Case 3:20-cv-02022-IM Document 67 Filed 12/29/20 Page 1 of 18
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`Clifford S. Davidson, OSB No. 125378
`csdavidson@swlaw.com
`Special Assistant Attorney General
`Kelly H. Dove, OSB No. 082165
`kdove@swlaw.com
`Alexix G. Terríquez (pro hac vice)
`aterriquez@swlaw.com
`Alysha Green (pro hac vice)
`agreen@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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`Attorneys for the State Defendants
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`UNITED STATES DISTRICT COURT
`DISTRICT OF OREGON
`PORTLAND DIVISION
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`GREAT NORTHERN RESOURCES, INC.,
`DYNAMIC SERVICE FIRE AND
`SECURITY, LLC, and WALTER VAN
`LEJA, on behalf of themselves and others
`similarly situated
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`Case No. 3:20-cv-01866-IM (L)
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`State Defendants’
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`BRIEF CONCERNING WHETHER
`THOSE WHO FAILED TO SUBMIT
`GRANT APPLICATIONS BEFORE
`THE FUND CLOSED HAVE ANY
`CLAIM FOR RELIEF
`
`
`Plaintiffs,
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`
`vs.
`
`
`
`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; BLACK UNITED FUND
`OF OREON; DOES 1-10,
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`Defendants.
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`STATE DEFENDANTS’ BRIEF
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`Case 3:20-cv-02022-IM Document 67 Filed 12/29/20 Page 2 of 18
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`INTRODUCTION
`The Court questioned, and directed the parties to brief, whether those who failed to submit
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`grant applications before the Fund closed have any claim for relief. The State Defendants provide
`this brief in response, explaining that they do not.
`A plaintiff must demonstrate standing for each asserted claim and each form of relief
`sought, meaning that a plaintiff must establish standing separately for prospective injunctive relief
`and retrospective damages relief. Two of the named plaintiffs here, Dynamic Service Fire and
`Security (“Dynamic”) and Mr. Van Leja (collectively, the “Non-Applicants”) did not apply to the
`Fund before it closed to new applications on December 8, 2020, and therefore cannot apply before
`it expires on December 30, 2020. They cannot establish standing to pursue either type of relief.
`Where a plaintiff posits an equal protection challenge and seeks to enjoin an ongoing
`program, that plaintiff need not actually bid or apply to establish standing, but rather must only
`demonstrate the plaintiff is “able and ready” to bid or apply, “and that a discriminatory policy
`prevents [plaintiff] from doing so on an equal basis.” Northeastern Florida Contractors v. City of
`Jacksonville, 508 U.S. 656 (1993). That demonstration requires more, however, than a mere stated
`intention to apply or an application for the purposes of raising a generalized challenge. Here,
`Dynamic and Mr. Van Leja neither allege nor demonstrate that they are “able and ready” to apply
`– only that they would “wish to” apply if the Court intervenes to rewrite the Oregon Emergency
`Board’s allocation, and the contract between the Department of Administrative Services (“DAS”)
`and The Contingent, to omit race-based criteria. This expressed desire to apply if the Fund’s
`requirements change—that is, if the Plaintiffs prevail in the very lawsuit they otherwise lack
`standing to bring—is insufficient to establish standing as a matter of law.1
`
`
`1 As discussed briefly below in Section B.3, the Court cannot, consistent with separation of powers
`principles and Oregon’s severability statute, accept Plaintiffs’ invitation to (1) rewrite the
`Emergency Board’s allocation and the Grant Agreement with The Contingent so as to continue the
`Fund’s administration past the December 30 expiration date, and (2) require further awards from
`the Fund after severing race-conscious criteria.
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`One Centerpointe Drive Ste 170
`Lake Oswego, Oregon 97035
`503.624.6800
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`Further, even if the Non-Applicants had alleged that they were “able and ready,” which
`they did not, any claim for injunctive relief that they might have had is now moot because the
`application period closed on December 8, 2020 and the Fund expires on December 30, 2020. The
`Ninth Circuit recently made clear that where, as here, a challenged law or government program
`expires, the action presumptively is moot and appropriate for dismissal unless there is evidence
`supporting a reasonable expectation that the legislative body is likely to enact the same or
`substantially similar legislation in the future. Bd. of Trustees of Glazing Health & Welfare Tr. v.
