Case 2:17-cv-00178-JLR Document 98 Filed 01/04/18 Page 1 of 9

1

THE HONORABLE JAMES L. ROBART

2
3
4
5
6
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

7
8
9

JOHN DOES, et al.,

10
11
12

CASE NO. C17-0178JLR
Plaintiffs,

v.
DONALD TRUMP, et al.,

13

Defendants.

PLAINTIFFS’ JOINT OPPOSITION TO
DEFENDANTS’ MOTION FOR
RECONSIDERATION CONCERNING
THE SCOPE OF THE PRELIMINARY
INJUNCTION

14
15

JEWISH FAMILY SERVICE, et al.,
Plaintiffs,

16
17
18

CASE NO. C17-1707JLR

v.

(RELATING TO BOTH CASES)

DONALD TRUMP, et al.,
Defendants.

19
20
21
22
23
24
25
26

PLAINTIFFS’ JOINT RESPONSE TO
MOTION FOR RECONSIDERATION
(No. 17-cv-1707-JLR; No. 17-cv-0178-JLR)
138063746.1

Perkins Coie LLP

1201 Third Avenue, Suite 4900
Seattle, WA 98101-3099
Phone: 206.359.8000
Fax: 206.359.9000

 Case 2:17-cv-00178-JLR Document 98 Filed 01/04/18 Page 2 of 9

1

INTRODUCTION

2

This Court should deny the Defendants’ motion for reconsideration (ECF No. 93),1 which

3

seeks to relitigate the scope of this Court’s December 23, 2017 preliminary injunction.2 As a

4

threshold matter, Defendants provide no excuse for waiting until a motion for reconsideration to

5

make their arguments and to submit the evidence they now proffer, which is reason alone to deny

6

the motion. See Kona Enters., Inc. v. Estate of Bishop, 229 F.3d 877, 890 (9th Cir. 2000)

7

(motion for reconsideration “may not be used to raise arguments or present evidence for the first

8

time when they could reasonably have been raised earlier in the litigation”); Micha v. Sun Life

9

Assurance of Canada, Inc., 874 F.3d 1052, 1056-57 & n.8 (9th Cir. 2017) (district court did not

10

abuse its discretion in refusing to consider “an issue that could reasonably have been raised” in

11

party’s original motion, and declining to consider the issue on appeal).

12

Moreover, motions for reconsideration are not granted “absent highly unusual

13

circumstances, unless the district court is presented with newly discovered evidence, committed

14

clear error, or if there is an intervening change in the controlling law.” 389 Orange St. Partners

15

v. Arnold, 179 F.3d 656, 665 (9th Cir. 1999); see also Local Rules W.D. Wash. LCR 7(h)(1);

16

Connors v. Iquique U.S.L.L.C., No. C05-334JLR, 2005 WL 2237593, *1 (W.D. Wash. Sept. 13,

17

2005) (Robart, J.) (stating that local rules disfavor such motions and that they will be denied

18

“unless there is a showing of (a) manifest error in the prior ruling, or (b) facts or legal authority

19

which could not have been brought to the attention of the court earlier, through reasonable

20

diligence”). Defendants do not present newly discovered evidence or any change in controlling

21

law. Rather, they argue that the Court “committed clear error” in holding that resettlement

22

agencies and their affiliates have bona fide relationships with refugees that they have formally

23
24

1

All ECF citations are to Doe v. Trump, 17-cv-0178-JLR, unless otherwise indicated.
Despite marking their motion as related to both the Doe and Jewish Family Service cases, Defendants do not
contest the Court’s ruling that the preliminary injunction is applicable to all follow-to-join refugees. PI Order at 62.
Nor could they, given that they conceded at oral argument that follow-to-join beneficiaries must, by statutory
definition, have bona fide relationships with their U.S.-based petitioners—i.e., their spouses and parents. See id.
2

25
26

PLAINTIFFS’ JOINT RESPONSE TO
MOTION FOR RECONSIDERATION
(No. 17-cv-1707-JLR; No. 17-cv-0178-JLR) – 1
138063746.1

Perkins Coie LLP

1201 Third Avenue, Suite 4900
Seattle, WA 98101-3099
Phone: 206.359.8000
Fax: 206.359.9000

 Case 2:17-cv-00178-JLR Document 98 Filed 01/04/18 Page 3 of 9

1

assured for resettlement. But this argument flies in the face of controlling Ninth Circuit

2

precedent, which specifically holds that such relationships fall under the “bona fide relationship”

3

standard. See Hawaiʻi v. Trump, 871 F.3d 646, 659-64 (9th Cir. 2017). Even apart from that

4

binding precedent, assured refugees must be covered by the preliminary injunction to prevent

5

Plaintiffs from being further injured by Defendants’ unlawful actions—an issue that Defendants

6

had the opportunity to address in opposing the motion for preliminary injunction, failed to

7

address then, and continue to ignore now.

