Case 1:17-cv-00255-TSC Document 80 Filed 04/27/17 Page 1 of 19

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

PARS EQUALITY CENTER, IRANIAN
AMERICAN BAR ASSOCIATION,
NATIONAL IRANIAN AMERICAN
COUNCIL, PUBLIC AFFAIRS ALLIANCE
OF IRANIAN AMERICANS, INC., et al.,

No. 17-cv-255 (TSC)
Electronically Filed
Hon. Tanya S. Chutkan

Plaintiffs,
v.
DONALD J. TRUMP et al.,
Defendants.

UNIVERSAL MUSLIM ASSOCIATION OF
AMERICA, INC., et al.,

No. 17-cv-537 (TSC)
Electronically Filed

Plaintiffs,
Hon. Tanya S. Chutkan
v.
DONALD J. TRUMP et al.,
Defendants.

PLAINTIFFS’ JOINT SUPPLEMENTAL BRIEF IN SUPPORT OF
MOTIONS FOR PRELIMINARY INJUNCTION

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TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES .......................................................................................................... ii
I.

The Court Can and Should Enjoin §§ 2 and 6 of the March 6 Executive Order ................ 1
A.

Other Courts’ Rulings Do Not Restrict this Court from Enjoining §§ 2 and 6 ...... 1

B.

The Court Should Enjoin Invidiously Discriminatory Government Action........... 3

II.

The Court Has Broad Power To Grant Relief Restoring the Status Quo Ante................... 6

III.

The Court Can and Should Grant the Broader Relief Requested By Plaintiffs .................. 9
A.

The Court Should Grant Relief To Fully Restore the Status Quo .......................... 9

B.

Defendants Should Publish Guidance Notifying Government Officials and
Affected Individuals that the Pre-January 27 Status Quo Has Been Restored ..... 12

CONCLUSION............................................................................................................................. 12

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TABLE OF AUTHORITIES
Page(s)
CASES
Allied-Signal, Inc. v. U.S. Nuclear Regulator Comm’n,
988 F.2d 146 (D.C. Cir. 1993)...................................................................................................7
Aziz v. Trump,
No. 17-cv-116, 2017 WL 580855 (E.D. Va. Feb. 13, 2017) .....................................................1
Bradshaw v. Veneman,
338 F. Supp. 2d 139 (D.D.C. 2004) ...........................................................................................9
Cobell v. Kempthorne,
455 F.3d 301 (D.C. Cir. 2006)...................................................................................................7
Cobell v. Norton,
240 F.3d 1081 (D.C. Cir. 2001) .................................................................................................8
*Dellinger v. Mitchell,
442 F.2d 782 (D.C. Cir. 1971)...................................................................................................3
Florida ex rel. Bondi v. U.S. Dep’t of Health & Human Servs.,
780 F. Supp. 2d 1256 (N.D. Fla. 2011)......................................................................................2
Friends for All Children, Inc. v. Lockheed Aircraft Corp.,
746 F.2d 816 (D.C. Cir. 1984)...................................................................................................7
Goudy-Bachman v. U.S. Dep’t of Health & Human Servs.,
811 F. Supp. 2d 1086 (M.D. Pa. 2011) ......................................................................................2
Hawai‘i v. Trump,
No. 17-cv-50, 2017 WL 1011673 (D. Haw. Mar. 15, 2017) .....................................................1
Hecht Co. v. Bowles,
321 U.S. 321 (1944)...................................................................................................................6
Hulley Enters. Ltd. v. Russian Fed’n,
211 F. Supp. 3d 269, 2016 WL 5675348 (D.D.C. 2016)...........................................................4
Int’l Refugee Assistance Project v. Trump,
No. TDC-17-0361, 2017 WL 1018235 (D. Md. Mar. 16, 2017) ...............................................1
Johnson v. U.S. R.R. Ret. Bd.,
969 F.2d 1082 (D.C. Cir. 1992) .............................................................................................2, 4
Kaufman v. Mukasey,
524 F.3d 1334 (D.C. Cir. 2008) .................................................................................................8
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*Landis v. N. Am. Co.,
299 U.S. 248 (1936)...................................................................................................................4
*League of Women Voters v. Newby,
838 F.3d 1 (D.C. Cir. 2016) .............................................................................................7, 9, 10
Li v. Chertoff,
No. C-08-3540 MMC, 2008 WL 4962992 (N.D. Cal. Nov. 19, 2008) .....................................5
Louhghalam v. Trump,
No. 17-cv-10154, 2017 WL 479779 (D. Mass. Feb. 3, 2017) ...................................................1
*Patel v. Reno,
134 F.3d 929 (9th Cir. 1997) .....................................................................................................8
Sarsour v. Trump,
No. 17-cv-120, 2017 WL 1113305 (E.D. Va. Mar. 24, 2017)...................................................1
Sugar Cane Growers Co-Op of Florida v. Veneman,
289 F.3d 89 (D.C. Cir. 2002) .....................................................................................................7
Tex. Children’s Hospital v. Burwell,
76 F. Supp. 3d 224 (D.D.C. 2014).......................................................................................9, 12
*United States v. Borden Co.,
347 U.S. 514 (1954)...................................................................................................................2
United States v. Cnty. of Maricopa,
151 F. Supp. 3d 998 (D. Ariz. 2015) .........................................................................................2
*United States v. Mendoza,
464 U.S. 154 (1984)...................................................................................................................2
United States v. Oakland Cannabis Buyers’ Cooperative,
532 U.S. 483 (2001)...................................................................................................................6
United States v. Texas,
136 S. Ct. 2271 (2016)...............................................................................................................5
United States v. W. Elec. Co.,
46 F.3d 1198 (D.C. Cir. 1995)...................................................................................................9
Virginia ex rel. Cuccinelli v. Sebelius,
728 F. Supp. 2d 768 (E.D. Va. 2010) ........................................................................................2
Washington v. Trump,
No. 17-cv-135, 2017 WL 1057645 (D. Wash. Mar. 17, 2017)..................................................4

