Filed Date: Jan. 30, 2017
Closed Date: Nov. 9, 2018
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Washington Attorney General Bob Ferguson filed this federal lawsuit on January 30, 2017 against President Trump’s January 27, 2017, Executive Order (EO-1) barring legal immigrants and refugees from seven majority-Muslim countries from entering the U.S. and barring Syrian refugees indefinitely. The State filed a complaint and an emergency motion for a temporary restraining order in the U.S. District Court for the Western District of Washington. The State of Minnesota also signed on as a plaintiff.
The complaint argued that the state had an interest in protecting the “health, safety, and well-being of its residents” and “ensuring that its residents are not excluded from the benefits that flow from participation in the federal system.” A series of declarations also filed that day from officials at Washington State University, Amazon.com, Expedia, and the University of Washington all articulated the negative impact their students and employees, as well as the overall institutions, would experience as a result of EO-1. The complaint alleged that the order violated Fifth Amendment equal protection and due process rights, the First Amendment Establishment Clause, the Immigration and Nationality Act, the Foreign Affairs Reform and Restructuring Act, the Religious Freedom Restoration Act, and the Administrative Procedure Act. The plaintiffs sought declaratory and injunctive relief and a temporary restraining order. The case was assigned to Judge James Robart.
On February 3, 2017, the court granted the temporary restraining order. By its explicit terms, the court’s order applied nationwide and operated against the 7-country travel limits, the 120-day stay on the U.S. refugee program, and the indefinite ban on Syrian refugees. As a result, U.S. Customs and Border Protection (CBP) began to let people on planes and into the country.
Late in the evening on February 4, the Department of Justice sought a stay of Judge Robart's TRO pending appeal in the United States Court of Appeals for the Ninth Circuit. The Ninth Circuit denied an immediate stay and set an expedited briefing schedule. The plaintiffs' opposition and the government's reply were both due February 6.
The plaintiffs' opposition included a sworn declaration by 10 former national security officials (Madeleine K. Albright, Avril D. Haines, Michael V. Hayden, John F. Kerry, John E. Mclaughlin, Lisa O. Monaco, Michael J. Morell, Janet A. Napolitano, Leon E. Panetta, Susan E. Rice) arguing that no particular threat justified EO-1, and that the Order undermined rather than assisted national security. Through February 6, additional organizations filed amicus briefs, and the federal government filed its reply brief. Back in the district court, the parties additionally submitted a joint status report proposing a briefing schedule for the plaintiffs' motion for a preliminary injunction.
On February 7, the Ninth Circuit heard oral argument on the federal government's motion to stay the TRO. On February 9, the Ninth Circuit denied the stay. The court rejected the government's argument that the EO was unreviewable and found that the government had not demonstrated that it was likely to win the case. Accordingly, the district court's restraining order, which the Ninth Circuit deemed a preliminary injunction in operation (notwithstanding the district court’s label of a TRO), remained in effect. The court set an expedited briefing schedule for the appeal of the preliminary injunction, over the course of March 2017.
On February 10, a Ninth Circuit judge requested (without prompting by any party) that the 24 judges of the Circuit vote whether to review the matter en banc. The Ninth Circuit gave the parties until February 16 to brief the court about an en banc rehearing.
After the Ninth Circuit declined to stay the TRO, the district court directed the parties to file a joint status update by February 12. In a telephone conference on February 13, the government explained that it planned to pursue further review in the Ninth Circuit and sought to stay any further proceedings in the district court. The plaintiffs urged the district court to "proceed directly to discovery." The next day, the court ordered the parties to proceed with the litigation while the government’s appeal was pending with the Ninth Circuit and directed the parties to proceed to discovery.
Just a day later, however, the government changed its mind about its plans. In a filing in the Ninth Circuit, it explained that:
"Rather than continuing this litigation, the President intends in the near future to rescind the Order and replace it with a new, substantially revised Executive Order to eliminate what the panel erroneously thought were constitutional concerns. In so doing, the President will clear the way for immediately protecting the country rather than pursuing further, potentially time-consuming litigation. Under the unusual circumstances presented here—including the extraordinarily expedited proceedings and limited briefing to the panel, the complexity and constitutional magnitude of the issues, the Court’s sua sponte consideration of rehearing en banc, and respect for the President’s constitutional responsibilities—the government respectfully submits that the most appropriate course would be for the Court to hold its consideration of the case until the President issues the new Order and then vacate the panel’s preliminary decision."
En banc proceedings before the court were then stayed pending further orders.
Meanwhile, the State of Oregon filed a motion to intervene on February 22. Oregon argued that "the States of Washington and Minnesota are not in a position to speak to the injuries suffered in Oregon" and that "[i]f Washington and Minnesota prevail in this case, as they should, it is possible that this Court may craft a more limited remedy, short of a nationwide injunction, that will not address the harm to Oregon’s unique sovereign interests."
