Case 3:17-cv-00451 Document 1 Filed 01/28/17 Page 1 of 7

1 East Bay Law Andrew W. Shalaby sbn 206841
2 1417 Solano Avenue Albany, CA 94706
3 Tel. 510-551-8500 Fax: 510-725-4950
4 email: andrew@eastbaylaw.com

5

6 Attorneys for Plaintiffs The People of the State of California, and
7 The People of the United States of America

8

9

10

IN THE UNITED STATES DISTRICT COURT

11

NORTHERN DISTRICT OF CALIFORNIA

12

SAN FRANCISCO

13

14 People of the United States of 15 America and the State of California,

16

Plaintiffs,

17

vs.

18 Donald Trump; United States of America,
19
Defendants.
20

21

22

Case Number: 3:17-cv-451 (Fee Exempt: 28 U.S.C. § 1914(b), by Judicial Conference effective 12/2016)
COMPLAINT FOR INJUNCTION AND REPEAL OF PRESIDENTIAL EXECUTIVE ORDER DATED JANUARY 27, 2017 SUSPENDING VISAS AND IMMIGRATION BENEFITS WITHOUT CONGRESSIONAL APPROVAL U.S. Const. art. I, § 1; U.S. Const. art. II, § 1, cl. 1

23

24

I. FEE EXEMPTION

25

This action is brought on behalf of the People of the State of California and

26 United States, and exempted from filing fees under 28 U.S.C. § 1914(b):

27

Effective on: December 1, 2016

28

Complaint For Injunction of Executive Order Dated 1/27/17 Suspending Visas and Immigration

Benefits Without Congressional Approval 1

No. 3:17-cv-451

Case 3:17-cv-00451 Document 1 Filed 01/28/17 Page 2 of 7

1

The United States should not be charged fees under this schedule, with

the exception of those specifically prescribed in Items 2, 4 and 5, when

2

the information requested is available through remote electronic access.

3

Reference:

4

http://www.uscourts.gov/services-forms/fees/district-court-miscellane

5

ous-fee-schedule

6

I. JURISDICTION

7

This action arises under the Constitution, laws, or treaties of the United States,

8 conferring Federal Question jurisdiction under 28 U.S.C. § 1331.

9

10

VENUE

11

Defendant is the United States. Venue is proper in any judicial district pursuant

12 to 28 U.S.C. § 1391(e).

13

14

PARTIES

15

1. Plaintiffs are the People of the United States of America and the State of

16 California, by way of the Private Attorney General statutes of the State of California

17 and United States, for this civil action. The action is for the protection of all persons

18 in the United States in their civil rights and for their vindication pursuant to brought

19 pursuant to 42 U.S.C. § 1988.
20
2. Defendant, Donald Trump, aka Donald John Trump (“Mr. Trump”), is
21
the forty fifth president of the united states, inaugurated eight days ago, on January
22
20, 2017. He is named as an indispensable party with regard to this action to enjoin
23
enforcement of his executive order issued one day before the filing of this action, on
24
January 27, 2017, purporting to suspend visas and immigration benefits of a
25
seemingly undefined class of persons, apparently based on ethnicity and/or religious
26
27 beliefs.

28

3. Defendant, the United States of America, is the United States

Complaint For Injunction of Executive Order Dated 1/27/17 Suspending Visas and Immigration

Benefits Without Congressional Approval 2

No. 3:17-cv-451

Case 3:17-cv-00451 Document 1 Filed 01/28/17 Page 3 of 7

1 Government, generally, and is named as a defendant for the purpose of enjoining

2 enforcement of the Executive Order of Mr. Trump.

3

FIRST CAUSE OF ACTION FOR INUNCTION OF

EXECUTIVE ORDER DATED JANUARY 27, 2017

4

4. On January 27, 2017, one day before the filing of this Complaint, Mr.
5

Trump signed an executive order purporting to suspend visas and immigration
6

7 benefits of a seemingly undefined class of persons, apparently based on ethnicity

8 and/or religious beliefs. The order is captioned:

9

“EXECUTIVE ORDER PROTECTING THE NATION FROM FOREIGN TERRORIST

10

ENTRY INTO THE UNITED STATES” A copy of the Executive Order is attached as Exhibit A hereto.

11

5. The Executive Order purports to suspend the issuance of visas and

12 benefits, with it’s stated goal being the prevention of entry of citizens and/or residents

13 of largely unspecified countries, and appears to erroneously reference a statute which

14 does not appear to exist: “section 217(a)(12) of the INA.” While there is a “section

15 217,” there does not appear to be a section “217(a)(12)” identifying the countries from

16 which “immigrant and nonimmigrant” persons are to be denied entry to the United

17 States:

18

I hereby proclaim that the immigrant and nonimmigrant entry into the

19

United States of aliens from countries referred to in section 217(a)(12) of the INA, 8 U.Ss.C. 1187(a)(12), would be detrimental to the interests

20

of the United States, and I hereby suspend entry into the United States,

as immigrants and nonimmigrants, of such persons for 90 days from the

21

date of this order...”

22 The People are not able to readily identify which countries the President intended

23 because there does not appear to be a “section 217(a)(12),” and therefore does not

24 appear to be any publication defining the “countries referred” in “section 217(a)(12).

25

6. The Executive Order violates the separation of powers doctrine without

26 statutory exception, because U.S. Const. art. I, § 1 vests Congress with all legislative

27 powers:

28

Complaint For Injunction of Executive Order Dated 1/27/17 Suspending Visas and Immigration

Benefits Without Congressional Approval 3

No. 3:17-cv-451

Case 3:17-cv-00451 Document 1 Filed 01/28/17 Page 4 of 7

1

U.S. Const. art. I, § 1

2

All legislative Powers herein granted shall be vested in a Congress of the

United States, which shall consist of a Senate and House of

3

Representatives.

4 The President is vested with the executive power pursuant to U.S. Const. art. II, § 1,

5 cl. 1:

6

Section 1. The executive Power shall be vested in a President of the United

7

States of America.

8 The Judiciary, this Court, is vested with the judicial powers to interpret the laws

9 pursuant to is vested with U.S. Const. art. III, § 1:

10

Section 1. The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from

11

time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and

12

shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.

13 No Statutory Exception Exists

14

There has been no change of any kind so as to warrant departure from the

15 Separation of Powers doctrine and permit Mr. Trump to legislate the Executive Order

16 at issue. There has been on increase of threat of terrorist attacks at all since the event

17 referenced in the second paragraph of Mr. Trump’s Executive Order, the “terrorist

18 attacks of September 11, 2001.” To the contrary, the threat of terrorist attacks has

19 declined steadily since September 2001, therefore Congress and the previous two

20
presidential administrations never considered enacting such a prohibition of entry of

21
persons to the United States based on their countries of origin and/or religious beliefs.

22
There is no exigent circumstance exception to warrant an executive order, while the
23

legislature and previous two presidents served through the several years following
24

September 11, 2001 and had years to enact legislation barring entry into the United
25

States by the classes of persons identified on Mr. Trump’s Executive Order, but
26

27 clearly determined such legislation would be detrimental to the interests of the People

28 of the United States of America.

Complaint For Injunction of Executive Order Dated 1/27/17 Suspending Visas and Immigration

Benefits Without Congressional Approval 4

No. 3:17-cv-451

Case 3:17-cv-00451 Document 1 Filed 01/28/17 Page 5 of 7

1

2 THE EXECUTIVE ORDER WOULD DAMAGE U.S. REPUTATION

3

Mr. Trump’s intent is commendable and appreciated insofar as he identifies

4 persons who inflict “gender-based violence against women, including honor killings,”

5 as well as persons “who have been radicalized after entry into the United States and

6 engaged in terrorism-related acts, or who have provided material support to terrorism-
7 related organizations in countries that pose a threat to the United States.” However,
8 Mr. Trump’s Executive Order is overly broad and misses it’s mark. If not stricken,
9 the Executive Order would facially damage the reputation of the United States
10 worldwide, because it discriminates against a very large class of persons based on 11 either their foreign citizenship or residency, or religious beliefs, based on an erroneous 12 beliefs of one individual (Mr. Trump). While the several countries Mr. Trump 13 attempted to identify on his Executive Order are not actually specified, and apparently 14 cannot even be ascertained from the document or it’s references, nevertheless a ban 15 on entry to the United States based solely on foreign citizenship or residency, or 16 religion, facially evidences inhumane discrimination.
17

18 CONGRESS MAY ENACT THE LEGISLATION IF NECESSARY

19

The Legislative branch is charged with enactment of the laws. Mr. Trump can

20
therefore tender his Executive Order as a bill to Congress, so that the legislature can

21
decide whether such a law should be enacted for the benefit of the People of the

22
United States of America. However, no statute or authority exists to support the
23

issuance of this particular Executive Order.
24

25

SECOND CAUSE OF ACTION TO STRIKE EXECUTIVE

26

ORDER AS UNCONSTITUTIONAL INFRINGEMENT ON

27

ESTABLISHMENT CLAUSE

28

7. The First Amendment to the United States Constitution is the cornerstone

Complaint For Injunction of Executive Order Dated 1/27/17 Suspending Visas and Immigration

Benefits Without Congressional Approval 5

No. 3:17-cv-451

Case 3:17-cv-00451 Document 1 Filed 01/28/17 Page 6 of 7

1 of democracy. The first sentence of the First Amendment provides:

2

“Congress shall make no law respecting an establishment of religion...”

3 Mr. Trump’s Executive Order presents a proposed “law” facially prohibiting entry of

4 persons to the United States based on their adherence to religious beliefs shared in

5 certain countries. The Executive Order therefore is facially unconstitutional and must

6 be stricken as an infringement on the Establishment Clause of the First Amendment.

7

INJUNCTIVE RELIEF PENDING ADJUDICATION

8

Plaintiffs respectfully move for an immediate injunction of enforcement of Mr.

9 Trump’s Executive Order until it’s validity and constitutionality is adjudicated.

10

11 Dated: January 28, 2017
12
13

s/Andrew W. Shalaby Andrew W. Shalaby, Attorney for Plaintiffs

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Complaint For Injunction of Executive Order Dated 1/27/17 Suspending Visas and Immigration

Benefits Without Congressional Approval 6

No. 3:17-cv-451

Case 3:17-cv-00451 Document 1 Filed 01/28/17 Page 7 of 7

1

PROOF OF SERVICE

2

I, Andrew W. Shalaby, declare as follows:

3

I am a citizen of the United States, over the age of eighteen years and not a

4 party to the within entitled action. I am employed at 7525 Leviston Ave, El

5 Cerrito, CA. On January 28, 2017 I served the attached:

6

COMPLAINT FOR INJUNCTION AND REPEAL OF

PRESIDENTIAL EXECUTIVE ORDER DATED

7

JANUARY 27, 2017 SUSPENDING VISAS AND IMMIGRATION BENEFITS WITHOUT

8

CONGRESSIONAL APPROVAL

9

on the interested parties in said action, by placing a true copy thereof in sealed envelope(s) addressed as follows:

10

Office of the Attorney General

11

455 Golden Gate, Suite 11000 San Francisco, CA 94102-7004

12 and served the named document in the manner indicated below:

13 BY MAIL: I am familiar with the practices of the U.S. Postal Service, and I

14 caused true and correct copies of the above documents, by following ordinary

15

business practices, to be placed and sealed in envelopes(s) addressed to the addressees, at an office of the U.S. Postal Service in El Cerrito, California, for

16 collection and mailing by first class mail with the United States Postal Service.

17
I declare under penalty of perjury under the laws of the State of California 18 that the foregoing is true and correct. Executed January 28, 2017, at El Cerrito, 19 California.

20

21

s/Andrew W. Shalaby

22

Andrew W. Shalaby

23

24

25

26

27

28

Complaint For Injunction of Executive Order Dated 1/27/17 Suspending Visas and Immigration

Benefits Without Congressional Approval 7

No. 3:17-cv-451

 
 1

2

3

4

UNITED STATES DISTRICT COURT

5

NORTHERN DISTRICT OF CALIFORNIA

6

7 PEOPLE OF THE UNITED STATES OF AMERICA, et al.,

8

Plaintiffs,

9

v.

10 DONALD J. TRUMP, et al.,

11

Defendants.

