Case 2:17-cv-00178-JLR Document 115 Filed 01/29/18 Page 1 of 17 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 DOE, et al., 10 11 12 CASE NO. C17-0178JLR Plaintiffs, v. DONALD TRUMP, et al., 13 PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION TO STAY PROCEEDINGS PENDING DISPOSITION OF CROSS-APPEALS Defendants. 14 15 JEWISH FAMILY SERVICE, et al., Plaintiffs, 16 17 18 CASE NO. C17-1707JLR v. (RELATING TO CASE NO. C17-1707JLR) DONALD TRUMP, et al., Defendants. 19 20 21 22 23 24 25 26 PLAINTIFFS’ OPPOSITION (No. 17-cv-1707-JLR) 138282883.1 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 115 Filed 01/29/18 Page 2 of 17 1 CASES 2 A&M Records, Inc. v. Napster, Inc., 284 F.3d 1091 (9th Cir. 2002) .............................................................................................4 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Clinton v. Jones, 520 U.S. 681 (1997) .............................................................................................................4 CMAX, Inc. v. Hall, 300 F.2d 265 (9th Cir. 1962) ...............................................................................................5 Dependable Highway Express, Inc. v. Navigators Insurance Co., 498 F.3d 1059 (9th Cir. 2007) .........................................................................................3, 5 Does 1-10 v. University of Wash., No. C16-1212JLR, 2018 WL 453451 (W.D. Wash. Jan. 17, 2018) ....................................4 Hawaiʻi v. Trump, 859 F.3d 741 (9th Cir. 2017) ...............................................................................................9 Hawaiʻi v. Trump, 878 F.3d 662 (9th Cir. 2017) .........................................................................................9, 10 Hernandez v. Sessions, 872 F.3d 976 (9th Cir. 2017) ...............................................................................................2 Kleindienst v. Mandel, 408 U.S. 753 (1972) .............................................................................................................9 Landis v. North American Co., 299 U.S. 248 (1936) .........................................................................................................4, 5 Lands Council v. Powell, 395 F.3d 1019 (9th Cir. 2005) .............................................................................................4 Lockyear v. Mirant Corp., 398 F.3d 1098 (9th Cir. 2005) .......................................................................................5, 10 Melendres v. Arpaio, 695 F.3d 990 (9th Cir. 2012) ...............................................................................................2 National Law Center on Homelessness & Poverty (NLCHP) v. Department of Veterans Affairs, 842 F. Supp. 2d 127 (D.D.C. 2012) .....................................................................................4 Pitts v. Terrible Herbst, Inc., 653 F.3d 1081 (9th Cir. 2011) ...........................................................................................11 Rosemere Neighborhood Ass’n v. U.S. Environmental Protection Agency, 581 F.3d 1169 (9th Cir. 2009) ...........................................................................................12 PLAINTIFFS’ OPPOSITION (No. 17-cv-1707-JLR) 138282883.1 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 115 Filed 01/29/18 Page 3 of 17 1 2 3 4 5 6 7 Thompson v. U.S. Department of Labor, 885 F.2d 551 (9th Cir. 1989) ...............................................................................................3 Tinoqui–Chalola Council of Kitanemuk & Yowlumne Tejon Indians v. United States DOE, 232 F.3d 1300 (9th Cir. 2000) ...........................................................................................11 Washington v. Trump, No. C17-0141JLR, 2017 WL 591360 (W.D. Wash. Feb. 14, 2017) .............................2, 11 Washington v. Trump, No. C17-0141JLR, 2017 WL 2172020 (W.D. Wash. May 17, 2017) ...............................10 8 Yong v. I.N.S., 208 F.3d 1116 (9th Cir. 2000) .............................................................................................3 9 STATUTES 10 5 U.S.C. § 706 ..................................................................................................................................3 11 12 RULES Local Civil Rule 79(h) .....................................................................................................................2 13 14 15 16 OTHER AUTHORITIES Office of Inspector General, DHS Implementation of Executive Order #13769 “Protecting the Nation From Foreign Terrorist Entry Into the United States” 6272, 78-79 (Jan. 18, 2018), https://www.oig.dhs.gov/sites/default/files/assets/201801/OIG-18-37-Jan18.pdf ......................................................................................................7 