Wake Forest Law Review

By Hailey Cleek & Raquel Macgregor

On November 6th, the Fourth Circuit granted a hearing en banc to review President Trump’s third Executive Order iteration on immigration. The new Presidential Proclamation (“Proclamation”), like its predecessors, restricts immigration from several Muslim-majority countries. The case was appealed to the Fourth Circuit after the District Court of Maryland granted in part a preliminary injunction blocking the new Proclamation.[1] Given the past Fourth Circuit and Supreme Court rulings blocking President Trump’s first two Executive Orders, the Fourth Circuit is likely to affirm the injunction in part.

The Fourth Circuit Struck Down the Previous Executive Order

In March of 2017, the Fourth Circuit largely upheld the Maryland District Court’s ruling blocking implementation of an Executive Order signed by President Donald Trump.[2] In the Executive Order, the Trump Administration had temporarily suspended new visas for travelers from six Muslim-majority countries for ninety days and the admission of new refugees into the United States for 120 days.[3] The Fourth Circuit held that the Executive Order violated the Establishment Clause because it was motivated by a discriminatory animus toward Muslims.[4] The Supreme Court then granted certiorari and partially stayed the injunction. Furthermore, because the Fourth Circuit Order had expired by “its own terms” on September 24, 2017, the Supreme Court vacated the judgment, as the appeal no longer presented a “live case or controversy.”[5]

The New Presidential Proclamation

On September 27, 2017, President Trump issued a new Presidential Proclamation. This Proclamation keeps restrictions on five of the six original countries (Iran, Libya, Somalia, Syria, and Yemen), lifts restrictions on visitors from the Sudan, and adds new restrictions on visitors and immigrants from Chad, North Korea, and Venezuela.[6] In both previous executive orders, all banned countries were majority Muslim. However, the Proclamation now includes two non-majority Muslim countries: North Korea and Venezuela.[7]

The new restrictions vary by country. Immigrants and nonimmigrants from Chad, Libya, and Yemen are barred from entry into the United States, on business, tourism, or through business-tourist visas.[8] Likewise, Iranian citizens are barred from entry with an exception for students, provided that they receive extra screening.[9] The Proclamation also bars immigrants and nonimmigrants from North Korea and Syria as well as immigration by citizens of Somalia.[10] Yet, the restrictions placed on Venezuela only impacts Venezuelan government officials and their families.[11]

Despite the changes to the immigration order, the Maryland District Court enjoined Section 2 of the Proclamation. In order to obtain a preliminary injunction, plaintiffs must show that: “(1) they are likely to succeed on the merits, (2) they are likely to suffer irreparable harm in the absence of preliminary relief, (3) the balance of equities tip in their favor, and (4) the injunction is in the public interest.”[12] The district court ultimately found that Plaintiffs were likely to succeed on their Establishment Clause claim and that the Proclamation likely violates §1152(a) of the Immigration and Nationality Act (“INA”) which prohibits discrimination based on nationality in issuing immigrant visas. Yet, the court found that the balance of equities only allowed enjoining the Proclamation on behalf of “individuals ‘who have a credible claim of a bona fide relationship with a person or entity in the United States.’”[13] Thus, the injunction bars the Proclamation’s impact on individuals with immediate family members in the United States. Moreover, the injunction does not apply to individuals traveling from Venezuela or North Korea as Plaintiffs have not demonstrated how individuals from those countries with a bona fide relationship with the United States will be harmed.

Arguments for Upholding the Presidential Proclamation

In the appellant’s opening brief, the government argues that the district court abused its discretion in granting a preliminary injunction because the President’s actions are not subject to judicial review and the elements required to grant a preliminary injunction are not satisfied. Regarding justiciability, the government contends that a denial of a visa is not subject to judicial review.[14] Yet, this argument blatantly ignores that the Supreme Court allowed judicial review of the past two executive orders.[15]

However, the government focuses its brief on its likelihood of success on the merits under both the plaintiff’s statutory and constitutional claims. First, the government argues that the Proclamation is consistent with the INA because the President has broad discretion to suspend entry of aliens whenever they “would be detrimental to the interests of the United States” under 8 U.S.C. §1182(f).[16] The government contends that 8 U.S.C. §1152(a)(1)(A), which prohibits discrimination of nationality in the issuance of immigrant visas, does not in fact conflict with the President’s broad discretion.[17] Instead, the government dubiously claims that the prohibition against nationality discrimination only applies after the President has full discretion to “limit the universe of individuals eligible to receive visas,”[18] which would effectively render §1152(a)(1)(A) meaningless.