12

Case No. 17-cv-00451-JD ORDER DISMISSING COMPLAINT

United States District Court Northern District of California

13

Attorney Andrew W. Shalaby filed this case on behalf of plaintiffs, “the People of the

14 United States of America and the State of California,” to enjoin and invalidate as unconstitutional

15 an executive order issued by President Donald Trump on January 27, 2017 for “Protecting the

16 Nation from Foreign Terrorist Entry into the United States.” Dkt. No. 1. Shalaby also filed an

17 application to proceed in forma pauperis (“IFP”), which is pending before the Court. Dkt. No. 4.

18 Because the complaint makes clear that federal subject matter jurisdiction is lacking here, the

19 Court dismisses it without prejudice under Federal Rule of Civil Procedure 12(h)(3) and 28 U.S.C.

20 § 1915(e)(2)(B), and denies the IFP application as moot.

21

BACKGROUND

22

The challenged executive order suspends immigrant and non-immigrant entry into the

23 United States of all aliens from certain designated countries, and also suspends the U.S. Refugee

24 Admissions Program. See Dkt. No. 1-1 (the “Order”). Shalaby filed the complaint the day after

25 the Order was signed “for the protection of all persons in the United States in their civil rights and

26 for their vindication pursuant to . . . 42 U.S.C. § 1988.” Dkt. No. 1 ¶ 1. It alleges two claims.

27 Injunctive relief is sought on the basis that the Order “violates the separation of powers doctrine

28 without statutory exception,” will “damage U.S. reputation,” and was issued without statutory or

1 other authority. Id. ¶¶ 4-6. The complaint also asks the Court to strike the Order as an

2 “unconstitutional infringement on [the] Establishment Clause.” Id. ¶ 7.

3

DISCUSSION

4

A fundamental rule of federal practice is that the Court “must dismiss” an action if it

5 “determines at any time that it lacks subject-matter jurisdiction.” Fed. R. Civ. P. 12(h)(3); see also

6 Snell v. Cleveland, Inc., 316 F.3d 822, 826 (9th Cir. 2002) (“Federal Rule of Civil Procedure

7 12(h)(3) provides that a court may raise the question of subject matter jurisdiction, sua sponte, at

8 any time during the pendency of the action”). In addition, a complaint filed by a civil plaintiff

9 seeking to proceed in forma pauperis is subject to sua sponte screening and dismissal if the

10 complaint is frivolous or fails to state a claim upon which relief may be granted. 28 U.S.C.

11 § 1915(e)(2)(B); Calhoun v. Stahl, 254 F.3d 845, 845 (9th. Cir. 2001); Lopez v. Smith, 203 F.3d

United States District Court Northern District of California

12 1122, 1126-27 (9th Cir. 2000).

13

The complaint fails to establish that the Court has subject matter jurisdiction over this case.

14 It does not allege a concrete and particularized “injury in fact” caused by the Order, which is a

15 core requirement for Article III standing. Clapper v. Amnesty Int’l USA, 133 S.Ct. 1138, 1146-47

16 (2013); Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992). It does not even allege a

17 specific person who might have sustained an injury in fact, and instead names as plaintiffs “the

18 People of the State of California and United States.” Dkt. No. 1 at 1. Article III does not permit

19 the Court to ignore the concrete injury requirement and act on a generalized grievance alleged to

20 be common to all members of the public. See Lujan, 504 U.S. at 576 (“‘The province of the

21 court,’ as Chief Justice Marshall said in Marbury v. Madison, 5 U.S. (1 Cranch) 137, 170, 2 L.Ed.

22 60 (1803), ‘is, solely, to decide on the rights of individuals.’ Vindicating the public interest

23 (including the public interest in Government observance of the Constitution and laws) is the

24 function of Congress and the Chief Executive.”) (emphasis in original); Drake v. Obama, 664 F.3d

25 774, 779 (9th Cir. 2011) (“generalized interest of all citizens in constitutional governance”

26 insufficient to establish Article III standing) (internal citations omitted).

27

The fact that the complaint invokes 42 U.S.C. § 1988 as the basis for the suit, see Dkt.

28 No. 1 ¶ 1, makes no difference on the question of standing. Section 1988 does not create an 2

1 independent federal cause of action for the violation of federal civil rights, let alone carve out an

2 exception to the standing requirement under Article III of the Constitution. Moor v. County of

3 Alameda, 411 U.S. 693, 702-04 (1973); see also Drake, 664 F.3d at 785 n.5 (“§ 1988 does not

4 create an independent cause of action for the violation of federal civil rights, but ‘instructs federal

5 courts as to what law to apply in causes of actions arising under federal civil rights acts’”).

6

CONCLUSION

7

Consequently, the complaint is dismissed without prejudice for lack of subject matter

8 jurisdiction, and the IFP application is denied as moot. Although the Court has doubts that any

9 amendment could cure the standing problem inherent in the complaint in its present form, Shalaby

10 will have an opportunity to amend, in a manner consistent with this order, by February 15, 2017.

11

IT IS SO ORDERED.

United States District Court Northern District of California

12 Dated: February 1, 2017

13

14

15

JAMES DONATO United States District Judge

16

17

18

19

20

21

22

23

24

25

26

27

28 3

 
 Case 3:17-cv-00451-JD Document 21 Filed 03/10/17 Page 1 of 9

1 East Bay Law Andrew W. Shalaby sbn 206841
2 1417 Solano Avenue Albany, CA 94706
3 Tel. 510-551-8500 Fax: 510-725-4950
4 email: andrew@eastbaylaw.com

5

6 Attorneys for Plaintiffs The People of the State of California, and
7 The People of the United States of America

8

9

10

IN THE UNITED STATES DISTRICT COURT

11

NORTHERN DISTRICT OF CALIFORNIA

12

SAN FRANCISCO

13

14 People of the United States of 15 America and the State of California,

16

Plaintiffs,

17

vs.

18 Donald Trump; United States of America,
19
Defendants.
20

21

Case Number: 3:17-cv-00451-JD
FIRST AMENDED COMPLAINT FOR INJUNCTION AND REPEAL OF UNCONSTITUTIONAL SEGMENTS OF THE PRESIDENTIAL EXECUTIVE ORDER DATED MARCH 6, 2017 SUSPENDING ENTRY OF TARGET PERSONS INTO THE UNITED STATES The Hon. James Donato, Presiding.

22

23

I. JURISDICTION

24

This action, which was the first constitutional challenge to the President’s

25 Executive Order number 13769 issued on January 27, 2017, was filed several hours

26 later, on January 28, 2017. The claims arise under the Constitution, laws, or treaties

27 of the United States, and is specific to the Executive Order of the President issued

28

First Amended Complaint For Injunction of Executive Order Dated 3/6/2017 Suspending

Entry of Target Persons Into The U.S.A. 1

3:17-cv-00451-JD

Case 3:17-cv-00451-JD Document 21 Filed 03/10/17 Page 2 of 9

1 March 6, 2017, and captioned:

2

Executive Order Protecting The Nation From Foreign Terrorist Entry

Into The United States

3

Jurisdiction is pursuant to Federal Question under 28 U.S.C. § 1331. The Executive
4

Order at issue shall hereinafter be referenced as “SUBJECT EXECUTIVE ORDER.”
5

A true and correct copy of the SUBJECT EXECUTIVE ORDER is attached as Exhibit
6

7 A hereto.

8

VENUE

9

Defendant is the United States. Venue is proper in any judicial district pursuant

10 to 28 U.S.C. § 1391(e).

11

PARTIES

12

1. Plaintiffs are the People of the United States of America and the State of

13 California (hereinafter “THE PEOPLE”), by way of the Private Attorney General

14 statutes of the State of California and United States. The action is on behalf of all

15 persons in the United States, who are negatively and adversely impacted by the

16 SUBJECT EXECUTIVE ORDER, in protection of their civil rights, pursuant to 42

17 U.S.C. § 1988. THE PEOPLE include persons within the purview of Sections 2(c)

18 and 3(a) of the SUBJECT EXECUTIVE ORDER, as well as professionals, educators,

19 persons of varying religious beliefs and backgrounds, and persons of all ethnicity.

20 The term, “THE PEOPLE,” therefore references all interests OPPOSED to the

21 challenged LIMITED PROVISIONS of the SUBJECT EXECUTIVE ORDER,

22 including but not limited to those persons who have filed declarations as presented

23 with the Requests for Judicial Notices dated 2/10/2017 (doc. 16) and 2/19/17 (doc.

24 20). Said declarations represent a sampling of the affected persons, and include

25 doctors, lawyers, educators, other professionals, Christians, Catholics, Jews, Muslims,

26 persons of other religious beliefs, companies and business entities, and persons

27 otherwise directly and adversely affected by the SUBJECT EXECUTIVE ORDER.

28

First Amended Complaint For Injunction of Executive Order Dated 3/6/2017 Suspending

Entry of Target Persons Into The U.S.A. 2

3:17-cv-00451-JD

Case 3:17-cv-00451-JD Document 21 Filed 03/10/17 Page 3 of 9

1

2. Defendant, the Honorable Mr. Donald Trump, aka Mr. Donald John

2 Trump (“Mr. Trump”), is the forty fifth president of the united states, inaugurated on

3 January 20, 2017. He is named as an indispensable party with regard to this action to

4 enjoin enforcement of his executive order issued on March 6, 2017, banning and

5 restricting entry into the United States for a select group of persons, based on possible

6 affiliation with six designated countries.

7

3. Defendant, the United States of America, is the United States

8 Government, generally, and is named as a defendant for the purpose of enjoining

9 enforcement of the Executive Order of Mr. Trump.

10

STATEMENT OF LIMITATION

11

4. Because Mr. President did a commendable job in revising Executive

12 Order 13769, this case presents a LIMITED challenge to the SUBJECT EXECUTIVE

13 ORDER, and only to accomplish the following with respect to Section 3:

14

15

(a) Expansion of the narrow scope of countries listed on the SUBJECT

16

EXECUTIVE ORDER, to include all countries from which potential terrorists

17

may infiltrate the United States, or terminate the geographical specificity, so as

18

to put an end to the discrimination, polarization, and national divide which

19

followed issuance of the January 27, 2017 Executive Order 13769; and

20

21
(b) Amendment of Section 3(a)(iii) so that the restriction applies only to foreign
22
nationals, of any country from which infiltration by terrorists may be possible,
23
who do not have a valid visa, and removing the words “on the effective date of
24
this order.”
25

26

27 The request for expansion of scope of countries is necessary to resolve the well-

28 established and non-discriminatory intent of the Equal Protection clause of U.S.

First Amended Complaint For Injunction of Executive Order Dated 3/6/2017 Suspending

Entry of Target Persons Into The U.S.A. 3

3:17-cv-00451-JD

Case 3:17-cv-00451-JD Document 21 Filed 03/10/17 Page 4 of 9

1 Constitution, Amendment 14. The request for removal of the words “on the effective

2 date of this order” on Section 3(a)(iii) is to prevent the harm and inadvertent injustice

3 in denying entry to persons simply because of administrative and other delays which

4 would cause the issuance of their visas to take place after the March 16, 2017

5 deadline.

6

The provisions for bolstering of the vetting process to include background

7 investigations, interviews, and other measures to assure that persons coming into the

8 country from any of the designated countries are not being challenged, although it is

9 requested that the vetting process be expanded to include vetting of persons from any

10 country accessible to terrorists, rather than from just the six designated countries.

11

12

FIRST CAUSE OF ACTION FOR INJUNCTIVE RELIEF TO

13

REMEDY EQUAL PROTECTION CONCERNS BY REMOVING REFERENCE TO DESIGNATED COUNTRIES

14

5. THE PEOPLE identify the non-compliance of the SUBJECT

15 EXECUTIVE ORDER with the Equal Protection Clause of the Fourteenth

16 Amendment with respect to Section 2, which is based on the countries identified on

17 Section 1(f) as follows:

18

Section 1(f): [...] Accordingly, while that assessment is ongoing, I am

19

imposing a temporary pause on the entry of nationals from Iran, Libya, Somalia, Sudan, Syria, and Yemen, subject to categorical exceptions and

20

case-by-case waivers, as described in section 3 of this order.

21 The unconstitutional provision is Section 2(c), which reads in relevant part:

22

I therefore direct that the entry into the United States of nationals of

those six countries be suspended for 90 days from the effective date of

23

this order, subject to the limitations, waivers, and exceptions set forth in

sections 3 and 12 of this order.

