USCA Case #17-5104 Document #1676696 Filed: 05/25/2017 Page 1 of 11

No. 17-5104

____________________

IN THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA
____________________

IN RE STATE OF MARYLAND,

Petitioner.

____________________

On Petition for a Writ of Mandamus

to the United States District Court for the District of Columbia
(Richard J. Leon, District Judge)
____________________

REPLY IN SUPPORT OF PETITION FOR WRIT OF MANDAMUS

____________________

BRIAN E. FROSH
Attorney General of Maryland
LINDA M. DEVUONO
Assistant Attorney General
707 North Calvert Street
Suite C407
Baltimore, Maryland 21201
Telephone: (410) 545-0070

ALBERT M. FERLO
Perkins Coie LLP
700 Thirteenth Street, N.W., Suite 600
Washington, D.C. 20005-3960
Telephone: (202) 654-6262

May 25, 2017 Attorneys for Petitioner

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INTRODUCTION
The State is at a critical juncture in its development of the Purple Line, the

very existence of which is threatened by the failure of the district court to issue a

final judgment. That failure creates an extraordinary situation. The Respondents

claim in their Response that the Petition is moot. They are both factually and

legally wrong.

ARGUMENT
I. THE PETITION IS NOT MOOT.
The States Petition is not moot. The May 22, 2017 Opinion (ECF 138)

decided only one issue out of the myriad of issues that the district court itself

acknowledges remain in the case. May 22 Opinion at 2. The May 22 Opinion

provides no definite timeline for issuing a final decision resolving all or even any

of the remaining issues in the case.

Like the district courts earlier opinion (issued August 3, 2016, ECF 96)

addressing a single issue, the May 22 Opinion does not afford the State an

opportunity to seek meaningful appellate review. While the State is confident it

can prevail in this Court on that single issue if given an opportunity to address the

merits of the district courts decision, the continued lack of a final decision on all

remaining issues and uncertainty about when that decision will be issued leaves

the State without an opportunity to seek timely appellate review of an adverse

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court decision, while each passing week increases the Projects costs and the

potential for Project cancellation.1

The States Petition is based on its need for certainty in the near future

concerning the resolution of the remaining issues in this case. The district courts

decision simply states that the court intends to issue an opinion on these

remaining issues in the next few weeks. May 22 Opinion at 2, n.1. That

statement, which is at best ambiguous, does not alleviate the extraordinary

circumstances identified in the States Petition. An intention to issue an opinion in

a few weeks provides no certainty that the district court will issue a timely, final

appealable order on all issues raised in the cross-motions for summary judgment

that were filed almost one year ago. The judges reference to a few weeks offers

little reason for confidence when viewed in the context of the district courts

previous assurances, issued almost two years ago, insisting that the time needed for

the courts decision of the case would have a little bit of a delaying effect, but,

you know, not that much, which the judge went on to estimate as a month or

two. July 15, 2015 Transcript (July 15 Tr.) at 22, 23. Further piecemeal

1
Respondents claim that the Petition is moot because the Court has (again)
decided the case on the merits (Response at 6; emphasis in original) ignores the
primary relief sought in the Petition, which is to require the district court to rule on
all of the summary judgment issues. As the district court itself acknowledges,
myriad other claims and issues remain pending. If that is not true, and
Respondents have abandoned all their other claims, then it is incumbent on them to
inform the district court of that decision to allow the court to issue a final judgment
that will allow the State to take an appeal in its own right.

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resolution of the issues raised in this case would further jeopardize the States

ability to determine whether and how it should proceed. At this point, only a

decision on all issues on a date established by an order from this Court will provide

the State with the certainty needed to determine its path forward for the Project:

seek emergency relief to stay the order vacating the ROD along with expedited

review in this Court; undertake additional analysis as may be directed by the

district court; or decide to cancel the Project.

The timeframe for a decision on all issues from the district court is critical to

the Project. As the State outlined in the Declaration of Secretary Rahn in support

of its Petition, the time for making a decision on the future of the Purple Line is

close at hand. On or shortly after June 1, 2017, the State will begin the process of

shutting down ongoing Project activities. Petition Exhibit A, Rahn Decl. 61.

Secretary Rahn anticipates that within 60 days after shut-down begins (i.e., early

August), a decision to cancel the Project could occur. Id. at 65. Thus, even if

the district court rules in the States favor on all other issues, the longer it takes for

a few weeks to transpire, and the closer that gets to the end of the shutdown

period described by Secretary Rahn, the more urgent the States nearly certain

request for emergency relief from this Court will be.

The State faces a very real set of deadlines by which it must determine

whether this important Project can continue. The State has suffered and stands to

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continue to suffer the cascading consequences that the State warned the district

court could occur. See Petition at 21-22; Rahn Decl. 56-78. Only an order from

this Court requiring the district court to issue an opinion on all issues by a date

certain can ensure that the fate of the Project is not determined due to a failure of

the judicial system to address challenges raised in a timely manner.

II. RESPONDENTS REMAINING ARGUMENTS ARE MERITLESS.

In their Response, Respondents raise additional arguments that warrant only

a brief response.

A. Respondents Argument That the Court Has Been Making Steady

Progress Is Irrelevant.
Respondents argue that a writ of mandamus is unwarranted here because the

district court has been conscientious in managing this litigation. Response at 3-

4. Respondents argument side-steps the fundamental issue: the vast majority of

the merits issues have been fully briefed for nearly a year without a decision,

notwithstanding repeated efforts by the State to communicate the urgency of

resolving this litigation. Further, the record is replete with statements by the

district court, cited in the Petition, that dismiss the States concerns about the

potential peril to the Project caused by a delay in resolving this litigation. The core

of the States concern is that the district court did not render a full decision on the

merits of all issues, leaving the Project in limbo.

