Case 1:18-cv-02435-BMC Document 75 Filed 12/12/18 Page 1 of 4 PageID #: 3252
U.S. Department of Justice
United States Attorney
Eastern District of New York
271 Cadman Plaza East, 7th Floor
Brooklyn, New York 11201

December 12, 2018
BY ECF
Honorable Brian M. Cogan
United States District Judge
Eastern District of New York
225 Cadman Plaza East
Brooklyn, New York 11201
Re:

Alharbi v. Miller, No. 18-CV-2435 (BMC)

Dear Judge Cogan:
On November 29 – the day after seeking a 21-day extension of time to oppose the
Government’s motion to dismiss, owing “to a larger than normal surge of briefing deadlines” (ECF
No. 73) – Plaintiffs filed what they call a “motion for preliminary injunction and to substitute
defendant,” accompanied by a 33-page brief. See ECF No. 74. Despite its title, this motion does
not actually seek any emergency relief or provisional remedies on behalf of any Plaintiff relating
to any claim articulated in the Amended Complaint. 1 Rather, it appears to be a motion under Fed.
R. Civ. P. 25(d) seeking to substitute Deputy Attorney General Rod J. Rosenstein rather than
Acting Attorney General Matthew G. Whitaker in place of former Attorney General Jefferson B.
Sessions III as an official capacity defendant, based on the claim that Mr. Rosenstein rather than
Mr. Whitaker is the true Acting Attorney General. The motion is frivolous: it is a transparent
attempt to divert this Court’s resources to a meaningless sideshow utterly untethered to the merits
of this case. 2 It should be summarily rejected, and the Attorney General should instead be
dismissed from the case and removed from the caption altogether.
As a threshold matter, there is no such thing as a motion for substitution of a public officer
under Rule 25(d). While Rule 25(a) provides that any party (or a decedent’s successor) may move
for substitution “if a party dies and the claim is not extinguished,” Rule 25(d) stipulates that “when
a public officer who is a party in an official capacity dies, resigns, or otherwise ceases to hold
1

Because the motion does not actually seek provisional remedies, but instead effectively seeks to amend the
complaint yet again (see, e.g., Pl. Mot. (ECF No. 74), at 2-3 (articulating new claims for relief not contained in the
Amended Complaint)), a pre-motion conference was required before Plaintiffs could proceed to file their motion. See
your Honor’s Individual Practices, Rule III.A.2. Plaintiffs cannot circumvent this requirement simply by
disingenuously styling their filing a “motion for preliminary injunction.” Moreover, the annexed brief substantially
and without leave exceeds this Court’s 25-page limit. See id., Rule III.B.1.
2
This is not the first time counsel has brought such a motion. On November 28, 2018, the Second Circuit
denied counsel’s motion for a preliminary injunction regarding the Acting Attorney General’s participation in an
appeal, and instead substituted Mr. Whitaker for Mr. Sessions in the caption. See Alsomairi v. Dawson, 18-2359, ECF
Nos. 17, 21 (2d Cir. Nov. 28, 2018).

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Letter to Judge Cogan
Alharbi v. Miller, No. 18-CV-2435 (BMC)
December 12, 2018
Page 2

office while the action is pending” his “successor is automatically substituted as a party” without
the need for a motion, or even a court order: “The court may order substitution at any time, but
the absence of such an order does not affect the substitution.” Fed. R. Civ. P. 25(d) (emphasis
added). The rule also expressly provides that even if the wrong individual is substituted, no relief
is warranted: “Later proceedings should be in the substituted party’s name, but any misnomer not
affecting the parties’ substantial rights must be disregarded.” Id.
Rather than substituting anyone for former Attorney General Sessions under Rule 25(d),
the Court should dismiss the Attorney General from the case altogether. Although the Attorney
General is named in the Complaint as a defendant in his official capacity, the pleading does not
contain a single allegation relating to him, other than an irrelevant statement that “Defendant
Sessions has been a vocal supporter of President Trump’s efforts to bar Muslims from immigrating
to the United States” and an equally meaningless contention that Mr. Sessions once “praised a
1924 law”; both allegations were made in the context of Plaintiffs’ frivolous claim under 42 U.S.C.
§ 1985, which is directed at defendants in their individual rather than official capacities. Am.
Compl. ¶¶ 584-85; see Gov’t Mot. to Dismiss Am. Compl. (ECF No. 72), at 29-32 & n.14.
The absence of allegations in the pleading relating to the Attorney General ought not be
surprising, because the Attorney General does not adjudicate visa applications made by aliens
abroad or determine whether any visa applicant covered by Presidential Proclamation 9645 ought
to receive a discretionary waiver. Plaintiffs’ claims for relief solely arise out of the adjudication
of immigrant visa applications by consular officers in Djibouti, including those officers’
consideration of the Plaintiffs for Proclamation waivers. Whether cast as mandamus or APA
review, the only proper defendants on such claims – to the extent any of them could conceivably
be justiciable – would be the Secretary of State and the Department of State. See 5 U.S.C. §§ 702,
703; 28 U.S.C. § 1361. In the event the Court were to grant Plaintiffs any relief on their claims,
only the State Department and its employees would be involved in effectuating that relief. The
Attorney General would play no part in executing any mandate from this Court, other than in the
Department of Justice’s advisory role as outside counsel to the State Department.
The Attorney General should therefore be dismissed from this case altogether and removed
forthwith from the caption. The same is true of the President, his adviser Steven Miller, the
Department and Secretary of Homeland Security, the FBI and its Director, and Customs and
Border Protection. None of these officials or agencies has authority to adjudicate Plaintiffs’ visa
applications or to consider any Plaintiff for a discretionary Proclamation waiver. None of these
officials or agencies would have any involvement in effectuating any order this Court would issue
in this case. For most of these officials and agencies (DHS, Secretary Nielsen, the FBI, Director
Wray, CBP), the Amended Complaint does not contain any allegations at all that are directed to
them; for the others (the President and Mr. Miller), the handful of allegations in the pleading are
not remotely relevant to Plaintiffs’ actual claims for relief. See Gov’t Mot. to Dismiss Am. Compl.
(ECF No. 72), at 29-32.
Moreover, although Plaintiffs cast their motion as one directed to the Attorney General as
a defendant named in the case caption, most of their arguments actually relate to the Department

