Case: 17-35105, 02/05/2017, ID: 10302884, DktEntry: 21-1, Page 1 of 23

No. 17-35105
IN THE

United States Court of Appeals
for the Ninth Circuit
DONALD J. TRUMP, et al.,
Defendants-Appellants,
v.
STATE OF WASHINGTON, et al.,
Plaintiffs-Appellees
On Appeal from the United States District Court
for the Western District of Washington, No. 2-17-cv-00141
District Judge James L. Robart

STATE OF HAWAII’S EMERGENCY MOTION TO INTERVENE UNDER
FEDERAL RULE 24 AND CIRCUIT RULE 27-3
DOUGLAS S. CHIN
Attorney General of the State of Hawai‘i
CLYDE J. WADSWORTH
Solicitor General of the State of Hawai‘i
DEIRDRE MARIE-IHA
KIMBERLY T. GUIDRY
DONNA H. KALAMA
ROBERT T. NAKATSUJI
Deputy Attorneys General

NEAL K. KATYAL
COLLEEN ROH SINZDAK
MITCHELL P. REICH
HOGAN LOVELLS US LLP
555 Thirteenth Street NW
Washington, DC 20004
Telephone: (202) 637-5600
Fax: (202) 637-5910
Email: neal.katyal@hoganlovells.com

DEPARTMENT OF THE ATTORNEY
GENERAL, STATE OF HAWAI‘I
425 Queen Street
Honolulu, HI 96813
Telephone: (808) 586-1500
Fax: (808) 586-1239

THOMAS P. SCHMIDT
HOGAN LOVELLS US LLP
875 Third Avenue
New York, NY 10022
Telephone: (212) 918-3000
Fax: (212) 918-3100

 Case: 17-35105, 02/05/2017, ID: 10302884, DktEntry: 21-1, Page 2 of 23

SARA SOLOW
HOGAN LOVELLS US LLP
1835 Market St., 29th Floor
Philadelphia, PA 19103
Telephone: (267) 675-4600
Fax: (267) 675-4601
Attorneys for Proposed Intervenor, State of Hawai‘i

 Case: 17-35105, 02/05/2017, ID: 10302884, DktEntry: 21-1, Page 3 of 23

CIRCUIT RULE 27-3 CERTIFICATE
The undersigned counsel certifies that the following is the information
required by Circuit Rule 27-3:
(1) Telephone numbers and addresses of the attorneys for the parties.
Counsel for Proposed Intervenor the State of Hawai‘i
Neal Katyal (neal.katyal@hoganlovells.com)
Colleen Roh Sinzdak
Mitchell Reich
Thomas P. Schmidt
Sara Solow
Hogan Lovells US LLP
555 Thirteenth Street NW
Washington, DC 20004
Telephone: (202) 637-5600
Fax: (202) 637-5910
Douglas S. Chin
Clyde J. Wadsworth
Deirdre Marie-Iha (deirdre.marie-iha@hawaii.gov)
Kimberly T. Guidry
Donna H. Kalama
Robert T. Nakatsuji
Department of the Attorney General, State of Hawai‘i
425 Queen Street
Honolulu, HI 96813
Telephone: (808) 586-1500
Fax: (808) 586-1239
Counsel for Appellants Donald Trump, et al.
Noel J. Francisco
Chad A. Readler (Chad.A.Readler@usdoj.gov)
August E. Flentje
Douglas N. Letter (Douglas.Letter@usdoj.gov)
Sharon Swingle (Sharon.Swingle@usdoj.gov)
H. Thomas Byron (H.Thomas.Byron@usdoj.gov)
i

