Case 2:17-cv-00178-JLR Document 146 Filed 06/19/18 Page 1 of 25 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. 14 15 18 19 ORAL ARGUMENT REQUESTED JEWISH FAMILY SERVICE, et al., 16 17 JFS PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS AND TO DISSOLVE PRELIMINARY INJUNCTION AS MOOT Plaintiffs, CASE NO. C17-1707JLR v. DONALD TRUMP, et al., (RELATING TO CASE NO. C17-1707JLR) Defendants. 20 21 22 23 24 25 26 JFS PLS.’ OPP’N TO DEFS.’ MOT. TO DISMISS & DISSOLVE PRELIM. INJ. AS MOOT (No. 17-cv-1707-JLR) 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 146 Filed 06/19/18 Page 2 of 25 1 TABLE OF CONTENTS 2 INTRODUCTION .......................................................................................................................... 1 3 PERTINENT FACTUAL & PROCEDURAL HISTORY ............................................................ 1 4 LEGAL STANDARD ..................................................................................................................... 5 5 ARGUMENT .................................................................................................................................. 7 6 7 8 I. DEFENDANTS HAVE NOT CARRIED THEIR BURDEN TO DEMONSTRATE THAT THE EFFECTS OF THE UNLAWFUL SUSPENSIONS HAVE BEEN COMPLETELY AND IRREVOCABLY ERADICATED ................................................. 7 9 II. DEFENDANTS HAVE NOT CARRIED THEIR HEAVY BURDEN OF PROVING THAT THE SUSPENSIONS CANNOT REASONABLY BE EXPECTED TO RECUR SHOULD THIS CASE BE DISMISSED .......................................................................... 13 10 III. JURISDICTIONAL DISCOVERY IS NECESSARY AND APPROPRIATE ................ 17 11 CONCLUSION ............................................................................................................................. 18 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 JFS PLS.’ OPP’N TO DEFS.’ MOT. TO DISMISS & DISSOLVE PRELIM. INJ. AS MOOT (No. 17-cv-1707-JLR) - i 140308594.1 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 146 Filed 06/19/18 Page 3 of 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 TABLE OF AUTHORITIES CASES Baker v. Delta Air Lines, 6 F.3d 632 (9th Cir. 1993) ...................................................................................................8 Bayer v. Neiman Marcus Group, Inc., 861 F.3d 853 (9th Cir. 2017) ...........................................................................................6, 7 Bell v. City of Boise, 709 F.3d 890 (9th Cir. 2013) .............................................................................................10 Burke v. Barnes, 479 U.S. 361 (1987) ...........................................................................................................14 Calderon v. Moore, 518 U.S. 149 (1996) .......................................................................................................9, 11 Chafin v. Chafin, 568 U.S. 165 (2013) ...............................................................................................1, 5, 7, 13 County of Los Angeles v. Davis, 440 U.S. 625 (1979) .........................................................................................................1, 6 Center for Biological Diversity v. United States Bureau of Land Management, 698 F.3d 1101 (9th Cir. 2012) ...........................................................................................10 Franklin v. Massachusetts, 505 U.S. 788 (1992) ...........................................................................................................18 Friends of Animals v. United States Bureau of Land Management, No. 2:16-cv-1670-SI, 2017 WL 1025669 (D. Or. Mar. 16, 2017).....................................17 Hawaii v. Trump, 871 F.3d 646 (9th Cir. 2017) ...............................................................................................8 Johnson v. Jacobs, No. 2:14-cv-02323-JAM-EFB, 2015 WL 1607986 (E.D. Cal. Apr. 9, 2015) ...................17 Karuk Tribe of California v. United States Forest Service, 681 F.3d 1006 (9th Cir. 2012) .........................................................................................6, 9 Laub v. United States Department of Interior, 342 F.3d 1080 (9th Cir. 2003) .......................................................................................6, 17 McCormack v. Herzog, 788 F.3d 1017 (9th Cir. 2015) ...........................................................................................16 26 JFS PLS.’ OPP’N TO DEFS.’ MOT. TO DISMISS & DISSOLVE PRELIM. INJ. AS MOOT (No. 17-cv-1707-JLR) - ii 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 146 Filed 06/19/18 Page 4 of 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 Porter v. Bowen, 496 F.3d 1009 (9th Cir. 2007) .............................................................................................6 Ramirez v. Golden Creme Donuts, No. C 12-05656 LB, 2013 WL 6056660 (N.D. Cal. Nov. 15, 2013) ................................18 Rosebrock v. Mathis, 745 F.3d 963 (9th Cir. 2014) .............................................................................................16 Trinity Lutheran Church of Columbia, Inc. v. Comer, 137 S. Ct. 2012 (2017) .......................................................................................................16 Trump v. Hawaii, 138 S. Ct. 377 (2017) ...................................................................................................14, 15 Trump v. International Refugee Assistance Project, 137 S. Ct. 2080 (2017) .......................................................................................................15 Trump v. International Refugee Assistance Project, 138 S. Ct. 353 (2017) .........................................................................................................15 Tyler v. Cuomo, 236 F.3d 1124 (9th Cir. 2000) ...........................................................................................10 United States v. Brandau, 578 F.3d 1064 (9th Cir. 2009) ...............................................................................6, 7, 9, 11 United States Catholic Conference v. Abortion Rights Mobilization, Inc., 487 U.S. 72 (1988) ...............................................................................................................7 United States v. Munsingwear, Inc., 340 U.S. 36 (1950) ...............................................................................................................5 18 United States v. Ruiz, 536 U.S. 622 (2002) .............................................................................................................7 19 RULES 20 Effective Date in Executive Order 13780, 82 Fed. Reg. 27965 (June 14, 2017) ..................................................................................14 21 22 23 24 25 26 Federal Rule of Evidence 201(b) ...................................................................................................16 OTHER AUTHORITIES 13C Charles Alan Wright et al., Federal Practice & Procedure Jurisdiction § 3533.3.1 (3d ed. 2008) ......................................................................................................6 Brief for Petitioners, Burke v. Barnes, No. 85-781, 1985 WL 669407 (U.S. 1985) .......................................................................14 JFS PLS.’ OPP’N TO DEFS.’ MOT. TO DISMISS & DISSOLVE PRELIM. INJ. AS MOOT (No. 17-cv-1707-JLR) - iii 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 146 Filed 06/19/18 Page 5 of 25 1 2 Office of Inspector General, Department of Homeland Security, DHS Implementation of Executive Order # 13769 (Jan. 18, 2018) https://www.oig.dhs.gov/sites/default/files/assets/2018-01/OIG-18-37-Jan18.pdf ...........12 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 JFS PLS.’ OPP’N TO DEFS.’ MOT. TO DISMISS & DISSOLVE PRELIM. INJ. AS MOOT (No. 17-cv-1707-JLR) - iv 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 146 Filed 06/19/18 Page 6 of 25 INTRODUCTION 1 2 For this case to be moot, Defendants must prove that it is now “impossible” for this Court 3 to grant Plaintiffs “any effectual relief whatever.” Chafin v. Chafin, 568 U.S. 165, 172 (2013). 4 Defendants’ Motion to Dismiss and Dissolve Preliminary Injunction as Moot falls well short of 5 carrying that burden. In fact, this Court could accept every contention in Defendants’ Motion— 6 in particular, that the latest refugee bans either “expired by their terms” (as a facial matter) or 7 “are no longer in effect” (as a factual matter); and that Defendants “complied scrupulously” with 8 this Court’s preliminary injunction, Defs.’ Mot. to Dismiss, ECF No. 145 1 (“Defs. Mot.”) at 4, 6- 9 7—and still it should be denied. Even if it were clear (which it is not) that the suspensions could 10 not recur; and even assuming perfect injunction compliance (which is genuinely disputed); 11 Defendants must also prove that the effects of unlawfully suspending large swaths of the U.S. 12 Refugee Admissions Program for approximately two months have been “completely and 13 irrevocably eradicated.” Cty. of Los Angeles v. Davis, 440 U.S. 625, 631 (1979). Defendants 14 make no effort to carry that burden, notwithstanding that this Court already found that the 15 cascading effects of the refugee bans challenged here will reverberate well after they conclude. 16 Their motion can and should be denied on that basis alone. 17 PERTINENT FACTUAL & PROCEDURAL HISTORY 2 18 This case concerns the Trump Administration’s most recent attempt to freeze large 19 portions of the U.S. Refugee Admissions Program (“USRAP”)—a multi-agency initiative that 20 embodies our country’s longstanding, statutorily-codified commitment to helping individuals 21 fleeing persecution in their homelands by resettling a small number of the most vulnerable here 22 in the United States. Plaintiffs challenge Defendants’ actions that, after successive Executive 23 24 25 26 1 Unless otherwise indicated, all ECF citations are to Doe v. Trump, 17-cv-00178-JLR. 2 Plaintiffs assume the Court’s familiarity with the facts and procedural history of these consolidated cases—see generally Order Granting Prelim. Inj., ECF No. 92 at 5-17; Order Denying Mot., ECF No. 106 at 2-4—and seek here only to highlight those issues most relevant to the instant motion. JFS PLS.’ OPP’N TO DEFS.’ MOT. TO DISMISS & DISSOLVE PRELIM. INJ. AS MOOT (No. 17-cv-1707-JLR) – 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 146 Filed 06/19/18 Page 7 of 25 1 Orders temporarily suspending refugee admissions, indefinitely suspend the processing and 2 admission of two categories of refugees: those who are seeking to be reunited with loved ones 3 already in the United States through the “following-to-join” process (“FTJ refugees”); and those 4 who, because of their nationality or most recent habitual residence, require a “Security Advisory 5 Opinion” (SAO) as part of the resettlement process (“SAO refugees”). Both groups are 6 overwhelmingly Muslim. See Pls.’ Mot. for Prelim. Inj., ECF No. 42 at 8. 7 The suspensions were directed by an October 23, 2017 memorandum (the “Agency 8 Memo”) jointly issued by then-Secretary of State Rex Tillerson, then-Acting Secretary of 9 Homeland Security Elaine Duke, and Director of National Intelligence Daniel Coats. See 10 Agency Memo, ECF No. 145-1. The Agency Memo suspended the FTJ process purportedly so 11 that Defendants could implement “additional security measures.” Id. at 3. It states that the 12 government “will resume admission of [FTJ] refugees once those enhancements have been 13 implemented,” but does not provide a deadline or estimate for when that would occur. Id. 14 The Agency Memo also directs a process that results in a suspension of the processing 15 and admission of SAO refugees. The Agency Memo states that Defendants “continue to have 16 concerns regarding the admission of [SAO nationals],” which will be “address[ed]” through a 17 “detailed threat analysis and review.” Id. at 2. During that review, the Departments of State and 18 Homeland Security—the two agencies principally responsible for administering the international 19 aspects of the USRAP—“will temporarily prioritize refugee applications from other non-SAO 20 countries,” and will “take resources that may have been dedicated to processing [SAO refugees] 21 and . . . reallocate them to process applicants from non-SAO countries.” Id. “While the 22 temporary review is underway,” the “Secretary of Homeland Security will admit on a case-by- 23 case basis only [SAO] refugees whose admission is deemed to be in the national interest and 24 poses no threat to the security or welfare of the United States.” Id. (emphasis added). The 25 Agency Memo states that Defendants “will direct [their] staff[s] . . . to complete the additional 26 review of the SAO countries no later than 90 days from the date of this memorandum.” Id. As JFS PLS.’ OPP’N TO DEFS.’ MOT. TO DISMISS & DISSOLVE PRELIM. INJ. AS MOOT (No. 17-cv-1707-JLR) – 2 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 146 Filed 06/19/18 Page 8 of 25 1 Defendants have conceded, the Agency Memo does not direct that the processing and admission 2 of SAO refugees will resume after the review is complete. See Tr. of Dec. 21, 2017 Hr’g at 3 38:1-5 (“[P]erhaps the government will conclude at the end of the 90 days that refugee 4 admissions may resume in March . . . . We just don’t know.”). 