Case 1:17-cv-00255-TSC Document 82 Filed 05/02/17 Page 1 of 17

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
____________________________________
)
PARS EQUALITY CENTER, et al.,
)
)
Plaintiffs,
)
)
v.
)
Civil Action No. 1:17-cv-00255-TSC
)
DONALD J. TRUMP, in his official
)
capacity as President of the
)
United States, et al.,
)
)
Defendants.
)
____________________________________)
)
UNIVERSAL MUSLIM ASSOCIATION )
OF AMERICA, et al.,
)
)
Plaintiffs,
)
)
v.
)
Civil Action No. 1:17-cv-00537-TSC
)
DONALD J. TRUMP, in his official
)
capacity as President of the
)
United States, et al.,
)
)
Defendants.
)
____________________________________)

DEFENDANTS’ RESPONSE TO PLAINTIFFS’ JOINT SUPPLEMENTAL BRIEF
REGARDING PRELIMINARY RELIEF

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TABLE OF CONTENTS

INTRODUCTION .......................................................................................................................... 1
I.

Plaintiffs Ignore Two Fundamental Principles Governing the Court’s Authority to
Issue Relief.......................................................................................................................... 1

II.

Plaintiffs Cannot Establish Irreparable Harm Given the Existing Injunctions. .................. 3

III.

Plaintiffs Have Not Justified Entry of Relief as to the Individuals..................................... 6

IV.

V.

A.

Plaintiffs Fail to Submit Any Evidence Connecting Their Claimed Injuries
to the March 6 Order. .............................................................................................. 6

B.

Plaintiffs’ Proposed Relief Violates Principles of Consular NonReviewability. ......................................................................................................... 7

The Broad Relief Requested Is Factually Unsupported and Legally Unfounded. .............. 8
A.

Plaintiffs Have Failed to Submit Evidence Establishing Their Alleged
Harms. ..................................................................................................................... 9

B.

Plaintiffs’ Alleged Harms Have No Connection to the March 6 Order. ................. 9

C.

The Proposed Relief Would Not Benefit the Plaintiffs. ........................................ 10

D.

Plaintiffs’ Requested Relief Would Be Highly Intrusive and Burdensome. ......... 11

At a Minimum, the Court Should Stay Consideration of Plaintiffs’ Motions................... 12

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

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TABLE OF AUTHORITIES
CASES
Adams v. Vance,
570 F.2d 950 (D.C. Cir. 1978) .................................................................................................... 6
Al-Mowafak v. Trump,
No. 3:17-cv-00557-WHO (N.D. Cal. Apr. 18, 2017) ....................................................... 4, 5, 12
Ali v. Trump,
2017 WL 1057645 (W.D. Wash. Mar. 17, 2017) .......................................................... 3, 4, 5, 12
Castillo v. Rice,
581 F. Supp. 2d 468 (S.D.N.Y. 2008) ......................................................................................... 8
*Chaplaincy of Full Gospel Churches v. England,
454 F.3d 290 (D.C. Cir. 2006) .................................................................................................... 1
Cobell v. Kempthorne,
455 F.3d 301 (D.C. Cir. 2006) .................................................................................................. 11
Cobell v. Norton,
428 F.3d 1070 (D.C. Cir. 2005) .......................................................................................... 11, 12
Cooper Indus., Inc. v. Aviall Servs., Inc.,
543 U.S. 157 (2004) .................................................................................................................... 3
Fla. Audubon Soc. v. Bentsen,
94 F.3d 658 (D.C. Cir. 1996) .................................................................................................... 11
Florida ex rel. Bondi v. Dep’t of Health & Human Servs.,
780 F. Supp. 2d 1307 (N.D. Fla. 2011) ....................................................................................... 4
Hawaii v. Trump,
2017 WL 536826 (D. Haw. Feb. 9, 2017) ......................................................................... 3, 5, 12
Henke v. Dep’t of Interior,
842 F. Supp. 2d 54 (D.D.C. 2012) .............................................................................................. 5
*Li Hing of Hong Kong, Inc. v. Levin,
800 F.2d 970 (9th Cir. 1986) ....................................................................................................... 8
Lewis v. Casey,
518 U.S. 343 (1996) .............................................................................................................. 2, 10