17 18 19 20 21 22 23 24 25 26 PLAINTIFFS’ OPPOSITION (No. 17-cv-01707-JLR) –2 138282883.1 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 115 Filed 01/29/18 Page 4 of 17 1 2 INTRODUCTION Defendants’ motion for a stay of proceedings pending their appeal of the preliminary 3 injunction represents yet another attempt to delay this case and avoid the routine obligations of 4 all litigants—including the federal government—imposed by the Federal Rules of Civil 5 Procedure and the Local Civil Rules. Notably, Defendants have refused to engage in the 6 discovery planning process mandated by the rules, and therefore fail in their motion to appreciate 7 that Plaintiffs’ proposal for moving forward with the case is limited: (1) that, as in every APA 8 case, Defendants produce the (already compiled) administrative record, and (2) that Plaintiffs 9 take only limited discovery at this time, specifically, on Defendants’ compliance with the 10 preliminary injunction and the need, if any, for further remedial action.1 11 A stay of proceedings pending appeal is the exception, not the rule, and Defendants have 12 failed to meet their burden to show that it is warranted here. Adhering to the routine obligations 13 of litigation will cause no harm to Defendants, nor have they met their burden to demonstrate 14 otherwise. The indefinite stay Defendants propose will, however, harm Plaintiffs, preventing 15 them from assessing compliance with this Court’s preliminary injunction and cessation of the 16 irreparable harm they suffer. Finally, the orderly course of justice favors allowing the case to 17 proceed given the minimal overlap between any guidance the Ninth Circuit may provide in the 18 pending appeals and the issues involved in requiring Defendants to produce the administrative 19 record and the parties to engage in the limited discovery Plaintiffs seek at this time.2 20 PROCEDURAL HISTORY 21 Since this Court issued the preliminary injunction on December 23 (ECF No. 92),3 22 Plaintiffs have diligently sought to move this case forward, as required by the Federal and Local 23 24 25 26 1 As long as such discovery is produced and Defendants submit the administrative record, Plaintiffs consent to holding Defendants’ responsive pleading deadline in abeyance pending the Ninth Circuit’s decision on the appeals of the preliminary injunction decision. 2 Doe Plaintiffs do not oppose JFS Plaintiffs’ opposition to a stay of proceedings. 3 All ECF citations are to Doe v. Trump, 2:17-cv-00178-JLR (W.D. Wash. filed Feb. 7, 2017), unless otherwise indicated. PLAINTIFFS’ OPPOSITION (No. 17-cv-1707-JLR) – 1 138282883.1 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 115 Filed 01/29/18 Page 5 of 17 1 Rules, to ensure that their rights and interests are protected. Plaintiffs’ counsel contacted counsel 2 for Defendants on January 2 seeking to commence the discovery planning process, as required 3 by Federal Rule of Civil Procedure 26(f)(1). See Hirose Decl. ¶ 2, Ex. A. Defendants 4 categorically refused to participate, see id. ¶ 3, Ex. B, unilaterally extending the Rule 26(f) 5 deadline for multiple weeks by not moving this Court to stay their Rule 26 obligation until they 6 were already two weeks tardy. (ECF No. 110). When, on January 12, counsel for Defendants 7 asked Plaintiffs’ counsel to agree to stay or extend Defendants’ obligations under Rule 12 to 8 answer or otherwise respond to the Complaint, and to a stay of “Rule 26 activity,” id. ¶¶ 5, 7, 9 Exs. D, F, Plaintiffs’ counsel offered a compromise, whereby Defendants would be at least 10 temporarily relieved of their Rule 12 obligation, but would agree to engage in the discovery 11 planning process required by Rule 26(f). Id. ¶ 8, Ex. G. Defendants rejected that proposal, made 12 no counter offer, and instead moved for a stay of all proceedings.4 Id. ¶ 9, Ex. H. 13 14 15 16 17 18 19 20 21 22 23 24 25 26 ARGUMENT I. Proceeding With Litigation Is the Default While a Preliminary Injunction Appeal Is Pending, and Is Necessary Here. During the pendency of an appeal of a preliminary injunction, proceeding with litigation is the default. See Melendres v. Arpaio, 695 F.3d 990, 1002-03 (9th Cir. 2012) (in case involving preliminary injunction of government defendant, “applaud[ing]” the district court for “mov[ing] with appropriate speed towards a final disposition” while appeal of preliminary injunction was pending “without waiting” for interlocutory review); Washington v. Trump, No. C17-0141JLR, 2017 WL 591360, at *2 (W.D. Wash. Feb. 14, 2017) (directing parties to proceed with the litigation in accordance with the Federal and Local Rules while preliminary injunction was on appeal); see also Hernandez v. Sessions, 872 F.3d 976, 987 n.14 (9th Cir. 2017) 4 The noting date for the instant motion is 11 days after the date Defendants’ responsive pleading was due under Federal Rule of Civil Procedure 12(a)(2). Defendants belatedly asked the Court to excuse them from compliance with Rule 12(a)(2), see Defendant’s Motion To Stay Proceedings at 1 n.1 (ECF No. 110) (“Mot.”), and thereby also to extend Defendants’ deadline to submit the administrative record. See LCR 79(h) (where agency is the defendant, administrative record is due “with the answer or return”). PLAINTIFFS’ OPPOSITION (No. 17-cv-1707-JLR) – 2 138282883.1 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 115 Filed 01/29/18 Page 6 of 17 1 (discussing order clarifying that stay pending appeal of preliminary injunction “applied only to 2 the preliminary injunction, rather than to ‘all district court proceedings’”). Indeed, the Ninth 3 Circuit has held that district courts have abused their discretion in issuing indefinite stays 4 pending appeal. See, e.g., Dependable Highway Express, Inc. v. Navigators Ins. Co., 498 F.3d 5 1059, 1066-67 (9th Cir. 2007) (holding district court abused its discretion in issuing stay with no 6 specific deadline, and noting that “case management standing alone is not necessarily a sufficient 7 ground to stay proceedings”); Yong v. I.N.S., 208 F.3d 1116, 1119 (9th Cir. 2000) (holding 8 district court abused its discretion in issuing indefinite stay pending appeal, despite the fact that 9 the stay had only lasted five months, where “the stay could remain in effect for a lengthy period 10 of time” if the Supreme Court granted certiorari). Given that the appeals from this Court’s order 11 are not expedited,5 and that subsequent Supreme Court activity is a distinct possibility, the 12 indefinite stay Defendants seek would likely be a lengthy one. 13 Notably, Plaintiffs are proposing only that this litigation move forward in a limited 14 manner consistent with an APA case. First, Defendants will produce the administrative record 15 upon which they relied in issuing the Agency Memorandum—which provides the record, at least 16 initially, for the APA claims. 5 U.S.C. § 706 (in evaluating claims under the APA, courts are to 17 consider the “whole record”); see Thompson v. U.S. Dep’t of Labor, 885 F.2d 551, 555 (9th Cir. 18 1989) (whole record consists of “all documents and materials directly or indirectly considered by 19 agency decision-makers and includes evidence contrary to the agency’s position” (alteration and 20 21 22 23 24 25 26 5 Unlike in every other Muslim ban case that has resulted in a preliminary injunction, the government here has chosen not to request expedited briefing from the appeals court. Cf. State of Hawaiʻi v. Trump, No. 17-17168, (9th Cir. Oct. 25, 2017), Dkt. No. 5 (moving to expedite briefing on appeal of preliminary injunction over Proclamation No. 9,645 (“EO-3”)); Int’l Refugee Assistance Project v. Trump, Nos. 17-2231, 17-2232, 17-2233 (4th Cir. Oct. 24, 2017), Dkt. No. 28 (same); Hawaiʻi v. Trump, 17-15589 (9th Cir. Mar. 31, 2017), Dkt. No. 12 (moving to expedite briefing on appeal of preliminary injunction of Executive Order No. 13,780 (“EO-2”)); Int’l Refugee Assistance Project v. Trump, No. 17-1351 (4th Cir. March 22, 2017), Dkt. No. 14 (same); see also Washington v. Trump, No. 17-35105, Motion for Stay, at 7, 27 (9th Cir. Feb. 4, 2017), Dkt. No. 14 (referring to expedited appeal of preliminary injunction of Executive Order 13,769 (“EO-1”)). Briefing on the injunction appeals has not yet begun and is not anticipated to be completed until late April. See Jewish Family Services v. Trump, Nos. 18-35015, 1835026 (9th Cir. Jan. 16, 2018), Dkt. No. 9. A decision from the Ninth Circuit is at best several months away. PLAINTIFFS’ OPPOSITION (No. 17-cv-1707-JLR) – 3 138282883.1 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 115 Filed 01/29/18 Page 7 of 17 1 citation omitted)).6 Then, Plaintiffs will review the administrative record to assess its 2 completeness and the need, if any, to take discovery on the merits of their claims. See Lands 3 Council v. Powell, 395 F.3d 1019, 1030 (9th Cir. 2005) (discussing circumstances under which 4 plaintiffs asserting APA claims are entitled to discovery outside the administrative record). 5 Second, the parties should proceed with limited discovery related to Defendants’ actions 6 to implement the Agency Memorandum and to comply with this Court’s preliminary injunction. 7 Such discovery is appropriate even in an APA case. See, e.g., Nat’l Law Center on 8 Homelessness & Poverty (NLCHP) v. Dep’t of Veterans Affairs, 842 F. Supp. 2d 127, 130-31 9 (D.D.C. 2012) (granting plaintiffs’ request for discovery related to defendants’ compliance with 10 an injunction in an APA case over defendants’ objection, reasoning that defendants “confus[ed] a 11 challenge to agency action generally—as was the case originally in this litigation—and a court’s 12 monitoring of compliance with its own orders”); cf. Does 1-10 v. Univ. of Wash., No. C16- 13 1212JLR, 2018 WL 453451, at *2 (W.D. Wash. Jan. 17, 2018) (Robart, J.) (“[T]he Ninth Circuit 14 instructs that the district court may continue to supervise and administer the preliminary 15 injunction while an appeal is pending.” (citing A&M Records, Inc. v. Napster, Inc., 284 F.3d 16 1091, 1099 (9th Cir. 2002))). 