United States District Court, N.D. California
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
government has moved for reconsideration of my April 25, 2017
order enjoining section 9(a) of Executive Order 13768
(“PI Order”). 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
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
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.
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.
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.
its reconsideration motions were pending, the government
moved to dismiss all the claims brought by San Francisco and
Santa Clara. 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.
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).
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).
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.
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).
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.
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.
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).
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
Whether the AG Memorandum Reflects a Change in Controlling
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.
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.
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
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 ...