Case 2:17-cv-00141-JLR Document 76 Filed 02/13/17 Page 1 of 4 1 The Honorable James L. Robart 2 3 4 5 6 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 7 8 9 10 STATE OF WASHINGTON and STATE OF MINNESOTA, Plaintiffs, 11 12 v. 13 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 W. TILLERSON, in his official capacity as Secretary of State; and the UNITED STATES OF AMERICA, 14 15 16 17 No. 2:17-cv-00141 (JLR) 18 DEFENDANTS’ MEMORANDUM IN RESPONSE TO FEBRUARY 10, 2017 MINUTE ORDER Defendants. 19 20 In a February 10, 2017 Minute Order (ECF No. 74), the Court instructed the parties to 21 file a memorandum discussing “whether the Ninth Circuit has construed the court’s temporary 22 restraining order (“TRO”) (TRO (Dkt. # 52)) as a preliminary injunction, such that additional 23 briefing and possible evidence on a motion for preliminary injunction is no longer required in the 24 25 district court . . . or whether the parties should submit additional briefing and evidence in the 26 district court concerning the issue of a preliminary injunction.” Defendants’ position is set forth 27 below. 28 DEFENDANTS’ MEMORANDUM IN RESPONSE TO FEBRUARY 10, 2017 MINUTE ORDER State of Washington, et al. v. Trump, et al., No. 2:17-cv-00141 (JLR) U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch 20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 305-8902 Case 2:17-cv-00141-JLR Document 76 Filed 02/13/17 Page 2 of 4 1 On February 3, 2017, this Court entered a nationwide injunction barring enforcement of 2 sections 3(c), 5(a)-(c), and 5(e) of the Executive Order: Protecting the Nation from Foreign 3 Terrorist Entry into the United States. The injunctive order contained no explicit expiration date. 4 5 The Court’s order directed the parties to jointly propose a briefing schedule for plaintiffs’ motion 6 for preliminary injunction, and after the parties submitted a joint status report, the Court directed 7 that plaintiffs’ forthcoming motion for preliminary injunction be filed no later than February 9, 8 2017. 9 The day after this Court entered its injunctive order, defendants noticed their appeal of 10 the order and also moved the Ninth Circuit to stay the injunctive order pending resolution of the 11 12 appeal. A panel of the Ninth Circuit denied defendants’ motion for a stay pending appeal on 13 February 9, 2017. In doing so, the court determined that it had appellate jurisdiction over the 14 stay motion because “the district court’s order possesses the qualities of an appealable 15 preliminary injunction.” Washington v. Trump, No. 17-35105, slip op. at 7, Dkt. No. 134 (9th 16 Cir. 2017); see id. at 7-8 (“[W]e believe . . . that the TRO should be considered to have the 17 qualities of a reviewable preliminary injunction.”). The court noted, however, that this 18 19 “conclusion . . . does not preclude consideration of appellate jurisdiction at the merits stage of 20 this appeal.” Id. at 8 n.2. The court set a briefing schedule for the merits stage of the appeal, 21 which concludes on March 29, 2017. See Washington, No. 17-35105, Order at 2, Dkt. No. 135 22 (9th Cir. 2017). Later on February 9, plaintiffs declined to file their motion for preliminary 23 injunction. 24 25 On February 10, 2017, the parties were notified that a Ninth Circuit judge had sua sponte 26 requested a vote on whether to reconsider en banc the panel’s order denying defendants’ motion 27 for a stay pending appeal. See Washington, No. 17-35105, Order, Dkt. No. 139 (9th Cir. 2017). 28 DEFENDANTS’ MEMORANDUM IN RESPONSE TO FEBRUARY 10, 2017 MINUTE ORDER - 2 State of Washington, et al. v. Trump, et al., No. 2:17-cv-00141 (JLR) U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch 20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 305-8902 Case 2:17-cv-00141-JLR Document 76 Filed 02/13/17 Page 3 of 4 1 The parties have been directed to file briefs on whether reconsideration en banc is appropriate 2 by February 16, 2017. 3 Further proceedings in the Ninth Circuit will likely inform what additional proceedings 4 5 on a preliminary injunction motion are necessary in district court. Accordingly, at this time, 6 defendants believe the appropriate course is to postpone any further proceedings in the district 7 court. Defendants respectfully request that they be permitted to file a status report with the Court 8 no later than two business days after the Ninth Circuit decides whether to hear defendants’ stay 9 motion en banc. The status report will update the Court on the Ninth Circuit’s proceedings and 10 advise the Court of any update on defendants’ position regarding preliminary injunction 11 12 13 14 15 16 proceedings in light of the Ninth Circuit’s actions. DATED: February 13, 2017 Respectfully submitted, CHAD A. READLER Acting Assistant Attorney General JENNIFER RICKETTS Director, Federal Programs Branch 17 18 19 20 21 22 23 24 25 26 27 JOHN R. TYLER Assistant Director, Federal Programs Branch /s/ Michelle R. Bennett MICHELLE R. BENNETT DANIEL SCHWEI ARJUN GARG Trial Attorneys U.S. Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Avenue, NW Washington, DC 20530 Tel: (202) 305-8902 Fax: (202) 616-8470 Email: michelle.bennett@usdoj.gov arjun.garg@usdoj.gov Attorneys for Defendants 28 DEFENDANTS’ MEMORANDUM IN RESPONSE TO FEBRUARY 10, 2017 MINUTE ORDER - 3 State of Washington, et al. v. Trump, et al., No. 2:17-cv-00141 (JLR) U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch 20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 305-8902 Case 2:17-cv-00141-JLR Document 76 Filed 02/13/17 Page 4 of 4 1 CERTIFICATE OF SERVICE 2 3 I hereby certify that on February 13, 2017, I electronically filed the foregoing 4 Memorandum in Response to February 10, 2017 Minute Order using the Court’s CM/ECF 5 system, causing a notice of filing to be served upon all counsel of record. 6 7 Dated: February 13, 2017 /s/ Michelle R. Bennett 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DEFENDANTS’ MEMORANDUM IN RESPONSE TO FEBRUARY 10, 2017 MINUTE ORDER State of Washington, et al. v. Trump, et al., No. 2:17-cv-00141 (JLR) U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch 20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 305-8902