 Case: 17-35105, 02/05/2017, ID: 10302884, DktEntry: 21-1, Page 4 of 23

Lowell V. Sturgill Jr. (Lowell.Sturgill@usdoj.gov)
Attorneys, Appellate Staff
Civil Division, Room 7241
U.S. Department of Justice
950 Pennsylvania Ave., NW
Washington, DC 20530
(202) 514-3427
Counsel for Appellees.
For State of Washington:
Colleen N. Melody (Coleenm1@atg.WA.Gov)
Noah Guzzo Purcell (Noahp@atg.Wa.Gov)
Anne Elizabeth Egeler (Annee1@atg.Wa.Gov)
Patricio A. Marquez (Patriciom@atg.Wa.Gov)
Marsha J. Chien (Marshac@atg.Wa.Gov)
Office of the Attorney General
800 Fifth Avenue, Suite 2000
Seattle, WA 98104
(206) 464-7744
For State of Minnesota:
Jacob Campion (Jacob.Campion@ag.State.Mn.Us)
445 Minnesota Street, Suite 1100
St. Paul, MN 55101
(651) 757-1459.
(2) Facts showing the existence and nature of the emergency.
As set forth in the Motion, the Government has moved for an emergency
stay of the District Court’s temporary restraining order, barring Appellants from
enforcing provisions of an Executive Order that would otherwise inflict irreparable
harm on the State of Hawai‘i. Hawai‘i filed a Complaint and Motion for
Temporary Restraining Order in the District Court for the District of Hawai‘i,
challenging the Executive Order, on February 4, 2017—just hours before the
ii

 Case: 17-35105, 02/05/2017, ID: 10302884, DktEntry: 21-1, Page 5 of 23

District Court’s TRO was issued in this case. Hawaii’s intervention in this appeal
is necessary to protect its interests, because this Court’s decision could create
binding circuit precedent that affects Hawaii’s case.
(3) When and how counsel notified.
The undersigned counsel notified counsel for appellants and appellees by
email, phone calls, and phone and text messages on February 4, 2017 and February
5, 2017, of the State of Hawaii’s intent to file this motion. Service will be effected
by electronic service through the CM/ECF system.

iii

 Case: 17-35105, 02/05/2017, ID: 10302884, DktEntry: 21-1, Page 6 of 23

MOTION FOR INTERVENTION UNDER RULE 24
The State of Hawai‘i respectfully moves to intervene in this appeal through
the present emergency motion. Hawai‘i moves for intervention as of right under
Rule 24(a) of the Federal Rules of Civil Procedure; or, alternatively, for permissive
intervention under Rule 24(b).

If intervention is denied, Hawai‘i respectfully

moves for leave to file the Brief as amicus curiae. This Motion and Brief comport
with the provisions of Fed. R. App. P. Rule 27 and 9th Cir. R. 27-1. On February 4,
2017, undersigned counsel for the State of Hawai‘i contacted legal counsel for both
parties. Counsel for the United States opposes Hawaii’s intervention. Counsel for
the State of Washington and the State of Minnesota have not responded to
Hawaii’s request for intervention.
STATEMENT
On January 27, 2017, President Donald Trump signed the Executive Order
that is the subject of this litigation and appeal. On January 30, 2017, the State of
Washington filed a Complaint for Declaratory and Injunctive Relief and an
Emergency Motion for a Temporary Restraining Order in the District Court for the
Western District of Washington, seeking to enjoin Defendants from implementing
Sections 3(c), 5(a)-(c) and 5(e) of the Executive Order. Those provisions
implement a nationwide immigration ban for nationals from seven majorityMuslim countries, halt refugee admissions, and create a selective carve-out for