`Chambers, 941 F.3d 1195, 1197-98 (9th Cir. 2019) (en banc). At no point during the three rounds
`of injunction briefing in this consolidated proceeding has any plaintiff presented such evidence.
`Nor can Non-Applicants establish standing to pursue a damages claim. While in the context
`of an ongoing government set-aside program the inability to compete on “equal footing” can be a
`sufficient injury to justify injunctive relief, and in that context a plaintiff need only show that he
`is “able and ready,” a plaintiff asserting standing in the damages context must show “more than
`that.” Braunstein v. Arizona Dep’t of Transp., 683 F.3d 1177, 1186 (9th Cir. 2012). To wit, he
`must “demonstrate that, under a race-neutral policy, he would have received the benefit for which
`he now seeks compensation.” Donahue v. City of Boston, 304 F.3d 110, 117 (1st Cir. 2002) (citing
`Texas v. Lesage, 528 U.S. 18, 21 (1999)). In other words, if the Non-Applicants are unable to
`establish that “they would have received the benefit [they] sought under a race-neutral policy,”
`their claims should be dismissed for lack of standing. See id. Here, they cannot make the required
`showing because anyone who did not timely apply before the Fund’s closure and expiration is
`ineligible. As such, anyone who did not apply cannot demonstrate that a race-blind approach would
`have resulted in their receiving the benefit – whether the named-plaintiff Non-Applicants or the
`non-applicants in the putative class. The Fund’s closure and expiration are race-neutral, apply to
`all, and foreclose any argument that Non-Applicants would receive a benefit.
`In sum, those who did not timely apply to the Fund have no viable claims for relief because
`they lack standing and any injunctive relief claims are moot.
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`One Centerpointe Drive Ste 170
`Lake Oswego, Oregon 97035
`503.624.6800
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`RELEVANT FACTUAL BACKGROUND
`As the Court knows, this lawsuit concerns the Oregon Emergency Board’s allocation of
`$62 million to DAS for a grant to defendant The Contingent, an Oregon-based non-profit with
`existing programs that serve Oregon’s Black community. Pursuant to the Emergency Board’s
`allocation, The Contingent was to use the granted Coronavirus Relief Fund (“CRF”) funds to
`establish and administer a program known as the Oregon Cares Fund for Black Relief and
`Resiliency (the “Fund”).
`On December 8, 2020, The Contingent announced that it would no longer accept
`applications for the Fund. As The Contingent has explained to this Court, The Contingent did so
`because the Fund was oversubscribed: there were more applicants than available funds. (See Dkt.
`No. 45 at 6-7.) Furthermore, the Fund, on December 30, 2020, expired according to the terms of
`the Grant Agreement between The Contingent and DAS, and the requirements of the Emergency
`Board’s allocation to DAS. (Dkt. No. 48, Ex. 1 § 3.)
`Plaintiff Great Northern Resources sued on October 29, 2020, challenging the Fund’s
`constitutionality. (ECF No. 1.) Great Northern had applied for relief through the Fund and received
`final denial of its application on November 9, 2020.
`On Sunday, December 6, Plaintiffs filed their “First Amended Class-Action Complaint.”
`The Complaint added Dynamic Service and Van Leja, and purports to bring suit on behalf of
`themselves and a class defined as “all current and future individuals, families, and businesses who
`(1) live or are based in Oregon; (2) have experienced or are experiencing hardship due to COVID-
`19; and (3) do not self-identify as [B]lack, and who therefore have been or are currently being
`disqualified from the relief from the Fund on account of race.” (Am. Compl. ¶ 68.)
`While Great Northern applied to the Fund and was rejected on grounds other than race,
`neither Dynamic nor Mr. Van Leja applied at all. With respect to Dynamic, the Complaint alleges
`only that Dynamic “wishes to apply for relief from the Fund.” (Am. Compl. at p. 7, Heading C.)