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Rizzo v. Goode,
423 U.S. 362 (1976) .................................................................................................................. 12
*Saavedra Bruno v. Albright,
197 F.3d 1153 (D.C. Cir. 1999) ................................................................................................... 8
Sarsour v. Trump,
2017 WL 1113305 (E.D. Va. Mar. 24, 2017) ............................................................................ 10
*Save Jobs USA v. Dep’t of Homeland Sec.,
105 F. Supp. 3d 108 (D.D.C. 2015) .................................................................................. 2, 3, 10
*Schlesinger v. Reservists Comm. to Stop the War,
418 U.S. 208 (1974) .................................................................................................................... 2
*Summers v. Earth Island Inst.,
555 U.S. 488 (2009) .................................................................................................................... 2
Sweis v. U.S. Foreign Claims Settlement Comm’n,
950 F. Supp. 2d 44 (D.D.C. 2013) .............................................................................................. 4
United States v. Borden Co.,
347 U.S. 514 (1954) .................................................................................................................... 4
United States v. Cty. of Maricopa,
151 F. Supp. 3d 998 (D. Ariz. 2015) ........................................................................................... 4
Wash. v. Trump,
2017 WL 1050354 (W.D. Wash. Mar. 17, 2017) .............................................................. 3, 5, 12
Wash. v. Trump,
847 F.3d 1151 (9th Cir. 2017) ..................................................................................................... 5
Wash. v. Trump,
2017 WL 1045950 (W.D. Wash. Mar. 16, 2017) ...................................................................... 10
Winter v. Nat. Res. Def. Council, Inc.,
555 U.S. 7 (2008) ........................................................................................................................ 3
*Wis. Gas Co. v. FERC,
758 F.2d 669 (D.C. Cir. 1985) .................................................................................................... 1

FEDERAL REGULATIONS
Exec. Order No. 13,780, 82 Fed. Reg. 13,209 (Mar. 6, 2017) ............................................... passim

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INTRODUCTION
This Court’s Minute Order of April 21, 2017 directed Plaintiffs to answer three specific
questions regarding the legal authority for their requested relief. Rather than heed the Court’s
instruction to “tailor [the briefing] very precisely to those questions,” PI Hr’g Tr. at 88 (Apr. 21,
2017), Plaintiffs’ supplemental memorandum instead demands new forms of relief—going far
beyond what either set of Plaintiffs had previously requested. Even if the Court were to entertain
this belated attempt to expand the requested relief, such relief in any event is unsupported both
legally and factually. None of the Plaintiffs in these lawsuits would be aided by a third nationwide
injunction, Plaintiffs have not submitted any evidence substantiating the alleged ongoing harms
they seek to redress, and the Court cannot enter an injunction based on hypothetical injuries
suffered by unknown individuals wholly unconnected to this case. Ultimately, Plaintiffs are not
seeking relief tailored to any documented irreparable harm they are suffering, but are instead
requesting that this Court become a global superintendent of the visa application process and
refugee admissions operations. This Court should deny Plaintiffs’ request as such intrusive relief
is not legally available or practically possible or, at a minimum, stay consideration of Plaintiffs’
motions pending resolution of the ongoing appeals of the existing injunctions.
I.

