United States District Court, E.D. Virginia, Alexandria Division
Anthony J. Trenga United Stares District Judge
pending before the Court is Plaintiffs' “Emergency
Motion for Temporary Restraining Order and/or Preliminary
Injunction” [Doc. No. 13] (the “Motion”).
The Court held a hearing on the Motion on March 21, 2017,
following which it took the Motion under advisement. Upon
consideration of the Motion, the memoranda in support thereof
and in opposition thereto, the arguments of counsel at the
hearing held on March 21, 2017, and for the reasons set forth
below, the Motion is DENIED.
Plaintiffs seek an emergency order enjoining the enforcement
of Executive Order 13, 780 (“EO-2” or the
“Order”), issued by President Donald J. Trump
(“President Trump” or the
“President”) on March 6, 2017 and scheduled to go
into effect on March 16, 2017. Subject to a number of
enumerated limitations, exemptions, and waivers, the Order
suspends entry into the United States by nationals of six
countries for 90 days and by all refugees for 120 days. EO-2
explicitly rescinds Executive Order 13, 769
(“EO-1”), which similarly temporarily barred
nationals from certain countries from obtaining visas or
entering the United States but did not contain the exemptions
and waivers now in EO-2 and also included certain religious
preferences no longer in EO-2.
ultimate issue in this action is whether the President
exceeded his authority, either as delegated to him by
Congress or as provided by the Constitution. But because
Plaintiffs seek at the beginning of this case the relief they
would ultimately obtain at the end of the case should they
prove successful, Plaintiffs must show not only that (1) they
are likely to succeed on the merits of their claim that EO-2
exceeded the President's authority, but also that (2)
without immediate injunctive relief, Plaintiffs face imminent
irreparable harm; (3) the balance of equities, including the
balance of hardships, weigh in their favor; and (4) issuance
of the requested injunction on an emergency basis is in the
public interest. Winter v. Nat. Res. Def. Council,
Inc., 555 U.S. 7, 22 (2008).
Executive Order No. 1
January 27, 2017, President Trump issued Executive Order 13,
769, titled “Protecting the Nation from Foreign
Terrorist Entry into the United States, ” 82 Fed. Reg.
8977 (Jan. 27, 2017). EO-1 immediately suspended immigrant
and nonimmigrant entry into the United States for 90 days to
aliens from Iraq, Iran, Libya, Sudan, Somalia, Syria, and
Yemen. EO-1 also suspended the U.S. Refugee Admissions
Program (“USRAP”) for 120 days, id.
§ 5(a), and suspended the entry of all refugees from
Syria indefinitely, id. § 5(c). Furthermore, in
screening refugees, government bodies were directed “to
prioritize refugee claims made by individuals on the basis of
religious-based persecution, provided that the religion of
the individual is a minority religion in the individual's
country of nationality.” Id. § 5(b). The
order provided for “case-by-case” exceptions to
the 120-day refugee suspension. Id. § 5(f).
of plaintiffs including the State of Washington and the State
of Minnesota challenged EO-1 on both constitutional and
statutory grounds in the United States District Court for the
Western District of Washington. See Washington v.
Trump, No. C17-0141JLR, 2017 WL 462040 (W.D. Wash. Feb.
3, 2017). On February 3, 2017, the district court issued a
nationwide injunction halting enforcement of the operative
portions of that order, although it did not provide a
specific basis for finding that the plaintiffs were likely to
succeed on the merits. Id. On February 9, 2017, the
United States Court of Appeals for the Ninth Circuit denied
the defendants' emergency appeal to stay the district
court's order, which it construed as a preliminary
injunction. Washington v. Trump, 847 F.3d 1151,
1165-66 (9th Cir. 2017). The Ninth Circuit found that the
defendants had not demonstrated a likelihood of success on
the merits as to the plaintiffs' procedural due process
claim, but it reserved judgment on the plaintiffs'
Establishment Clause and Equal Protection Clause claims,
noting that they “raise[d] serious allegations and
present[ed] significant constitutional questions.”
Id. at 1168.
on February 13, 2017, this Court enjoined the enforcement of
section 3(c) only as to Virginia residents and students
enrolled in state educational institutions located in the
State of Virginia. Aziz v. Trump, No. 1:17-cv-116,
__ F.Supp.3d __, 2017 WL 580855 (E.D. Va. Feb. 13, 2017)
(Brinkema, J.). This Court ruled that the plaintiffs had
clearly demonstrated a likelihood of success on the merits of
their Establishment Clause claim, but it did not address
their other claims. That injunction has not been appealed.