1

 Case: 17-35105, 02/05/2017, ID: 10302884, DktEntry: 21-1, Page 7 of 23

some Christian and non-Muslim refugees. (Case No. 17-141 (W.D. Wash.), Dkt.
#1, #3). In the TRO motion, the State of Washington argued that the Executive
Order violated the Fifth Amendment’s equal protection and due process guarantees,
the Establishment Clause, and the Immigration and Nationality Act’s (INA)
prohibition against discrimination on the basis of national origin. On February 1,
the State of Minnesota joined this litigation as a plaintiff.
Also on February 1, 2017, the State of Washington filed a Supplemental
Brief on Standing (Dkt. #17) and an Amended Complaint (Dkt. #18). On February
2, 2017, Defendants filed a Response. (Dkt. #50). The next day the District Court
held a hearing on the TRO Motion. (Dkt. #53). At the end of the hearing, the court
granted Plaintiffs’ Emergency Motion for a Temporary Restraining Order, thereby
enjoining Defendants from enforcing Section 3(c), 5(a), 5(b), 5(c), and 5(e) of the
Order. (Dkt. #52).
A few hours before this hearing concluded, and before the temporary
restraining order was issued, the State of Hawai‘i filed a Complaint for Declaratory
and Injunctive Relief and a Motion for a Temporary Restraining Order in the
District Court for the District of Hawai‘i. (Case No. 17-00050 (D. Haw.), Dkt. #1,
#2-1). In its TRO motion, Hawai‘i argued that the Executive Order violated both
the Establishment Clause and the Fifth Amendment of the Constitution.
Additionally, Hawai‘i argued that the Executive Order violated three provisions of

2

 Case: 17-35105, 02/05/2017, ID: 10302884, DktEntry: 21-1, Page 8 of 23

the INA—its prohibition on nationality-based classifications, its prohibition on
religion-based classifications, and its limited grant of presidential discretion to
suspend the entry of classes of immigrants and non-immigrants under Section
212(f). See Memorandum in Support of Plaintiff’s Motion for a Temporary
Restraining Order, at 26-32 (Case No. 17-00050 (D. Haw.), Dkt. #2-1) [attached as
Exhibit B]. Hawai‘i also argued that the implementation of the Executive Order
violated the Administrative Procedure Act on both substantive and procedural
grounds. See id. at 32-34. Hawai‘i requested that Defendants be enjoined from
implementing Sections 3(c), 5(a)-(c) and 5(e).
Hawai‘i contended that it would suffer irreparable harm in the absence of
immediate relief. Among other things, it averred, “the Order is inflicting
irreparable harm on the State’s sovereign and dignitary interests by commanding
instruments of Hawaii’s government to support discriminatory conduct that is
offensive to its own laws and policies,” id. at 35; the “Order is inflicting permanent
damage on Hawaii‘s economy and tax revenues,” particularly through its effect on
tourism, id. at 36-37; and the Order is “subject[ing] a portion of its population to
discrimination and marginalization, while denying all residents of the State the
benefits of a pluralistic and inclusive society,” id. at 37.
On the evening of February 4, 2017, the Government filed its Notice of
Appeal to the Ninth Circuit in the District Court. (Case No. 17-141 (W.D. Wash.),

3

 Case: 17-35105, 02/05/2017, ID: 10302884, DktEntry: 21-1, Page 9 of 23

Dkt. #53). Later that night, the Government filed its “appeal” in this Court.
Hawai‘i filed the instant motion on February 5, 2017.
ARGUMENT
“Intervention on appeal is governed by Rule 24 of the Federal Rules of Civil
Procedure.” Bates v. Jones, 127 F.3d 870, 873 (9th Cir. 1997). Hawai‘i is entitled
to intervene as of right under Rule 24(a)(2). In the alternative, the State easily
satisfies the requirements for permissive intervention under Rule 24(b). That is
particularly so because the Motion here is filed on behalf of the State, and to
protect its sovereign interests. In the closely analogous Article III standing context,
the Supreme Court has recognized that States receive “special solicitude,” due to
“the long development of cases permitting States ‘to litigate as parens patriae to
protect quasi-sovereign interests,’” including when “‘substantial impairment of the
health and prosperity of [their residents] are at stake.” Massachusetts v. EPA, 549
U.S. 497, 521 n.17 (2007) (citation omitted). Those very interests are gravely at
stake in this litigation. Other special factors distinguish Hawai‘i in ways that make
intervention particularly appropriate, including the fact that Hawai‘i has already
filed for a temporary restraining order to protect its sovereign and quasi-sovereign
interests, and the fact that Hawaii’s action is pending in a district court within this
Circuit such that any decision by this Court could have a binding effect on that

4

 Case: 17-35105, 02/05/2017, ID: 10302884, DktEntry: 21-1, Page 10 of 23

action. These factors, when layered on top of the Rule 24 analysis below,
demonstrate why intervention is warranted for the State of Hawai‘i in this case.
I.