Plaintiffs Ignore Two Fundamental Principles Governing the Court’s Authority to
Issue Relief.
Plaintiffs’ supplemental memorandum fails to acknowledge two fundamental principles

limiting this Court’s ability to issue relief. First, Plaintiffs bear the burden of demonstrating that
they will suffer irreparable harm in the absence of the particular relief requested. See Chaplaincy
of Full Gospel Churches v. England, 454 F.3d 290, 297 (D.C. Cir. 2006) (“To warrant preliminary
injunctive relief, the moving party must show . . . it would suffer irreparable injury if the injunction
were not granted[.]”); Wis. Gas Co. v. FERC, 758 F.2d 669, 674 (D.C. Cir. 1985) (“[T]he movant

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must show that the alleged harm will directly result from the action which the movant seeks to
enjoin.”); accord Lewis v. Casey, 518 U.S. 343, 358 (1996) (observing that inadequacies that “have
not been found to have harmed any plaintiff in this lawsuit . . . were not the proper object of this
District Court’s remediation”). And Article III requires Plaintiffs to establish “standing for each
type of relief sought.” Summers v. Earth Island Inst., 555 U.S. 488, 493 (2009) (citation omitted);
see Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208, 221-22 (1974) (“The desire to
obtain sweeping relief cannot be accepted as a substitute for compliance with the general rule that
the complainant must present facts sufficient to show that his individual need requires the remedy
for which he asks.” (alteration and citation omitted)).
Second, in discharging their burden of demonstrating standing and irreparable harm at the
preliminary-injunction stage, Plaintiffs are required to come forward with actual evidence proving
their injuries. See Save Jobs USA v. Dep’t of Homeland Sec., 105 F. Supp. 3d 108, 112-13 (D.D.C.
2015) (Chutkan, J.) (“As these authorities make clear, to meet the standard for irreparable harm
the movant must present sufficient evidence that the purported injury is certain, great, actual,
imminent, and beyond remediation.”); see also id. at 113 (declining to enter preliminary injunction
based on predictive statement in affidavit lacking “any corroborating evidence,” because “that
speculative injury, however possible, is not actual and certain” (citation omitted)).
Here, Plaintiffs’ requested relief fails to satisfy these fundamental principles for several
reasons: (1) Plaintiffs’ purported irreparable harm is not impending, but is instead contingent on
the lifting of the two nationwide injunctions already in place; (2) Plaintiffs have not adequately
proven that any claimed harms exist, let alone that they are attributable to the challenged March 6
Executive Order; and (3) Plaintiffs’ requested relief does not address injuries to themselves, but

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rather is designed to redress purported, unproven injuries of individuals unconnected to this suit.
As demonstrated below, each of these grounds requires that Plaintiffs’ requested relief be denied.
II.

Plaintiffs Cannot Establish Irreparable Harm Given the Existing Injunctions.
Plaintiffs cannot demonstrate that they are suffering any “certain, great, actual, imminent”

injury, Save Jobs USA, 105 F. Supp. 3d at 112-13, because provisions of the challenged Order have
already been enjoined nationwide by two other district courts. Instead, Plaintiffs offer a series of
policy arguments that they contend support “the exercise of discretion in favor of a preliminary
injunction now.” Pls.’ Suppl. Br. at 4 (ECF No. 80). Those arguments are irrelevant, however,
unless Plaintiffs have satisfied the prerequisites governing entry of a preliminary injunction—an
“extraordinary remedy never awarded as of right.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S.
7, 24 (2008) (citation omitted). Pertinent here, the requirement that a party show irreparable harm
restricts a court’s authority to enter a duplicative nationwide injunction. See Pars, ECF No. 26.
Either Plaintiffs are not currently harmed (due to the nationwide injunctions), or their harms are
not judicially redressable (because existing nationwide injunctions did not redress them).
As for their policy arguments, Plaintiffs note that “multiple courts have issued overlapping
injunctions blocking both of President Trump’s Executive Orders on immigration.” Pls.’ Suppl.
Br. at 1 (citation omitted). But none of the decisions cited by Plaintiffs addressed the irreparable
harm argument advanced here. Cf. Cooper Indus., Inc. v. Aviall Servs., Inc., 543 U.S. 157, 170
(2004) (“Questions which merely lurk in the record, neither brought to the attention of the court
nor ruled upon, are not to be considered as having been so decided as to constitute precedents.”
(quotation omitted)). And of course, Plaintiffs largely ignore the several decisions staying requests
for preliminary relief after entry of nationwide injunctions. See Hawaii v. Trump, 2017 WL 536826
(D. Haw. Feb. 9, 2017); Washington v. Trump, 2017 WL 1050354 (W.D. Wash. Mar. 17, 2017); Ali

