State of California et al v. Trump et al

Filing 243

Consent MOTION to File Amicus Curiae Brief filed by Federal Courts Scholars. Motion Hearing set for 11/20/2019 10:00 AM before Judge Haywood S Gilliam Jr.. Responses due by 11/18/2019. Replies due by 11/25/2019. (Attachments: # 1 Amicus Brief, # 2 Proposed Order)(Wydra, Elizabeth) (Filed on 11/4/2019)

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ELIZABETH B. WYDRA (BAR NO. 218200)
BRIANNE J. GOROD
BRIAN R. FRAZELLE
ASHWIN P. PHATAK
CONSTITUTIONAL ACCOUNTABILITY CENTER
1200 18th Street, NW, Suite 501
Washington, D.C. 20036
Tel.: [phone]
[e-mail]

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Counsel for Amici Curiae Federal Courts Scholars

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IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
OAKLAND DIVISION

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STATE OF CALIFORNIA, et al.,
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Plaintiffs,
v.

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DONALD J. TRUMP, in his official capacity
as President of the United States, et al.,

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Case Nos. 4:19-cv-00872-HSG,
4:19-cv-00892-HSG
Motion Hearing Date: Nov. 20, 2019
Time: 10:00 AM

Defendants.

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SIERRA CLUB and SOUTHERN BORDER
COMMUNITIES COALITION,
Plaintiffs,

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v.
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DONALD J. TRUMP, in his official capacity
as President of the United States, et al.,

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CONSENT MOTION OF FEDERAL
COURTS SCHOLARS FOR LEAVE
TO FILE AMICI CURIAE BRIEF IN
OPPOSITION TO DEFENDANTS’
MOTIONS FOR PARTIAL
SUMMARY JUDGMENT
REGARDING BORDER BARRIER
PROJECTS UNDERTAKEN
PURSUANT TO 10 U.S.C. § 2808

Defendants.
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CONSENT MOTION OF FEDERAL COURTS SCHOLARS
FOR LEAVE TO FILE AMICI CURIAE BRIEF

Case Nos. 4:19-cv-00872-HSG,
4:19-cv-00892-HSG

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TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:

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PLEASE TAKE NOTICE THAT federal courts scholars hereby respectfully move the

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Court for leave to file a brief amici curiae in the above-captioned cases in opposition to
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Defendants’ motions for partial summary judgment regarding border-barrier projects undertaken

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pursuant to 10 U.S.C. § 2808. A copy of the proposed amici curiae brief is appended as an exhibit

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to this motion.

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I.

STANDARD FOR MOTION FOR LEAVE TO FILE BRIEF OF AMICI CURIAE

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District courts have discretion to permit third parties to participate in an action as amici
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curiae, and courts have “exercised great liberality” in allowing amicus briefs. Woodfin Suite

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Hotels, LLC v. City of Emeryville, No. 06-1254, 2007 WL 81911, at *3 (N.D. Cal. Jan. 9, 2007)

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(quoting In re Roxford Foods Litig., 790 F. Supp. 987, 997 (E.D. Cal. 1991)). District courts

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frequently accept amicus briefs from non-parties when the legal issues in a case “have potential

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ramifications beyond the parties directly involved” or if the amici have “unique information or

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perspective that can help the court.” NGV Gaming, Ltd. v. Upstream Point Molate, LLC, 355 F.

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Supp. 2d 1061, 1067 (N.D. Cal. 2005) (quotation marks omitted). There are no strict prerequisites

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that must be established to qualify for amicus status; the sole criterion is that the applicant make a

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showing that its “participation is useful or otherwise desirable to the court.” Woodfin Suite Hotels,

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2007 WL 81911, at *3 (quotation marks omitted).
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II.