17 II. Defendants Have Not Met Their Burden To Justify a Stay of Proceedings. 18 Defendants, as the party moving for the stay of these proceedings, have the burden to 19 demonstrate that a deviation from the normal course of litigation is necessary. See Clinton v. 20 Jones, 520 U.S. 681, 708 (1997) (“The proponent of a stay bears the burden of establishing its 21 need.” (citing Landis v. N. Am. Co., 299 U.S. 248, 255 (1936))). They must demonstrate that a 22 stay is favored by the balancing of three competing interests: (1) “the hardship or inequity” 23 Defendants suffer in being required to proceed, (2) the “possible damage” to Plaintiffs from 24 granting of a stay, and (3) “the orderly course of justice measured in terms of the simplifying or 25 26 6 While Defendants make the blanket argument that discovery is not available on APA claims, see Mot. at 7, they fail to acknowledge their incontestable obligation to produce the administrative record. PLAINTIFFS’ OPPOSITION (No. 17-cv-1707-JLR) – 4 138282883.1 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 115 Filed 01/29/18 Page 8 of 17 1 complicating of issues, proof, and questions of law which could be expected to result from a 2 stay.” CMAX, Inc. v. Hall, 300 F.2d 265, 268 (9th Cir. 1962); see also Landis, 299 U.S. at 254- 3 55. Where, as here, there is “even a fair possibility” that a stay “will work damage” to Plaintiffs, 4 Defendants bear a higher burden, and “must make out a clear case of hardship or inequity in 5 being required to go forward.” Lockyear v. Mirant Corp., 398 F.3d 1098, 1109 (9th Cir. 2005) 6 (quoting Landis, 299 U.S. at 255). 7 A. 8 In their motion, Defendants fail to identify any specific harm they would suffer absent a 9 Defendants Will Not Suffer Harm Absent a Stay stay of this Court’s proceedings; nor can they. The only harm they could conceivably suffer is 10 having to defend this litigation, which is not “hardship or inequity,” much less a “clear case” 11 thereof justifying a deviation from the Federal and Local Rules. Lockyear, 398 F.3d at 1112 12 (“[B]eing required to defend a suit, without more, does not constitute a ‘clear case of hardship or 13 inequity’ within the meaning of Landis.”); Dependable Highway, 498 F.3d at 1066 (same). 14 B. 15 While Defendants assert that they seek a “modest” stay, Mot. at 3, and that Plaintiffs A Stay Will Harm Plaintiffs 16 “cannot plausibly claim they will suffer harm” as a result, id. at 10, see id. at 3, 9, these 17 unsupported assertions are incorrect. As noted above, the stay that Defendants seek would likely 18 be indefinite. In addition, a stay of proceedings will deprive Plaintiffs of the information and 19 processes they need to protect their rights and interests and to ameliorate the irreparable harm 20 Defendants have inflicted. 21 Without discovery, Plaintiffs cannot ensure Defendants’ compliance with this Court’s 22 preliminary injunction. Plaintiffs would be entitled to assess that compliance even absent any 23 reason to doubt it, but there are particularly good reasons to be concerned here. As this Court 24 observed in denying Defendants’ motion for a stay of the preliminary injunction pending appeal, 25 Defendants attempted in that motion “to unilaterally modify the preliminary injunction,” Order 26 on Motion for Stay (“MFS”) at 5, 7 (ECF No. 106), by claiming that they “d[id] not understand PLAINTIFFS’ OPPOSITION (No. 17-cv-1707-JLR) – 5 138282883.1 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 115 Filed 01/29/18 Page 9 of 17 1 the preliminary injunction to require affirmative action to undo any of the steps that were taken 2 to implement the Joint Memorandum,” MFS at 4 (ECF No. 95)—effectively conceding that they 3 were not complying with the injunction.7 In addition, since this Court issued the injunction on 4 December 23, only one Plaintiff’s family in the consolidated litigation has traveled,8 and only 5 then, under circumstances suggesting that Defendants sought to moot that particular Plaintiff’s 6 claims “by creating an exception for him.” Order on MFS at 11-12 & n.10. Only 23 refugees 7 who are nationals of SAO countries have been admitted to the United States since the injunction, 8 which is just two percent of the total number of refugees who have been admitted during that 9 time. See Smith Decl. ¶ 4. In contrast, in fiscal years 2016 and 2017, more than 43 percent of 10 refugees admitted to the United States were from SAO countries. Id. ¶ 5. Discovery in this case 11 is necessary to ensure Defendants are complying with the injunction and have stopped 12 irreparably harming Plaintiffs. 