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v. Trump, 2017 WL 1057645 (W.D. Wash. Mar. 17, 2017); Al-Mowafak v. Trump, No. 3:17-cv00557-WHO (N.D. Cal. Apr. 18, 2017), ECF No. 63.1 Furthermore, in each of the cases relied
upon by Plaintiffs, the challengers filed their preliminary injunction motions prior to any
nationwide injunctions—so they could still argue that their interests were “either threatened or in
fact being impaired at the time the movant seeks injunctive relief.” Sweis v. U.S. Foreign Claims
Settlement Comm’n, 950 F. Supp. 2d 44, 49 (D.D.C. 2013) (quotation omitted). Here, Plaintiffs
filed their motions after the District of Hawaii had already entered its injunction.
Plaintiffs also rely on purported “overlapping orders” in Affordable Care Act litigation, but
none involved nationwide orders. See, e.g., Florida ex rel. Bondi v. Dep’t of Health & Human
Servs., 780 F. Supp. 2d 1307, 1318 (N.D. Fla. 2011) (“[M]y declaratory judgment, of course, only
applies to the parties to this litigation.”). Moreover, all three involved final judgments on the
merits, and none involved injunctive relief at all, only declaratory judgments. Those cases thus
provide no support for a third preliminary, nationwide injunction here.2
More generally, Plaintiffs argue that courts regularly permit parallel litigation against the
Government. Pls.’ Suppl. Br. at 2. But those cases support the Government’s position that courts
should not issue nationwide injunctions against Government policies in the first instance (as has

1

Plaintiffs acknowledge only the Ali decision (which they incorrectly caption as Washington
v. Trump), and assert that these cases are different because this Court will not be “bound by the
Ninth Circuit’s decision” in the Hawaii appeal. Pls.’ Suppl. Br. at 4. It is far from clear, however,
that the individual plaintiffs in Ali will be bound by the Ninth Circuit’s decision in Hawaii—e.g.,
if the Ninth Circuit were to reverse the preliminary injunction on grounds particular to the Hawaii
plaintiffs, such as standing or irreparable harm.
2

Plaintiffs’ other cited cases—United States v. Borden Co., 347 U.S. 514 (1954), and United
States v. Cty. of Maricopa, 151 F. Supp. 3d 998 (D. Ariz. 2015), appeal docketed, No. 15-17558
(9th Cir. Dec. 31, 2015)—allowed the Attorney General to seek an injunction after a private party
had obtained such relief, due to the United States’ unique law-enforcement duties. Borden, 347
U.S. at 518-20; Maricopa, 151 F. Supp. 3d at 1011-13. Those cases do not support private parties
obtaining duplicative preliminary relief.
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occurred here). And none speaks to whether a court should proceed with a duplicative request for
preliminary relief even after a nationwide injunction has already been entered. Nor can Plaintiffs
seriously accuse the Government of seeking “a one-way ratchet in their efforts to defend the
Executive Orders.” Id. at 3. Rather, it is Plaintiffs who, by seeking nationwide injunctions, have
sought to “improperly skew” the law by prohibiting any enforcement of the Order even though, as
Plaintiffs acknowledge, some courts have concluded that the Order is lawful. Id. at 1 n.1, 3.
Plaintiffs argue they might suffer irreparable harm in the future, if the Government’s
appeals result in the injunctions being vacated or narrowed. See Pls.’ Suppl. Br. at 3. However,
that is or was equally true for the Hawaii, Washington, Ali, and Al-Mowafak cases, yet those courts
still declined to move forward with the plaintiffs’ requests for preliminary relief. Moreover, an
injury that is expressly contingent on a future event is, by definition, not an imminent, irreparable
injury. See Henke v. Dep’t of Interior, 842 F. Supp. 2d 54, 59 (D.D.C. 2012) (“Injury that is
hypothetical or speculative does not rise to the level of irreparable harm.”).3
Finally, Plaintiffs rely on their challenges to Sections 3 and 4 of the Order, which are not
enjoined. But again, Plaintiffs do not identify any irreparable harm they are currently suffering as
a result of those sections. Moreover, an injunction against Section 3 would be senseless: it would
have no practical effect so long as Section 2 remains enjoined, and in the event Section 2 came
into force, enjoining Section 3 would effectively expand the scope of the Order, despite the Ninth
Circuit’s invitation for the President to make exactly the type of distinctions that Section 3’s
exceptions and waivers provide. See Washington v. Trump, 847 F.3d 1151, 1167 (9th Cir. 2017).