Executive Order No. 2
to the successful legal challenges to EO-1, on March 6, 2017,
President Trump issued EO-2. EO-2 explicitly rescinds EO-1
and was scheduled to go into effect on March 16, 2017 at
12:01 a.m. EDT. EO-2 has the same title as EO-1 and has many
of the same stated policies and purposes. It also has
substantial differences, as discussed in detail below.
Briefly summarized, EO-2 removes Iraq from the list of
designated countries whose nationals are covered by the
Order, eliminates the indefinite suspension of all refugees
from Syria, exempts otherwise covered persons who are located
in the United States or who had appropriate travel documents
as of the date on which EO-1 was issued, provides a list of
categories where otherwise covered persons qualify for
consideration of a waiver, and removes any religious-based
preferences for waivers. The Order also contains
substantially more justification for its national security
concerns and the need for the Order, including why each
particular designated country poses specific dangers.
the Order's effective date, the State of Hawaii and a
United States citizen challenged the Order in the United
States District Court for the District of Hawaii. On March
15, 2017, the Hawaii court issued a nationwide temporary
restraining order (“TRO”) enjoining the
enforcement of sections 2 and 6 of EO-2. Hawai‘i v.
Trump, No. 1:17-cv-00050, 2017 WL 1011673 (D. Haw. Mar.
15, 2017). At the hearing in this action before this Court on
March 21, 2017, Defendants represented that they expected the
District of Hawaii court to extend the TRO, with their
consent, until that court decides the pending motion for a
preliminary injunction, a hearing on which has been scheduled
for March 29, 2017. The TRO has not been appealed.
separate group of six individuals and three organizations
challenged EO-2 in the United States District Court for the
District of Maryland, alleging that it inflicted stigmatizing
injuries as well as various other more particularized forms
of harm. In an order Dated: March 15, 2017 but entered on
March 16, 2017, the Maryland court issued a nationwide
preliminary injunction enjoining the enforcement of section
2(c) of EO-2. Int'l Refugee Assist. Proj. v.
Trump, No. 8:17-cv-00361-TDC, __ F.Supp.3d __, 2017 WL
1018235 (D. Md. Mar. 16, 2017).
in the Western District of Washington also continues. In that
case, Plaintiffs filed an emergency motion to enforce the
court's February 3, 2017 preliminary injunction of EO-1.
The district court rejected that motion, finding that EO-2
did not violate the court's prior preliminary injunction
because EO-2 is substantively different from EO-1. Order
Denying Washington's Emergency Motion to Enforce the
Preliminary Injunction, Washington v. Trump, No.
C17-0141JLR (W.D. Wash. Mar. 16, 2017), ECF No. 163.
of summary, at this point, the District of Hawaii court's
TRO remains in effect as to sections 2 and 6 of the Order
until March 29, 2017, and the District of Maryland
court's preliminary injunction remains in effect as to
section 2(c) of the Order. All other sections of EO-2 are in
force at this time. Plaintiffs in this litigation ask this
Court to enjoin the enforcement of EO-2 in its entirety.
Plaintiffs Who Move for Emergency Relief
Plaintiffs are Muslims who are presently residing in various
locations across the country and claim that they have been
harmed by the issuance of EO-2 in a variety of ways. Among
the injuries they allege is the harm created by a stigma
against Muslims living in the United States. Specifically,
they claim that as a result of Defendants' conduct,
beginning with the initial announcement of the “Muslim
Ban, ” Defendants have promoted views that (1) disfavor
and condemn their religion of Islam; (2) marginalize and
exclude Muslims, including themselves, based on the claim
that Muslims are disposed to commit acts of terrorism; (3)
endorse other religions and nonreligion over Islam; (4)
Muslims are outsiders, dangerous, and not full members of the
political community; and (5) all non-adherents of Islam are
insiders and therefore favored. Amended Complaint [Doc. No.