HAWAI‘I IS ENTITLED TO INTERVENE AS OF RIGHT
PURSUANT TO RULE 24(a).
Rule 24(a)(2) grants a party the right to intervene if (1) its motion is

“timely,” (2) it “ha[s] a significantly protectable interest relating to the property or
transaction that is the subject of the action”; (3) it is “situated such that the
disposition of the action may impair or impede the party’s ability to protect that
interest”; and (4) it is “not  * * * adequately represented by existing parties.”
Arakaki v. Cayetano, 324 F.3d 1078, 1083 (9th Cir. 2003) (citing Fed. R. Civ. P.
24(a)(2)).
Hawai‘i plainly satisfies each requirement. (1) It filed this motion within
hours of the Government’s appeal. (2) The appeal concerns the validity of an order
that is protecting Hawai‘i and its citizens from irreparable harm, and that is
identical to one Hawai‘i is seeking in the District of Hawai‘i. (3) The Court’s
resolution of this matter will decide whether the State and its citizens are once
again subjected to travel bans and discrimination, and may decide whether the
State can secure a similar order in its own case. And (4) because Hawai‘i has
suffered distinct harms, makes distinct arguments, and is a distinct sovereign from
the plaintiffs, it must intervene to ensure its interests are adequately protected.

5

 Case: 17-35105, 02/05/2017, ID: 10302884, DktEntry: 21-1, Page 11 of 23

A. Hawaii’s Motion Is Timely.
Hawai‘i moved to intervene in this appeal with extraordinary speed. The
District Court issued its order on Friday, February 3. The Government filed its
motion to appeal that order—directly threatening Hawaii’s interests—the evening
of February 4. Hawai‘i moved to intervene the following day.
It is inconceivable that the State could have acted with greater urgency, and
no party can claim that it has been “prejudice[d]” by any delay. United States v.
Alisal Water Corp., 370 F.3d 915, 921 (9th Cir. 2004). Hawai‘i, moreover,
intervened “at th[e] particular stage of the lawsuit” in which its interests were
implicated—when the Government challenged an order that directly implicates the
State’s interests. Id.; see infra 6-13. By any standard its motion is timely. Cf. Day
v. Apoliona, 505 F.3d 963, 965 (9th Cir. 2007) (deeming motion timely when made
two years after case was filed); Smith v. Los Angeles Unified Sch. Dist., 830 F.3d
843, 854 (9th Cir. 2016) (deeming motion timely when made twenty years after
case was filed).
B. Hawai‘i Has A Significant Protectable Interest In The Outcome Of
This Appeal.
The Ninth Circuit has explained that an applicant for intervention has
adequate interests in a suit where “the resolution of the plaintiffs’ claims actually
will affect the applicant.” S. California Edison Co. v. Lynch, 307 F.3d 794, 803
(9th Cir. 2002) (emphasis added) (quoting Donnelly v. Glickman, 159 F.3d 405,
6