3

Plaintiffs incorrectly assert that, if both nationwide injunctions were reversed, it would
“caus[e] chaos and uncertainty similar to that seen on January 27.” Pls.’ Suppl. Br. at 3. That
assertion ignores fundamental changes between the Revoked Order and the March 6 Order, as
discussed at length in the Government’s prior briefings with the Court.
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As for Section 4, the injunction Plaintiffs seek—prohibiting the use of information from the Iraqi
government “concerning individuals suspected of ties to ISIS or other terrorist organizations and
individuals coming from territories controlled or formerly controlled by ISIS,” Exec. Order No.
13,780 § 4—highlights Plaintiffs’ overreach into the Executive Branch’s foreign affairs and
national security judgments, including to otherwise non-reviewable aspects of a consular official’s
duty to vet appropriately applicants for visas. Such intrusion should not be undertaken at all, much
less on a record that lacks evidence of irreparable harm. See Adams v. Vance, 570 F.2d 950, 95455 (D.C. Cir. 1978) (“extraordinarily strong showing” required when injunction “deeply intrudes
into the core concerns of the executive branch”).
III.

Plaintiffs Have Not Justified Entry of Relief as to the Individuals.
Plaintiffs acknowledge that the individual plaintiffs “have not requested relief specific to

themselves.” Pls.’ Suppl. Br. at 6. That statement, by itself, explains why no such relief should be
granted. The forms of relief that Plaintiffs do mention are impermissible for several reasons.
A.

Plaintiffs Fail to Submit Any Evidence Connecting Their Claimed Injuries to
the March 6 Order.

The sole policy being challenged in Plaintiffs’ motions for preliminary injunction is the
March 6 Order. See Pars PI Mot. (ECF No. 35) at 1 (“Plaintiffs seek to enjoin Defendants from
enforcing or implementing certain provisions of President Donald J. Trump’s Executive Order No.
13,780[.]”); UMAA PI Mot. (ECF No. 11) at 1-2 (same). Plaintiffs, however, mention several
forms of relief directed at events occurring before the March 6 Order was even signed. See Pls.’
Suppl. Br. at 8. The denials of visa applications for relatives of Ali Asaei and Jane Doe #13 all
occurred prior to March 6, 2017. See Pars PI Mot., Asaei Decl. ¶ 14 (Exh. 5); Jane Doe #13 Decl.
¶ 14 (Exh. 14). And with respect to the visa applications of 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

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#3, all of them appear to have made visa applications (and were adjudicated and refused for
administrative processing) in October 2016 or November 2016—months prior to the March 6
Order. Plaintiffs have therefore failed to submit any evidence demonstrating a connection between
the challenged March 6 Order and the alleged injuries that would be redressed by these forms of
relief. Nor could Plaintiffs plausibly establish such a connection, given that relevant portions of
the March 6 Order were enjoined prior to its effective date, and thus have never been implemented.
With respect to the two claimed injuries potentially occurring in the future, Plaintiffs fail
to prove the existence of these injuries or their connection to the March 6 Order. For example,
Plaintiffs propose an order directing the Government to “[p]rocess the refugee applications” of
Pars Plaintiffs, Jane Does #8 and #9, and John Does #7 and #8. Pls.’ Suppl. Br. at 8. But there is
no evidence that those refugee applications are currently not being processed. Nor is there any
basis for connecting any alleged delay in processing those applications to the March 6 Order.
Plaintiffs’ theories of harm assume that, although relevant portions of the Order have been enjoined
(and therefore have never been implemented), they are still somehow having a lasting effect. That
assumption is remarkable, given that there have been no allegations of non-compliance in either
of the courts that have actually enjoined the Order.4
B.