The largest hurdle President Trump will face is convincing the court that the purpose of this Proclamation differs from his previous executive orders. In response to plaintiff’s establishment claim, the government claims that because the ban no longer targets only Muslim-majority countries (given the addition of North Korea and Venezuela), the purpose behind the Proclamation is to protect the United States from terrorism. The Proclamation asserts that it has singled out Chad, Iran, Libya, North Korea, Syria, Venezuela, Yemen, and Somalia after a “global review” by the Department of Homeland Security (“DHS”) and Department of State which identified these countries as having “inadequate practices or otherwise present heightened risks.”[19] Thus, by relying on the DHS review, the Proclamation has distinguished itself from previous travel limitation executive orders. Yet, this argument will likely face significant criticism given that the Proclamation included Somalia, a majority Muslim country, in its list of restricted countries even though the DHS report deemed the country to have adequate information-sharing practices.[20]

Arguments against the Presidential Proclamation

Plaintiffs assert that the Proclamation violates various provisions of the INA.[21] Primarily, plaintiffs argue that the Proclamation violates § 1152(a) of the INA,[22] which bars discrimination on the basis of nationality in the issuance of immigrant visas. Specifically, §1152(a) provides that, with certain exceptions: “No person shall receive any preference or priority or be discriminated against in the issuance of an immigrant visa because of his race, sex, nationality, place of birth, or place of residence[.]”[23] The Maryland District Court already considered the “interplay” between § 1182(f) and § 1152(a) and concluded that the President’s authority under § 1182(f) is limited by the § 1152(a) bar on discrimination based on nationality in the issuance of immigrant visas.[24] While the government could argue that the suspension of entry is not analogous to the issuance of visas, Judge Thacker of the 4th Circuit has already suggested that this argument will not be successful.[25] Here, unlike previous travel limitations used by both Presidents Reagan and Carter, the Proclamation has no end date and no requirement of renewal.[26] This creates a permanent ban on immigration from the Designated Countries, thus stopping the issuance of immigrant visas indefinitely. Thus, the bar on entry is equivalent to a ban on issuing immigrant visas based on nationality. Moreover, the Ninth Circuit found that the executive order violated the INA’s prohibition on nationality-based discrimination in the issuance of immigrant visas.[27] Consequently, plaintiffs are likely to succeed on their claim that the Proclamation violates § 1152(a) non-discrimination.

Plaintiffs argue that the Proclamation violates the Establishment Clause. Citing Larson v. Valente, the plaintiffs contend that the “primary effect” of the Proclamation “burden[s] . . . [a] selected religious denomination” through its immigration restrictions which overwhelmingly impact Muslims.[28] Moreover, under the Lemon v. Kurtzman[29] framework, to withstand an Establishment Clause challenge: (1) an act must have a secular purpose, (2) “its principal or primary effect must be one that neither advances nor inhibits religion,” and (3) it must not “foster ‘an excessive government entanglement with religion.’”[30] Challengers argue that this new Proclamation, similar to the last two executive orders, is primarily motivated by religious intolerance. Despite the “changed nomenclature” and selective inclusions of agency recommendations, the very first line of the order identifies the Proclamation as an “outgrowth” of the previous Executive Order attempts to limit travel.[31] Moreover, the Trump administration’s public statements about the new Proclamation indicate that it is the same in substance to the previous executive orders and that changes are “mostly minor technical differences.”[32] Plaintiffs in the Fourth Circuit highlight that “contours of the ban” still reflect a “religious ‘gerrymander.’”[33] Thus, Plaintiffs will argue that the Proclamation is still animated by the desire to ban Muslims, violating the Establishment Clause’s commend that the Government not target or disfavor people based on their religion.

