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County of Santa Clara v. Trump

United States District Court, N.D. California

July 20, 2017

COUNTY OF SANTA CLARA, Plaintiff,
v.
DONALD J. TRUMP, et al., Defendants. CITY AND COUNTY OF SAN FRANCISCO, Plaintiff,
v.
DONALD J. TRUMP, et al., Defendants. Dkt. Nos. 113, 115, 107, 111

          ORDER DENYING THE GOVERNMENT'S MOTIONS FOR RECONSIDERATION AND TO DISMISS WITH REGARDS TO THE CITY AND COUNTY OF SAN FRANCISCO AND THE COUNTY OF SANTA CLARA DKT. NOS. 113, 115, DKT. NOS. 107, 111

          WILLIAM H. ORRICK UNITED STATES DISTRICT JUDGE

         INTRODUCTION

         The government has moved for reconsideration of my April 25, 2017 order enjoining section 9(a) of Executive Order 13768 (“PI Order”).[1] It has also moved to dismiss the City and County of San Francisco's and the County of Santa Clara's claims under Rule 12(b)(6) and Rule 12(b)(1). The government's motions rely heavily on Attorney General Sessions's two page memorandum (the “AG Memorandum”) directed to the grant making components of the Department of Justice (“DOJ”), which the government argues outlines DOJ's definitive interpretation of the Executive Order. Because I conclude that the AG Memorandum does not change the analysis from the PI Order, the government's motions for reconsideration are DENIED.

         Similarly, with regards to the motions to dismiss, the AG Memorandum does not impact my prior conclusions that the Counties have standing, that their claims against the Executive Order are ripe, and that they are likely to succeed on the merits of those claims. I have not previously addressed San Francisco's declaratory relief claim. I do so now and conclude that San Francisco has adequately stated a claim for declaratory relief. The government's motions to dismiss San Francisco's and Santa Clara's claims are DENIED.[2]

         BACKGROUND

         On April 25, 2017, I granted San Francisco's and Santa Clara's motions for a preliminary injunction enjoining enforcement of Executive Order 13768 section 9(a). Preliminary Injunction Order (“PI Order”) (SF Dkt. No. 82); (SC Dkt. No. 98). In granting the Counties' motions, I rejected the interpretation of the Executive Order that the government put forward at oral argument, that the Executive Order is a mere directive to the Department of Homeland Security (“DHS”) and DOJ that does not seek to place any new conditions on federal funds. Even though government counsel convincingly assured me that this was the accepted interpretation of the Order throughout the ranks of DOJ, I concluded that the interpretation was not legally plausible in light of the Order's plain language and the government's many statements indicating the Order's expansive scope. PI Order at 14.

         On May 22, 2017, Attorney General Sessions issued the AG Memorandum, putting forward DOJ's “conclusive” interpretation of the Executive Order; it essentially repeats the interpretation that the government proposed at oral argument. See Reconsideration Motion, Attachment A (“AG Memorandum”) (SF Dkt. No. 107). The AG Memorandum states that the Executive Order does not “purport to expand the existing statutory or constitutional authority of the Attorney General and the Secretary of Homeland Security in any respect” and instead instructs those officials to take action “to the extent consistent with the law.” AG Memorandum at 2. It also states that the defunding provision in section 9(a) will be applied “solely to federal grants administered by [DOJ] or [DHS]” and to grants that require the applicant to “certify . . . compliance with federal law, including 8 U.S.C. section 1373, as a condition for receiving an award.” AG Memorandum at 1-2. The AG Memorandum also states that DHS and DOJ may only impose these conditions pursuant to “existing statutory or constitutional authority, ” and only where “grantees will receive notice of their obligation to comply with section 1373.” AG Memorandum at 2.

