IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT. No Plaintiffs-Appellees,

Transcription

1 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT STATE OF NEVADA, et al., No Plaintiffs-Appellees, v. UNITED STATES DEPARTMENT OF LABOR, et al., Defendants-Appellants. APPELLEES OPPOSITION TO APPELLANTS MOTION FOR EXPEDITED BRIEFING AND ORAL ARGUMENT On the same day that Appellants filed their motion for expedited briefing, this Court issued a briefing notice docketing the appeal and setting the standard briefing schedule in this case. In light of that, much of Appellants motion to expedite is moot. Appellants are free to file their opening brief before the deadline set by the briefing notice, including as early as the December 16th date suggested in their motion. And Appellees response brief will be due 30 days thereafter, which is also consistent with the schedule in the motion. Appellants motion actually asks for extra time to file their reply brief 21 days instead of the standard 14. So with regard to the briefing schedule, Appellants motion to expedite does not ask this Court to do anything that Appellants could not do on their own volition, except extend the briefing schedule for Appellants reply brief. 1

2 Appellees respectfully oppose Appellants attempt to extend their own reply briefing schedule under the guise of a motion for expedited briefing, while presumably blocking Appellees from seeking an extension of the standard 30-day timeframe for filing their response brief. Appellees cannot predict yet whether they, like Appellants, will need extra time to file their responsive brief, but they should be given the same ability, if necessary. 1 Appellants proposed schedule sets the deadline for Appellees responsive brief right after the Christmas and New Year holidays. Beyond limiting Appellees briefing period over the holidays while extending their own reply period, the only other thing of consequence that Appellants motion seeks is to expedite oral argument in this case. Appellees are not necessarily opposed to that request, but do want to ensure the Court is aware of the posture of the proceedings below that may influence the Court s decision whether to disrupt its own oral argument schedule for this appeal. 1 Appellants are mistaken that the district court issued an expedited briefing schedule at plaintiffs request. Mot. at 3. The district court ordered the normal briefing schedule required by its rules. See Dkt The only exception to its normal rules was that the court ordered that [a]ny sur-reply by Defendants had to be filed by the evening before the hearing. Plaintiffs did not request that. Plaintiffs had only asked, consistent with the district court s rules, that if the Defendants filed a sur-reply after the hearing date, that the court not delay ruling on the motion because of the sur-reply. Moreover, the district court, over the Business Plaintiffs objection, actually granted an 18-day extension to the Defendants due date for their opposition to the motion for summary judgment. 2

3 As noted by Appellants, Mot. at 5-6, a consolidated and fully briefed motion for summary judgment is currently pending in the district court. The State Plaintiffs have filed a joinder to the Business Plaintiffs motion for summary judgment, and no further briefing should be necessary for any parties. Moreover, given the fact that the district court just recently held a three and a half hour hearing on the legal issues in this case, there should be no need for any further hearing on the motion for summary judgment. 2 The district court could therefore rule on the pending summary judgment motion any day. Given the legal basis for the grant of a preliminary injunction, the district court could grant summary judgment in favor of the State and Business Plaintiffs sometime before February or March presumably the earliest that this Court could schedule expedited oral argument in this appeal. If the district court issues final summary judgment in favor of Appellees, that will moot the preliminary injunction at issue in this appeal, and this Court will have rearranged its calendar and oral argument schedule for naught. That is precisely what happened in Wyoming v. Jewell, No (10th Cir.), for example, where, shortly after briefing was 2 Relatedly, in conjunction with their notice of appeal, Appellees noted on the transcript order form that a [t]ranscript is unnecessary for appeal purposes. See Ex. A, attached. Appellees strongly disagree. Judge Mazzant held a very active and comprehensive hearing lasting half a day on the motion for a preliminary injunction, discussing all parties legal arguments at length. Appellees respectfully submit that the transcript from the hearing below is a crucial part of the record for this appeal. 3

4 completed on the appeal from a preliminary injunction, the district court granted summary judgment and entered final judgment, and the appeal was dismissed as moot. See Ex. B, attached (order dismissing appeal); see also SEC v. First Fin. Grp. of Tex., 645 F.2d 429, 433 (5th Cir. 1981) ( A preliminary injunction remains in effect until a final judgment is rendered. ). Finally, to be clear, contrary to Appellants claim, Appellees are not arguing that the pendency of district court proceedings is [] a reason to delay an appeal from a preliminary injunction. Mot. at 6 (emphasis added). No party is requesting this Court to delay this appeal (except, perhaps, Appellants in their request to extend their reply briefing schedule). Rather, the Appellants are seeking to expedite oral argument, and Appellees want to make the Court fully aware of the status of the case below before this Court makes an extraordinary and disruptive modification to its schedule. Based upon the foregoing, Appellees respectfully request that Appellants motion be denied and that this appeal proceed in accordance with the previously issued briefing notice. 4