Lastly, the government’s own delay in implementing the Proclamation spurs skepticism. The Trump administration has repeatedly emphasized the need for immediate action in crafting the travel bans.[34] The Proclamation details that the President “act[s] to protect the security and interests of the United States and its people.”[35] Yet, despite the government’s claims for urgency in halting travel, the Executive Order deferred implementation of the bulk of its restrictions for almost a month.[36] Thus, the government has undermined its own claims of urgency by delaying implementation while still not correcting deficiencies that made prior orders unlawful.

Conclusion

The Fourth Circuit is likely to side with Plaintiffs in granting an injunction in part given both the district court’s preliminary injunction as well as the Fourth Circuit and Supreme Court’s past partial injunctions. While the newest rendition of the ban attempts to distance itself from the religious animus that motivated the first two Executive Orders, the new Proclamation is largely still motivated by a non-secular purpose. Following the language of the Supreme Court, the Fourth Circuit’s decision will likely center on whether individuals from the Designated Countries have a “credible claim of a bona fide relationship with a person or entity in the United States.”[37] Thus, the Fourth Circuit will likely enjoin the Proclamation from barring entry to individuals that have immediate family members in the United States.

_______________

[1] Presidential Proclamation No. 9645, 82 Fed. Reg. 45161 (Sept. 27, 2017).

[2] Int’l Refugee Assistance Project v. Trump, 857 F.3d 554, 557 (4th Cir. 2017), vacated No. 16-1436, 2017 WL 4518553.

[3]  Exec. Order No. 13,780, 82 Fed. Reg. 13209 (Mar. 9, 2017).

[4] Int’l Refugee Assistance Project v. Trump, 857 F.3d 554, 557 (4th Cir. 2017).

[5] See Trump v. Int’l Refugee Assistance Project, No. 16-1436, 2017 WL 4518553, at *1 (Oct. 10, 2017).

[6] Pete Williams, Trump Restricts Visas From Eight Countries as Travel Order Expires, NBC News (Sept. 25, 2017, 8:35 AM), https://www.nbcnews.com/politics/immigration/trump-restricts-visas-eight-countries-travel-order-expires-n804366.

[7] See Proclamation, supra note 1.

[8] Id.

[9] Id.

[10] Id.

[11] Id.

[12] Int’l Refugee Assistance Project v. Trump, No. CV TDC-17-0361, 2017 WL 4674314, at *40 (D. Md. Oct. 17, 2017).

[13] Id. at *88; see Trump v. Int’l Refugee Assistance Project, 137 S. Ct. 2080, 2088 (2017).

[14] First Cross-Appeal Brief for Appellants at 19, Int’l Refugee Assistance Project v. Trump, No. 17-2231 (4th Cir. Nov. 1, 2017).

[15] See generally Trump v. Int’l Refugee Assistance Project, 137 S. Ct. 2080 (2017).

[16] First Cross-Appeal Brief for Appellants at 19, Int’l Refugee Assistance Project v. Trump, No. 17-2231 (4th Cir. Nov. 1, 2017).

[17] Id. at 34-35.

[18] Id. at 35.

[19] Id. at 1.

[20] Int’l Refugee Assistance Project v. Trump, No. CV TDC-17-0361, 2017 WL 4674314, at *78 (D. Md. Oct. 17, 2017).

[21] First Cross-Appeal Brief for Appellees at 23, Int’l Refugee Assistance Project v. Trump, No. 17-2231 (4th Cir. Nov. 1, 2017).

[22] 8 U.S.C. § 1152(a) (2012).

[23] 8 U.S.C. § 1152(a)(1)(A) (2012).

[24] Int’l Refugee Assistance Project v. Trump, No. CV TDC-17-0361, 2017 WL 4674314, at *20 (D. Md. Oct. 17, 2017).

[25] Int’l Refugee Assistance Project v. Trump, 857 F.3d 554, 637 (4th Cir. 2017), (Thacker, J., concurring) (“Here, the ultimate effect of what EO–2 actually does is require executive agencies to deny visas based on nationality.”).

