State of California et al v. Trump et al

Filing 202

STIPULATION WITH PROPOSED ORDER Dismissing without Prejudice TFF Claims filed by Commonwealth of Massachusetts, Commonwealth of Virginia, Dana Nessel, State of California, State of Colorado, State of Connecticut, State of Delaware, State of Hawaii, State of Illinois, State of Maine, State of Maryland, State of Minnesota, State of Nevada, State of New Jersey, State of New Mexico, State of New York, State of Oregon, State of Rhode Island, State of Vermont, State of Wisconsin and Defendants. (Attachments: # 1 Proposed Order Dismissing Without Prejudice TFF Claims)(Sherman, Lee) (Filed on 8/2/2019) Modified on 8/5/2019 (jjbS, COURT STAFF). Modified on 8/5/2019 (jjbS, COURT STAFF).

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XAVIER BECERRA
Attorney General of California
ROBERT W. BYRNE
SALLY MAGNANI
MICHAEL L. NEWMAN
Senior Assistant Attorneys General
MICHAEL P. CAYABAN
CHRISTINE CHUANG
EDWARD H. OCHOA
Supervising Deputy Attorneys General
BRIAN J. BILFORD
NOAH M. GOLDEN-KRASNER
SPARSH S. KHANDESHI
HEATHER C. LESLIE
JANELLE M. SMITH
JAMES F. ZAHRADKA II
LEE SHERMAN (SBN 272271)
Deputy Attorneys General
300 S. Spring St., Suite 1702
Los Angeles, CA 90013
Telephone: [phone]
Fax: [phone]
E-mail: [e-mail]
Attorneys for Plaintiff State of California

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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OAKLAND DIVISION

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STATE OF CALIFORNIA et al.;

Case No. 4:19-cv-00872-HSG

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Plaintiffs, STIPULATED REQUEST FOR ORDER
DISMISSING WITHOUT PREJUDICE
v.
PLAINTIFFS’ CLAIMS RELATING TO
THE TREASURY FORFEITURE FUND
DONALD J. TRUMP, in his official capacity
as President of the United States of America,
et al.;
Defendants.

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Pursuant to Local Rule 7-12, Plaintiffs and Defendants in the above-captioned case
stipulate and agree as follows:
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Plaintiffs’ First Amended Complaint for Declaratory and Injunctive Relief, ECF

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No. 47, identifies three different sources of federal funds from which Defendants directed money

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be diverted to fund the construction of border barriers on the United States-Mexico border.

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2.

Plaintiffs’ First Amended Complaint alleges that Defendants’ diversion of $601

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million from the Treasury Forfeiture Fund (TFF), one of the three funding sources at issue in this

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case, would harm the public safety of Plaintiff States by putting at risk the equitable share claims

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that would otherwise have been provided to state and local law enforcement agencies in Plaintiff

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States. Plaintiffs’ First Amended Complaint alleges that this diversion of funds from the TFF

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under 31 U.S.C. § 9705 is: (a) in violation of constitutional separation of powers principles,

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including the Presentment Clause and the Appropriations Clause; (b) ultra vires; and (c) in

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violation of the Administrative Procedure Act.

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3.

Defendants have represented in this litigation, including during the course of

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discovery, that “[S]tate and local law enforcement agencies will not lose any money they

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otherwise might receive as a result of Treasury’s decision to fund Strategic Support projects.

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Future equitable sharing payments are not impacted by the $601M that was declared as strategic

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support for FY 2019.” E.g., Decl. of John M. Farley ¶ 23 (Apr. 25, 2019) ECF No. 89-9.

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4.

Defendants have also represented in this litigation, including during the course of

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discovery, that funds from the TFF will not be used to fund or support the construction of border

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barriers in any areas other than within the Rio Grande Valley and/or Laredo Sectors. E.g., Decl.

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of Loren Flossman ¶ 5 (July 11, 2019) ECF No. 196-1.

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5.

Based upon these sworn representations, the parties agree that Plaintiffs’ claims as

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set forth in the First Amended Complaint regarding the diversion of funds from the TFF shall be

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dismissed without prejudice.

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6.

Approving this stipulation would not impact any other deadlines or claims at issue

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that have yet to be adjudicated to final judgment in this case, including specifically Plaintiffs’

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claims as they pertain to the diversion of funds via 10 U.S.C. § 2808 and the alleged violation of
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Stipulated Request for Order Dismissing Without Prejudice Pls.’ Claims Relating to Treasury Forfeiture Fund

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the National Environmental Policy Act.
THEREFORE, IT IS HEREBY STIPULATED AND AGREED, by and between the

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parties, subject to the Court’s approval, that Plaintiffs’ claims regarding the diversion of funds

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from the TFF under 31 U.S.C. § 9705 shall be dismissed without prejudice.

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A proposed order is attached.

