Washington Attorney General Bob Ferguson filed this federal lawsuit on January 30, 2017 against President Trump’s Jan. 27, 2017 Executive Order (EO) barring legal immigrants and refugees from seven majority-Muslim countries from entering the US 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” as well as “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 the EO. The complaint alleged that the EO 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 complaint sought declaratory and injunctive relief; the plaintiffs also asked for a temporary restraining order to enjoin defendants, nationwide, from barring entry into the U.S. of immigrants and nonimmigrants pursuant to the EO.

The case was assigned to Judge James Robart, who held a hearing on Feb. 3, and granted the temporary restraining order in a written order, posted here. By its explicit terms, that 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 Feb. 4, the Department of Justice sought a stay of Judge Robart's TRO pending appeal in the 9th Circuit Court of Appeals. The Court of Appeals denied an immediate ("administrative") stay, and set a quick briefing schedule, with the plaintiffs' opposition and the government's reply both due Feb. 6.

The plaintiffs' opposition included a remarkable 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 the EO, and that the Order undermined rather than assisted national security.

Through Feb. 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 preliminary injunction.

On Feb. 7, the Ninth Circuit (Judge William Canby, Jr., Judge Richard Clifton, and Judge Michelle Friedland) heard oral argument on the federal government's motion to stay the TRO. Special Counsel at the U.S. Department of Justice August Fientje argued on behalf of the federal government, and Washington State Solicitor General Noah Purcell argued on behalf of the states. On Feb. 9, the Ninth Circuit denied the stay. The court rejected the government's argument that the EO was unreviewable, and found that the Department of Justice had not demonstrated that it was likely to win the case. Accordingly, the district court's temporary injunction, which the Ninth Circuit deemed a preliminary injunction in operation (notwithstanding that Judge Robart had labeled it a Temporary Restraining Order) would remain in effect. The court set an expedited briefing schedule for the appeal of the preliminary injunction, over the course of March 2017.

After the decision was announced, the President immediately tweeted "SEE YOU IN COURT, THE SECURITY OF OUR NATION IS AT STAKE!" However, on Feb. 10, news reports first stated that the federal government had decided not to seek immediate review in the Supreme Court, and then stated the opposite. That same day, a judge on the Ninth Circuit requested (without prompting by a party) that the 24 judges of the Circuit vote whether or not to review the matter "en banc" -- that is, using a larger panel of 11 judges, rather than the initial three. The Ninth Circuit gave the parties until Feb. 16 to file simultaneous briefs with their views about en banc review.

Back in the district court, also on Feb. 10, 2017, Judge Robart directed the parties to file a joint status update by Feb. 12, 2017. A telephone conference took place on Monday, Feb. 13, 2017 to discuss how the case would proceed in the district court. DOJ explained that it planned to pursue further review in the Ninth Circuit, and sought to postpone any further proceedings in the district court. The States, by contrast, urged the district court to "proceed directly to discovery." Both parties agreed that no further preliminary injunction briefing was necessary. On Feb. 14, 2017, Judge Robart ordered the parties to proceed with litigation. In his opinion, Judge Robart agreed with the states that litigation should continue while the defendant's appeal of the preliminary injunction was pending, and ordered to parties to proceed directly to discovery. In a Feb. 15 order, the court specified that the parties' joint status report was due Mar. 22, 2017.

Just a day later, however, the U.S. changed its mind about its plans. In a filing in the Ninth Circuit, the DOJ 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 in the district court on Feb. 22, along with a series of declarations in support of the motion. The motion 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 Feb. 16 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 immediately countered that the motion to hold proceedings in abeyance should be denied: "[a]lthough Defendants contend that this case presents urgent national security issues, they now request indefinite delay of the Ninth Circuit proceedings." The plaintiffs also noted that "there appears to have been a lack of communication between the Department of Justice and the White House" regarding whether the government plans to repeal the existing EO or defend it on appeal. The plaintiffs further argued that, given that the government's motion does not make new representations about whether the President intends to rescind the EO, and given that the White House has "repeatedly stated that the Executive Order will not be rescinded," there is no justification for the abeyance request. For these reasons, plaintiffs said, appellate briefing on the merits of the preliminary injunction should continue as planned.

