Case 2:17-cv-00178-JLR Document 154 Filed 07/23/18 Page 1 of 5

The Honorable James L. Robart

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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JOHN DOE, et al.,
Plaintiffs,

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v.
DONALD TRUMP, et al.,
Defendants.

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JEWISH FAMILY SERVICE OF
SEATTLE, et al.,
Plaintiffs,

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Civil Action No. 2:17-cv-00178JLR

v.
DONALD TRUMP, et al.,
Defendants.

Civil Action No. 2:17-cv-01707JLR
DEFENDANTS’ RESPONSE TO DOE
PLAINTIFFS’ SURREPLY TO
DEFENDANTS’ MOTION TO DISMISS
AND DISSOLVE PRELIMINARY
INJUNCTION AS MOOT
(RELATING TO CASE NO. 2:17-cv00178JLR)

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DEFS.’ RESP. TO DOE PLAINTIFFS’ SURREPLY
Doe, et al. v. Trump, et al., No. 2:17-cv-00178 (JLR)
Jewish Family Service of Seattle, et al. v. Trump, et al., No. 2:17-cv-01707 (JLR)

U.S. DEPARTMENT OF JUSTICE
20 Massachusetts Ave., NW
Washington, DC 20530
Tel: (202) 514-3259

 Case 2:17-cv-00178-JLR Document 154 Filed 07/23/18 Page 2 of 5

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Doe Plaintiffs request that this Court strike Section IV of Defendants’ Reply in Support
of Motion to Dismiss, ECF No. 150, which addresses why the President should be dismissed from

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this action. See Surreply, ECF No. 152. They assert that the issue was not “properly raise[d]” in

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Defendants’ opening brief because it was “only mention[ed]” in a footnote. Surreply at 1. Yet

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no rule of law applicable here forbids arguments in a footnote, see Williams v. Woodford, 384

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F.3d 567, 587 n.5 (9th Cir. 2004) (rejecting argument that claim was waived because it was
“limited to a footnote”), and the record in this action belies any such contention. For example,
Doe Plaintiffs’ most recent opposition brief contained 27 footnotes. See ECF No. 147. In

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presenting their legal argument in their opening brief, Defendants explained that the Court lacked

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subject-matter jurisdiction to enjoin the President and presented authority to that effect.

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Defendants’ argument was clear and should have put both parties on notice. In fact, JFS Plaintiffs

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responded to the argument. See JFS Pls.’ Opp’n to Defs.’ Mot. to Dismiss at 18 n.15, ECF No.

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146. But in so doing, JFS Plaintiffs misread the case law and claimed without explanation that
declaratory relief made the President a proper party. Defendants had every right—and an
obligation given the jurisdictional issue—to respond.

Doe Plaintiffs rely on readily

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distinguishable cases that do not counsel otherwise, as those cases involved parties waiving

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nonjurisdictional arguments by tucking them in footnotes or failing to develop them adequately.

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E.g., Recycle for Change v. City of Oakland, 856 F.3d 666, 673 (9th Cir. 2017) (“terse one-

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sentence footnote”). Moreover, those cases involved appeals, which typically entail a single
round of briefing in which parties may select from a pool of preserved arguments. By contrast,
district court proceedings often involve multiple rounds of briefing, and potentially dispositive

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arguments should be addressed at the earliest opportunity—provided each party has a fair chance

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to present its position, as the parties did here.

DEFS.’ RESP. TO DOE PLAINTIFFS’ SURREPLY. - 1
Doe, et al. v. Trump, et al., No. 2:17-cv-00178 (JLR)
Jewish Family Service of Seattle, et al. v. Trump, et al., No. 2:17-cv-01707 (JLR)

U.S. DEPARTMENT OF JUSTICE
20 Massachusetts Ave., NW
Washington, DC 20530
Tel: (202) 514-3259

 Case 2:17-cv-00178-JLR Document 154 Filed 07/23/18 Page 3 of 5

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Even if Doe Plaintiffs could point to a rule saying that an argument in district court
proceedings cannot appear in a footnote (and Doe Plaintiffs have identified no such rule),

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Defendants’ argument here is jurisdictional and thus cannot be waived. See United States v.

