State of California et al v. Trump et al

Filing 60

MOTION to Shorten Time to Hear Plaintiff States' Motion for Preliminary Injunction filed by State of California. (Attachments: # 1 Proposed Order, # 2 Declaration of Lee I. Sherman, # 3 Certificate/Proof of Service)(Sherman, Lee) (Filed on 4/8/2019)

Case 4:19-cv-00872-HSG Document 60-2 Filed 04/08/19 Page 1 of 5

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XAVIER BECERRA
Attorney General of California
ROBERT W. BYRNE
SALLY MAGNANI
MICHAEL L. NEWMAN
Senior Assistant Attorneys General
MICHAELP. CAYABAN
CHRISTINE CHUANG
EDWARD H. OCHOA
Supervising Deputy Attorneys General
HEATHER C. LESLIE
JANELLE M. SMITH
JAMES F. ZAHRADKA II
LEE I. 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 Plaintifj'State ofCalifornia

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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; STATE OF
COLORADO; STATE OF
CONNECTICUT; STATE OF
DELAWARE; STATE OF HAWAII;
STATE OF ILLINOIS; STATE OF
MAINE; STATE OF MARYLAND;
COMMONWEALTH OF
MASSACHUSETTS; ATTORNEY
GENERAL DANA NESSEL ON BEHALF
OF THE PEOPLE OF MICHIGAN;
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; COMMONWEALTH OF
VIRGINIA; and STATE OF WISCONSIN;

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

DECLARATION OF LEE I. SHERMAN
IN SUPPORT OF PLAINTIFF STATES'
MOTION TO SHORTEN TIME TO
HEAR PLAINTIFFS' MOTION FOR
PRELIMINARY INJUNCTION

Plaintiffs,
v.

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Deel. of Lee I. Sherman in Supp. of Mot. to Shorten Time (4:19-cv-00872-HSG)

Case 4:19-cv-00872-HSG Document 60-2 Filed 04/08/19 Page 2 of 5

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DONALD J. TRUMP, in his official capacity
as President of the United States of America;

UNITED STATES OF AMERICA; U.S.
DEPARTMENT OF DEFENSE; PATRICK
M. SHANAHAN, in his official capacity as
Acting Secretary of Defense; MARK T.
ESPER, in his official capacity as Secretary of
the Army; RICHARD V. SPENCER, in his
official capacity as Secretary of the Navy;

HEATHER WILSON, in her official capacity
as Secretary of the Air Force; U.S.
DEPARTMENT OF THE TREASURY;
STEVEN T. MNUCHIN, in his official
capacity as Secretary of the Treasury; U.S.
DEPARTMENT OF THE INTERIOR;
DAVID BERNHARDT, in his official capacity
as Acting Secretary of the Interior; U.S.
DEPARTMENT OF HOMELAND
SECURITY; KIRSTJEN M. NIELSEN, in
her official capacity as Secretary of Homeland
Security;

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Defendants.
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Deel. of Lee I. Sherman in Supp. of Mot. to Shorten T ime (4: l 9-cv-00872-HSG)

Case 4:19-cv-00872-HSG Document 60-2 Filed 04/08/19 Page 3 of 5

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I, Lee I. Sherman, declare as follows:

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I have personal knowledge of the facts set f01ih in this declaration. If called as a

witness, I could and would testify competently to the matters set forth below.
2.

I am a Deputy Attorney General with the California Department of Justic<:;, and am

counsel of record for Plaintiff the State of California in this matter.

3.

On April 4, 2019, I filed an Administrative Motion to Exceed Applicable Page

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Limits for Plaintiffs ' Motion for Preliminary Injunction. Attached to that Administrative Motion

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is a Motion for Preliminary Injunction (PI Motion) filed by Plaintiff States seeking to prevent

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Defendants from diverting federal funds and resources toward the construction of a border wall

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for the pendency of this litigation. Consistent with Local Rule 7-2, Plaintiff States noticed the PI

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Motion for a hearing to be held on May 9, 2019, which is 35 days after April 4.

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4.

In the PI Motion, Plaintiff States assert a likelihood of success on numerous

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statutory and constitutional claims to contest Defendants' unlawful redirection of funds and

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resources appropriated for other purposes towards construction of a border wall. Plaintiff States

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contend that Defendants have violated separation of powers principles, including those ingrained

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in the Presentment and Appropriations Clauses, acted ultra vires and in excess of statutory

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authority in violation of the Ad_ inistrative Procedure Act (APA), and acted in an arbitrary and
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capricious manner in futiher violation of the APA. Separately, Plaintiff States assert a likelihood

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of success on their claim that Defendants' plan to proceed with border wall construction without

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required environmental review violates the National Environmental Policy Act.

