Case 3:20-cv-02022-IM Document 79 Filed 12/31/20 Page 1 of 8
`
`Murphy & Buchal LLP
`James L. Buchal, Oregon Bar No. 921618
`3425 SE Yamhill Street, Suite 100
`Portland, Oregon 97214
`(503) 227-1011 (phone)
`(503) 573-1939 (fax)
`jbuchal@mbllp.com
`
`Benbrook Law Group, PC
`Bradley Benbrook *
`Stephen M. Duvernay*
`400 Capitol Mall, Suite 2530
`Sacramento, California 95814
`(916) 447-4900 (phone)
`(916) 447-4904 (phone)
`brad@benbrooklawgroup.com
`steve@benbrooklawgroup.com
`
` *
`
` admitted pro hac vice
`
`
`Counsel for Plaintiffs (additional counsel for plaintiffs listed on signature page)
`
`
`U N I T E D S T A T E S D I S T R I C T C O U R T
`D I S T R I C T O F O R E G O N
`P O R T L A N D D I V I S I O N
`
`Great Northern Resources, Inc., Dynamic
`Service Fire and Security, LLC, and Walter
`Van Leja, on behalf of themselves and others
`similarly situated,
`
`Case No. 3:20-cv-01866-IM
`
`
`
`Plaintiffs’ Reply to Nonprofit
`Defendants’ Brief Re: Whether Those
`Who Failed To Submit Grant
`Applications Before The Fund Closed
`Have Any Claim For Relief
`
`
`
`Plaintiffs,
`
`v.
`
`
`
`
`
`
`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 Oregon; DOES 1–10,
`
`
`
`Defendants.
`
`
`
`
`

`

`Case 3:20-cv-02022-IM Document 79 Filed 12/31/20 Page 2 of 8
`
`The Court’s order of December 18, 2020, instructed us to brief “whether those
`
`who failed to submit grant applications before the Fund closed have any claim for
`
`relief.” It did not ask us to brief whether a class should be certified, nor did it ask for
`
`briefing on the propriety of the class definition proposed in the first amended
`
`complaint.
`
`The answer to the Court’s question is that those who failed to apply before the
`
`Fund closed will have a claim for relief if they were “able and ready” to apply, or if
`
`they are “likely to apply . . . in the reasonably foreseeable future if” if the racial
`
`exclusion were enjoined. See Carney v. Adams, No. 19-309 (Dec. 10, 2020), slip op.
`
`at 6, 9–11. The nonprofit defendants appear to agree with this. See Nonprofit Defs.’
`
`Br. (ECF No. 66) at 1 (acknowledging that the “able and ready” standard applies).
`
`And the nonprofit defendants do not contest Mr. Leja’s sworn declaration that both
`
`he and Dynamic Services were “able and ready” to apply to the Fund and have not
`
`done so “only” because of the racial exclusion. See Leja Decl. (ECF No. 39-2) at
`
`¶¶ 11–12.
`
`Instead, the nonprofit defendants spend the bulk of their brief complaining about
`
`the proposed class definition, which (in the defendants’ view) is overly broad because
`
`it includes individuals who lack Article III standing. See Nonprofit Defs.’ Br. (ECF
`
`No. 66) at 12–16. That is an issue for the Court to resolve if and when the plaintiffs
`
`move for class certification. A Court should not be issuing advisory opinions on the
`
`propriety of a class definition before the plaintiffs have moved for certification under
`
`Rule 23. And the plaintiffs are not even bound by the class definition in their
`
`complaint, and may amend that definition before seeking certification. All of this
`
`discussion in the nonprofit defendants’ brief is premature, and it goes beyond the
`
`solitary issue that the Court’s order instructed the parties to address.
`
`The nonprofit defendants also complain that the plaintiffs “have presented no
`
`evidence establishing that all persons share Plaintiffs’ grievance about the Fund.”
`
`
`plaintiffs’ reply to nonprofit defendants’ brief
`
`
`
`Page 1 of 8
`
`