`Dynamic further alleges that it “intends to apply and will apply for relief from the Fund if and
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`One Centerpointe Drive Ste 170
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`503.624.6800
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`when the courts enjoin the enforcement of the racial exclusions that render Dynamic Service
`ineligible for relief.” (Am. Compl. ¶ 42.) Dynamic also alleges that “it has sustained and is
`continuing to suffer injury in fact by being disqualified for a government on account of race, and
`by being forced to compete in a race-based system for government benefits.” (Am. Compl. ¶ 44.)
`With respect to Mr. Van Leja, the Complaint alleges he “wishes to apply for individual and
`family relief from the Fund, but he is ineligible for this relief because he is not black [sic].” (Am.
`Compl. ¶ 47.) The Complaint also alleges that Mr. Van Leja “intends to apply and will apply for
`individual and family relief from the Fund if and when the courts enjoin the enforcement of the
`racial exclusions that render Mr. Van Leja and his family ineligible for relief.” (Am. Compl. ¶ 48.)
`Like Dynamic, Mr. Van Leja alleges that he is sustaining injury by this disqualification. (Am.
`Compl. ¶ 50.)
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`A.
`
`ARGUMENT
`Plaintiffs Bear the Burden of Establishing Standing for Each Claim and Form of
`Relief Sought.
`1.
`Standing Is a Threshold Issue.
`Standing is a “threshold matter central to [the Court’s] subject matter jurisdiction.” Ellis v.
`Costco Wholesale Corp., 657 F.3d 970, 978 (9th Cir. 2011). A “‘fundamental aspect of standing’
`is that it focuses primarily on the party seeking to get his complaint before the federal court rather
`than ‘on the issues he wishes to have adjudicated.’” United States v. Richardson, 418 U.S. 166,
`174 (1974) (quoting Flast v. Cohen, 392 U.S. 83, 98 (1968)). “In other words, when standing is
`placed in issue in a case, the question is whether the person whose standing is challenged is a
`proper party to request an adjudication of a particular issue . . . .” Flast, 392 U.S. at 99-100. A
`proper party is required so that federal courts will not be asked to decide “ill-defined controversies
`over constitutional issues” or “a case which is of a hypothetical or abstract character.” Id. at 100.
`“[T]he standing inquiry requires careful judicial examination of . . . whether the particular plaintiff
`is entitled to an adjudication of the particular claims asserted.” Allen v. Wright, 468 U.S. 737, 751-
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`503.624.6800
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`52 (1984), abrogated on other grounds by Lexmark Int’l, Inc. v. Static Control Components, Inc.,
`572 U.S. 118 (2014)).
`Standing involves both a constitutional and a prudential component. Id.; Fors v. Lehman,
`741 F.2d 1130, 1132 (9th Cir. 1984); McMichael v. County of Napa, 709 F.2d 1268, 1269 (9th Cir.
`1983). To satisfy Article III standing, a plaintiff must show (1) he has suffered an “injury in fact”
`that is concrete and particularized and actual or imminent, not conjectural or hypothetical; (2) the
`injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed
`to merely speculative, that the injury will be redressed by a favorable decision. Braunstein v.
`Arizona Dep’t of Transp., 683 F.3d 1177, 1184 (9th Cir. 2012). Prudential concerns, which are
`“judicially self-imposed limits on the exercise of federal jurisdiction,” include “the general
`prohibition on a litigant’s raising another person's legal rights, the rule barring adjudication of
`generalized grievances more appropriately addressed in the representative branches, and the
`requirement that a plaintiff's complaint fall within the zone of interests protected by the law
`invoked.” Fors, 741 F.2d at 1132. Failure to satisfy any of these constitutional or prudential
`requirements defeats standing. Id.; Hong Kong Supermarket v. Kizer, 830 F.2d 1078, 1081 (9th
`Cir. 1987).
`In order to invoke the judicial process, a plaintiff must “show that the facts alleged present
`the court with a ‘case or controversy’ in the constitutional sense and that [he] is a proper plaintiff
`to raise the issues sought to be litigated.” McMichael, 709 F.2d at 1269 (citing Linda R.S. v.