24

The provision violates the Equal Protection clause and adversely affects those persons
25

whom remain on U.S. soil and are deprived of access to their family members,
26

27 business associates, employees (as discussed pp. 10 and 28 of the Ninth Circuit order

28 in Washington v. Trump, case number 17-35105 (2/9/17)), and others, and is generally

First Amended Complaint For Injunction of Executive Order Dated 3/6/2017 Suspending

Entry of Target Persons Into The U.S.A. 4

3:17-cv-00451-JD

Case 3:17-cv-00451-JD Document 21 Filed 03/10/17 Page 5 of 9

1 discriminatory, because it limits scrutiny to six countries, excluding many other

2 countries from which terrorists may come into the United States. To remedy this

3 violation, the scope should simply be expanded to all countries. This is resolved by

4 removal of the specificity of the six designated countries.

5

6 Concrete Harm From E.O. 13769 Carries Over to New E.O.

7

6. The specificity of select countries on the Executive Order has already

8 resulted in actual and severe harm and personal injuries to individuals throughout the

9 United States. The harm is evident now in the actual discrimination, and national

10 polarization of the people, as widely reported immediately following issuance of

11 Executive Order 13769. The most recent was a “Trump Rally” in Berkeley,

12 California, on March 4, 2017, in which bloodshed took place when proponents and

13 opponents of the President’s Immigration Order (inter alia) clashed at a public park

14 opposite City Hall. The harm is evidenced in public schools nationwide, where a

15 large albeit unspecified number of students have shunned their fellow co-students of

16 Muslim or Middle East decent. The injuries have ranged from profound sadness and

17 depression experienced by the young victim students, to actual physical injury.

18 Attacks on Muslims have been reported on the news in subways and other public

19 locations. The problem is of grave National concern because of preexisting volatility.

20
The inception of this discrimination and polarization began with Mr. Trump’s

21
presidential campaign promises to ban Muslims from entry to the U.S., as evidenced
22
by post-election hostilities, i.e. an incident on the NY subway where a woman wearing
23
a hijab was verbally attacked, on December 6, 2016. The news story disclosed in
24

relevant part:
25

New York City police are looking for three men who taunted a Muslim

26

woman aboard a subway train, yelling “Donald Trump” and calling her

27

a terrorist.

28 The victim stated:

First Amended Complaint For Injunction of Executive Order Dated 3/6/2017 Suspending

Entry of Target Persons Into The U.S.A. 5

3:17-cv-00451-JD

Case 3:17-cv-00451-JD Document 21 Filed 03/10/17 Page 6 of 9

1

“They kept saying, ‘you don’t belong here, get out of this country, go

2

back to your country,’ and finally they came really close and they were

like, ‘take that rag off your head,’” she said.

3

The discrimination fostered by specificity of a select group of predominantly Muslim
4

countries on the SUBJECT EXECUTIVE ORDER was also evident by recent actions
5

of Enforcement Officers whom had adopted general discriminatory practices and
6

7 detained persons whom were not otherwise subject to the travel ban. An example was

8 the February 25, 2017 detention of the late Mr. Muhammad Ali’s son, Mr.

9 Muhammad Ali Jr., a Muslim. Despite having been born and raised in the U.S., Mr.

10 Ali was detained by immigration officials at a Florida airport and questioned about his

11 ancestry and religion simply because he was Muslim. Mr. Ali’s mother Mrs. Khalila

12 Camacho Ali was also detained. In yet another recent incident on or about 2/27/17,

13 former renown soccer player Mr. Dwight Yorke, a Tobagonian, was denied entry into

14 the U.S. under Executive Order 13769, even though enforcement of it had been

15 suspended by the Court of Appeals, simply because his passport contained an Iranian

16 stamp.

17

The injuries extend to strained relations between the Honorable President

18 Donald Trump on the one hand, and the Judiciary on the other hand, evidenced by Mr.

19 Trump’s upset statement of February 4, 2017, directed to the Honorable Federal Judge

20 James Robart, to wit:

21

“The opinion of this so-called judge, which essentially takes

law-enforcement away from our country, is ridiculous and will be

22

overturned!”

23 In response, on or about February 6, 2017, the several people in disagreement with

24 Mr. President Trump, including famed film-maker Mr. Mr. Michael Moore, resorted

25 to referring to Mr. President as the “so-called president.” The combination of pre-

26 election promises to ban Muslim entry, issuance of Executive Order 13769 and

27 resulting protests and attacks on persons of Muslim beliefs or Middle East appearance,

28

First Amended Complaint For Injunction of Executive Order Dated 3/6/2017 Suspending

Entry of Target Persons Into The U.S.A. 6

3:17-cv-00451-JD

Case 3:17-cv-00451-JD Document 21 Filed 03/10/17 Page 7 of 9

1 and the new March 6, 2017 Executive Order, all serve to foster discrimination,

2 national polarization, and attacks and injuries on innocent people of the United States.

3 The remedy is simply to remove the specificity of the six predominantly Muslim

4 countries of designation on the Executive Order.

5

SECOND CAUSE OF ACTION FOR INJUNCTIVE RELIEF TO

REMEDY EQUAL PROTECTION CONCERNS BY REMOVING

6

TIME RESTRICTION FOR OBTAINING VISAS

7

7. THE PEOPLE identify the non-compliance of the SUBJECT

8 EXECUTIVE ORDER with the Equal Protection Clause of the Fourteenth

9 Amendment with respect to Section 2, which is based on the ban of entry provision

10 premised on the date of obtaining a travel visa, identified on Section 2(a)(iii) as

11 follows:

12

[(a) Scope. Subject to the exceptions set forth in subsection (b) of this

13

section and any waiver under subsection (c) of this section,the suspension of entry pursuant to section 2 of this order shall apply only

14

to foreign nationals of the designated countries who:

15

(i) are outside the United States on the effective date of this order;

16

(ii) did not have a valid visa at 5:00p.m.,eastern standard time on January 27,2017; and]

17

18

(iii) do not have a valid visa on the effective date of this order. [Emphasis added.]

19 The Equal Protection violation is in the disparate treatment of persons who may suffer

20
delays due to administrative backlog or error, or for any other reason, which equally

21
translates to harms suffered by family members and affiliates in the United States who

22
suffer inaccessibility to their family members, friends, employees and the like, as
23

articulated in part on the Ninth Circuit decision referenced above. Those who do not
24

suffer delays will be permitted entry, while those who suffer delays will be subjected
25

to entry on a discretionary basis as articulated in Section 3(c):
26

27

Waivers. Notwithstanding the suspension of entry pursuant to section 2 of this order, a consular officer, or, as appropriate, the Commissioner,

28

U.S. Customs and Border Protection (CBP), or the Commissioner's

First Amended Complaint For Injunction of Executive Order Dated 3/6/2017 Suspending

Entry of Target Persons Into The U.S.A. 7

3:17-cv-00451-JD

Case 3:17-cv-00451-JD Document 21 Filed 03/10/17 Page 8 of 9

1

delegee, may, in the consular officer's or the CBP official's discretion,

decide on a case-by-case basis to authorize the issuance of a visa to, or

2

to permit the entry of, a foreign national for whom entry is otherwise

suspended if the foreign national has demonstrated to the officer's

3

satisfaction that denying entry during the suspension period would cause

undue hardship, and that his or her entry would not pose a threat to

4

national security and would be in the national interest.

5 To resolve this Equal Protection violation, the provision prohibiting or restricting

6 entry based on whether a valid visa was obtained on or after March 16, 2017 should

7 be stricken.

8

RELIEF REQUESTED

9

A concrete harm and injury to THE PEOPLE has resulted due to the

10 manifestation of discrimination arising out of the issuance of Executive Order 13769.

11 The SUBJECT EXECUTIVE ORDER likewise contains the same provisions which
12 have caused this harm, namely the specificity of the six designated countries.
13 Moreover, banning or restricting entry based on whether visas were issued before or
14 after March 16, 2017 has no rational basis and mounts to an Equal Protection 15 violation. The remedy to terrorism is education, not segregation. The United States 16 is a region which was originally occupied only by the American Indian, while all 17 persons from all other countries of origin effectively immigrated onto the continent. 18 All persons are created equal, and are inevitably related to one-another. No class of 19 persons should be segregated and discriminated-against due to religious beliefs,
20
ethnicity, or appearance.
21
For the foregoing reasons, THE PEOPLE move for injunctive relief to remove
22
the specificity of the six designated countries from the scope of the Executive Order,
23
and remove the provision for banning or restricting entry based on the date of issuance
24
of the subject traveler’s visa.
25

26

27 Dated: March 10, 2017
28

s/Andrew W. Shalaby Andrew W. Shalaby, Attorney for THE PEOPLE

First Amended Complaint For Injunction of Executive Order Dated 3/6/2017 Suspending

Entry of Target Persons Into The U.S.A. 8

3:17-cv-00451-JD

Case 3:17-cv-00451-JD Document 21 Filed 03/10/17 Page 9 of 9

1

CERTIFICATE OF SERVICE

2

3

I, Sonia Dunn-Ruiz, declare as follows:

4

I am a citizen of the United States, over the age of eighteen years and not a

5 party to the within entitled action. I am employed at 7525 Leviston Ave, El

6 Cerrito, CA. On March 10, 2017 I served the attached:

7

FIRST AMENDED COMPLAINT FOR INJUNCTION

8

AND REPEAL OF UNCONSTITUTIONAL SEGMENTS OF THE PRESIDENTIAL EXECUTIVE

9

ORDER DATED MARCH 6, 2017 SUSPENDING ENTRY OF TARGET PERSONS INTO THE UNITED

10

STATES; Exhibit A

11 on the interested parties in said action, by placing a true copy thereof in sealed

12 envelope(s) addressed as follows:

13

United States Attorney

14

450 Golden Gate Avenue San Francisco, CA 94102

15 and served the named document in the manner indicated below:

16

17 BY MAIL: I am familiar with the practices of the U.S. Postal Service, and I 18 caused true and correct copies of the above documents, by following ordinary
business practices, to be placed and sealed in envelopes(s) addressed to the 19 addressees, at an office of the U.S. Postal Service in El Cerrito, California, for 20 collection and mailing by first class mail with the United States Postal Service.

21

I declare under penalty of perjury under the laws of the State of California that

22 the foregoing is true and correct. Executed March 10, 2017, at El Cerrito, California.

23

24

______________________________________

25

Sonia Dunn-Ruiz

26

27

28

 
 Case 3:17-cv-00451-JD Document 22 Filed 04/03/17 Page 1 of 13

1 CHAD A. READLER

Acting Assistant Attorney General 2 JOHN R. TYLER

Assistant Branch Director 3 STUART J. ROBINSON (Cal. Bar No. 267183)

Trial Attorney

4

U.S. Department of Justice

Civil Division, Federal Programs Branch

5

450 Golden Gate Ave.

San Francisco, CA 94102

6

Telephone: (415) 436-6635

Facsimile: (415) 436-6632

7

E-mail: stuart.j.robinson@usdoj.gov

8 Attorneys for Defendants

9 Donald Trump; United States of America

10

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

11

SAN FRANCISCO DIVISION

12 PEOPLE OF THE UNITED STATES

)

Case No. 3:17-cv-00451-JD

13

OF AMERICA AND THE STATE OF CALIFORNIA,

) )

14

Plaintiffs,

)

NOTICE OF MOTION AND

)

MOTION TO DISMISS

15

v.

)

AND MEMORANDUM

)

IN SUPPORT

16 DONALD TRUMP; UNITED

)

)

Date: May 11, 2017

17 STATES OF AMERICA

)

Time: 10:00 a.m.

)

Place: San Francisco U.S. Courthouse

18

Defendants.