5 Respectfully submitted, Dated: December 5, By: s/lawrence VanDyke ADAM PAUL LAXALT Attorney General of Nevada LAWRENCE VANDYKE Solicitor General JORDAN T. SMITH Assistant Solicitor General OFFICE OF THE NEVADA ATTORNEY GENERAL KEN PAXTON Attorney General of Texas JEFFREY C. MATEER First Assistant Attorney General BRANTLEY STARR Deputy First Assistant Attorney General PRERAK SHAH Senior Counsel to the Attorney General 100 North Carson Street OFFICE OF THE Carson City, NV TEXAS ATTORNEY GENERAL (775) P.O Box 12548, Mail Code 001 Austin, TX Counsel for Appellees Counsel for Appellees 5

6 CERTIFICATE OF SERVICE I hereby certify that on December 5, 2016, I filed the foregoing electronically with the Clerk of the Fifth Circuit Court of Appeals through the CM/ECF system, which caused the all counsel of record to be served by electronic means. /s/ Sandra L. Geyer 6

7 READ INSTRUCTIONS ON LAST PAGE BEFORE COMPLETING TRANSCRIPT ORDER District Court E.D. Texas Short Case Title State of Nevada v. Department of Labor Court Reporter Jan Mason Date Notice of Appeal Filed by Clerk of District Court Court of Appeals # PART I. (To be completed by party ordering transcript. Do not complete this form unless financial arrangements have been made.) A. Complete one of the following: No hearings Transcript is unnecessary for appeal purposes Transcript is already on file in Clerk's office This is to order a transcript of the following proceedings: (check appropriate box) Voir dire ; Opening statement of plaintiff ; defendant ; Closing argument of plaintiff ; defendant ; Opinion of court ; Jury instructions ; Sentencing ; Bail hearing ; District Court Docket Number No. 4:16-CV-731-ALM (If Available) HEARING DATE(S) PROCEEDING JUDGE/MAGISTRATE FAILURE TO SPECIFY IN ADEQUATE DETAIL THOSE PROCEEDINGS TO BE TRANSCRIBED, OR FAILURE TO MAKE PROMPT SATISFACTORY FINANCIAL ARRANGEMENTS FOR TRANSCRIPT, ARE GROUNDS FOR DISMISSAL OF THE APPEAL. B. This is to certify that satisfactory financial arrangements have been completed with the court reporter for payment of the cost of the transcript. The method of payment will be: Private funds; Other IFP Funds; Other Criminal Justice Act Funds (Attach copy of CJA Form 24 to court reporter's copy); Advance Payment waived by reporter; U.S. Government Funds; Signature Print Name Address s/ Alisa B. Klein Alisa B. Klein US DOJ, 950 Pennsylvania Ave NW Rm 7235, DC Date Transcript Ordered Counsel for Appellants Phone Number ALLOWANCE BY THE COURT FOR LEAVE TO PROCEED IN FORMA PAUPERIS IN A CIVIL APPEAL DOES NOT ENTITLE THE LITIGANT TO HAVE TRANSCRIPT AT GOVERNMENT EXPENSE. PART II. COURT REPORTER ACKNOWLEDGEMENT (To be completed by the Court Reporter and f ed the Court of Appeals within 7 days after receipt. Read instruction on before completing.) Date transcript order received If arrangements are not yet made, date contact made with ordering party re: financial arrangements Estimated completion date * Estimated number of pages Satisfactory Arrangements for payment were made on Arrangements for payment have not been made. Reason: Deposit not received Unable to contact ordering party Other (Specify) Date Address of Court Reporter: Signature of Court Reporter Telephone * Do not include an estimated completion date unless satisfactory financial arrangements have been made or waived. PART III. NOTIFICATION THAT TRANSCRIPT HAS BEEN FILED IN THE DISTRICT COURT (To completed by court reporter on date of filing transcript in District Court and notification must be forwarded to Court of Appeals on the same date.) This is to certify that the transcript has been completed and filed with the District Court today. Actual Number of Pages Actual Number of Volumes Date Signature of Court Reporter DK-13