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Letter to Judge Cogan
Alharbi v. Miller, No. 18-CV-2435 (BMC)
December 12, 2018
Page 3

of Justice’s role as counsel for the defendants. See, e.g., Pl. Mot. (ECF No. 74), at 2 (referring to
“the Attorney General’s plenary authority over federal litigation” and to “any positions that the
Attorney General takes regarding the complaint”); Pl. Mem. (ECF No. 74-1), at 1 (referring to the
Attorney General’s responsibility to “oversee this litigation”), 32-33 (referring to the Attorney
General’s supervision of the Department of Justice in this litigation). Indeed, the only way
Plaintiffs’ motion could be seen as one for injunctive relief is to construe it as a motion to preclude
the Department of Justice from representing defendants in this case as long as Mr. Whitaker is the
Acting Attorney General. See Pl. Mot. at 3 (“enjoining Whitaker from supervising this matter as
Acting Attorney General”). Such a motion is nonsensical. Plaintiffs have no more standing to
contest who represents Defendants in this case than Defendants do to dictate who should represent
Plaintiffs. Plaintiffs certainly have no basis to argue that the identity of the Government’s counsel
or the manner in which the Attorney General supervises the Department’s litigation of this case
has any bearing on their substantive rights.
In any event, the Department of Justice’s authority (and mandate) to represent federal
agencies and officials in civil litigation is set by statute and applies regardless of who occupies the
position of Attorney General. See 28 U.S.C. §§ 515, 516, 519. While most functions of the
Department of Justice and its officers are “vested in the Attorney General,” 28 U.S.C. § 509, the
Attorney General need not, and in most cases does not, exercise those functions himself. This
includes the conduct of litigation. In fact, Congress has expressly authorized each United States
Attorney to “prosecute for all offenses against the United States” and “prosecute or defend, for the
Government, all civil actions, suits or proceedings in which the United States is concerned.” 28
U.S.C. § 547. Thus, where a U.S. Attorney’s Office is conducting criminal or civil litigation under
the direction and supervision of the U.S. Attorney, federal law expressly authorizes the Office’s
conduct of that litigation, without the need for any separate authorization from the Attorney
General. And not only does the U.S. Attorney have full legal authority to conduct this litigation
on behalf of Defendants, but his actions are supervised by the Deputy Attorney General—the very
Senate-confirmed officer who Plaintiffs claim must be Acting Attorney General pursuant to 28
U.S.C. § 508 and the Appointments Clause. So to the extent Plaintiffs assert that the Department
attorneys conducting this litigation should be subject to supervision by the Deputy Attorney
General, or should be answerable to a Senate-confirmed superior, that is already the case. See 28
C.F.R. § 0.15 (vesting Deputy Attorney General with “all the power and authority of the Attorney
General,” except where laws require Attorney General to exercise authority personally). Thus,
whether the Acting Attorney General has been validly designated, and hence whether he could
provide lawful authorization for the conduct of this litigation, is simply irrelevant.
In light of the foregoing, the Government does not believe it necessary to respond to
Plaintiffs’ arguments concerning the identity of the incumbent Acting Attorney General, which
uniformly lack merit. The irrelevance of those arguments is obvious from the fact that most of
Plaintiffs’ motion has been lifted verbatim from a brief filed in Maryland v. United States, 18-cv2849, ECF No. 6-1 (D. Md. 2018), including its reference to “the Department of Justice’s position
regarding 26 U.S.C. § 5000A,” a statute that relates not to immigrant visas but to the requirement
to maintain minimum essential coverage under the Patient Protection and Affordable Care Act.
Moreover, Plaintiffs’ putative challenge to the legality of Mr. Whitaker’s temporary appointment

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Letter to Judge Cogan
Alharbi v. Miller, No. 18-CV-2435 (BMC)
December 12, 2018
Page 4

will likely soon become moot, as the President recently announced plans to nominate William P.
Barr to be Attorney General. If the Court nevertheless seeks the Government’s views on the
substantive issues raised in Plaintiffs’ brief, we respectfully ask to be given until January 18, 2019,
to submit a full brief in response to Plaintiffs’ motion.
We appreciate the Court’s time and considered attention to this matter.
Respectfully submitted,
RICHARD P. DONOGHUE
United States Attorney
Eastern District of New York
By:

cc (by ECF and email): Counsel for Plaintiffs

/s/ {FILED ELECTRONICALLY}
F. FRANKLIN AMANAT
Senior Counsel
JOSEPH A. MARUTOLLO
Assistant U.S. Attorney
(718) 254-6024/6288