iii

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Washington v. Trump,
No. 17-cv-141, 2017 WL 462040 (W.D. Wash. Feb. 3, 2017)..................................................1
STATUTES
5 U.S.C. § 706..................................................................................................................................8
OTHER AUTHORITIES
Mem. from Sec’y of State to Diplomatic and Consular Posts, Mar. 17, 2017,
http://live.reuters.com/Event/Live_US_Politics /791255396 ....................................................5

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Plaintiffs in the above-captioned cases submit this joint brief in response to the Court’s
April 21, 2017 Minute Order and in further support of their motions for preliminary injunction.
I.

The Court Can and Should Enjoin §§ 2 and 6 of the March 6 Executive Order
In response to the Court’s first question, there is no “restriction on a judge’s ability to

issue a nationwide injunction on the provisions of the Order that have already been enjoined,”
and numerous factors establish that overlapping injunctions are “in the public interest.”
A.

Other Courts’ Rulings Do Not Restrict this Court from Enjoining §§ 2 and 6

Nationwide injunctions by district courts in other circuits against §§ 2 and 6 of the March
6 Executive Order in no way restrict this Court’s ability to issue a nationwide injunction barring
their enforcement. Defendants have not cited a single case—and Plaintiffs know of none—
holding that one court’s nationwide injunction blocking an unlawful government action disables
another court from issuing its own nationwide injunction barring the same unlawful action. On
the contrary, multiple courts have issued overlapping injunctions blocking both of President
Trump’s Executive Orders on immigration. Compare Washington v. Trump, No. 17-cv-141,
2017 WL 462040 (W.D. Wash. Feb. 3, 2017) (January 27 Order), with Aziz v. Trump, No. 17-cv116, 2017 WL 580855 (E.D. Va. Feb. 13, 2017) (same), and Hawai‘i v. Trump, No. 17-cv-50,
2017 WL 1011673 (D. Haw. Mar. 15, 2017) (March 6 Order), with Int’l Refugee Assistance
Project v. Trump, No. TDC-17-0361, 2017 WL 1018235 (D. Md. Mar. 16, 2017) (same).1
Similarly, in other contexts, courts have issued overlapping orders affecting other
government actions. Multiple district courts issued overlapping declaratory judgments
1

Other courts denied preliminary injunctive relief on the merits even after each Executive
Order had been enjoined, further belying any notion that one court’s nationwide injunction bars
other courts from deciding whether to issue their own injunctions. See Louhghalam v. Trump,
No. 17-cv-10154, 2017 WL 479779 (D. Mass. Feb. 3, 2017) (January 27 Order); Sarsour v.
Trump, No. 17-cv-120, 2017 WL 1113305 (E.D. Va. Mar. 24, 2017) (March 6 Order).