On Feb. 24, the government filed a motion in the Ninth Circuit to hold proceedings in abeyance pending further order of the court. The government argued that the court's order staying en banc proceedings "reflects the appropriateness of awaiting further developments before committing further resources of the parties or the Court to appellate litigation." The plaintiffs, pointing to the apparent misunderstanding between the Department of Justice and the Administration concerning whether EO-1 would be repealed and replaced, argued that the motion to hold proceedings in abeyance should be denied and appellate briefing on the merits of the preliminary injunction should continue as planned. The Ninth Circuit denied the motion to hold proceedings in abeyance on February 27.
On March 6, however, the President rescinded EO-1 and replaced it with a narrower one, Executive Order 13780 (EO-2). That day, the government filed notice of the new Order and, the next day, the government moved to dismiss its Ninth Circuit appeal. The plaintiffs consented, and the court granted the motion on March 8. On March 15, the Court denied en banc review and, explaining that no party had formally moved for vacatur, retained the opinion rejecting the stay as a precedential, published opinion. Several attached opinions expressed the view that the panel opinion was wrong. Two judges filed concurrences emphasizing that the dissents were addressing issues not before the court, since the appeal had been withdrawn. (The formal mandate ending appellate jurisdiction issued on Mar. 24.)
Back in the district court, the court granted the State of Oregon's Motion to Intervene on March 9. On the same day, both of the original plaintiffs filed a response to EO-2. The State of Washington argued that the President could not evade an injunction by simply withdrawing EO-1 and replacing it with EO-2. More specifically, Washington argued that two of the second EO's provisions, (1) the 90-day ban on entry of persons from several Muslim-majority countries; and (2) the 120-day suspension of the U.S. Refugee Admissions Program, were simply reinstated versions of provisions that the court had already enjoined. Washington argued that the court should confirm that its original injunction continues to apply to the reissued provisions. Minnesota noted in its response that the government could not unilaterally modify a preliminary injunction by issuing a new executive order.
The district court issued an order on March 10. In it, the court noted that, though the parties had respectively filed a "notice" and a "response" regarding EO-2, neither party had filed a motion to either modify or enforce the injunction. The court declined to decide any of the issues raised in the parties' filings until a motion was filed. The court further declined to resolve the parties' dispute regarding the applicability of the prior injunction to EO-2 until the plaintiffs filed an amended complaint.
Following those instructions, the plaintiffs filed a motion to amend their complaint, along with an emergency motion to enforce the court's February 3 preliminary injunction. The proposed second amended complaint was on behalf of Washington, California, Maryland, Massachusetts, New York, and Oregon. In the amended complaint, the plaintiffs contended that EO-2 violated the First, Fifth, and Tenth Amendments, as well as the Immigration and Nationality Act, the Religious Freedom Restoration Act, and the Administrative Procedure Act. The plaintiffs—arguing that EO-2 would have a detrimental impact on state operations related to tourism and hospital and university recruiting—sought declaratory and injunctive relief against sections 2(c), 3(c), 5(a)-(e), 6(a), and 6(b) of the Order. The court ordered the government to file a response to the plaintiffs' emergency enforcement motion by the end of the day on March 14. In its response, the government argued that the court's injunction was specific to EO-1, and that the provisions of EO-2 were "substantially different" than the previously-enjoined provisions.
On March 15, as a backup should the court decline to rule on its March 13 emergency motion, the plaintiffs filed an emergency motion for a temporary restraining order. The plaintiff’s, rather than presenting new substantive arguments, stated that they “joined fully in the arguments for emergency relief advanced by the plaintiffs in Ali v. Trump,” a related case in which Judge Robart was set to adjudicate a similar emergency motion. In Hawaii v. Trump, another federal case about EO-2 filed on March 15, the U.S. District Court for the District of Hawaii granted a temporary restraining order that enjoined the implementation of Sections 2 and 6 of the new Order nationwide. This was the first national injunction of EO-2.
On March 16, the district court in this case allowed the plaintiffs to file their second amended complaint, described above, but denied the plaintiffs' emergency motion to enforce the court's prior preliminary injunction against Sections 2(c) and 6(a) of EO-2. The court referred to the "substantial distinctions" between EO-1and EO-2, namely EO-2’s delayed implementation, its exclusion of Iraq in the list of banned countries, and its elimination of the religious minority preference. On March 17, the court stayed the plaintiffs' motion for a TRO so long as the TRO entered in Hawaii v. Trump or a preliminary injunction of equal scope remained in effect. The court noted that, should circumstances change such that lifting the stay is warranted, either party could move to do so.
The government appealed Hawaii v. Trump to the Ninth Circuit on March 30. On the same day, it also filed a motion to stay district court proceedings in the present case pending resolution of that appeal. The plaintiffs disagreed, asking for a discovery plan and briefing deadlines. The court did not rule on the motion to stay but postponed the government’s deadline to respond to the second amended complaint until seven days after the court ruled on that motion. On May 17, the court granted defendants' motion to stay all proceedings in the case, pending resolution of the Hawaii v. Trump appeal. Any party could have moved to lift the stay should circumstances have warranted it.
