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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
ARAB AMERICAN CIVIL RIGHTS
LEAGUE, et al.,
Plaintiffs,
v.

Case No. 17-10310
Honorable Victoria A. Roberts

DONALD TRUMP, et al.,
Defendants.
______________________________/
ORDER GRANTING DEFENDANTS’ MOTION FOR STAY
PENDING SUPREME COURT PROCEEDINGS [Doc. 105]
I.

INTRODUCTION and BACKGROUND
This case is one of many challenging the constitutionality of President Trump’s

Executive Order No. 13780, titled “Protecting the Nation from Foreign Terrorist Entry
Into the United States,” 82 Fed. Reg. 13209 (Mar. 6, 2017) (the “Executive Order”).
On May 25, 2017, in a case presenting a similar challenge to the Executive
Order, the Fourth Circuit upheld a Maryland District Court’s nationwide preliminary
injunction prohibiting enforcement of § 2(c) of the Executive Order – which temporarily
suspended entry into the United States of nationals from six predominately Muslim
countries. See Int’l Refugee Assistance Project v. Trump, 17-1351, --- F.3d ---, 2017
WL 2273306 (4th Cir. May 25, 2017), as amended (May 31, 2017) (“IRAP”). On June 1,
2017, the government filed a petition for certiorari in IRAP, and the Supreme Court
ordered an expedited response due June 12, 2017.
Defendants move for a stay of these proceedings pending the Supreme Court’s
consideration of the decision in IRAP. [Doc. 105]. Plaintiffs oppose the stay.

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The Court GRANTS Defendants’ motion for stay [Doc. 105].
II.

ANALYSIS
The Court “has broad discretion to stay proceedings as an incident to its power to

control its own docket,” Clinton v. Jones, 520 U.S. 681, 706 (1997), and in considering
the “economy of time and effort for itself, for counsel and for litigants,” Landis v. N. Am.
Co., 299 U.S. 248, 254 (1936). This power applies “especially in cases of extraordinary
public moment,” where “a plaintiff may be required to submit to delay not immoderate in
extent and not oppressive in its consequences if the public welfare or convenience will
thereby be promoted.” Clinton, 520 U.S. at 707 (citation and internal quotation marks
omitted). However, the Court “must tread carefully in granting a stay of proceedings,
since a party has a right to a determination of its rights and liabilities without undue
delay.” Ohio Envtl. Council v. U.S. Dist. Court, S. Dist. of Ohio, E. Div., 565 F.2d 393,
396 (6th Cir. 1977). “The proponent of a stay bears the burden of establishing its need.”
Clinton, 520 U.S. at 708.
In determining whether to stay proceedings pending “another case’s imminent
disposition,” the Court considers four factors: “[1] the potential dispositive effect of the
other case, [2] judicial economy achieved by awaiting adjudication of the other case, [3]
the public welfare, and [4] the relative hardships to the parties created by withholding
judgment.” Caspar v. Snyder, 77 F. Supp. 3d 616, 644 (E.D. Mich. 2015). The parties
do not address the “public welfare” factor, and neither does the Court. However, the
remaining three factors weigh in favor of a stay pending the Supreme Court’s review in
IRAP.

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A.

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Potential Dispositive Effect of Supreme Court Review in IRAP; and
Judicial Economy Achieved by Staying the Proceedings

