Doe v. Trump

I. INTRODUCTION

Before the court are two motions: (1) Consolidated Plaintiffs Jewish Family Services of Seattle, Jewish Family Services of Silicon Valley, Allen Vaught, Afkab Mohamed Hussein, John Does 1-3 and 7, and Jane Does 4-6's (collectively, "JFS Plaintiffs") motion to reinstate their request for limited discovery1 (2d MFD (Dkt. # 131) );2 and (2) Defendants President Donald Trump, United States Department of State ("DOS"), Secretary of State Mike Pompeo, United States Department of Homeland Security ("DHS"), DHS Secretary Kirstjen M. Nielsen, United States Customs and Border Protection ("USCBP"), Commissioner of USCBP Kevin McAleenan, Field Director of the Seattle Field Office of USCBP Michele James, Office of the Director of National *1189Intelligence, Director of National Intelligence ("DNI") Daniel Coats's (collectively, "Defendants") motion to dismiss and dissolve the preliminary injunction as moot (MTD (Dkt. # 145) ).3 Plaintiffs John Doe, Episcopal Diocese of Olympia, Joseph Doe, James Doe, Council on American Islamic Relations-Washington, Jack Doe, Jason Doe, and Jeffrey Doe (collectively, "Doe Plaintiffs") join JFS Plaintiffs' motion. (See 5/7/18 Order (Dkt. # 141) (granting Doe Plaintiffs' motion for joinder).) The court has considered the motions, all submissions filed in support of and in opposition to both motions, the relevant portions of the record, and the applicable law. Being fully advised,4 the court GRANTS JFS Plaintiffs and Doe Plaintiffs' (collectively, "Plaintiffs") motion for limited discovery as more fully described herein and DENIES Defendants' motion to dismiss and dissolve the preliminary injunction as moot without prejudice to refiling, if appropriate, following the conclusion of limited jurisdictional discovery.

II. BACKGROUND

A. The President's First Three Executive Orders

On January 27, 2017, President Trump signed Executive Order 13769 ("EO1"), which suspended for 90 days entry into the United States for nationals of seven Muslim-majority countries; suspended the U.S. Refugee Admissions Program ("USRAP") for 120 days; and indefinitely barred Syrian refugees from entering the United States.5 Following a nationwide preliminary injunction against EO1, see, e.g. , Washington v. Trump , 847 F.3d 1151 (9th Cir. 2017), the President rescinded EO1 and replaced it with Executive Order 13780 ("EO2").6 EO2 suspended for another 90 days the entry of nationals from six Muslim-majority countries and suspended all refugee admissions for 120 days. See EO2 §§ 2(c), 6(a). The Ninth Circuit enjoined EO2 before it took effect. See Hawaii v. Trump , 859 F.3d 741, 757, 760 (9th Cir. 2017) (per curiam), vacated as moot , --- U.S. ----, 138 S.Ct. 377, 199 L.Ed.2d 275 (2017). However, the Supreme Court allowed Defendants to suspend the entry into the country of immigrants from the six Muslim-majority countries and to suspend USRAP, but only for immigrants and refugees without a "bone fide relationship" to a person or entity in the United States. See Trump v. IRAP , --- U.S. ----, 137 S.Ct. 2080, 2087-89, 198 L.Ed.2d 643 (2017).

When EO2's 90-day ban on immigrants from six Muslim-majority countries expired, President Trump issued a Proclamation ("EO3") that, among other things, indefinitely banned immigrants from seven countries-six of which are Muslim-majority countries.7 On June 26, 2018, the Supreme *1190Court held that President Trump permissibly exercised his "broad discretion" under 8 U.S.C. 1182(f) of the Immigration and Nationality Act ("INA") in issuing EO3. See Trump v. Hawaii , --- U.S. ----, 138 S.Ct. 2392, 2407-10, 201 L.Ed.2d 775 (2018).

B. The Fourth Executive Order & the Agency Memo

In the meantime, on October 24, 2017, EO2's 120-day suspension of refugee admissions expired. (See PI Order (Dkt. # 92) at 8.) On the same day, President Trump issued Executive Order 13815 ("EO4"), entitled "Resuming the United States Refugee Admissions Program with Enhanced Vetting Capabilities."8 Although EO4's title indicates that refugee admissions have resumed, the accompanying memorandum-known as the "Agency Memo"-imposed another ban on certain categories of refugees. (See Lin Decl. (Dkt. # 46) ¶ 3, Ex. B (attaching a copy of the Agency Memo).)9 The Agency Memo was dated one day before EO4, but was also released on October 24, 2017. (See id. )

First, the Agency Memo suspended indefinitely "following-to-join" ("FTJ") derivative refugees.10 Every year, approximately 2,500 refugees in the United States are able to reunite with their immediate family members through the FTJ process. (Agency Memo at 2 n.1.) The Agency Memo states that most FTJ refugee applicants do not currently undergo the same security procedures as the principal refugee who has already resettled in the United States. (Id. at 2-3.) The Secretaries of DOS and DHS and the DNI determined that FTJ refugees should not be admitted to the United States until additional screening procedures were in place. (Id. at 3.)

