State of Washington et al v. United States of America et al
Filing
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NOTICE of Supplemental Authority re #22 MOTION to Dismiss by Defendants Alex Azar, Thomas Homan, Scott Lloyd, Kevin K. McAleenan, Kirstjen Nielsen, Office of Refugee Resettlement, Jefferson Beauregard Sessions, III, Donald Trump, U.S. Citizenship and Immigration Services, U.S. Customs and Border Protection, U.S. Department of Health and Human Services, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement, United States of America (Attachments: #1 Exhibit 1)(Press, Joshua)
The Honorable Marsha J. Pechman
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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE
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No. 2:18-cv-0939 (MJP)
STATE OF WASHINGTON, et al.,
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Plaintiffs,
v.
UNITED STATES OF AMERICA, et al.,
DEFENDANTS’ NOTICE OF
SUPPLEMENTAL AUTHORITY
Noted For Consideration:
August 3, 2018
Defendants.
Oral Argument Requested
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DEFENDANTS’ NOTICE OF
SUPPLEMENTAL AUTHORITY
State of Washington, et al. v. United States, et al.,
Case No. 2:18-cv-00939 (MJP)
U.S. DEPARTMENT OF JUSTICE
CIVIL DIVISION, OIL-DCS
P.O. BOX 868 BEN FRANKLIN STATION
WASHINGTON, DC 20044
TELEPHONE: (202) 305-0106
FACSIMILE: (202) 305-7000
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Defendants, by and through undersigned counsel, respectfully submit this Notice of
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Supplemental Authority to bring the Court’s attention to the July 19, 2018 decision by the
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United States District Court for the Southern District of New York in N.T.C. v. ICE, No. 18-cv-
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6428, Dkt. 20, slip op. (S.D.N.Y. July 19, 2018) (Exhibit 1). The court in N.T.C. addressed
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whether a putative class action “brought on behalf of children who were separated from their
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parents and are now being held in New York State” should be able to “seek to ensure that each
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class member has a meaningful opportunity to pursue asylum[.]” Id. at 2. Recognizing the
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substantive overlap with Ms. L. v. ICE, No. 18-cv-428 (S.D. Cal.), Judge Furman “conclude[d]
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for several reasons that Plaintiffs’ claims should be transferred to the Southern District of
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California to be considered in conjunction with the claims in Ms. L.” Id. at 3. Notably, Judge
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Furman’s opinion affirms many of the same arguments made in Defendants’ Motion to Transfer
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Venue (Dkt. 22):
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First, the … two cases concern the same families: Plaintiffs in this case seek relief
on behalf of children whose parents are class members in Ms. L. (Compare Order,
Ms. L., ECF No. 82, at 17, with Compl., ¶ 66). Second, the relief Plaintiffs seek in
this case is, at bottom, directly related to the reunification process being
supervised by Judge Sabraw. In essence, Plaintiffs here contend that they have
rights and interests distinct from the rights and interests of their parents and that
the reunification process, and Judge Sabraw’s own orders, do not adequately take
their distinct rights and interests into account. That may or may not be the case,
but Judge Sabraw is in a better position than this Court to decide those questions
and to modify his own orders if appropriate. And third, in the absence of a single
judge presiding over both cases, there is a real risk of inconsistent decisions and
conflicting orders — a particularly intolerable risk given the gravity and urgency
of the issues in these cases (and the prospect of similar litigation being filed in
other states where children separated from their parents are being held).
Id. at 3–4.
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This same reasoning applies where the Plaintiff States seek to pursue many of the exact
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same remedies and develop the same legal theories that are currently being litigated before
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Judge Sabraw in Ms. L. If anything, the case for transfer is even strong here. In N.T.C., there
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was at least a distinction between the interests of the children and those of their parents. In this
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case, the States’ interests are fully derivative of the parents and children, both of whom are now
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before the Ms. L. court. Recognizing that permitting the putative class action in N.T.C. to
DEFENDANTS’ NOTICE OF
SUPPLEMENTAL AUTHORITY
State of Washington, et al. v. United States, et al.,
Case No. 2:18-cv-00939 (MJP)
-1-
U.S. DEPARTMENT OF JUSTICE
CIVIL DIVISION, OIL-DCS
P.O. BOX 868 BEN FRANKLIN STATION
WASHINGTON, DC 20044
TELEPHONE: (202) 305-0106
FACSIMILE: (202) 305-7000
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continue in parallel to Ms. L. would lead to duplicative litigation, wastefulness, and potential for
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conflicting court orders, Judge Furman concluded that “the inconvenience to Plaintiffs … is
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vastly outweighed by the interests of justice, fairness, efficiency, and avoidance of conflict
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advanced by having a single judge presiding over both cases,” and ordered the case transferred.
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Id. at 4 (emphasis added). The inconvenience here is of course even less since one of the
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Plaintiffs is the State of California.
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There is consequently no reason why the States’ case should be treated differently from
N.T.C.’s putative class of children—whose interests the States ostensibly wish to protect.
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Respectfully submitted,
DATED: July 19, 2018
CHAD A. READLER
Acting Assistant Attorney General
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WILLIAM C. PEACHEY
Director
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EREZ REUVENI
Assistant Director
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NICOLE N. MURLEY
Trial Attorney
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/s/ Joshua S. Press
JOSHUA S. PRESS
Trial Attorneys
United States Department of Justice
Civil Division
Office of Immigration Litigation
District Court Section
P.O. Box 868, Ben Franklin Station
Washington, DC 20044
Phone: (202) 305-0106
joshua.press@usdoj.gov
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Attorneys for the United States of America
and the Federal Defendants
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DEFENDANTS’ NOTICE OF
SUPPLEMENTAL AUTHORITY
State of Washington, et al. v. United States, et al.,
Case No. 2:18-cv-00939 (MJP)
-2-
U.S. DEPARTMENT OF JUSTICE
CIVIL DIVISION, OIL-DCS
P.O. BOX 868 BEN FRANKLIN STATION
WASHINGTON, DC 20044
TELEPHONE: (202) 305-0106
FACSIMILE: (202) 305-7000
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CERTIFICATE OF SERVICE
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I hereby certify that on July 19, 2018, I electronically transmitted the foregoing
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document to the Clerk’s Office using the U.S. District Court for the Western District of
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Washington’s Electronic Document Filing System (ECF), which will serve a copy of this
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document upon all counsel of record.
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By: /s/ Joshua S. Press
JOSHUA S. PRESS
Trial Attorney
United States Department of Justice
Civil Division
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DEFENDANTS’ NOTICE OF
SUPPLEMENTAL AUTHORITY
State of Washington, et al. v. United States, et al.,
Case No. 2:18-cv-00939 (MJP)
U.S. DEPARTMENT OF JUSTICE
CIVIL DIVISION, OIL-DCS
P.O. BOX 868 BEN FRANKLIN STATION
WASHINGTON, DC 20044
TELEPHONE: (202) 305-0106
FACSIMILE: (202) 305-7000
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