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invalidating the Affordable Care Act’s individual mandate. E.g., Florida ex rel. Bondi v. U.S.
Dep’t of Health & Human Servs., 780 F. Supp. 2d 1256, 1305-06 (N.D. Fla. 2011); GoudyBachman v. U.S. Dep’t of Health & Human Servs., 811 F. Supp. 2d 1086 (M.D. Pa. 2011);
Virginia ex rel. Cuccinelli v. Sebelius, 728 F. Supp. 2d 768 (E.D. Va. 2010). The government
itself has sought and obtained injunctive relief that duplicated relief that other courts had already
awarded to private parties. See, e.g., United States v. Borden Co., 347 U.S. 514 (1954) (district
court abused its discretion by denying an injunction to the government solely because it would
duplicate an earlier injunction granted to a private litigant); United States v. Cnty. of Maricopa,
151 F. Supp. 3d 998 (D. Ariz. 2015) (granting the government such an overlapping injunction).
Indeed, the Supreme Court has favored parallel litigation involving the Government
because it “permit[s] several courts of appeals to explore a difficult question before [the Supreme
Court] grants certiorari.” United States v. Mendoza, 464 U.S. 154, 160 (1984). To “allow
thorough development of legal doctrine by allowing litigation in multiple forums,” the Court in
Mendoza held that the Government is not precluded from relitigating an issue that it previously
lost in an earlier case against a different party. Id. at 163. This “avoids the problem of freezing
the development of the law.” Id. at 164; see also Johnson v. U.S. R.R. Ret. Bd., 969 F.2d 1082,
1093 (D.C. Cir. 1992) (recognizing the “value to letting important legal issues ‘percolate’
throughout the judicial system”). It would subvert that objective to hold that one court’s
nationwide injunction against the Government precludes other courts from granting overlapping
relief. Allowing courts in multiple circuits to consider issues of great public moment in the
normal course is particularly important where, as here, political officials have challenged the
good faith, if not the independence, of the judiciary.
Defendants are wrong that the nationwide injunctions issued by the District of Hawaii
and the District of Maryland preclude a finding of irreparable harm here. If that were so, no
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court after the first could grant an injunction, but any court would be free to deny one. Only the
arguments against an injunction would be developed through further litigation. While
Defendants no doubt would prefer such a one-way ratchet in their efforts to defend the Executive
Orders, it would improperly skew the development of the law in favor of one side.
In addition, the Government seeks to overturn the injunctions on appeal in the Ninth and
Fourth Circuits, where Plaintiffs are not parties. Should those injunctions be dissolved or limited
jurisdictionally (which could happen for reasons unrelated to the merits), the March 6 Executive
Order presumably would take effect immediately, harming Plaintiffs and causing chaos and
uncertainty similar to that seen on January 27. Even if Plaintiffs were to seek a TRO from this
Court, it is unlikely that relief could be granted quickly enough to prevent irreparable harm to
Plaintiffs and others. Having established a likelihood of success on the merits and a robust
factual record of continuing irreparable harm, Plaintiffs are entitled to a preliminary injunction
against §§ 2 and 6 of the March 6 Executive Order pending resolution of their own cases.
B.

The Court Should Enjoin Invidiously Discriminatory Government Action

Because other courts’ injunctions do not restrict this Court’s ability to enjoin §§ 2 and 6,
and because Plaintiffs have satisfied all requirements for a preliminary injunction, the only
question is whether the Court should nevertheless deny such relief as a matter of discretion.
Myriad factors establish that an injunction by this Court against Defendants’ invidious
discrimination “is in the public interest.” 4/21/17 Minute Order. Further, although Defendants
have not requested a stay, the Court inquired about whether it “would be more appropriate to
stay a resolution of these motions” until “the Fourth and Ninth Circuits” rule. 4/21/17 Hr’g Tr.
7-8. No stay is warranted. Where relief is otherwise appropriate, a court should not stay its
issuance unless the need for a stay “overrides the injury to the parties being stayed,” especially in
cases involving “a not insubstantial claim of present and continuing infringement of
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constitutional rights.” Dellinger v. Mitchell, 442 F.2d 782, 787 (D.C. Cir. 1971); see Hulley
Enters. Ltd. v. Russian Fed’n, 211 F. Supp. 3d 269, 2016 WL 5675348, at *7 (D.D.C. 2016).
Although courts may consider whether deferring to parallel litigation may narrow issues or
promote efficiency, “[o]nly in rare circumstances will a litigant in one cause be compelled to
stand aside while a litigant in another settles the rule of law that will define the rights of both.”
Landis v. N. Am. Co., 299 U.S. 248, 255 (1936).
In addition to the ongoing harms suffered by Plaintiffs, there are at least six reasons why
this Court should grant an injunction against §§ 2 and 6 notwithstanding other courts’
injunctions. First, if the Government were to prevail on any ground in the Ninth and Fourth
Circuits—even were this Court prepared to promptly consider a TRO request—any lapse in the
injunctions against §§ 2 and 6 would further imperil the ability of the individual plaintiffs and the
organizational plaintiffs’ constituents and members to travel freely, maintain family
relationships, and practice their faith, increasing the irreparable harm to Plaintiffs. Avoiding
these harms alone impels the exercise of discretion in favor of a preliminary injunction now.
Second, reasoned opinions by multiple courts will develop the law on, and aid any
Supreme Court review of, the critically important questions here about invidious religious and
national-origin discrimination and the scope of executive authority. See Johnson, 969 F.2d at
1093. This factor bears special significance here because these are the only cases that would
permit the D.C. Circuit to address whether the Executive Order reflects unconstitutional animus.
These cases thus are nothing like Washington v. Trump, where the District of Washington stayed
entry of a TRO pending the Ninth Circuit’s resolution of the Government’s appeal of the District
of Hawaii’s injunction. No. 17-cv-135, 2017 WL 1057645 (D. Wash. Mar. 17, 2017). The stay
there will not prevent the Ninth Circuit from deciding the issues in the Hawaii appeal, and the
District of Washington, unlike this Court, will be bound by the Ninth Circuit’s decision.
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Third, Plaintiffs ask this Court to enjoin not only §§ 2 and 6 of the March 6 Executive
Order, but also §§ 3 and 4, which have not yet been enjoined. Section 3 establishes a system of
separate but unequal treatment for visa applicants from the affected countries. Section 4 requires
heightened scrutiny for Iraqis seeking visas, admission, or any other immigration benefit. The
same discriminatory animus behind §§ 3 and 4 equally infects §§ 2 and 6. As a matter of judicial
economy, it makes sense to rule on §§ 2 and 6 when addressing the parallel flaws in §§ 3 and 4.2
Fourth, if the Supreme Court hears challenges to the March 6 Executive Order at the
preliminary-injunction stage, see, e.g., United States v. Texas, 136 S. Ct. 2271 (2016) (mem.),
the PARS and UMAA cases present important complements to the Hawaii and Maryland suits.
The PARS case presents a highly developed factual record, including declarations and live
testimony concerning ongoing harms suffered by Plaintiffs and others. Similarly, UMAA is the
only litigant to raise a First Amendment “right to listen” claim, and the Hawaii and Maryland
rulings do not address Equal Protection or other claims raised in the PARS and UMAA cases.
Fifth, conversely, Defendants have not identified, much less substantiated, any specific
need for a stay or hardship imposed by an overlapping injunction against §§ 2 and 6.