 Case: 17-35105, 02/05/2017, ID: 10302884, DktEntry: 21-1, Page 12 of 23

410 (9th Cir. 1998). This test does not establish “a clear-cut or bright-line rule,”
and “[n]o specific legal or equitable interest need be established.” Id. (citation
omitted)). Instead, courts must make “a ‘practical, threshold inquiry,’ ” designed
to “involve[e] as many apparently concerned persons” in a suit “as is compatible
with efficiency and due process.” Id. (citations omitted).
Hawaiʻi has two vital, “practical” interests in the outcome of this appeal.
First, this appeal concerns the validity of an order that is protecting Hawai‘i and its
citizens from grievous harm. For seven days, the Executive Order barred nationals
of seven majority-Muslim nations from entering the country. As detailed at length
in Hawaii’s motion in support of a temporary restraining order, this restriction
inflicted multiple irreparable harms on the State. See Ex. B at 35-38. It halted
tourism from the banned countries, and chilled tourism from many more,
threatening one of the pillars of the State’s economy. Id. at 36-37. It prevented a
number of Hawaii’s residents from traveling abroad. Id. at 38. It required Hawai‘i
to participate in discrimination against members of the Muslim faith in violation of
Hawaii’s laws and constitution. Id. at 36-37. And it threatened to tarnish Hawaii’s
hard-won reputation as a place of openness and inclusion, and force the State to
abandon its commitment to pluralism and respect. Id. at 35, 37-38.
The District Court’s order has temporarily put a stop to that. But the
Government seeks to bring all of those harms back: to reinstate the Executive

7

 Case: 17-35105, 02/05/2017, ID: 10302884, DktEntry: 21-1, Page 13 of 23

Order, and thus to damage the State’s citizenry, hinder its economy, and trample
on its laws and values. The State’s interest in preventing that from occurring could
not be stronger. See, e.g., Alisal Water Corp., 370 F.3d at 919 (a “non-speculative,
economic interest” is “sufficient to support a right of intervention”); Nuesse v.
Camp, 385 F.2d 694, 669-701(D.C. Cir. 1967) (state banking commissioner’s
“interest” in the construction of a federal banking statute—which could frustrate
the purpose of a state banking statute—was sufficient for intervention).
Second, Hawai‘i has an interest in preventing the Ninth Circuit from
establishing precedent that could impair its own pending motion for a temporary
restraining order. Hours before the District Court entered its order, Hawai‘i filed
suit challenging the Executive Order in the District of Hawai‘i. It argued that the
Executive Order violated the Establishment Clause, the equal protection and due
process components of the Due Process Clause, the Immigration and Nationality
Act (INA), and the Administrative Procedure Act. See Ex. B at 12-34. It said that
immediate relief was necessary to prevent irreparable harm to the State, and that
the harm far outweighed any inconvenience the Government might face from
putting the Order on hold. Id. at 35-39. And it asked for precisely the same
interim relief later awarded by the court below: a temporary restraining order
preventing the Defendants from enforcing sections 3(c), 5(a)-(c), and 5(e) of the
Executive Order. Id. at 39.

8

 Case: 17-35105, 02/05/2017, ID: 10302884, DktEntry: 21-1, Page 14 of 23

The Government now argues that the Western District of Washington’s
temporary restraining order was improper. In doing so, it makes arguments that
might well apply to the order and injunction Hawai‘i seeks. It says that
Washington “lacks Article III standing to bring this action.” Mot. at 9. It says that
the President’s Executive Order does not violate the Constitution or the INA; that
the balance of the equities tips in its favor; and that the State’s harms are not
sufficiently serious to merit emergency relief. Id. at 12-15, 18-19, 22-23. Should
the Court accept some or all of the Government’s arguments, it would establish
precedent binding in every District Court in the Circuit—including, of course, the
District of Hawai‘i—that might make it difficult or impossible for Hawai‘i to
prevail in its own pending motion for temporary injunctive relief.
Hawai‘i has a cognizable interest in preventing that result. This Court has
repeatedly recognized that a party has a protectable interest in the outcome of a suit
that might, “as a practical matter, bear significantly on the resolution of [its]
claims” in a “related action.” United States v. Stringfellow, 783 F.2d 821, 826 (9th
Cir. 1986), vacated on other grounds sub nom. Stringfellow v. Concerned
Neighbors in Action, 480 U.S. 370 (1987); see, e.g., In re Estate of Ferdinand E.
Marcos Human Rights Litig., 536 F.3d 980, 986-87 (9th Cir. 2008) (holding
intervention proper where “an issue [the intervenor] raised in one proceeding * * *
lands in another proceeding for disposition”); U.S. ex rel. McGough v. Covington