8
9

ARGUMENT
I.

10

THE NINTH CIRCUIT DECISION HOLDING THAT ASSURANCES
CONSTITUTE BONA FIDE RELATIONSHIPS REMAINS BINDING
PRECEDENT.

11

Contrary to Defendants’ argument, the Court did not err in following the Ninth Circuit

12

decision affirming that resettlement agencies have bona fide relationships with refugees whom

13

they have assured for resettlement. See PI Order at n.31; Hawaiʻi, 871 F.3d at 659-64. An

14

“assurance” is a written commitment issued by one of the non-profit organizations in the United

15

States (known as resettlement agencies) which agrees—after evaluating the capacity and

16

capabilities of its affiliates and the particular refugee’s needs—to provide core resettlement

17

services to the specific refugee through one of its affiliates. See Hawaiʻi, 871 F.3d at 660. The

18

Ninth Circuit correctly concluded, based on a record that included the same declaration from

19

Lawrence E. Bartlett that Defendants attach to their motion for reconsideration, that assurances

20

constitute bona fide relationships under the Supreme Court’s definition of that term because they

21

are “formal, documented, and formed in the ordinary course rather than to evade the Executive

22

Order.” Id. at 659 (citing IRAP v. Trump, 137 S. Ct. 2080, 2088-89 (2017)). Critical to the

23

Ninth Circuit’s analysis was the fact that resettlement agencies give assurances after

24

individualized screening processes, and that the exclusion of an assured refugee inflicts a

25

concrete hardship on the resettlement agency that had committed and planned to provide the

26

refugee with specific services in a particular locale. See id. at 661. The Ninth Circuit, moreover,
PLAINTIFFS’ JOINT RESPONSE TO
MOTION FOR RECONSIDERATION
(No. 17-cv-1707-JLR; No. 17-cv-0178-JLR) – 2
138063746.1

Perkins Coie LLP

1201 Third Avenue, Suite 4900
Seattle, WA 98101-3099
Phone: 206.359.8000
Fax: 206.359.9000

 Case 2:17-cv-00178-JLR Document 98 Filed 01/04/18 Page 4 of 9

1

rejected the argument that a bona fide relationship cannot exist between a resettlement agency

2

and refugees it has assured because the federal government serves as an intermediary—the very

3

argument that Defendants belatedly revive here. Compare Defs.’ Mot. at 5-6, with Hawaiʻi, 871

4

F.3d at 663 & n.15 (explaining that “the Government’s intermediary function does not diminish

5

the bona fide relationship” because of the individualized placement process that occurs as part of

6

each assurance, and noting the government conceded as much at oral argument).

7

Although they do not say so expressly, Defendants appear to recognize that the applicable

8

Hawaiʻi decision remains good law because it has not been vacated. Defendants nonetheless

9

argue that the Supreme Court’s stay orders “cast significant doubt” on this precedent. Defs.’

10

Mot. at 4. But “cast[ing] significant doubt” is not enough for this Court to ignore binding

11

precedent. See Hart v. Massanari, 266 F.3d 1155, 1171 (9th Cir. 2001) (“Once a panel resolves

12

an issue in a precedential opinion, the matter is deemed resolved unless overruled by the court

13

itself sitting en banc, or by the Supreme Court [or unless Congress changes the law]”). This

14

foundational legal principle is particularly apt here, where the Supreme Court did not provide

15

any reason for its stays on the assurances decisions, and so it is “simply impossible” to discern

16

their basis. PI Order at 61-62 n.30.3

17

Defendants urge this Court to deviate from Ninth Circuit precedent and modify the

18

preliminary injunction based on their divination of what the Supreme Court would have