)

Judge: Hon. James Donato

19

20

21

22

23

24

25

26

27

28

DEFENDANTS’ NOTICE OF MOTION & MOTION TO DISMISS & MEM. IN SUPPORT Case No. 3:17-cv-00451-JD

Case 3:17-cv-00451-JD Document 22 Filed 04/03/17 Page 2 of 13

1

TABLE OF CONTENTS

2

Page

3

4 NOTICE OF MOTION.................................................................................................................1

5 MOTION TO DISMISS ...............................................................................................................1

6 MEMORANDUM OF POINTS AND AUTHORITIES ..............................................................2

7 PRELIMINARY STATEMENT ..................................................................................................2

8 STATEMENT OF THE ISSUES..................................................................................................2

9 BACKGROUND ..........................................................................................................................2

10 DISCUSSION ...............................................................................................................................4

11 CONCLUSION.............................................................................................................................8

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

DEFENDANTS’ NOTICE OF MOTION & MOTION TO DISMISS & MEM. IN SUPPORT Case No. 3:17-cv-00451-JD
i

Case 3:17-cv-00451-JD Document 22 Filed 04/03/17 Page 3 of 13

1

TABLE OF AUTHORITIES

2 Cases

Page(s)

3

Bernhardt v. County of Los Angeles, 279 F.3d 862 (9th Cir. 2002) .............................................................................................. 7, 8

4 Brockovich v. Cmty. Med. Ctrs., Inc.,

5

No. CV-F-06-1609, 2007 WL 738691 (E.D. Cal. Mar. 7, 2007) ........................................... 6

6

Clay v. Fort Wayne Cmty. Sch., 76 F.3d 873 (7th Cir. 1996) .................................................................................................... 7

7 Escobar v. Brewer,

8

461 F. App'x 535 (9th Cir. 2011) ........................................................................................... 7

9

Gest v. Bradbury, 443 F.3d 1177 (9th Cir. 2006) ................................................................................................ 7

10 Hodak v. City of St. Peters,

11

535 F.3d 899 (8th Cir. 2008) .................................................................................................. 6

12

Hollingsworth v. Perry, 133 S. Ct. 2652 (2013) .................................................................................................... 5, 6, 7

13 Int’l Refugee Assistance Project v. Trump,

14

No. CV TDC-17-0361, 2017 WL 1018235 (D. Md. Mar. 16, 2017) ..................................... 3

15

Kowalski v. Tesmer, 543 U.S. 125 (2004) ............................................................................................................... 5

16 Lujan v. Defenders of Wildlife,

17

504 U.S. 555 (1992) ........................................................................................................... 5, 8

18

Montana Shooting Sports Ass’n v. Holder, 727 F.3d 975 (9th Cir. 2013) .............................................................................................. 7, 8

19 Mortera v. N. Am. Mortg. Co.,

20

172 F. Supp. 2d 1240 (N.D. Cal. 2001) .................................................................................. 6

21

Powers v. Ohio, 499 U.S. 400 (1991) ............................................................................................................... 5

22 Schlesinger v. Reservists Comm. to Stop the War,

23

418 U.S. 208 (1974) ............................................................................................................... 7

24

Schmier v. U.S. Court of Appeals, 279 F.3d 817 (9th Cir. 2002) .................................................................................................. 7

25 Simon v. E. Ky. Welfare Rights Org.,

26

426 U.S. 26 (1976) .................................................................................................................. 8

27

Singleton v. Wulff, 428 U.S. 106 (1976) ............................................................................................................... 5

28

DEFENDANTS’ NOTICE OF MOTION & MOTION TO DISMISS & MEM. IN SUPPORT Case No. 3:17-cv-00451-JD
ii

Case 3:17-cv-00451-JD Document 22 Filed 04/03/17 Page 4 of 13

1 Spokeo, Inc. v. Robins,

2

136 S. Ct. 1540 (2016) ............................................................................................................ 8

3

State of Hawai’i v. Trump, No. 1:17-CV-00050, 2017 WL 1167383 (D. Haw. Mar. 29, 2017) .................................. 3, 6

4 U.S. Dep’t of Labor v. Triplett,

5

494 U.S. 715 (1990) ............................................................................................................... 5

6

Vermont Agency of Nat. Res. v. United States ex rel. Stevens, 529 U.S. 765 (2000) ............................................................................................................... 6

7 Vrooman v. Armstrong,

8

No. 3:16-CV-00770, 2016 WL 3563293 (D. Or. June 8, 2016) ............................................. 6

9

Vrooman v. Armstrong, No. 3:16-CV-00770, 2016 WL 3566733 (D. Or. June 29, 2016) ........................................... 6

10 Wash. Envtl. Council v. Bellon,

11

732 F.3d 1131 (9th Cir. 2013) ................................................................................................ 5

12 Statutes

13 42 U.S.C. § 1988 ...................................................................................................................... 3, 8

14 Executive Orders

15 Exec. Order No. 13769, Protecting the Nation From Foreign Terrorist Entry Into the United

States,

16

82 Fed. Reg. 8,977 (Jan. 27, 2017) ............................................................................... passim

17 Exec. Order No. 13780, Protecting the Nation From Foreign Terrorist Entry Into the United

18

States, 82 Fed. Reg. 13,209 (Mar. 6, 2017) ....................................................................................... 3

19

20

21

22

23

24

25

26

27

28

DEFENDANTS’ NOTICE OF MOTION & MOTION TO DISMISS & MEM. IN SUPPORT Case No. 3:17-cv-00451-JD
iii

Case 3:17-cv-00451-JD Document 22 Filed 04/03/17 Page 5 of 13

1 CHAD A. READLER

Acting Assistant Attorney General 2 JOHN R. TYLER

Assistant Branch Director 3 STUART J. ROBINSON (Cal. Bar No. 267183)

Trial Attorney

4

U.S. Department of Justice

Civil Division, Federal Programs Branch

5

450 Golden Gate Ave.

San Francisco, CA 94102

6

Telephone: (415) 436-6635

Facsimile: (415) 436-6632

7

E-mail: stuart.j.robinson@usdoj.gov

8 Attorneys for Defendants

9 Donald Trump; United States of America

10

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

11

SAN FRANCISCO DIVISION

12 PEOPLE OF THE UNITED STATES

)

Case No. 3:17-cv-00451-JD

OF AMERICA AND THE STATE

)

13 OF CALIFORNIA,

)

14

Plaintiffs,

)

NOTICE OF MOTION AND

)

MOTION TO DISMISS

15

v.

)

AND MEMORANDUM

)

IN SUPPORT

16 DONALD TRUMP; UNITED

)

)

Date: May 11, 2017

STATES OF AMERICA 17

)

Time: 10:00 a.m.

)

Place: San Francisco U.S. Courthouse

Defendants.

)

Judge: Hon. James Donato

18

19 NOTICE OF MOTION
20

21

PLEASE TAKE NOTICE that on May 11, 2017, at 10:00 a.m. in the United States

22 Courthouse at San Francisco, California, Defendants Donald Trump and the United States of

23 America, by and through undersigned counsel, will move the Court to dismiss this action.

24

MOTION TO DISMISS

25

Defendants Donald Trump and the United States of America hereby move to dismiss this

26 action in its entirety pursuant to Federal Rule of Civil Procedure 12(b)(1), for the reasons more

27 fully set forth in the following Memorandum of Points and Authorities.

28

DEFENDANTS’ NOTICE OF MOTION & MOTION TO DISMISS & MEM. IN SUPPORT Case No. 3:17-cv-00451-JD
1

Case 3:17-cv-00451-JD Document 22 Filed 04/03/17 Page 6 of 13

1

MEMORANDUM OF POINTS AND AUTHORITIES

2

PRELIMINARY STATEMENT

3

Purporting to act on behalf of the “People of the United States of America and the State

4 of California,” attorney Andrew W. Shalaby brings this lawsuit to enjoin and “repeal” provisions

5 of an executive order issued by the President. Shalaby’s amended complaint fails to demonstrate

6 that he has standing to bring his claims. Because the Court lacks subject matter jurisdiction over

7 this case, the Court should grant Defendants’ motion to dismiss.

8 STATEMENT OF THE ISSUES
9

10

Whether a plaintiff has demonstrated standing for purposes of Article III of the U.S.

11 Constitution, where he alleges no injury to himself and instead seeks to vindicate the interests of

12 unspecified third parties with whom the plaintiff has no relationship.

13

BACKGROUND

14

On January 27, 2017, the President issued Executive Order 13769, “Protecting the Nation

15 from Foreign Terrorist Entry into the United States.” 82 Fed. Reg. 8,977. The following day,

16 attorney Andrew W. Shalaby filed this lawsuit against the President and the United States.

17 Compl., Dkt. No. 1.1 Shalaby named as plaintiffs the “People of the United States of America

18 and the State of California.” Id.; see also Application to Proceed In Forma Pauparis, Dkt. No. 8,

19 at 1 (“No one particular individual is named as a plaintiff in the action.”). Shalaby sought an

20 “injunction and repeal” of the Executive Order because it allegedly failed to “readily identify”

21 certain countries, Compl. ¶ 5; “violate[d] the separation of powers doctrine without statutory

22 exception,” id. ¶ 6; damaged the reputation of the United States, id.; and infringed on the

23 guarantees of the Establishment Clause of the First Amendment to the U.S. Constitution, id. ¶ 7.

24

The Court sua sponte dismissed the complaint on February 1, 2017. Order Dismissing

25 Compl., Dkt. No. 11 (“Order”). The Court concluded that Shalaby failed to adequately assert an

26 Article III injury in fact. Id. at 2 (noting that the complaint “does not even allege a specific

27 1 Shalaby failed to deliver a copy of the summons and the complaint, as well as the amended 28 complaint, to the Attorney General of the United States. He has therefore failed to properly
serve the United States pursuant to Federal Rule of Civil Procedure 4(i).
DEFENDANTS’ NOTICE OF MOTION & MOTION TO DISMISS & MEM. IN SUPPORT Case No. 3:17-cv-00451-JD
2

Case 3:17-cv-00451-JD Document 22 Filed 04/03/17 Page 7 of 13

1 person who might have sustained an injury in fact”). Instead, Shalaby’s allegations amounted

2 only to “a generalized grievance . . . common to all members of the public,” and as such were

3 insufficient to establish standing. Id. (citations omitted). The Court further determined that

4 Shalaby’s reliance on 42 U.S.C. § 1988 did not cure the complaint’s patent standing deficiencies.

5 Id. at 2-3. The Court therefore dismissed the complaint due to lack of subject matter jurisdiction

6 but allowed Shalaby an opportunity to amend. Id. at 3.

7

On March 6, 2017, the President signed Executive Order 13780, “Protecting the Nation

8 from Foreign Terrorist Entry into the United States” (“New Executive Order”). 82 Fed. Reg.

9 13,209. The New Executive Order, inter alia, suspends for 90 days the entry into the United

10 States of nationals from Iran, Libya, Somalia, Sudan, Syria, and Yemen, subject to certain

11 limitations, waivers, and exceptions. Id. § 2(c). This suspension of entry applies only to foreign

12 nationals of these countries who “(i) are outside the United States on the effective date of this

13 order; (ii) did not have a valid visa at 5:00 p.m., eastern standard time on January 27, 2017; and

14 (iii) do not have a valid visa on the effective date of this order.” Id. § 3(a). The New Executive

15 Order, which also revokes Executive Order 13769, set an effective date of March 16, 2017. Id.

16 § 14.2

17

Shalaby filed an amended complaint on March 10, 2017. First Am. Compl., Dkt. No. 21.

18 In his amended complaint, Shalaby does not claim that he has been injured by the New

19 Executive Order. See id. Rather, he asserts that he is bringing this lawsuit “on behalf of all

20 persons in the United States, who are negatively and adversely impacted by the [New Executive

21 Order],” including unspecified “professionals, educators, persons of varying religious beliefs and

22 backgrounds, and persons of all ethnicity,” as well as individuals who have purportedly

23 submitted “Statements of Support” to the Court. Id. ¶ 1; see also Request for Judicial Notice Of

24 Represented Individual Interests, Dkt. Nos. 16, 20.

25 2 The U.S. District Court for the District of Hawai’i has enjoined the enforcement or
26 implementation of Sections 2 and 6 of the New Executive Order. State of Hawai’i v. Trump, No. 27 1:17-cv-00050, 2017 WL 1167383 (D. Haw. March 29, 2017); see also Int’l Refugee Assistance
Project v. Trump, No. CV TDC-17-0361, 2017 WL 1018235 (D. Md. Mar. 16, 2017) (enjoining 28 enforcement of Section 2(c)).