On Feb. 27, the Ninth Circuit denied the motion to hold proceedings in abeyance. However, on its own motion, the court extended the appellate briefing schedule, so that the opening brief would be due on Mar. 10; the answering brief on Mar. 31; and an optional reply brief on Apr. 5.

Back in the district court, on Feb. 28, the parties held a telephone conference regarding the defendants' request to extend disclosure and status report deadlines. The FRCP 26(f) Conference Deadline was extended to Mar. 15; the Initial Disclosure Deadline to Mar. 29; and the Joint Status Report to Apr. 5.

On Mar. 6, the President rescinded the Jan. 27 EO and replaced it with a narrower one, Executive Order 13780. On the same day, the government filed court notice of the new EO in this case.

On Mar. 7, the government, with the plaintiffs' consent, moved to dismiss its Ninth Circuit appeal. The court granted this motion on Mar. 8. On Mar. 15, the Court denied en banc review, and also (explaining that no party had formally moved for vacatur) retained the opinion rejecting a stay as a precedential, published opinion. There were several separate opinions filed: Three dissents, by Judge Bybee, Judge Kozinski, Judge Bea (each joined by each other and by Judge Callahan and Judge Ikuta), expressing the view that the panel opinion was wrong. Judge Kozinski Judge Bea. Judge Reinhardt and Judge Berzon each filed concurrances 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, on Mar. 9, the court granted the State of Oregon's Motion to Intervene. Also on Mar. 9, both the plaintiff State of Washington and the plaintiff State of Minnesota filed a Response to the government's new EO. The State of Washington argued that the President could not evade an injunction by simply withdrawing the enjoined EO and issuing a new one. 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 the 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. The plaintiff State of Minnesota noted in its Response that the government could not unilaterally modify a preliminary injunction by issuing a new EO.

On Mar. 10, Judge Robart issued an "Order Regarding Defendants' Notice of the Filing of a New Executive Order and Plaintiffs' Response." In it, the court noted that, though the parties had respectively filed a "notice" and a "response" regarding the new EO, 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 the new EO until the plaintiffs filed an amended complaint.

Following those instructions, on Mar. 13, the plaintiffs filed a motion to amend their complaint, along with an emergency motion to enforce the court's Feb. 3 preliminary injunction. The proposed second amended complaint was on behalf of Washington, California, Maryland, Massachusetts, New York, and Oregon. In the amended complaint, plaintiffs contended that the new EO 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 sought declaratory and injunctive relief; specifically, the plaintiffs requested that the defendants be enjoined from implementing or enforcing Sections 2(c), 3(c), 5(a)-(c), 5(d), 5(e), 6(b), and 6(a) of the EO, which they asserted would otherwise have a detrimental economic impact on state operations, specifically with regard to tourism and to hospital and university recruiting.

The court ordered the U.S. to file a response to the plaintiffs' emergency enforcement motion by the end of the day on Mar. 14. In that Mar. 14 response, the U.S. argued that the court's injunction was specific to the first EO, and that the policies in the new EO were substantially different" from the previously-enjoined policies, so that the injunction no longer had any effect.

On Mar. 15, as a backup should the court decline to rule on its Mar. 13 Emergency Motion to Enforce Preliminary Injunction, the plaintiffs filed an emergency motion for a temporary restraining order. A similar request had been filed a few days earlier in Ali v. Trump, a related case also pending before Judge Robart. In this case, the states explained, "To avoid any prejudice to Defendants, the States present no new substantive arguments in this motion, instead joining in full the arguments for emergency relief advanced by the plaintiffs in Ali v. Trump, in which Defendants have had an opportunity to respond in writing and this Court has scheduled a hearing at 2pm today."

