United States District Court, W.D. Washington, Seattle
ORDER STAYING DECISION OF PLAINTIFFS' THIRD
MOTION FOR A TEMPORARY RESTRAINING ORDER
L. ROBART United States District Judge
the court are (1) Plaintiffs State of Washington, State of
California, State of Maryland, Commonwealth of Massachusetts,
State of New York, and State of Oregon's (collectively,
“Plaintiff States”) motion for a temporary
restraining order (“TRO”) (3d TRO Mot. (Dkt. #
195)) prohibiting the enforcement of certain provisions of
the Presidential Proclamation entitled “Enhancing
Vetting Capabilities and Processes for Detecting Attempted
Entry into the United States by Terrorists or Other
Public-Safety Threats, ” 82 Fed. Reg. 45, 161 (Sept.
27, 2017) (“EO3”); and (2) Plaintiff States'
October 17, 2017, letter to the court (Letter (Dkt. # 200))
asking the court to rule on their motion for a TRO despite
the entry of a worldwide TRO concerning EO3 by the federal
district court for the District of Hawaii in Hawaii v.
Trump, __ F.Supp.3d __, 2017 WL 4639560 (D. Haw. Oct.
17, 2017). The court has considered Plaintiff States'
motion for a TRO and their October 17, 2017, letter,
Defendants Donald J. Trump, United States Department of
Homeland Security, Elaine C. Duke, Rex Tillerson, and United
States of America's (collectively,
“Defendants”) response to Plaintiff States'
motion for a TRO (Resp. (Dkt. # 205)),  Plaintiff
States' reply in support of their motion (Reply (Dkt. #
208)), the relevant portions of the record, and the
applicable law. Being fully advised, the court stays its
consideration of Plaintiff States' TRO motion as
States' lawsuit has now addressed two Executive Orders
and one Presidential Proclamation concerning immigration.
(See Compl. (Dkt. # 1); FAC (Dkt. #18); SAC (Dkt. #
152); TAC (Dkt. # 198).) The court briefly recounts the
history of this suit before analyzing Plaintiff States'
January 27, 2017, President Trump signed Executive Order 13,
769, entitled “Protecting the Nation from Foreign
Terrorist Entry into the United States, ” 82 Fed. Reg.
8977 (Feb. 1, 2017) (“EO1”). EO1 directed a
series of changes to the manner in which non-citizens may
seek and obtain entry to the United States. (See
generally id.) Section 3(c) of EO1 proclaimed that the
continued entry of immigrants and nonimmigrants from
countries referred to in Section 217(a)(12) of the
Immigration and Nationality Act (“INA”), 8 U.S.C.
§ 1187(a)(12) (i.e., Iran, Iraq, Libya, Somalia, Sudan,
Syria, and Yemen) “would be detrimental to the
interests of the United States.” EO1 § 3(c). EO1
“suspend[ed] entry into the United States, as
immigrants and nonimmigrants, of such persons for 90 days
from the date of th[e] order.” Id. Sections
5(a)-(b) of EO1 suspended the United States Refugee
Admissions Program in its entirety for 120 days and then
directed the Secretary of State to prioritize refugees who
claim religious-based persecution when the program resumed,
“provided that the religion of the individual is a
minority religion in the individual's country of
nationality.” Id. §§ 5(a)-(b).
Section 5(c) of EO1 proclaimed that entry of Syrian refugees
is “detrimental to the interests of the United
States” and suspended their entry indefinitely.
Id. § 5(c).
went into effect as soon as President Trump signed it, and
its impact was “immediate and widespread.”
Washington v. Trump, 847 F.3d 1151, 1157 (9th Cir.
2017). “It was reported that thousands of visas were
immediately canceled, hundreds of travelers with such visas
were prevented from boarding airplanes bound for the United
States or denied entry on arrival, and some travelers were
January 30, 2017, the State of Washington filed this lawsuit
challenging Sections 3(c), 5(a)-(c), and 5(e) of
(See generally Compl.) Washington asked the court to
declare these provisions of EO1 unconstitutional and to
enjoin their enforcement nationwide. (TRO Mot. (Dkt. # 3);
Am. TRO Mot. (Dkt. # 19).) On February 3, 2017, the court
granted the States' motion and enjoined enforcement of
Sections 3(c), 5(a)-(c), and 5(e) of EO1 nationwide.
(See TRO (Dkt. # 52).)