DEFENDANTS’ NOTICE OF MOTION & MOTION TO DISMISS & MEM. IN SUPPORT Case No. 3:17-cv-00451-JD
3

Case 3:17-cv-00451-JD Document 22 Filed 04/03/17 Page 8 of 13

1

Shalaby seeks injunctive relief against Defendants, alleging that Sections 2(c) and 3(a) of

2 the New Executive Order violate the Equal Protection Clause of the Fourteenth Amendment to

3 the U.S. Constitution. First Am. Compl. ¶¶ 4-7. First, with respect to Section 2(c), Shalaby

4 contends that the New Executive Order “carries over” concrete harm from Executive Order

5 13769 by improperly “limit[ing] scrutiny to six countries, excluding many other countries from

6 which terrorists may come into the United States.” Id. ¶¶ 5-6. According to Shalaby, this

7 provision of the New Executive Order has resulted in “actual discrimination,” “national

8 polarization of the people,” “students . . . shunn[ing] their fellow co-students,” “profound

9 sadness and depression experienced by the young victim students,” “actual physical injury,” and

10 “strained relations” between the Executive and Judicial Branches. Id. ¶ 6. Shalaby therefore

11 asks that the Court “remove the specificity of the six designated countries from the scope of the

12 Executive Order.” Id. at 8; see also id. ¶ 6.

13

Second, with respect to Section 3(a), Shalaby appears to argue that the inclusion of an

14 effective date in the New Executive Order violates the Equal Protection Clause. Id. ¶ 7. He

15 claims that the effective date results “in the disparate treatment of persons who may suffer delays

16 due to administrative backlog or error, or for any other reason, which equally translates to harms

17 suffered by family members and affiliates in the United States.” Id. To remedy this alleged

18 constitutional violation, Shalaby asks that the Court “remove the provision” that includes the

19 effective date. Id. at 8; see also id. ¶ 7.

20 DISCUSSION
21

22

Shalaby attempts to establish standing by bringing his lawsuit “on behalf of all persons in

23 the United States, who are negatively and adversely impacted by the [New Executive Order].”

24 First Am. Compl. ¶ 1. This theory of standing is without merit, as he cannot meet the test

25 required to invoke the so-called “third-party standing” doctrine. Because Shalaby has not

26 demonstrated standing to bring his claims, the Court is without subject matter jurisdiction and

27 must dismiss the case.

28

DEFENDANTS’ NOTICE OF MOTION & MOTION TO DISMISS & MEM. IN SUPPORT Case No. 3:17-cv-00451-JD
4

Case 3:17-cv-00451-JD Document 22 Filed 04/03/17 Page 9 of 13

1

“For Article III standing, a plaintiff must satisfy three ‘irreducible constitutional

2 minimum’ requirements: (1) he or she suffered an injury in fact that is concrete, particularized,

3 and actual or imminent; (2) the injury is fairly traceable to the challenged conduct; and (3) the

4 injury is likely to be redressed by a favorable court decision.” Wash. Envtl. Council v. Bellon,

5 732 F.3d 1131, 1139-40 (9th Cir. 2013) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555,

6 560-61 (1992)). “Ordinarily, of course, a litigant must assert his own legal rights and interests,

7 and cannot rest his claim to relief on the legal rights or interests of third parties.” U.S. Dep’t of

8 Labor v. Triplett, 494 U.S. 715, 720 (1990) (citation omitted). The Supreme Court has

9 recognized a limited exception to this general rule, however, “provided three important criteria

10 are satisfied: The litigant must have suffered an ‘injury in fact,’ thus giving him or her a

11 ‘sufficiently concrete interest’ in the outcome of the issue in dispute . . . ; the litigant must have a

12 close relation to the third party . . . ; and there must exist some hindrance to the third party’s

13 ability to protect his or her own interests.” Powers v. Ohio, 499 U.S. 400, 411 (1991) (citations

14 omitted); see also Hollingsworth v. Perry, 133 S. Ct. 2652, 2663 (2013) (emphasizing that

15 plaintiff must have suffered an injury in fact in order to assert the interests of third parties).

16

Shalaby has failed to establish any of the three elements necessary to invoke the third-

17 party standing doctrine. Shalaby has not even attempted to allege that he has personally suffered

18 any injury, let alone a “concrete” and “particularized” harm as required by Article III. See First

19 Am. Compl. This omission is itself sufficient to defeat not only Shalaby’s claim for third-party

20 standing, but any claim for direct-party standing as well. See Hollingsworth, 133 S. Ct. at 2663.

21 Additionally, Shalaby has not alleged that he has a “close relationship” with anyone affected or

22 even potentially affected by the New Executive Order; in fact, based on the amended complaint,

23 it appears he has “no relationship at all” to the individuals on whose behalf he purports to bring

24 this action. See Kowalski v. Tesmer, 543 U.S. 125, 131 (2004); cf. Singleton v. Wulff, 428 U.S.

25 106, 115-16 (1976) (providing examples of a sufficiently “close relationship,” such as that

26 between married persons or between a doctor and patient). And Shalaby has provided no reason

27 to doubt that U.S. persons directly affected by the New Executive Order can independently and

28 capably assert their own rights. Indeed, other litigation concerning the New Executive Order

DEFENDANTS’ NOTICE OF MOTION & MOTION TO DISMISS & MEM. IN SUPPORT Case No. 3:17-cv-00451-JD
5

Case 3:17-cv-00451-JD Document 22 Filed 04/03/17 Page 10 of 13

1 confirms that these persons face no “hindrance” in vindicating their own interests. See, e.g.,

2 Second Am. Compl., State of Hawai’i v. Trump, No. 1:17-cv-00050, Dkt. No. 64 (D. Haw.

3 March 8, 2017) (alleging injury to individual plaintiff); see also Hodak v. City of St. Peters, 535

4 F.3d 899, 905 (8th Cir. 2008) (noting agreement among circuits that, “if a third party actually

5 asserts his own rights, no hindrance exists, and third-party standing is improper”). Accordingly,

6 Shalaby cannot rely on purported injuries to others in attempting to establish standing.

7

Nor is Shalaby able to salvage his claim of third-party standing by relying on unspecified

8 “Private Attorney General statutes of the State of California and United States.” First Am.

9 Compl. ¶ 1. “[E]ven a plaintiff bringing a claim under a statutory right to act as a private

10 attorney general must have standing under Article III of the United States Constitution.”

11 Vrooman v. Armstrong, No. 3:16-CV-00770, 2016 WL 3563293, at *2 (D. Or. June 8, 2016),

12 report and recommendation adopted, 2016 WL 3566733 (D. Or. June 29, 2016). This principle

13 applies regardless of whether the private attorney general statute arises from California state law,

14 see Hollingsworth, 133 S. Ct. at 2667 (“standing in federal court is a question of federal law, not

15 state law”); Mortera v. N. Am. Mortg. Co., 172 F. Supp. 2d 1240, 1242-44 (N.D. Cal. 2001)

16 (remanding to state court where plaintiff brought claim under California’s Unfair Competition

17 Act but did not allege injury to herself), or from federal law, cf. Vermont Agency of Nat. Res. v.

18 United States ex rel. Stevens, 529 U.S. 765, 772 (2000) (holding False Claims Act plaintiff may

19 bring a qui tam action on behalf of the United States because plaintiff had a “concrete private 20 interest in the outcome of the suit” (citation omitted)).3 As discussed above, Shalaby has failed

21 to allege that he himself has suffered any injury whatsoever, and so no private attorney general

22 statute can alter the conclusion that he lacks standing to bring his claims.

23

Because Shalaby has not alleged any injury to himself, and because he cannot otherwise

24 meet the standard for third-party standing articulated by the Supreme Court in Powers, the

25 Court’s inquiry is at an end. Nonetheless, other deficiencies in Shalaby’s theory of standing

26 27 3 By refusing to identify the specific private attorney general statutes on which he relies, Shalaby
has also failed to establish authorization to sue. See, e.g., Brockovich v. Cmty. Med. Ctrs., Inc., 28 No. CV-F-06-1609, 2007 WL 738691, at *4 (E.D. Cal. Mar. 7, 2007) (“Without [] express
Congressional authorization, Plaintiff may not sue on behalf of the government.”).
DEFENDANTS’ NOTICE OF MOTION & MOTION TO DISMISS & MEM. IN SUPPORT Case No. 3:17-cv-00451-JD
6

Case 3:17-cv-00451-JD Document 22 Filed 04/03/17 Page 11 of 13

1 confirm that the Court is without subject matter jurisdiction. First, Shalaby’s allegations of harm

2 are not only conclusory, but also describe injuries that are abstract or hypothetical. See First Am.

3 Compl. ¶ 6 (stating, without factual support, that unspecified persons have suffered “actual

4 discrimination” and “actual physical injury”); id. (alleging that Section 2(c) of the New

5 Executive Order has given rise to “national polarization of the people,” “profound sadness and

6 depression,” and “strained relations” between the Executive and Judicial Branches); id. ¶ 7

7 (speculating about administrative delays that certain individuals “may” experience, as well as the

8 secondary effects of those potential delays). As such, these allegations do not meet the

9 requirements of Article III. See, e.g., Schlesinger v. Reservists Comm. to Stop the War, 418 U.S.

10 208, 217 (1974) (“the generalized interest of all citizens in constitutional governance . . . is an

11 abstract injury”); Escobar v. Brewer, 461 F. App’x 535, 535-36 (9th Cir. 2011) (“mere

12 conclusory allegations are not enough to establish the ‘concrete and particularized’ injury

13 required for standing under Article III”); Gest v. Bradbury, 443 F.3d 1177, 1182 (9th Cir. 2006)

14 (“[F]eelings of frustration . . . are not sufficiently concrete to constitute the ‘injury-in-fact’

15 required for Article III standing.” (citation omitted)); Schmier v. U.S. Court of Appeals for Ninth

16 Circuit, 279 F.3d 817, 821 (9th Cir. 2002) (“hypothetical, speculative or other ‘possible future’

17 injuries do not count in the standings calculus”); Clay v. Fort Wayne Cmty. Sch., 76 F.3d 873,

18 877 n.4 (7th Cir. 1996) (“amorphous psychological injuries [are] insufficient to confer

19 standing”).4 Further, having failed to include any allegations “show[ing] a very significant

20 possibility of future harm,” Shalaby has not met the burden required to obtain the injunctive

21 relief that he seeks. See Montana Shooting Sports Ass’n v. Holder, 727 F.3d 975, 979 (9th Cir.

22 2013) (citation omitted).

23

Shalaby has likewise failed to carry his burden with respect to the causation and

24 redressability elements of standing. The injuries alleged by Shalaby are generally traceable only

25 to Executive Order 13769, see First Am. Compl. ¶¶ 5-7, or to third parties, see id. ¶ 6 (alleging

26 4 The “Statements of Support” submitted by Shalaby—which request the “full repeal” of

27

Executive Order 13769 and do not pertain to the New Executive Order—similarly raise a generalized grievance insufficient to confer Article III standing. See Hollingsworth, 133 S. Ct. at

28 2663 (federal courts are not “a vehicle for the vindication of [the] value interests” of “concerned

bystanders” (citation omitted)).

DEFENDANTS’ NOTICE OF MOTION & MOTION TO DISMISS & MEM. IN SUPPORT Case No. 3:17-cv-00451-JD
7

Case 3:17-cv-00451-JD Document 22 Filed 04/03/17 Page 12 of 13

1 that “bloodshed took place when proponents and opponents of [Executive Order 13769]

2 clashed,” and that “students have shunned their fellow co-students”), and accordingly are not

3 “fairly traceable to the challenged conduct of” Defendants, Spokeo, Inc. v. Robins, 136 S. Ct.

4 1540, 1547 (2016); see also Lujan, 504 U.S. at 560-61 (no causation where alleged harm is “the

5 result of the independent action of some third party not before the court” (quoting Simon v. E.

6 Ky. Welfare Rights Org., 426 U.S. 26, 41-42 (1976))). And putting aside the question of whether

7 the Court has the authority to alter the Executive Order as Shalaby requests, see First Am.

8 Compl. ¶¶ 6-7 (requesting that the Court “remove” Sections 2(c) and 3(a), rather than, for

9 example, enjoin their enforcement), Shalaby can only speculate that doing so will remedy the

10 amorphous and hypothetical injuries he alleges, such as “national polarization,” “profound

11 sadness and depression,” and “strained relations” between branches of government. See First

12 Am. Compl. ¶¶ 6-7; Bernhardt v. Cty. of Los Angeles, 279 F.3d 862, 869 (9th Cir. 2002)

13 (redressability element requires plaintiff to demonstrate “that it is likely, as opposed to merely

14 speculative, that the injury will be redressed by a favorable decision”). Indeed, that some alleged

15 harms are traceable to third parties renders them even less likely to be redressed by the requested

16 relief. See Bernhardt, 279 F.3d at 869 (“A claim may be too speculative if it can be redressed

17 only through the unfettered choices made by independent actors not before the court.”).

