Students for Fair Admissions, Inc. v. President and Fellows of Harvard College et al
Filing
191
Letter/request (non-motion) from Harvard in response to SFFA's letter/request (Dkt. 189). (Waxman, Seth)
September 29, 2016
Honorable Allison D. Burroughs
U.S. District Court, District of Massachusetts
John Joseph Moakley U.S. Courthouse
1 Courthouse Way
Boston, MA 02210
Seth P. Waxman
+1 202 663 6800 (t)
+1 202 663 6363 (f)
seth.waxman@wilmerhale.com
Re: Students for Fair Admissions, Inc. v. President and Fellows of Harvard College
No. 1:14-cv-14176-ADB
Dear Judge Burroughs:
I write in response to the September 26, 2016 letter filed by Students for Fair Admissions, Inc.
(SFFA).
On September 23, 2016, Harvard filed two motions that demonstrate that (1) two of the six
counts in SFFA’s complaint are deficient as a matter of law, and (2) SFFA lacks standing to sue
on any of the counts in the complaint, depriving this Court of subject-matter jurisdiction. For the
reasons explained in the motions, these issues are ripe for resolution now, and should be resolved
as they may substantially streamline, and perhaps completely dispose of, the issues presented in
this litigation. Granting the motion for judgment on the pleadings would streamline the
discovery and adjudication of this case, and granting the motion to dismiss for lack of standing
would spare the parties and the Court the needless burdens of litigation over which this Court
lacks jurisdiction. There is no reason—and SFFA certainly has not suggested any—why either
the Court or the parties would be served by deferring the resolution of these threshold issues.
Instead, rather than oppose those arguments on the merits through motion practice, SFFA
attempts to avoid them through yet another “non-motion” filing, suggesting that Harvard’s
motions are “procedurally improper” and arguing that the Court’s Scheduling Order somehow
restricts Harvard’s ability to file these motions, or any other dispositive motions contemplated by
the Federal Rules of Civil Procedure, until after all discovery is concluded. That position is
meritless. The Scheduling Order does not render inapplicable the well-established parameters of
the Federal Rules. It merely sets a deadline for when motions for summary judgment under Rule
56 may be filed—and Harvard has not filed a motion for summary judgment under Rule 56.
The Federal Rules authorize a party to move for judgment on the pleadings “after the pleadings
are closed—but early enough not to delay trial.” Fed. R. Civ. P. 12(c). Harvard’s motion
complies with these requirements—the pleadings closed on September 15, 2016, Harvard’s
motion followed eight days later, and trial has yet to be scheduled. Nothing in the Federal Rules
requires a party to wait until summary judgment to argue that a count in the complaint fails to
Honorable Allison D. Burroughs
September 29, 2016
Page 2
state a claim on which relief may be granted, and for good reason—if a claim cannot proceed,
then discovery on it is a waste of the parties’ resources and the Court’s.
With respect to Harvard’s motion to dismiss, Rule 12(h)(3) requires the Court to dismiss an
action “[i]f the court determines at any time that it lacks subject matter jurisdiction.” Again,
nothing in the Federal Rules requires Harvard to wait until summary judgment to challenge
SFFA’s standing. To the contrary, lack of subject-matter jurisdiction is conventionally raised by
motion to dismiss, because courts cannot address the merits of a dispute, and defendants should
not be put through the burden of discovery, if the case lies beyond the federal judicial power.
See, e.g., Donahue v. City of Boston, 304 F.3d 110, 117 (1st Cir. 2002) (“[T]his Court must
resolve questions pertaining to its subject-matter jurisdiction before it may address the merits of
a case.”); see also Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 102 (1998) (emphasizing
that standing is a “threshold jurisdictional question”).
Nor can SFFA claim to be surprised by these motions. Harvard indicated at the very first hearing
in this case that a challenge to SFFA’s standing was forthcoming, Dkt. 43 at 21:17-22:14, and
has consistently sought discovery in support of its challenge, which SFFA has resisted. See
Dkts. 147, 154, 164. The Court also has recognized the threshold nature of SFFA’s standing,
allowing discovery on SFFA’s standing to proceed even during the pendency of the partial stay
of the case. The record is sufficient now to establish that SFFA lacks standing. SFFA’s
suggestion that it needs additional time to “make an informed choice as to whether to submit
evidence in opposition to Harvard’s motion” is baseless—having resisted discovery, SFFA must
rest on the record it has created. 1
Respectfully yours,
/s/ Seth P. Waxman
Seth P. Waxman
cc: Counsel of record
1
If the Court believes further discovery is necessary to resolve the motion to dismiss, it should hold the motion in
abeyance while allowing such additional discovery to proceed.
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