         The same day that the AG Memorandum was released, the government moved for leave to file a motion for reconsideration of the PI Order on the grounds that the AG Memorandum contradicts conclusions central to my justiciability and merits determinations. Reconsideration Motion (“Recon. Mot.”) at 4 (SF Dkt. No. 107); (SC Dkt. No. 113). The Counties opposed the motion for leave, arguing that the government had not been diligent in bringing the motion and had failed to demonstrate that the AG Memorandum was a material change of fact or law, as required by Civil Local Rule 7-9. See e.g. SF Opposition to Motion for Leave at 1-4 (SF Dkt. No. 103). I granted the government's motion for leave without addressing these arguments to avoid creating a procedural ambiguity regarding the government's time to appeal the PI Order, and the government promptly filed its motions for reconsideration. See Leave Order at 1-2 (SF Dkt. No. 106).[3]

         While its reconsideration motions were pending, the government moved to dismiss all the claims brought by San Francisco and Santa Clara.[4] In its motions to dismiss, the government asserts that the Counties lack standing to challenge the Executive Order, especially in light of the guidance issued in the AG Memorandum, because the Executive Order is an internal directive that does not purport to change the law. It further asserts that the plaintiffs have failed to state any claim against the Executive Order. The government also moves to dismiss San Francisco's claim for a declaration that it complies with section 1373 on the grounds that San Francisco has not identified an independent cause of action to seek declaratory relief and its claim is non-justiciable.

         LEGAL STANDARD

         RECONSIDERATION

         Under the Northern District's local rules, before filing a motion for reconsideration a party must obtain leave of court. Civil L.R. 7-9(a). To obtain leave, the party must “specifically show reasonable diligence in bringing the motion” and one of the following:

(1) That at the time of the motion for leave, a material difference in fact or law exists from that which was presented to the Court before entry of the interlocutory order for which reconsideration is sought. The party also must show that in the exercise of reasonable diligence the party applying for reconsideration did not know such fact or law at the time of the interlocutory order; or
(2) The emergence of new material facts or a change of law occurring after the time of such order; or
(3) A manifest failure by the Court to consider material facts or dispositive legal arguments which were presented to the Court before such interlocutory order.

Civil L. R. 7-9(b)(1)-(3).

         Once a reconsideration motion is filed, reconsideration is appropriate “if the district court (1) is presented with newly discovered evidence, (2) committed clear error or the initial decision was manifestly unjust, or (3) there is an intervening change in controlling law.” Sch. Dist. No. 1J, Multnomah Cnty., Or. v. ACandS Inc., 5 F.3d 1255, 1263 (9th Cir. 1993).

         MOTION TO DISMISS

         Under Federal Rule of Civil Procedure 12(b)(6), a district court must dismiss a complaint if it fails to state a claim upon which relief can be granted. To survive a Rule 12(b)(6) motion to dismiss, the plaintiff must allege “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is facially plausible when the plaintiff pleads facts that “allow the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation omitted). There must be “more than a sheer possibility that a defendant has acted unlawfully.” Id. While courts do not require “heightened fact pleading of specifics, ” a plaintiff must allege facts sufficient to “raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555, 570.

         In deciding whether a plaintiff has stated a claim upon which relief can be granted, the court accepts plaintiff's allegations as true and draws all reasonable inferences in favor of the plaintiff. Usher v. City of Los Angeles, 828 F.2d 556, 561 (9th Cir. 1987). However, the court is not required to accept as true “allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences.” In re Gilead Scis. Sec. Litig., 536 F.3d 1049, 1055 (9th Cir. 2008).

         A motion to dismiss filed pursuant to Rule 12(b)(1) is a challenge to the court's subject matter jurisdiction. See Fed. R. Civ. P. 12(b)(1). “Federal courts are courts of limited jurisdiction, ” and it is “presumed that a cause lies outside this limited jurisdiction.” Kokkonen v. Guardian Life Ins. of Am., 511 U.S. 375, 377 (1994). The party invoking the jurisdiction of the federal court bears the burden of establishing that the court has the requisite subject matter jurisdiction to grant the relief requested. Id.