`

`Case 3:20-cv-02022-IM Document 79 Filed 12/31/20 Page 3 of 8
`
`Nonprofit Defs.’ Br. (ECF No. 66) at 5. But the plaintiffs are not required to make
`
`such a showing at this stage of the litigation, as we have not yet moved for class
`
`certification. If and when the plaintiffs move for class certification, the Court can
`
`consider the class definition that the plaintiffs propose at that time, which need not
`
`track the class definition that appears in the first amended complaint. See Chapman v.
`
`First Index, Inc., 796 F.3d 783, 785 (7th Cir. 2015). Nothing prevents the plaintiffs
`
`from asking this Court to certify a class that consists only of those who were “able
`
`and ready” to apply for relief, including those who never submitted an application
`
`because it would have been futile for them to do so. And nothing prevents the plain-
`
`tiffs from asking the Court to certify an opt-in class that would require individualized
`
`proof that a class member is “able and ready” to apply to the Fund, and would have
`
`applied in the absence of the unlawful racial exclusion.
`
`The nonprofit defendants’ mootness argument is wrong for the reasons provided
`
`in our reply to the state defendants. See ECF No. 73 at 2–4. It remains possible for
`
`this Court to grant prospective relief, notwithstanding the defendants’ efforts to close
`
`the fund to new applicants, because the remaining $8.8 million is being held in escrow
`
`and the plaintiffs are seeking a remedy that would require those funds to be distrib-
`
`uted according to race-neutral criteria. See id.; see also Campbell-Ewald Co. v. Gomez,
`
`577 U.S. 153, 161 (2016) (“A case becomes moot, however, ‘only when it is impos-
`
`sible for a court to grant any effectual relief whatever to the prevailing party.’” (quoting
`
`Knox v. Serv. Employees Int’l Union, Local 1000, 567 U.S. 298, 307 (2012)); United
`
`States v. Figueroa-Ocampo, 494 F.3d 1211, 1217 (9th Cir. 2007) (“[T]he possibility
`
`of relief is sufficient to prevent mootness.”); Center for Biological Diversity v. Export–
`
`Import Bank of the United States, 894 F.3d 1005, 1011 (9th Cir. 2018) (“To establish
`
`mootness, Defendants must show that ‘there is no longer a possibility that [Plaintiffs]
`
`can obtain relief for [their] claim.’” (citation omitted)). The defendants do not believe
`
`that the plaintiffs are entitled to this remedy, but that goes to the merits and has
`
`
`plaintiffs’ reply to nonprofit defendants’ brief
`
`
`
`Page 2 of 8
`
`

`

`Case 3:20-cv-02022-IM Document 79 Filed 12/31/20 Page 4 of 8
`
`nothing to do with mootness. It certainly possible for the Court to grant prospective
`
`relief that redresses the injuries that Mr. Leja and Dynamic Service have alleged—it
`
`needs only to release the funds and order the defendants to distribute them on a race-
`
`neutral basis, without any preference given to those who applied when non-black ap-
`
`plicants were barred from obtaining relief.
`
`The nonprofit defendants try to get around this by pointing out that the first
`
`amended complaint does not specifically ask for this remedy. See Nonprofit Defs.’ Br.
`
`(ECF No. 66) at 17. The reason for that is obvious: The defendants did not close the
`
`Fund to new applicants until after the plaintiffs filed their first amended complaint
`
`and added Leja and Dynamic Service to the lawsuit. So of course the first amended
`
`complaint does not specifically request relief that would reopen the Fund to new
`
`applicants and prohibit the defendants from allocating the remaining funds according
`
`to first-come-first-served. Litigants are not capable of anticipating their opposing
`
`party’s next move through divination. But no matter: The first amended complaint
`
`does ask for “all other relief that the Court may deem just, proper, or equitable, or to
`
`which the plaintiffs and putative class members may be justly entitled,”1 and that is all
`
`that is needed to preserve a remedy that is not specifically spelled out in the pleadings.
`
`See Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292, 2307 (2016); Fed. R. Civ.
`
`P. 54(c) (“Every other final judgment should grant the relief to which each party is
`
`entitled, even if the party has not demanded that relief in its pleadings.” (emphasis
`
`added); Jet Inv., Inc. v. Department of Army, 84 F.3d 1137, 1143 (9th Cir. 1996)
`
`(“[R]elief in damages is not foreclosed by plaintiff ‘s failure to ask for damages in
`
`prayer.”); see also New York State Rifle & Pistol Ass’n, Inc. v. City of New York, 140 S.
`
`Ct. 1525, 1535 (2020) (Alito, J., dissenting) (collecting authorities).
`
`
`1. First Amended Complaint (ECF No. 32) at ¶ 79(e).
`
`
`plaintiffs’ reply to nonprofit defendants’ brief
`
`
`
`Page 3 of 8
`
`

`

`Case 3:20-cv-02022-IM Document 79 Filed 12/31/20 Page 5 of 8
`
`The nonprofit defendants also contend that this Court cannot enjoin them from
`
`awarding the remaining funds according to first-come-first-served. See Nonprofit
`
`Defs.’ Br. (ECF No. 66) at 17–18. But this argument goes to the merits; it does not
`
`support a finding of mootness. The issue of mootness turns on whether it is possible
`
`for a court to grant relief that would redress the injury that the plaintiffs allege; it is
`
`not concerned with whether a plaintiff can ultimately obtain the remedy that it re-
`
`quests. But in all events, the nonprofit defendants are wrong to insist that the Court
`
`is powerless to enjoin from distributing the remaining funds according to first-come-
`
`first-served. The entire application process has been tainted by an unlawful racial ex-
`
`clusion that deterred non-black individuals from applying, and distributing the re-
`
`maining funds according to first-come-first-served would aggravate rather than elim-
`
`inate the unlawful racial preference that the defendants established. It is certainly per-
`
`missible for a court to require that the remaining funds be allocated according to a
`
`new process that is open to members of all races on equal terms; indeed, a remedy of
`
`that sort would be compelled if the Court were to find the racial exclusion unconsti-
`
`tutional.
`
`Finally, the nonprofit defendants are wrong to contend that our requested remedy
`
`would violate the holding of Planned Parenthood of Greater Washington & North
`
`Idaho v. U.S. Dep’t of Health and Human Services, 946 F.3d 1100 (9th Cir. 2020).
`
`Planned Parenthood holds that:
`
`A court does not have the power to decide the winner of, or to establish
`the criteria for, a grant competition, at least in this circumstance, but a
`court does have the power to decide that particular criteria are imper-
`missible.
`
`Id. at 1109. The plaintiffs, however, are not asking this Court to dictate any particular
`
`method of distributing the remaining funds. They are seeking only a remedy that
`
`would prevent the defendants from allocating the funds according to a process that is
`
`tainted by the unlawful racial exclusion. The current applicant pool has been skewed
`
`
`plaintiffs’ reply to nonprofit defendants’ brief
`
`
`
`Page 4 of 8
`
`

