STIPULATED ORDER ESTABLISHING BRIEFING SCHEDULE FOR EXPEDITED RESOLUTION OF THIS CASE AND PROHIBITING DEFENDANTS' OBLIGATION OF FUNDS AUTHORIZED TO BE APPROPRIATED FOR NAVAL BASE KITSAP PRIOR TO A DECISION BY THIS COURT
BARBARA JACOBS ROTHSTEIN, District Judge.
STIPULATION
WHEREAS the State of Washington has filed this suit to enjoin Defendants' use of funds authorized to be appropriated by Congress for military construction projects, including $88.96 million in funding for construction of the Bangor Pier and Maintenance facility at Naval Base Kitsap (see John S. McCain National Defense Authorization Act for Fiscal Year 2019, Pub. L. No. 115-232, § 2201, 132 Stat. 1636 (2018));
WHEREAS the Department of Defense does not intend to obligate any portion of the $88.96 million authorized to be appropriated by Congress for the Bangor Pier and Maintenance Facility prior to February 1, 2020;
WHEREAS the parties wish to avoid any motion practice aimed at ensuring that the funds authorized to be appropriated for the Bangor Pier and Maintenance Facility remain unobligated during the pendency of this litigation;
WHEREAS the parties agree this case can be resolved on an expedited basis prior to February 1, 2020, through cross-motions for summary judgment and have agreed to a schedule to enable the Court to issue a final judgment prior to that date;
WHEREAS in order to avoid litigation over a motion for a preliminary injunction and other pretrial proceedings that would not further the interests of either party or judicial resources, the parties respectfully request the Court issue a decision on the cross-motions for summary judgement on or before February 1, 2020; and
WHEREAS the parties' consent to this Stipulation is conditioned on receiving a final decision in this matter on or before February 1, 2020. In the event the Court has concerns with this proposed schedule or the parties' request for a decision before February 1, 2020, in order to avoid preliminary injunction proceedings, the parties are available for a telephone status conference at the Court's convenience to discuss scheduling in this case:
IT IS HEREBY STIPULATED by the parties, through their undersigned counsel, that this Court should enter an order providing that:
1. Defendants are prohibited from obligating, using, or otherwise placing beyond the limits of judicial process any portion of the $88.96 million authorized to be appropriated by Congress for the Bangor Pier and Maintenance Facility prior to February 1, 2020. This prohibition is enforceable through a court order;
2. The following briefing and hearing schedule shall govern resolution of this case:
DATE EVENT
October 11, 2019 Defendants file administrative record regarding DoD's
decision to authorize barrier projects pursuant to 10
U.S.C. § 2808
October 25, 2019 Plaintiff's Motion for Summary Judgment (30 pages)
November 15, 2019 Defendants' Cross-Motion For Summary Judgment and
Opposition to Plaintiff's Motion for Summary Judgment
(30 pages)
December 6, 2019 Plaintiff's Opposition to Defendants' Cross-Motion and
Reply in Support of Motion for Summary Judgment (20
pages)
December 16, 2019 Defendants' Reply in Support of Cross-Motion for
Summary Judgment (20 pages)
Week of December 16, 2019 Oral argument
or January 6, 2020
3. This briefing schedule assumes there are no disputes about the completeness of the Administrative Record that Defendants produce on October 11, 2019. If Washington believes the Administrative Record is deficient or incomplete, it will promptly meet and confer with Defendants to determine whether any adjustments to the summary judgment briefing schedule will be necessary.
4. In light of the foregoing schedule, all other case management and pre-trial activity is stayed. The stay includes the deadlines for the parties to conduct a 26(f) conference, to file a Rule 26(f) report and case management statement, to provide initial disclosures under Rule 26(a)(1), and for Defendants to respond to the Complaint under Rule 12. This stay shall not preclude Plaintiff from (1) moving to compel supplementation of the administrative record or (2) amending its Complaint, if appropriate.
It is SO AGREED this 11th day of October 2019.
