We previously wrote how the State of Hawaii (with co-plaintiff Dr. Ismail Elshikh) struck out in Hawaii federal court and in the 9th Circuit, in seeking “clarification” of how Trump’s Travel Order No. 2 was to be implemented in light of the prior court injunctions and the Supreme Court’s substantial overruling of those injunctions:

The key problem identified by the court was the Hawaii’s request for “clarification” was not proper. The District Court ruled that if Hawaii wanted clarification of a Supreme Court Order, it should seek such clarification from the Supreme Court:

“Upon careful consideration of the parties’ submissions, it is evident that the parties quarrel over the meaning and intent of words and phrases authored not by this Court, but by the Supreme Court in its June 26, 2017 per curiam decision. That is, the parties’ disagreements derive neither from this Court’s temporary restraining order, this Court’s preliminary injunction, nor this Court’s amended preliminary injunction,2 but from the modifications to this Court’s injunction ordered by the Supreme Court. Accordingly, the clarification to the modifications that the parties seek should be more appropriately sought in the Supreme Court….

* * *

Because Plaintiffs seek clarification of the June 26, 2017 injunction modifications authored by the Supreme Court, clarification should be sought there, not here. This Court will not upset the Supreme Court’s careful balancing and “equitable judgment” brought to bear when “tailor[ing] a stay” in this matter. Slip Op. at 10. Nor would this district court presume to substitute its own understanding of the stay for that of the originating Court’s “exercise of discretion and judgment” in “[c]rafting a preliminary injunction . . . dependent as much on the equities of a given case as the substance of the legal issues it presents.” Slip Op. at 9. This Court declines to usurp the prerogative of the Supreme Court to interpret its own order and defers in the first instance.”

The 9th Circuit held that it had no jurisdiction to review a denial of clarification:

We lack jurisdiction to address Plaintiffs’ appeal of the district court’s order denying the motion to clarify the scope of the injunction. This court possesses jurisdiction to review only final judgments and a limited set of interlocutory orders. See 28 U.S.C. §§ 1291, 1292(a). The district court’s order neither resulted in a final judgment nor engaged in action deemed immediately appealable in 28 U.S.C. § 1292(a). Specifically, the district court’s order did not “grant[], continu[e], modify[], refus[e], or dissolv[e]” an injunction, or “refus[e] to dissolve or modify” an injunction. Id. § 1291(a)(1).

Nor do any of the various judicially-crafted bases for appellate jurisdiction apply under these circumstances. Because the “practical effect” of Plaintiffs’ requested relief is declaratory in nature—not injunctive—we do not construe their clarification motion before the district court as one for injunctive relief.

The 9th Circuit all but invited Hawaii to reformulate what it was seeking:

Finally, we note that although the district court may not have authority to clarify an order of the Supreme Court, it does possess the ability to interpret and enforce the Supreme Court’s order, as well as the authority to enjoin against, for example, a party’s violation of the Supreme Court’s order placing effective limitations on the scope of the district court’s preliminary injunction. Cf. United States v. El-O-Pathic Pharmacy, 192 F.2d 62, 79–80 (9th Cir. 1951). But Plaintiffs’ motion before the district court was clear: it sought clarification of the Supreme Court’s June 26 order, not injunctive relief. Because the district court was not asked to grant injunctive relief or to modify the injunction, we do not fault it for not doing so.

And sure enough, Hawaii late Friday night filed a new request, a Motion to Enforce or Alternatively Modify (pdf.) the District Court’s prior injunction, and a supporting Declaration (pdf.). Full copies of each are embedded at the bottom of this post. The Court entered an Order on the docket:

The Court is in receipt of Plaintiffs’ Motion to Enforce or, In the Alternative, to Modify Preliminary Injunction. Dkt. No. 328. Defendants shall file their opposition by Tuesday, July 11, 2017. Plaintiffs shall file any reply by Wednesday, July 12, 2017. The parties’ opposition and reply briefs are limited to no more than 15 pages each.

Here is the relief sought by Hawaii in the Motion:

The Government has announced that it is implementing, and that it intends to continue implementing, Executive Order 13780 in a manner that conflicts with the portions of this Court’s preliminary injunction that were not stayed by the Supreme Court’s June 26, 2017 ruling. Plaintiffs therefore request that the Court issue an Order enforcing or modifying its preliminary injunction to reflect that:

(1)the injunction bars the Government from implementing the Executive Order against grandparents, grandchildren, brothers-in-law, sisters-in-law, aunts, uncles, nieces, nephews, and cousins of persons in the United States;

(2) the injunction prohibits the Government from applying sections 6(a) and 6(b) to exclude refugees who: (i) have a formal assurance from a resettlement agency within the United States (ii) have a bona fide client relationship with a U.S. legal services organization; or (iii) are in the U.S. Refugee Admissions Program (“USRAP”) through the Iraqi Direct Access Program for “U.S.-affiliated Iraqis,” the Central American Minors Program, or the Lautenberg Program;

(3) the injunction bars defendants from suspending any part of the refugee admission process, including any part of the “Advanced Booking” process, for individuals with a bona fide relationship with a U.S. person or entity; and

(4) the preliminary injunction prohibits the Government from applying a presumption that an applicant lacks “a bona fide relationship with a person or entity in the United States.”

And sure enough, Hawaii told the District Court in its supporting Memorandum that the 9th Circuit has approved this procedural path:

This Court found that it lacked authority to grant the particular relief Plaintiffs requested: a motion to clarify. But the Ninth Circuit has stated that there is an alternative, viable route for this Court to prevent these brazen violations of its order. This Court, it explained, “does possess * * * the authority to enjoin against* * * a party’s violation of the Supreme Court’s order placing effective limitations on the scope of the district court’s preliminary injunction.” Dkt. 327, at 3.

Plaintiffs respectfully request that this Court follow the path the NinthCircuit laid out. It should enjoin the Government’s bald attempts to thwart the Supreme Court’s and this Court’s will. In the alternative, Plaintiffs respectfully request that this Court modify its injunction to make clear that the Government’s current course of conduct is unlawful. One thing is clear: This Court should not permit the Government to flout its directives at the expense of countless Americans and their loved ones, and it possesses the authority to prevent the Government from so doing.

The problem with Hawaii’s request, even if the form has been fixed, is that substantively Hawaii is wrong.

The Trump implementation is consistent with the explanations given by the Supreme Court as to who had a “bona fide” relationship to the U.S., such that the person would not fall under the Travel Order. My explanation was fairly lengthy, so see my prior post, Hawaii seeks injunction against Trump admin interpretation of SCOTUS Travel Order ruling. I concluded:

It appears that at least as to visa entries, Hawaii is trying to expand the limiting language (quoted above) as to who is exempt from the Travel Order….

Expect a fast ruling. And if Hawaii loses, the 9th Circuit panel seems eager to hear the case.


Hawaii v Trump – Post-SCOTUS Motion to Enforce or Modify Preliminary Injunction by Legal Insurrection on Scribd


Hawaii v Trump – Declaration and Exhibits in Support of Post-SCOTUS Motion to Enforce or Modify Preliminary… by Legal Insurrection on Scribd