18

Finally, Shalaby cannot support his standing argument by asserting that 42 U.S.C. § 1988

19 is the basis for his lawsuit. See First Am. Compl. ¶ 1. As the Court has already explained, that

20 statute does not “carve out an exception to the standing requirement under Article III of the

21 Constitution.” Order at 3.

22

Because Shalaby has not established standing for purposes of Article III, the Court lacks

23 subject matter jurisdiction and must dismiss the case.

24 CONCLUSION
25

26

For the foregoing reasons, Defendants’ motion to dismiss should be granted.

27 DATED: April 3, 2017

Respectfully submitted,

28

CHAD A. READLER

Acting Assistant Attorney General

DEFENDANTS’ NOTICE OF MOTION & MOTION TO DISMISS & MEM. IN SUPPORT Case No. 3:17-cv-00451-JD
8

Case 3:17-cv-00451-JD Document 22 Filed 04/03/17 Page 13 of 13

1

2

JOHN R. TYLER

Assistant Branch Director

3

4

/s/Stuart J. Robinson

STUART J. ROBINSON

5

(Cal. Bar No. 267183)

6

Trial Attorney

U.S. Department of Justice

7

Civil Division, Federal Programs Branch

8

450 Golden Gate Ave.

San Francisco, CA 94102

9

Telephone: (415) 436-6635

10

Facsimile: (415) 436-6632

11

E-mail: stuart.j.robinson@usdoj.gov

12

Attorneys for Defendants

Donald Trump; United States of America 13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

DEFENDANTS’ NOTICE OF MOTION & MOTION TO DISMISS & MEM. IN SUPPORT Case No. 3:17-cv-00451-JD
9

Case 3:17-cv-00451-JD Document 22-1 Filed 04/03/17 Page 1 of 1

UNITED STATES DISTRICT COURT

1

NORTHERN DISTRICT OF CALIFORNIA

SAN FRANCISCO DIVISION 2

3 PEOPLE OF THE UNITED STATES

)

OF AMERICA AND THE STATE

)

4 OF CALIFORNIA,

)

)

5

Plaintiffs,

)

6

v.

)

)

Case No. 3:17-cv-00451-JD

)

7 DONALD TRUMP; UNITED

)

STATES OF AMERICA

)

8

)

Defendants.

)

9

10

11

PROPOSED ORDER

12 This matter comes before the Court on Defendants’ Motion to Dismiss. Upon
13 consideration of Defendants’ motion and of all materials submitted in relation thereto, it is
14 hereby
15 ORDERED that Defendants’ motion is GRANTED.
16 IT IS SO ORDERED.
17

18 Date:_________________________ 19

______________________________
JAMES DONATO United States District Judge

20

21

22

23

24

25

26

27

28

DEFENDANTS’ NOTICE OF MOTION & MOTION TO DISMISS & MEM. IN SUPPORT Case No. 3:17-cv-00451-JD

 
 Case 3:17-cv-00451-JD Document 26 Filed 04/17/17 Page 1 of 5

1 East Bay Law Andrew W. Shalaby sbn 206841
2 1417 Solano Avenue Albany, CA 94706
3 Tel. 510-551-8500 Fax: 510-725-4950
4 email: andrew@eastbaylaw.com

5

6 Attorneys for Plaintiffs The People of the State of California, and
7 The People of the United States of America

8

9

10

IN THE UNITED STATES DISTRICT COURT

11

NORTHERN DISTRICT OF CALIFORNIA

12

SAN FRANCISCO

13

14 People of the United States of 15 America and the State of California,

16

Plaintiffs,

17

vs.

18 Donald Trump; United States of America,
19
Defendants.
20

Case Number: 3:17-cv-00451-JD
OPPOSITION TO MOTION TO DISMISS Date: May 11, 2017 Time: 10:00 a.m. Courtroom: 11, 19th floor Judge: Hon. James Donato

21

I. ALTERNATIVE FACTS PRESENTED BY DEFENSE MUST BE

DISREGARDED AND PLEADED FACTS TAKEN AS TRUE

22

23

Defendants allege that the complaint and grievances pleaded are not of the

24 many persons that have appeared by the requests for judicial notice in this case, and

25 not of the people suffering “concrete injury” as pleaded. Defendants interject

26 alternative facts, to wit:

27

Because Shalaby has not demonstrated standing to bring his claim, the Court is without subject matter jurisdiction and must dismiss the case.

28

(Mtn/dismiss p.4:25-27.)

Opposition to Motion to Dismiss

1

3:17-cv-00451-JD

Case 3:17-cv-00451-JD Document 26 Filed 04/17/17 Page 2 of 5

1 The plaintiff is not “Shalaby.” The plaintiffs are as pleaded on the complaint, namely

2 the People of the State of California as well as the People of the United States of

3 America, with statements of record signed by many of “the people” and filed with this

4 Court. The last RJN was filed 2/19/17 as RJN 20. The filings include Stanford and

5 University of California staff members, high-level professionals, and citizens from

6 California and other states. These are people. They are individuals. They, and the

7 many more, too numerous to count, seek the Court’s redress with regard to the

8 executive order at issue, which is not the repealed Executive Order 13769 as

9 Defendants allege on page 7:25 of their motion. Rather, it is the March 6, 2017

10 Executive Order, as identified on page 3:4 of the FAC. The FAC further makes clear

11 that it pertains to the March 6, 2017 Executive Order, seeking expansion of countries

12 specified on that latter order (FAC 3:26), and change with respect to the March 16,

13 2017 date specified in that Executive Order (FAC 4:4). Should this not be clear for

14 any reason, further clarification can be made via amendment, but Plaintiffs believe it

15 is sufficiently clear from the FAC that it seeks Judicial review with regard to the

16 March 6, 2017 order, and in fact quotes the relevant provisions on pages 4, 7 and 8 of

17 the FAC.

18

Defendants’ allegation that Shalaby is the plaintiff must be disregarded as

19 inconsistent with the facts pleaded on the FAC, and is simply untrue.

20
II. INJURY IS ADEQUATELY PLEADED

21
The injuries are adequately pleaded and are non-speculative and concrete.

22
Please see p.5:6 - 8:7. Defendants simply failed to address those harms, and appear
23

to allege that the harms were suffered by persons other than “Shalaby,” hence “no
24

standing.” Shalaby is not the plaintiff. He is only the attorney for the plaintiffs. As
25

pleaded within the four corners of the FAC, the plaintiffs include victims of harm,
26

27 violence, discrimination, and other quite tangible concrete injuries. The injuries

28 continued to follow the filing of the First Amended Complaint, particularly in

Opposition to Motion to Dismiss

2

3:17-cv-00451-JD

Case 3:17-cv-00451-JD Document 26 Filed 04/17/17 Page 3 of 5

1 Berkeley, as nationally publicized. In Berkeley on April 15, 2017 violence erupted

2 between people at a Trump protest, with several injuries and the use of home-made

3 weapons. One of the many articles posted is found at this internet link:

4

http://www.mercurynews.com/2017/04/16/berkeley-trump-related-pro

tests-end-with-23-arrests/

5

Although these harms continue and follow the filing of the FAC, the FAC pleads with
6

7 specificity some of the harms suffered up to the time of the filing of the FAC (i.e.

8 FAC p.5:25).

9

III. NO PROHIBITION TO PRIVATE ATTORNEY GENERAL ACTION EXISTS, AND IN FACT THE PRIVATE A.G.

10

ADVOCACY IS SUPERIOR AS A DIRECT COMMUNICATION BETWEEN THE PEOPLE AND THE COURT

11

Defendants raise a defective argument that a private attorney general action fails

12 because “Shalaby” lacks standing:

13

Nor is Shalaby able to salvage his claim of third-party standing by

14

relying on unspecified “Private Attorney General statutes of the State of California and United States.” (Mtn/dismiss p.6:7.)

15 The argument is defective because Defendants are using the “alternative fact” that

16 “Shalaby” is bringing the action as the plaintiff. As is clear, Shalaby is not the

17 plaintiff.

18

It should be noted that a private attorney general action is the superior method

19 of advocacy as compared to a traditional government-appointed attorney general

20
action. A typical attorney general action brought by the government is brought in the
21
name of “the People,” with very little or no actual voicing of the grievance of “the
22
people.” One such matter in which this counsel is presently involved, also pending
23
at this Court, is Lopez v. Nissan North America (3/28/17) 3:17-cv-01625-EDL. In
24
that action, an individual driving a car after he had smoked “medical marijuana” ended
25
up crashing into six people, killing a mother of four, and crippling two young adult
26

27 women. The action is found with visual detail by Googling “Family Sues Nissan.”

28 In that action, a prosecution was initiated by the District Attorney on behalf of “The

Opposition to Motion to Dismiss

3

3:17-cv-00451-JD

Case 3:17-cv-00451-JD Document 26 Filed 04/17/17 Page 4 of 5

1 People of the State of California.” However, “The People of the State of California”

2 had already voted to “legalize” marijuana, and do not support prosecution in the State

3 for possession and use of marijuana. The government-appointed prosecutor not only

4 failed to represent the true interests of “The People of the State of California,” but also

5 distressed the automobile driver into committing suicide.

6

In this case, a “private attorney general” representation, the “People” are

7 seeking redress of their grievances directly and personally, and many have filed signed

8 statements in this very action. The private attorney general action is thus superior

9 insofar as it represents the true and actual grievance of “The People,” with the inherent

10 understanding that “The People” does not represent every single person of the State

11 of California or of the United States. “The People” is, as explained on the FAC, a

12 designation of only those great many people of the State of California and of the

13 United States whom believe the subject Executive Order is unconstitutional and

14 requires judicial intervention pursuant to the “Balance of Powers” upon which the

15 three separate branches of government were created by our forefathers.

16

IV. U.S. APPEARED, THEREFORE SERVICE CONCERN IS MOOT

17

The United States of America has now made a general appearance on the

18 motion to dismiss, therefore the alleged non-service on it is moot.

19

CONCLUSION

20
At this juncture the only issue presented by the defendants is whether Plaintiff

21
“Shalaby” has standing. Shalaby is not the plaintiff, therefore the motion to dismiss
22
must be denied.
23

24
Dated: April 17, 2017
25 26

s/Andrew W. Shalaby Andrew W. Shalaby, Attorney for Plaintiffs

27

28

Opposition to Motion to Dismiss

4

3:17-cv-00451-JD

Case 3:17-cv-00451-JD Document 26 Filed 04/17/17 Page 5 of 5

1

CERTIFICATE OF SERVICE

2

I, Andrew W. Shalaby, hereby certify that I am a member of the bar of this

3 Court, and a Registrant authorized user of the Court's "Electronic Case Filing"

4 ("ECF") system. On April 17, 2017 I electronically filed foregoing with the Clerk

5 of the Court for the United States District Court for the NORTHERN District of

6 California by using the Court's CM/ECF system. Counsels for all parties in this case

7 are registered CM/ECF users, and have been served through the Court's CM/ECF

8 system.

9
10 Dated: April 17, 2017

s/Andrew W. Shalaby

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Opposition to Motion to Dismiss

5

3:17-cv-00451-JD

 
 Case 3:17-cv-00451-JD Document 27 Filed 04/24/17 Page 1 of 5

1 CHAD A. READLER

Acting Assistant Attorney General 2 JOHN R. TYLER

Assistant Branch Director 3 STUART J. ROBINSON (Cal. Bar No. 267183)

Trial Attorney

4

U.S. Department of Justice

Civil Division, Federal Programs Branch

5

450 Golden Gate Ave.

San Francisco, CA 94102

6

Telephone: (415) 436-6635

Facsimile: (415) 436-6632

7

E-mail: stuart.j.robinson@usdoj.gov

8 Attorneys for Defendants

9 Donald Trump; United States of America

10

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

11

SAN FRANCISCO DIVISION

12 PEOPLE OF THE UNITED STATES

)

Case No. 3:17-cv-00451-JD

13

OF AMERICA AND THE STATE OF CALIFORNIA,

) )

14

Plaintiffs,

)

DEFENDANTS’ REPLY

)

IN SUPPORT OF

15

v.

)

MOTION TO DISMISS

)

16 DONALD TRUMP; UNITED

)

)

Hearing: May 11, 2017, 10:00 a.m.

17 STATES OF AMERICA

)

Courtroom 11

)

Hon. James Donato

18

Defendants.

