UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

Transcription

1 Case :0-cv-0-JFW -MAN Document Filed 0/0/0 Page of Page ID #: 0 0 Brian R. Michael (SBN: 00 brian.michael@wilmerhale.com Telephone: ( - Facsimile: ( -00 Seth P. Waxman (Pro Hac Vice seth.waxman@wilmerhale.com Randolph D. Moss (Pro Hac Vice randolph.moss@wilmerhale.com Carl J. Nichols (Pro Hac Vice carl.nichols@wilmerhale.com Pennsylvania Avenue, N.W. Washington, D.C. 000 Telephone: (0-000 Facsimile: (0 - Attorneys for Plaintiff The Boeing Company EDMUND G. BROWN JR. Attorney General of California KEN ALEX Senior Assistant Attorney General DONALD ROBINSON (SBN: 0 Deputy Attorney General donald.robinson@doj.ca.gov Los Angeles, CA 00 Telephone: ( - Facsimile: ( -0 Attorneys for Defendant Maziar Movassaghi [additional counsel listed in signature block] UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA THE BOEING COMPANY, Case No. CV 0-0-JFW (MANx Plaintiff, Civil Action v. MAZIAR MOVASSAGHI, in his official capacity as the Acting Director Judge: Hon. John F. Walter of the California Department of Toxic Courtroom: Substances Control, Date: August, 00 Time: :0 a.m. Defendant. CASE NO. CV 0-0-JFW (MANX

2 Case :0-cv-0-JFW -MAN Document Filed 0/0/0 Page of Page ID #: 0 0 Plaintiff The Boeing Company ( Boeing and Defendant Maziar Movassaghi, in his official capacity as Acting Director of the California Department of Toxic Substances Control ( DTSC, have conferred and jointly submit this status report in accordance with the Court s Order of July, 00. This case was awaiting argument on Boeing s fully briefed Motion for Summary Judgment in the Eastern District of California when it was transferred on June, 00. Other than scheduling stipulations, no other motions have been filed in this case. A full chronology of the case to date follows.. Initial Pleadings. This action was commenced on November, 00, when Boeing filed a Complaint in the U.S. District Court for the Eastern District of California challenging the constitutionality of a California state law, Senate Bill 0 ( SB 0, Cal. Health & Safety Code.0. On December, 00, Boeing filed an Amended Complaint, alleging that SB 0 is invalid because ( with exceptions not applicable here, the Atomic Energy Act of, U.S.C. 0 h-, preempts the entire field of nuclear safety; ( SB 0 conflicts with, and is thus preempted by, federal law; ( it violates the doctrine of intergovernmental immunity; ( it violates the Equal Protection Clause of the Fourteenth Amendment; and ( it violates the Due Process Clause of the Fourteenth Amendment. Dkt. No.. On November, 00, the parties filed a joint stipulation extending the time for the filing of an Answer, and DTSC filed its Answer on January, 00. Dkt. Nos.,. DTSC s Answer asserts that SB 0 has not been preempted by federal law because, inter alia, ( the Atomic Energy Act specifically authorizes a delegation to States of the authority to regulate byproduct materials, source materials, and certain special nuclear materials for the protection of the public health and safety from radiation hazards a delegation that has been made to California and that is still effective; and ( SB 0 does not violate the doctrine of intergovernmental -- CASE NO. CV 0-0-JFW (MANX