2

Section 4 is far more than a policy statement. Cf. Hr’g Tr. 27-28. On March 17, 2017,
pursuant to § 4, the Secretary of State ordered consular officials worldwide to conduct additional
vetting when adjudicating Iraqis’ visa applications, causing significant processing delays (and
presumably resulting in additional denials). See Mem. from Sec’y of State to Diplomatic and
Consular Posts, Mar. 17, 2017, at §§ 11, 12, http://live.reuters.com/Event/Live_US_Politics
/791255396 (explaining that the Order “contemplate[s] additional screening for Iraqi nationals in
addition to the robust vetting already in place,” and directing consular officials to submit a
Donkey Security Advisory Opinion for any Iraqi applicant who was ever present in a territory
controlled by ISIS); Li v. Chertoff, No. C-08-3540 MMC, 2008 WL 4962992, at *2 n.3 (N.D.
Cal. Nov. 19, 2008) (government estimated it would take “three to six months” to issue Security
Advisory Opinion). Section 1(g) underscores the effect of § 4: “Decisions about issuance of
visas or granting admission to Iraqi nationals should be subjected to additional scrutiny.”

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Finally, the March 6 Executive Order reflects rank discriminatory animus against a
discrete, insular, and politically unpopular minority. This is precisely when courts should act,
not stay their hand. Deferring judgment on Defendants’ attempt to ban Muslims from entering
the country withholds judicial condemnation of the type of unconstitutional, bigoted conduct that
courts should condemn. That other courts have issued injunctions does not eliminate the
significance and obligation of this Court to declare what the law is.
II.

The Court Has Broad Power To Grant Relief Restoring the Status Quo Ante
The Court next asked: “If the court intends to issue injunctive relief specific to the