February 4, 2017, Defendants appealed the TRO to the Ninth
Circuit, and moved to stay this court's order. (Not. of
App. (Dkt. # 53).) The Ninth Circuit construed this
court's TRO as a preliminary injunction and declined to
stay the preliminary injunction pending Defendants'
appeal of the order in the Ninth Circuit. See
Washington, 847 F.3d at 1158, 1169. Meanwhile, a lawsuit
challenging EO1 was also pending in the federal district
court for the District of Hawaii. See Hawaii v.
Trump, No. 1:17-00050 DKW-KSC (D. Haw.). On February 9,
2017, the federal district court in Hawaii stayed the
proceedings in Hawaii v. Trump while this
court's preliminary injunction of EO1 remained in place
and pending resolution of the appeal in Washington v.
Trump. See id., Dkt. # 32.
March 6, 2017, President Trump issued Executive Order No. 13,
780, which was also entitled “Protecting the Nation
from Foreign Terrorist Entry into the United States, ”
82 Fed. Reg. 13209 (Mar. 6, 2017) (“EO2”), and
expressly revoked EO1. See EO2 § 13. In
addition, Defendants voluntarily dismissed their appeal of
this court's injunction with respect to EO1.
(See 9th Cir. Order (Dkt. # 111) (granting
Defendants' unopposed motion to voluntarily dismiss
appeal).) Thus, EO1 exited the stage as EO2 entered. Whereas
EO1 suspended the entry into the United States of nationals
from seven predominantly Muslim countries, EO2 omitted Iraq,
but continued to suspend the entry of nationals from Iran,
Libya, Somalia, Sudan, Syria, and Yemen. Compare EO2
§ 2(c), with EO1 § 3(c). In addition, EO2
continued the 120-day suspension of the United States Refugee
Admissions Program, but eliminated the indefinite suspension
of the program for Syrian nationals. Compare EO2
§ 6(a), with EO1 §§ 5(a)-(c).
States filed a motion to amend their complaint to add
allegations concerning EO2 (MFL SAC (Dkt. 118)), which the
court granted on March 15, 2017 (Min. Entry (Dkt. # 150);
see also SAC (Dkt. # 152)). Plaintiff States also filed
a motion for a TRO concerning certain provisions of EO2. (2d
TRO Mot. (Dkt. # 148).)
the President executed EO2, the federal district court in
Hawaii lifted its stay, and the plaintiffs in that action
also filed (1) an amended complaint adding allegations
concerning EO2, and (2) a TRO motion seeking to enjoin
certain aspects of EO2. Hawaii v. Trump, No.
1:17-00050 DKW-KSC (D. Haw.), Dkt. ## 59-1, 60-1, 64, 65. On
March 15, 2017, shortly after this court conducted a hearing
on Plaintiff States' TRO motion concerning EO2
(see Dkt. # 150), the federal district court in
Hawaii enjoined the enforcement of Sections 2 and 6 of EO2,
Hawaii v. Trump, 241 F.Supp.3d 1119 (D. Haw. 2017).
On March 16, 2017, the federal district court in Maryland
followed the federal district court in Hawaii with its own
order enjoining Section 2(c) of EO2. See Int'l
Refugee Assistance Project v. Trump, 241 F.Supp.3d 539,
544 (D. Md.), aff'd in part and vacated in part,
857 F.3d 554 (4th Cir. 2017), as amended (May 31,
2017), as amended (June 15, 2017), cert.
granted, 137 S.Ct. 2080 (2017), and vacated and
remanded, No. 16-1436, 2017 WL 4518553 (U.S. Oct. 10,
virtue of the orders issued out of the federal district
courts in Hawaii and Maryland, Plaintiff States in this
action were accorded all of the relief they requested.
Accordingly, on March 17, 2017, this court stayed its
consideration of Plaintiff States' motion for a TRO with
respect to EO2 so long as the nationwide TRO issued by the
Hawaii court or a preliminary injunction of equal scope
remained in place. (See 3/17/17 Order (Dkt. # 164).)
The court later granted Defendants' motion to stay the
entire proceedings. (See 5/17/17 Order (Dkt. #
saga of EO2 is now complete. The district court decisions out
of Hawaii and Maryland were ultimately appealed to their
respective Courts of Appeal and then to the United States
Supreme Court. Because the provisions of EO2 have expired by
their own terms, the Supreme Court earlier this month vacated
the judgments in the lower courts and remanded “with
instructions to dismiss as moot the challenge[s] to
[EO2].” See Trump v. Hawaii, __ U.S. __, 2017