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Dated: August 2, 2019
Respectfully submitted,

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XAVIER BECERRA
Attorney General of California
ROBERT W. BYRNE
SALLY MAGNANI
MICHAEL L. NEWMAN
Senior Assistant Attorneys General
MICHAEL P. CAYABAN
CHRISTINE CHUANG
EDWARD H. OCHOA
Supervising Deputy Attorneys General
BRIAN J. BILFORD
NOAH M. GOLDEN-KRASNER
SPARSH S. KHANDESHI
HEATHER C. LESLIE
JANELLE M. SMITH
JAMES F. ZAHRADKA II

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/s/ Lee I. Sherman

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LEE I. SHERMAN
Deputy Attorneys General
Attorneys for Plaintiff State of California

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PHILIP J. WEISER
Attorney General of Colorado
ERIC R. OLSON (appearance pro hac vice)
Solicitor General
Attorneys for Plaintiff State of Colorado

WILLIAM TONG
Attorney General of Connecticut
MARGARET Q. CHAPPLE (pro hac vice)
Deputy Attorney General
Attorneys for Plaintiff State of Connecticut

KATHLEEN JENNINGS
Attorney General of Delaware
AARON R. GOLDSTEIN
Chief Deputy Attorney General
ILONA KIRSHON
Deputy State Solicitor
DAVID J. LYONS (appearance pro hac vice)
Deputy Attorney General
Attorneys for Plaintiff State of Delaware

CLARE E. CONNORS
Attorney General of Hawaii
CLYDE J. WADSWORTH
Solicitor General
Attorneys for Plaintiff State of Hawaii

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2
Stipulated Request for Order Dismissing Without Prejudice Pls.’ Claims Relating to Treasury Forfeiture Fund

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KWAME RAOUL
Attorney General of Illinois
CALEB RUSH
Assistant Attorney General
Attorneys for Plaintiff State of Illinois

AARON M. FREY
Attorney General of Maine
SUSAN P. HERMAN (appearance pro hac
vice)
Attorneys for Plaintiff State of Maine

BRIAN E. FROSH
Attorney General of Maryland
JEFFREY P. DUNLAP (appearance pro hac vice)
Assistant Attorney General
Attorneys for Plaintiff State of Maryland

MAURA HEALEY
Attorney General of Massachusetts
ABIGAIL B. TAYLOR (appearance pro hac
vice)
Chief, Civil Rights Division
DAVID C. KRAVITZ
Deputy State Solicitor
TARA D. DUNN
Assistant Attorney General, Civil Rights
Division
Attorneys for Plaintiff Commonwealth of
Massachusetts

DANA NESSEL
Attorney General of Michigan
B. ERIC RESTUCCIA (appearance pro hac vice)
Assistant Attorney General
FADWA A. HAMMOUD
Solicitor General
Attorneys for Plaintiff People of Michigan

KEITH ELLISON
Attorney General of Minnesota
JOHN KELLER
Chief Deputy Attorney General
JAMES W. CANADAY
Deputy Attorney General
JACOB CAMPION (appearance pro hac vice)
Assistant Attorney General
Attorneys for Plaintiff State of Minnesota

AARON D. FORD
Attorney General of Nevada
HEIDI PARRY STERN (appearance pro hac vice)
Solicitor General
Attorneys for Plaintiff State of Nevada

GURBIR S. GREWAL
Attorney General of New Jersey
JEREMY FEIGENBAUM (appearance pro
hac vice)
Assistant Attorney General
Attorneys for Plaintiff State of New Jersey

HECTOR BALDERAS
Attorney General of New Mexico
TANIA MAESTAS (appearance pro hac vice)
Chief Deputy Attorney General
NICHOLAS M. SYDOW
Civil Appellate Chief
JENNIE LUSK
Assistant Attorney General, Director
MATTHEW L. GARCIA
Governor’s General Counsel
Attorneys for Plaintiff State of New Mexico

LETITIA JAMES
Attorney General of New York
MATTHEW COLANGELO (appearance pro
hac vice)
Chief Counsel for Federal Initiatives
STEVEN C. WU
Deputy Solicitor General
ERIC R. HAREN
Special Counsel
GAVIN MCCABE
Special Assistant Attorney General
AMANDA MEYER
Assistant Attorney General
Attorneys for Plaintiff State of New York

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Stipulated Request for Order Dismissing Without Prejudice Pls.’ Claims Relating to Treasury Forfeiture Fund

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ELLEN ROSENBLUM
Attorney General of Oregon
HENRY KANTOR (appearance pro hac vice)
Special Counsel to Attorney General
J. NICOLE DEFEVER
Senior Assistant Attorney General
Attorneys for Plaintiff State of Oregon

PETER F. NERONHA
Attorney General of Rhode Island
JUSTIN J. SULLIVAN (appearance pro hac
vice)
Special Assistant Attorney General
Attorneys for Plaintiff State of Rhode Island

THOMAS J. DONOVAN
Attorney General of Vermont
BENJAMIN D. BATTLES (appearance pro hac
vice)
Solicitor General
Attorneys for Plaintiff State of Vermont

MARK R. HERRING
Attorney General of Virginia
TOBY J. HEYTENS
Solicitor General
MATTHEW R. MCGUIRE
Principal Deputy Solicitor General
MICHELLE S. KALLEN
Deputy Solicitor General
BRITTANY M. JONES (appearance pro hac
vice)
Attorney
Attorneys for Plaintiff Commonwealth of
Virginia

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JOSHUA L. KAUL
Attorney General of Wisconsin
GABE JOHNSON-KARP (appearance pro hac
vice)
Assistant Attorney General
Attorneys for Plaintiff State of Wisconsin

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JAMES M. BURNHAM
Deputy Assistant Attorney General

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JOHN R. GRIFFITHS
Director, Federal Programs Branch

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ANTHONY J. COPPOLINO
Deputy Director, Federal Programs Branch

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/s/ Andrew I. Warden
ANDREW I. WARDEN (IN #23840-49)
Senior Trial Counsel
U.S. Department of Justice
Civil Division, Federal Programs Branch
1100 L Street, NW
Washington, D.C. 20530
Tel.: [phone]
Fax: [phone]
Attorneys for Defendants

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Stipulated Request for Order Dismissing Without Prejudice Pls.’ Claims Relating to Treasury Forfeiture Fund