Case 2:17-cv-00141-JLR Document 75 Filed 02/13/17 Page 1 of 7

1
2
3
4
5
6
7
8
9

The Honorable James L. Robart
NOAH G. PURCELL, WSBA #43492
Solicitor General
COLLEEN M. MELODY, WSBA #42275
Civil Rights Unit Chief
Office of the Attorney General
800 Fifth Avenue, Suite 2000
Seattle, WA 98104
206-464-7744
ALAN I. GILBERT, Admitted Pro Hac Vice
Solicitor General
JACOB CAMPION, Admitted Pro Hac Vice
Assistant Attorney General
445 Minnesota Street, Suite 1100
St. Paul, Minnesota 55101-2128
(651) 757-1450

10
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON

11
12

STATE OF WASHINGTON and
13 STATE OF MINNESOTA,
Plaintiffs,

14
15

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

v.

16 DONALD TRUMP, in his official
capacity as President of the United
17 States; U.S. DEPARTMENT OF
HOMELAND SECURITY; JOHN F.
18 KELLY, in his official capacity as
Secretary of the Department of
19 Homeland Security; REX W.
TILLERSON, in his official capacity
20 as Secretary of State; and the UNITED
STATES OF AMERICA,
21
Defendants.
22
23

I.

STATES’ MEMORANDUM ON
NINTH CIRCUIT ORDER
CONSTRUING TEMPORARY
RESTRAINING ORDER AS
PRELIMINARY INJUNCTION

INTRODUCTION

24

The Court ordered the parties to submit memoranda “discuss[ing] whether the Ninth

25

Circuit has construed the court’s temporary restraining order as a preliminary injunction, such that

26

additional briefing and possible evidence on a motion for a preliminary injunction is no longer
STATES’ MEMORANDUM ON NINTH CIRCUIT
ORDER CONSTRUING TEMPORARY
RESTRAINING ORDER AS PRELIMINARY
INJUNCTION

1

Attorney General of Washington
800 Fifth Avenue, Suite 2000
Seattle, WA 98104-3188
(206) 464-7744

 Case 2:17-cv-00141-JLR Document 75 Filed 02/13/17 Page 2 of 7

1

required in the district court.” Minute Order, ECF 74 at 2. Washington and Minnesota (the States)

2

respectfully submit that the answer is yes. The Ninth Circuit’s ruling treats this Court’s prior order

3

as a preliminary injunction, rendering further preliminary injunction proceedings unnecessary and

4

allowing the parties to proceed directly to discovery.

5

II.

RELEVANT PROCEDURAL HISTORY

6

On February 3, the Court granted the States’ motion for a nationwide temporary

7

restraining order enjoining Defendants from enforcing sections 3(c), 5(a)-(c), and 5(e) of

8

Executive Order 13,769. ECF 52 (February 3 Order). On February 4, Defendants filed a notice

9

of appeal and an Emergency Motion Under Circuit Rule 27-3 for Administrative Stay and

10

Motion for Stay Pending Appeal. ECF 53; Washington v. Trump, No. 17-35105 (9th Cir. filed

11

Feb. 4, 2017), ECF 14 (Ninth Circuit Docket). A Ninth Circuit motions panel denied

12

Defendants’ request for an immediate administrative stay of the February 3 Order and set a

13

briefing schedule for the emergency motion for a stay pending appeal. Id., ECF 15.

14

In briefing the emergency stay motion, the parties disagreed about the proper

15

characterization and reviewability of the February 3 Order. Defendants conceded that

16

temporary restraining orders ordinarily are not appealable, but argued that the Ninth Circuit

17

should treat the February 3 Order as “an appealable injunctive order” and exercise jurisdiction

18

under 28 U.S.C. § 1292(a)(1), the statute authorizing interlocutory appellate review of

19

preliminary injunctions. Ninth Circuit Docket, ECF 14 at 8 (citing Serv. Emps. Int’l Union v.