Second, the Agency Memo suspended for at least 90-days the entry of refugees who are "nationals of, and stateless persons who last habitually resided in, 11 particular countries previously identified as posing a higher risk to the United States through their designation on the Security Advisory Opinion (SAO) list." (Id. at 2-3; see also Agency Memo Addendum at 1.) The Agency Memo does not identify the countries designated on the SAO list, but they are believed to be Egypt, Iran, Iraq, Libya, Mali, North Korea, Somalia, South Sudan, Sudan, Syria, and Yemen. (See PI Order at 10-11 n.6; 11/16/17 Smith Decl. (17-1707 Dkt. # 44) ¶ 3.) The Agency Memo required DOS and DHS to "conduct a review and analysis" of USRAP for refugees from SAO countries for an additional 90 days-notwithstanding the agencies'

*1191previous review of USRAP pursuant to EO1 and EO2. (See id. ) In addition, the Agency Memo diverted resources dedicated to processing refugees who are citizens of (or stateless persons who last resided in) SAO countries and reallocated those resources to processing refugee applicants from non-SAO countries. (Id. ) Although the review was to last for 90 days, Defendants conceded in oral argument that the Agency Memo does not direct the government to resume processing and admitting SAO refuges after the 90-day review is complete. (See Tr. of 12/21/17 Hr'g (Dkt. # 113) at 38:1-5 ("I mean, perhaps the government will conclude at the end of the 90 days that refugee admissions may resume in March, or perhaps the government will decide that further security measures are needed for certain countries. We just don't know.").)11

C. The Preliminary Injunction

JFS Plaintiffs filed suit and Doe Plaintiffs amended their complaint to challenge the Agency Memo's suspension of FTJ and SAO refugee admissions (see TAC (Dkt. # 42); Compl. (17-1707 Dkt. # 1) ); and Plaintiffs moved for a preliminary injunction blocking those provisions of the Agency Memo (see Doe PI Mot. (Dkt. # 45); JFS PI Mot. (17-1707 Dkt. # 42) ). On November 29, 2017, the court consolidated the two actions. (See 11/29/17 Order.) On December 23, 2017, the court granted both JFS Plaintiffs' and Doe Plaintiffs' motions and enjoined Defendants from enforcing (1) "those provisions of the Agency Memo that suspend the processing of FTJ refugee applications or suspend the admission of FTJ refugees into the United States," and (2) "those provisions ... that suspend or inhibit, including through the diversion of resources, the processing of applications or the admission into the United States of refugees from SAO countries." (PI Order at 64-65.) The court, however, limited its preliminary injunction to refugees "with a bona fide relationship to a person or entity within the United States." (Id. at 65.)

Within a few days, Defendants moved for an "emergency" stay of the injunction pending appeal. (MFS (Dkt. # 95).) In that motion, Defendants narrowly interpreted the court's injunction. (See id. at 4-6.) Defendants asserted that they were not required to undo any actions taken or decisions made prior to December 23, 2017, to implement the SAO or FTJ suspensions. See id. On January 9, 2018, the court denied Defendants' motion (1/9/18 Order (Dkt. # 106) at 7-16) and rejected their cramped interpretation of the court's preliminary injunction (id. at 5-7). The court admonished Defendants for attempting "to unilaterally modify the preliminary injunction" and ordered them to "restore the status quo prior to the issuance of the Agency Memo with respect to the processing of applications from FTJ refugees and refugees from SAO countries." (Id. at 5-6.) On January 4, 2018, Defendants filed a notice of appeal concerning the court's preliminary injunction. (NOA (Dkt. # 99).)

D. Defendants' Notices of Compliance with the Preliminary Injunction

On January 19, 2018, Defendants filed a notice of compliance with the court's preliminary injunction. (See 1/19/18 Notice (Dkt. # 114).) The notice described certain *1192steps Defendants had taken in response to the court's orders. (See generally id. ) The notice referenced guidance that Defendants had sent to DOS and USCIS personnel in late December 2017 and early January 2018 "directing their personnel to comply with the injunction." (Id. at 2-3.) However, Defendants have not produced copies of the guidance they sent (see JFS MTD Resp. (Dkt. # 146) at 4), and Defendants sent all of the guidance referenced in their January 19, 2018, notice prior to the court's January 9, 2018, order, in which the court rejected Defendants' narrow interpretation of the preliminary injunction.12 (See id. ; see also 1/9/18 Order at 5-6). Finally, the notice described Defendants' efforts to comply with the preliminary injunction in the scheduling of "circuit rides" through which USCIS officers travel to locations worldwide to interview refugee applicants.13 (1/19/18 Notice at 3-5.)

On January 31, 2018, Defendants filed a second notice announcing that they had completed the 90-day SAO refugee review on January 22, 2018, and they expected to finish implementing the additional procedures for FTJ refugees referenced in the Agency Memo on or about February 1, 2018. (See 1/31/18 Notice (Dkt. # 119) at 1-2.) In the notice, Defendants stated that they "do not understand the preliminary injunction ... to prohibit [them] from implementing these enhancements and recommendations." (Id. at 1.) Defendants also asserted that as a result of these two events-the completion of the SAO refugee review and the near-completion of enhanced procedures for FTJ refugee processing-Plaintiffs' claims concerning the Agency Memo would "soon be moot." (Id. at 2.)

