La Posta v. Donald Trump, et al
| CHAD F. WOLF, Acting U.S. Secretary of Homeland Security, in his official capacity, TODD T. SEMONITE, Commanding General of the U.S. Army Corps of Engineers, in his official capacity, MARK T. ESPER, U.S. Secretary of Defense, in his official capacity and DONALD J. TRUMP, President of the United States, in his official capacity |
| LA POSTA BAND OF DIEGUENO MISSION INDIANS OF THE LA POSTA RESERVATION, On behalf of itself and on behalf of its members as parens patriae |
| 20-55941 |
| September 9, 2020 |
| U.S. Court of Appeals, Ninth Circuit |
| Other |
Docket Report
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| Filing 48 FILED MEMORANDUM DISPOSITION (A. WALLACE TASHIMA, RICHARD C. TALLMAN and MARY H. MURGUIA) AFFIRMED. FILED AND ENTERED JUDGMENT. [11881542] (JN) [Entered: 11/04/2020 10:24 AM] |
| Filing 47 ARGUED AND SUBMITTED TO A. WALLACE TASHIMA, RICHARD C. TALLMAN and MARY H. MURGUIA. [11873439] (ORW) [Entered: 10/27/2020 03:36 PM] |
| Filing 46 Filed order (A. WALLACE TASHIMA, RICHARD C. TALLMAN and MARY H. MURGUIA) Appellees motion to supplement the record on appeal is GRANTED (Doc. [ # 44 ].) At the hearing on October 27, Counsel should be prepared to focus their oral argument on irreparable harm absent a preliminary injunction. Counsel should also be prepared to respond to questions, if any, on any other issues in the case. [11870507] (WL) [Entered: 10/23/2020 03:48 PM] |
| Filing 45 Filed (ECF) Appellees Doctor Mark T. Esper, Todd T. Semonite, Donald J. Trump and Chad F. Wolf citation of supplemental authorities. Date of service: 10/23/2020. [11870473] [20-55941] (Murphy, Anne) [Entered: 10/23/2020 03:36 PM] |
| Filing 44 Filed (ECF) Appellees Doctor Mark T. Esper, Todd T. Semonite, Donald J. Trump and Chad F. Wolf Motion to supplement record on appeal. Date of service: 10/21/2020. [11867661] [20-55941] (Murphy, Anne) [Entered: 10/21/2020 04:09 PM] |
| Filing 43 Filed (ECF) Appellees Doctor Mark T. Esper, Todd T. Semonite, Donald J. Trump and Chad F. Wolf Correspondence: Case Scheduled for Oral Argument on October 27, 2020. Date of service: 10/21/2020. [11867646] [20-55941]--[COURT UPDATE: Updated docket text to reflect correct ECF filing type. 10/21/2020 by SLM] (Murphy, Anne) [Entered: 10/21/2020 04:04 PM] |
| Filing 42 Filed (ECF) Acknowledgment of hearing notice by Attorney Anne Murphy for Appellees Doctor Mark T. Esper, Todd T. Semonite, Donald J. Trump and Chad F. Wolf. Hearing in San Francisco on 10/27/2020 at 2:30 P.M. (Courtroom: Courtroom 2). Filer sharing argument time: No. (Argument minutes: 15.) Special accommodations: NO. Filer admission status: I certify that I am admitted to practice before this Court. Date of service: 10/19/2020. [11863430] [20-55941] (Murphy, Anne) [Entered: 10/19/2020 11:03 AM] |
| Filing 41 Filed (ECF) Acknowledgment of hearing notice by Attorney Mr. Simon W. Gertler, Esquire for Appellant La Posta Band of Diegueno Mission Indians of the La Posta Reservation. Hearing in San Francisco on 10/27/2020 at 2:30 P.M. (Courtroom: N/A - Virtual Attendance (Courtroom 2, 3rd Fl)). Filer sharing argument time: No. (Argument minutes: 15.) Special accommodations: NO. Filer admission status: I certify that I am admitted to practice before this Court. Date of service: 10/19/2020. [11863261] [20-55941] (Gertler, Simon) [Entered: 10/19/2020 10:15 AM] |
| Filing 40 COURT DELETED INCORRECT/DUPLICATE ENTRY. Notice about deletion sent to case participants registered for electronic filing. Correct Entry: [39]. [11862281]. [20-55941] (AW) [Entered: 10/16/2020 03:38 PM] |