Although Plaintiffs are correct that the Supreme Court’s review in IRAP will likely
not be fully dispositive of this case, it is sufficient that those proceedings will likely “settle
many” issues and “simplify them all,” Landis, 299 U.S. at 256, such that a stay will
“foster efficiency and conservation of resources for both the parties and the court.”
Fairview Hosp. v. Leavitt, No. 05-1065, 2007 WL 1521233, at *3 (D.D.C. May 22, 2007)
(granting a stay pending the resolution of another case that “would not foreclose the
necessity of litigation in [the stayed] case,” but would likely settle some issues and
simplify others).
Any decision by the Supreme Court will be particularly relevant to – and likely
controlling of – this Court’s disposition of a pending motion to dismiss and pending
motion to compel. It would also provide guidance regarding the appropriate scope of
discovery, and may help to resolve anticipated disputes related to Plaintiffs’ outstanding
discovery requests. Specifically, a decision should provide the legal standard for
reviewing the Executive Order under the Establishment Clause, and should answer
whether Kleindienst v. Mandel, 408 U.S. 753 (1972), limits review to the four corners of
the order. If the Supreme Court holds that Mandel limits review to the face of the
Executive Order, most – if not all – of Plaintiffs’ current discovery requests would
become irrelevant. On the other hand, if the Supreme Court concludes that review is
not limited to the four corners of the Executive Order, then Plaintiffs’ discovery requests
concerning pre-inauguration evidence (e.g., statements made by Candidate Trump,
documents prepared related to the so-called Muslim ban, etc.) may be highly relevant.
A Supreme Court decision in IRAP will guide, if not control, the Court’s disposition of
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both pending and upcoming issues. Accordingly, a stay is warranted to conserve the
resources of the parties and the Court.
Plaintiffs argue that Defendants do not establish that there is a “significant
possibility that the Supreme Court [will] reverse the judgment below,” see United States
v. Mandycz, 321 F. Supp. 2d 862, 864 (E.D. Mich. 2004). However, this does not
prevent the Court from entering a stay. In determining whether the Executive Order
likely violated the Establishment Clause, the Fourth Circuit applied a standard set forth
in Justice Kennedy’s concurrence in Kerry v. Din, --- U.S. ---, 135 S. Ct. 2128, 2140-41
(2015). See IRAP, 2017 WL 2273306, at *16-18. Although the Fourth Circuit’s use of,
and analysis under, that standard was well reasoned and sound, the legal standard is
not well settled. The Supreme Court is likely to address the standard used by the
Fourth Circuit and settle a question of law – i.e., the correct legal standard to use in
reviewing the Executive Order under the Establishment Clause. Such guidance by the
Supreme Court will simplify these proceedings. See Landis, 299 U.S. at 256.
Defendants sufficiently demonstrate that the dispositive effect of the Supreme
Court’s review in IRAP and the judicial economy achieved by awaiting that review weigh
in favor of granting a stay.
B.

Relative Hardships to the Parties if Proceedings are Stayed

Plaintiffs say any review by the Supreme Court would likely take at least six
months, and that such a lengthy stay would prejudice them by: (1) severely delaying
their case; (2) preventing them from securing the evidence they need to proceed; and
(3) increasing the risk that relevant evidence is lost or that Defendants or third parties
fail to preserve relevant evidence.

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Defendants say that allowing Plaintiffs to proceed with their “novel and highly
burdensome discovery” would prejudice them if the Supreme Court finds that Mandel
limits review to the four corners of the Executive Order. They further say that the
discovery sought by Plaintiffs raises complicated executive privilege issues, and that
because the Supreme Court’s decision will likely provide guidance on the scope and
necessity of such discovery, a stay is warranted.
Although a stay will delay these proceedings, the Court finds that potential
prejudice to Plaintiffs is less drastic than they set forth. The Supreme Court is
expediting its decision on Defendants’ petition for certiorari. Regardless of the length of
stay, because the Fourth Circuit upheld the nationwide injunction of the Executive
Order, Plaintiffs’ interests are protected. Should circumstances change during the
duration of the stay, Plaintiffs may move to lift the stay or for other appropriate relief.
In addition, based on the voluminous filings and issues raised in relation to
Plaintiffs’ pending motion to compel – which pertains only to one document request
seeking a single document – it is clear that resolution of disputes related to Plaintiffs’
“limited” discovery requests will require significant resources on behalf of the parties
and the Court. Requiring the parties and the Court to devote time and resources to
resolve these matters during the appeal in IRAP would not be economical, because the
Supreme Court’s decision will be significantly relevant to, and possibly control, the
Court’s consideration of issues raised in this suit. See Landis, 299 U.S. at 254, 256.
This is especially true based on the nature of the case and type of discovery sought.
Because of the “high respect” owed to the Executive, a stay is warranted to
protect Defendants from the burden of resource intensive discovery during the