9

 Case: 17-35105, 02/05/2017, ID: 10302884, DktEntry: 21-1, Page 15 of 23

Techs. Co., 967 F.2d 1391, 1396 (9th Cir. 1992) (finding no “serious[] dispute”
that a party may intervene in a suit that might “preclude [it] from proceeding with
claims” in a separate proceeding); United States v. State of Or., 839 F.2d 635, 638
(9th Cir. 1988) (granting intervention where “an appellate ruling will have a
persuasive stare decisis effect in any parallel or subsequent litigation”). Indeed,
this Court has previously permitted the State of Hawai‘i itself to intervene in a suit
on the ground that it “may have a precedential impact” on its claims in a related
action. Cf. Day v. Apoliona, 505 F.3d 963, 965 (9th Cir. 2007). Because this suit
may heavily influence the merits of Hawaii’s separate motion for a TRO, the State
should have a “voice” when “th[e] decision is made.” Smith v. Pangilinan, 651
F.2d 1320, 1325 (9th Cir. 1981).
C. The Disposition Of This Action May Impair Hawaii’s Ability To
Protect Its Interests.
The third requirement of Rule 24(a)(2) follows from the second. It is
satisfied when the suit “may as a practical matter impair or impede [an applicant’s]
ability to safeguard [its] protectable interest.” Smith v. Los Angeles Unified Sch.
Dist., 830 F.3d 843, 862 (9th Cir. 2016). For the reasons just discussed, that is true
here. If the Court stays the district court’s temporary restraining order, it will
immediately re-subject Hawaiʻi residents to the irreparable harms inflicted by the
President’s order. At that point, Hawai‘i might have little recourse. Because this
Court’s decision may well set precedent that could impede the ability of a judge in
10

 Case: 17-35105, 02/05/2017, ID: 10302884, DktEntry: 21-1, Page 16 of 23

the District of Hawai‘i to award the relief Hawai‘i requests, the State needs to press
its claims in this Court and in this appeal.
D. Absent Intervention, Hawaii’s Interests Will Not Be Adequately
Represented.
The final requirement of the test for intervention is “minimal,” and is
satisfied so long as “the applicant can demonstrate that representation of its
interests ‘may be’ inadequate.” Citizens for Balanced Use v. Montana Wilderness
Ass'n, 647 F.3d 893, 898 (9th Cir. 2011); see Trbovich v. United Mine Workers of
Am., 404 U.S. 528, 538 n.10 (1972). Three factors are relevant in conducting this
inquiry: “(1) whether the interest of a present party is such that it will undoubtedly
make all of a proposed intervenor’s arguments; (2) whether the present party is
capable and willing to make such arguments; and (3) whether a proposed
intervenor would offer any necessary elements to the proceeding that other parties
would neglect.” Citizens for Balanced Use, 647 F.3d at 898 (emphases added).
Here, these factors all point in the same direction. Washington and
Minnesota have not made all of the arguments that Hawai‘i pressed in its TRO
motion, and that Hawai‘i intends to make on appeal. Among other things,
Washington’s TRO motion argues only that Section 5(b) of the Executive Order
violates the Establishment Clause, and does not argue—as Hawai‘i does—that
Section 3 and Section 5(e) also violate that Clause. Further, Washington presses
only one of two statutory arguments made by Hawai‘i—that is, the argument about
11