20

Nat’l Union of Healthcare Workers, 598 F.3d 1061, 1067 (9th Cir. 2010)). The States opposed

21

that characterization, arguing that the February 3 Order was just what it purported to be: a

22

temporary restraining order. Ninth Circuit Docket, ECF 28 at 5-6. The States urged the

23

motions panel to allow this Court to rule on the States’ anticipated motion for a preliminary

24

injunction. Ninth Circuit Docket, ECF 28 at 5-6; see also Oral Argument at 30:28, 53:13,

25

Washington

26

http://www.ca9.uscourts.gov/media/view_video.php?pk_vid=0000010885 (argument by the

v.

Trump,

No.

STATES’ MEMORANDUM ON NINTH CIRCUIT
ORDER CONSTRUING TEMPORARY
RESTRAINING ORDER AS PRELIMINARY
INJUNCTION

17-35105

2

(9th

Cir.

Feb.

7,

2017),

Attorney General of Washington
800 Fifth Avenue, Suite 2000
Seattle, WA 98104-3188
(206) 464-7744

 Case 2:17-cv-00141-JLR Document 75 Filed 02/13/17 Page 3 of 7

1

States that the February 3 Order is not appealable and may only be reviewed through a writ of

2

mandamus).

3

The Ninth Circuit denied Defendants’ request for a stay pending appeal, leaving in

4

place all of the injunctive provisions contained in the February 3 Order. Ninth Circuit Docket,

5

ECF 134 at 3, 23-24 (Order Denying Stay) (“declin[ing] to modify the scope” of the February

6

3 Order in any respect). In doing so, however, the Ninth Circuit adopted Defendants’ position

7

that the February 3 Order “possesses the qualities of an appealable preliminary injunction.” Id.

8

at 7. The court issued a briefing schedule for the merits of Defendants’ appeal of the February

9

3 Order. Ninth Circuit Docket, ECF 135 at 2; see also Order Denying Stay at 8 n.2 (referring to

10

next step of Ninth Circuit proceedings as “the merits stage of this appeal”).1 The States

11

anticipate that the Ninth Circuit will now review the February 3 Order under the familiar abuse

12

of discretion standard applicable to preliminary injunctions. See Am. Trucking Ass’ns, Inc. v.

13

City of Los Angeles, 559 F.3d 1046, 1052 (9th Cir. 2009).

14
15

III.

DISCUSSION

A. The Ninth Circuit Construed the February 3 Order as a Preliminary Injunction

16

The Ninth Circuit held that the February 3 Order “possesses the qualities of an appealable

17

preliminary injunction.” Order Denying Stay at 7. In reaching that conclusion, the Ninth Circuit

18

relied on a line of cases outlining the limited circumstances under which an appellate court may

19

construe a temporary restraining order as a preliminary injunction. See id. (citing Bennett v.

20

Medtronic, Inc., 285 F.3d 801, 804 (9th Cir. 2002); Serv. Emps. Int’l Union v. Nat’l Union of

21

Healthcare Workers, 598F.3d 1061, 1067 (9th Cir. 2010)). Under these cases, appellate

22

jurisdiction arises under 28 U.S.C. § 1292(a)(1) if a temporary restraining order is “akin to a

23

preliminary injunction.” Bennett, 285 F.3d at 804; see also Sampson v. Murray, 415 U.S. 61, 86-

24
1

25
26

On February 10, following a sua sponte request that an en banc vote be taken, Ninth Circuit Chief
Judge Thomas ordered the parties to submit simultaneous briefs on whether the Order Denying Stay should be
reconsidered en banc. Ninth Circuit Docket, ECF 139. The briefing order did not alter the terms of the February 3
Order.
STATES’ MEMORANDUM ON NINTH CIRCUIT
ORDER CONSTRUING TEMPORARY
RESTRAINING ORDER AS PRELIMINARY
INJUNCTION

3

Attorney General of Washington
800 Fifth Avenue, Suite 2000
Seattle, WA 98104-3188
(206) 464-7744

 Case 2:17-cv-00141-JLR Document 75 Filed 02/13/17 Page 4 of 7

1

89 & n.58 (1974) (“view[ing] the [temporary restraining] order at issue here as a preliminary

2

injunction” where it had “the same practical effect as the issuance of a preliminary injunction”)

3

(emphasis added) (quoting Pan Am. World Airways, Inc. v. Flight Eng’rs’ Int’l Ass’n, 306 F.2d

4

840, 843 (2d Cir. 1962).