E. Secretary Nielsen's Memorandum

On or about January 29, 2018, DHS Secretary Nielsen issued a memorandum ("the Nielsen Memo") announcing three "determinations" she had made based on the DHS's SAO review as ordered by the Agency Memo. (See MTD, Ex. 2 (Dkt. # 145-2) ("Nielsen Memo") at 2-3.) She determined that (1) "[a]dditional screening and vetting" are required for "certain nationals of high-risk countries"; (2) the USRAP "should continue to be administered in a risk-based manner"; and (3) the "SAO list and selection criteria should be reviewed and updated." (Id. ) The Nielsen Memo also stated that "[t]he 90-day review of SAO countries, as provided in the ... [Agency Memo], is no longer in effect by its terms, and the prioritization set forth in the Memorandum is not hereby renewed." (Id. at 4.)

*1193Defendants produced a redacted copy of the Nielsen Memo to Plaintiffs on February 8, 2018. (Keaney Decl. (Dkt. # 122) ¶¶ 3-4, Exs. B-C.) Plaintiffs requested that Defendants reconsider the redaction, and if they refused, to state the basis for the redaction. (Id. ¶ 5, Ex. D.) On February 13, 2018, Defendants refused to reconsider the redaction and asserted that the redaction was based on the law enforcement privilege. (Id. ¶ 6, Ex. E.)

F. Plaintiffs' Evidence of Non-Compliance with the Preliminary Injunction

1. Communications from the DOS

Plaintiffs submit email communications from DOS that they contend contradict Defendants' assertions of compliance with the preliminary injunction. (See Doe MTD Resp. (Dkt. # 147) at 10-11.) First, on January 8, 2018, Congresswoman Pramila Jayapal's Manager for Constituent Services sent an email to PRM on behalf of a constituent to inquire about the refugee petitions of the constituent's mother and six siblings. (5/4/18 Mohamed Decl. (Dkt. # 139) ¶ 3.) On January 12, 2018, the DOS Congressional Liaison responded that the case had been "conditionally approved for refugee resettlement by DHS/USCIS in Nov[ember] 2015," but was now "on temporary hold following the issuance of an Executive Order on October 24, 2017[,] that directed [DOS] and DHS to review the refugee processing procedures for nationals of 11 countries, which includes this case." (Id. ¶ 4, Ex. A.)

Second, on April 4, 2018, the same DOS Congressional Liaison14 wrote to a staff member of Congressman Mark Vessey's office that the refugee about whom the staff member had inquired had been fully approved in September 2017. (5/3/18 Doe 1 Decl. (Dkt. # 132) ¶ 3, Ex. A.)15 However, the Liaison continued that "USRAP was unable to complete final processing of the case prior to the Oct[ober] 24, 2017[,] Executive Order directing the temporary suspension of the movement of nationals from eleven countries, including Iraq, until a further review of the procedures for processing these cases was completed." (Id. ) The Liaison also stated that the "suspension ended on Jan[uary] 22, 2018" (id. ), which is the same day Defendants state in their January 31, 2018, notice to the court that they completed the 90-day SAO refugee review (see 1/31/18 Notice at 1-2).

Those DOS communications to two different Congressional offices make no reference to the preliminary injunction or any implementation thereof. (See id. ; 5/4/18 Mohamed Decl. ¶ 4, Ex. A.) In response, Defendants submit the declaration of Kelly A. Gauger, the Acting Director of the Admissions Office of PRM of DOS. (See 5/14/18 Gauger Decl. (Dkt. # 142-1).) She reiterates that "the requirements of the December 23, 2017, [preliminary] injunction ... were immediately sent to PRM's implementing partners at the [RSCs] overseas so that the RSCs could resume processing ... applicants within the scope of the injunction at the start of the next business day." (Id. ¶ 5.) She also states that the representations in the DOS Congressional Liaison's emails "are incorrect and the result of inadvertent error." (Id. ¶ 6.) Defendants do not, however, submit a declaration from the DOS Congressional Liaison himself explaining the content of his emails, his sources, or his methods of inquiry. (See generally Dkt.)

*11942. Statistical Evidence

JFS Plaintiffs also submit statistical evidence indicating a precipitous drop in refugee admissions during 2018 despite the court's preliminary injunction and order requiring Defendants to "restore the status quo prior to the issuance of the Agency Memo with respect to the processing of applications from FTJ refugees and refugees from SAO countries." (See 1/19/18 Order at 5; see generally PI Order.) For example, in the first four months following the preliminary injunction, the admission of refugees from SAO countries remained at a standstill. Although in fiscal years 2016 and 2017 refugees from SAO countries comprised 43.5 percent of the refugee admissions under the USRAP (see 1/29/18 Smith Decl. (Dkt. # 118) ¶ 5), between October 1, 2017, and April 1, 2018, only 4.2 percent of the total refugees admitted under the USRAP were from SAO countries (see 5/3/18 Smith Decl. (Dkt. # 133) ¶ 4). Further, between December 23, 2017-the date of the preliminary injunction-and April 1, 2018, the percentage of refugees from SAO countries dropped even further. (See id. ¶ 5). Following the court's preliminary injunction, the percentage of SAO nationals dropped to just 2.7 percent of all refugee admissions.16 (See id. )

Defendants do not dispute these statistics but rather attribute them to (1) the effects of the Agency Memo prior to the preliminary injunction and (2) the government's enhanced screening and vetting protocols implemented as a result of the 120-day review authorized by EO2 and the 90-day review authorized by the Agency Memo. (See generally Def. 2d MFD Resp. at 5-6.)