)

19

20

21

22

23

24

25

26

27

28

DEFENDANTS’ REPLY IN SUPPORT OF MOTION TO DISMISS Case No. 3:17-cv-00451-JD

Case 3:17-cv-00451-JD Document 27 Filed 04/24/17 Page 2 of 5

1

INTRODUCTION

2

Defendants’ motion to dismiss established that attorney Andrew W. Shalaby lacks direct-

3 party or third-party standing to challenge the constitutionality of Executive Order 13780,

4 “Protecting the Nation from Foreign Terrorist Entry into the United States.” Defs’ Not. of Mot.

5 & Mot. to Dismiss & Mem. in Supp., Dkt. No. 22 (“Defs’ Mot.”), at 4-8. Conceding many of the

6 arguments made by Defendants and failing to distinguish the cases upon which Defendants rely,

7 Shalaby nonetheless insists that his lawsuit should survive Defendants’ motion to dismiss in light

8 of his invocation of unspecified private attorney general statutes. Opp. to Mot. to Dismiss, Dkt.

9 No. 26 (“Opp.”), at 1-4. He also contends that his allegations of injury are adequate to

10 demonstrate standing. Id. at 2-3. As discussed below, these arguments are unpersuasive. The

11 Court should therefore grant Defendants’ motion to dismiss due to lack of subject matter

12 jurisdiction.

13 DISCUSSION
14 As an initial matter, the Court should grant Defendants’ motion to dismiss because
15 Shalaby has failed to adequately oppose it. Shalaby has not only declined to distinguish any
16 cases relied upon by Defendants, but has also refused to cite any authority in support of his
17 position. See Opp. at 1-4. In addition, he has not responded to Defendants’ points regarding the
18 traceability and redressability elements of standing. See id. Shalaby has therefore conceded that
19 his claims fail, and the Court may grant Defendants’ motion on that basis alone. See Roy v.
20 Contra Costa Cty., No. 15-CV-02672-TEH, 2015 WL 5698743, at *3 n.7 (N.D. Cal. Sept. 29,
21 2015) (“When a non-moving party’s opposition to a motion to dismiss fails to address the
22 moving party’s arguments regarding certain claims, the non-moving party has conceded that
23 those claims fail.” (citing Silva v. City of San Leandro, 744 F. Supp. 2d 1036, 1050 (N.D. Cal.
24 2010))); Guevara v. Marriott Hotel Servs. Inc., No. C 10-5347 SBA, 2013 WL 6172983, at *7
25 (N.D. Cal. Nov. 25, 2013) (viewing failure to respond to merits of argument as conceding that
26 “claims would not withstand a motion to dismiss” (citing Ramirez v. Ghilotti Bros. Inc., 941 F.
27 Supp. 2d 1197, 1210 n.7 (N.D. Cal. 2013))); Allen v. Dollar Tree Stores, Inc., No. C 10-4492
28

DEFENDANTS’ REPLY IN SUPPORT OF MOTION TO DISMISS Case No. 3:17-cv-00451-JD
1

Case 3:17-cv-00451-JD Document 27 Filed 04/24/17 Page 3 of 5

1 WHA, 2010 WL 5088227, at *2 (N.D. Cal. Dec. 8, 2010) (granting motion to dismiss in part

2 because “plaintiff fail[ed] to cite a single legal authority in response to defendant’s motion to

3 dismiss” and because plaintiff did not address arguments in opposition brief); cf. Intertrust

4 Techs. Corp. v. Microsoft Corp., 275 F. Supp. 2d 1031, 1051 (N.D. Cal. 2003), as amended (July

5 7, 2003) (“[A]n argument that lacks appropriate supporting citations is no argument at all.”).

6

Further, the arguments that Shalaby does make are without merit. Emphasizing that he is

7 not a plaintiff to this action, Shalaby primarily argues that the Court has subject matter 8 jurisdiction because he is bringing this lawsuit pursuant to unidentified private attorney statutes.1

9 Opp. at 1-4. But as Defendants have already discussed, Defs’ Mot. at 6 (citations omitted), a

10 litigant cannot substitute a private attorney general statute for the standing requirements of

11 Article III of the U.S. Constitution; rather, a litigant must demonstrate a personal stake in the

12 outcome of the case in order to proceed. See, e.g., Hangarter v. Provident Life & Acc. Ins. Co.,

13 373 F.3d 998, 1022 (9th Cir. 2004); Vrooman v. Armstrong, No. 3:16-CV-00770, 2016 WL

14 3563293, at *2 (D. Or. June 8, 2016), report and recommendation adopted, No. 3:16-CV-00770,

15 2016 WL 3566733 (D. Or. June 29, 2016). Here, Shalaby has claimed no such interest. Indeed,

16 his repeated assertions that he is not a plaintiff serve as an acknowledgement that he has not

17 suffered any Article III injury. Accordingly, Shalaby has neither direct-party nor third-party

18 standing, and his argument fails.

19

Nor has Shalaby demonstrated that any individual has suffered an injury for purposes of

20 Article III. In their motion to dismiss, Defendants explained that Shalaby’s allegations of harm,

21 as well as the “Statements of Support” he submitted to the Court, are insufficient because they

22 are conclusory or describe injuries that are abstract or hypothetical. Defs’ Mot. at 7 (citations

23 omitted). In response, Shalaby simply states that “[t]he injuries are adequately pleaded and are

24 non-speculative and concrete” and that “the plaintiffs include victims of harm, violence,

25 discrimination, and other quite tangible concrete injuries.” Opp. at 2. Such a rebuttal, tethered

26 27 1 While Shalaby is willing to opine on the virtues on private attorney general statutes generally,
he continues to refuse to identify the specific statutes on which he relies. See Opp. at 3. He 28 therefore still has not established authorization to sue. See Brockovich v. Cmty. Med. Ctrs., Inc.,
No. CV-F-06-1609, 2007 WL 738691, at *4 (E.D. Cal. Mar. 7, 2007).
DEFENDANTS’ REPLY IN SUPPORT OF MOTION TO DISMISS Case No. 3:17-cv-00451-JD
2

Case 3:17-cv-00451-JD Document 27 Filed 04/24/17 Page 4 of 5

1 to equally conclusory allegations in the amended complaint, is plainly inadequate. E.g.,

2 Connolly v. Remkes, No. 5:14-CV-01344-LHK, 2014 WL 5473144, at *13 (N.D. Cal. Oct. 28,

3 2014) (dismissing cause of action where complaint contained conclusory allegations and

4 plaintiff’s “[o]pposition brief is equally conclusory”).

5

Finally, Shalaby is unable to establish a legally cognizable harm by claiming that “[t]he

6 injuries continued to follow the filing of the First Amended Complaint.” Opp. at 3 (referring to

7 “violence [that] erupted between people at a Trump protest” on April 15, 2017). “It is axiomatic

8 that the complaint may not be amended by briefs in opposition to a motion to dismiss.”

9 Tietsworth v. Sears, 720 F. Supp. 2d 1123, 1145 (N.D. Cal. 2010) (quoting Barbera v. WMC

10 Mortgage Corp., No. C 04-3738(SBA), 2006 WL 167632, at *2 n.4 (N.D. Cal. Jan. 19, 2006)).

11 And in any event, further amending the complaint to include this factual allegation would not

12 establish standing for the reasons already described by Defendants. See Defs’ Mot. at 7-8

13 (discussing inadequacies of allegations that are conclusory or where alleged injuries are traceable

14 only to third parties).

15

CONCLUSION

16

For the foregoing reasons, Shalaby has failed to establish that the Court has subject

17 matter jurisdiction over this case. Defendants’ motion to dismiss should therefore be granted.

18 DATED: April 24, 2017

Respectfully submitted,

19

CHAD A. READLER

20

Acting Assistant Attorney General

21

JOHN R. TYLER

22

Assistant Branch Director

23 /s/Stuart J. Robinson

24

STUART J. ROBINSON

25

(Cal. Bar No. 267183)

Trial Attorney

26

U.S. Department of Justice

27

Civil Division, Federal Programs Branch

450 Golden Gate Ave.

28

San Francisco, CA 94102

DEFENDANTS’ REPLY IN SUPPORT OF MOTION TO DISMISS Case No. 3:17-cv-00451-JD
3

Case 3:17-cv-00451-JD Document 27 Filed 04/24/17 Page 5 of 5

1

Telephone: (415) 436-6635

Facsimile: (415) 436-6632

2

E-mail: stuart.j.robinson@usdoj.gov

3

Attorneys for Defendants

4

Donald Trump; United States of America

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

DEFENDANTS’ REPLY IN SUPPORT OF MOTION TO DISMISS Case No. 3:17-cv-00451-JD
4

 
 Case 3:17-cv-00451-JD Document 29 Filed 12/07/17 Page 1 of 2

United States District Court Northern District of California

1

2

3

4

UNITED STATES DISTRICT COURT

5

NORTHERN DISTRICT OF CALIFORNIA

6
7 PEOPLE OF THE UNITED STATES OF AMERICA, et al.,
8 Plaintiffs,
9 v.
10 DONALD J. TRUMP, et al.,
11 Defendants.
12

Case No. 17-cv-00451-JD
ORDER OF DISMISSAL WITH PREJUDICE Re: Dkt. No. 22

13

Attorney Andrew W. Shalaby filed this case on behalf of the “People of the United States

14 of America and the State of California” to enjoin and invalidate as unconstitutional an executive

15 order issued by President Donald Trump on January 27, 2017 for “Protecting the Nation from

16 Foreign Terrorist Entry into the United States.” Dkt. No. 1. The Court dismissed the complaint

17 for lack of Article III standing by a specific named plaintiff. Dkt. No. 11.

18

The amended complaint, Dkt. No. 21, is dismissed for the same reason. It makes the same

19 generalized reference to the “people of the United States” as plaintiffs that the Court found

20 deficient in the prior order. Id.; see also Lujan v. Defenders of Wildlife, 504 U.S. 555, 575 (1992);

21 Drake v. Obama, 664 F.3d 774, 779 (9th Cir. 2011). The “statements of support” tendered by

22 attorney Shalaby in a request for judicial notice are no cure for this fundamental standing problem.

23 The statements are almost certainly not appropriate for judicial notice, see Fed. R. Evid. 201, and

24 in any event none of the individuals are actually named as plaintiffs in the amended complaint or

25 otherwise mentioned in it.

26

Reliance on a “private Attorney General” theory, Dkt. No. 21 ¶ 1, is equally unavailing.

27 The Article III showing is an “irreducible constitutional minimum” that this purported theory

28 cannot satisfy. Lujan, 504 U.S. at 560 (1992).

Case 3:17-cv-00451-JD Document 29 Filed 12/07/17 Page 2 of 2

United States District Court Northern District of California

1

Shalaby has now had two opportunities to present a cognizable complaint, and he was

2 given express guidance from the Court on how to fix the standing problem. The Court has no

3 reason to believe that another round of amendment will produce a different outcome or a

4 cognizable complaint. Consequently, the complaint is dismissed with prejudice. See Guzman v.

5 Sogge, 2014 WL 11904579, at *3 (N.D. Cal. May 13, 2014), aff’d, 599 Fed. Appx. 329 (9th Cir.

6 2015).

7

IT IS SO ORDERED.

8 Dated: December 7, 2017

9

10

11

JAMES DONATO United States District Judge

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 2

 
 Case: 3:17-cv-451 As of: 01/11/2018 08:58 AM PST 1 of 4
ADRMOP,CLOSED
U.S. District Court California Northern District (San Francisco) CIVIL DOCKET FOR CASE #: 3:17−cv−00451−JD

People of the United States of America v. Trump et al Assigned to: Judge James Donato Cause: 28:1331 Federal Question: Other Civil Rights
Plaintiff

Date Filed: 01/28/2017 Date Terminated: 12/07/2017 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

People of the United States of America

represented by Andrew Wagdy Shalaby East Bay Law 7525 Leviston Avenue El Cerrito, CA 94530−3306 510−528−8500 Fax: 510−528−2412 Email: panel@eastbaylaw.com ATTORNEY TO BE NOTICED

Plaintiff The State of California

represented by Andrew Wagdy Shalaby (See above for address) ATTORNEY TO BE NOTICED

V. Defendant Donald J. Trump
Defendant United States of America

represented by Stuart Justin Robinson U.S. Department of Justice Civil Division, Federal Programs Branch 450 Golden Gate Ave. Room 7−5354 San Francisco, CA 94102 415−436−6635 Email: stuart.j.robinson@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Stuart Justin Robinson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 01/28/2017
01/28/2017 01/30/2017

# Docket Text
1 COMPLAINT against Donald J. Trump, United States of America. Filed byPeople of the United States of America and the State of California. (Attachments: # 1 Exhibit A)(Shalaby, Andrew) (Filed on 1/28/2017) (Entered: 01/28/2017)
2 Civil Cover Sheet by People of the United States of America and the State of California . (Shalaby, Andrew) (Filed on 1/28/2017) (Entered: 01/28/2017)
Electronic filing error. Filing fee not paid. Please pay the filing fee through Pay.gov by clicking on Civil > Other Documents > New Case Filing Fee in CM/ECF. [err701] This filing will not be processed by the clerks office Re: 1 Complaint filed by People of the United States of America and the State of California. Please be advised that the fee must be paid within two business days or the case will be subject to termination.

