intervene will aid the Court

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to better assess the effects and lawfulness of the Executive Order. For all of those reasons, this

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Court should, in the alternative, exercise its discretion to allow Oregon to intervene.

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IV.

CONCLUSION

Oregon’s motion should be granted and it should be given leave to file its Complaint-inIntervention, attached hereto as Exhibit 1.

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DATED February 22 , 2017.

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Respectfully submitted,

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ELLEN F. ROSENBLUM
Attorney General

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s/ Scott Kaplan
SCOTT J. KAPLAN, WSBA #49377
Senior Assistant Attorney General
Oregon Department of Justice
100 SW Market Street
Portland, OR 97201
[phone]
Email: [e-mail]
Of Attorneys for Intervenor-Plaintiff

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STATE OF OREGON'S MOTION TO INTERVENE
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OREGON DEPARTMENT OF JUSTICE
100 SW Market Street
Portland, OR 97201
[phone] / Fax: [phone]