`

`Case 3:20-cv-02022-IM Document 79 Filed 12/31/20 Page 6 of 8
`
`by the defendants’ racially exclusionary policy, which deterred non-black individuals
`
`and entities from applying, and a first-come-first-served distribution would give nearly
`
`all of the remaining funds to black applicants who submitted their applications at a
`
`time when non-blacks were categorically ineligible for relief. The defendants cannot
`
`distribute the remaining funds in this manner if the Court finds the racial exclusion
`
`unlawful. But this is not to say that the Court should dictate a specific method of
`
`distributing the remaining funds. The Court should simply enjoin the defendants
`
`from allocating the remaining funds on account of race, or by any other process (such
`
`as first-come-first-served) that is tainted by the defendants’ unlawful racial exclusion.
`
`This is entirely consistent with the holding of Planned Parenthood, which allows
`
`courts to declare that “particular criteria” (such as first-come-first-served) are imper-
`
`missible. See id. at 1109.
`
` CONCLUSION
`Leja and Dynamic Service have alleged a claim on which relief may be granted.
`
`Respectfully submitted.
`
` /s/ Jonathan F. Mitchell
`Jonathan F. Mitchell*
`Texas Bar No. 24075463
`Mitchell Law PLLC
`111 Congress Avenue, Suite 400
`Austin, Texas 78701
` 3940 (phone)- (512) 686
`
`
`(512) 686-3941 (fax)
`jonathan@mitchell.law
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`Bradley Benbrook *
`California Bar No. 177786
`Stephen M. Duvernay *
`California Bar No. 250957
`Benbrook Law Group, PC
`400 Capitol Mall, Suite 2530
`Sacramento, California 95814
`(916) 447-4900 (phone)
`(916) 447-4904 (fax)
`brad@benbrooklawgroup.com
`
`James L. Buchal
`Oregon Bar No. 921618
`Murphy & Buchal LLP
`3425 SE Yamhill Street, Suite 100
`Portland, Oregon 97214
`(503) 227-1011 (phone)
`
`
`
`
`plaintiffs’ reply to nonprofit defendants’ brief
`
`
`
`Page 5 of 8
`
`

`

`Case 3:20-cv-02022-IM Document 79 Filed 12/31/20 Page 7 of 8
`
`(503) 573-1939 (fax)
`jbuchal@mbllp.com
`
`Dated: December 31, 2020
`
`* admitted pro hac vice
`
`Counsel for Plaintiffs
`and the Proposed Classes
`
`
`
`
`
`
`
`plaintiffs’ reply to nonprofit defendants’ brief
`
`
`
`Page 6 of 8
`
`

`

`Case 3:20-cv-02022-IM Document 79 Filed 12/31/20 Page 8 of 8
`
`CERTIFICATE OF SERVICE
`I certify that on December 31, 2020, I served this document through CM/ECF
`
`upon:
`
`Clifford S. Davidson
`Snell & Wilmer LLP
`One Centerpointe Drive, Suite 170
`Lake Oswego, Oregon 97035
`(503) 624-6800 (phone)
`(503) 624-6888 (fax)
`csdavidson@swlaw.com
`
`Kelly H. Dove
`Snell & Wilmer LLP
`3883 Howard Hughes Parkway,
`Suite 1100
`Las Vegas, Nevada 89169
`702-784-5200 (phone)
`702-784-5252 (fax)
`kdove@swlaw.com
`
`Counsel for State Defendants
`
`
`
`
`
`
`Amanda Gamblin
`Nika Aldrich
`Shwabe, Williamson & Wyatt
`PacWest Center
`1211 SW Fifth Avenue, Suite 1900
`Portland, Oregon 97204
`(503) 222-9981 (phone)
`(503) 796-2900 (fax)
`agamblin@schwabe.com
`naldrich@schwabe.com
`
`Counsel for Defendant The Contingent
`
` /s/ Jonathan F. Mitchell
`Jonathan F. Mitchell
`Counsel for Plaintiffs
`and the Proposed Classes
`
`
`
`plaintiffs’ reply to nonprofit defendants’ brief
`
`
`
`Page 7 of 8
`
`