5 Plaintiffs filed suit to challenge the FTJ and SAO suspensions and immediately moved to 6 have them preliminarily enjoined as violative of the Establishment Clause, the procedural 7 requirements of the Administrative Procedure Act (APA), and the substantive limits of the 8 Immigration and Nationality Act (INA). Following oral argument, this Court issued a 65-page 9 opinion setting out its findings of fact and conclusions of law. ECF No. 92. Therein, the Court 10 rejected a bevy of attacks on its jurisdiction and the Plaintiffs’ ability to have their claims heard, 11 and held that the SAO and FTJ suspensions likely violate the APA and INA. Accordingly, the 12 Court preliminarily enjoined Defendants from enforcing “those provisions of the Agency Memo 13 that suspend the processing of FTJ refugee applications or suspend the admission of FTJ 14 refugees into the United States,” and “those . . . that suspend or inhibit, including through the 15 diversion of resources, the processing of applications or the admission into the United States of 16 refugees from SAO countries.” Id. at 64-65. The Court limited its injunction to those refugees 17 “with a bona fide relationship to a person or entity within the United States.” Id. at 65. 18 Shortly thereafter, Defendants made several attempts to limit the scope of the injunction, 19 including through an “emergency” motion for a stay of the injunction pending appeal. In that 20 motion, Defendants revealed that they had adopted a remarkably narrow interpretation of this 21 Court’s injunction. See Defs.’ Emergency Mot. to Stay, ECF No. 95. Defendants claimed that, 22 under the injunction, they were not required to undo any actions taken or decisions made prior to 23 December 23, 2017 to implement the SAO and FTJ suspensions, regardless of whether the 24 unlawful effects of those actions and decisions could still be avoided or mitigated. See id. at 4-6. 25 In an attempt to persuade the Court to acquiesce to their cramped understanding of the 26 injunction, Defendants represented that they had “significant doubt about whether it would even JFS PLS.’ OPP’N TO DEFS.’ MOT. TO DISMISS & DISSOLVE PRELIM. INJ. AS MOOT (No. 17-cv-1707-JLR) – 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 146 Filed 06/19/18 Page 9 of 25 1 be possible for [them] to undo some of their prior decisions,” but gave just one example of a 2 decision (the second-quarter circuit ride schedule) they believed would not be “feasible” to 3 meaningfully revisit. Id. at 5. In response, Plaintiffs expressed alarm at both Defendants’ 4 interpretation of this Court’s order and at the extreme information asymmetry, whereby neither 5 Plaintiffs nor this Court have access to the facts necessary to independently determine the 6 specific actions needed to remediate Defendants’ unlawful conduct or to monitor Defendants’ 7 compliance with the preliminary injunction. See Pls.’ Opp’n to Defs.’ Emergency Mot. to Stay, 8 ECF No. 100 at 1-4. 9 On January 9, the Court “reject[ed] Defendants’ apparent attempts to unilaterally modify 10 the preliminary injunction” and again ordered them to restore the status quo ante. Order Denying 11 Mot., ECF No. 106 at 6-7. Following issuance of this Court’s January 9 Order, Defendants filed 12 a notice detailing their allegedly “comprehensive compliance efforts.” Defs.’ Mot. at 11-12 13 (citing Defs.’ Notice of Compliance, ECF No. 114). 14 As discussed in more detail in Section I, infra, however, the information asymmetry 15 persists. But for limited information about circuit rides—which are just one step in the very long 16 refugee resettlement process—Defendants have given no information about what they did to 17 implement the SAO and FTJ suspensions before they were enjoined, or what they have done 18 since the injunction issued to “undo” the pre-injunction decisions they made to effectuate the 19 suspensions. Similarly, while Defendants have stated that they issued guidance to those offices 20 involved in USRAP to apprise them of the impact of the injunction, they have not produced 21 copies of it, and the record reflects that all of that guidance was issued prior to January 9, 2018— 22 that is, when Defendants “d[id] not understand the preliminary injunction to require affirmative 23 action to undo any of the steps that were taken to implement the [Agency Memo] prior to” this 24 Court’s injunction. Defs.’ Emergency Mot. to Stay, ECF No. 95 at 4. 25 26 On or about January 29, Secretary of Homeland Security Kirstjen Nielsen issued a memorandum (“the Nielsen Memo”) announcing three “determinations” she made based on the JFS PLS.’ OPP’N TO DEFS.’ MOT. TO DISMISS & DISSOLVE PRELIM. INJ. AS MOOT (No. 17-cv-1707-JLR) – 4 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 146 Filed 06/19/18 Page 10 of 25 1 results of the SAO review ordered by the Agency Memo. ECF No. 145-2 at 2-3. Those 2 determinations were that “[a]dditional screening and vetting” are required for “certain nationals 3 of high-risk countries”; that the USRAP “should continue to be administered in a risk-based 4 manner”; and that the “SAO list and selection criteria should be reviewed and updated.” Id. The 5 memorandum directed that these actions “be undertaken consistent” with this Court’s 6 preliminary injunction. Id. at 1 n.2. The Nielsen Memo also stated that: “The 90-day review of 7 SAO countries, as provided in the Joint Memorandum [i.e., the Agency Memo], is no longer in 8 effect by its terms, and the prioritization set forth in the Memorandum is not hereby renewed.” 9 Id. at 4. In the same filing in which Defendants notified this Court of the conclusion of the SAO 10 review, they represented that “the implementation of the additional procedures for [FTJ] refugees 11 set forth in the Joint Memorandum is expected to be completed on or about February 1, 2018.” 12 Defs.’ Notice, ECF No. 119 at 2. 13 Defendants noticed their appeal of this Court’s preliminary injunction on January 4, 14 2018, but requested from the Ninth Circuit neither a stay pending appeal nor an expedited 15 briefing schedule. On February 6, Defendants moved to dismiss their appeal (and Plaintiffs’ 16 cross-appeal) as moot, and additionally requested that the Ninth Circuit vacate this Court’s 17 opinion under United States v. Munsingwear, Inc., 340 U.S. 36 (1950), and instruct this Court to 18 dismiss this case as moot. 3 On March 29, the Ninth Circuit denied Defendants’ motion, and 19 remanded the consolidated cases for this Court to address mootness in the first instance. LEGAL STANDARD 20 21 Defendants have moved to dismiss this case and vacate the injunction on the basis that it 22 is moot, but fail to acknowledge that “a case ‘becomes moot only when it is impossible for a 23 court to grant any effectual relief whatever to the prevailing party.’” Chafin, 568 U.S. at 172 24 (citation omitted). “As long as the parties have a concrete interest, however small, in the 25 26 3 Defendants rightly do not argue to this Court that it should vacate its prior opinions under Munsingwear even if it does ultimately dismiss this case as moot. JFS PLS.’ OPP’N TO DEFS.’ MOT. TO DISMISS & DISSOLVE PRELIM. INJ. AS MOOT (No. 17-cv-1707-JLR) – 5 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 146 Filed 06/19/18 Page 11 of 25 1 outcome of the litigation, the case is not moot.” Id. (internal quotation marks omitted). As the 2 party asserting mootness, Defendants bear “the heavy burden of establishing that there remains 3 no effective relief a court can provide.” 