| Filing 39 Notice of Oral Argument on Tuesday, October 27, 2020 - 2:30 P.M. - Courtroom 2 - Scheduled Location: San Francisco CA. The hearing time is the local time zone at the scheduled hearing location, even if the argument is fully remote. View the Oral Argument Calendar for your case # here . NOTE: Although your case is currently scheduled for oral argument, the panel may decide to submit the case on the briefs instead. See Fed. R. App. P. 34. Absent further order of the court, if the court does determine that oral argument is required in this case, any argument may be held remotely with all of the judges and attorneys appearing by video or telephone. Travel to a courthouse will not be required. If the panel determines that it will hold oral argument, the Clerk's Office will be in contact with you directly at least two weeks before the set argument date to make any necessary arrangements for remote appearance. Be sure to review the # GUIDELINES for important information about your hearing, including when to be available (30 minutes before the hearing time) and when and how to submit additional citations (filing electronically as far in advance of the hearing as possible). If you are the specific attorney or self-represented party who will be arguing, use the # ACKNOWLEDGMENT OF HEARING NOTICE filing type in CM/ECF no later than 21 days before Tuesday, October 27, 2020. No form or other attachment is required. If you will not be arguing, do not file an acknowledgment of hearing notice.[11862280]. [20-55941] (AW) [Entered: 10/16/2020 03:38 PM] |
| Filing 38 Filed clerk order (Deputy Clerk: WL): In its Fed. R. App. P. 28(j) letter, filed on October 14, 2020, Plaintiff-Appellant represents that this Courts decision in Sierra Club v. Trump, Case Nos. 19-17501, 19-17502, and 20-15044 (Sierra Club III), issued on October 9, 2020, does not concern the particular sections of border wall at issue in this case, and thus has no mitigating effect on the Tribes injuries. Defendants-Appellees are directed to file a responsive letter specifically addressing the following: 1. Identify for the Court which sections, if any, of border wall construction are impacted by the permanent injunction upheld in Sierra Club III in the areas identified as San Diego Project 4, San Diego Project 11, El Centro Project 5, and El Centro Project 9. 2. Explain whether there is any overlap between those sections and the sections at issue in this case, identified as San Diego A and El Centro A, as well as whether halting construction in the areas specified in Sierra Club III is expected to have any impact on the construction at issue in this case. 3. Identify for the Court how much of the construction at issue in this case is replacing existing fencing and how much is new construction in previously unfenced sections of the border. The letter shall not exceed 10 pages in length and shall be filed and served by October 21, 2020. [11861929] (WL) [Entered: 10/16/2020 01:59 PM] |
| Filing 37 Filed clerk order (Deputy Clerk: WL): Appellants emergency motion for injunction pending appeal is DENIED (Doc. [ # 22 ]). IT IS ORDERED that oral argument on the merits be advanced to Tuesday, October 27, 2020 at 2:30 p.m. in San Francisco, California, at which time argument will be heard virtually. [11861907] (WL) [Entered: 10/16/2020 01:54 PM] |
| Filing 36 Filed (ECF) Appellant La Posta Band of Diegueno Mission Indians of the La Posta Reservation citation of supplemental authorities. Date of service: 10/14/2020. [11858317] [20-55941] (LaPena, Michelle) [Entered: 10/14/2020 12:28 PM] |
| Filing 35 Filed clerk order (Deputy Clerk: AC):The court is in receipt of briefing on the appellants emergency motion for an injunction pending appeal. The court intends to issue a ruling on this motion as soon as possible. [11853338] (SVG) [Entered: 10/08/2020 05:37 PM] |
| Filing 34 Filed (ECF) Appellant La Posta Band of Diegueno Mission Indians of the La Posta Reservation reply to response (). Date of service: 10/07/2020. [11851004] [20-55941] (LaPena, Michelle) [Entered: 10/07/2020 01:46 PM] |
