Case 3:20-cv-01866-IM Document 22 Filed 11/18/20 Page 1 of 7
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`Clifford S. Davidson, OSB No. 125378
`csdavidson@swlaw.com
`SNELL & WILMER L.L.P.
`One Centerpointe Drive, Suite 170
`Lake Oswego, OR 97035
`Telephone: (503) 624-6800
`Facsimile: (503) 624-6888
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`Special Assistant Attorney General on behalf of
`Defendants Katy Coba, in her Official Capacity as State
`Chief Operating Officer and Director of the Oregon
`Department of Administrative Services; and Oregon
`Department of Administrative Services.
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`Additional Counsel of Record Listed on Signature Page.
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`UNITED STATES DISTRICT COURT
`DISTRICT OF OREGON
`PORTLAND DIVISION
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`GREAT NORTHERN RESOURCES, INC.,
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`Plaintiff,
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`vs.
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`KATY COBA, in her Official Capacity as
`State Chief Operating Officer and Director of
`the Oregon Department of Administrative
`Services; OREGON DEPARTMENT OF
`ADMINISTRATIVE SERVICES; THE
`CONTINGENT; and DOES 1-10,
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`Defendants.
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`Case No. 3:20-cv-01866-IM
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`Defendants’
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`JOINT REPLY REGARDING
`WHETHER PLAINTIFF CAN SHOW
`IRREPARABLE INJURY
`NECESSARY FOR A PRELIMINARY
`INJUNCTION
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`[Pursuant to the Court’s Order of
`November 10, 2020.]
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`DEFENDANTS’ REPLY
`RE IRREPARABLE INJURY
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`Case 3:20-cv-01866-IM Document 22 Filed 11/18/20 Page 2 of 7
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`Consistent with its agenda, Great Northern Resources, Inc. misperceives the past and
`future. Oregon received roughly $1.39 billion from the federal government and allocated a small
`fraction to The Oregon Cares Fund for Black Relief and Resiliency. That fund exists because,
`although COVID-19 was causing disproportionate harm in Black communities, ostensibly race-
`neutral government aid was not reaching Black Oregonians in proportion to their suffering. (Dkt.
`1-2.) Notwithstanding those needs of Black Oregonians, Great Northern’s application to the
`Fund was denied without consideration of race. But even if Great Northern were to prove that the
`denial was pretextual, and this Court were either to award damages or mandate that The
`Contingent set aside its bar on repeat applications and consider a future application by Great
`Northern, the proposed deposit of $200,000 ensures that any alleged harm is fully redressed in
`the ordinary course. Great Northern faces no imminent, future injury.
`I.
`GREAT NORTHERN HAS NOT MET ITS BURDEN.
`A.
`Great Northern Must Make a Clear Showing of Future Harm.
`Great Northern failed to make a “clear showing” of irreparable harm. Mazurek v.
`Armstrong, 520 U.S. 968, 972 (1997). As Defendants explained, a party seeking a preliminary
`injunction must satisfy Article III standing and establish that it is “likely to suffer future injury.”
`City of Los Angeles v. Lyons, 461 U.S. 95 (1983). Great Northern’s Response ignores Lyons and
`its progeny, instead relying on insufficient generalized assertions of unproven constitutional
`violations.
`As Defendants told the Court, ongoing constitutional injury may be irreparable for
`purposes of injunctive relief. (Dkt. 18 at 11-12.) The authorities Great Northern recites primarily
`stand for this tenet. (See Dkt. 21 at 4-6.) These decisions do not assist Great Northern as they do
`not address the key issue: plaintiff can assert no cognizable claim of future harm. Indeed, Great
`Northern’s own authorities do not stand for the overstated position it urges – that an assertion of
`past constitutional injury satisfies a showing of future irreparable harm. See, e.g., Back v. Carter,
`933 F. Supp. 738, 754 (N.D. Ind. 1996) (“When violations of constitutional rights are alleged,
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`Snell & Wilmer
`One Centerpointe Drive Ste 170
`Lake Oswego, Oregon 97035
`503.624.6800
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`Page 1 – DEFENDANTS’ REPLY
` RE IRREPARABLE HARM
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`Case 3:20-cv-01866-IM Document 22 Filed 11/18/20 Page 3 of 7
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`further showing of irreparable injury may not be required if what is at stake is not monetary
`damages.”) (emphasis added); Exodus Refugee Immigration, Inc. v. Pence, 165 F. Supp. 3d 718,
`738 (S.D. Ind.), aff’d, 838 F.3d 902 (7th Cir. 2016) (“[F]or some kinds of constitutional
`violations, irreparable harm is presumed.”) (emphasis added).