3. Defendants' Record of Compliance with Prior Preliminary Injunctions

JFS Plaintiffs also point to the government's record of compliance with other preliminary injunctions issued in response to EO1. (See JFS MTD Resp. (Dkt. # 146) at 12 n.9.) On January 18, 2018, the Office of the Inspector General ("OIG") of DHS issued a report regarding DHS's implementation of EO1 and CPB's response to various court orders enjoining the implementation of EO1. See Office of the Inspector Gen., Dep't of Homeland Sec., DHS Implementation of Executive Order # 13769 (Jan. 18, 2018), https://www.oig.dhs.gov/sites/default/files/assets/2018-01/OIG-18-37-Jan18.pdf. The report "highlights" its findings as follows:

Regarding [CBP's] compliance with multiple federal court orders that were issued between the January 27, 2017 release of [EO1] and the February 3, 2017 nation-wide injunction in Washington v. Trump , we found that at the ports of entry, CBP largely complied with court orders, albeit with some delay and confusion as to the scope of some orders. But while CBP complied with court orders at U.S. ports of entry as to travelers who had already arrived, CBP was aggressive in preventing affected travelers from boarding aircraft bound for the United States. We believe those actions violated two separate court orders that enjoined CBP from this activity.

Id.

Defendants do not dispute the contents of the OIG's report, but instead argue that they are entitled to a presumption that they have discharged their duties properly. (See Def. MTD Reply at 7 n.2.) Defendants also highlight that the OIG "did not substantiate any claims of misconduct on the *1195part of CPB Officers ... at the ports of entry," and that "at the port of entry, CPB largely complied with court orders, albeit with some delay and confusion as to the scope of some orders." (See id. )

G. Remand from the Ninth Circuit

On February 6, 2018, following the completion of the 90-day SAO refugee review on January 22, 2018, and the implementation of additional procedures for FTJ refugees on or about February 1, 2018 (see 1/31/18 Notice at 1-2), Defendants moved to dismiss as moot their appeal (and Plaintiffs' cross-appeal) in the Ninth Circuit. See Doe v. Trump , No. 18-35026 (9th Cir.), Dkt. # 24 at 2. On March 29, 2018, the Ninth Circuit denied Defendants' motion to dismiss and instead granted Plaintiffs' request to remand the consolidated case so that this court could address the issue of mootness in the first instance. (3/29/18 9th Cir. Ord. (Dkt. # 126); 9th Cir. Mandate (Dkt. # 144).)

While their appeal was pending, Defendants filed a motion to stay the proceedings here. (See MTS (Dkt. # 110).) Plaintiffs responded with a motion seeking limited discovery on Defendants' compliance with the preliminary injunction. (See 1st MFD.) In response to the Ninth Circuit's remand order, the court indicated that it was likely to deny as moot Defendants' motion to stay and removed both that motion and Plaintiffs' motion for limited discovery from the court's calendar. (4/10/18 Order (Dkt. # 128) at 2.) The court also ordered the parties to file a joint status report proposing how the court should proceed on remand to address the issue of mootness. (Id. at 3.) In accordance with their joint status report (JSR (Dkt # 129) ), JFS Plaintiffs filed their present motion to reinstate their request for limited discovery on compliance (see 2d MFD), in which Doe Plaintiffs joined (see 5/7/18 Order), and Defendants filed their motion to dismiss based on mootness (see MTD). The court now considers both motions.

III. ANALYSIS

A. Legal Standard

A party may move to dismiss an action for lack of subject matter jurisdiction. Fed. R. Civ. P. 12(b)(1). A federal court does not have jurisdiction "to give opinions upon moot questions or abstract propositions, or to declare principles or rules of law which cannot affect the matter in issue in the case before it." Church of Scientology of Cal. v. United States , 506 U.S. 9, 12, 113 S.Ct. 447, 121 L.Ed.2d 313 (1992) (quoting Mills v. Green , 159 U.S. 651, 653, 16 S.Ct. 132, 40 L.Ed. 293 (1895) ). Thus, mootness deprives federal courts of subject matter jurisdiction because federal courts are empowered to hear only cases and controversies. U.S. Const. art. III § 2; DeFunis v. Odegaard , 416 U.S. 312, 316, 94 S.Ct. 1704, 40 L.Ed.2d 164 (1974).