| Filing 33 Received 6 paper copies of Answering Brief [ # 24 ] filed by Appellees. [11850575] (SD) [Entered: 10/07/2020 11:16 AM] |
| Filing 32 Received 3 paper copies of supplemental excerpts of record [ # 25 ] in 1 volume(s) filed by Appellees. [11850551] (LA) [Entered: 10/07/2020 11:09 AM] |
| Filing 31 Received 6 paper copies of Reply Brief [ # 28 ] filed by La Posta Band of Diegueno Mission Indians of the La Posta Reservation. [11849546] (SD) [Entered: 10/06/2020 02:47 PM] |
| Filing 30 Notice of Oral Argument on Friday, December 11, 2020 - 09:30 A.M. - Courtroom 2 - Scheduled Location: San Francisco CA. The hearing time is the local time zone at the scheduled hearing location, even if the argument is fully remote. View the Oral Argument Calendar for your case # here . NOTE: Although your case is currently scheduled for oral argument, the panel may decide to submit the case on the briefs instead. See Fed. R. App. P. 34. Absent further order of the court, if the court does determine that oral argument is required in this case, any argument may be held remotely with all of the judges and attorneys appearing by video or telephone. Travel to a courthouse will not be required. If the panel determines that it will hold oral argument, the Clerk's Office will be in contact with you directly at least two weeks before the set argument date to make any necessary arrangements for remote appearance. Be sure to review the # GUIDELINES for important information about your hearing, including when to be available (30 minutes before the hearing time) and when and how to submit additional citations (filing electronically as far in advance of the hearing as possible). If you are the specific attorney or self-represented party who will be arguing, use the # ACKNOWLEDGMENT OF HEARING NOTICE filing type in CM/ECF no later than 21 days before Friday, December 11, 2020. No form or other attachment is required. If you will not be arguing, do not file an acknowledgment of hearing notice.[11849075]. [20-55941] (AW) [Entered: 10/06/2020 11:38 AM] |
| Filing 29 Filed clerk order: The reply brief [ # 28 ] submitted by La Posta Band of Diegueno Mission Indians of the La Posta Reservation is filed. Appellant is ordered to file 6 copies of the brief in paper format for delivery to the Court by 12:00 p.m. on October 8, 2020, accompanied by certification, attached to the end of each copy of the brief, that the brief is identical to the version submitted electronically.Cover color: gray. The paper copies shall be submitted to the principal office of the Clerk. [11848602] (KT) [Entered: 10/06/2020 08:59 AM] |
| Filing 28 Submitted (ECF) Reply Brief for review. Submitted by Appellant La Posta Band of Diegueno Mission Indians of the La Posta Reservation. Date of service: 10/05/2020. [11848184] [20-55941] (LaPena, Michelle) [Entered: 10/05/2020 05:28 PM] |
| Filing 27 Filed (ECF) Appellees Doctor Mark T. Esper, Todd T. Semonite, Donald J. Trump and Chad F. Wolf response opposing motion ([ # 22 ] Motion (ECF Filing), [ # 22 ] Motion (ECF Filing)). Date of service: 10/05/2020. [11848007] [20-55941] (Murphy, Anne) [Entered: 10/05/2020 04:17 PM] |
| Filing 26 Filed clerk order: The answering brief [ # 24 ] submitted by appellees is filed. Appellees are ordered to file 6 copies of the brief in paper format for delivery to the Court by 12:00 p.m. on October 7, 2020, accompanied by certification, attached to the end of each copy of the brief, that the brief is identical to the version submitted electronically. Cover color: red. The supplemental excerpts of record [ # 25 ] submitted by appellees are filed. Appellees are ordered to file 3 copies of the excerpts in paper format securely bound on the left side, with white covers for delivery to the Court by 12:00 p.m. on October 7, 2020. The paper copies shall be submitted to the principal office of the Clerk. [11846687] (KT) [Entered: 10/05/2020 07:40 AM] |
