Case 2:17-cv-00135-JLR Document 93 Filed 04/14/17 Page 1 of 7

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The Honorable James L. Robart

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON

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JUWEIYA ABDIAZIZ ALI, et al.,
No. 2:17-cv-00141 (JLR)

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Plaintiffs,
v.

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DONALD TRUMP, et al.,
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Defendants.

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REPLY IN SUPPORT OF
DEFENDANTS’ MOTION TO STAY
DISTRICT COURT PROCEEDINGS
PENDING RESOLUTION OF
APPEAL IN HAWAII V. TRUMP

Noted For Consideration:
April 14, 2017

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The district court in Hawaii v. Trump recently stayed all proceedings pending final

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disposition of the government’s appeal of the preliminary injunction entered in that case. See

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No. CV 17-00050, ECF No. 279 (D. Haw. Apr. 3, 2017). This Court should do the same here,

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as a stay is most “efficient for [the Court’s] own docket and the fairest course for the parties[.]”

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Leyva v. Certified Grocers of Cal., Ltd., 593 F.2d 857, 863 (9th Cir. 1979). Defendants

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demonstrated in their opening brief that resolution of the Hawaii appeal is likely to have
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“significant relevance to—and potentially control”—the Court’s analysis of forthcoming issues
in this case. Ali v. Trump, 2017 WL 1057645, at *5 (W.D. Wash. Mar. 17, 2017). Plaintiffs’

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REPLY IN SUPPORT OF DEFENDANTS’ MOTION TO STAY
DISTRIC COURT PROCEEDINGS PENDING RESOLUTION
OF APPEAL IN HAWAII V. TRUMP
Ali, et al. v. Trump, et al., No. 2:17-cv-00135 (JLR)

U.S. DEPARTMENT OF JUSTICE
Office of Immigration Litigation
District Court Section
P.O. Box 868, Ben Franklin Station
Washington, DC 20044
Tel: (202) 305-7171

 Case 2:17-cv-00135-JLR Document 93 Filed 04/14/17 Page 2 of 7

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efforts to diminish the relevance of Hawaii serve only to highlight why further guidance from

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the Ninth Circuit is necessary before this case proceeds.

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The question of what this Court may review in analyzing Plaintiffs’ claims is a primary

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issue before the Ninth Circuit. In the Hawaii appeal, Defendants argue that the “Supreme

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Court has made clear that ‘[w]hen the Executive exercises’ its authority to exclude aliens from

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the country ‘on the basis of a facially legitimate and bona fide reason, the courts will neither

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look behind the exercise of that discretion, nor test it by balancing its justification against the’

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asserted constitutional rights of U.S. citizens.” Br. of Appellants, Hawaii v. Trump, No. 175589, ECF No. 23 at 33 (9th Cir. Apr. 7, 2017) (quoting Kleindienst v. Mandel, 408 U.S. 753,

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770 (1972)). Plaintiffs disagree about the applicability of Mandel, but the important point for

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purposes of this stay motion is that the Ninth Circuit will likely provide significant guidance as

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to what evidence this Court may review. As this Court has recognized, the New Executive

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Order is “significant[ly] differen[t]” than the Revoked Executive Order, such that the Ninth

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Circuit’s preliminary ruling as to the Revoked Order “does not preordain how the Ninth Circuit

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will rule in [Hawaii] with respect to [the New Order].” Ali v. Trump, 2017 WL 1057645, at *5.
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Even if the Ninth Circuit were to determine in Hawaii that, notwithstanding Mandel,

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courts may look beyond the four corners of the New Order, resolution of the Hawaii appeal is

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likely to provide guidance regarding the scope of any such review. As explained in

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Defendants’ stay motion, the Ninth Circuit will likely address whether review is limited to

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openly available data that is accessible to an objective observer or instead extends to internal

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government documents, as well as whether statements or records that predate President

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Trump’s assumption of office are relevant. Plaintiffs point out that the Hawaii appeal will not

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require the Ninth Circuit to “resolve yet-to-be-presented discovery disputes in this case.” Pls.’