The Supreme Court was set to hear both Hawaii and IRAP v. Trump on October 10. EO-2, however, expired on September 24. That same day, the Trump Administration signed Proclamation 9645 (EO-3) indefinitely restricting travel from the following eight countries: Chad, Iran, Libya, North Korea, Somalia, Syria, Venezuela and Yemen. The Supreme Court cancelled the October 10 hearing and remanded the case, as the challenge was mooted.
Back in district court, the plaintiffs filed a motion requesting that the district court lift the May 17 stay and allow the plaintiffs to file an amended complaint and seek emergency relief against EO-3 in the form of a temporary restraining order. On October 12, the federal government filed a notice of its intent to oppose the TRO. That same day, Judge Robart granted the plaintiffs' motion to lift the stay and to amend their complaint. The court scheduled a hearing for October 30 on the TRO motion. The court directed the defendants to submit their response by October 23 and the plaintiffs to reply by October 26.
The plaintiffs filed their third amended complaint on October 16. They argued that EO-3 would prevent state residents—including U.S. citizens and lawful permanent residents—from seeing spouses, parents, or other family members; would cause the states' colleges and universities to lose students, tuition revenue, and faculty/staff; would cause the states to lose tourism revenue; would deny the states' hospitals the opportunity to compete for top medical residents and physicians; would cost the states' businesses talented job applicants and revenue; would cause the states to lose tax revenue; and would undermine the states' sovereign interests in maintaining the separation between church and state, upholding the states' non-discrimination policies, and remaining "welcoming place[s] for immigrants."
On Oct. 17, the plaintiffs filed a notice with the court. In light of the Hawaii district court's Oct. 17 order granting a nationwide temporary restraining order against EO-3, the plaintiffs asked the court to (1) maintain the Oct. 30 hearing date and issue a ruling on the states' motion even though preliminary relief had been granted in Hawaii and (2) to treat the states' motion for a TRO as a motion for a PI. The plaintiffs emphasized the number of people that they represented who would be harmed by EO-3 and argued that their harms are different in both degree and kind from those presented in other cases.
Shortly thereafter, the government filed its response brief arguing that the plaintiffs' challenges were not justiciable, that EO-3 fit within the President's broad constitutional and statutory authority to suspend the entry of aliens abroad, and that EO-3 was constitutional because it provided a facially legitimate and bona fide reason for excluding aliens and did not violate the Establishment and Equal Protection clauses. On Oct. 27, the district court stayed its decision on the plaintiffs' TRO motion so long as the preliminary injunction in Hawaii "or a [preliminary injunction] of identical or broader scope" remained in place.
On November 13, 2017, the Supreme Court denied the plaintiffs' February 11 petition for a writ of certiorari. However, the Supreme Court heard and decided Hawaii––which came back up after the issuance of EO-3––in favor of the government, holding that the executive branch had broad discretion over suspending immigration. As a result of the Supreme Court’s opinion in Hawaii and after very little other activity, Washington gave notice of voluntary dismissal on November 5, 2018, though the other states remained parties. The remaining states voluntarily dismissed the case on November 9. The case is now closed.
Virginia Weeks (1/31/2017)
Julie Aust (11/28/2017)
Jamie Kessler (2/14/2017)
Ava Morgenstern (2/23/2017)
Virginia Weeks (11/12/2018)
Eva Richardson (4/22/2019)
Evan Gamza (5/21/2022)
For PACER's information on parties and their attorneys, see: https://www.courtlistener.com/docket/4577101/parties/state-of-washington-v-trump/
Adams, Matthew (Matt) Hyrum (Washington)
Amdur, Spencer (New York)
Baker, Natasha J. (California)
Balderas, Hector (New Mexico)
Barajas, Lakendra (New York)
Bea, Carlos T. (California)
Berzon, Marsha Siegel (California)
Bybee, Jay S. (Nevada)
Canby, William Cameron Jr. (Arizona)
Clifton, Richard R. (Hawaii)
Friedland, Michelle Taryn (California)
Kozinski, Alex (California)
Reinhardt, Stephen Roy (California)
Robart, James L. (Washington)
Thomas, Sidney Runyan (Montana)
See docket on RECAP: https://www.courtlistener.com/docket/4577101/state-of-washington-v-trump/
Last updated Sept. 21, 2023, 3 a.m.
State / Territory: Washington
Filing Date: Jan. 30, 2017
Closing Date: Nov. 9, 2018
Case Ongoing: No
States of Washington, Minnesota, California, Maryland, Massachusetts, New York, and Oregon
Public Interest Lawyer: Yes
Filed Pro Se: No
Class Action Sought: No
Class Action Outcome: Not sought
Causes of Action:
Prevailing Party: Plaintiff
Nature of Relief:
Source of Relief:
Order Duration: 2017 - 2017
Content of Injunction: