Case: 19-10011 Document: 00514835612 Page: 1 Date Filed: 02/14/2019 No. 19-10011 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT ____________________ TEXAS, et al., Plaintiffs-Appellees, v. UNITED STATES, et al., Defendants-Appellants. THE STATES OF CALIFORNIA, et al., Intervenors-Defendants-Appellants. ____________________ On Appeal from the United States District Court for the Northern District of Texas No. 4:18-cv-167-O Hon. Reed O’Connor, Judge ____________________ STATE DEFENDANTS’ REPLY IN SUPPORT OF MOTION TO EXPEDITE ____________________ February14, 2019 Xavier Becerra Attorney General of California Edward C. DuMont Solicitor General Michael L. Newman Senior Assistant Attorney General Kathleen Boergers Supervising Deputy Attorney General, Healthcare Strike Force Samuel P. Siegel Deputy Solicitor General Nimrod P. Elias Neli N. Palma Deputy Attorneys General, Healthcare Strike Force CALIFORNIA DEPARTMENT OF JUSTICE 1300 I Street Sacramento, CA 95814 (916) 210-6269 Sam.Siegel@doj.ca.gov Attorneys for the State of California (Additional Counsel Listed on Signature Page) Case: 19-10011 Document: 00514835612 Page: 2 Date Filed: 02/14/2019 On February 1, 2019, the State Defendants moved to expedite this appeal, set a proposed briefing schedule, and set this case for oral argument as soon as practicable upon the completion of briefing. Under the proposed schedule, the opening briefs would be due March 29; the answering briefs, May 1; and the reply briefs, May 21. See Mot. to Expedite 4. The State Defendants also asked the Court to give this case calendaring priority for oral argument. Id. In response, the Federal Defendants did not object to the proposed schedule and asked that the Court schedule the case for oral argument during the week of July 8. Id. at 4-5. The Plaintiffs opposed the motion, arguing primarily that it might hamper their ability to seek an extension of time. See Opp. 3-4.1 After the motion and opposition were filed, the Clerk certified that the record in this case was complete for purposes of appeal, and set the date due for opening briefs as March 25, 2019, in the ordinary course. See Doc. No. 00514832122 (Filed Feb. 12, 2019). Under that schedule, the Plaintiffs’ answering brief would be due April 24; and reply briefs would be due May 15. The State Defendants are amenable to either briefing schedule. All parties agree that this is a case of “enormous national consequence.” Opp. 1. A prompt 1 Proposed Intervenors the U.S. House of Representatives and the States of Colorado, Iowa, Michigan, and Nevada consented to the State Defendants’ motion. See Mot. to Expedite 5. 1 Case: 19-10011 Document: 00514835612 Page: 3 Date Filed: 02/14/2019 resolution of this appeal would thus benefit both the parties and the country. See Mot. to Expedite 2-4 (documenting uncertainty created by the decision below). Either schedule strikes a reasonable balance between that strong interest in prompt resolution and the need to provide the Court with briefs that fully address the important issues presented. See Opp. 3, 4. The State Defendants do continue to request that the Court adopt one schedule or the other in a special order and give the case calendaring priority. The practical effect of doing so would be to prevent any party from seeking an extension of time, except perhaps under truly compelling circumstances.2 But this is not a typical appeal, and briefing should not be delayed for the typical reasons attorneys seek extensions of time. See Opp. 4 (expressing concern about potential competing time demands). In any event, even in ordinary cases this Court normally “expects briefs to be filed timely and without extensions” and directs that such requests “be made sparingly.” 5th Cir. R. 31.4.1. Either briefing schedule would also allow the Court to accommodate the Federal Defendants’ request to set this case for oral argument during its hearings Rather than being “lopsided,” Opp. 4, the briefing schedule proposed by the State Defendants would afford the Plaintiffs more time to file their answering brief (33 days) than they would have under the schedule just set in the normal course. See Fed. R. App. P. 31(a) (answering briefs are due 30 days after opening briefs are filed). 2 2 Case: 19-10011 Document: 00514835612 Page: 4 Date Filed: 02/14/2019 set for the week of July 8, 2019. See Mot. to Expedite 4-5. Although the Plaintiffs oppose the specific request to hear this appeal during that week, they do not appear to oppose the State Defendants’ request to give this case calendaring priority. Accordingly, under any circumstances, and in light of the significance of this case, the Court should set the case for oral argument as soon as practicable upon the completion of briefing. 