8 TRANSCRIPT ORDER FORM INSTRUCTIONS INSTRUCTIONS FOR ANYONE FILING A NOTICE OF APPEAL 1. Complete Part 1. (Whether or not transcript is ordered) 2. Contact each court reporter involved in reporting the proceedings to make arrangements for payment. (A separate transcript order must be completed for each court reporter.) 3. Send a copy of the form to the court reporter. (via or mail, ask court reporter) 4. File a copy with the U.S. Court of Appeals for the Fifth Circuit (Attorneys must e-file. Pro Se filers must mail form unless authorized to e-file.) 5. File a copy with the District Court. 6. Send a copy(ies) to appellee(s). 7. Retain a copy for your files. SHOULD SATISFACTORY ARRANGEMENTS FOR TRANSCRIPT PRODUCTION, INCLUDING NECESSARY FINANCIAL ARRANGEMENTS, NOT BE MADE WITHIN TEN (10) DAYS AFTER FILING YOUR NOTICE OF APPEAL, YOU APPEAL CAN BE DISMISSED. INSTRUCTIONS TO COURT REPORTER This is an electronic version of the original 8-page multipart carbon-less form. The court reporter is responsible for ensuring that the correct number of copies are made to meet the distribution requirements. To assure the Court of Appeals that the ordering party has fulfilled his or her obligations under FRAP 10(b), for ordering and making adequate financial arrangements with the court reporter, you are requested to complete Part II and file with the Court of Appeals within seven (7) days after receipt. It is the appellant's responsibility to contact you and make financial arrangements before filling out the form. However, if financial arrangements have not been made within ten (10) days after receipt of transcript order, complete Part II and file with the Court of Appeals. If financial negotiations with the ordering party are still in progress when the 10 days expire, and the chances for completion within a short period of time appears to be good, contact a Deputy Clerk for additional time to complete this form. (504) If financial arrangements are made after you send the acknowledgement form to the Court of Appeals, immediately notify the Court in writing of the fact, furnishing the estimated delivery date. THE JUDICIAL COUNCIL'S 60-DAY DISCOUNT DATE BEGINS TO RUN FROM THE DATE SATISFACTORY FINANCIAL ARRANGEMENTS HAVE BEEN MADE. WRITTEN REQUEST FOR EXTENSION OF TIME WITH EXPLANATION OF CIRCUMSTANCES AND A REQUEST FOR WAIVER OF DISCOUNT MUST BE ADDRESSED TO THE CLERK OF THE CIRCUIT COURT FOR ANY TRANSCRIPTS WHICH CANNOT BE COMPLETED WITHIN 60 DAYS.

9 Appellate Case: Document: Date Filed: 07/13/2016 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit STATE OF WYOMING; STATE OF COLORADO; INDEPENDENT PETROLEUM ASSOCIATION OF AMERICA; WESTERN ENERGY ALLIANCE, and Petitioners - Appellees, STATE OF NORTH DAKOTA; STATE OF UTAH; UTE INDIAN TRIBE, FOR THE TENTH CIRCUIT July 13, 2016 Elisabeth A. Shumaker Clerk of Court v. Intervenors Petitioners - Appellees, SIERRA CLUB; EARTHWORKS; WESTERN RESOURCE ADVOCATES; CONSERVATION COLORADO EDUCATION FUND; WILDERNESS SOCIETY; SOUTHERN UTAH WILDERNESS ALLIANCE, No (D.C. No. 2:15-CV SWS) (D. Wyo.) Intervenors Respondents Appellants, and UNITED STATES DEPARTMENT OF THE INTERIOR; SALLY JEWELL; UNITED STATES BUREAU OF LAND MANAGEMENT; NEIL KORNZE, Respondents

10 Appellate Case: Document: Date Filed: 07/13/2016 Page: 2 THE CHAMBER OF COMMERCE OF THE UNITED STATES OF AMERICA, PETROLEUM ASSOCIATION OF WYOMING, Amicus Curiae. STATE OF WYOMING; STATE OF COLORADO; INDEPENDENT PETROLEUM ASSOCIATION OF AMERICA; WESTERN ENERGY ALLIANCE, Petitioners - Appellees, v. SALLY JEWELL; NEIL KORNZE; UNITED STATES DEPARTMENT OF THE INTERIOR; UNITED STATES BUREAU OF LAND MANAGEMENT, No (D.C. No. 2:15-CV SWS) (D. Wyo.) Respondents - Appellants STATE OF NORTH DAKOTA; UTE INDIAN TRIBE; STATE OF UTAH, and Intervenors Petitioners - Appellees, SIERRA CLUB; EARTHWORKS; WESTERN RESOURCE ADVOCATES; WILDERNESS SOCIETY; CONSERVATION COLORADO EDUCATION FUND; SOUTHERN UTAH WILDERNESS ALLIANCE, Intervenors Respondents. 2

11 Appellate Case: Document: Date Filed: 07/13/2016 Page: THE CHAMBER OF COMMERCE OF THE UNITED STATES OF AMERICA, PETROLEUM ASSOCIATION OF WYOMING, Amicus Curiae. ORDER Before LUCERO, HOLMES, and McHUGH, Circuit Judges. These matters are before the court on Appellee States unopposed Motion to Dismiss Appeal as Moot, Federal Respondents-Appellants Notice of Non-Opposition to Motion to Dismiss, Intervenor-Respondent-Appellants Response to Motion to Dismiss Appeal as Moot and Cross-Motion to Vacate Preliminary Injunction, State Appellees Reply in support of Motion to Dismiss Appeal as Moot and Response to Cross-Motion to Vacate Preliminary Injunction, Industry Appellees Response to Request to Vacate Preliminary Injunction Order, and Intervenor-Respondent-Appellants Reply in support of Cross-Motion to Vacate Preliminary Injunction. Upon careful consideration, the motions are granted. In addition, the matters are remanded to the United States District Court for the District of Wyoming with instructions to vacate the order granting the preliminary 3

12 Appellate Case: Document: Date Filed: 07/13/2016 Page: 4 injunction dated September 30, The mandate in these matters shall issue forthwith. Entered for the Court ELISABETH A. SHUMAKER, Clerk by: Lindy Lucero Schaible Counsel to the Clerk 4