| Filing 25 Submitted (ECF) supplemental excerpts of record. Submitted by Appellees Doctor Mark T. Esper, Todd T. Semonite, Donald J. Trump and Chad F. Wolf. Date of service: 10/02/2020. [11846263] [20-55941] (Murphy, Anne) [Entered: 10/02/2020 04:55 PM] |
| Filing 24 Submitted (ECF) Answering Brief for review. Submitted by Appellees Doctor Mark T. Esper, Todd T. Semonite, Donald J. Trump and Chad F. Wolf. Date of service: 10/02/2020. [11846255] [20-55941] (Murphy, Anne) [Entered: 10/02/2020 04:52 PM] |
| Filing 23 Filed clerk order (Deputy Clerk: MN): The court has received appellants emergency motion for an injunction pending appeal. The response to the motion remains due October 5, 2020 pursuant to Federal Rule of Appellate Procedure 27. An optional reply in support of the motion is due October 7, 2020. The previously established briefing schedule remains in effect. [11837292] (WL) [Entered: 09/25/2020 02:04 PM] |
| Filing 22 Filed (ECF) Appellant La Posta Band of Diegueno Mission Indians of the La Posta Reservation EMERGENCY Motion for injunction pending appeal. Date of service: 09/23/2020. [11834850] [20-55941] (LaPena, Michelle) [Entered: 09/23/2020 03:59 PM] |
| Filing 21 Received 6 paper copies of Opening Brief [ # 17 ] filed by La Posta Band of Diegueno Mission Indians of the La Posta Reservation. [11833482] (SD) [Entered: 09/22/2020 05:15 PM] |
| Filing 20 Received 3 paper copies of excerpts of record [ # 18 ] in 5 volume(s) filed by Appellant La Posta Band of Diegueno Mission Indians of the La Posta Reservation. [11833345] (KWG) [Entered: 09/22/2020 03:56 PM] |
| Filing 19 Filed clerk order: The opening brief [ # 17 ] submitted by La Posta Band of Diegueno Mission Indians of the La Posta Reservation is filed. Appellant is ordered to file 6 copies of the brief in paper format for delivery to the Court by 12:00 p.m. on September 22, 2020, accompanied by certification, attached to the end of each copy of the brief, that the brief is identical to the version submitted electronically. Cover color: Blue. The excerpts of record [ # 18 ] submitted by La Posta Band of Diegueno Mission Indians of the La Posta Reservation are filed. Appellant is ordered to file 3 copies of the excerpts in paper format securely bound on the left side, with white covers for delivery to the Court by 12:00 p.m. on September 22, 2020. The paper copies shall be submitted to the principal office of the Clerk. [11829454] (KT) [Entered: 09/18/2020 02:21 PM] |
| Filing 18 Submitted (ECF) excerpts of record. Submitted by Appellant La Posta Band of Diegueno Mission Indians of the La Posta Reservation. Date of service: 09/17/2020. [11828562] [20-55941]--[COURT UPDATE: attached corrected PDFs of excerpts of record. 09/18/2020 by KT] (LaPena, Michelle) [Entered: 09/17/2020 11:21 PM] |
| Filing 17 Submitted (ECF) Opening Brief for review. Submitted by Appellant La Posta Band of Diegueno Mission Indians of the La Posta Reservation. Date of service: 09/17/2020. [11828560] [20-55941] (LaPena, Michelle) [Entered: 09/17/2020 10:56 PM] |
| Filing 16 Terminated unregistered attorney Andrew I. Warden for Chad F. Wolf, Donald J. Trump, Todd T. Semonite and Mark T. Esper in 20-55941. Parties have alternate counsel. [11827536] (SVG) [Entered: 09/17/2020 11:27 AM] |
| Filing 15 Filed order (DIARMUID F. O'SCANNLAIN and MORGAN B. CHRISTEN) Appellants unopposed motion to expedite this appeal (Docket Entry No. [ # 9 ]) is granted. Appellants opening brief is due September 17, 2020. Appellees answering brief is due October 2, 2020. The optional reply brief is due October 4, 2020. The Clerk shall schedule this case to be heard in December 2020. See 9th Cir. Gen. Order 3.3(g). [11826720] (WL) [Entered: 09/16/2020 03:56 PM] |
