United States of America v. State of California et al

Filing 67

JOINT STATUS REPORT by Xavier Becerra, Edmund Gerald Brown, Jr, State of California and United States of America (Hakl, Anthony) Modified on 4/27/2018 (Donati, J).

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XAVIER BECERRA
Attorney General of California
THOMAS PATTERSON
Senior Assistant Attorney General
MICHAEL NEWMAN
SATOSHI YANAI
Supervising Deputy Attorneys General
CHRISTINE CHUANG
ANTHONY HAKL
CHEROKEE DM MELTON
LEE I. SHERMAN
Deputy Attorneys General
State Bar No. 272271
300 S. Spring Street
Los Angeles, CA 90013
Telephone: [phone]
Fax: [phone]
E-mail: [e-mail]
Attorneys for Defendants

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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THE UNITED STATES OF AMERICA,

Case No. 2:18-cv-00490-JAM-KJN

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Plaintiff,

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JOINT STATUS REPORT

v.
THE STATE OF CALIFORNIA; EDMUND
GERALD BROWN JR., Governor of
California, in his official capacity; and
XAVIER BECERRA, Attorney General of
California, in his official capacity,

Judge: Honorable John A. Mendez
Action Filed: March 6, 2018

Defendants.

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Joint Status Report (18-cv-00490-JAM-KJN)

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Plaintiff the United States of America (“United States”) and Defendants State of California,

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Edmund G. Brown Jr., Governor of California in his official capacity, and Xavier Becerra,

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Attorney General of California, in his official capacity (collectively, “the State of California”),

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respectfully submit this joint status report pursuant to the Court’s April 24, 2018 Order.

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The parties have further discussed the remainder of the briefing schedule and the hearing

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date for the State of California’s motion to dismiss in light of the County of Orange’s motion to

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intervene, but they have been unable to reach an agreement. Therefore, below the parties set forth

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their respective positions on the briefing and hearing of the motion to dismiss, and request that the

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Court issue an order setting an appropriate schedule.

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DEFENDANTS’ POSITION

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With respect to the hearing date on the motion to dismiss, defendants’ position is that the

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hearing should be on the same day as the hearing on the motion for preliminary injunction, which

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is currently June 20, 2018, at 10:00 a.m. The issues of the two motions substantially overlap and

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therefore they should be addressed at the same time, which will conserve the resources of the

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parties and the Court and also ensure a timely resolution of the two motions. Noticing the motion

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for an earlier date (i.e., noticing the motion to be heard twenty-eight (28) days after service and

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filing of the motion on May 4, 2018), or for a later date as the United States proposes, would not

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advance the same interests.

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With respect to the remainder of the motion to dismiss briefing schedule, and considering

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that May 4, 2018, is the due date for defendants’ motion to dismiss and their opposition to the

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preliminary injunction motion, defendants propose the following remaining dates:

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June 8, 2018 – Last day for plaintiff’s opposition to the motion to dismiss; this is the same
date that plaintiff’s reply on the preliminary injunction motion is currently due; and

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June 15, 2018 – Last day for defendants’ reply on the motion to dismiss.

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These proposed dates accommodate the deadlines already set by the Court, and it provides

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the United States with more than 30 days to oppose the motion to dismiss.

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///

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Joint Status Report (18-cv-00490-JAM-KJN)

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In light of the number of complex issues in this case, defendants further request that the

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Court direct that the memoranda of law in support of and in opposition to the motion to dismiss

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be limited to twenty-five (25) pages, and the reply memorandum be limited to fifteen (15) pages.

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Finally, defendants see no reason why the above proposed dates should be impacted by the

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pending motion to intervene, which is currently set to be heard on June 5, 2018, and which the

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Court has yet to resolve. Defendants note that they intend to oppose that motion.

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Accordingly, defendants respectfully request that the Court issue an order incorporating the
above proposed dates and page limits.

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PLAINTIFF’S POSITION
First, with respect to scheduling a hearing date on Defendants’ potential motion to dismiss,

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Plaintiff respectfully submits that Defendant’s motion to dismiss, currently due May 4, 2018,

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should be held in abeyance pending resolution of any motions to intervene pending before the

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Court. At present, one such motion, filed by Orange County (ECF 59), is pending. Orange

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County’s putative complaint in intervention alleges that California’s Senate Bill 54 (“SB 54”),

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specifically Cal. Gov. Code §§ 7284.6(a)(1)(C) & (D) and 7284.6(a)(4), and Assembly Bill 103

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(“AB 103), specifically Cal. Gov. Code 12532, are invalid under the Supremacy Clause of the

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United States Constitution, and seeks a declaration invalidating those provisions. See ECF 59-2 at

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16-17. Although the complaint in intervention challenges these provisions as applied to Orange

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County, and so potentially raise issues not explicitly raised by the United States, these claims

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overlap substantially with the same claims raised the United States as to SB 54 and AB 103. See

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ECF 1 at 16-18.