13 Defendants’ notice of compliance filing (ECF No. 114) (“NOC”) is no substitute for the 14 tools of discovery provided in the Rules of Civil Procedure because Plaintiffs have no 15 opportunity to question or scrutinize the information Defendants’ counsel affirmatively chose to 16 present to the Court. See Hirose Decl. ¶¶ 10-11, Exs. I, J. In moving to stay the preliminary 17 injunction, Defendants asserted that there “is significant doubt about whether it would even be 18 possible for Defendants to undo some of their prior decisions,” MFS at 5, but identified only one 19 “concrete” example—relating to circuit ride schedules—to explain why they had such doubt. 20 Order on MFS at 6-7. Their more recent filing addresses only circuit ride schedules plus one of 21 the two examples of compliance the Court identified in its order denying their emergency 22 23 24 25 26 7 Indeed, this Court found it necessary to “again order[] Defendants to comply with the preliminary injunction as written,” to spell out the actions that Defendants must take to comply with the preliminary injunction, and to warn Defendants that failure to comply with the preliminary injunction “could result in a possible finding of contempt and possible imposition of sanctions.” Order on MFS at 5-7 & 5 n.3 (emphasis added). 8 JFS Seattle is aware of one additional client who has a travel date, but has not yet traveled. PLAINTIFFS’ OPPOSITION (No. 17-cv-1707-JLR) – 6 138282883.1 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 115 Filed 01/29/18 Page 10 of 17 1 motion:9 guidance suspending admissions, id. See Gauger Decl. ¶¶ 2-6 (ECF No. 114-1); 2 Higgins Decl. ¶¶ 2-7 (ECF No. 114-2). 3 Notably, the NOC does not discuss the other example the Court identified in its order— 4 instructions to de-prioritize processing of applications from SAO countries, Order on MFS at 6— 5 nor does it explain why Defendants initially had “significant doubt about whether it would even 6 be possible” for them to undo their prior actions in implementing the Agency Memorandum, or 7 how, why, or even whether they were able to overcome that “significant doubt.” There are many 8 ways in which Defendants may have shifted resources to de-prioritize processing of refugee 9 applications of SAO nationals. For example, Defendants may have diverted funding for 10 Resettlement Support Centers (“RSCs”) that primarily process refugees from SAO countries to 11 RSCs that primarily process refugees who are not from SAO countries. Defendants may have 12 diverted USCIS personnel from circuit rides in places with high numbers of SAO nationals to 13 other functions, such as asylum application processing.10 Plaintiffs have no way of knowing 14 what Defendants did to implement the Agency Memorandum and consequently, whether their 15 actions post-injunction are sufficient to implement this Court’s order. Plaintiffs, in fact, cannot 16 even be sure what Defendants understand the scope of the preliminary injunction to be—which 17 makes their claims of compliance with it largely meaningless.11 What is certain is that guidance 18 9 19 20 21 22 23 24 25 26 See Order on MFS at 6 (“The court’s preliminary injunction requires Defendants to take actions that are necessary to undo those portions of the Agency Memo that are enjoined. For example, if Defendants sent guidance suspending the admission of FTJ refugees or refugees from SAO countries, they must rescind that guidance. If they issued instructions to de-prioritize the processing of applications from SAO countries, they must reverse those instructions.”). 10 Defendants state in a footnote that they do not consider RAIO officers “who are assigned to other mission-critical tasks such as adjudicating asylum claims” to be available for circuit rides. Higgins Decl. ¶ 6 n.2. Yet if this re-assignment occurred because of the Agency Memo, it must be reversed under the injunction. 11 Indeed, the recently released Office of Inspector General (“OIG”) report examining DHS’s implementation of EO-1 demonstrates that in the recent past and in an analogous set of circumstances, Defendants interpreted preliminary injunctions in an exceedingly narrow (and unsupportable) way. See OIG, DHS Implementation of Executive Order #13769 “Protecting the Nation From Foreign Terrorist Entry Into the United States” 62-72, 78-79 (Jan. 18, 2018), https://www.oig.dhs.gov/sites/default/files/assets/2018-01/OIG-18-37Jan18.pdf (concluding CBP “circumvented” at least one preliminary injunction and strategically mooted another, and describing CBP’s “highly aggressive” implementation: per the injunction, CBP notified airlines that individuals on flights arriving in the United States would not be delayed or detained, but simultaneously issued “no board” PLAINTIFFS’ OPPOSITION (No. 17-cv-1707-JLR) – 7 138282883.1 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 115 Filed 01/29/18 Page 11 of 17 1 resuming refugee admissions is insufficient to comply with the injunction if Defendants’ 2 resource allocations continue to make processing and travel impossible as a practical matter. 