Académique Documents
Professionnel Documents
Culture Documents
No. 17-5104
____________________
IN RE STATE OF MARYLAND,
Petitioner.
____________________
BRIAN E. FROSH
Attorney General of Maryland
LINDA M. DEVUONO
Assistant Attorney General
707 North Calvert Street
Suite C407
Baltimore, Maryland 21201
Telephone: (410) 545-0070
ALBERT M. FERLO
Perkins Coie LLP
700 Thirteenth Street, N.W., Suite 600
Washington, D.C. 20005-3960
Telephone: (202) 654-6262
INTRODUCTION
The State is at a critical juncture in its development of the Purple Line, the
very existence of which is threatened by the failure of the district court to issue a
claim in their Response that the Petition is moot. They are both factually and
legally wrong.
ARGUMENT
I. THE PETITION IS NOT MOOT.
The States Petition is not moot. The May 22, 2017 Opinion (ECF 138)
decided only one issue out of the myriad of issues that the district court itself
provides no definite timeline for issuing a final decision resolving all or even any
Like the district courts earlier opinion (issued August 3, 2016, ECF 96)
addressing a single issue, the May 22 Opinion does not afford the State an
can prevail in this Court on that single issue if given an opportunity to address the
merits of the district courts decision, the continued lack of a final decision on all
remaining issues and uncertainty about when that decision will be issued leaves
1
USCA Case #17-5104 Document #1676696 Filed: 05/25/2017 Page 3 of 11
court decision, while each passing week increases the Projects costs and the
The States Petition is based on its need for certainty in the near future
concerning the resolution of the remaining issues in this case. The district courts
decision simply states that the court intends to issue an opinion on these
remaining issues in the next few weeks. May 22 Opinion at 2, n.1. That
a few weeks provides no certainty that the district court will issue a timely, final
appealable order on all issues raised in the cross-motions for summary judgment
that were filed almost one year ago. The judges reference to a few weeks offers
little reason for confidence when viewed in the context of the district courts
previous assurances, issued almost two years ago, insisting that the time needed for
the courts decision of the case would have a little bit of a delaying effect, but,
you know, not that much, which the judge went on to estimate as a month or
two. July 15, 2015 Transcript (July 15 Tr.) at 22, 23. Further piecemeal
1
Respondents claim that the Petition is moot because the Court has (again)
decided the case on the merits (Response at 6; emphasis in original) ignores the
primary relief sought in the Petition, which is to require the district court to rule on
all of the summary judgment issues. As the district court itself acknowledges,
myriad other claims and issues remain pending. If that is not true, and
Respondents have abandoned all their other claims, then it is incumbent on them to
inform the district court of that decision to allow the court to issue a final judgment
that will allow the State to take an appeal in its own right.
2
USCA Case #17-5104 Document #1676696 Filed: 05/25/2017 Page 4 of 11
resolution of the issues raised in this case would further jeopardize the States
ability to determine whether and how it should proceed. At this point, only a
decision on all issues on a date established by an order from this Court will provide
the State with the certainty needed to determine its path forward for the Project:
seek emergency relief to stay the order vacating the ROD along with expedited
The timeframe for a decision on all issues from the district court is critical to
the Project. As the State outlined in the Declaration of Secretary Rahn in support
of its Petition, the time for making a decision on the future of the Purple Line is
close at hand. On or shortly after June 1, 2017, the State will begin the process of
shutting down ongoing Project activities. Petition Exhibit A, Rahn Decl. 61.
Secretary Rahn anticipates that within 60 days after shut-down begins (i.e., early
August), a decision to cancel the Project could occur. Id. at 65. Thus, even if
the district court rules in the States favor on all other issues, the longer it takes for
a few weeks to transpire, and the closer that gets to the end of the shutdown
period described by Secretary Rahn, the more urgent the States nearly certain
The State faces a very real set of deadlines by which it must determine
whether this important Project can continue. The State has suffered and stands to
3
USCA Case #17-5104 Document #1676696 Filed: 05/25/2017 Page 5 of 11
continue to suffer the cascading consequences that the State warned the district
court could occur. See Petition at 21-22; Rahn Decl. 56-78. Only an order from
this Court requiring the district court to issue an opinion on all issues by a date
certain can ensure that the fate of the Project is not determined due to a failure of
a brief response.