"A claim is moot if it has lost its character as a present, live controversy." Rosemere Neighborhood Ass'n v. U.S. Envtl. Prot. Agency , 581 F.3d 1169, 1172-73 (9th Cir. 2009) (quoting Am. Rivers v. Nat'l Marine Fisheries Serv. , 126 F.3d 1118, 1123 (9th Cir. 1997) ). To determine mootness, "the question is not whether the precise relief sought at the time the application for an injunction was filed is still available. The question is whether there can be any effective relief." NW Envtl. Def. Ctr. v. Gordon , 849 F.2d 1241, 1244-45 (9th Cir. 1988) (quoting Garcia v. Lawn , 805 F.2d 1400, 1403 (9th Cir. 1986) ). If a course of action is mostly completed but "changes can still be made to help alleviate any adverse effects," the case is not moot. Tyler v. Cuomo , 236 F.3d 1124, 1137 (9th Cir. 2000). A case becomes moot "only when it is impossible for a court to grant any effectual relief whatever to the prevailing party."

*1196Chafin v. Chafin , 568 U.S. 165, 133 S.Ct. 1017, 1023, 185 L.Ed.2d 1 (2013) (citation omitted). The party alleging mootness bears a "heavy" burden to establish that the court can provide no effective relief. See Karuk Tribe of Cal. v. U.S. Forest Serv. , 681 F.3d 1006, 1017 (9th Cir. 2012) (quoting Forest Guardians v. Johanns , 450 F.3d 455, 461 (9th Cir. 2006) ).

When a party requests discovery to respond to a motion to dismiss on jurisdictional grounds, the court ordinarily should grant discovery "where pertinent facts bearing on the question of jurisdiction are controverted or where a more satisfactory showing of the facts is necessary." Laub v. U.S. Dep't of the Interior , 342 F.3d 1080, 1093 (9th Cir. 2003) (quoting Butcher's Union Local No. 498 v. SDC Inv., Inc. , 788 F.2d 535, 540 (9th Cir. 1986) ) (discussing discovery in the context of standing). On the other hand, "a refusal to grant discovery to establish jurisdiction is not an abuse of discretion when 'it is clear that further discovery would not demonstrate facts sufficient to constitute a basis for jurisdiction.' " Id. (quoting Wells Fargo & Co. v. Wells Fargo Express Co. , 556 F.2d 406, 430 n.24 (9th Cir. 1977) ).

"It is well-established that '[t]he burden is on the party seeking to conduct additional discovery to put forth sufficient facts to show that the evidence sought exists." Gager v. United States , 149 F.3d 918, 922 (9th Cir. 1998) (quoting Conkle v. Jeong , 73 F.3d 909, 914 (9th Cir. 1995) ). However, a plaintiff seeking jurisdictional discovery need not "first make a prima facie showing that jurisdiction actually exists.' " Hall v. United States , No. 16-CV-02395-BAS-RBB, 2017 WL 3252240, at *4 (S.D. Cal. July 31, 2017) (quoting NuboNau, Inc. v. NB Labs, Ltd. , No. 10-cv-2631-LAB-BGS, 2011 WL 5237566, at *3 (S.D. Cal. Oct. 31, 2011) ). "Such a showing is necessary to survive a motion to dismiss, and '[i]t would ... be counter intuitive to require a plaintiff, prior to conducting discovery, to meet the same burden that would be required in order to defeat a motion to dismiss.' " NuboNau, Inc. , 2011 WL 5237566, at *3 (quoting Orchid Biosciences, Inc. v. St. Louis Univ. , 198 F.R.D. 670, 673 (S.D. Cal. 2001) ).

B. Preliminary Motion to Strike

Although Defendants do not agree that limited discovery is warranted, Defendants did not object to Plaintiffs moving to reinstate their prior motion for discovery. (See JSR at 1-2; see also Def. 2d MFD Resp. at 1, 3.) However, Defendants object that Plaintiffs seek "far more than ... reinstatement," and improperly "attempt to supplement a fully-briefed motion without leave of court." (Def. 2d MFD Resp. at 1; see also id. at 3-4.) Defendants ask the court to strike Plaintiffs' motion for this reason. (Id. at 1 ("The [c]ourt should strike JFS Plaintiffs' anomalous filing on procedural grounds.").)

The court declines to strike Plaintiffs' motion. "Motions to strike are disfavored and 'should not be granted unless it is clear that the matter to be stricken could have no possible bearing on the subject matter of the litigation.' " Harper v. Collection Bureau of Walla Walla, Inc. , No. C06-1605-JCC, 2007 WL 4287293, at *3 (W.D. Wash. Dec. 4, 2007) (quoting Colaprico v. Sun Microsystems, Inc. , 758 F.Supp. 1335, 1339 (N.D. Cal. 1991) ). In their motion, Plaintiffs bring to the court's attention evidence that came to light only after Plaintiffs filed the underlying discovery motion. (See 2d MFD at 3-4 (discussing a recently discovered email from DOS Congressional Liaison and statistical evidence from the first half of 2018).) As discussed below, that evidence is relevant to the issues before the court. See infra § III.C. Further, Defendants suffer no prejudice because they have had a full opportunity to respond to the new material *1197in Plaintiffs' motion. (See generally Def. 2d MFD Resp.); Liberty Mut. Fire Ins. Co. v. City of Seattle , No. C15-1039-JCC, 2016 WL 5792691, at *1 n.1, 2 n.2 (W.D. Wash. Oct. 4, 2016) (denying the plaintiff's request to strike an argument and "new evidence" on grounds that there was no prejudice to the plaintiffs in considering either the evidence or the argument). Accordingly, the court denies Defendants' request to strike Plaintiffs' motion.17