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REPLY IN SUPPORT OF DEFENDANTS’ MOTION TO STAY
DISTRICT COURT PROCEEDINGS PENDING RESOLUTION
OF APPEAL IN HAWAII V. TRUMP - 2
Ali, et al. v. Trump, et al., No. 2:17-cv-00135 (JLR)

U.S. DEPARTMENT OF JUSTICE
Office of Immigration Litigation
District Court Section
P.O. Box 868, Ben Franklin Station
Washington, DC 20044
Tel: (202) 305-7171

 Case 2:17-cv-00135-JLR Document 93 Filed 04/14/17 Page 3 of 7

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Opp’n at 3, ECF No. 92. 1 That, of course, oversimplifies the issue. The Ninth Circuit will not

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adjudicate discovery issues, but it will decide legal questions that are likely to impact this

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Court’s resolution of forthcoming discovery disputes by clarifying “the applicable law or the

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relevant landscape of facts that need to be developed.” Ali, 2017 WL 1057645, at *5. These

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legal questions have been teed up in the Hawaii appeal, see, e.g., Br. of Appellants, Hawaii,

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No. 17-5589, ECF No. 23 at 46-53 (arguing statements made before President Trump assumed

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office are not relevant); id. at 47 (describing discovery sought in this case and urging Ninth

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Circuit to “reject a rule that [would] invite[] such probing”); id. at 47-49 (contending courts’
analysis must be based on official acts and openly available data); id. at 37-38 (arguing courts

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cannot second-guess the President’s national security judgments, which would render experts
unnecessary here).
Plaintiffs also contend that resolution of the Hawaii appeal will be of limited relevance

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because Plaintiffs raise “five claims” in addition to the Establishment Clause claim raised in the
Hawaii appeal. Opp’n at 2. This assertion, however, ignores the fact that Defendants contend

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the Mandel standard applies to all of Plaintiffs’ constitutional claims. See, e.g., Mandel, 408
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U.S. at 753, 760 (First Amendment right to “hear[] and meet[]” with alien”); Fiallo v. Bell, 430

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U.S. 787, 791 (1977) (applying Mandel to claims that statute discriminated based on sex and

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illegitimacy in violation of the Equal Protection and Due Process Clauses); Rajah v. Mukasey,

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Plaintiffs’ assertion that a stay is premature because Defendants “have not yet been served” with discovery
requests is unpersuasive. Opp’n at 5. Defendants’ “discovery-related concerns” are hardly “speculative” (id. at
5)—Plaintiffs have already indicated in the parties’ joint status report that they intend to seek broad and intrusive
discovery regarding the underlying factual basis, intent, design, issuance, and effects of the Order and the Revoked
Order. See ECF No. 82 at ¶¶ 4(B), 5(E). Because Plaintiffs could begin propounding discovery requests at any
time, a stay of proceedings would be far more efficient than requiring Defendants to pursue “the normal
procedures for contesting discovery requests.” Opp’n at 5.
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Defendants note that the Hawaii plaintiffs filed a Petition for Initial Hearing En Banc in the Ninth Circuit. See
No. 17-15589, ECF No. 52 (9th Cir. Apr. 11, 2017).
REPLY IN SUPPORT OF DEFENDANTS’ MOTION TO STAY
DISTRICT COURT PROCEEDINGS PENDING RESOLUTION
OF APPEAL IN HAWAII V. TRUMP - 3
Ali, et al. v. Trump, et al., No. 2:17-cv-00135 (JLR)

U.S. DEPARTMENT OF JUSTICE
Office of Immigration Litigation
District Court Section
P.O. Box 868, Ben Franklin Station
Washington, DC 20044
Tel: (202) 305-7171

 Case 2:17-cv-00135-JLR Document 93 Filed 04/14/17 Page 4 of 7

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544 F.3d 427, 438 (2d Cir. 2008) (applying Mandel to equal protection claim alleging