`Richard D., 410 U.S. 614, 616 (1973)); see also Donahue, 304 F.3d at 117 (citing Steel Co. v.
`Citizens for a Better Env’t, 523 U.S. 83, 101–02 (1998) (holding that the Court must resolve the
`issue of Plaintiffs’ standing before addressing the merits of a case)). The standing inquiry requires
`careful judicial examination of a complaint’s allegations to ascertain whether each plaintiff is
`entitled to adjudication of the particular claims that plaintiff has asserted. Cotter v. City of Boston,
`323 F.3d 160, 166 (1st Cir. 2003) (citing Allen, 468 U.S. at 752)).
`A plaintiff must demonstrate standing for each claim he seeks to press, including
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`503.624.6800
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`demonstrating standing “separately for each form of relief sought.” DaimlerChrysler Corp. v.
`Cuno, 547 U.S. 332, 352 (2006); Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc.,
`528 U.S. 167, 185 (2000) (holding that citizens lacked standing to sue for Clean Water Act
`violations that ceased by the time the complaint is filed); Los Angeles v. Lyons, 461 U.S. 95, 109
`(1983) (holding that a plaintiff must demonstrate standing not only for reach claim, but also for
`each type of relief sought). In other words, a plaintiff must separately establish standing for
`prospective injunctive relief and retrospective damages relief. Los Angeles v. Lyons, 461 U.S. at
`109; Donahue, 304 F.3d at 116 (citing Adarand Constructors, Inc. v. Peña, 515 U.S. 200, 210–11
`(1995)).
`2.
`
`A Plaintiff Must Demonstrate More than a Generalized Grievance to Assert
`an Equal Protection Claim.
`“The Supreme Court has articulated a broad conception of Article III standing to bring
`equal protection challenges.” Braunstein, 683 F.3d at 1184; see also Northeastern Florida, 508
`U.S. at 666 (holding that construction firms’ injury-in-fact was “the inability to compete on an
`equal footing in the bidding process, not the loss of a contract”); Regents of Univ. of Cal. v. Bakke,
`438 U.S. 265, 280 n.14 (1978) (holding that a plaintiff challenging a medical school affirmative
`action program did not have to prove that he would have been admitted absent the challenged
`program; rather, his injury was the inability to compete for all seats in the entering class). The
`same rule applies where a prospective subcontractor challenges a government program that gives
`general contractors a financial incentive to hire minority-owned subcontractors. Braunstein, 683
`F.3d at 1184–85 (citing Adarand Constructors, Inc., 515 U.S. at 210–12).
`But “Article III standing to bring an equal protection challenge is not without limits.”
`Braunstein, 683 F.3d at 1185. The Ninth Circuit holds that even if a government actor
`discriminates on the basis of race, the resulting injury “accords a basis for standing only to those
`persons who are personally denied equal treatment.” Id.; Carroll v. Nakatani, 342 F.3d 934, 940–
`41 (9th Cir. 2003) (quoting Allen v. Wright, 468 U.S. 737, 755 (1984)). Even when a plaintiff
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`alleges redressable injury sufficient to satisfy the standing requirements of Article III, courts
`should refrain from “adjudicating abstract questions of wide public significance which amount to
`generalized grievances.” Id. (citing Valley Forge Christian College v. Americans United for
`Separation of Church and State, Inc., 454 U.S. 464, 474–75 (1982)).
`B.
`Plaintiffs’ Injunctive Relief Claims Fail for Lack of Standing and Mootness.
`1.
`Plaintiffs Who Have Not Applied to a Challenged Program Must Demonstrate
`that They Are “Able and Ready” to Apply, and Do Not Merely Assert a
`Generalized Grievance.
`The applicable standard for a party challenging a set-aside program in equal protection
`cases was articulated by the Supreme Court in Northeastern Florida, which held that a party need
`only demonstrate that he is “able and ready” to bid or apply, “and that a discriminatory policy
`prevents [him] from doing so on an equal basis.” 508 U.S. at 666. In that case, the Court deemed
`sufficient for standing the plaintiff’s claim that its members “regularly bid on contracts in
`Jacksonville and would bid on those that the city’s ordinance makes unavailable to them.”