individual plaintiffs, what would be the scope of that injunction and what authority does the
court have to issue it.” The individual plaintiffs—many of whom are proceeding
anonymously—have not requested relief specific to themselves. Attempting to provide relief
specific to the Doe plaintiffs would likely require them to waive their anonymity, potentially
exposing them to retaliation by foreign regimes, the U.S. government, or hostile elements of the
public. Moreover, measures limited to individual plaintiffs would provide no relief to the
organizational plaintiffs, which continue to be harmed by the March 6 Executive Order and
Defendants’ ongoing violations of constitutional rights. Plaintiffs accordingly believe that the
broader relief they request, as described in Part III below, is appropriate and preferable.
That said, the Court has ample equitable authority to grant relief restoring individual
plaintiffs (and others similarly impacted by the Executive Orders) to the positions they held on
January 26. “The essence of equity jurisdiction has been the power of the Chancellor to do
equity and to mould each decree to the necessities of the particular case. Flexibility rather than
rigidity has distinguished it.” Hecht Co. v. Bowles, 321 U.S. 321, 329 (1944); see also United
States v. Oakland Cannabis Buyers’ Cooperative, 532 U.S. 483, 496 (2001). Federal courts
possess the “deep-rooted power of equity to do what is necessary and appropriate to achieve
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justice in the individual case.” Friends for All Children, Inc. v. Lockheed Aircraft Corp., 746
F.2d 816, 830 (D.C. Cir. 1984). That broad discretion encompasses the authority to restore the
status quo by returning the parties to the situation preceding the events that spurred these suits.
Key here, the D.C. Circuit has long held that “[t]he usual role of a preliminary injunction
is to preserve the status quo pending the outcome of litigation”—i.e., the “last uncontested status
which preceded the pending controversy.” Cobell v. Kempthorne, 455 F.3d 301, 315 (D.C. Cir.
2006) (citing Dist. 50, United Mine Workers of Am. v. Int’l Union, United Mine Workers of Am.,
412 F.2d 165, 168 (D.C. Cir. 1969)). For example, in League of Women Voters v. Newby, 838
F.3d 1 (D.C. Cir. 2016), the court issued a preliminary injunction requiring the U.S. Election
Assistance Commission and the State of Kansas to take “all actions necessary to restore the
status quo ante,” including reversing denial of voter registrations. Id. at 15.
The scope of the relief necessary to restore the parties to the status quo depends on the
balance of equities, weighing the harms to the plaintiffs and the public interest absent an
injunction against the harms and burdens for the defendants if an injunction issues. Id. at 12-15.
In the context of injunctive relief against the government, mere administrative inconvenience is
insufficient to tip the scale against enjoining unlawful action, particularly where the government
has existing systems and “procedures in place” that enable it to comply with the injunction. Id.
In analogous contexts, courts have generally relieved the government of its duty to
restore the status quo ante only where doing so would have been practically impossible—where
“[t]he egg has been scrambled and there is no apparent way to restore the status quo ante,” Sugar
Cane Growers Co-Op of Florida v. Veneman, 289 F.3d 89, 97 (D.C. Cir. 2002)—or where a
rule’s defects did not outweigh widespread chaos and disruption from vacating the rule, see
Allied-Signal, Inc. v. U.S. Nuclear Regulator Comm’n, 988 F.2d 146, 151 (D.C. Cir. 1993).

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To restore the status quo as to the individual plaintiffs, the Court could order Defendants
to take the following actions:


Take a “second look” at the post-January 27 summary denials of visa applications of
the relatives of PARS plaintiffs Ali Asaei and Jane Doe #13, according to standards
and procedures in place on January 26, 2017.



Review the visa applications of PARS plaintiffs Jane Doe #1’s fiancé, the parents of
Jane Doe #4, the husband of Jane Doe #10, the parents of Shiva Hissong, and the wife
of John Doe #3, which remain pending eight weeks after interview, to ensure that the
applications are being timely processed under the standards and procedures in place
on January 26, 2017, and that any delay is unrelated to the Executive Orders.



Process the refugee applications of PARS plaintiffs Jane Does #8 and #9 and John
Does #7 and #8 under the standards and procedures in place on January 26, 2017.



Instruct relevant officials not to deny the UMAA Doe plaintiffs’ children entry to the
United States for any reason related to the March 6 Executive Order.

Plaintiffs do not ask the Court to direct a particular outcome in any individual case.
Rather, Plaintiffs request an injunction to “compel the agency to act,” leaving “the manner of
[the agency’s] action . . . to the agency’s discretion.” Kaufman v. Mukasey, 524 F.3d 1334, 1338
(D.C. Cir. 2008) (internal quotation marks omitted); accord Patel v. Reno, 134 F.3d 929 (9th Cir.
1997) (doctrine of consular non-reviewability did not preclude ordering the agency to make a
final visa determination). Courts commonly exercise their equitable power in this way by, for
example, compelling action that an agency has unreasonably withheld. Cobell v. Norton, 240
F.3d 1081, 1095 (D.C. Cir. 2001) (quoting 5 U.S.C. § 706). This is how courts considering
challenges to the Executive Orders have generally fashioned relief as to individuals. See, e.g.,
Doe v. Trump, 3:17-cv-00112 (W.D. Wis. Mar. 10, 2017), ECF Nos. 9, 14 (in response to a
request that the government be ordered “to finish processing [his] derivative asylum petition” for
his wife and daughter, the court ordered the government to provide an update on “the current
status of plaintiff’s request for derivative asylum for his wife and surviving daughter”).

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III.

