Case 1:17-cv-00120-AJT-IDD Document 45 Filed 11/03/17 Page 1 of 4 PageID# 996

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF VIRGINIA
Alexandria Division
LINDA SARSOUR, et al.,
No. 1:17-cv-120 (AJT/IDD)
Plaintiffs,
v.
DONALD J. TRUMP, in his official capacity
as President of the United States, et al.;
Defendants.

DEFENDANTS’ STATEMENT REGARDING MOOTNESS
On October 25, 2017, this Court ordered the parties to “file written submissions to show
cause, if any there be, why this case should not be dismissed as moot.” Order (Dkt. No. 44), at 1.
Pursuant to that order, Defendants respectfully submit the instant statement; as provided below,
this case – consistent with the Supreme Court’s adjudication of analogous challenges to Executive
Order No. 13,780 – should be dismissed as moot.1
1.

In the instant civil action, Plaintiffs – a group of named and pseudonymous individuals –

challenged, on constitutional and statutory grounds, certain provisions of Executive Order 13,780
(Mar. 27, 2017) (Dkt. Nos. 11-13). After this Court denied plaintiffs’ application for immediate
injunctive relief (Dkt. Nos. 36-37), plaintiffs consented to stay this action “pending the outcome”

Undersigned counsel has conferred with plaintiffs’ counsel on these issues. Although, for
the reasons stated below, defendants believe that this civil action is currently moot, defendants
also understand that plaintiffs may seek again to amend their complaint here. Because defendants
have not yet received a proposed amended complaint from plaintiffs to review, defendants cannot
yet take a position on whether this Court should grant plaintiffs further leave to amend. If,
however, this Court should ultimately authorize plaintiffs to file another amended complaint,
defendants do believe that these proceedings should remain stayed.
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of appellate proceedings in Int’l Refugee Assistance Project v. Trump (“IRAP”), which similarly
challenged Executive Order 13,780 and thus had substantial overlap with the issues presented in
this action (Dkt. Nos. 41-42). After the Fourth Circuit issued its decision in IRAP, and the Supreme
Court granted certiorari in the same, this Court sua sponte continued the stay of this action
“pending the outcome of the appeal before the U.S. Supreme Court” (Dkt. No. 43).
2.

As provided in this Court’s order, on October 10, 2017, the Supreme Court held that

because the pertinent provision (i.e., Section 2(c)) of Executive Order 13,780 had “expired by its
own terms,” the constitutional and statutory challenge in IRAP was moot. Trump v. IRAP, 2017
WL 4518553, at *1 (S. Ct. Oct. 10, 2017) (quoting Burke v. Barnes, 479 U.S. 361, 363.2 Article
III mandates the same result here. The only concrete injury that was even arguably visited upon
plaintiffs by Executive Order 13,780 was the “temporary suspension of entry” for certain foreign
nationals of six identified countries created by Section 2 of the Executive Order.3 And because,
as the Supreme Court has already held, Section 2 has “expired by its own terms,” the instant civil
action is moot and should be dismissed.
///
///

The Supreme Court subsequently observed that Section 6 of Executive Order 13,780
(i.e., that which concerned refugee admissions) also “expired of its own terms,” and thus that any
challenge to that provision of the Executive Order was similarly moot. Trump v. Hawaii, 2017
WL 4782860, at *1 (S. Ct. Oct. 24, 2017). Notably, however, plaintiffs in this action conceded
at oral argument that no plaintiff here was subject to any prohibition found in Section 6 of
Executive Order 13,780 (Dkt. No. 40, at 46).
2

At oral argument, plaintiffs attempted to argue that they were seeking an order voiding
“the entirety of the Executive Order” (Dkt. No. 40, at 19). But the only concrete provision of the
Executive Order that plaintiffs could identify as causing them injury – in addition to Section 2 –
was Section 3 (id., at 22, 66), which identified exemptions from the general prohibition found in
Section 2, and which a fortiori has “expired of its terms” along with Section 2.
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Respectfully submitted,
DANA J. BOENTE
United States Attorney
CHAD READLER
Acting Assistant Attorney General
Civil Division
JENNIFER D. RICKETTS
Director, Federal Programs Branch
JOHN R. TYLER
Assistant Director, Federal Programs Branch
By:

____/s/________________
DENNIS C. BARGHAAN, JR.
Assistant U.S. Attorney
2100 Jamieson Avenue
Alexandria, Virginia 22314
Telephone: (703) 299-3891
Fax:
(703) 299-3983
Email: dennis.barghaan@usdoj.gov
ERIC J. SOSKIN
BRAD P. ROSENBERG
ARJUN GARG
MICHELLE R. BENNETT
DANIEL SCHWEI
Trial Attorneys
United States Department of Justice
Civil Division, Federal Programs Branch

Date: November 3, 2017

ATTORNEYS FOR DEFENDANTS

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CERTIFICATE OF SERVICE
I hereby certify that on this date, I electronically filed the foregoing with the Clerk of
Court using the CM/ECF system, which will transmit a true and correct copy of the same to the
following:
Gadeir Ibrahim Abbas
The Law Office of Gadeir Abbas
1155 F Street, N.W., Suite 1050
Washington, D.C. 20004
Email: Gadeir@abbaslawfirm.com
Date: November 3, 2017

/s/________________
DENNIS C. BARGHAAN, JR.
Assistant U.S. Attorney
2100 Jamieson Avenue
Alexandria, Virginia 22314
Telephone: (703) 299-3891
Fax:
(703) 299-3983
Email: dennis.barghaan@usdoj.gov
ATTORNEYS FOR DEFENDANTS

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