`Northeastern Fla., 508 U.S. at 668. See also Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 166–67
`(1972) (holding that the plaintiff lacked standing to challenge an organization’s racially
`discriminatory membership policy where he never sought to become a member); Clements v.
`Fashing, 457 U.S. 957 (1982) (considering challenge to a provision of the Texas Constitution
`requiring the immediate resignation of certain state officeholders upon their announcement of
`candidacy for another office, and concluding that the plaintiff officeholders had Article III standing
`because they had alleged they would have announced their candidacy for other offices were it not
`for the “automatic resignation” provision they were challenging); Gratz v. Bollinger, 539 U.S. 244,
`261–62 (2003) (plaintiff demonstrated that he was “able and ready” to apply as a transfer student
`should the university cease to use race in undergraduate admissions); Donahue, 304 F.3d at 119
`(holding that where the relief sought is forward-looking, the plaintiff must be able to show that he
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`has been exposed to unequal treatment and is “able and ready” to apply for the benefit, and that
`the challenged discriminatory policy prevents him from doing so).
`The Ninth Circuit has applied this standard on several occasions following Northeastern
`Florida in ways that are instructive here. For example, in Carroll v. Nakatani, 342 F.3d 934, 942
`(9th Cir. 2003), the Ninth Circuit considered a challenge to a government business loan program
`that restricted benefits to native Hawaiians. The court held that the plaintiff lacked standing to
`assert the challenge to racial preferences because he failed to demonstrate that he was “able and
`ready” to compete on an equal basis for the loan. Rather, the plaintiff had filed a “symbolic,
`incomplete application” and did not demonstrate an “ability to compete” for the loan. The plaintiff
`had not satisfied the loan program’s prerequisite that he seek alternative sources of financing,
`failed to formulate even a basic business plan, had no work history for the prior 25 years, and had
`not researched necessary business expenses such as rent or equipment. Notably, he did not actually
`file his application until after he filed his legal complaint. As such, the Court concluded that the
`plaintiff lacked standing because he had presented only a generalized grievance.
`The Ninth Circuit subsequently applied the “able and ready” standard in a bid case,
`Braunstein, 683 F.3d 1177, concluding that Braunstein (the plaintiff) lacked standing to challenge
`the set-aside program. Braunstein argued that he wanted the prime bidding firms to select his
`company as a subcontractor to perform utility work. However, unlike the prospective
`subcontractor plaintiffs in Adarand, 515 U.S. at 205, and Western States, 407 F.3d at 987, he did
`not actually submit a quote or a bid to any of the prime contractors bidding on the government
`contract and merely contacted the firms that bid on the contract. Braunstein, 683 F.3d at 1185.
`Braunstein argued that he needed only establish that he was “able and ready” to seek
`subcontracting work under the contract and satisfied that standard. Id. The court disagreed.
`Likening Braunstein to the plaintiff in Carroll who filed an incomplete loan application,
`the court found that Braunstein “cannot demonstrate he has been denied equal treatment.” He did
`“essentially nothing to demonstrate he was in a position to compete equally,” and indeed his claims
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`for prospective relief were dismissed as moot because the set-aside program had been suspended
`before he sued.
`In contrast, in Bras v. California Public Utilities Commission, 59 F.3d 869, 873 (9th Cir.
`1995), the plaintiff challenged a pre-qualification preference for women- and minority-owned
`businesses. Id. at 871. The plaintiff had provided architectural services for more than 20 years to
`Pacific Bell and alleged that he had lost out on the ability to continue providing services due to the
`discriminatory preference. Id. Applying the “able and ready” standard, the Court held that the
`plaintiff had standing to challenge the pre-qualification preference where he could apply for the
`next three-year term bid cycle, and his summary judgment declaration stated that he stood ready,
`willing, and able to work for Pacific Bell again. The plaintiff also submitted a letter from Pacific
`Bell indicating that it was pleased with his past work, would keep his information on file, and
`would consider him when it reevaluated its needs. The Court held this evidence established
`standing for purposes of summary judgment.