3 Moreover, even the limited evidence that Defendants provide about circuit rides and a 4 State Department “guidance” to “resume processing” of SAO nationals, see Gauger Decl. ¶¶ 2, 5 4-6; Higgins Decl. ¶¶ 2-7, raises as many questions as it answers. With respect to second quarter 6 circuit rides, Defendants allude to refugees from SAO countries who they anticipate adding to 7 circuit rides in Indonesia, Nauru, and Manus,12 but they do not reveal the number of SAO 8 nationals who will be added to those circuit rides. With respect to third quarter circuit rides, 9 while Defendants mention Iraq, Jordan, Turkey, and Kenya as places with “greater percentages 10 of SAO nationals [who] are ready for interviews” and where they “plan[] to request” circuit 11 rides, Higgins Decl. ¶ 7, they fail to identify the number of SAO nationals who are ready for 12 interviews in those countries, and thus how many SAO nationals would be added to third quarter 13 circuit rides. Nor do Plaintiffs have a way to know whether there are any major locations 14 missing from the list with even greater percentages of SAO nationals: for example, in Egypt, 15 more than 97 percent of the registered refugees are SAO nationals, and prior to this 16 Administration, Egypt had circuit rides at least three times a year. See Eades Decl. ¶¶ 7-8. 17 With respect to the State Department guidance, it is unclear whether this is sufficient to 18 reverse all actions taken to implement the Agency Memorandum. Defendants may, for example, 19 have issued guidance to the United Nations High Commissioner for Refugees (UNHCR) not to 20 refer refugees who are nationals of SAO countries for resettlement consideration in the United 21 States. Or they may have directed any of the federal and local agencies involved in security 22 23 24 25 26 instructions to airlines that prevented individuals from boarding planes bound for the United States in the first place—despite awareness that barred travelers were within the scope of the injunction). 12 While the NOC suggests that SAO nationals will be added to the already-scheduled second quarter circuit rides in Manus, see Gauger Decl. ¶ 5; Higgins Decl. ¶ 5, Manus does not appear on the second quarter list of circuit rides Defendants provided. See Higgins Decl., Ex. 1. PLAINTIFFS’ OPPOSITION (No. 17-cv-1707-JLR) – 8 138282883.1 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 115 Filed 01/29/18 Page 12 of 17 1 checks not to complete their portion of checks. State Department guidance to RSCs to generally 2 resume processing and admission would have no bearing on orders affecting other organizations. 3 In sum, Defendants provide absolutely no evidence about what they did to implement the 4 Agency Memorandum and only minimal, cherry-picked evidence about what they are doing now 5 to comply with this Court’s injunction. The information asymmetry here is extreme, and there is 6 no good reason for it to persist. Plaintiffs have a right to use the discovery process to access 7 information that is exclusively in the possession of the federal government and that Plaintiffs 8 need to protect their rights and interests. 9 C. The Orderly Course of Justice Does Not Favor a Stay. 10 The orderly course of justice does not favor a stay. Defendants refused to engage in the 11 discovery planning process mandated under the Federal and Local Rules, see Hirose Decl. ¶¶ 3, 12 5, 9, Exs. B, D, H, and they now make unsubstantiated claims about the burdens of further 13 proceedings.13 In reality, there is minimal overlap between the issues on appeal and the 14 production of the administrative record and the limited discovery Plaintiffs seek. While 15 Defendants argue that the injunction appeals “could have ‘significant relevance’” to the issues in 16 this case, Mot. at 7 (citation omitted), they fail to specifically identify any open issue before the 17 Ninth Circuit that could affect the course of this litigation. Indeed, Defendants make the 18 conclusory assertion that the Ninth Circuit’s decision on the injunction appeals “could potentially 19 shed light on . . . the justiciability of Plaintiffs’ claims,” Mot. at 4, but as this Court made clear in 20 its order granting the injunction, the Ninth Circuit has already repeatedly rejected Defendants’ 21 22 23 24 25 26 13 For example, while Defendants assert that Kleindienst v. Mandel, 