Case 2:19-cv-01059-RAJ-JRC Document 65 Filed 04/06/20 Page 1 of 5

1 The Honorable Richard A. Jones

2

7
IN THE UNITED STATES DISTRICT COURT
8 FOR THE WESTERN DISTRICT OF WASHINGTON
AT SEATTLE
9
STATE OF WASHINGTON, et al.,
10

11 Plaintiffs, NO. 2:19-cv-01059-RAJ

12 v.
PLAINTIFFS COER AND PAULA
13 UNITED STATES DEPARTMENT OF SPINA’S PROPOSED BRIEFING
THE NAVY, et al., SCHEDULE FOR SUMMARY
14
JUDGMENT MOTIONS
15 Defendants.

16 Pursuant to the Court’s Scheduling Order (Dkt. 22), plaintiffs COER and Paula Spina
17 (collectively, “COER”) submit this proposal for a schedule for filing and briefing summary judgment
18
motions. COER and the other parties met and conferred via telephone on March 27, 2020 and
19
subsequently via email regarding a proposed joint summary judgment briefing schedule, but were
20
unable to agree on how briefing should proceed. COER, therefore, submits its own proposed schedule
21

22 below. The grounds for the parties’ disagreement were described in Plaintiffs’ Proposed Schedule for

23 Further Proceedings (Dkt. 19 at 2–4, paragraph 2) and noted by the court in its Scheduling Order (Dkt.

24 22 at 2–3). As summarized in Dkt. 19 at 3: “The net result of the Navy’s proposal is that despite
25 plaintiffs having the ultimate burden of proof, the Navy will get the last word in the briefing. This is
26

Bricklin & Newman, LLP

Attorneys at Law
COER’S PROPOSED BRIEFING SCHEDULE - 1 1424 Fourth Avenue, Suite 500
NO. 2:19-cv-01059-RAJ Seattle WA 98101
Tel. (206) 264-8600
Fax. (206) 264-9300
 Case 2:19-cv-01059-RAJ-JRC Document 65 Filed 04/06/20 Page 2 of 5

1 unfair and the reason the parties have been unable to agree on a briefing schedule.” Despite great
2 efforts by the party to resolve the issue, the issue remains unresolved.
3
The Navy has told us that if it does not get its own reply, it will not be able to raise new issues
4
we raise in our reply. But we are not allowed to raise new issues in our reply. The Navy’s fears are
5
imagined.
6

7 The Navy has told us that the schedule it proposes is consistent with the schedule that has been

8 used in other cases. That does not make it appropriate here. We have no basis for evaluating the

9 position taken by other parties in other cases.

10
The Navy also has expressed concern that if it does not get the last word in the summary
11
judgment briefing, its cross-motion for summary judgment might be left unresolved and the case left
12
in limbo. The Navy can (and should) cross-move for summary judgment, but it need not have the last
13
word in the briefing to obtain a ruling on its cross-motion. Because this is a record review case under
14

15 the APA, denial of plaintiffs’ motion for summary judgment would necessitate a grant of summary

16 judgment in favor of the government, with or without a cross-motion from the Navy.
17 Under the APA, this court’s review is confined to the facts in an administrative record.
18
Therefore, the facts are not in dispute. The issues to be decided are pure issues of law or the application
19
of law to the undisputed facts.
20
In other types of civil actions, the usual rule is that denial of summary judgment for one party
21

22 does not automatically require granting summary judgment to the other. But numerous courts have

23 recognized that where the parties agree the facts are undisputed and they agree on the legal issues,

24 denial of one party’s summary judgment motion necessarily requires granting the other party’s motion
25 for summary judgment. “As this is a record review case, ‘we may direct that summary judgment be
26
granted to either party based upon our de novo review of the administrative record.’ Lands Council v.
Bricklin & Newman, LLP
Attorneys at Law
COER’S PROPOSED BRIEFING SCHEDULE - 2 1424 Fourth Avenue, Suite 500
NO. 2:19-cv-01059-RAJ Seattle WA 98101
Tel. (206) 264-8600
Fax. (206) 264-9300
 Case 2:19-cv-01059-RAJ-JRC Document 65 Filed 04/06/20 Page 3 of 5

1 Powell, 395 F.3d 1019, 1026 (9th Cir. 2005) (as amended).” Great Basin Mine Watch v. Hankins, 456
2 F.3d 955, 961 (9th Cir. 2006). As the Fifth Circuit has explained:
3
As a general rule the filing by both parties of opposing motions for summary judgment
4 will not warrant a court's granting either party's motion if, indeed, there exists a genuine
factual dispute concerning a material issue. Bricklayers Local 15 v. Stuart Plastering
5 Co., 5 Cir. 1975, 512 F.2d 1017; Hindes v. United States, 5 Cir. 1964, 326 F.2d 150,
152. As explained in Stuart Plastering, supra, the rationale of this rule lies in the fact
6 that each party may be basing its motion on a different legal theory dependent on a
7 different set of material facts.
When the parties proceed on the same legal theory and on the same material
8 facts, however, the basis for the rule disappears. Thus, in qualifying the general
rule, this Court has said:
9
Nonetheless, cross motions may be probative of the non-existence of a
10
factual dispute when, as here, they demonstrate a basic agreement
11 concerning what legal theories and material facts are dispositive.