`
`As Carroll and Braunstein make clear, the Ninth Circuit takes a dim view of plaintiffs who
`sue without actually or seriously engaging in the application process, absent a concrete interest
`and well-founded intention to apply. This Court should apply the same critical approach here and
`determine whether Non-Applicants or prospective plaintiffs raise a personal, concrete,
`particularized injury, or whether theirs is a generalized, political grievance that could be asserted
`by anyone. Here, Dynamic and Van Leja’s allegations do not satisfy the able-and-ready standard.
`They purportedly learned of the Fund very shortly before its closure and scheduled expiration.
`They do not allege that they took any action to evaluate the Fund or determine that they otherwise
`qualified. They allege only that they “wish to” apply if the Court removes the racial
`classification—that is, if Plaintiffs succeed on the merits. That is not how standing works. Plaintiffs
`cannot demonstrate standing by saying they would apply if they were to obtain their desired
`outcome; they have to demonstrate standing to pursue that outcome in the first place. Plaintiffs are
`in worse stead than the Carroll and Braunstein plaintiffs.
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`Further, in the context of set-aside programs and other applications, even where a plaintiff
`is “able and ready,” if they no longer have a basis to seek prospective relief, for example because
`the program ends, all that potentially remains is a damages action.2 See Braunstein, 683 F.3d at
`1183. In Braunstein, the district court dismissed as moot Braunstein’s claims for declaratory and
`injunctive relief because the relevant program had been suspended before he brought the suit. That
`rendered his only surviving claims as claims for damages rather than prospective relief, and he
`then had to demonstrate standing for retrospective relief.
`2.
`The Closure of the Application Period and the Fund’s Expiration Render the
`Non-Applicants’ Injunctive Relief Claims Moot.
`In addition to the Non-Applicants’ lack of standing to pursue injunctive relief, the
`conclusion of the application period on December 8 and expiration of the Fund on December 30
`mean that Non-Applicants’ claims for injunctive relief are moot. Indeed, the Supreme Court has
`often described mootness as “the doctrine of standing set in a time frame: The requisite personal
`interest that must exist at the commencement of the litigation (standing) must continue throughout
`its existence (mootness).” Laidlaw, 528 U.S. at 170.
`The analysis of the mootness question begins with whether the relief sought is injunctive
`or monetary. Where there is no longer any risk that a plaintiff will be subject to the challenged law
`or program, there exists no live issue upon which a court could issue prospective relief. Outdoor
`Media Grp., 506 F.3d at 902 (citing Noatak, 38 F.3d at 1510); see also Marks v. Colorado Dep't
`of Corr., 976 F.3d 1087, 1093 (10th Cir. 2020) (holding that when circumstances change and the
`court can no longer affect the plaintiff’s rights, the case ordinarily becomes moot); Arizonans for
`Official English v. Arizona, 520 U.S. 43, 67 (1997) (holding that case became moot when the
`plaintiff was no longer subject to the challenged policy and there was no extant damages claim).
`This analysis applies where the complained-of conduct has concluded, as to any claims for
`injunctive relief, unless a plaintiff can demonstrate that she likely will experience the same
`
`2 Here, any such damages action is moot, as addressed below in Section C.
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`wrongdoing in the future. Marks, 976 F.3d at 1094.
`Indeed, the Ninth Circuit recently issued an en banc decision clarifying that the repeal,
`amendment, or expiration of challenged legislation creates a presumption that the action is moot
`and appropriate for dismissal unless there is a reasonable expectation that the legislative body is
`likely to enact the same or substantially similar legislation in the future. Bd. of Trustees of Glazing
`Health & Welfare Tr., 941 F.3d at 1197-98. Any argument that such “a reasonable expectation
`exists must be founded in the record, . . . rather than on speculation alone.” Id. at 1199; see also
`Laidlaw, 528 U.S. at 174–75 (2000) (holding that plaintiffs lacked statutory standing to sue for
`violations that have ceased by the time the complaint is filed); Scott v. Pasadena Unified Sch. Dist.,
`306 F.3d 646, 656 (9th Cir. 2002) (noting that the plaintiff’s challenge to school selection would
`likely have been mooted if the school district had voluntarily discontinued the use of its weighted
`lottery system in response to a change in federal or state law); Smith v. Univ. of Wa. Law Sch., 233
`F.3d 1188 (9th Cir. 2000) (holding that federal constitutional challenges to the University of
`Washington Law School admissions process had become moot because Washington state law had
`been altered to ban preferential treatment on the basis of race by governmental actors and the
`school had responded to this statutory change by discontinuing the use of race in its admissions
`process).