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discrimination based on “religion, ethnicity, gender, and race”). Moreover, Plaintiffs’

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argument against a stay because “only an extremely limited subset of claims at issue in this

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case are before the Ninth Circuit” is belied by their own arguments in their motion to for leave

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to intervene in Hawaii. Opp’n at 1. There, Plaintiffs stressed that the “congruence of the

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claims in the two lawsuits demonstrates the strong relationship between the interests of the Ali

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Plaintiffs and the Hawai‘i plaintiffs’ claims,” and affirmed that the Hawaii appeal “may

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directly determine the merits of the Ali Plaintiffs’ claims for injunctive relief.” Hawaii, No. 175589, ECF No. 20-1 at 12, 14. The resolution of the Hawaii appeal will indeed likely narrow

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most of the merits issue in this case, in addition to affecting the scope of discovery.

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(Defendants note that while a stay pending resolution of the Hawaii appeal is warranted

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because the Ninth Circuit’s guidance will inform this Court and the parties going forward, the

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Ali plaintiffs’ intervention on appeal in Hawaii is inappropriate for a variety of reasons, as the

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government has explained to the Ninth Circuit.)

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In any event, resolution of the Hawaii appeal need not “settle every question of . . . law”
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to justify a stay. Landis v. N. Am. Co., 299 U.S. 248, 256 (1936). It is sufficient that the

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Hawaii appeal is likely to “settle many” issues and “simplify” others, id., such that a stay will

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facilitate the orderly course of justice and conserve resources for both the Court and the parties.

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See Fairview Hosp. v. Leavitt, 2007 WL 1521233, at *3 (D.D.C. May 22, 2007) (granting stay

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pending resolution of another matter that would likely settle or simplify issues even though it

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“would not foreclose the necessity of litigation in [the stayed] case”); In re Literary Works in

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Elec. Databases Copyright Litig., 2001 WL 204212, at *3 (S.D.N.Y. Mar. 1, 2001) (same).

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Indeed, this Court stayed consideration of Plaintiffs’ TRO motion notwithstanding the fact that

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REPLY IN SUPPORT OF DEFENDANTS’ MOTION TO STAY
DISTRICT COURT PROCEEDINGS PENDING RESOLUTION
OF APPEAL IN HAWAII V. TRUMP - 4
Ali, et al. v. Trump, et al., No. 2:17-cv-00135 (JLR)

U.S. DEPARTMENT OF JUSTICE
Office of Immigration Litigation
District Court Section
P.O. Box 868, Ben Franklin Station
Washington, DC 20044
Tel: (202) 305-7171

 Case 2:17-cv-00135-JLR Document 93 Filed 04/14/17 Page 5 of 7

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the motion asserted claims under the INA, Equal Protection Clause, Due Process Clause, and

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Administrative Procedure and Mandamus Acts—in addition to an Establishment Clause claim.

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See ECF No. 79.

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With respect to balancing the hardships that a stay would create, the harm of which

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Plaintiffs complain—“delaying the resolution of discovery disputes” (Opp’n at 7)—does not

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outweigh “the hardship [and] inequity” Defendants would suffer “in being required to go

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forward” without guidance from the Ninth Circuit. CMAX, Inc. v. Hall, 300 F.2d 265, 268 (9th

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Cir. 1962). Plaintiffs seek extraordinarily broad, burdensome, and intrusive discovery in an
area where the President’s authority is at its apex. See Joint Status Report & Discovery Plan,

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ECF No. 82. Contrary to Plaintiffs’ claim, Defendants’ request for a stay is not a “pretext for

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their categorical opposition to all discovery.” Opp’n. at 4. Rather, they merely seek to avoid

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being required to respond to such resource-intensive discovery without the benefit of guidance

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from the Ninth Circuit that is likely to inform threshold issues regarding the appropriateness,

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scope, and necessity of the discovery Plaintiffs seek. See Cheney v. U.S. District Court, 542

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U.S. 367, 385 (2004) (“The high respect that is owed to the office of the Chief Executive,”
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which is to “inform . . . the timing and scope of discovery,” warrants a stay pending resolution

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of the Hawaii appeal.); Clinton v. Jones, 520 U.S. 681, 707 (1997) (The power to stay

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proceedings applies “especially in cases of extraordinary public moment[.]”).