5

The Ninth Circuit’s decision that the February 3 Order is an appealable preliminary

6

injunction necessarily implies that it “must be treated as a preliminary injunction” going forward.

7

See Sampson, 415 U.S. at 86. Treating the order as a preliminary injunction is also consistent with

8

the law of the case doctrine, which requires that the appellate court’s ruling on a legal issue be

9

followed in subsequent proceedings in the same case. Herrington v. Cty. of Sonoma, 12 F.3d 901,

10

904 (9th Cir. 1993); Liberty Mut. Ins. Co. v. EEOC, 691 F.2d 438, 441 (9th Cir. 1982) (explaining

11

that district courts are precluded “from reconsidering . . . issues decided explicitly or by necessary

12

implication in [the Ninth Circuit’s] previous disposition”). The alternative approach—treating the

13

February 3 Order as a preliminary injunction for purposes of appeal, but as something else for

14

purposes of the concurrent district court proceedings—would create the type of confusion that the

15

law of the case doctrine is intended to prevent. See Harrington, 12 F.3d at 904. Accordingly, the

16

Ninth Circuit’s ruling that the temporary restraining order is a preliminary injunction applies

17

equally in the appellate and district court.

18

B. A Renewed Preliminary Injunction Motion Is Unnecessary

19

The States’ planned preliminary injunction motion was rendered moot by the Ninth

20

Circuit’s determination that the February 3 Order “possesses the qualities” of a preliminary

21

injunction. See Order Denying Stay at 7. The purpose of a preliminary injunction is to “preserve

22

the status quo and the rights of the parties until a final judgment issues in the cause.” U.S. Philips

23

Corp. v. KBC Bank N.V., 590 F.3d 1091, 1094 (9th Cir. 2010) (citing Univ. of Tex. v. Camenisch,

24

451 U.S. 390, 395 (1981)). Absent an order from this Court modifying the February 3 Order, or a

25

subsequent decision from the Ninth Circuit or Supreme Court altering it, the February 3 Order

26

will “last[] until the completion of the trial on the merits.” See 11A Charles Alan Wright et al.,
STATES’ MEMORANDUM ON NINTH CIRCUIT
ORDER CONSTRUING TEMPORARY
RESTRAINING ORDER AS PRELIMINARY
INJUNCTION

4

Attorney General of Washington
800 Fifth Avenue, Suite 2000
Seattle, WA 98104-3188
(206) 464-7744

 Case 2:17-cv-00141-JLR Document 75 Filed 02/13/17 Page 5 of 7

1

Federal Practice & Procedure § 2947, Westlaw (3d ed. & Suppl. Apr. 2016); see also id. (“A

2

preliminary injunction remains in effect until a final judgment is rendered or the complaint is

3

dismissed, unless it expires earlier by its own terms, or is modified, stayed, or reversed.”)

4

(footnote omitted).

5

The February 3 Order granted each of the specific terms of the injunction sought by the

6

States. See ECF 3-1 (proposed temporary restraining order). The Order Denying Stay left the

7

injunctive terms of the February 3 Order untouched. It would thus be unnecessary for the States to

8

file another motion seeking the exact same relief. Kwai Fun Wong v. Beebe, 732 F.3d 1030, 1054

9

(9th Cir. 2013) (en banc) (Kozinski, J., concurring) (warning that “[b]ad things can happen” to

10

litigants who have “the nerve to vex a federal judge with a clone motion”); F.W. Kerr Chem. Co.

11

v. Crandall Assoc., Inc., 815 F.2d 426, 428-49 (6th Cir. 1987) (describing “successive motions for

12

preliminary injunction” as “unwarranted” absent a material change to factual or legal claims).2

13

In short, because the Ninth Circuit has construed the February 3 Order to grant all the

14

preliminary relief the States would have sought through a motion for a preliminary injunction, no

15

additional briefing or evidence is required in the district court on the propriety of preliminary

16

relief.