`Great Northern misplaces its reliance on Silver Sage Partners, Ltd. v. City of Desert Hot
`Springs, 251 F.3d 814 (9th Cir. 2001), for the premise that an assertion of past harm suffices to
`show future irreparable harm. Silver Sage Partners involved the issuance of a permanent
`injunction after a jury trial and thus does not apply to preliminary relief. See Arizona Recovery
`Hous. Ass'n v. Arizona Dep’t of Health Servs., 462 F. Supp. 3d 990, 999 (D. Ariz. 2020)
`(recognizing that the Silver Sage Partners holding “cannot be squared with Winter’s instruction
`that a preliminary injunction cannot issue on the mere possibility of harm”).
`The characterizations of constitutional injury as irreparable and the like derive from
`situations for which money damages are in fact inadequate. See e.g., Back, 933 F. Supp. 738
`(equal protection violation in context of judicial nominating commission). That is not this case.
`B.
`Great Northern Allegedly Has Suffered a Completed Harm, which Cannot
`Support Injunctive Relief.
`The Contingent produced evidence that Great Northern cannot reapply to the Fund after
`the denial of its application. Great Northern was on notice that if its application was rejected,
`then it would not have an opportunity to reapply. (Dkt. 19 [Sand Decl.] at Ex. A.) As Defendants
`explained, the inability to reapply means that no future injury justifying a preliminary injunction
`is possible. (Dkt. 18 at 9-11.) Great Northern’s completed purported harm cannot support
`preliminary injunctive relief.
`Great Northern argues that the federal government may sometime in the future provide
`new COVID-relief funds on the old terms to Oregon, that the specific Fund at issue in this case
`will be replenished and again granted to The Contingent, and that if those events come to pass,
`then reapplication might be permissible. But this sequence of events is speculative—unsupported
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`Snell & Wilmer
`One Centerpointe Drive Ste 170
`Lake Oswego, Oregon 97035
`503.624.6800
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`Page 2 – DEFENDANTS’ REPLY
` RE IRREPARABLE HARM
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`Case 3:20-cv-01866-IM Document 22 Filed 11/18/20 Page 4 of 7
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`by any evidence that these events will occur—and not a cognizable, irreparable injury.
`Moreover, notwithstanding Great Northern’s insistence to the contrary, The Contingent’s
`rejection of Great Northern’s application for reasons other than race precludes a showing of
`irreparable injury. The Eleventh Circuit’s decision in Wooden v. Bd. of Regents of Univ. Sys. of
`Georgia, 247 F.3d 1262, 1281–82 (11th Cir. 2001), is instructive. There, the Court held that a
`white applicant who was denied admission to the University of Georgia based on her academic
`credentials, and who would have been subject to race-conscious criteria had she advanced in the
`admissions process, lacked standing because she never made it past the initial stage at which race
`was not considered. The rejection of her application on race-neutral criteria precluded any “claim
`to have suffered any cognizable injury on account of race.” Id. at 1282. The Court concluded that
`concluding otherwise “would virtually abolish the injury-in-fact requirement in this context,
`conferring a cognizable injury on every unsuccessful applicant for a government contract or
`admission to a public university where the process at some stage or for some purposes disfavors
`the applicant's racial group in favor of another, regardless of whether the plaintiff herself was
`actually treated unequally.” Id. Although Great Northern insinuates that The Contingent’s
`explanation for its rejection was pretext, Great Northern does not present any supporting
`evidence, and this Court should not find irreparable injury on this basis.
`C.
`This Is Not a Bid-Contest Case.
`Great Northern heavily relies on bid-contest cases to argue that its harm is irreparable and
`not merely monetary. But this is not a bid contest and the calculus of harm is different. Whereas
`this case involves a one-time disbursal of funds, a bid-contest case concerns a company’s ability
`to bid, complete awarded projects, build a reputation, and other intangible benefits. For example,
`Great Northern cites Monterey Mechanical Co. v. Wilson, 125 F.3d 702, 704 (9th Cir. 1997), to
`argue that money damages cannot remedy its harm. (Dkt. 21 at 4). But unlike the plaintiff in
`Monterey Mechanical, who in the ordinary course of business bid in construction projects subject
`to a statewide statute applicable to all public construction projects, Great Northern applied for a
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`Snell & Wilmer
`One Centerpointe Drive Ste 170
`Lake Oswego, Oregon 97035
`503.624.6800
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`Page 3 – DEFENDANTS’ REPLY
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`Case 3:20-cv-01866-IM Document 22 Filed 11/18/20 Page 5 of 7
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`one-time funding program for a specified amount of money – not an opportunity to compete with
`other businesses or the opportunity to work as a government contractor. The contractor competed
`not simply for money, but the right to complete a project. Even after finding the government’s
`conditions unconstitutional, the Ninth Circuit ordered reconsideration in light of the Ninth
`Circuit’s determination and not entry of a preliminary injunction. Id. at 715. The plain language
`of the decision belies Great Northern’s insistence that the court intended otherwise.
`Great Northern cites additional cases in which the plaintiffs competed for construction
`funds. (See Dkt. 21 at 5-6, citing Cent. Alabama Paving, Inc. v. James, 499 F. Supp. 629, 639
`(M.D. Ala. 1980) (bid for state highway contract); M.C. West, Inc. v. Lewis, 522 F. Supp. 338,
`341 (M.D. Tenn. 1981) (same); Milwaukee Cty. Pavers Ass’n v. Fiedler, 707 F. Supp. 1016,
`1032 (W.D. Wis. 1989) (same).) But in these cases, where the plaintiffs bid to complete a
`contract, the calculation of damages would be “difficult or impossible.” Milwaukee Cty. Pavers
`Ass’n, 707 F. Supp. at 1033. That is not the case here, where Great Northern’s potential
`purported damages are known even at this early stage.
`II. THE CONTINGENT’S OFFER TO DEPOSIT FUNDS ELIMINATES
`ANY SPECTER OF IRREPARABLE HARM.
`Great Northern labors to explain how its alleged injury cannot be remedied by money
`damages and is more than financial. For example, Great Northern argues that it is entitled to have
`its application “considered on equal footing,” (Dkt. 21 at 7), or that it will suffer “competitive
`harm.” (Id. at 6.) But on its best day, if Great Northern’s application were reconsidered and
`granted, that simply means that it could receive a maximum of $200,000 in relief funds.
`However Great Northern struggles to define its harm, all roads lead to an award of relief funds.
`As such, the obvious remedy if Great Northern prevails is the relief money it applied for. Arizona
`Recovery Hous. Ass’n, 462 F. Supp. 3d at 1000 (holding that pointing to a law that may end up
`violating certain civil rights statutes does not convert asserted injury into more than a claim for
`monetary relief).
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`Page 4 – DEFENDANTS’ REPLY
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`Snell & Wilmer
`One Centerpointe Drive Ste 170
`Lake Oswego, Oregon 97035
`503.624.6800
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`Case 3:20-cv-01866-IM Document 22 Filed 11/18/20 Page 6 of 7
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`Great Northern proclaims that, even if deposited with the Court, the $200,000 might
`revert to the federal government after December 30, 2020. But Great Northern never engages the
`State Defendants’ detailed analysis. (Dkt. 18 at 6-9.) This analysis included the text of 42 U.S.C.