19

ultimately decided in Hawaiʻi, but such a ruling would turn the stay pending appeal standard on

20

its head. “The whole idea” behind a stay pending appeal “is to hold the matter under review in

21

abeyance because the appellate court lacks sufficient time to decide the merits.” Nken v. Holder,

22

556 U.S. 418, 432 (2009). Stay orders, particularly those issued without any explanation, should

23
24
25
26

3

Defendants observe that the Ninth Circuit’s most recent decision concerning the “BFR” standard “said nothing
about resettlement assurance,” Defs.’ Mot. at 5 n.2 (citing Hawaiʻi v. Trump, ___ F.3d ___, 2017 WL 6554184 (9th
Cir. Dec. 22, 2017)), but fail to mention that the Proclamation at issue in that order specified that it did not apply to
refugees. Proclamation No. 9,645, 82 Fed. Reg. 45,161, at 45,168, 45,171 (Sept. 27, 2017).

PLAINTIFFS’ JOINT RESPONSE TO
MOTION FOR RECONSIDERATION
(No. 17-cv-1707-JLR; No. 17-cv-0178-JLR) – 3
138063746.1

Perkins Coie LLP

1201 Third Avenue, Suite 4900
Seattle, WA 98101-3099
Phone: 206.359.8000
Fax: 206.359.9000

 Case 2:17-cv-00178-JLR Document 98 Filed 01/04/18 Page 5 of 9

1

not be conflated with a decision on the merits. Contrary to Defendants’ argument, it would be

2

clear error for this Court not to follow the Ninth Circuit decision.4

3

II.

4
5
6
7
8
9
10
11
12
13
14
15
16
17

Even if the Ninth Circuit precedent did not govern, the record in this case establishes that
a preliminary injunction covering assured refugees is necessary to address irreparable injury to
resettlement affiliates like Plaintiffs Jewish Family Service of Seattle (JFS-S) and Jewish Family
Services of Silicon Valley (JFS-SV). In ordering a preliminary injunction “in each case,” courts
“must balance the competing claims of injury and must consider the effect on each party of the
granting or withholding of the requested relief.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S.
7, 24 (2008) (citation omitted). The Supreme Court’s bona fide relationship standard reflected
the balancing of the hardships to the plaintiffs and the equities identified by the courts below in
those cases. See IRAP, 137 S. Ct. at 2088 (staying injunctions except as to parties similarly
situated to plaintiffs who have bona fide relationships to the United States because courts below
had only identified hardships to particular U.S.-based plaintiffs). The record and the parties,
however, were different in those cases; most notably, neither refugees nor resettlement agencies
nor their affiliates were ever parties in the Hawaiʻi litigation.

18
19
20
21
22

EVEN WITHOUT THE BINDING PRECEDENT, AN INJUNCTION THAT
COVERS ASSURED REFUGEES IS NECESSARY TO ADDRESS
IRREPARABLE INJURY TO PLAINTIFFS IN THIS CASE.

Here, this Court has recognized that JFS-S and JFS-SV suffer irreparable harm to their
organizational mission and to their operations because Defendants’ actions prevent the specific
refugees that they have assured, and for whom they have already expended resources, from being
resettled. See PI Order at 25-28, 57-58; Suppl. JFS-S Decl. (ECF No. 81) ¶ 10; Suppl. JFS-SV
Decl. (ECF No. 82) ¶ 6. Defendants did not contest the relationship between the organizations

23
24
4

25
26

Defendants’ citation to IRAP v. Trump, No. 17-cv-361-TDC, 2017 WL 4674314, at *39 (D. Md. Oct. 17, 2017), is
inapposite given that the Maryland court is not bound by the Ninth Circuit decision. In any event, the IRAP
plaintiffs have cross-appealed the issue. Notice of Cross-Appeal, IRAP v. Trump, 17-cv-361-TDC (D. Md. Oct. 23,
2017), appeal docketed, Nos. 17-2231(L), 17-2232, 17-2233, 17-2240 (4th Cir. Nov. 15, 2017).