C. The Parties' Motions

Defendants argue that the Agency Memo provisions at issue expired while the cross-appeals of the court's preliminary injunction were pending. (MTD at 1-2.) Accordingly, they argue that the court should dissolve the preliminary injunction and dismiss as moot Plaintiffs' underlying claims concerning the Agency Memo. (Id. ) Specifically, Defendants argue that both the 90-day SAO review and the period to implement additional screening procedures for FTJ refugee applicants are over. (Id. at 4.) They also argue that the "temporary guidance that was the subject of the injunction has been superseded by [the Nielsen Memo]." (Id. )

With regard to the SAO provisions, Defendants assert that the Agency Memo "makes plain" that the suspension18 of SAO refugee applications was only to occur during the SAO review period. (Id. at 9.) The 90-day review period expired on January 22, 2018-exactly 90 days following the Agency Memo's October 23, 2017, issuing date. (Id. ) One week later, DHS Secretary Nielsen issued a memorandum to USCIS setting forth her determinations following the 90-day SAO review, which included "certain screening and vetting enhancements" that USCIS would implement. (See Nielsen Memo at 2-3.) She also stated that "the prioritization set forth in the [Agency Memo] is not hereby renewed." (Id. at 3.) Thus, Defendants assert that the passage of the 90-review period, along with the Nielsen Memo, moots JFS Plaintiffs' claims concerning the Agency Memo. (MTD at 9.)

Defendants also assert that the FTJ implementation period concluded on February 1, 2018. (Id. at 10.) On that day, "USCIS and [DOS] implemented new procedures to ensure that all individuals admitted as refugees receive similar, thorough *1198vetting-whether they are principal refugees, accompanying family members, or [FTJ] refugees." (Id. (quoting I-730, Refugee/Asylee Relative Petition , U.S. Citizenship & Immigration Serv., https://www.uscis.gov/i-730 (last updated June 18, 2018) ); see also 5/14/18 Higgins Decl. (Dkt. # 142-2) ¶ 8).) Defendants argue that with the enhanced screening mechanisms in place, the processing of FTJ refugee applications and admissions would have resumed by February 1, 2018, even without the court's preliminary injunction. (Id. ) Defendants argue that the Agency Memo expressly states that the government "will resume admission of [FTJ] refugees once those enhancements have been implemented," and accordingly, Doe Plaintiffs' claims are now moot. (Id. at 11 (quoting Agency Memo at 3).)

JFS and Doe Plaintiffs respond that Defendants fail to carry their burden of establishing mootness. (JFS MTD Resp. at 7-13; Doe MTD Resp. (Dkt. # 147) at 7-14.) Plaintiffs also argue that their claims fall within two well-established exceptions to the mootness doctrine: (1) voluntary cessation;19 and (2) capable of repetition yet evading review.20 (JFS MTD Resp. at 13-17; Doe MTD Resp. at 14-22.) Finally, both sets of Plaintiffs also argue in their responses and in their discovery motion that they are entitled to jurisdictional discovery prior to court considering Defendants' mootness argument. (JFS MTD Resp. at 17-18; Doe MTD Resp. at 22; see generally 2d MFD.)

The court addresses the last issue-Plaintiffs' demand for jurisdictional discovery-first. The court does so because if such discovery is warranted, the court should defer considering the substance of Defendants' motion and Plaintiffs' responses thereto until such time as that discovery is complete.21 Plaintiffs assert that evidence they have uncovered so *1199far "raise[s] serious concerns about Defendants' compliance with th[e] [c]ourt's injunction." (2d MFD at 2-3.) This evidence includes two emails from a DOS Congressional Liaison indicating that the refugee applications, about which two separate Congressional offices had inquired, although "approved," had not been processed due to the suspensions directed by the Agency Memo. (See 5/4/18 Mohamed Decl. ¶¶ 3-4, Ex. A; 5/3/18 Doe 1 Decl. ¶ 3, Ex. A); see supra § II.F.1. Neither email, sent in January and April, 2018, respectively, refers to the court's preliminary injunction barring enforcement of these provisions of the Agency Memo. (See id. ) Although the DOS Congressional Liaison had been informed about the October 24, 2017, Agency Memo, he was apparently not informed about the December 23, 2017, preliminary injunction. In response, the Acting Director of the Admissions Office of PRM of the DOS attests that the requirements of the December 23, 2017, preliminary injunction were sent promptly to PRM's implementing partners. (5/4/18 Gauger Decl. ¶ 5.) However, at a minimum, the emails from the DOS Congressional Liaison raise concerns about the scope and effectiveness of that communication.

Further, although the court does not impugn the testimony of the Acting Director, the declaration nevertheless contains hearsay within hearsay. See United States v. Pena-Gutierrez , 222 F.3d 1080, 1087-88 (9th Cir. 2000) (noting that an alien's statement to an immigration officer was hearsay-within-hearsay when the statement was contained in the immigration officer's report); see also Sana v. Hawaiian Cruises, Ltd. , 181 F.3d 1041, 1045 (9th Cir. 1999) (stating that for hearsay-within-hearsay to be admissible, "each layer of hearsay must satisfy an exception to the hearsay rule"). For example, the Acting Director states that she "reviewed the emails" and "confirmed with the [DOS] Congressional Liaison that these responses were not reviewed by anyone else prior to being sent ... to Congress." (Id. ¶ 3.) She further attests that the "representations in the emails ... are incorrect and the result of an inadvertent error by the [DOS] Congressional Liaison." (Id. ¶ 6.) The court is puzzled why Defendants did not provide a declaration from the Congressional Liaison himself to explain the sources of his information and the apparent error in his emails, rather than rely on inadmissible hearsay testimony. See Fed. R. Evid. 802. Defendants' reliance on hearsay testimony is even more puzzling because the Acting Director's declaration indicates that she contacted the DOS Congressional Liaison and therefore presumably could have obtained his declaration.

In addition to the emails, Plaintiffs also produce statistical evidence that the admission of SAO refugees actually declined following the preliminary injunction. See supra § II.F.2. Defendants do not dispute those statistics, but rather attribute them to the effects of the Agency Memo prior to the preliminary injunction and the government's enhanced screening and vetting protocols. (See generally Def. 2d MFD Resp. at 5-6.) Although the court might expect that the processing and admission of FTJ and SAO refugees would not reach the levels that existed prior to the issuance of the Agency Memo on October 24, 2017, the further drop of SAO refugee admissions following the preliminary injunction deserves further inquiry.

Finally, although not singularly dispositive, the court notes Defendants' failure to fully comply with certain injunctions concerning EO1-including the preliminary injunction this court issued in Washington v. Trump .22 See supra § II.F.3. The court *1200will not ignore that failure in evaluating Plaintiffs' evidence. Thus, considering all this evidence, the court concludes that Plaintiffs meet their burden of demonstrating that facts bearing on the court's jurisdiction are controverted and a more satisfactory showing of facts is necessary. See Laub , 342 F.3d at 1093.

In Laub , the Ninth Circuit found the district court improperly denied jurisdictional discovery when the plaintiffs supported their request with documents suggesting their claim was "arguable." See 342 F.3d at 1092-93. There, the plaintiffs requested discovery after the government asserted that its land and water acquisitions were independent of a government water management program and thus not subject to an injunction. See id. at 1083, 1092-93. The Ninth Circuit found that "public documents offered by [the] [p]laintiffs suggest[ed] that there [wa]s at least an arguable claim that the federal government play[ed] a significant enough role in the [water management] program" to render the government's actions subject to federal requirements. Id. at 1093. Though noting that the offered documents might "be insufficient in themselves to establish jurisdiction," the court found that granting the plaintiffs' request for discovery "would create a 'reasonable probability' that the outcome of the factual motion to dismiss would be different." Id. (quoting Martel v. Cty. of L.A. , 56 F.3d 993, 995 (9th Cir. 1995) (en banc) ). Thus, the Ninth Circuit held that the district court erred in denying jurisdictional discovery "[b]ecause additional discovery would be useful to establish federal subject matter jurisdiction, and because the extent of federal involvement in the challenged transactions [wa]s contested." Id.

Here, jurisdictional discovery is appropriate because additional facts regarding Defendants' efforts to implement the preliminary injunction and their efforts to restore the status quo following its imposition would be useful to the court's consideration of mootness. (See 1/9/18 Order at 6 ("Defendants are required to restore the status quo prior to the issuance of the Agency Memo with respect to the processing of applications from FTJ refugees and refugees from SAO countries.").) Plaintiffs have demonstrated a bona fide factual dispute concerning the existence and effectiveness of Defendants' steps to discontinue the enjoined aspects of the Agency Memo. Until that factual dispute is resolved, dismissing on mootness grounds would be inappropriate. As in Laub , although the evidence proffered by Plaintiffs at this point might "be insufficient in [itself] to establish jurisdiction," it is sufficient to establish at least a "reasonable probability" that jurisdictional discovery could alter the outcome of the mootness question. See 342 F.3d at 1093.

Defendants argue that the Government is "presume[d] ... [to] have properly discharged [its] official duties ... in the absence of clear evidence to the contrary." United States v. Chem. Found. , 272 U.S. 1, 14-15, 47 S.Ct. 1, 71 L.Ed. 131 (1926). (See Def. 2d MFD Resp. at 3.) "Nevertheless, ... the presumption is not conclusive and can be rebutted." Hirsch v. Clark , No. NC 83-0097A, 1984 WL 6209, at *2 (D. Utah Aug. 29, 1984). There is scant case authority describing the type of "clear evidence" necessary to rebut the presumption. Here, the court concludes that the emails and statistical evidence Plaintiffs submit is sufficient to rebut the presumption. See, e.g. , *1201McDonough v. Anoka Cty. , 799 F.3d 931, 948 (8th Cir. 2015) (ruling that, whatever weight the presumption that public officers have properly discharged their official duties might have at the motion to dismiss phase, drivers who claimed that government employees had improperly accessed their personal information sufficiently rebutted the presumption by alleging high volumes and suspicious timing of accesses and by pointing to the legislative auditor's report finding that at least half of law enforcement officers in Minnesota were misusing personal information in the database). The court concludes only that there is a factual dispute about which Plaintiffs are entitled to make further inquiry-not that Defendants failed to properly discharge their duties.