In another case about the second EO, Hawaii v. Trump, filed in the U.S. District Court for the District of Hawaii, on March 15, the District Court granted a Temporary Restraining Order (TRO), enjoining the U.S., nationwide, from enforcing or implementing Sections 2 and 6 of the new EO. This was the first nationwide injunction of EO 13780.

On Mar. 16, in this case, the district court allowed the filing of the Second Amendment 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 the second EO. The court referenced the "substantial distinctions" between the first and second EOs, namely the second EO's delayed implementation, exclusion of Iraq in the list of banned countries, and elimination of the religious minority preference.

On Mar. 17, the court stayed, sua sponte, 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.

On Mar. 30, the federal government appealed Hawaii v. Trump to the Ninth Circuit, and in this case filed a motion to extend response time and stay district court proceedings pending resolution of that appeal.

On Apr. 5, the parties filed a joint status report and proposed discovery plan. The U.S. continued to seek a stay of all proceedings in this case; the plaintiffs disagreed, asking for a discovery plan and briefing deadlines. Judge Robart did not rule on the stay motion, but did extend the U.S.'s time to respond to the second amended complaint to seven days after the court's disposition of the government's motion to stay the entire case. Briefing concluded on that stay motion on Apr. 14.

On May 17, Judge Robart granted defendants' motion to stay all proceedings in the case, pending resolution of the Hawaii v. Trump appeal. Any party may move to lift the stay should circumstances warrant it.

On Oct. 10, the Supreme Court was set to hear the Hawaii v. Trump case on the merits. However, the travel ban imposed by the second EO expired on Sept. 24. That same day, the Trump Administration signed a proclamation ("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 Oct. 10 hearing and asked the Hawaii and IRAP parties to file new briefs in light of the government's new order.

On Oct. 11, States in this case 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. The States simultaneously filed a motion for a Temporary Restraining order and a motion for leave to file a Third Amended Complaint. On Oct. 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 Oct. 30 on the TRO motion. The court directed the defendants to submit their response by Oct. 23, and the plaintiffs to reply by Oct. 26.

On Oct. 16, the States filed their third amended complaint. The States argued that EO-3 will prevent State residents - including US citizens and lawful permanent residents - from seeing spouses, parents, or other family members; will cause the States' colleges and universities to lose students, tuition revenue, and faculty/staff; will cause the States to lose tourism revenue; will deny States' hospitals the opportunity to compete for top medical residents and physicians; will cost the States' businesses talented job applicants and revenue; will cause the States to lose tax revenue; and will undermine the States' sovereign interest in maintaining the separation between church and state, in upholding the States' non-discrimination policies, and in remaining "welcoming place[s] for immigrants."

On Oct. 17, the States filed a notice with the court. In light of the Hawaii v. Trump district court's Oct. 17 order granting a nationwide temporary restraining order against EO-3, the States 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 States emphasized the number of people the States represent who are harmed by EO-3, and argued that their harms are different in both degree and kind from those presented in other cases. The States filed additional declarations in support of the Amended Complaint on Oct. 19.

On Oct. 23, the DOJ filed its response brief arguing that the plaintiffs' challenges are not justiciable, that EO-3 fits within the President's broad constitutional and statutory authority to suspend the entry of aliens abroad, and that EO-3 is constitutional because it provides a facially legitimate and bona fide reason for excluding aliens and does not violate the Establishment and Equal Protection clauses. The plaintiffs replied on Oct. 26. On Oct. 27, the district court stayed its decision on the plaintiffs' TRO motion so long as the PI in Hawaii v. Trump "or a [PI] of identical or broader scope" concerning EO-3 remains in place.

On Nov. 21, the Supreme Court denied the plaintiffs' Feb. 11 writ of certiorari.

This case is ongoing.

Virginia Weeks - 01/31/2017
Julie Aust - 11/28/2017
Jamie Kessler - 02/14/2017
Ava Morgenstern - 02/23/2017


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