4 Bayer v. Neiman Marcus Grp., Inc., 861 F.3d 853, 862 4 (9th Cir. 2017). “The question is not whether the precise relief sought at the time the case was 5 filed is still available, but whether there can be any effective relief.” Id. (citation and internal 6 quotation marks omitted); see also Karuk Tribe of Cal. v. U.S. Forest Serv., 681 F.3d 1006, 1017 7 (9th Cir. 2012) (“The [Supreme] Court has instructed that ‘harmful conduct may be too 8 speculative to support standing, but not too speculative to overcome mootness.’” (quoting 9 Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 190 (2000))). 10 To demonstrate that this Court can provide Plaintiffs with no further effective relief, 11 Defendants must prove both that it is “absolutely clear” that the alleged violation “will not 12 recur,” and that “interim relief or events have completely and irrevocably eradicated the effects 13 of the alleged violation.” United States v. Brandau, 578 F.3d 1064, 1068 (9th Cir. 2009) (citation 14 and internal quotation marks omitted); accord Davis, 440 U.S. at 631 (explaining that only 15 “[w]hen both conditions are satisfied . . . may it be said that the case is moot”); Porter v. Bowen, 16 496 F.3d 1009, 1017 (9th Cir. 2007) (same). 13C Charles Alan Wright et al., Federal Practice 17 and Procedure Jurisdiction § 3533.3.1 (3d ed. 2008) (“Even if the challenged conduct seems 18 completed continuing effects often defeat mootness.” (footnote omitted)). 19 “‘[W]here pertinent facts bearing on the question of jurisdiction are controverted or 20 where a more satisfactory showing of the facts is necessary,’” the Ninth Circuit has held that 21 “discovery should ordinarily be granted” before deciding the jurisdictional issues. Laub v. U.S. 22 Dep’t of Interior, 342 F.3d 1080, 1093 (9th Cir. 2003) (citation omitted). Contrary to 23 Defendants’ assertions that this Court “lacks jurisdiction to do anything other than dissolve the 24 25 26 4 Defendants’ unsupported assertion that Plaintiffs have the burden “to [s]how [t]hat the [c]ontroversy [r]emains [l]ive,” Defs.’ Mot. at 11, is incorrect; Plaintiffs bear no burden on Defendants’ Motion to Dismiss. JFS PLS.’ OPP’N TO DEFS.’ MOT. TO DISMISS & DISSOLVE PRELIM. INJ. AS MOOT (No. 17-cv-1707-JLR) – 6 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 146 Filed 06/19/18 Page 12 of 25 1 injunction and dismiss Plaintiffs’ claims,” and that “[a]ny other ruling would exceed the scope of 2 [its] authority under Article III,” Defs.’ Mot. at 6 n.3 & 8, this Court has the “inherent and 3 legitimate authority . . . to issue process and other binding orders, including orders of 4 discovery . . . as necessary for the court to determine and rule upon its own jurisdiction, 5 including jurisdiction over the subject matter.” U.S. Catholic Conf. v. Abortion Rights 6 Mobilization, Inc., 487 U.S. 72, 79 (1988); accord United States v. Ruiz, 536 U.S. 622, 628 7 (2002) (“[A] federal court always has jurisdiction to determine its own jurisdiction.”). 8 9 ARGUMENT I. 10 DEFENDANTS HAVE NOT CARRIED THEIR BURDEN TO DEMONSTRATE THAT THE EFFECTS OF THE UNLAWFUL SUSPENSIONS HAVE BEEN COMPLETELY AND IRREVOCABLY ERADICATED 11 In seeking dissolution of this Court’s preliminary injunction and dismissal of this case, 12 Defendants advance a solitary affirmative argument: that this case is moot because the SAO and 13 FTJ suspensions are no longer in effect, either because they “expired by their terms” or have 14 been otherwise ended. Defs.’ Mot. at 7-8. As explained in Section II, infra, the suspensions did 15 not “expire[] by their terms,” and the current record is insufficient to carry Defendants’ burden of 16 proving they would not recur should this case be dismissed. But more importantly, even if it 17 were crystal clear that the suspensions had expired and could not be re-instituted, this case would 18 still not be moot, as Defendants have not even attempted to carry their burden of proving that the 19 effects of unlawfully suspending processing and admission of SAO and FTJ refugees for 20 approximately two months have been “completely and irrevocably eradicated,” Brandau, 578 21 F.3d at 1068 (internal quotation marks omitted), such that it is “impossible” for this Court “to 22 grant any effectual relief whatever” to Plaintiffs. Chafin, 568 U.S. at 172. Defendants’ Motion 23 must be denied for that reason alone. See id.; see also Brandau, 578 F.3d at 1068; Bayer, 861 24 F.3d at 864 (explaining that “so long as there is some present harm left to enjoin,” the “request 25 for injunctive relief remains live” (internal quotation marks omitted)); Baker v. Delta Air Lines, 6 26 F.3d 632, 638 (9th Cir. 1993) (defendant airline’s merger with another airline did not moot JFS PLS.’ OPP’N TO DEFS.’ MOT. TO DISMISS & DISSOLVE PRELIM. INJ. AS MOOT (No. 17-cv-1707-JLR) – 7 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 146 Filed 06/19/18 Page 13 of 25 1 plaintiff pilots’ discrimination claims because the pilots “continue[d] to suffer the effects of the 2 alleged violation”). 3 Holding Defendants to their burden of proving that they have completely and irrevocably 4 eliminated the effects of the unlawful suspensions—and denying their Motion to Dismiss due to 5 their failure to carry it—is particularly appropriate here for multiple reasons. 6 First, consistent with the Ninth Circuit’s recognition of the cascading effects of even 7 short delays in refugee processing, Hawaii v. Trump, 871 F.3d 646, 664 (9th Cir. 2017), this 8 Court has already found that the FTJ and SAO suspensions will have effects well beyond their 9 terms, Order Granting Prelim. Inj., ECF No. 92, at 11-12, 33-34. Defendants have never 10 disputed that finding, which is further corroborated by the exceedingly low numbers of SAO 11 refugees who have been admitted post-injunction, 5 see Decl. of Casey Smith, ECF No. 133 ¶¶ 4- 12 5, as well as the experiences of Plaintiffs, see Decl. of John Doe #1, ECF No. 132 ¶ 3 (explaining 13 that although he was ready for departure, his medical check expired shortly after the injunction 14 issued, preventing him from traveling to the United States). In light of this reality—which, 15 again, the Court has already found and Defendants have not sought to dispute—simply resuming 16 the processing of FTJ and SAO refugees and adding some circuit ride interviews of the latter 17 cannot eliminate the effects of the suspensions. 18 Second, Defendants have markedly better access to the relevant information than do 19 either Plaintiffs or this Court. Yet Defendants have refused to explain the specific actions taken 20 to implement and undo the suspensions, despite Plaintiffs’ repeated requests for this obviously 21 relevant information. Defendants cannot carry their burden simply by maintaining that black 22 box. See Brandau, 578 F.3d at 1067-69; cf. Order Denying Mot., ECF No. 106, at 6 23 24 25 26 5 Plaintiffs do not doubt that the slow rate of SAO refugee admissions could be partially attributable to new security procedures and the technical difficulties described on page 12 of Defendants’ Motion to Dismiss. But even Defendants do not claim that the low number of SAO refugees admitted this year is not also attributable in part to the suspensions. JFS PLS.’ OPP’N TO DEFS.’ MOT. TO DISMISS & DISSOLVE PRELIM. INJ. AS MOOT (No. 17-cv-1707-JLR) – 8 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 146 Filed 06/19/18 Page 14 of 25 1 (admonishing Defendants for failing to substantiate the conclusory assertions in their Emergency 2 Stay Motion with evidence). 3 Third, what little Defendants have said about how they implemented the suspensions 4 strongly suggests they have not remedied their effects. In their Emergency Stay Motion—and in 5 an attempt to persuade this Court to limit its injunction—Defendants explained that they took 6 “steps” and made “decisions” (including “decisions . . . about how to allocate resources”) to 7 implement the suspensions before the Court’s injunction issued, and expressed “significant doubt 8 about whether it would even be possible for Defendants to undo some of their prior decisions.” 9 Defs.’ Emergency Mot. to Stay, ECF No. 95 at 4-5. Defendants, however, chose to give only 10 one “example” of such a decision, regarding the second-quarter circuit ride schedule, see id., and 11 represented to this Court that “further proceedings would be necessary to help inform the Court’s 12 analysis of the[] potential burdens and harms” of requiring them “to take affirmative steps to 13 undo the decisions that were made” to implement the suspensions. Id. at 6. Yet, since the Court 14 denied Defendants’ Emergency Stay Motion and ordered them “to take actions that are necessary 15 to undo those portions of the Agency Memo that are enjoined” and “to restore the status quo” 16 ante, Order Denying Mot., ECF No. 106 at 6, Defendants have acted as though the circuit ride 17 schedule was the only such pre-injunction decision they made, see Defs.’ Notice of Compliance, 18 ECF No. 114; Defs.’ Mot. at 13, a position that is foreclosed by their statements in the 19 Emergency Stay Motion. 20 Moreover, even if Defendants’ claims in their Emergency Stay Motion were true, this 21 Court could still order remedial measures to mitigate the ongoing effects of the suspensions. 22 See, e.g., Calderon v. Moore, 518 U.S. 149, 150 (1996) (per curiam) (“[E]ven the availability of 23 a ‘partial remedy’ is ‘sufficient to prevent [a] case from being moot.’” (quoting Church of 24 Scientology of Cal. v. United States, 506 U.S. 9, 13 (1992) (second alteration in original))); 25 Karuk Tribe of Cal., 681 F.3d at 1017 (“[A] case is not moot if any effective relief may be 26 granted”); Ctr. for Biological Diversity v. U.S. Bureau of Land Mgmt., 698 F.3d 1101, 1106 n.2 JFS PLS.’ OPP’N TO DEFS.’ MOT. TO DISMISS & DISSOLVE PRELIM. INJ. AS MOOT (No. 17-cv-1707-JLR) – 9 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 146 Filed 06/19/18 Page 15 of 25 1 (9th Cir. 2012) (completion of a nearly 700-mile pipeline did not moot case challenging its 2 construction because court could still order actions to mitigate its effects); Tyler v. Cuomo, 236 3 F.3d 1124, 1137 (9th Cir. 2000) (same regarding challenge to a low-income housing project, 4 notwithstanding its completion, because viable remedial measures remained); see generally 5 Wright et al., supra, (explaining that even where providing direct relief would be impossible or 6 unduly “drastic,” “substitute relief may be fashioned,” including relief that mitigates the effects 7 of the challenged but completed conduct). 6 More to the point, Defendants do not get to decide 8 for themselves whether further relief is possible; if they believe nothing more can be done to 9 remedy the ongoing effects of the suspensions, they have the burden of explaining why, 10 particularly given their prior representation that “further proceedings would be necessary” for 11 this Court to understand the “potential burdens and harms” of requiring them to undo their pre- 12 injunction decisions. Defs.’ Emergency Mot. to Stay, ECF No. 95 at 6; cf. Bell v. City of Boise, 13 709 F.3d 890, 899 n.13 (9th Cir. 2013) (even when the government is presumed to be acting in 14 good faith, it “still must meet its heavy burden of proof”). 15 Fourth and finally, Plaintiffs have well-founded concerns about Defendants’ compliance 16 with the preliminary injunction, making it even more likely that the effects of the suspension 17 remain unremedied. 7 To date, and as with their refusal to identify the steps they took to 18 19 20 21 22 23 24 25 26 6 Defendants themselves seem to recognize the role of substitute relief in the one implementation issue they do address, explaining that they “adjusted for t[he] inability” to “conclusively determine which second-quarter circuit rides they might have conducted absent the Agency Memo” by “scheduling third-quarter circuit rides in areas with heavy SAO populations.” Defs.’ Mot. at 13. Yet even here, Defendants make no claim that this “adjust[ment]” is adequate to “completely and irrevocably eradicate” the effects of the suspensions on the circuit ride schedules. Moreover, Defendants equivocate on whether adding SAO refugees to the thirdquarter circuit rides is required by this Court’s injunction. See Defs.’ Mot. at 4 (stating that such actions were “not required by the terms of this Court’s Order”); cf. Defs.’ Notice of Compliance, ECF No. 114, at 1 (stating that SAO refugees would be added to third-quarter circuit rides “in furtherance of [Defendants’] compliance with the Court’s Order”). 7 Even assuming arguendo Defendants have perfectly complied, the case is not moot. Compliance with a preliminary injunction only moots the case if the “interim relief . . . completely and irrevocably eradicated the effects of the alleged violation.” Brandau, 578 F.3d at JFS PLS.’ OPP’N TO DEFS.’ MOT. TO DISMISS & DISSOLVE PRELIM. INJ. AS MOOT (No. 17-cv-1707-JLR) – 10 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 146 Filed 06/19/18 Page 16 of 25 1 implement the suspensions, Defendants have given scant information about the concrete steps 2 they have taken to comply with the preliminary injunction. Consequently, holding that 3 Defendants have failed to carry their burden does not require disbelieving anything the 4 declarants have said; they simply have not said enough. See, e.g., Brandau, 578 F.3d at 1067-69 5 (lack of information precluded finding of mootness). What Defendants have stated thus far can 6 be summarized as follows: 7 In the days following issuance of this Court’s injunction, State Department officials were 8 instructed to “resume processing” those refugees covered by it. First Gauger Decl., ECF 9 No. 114-1 ¶ 2; First Higgins Decl., ECF No. 114-2 ¶ 2; accord Second Gauger Decl., 10 ECF No. 142-1 ¶ 5. 11 “Additional interviews” of SAO refugees were added to the second-quarter circuit rides. 12 Second Higgins Decl., ECF No. 142-2 ¶ 3; First Gauger Decl., ECF No. 114-1 ¶ 5; First 13 Higgins Decl., ECF No. 114-2 ¶ 5. Defendants have not specified the number of 14 interviews added, but given their prior representations, that number was presumably 15 small. See Defs.’ Emergency Mot. to Stay, ECF No. 95, at 5 (stating that they “may be 16 able to adjust the interview schedule slightly,” but that “it is not feasible on short 17 notice . . . [to] substantially revise the existing interview schedule”). 8 18 19 20 21 22 23 24 25 26 1068; see also, e.g., Calderon, 518 U.S. at 150. Thus, while Defendants’ compliance with the relief already ordered is likely necessary to any finding of mootness, it would not be sufficient, as it would not demonstrate that this Court could not order further meaningful relief, particularly in the context of this case. 8 Defendants have provided the total number of SAO refugees interviewed during the second-quarter circuit rides—259 cases (8.7% of the total interviews), Ex. 1 to Second Higgins Decl., ECF No. 142-2—but at least some (if not most) of those were scheduled prior to the injunction because the individuals “met the [Agency Memo’s] criteria for continued, case-bycase processing,” Defs.’ Emergency Mot. to Stay, ECF No. 95 at 6 n.3. JFS PLS.’ OPP’N TO DEFS.’ MOT. TO DISMISS & DISSOLVE PRELIM. INJ. AS MOOT (No. 17-cv-1707-JLR) – 11 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 146 Filed 06/19/18 Page 17 of 25 1 Defendants “established a third-quarter circuit ride schedule that includes locations where 2 SAO nationals are ready for interview.” Second Higgins Decl., ECF No. 142-2 ¶ 4; 3 accord First Gauger Decl., ECF No. 114-1 ¶ 6; First Higgins Decl., ECF No. 114-2 ¶ 7. 4 Defendants “apprised personnel of the injunction’s immediate impact” and “issued 5 guidance” so that “implementing partners could implement the injunction.” Defs.’ Reply 6 in Support of Motion to Stay, ECF No. 120 at 5 (citing these statements as evidence that 7 Defendants have complied with the injunction) (quoting Notice of Compliance, ECF No. 8 114 at 2-3); see also Defs.’ Mot. at 11-12 (citing the same statements). Since neither 9 Plaintiffs nor the Court knows what Defendants interpreted “the injunction’s immediate 10 impact” to be—and since Defendants have not produced copies of the guidance they 11 sent—these statements do not convey meaningful information other than that Defendants 12 gave notice that an injunction had issued. 9 13 What is more, although Defendants claim that they “have gone to some lengths to show 14 this Court that [they] have obeyed not only the preliminary injunction Order . . . but also the 15 Court’s supplemental guidance in its Order of January 9, 2018,” Defs.’ Mot. at 11, all of the 16 guidance and notifications that Defendants cite in support of that contention were sent before this 17 Court’s Jan. 9 Order. See id. at 11-12. 10 Defendants do not acknowledge or explain this 18 discrepancy. In fact, other than the already-discussed matter of circuit rides, there is no evidence 19 20 21 22 23 24 25 26 9 In comparable circumstances, Defendant Department of Homeland Security adopted such a narrow interpretation of the preliminary injunction of EO-1 (President Trump’s first travel ban) issued by this Court that its Office of Inspector General subsequently concluded that the agency had violated this Court’s injunction, as well as a second injunction issued by the Eastern District of New York. See Office of Inspector Gen., Dep’t of Homeland Sec., DHS Implementation of Executive Order # 13769 (Jan. 18, 2018), https://www.oig.dhs.gov/sites/default/files/assets/2018-01/OIG-18-37-Jan18.pdf. 10 See also First Gauger Decl., ECF No. 114-1 ¶ 2 (discussing guidance sent on December 24 and 28, 2017); id. ¶ 3 (sent on December 23, 2017 and January 4, 2018); First Higgins Decl., ECF No. 114-2 ¶ 2 (sent on December 24, 2017); Second Gauger Decl., ECF No. 142-1 ¶ 5 (sent on December 24, 2017). JFS PLS.’ OPP’N TO DEFS.’ MOT. TO DISMISS & DISSOLVE PRELIM. INJ. AS MOOT (No. 17-cv-1707-JLR) – 12 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 146 Filed 06/19/18 Page 18 of 25 1 that Defendants undertook any action to comply with this Court’s Jan. 9 Order—including even 2 informing their employees of it. 11 3 II. 4 DEFENDANTS HAVE NOT CARRIED THEIR HEAVY BURDEN OF PROVING THAT THE SUSPENSIONS CANNOT REASONABLY BE EXPECTED TO RECUR SHOULD THIS CASE BE DISMISSED 5 Defendants’ failure to demonstrate that the effects of their unlawful conduct have been 6 remedied is sufficient to defeat mootness, but their attempt to prove that the challenged 7 suspensions have ended and cannot reasonably recur is also flawed. See Defs.’ Mot. at 7-11. As 8 noted above, however, there is no need for the Court to reach this issue, given that the possibility 9 of further relief means this controversy remains live regardless. See Chafin, 568 U.S. at 172. 10 A. 11 Citing the familiar precedent that a “case can be moot when a challenged statute or 12 regulation ‘is repealed, expires, or is amended to remove the challenged language,’” Defendants’ 13 principal argument is that the suspensions “have expired by their terms.” Defs.’ Mot. at 7 14 (quoting Renee v. Duncan, 686 F.3d 1002, 1016 (9th Cir. 2012)). But neither provision 15 “expired” within the meaning of the doctrine Defendants seek to invoke. As illustrated by the 16 very cases Defendants cite, for a law to “expire,” it must do so by operation of the challenged 17 law itself—that is what it means to expire “by its terms”—without reference to extrinsic facts. 18 The SAO and FTJ suspensions did not “expire by their terms.” In Burke v. Barnes, for example, the Supreme Court considered the validity of a bill 19 passed in 1983 by both the Senate and the House of Representatives conditioning the 20 continuance of military aid to El Salvador on the President certifying that El Salvador had made 21 22 23 24 25 26 11 Plaintiffs have provided direct evidence that Defendants did not comply with this Court’s injunction: two statements (three months apart) from a Department of State employee— whose job is to respond accurately on behalf of the Department to queries from members of Congress—that the refugee suspensions continued well past the injunction. See Email from Dep’t of State to Jennifer Ward, ECF No. 132-1 at 2; Email from Dep’t of State to Hamdi Mohamed, ECF No. 139-1 at 2. In response, Defendants proffered a self-serving declaration containing double hearsay that averred that the spokesperson was simply “incorrect.” Second Gauger Decl., ECF No. 142-1 ¶ 6. Defendants may be right factually, but the issue is plainly controverted. JFS PLS.’ OPP’N TO DEFS.’ MOT. TO DISMISS & DISSOLVE PRELIM. INJ. AS MOOT (No. 17-cv-1707-JLR) – 13 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 146 Filed 06/19/18 Page 19 of 25 1 progress in protecting human rights. 479 U.S. 361, 362 (1987) (cited in Defs.’ Mot. at 5 n.2 & 2 8). The President neither signed nor vetoed the bill, but took the position that Congress had 3 prevented the bill’s return by adjourning, thereby subjecting the bill to a “pocket veto” under 4 clause 2 of section 7 of Article I of the Constitution. Id. Members of Congress sued, arguing 5 that the President’s action was not a valid pocket veto. See id. at 363-64. The district court 6 dismissed the suit, but on August 29, 1984, the court of appeals reversed, after which certiorari 7 was granted. Without reaching the merits, the Supreme Court dismissed the case as moot, 8 explaining that “[t]he bill in question expired by its own terms on September 30, 1984.” 479 9 U.S. at 363; see also Petitioners’ Br., Burke v. Barnes, 1985 WL 669407, at *2, *50 (U.S. 1985) 10 (explaining that H.R. 4042 provided that its operative provision would apply “until such time as 11 the Congress enacts new legislation providing conditions for United States military assistance to 12 El Salvador or until September 30, 1984, whichever occurs first”). 13 A similar scenario played out in the only other case Defendants cite in which a court 14 dismissed as moot a challenge to a law because it expired “by its terms”: Trump v. Hawaii 15 (“Hawaii”), 138 S. Ct. 377 (2017) (cited in Defs.’ Mot. at 8), in which the Court dismissed as 16 moot challenges to §§ 2(c) and 6 of Executive Order 13780—President Trump’s second attempt 17 to impose a Muslim ban (hereinafter, “EO-2”). Section 2(c) imposed a 90-day entry ban on 18 nationals of six countries and § 6 a 120-day ban on refugees; both bans were measured from the 19 “effective date” of EO-2, which § 14 defined to be March 16, 2017. As this Court is aware, 20 multiple courts preliminarily enjoined those provisions before they took effect. Nonetheless, 21 because the bans were measured from March 16, 2017, they would have expired 90 and 120 days 22 thereafter, even though, by those dates, neither had gone into effect at all. Therefore, on June 14, 23 2017—the day § 2(c) of EO-2 would have expired—President Trump issued a memorandum 24 amending EO-2 such that “the effective date of each enjoined provision [would] be the date and 25 time at which the referenced injunctions are lifted or stayed with respect to that provision.” 26 Effective Date in Executive Order 13780, 82 Fed. Reg. 27965, 27965 (June 14, 2017). JFS PLS.’ OPP’N TO DEFS.’ MOT. TO DISMISS & DISSOLVE PRELIM. INJ. AS MOOT (No. 17-cv-1707-JLR) – 14 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 146 Filed 06/19/18 Page 20 of 25 1 Thereafter, on June 26, 2017, the Supreme Court granted certiorari in Trump v. Hawaii and its 2 companion case, and, without reaching the merits, stayed the preliminary injunctions of §§ 2(c) 3 and 6 except as to those individuals with a “bona fide relationship” with an individual or entity in 4 the United States. Trump v. Int’l Refugee Assistance Project (“IRAP”), 137 S. Ct. 2080 (2017). 5 The Supreme Court subsequently dismissed both IRAP and Hawaii as moot, on the ground that 6 the challenged provisions had—come 90 and 120 days from the date of the partial stay order— 7 “expired” by their terms. See Trump v. IRAP, 138 S. Ct. 353 (2017) (dismissing as moot IRAP, 8 which concerned only § 2(c) of EO-2, because that provision “‘expired by its terms’ on 9 September 24, 2017” (quoting Burke, 479 U.S. at 363)); Hawaii, 138 S. Ct. at 377 (same, after § 10 11 6 expired on October 24, 2017). In contrast, neither the SAO nor FTJ suspensions at issue in this case “expire” in a 12 manner that is determined by their terms alone. The Agency Memo states that FTJ processing 13 will resume after Defendants “implement adequate screening mechanisms for [FTJ] refugees that 14 are similar to the processes employed for principal refugees,” and it does not specify when the 15 SAO suspension will end. ECF No. 145-1 at 2-3. Defendants seek to obfuscate the latter 16 conclusion by seeking to conflate the SAO review (which the Agency Memo said was to be no 17 more than 90 days) with the SAO suspension. As discussed further in the following subsection, 18 the Agency Memo did not even directly acknowledge the SAO suspension, much less link it 19 directly to the SAO review—as Defendants have previously conceded. Tr. of Dec. 21, 2017 20 Hr’g at 38:1-5 (statement of counsel for Defendants that “perhaps the government will conclude 21 at the end of the 90 days that refugee admissions may resume in March . . . . We just don’t 22 know.”). Thus, whether either suspension remains in effect must be examined with reference to 23 extrinsic facts, and so whether Plaintiffs’ challenge to either suspension is moot cannot be 24 determined by the face of the Agency Memo. 12 25 26 12 Defendants err in suggesting that, in considering their facial attack, this Court can consider the Nielsen Memo because it is “in the public record.” Defs.’ Mot. at 7. While this JFS PLS.’ OPP’N TO DEFS.’ MOT. TO DISMISS & DISSOLVE PRELIM. INJ. AS MOOT (No. 17-cv-1707-JLR) – 15 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 146 Filed 06/19/18 Page 21 of 25 1 B. The present record is inadequate to carry Defendants’ burden to prove the suspensions are over and cannot recur. 2 Apart from their faulty argument that the suspensions “expired,” Defendants also argue 3 that, as a factual matter, the SAO and FTJ suspensions cannot reasonably be expected to recur. 4 See Defs. Mot. at 7 (arguing that “declarations previously submitted . . . establish conclusively 5 that the challenged policies are no longer in effect”). That argument fails for at least two reasons. 6 First, Defendants do not even attempt to meet the relevant standard. Rather than 7 explaining why the suspensions cannot recur, they merely assert that “the challenged policies are 8 no longer in effect.” Defs.’ Mot. at 6-7. That contention is plainly inadequate under controlling 9 precedent to carry Defendants’ burden of proof. See, e.g., Trinity Lutheran Church of Columbia, 10 Inc. v. Comer, 137 S. Ct. 2012, 2019 n.1 (2017) (holding that the State of Missouri’s change to 11 the challenged policy did not moot the case where the State faced no barrier to reverting to its 12 prior policy); McCormack v. Herzog, 788 F.3d 1017, 1025 (9th Cir. 2015) (“[W]hile a statutory 13 change ‘is usually enough to render a case moot,’ an executive action that is not governed by any 14 clear or codified procedures cannot moot a claim.” (citation omitted)); Rosebrock v. Mathis, 745 15 F.3d 963, 972 (9th Cir. 2014) (“[W]e are less inclined to find mootness where the ‘new 16 policy . . . could be easily abandoned or altered in the future.’” (citation omitted) (alteration in 17 original)). 