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5.

In their PI Motion, Plaintiff States also contend that they will experience

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irreparable harm in the absence of preliminary relief by this Court for the pendency of this

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litigation. Plaintiff States attach to their PI Motion two appendices compiling declarations

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describing the harm that is caused by Defendants' actions. The first appendix, entitled Appendix

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of Declarations re: TFF Harms in Support of Plaintiffs' Motion for Preliminary Injunction,

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contains twenty-five declarations detailing the harm that would be caused to law enforcement

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agencies in Plaintiff States if funds from the Treasury Forfeiture Fund (TFF) are diverted toward

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construction of a border wall. The second appendix, entitled Appendix of Declarations re:
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Deel. of Lee I. Sherman in Supp. of Mot. to Shorten Time (4: I 9-cv-00872-HSG)

Case 4:19-cv-00872-HSG Document 60-2 Filed 04/08/19 Page 4 of 5

Environmental Hanns in Support of Plaintiffs' Motion for Preliminary Injunction, contains seven
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declarations detailing the environmental harm that would be caused if Department of Defense

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(DOD) funds are dive1ted toward construction of a border barrier on the border between New

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Mexico and Mexico. On information and belief, including publicly available information that is

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di scussed in Plaintiff States' PI Motion and accompanying Request for Judicial Notice,

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Defendants are soon poised to begin obligating funds from TFF and DOD for border wall

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construction, and proceeding with construction on the border between New Mexico and Mexico.

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6.

In their PI Motion, Plaintiff States assert that the balance of equities tip in their

favor and that an injunction is in the public interest.

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Defendants have yet to appear in this case, and have yet to state their position on

the issues contained in Plaintiffs' PI Motion.
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On April 8, 2019, the Court granted Plaintiff States' Administrative Motion to

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Exceed Applicable Page Limits for Plaintiffs' Motion for Preliminary Injunction, and ordered

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Plaintiff States to "immediately" file their PI Motion. Accordingly, I caused Plaintiff States' PI

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Motion to be filed that same day.

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9.

On April 8, 2019, I reviewed Judge Gilliam's calendar and the next available law

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and motion date on the Court's calendar is August 1, 2019. For the reasons discussed in this

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declaration, in the Motion to Shorten Time, and the PI Motion and accompanying documents,

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Plaintiff States will experience substantial hmm and prejudice due to the imminent actions of

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Defendants in diverting funds from the TFF and proceeding with construction in New Mexico.

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Thus, due to the imminent harm Plaintiff States face as a result of Defendants' actions, Plaintiff

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States will be substantially prejudiced if a hearing is scheduled for later than May 9, 2019.

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Plaintiff States have therefore noticed the PI Motion to be heard on May 9, 2019.

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10.

Defendants have not yet entered an appearance in this case. On April 8, 2019, I

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contacted counsel who have appeared as counsel of record for Defendants in the Alvarez, et al. v.

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Trump, et al., No. 19-cv-404 (D.D.C.) and Center for Biological Diversity et al. v. Trump et al.,

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No. 19-cv-408 (D.D.C.) matters, which address similar issues, to determine whether a stipulation

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can be reached regarding a hearing date. I received a phone call from Andrew Warden, attorney

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Deel. of Lee I. Sherman in Supp. of Mot. to Shorten Time (4: l 9-cv-00872-HSG)

Case 4:19-cv-00872-HSG Document 60-2 Filed 04/08/19 Page 5 of 5

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for the United States Depaiiment of Justice, who confirmed he will be one of the attorneys

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representing Defendants in this matter. Mr. Warden told me that Defendants are formulating a

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proposal for a hearing date and schedule, but was not able to provide that proposal in time for

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Plaintiffs ' filing of this motion to shorten time. Plaintiffs will continue to meet and confer with

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Counsel for Defendants regarding a hearing date and briefing schedule with the aim of reaching a

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stipulation without the Cami's involvement.

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There have been no time modifications in this case, and no schedule has been set

in this case.
I declare under penalty of perjury under the laws of the Unjted States that the foregoing is
true and con-ect.
Executed on April 8, 2019, at Los Angeles, California.

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Lee I. Sherman
Deputy Attorney General

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Deel. of Lee I. Sherman in Supp. of Mot. to Shorten Time (4:19-cv-00872-HSG)