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Cotton, 535 U.S. 625, 630 (2002); see also In re U.S. Postal Serv. Privacy Act Litig., No. MD08-

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1937JLR, 2009 WL 2710261, at *2 (W.D. Wash. Aug. 25, 2009) (Robart, J.) (“the defense of lack

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of subject matter jurisdiction cannot be forfeited or waived and is properly asserted at any time
during the proceedings”). This Court already recognized at the preliminary injunction stage that
it “lack[s] jurisdiction to enjoin the President.” Doe v. Trump, 288 F. Supp. 3d 1045, 1086 n.32

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(W.D. Wash. 2017) (citation omitted); see also, e.g., Newdow v. Roberts, 603 F.3d 1002, 1013

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(D.C. Cir. 2010) (“With regard to the President, courts do not have jurisdiction to enjoin him

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. . . .”). And any lingering uncertainty about whether Plaintiffs’ claims as against the President

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pose an Article III jurisdictional problem must be resolved before allowing the claims to proceed.

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For that reason, the relief Doe Plaintiffs apparently seek—to have this Court disregard
Defendants’ argument concerning dismissal of the President—is perplexing. If the Court granted
that requested relief, Defendants would be obligated to file another motion presenting the issue,

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see Clear Channel Outdoor v. City of Lakewood, No. 04-5427 FDB, 2005 WL 1354609, at *2

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(W.D. Wash. June 3, 2005) (subject matter jurisdiction “may be raised at anytime by one of the

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parties by motion or in the responsive pleadings”), provided the Court did not rule on it sua sponte,

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see Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 278 (1977) (“we are obliged
to inquire sua sponte whenever a doubt arises as to the existence of federal jurisdiction.”),
superseded by statute on other grounds.
The Court should deny the relief requested in Doe Plaintiffs’ Surreply.
DATED: July 23, 2018

Respectfully submitted,

DEFS.’ RESP. TO DOE PLAINTIFFS’ SURREPLY. - 2
Doe, et al. v. Trump, et al., No. 2:17-cv-00178 (JLR)
Jewish Family Service of Seattle, et al. v. Trump, et al., No. 2:17-cv-01707 (JLR)

U.S. DEPARTMENT OF JUSTICE
20 Massachusetts Ave., NW
Washington, DC 20530
Tel: (202) 514-3259

 Case 2:17-cv-00178-JLR Document 154 Filed 07/23/18 Page 4 of 5

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CHAD A. READLER
Acting Assistant Attorney General
AUGUST E. FLENTJE
Special Counsel
JENNIFER D. RICKETTS
Director, Federal Programs Branch
JOHN R. TYLER
Assistant Director, Federal Programs Branch
/s/ Joseph C. Dugan
MICHELLE R. BENNETT
DANIEL SCHWEI
KEVIN SNELL
JOSEPH C. DUGAN
Trial Attorneys
U.S. Department of Justice
Civil Division, Federal Programs Branch
20 Massachusetts Avenue, NW
Washington, DC 20530
Tel: (202) 514-3259
Fax: (202) 616-8470
Email: joseph.dugan@usdoj.gov
Attorneys for Defendants

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DEFS.’ RESP. TO DOE PLAINTIFFS’ SURREPLY. - 3
Doe, et al. v. Trump, et al., No. 2:17-cv-00178 (JLR)
Jewish Family Service of Seattle, et al. v. Trump, et al., No. 2:17-cv-01707 (JLR)

U.S. DEPARTMENT OF JUSTICE
20 Massachusetts Ave., NW
Washington, DC 20530
Tel: (202) 514-3259

 Case 2:17-cv-00178-JLR Document 154 Filed 07/23/18 Page 5 of 5

CERTIFICATE OF SERVICE

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I certify that on July 23, 2018, a copy of the foregoing document was electronically filed
with the Clerk of the Court using the CM/ECF system, which will send notification of such filing
to all counsel of record.
DATED this 23rd day of July, 2018.
/s/ Joseph C. Dugan
JOSEPH C. DUGAN

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DEFS.’ RESP. TO DOE PLAINTIFFS’ SURREPLY. - 4
Doe, et al. v. Trump, et al., No. 2:17-cv-00178 (JLR)
Jewish Family Service of Seattle, et al. v. Trump, et al., No. 2:17-cv-01707 (JLR)

U.S. DEPARTMENT OF JUSTICE
20 Massachusetts Ave., NW
Washington, DC 20530
Tel: (202) 514-3259