408 U.S. 753 (1972), might render discovery inappropriate on Plaintiffs’ constitutional claims, see Mot. at 7, Plaintiffs do not seek discovery with respect to their constitutional claims at this time. More importantly, this Court, relying on the Ninth Circuit’s opinion in Hawaiʻi I, has already determined that Mandel’s “facially legitimate and bona fide” standard does not apply to Plaintiffs statutory claims. PI Order at 31 n.15 (ECF No. 92) (quoting Hawaiʻi v. Trump, 859 F.3d 741, 769 n.9 (9th Cir. 2017)); see also Hawaiʻi v. Trump, 878 F.3d 662, 684-98 (9th Cir. 2017) (per curiam) (holding plaintiffs were likely to succeed on their statutory claims without consideration of Mandel), cert. granted (U.S. Jan 19, 2018) (No. 17-965). Perhaps even more to the point, Defendants have no basis to claim that discovery would be burdensome in this case, given their repeated refusal to have a conversation about the discovery Plaintiffs seek. PLAINTIFFS’ OPPOSITION (No. 17-cv-1707-JLR) – 9 138282883.1 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 115 Filed 01/29/18 Page 13 of 17 1 arguments about Article III standing, statutory standing, and consular nonreviewability. See PI 2 Order at 20-21, 24, 27-31 (ECF No. 92); see also Hawaiʻi v. Trump, 878 F.3d 662, 678, 680, 682 3 (9th Cir. 2017) (per curiam), cert. granted (U.S. Jan. 19, 2018) (No. 17-965). 4 Moreover, Defendants’ singular focus on this Court’s stay order in Washington v. Trump, 5 see Mot. at 3, 5-10 (citing No. C17-0141JLR, 2017 WL 2172020, at *5 (W.D. Wash. May 17, 6 2017)), is misplaced.14 There, the Court anticipated a stay of only “short duration,” and it 7 implemented safeguards to address the plaintiffs’ primary concerns about loss of discovery 8 during a stay. Washington, 2017 WL 2172020, at *4. Thus, there was no “fair possibility” that a 9 stay would “work damage” to the plaintiffs, and the defendants were not required—as they are 10 here—to “make out a clear case of hardship or inequity in being required to move forward.” 11 Lockyear, 398 F.3d at 1109-10. Moreover, unlike Plaintiffs in this case, the Washington 12 plaintiffs sought extensive discovery: they anticipated “up to 30 depositions of government 13 officials, including White House staff and Cabinet-level officers,” in addition to written 14 discovery and document requests. 2017 WL 2172020 at *4. The Court held that protecting “the 15 office of the Chief Executive” from such resource-intensive discovery “weigh[ed] heavily” in 16 favor of a stay.15 Id. With respect to judicial economy, the Ninth Circuit’s decision on appeal— 17 its first decision on the merits of an appeal of a preliminary injunction in a Muslim ban case— 18 was “likely” to provide guidance relevant to the Washington court’s resolution of discovery 19 disputes and an anticipated motion to dismiss. Id. at *3. But in this case, the Ninth Circuit 20 appeals have minimal relevance to the limited discovery Plaintiffs seek and Defendants’ 21 22 23 24 25 26 14 The order Defendants cite stayed proceedings in Washington while the Ninth Circuit considered an expedited appeal of the injunction of EO-2 issued in Hawaiʻi v. Trump, No. CV 17-00050 (D. Haw. 2017). 15 While Defendants make much of the statement in Washington about the “high respect owed to the Executive,” they miss the mark. The Court’s stay was not justified by abstract “respect” for the President, but rather two specific factors that uniquely affected the Executive as a litigant: (1) the volume of discovery proposed; and (2) the nature of discovery proposed, which would have raised thorny questions of privilege and separation of powers. Both factors are absent here. Indeed, this case may never require merits discovery beyond the already-compiled administrative record. Relatedly, the challenged orders in Washington and Hawaiʻi were signed by the President himself, whereas the actions at issue here were taken by the agencies. Defendants’ abstract invocation of “respect for the Executive” is simply empty formalism. PLAINTIFFS’ OPPOSITION (No. 17-cv-1707-JLR) – 10 138282883.1 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 115 Filed 01/29/18 Page 14 of 17 1 production of the administrative record, and Plaintiffs would agree to hold Defendants’ 2 responsive pleading in abeyance pending the Ninth Circuit’s decision. Finally, in Washington 3 this Court did not have to ensure compliance with its own orders, as is necessary here, because it 4 had yet to issue any orders regarding EO-2. 