[26] Int’l Refugee Assistance Project v. Trump, No. CV TDC-17-0361, 2017 WL 4674314, at *21 (D. Md. Oct. 17, 2017).

[27] Hawaii v. Trump, 859 F.3d 741, 774, 779 (9th Cir. 2017).

[28] First Cross-Appeal Brief for Appellees at 53, Int’l Refugee Assistance Project v. Trump, No. 17-2231 (4th Cir. Nov. 1, 2017) (quoting Larson v. Valente, 456 U.S. 228, 255 (1982).

[29] 403 U.S. 602 (1971).

[30] Id. at 612–13.

[31] See Appellee’s Opposition to Motion to Stay at 4, Hawaii v. Trump, (9th Cir. 2017) (No. 17-17168); see Proclamation, supra note 1.

[32] Int’l Refugee Assistance Project v. Trump, No. CV TDC-17-0361, 2017 WL 4674314, at *70 (D. Md. Oct. 17, 2017).

[33] First Cross-Appeal Brief for Appellees at 53, Int’l Refugee Assistance Project v. Trump, No. 17-2231 (4th Cir. Nov. 1, 2017) (quoting Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 533–35, 538 (1993)).

[34] See Donald Trump (@realDonaldTrump), Twitter (June 3, 2017, 7:17 P.M.), https://twitter.com/realDonaldTrump/status/871143765473406976 (“We need the courts to give us back our rights. We need the Travel Ban as an extra level of safety!”); Aric Jenkins, Sean Spicer Says President Trump Considers His Tweets ‘Official’ White House Statements, Time (June 6, 2017), http://time.com/4808270/sean-spicer-donald-trump-twitter-statements (Former Press Secretary Sean Spicer has previously stated that the President’s tweets should be considered official statements).

[35] Proclamation, supra note 1.

[36] See id. (The Proclamation was announced on September 27th, yet many of the restrictions were not set to take effect until October 18th.).

[37] Trump v. Int’l Refugee Assistance Project, 137 S. Ct. 2080, 2088 (2017).

By Ashley Escoe

On Monday March 30, 2015, the Fourth Circuit released a published opinion regarding the civil case of Georgia-Pacific Consumer Products v. Von Drehle Corporation. In its opinion, the court agreed with von Drehle Corporation (“von Drehle”) and vacated the district court’s injunction and award of attorneys fees and also reversed the increase in damages and the award of prejudgment interest–all of which had been in favor of Georgia-Pacific Consumer Products (“Georgia-Pacific”).

Georgia-Pacific’s Claim of Trademark Infringement

Georgia-Pacific brought this trademark infringement case against von Drehle for designing and selling ten-inch paper-towels specifically for use in Georgia-Pacific’s “enMotion” motion sensor towel dispensers. Georgia-Pacific owns the trademark “enMotion” and alleged that von Drehle had violated the Lanham Act, 15 U.S.C. § 1114(1)(a), for contributory trademark infringement because the von Drehle towels were “likely to cause confusion and . . . deceive End-User Customers.”

Georgia-Pacific brought three separate actions against von Drehle for selling these ten-inch paper-towels: in the Western District of Arkansas, the Northern District of Ohio, and the Eastern District of North Carolina. The first to rule on this issue was Arkansas, which concluded that von Drehle towels made for use in an enMotion dispenser were not likely to cause confusion, and therefore not an instance of trademark infringement. The Eighth Circuit affirmed. The district court in Ohio then ruled against Georgia-Pacific as well, holding that Georgia-Pacific was precluded from litigating the same issue; the Sixth Circuit affirmed.

The Eastern District of North Carolina initially ruled against Georgia-Pacific based on von Drehle’s affirmative defense of claim and issue preclusion. However, on appeal the Fourth Circuit reversed this decision, concluding that von Derhle waived those defenses by failing to raise them in a timely manner. A jury awarded Georgia-Pacific the $791,431 in profits von Drehle made from the paper-towel sales. The district court trebled the jury verdict and awarded attorneys’ fees as well as prejudgment interest–totaling $4,887,283.51. The district court also granted Georgia-Pacific a permanent, nationwide injunction prohibiting von Drehle from selling its paper-towels.