         A challenge pursuant to Rule 12(b)(1) may be facial or factual. See White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000). In a facial attack, the jurisdictional challenge is confined to the allegations pled in the complaint. See Wolfe v. Strankman, 392 F.3d 358, 362 (9th Cir. 2004). The challenger asserts that the allegations in the complaint are insufficient “on their face” to invoke federal jurisdiction. See Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). To resolve this challenge, the court assumes that the allegations in the complaint are true and draws all reasonable inferences in favor of the party opposing dismissal. See Wolfe, 392 F.3d at 362.

         “By contrast, in a factual attack, the challenger disputes the truth of the allegations that, by themselves, would otherwise invoke federal jurisdiction.” Safe Air, 373 F.3d at 1039. To resolve this challenge, the court “need not presume the truthfulness of the plaintiff's allegations.” Id. (citation omitted). Instead, the court “may review evidence beyond the complaint without converting the motion to dismiss into a motion for summary judgment.” Id. (citations omitted). Once the moving party has made a factual challenge by offering affidavits or other evidence to dispute the allegations in the complaint, the party opposing the motion must “present affidavits or any other evidence necessary to satisfy its burden of establishing that the court, in fact, possesses subject matter jurisdiction.” St. Clair v. City of Chico, 880 F.2d 199, 201 (9th Cir. 1989); see also Savage v. Glendale Union High Sch. Dist. No. 205, 343 F.3d 1036, 1040 n.2 (9th Cir. 2003).

         DISCUSSION

         I. RECONSIDERATION

         The government has moved for reconsideration of my preliminary injunction order. Under Ninth Circuit precedent, reconsideration is only appropriate “if the district court (1) is presented with newly discovered evidence, (2) committed clear error or the initial decision was manifestly unjust, or (3) there is an intervening change in controlling law.” See Sch. Dist. No. 1J, Multnomah Cnty., Or., 5 F.3d at 1263. The government does not contend that I committed clear error in my initial decision or manifestly failed to consider material facts or dispositive legal arguments. Instead, it argues that the AG Memorandum represents a change in law and is a new material fact that justifies reconsideration.

         A. Whether the AG Memorandum Reflects a Change in Controlling Law

         The government does not contend that the AG Memorandum is controlling authority that binds this court. See Gov. Recon. Reply at 5 n.6. It does suggest that the AG Memorandum undermines my prior conclusions regarding the meaning and scope of the Executive Order and should be credited because it is the “conclusive” interpretation of the Attorney General. Id. at 7-11.

         This argument is not persuasive. If, as the government admits, the AG Memorandum is not new controlling authority, it is persuasive only to the extent that it is an accurate and credible reading of the Executive Order. See Comite de Jornaleros de Redondo Beach v. City of Redondo Beach, 657 F.3d 936, 946 (9th Cir. 2011)(while a court must “consider the City's authoritative constructions of the Ordinance, including its implementation and interpretation of it, ” it need not “adopt an interpretation precluded by the plain language of the ordinance.”). It is unnecessary to address the merits of the interpretation outlined in the AG Memorandum because it is the same interpretation the government proposed at oral argument; I have already assessed and rejected it as not legally plausible. See SC Recon. Oppo. at 6-8.

         A motion for reconsideration should not “be used to ask the Court to rethink what it has already thought, ” Garcia v. City of Napa, No. C-13-03886-EDL, 2014 WL 342085, at *1 (N.D. Cal. Jan. 28, 2014), and is not a “substitute for appeal or a means of attacking some perceived error of the court.” Washington v. Sandoval, C-10-0250-LHK, 2011 WL 2039687, at *1 (N.D. Cal. May 24, 2011). Because the AG Memorandum is not new controlling authority and only repeats an interpretation of the Executive Order that I have already rejected, it does not justify reconsideration as a “change in controlling authority.”

         B. Whether the AG Memorandum Reflects a Material Change in Fact orEvidence The government submits that the AG Memorandum reflects a material change in fact or evidence because it is formal guidance from the Attorney General regarding the scope and meaning of the Executive Order that binds DOJ and other federal agencies. Id. It argues that “the significance of the AG Memorandum lies not only in what it says, but also in the fact that the Attorney General himself has now provided guidance, and in a formal way that is binding on those who will implement the grant eligibility provision - thus directly ...


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