Case 2:17-cv-00178-JLR Document 124 Filed 03/02/18 Page 1 of 6 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. C17-0178-JLR Plaintiffs, v. DONALD TRUMP, et al., 13 Defendants. NOTED FOR MARCH 2, 2018 14 15 JEWISH FAMILY SERVICE, et al., 16 17 18 PLAINTIFFS’ REPLY IN SUPPORT OF CROSS-MOTION FOR LIMITED EXPEDITED DISCOVERY ON COMPLIANCE WITH PRELIMINARY INJUNCTION CASE NO. C17-1707-JLR Plaintiffs, v. (RELATING TO CASE NO. C17-1707-JLR) DONALD TRUMP, et al., 19 Defendants. 20 21 22 23 24 25 26 PLAINTIFFS’ REPLY (No. 17-cv-1707-JLR) 138807846.3 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 124 Filed 03/02/18 Page 2 of 6 1 INTRODUCTION 2 Defendants’ Opposition only underscores why limited, expedited discovery is both 3 necessary and appropriate here. Critical questions persist about whether Defendants are 4 complying with this Court’s preliminary injunction, which requires them to undo all actions 5 taken to implement the suspension on admission of individuals from SAO countries and follow- 6 to-join beneficiaries. Moreover, in opposing discovery, Defendants rely on the unwarranted 7 assumption that this case is moot and on unsubstantiated assertions that Plaintiffs’ requests may 8 be overly burdensome. But as Plaintiffs have argued in opposing dismissal, discovery is 9 necessary to test Defendants’ claims regarding mootness, and should Defendants find Plaintiffs’ 10 actual discovery requests overly burdensome, the parties can engage in a meet and confer 11 process to seek to resolve any disputes. 12 13 ARGUMENT Defendants’ opposition confirms that discovery sought by Plaintiffs is appropriate. While 14 Defendants bemoan that “parties in litigation are not normally entitled to investigate their 15 opponents’ compliance with court orders,” Opp. at 4, here Plaintiffs have detailed at length the 16 concerns regarding Defendants’ compliance with this Court’s preliminary injunction that justify 17 discovery. See Cross-Motion for Limited Discovery (ECF No. 121) at 3-4; Opp. to Defendants’ 18 Mot. to Stay District Court Proceedings (ECF No. 115) at 5-9 (“Opp. to MSP”); see also 19 Plaintiffs’ Opposition to Defendants’ Motion to Dismiss, Jewish Family Service of Seattle v. 20 Trump, No. 18-35026, ECF No. 22 (9th Cir. Feb. 21, 2018). Defendants’ attempt to distinguish 21 this case from California Department of Social Services v. Leavitt, 523 F.3d 1025 (9th Cir. 22 2008), on the grounds that Plaintiffs have not proffered sufficient evidence of non-compliance, 23 Opp. at 4-5, is unavailing because here, as in Leavitt, there is ample evidence of potential 24 noncompliance and evidence that Defendants had a “fundamental misunderstanding” of the 25 district court injunction. Leavitt, 523 F.3d at 1035. Cf. Opp. to MSP at 6n.7 (describing how this 26 Court warned Defendants that failure to comply could result in a contempt finding and PLAINTIFFS’ REPLY (No. 17-cv-1707-JLR) 138807846.3 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 124 Filed 03/02/18 Page 3 of 6 1 sanctions). Plaintiffs are at a disadvantage because of the information asymmetry here, but the 2 limited information that is publicly available strongly suggests that Defendants have not 3 complied with this Court’s injunction by returning refugee processing to the status quo ante. See 4 Decl. of Melissa Keaney, ¶ 1, Ex. A (Politico article citing a former director of the Office of 5 Refugee Resettlement who said “[w]hat couldn’t be achieved through executive orders is being 6 achieved through administrative roadblocks or lack of will” and noting that from January 21 to 7 February 15, only 53 individuals from SAO countries have arrived in the United States); see also 8 Decl. of Casey Smith (ECF No. 118). 9 Moreover, it is Defendants who have moved to dismiss and vacate the injunction on the 10 basis of mootness.1 Plaintiffs are entitled to jurisdictional discovery to test that claim, including 11 discovery to ensure that the unlawful suspension Plaintiffs successfully challenged is not simply 12 continuing under new cover. See United States v. Brandau, 578 F.3d 1064, 1069-70 (9th Cir. 13 2009) (remanding case for factual findings on mootness and noting that the government had 14 provided “no information at all regarding the practical effect of the new [policy], and whether or 15 not the de facto policy … remains [the same as before]”); see also Sherwood v. Tenn. Valley 16 Auth., 842 F.3d 400, 407 (6th Cir. 2016) (remanding case and noting that “[f]ully fleshing out 17 any future mootness claim may require jurisdictional discovery”). 18 Finally, Defendants’ vagueness and burden objections to discovery are premature. The 19 categories of documents Plaintiffs suggested in their Cross-Motion were simply meant to provide 20 the Court with sufficient detail about the substantive areas of discovery Plaintiffs believe would 21 be relevant to the issues of compliance and mootness. Should this Court grant Plaintiffs’ motion 22 for limited discovery, and should Defendants maintain their concerns regarding the burden of 23 responding to Plaintiffs’ actual requests, the parties can engage in a meet and confer process 24 25 26 1 Defendants further attempt to distinguish National Law Center on Homelessness and Poverty v. U.S. Dep’t of Veterans Affairs, 842 F. Supp. 2d 127 (D.D.C. 2012), by claiming that they “have not moved to modify or dissolve the preliminary injunction,” Opp. at 5, but this claim is false. They did seek to modify the injunction, and after being denied by this Court, they now seek the extraordinary remedy of vacatur from the Ninth Circuit. PLAINTIFFS’ REPLY (No. 17-cv-1707-JLR) – 2 138807846.3 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 124 Filed 03/02/18 Page 4 of 6 1 aimed at addressing those concerns as required by the rules. Rosario v. Starbucks Corp., No. 16- 2 01951, 2017 WL 5999634, at *2 (W.D. Wash. Dec. 4, 2017) (“The Court and Federal and Local 3 Rules have [the meet and confer] requirement to minimize waste of judicial time and resources 4 on issues that could be resolved amongst the parties.”). But Defendants’ speculative concerns 5 about the burdens of discovery without having seen Plaintiffs’ actual discovery requests or 6 having engaged in a meet-and-confer process should not operate as a bar to discovery altogether. 7 CONCLUSION 8 9 10 For the reasons stated above and in Plaintiffs’ Cross-Motion (ECF No. 121), Plaintiffs respectfully request that the Court grant their motion to proceed with limited discovery on an expedited basis. 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 PLAINTIFFS’ REPLY (No. 17-cv-1707-JLR) – 3 138807846.3 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 124 Filed 03/02/18 Page 5 of 6 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: March 2, 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’ REPLY (No. 17-cv-1707-JLR) – 4 138807846.3 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 124 Filed 03/02/18 Page 6 of 6 1 2 3 4 5 6 7 CERTIFICATE OF SERVICE I hereby certify that on March 2, 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 2nd day of March, 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’ REPLY (No. 17-cv-1707-JLR) – 5 138807846.3 Perkins Coie LLP 1201 Third Avenue, Suite 4900 Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000