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pendency of the Supreme Court review in IRAP, particularly since a stay will not greatly
prejudice Plaintiffs. See Cheney v. U.S. Dist. Court for D.C., 542 U.S. 367, 385 (2004)
(“‘[T]he high respect that is owed to the office of the Chief Executive ... is a matter that
should inform the conduct of the entire proceeding, including the timing and scope of
discovery,’ and … the Executive’s ‘constitutional responsibilities and status are factors
counseling judicial deference and restraint’ in the conduct of litigation against it.”
(internal citations omitted)).
Finally, the Court believes that steps can be taken to alleviate Plaintiffs’ concerns
regarding preservation of relevant evidence. There is both a common law obligation
and a duty under the Federal Rules of Civil Procedure for parties to preserve
information in their possession, custody, or control that may be relevant to pending
litigation. Here, Defendants’ duty extends to evidence that predates January 20, 2017,
and, although the individual Defendants were sued in their official capacity, their duty
extends to information created, received or maintained in their personal capacities. The
parties must discuss the scope of discovery and preservation efforts during their
upcoming Rule 26(f) conference, which they must hold prior to June 23, 2017.
To alleviate Plaintiffs’ concerns about their need to obtain information and
preserve evidence from third parties, the Court suggests that they send preservation
letters to the third parties at issue. If Plaintiffs are concerned that this does not resolve
the issue of third-party evidentiary preservation, they may move for a limited
modification of the stay order, as explained in the Conclusion, below.
The relative hardships to the parties created by withholding judgment weighs in
favor of staying these proceedings pending Supreme Court review in IRAP.

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III.

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CONCLUSION
Defendants’ motion for a stay pending Supreme Court proceedings [Doc. 105] is

GRANTED, and this case is STAYED until two weeks after the “final action” (i.e., denial
of certiorari or a decision/opinion on the merits) by the Supreme Court in IRAP, with the
following limitations and conditions:
1. The parties must conduct a Rule 26(f) conference by June 23, 2017;
2. Defendants must preserve information in their possession, custody, or
control – in both their official and personal capacities – that may be
relevant to pending litigation, including information that predates
January 20, 2017. The parties must discuss the scope of discovery
and preservation efforts during their Rule 26(f) conference.
3. Plaintiffs may send preservation letters to third parties to notify them of
the litigation and to request that they preserve any potentially relevant
evidence. If this does not alleviate Plaintiffs’ concerns regarding thirdparty evidentiary preservation, Plaintiffs may move for a limited
modification of this stay to allow them to issue subpoenas to third
parties. If any such motion is granted, the third party would not be
required to produce discovery, or respond to the subpoena, until the
stay is fully lifted;
4. Any party may move to lift the stay, or for other appropriate relief, if
circumstances change prior to the “final action” by the Supreme Court
in IRAP;
5. The parties must file a joint statement proposing the schedule for any
further proceedings within seven days after the “final action” by the
Supreme Court in IRAP;
6. The joint statement should take into consideration any impact the
Supreme Court’s opinion in IRAP has on Plaintiffs’ outstanding
discovery requests and the pending motions to dismiss and compel.
Specifically, if the Supreme Court issues an opinion, arguments made
in support of and in opposition to the motions to dismiss and/or compel
may no longer be relevant; if that is the case, the Court would be
inclined to strike the pending motions and have the parties re-file them,
if necessary, using the appropriate standard(s) set forth by the
Supreme Court. The parties should contemplate this when filing the
joint statement;

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7. The joint statement should include the dates that Defendants’
responses to Plaintiffs’ discovery requests are due, if those discovery
requests are still relevant; and
8. The June 13 hearing on Defendants’ motion to dismiss is cancelled.
IT IS ORDERED.
s/Victoria A. Roberts
Victoria A. Roberts
United States District Judge
Dated: June 9, 2017

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