Plaintiffs’ Proposed Relief Violates Principles of Consular Non-Reviewability.

Even assuming arguendo that consular non-reviewability principles do not preclude
Plaintiffs’ overall claim in this case, those principles certainly preclude the type of intrusive,
individualized relief Plaintiffs describe here.

4

Plaintiffs had also proposed relief for the UMAA Doe Plaintiffs’ children, but those children
have now been admitted to the United States and Plaintiffs have voluntarily dismissed those
claims. See Doe Plaintiffs’ Notice of Voluntary Dismissal, UMAA v. Trump, ECF No. 44.
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The doctrine of consular non-reviewability is rooted in the broader principle that “any
policy toward aliens” is “so exclusively entrusted to the political branches of government as to be
largely immune from judicial inquiry or interference.” Saavedra Bruno v. Albright, 197 F.3d 1153,
1159-60 (D.C. Cir. 1999) (citation omitted). Thus, the doctrine is not limited only to final visa
determinations. See, e.g., Castillo v. Rice, 581 F. Supp. 2d 468, 474 (S.D.N.Y. 2008) (collecting
cases for the proposition that “Petitioners simply do not have a right to an expedited interview date
from the Consulate”). Entering the type of relief envisioned by Plaintiffs—i.e., a command to take
a “second look” at an already-denied visa application, or to process applications at a certain pace
according to certain procedures, see Pls.’ Suppl. Br. at 8—would be contrary to these longstanding
principles.5 Plaintiffs fail to cite any legal authority that would allow a court to second-guess a
consular officer’s visa adjudication decision, or to order Defendants to re-review a consular
officer’s prior adjudication. Indeed, “it has been consistently held that the consular official's
decision to issue or withhold a visa is not subject either to administrative or judicial review.” Li
Hing of Hong Kong, Inc. v. Levin, 800 F.2d 970, 971 (9th Cir. 1986).
IV.

The Broad Relief Requested Is Factually Unsupported and Legally Unfounded.
Plaintiffs state that, “[f]or clarity and convenience,” they have jointly filed a new proposed

order. Pls.’ Suppl. Br. at 9; see Pars, ECF No. 80-1. But Plaintiffs fail to mention that their new
proposed order seeks several new forms of relief—even more expansive than what was previously
requested. For example, neither set of Plaintiffs’ prior proposed orders mentioned conducting
“second look” reviews of previously denied applications, id. ¶ 2(b); taking various steps regarding
“pending” visa applications, id. ¶ 2(c); or affirmatively rescheduling refugee interviews, id. ¶ 3.

5

Notably, Plaintiffs do not simply request an injunction prohibiting decisions from being
based on the March 6 Order. Rather, they seek to dictate the exact procedures that the Government
must employ—i.e., those in place on January 26, 2017. See Pls.’ Suppl. Br. at 8.
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Plaintiffs’ belated attempt to inject these new issues into the case should be rejected outright. But
even beyond that, Plaintiffs’ requests are also wholly meritless.
A.

Plaintiffs Have Failed to Submit Evidence Establishing Their Alleged Harms.