PLAINTIFFS’ JOINT RESPONSE TO
MOTION FOR RECONSIDERATION
(No. 17-cv-1707-JLR; No. 17-cv-0178-JLR) – 4
138063746.1

Perkins Coie LLP

1201 Third Avenue, Suite 4900
Seattle, WA 98101-3099
Phone: 206.359.8000
Fax: 206.359.9000

 Case 2:17-cv-00178-JLR Document 98 Filed 01/04/18 Page 6 of 9

1

and their assured refugees, compare JFS-S Decl. (No. 17-cv-1707-JLR, ECF No. 50) ¶¶ 8-37;

2

JFS-SV Decl. (No. 17-cv-1707-JLR, ECF No. 51) ¶¶ 4-42, with PI Opp. at 8-9 (ECF No. 77),

3

and the declaration of Lawrence E. Bartlett that Defendants submit with their motion for

4

reconsideration accomplishes too little, too late to counter Plaintiffs’ evidence. If it did not cover

5

assured refugees, this Court’s preliminary injunction would fail to serve the fundamental purpose

6

of preserving the status quo ante—that is, the regular functioning of the U.S. Refugee

7

Admissions Program—while the merits of the case are being finally determined. See Alliance

8

for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1134 (9th Cir. 2011) (holding that a sliding-scale

9

preliminary injunction test remains available in the circuit in part because of the importance of

10

allowing district judges to “preserve the status quo with provisional relief until the merits could

11

be sorted out in cases where clear irreparable injury would otherwise result” (quoting Save

12

Strawberry Canyon v. Dep’t of Energy, No. C 08-03494 WHA, 2009 WL 1098888, at *1-3

13

(N.D. Cal. Apr. 22, 2009))).
CONCLUSION

14
15
16

For the reasons stated, the Court should deny Defendants’ motion for reconsideration
concerning the scope of the preliminary injunction (ECF No. 93).

17
18
19
20
21
22
23
24
25
26
PLAINTIFFS’ JOINT RESPONSE TO
MOTION FOR RECONSIDERATION
(No. 17-cv-1707-JLR; No. 17-cv-0178-JLR) – 5
138063746.1

Perkins Coie LLP

1201 Third Avenue, Suite 4900
Seattle, WA 98101-3099
Phone: 206.359.8000
Fax: 206.359.9000

 Case 2:17-cv-00178-JLR Document 98 Filed 01/04/18 Page 7 of 9

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21

Respectfully submitted,
/s/ Lauren Watts Staniar
David Burman, WSBA No. 10611
Lauren Watts Staniar, WSBA No. 48741
Tyler Roberts, WSBA No. 52688
Perkins Coie LLP
1201 Third Avenue, Suite 4900
Seattle, WA 98101-3099
Telephone: 206.359.8000
Facsimile: 206.359.9000
dburman@perkinscoie.com
lstaniar@perkinscoie.com
troberts@perkinscoie.com
Mariko Hirose, Pro Hac Vice
Deepa Alagesan, Pro Hac Vice
Linda Evarts, Pro Hac Vice
Kathryn C. Meyer, Pro Hac Vice
International Refugee Assistance Project
40 Rector Street, 9th Floor
New York, NY 10006
Tel: (646) 459-3044
mhirose@refugeerights.org
dalagesan@refugeerights.org
levarts@refugeerights.org
kmeyer@refugeerights.org
Elizabeth Sweet, Pro Hac Vice
Mark Hetfield, Pro Hac Vice
HIAS, Inc.
1300 Spring Street, Suite 500
Silver Spring, MD 20910
Tel: 301-844-7300
liz.sweet@hias.org
mark.hetfield@hias.org

22

DATED: January 4, 2018
Justin B. Cox, Pro Hac Vice
National Immigration Law Center
PO Box 170208
Atlanta, GA 30317
Tel: (678) 279-5441
Fax: (213) 639-3911
cox@nilc.org
Karen C. Tumlin, Pro Hac Vice
Melissa S. Keaney, Pro Hac Vice
Esther H. Sung, Pro Hac Vice
National Immigration Law Center
3450 Wilshire Blvd, #108-62
Los Angeles, CA 90010
Tel: (213) 639-3900
Fax: (213) 639-3911
tumlin@nilc.org
keaney@nilc.org
sung@nilc.org
Lauren E. Aguiar, Pro Hac Vice
Mollie M. Kornreich, Pro Hac Vice
Abigail E. Davis, Pro Hac Vice
Four Times Square
New York, NY 10036
Tel: (212) 735-3000
Fax: (212) 735-2000
lauren.aguiar@probonolaw.com
mollie.kornreich@probonolaw.com
abigail.sheehan@probonolaw.com

Counsel for Plaintiffs Jewish Family Service, et
al.