5 Indeed, the circumstances of this case are more similar to another of this Court’s orders in 6 Washington, in which the Court declined to stay proceedings—over the defendants’ objection— 7 while its preliminary injunction of EO-1 was on appeal. See Washington, 2017 WL 591360, at 8 *1-2. Responding to the plaintiffs’ request to “[p]roceed directly to discovery, including a 9 prompt Rule 26(f) conference by the parties,” id. at *2 (quoting States Mem. at 6), this Court 10 reasoned that it “d[id] not see a basis for postponing other aspects of the litigation and agree[d] 11 with the States that the case should otherwise proceed” in accordance with the Federal and Local 12 Rules. Id. Here, as in Washington, this case should proceed directly to discovery, including a 13 prompt Rule 26(f) conference. 14 Finally, Defendants argue that the Court should grant a stay because the case may “soon” 15 be moot, see, e.g., Mot. at 5, but this claim only reinforces Plaintiffs’ need for limited discovery 16 on compliance. Defendants have already represented to this Court that they have “significant 17 doubt about whether it would even be possible” to undo some of the actions taken in the past 18 pursuant to the Memorandum. MFS at 5. Thus, even if Defendants were to assert that the 19 Memorandum is moot going forward, they would need to demonstrate that Defendants have 20 taken the requisite actions to restore the status quo ante in processing and admission of refugees 21 from SAO countries and following-to-join beneficiaries. Defendants have the burden to prove 22 mootness. See, e.g., Tinoqui–Chalola Council of Kitanemuk & Yowlumne Tejon Indians v. 23 United States DOE, 232 F.3d 1300, 1303-04 (9th Cir. 2000). For the Court to find this case 24 moot, it would have to conclude that Plaintiffs would have no continuing stake in the issues and 25 that there is no harm left to be remedied. Pitts v. Terrible Herbst, Inc., 653 F.3d 1081, 1087-88 26 (9th Cir. 2011) (noting that Supreme Court applies mootness doctrine “flexibly, particularly PLAINTIFFS’ OPPOSITION (No. 17-cv-1707-JLR) – 11 138282883.1 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 115 Filed 01/29/18 Page 15 of 17 1 where the issues remain alive, even if the plaintiff’s personal stake in the outcome has become 2 moot,” especially in context of issues “capable of repetition yet evading review” (quotations and 3 citations omitted)). Without knowing more about the actions Defendants took to implement the 4 Agency Memorandum—and thus, the scope of the harm it has inflicted—Plaintiffs will be at a 5 severe disadvantage in evaluating Defendants’ arguments about mootness. Cf. Rosemere 6 Neighborhood Ass’n v. U.S. Envtl. Prot. Agency, 581 F.3d 1169, 1175 (9th Cir. 2009) (noting 7 that plaintiff conducted discovery on mootness at trial level, and relying in part on evidence 8 obtained through discovery to reverse district court’s dismissal of action on mootness grounds). 9 The only way to ensure compliance with this Court’s order is with limited discovery. 10 11 CONCLUSION For the reasons stated above, Plaintiffs respectfully request that the Court deny 12 Defendants’ motion to stay proceedings (ECF No. 110). Given the delay in the start of discovery 13 because of Defendants’ refusal to engage in Rule 26(f) discussions, and the delay in submission 14 of the administrative record because of Defendants’ belated filing of the instant motion, see 15 supra, note 4, Plaintiffs also respectfully request that the Court order: 16 17 18 19 20 21 1) The parties to meet and confer on the Rule 26(f) report no later than three business days from the date of the Court’s order on the instant motion; 2) The parties to file a Rule 26(f) report no later than five business days from the date of the Court’s order on the instant motion; and 3) Defendants to produce the administrative record and accompanying privilege log no later than five business days from the date of the Court’s order on the instant motion. 22 23 24 25 26 PLAINTIFFS’ OPPOSITION (No. 17-cv-1707-JLR) – 12 138282883.1 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 115 Filed 01/29/18 Page 16 of 17 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 DATED: January 29, 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. 22 23 24 25 26 PLAINTIFFS’ OPPOSITION (No. 17-cv-1707-JLR) – 13 138282883.1 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 115 Filed 01/29/18 Page 17 of 17 1 2 3 4 5 6 7 CERTIFICATE OF SERVICE I hereby certify that on January 29, 2018, I electronically filed the foregoing document with the Clerk of the Court using the CM/ECF system which will send notification of such filing to all of the registered CM/ECF users for this case. I hereby declare under penalty of perjury of the laws of the State of Washington that the foregoing is true and correct. DATED this 29th day of January, 2018. 8 /s/ Lauren Watts Staniar Lauren Watts Staniar, WSBA No. 48741 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 PLAINTIFFS’ OPPOSITION (No. 17-cv-1707-JLR) – 14 138282883.1 Perkins Coie LLP 1201 Third Avenue, Suite 4900 Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000