Plaintiffs request relief for five categories of individuals, Pls.’ Suppl. Br. at 10-11, but do
not establish the need for any such relief. Specifically, Plaintiffs submit no evidence regarding:
1. Any individuals whose consular interviews were cancelled as a result of the Executive
Orders, who remain interested in obtaining a visa, and are available for a consular
interview, but have not yet been re-scheduled for an interview;
2. Any individuals who were denied visas based solely on the Executive Orders, who
remain interested in obtaining a visa, and who have not yet been able to obtain one;
3. Any individuals whose visa applications are not being processed for reasons related
solely to the Executive Orders;
4. Any individuals whose visas were physically cancelled, who remain interested in
obtaining a visa, and who have not yet been able to obtain one6; or
5. Any refugee applicants whose USCIS field interviews were cancelled based solely on
the Executive Orders, and who have not yet been re-scheduled for an interview.
Quite simply, Plaintiffs have failed to establish that any of these individuals purportedly suffering
harm even exist. Plaintiffs have therefore failed to carry their burden on this point.
B.

Plaintiffs’ Alleged Harms Have No Connection to the March 6 Order.

Plaintiffs’ alleged harms (even if they could be established) stem from the first, nowrevoked Executive Order, which is not even being challenged here.

6

The March 6 Executive Order already addresses this issue. It specifically provides that
“[a]ny individual whose visa was marked revoked or marked cancelled as a result of Executive
Order 13769 shall be entitled to a travel document confirming that the individual is permitted to
travel to the United States and seek entry.” Executive Order No. 13,780, § 12(d); see also U.S.
Department of State, Alert: Executive Order on Visas (Mar. 22, 2017),
https://travel.state.gov/content/travel/en/news/important-announcement.html (“Any individual in
this situation who seeks to travel to the United States should contact the closest U.S. embassy or
consulate to request a travel document.”).

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All of Plaintiffs’ claimed harms relate to actions taken during the brief window when the
Revoked Order was being implemented (January 27 – February 3, 2017). However, Plaintiffs’
motions for preliminary injunction do not challenge the Revoked Order or contain any arguments
as to why that Order was unlawful. And given the two Orders’ differences, Plaintiffs cannot rely
on their arguments as to the March 6 Order as a basis for challenging (and seeking relief as to) the
Revoked Order. Cf. Washington v. Trump, 2017 WL 1045950, at *3 (W.D. Wash. Mar. 16, 2017)
(holding that injunction as to the Revoked Order did not apply to the March 6 Order, given the
“substantial distinctions between EO1 and EO2”); Sarsour v. Trump, 2017 WL 1113305, at *12
(E.D. Va. Mar. 24, 2017). Thus, Plaintiffs’ current preliminary-injunction motions provide no
basis for entering their requested relief: any past injuries attributable to the Revoked Order do not
justify an injunction against the legally distinct March 6 Order.
C.

The Proposed Relief Would Not Benefit the Plaintiffs.

As discussed above (Section I), Plaintiffs must establish not only irreparable harm but also
Article III standing for each form of relief sought. Here, Plaintiffs make no effort to do so: they
seek relief that is designed to remedy hypothetical injuries associated with unknown individuals
wholly unconnected to this lawsuit. Nor can Plaintiffs justify this relief based on the alleged
injuries of the organizational Plaintiffs; Plaintiffs have submitted no evidence demonstrating—and
certainly no reasonable basis for assuming—that entry of Plaintiffs’ proposed order would result
in the organizations no longer needing to expend resources on educating the Iranian-American
community about this topic, or advocating on their behalf on this topic. Cf. Save Jobs USA, 105
F. Supp. 3d at 112 (declining to enter an injunction based on predictive allegations lacking
corroborating evidence). Because Plaintiffs’ requested relief has no connection to the actual parties
in this lawsuit, such relief is legally unavailable. Lewis, 518 U.S. at 358.

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D.

Plaintiffs’ Requested Relief Would Be Highly Intrusive and Burdensome.

