UPDATE: Ninth Circuit Denies Stay of TRO, State of Washington vs Trump

State of Washington et al vs Trump et al, re: Trump's Executive Order on immigration, TRO, and appeal to  United States Court of Appeals for the Ninth Circuit in San Francisco for stay: 

UPDATE Feb 9, 2017: Trump Loses at Ninth Circuit: "... the emergency motion for a stay pending appeal is DENIED."  Opinion excerpt (p.26 of 29):

Opinion in full embed below:

17-35105 State of Washington v. Trump 3:00 pm PT (6:00pm ET), February 7, 2017

LIVE audio stream from Courtroom One in the James R. Browning Court of Appeals Building in San Francisco, California, scheduled for February 7, 2017, 3:00 pm PT (6:00pm ET). Because the hearing will be conducted telephonically, the stream is audio only and there will be no courtroom proceedings or associated video feed.

The United States Court of Appeals for the Ninth Circuit in San Francisco will hear arguments over whether to stay the temporary restraining order (TRO), essentially restoring the President's Executive Order, from attorneys representing the U.S. Department of Justice and the States of Minnesota and Washington.

The issue: note this Ninth Circuit hearing is not about whether or not Trump's executive order is unconstitutional, but whether to maintain a temporary block (TRO) on Trump's order pending further proceedings including consideration of the constitutional question.

The temporary block went into place last week after U.S. District Judge James Robart in Seattle ruled in favor of the two states over the Justice Department. The Ninth Circuit Judges scheduled to hear the arguments: Judges William Canby Jr., a Jimmy Carter appointee, Michelle Friedland, a Barack Obama appointee, and Richard Clifton, a George W. Bush appointee.

U.S. Department of Justice's Motion for Stay:

States of Washington and Minnesota response:

U.S. Department of Justice reply:

The 9th Circuit is likely to rule later this week, and many legal scholars expect the appeal court to affirm the temporary block, possibly leading to further proceeding(s) before the U.S. Supreme Court which is explained in depth here: Donald Trump Immigration Ban: The Supreme Court and What Happens Next | Fortune.com:

"Trump has a good shot at winning the underlying legal question, but only after more court wrangles and more criticism over how he's handled the process so far ... In light of the incredible controversy it has generated, the White House may choose to modify the ban, which could make the whole issue moot before the Supreme Court has a chance to decide."

Ninth Circuit Documents 17-35105 State of Washington & State of Minnesota v. Trump. WD Wash. 2:17-cv-141:

• 02/06/2017 Order clarifying live streaming oral argument
• 02/06/2017 Order re live streaming argument
• 02/06/2017 Anti-Defamation League Motion for Extension of Time
• 02/06/2017 Anti-Defamation League Amicus Motion
• 02/06/2017 Groupon Letter Joining Technology Companies Amicus Motion and Brief
• 02/06/2017 Reply In Support of Emergency Motion for Stay
• 02/06/2017 Washington State Labor Council Amicus Motion and Brief
• 02/06/2017 U.S. Justice Foundation, Citizens United, Citizens United Foundation, English First Foundation, English First, Public Advocate of the United States, Gun Owners Foundation, Gun Owners of America, Conservative Legal Defense and Education Fund, U.S. Border Control Foundation, and Policy Analysis Center Amicus Motion and Brief
• 02/06/2017 Additional Law Professors Amicus Motion and Brief
• 02/06/2017 National Immigrant Justice Center and ASISTA Amicus Motion and Brief
• 02/06/2017 Letter by Additional Technology Companies Joining Technology Companies Amicus Motion and Brief
• 02/06/2017 American Center for Law and Justice Amicus Motion and Brief
• 02/06/2017 Massachusetts, Pennsylvania, New York, California, Connecticut, Delaware, District of Columbia, Iowa, Illinois, Maryland, Maine, New Mexico, Oregon, Rhode Island, Virginia, and Vermont Amicus Motion and Brief
• 02/06/2017 Pivotal Software Letter Joining Technology Companies Amicus Motion and Brief
• 02/06/2017 SEIU Amicus Motion and Brief
• 02/06/2017 HIAS, Inc. Amicus Motion
• 02/06/2017 Law Professors Motion to Substitute Corrected Amicus Motion and Brief
• 02/06/2017 Anti-Defamation League Amicus Brief
• 02/06/2017 Constitutional Scholars Amicus Motion and Brief
• 02/06/2017 Order denying motion to intervene and setting oral argument
• 02/06/2017 Reply in support of emergency motion for stay
• 02/06/2017 Exhibits to response
• 02/06/2017 Exhibit A to response
• 02/06/2017 Response to emergency motion for stay
• 02/06/2017 HIAS amicus brief
• 02/06/2017 Americans United for Separation of Church and State amicus motion and brief
• 02/06/2017 ACLU amicus motion and brief
• 02/05/2017 Law Professors amicus motion and brief
• 02/05/2017 State of Hawaii emergency motion to intervene
• 02/05/2017 Korematsu Center amicus motion and brief
• 02/05/2017 Technology Companies amicus motion and brief
• 02/05/2017 Revised scheduling order
• 02/04/2017 Order denying immediate administrative stay pending full consideration of the emergency motion for stay and setting schedule
• 02/04/2017 Emergency motion for stay
• 02/04/2017 Video Video recording of hearing in the U.S. District Court for the Western District of Washington
• 02/03/2017 Order Temporary Restraining Order

What Do Europeans Think About Muslim Immigration? | ChathamHouse.org: "... Drawing on a unique, new Chatham House survey of more than 10,000 people from 10 European states, we can throw new light on what people think about migration from mainly Muslim countries. Our results are striking and sobering. They suggest that public opposition to any further migration from predominantly Muslim states is by no means confined to Trump’s electorate in the US but is fairly widespread ..."

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DISCLAIMER

US Court of Appeals Decision re: ICANN & Iran, Syria, North Korea ccTLDs

28 U.S.C. § 1610 (g)(3): Exceptions to the immunity from attachment or execution: "(3) Third-party joint property holders. - Nothing in this subsection shall be construed to supersede the authority of a court to prevent appropriately the impairment of an interest held by a person who is not liable in the action giving rise to a judgment in property subject to attachment in aid of execution, or execution, upon such judgment."

Embedded below is the full decision of the United States Court of Appeals for the District of Columbia Circuit, August 2, 2016, which affirmed the judgment of the U.S. District Court that the ccTLDs of Iran, Syria, and North Korea are unattachable under District of Columbia (D.C.) law.

The Court of Appeals, while assuming arguendo that the ccTLDs were attachable property, nonetheless relied upon 28 USC §1610(g)(3)--quoted above--in its opinion at pages 28-29:

"We assume without deciding that the ccTLDs the plaintiffs seek constitute “property” under the FSIA and, further, that the defendant sovereigns have some attachable ownership interest in them. Nonetheless, pursuant to the terrorist activity exception, the court has the “authority” to “prevent appropriately the impairment of an interest held by a person who is not liable in the action giving rise to a judgment”—i.e., we are expressly authorized to protect the interests of ICANN and other entities. 28 U.S.C. § 1610(g)(3). Because of the enormous third-party interests at stake—and because there is no way to execute on the plaintiffs’ judgments without impairing those interests—we cannot permit attachment." (emphasis added)

While the Appellants have options to seek review en banc by the Court of Appeals, and even review by the U.S. Supreme Court, our analysis and opinion is that this is a well-reasoned decision that removes the "wild card" referenced in the Domain Mondo News Review and Litigation Report, July 31, 2016.

Embed below is the Court of Appeals decision Weinstein v. Iran et al (highlighting added):


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DISCLAIMER