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Because these claims overlap with two of the three claims raised in the United States’

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complaint, the United States submits that it would be an inefficient use of the Court’s and the

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parties’ time to litigate piecemeal these issues through several motions to dismiss in the event

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Orange County’s motion to intervene—or any other—is granted. Accordingly, the United States

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respectfully requests that the Court hold all outstanding deadlines, other than pending motion for

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preliminary injunction, in abeyance pending resolution of the pending motion(s) to intervene.

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Once it is clear that leave to intervene will or will not be granted, it would be appropriate to lift
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Joint Status Report (18-cv-00490-JAM-KJN)

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the abeyance, at which time the parties may meet and confer and propose a briefing schedule for

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all outstanding issues.

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Second, even assuming no motions to intervene were pending in the first place, it would be

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a more efficient use of the Court’s and the parties’ time and resources to hold in abeyance any

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filing deadlines with respect to a motion to dismiss the United States’ complaint by Defendants

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until after resolution of the pending motion for preliminary injunction. Defendants themselves

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have indicated that they believe such a motion to dismiss would raise issues duplicative of the

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pending motion for preliminary injunction, such that any briefing on the issue while the motion

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for preliminary injunction is still pending would necessitate multiple overlapping briefs on similar

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issues. The United States respectfully submit that the simultaneous drafting and consideration of

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overlapping briefs would not most efficiently serve the Court or the parties. In addition,

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Defendants’ proposed schedule would require the United States to file two substantive briefs on

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the same day, necessitate the filing of substantive briefs by Defendants mere days prior to the

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June 20, 2018 hearing currently scheduled. On the other hand, given the overlap, this Court’s

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ruling on a preliminary injunction should significantly inform the parties and the Court in

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addressing a motion to dismiss. Finally, it is common for a court to consider a preliminary

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injunction prior to briefing and argument on a motion to dismiss, and that has not happened here

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because plaintiffs requested early discovery prior to briefing on the preliminary injunction

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motion, and that early discovery resulted in the answer deadline arriving in the midst of briefing

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on the preliminary injunction motion. Given that delay in hearing the government’s request for

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injunctive relief, it would also be fair and reduce the burden on the Court and the parties to hold

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off on further consideration on the motion to dismiss until after the Court has considered the

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United States’ motion for a preliminary injunction.

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Accordingly, the United States respectfully requests the that Court hold the answer deadline

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and all briefing on any motions to dismiss its complaint or any putative intervenors complaint—

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including the due date to file a motion to dismiss—until after the motion(s) to intervene are

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resolved and/or until after the motion for preliminary injunction.

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Joint Status Report (18-cv-00490-JAM-KJN)

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Third, in the alternative, assuming the Court believes a schedule should be entered now for

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resolving a motion to dismiss, the United States concurs with the schedule proposed by

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Defendants—i.e. that Defendants’ motion be due May 4, Plaintiff’s response be due June 8, and

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Defendants’ reply be due July 15.

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Finally, if the Court orders the parties to brief Defendants’ motion to dismiss at this time,

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the United States agrees an enlargement of pages would be appropriate, but believes that

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Defendants receiving 20 pages, the United States 20 pages for their opposition, and Defendants

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10 pages for any reply would be sufficient. However, the United States does not believe this issue

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should be resolved until the motions to intervene are resolved, because if any motion to intervene

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is granted, any pending motion to dismiss may require additional pages to address issues raised

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by complaints in intervention. Therefore, the United States respectfully requests that the Court

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resolve the issue of any enlargement of pages only after it has resolved whether any motions to

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intervene will be granted.

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Dated: April 27, 2018

Respectfully Submitted,

CHAD A. READLER
Acting Assistant Attorney General
MCGREGOR SCOTT
United States Attorney
AUGUST FLENTJE
Special Counsel
EREZ REUVENI
Assistant Director
DAVID SHELLEDY
Civil Chief, Assistant United States Attorney
LAUREN C. BINGHAM
JOSEPH A. DARROW
JOSHUA S. PRESS

XAVIER BECERRA
Attorney General of California
THOMAS PATTERSON
Senior Assistant Attorney General
MICHAEL NEWMAN
SATOSHI YANAI
Supervising Deputy Attorneys General
CHRISTINE CHUANG
ANTHONY HAKL
CHEROKEE DM MELTON

/s/ Erez Reuveni

_____________________
Anthony Hakl
Deputy Attorney General
Attorneys for the State of California

/s/ Anthony Hakl

_____________________
Erez Reuveni
Assistant Director
Attorneys for the United States
of America

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Joint Status Report (18-cv-00490-JAM-KJN)

CERTIFICATE OF SERVICE
Case Name:

The United States of America v.
The State of California, et al

No.

2:18-cv-00490-JAM-KJN

I hereby certify that on April 27, 2018, I electronically filed the following documents with the
Clerk of the Court by using the CM/ECF system:
JOINT STATUS REPORT
I certify that all participants in the case are registered CM/ECF users and that service will be
accomplished by the CM/ECF system.
I declare under penalty of perjury under the laws of the State of California the foregoing is true
and correct and that this declaration was executed on April 27, 2018, at Sacramento, California.

Tursun Bier
Declarant
LA2018500720
13067304.docx

/s/ Tursun Bier
Signature