| Filing 14 Filed order MEDIATION (VLS): The Mediation Program of the Ninth Circuit Court of Appeals facilitates settlement while appeals are pending. See Fed. R. App. P. 33 and Ninth Cir. R. 33-1. By September 29, 2020, counsel for all parties intending to file briefs in this matter are requested to inform Roxane G. Ashe, Circuit Mediator, by email at roxane_ashe@ca9.uscourts.gov, of their clients views on whether the issues on appeal or the underlying dispute might be appropriate for settlement presently or in the foreseeable future. Counsel are requested to include the Ninth Circuit case number in the subject line. This communication will be kept confidential, if requested, from the other parties in the case. This communication shall not be filed with the court. For more detailed information about the Mediation Program and its procedures generally, please see Mediation Program web site: www.ca9.uscourts.gov/mediation. The existing briefing schedule remains in effect. [11825613] (WL) [Entered: 09/16/2020 08:42 AM] |
| Filing 13 Added Attorney(s) Simon W. Gertler for party(s) Appellant La Posta Band of Diegueno Mission Indians of the La Posta Reservation, in case 20-55941. [11825036] (JFF) [Entered: 09/15/2020 02:49 PM] |
| Filing 12 Filed (ECF) notice of appearance of Simon W. Gertler (Rosette, LLP 1415 L St. Suite 450 Sacramento CA 95814) for Appellant La Posta Band of Diegueno Mission Indians of the La Posta Reservation. Date of service: 09/15/2020. (Party was previously proceeding with counsel.) [11825003] [20-55941] (Gertler, Simon) [Entered: 09/15/2020 02:38 PM] |
| Filing 11 The Mediation Questionnaire for this case was filed on 09/15/2020. To submit pertinent confidential information directly to the Circuit Mediators, please use the following # link . Confidential submissions may include any information relevant to mediation of the case and settlement potential, including, but not limited to, settlement history, ongoing or potential settlement discussions, non-litigated party related issues, other pending actions, and timing considerations that may impact mediation efforts.[11824654]. [20-55941] (AD) [Entered: 09/15/2020 12:44 PM] |
| Filing 10 Filed (ECF) Appellant La Posta Band of Diegueno Mission Indians of the La Posta Reservation Mediation Questionnaire. Date of service: 09/15/2020. [11824138] [20-55941] (LaPena, Michelle) [Entered: 09/15/2020 10:07 AM] |
| Filing 9 Filed (ECF) Appellant La Posta Band of Diegueno Mission Indians of the La Posta Reservation Unopposed Motion to expedite case. Date of service: 09/12/2020. [11821589] [20-55941] (LaPena, Michelle) [Entered: 09/12/2020 05:35 PM] |
| Filing 8 Added Attorney(s) Anne Murphy for party(s) Appellee Mark T. Esper Appellee Todd T. Semonite Appellee Chad F. Wolf Appellee Donald J. Trump, in case 20-55941. [11820499] (JFF) [Entered: 09/11/2020 11:30 AM] |
| Filing 7 Added Attorney(s) H. Thomas Byron III for party(s) Appellee Mark T. Esper Appellee Todd T. Semonite Appellee Chad F. Wolf Appellee Donald J. Trump, in case 20-55941. [11820480] (JFF) [Entered: 09/11/2020 11:27 AM] |
| Filing 6 Filed (ECF) notice of appearance of Anne Murphy (United States Department of Justice, CIV/APP, Room 7523, 950 Pennsylvania Avenue, N.W., Washington DC 20530) for Appellees Doctor Mark T. Esper, Todd T. Semonite, Donald J. Trump and Chad F. Wolf. Date of service: 09/10/2020. (Party was previously proceeding with counsel.) [11819766] [20-55941] (Murphy, Anne) [Entered: 09/10/2020 06:41 PM] |
| Filing 5 Filed (ECF) notice of appearance of H. Thomas Byron III (Civil Division, Appellate Staff, U.S. Department of Justice, 950 Pennsylvania Ave., NW, Washington DC 20530) for Appellees Doctor Mark T. Esper, Todd T. Semonite, Donald J. Trump and Chad F. Wolf. Date of service: 09/10/2020. (Party was previously proceeding with counsel.) [11819745] [20-55941] (Byron, H. Thomas) [Entered: 09/10/2020 05:49 PM] |