ROBERT W. FERGUSON JOSEPH H. HUNT
Attorney General Assistant Attorney General
JAMES M. BURNHAM
/s/Andrew R.W. Hughes Deputy Assistant Attorney General
MARTHA RODRIGUEZ LOPEZ, WSBA
#35466 ALEX HAAS
ANDREW R.W. HUGHES, WSBA #49515 Director, Federal Programs Branch
BRENDAN SELBY, WSBA #55325
Assistant Attorneys General ANTHONY J. COPPOLINO
800 Fifth Ave., Ste. 2000 Deputy Director,
Seattle, WA 98104 Federal Programs Branch
TERA HEINTZ, WSBA #54921
Deputy Solicitor General /s/ Andrew I. Warden
PO Box 40100 ANDREW I. WARDEN (IN Bar
Olympia, WA 98504-0100 23840-49)
Senior Trial Counsel,
Attorneys for Plaintiff Federal Programs Branch
MICHAEL J. GERARDI
KATHRYN C. DAVIS
LESLIE COOPER VIGEN
RACHAEL L. WESTMORELAND
Trial Attorneys
United States Department of Justice
Civil Division, Federal Programs
Branch
1100 L St., NW, Rm. 12212
Tel: (202) 616-5084
Fax: (202) 616-8460
E-mail: Andrew.Warden@usdoj.gov
Attorneys for Defendants
ORDER
Having reviewed the foregoing stipulation and good cause appearing therefore, IT IS HEREBY ORDERED:
1. Defendants are prohibited from obligating, using, or otherwise placing beyond the limits of judicial process any portion of the $88.96 million authorized to be appropriated for the Bangor Pier and Maintenance Facility prior to February 1, 2020. This order shall be enforceable to the same extent as an injunction under Federal Rule of Civil Procedure 65;
2. The following briefing and hearing schedule shall govern resolution of this case:
DATE EVENT
October 11, 2019 Defendants file administrative record regarding
Department of Defense's decision to authorize barrier
projects pursuant to 10 U.S.C. § 2808
October 25, 2019 Plaintiff's Motion for Summary Judgment (30 pages)
November 15, 2019 Defendants' Cross-Motion For Summary Judgment and
Opposition to Plaintiff's Motion for Summary Judgment
(30 pages)
December 6, 2019 Plaintiff's Opposition to Defendants' Cross-Motion and
Reply in Support of Motion for Summary Judgment
(20 pages)
December 16, 2019 Defendants' Reply in Support of Cross-Motion for
Summary Judgment (20 pages)
3. This briefing schedule assumes there are no disputes about the completeness of the Administrative Record that Defendants produce on October 11. If Washington believes the Administrative Record is deficient or incomplete, it will promptly meet and confer with Defendants to determine whether any adjustments to the summary judgment briefing schedule will be necessary. is stayed. The stay includes the deadlines for the parties to conduct a Rule 26(f) conference, to file a Rule 26(f) report and case management statement, to provide initial disclosures under Rule 26(a)(1), and for Defendants to respond to the Complaint under Rule 12. This stay shall not preclude Plaintiff from (1) moving to compel supplementation of the administrative record or (2) amending its Complaint, if appropriate.
5. To facilitate expedited and efficient final resolution of this case without the need for preliminary injunction proceedings, the Court will endeavor to issue a decision on the cross-motions for summary judgment on or before February 1, 2020.
6. In the event it is impracticable for the Court to issue a decision by February 1, 2020 and this Order needs to be extended the parties shall be available for a status conference at Seattle on January 21, 2020.
7. In the event the Court notifies the parties that the Court is unable to issue a decision before February 1, 2020, or in the event the Court has not issued a decision by January 21, 2020, Plaintiff may move for an extension of the order to prohibit the obligation of the funds at issue until the Court issues a decision on the ross-motions for summary judgment. In the event Plaintiff requests such an extension, Defendants may oppose Plaintiffs' motion on any and all grounds, other than on the basis that the extension should not be granted because the expected obligation date is not imminent.
IT IS SO ORDERED.