12 Bricklayers Local 15 v. Stuart Plastering Co., 5 Cir. 1975, 512 F.2d 1017, 1023.

13 Schlytter v. Baker, 580 F.2d 848, 849–50 (5th Cir. 1978) (emphasis supplied). See also, United
14
Nuclear Corp. v. Cannon, 553 F. Supp. 1220, 1226 (D.R.I. 1982) (“Cross-motions may be probative
15
of the non-existence of a factual dispute when, as in the case at bar, they demonstrate a basic agreement
16
concerning the relevant legal theories and the dispositive facts”). Indeed, this can be the result even
17
where one party did not formally cross move for summary judgment: “Although no formal cross-
18

19 motion for summary judgment has been filed on behalf of these plaintiffs, the Court finds that it may

20 proceed as though this were the case.” Stewart v. Jozwiak, 399 F. Supp. 574, 576 (E.D. Wis. 1975).
21 The Navy has not been willing to accept that if this were a typical civil action, its filing of a
22
cross motion for summary judgment would shift the burden of proof to the Navy. Instead, recognizing
23
this is not a typical civil action, the Navy wants the burden of proof to stay with the plaintiffs. But the
24
Navy wants to have the last word in the briefing anyway. The Navy should not be able to have it both
25

26 ways. See Dkt. 19 at 3.

Bricklin & Newman, LLP

Attorneys at Law
COER’S PROPOSED BRIEFING SCHEDULE - 3 1424 Fourth Avenue, Suite 500
NO. 2:19-cv-01059-RAJ Seattle WA 98101
Tel. (206) 264-8600
Fax. (206) 264-9300
 Case 2:19-cv-01059-RAJ-JRC Document 65 Filed 04/06/20 Page 4 of 5

1 Therefore, plaintiffs COER and Spina propose the following schedule:

2 COER’s Proposed Briefing Schedule for Summary Judgment Motions
3
1. Plaintiffs’ motions for summary judgment shall be filed on or before June 12, 2020.
4
2. Defendants’ brief in response to plaintiffs’ motions shall be filed on or before July
5
31, 2020. The Court will treat the defendants’ opposition as a cross-motion and will grant summary
6

7 judgment to the defendants if it denies the plaintiffs’ motions for summary judgment. Defendants

8 may consolidate their responses into a single brief or file them separately.

9 3. Plaintiffs’ reply briefs in support of their motions for summary judgment shall be
10
filed on or before September 11, 2020.
11
4. If defendants cross-move for summary judgment raising affirmative defenses, such
12
motion is due on July 31, 2020. In that case, plaintiffs’ responses to the cross-motion shall be due
13
on or before September 11, 2020 and defendants’ reply briefs limited to their affirmative defenses
14

15 would be due on October 2, 2020.

16 5. If the Court has not issued its order on plaintiffs COER’s and Paula Spina’s motion
17 for preliminary injunction (Dkt. 29) by four weeks prior to the beginning of briefing on summary
18
judgment, then any party may move to revise the summary judgment briefing schedule.
19
Respectfully submitted this 6th day of April, 2020.
20 BRICKLIN & NEWMAN, LLP
By: /s/ David A. Bricklin
21 /s/ Zachary K. Griefen
22 David A. Bricklin, WSBA No. 7583
Zachary K. Griefen, WSBA No. 48608
23 1424 Fourth Avenue, Suite 500
Seattle, WA 98101
24 Telephone: 206-264-8600
Facsimile: 206-264-9300
25 E-mail: bricklin@bnd-law.com
26 E-mail: griefen@bnd-law.com
Attorneys for COER and Paula Spina
Bricklin & Newman, LLP
Attorneys at Law
COER’S PROPOSED BRIEFING SCHEDULE - 4 1424 Fourth Avenue, Suite 500
NO. 2:19-cv-01059-RAJ Seattle WA 98101
Tel. (206) 264-8600
Fax. (206) 264-9300
 Case 2:19-cv-01059-RAJ-JRC Document 65 Filed 04/06/20 Page 5 of 5

1 CERTIFICATE OF SERVICE
2 I hereby certify that on April 6, 2020, I served a copy of the foregoing on counsel of record

3 electronically through the court’s CM/ECF system.

4
By: / s/ Peggy S. Cahill
5 Peggy S. Cahill
Legal Assistant
6 Bricklin & Newman, LLP
1424 Fourth Avenue, Suite 500
7
Seattle WA 98101
8 cahill@bnd-law.com
Phone: 206.264.8600
9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

Bricklin & Newman, LLP

Attorneys at Law
COER’S PROPOSED BRIEFING SCHEDULE - 5 1424 Fourth Avenue, Suite 500
NO. 2:19-cv-01059-RAJ Seattle WA 98101
Tel. (206) 264-8600
Fax. (206) 264-9300