The Court Can and Should Grant the Broader Relief Requested By Plaintiffs
In response to the Court’s final question, the Court has “the authority . . . to issue the

proposed injunctive relief in Section 2 of the Pars Proposed Preliminary Injunction (with
particular focus on 2(e)) and Sections 4-9 of the UMAA Proposed Preliminary Injunction.”
The original Proposed Orders submitted by the PARS and UMAA plaintiffs requested
overlapping relief. For example, both § 2 of the PARS Proposed Order and §§ 6-8 of the UMAA
Proposed Order pertained to the issuance or rescission of guidance regarding the Executive
Orders. For clarity and convenience, and to conform the proposed orders to the record, the PARS
and UMAA plaintiffs attach a consolidated proposed order as Exhibit A. The Court has authority
to issue the relief set forth in this consolidated proposed order for the reasons described above—
it can grant preliminary relief to “restore the status quo ante.” Newby, 838 F.3d at 15.3
A.

The Court Should Grant Relief To Fully Restore the Status Quo

The balance of equities favors the broader relief that Plaintiffs seek to fully restore the
status quo ante. Plaintiffs face significant, ongoing harm from the Executive Orders that other
courts’ injunctions have not remedied. See PI Mem. 18-23, 40-42 (PARS Doc. 35-1); PI Mem.
15-20, 31-36, 40-41 (UMAA Doc. 11-1). On the other side of the balance, there is “generally no
public interest in the perpetuation of unlawful agency action.” Newby, 838 F.3d at 12. Instead,
the public interest lies in the government’s compliance with “the federal laws that govern [its]
3

At the April 21 hearing, Defendants’ counsel characterized Plaintiffs’ requested relief as a
“mandatory injunction” that triggers a heightened standard. 4/21/17 Hr’g Tr. 53-54. But the
D.C. Circuit has stated that “a line between mandatory and prohibitory injunctions . . . is an
illusion and cannot be maintained.” United States v. W. Elec. Co., 46 F.3d 1198, 1206 (D.C. Cir.
1995); see Newby, 838 F.3d at 7. In any event, while courts have refrained from ordering
payments of disputed amounts or other preliminary relief beyond restoring the status quo, there
are no impediments to ordering restorative relief here. Compare Bradshaw v. Veneman, 338 F.
Supp. 2d 139, 144 (D.D.C. 2004), with Newby, 838 F.3d at 14-15 (reversing implementation of
voter registration form), and Tex. Children’s Hospital v. Burwell, 76 F. Supp. 3d 224, 247
(D.D.C. 2014) (ordering government to issue formal notification that its guidance was enjoined).