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Finally, in contrast to Plaintiffs’ claim, the stay Defendants seek is limited. Defendants
request a stay pending final disposition of appellate proceedings concerning the preliminary

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injunction in Hawaii, which is the same, reasonable stay entered by the district court in Hawaii

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itself. See No. CV 17-00050, ECF No. 279. Considering that the Ninth Circuit has ordered

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expedited briefing and set oral argument for May 15, 2017, see Hawaii, No. 17-15589, ECF

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REPLY IN SUPPORT OF DEFENDANTS’ MOTION TO STAY
DISTRICT COURT PROCEEDINGS PENDING RESOLUTION
OF APPEAL IN HAWAII V. TRUMP - 5
Ali, et al. v. Trump, et al., No. 2:17-cv-00135 (JLR)

U.S. DEPARTMENT OF JUSTICE
Office of Immigration Litigation
District Court Section
P.O. Box 868, Ben Franklin Station
Washington, DC 20044
Tel: (202) 305-7171

 Case 2:17-cv-00135-JLR Document 93 Filed 04/14/17 Page 6 of 7

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Nos. 14, 18, there is no reason to believe the stay will be of inordinate duration. Plaintiffs’

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conjecture about a possible petition for certiorari and further speculation about when any

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Supreme Court review might take place, see Opp’n at 6, does not justify denying a stay. If the

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Court is concerned about the duration of any stay, it could require a status report once the Ninth
Circuit has issued its decision to reevaluate the circumstances at that time.
For these reasons, the Court should stay district court proceedings in this case pending
resolution of the Hawaii appeal.

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DATED: April 14, 2017

Respectfully submitted,

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CHAD A. READLER
Acting Assistant Attorney General
WILLIAM C. PEACHEY
Director
Office of Immigration Litigation
District Court Section
GISELA A. WESTWATER
Assistant Director
EREZ REUVENI
Senior Litigation Counsel
/s/ Stacey I. Young
Senior Litigation Counsel
U.S. Department of Justice
Civil Division
P.O. Box 868, Ben Franklin Station
Washington, DC 20044
Tel: (202) 305-7171
Fax: (202) 305-7000
Email: stacey.young@usdoj.gov
Attorneys for Defendants

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REPLY IN SUPPORT OF DEFENDANTS’ MOTION TO STAY
DISTRICT COURT PROCEEDINGS PENDING RESOLUTION
OF APPEAL IN HAWAII V. TRUMP - 6
Ali, et al. v. Trump, et al., No. 2:17-cv-00135 (JLR)

U.S. DEPARTMENT OF JUSTICE
Office of Immigration Litigation
District Court Section
P.O. Box 868, Ben Franklin Station
Washington, DC 20044
Tel: (202) 305-7171

 Case 2:17-cv-00135-JLR Document 93 Filed 04/14/17 Page 7 of 7

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CERTIFICATE OF SERVICE
I hereby certify that on April 14, 2017, I electronically filed the foregoing Reply in
Support of Defendants’ Motion to Stay District Court Proceedings Pending Resolution of

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Appeal in Hawaii v. Trump using the Court’s CM/ECF system, causing a notice of filing to be
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served upon all counsel of record.

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/s/ Stacey I. Young
STACEY I. YOUNG

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DEFENDANTS’ REPLY IN SUPPORT OF MOTION FOR
A STAY OF PROCEEDINGS PENDING RESOLUTION
OF PROCEEDINGS IN HAWAII v. TRUMP
Ali, et al. v. Trump, et al., No. 2:17-cv-00135 (JLR)

U.S. DEPARTMENT OF JUSTICE
Office of Immigration Litigation
District Court Section
P.O. Box 868, Ben Franklin Station
Washington, DC 20044
Tel: (202) 305-7171