23
24
25
26

PLAINTIFFS’ JOINT RESPONSE TO
MOTION FOR RECONSIDERATION
(No. 17-cv-1707-JLR; No. 17-cv-0178-JLR) – 6
138063746.1

Perkins Coie LLP

1201 Third Avenue, Suite 4900
Seattle, WA 98101-3099
Phone: 206.359.8000
Fax: 206.359.9000

 Case 2:17-cv-00178-JLR Document 98 Filed 01/04/18 Page 8 of 9

1
2
3
4
5
6
7
8
9
10

AMERICAN CIVIL LIBERTIES UNION
OF WASHINGTON FOUNDATION
By: /s/ Emily Chiang
/s/ Lisa Nowlin
Emily Chiang, WSBA # 50517
Lisa Nowlin, WSBA # 51512
901 Fifth Avenue, Suite 630
Seattle, WA 98164
Telephone: (206) 624-2184
Email:
echiang@aclu-wa.org
lnowlin@aclu-wa.org
Counsel for Plaintiffs Doe, et al.

11
12
13
14
15

KELLER ROHRBACK L.L.P.
By: /s/ Lynn Lincoln Sarko
By: /s/ Tana Lin
By: /s/ Amy Williams-Derry
By: /s/ Derek W. Loeser
By: /s/ Alison S. Gaffney
Lynn Lincoln Sarko, WSBA # 16569
Tana Lin, WSBA # 35271
Amy Williams-Derry, WSBA # 28711
Derek W. Loeser, WSBA # 24274
Alison S. Gaffney, WSBA # 45565
1201 Third Avenue, Suite 3200
Seattle, WA 98101
Telephone: (206) 623-1900
Facsimile: (206) 623-3384
Email: lsarko@kellerrohrback.com
tlin@kellerrohrback.com
awilliams-derry@kellerrohrback.com
dloeser@kellerrohrback.com
agaffney@kellerrohrback.com
By: /s/ Laurie B. Ashton
Laurie B. Ashton (admitted pro hac vice)
3101 North Central Avenue, Suite 1400
Phoenix, AZ 85012-2600
Telephone: (602) 248-0088
Facsimile: (602) 248-2822
Email: lashton@kellerrohrback.com

16
17
18
19
20

By: /s/ Alison Chase
Alison Chase (admitted pro hac vice)
1129 State Street, Suite 8
Santa Barbara, CA 93101
Telephone: (805) 456-1496
Facsimile: (805) 456-1497
Email: achase@kellerrohrback.com

21
22
23
24

Attorneys for Plaintiff/Cooperating Attorneys
for the American Civil Liberties Union Of
Washington Foundation

25
26
PLAINTIFFS’ JOINT RESPONSE TO
MOTION FOR RECONSIDERATION
(No. 17-cv-1707-JLR; No. 17-cv-0178-JLR) – 7
138063746.1

Perkins Coie LLP

1201 Third Avenue, Suite 4900
Seattle, WA 98101-3099
Phone: 206.359.8000
Fax: 206.359.9000

 Case 2:17-cv-00178-JLR Document 98 Filed 01/04/18 Page 9 of 9

1
2

CERTIFICATE OF SERVICE
I hereby certify that on January 4, 2018, I electronically filed the foregoing document

3

with the Clerk of the Court using the CM/ECF system which will send notification of such filing

4

to all of the registered CM/ECF users for this case.

5
6
7
8

I hereby declare under penalty of perjury of the laws of the State of Washington that the
foregoing in true and correct.
DATED this 4th day of January, 2018.

9

/s/ Lauren Watts Staniar
Lauren Watts Staniar, WSBA No. 48741

10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26

PLAINTIFFS’ JOINT RESPONSE TO
MOTION FOR RECONSIDERATION
(No. 17-cv-1707-JLR; No. 17-cv-0178-JLR) – 8
138063746.1

Perkins Coie LLP

1201 Third Avenue, Suite 4900
Seattle, WA 98101-3099
Phone: 206.359.8000
Fax: 206.359.9000