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existence and operations.” Id. As described below, moreover, Plaintiffs’ requested relief is
discrete, administrable, and narrowly tailored; it requires no unscrambling of the egg.
Plaintiffs seek relief with respect to five discrete categories of affected individuals:
1. Consular Interviews Cancelled. Paragraph 2(a) of the consolidated order requires
Defendants to offer prompt consular interviews to nationals of the affected countries whose
appointments were cancelled as a result of the Executive Orders. See 4/18/17 Hr’g Tr. 27-28;
IABA Decl. ¶¶ 28, 34 (PARS Doc. 35-2, Ex. 2); NIAC Decl. ¶ 42 (PARS Doc. 35-2, Ex. 3).
Defendants can identify these individuals through the State Department’s electronic records of
appointments, 9 FAM 403.3-2, and the Consular Coordinated Database (“CCD”)—a centralized
database containing information about all visa applications and determinations.
2. Visa Applications Denied. Paragraph 2(b) of the order requires Defendants to review
visa denials since January 26, 2017 to individuals who had previously been granted visas. Since
the January 27 Executive Order, Defendants have denied visas to individuals who previously
received visas to enter the United States, some of whom were asked about their religion. See
Asaei Decl. ¶¶ 10-14 (PARS Doc. 35-2, Ex. 5); Jane Doe #13 Decl. ¶¶ 18-20 (PARS Doc. 35-2,
Ex. 14); NIAC Decl. ¶ 47 (PARS Doc. 35-2, Ex. 3); IABA Decl. ¶¶ 39-40 (PARS Doc. 35-2, Ex.
2); 4/18/17 Hr’g Tr. 27-28, 47-48. Using the CCD, Defendants can identify visa applicants who
previously obtained a visa but were denied one after January 27. The State Department has
established procedures for giving a “second look” to visa determinations, both routinely and
where questions arise about the denial. See 9 FAM 403.10-3(D).
3. Visa Processing Suspended. Paragraph 2(c) of the order requires the Defendants to
review visa applications of individuals from the affected countries that remain pending eight
weeks after interview to ensure that they are being timely processed under the standards and
procedures in place on January 26, 2017. After issuance of the January 27 Executive Order,
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Defendants suspended processing of visa applications for individuals from the affected countries.
See, e.g., Jane Doe #1 Decl. ¶¶ 11-23 (PARS Doc. 35-2, Ex. 7); Jane Doe #4 Decl. ¶¶ 4, 7 (PARS
Doc. 35-2, Ex. 8); Jane Doe #10 Decl. ¶¶ 11-13 (PARS Doc. 35-2, Ex. 11); Hissong Decl. ¶¶ 2122 (PARS Doc. 35-2, Ex. 6); John Doe #3 Decl. ¶¶ 5-7 (PARS Doc. 35-2, Ex. 16A); PARS Decl.
¶¶ 23-25 (PARS Doc. 35-2, Ex. 1); IABA Decl. ¶¶ 28, 34, 37 (PARS Doc. 35-2, Ex. 2); 4/18/17
Hr’g Tr. 28, 48. State Department policy generally requires that visa determinations be made
quickly; the Department frequently makes such determinations within a day of the interview,
although in some cases, there may be a delay while the consular officer seeks a Security
Advisory Opinion (SAO). See 9 FAM 403.10-2(A); 9 FAM 504.9-2 (“Once an application has
been executed, you must either issue the visa or refuse it.”). Using the CCD, Defendants can
identify particular visa applicants who filed or had applications pending after January 26, 2017,
and who have waited an inordinate amount of time for a determination—more than seven days
where no SAO was sought, or more than six weeks where an SAO was sought.
4. Visas Physically Cancelled. Paragraph 2(d) of the order seeks reissuance of visas that
were physically cancelled. Defendants physically cancelled some individuals’ valid visas in the
wake of the January 27 Executive Order, and have not reissued them. See PARS Am. Compl.
¶ 3. The State Department can easily identify these visas through the CCD and reissue them.
5. Refugee Applications Delayed. Paragraph 3 of the order requires Defendants to offer
field interviews to refugees whose USCIS interviews were cancelled or delayed as a result of the
Executive Orders. After January 27, 2017, Defendants suspended processing of refugee
applications, and USCIS stopped conducting field interviews for individuals from the affected
countries. See John Doe #7 Decl. ¶¶ 7-9 (PARS Doc. 35-2, Ex. 18A), John Doe # 8 Decl. ¶¶ 7-9
(PARS Doc. 35-2, Ex. 19A); Jane Doe #8 Decl. ¶¶ 15-19 (PARS Doc. 35-2, Ex. 9); Jane Doe #9
Decl. ¶¶ 14-18 (PARS Doc. 35-2, Ex. 10); PARS Decl. ¶¶ 16-21 (PARS Doc. 35-2, Ex. 1). The
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 Case 1:17-cv-00255-TSC Document 80 Filed 04/27/17 Page 17 of 19

U.S. Refugee Admission Program can identify affected refugees through an existing database of
all refugee applications—the Worldwide Refugee Admissions Processing System (“WRAPS”).
B.

Defendants Should Publish Guidance Notifying Government Officials and
Affected Individuals that the Pre-January 27 Status Quo Has Been Restored

Defendants have continued their differential treatment of individuals from the affected
countries despite the injunctions against §§ 2 and 6 of the March 6 Executive Order, creating
uncertainty and confusion. See, e.g., UMAA Am. Compl. ¶¶ 74-80; Jane Doe #11 Decl. ¶¶ 16-22
(PARS Doc. 35-2, Ex. 12); Jane Doe #12 Decl. ¶¶ 10-12 (PARS Doc. 35-2, Ex. 13); John Doe #1
Decl. ¶¶ 14-18 (PARS Doc. 35-2, Ex. 15). Because unlawful implementation of enjoined or
rescinded provisions often takes the form of instructions to consular officials to delay and deny
entry, the Court should require that Defendants publish guidance regarding current policies and
procedures to ensure restoration of the pre-January 27 status quo.4 Courts routinely enter such
relief in conjunction with preliminary injunctions. See, e.g., Tex. Children’s Hosp. v. Burwell,
76 F. Supp. 3d 224, 247 (D.D.C. 2014) (ordering government to issue formal notification that its
guidance was enjoined). Requiring Defendants to disclose their current policies and procedures
would help ensure that Defendants have in fact restored the pre-January 27 status quo. Cf.
Darweesh v. Trump, No. 17-cv-480, Dkt. No. 173 at 4 (E.D.N.Y. Feb. 2, 2017) (court order
requiring the government to provide to petitioners a list of individuals).
CONCLUSION
Plaintiffs’ motions for preliminary injunction in PARS and UMAA should be granted.
4

For example, since January 27, 2017, some visa applicants have been advised by consular
personnel that they needed to file new applications to restart the process. See NIAC Decl. ¶ 47
(PARS Doc. 35-2, Ex. 3). Defendants’ guidance should make clear to both consular personnel
and visa applicants that neither the January 27 Executive Order nor the March 6 Executive Order
has had any effect on the status of an individual’s visa application, and that no new visa
application must be submitted as a result of either Executive Order.