Case: 3:17-cv-451 As of: 01/11/2018 08:58 AM PST 2 of 4

01/30/2017
01/30/2017 01/30/2017
01/30/2017
01/31/2017 01/31/2017 01/31/2017 02/01/2017 02/01/2017 02/01/2017 02/04/2017 02/06/2017
02/10/2017

(cjlS, COURT STAFF) (Filed on 1/30/2017) (Entered: 01/30/2017)
3 ***FILED IN ERROR PLEASE DISREGARD AND SEE DOCUMENT NO. 4 PER PHONE CONVERSATION WITH THE ATTORNEY THE DOCUMENTS WILL BE FILED UNDER THE CORRECT EVENT****** Ex Parte Application re 1 Complaint for waiver of filing fees and costs filed by People of the United States of America and the State of California. (Shalaby, Andrew) (Filed on 1/30/2017) Modified on 1/30/2017 (sv, COURT STAFF). (Entered: 01/30/2017)
4 MOTION for Leave to Appeal in forma pauperis filed by People of the United States of America and the State of California. (Shalaby, Andrew) (Filed on 1/30/2017) (Entered: 01/30/2017)
5 Case assigned to Hon. James Donato.
Counsel for plaintiff or the removing party is responsible for serving the Complaint or Notice of Removal, Summons and the assigned judge's standing orders and all other new case documents upon the opposing parties. For information, visit E−Filing A New Civil Case at http://cand.uscourts.gov/ecf/caseopening.
Standing orders can be downloaded from the court's web page at www.cand.uscourts.gov/judges. Upon receipt, the summons will be issued and returned electronically. Counsel is required to send chambers a copy of the initiating documents pursuant to L.R. 5−1(e)(7). A scheduling order will be sent by Notice of Electronic Filing (NEF) within two business days. (cjlS, COURT STAFF) (Filed on 1/30/2017) (Entered: 01/30/2017)
6 Initial Case Management Scheduling Order with ADR Deadlines: This case is assigned to a judge who participates in the Cameras in the Courtroom Pilot Project. See General Order 65 and http://cand.uscourts.gov/cameras Case Management Statement due by 4/27/2017. Case Management Conference set for 5/4/2017 10:00 AM. (Attachments: # 1 Notice of Eligibility for Video Recording)(hdjS, COURT STAFF) (Filed on 1/30/2017) (Entered: 01/31/2017)
Electronic filing error. Incorrect event used. [err101]Please re−file in its entirety. Re: 4 MOTION for Leave to Appeal in forma pauperis filed by People of the United States of America (hdjS, COURT STAFF) (Filed on 1/31/2017) (Entered: 01/31/2017)
7 Proposed Summons. (Shalaby, Andrew) (Filed on 1/31/2017) (Entered: 01/31/2017)
8 MOTION for Leave to Proceed in forma pauperis filed by People of the United States of America, State of California. (Shalaby, Andrew) (Filed on 1/31/2017) (Entered: 01/31/2017)
9 FEE PAID (Filing fee$400,receipt number 0971−11122555). (Shalaby, Andrew) (Filed on 2/1/2017) (Entered: 02/01/2017)
10 Summons Issued as to Donald J. Trump, U.S. Attorney General (hdjS, COURT STAFF) (Filed on 2/1/2017) (Entered: 02/01/2017)
11 ORDER DISMISSING COMPLAINT. Signed by Judge James Donato on 2/1/2017. (jdlc2S, COURT STAFF) (Filed on 2/1/2017) (Entered: 02/01/2017)
12 Ex Parte MOTION for Reconsideration re 11 Order, Terminate Motions filed by People of the United States of America, State of California. (Attachments: # 1 Exhibit A)(Shalaby, Andrew) (Filed on 2/4/2017) (Entered: 02/04/2017)
13 Order denying 12 Motion for Reconsideration entered by Hon. James Donato. Leave to file a motion for reconsideration is denied. Plaintiff has not met the standards required under Civil Local Rule 7−9. The recent TRO issued in State of Washington et al. v. Trump, Case No. C17−0141JLR (W.D. Wash. Feb. 3, 2017) is inapposite. The plaintiffs there are specific states found to be threatened with concrete injuries. That is not the situation in this action. (This is a text−only entry generated by the court. There is no document associated with this entry.) (Entered: 02/06/2017)
14 SUMMONS Returned Executed by State of California, People of the United States of America. United States of America served on 2/8/2017, answer due 4/10/2017.

Case: 3:17-cv-451 As of: 01/11/2018 08:58 AM PST 3 of 4

02/10/2017 02/10/2017
02/13/2017 02/13/2017 02/14/2017 02/19/2017 03/10/2017 04/03/2017

(Shalaby, Andrew) (Filed on 2/10/2017) (Entered: 02/10/2017)
15 SUMMONS Returned Executed by State of California, People of the United States of America. Donald J. Trump served on 2/8/2017, answer due 3/1/2017. (Shalaby, Andrew) (Filed on 2/10/2017) (Entered: 02/10/2017)
16 Request for Judicial Notice re 1 Complaint, 11 Order, Terminate Motions Set One, individual interests filed byPeople of the United States of America, State of California. (Attachments: # 1 Signature Page (Declarations/Stipulations) Andermann, T., # 2 Signature Page (Declarations/Stipulations) Blumenfeld, B., # 3 Signature Page (Declarations/Stipulations) Chen, v., # 4 Signature Page (Declarations/Stipulations) Dimario, J., # 5 Signature Page (Declarations/Stipulations) Duran, G., # 6 Signature Page (Declarations/Stipulations) Frank, M., # 7 Signature Page (Declarations/Stipulations) Friedman, L., # 8 Signature Page (Declarations/Stipulations) Gansel, S., # 9 Signature Page (Declarations/Stipulations) Girmsheid, L., # 10 Signature Page (Declarations/Stipulations) Gonzalez−Shalaby, C., # 11 Signature Page (Declarations/Stipulations) Hazelwood, P., # 12 Signature Page (Declarations/Stipulations) Juntilla, M., # 13 Signature Page (Declarations/Stipulations) Lai, S., # 14 Signature Page (Declarations/Stipulations) Lazzarechi, G., # 15 Signature Page (Declarations/Stipulations) Lipscomb, L., # 16 Signature Page (Declarations/Stipulations) McClure, R., # 17 Signature Page (Declarations/Stipulations) McPherson, L., # 18 Signature Page (Declarations/Stipulations) Moss, E., # 19 Signature Page (Declarations/Stipulations) Roake, C., # 20 Signature Page (Declarations/Stipulations) Ross, D., # 21 Signature Page (Declarations/Stipulations) Shalaby, J., # 22 Signature Page (Declarations/Stipulations) Tarbet, S., # 23 Signature Page (Declarations/Stipulations) Todd, D., # 24 Signature Page (Declarations/Stipulations) Tsain, C., # 25 Signature Page (Declarations/Stipulations) Wang, L., # 26 Signature Page (Declarations/Stipulations) Yuan, P.)(Related document(s) 1 , 11 ) (Shalaby, Andrew) (Filed on 2/10/2017) (Entered: 02/10/2017)
17 Ex Parte MOTION for Extension of Time to Amend 11 Order, Terminate Motions filed by People of the United States of America, State of California. (Shalaby, Andrew) (Filed on 2/13/2017) (Entered: 02/13/2017)
18 Proposed Order re 17 Ex Parte MOTION for Extension of Time to Amend 11 Order, Terminate Motions by People of the United States of America, State of California. (Shalaby, Andrew) (Filed on 2/13/2017) (Entered: 02/13/2017)
19 Order granting Motion for Extension of Time to Amend 13 entered by Hon. James Donato. As the Court has made clear, the complaint suffered from standing defects unrelated to the proceedings in the Washington case. The possibility of a new Executive Order is also irrelevant to the dismissal order. Nevertheless, the Court will extend the deadline to file an amended complaint to March 10, 2017. No further extensions will be permitted, and the filing attorney is reminded that any amended complaint must conform to the Court's dismissal order. (This is a text−only entry generated by the court. There is no document associated with this entry.) (Entered: 02/14/2017)
20 Request for Judicial Notice re 1 Complaint, 16 Request for Judicial Notice,,,,,,, (Standford/Researcher_set) filed byPeople of the United States of America, State of California. (Attachments: # 1 Signature Page (Declarations/Stipulations) Choi, J, # 2 Signature Page (Declarations/Stipulations) Fagan, J, # 3 Signature Page (Declarations/Stipulations) Irvine, B, # 4 Signature Page (Declarations/Stipulations) Kasson, C, # 5 Signature Page (Declarations/Stipulations) Lai, K, # 6 Signature Page (Declarations/Stipulations) Lai, A, # 7 Signature Page (Declarations/Stipulations) Posz, T, # 8 Signature Page (Declarations/Stipulations) Sacks, M)(Related document(s) 1 , 16 ) (Shalaby, Andrew) (Filed on 2/19/2017) (Entered: 02/19/2017)
21 AMENDED COMPLAINT against Donald J. Trump, United States of America. Filed byThe State of California, People of the United States of America. (Shalaby, Andrew) (Filed on 3/10/2017) (Entered: 03/10/2017)
22 MOTION to Dismiss filed by Donald J. Trump, United States of America. Motion Hearing set for 5/11/2017 10:00 AM in Courtroom 11, 19th Floor, San Francisco before Hon. James Donato. Responses due by 4/17/2017. Replies due by 4/24/2017. (Attachments: # 1 Proposed Order)(Robinson, Stuart) (Filed on 4/3/2017) (Entered:

Case: 3:17-cv-451 As of: 01/11/2018 08:58 AM PST 4 of 4

04/03/2017 04/06/2017 04/12/2017
04/17/2017 04/24/2017 05/01/2017
12/07/2017 12/07/2017

04/03/2017)
23 NOTICE of Appearance by Stuart Justin Robinson (Robinson, Stuart) (Filed on 4/3/2017) (Entered: 04/03/2017)
24 Joint MOTION to Continue INITIAL CASE MANAGEMENT CONFERENCE filed by Donald J. Trump, United States of America. (Attachments: # 1 Proposed Order)(Robinson, Stuart) (Filed on 4/6/2017) (Entered: 04/06/2017)
25 ORDER re 24 Motion to Continue. The Court vacates the case management conference set for May 4, 2017, and the related deadlines, pending further order by the Court. Signed by Judge James Donato on 4/12/2017. (This is a text−only entry. There is no document associated with this entry.) (jdlc1S, COURT STAFF) (Filed on 4/12/2017) (Entered: 04/12/2017)
26 OPPOSITION/RESPONSE (re 22 MOTION to Dismiss ) filed byPeople of the United States of America, The State of California. (Shalaby, Andrew) (Filed on 4/17/2017) (Entered: 04/17/2017)
27 REPLY (re 22 MOTION to Dismiss) filed by Donald J. Trump, United States of America. (Robinson, Stuart) (Filed on 4/24/2017) (Entered: 04/24/2017)
28 ORDER VACATING HEARING. The Court finds the 22 motion to dismiss to be suitable for decision without oral argument pursuant to Civil Local Rule 7−1(b). The hearing that was set for May 11, 2017 is vacated, and the Court will issue a decision on the papers. Signed by Judge James Donato on 5/1/2017. (This is a text−only entry. There is no document associated with this entry.) (jdlc1S, COURT STAFF) (Filed on 5/1/2017) (Entered: 05/01/2017)
29 Order by Judge James Donato granting 22 Motion to Dismiss.(jdlc1S, COURT STAFF) (Filed on 12/7/2017) (Entered: 12/07/2017)
30 JUDGMENT, ***Civil Case Terminated.. Signed by Judge James Donato on 12/7/17. (lrcS, COURT STAFF) (Filed on 12/7/2017) (Entered: 12/07/2017)