18 19 Second, even the point Defendants seek to prove—that the suspensions are “no longer in effect”—remains unclear on the present record, and unnecessarily so. As previously noted, the 20 21 22 23 24 25 26 Court can take judicial notice of facts beyond the pleadings on a facial attack, those facts must meet the standard of Federal Rule of Evidence 201(b), and the Nielsen Memo’s reference to the “prioritization” not being “renewed” is too ambiguous to meet that standard. That said, the Nielsen Memo does support the conclusion that the SAO suspension did not expire “by its terms,” as it treats the SAO review and the “prioritization set forth in the [Agency Memo]” as distinct concepts, and describes only the former as “no longer in effect by its terms.” ECF No. 145-2 at 4 (“The 90 day-review of SAO countries, as provided in the [Agency Memo], is no longer in effect by its terms, and the prioritization set forth in the [Agency Memo] is not hereby renewed.”). JFS PLS.’ OPP’N TO DEFS.’ MOT. TO DISMISS & DISSOLVE PRELIM. INJ. AS MOOT (No. 17-cv-1707-JLR) – 16 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 146 Filed 06/19/18 Page 22 of 25 1 Agency Memo is inexplicably oblique on the fact it is imposing a suspension on SAO refugees— 2 even while it exhibits no hesitation in characterizing § 6 of EO-2 as a “suspension” of USRAP, 3 ECF No. 145-1 at 1—and the Nielsen Memo is even more opaque, stating in relevant part only 4 that “the prioritization set forth in the [Agency Memo] is not hereby renewed,” ECF No. 145-2 at 5 4. Throughout their Motion, Defendants treat the references to “prioritization” as if that is the 6 SAO suspension, but prioritizing and suspending are distinct concepts, and Defendants never 7 justify treating them interchangeably. Defendants cannot prove that a suspension is over and 8 cannot recur without first acknowledging that a suspension was imposed. 9 III. 10 JURISDICTIONAL DISCOVERY IS NECESSARY AND APPROPRIATE For the last several months, Plaintiffs have been requesting that Defendants detail the 11 actions they took to implement the SAO and FTJ suspensions, as well as the steps they took to 12 “undo” them, in order to evaluate the need for (and type of) further judicial relief. Defendants 13 have consistently refused, and their Motion to Dismiss maintains that refusal, notwithstanding 14 Defendants’ burden of proof. Plaintiffs respectfully submit that, following denial of Defendants’ 15 motion, and in light of that continued refusal, the most reasonable path forward in this case is to 16 permit Plaintiffs to take targeted jurisdictional discovery to determine what further remedial 17 action is needed to eliminate the ongoing effects of the SAO and FTJ suspensions. 13 The Ninth 18 Circuit has held that such a request “should ordinarily be granted where,” as here, “the 19 jurisdictional facts are contested or more facts are needed,” Laub, 342 F.3d at 1093, and district 20 courts in this Circuit regularly do so with regards to claims of mootness. 14 21 22 23 24 25 26 13 Such discovery would necessarily encompass issues of injunction compliance. See Section I, supra; JFS Pls.’ Mot. to Reinstate Mot. for Discovery on Compliance, ECF No. 131. 14 See, e.g., Friends of Animals v. U.S. Bureau of Land Mgmt., No. 2:16-cv-1670-SI, 2017 WL 1025669, at *4 (D. Or. Mar. 16, 2017) (“[Defendant] BLM has failed to carry its ‘heavy’ burden to show that all [the plaintiff]’s claims are necessarily moot with or without discovery. ‘Pertinent facts bearing on the question of jurisdiction are controverted’ in this case; thus, leave for [the plaintiff] to conduct limited discovery is appropriate.” (citations omitted)); Johnson v. Jacobs, No. 2:14-cv-02323-JAM-EFB, 2015 WL 1607986, at *3 (E.D. Cal. Apr. 9, 2015) (denying the defendant’s “motion to dismiss for lack of jurisdiction without prejudice in JFS PLS.’ OPP’N TO DEFS.’ MOT. TO DISMISS & DISSOLVE PRELIM. INJ. AS MOOT (No. 17-cv-1707-JLR) – 17 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 146 Filed 06/19/18 Page 23 of 25 It is Plaintiffs’ sincere hope that, following that discovery, the parties will be able to 1 2 come to a mutual agreement on the additional actions needed, if any, to eliminate the ongoing 3 effects of suspending large portions of USRAP, without the further assistance of this Court. But 4 should Defendants continue to maintain, even after that discovery, that this case is moot, then at 5 least this Court would have a sufficient record on which to evaluate that argument. See id. at 6 1039. CONCLUSION 7 8 9 10 Plaintiffs respectfully request that Defendants’ Motion to Dismiss and Dissolve Preliminary Injunction as Moot be denied, and that this Court permit Plaintiffs to take jurisdictional discovery. 15 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 order to allow for discovery by both parties before the issue of mootness is addressed”); Ramirez v. Golden Creme Donuts, No. C 12-05656 LB, 2013 WL 6056660, at *3 (N.D. Cal. Nov. 15, 2013) (“The court concludes that the limited factual record here does not support deciding the issue before any discovery. This result is appropriate given that the ‘burden for demonstrating mootness is a heavy one.’” (citation omitted)). 15 In a footnote, Defendants request that this Court dismiss President Trump, claiming that “courts lack subject-matter jurisdiction to enjoin the President in the performance of his official duties.” Defs.’ Mot. at 14 n.4 (citing, inter alia, Franklin v. Massachusetts, 505 U.S. 788, 802-03 (1992) (plurality)). Given Plaintiffs have also sought declaratory relief, however, that argument (even if accepted) does not justify dismissing the President, as demonstrated by the case on which Defendants principally rely. See Franklin, 505 U.S. at 803 (plurality) (holding that there was no need to decide “whether injunctive relief against the President was appropriate” because the injury could be redressed by declaratory relief). JFS PLS.’ OPP’N TO DEFS.’ MOT. TO DISMISS & DISSOLVE PRELIM. INJ. AS MOOT (No. 17-cv-1707-JLR) – 18 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 146 Filed 06/19/18 Page 24 of 25 1 Respectfully submitted, 2 /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 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 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: June 19, 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 JFS PLS.’ OPP’N TO DEFS.’ MOT. TO DISMISS & DISSOLVE PRELIM. INJ. AS MOOT (No. 17-cv-1707-JLR) – 19 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 146 Filed 06/19/18 Page 25 of 25 CERTIFICATE OF SERVICE 1 2 I hereby certify that on June 19, 2018, I electronically filed the foregoing document with 3 the Clerk of the Court using the CM/ECF system which will send notification of such filing to all 4 of the registered CM/ECF users for this case. 5 6 7 I hereby declare under penalty of perjury of the laws of the State of Washington that the foregoing in true and correct. DATED this 19th day of June, 2018. 8 /s/ Lauren Watts Staniar 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 CERTIFICATE OF SERVICE (No. 17-cv-1707-JLR) – 1 Perkins Coie LLP 1201 Third Avenue, Suite 4900 Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000