the merits issues have been fully briefed for nearly a year without a decision,
resolving this litigation. Further, the record is replete with statements by the
district court, cited in the Petition, that dismiss the States concerns about the
potential peril to the Project caused by a delay in resolving this litigation. The core
of the States concern is that the district court did not render a full decision on the
4
USCA Case #17-5104 Document #1676696 Filed: 05/25/2017 Page 6 of 11
Moreover, the States Petition is not based solely on the district courts delay
circumstances, the length of time that this case has been pending in the district
handling of this case that underlies the States request not simply the delay in
will only issue if a district courts delay extends to years. Response at 5. TRAC is
focused only on the issue of unreasonable agency delay and does not set a bright-
line test for how long a district courts delay must extend before mandamus will
issue. As explained in the States Petition, Cheney v. U.S. Dist. Court for Dist. Of
Columbia, 542 U.S. 367 (2004), not TRAC, establishes the proper test for
2
Respondents citation to this Courts unpublished Order in In re United States,
925 F.2d 490 (D.C. Cir. 1991), directly contravenes Circuit Rule 32.1, which
prohibits citing as precedent such materials. In any event, the Court in that Order
determined that, under the circumstances of that case, a two-month delay in ruling
on an outstanding motion did not warrant issuance of a writ of mandamus. In this
case, the district court has failed to act on fully briefed motions which have been
pending for almost a year.
5
USCA Case #17-5104 Document #1676696 Filed: 05/25/2017 Page 7 of 11
evaluating a mandamus petition. Under Cheney, the Court is to consider not just
delay, but a broader set of three factors, all of which favor the requested relief in
C. The Harm the State Will Suffer Absent a Timely Decision by the
District Court Is Not Self-Inflicted.
Respondents attempt to discount the harm to the State that will occur absent
a timely decision from the district court as self-inflicted. Response at 8-9.3 That
argument is both factually incorrect and premised on cases that are inapposite. For
Court found that it lacked jurisdiction because the defendant State had not
inflicted any injury upon the plaintiff States. 426 U.S. at 664. Here, the injury
to the State will arise out of a lack of a timely decision by a court in a case brought
by a small group of people who oppose a project that will be located near their
residences. The other cases cited by Respondents are similarly inapposite. They
are cases involving requests for preliminary injunctive relief. The State had no
3
Respondents mistakenly suggest that recent federal budget documents threaten
the availability of federal funding for the Purple Line. See Response at n.4. In
fact, the budget materials the Administration prepared for Congress just this week
confirm that FTA is prepared to issue the federal funding reserved to support the
Purple Line should the ROD be reinstated. See
https://www.transit.dot.gov/sites/fta.dot.gov/files/docs/funding/grant-
programs/capital-investments/60926/md-bethesda-new-carrollton-national-capital-
purple-line-fy-18-profile.pdf.
6
USCA Case #17-5104 Document #1676696 Filed: 05/25/2017 Page 8 of 11
obligation to halt efforts to make this long-planned and much needed transportation
facility a reality for its citizens simply because a lawsuit was filed.
merit whatsoever to Respondents argument that the State was required to postpone
the Project entirely until full resolution of this litigation or give up its right to
expect timely decisions under the circumstances. There was no reason to believe
that the district court would engage in a piecemeal decision-making process that
would prevent the State from seeking timely review from this Court. The great
harm that the State will suffer absent a timely decision by the district court on all
CONCLUSION
For the foregoing reasons, and the reasons addressed in the initial Petition,
the Petition should be granted and the district court ordered to issue a decision on
7
USCA Case #17-5104 Document #1676696 Filed: 05/25/2017 Page 9 of 11
BRIAN E. FROSH
Attorney General of Maryland
8
USCA Case #17-5104 Document #1676696 Filed: 05/25/2017 Page 10 of 11
CERTIFICATE OF COMPLIANCE
I hereby certify that this brief complies with the type-volume limitation of
word-processing system used to prepare this brief, the brief contains 1,751 words,
excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii), and
complies with the type style requirements of Fed. R. App. P. 32(a)(6), because it
New Roman).
CERTIFICATE OF SERVICE
I hereby certify that on May 25, 2017, a copy of the foregoing Reply In
Support of Petition for a Writ of Mandamus was served through filing on the
Courts electronic record filing system and also on counsel for Respondents
johnmfirzgerald@earthlink.net