`§ 801(d), which requires only that costs eligible for reimbursement be incurred by December 30,
`2020, and not that money be returned if not disbursed by that date. (Dkt. 18 at 7.)
`Great Northern quips that the $200,000 is subject to “conditional statements” (Dkt. 21 at
`12-13) and therefore insufficient. The only condition noted in Defendants’ opening brief is that
`The Contingent identify eligible fund recipients, prior to December 30, 2020, who would receive
`the $200,000, or some portion of it, in the event it is not awarded to Great Northern. (Dkt. 18 at
`8.) Great Northern does not attempt to explain why this condition cannot be met, and indeed,
`Great Northern would be hard-pressed to do so; the allocation and disbursement of the Fund is
`the very harm that Great Northern cites as justification for urgent relief.
`To the extent Great Northern complains that the State Defendants noted that Treasury has
`final say (subject to judicial oversight) over disposition of funds after December 30, the Court
`should not confuse the State Defendants’ candor with weakness. As the State Defendants note,
`they believe their analysis is the better view (Dkt. 18 at 9), and apparently Great Northern does
`not dispute that analysis. Informing the Court of the possibility that Treasury may disagree, when
`there have been only 11 cases construing the CARES Act (in ways irrelevant here), is simply
`responsible lawyering.1
`III. CONCLUSION
`Because Great Northern cannot show future, irreparable harm, the Court should deny
`preliminary injunctive relief and permit this case to proceed in due course.
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`1 Moreover, even if Treasury ultimately concludes that the CRF funds comprising the Court
`Deposit are ineligible for disbursement after the CRF Deadline, Treasury’s statutory remedy is to
`recoup the amount of those funds from the State of Oregon as prime recipient of the CRF funds—
`not claw back the funds from any downstream entity or person that received them. See 42 U.S.C.
`§ 801(f)(2) (“[T]he amount equal to the amount of funds used in violation of [42 U.S.C. § 801(d),
`“Use of funds”] shall be booked as a debt of [the State] owed to the Federal Government.”).
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`Snell & Wilmer
`One Centerpointe Drive Ste 170
`Lake Oswego, Oregon 97035
`503.624.6800
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`Page 5 – DEFENDANTS’ REPLY
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`Case 3:20-cv-01866-IM Document 22 Filed 11/18/20 Page 7 of 7
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`Dated: November 18, 2020
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`ELLEN ROSENBLUM
`ATTORNEY GENERAL
`FOR THE STATE OF OREGON
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`SNELL & WILMER L.L.P
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`By /s/ Clifford S. Davidson
` Clifford S. Davidson, OSB No. 125378
` csdavidson@swlaw.com
` Special Assistant Attorney General
`Jenny Hua (pro hac vice to be filed)
`jhua@swlaw.com
`Alexix G. Terríquez (pro hac vice to be filed)
`aterriquez@swlaw.com
`Alysha Green (pro hac vice to be filed)
`agreen@swlaw.com
`Attorneys for Defendants Katy Coba and
`Oregon Department of Administrative
`Services
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`Fay Stetz-Waters, OSB No. 071789
`Fay.stetz-waters@doj.state.or.us
`Sheila H. Potter, OSB No. 993485
`Shiela.potter@doj.state.or.us
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`Of Attorneys for Defendants Katy Coba, in
`her Official Capacity as State Chief
`Operating Officer and Director of the
`Oregon Department of Administrative
`Services; and Oregon Department of
`Administrative Services
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`SCHWABE, WILLIAMSON & WYATT, P.C.
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`By /s/ Amanda Gamblin
` Amanda Gamblin, OSB #021361
` Email: agamblin@schwabe.com
` Nika Aldrich, OSB #160306
` Email: naldrich@schwabe.com
` Facsimile: 503-796-2900
`Of Attorneys for Defendant The Contingent
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` \4831-1740-5138
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`Page 6 – DEFENDANTS’ REPLY
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`Snell & Wilmer
`One Centerpointe Drive Ste 170
`Lake Oswego, Oregon 97035
`503.624.6800
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