| Filing 4 Filed clerk order (Deputy Clerk: TSP): The appeal filed September 8, 2020 is a preliminary injunction appeal. Accordingly, Ninth Circuit Rule 3-3 shall apply. The mediation questionnaire is due three days after the date of this order. If they have not already done so, within 7 calendar days after the filing date of this order, the parties shall make arrangements to obtain from the court reporter an official transcript of proceedings in the district court that will be included in the record on appeal. The briefing schedule shall proceed as follows: the opening brief and excerpts of record are due not later than October 6, 2020; the answering brief is due November 3, 2020 or 28 days after service of the opening brief, whichever is earlier; and the optional reply brief is due within 21 days after service of the answering brief. See 9th Cir. R. 3-3(b). No streamlined extensions of time will be approved. See 9th Cir. R. 31- 2.2(a)(3). Any request for an extension of time to file a brief must be made by written motion under Ninth Circuit Rule 31-2.2(b). Failure to file timely the opening brief shall result in the automatic dismissal of this appeal by the Clerk for failure to prosecute. See 9th Cir. R. 42-1. [11819488] (WL) [Entered: 09/10/2020 03:38 PM] |
| Filing 3 Added Attorney(s) Michael Shih for party(s) Appellee Mark T. Esper Appellee Todd T. Semonite Appellee Chad F. Wolf Appellee Donald J. Trump, in case 20-55941. [11818823] (JFF) [Entered: 09/10/2020 10:54 AM] |
| Filing 2 Filed (ECF) notice of appearance of Michael Shih (U.S. Department of Justice, Civil Division, Appellate Staff, 950 Pennsylvania Avenue NW, Room 7268, Washington, DC 20530) for Appellees Doctor Mark T. Esper, Todd T. Semonite, Donald J. Trump and Chad F. Wolf. Date of service: 09/10/2020. (Party was previously proceeding with counsel.) [11818785] [20-55941] (Shih, Michael) [Entered: 09/10/2020 10:38 AM] |
| Filing 1 DOCKETED CAUSE AND ENTERED APPEARANCES OF COUNSEL. SEND MQ: Yes. The schedule is set as follows: To be set. Preliminary Injunction Appeal, C.R. 3-3. [11817755] (JBS) [Entered: 09/09/2020 02:07 PM] |
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| Defendant / appellee: CHAD F. WOLF, Acting U.S. Secretary of Homeland Security, in his official capacity | |
| Represented By: | Andrew I. Warden Esquire |
| Represented By: | Michael Shih |
| Represented By: | H. Thomas Byron III |
| Represented By: | Anne Murphy |
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| Defendant / appellee: TODD T. SEMONITE, Commanding General of the U.S. Army Corps of Engineers, in his official capacity | |
| Represented By: | Andrew I. Warden Esquire |
| Represented By: | Michael Shih |
| Represented By: | H. Thomas Byron III |
| Represented By: | Anne Murphy |
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| Defendant / appellee: MARK T. ESPER, U.S. Secretary of Defense, in his official capacity | |
| Represented By: | Andrew I. Warden Esquire |
| Represented By: | Michael Shih |
| Represented By: | H. Thomas Byron III |
| Represented By: | Anne Murphy |
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| Defendant / appellee: DONALD J. TRUMP, President of the United States, in his official capacity | |
| Represented By: | Andrew I. Warden Esquire |
| Represented By: | Michael Shih |
| Represented By: | H. Thomas Byron III |
| Represented By: | Anne Murphy |
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| Plaintiff / appellant: LA POSTA BAND OF DIEGUENO MISSION INDIANS OF THE LA POSTA RESERVATION, On behalf of itself and on behalf of its members as parens patriae | |
| Represented By: | Michelle LaPena |
| Represented By: | Robert A. Rosette |
| Represented By: | Simon W. Gertler Esquire |
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