3 Case: 19-10011 Document: 00514835612 Page: 5 Date Filed: 02/14/2019 CONCLUSION The Court should set a specific briefing schedule for this case and set the case for oral argument as soon as practicable upon the completion of briefing. Dated: February 14, 2019 Respectfully submitted, s/ Samuel P. Siegel Xavier Becerra Attorney General of California Edward C. DuMont Solicitor General Michael L. Newman Senior Assistant Attorney General Kathleen Boergers Supervising Deputy Attorney General, Healthcare Strike Force Samuel P. Siegel Deputy Solicitor General Nimrod P. Elias Neli N. Palma Deputy Attorneys General, Healthcare Strike Force CALIFORNIA DEPARTMENT OF JUSTICE 1300 I Street Sacramento, CA 95819 (916) 210-6269 Sam.Siegel@doj.ca.gov Attorneys for the State of California (Additional Counsel Listed on Next Page) 4 Case: 19-10011 Document: 00514835612 William Tong Attorney General of Connecticut Joseph Rubin Associate Attorney General Attorneys for the State of Connecticut Page: 6 Date Filed: 02/14/2019 Office of the Attorney General State of Minnesota Scott Ikeda Assistant Attorney General Attorneys for the State of Minnesota by and through its Department of Commerce Kathleen Jennings Attorney General of Delaware Ilona Kirshon Deputy State Solicitor Jessica M. Willey David J. Lyons Deputy Attorneys General Attorneys for the State of Delaware Gurbir S. Grewal Attorney General of New Jersey Jeremy M. Feigenbaum Assistant Attorney General Attorneys for the State of New Jersey Letitia James Attorney General of New York Steven C. Wu Deputy Solicitor General Lisa Landau Bureau Chief, Health Care Bureau Elizabeth Chesler Assistant Attorney General, Health Care Bureau Attorneys for the State of New York Clare E. Connors Attorney General of Hawaii Andrea A. Suzuki Deputy Attorney General Robert T. Nakatsuji Deputy Solicitor General Attorneys for the State of Hawaii Kwame Raoul Attorney General of Illinois David F. Buysse Deputy Chief, Public Interest Division Anna P. Crane Public Interest Counsel Matthew V. Chimienti Assistant Attorney General, Special Litigation Bureau Attorneys for the State of Illinois Joshua H. Stein Attorney General of North Carolina Sripriya Narasimhan Deputy General Counsel Attorneys for the State of North Carolina Ellen F. Rosenblum Attorney General of Oregon Henry Kantor Special Counsel to the Attorney General Scott Kaplan Assistant Attorney General Attorneys for the State of Oregon Andy Beshear Attorney General of Kentucky La Tasha Buckner Executive Director, Office of Civil and Environmental Law S. Travis Mayo Taylor Payne Assistant Attorneys General Attorneys for the Commonwealth of Kentucky Peter F. Neronha Attorney General of Rhode Island Michael W. Field Assistant Attorney General Maria R. Lenz Assistant Attorney General Attorneys for the State of Rhode Island Maura Healey Attorney General of Massachusetts Stephen P. Vogel Assistant Attorney General Attorneys the Commonwealth of Massachusetts Thomas J. Donovan, Jr. Attorney General of Vermont Benjamin D. Battles Solicitor General Attorneys for the State of Vermont 5 Case: 19-10011 Document: 00514835612 Mark R. Herring Attorney General of Virginia Toby J. Heytens Solicitor General Matthew R. McGuire Principal Deputy Solicitor General Attorneys for the Commonwealth of Virginia Page: 7 Date Filed: 02/14/2019 Karl A. Racine Attorney General for the District of Columbia Loren L. AliKhan Solicitor General Caroline S. Van Zile Deputy Solicitor General Attorneys for the District of Columbia Robert W. Ferguson Attorney General of Washington Jeffrey G. Rupert Chief, Complex Litigation Division Jeffrey T. Sprung Assistant Attorney General Attorneys for the State of Washington 6 Case: 19-10011 Document: 00514835612 Page: 8 Date Filed: 02/14/2019 CERTIFICATE OF COMPLIANCE I hereby certify that this brief complies with the requirements of Federal Rule of Appellate Procedure 27(d)(2) and Fifth Circuit Rule 27.4, because it contains 604 words, according to the count of Microsoft Word. I further certify that this brief complies with typeface requirements of Federal Rule of Appellate Procedure 27(d)(1)(E) because it has been prepared in 14-point Times New Roman font. Dated: February 14, 2019 /s Samuel P. Siegel Samuel P. Siegel Case: 19-10011 Document: 00514835612 Page: 9 Date Filed: 02/14/2019 CERTIFICATE OF SERVICE I certify that on February 14, 2019, I electronically filed the foregoing Reply in Support of Motion to Expedite with the Clerk of the Court of the United States Court of Appeals for the Fifth Circuit by using the appellate CM/ECF system. I certify that all other participants in this case, except for the Individual Plaintiffs, are registered CM/ECF users and that service of those parties will be accomplished by the appellate CM/ECF system. I further certify that counsel for the Individual Plaintiffs was served via U.S. Mail. A declaration of service to counsel for the Individual Plaintiffs is attached. Dated: February 14, 2019 /s Samuel P. Siegel Samuel P. Siegel