 Case: 17-35105, 02/05/2017, ID: 10302884, DktEntry: 21-1, Page 17 of 23

nationality-based classifications under the INA. Hawai‘i has also argued that the
Executive Order exceeds the limited grant of authority to the President under
Section 212(f). Compare Mot. for Temporary Restraining Order, Washington v.
Trump, No. 17-141 (W.D. Wash. Jan 30, 2017), Dkt. #3, with Ex. B at 28-34.
Additionally, the Government’s Motion places great weight on the argument that
the Executive Order is valid—and federal courts should not question the
President’s judgment—because of the President’s “plenary powers” over
immigration and foreign affairs. Mot. at 12-17. Washington’s TRO did not discuss
the plenary powers doctrine; Hawaii’s TRO motion devotes considerable
discussion to that point. See Ex. B. at 17-18, 23-25. Hawaii‘s proposed brief in
response to the Government’s motion for a stay advances these points. See Br. at
6-7, 7-12 [attached at Exhibit A].
Moreover, because of Hawaii’s unique status, Washington and Minnesota
are not “capable” of presenting the same theories of standing and irreparable injury
as Hawai‘i. Hawai‘i suffers from the Order in distinct and particularly severe
ways. By virtue of the State’s especially heavy reliance on tourism, the Executive
Order’s travel restrictions could immediately inflict damage on its economy. In
addition, because Hawai‘i is an island state, residents are entirely reliant on air
travel to leave and return home, and, for the vast majority, to travel between
islands. The travel ban, which discourages any use of airports by affected

12

 Case: 17-35105, 02/05/2017, ID: 10302884, DktEntry: 21-1, Page 18 of 23

individuals, thus effectively locks many of Hawaii’s residents not only in the State
but on individual small islands as well. Finally, Hawaii’s most basic identity and
values are implicated by the Executive Order in a way unique to the State as a
result of its demography and history. Hawai‘i is our country’s most ethnically
diverse state, it is home to more than 250,000 foreign-born residents, and it has the
fifth-highest percentage of foreign born workers of any state. Complaint, ¶¶8-10,
(Case No. 17-00050 (D. Haw.), Dkt. #1) [attached here as Exhibit C]. For many
in the State, including state officials, the Executive Order conjures up memories of
the Chinese Exclusion Acts and the imposition of martial law and Japanese
internment after the bombing of Pearl Harbor. Comp. ¶ 81.
For these reasons, Hawai‘i may offer “necessary elements” to the current
proceeding that the other parties might not present. If the standing of Washington
and Minnesota are called into question, Hawai‘i may be critical to the Court’s
retaining Article III jurisdiction over the case. Hawai‘i may also offer meritorious
arguments that would otherwise be omitted. For example, Hawai’i intends to
argue that the United States’ application for a stay should not be granted because
temporary restraining orders—such as the District Court’s Order below—are not
appealable. Further, Hawai‘i intends to argue that the United States should have
sought mandamus relief; because it did not, this Court lacks jurisdiction.

13

 Case: 17-35105, 02/05/2017, ID: 10302884, DktEntry: 21-1, Page 19 of 23

In sum, Hawai‘i is entitled to intervene as of right to preserve its interest in
maintaining a nationwide order that protects its residents from rank discrimination.
II.

IN THE ALTERNATIVE, HAWAI‘I SHOULD BE GRANTED
PERMISSIVE INTERVENTION PURSUANT TO RULE 24(b)
Alternatively, Hawai‘i should be permitted to intervene in this appeal

pursuant to Rule 24(b). Permissive intervention typically requires “(1) an
independent ground for jurisdiction; (2) a timely motion; and (3) a common
question of law and fact between the movant’s claim or defense and the main
action.” Freedom from Religion Found., Inc. v. Geithner, 644 F.3d 836, 843 (9th
Cir. 2011). If these criteria are satisfied, a court may deny a motion if intervention
“will unduly delay the main action or will unfairly prejudice the existing parties.”
Donnelly v. Glickman, 159 F.3d 405, 412 (9th Cir. 1998).
Hawai‘i easily satisfies each of these requirements. First, because this is “a
federal-question case” and Hawai‘i “does not seek to bring any counterclaims or
cross-claims,” “the independent jurisdictional grounds requirement does not apply.”
Freedom from Religion Found., 644 F.3d at 844 (explaining that in this
circumstance, the court’s jurisdiction “is grounded in the federal question(s) raised
by the plaintiff,” and so “the identity of the parties is irrelevant”). Second,
Hawaii’s motion is timely. It was filed within two days of the entry of the TRO,
and within a day of the Government’s appeal. Third, Hawaiʻi seeks precisely the
same relief as Washington and Minnesota: preservation of the District Court’s
14