11] (“AC”) ¶¶ 20-38. In addition,
Plaintiffs allege a range of other injuries based on
each's particular status in the United States and
each's relationships with persons outside of the United
States. The following eight Plaintiffs have joined in the
Basim Elkarra, Hussam Ayloush, and Adam Soltani are United
States citizens who allegedly “are no longer able to
bring their family members from Syria and Iran to visit them
in the United States as a direct result of the Revised Muslim
Ban [EO-2] as they otherwise would.” Plaintiffs'
Motion (“Pls.' Mot.”) 6. They further allege
that, as “prominent civil rights and grassroots
activists, ” they “have had to change their
conduct adversely in that they have been required to assist
and advocate on behalf of Muslims targeted or stigmatized by
the First Muslim Ban [EO-1], push back against the
anti-Muslim sentiment fomented and legitimized by Defendants,
and defend their religion as a religion of peace on national
media outlets and through grassroots efforts.”
John Doe No. 6 is also a United States citizen. He recently
filed a marriage petition for his Sudanese wife currently
residing outside of the United States, which he claimed would
be “subjected to a more onerous application process
that will require her to make heightened showings to obtain a
waiver from the Revised Muslim Ban [EO-2], pursuant to Sec.
3(c)(iv) of the Revised Muslim ban, based solely on her
Sudanese national origin.” Id. 6-7. That
petition was approved while this Motion was pending, however,
[see Doc. No. 31], and her visa application is now
John Doe Nos. 7 and 8 are lawful permanent residents of the
United States. John Doe No. 7 is a Syrian national, and John
Doe No. 8 is a Sudanese national. John Doe No. 7 filed a
marriage petition for his wife, which is currently pending.
John Doe No. 8 also filed a marriage petition for his wife,
which was approved, but her visa application remains pending.
These three Plaintiffs allege that under EO-2, “their
wives' visa applications will be subject to a more
onerous application process that will require [them] to make
heightened showings to obtain a waiver from the Revised
Muslim Ban.” Id. 7.
John Doe Nos. 2 and 3 are students of Somali and Yemeni
national origin who were issued single-entry F-1 student
visas which expire upon completion of their studies. They
allege that they intended to travel outside of the United
States but that, if they do so now, they “will be
subjected to a more onerous application process that will
require them to make heightened showings to obtain a
waiver.” Id. They claim that this inability to
travel imposes a hardship because they are additionally
deprived of the opportunity to see their families, and they
may not be able to stay in student housing during school
breaks. Id. 7-8.
Trump issued EO-1 on January 27, 2017. Three days later, on
January 30, 2017, Plaintiffs filed their Complaint for
Injunctive and Declaratory Relief [Doc. No.1] against
President Trump, Secretary of the Department of Homeland
Security John F. Kelly, the U.S. Department of State, and the
Director of National Intelligence. Then, on March 13, 2017,
after President Trump's March 6, 2017 issuance of EO-2,
which explicitly rescinded EO-1, Plaintiffs filed their
Amended Complaint for Injunctive and Declaratory Relief [Doc.
No. 11] as well as their presently pending “Emergency
Motion for Temporary Restraining Order and/or Preliminary
Injunction” [Doc. No. 13].
Rule of Civil Procedure 65 authorizes federal courts to issue
temporary restraining orders and preliminary injunctions.
“The standard for granting either a TRO or a
preliminary injunction is the same.” Moore v.
Kempthorne, 464 F.Supp.2d 519, 525 (E.D. Va. 2006)
(citation omitted) (internal quotation marks omitted). Both
are “extraordinary remedies involving the exercise of a
very far-reaching power to be granted only sparingly and in
limited circumstances.” MicroStrategy Inc. v.
Motorola, 245 F.3d 335, 339 (4th Cir. 2001). The movants
bear the burden to establish that (1) they are likely to
succeed on the merits of their case; (2) they are likely to
suffer irreparable harm in the absence of injunctive relief;
(3) the balance of the equities tips in their favor; and (4)
an injunction would be in the public interest. Winter v.
Nat. Res. Def. Council, Inc., 555 U.S. 7, 22 (2008);
Manning v. Hunt, 119 F.3d 254, 263 (4th Cir. 1997);
see also Pashby v. Delia, 709 F.3d 307, 321 (4th
order to obtain the requested injunction, Plaintiffs must
first demonstrate that they have standing to challenge EO-2.
Defendants dispute that any of the Plaintiffs have standing.
“Standing doctrine functions to ensure, among other
things, that the scarce resources of the federal courts are
devoted to those disputes in which the parties have a
concrete stake.” Friends of the Earth, Inc. v.
Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 191. To
establish standing, a plaintiff must set forth specific facts
to demonstrate that (1) he has “suffered an
‘injury in fact' . . . which is (a) concrete and
particularized . . . and (b) ‘actual or imminent, not
conjectural or hypothetical”; (2) there exists “a
causal connection between the injury and the conduct
complained of”; and (3) “it must be
‘likely, ' as opposed to merely ‘speculative,
' that the injury will be ‘redressed by a favorable
decision.'” Lujan v. Defenders of
Wildlife, 504 U.S. 555, 560-61 (1992) (citations
omitted). Plaintiffs must demonstrate standing for every
claim, but a claim is justiciable if even only one Plaintiff
has standing to raise it. Bostic v. Schaefer, 760
F.3d 352, 370-71 (4th Cir. 2014).
of the nature of Plaintiffs' statutory and constitutional
claims, their showing of standing may be based on subjective,
non-economic, or intangible injuries. Suhre v. Haywood
Cty., 131 F.3d 1083, 1086 (4th Cir. 1997)
(“[R]ules of standing recognize that noneconomic or
intangible injury may suffice to make an Establishment Clause
claim justiciable.”); Moss v. Spartanburg Cty. Sch.
Dist. Seven, 683 F.3d 599, 605 (4th Cir. 2012)
(“[P]laintiffs have been found to possess standing when
they are ‘spiritual[ly] affront[ed]' as a result of
‘direct' and ‘unwelcome' contact with an
alleged religious establishment within their
community.” (quoting Suhre, 131 F.3d at
1086-87)); Bostic, 760 F.3d at 372 (Equal Protection
Clause challenges, like Establishment Clause challenges, can
be premised on “stigmatic injury stemming from
discriminatory treatment.”). However, the allegation of
injury in the form of a stigma alone is insufficient to
support standing; there must also be a “cognizable
injury caused by personal contact [with the offensive
conduct].” Suhre, 131 F.3d at 1090; see
also Moss, 683 F.3d at 607 (finding standing where
plaintiffs alleged “outsider” status after having
received a letter from their school district promoting a
“course of religious education [with] Christian
content” and “prayers and other Christian
references [at] school events”).
case, all Plaintiffs claim that in addition to the stigma
that the Order has imposed on them as Muslims, they have
suffered “cognizable injury caused by personal
contact” because EO-2 prevents or impermissibly burdens
their ability to (1) reunite with their foreign national
spouses or other relatives; (2) travel internationally
without fear of forfeiting their own visas; (3) renew their
visas without being subjected to a heightened standard of
review; and (4) attend other life activities without the need
to combat the pernicious effects of EO-2 through religious
advocacy and outreach. Based on these alleged injuries and
the facts that have been presented, the Court finds for the
purposes of the Motion that Plaintiffs have made a sufficient
showing that they have standing to challenge EO-2.
Plaintiffs' Likelihood of Success on the Merits
2(c) of EO-2 suspends the entry into the United States of
nationals of Iran, Libya, Somalia, Sudan, Syria, and Yemen
for 90 days, subject to the limitations, exemptions, and
waivers in sections 3 and 12. Section 6 of EO-2 suspends
decisions on applications for refugee status worldwide for
120 days, subject to waivers issued under section 6(c).
Plaintiffs seek to enjoin EO-2 in its entirety on the grounds
that all or parts of the Order exceed the President's
statutory or constitutional authority and that, in any event,
the Order, as a whole, has the unconstitutional effect of
imposing upon them a stigma based on their status as Muslims.
party seeking a preliminary injunction . . . must clearly
show that it is likely to succeed on the
merits.”Dewhurst v. Century Alum. Co.,
649 F.3d 287, 290 (4th Cir. 2011). The “requirement . .
. is far stricter than . . . [a] requirement that the
plaintiff demonstrate only a grave or serious
question for litigation.” Real Truth About
Obama, Inc. v. F.E.C., 575 F.3d 342, 346-47 (4th Cir.
2009), judgment vacated on other grounds, 559 U.S.
1089 (2010), and adhered to in relevant part, 607
F.3d 355 (4th Cir. 2010). In determining whether the Plaintiffs
have made the required showing, the issue is not whether EO-2
is wise, necessary, under- or over-inclusive, or even fair.
It is not whether EO-2 could have been more usefully directed
to populations living in particular geographical areas
presenting even greater threats to national security or even
whether it is politically motivated. Rather, the core
substantive issue of ...