3 Case :0-cv-0-JFW -MAN Document Filed 0/0/0 Page of Page ID #: 0 0 immunity, or the Due Process Clause or Equal Protection Clause of the Fourteenth Amendment. Dkt. No.. DTSC also contends that SB 0 is a proper exercise of the State s land use authority, which has not been preempted by the Atomic Energy Act. Dkt. No... Motion for Summary Judgment and Scheduled Hearing. On January, 00, Judge Garland E. Burrell approved the parties stipulated summary judgment briefing schedule and set the pretrial scheduling conference for June, 00. Dkt. No.. The parties confirmed with Judge Burrell s deputy clerk that this conference was intended to be the initial scheduling conference pursuant to Fed. R. Civ. P. (b. On January, 00, Boeing filed a Motion for Summary Judgment on its field preemption and intergovernmental immunity claims (Counts through of the Amended Complaint, which DTSC opposed on February, 00. Dkt. Nos.,. On March, 00, Southern California Federation of Scientists, Los Angeles Chapter of Physicians for Social Responsibility, Rocketdyne Cleanup Coalition, and Committee to Bridge the Gap filed an amicus brief in opposition to summary judgment. Dkt. No.. Boeing filed its reply on May, 00. Dkt. No. 0. On March, 00, and May 0, 00, Judge Burrell approved the parties joint stipulations postponing proceedings to permit time for discussions with the United States, rescheduled the initial scheduling conference for September 0, 00, and, ultimately, scheduled oral argument on the Motion for Summary Judgment for June, 00. Dkt. Nos.,.. Transfer. On May, 00, before hearing argument on Boeing s Motion for Summary Judgment, Judge Burrell ordered the parties to show cause why venue should not be transferred to the Central District of California, and on June, 00, Judge Burrell ordered this case transferred to the Central District. Dkt. Nos., CASE NO. CV 0-0-JFW (MANX

4 Case :0-cv-0-JFW -MAN Document Filed 0/0/0 Page of Page ID #: 0 0 On July, 00, this Court set a scheduling conference for August, 00. Dkt No.. On July, 00, this Court denied all pending motions without prejudice to refiling in accordance with the Court s Scheduling and Case Management Order that will be issued after the Scheduling Conference. Dkt. No.. Boeing s Motion for Summary Judgment was the only motion pending on that date. The parties respectfully request that, upon refiling, this Court treat the previously filed summary judgment papers in this case as filed consistent with the local rules and this Court s Standing Order. The parties request that the Court schedule a hearing on the Motion for Summary Judgment on September 0, 00, or at such time thereafter as is convenient for the Court, although DTSC reserves the right, at the hearing, to request that the Court withhold determination of the motion until after a limited period of discovery. Dated: July 0, 00 Respectfully submitted, Brian R. Michael (SBN: 00 brian.michael@wilmerhale.com Telephone: ( - Facsimile: ( -00 Seth P. Waxman (Pro Hac Vice seth.waxman@wilmerhale.com Randolph D. Moss (Pro Hac Vice randolph.moss@wilmerhale.com Carl J. Nichols (Pro Hac Vice carl.nichols@wilmerhale.com Annie L. Owens (Pro Hac Vice annie.owens@wilmerhale.com Pennsylvania Avenue, N.W. Washington, D.C. 000 Telephone: (0-000 Facsimile: ( CASE NO. CV 0-0-JFW (MANX

5 Case :0-cv-0-JFW -MAN Document Filed 0/0/0 Page of Page ID #:0 0 0 THE BOEING COMPANY Steven W. Horton (Pro Hac Vice steven.w.horton@boeing.com J. Steven Rogers (Pro Hac Vice steven.rogers@boeing.com Steven E. Rusak (Pro Hac Vice steven.e.rusak@boeing.com P.O. Box 0 MC A-XP Seattle, Washington Telephone: ( -0 Facsimile: ( - /s/ Randolph D. Moss Randolph D. Moss Attorneys for Plaintiff The Boeing Company EDMUND G. BROWN JR. Attorney General of California KEN ALEX Senior Assistant Attorney General DONALD ROBINSON (SBN: 0 Deputy Attorney General donald.robinson@doj.ca.gov 00 South Spring Street, Suite 0 Los Angeles, CA 00 Telephone: ( - Facsimile: ( -0 /s/ Donald Robinson (as authorized on Donald Robinson Attorneys for Defendant Maziar Movassaghi -- CASE NO. CV 0-0-JFW (MANX