`Despite three rounds of injunction briefing in this consolidated action, Plaintiffs have
`presented no evidence indicating that it is likely the Fund will be re-enacted. (See Dkt. No. 18 at
`11 [Defendants noting, in irreparable harm context, that Plaintiffs must show it is likely they will
`be harmed in a similar way].) The Court should conclude that the injunctive relief claims are moot
`after December 30, 2020.
`
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`Page 11 – STATE DEFENDANTS’ BRIEF
` RE STANDING OF NON-APPLICANTS
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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-02022-IM Document 67 Filed 12/29/20 Page 13 of 18
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`3.
`
`Non-Applicants Cannot Cure Their Standing and Mootness Problems by
`Urging this Court to Judicially Extend the Fund’s Expiration Date and to
`Require Evaluation of Application on a Race-Neutral Basis.
`As they have in the past, Plaintiffs might protest that their claims are not moot because they
`seek to force the Fund (1) to operate past December 30, and (2) to distribute money on a race-
`neutral basis. Neither form of purportedly un-mooting relief is available.
`As a preliminary matter, it is no answer to mootness to simply judicially extend the term
`of laws or programs that are set to expire by legislative action. If that were so, then mootness
`frequently could be alleviated and indeed swallowed by the judicial override of a statute’s
`expiration. This is not the law. Chambers, 941 F.3d at 1197-98 (holding that the expiration of a
`challenged law or government program renders an action moot absent evidence supporting
`reenactment of the legislation). Indeed, nowhere in relevant mootness cases is the suggestion that
`a court may cure mootness by overriding the Legislature. Should Plaintiffs urge this path of
`overreach, the Court should decline their invitation to follow it.
`Nor may Plaintiffs seek revision of the Emergency Board’s allocation as to its duration or
`race-conscious approach. See United States v. Rutherford, 442 U.S. 544, 555 (1979) (“Under our
`constitutional framework, federal courts do not sit as councils of revision, empowered to rewrite
`legislation in accord with their own conceptions of prudent public policy.”); Preston v. Hecker,
`734 F.2d 1359, 1370 (9th Cir. 1984) (“[T]he Secretary argues that we should read the Indian
`preference out of the Indian Preference Act. We are not free to do so: we possess no power to
`rewrite legislation.” [citation omitted]).
`The Fund’s race-conscious approach is central to its purpose and was the reason for its
`enactment. (See Dkt. No. 51, Declaration of Oregon Emergency Board Members; see also Dkt.
`No. 32, First Amended Complaint, ¶ 13 [“The Fund is explicitly targeted at providing relief to the
`‘Black community,’ to support ‘Black relief and resiliency.’”]) Racial self-identification thus is
`not severable from the rest of the Emergency Board allocation. Oregon law provides:
`
`Page 12 – STATE DEFENDANTS’ BRIEF
` RE STANDING OF NON-APPLICANTS
`
`
`
`
`Snell & Wilmer
`One Centerpointe Drive Ste 170
`Lake Oswego, Oregon 97035
`503.624.6800
`
`
`

`

`Case 3:20-cv-02022-IM Document 67 Filed 12/29/20 Page 14 of 18
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`“It shall be considered that it is the legislative intent, in the
`enactment of any statute, that if any part of the statute is held
`unconstitutional, the remaining parts shall remain in force unless:
`“(1) The statute provides otherwise;
`“(2) The remaining parts are so essentially and inseparably
`connected with and dependent upon the unconstitutional part that it
`is apparent that the remaining parts would not have been enacted
`without the u