On appeal, von Drehle challenged the geographical scope of the injunction and the monetary awards.

The Scope of the District Court’s Injunction Was Too Broad

The Fourth Circuit determined that the district court abused its discretion by granting a nationwide injunction. Generally, a district court has the authority to issue a nationwide injunction prohibiting trademark infringement. 15 U.S.C § 1116(a). In this instance, however, for the sake of inter-circuit comity, the court determined that the injunction should be limited to the states in the Fourth Circuit. The Sixth and Eighth Circuits have already ruled that von Drehle was not prohibited from selling its ten-inch paper towels, and the other Circuit courts that have not yet ruled on the issue should be free to resolve this matter for their jurisdictions. The Fourth Circuit vacated the district court’s injunction and remanded the issue.

Trebling the Damages Award Was Inappropriate

The Fourth Circuit concluded that the district court’s reliance on Larsen v. Terk Techs. Corp. was an erroneous conflation of 15 U.S.C. § 1117(a) and § 1117(b). In Larsen, the issue was the use of a counterfeit mark and thus was governed by § 1117(b), which mandates treble damages for willful and intentional infringement. The instant case does not concern counterfeit marks, but rather is a general trademark infringement case governed by § 1117(a). Section 1117(a) does allow a court to adjust a jury award, but only if the award was inadequate or excessive and never solely to punish the defendant. Georgia-Pacific only requested an award of von Drehle’s profits, and that is precisely what the jury awarded; therefore, there was no basis for the district court to find the award inadequate. The Fourth Circuit reversed the increase in the damages award and ordered the jury award be reinstated.

A New Standard for “Exceptional” in Regard to Attorneys Fees

The district court granted attorneys’ fees to Georgia-Pacific, finding the case to be “exceptional” because von Drehle purposefully and willfully sold its towels to be used in Georgia-Pacific’s dispensers. However the Fourth Circuit noted that the district court failed to distinguish between willfully performing an act one believes to be lawful and willfully breaking the law. Further, after the district court made its ruling, the Supreme Court issued its decision in Octane Fitness, LLC v. ICON Health & Fitness, Inc. Though this decision did not define “exceptional” in the attorneys’ fees provision of § 1117(a), it defined an “exceptional case” in an identical provision of the Patent Act. The Supreme Court held that a district court may determine a case is exceptional by looking at the totality of the circumstances. The Fourth Circuit vacated the award of attorneys’ fees and remanded the issue for the district court to determine in light of the Octane Fitness standard.

Congress Did Not Intend for Prejudgment Interest in This Circumstance

Section 1117 is particular about what types of monetary relief are available for trademark infringement in specified circumstances. The Fourth Circuit concluded that if Congress did not include a certain type of monetary relief in a specified circumstance, then it was Congress’ intention that it not be available. Section 1117(a) does not provide for prejudgment interest in cases concerning recovery of a defendant’s profits. The court noted that it may be possible to recover prejudgment interest under § 1117(a) as an element of damages, but Georgia-Pacific only claimed von Drehle’s profits, not damages. Therefore the Fourth Circuit reversed the district court’s award of prejudgment interest.

The Fourth Circuit Vacated, Reversed in Part, and Remanded in Part the District Court’s Decision

The Fourth Circuit vacated the district court’s injunction and award of attorneys fees’ and remanded on these issues. It also reversed the increase in the damages award and the award of prejudgment interest.

Judge Shedd Disagrees with Limiting the Scope of the Injunction

Judge Shedd wrote separately, concurring in part and dissenting in part. Judge Shedd only disagreed with the decision to restrict the injunction to the Fourth Circuit. On appeal, injunctions are reviewed for abuse of discretion. Judge Shedd points out that the district court “applied the correct injunction standard, did not rely on a clearly erroneous finding of material fact, and did not misapprehend the law with respect to the underlying issues of this case.” The district court did not abuse its discretion, and the Fourth Circuit should affirm the injunction. Instead the majority of the panel relied on the doctrine of comity in determining that the nationwide scope of the injunction was too broad. The doctrine of comity is not a rule of law, but just a courtesy; and, according to Judge Shedd, relying on comity was not appropriate in this situation.