 Case: 17-35105, 02/05/2017, ID: 10302884, DktEntry: 21-1, Page 20 of 23

TRO. Hawai‘i is therefore not raising any claims significantly “different from the
issues in the underlying action.” S. California Edison Co. v. Lynch, 307 F.3d 794,
804 (9th Cir. 2002).
There is also no prospect that Hawaii’s intervention will cause undue delay
or prejudice. Hawai‘i asks for no delay, and intends to file briefs simultaneous
with the plaintiffs. Indeed, its well-developed legal arguments may speed the
Court’s consideration of this critically important matter.
Hawaiʻi should be permitted to participate in this matter, which is vital to the
outcome of its pending action and to the lives of its residents.
CONCLUSION
Hawaii’s motion to intervene as of right pursuant to Rule 24(a)(2) should be
granted. In the alternative, Hawaii’s motion for permissive intervention pursuant
to Rule 24(b)(1)(B) should be granted. If Hawaii’s motion to intervene is denied,
Hawai‘i should be granted leave to file the Brief as amicus curiae.
DATED: Honolulu, Hawai‘i, February 5, 2017.
Respectfully submitted,
/s/ Neal K. Katyal
DOUGLAS S. CHIN
Attorney General of the State of Hawai‘i
CLYDE J. WADSWORTH
Solicitor General of the State of Hawai‘i
DEIRDRE MARIE-IHA
KIMBERLY T. GUIDRY
15

NEAL K. KATYAL
COLLEEN ROH SINZDAK
MITCHELL P. REICH
HOGAN LOVELLS US LLP
555 Thirteenth Street NW
Washington, DC 20004

 Case: 17-35105, 02/05/2017, ID: 10302884, DktEntry: 21-1, Page 21 of 23

DONNA H. KALAMA
ROBERT T. NAKATSUJI
Deputy Attorneys General

Telephone: (202) 637-5600
Fax: (202) 637-5910
Email: neal.katyal@hoganlovells.com

DEPARTMENT OF THE ATTORNEY
GENERAL, STATE OF HAWAI‘I
425 Queen Street
Honolulu, HI 96813
Telephone: (808) 586-1500
Fax: (808) 586-1239
Email: deirdre.marie-iha@hawaii.gov

THOMAS P. SCHMIDT
HOGAN LOVELLS US LLP
875 Third Avenue
New York, NY 10022
Telephone: (212) 918-3000
Fax: (212) 918-3100
SARA SOLOW
HOGAN LOVELLS US LLP
1835 Market St., 29th Floor
Philadelphia, PA 19103
Telephone: (267) 675-4600
Fax: (267) 675-4601

Attorneys for Proposed Intervenor, State of Hawai‘i

16

 Case: 17-35105, 02/05/2017, ID: 10302884, DktEntry: 21-1, Page 22 of 23

CERTIFICATE OF COMPLIANCE
I certify that the forgoing Motion complies with the type-volume limitation
of Fed. R. App. 27 because it contains 3,517 words. This Motion complies with
the typeface and type style requirements of Fed. R. App. P. 27 because this brief
has been prepared in a proportionally spaced typeface using Word 14-point Times
New Roman typeface.
/s/ Neal Kumar Katyal
Neal Kumar Katyal

 Case: 17-35105, 02/05/2017, ID: 10302884, DktEntry: 21-1, Page 23 of 23

CERTIFICATE OF SERVICE
I hereby certify that on February 5, 2017, I filed the foregoing Motion with
the Clerk of the Court for the United States Court of Appeals for the Ninth Circuit
by using the appellate CM/ECF system.
I certify that all participants in the case are registered CM/ECF users and
that service will be accomplished by the appellate CM/ECF system.
/s/ Neal Kumar Katyal
Neal Kumar Katyal