Defendants also argue that they have provided ample discovery to Plaintiffs concerning their compliance with the preliminary injunction, including (1) Defendants' notices of compliance filed with the court (1/19/18 Notice; 1/31/18 Notice); see supra § II.D, (2) a partially redacted copy of the Nielsen Memo, see supra § II.E, and (3) a declaration from the Associate Director of RAIO at USCIS attesting that the FTJ implementation period concluded as of February 1, 2018 (see 5/14/18 Higgins Decl.). (See Def. MTD Reply at 14.) As JFS Plaintiffs point out, however, with the exception of some limited information concerning circuit rides, Defendants have provided only minimal information about the specific actions they took to implement the SAO and FTJ suspensions before they were enjoined and the specific actions they took after the preliminary injunction to return the processing of FTJ and SAO refugee applications to the status quo that existed prior to the Agency Memo. (See JFS MTD Resp. at 4.) Similarly, although Defendants issued guidance to those government offices involved in USRAP to apprise them of the preliminary injunction, Defendants have not produced copies of that guidance. Moreover, the record reflects that Defendants' guidance was issued prior to January 9, 2018-that is, at a time when Defendants "d[id] not understand the preliminary injunction to require affirmative action to undo any of the steps that were taken to implement the [Agency Memo] prior to" the preliminary injunction. (See MFS at 4.) In any event, the court "cannot rely on [Defendants'] statement[s] alone" in determining mootness. See Halet v. Wend Inv. Co. , 672 F.2d 1305, 1308 (9th Cir. 1982) (quoting Concentrated Phosphate , 393 U.S. at 203, 89 S.Ct. 361 ) (holding that the defendants' statement that they would not engage in future violations, standing alone, " 'cannot suffice to satisfy the heavy burden of persuasion' resting on those claiming mootness"). In this instance, permitting Plaintiffs to engage in limited jurisdictional discovery is warranted.

For the foregoing reasons, the court concludes that jurisdictional discovery is appropriate.23 Accordingly, the court denies without prejudice Defendants' motion to dismiss to allow Plaintiffs the opportunity to conduct limited jurisdictional discovery on the issue of mootness. See, e.g. , *1202Nino v. United States , No. 12-cv-0469-WQH-BGS, 2015 WL 5032644, at *2 (S.D. Cal. Aug. 25, 2015) (denying a motion to dismiss for lack of subject matter jurisdiction after "grant[ing] the parties ninety days of jurisdictional discovery in order to address factual issues relevant to jurisdiction"); Guerrero v. United States , No. CV-12-00370-TUC-RCC, 2012 WL 12842348, at *4 (D. Ariz. Dec. 19, 2012) (denying defendant's motion to dismiss plaintiff's claim for lack of subject matter jurisdiction to allow plaintiff "limited ... discovery on [a] specific jurisdictional issue").

In their original motion for discovery, Plaintiffs sought "document requests ... limited to the following categories of documents:

• Documents relating to the implementation of the Agency Memo as it relates to follow-to-join refugees and refugees who are nationals of (and stateless persons who last habitually resided in) the SAO countries;

• Documents relating to actions taken by Defendants to comply with this Court's preliminary injunction dated December 23, 2017 and order denying Defendants' motion for stay pending appeal (ECF No. 106);

• Documents relating to actions taken by Defendants as a result of the end of the 90-day review for SAO countries and as a result of the implementation of the additional vetting procedures for follow-to-join refugees; and

• Policy documents and data relating to the processing of refugee applications and admission of refugees to the United States from October 23, 2017 to the date of production.

(1st MTD at 4-5.) The court specifically limits Plaintiffs to requesting document within these four categories. The court further cautions Plaintiffs to narrowly craft their requests so that the requests are "proportional to the needs of the case" in which discovery is limited to issues pertaining to mootness. See Fed. R. Civ. P. 26(b)(1) (listing factors for determining proportionality). Plaintiffs also raise the possibility of "additional discovery, such as depositions," if appropriate after the production of documents. (1st MFD at 6.) The court declines to foreclose this possibility, but again cautions Plaintiffs that any such request must be narrowly tailored and proportional in light of the limited purpose of the authorized discovery.

The court grants Plaintiffs 90 days in which to conduct their jurisdictional discovery on mootness. The parties must file any related discovery motions within 60 days of the filing date of this order-30 days prior to the jurisdictional discovery cutoff. Although the court is available to resolve intractable disputes, the court encourages the parties to work cooperatively to implement this order and to expeditiously complete the discovery authorized herein. If, however, discovery disputes arise that require court intervention, the court requires the parties to utilize the procedures set forth in Local Rule LCR7(i) before resorting to formal motions practice. See Local Rules W.D. Wash. LCR 7(i). After Plaintiffs have conducted limited jurisdictional discovery on mootness, Defendants may renew their motion to dismiss.

IV. CONCLUSION

For the reasons stated herein, the court DENIES without prejudice Defendants' motion to dismiss and dissolve the preliminary injunction (Dkt. # 145) and GRANTS Plaintiffs' motion to reinstate their motion for limited discovery (Dkt. # 131) and their underlying motion for discovery (Dkt. # 121).