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 Case 1:17-cv-00255-TSC Document 80 Filed 04/27/17 Page 18 of 19

Dated: April 27, 2017

Respectfully submitted,

/s/ David J. Weiner
David J. Weiner (D.C. Bar # 499806)
Charles A. Blanchard (D.C. Bar # 1022256)
Amanda J. Sherwood (D.C. Bar # 1021108)
ARNOLD & PORTER
KAYE SCHOLER LLP
601 Massachusetts Ave., NW
Washington, DC 20001
(202) 942-5000
(202) 942-5999 (fax)
david.weiner@apks.com
charles.blanchard@apks.com
amanda.sherwood@apks.com

/s/ John A. Freedman
John A. Freedman (D.C. Bar # 453075)
David P. Gersch (D.C. Bar # 367469)
R. Stanton Jones (D.C. Bar # 987088)
Nancy L. Perkins (D.C. Bar # 421574)
Ronald A. Schechter (D.C. Bar # 245019)
Robert N. Weiner (D.C. Bar # 298133)
Samuel M. Witten (D.C. Bar # 378008)
Sally L. Pei (D.C. Bar # 1030194)
Sonia Tabriz (D.C. Bar # 1025020)
Stephen K. Wirth (D.C. Bar # 1034038)
ARNOLD & PORTER
KAYE SCHOLER LLP
601 Massachusetts Ave., NW
Washington, DC 20001
(202) 942-5000
(202) 942-5999 (fax)
john.freedman@apks.com

Emily Newhouse Dillingham
ARNOLD & PORTER
KAYE SCHOLER LLP
70 West Madison Street
Chicago, IL 60602
(312) 583-2300
(312) 583-2360 (fax)
emily.dillingham@apks.com

Christopher M. Odell*
ARNOLD & PORTER
KAYE SCHOLER LLP
700 Louisiana Street, Suite 1600
Houston, TX 77002
(713) 576-2400
(713) 576-2499 (fax)
christopher.odell@apks.com

Andrew D. Bergman
ARNOLD & PORTER
KAYE SCHOLER LLP
700 Louisiana Street, Suite 1600
Houston, TX 77002
(713) 576-2400
(713) 576-2499 (fax)
andrew.bergman@apks.com

Susan S. Hu*
ARNOLD & PORTER
KAYE SCHOLER LLP
250 West 55th Street
New York, NY 10019
(212) 836-8000
(303) 836-8689 (fax)
susan.hu@apks.com

Johnathan Smith
Aziz Huq
MUSLIM ADVOCATES
P.O. Box 71080
Oakland, CA 94612
(415) 692-1484
johnathan@muslimadvocates.org
aziz.huq@gmail.com

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 Case 1:17-cv-00255-TSC Document 80 Filed 04/27/17 Page 19 of 19

Richard B. Katskee (D.C. Bar # 474250)
Bradley Girard (D.C. Bar # 1033743)
AMERICANS UNITED FOR
SEPARATION OF CHURCH AND
STATE
1310 L Street, NW, Suite 200
Washington, DC 20005
(202) 466-3234
(202) 466-3353 (fax)
katskee@au.org
girard@au.org

Adrienne D. Boyd*
ARNOLD & PORTER
KAYE SCHOLER LLP
370 Seventh Street, Suite 4400
Denver, CO 80202
(303) 863-1000
(303) 832-0428 (fax)
adrienne.boyd@apks.com
Cyrus Mehri (D.C. Bar # 420970)
Joanna K. Wasik (D.C. Bar # 1027916)
Amelia Friedman (D.C. Bar # 1033583)
MEHRI & SKALET, PLLC
1250 Connecticut Ave., NW, Suite 300
Washington, DC 20036
(202) 822-5100
(202) 822-4997 (fax)
cmehri@findjustice.com

Gillian B. Gillers
Kristi L. Graunke
Naomi R Tsu
SOUTHERN POVERTY LAW
CENTER
1989 College Ave., NE
Atlanta, GA 30317
(404) 521-6700
(404) 221-5857 (fax)
gillian.gillers@splcenter.org
kristi.graunke@splcenter.org
naomi.tsu@splcenter.org

Kristen Clarke (D.C. Bar # 973885)
Jon Greenbaum (D.C. Bar # 489887)
LAWYERS’ COMMITTEE FOR
CIVIL RIGHTS UNDER LAW
1401 New York Ave., NW, Suite 400
Washington, DC 20005
(202) 662-8600
(202) 783-0857 (fax)
jgreenbaum@lawyerscommittee.org

Counsel for Plaintiffs in Case No. 17-cv-537

Counsel for Plaintiffs in Case No. 17-cv-255

*Pro hac vice motion pending

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