17

C. The Case on the Merits Should Proceed Promptly

18

The Ninth Circuit’s current appellate jurisdiction is limited to the February 3 Order. See

19

Nat’l Res. Def. Council, Inc. v. Sw. Marine Inc., 242 F.3d 1163, 1166 (9th Cir. 2001) (limiting

20

appellate jurisdiction to “the matters being appealed”). When appeal is made from an order

21

granting preliminary injunction, the appeal “does not divest the district court of jurisdiction to

22

proceed with the action on the merits.” G & M, Inc. v. Newbern, 488 F.2d 742, 746 (9th Cir.

23

1973). “The case, except for the hearing on the appeal from the interlocutory order, is to

24

proceed in the lower court as though no such appeal had been taken, unless otherwise specially

25
2

26

Of course, the States stand ready to file their preliminary injunction motion if the Court determines that
it is appropriate.
STATES’ MEMORANDUM ON NINTH CIRCUIT
ORDER CONSTRUING TEMPORARY
RESTRAINING ORDER AS PRELIMINARY
INJUNCTION

5

Attorney General of Washington
800 Fifth Avenue, Suite 2000
Seattle, WA 98104-3188
(206) 464-7744

 Case 2:17-cv-00141-JLR Document 75 Filed 02/13/17 Page 6 of 7

1

ordered.” Phelan v. Taitano, 233 F.2d 117, 119 (9th Cir. 1956) (quoting Ex parte Nat’l

2

Enameling & Stamping Co., 201 U.S. 156, 162 (1906)).

3

The States favor expeditious proceedings in this Court. Proceeding directly to

4

discovery, including a prompt Rule 26(f) conference by the parties, will not interfere with the

5

case on appeal. To the contrary, it will allow this Court to consider the merits of the case in an

6

efficient manner. Given the gravity of the States’ constitutional allegations, Defendants’ stated

7

national security concerns, and the public interests at stake, the States respectfully submit that

8

discovery should proceed without delay.

9

IV.

CONCLUSION

10

As detailed above, the Ninth Circuit has determined that the February 3 Order operates as

11

a preliminary injunction. In light of that conclusion, the parties should now begin discovery so

12

that the Court may determine the merits of the States’ claims.

13

DATED this 13th day of February, 2017.

14

Respectfully submitted,

15

ROBERT W. FERGUSON
Attorney General
State of Washington

16
17

/s/ Noah G. Purcell________________
Noah G. Purcell, WSBA #43492
Solicitor General
Colleen M. Melody, WSBA #42275
Civil Rights Unit Chief
Anne E. Egeler, WSBA #20258
Deputy Solicitor
Marsha Chien, WSBA #47020
Patricio A. Marquez, WSBA #47693
Assistant Attorneys General
Office of the Attorney General
800 Fifth Avenue, Suite 2000
Seattle, WA 98104
(206) 464-7744
Noahp@atg.wa.gov

18
19
20
21
22
23
24
25
26
STATES’ MEMORANDUM ON NINTH CIRCUIT
ORDER CONSTRUING TEMPORARY
RESTRAINING ORDER AS PRELIMINARY
INJUNCTION

6

Attorney General of Washington
800 Fifth Avenue, Suite 2000
Seattle, WA 98104-3188
(206) 464-7744

 Case 2:17-cv-00141-JLR Document 75 Filed 02/13/17 Page 7 of 7

1

LORI SWANSON
Attorney General
State of Minnesota

2
3

/s/ Alan I. Gilbert
ALAN I. GILBERT
Solicitor General
Atty. Reg. No. 0034678

4
5
6

JACOB CAMPION
Assistant Attorney General
Atty. Reg. No. 0391274

7
8

445 Minnesota Street, Suite 1100
St. Paul, Minnesota 55101-2128
(651) 757-1450 (Voice)
(651) 282-5832 (Fax)
al.gilbert@ag.state.mn.us

9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
STATES’ MEMORANDUM ON NINTH CIRCUIT
ORDER CONSTRUING TEMPORARY
RESTRAINING ORDER AS PRELIMINARY
INJUNCTION

7

Attorney General of Washington
800 Fifth Avenue, Suite 2000
Seattle, WA 98104-3188
(206) 464-7744