Even beyond principles of consular non-reviewability, courts should not attempt to micromanage the Executive Branch’s functions. See, e.g., Fla. Audubon Soc. v. Bentsen, 94 F.3d 658,
672 (D.C. Cir. 1996) (en banc) (“The federal judiciary is not a back-seat Congress nor some sort
of super-agency.”). Plaintiffs, however, seek broad-ranging relief that would inevitably require the
Court to become a global superintendent, managing various governmental operations overseas.
The requested relief would also tie the President’s hands in the areas of immigration and national
security, including by demanding that the Government apply only those standards and procedures
for visa processing that existed on January 26, 2017. See Pls.’ Supp. Br. at 10.
This type of relief is precisely the kind criticized by the D.C. Circuit, as demonstrated by
the Cobell v. Kempthorne litigation upon which Plaintiffs themselves rely. See, e.g., 455 F.3d 301,
317 (D.C. Cir. 2006) (“A court cannot order programmatic supervision of an agency’s operations,
nor can it displace an agency as the actor with primary responsibility for carrying out a statutory
mandate by prescribing particular tasks for [the agency] to perform based on policies developed
by the district court.” (citation omitted)); Cobell v. Norton, 428 F.3d 1070, 1078-79 (D.C. Cir.
2005) (reversing an injunction that “reflected no deference to defendants’ expertise or to their
judgment regarding the allocation of scarce resources”).
Moreover, as described in the attached declaration, the relief Plaintiffs request in Section 2
of their proposed order (ECF No. 80-1) is either infeasible or would be extremely burdensome.
See Decl. of Jeremy A. Cornforth ¶¶ 3-6 (May 2, 2017) (filed herein) (explaining, among other
things, that the Department of State’s Consular Consolidated Database cannot be used to identify
individuals whose consular interviews or visas were cancelled as a result of the Executive Orders).
And implementing the requested relief likely would have significant negative effects on third

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parties, because it would “divert resources from normal visa adjudications, potentially extending
visa application interview wait times and the processing of current visa applications for all
applicants world-wide.” See id. ¶ 5. These factors weigh heavily against entry of such relief. Cf.
Cobell, 428 F.3d at 1077 (reversing injunction because “the district court completely disregarded
relevant information about the costs of its injunction”).
Particularly based on this record—devoid of irreparable harm—the Court should reject
Plaintiffs’ invitation to conduct global oversight of the State Department’s consular operations.
See Rizzo v. Goode, 423 U.S. 362, 378-79 (1976) (“When a plaintiff seeks to enjoin the activity of
a government agency . . . his case must contend with the well-established rule that the Government
has traditionally been granted the widest latitude in the dispatch of its own internal affairs.”
(citation omitted)).
V.

At a Minimum, the Court Should Stay Consideration of Plaintiffs’ Motions.
For the foregoing reasons, the Government respectfully submits that the Court should deny

Plaintiffs’ motions for preliminary injunction. At a minimum, however, this Court should follow
the same course as the courts in Hawaii, Washington, Ali, and Al-Mowafak, and stay consideration
of Plaintiffs’ motions for preliminary injunction pending resolution of the appeals.

If

circumstances were to change, Plaintiffs could move this Court to lift the stay, at which point the
Court—having already received lengthy briefing and heard oral argument—would be in a position
to act promptly. As of right now, however, there is no need for urgent action, and therefore this
Court should, at a minimum, stay consideration of Plaintiffs’ motions.
CONCLUSION
The Court should deny Plaintiffs’ motions for preliminary injunctions.

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 Case 1:17-cv-00255-TSC Document 82 Filed 05/02/17 Page 17 of 17

Dated: May 2, 2017

Respectfully submitted,
CHAD A. READLER
Acting Assistant Attorney General
CHANNING D. PHILLIPS
United States Attorney
JOHN R. TYLER
Assistant Branch Director
/s/ Brad P. Rosenberg
BRAD P. ROSENBERG
(D.C. BAR NO. 467513)
DANIEL SCHWEI
(N.Y. Bar)
MICHELLE R. BENNETT
(Co. Bar No. 37050)
ARJUN GARG
(D.C. Bar No. 975335)
United States Department of Justice
Civil Division, Federal Programs Branch
20 Massachusetts Ave., N.W.
Washington, DC 20530
Tel.: (202) 514-3374
Fax: (202) 616-8460
Email: brad.rosenberg@usdoj.gov
Counsel for Defendants

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