STATEMENT OF IDENTITY AND INTEREST OF AMICI CURIAE

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Amici curiae are federal courts scholars with expertise in the jurisdiction of the federal

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courts. They are thus particularly well suited to provide the Court with a detailed response to the

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government’s argument that this Court cannot hear this case because Plaintiffs lack an equitable

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CONSENT MOTION OF FEDERAL COURTS SCHOLARS
FOR LEAVE TO FILE AMICI CURIAE BRIEF

Case Nos. 4:19-cv-00872-HSG,
4:19-cv-00892-HSG

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cause of action and are outside the “zone of interests” protected by § 2808 and the Consolidated

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Appropriations Act of 2019 (“CAA”), Pub. Law No. 116-6, 133 Stat. 13. Amici are:

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Erwin Chemerinsky, Dean, Jesse H. Choper Distinguished Professor of Law,
University of California, Berkeley Law

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Michael C. Dorf, Robert S. Stevens Professor of Law, Cornell Law School

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•

David A. Strauss, Gerald Ratner Distinguished Service Professor of Law, Faculty
Director of the Jenner & Block Supreme Court and Appellate Clinic, University of
Chicago Law School

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Stephen I. Vladeck, A. Dalton Cross Professor in Law, University of Texas School
of Law

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III.

PROPOSED AMICI CURIAE BRIEF’S RELEVANCE AND AID TO THE COURT

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The proposed, attached amici curiae brief plainly satisfies this Court’s standard for

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accepting such briefs because it offers a detailed response to two arguments the government makes

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in opposing Plaintiffs’ motions for partial summary judgment. Specifically, the government

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argues that Plaintiffs’ injuries “fall outside the zone of interests protected by the limitations in

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§ 2808 and the CAA,” and that Plaintiffs “identify no history or tradition of courts of equity

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inferring an analogous equitable cause of action directly under the Appropriations Clause in such

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circumstances.” Defs. Mot. 9, 12. As amici know, however, the zone-of-interests test applies only

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where plaintiffs rely on a statutory cause of action, not in cases like this one where plaintiffs seek

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equitable relief from ultra vires or unconstitutional government conduct. And as amici also know,

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equitable review is traditionally available when the executive is injuring a plaintiff by exceeding
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its constitutional or statutory authority, unless Congress has clearly foreclosed such relief. This

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case falls squarely within that legal tradition.

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IV.

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POSITION OF THE PARTIES
Counsel for all parties have consented to the filing of this brief.

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CONSENT MOTION OF FEDERAL COURTS SCHOLARS
FOR LEAVE TO FILE AMICI CURIAE BRIEF

Case Nos. 4:19-cv-00872-HSG,
4:19-cv-00892-HSG

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V.

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CONCLUSION
For the foregoing reasons, amici respectfully request this Court’s leave to file the attached

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brief.
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DATED: November 4, 2019

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Respectfully submitted,
/s/ Elizabeth B. Wydra
Elizabeth B. Wydra (Bar No. 218200)
Brianne J. Gorod
Brian R. Frazelle
Ashwin Phatak
CONSTITUTIONAL ACCOUNTABILITY CENTER
1200 18th Street, NW, Suite 501
Washington, D.C. 20036
[phone]
[e-mail]

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Counsel for Amici Curiae Federal Courts Scholars

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CONSENT MOTION OF FEDERAL COURTS SCHOLARS
FOR LEAVE TO FILE AMICI CURIAE BRIEF

Case Nos. 4:19-cv-00872-HSG,
4:19-cv-00892-HSG

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CERTIFICATE OF SERVICE
I hereby certify that on November 4, 2019, the foregoing document was filed with the Clerk

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of the Court, using the CM/ECF system, causing it to be served on all counsel of record.
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Dated: November 4, 2019

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/s/ Elizabeth B. Wydra
Elizabeth B. Wydra

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CONSENT MOTION OF FEDERAL COURTS SCHOLARS
FOR LEAVE TO FILE AMICI CURIAE BRIEF

Case Nos. 4:19-cv-00872-HSG,
4:19-cv-00892-HSG