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Moreover, the States Petition is not based solely on the district courts delay

in reaching a final decision. The State acknowledges that, in normal

circumstances, the length of time that this case has been pending in the district

court is not generally deemed unreasonable or a cause for concern. Petition at 3.

Rather, it is the totality of the circumstances surrounding the district courts

handling of this case that underlies the States request not simply the delay in

making a decision on the majority of the issues.

B. The TRAC Line of Cases Is Inapplicable.

Relying on Telecommunications Research & Action Center (TRAC) v.

Federal Communications Commission, 750 F.2d 70 (D.C. Cir. 1984), and an

unpublished order by this Court,2 Respondents mistakenly suggest that mandamus

will only issue if a district courts delay extends to years. Response at 5. TRAC is

focused only on the issue of unreasonable agency delay and does not set a bright-

line test for how long a district courts delay must extend before mandamus will

issue. As explained in the States Petition, Cheney v. U.S. Dist. Court for Dist. Of

Columbia, 542 U.S. 367 (2004), not TRAC, establishes the proper test for

2
Respondents citation to this Courts unpublished Order in In re United States,
925 F.2d 490 (D.C. Cir. 1991), directly contravenes Circuit Rule 32.1, which
prohibits citing as precedent such materials. In any event, the Court in that Order
determined that, under the circumstances of that case, a two-month delay in ruling
on an outstanding motion did not warrant issuance of a writ of mandamus. In this
case, the district court has failed to act on fully briefed motions which have been
pending for almost a year.

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evaluating a mandamus petition. Under Cheney, the Court is to consider not just

delay, but a broader set of three factors, all of which favor the requested relief in

this case. Petition at 13-24.

C. The Harm the State Will Suffer Absent a Timely Decision by the
District Court Is Not Self-Inflicted.
Respondents attempt to discount the harm to the State that will occur absent

a timely decision from the district court as self-inflicted. Response at 8-9.3 That

argument is both factually incorrect and premised on cases that are inapposite. For

example, Pennsylvania v. New Jersey, 426 U.S. 660 (1976), is an original

jurisdiction case involving imposition of taxes on non-residents. The Supreme

Court found that it lacked jurisdiction because the defendant State had not

inflicted any injury upon the plaintiff States. 426 U.S. at 664. Here, the injury

to the State will arise out of a lack of a timely decision by a court in a case brought

by a small group of people who oppose a project that will be located near their

residences. The other cases cited by Respondents are similarly inapposite. They

are cases involving requests for preliminary injunctive relief. The State had no

3
Respondents mistakenly suggest that recent federal budget documents threaten
the availability of federal funding for the Purple Line. See Response at n.4. In
fact, the budget materials the Administration prepared for Congress just this week
confirm that FTA is prepared to issue the federal funding reserved to support the
Purple Line should the ROD be reinstated. See
https://www.transit.dot.gov/sites/fta.dot.gov/files/docs/funding/grant-
programs/capital-investments/60926/md-bethesda-new-carrollton-national-capital-
purple-line-fy-18-profile.pdf.

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obligation to halt efforts to make this long-planned and much needed transportation

facility a reality for its citizens simply because a lawsuit was filed.

Respondents arguments reverse the normal presumption applied to this

situation. Respondents never sought preliminary injunctive relief. There is no

merit whatsoever to Respondents argument that the State was required to postpone

the Project entirely until full resolution of this litigation or give up its right to

expect timely decisions under the circumstances. There was no reason to believe

that the district court would engage in a piecemeal decision-making process that

would prevent the State from seeking timely review from this Court. The great

harm that the State will suffer absent a timely decision by the district court on all

remaining issues, when viewed as part of the totality of circumstances, warrants

mandamus relief from this Court.

CONCLUSION
For the foregoing reasons, and the reasons addressed in the initial Petition,

the Petition should be granted and the district court ordered to issue a decision on

all remaining issues forthwith.

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Dated: May 25, 2017 Respectfully submitted,

BRIAN E. FROSH
Attorney General of Maryland

LINDA M. DEVUONO (Bar No. 429514)

Assistant Attorney General
707 North Calvert Street, Suite C407
Baltimore, Maryland 21201
Telephone: (410) 545-0070
Email: ldevuono@sha.state.md.us

/s/ Albert M. Ferlo

ALBERT M. FERLO
Perkins Coie LLP
700 Thirteenth Street, N.W., Suite 600
Washington, D.C. 20005-3960
Telephone: (202) 654-6262
Facsimile: (202) 654-6211
Email: aferlo@perkinscoie.com

Attorneys for Petitioner

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CERTIFICATE OF COMPLIANCE
I hereby certify that this brief complies with the type-volume limitation of

Rule 21(d)(i) of the Federal Rules of Appellate Procedure. As measured by the

word-processing system used to prepare this brief, the brief contains 1,751 words,

excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii), and

complies with the type style requirements of Fed. R. App. P. 32(a)(6), because it

has been prepared in a 14 point proportionally spaced roman-style typeface (Times

New Roman).

/s/ Albert M. Ferlo

Albert M. Ferlo
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CERTIFICATE OF SERVICE
I hereby certify that on May 25, 2017, a copy of the foregoing Reply In

Support of Petition for a Writ of Mandamus was served through filing on the

Courts electronic record filing system and also on counsel for Respondents

through electronic mail: Eric Glitzenstein, eglitzenstein@meyerglitz.com, David

W. Brown, brown@knopf-brown.com, and John M. Fitzgerald,

johnmfirzgerald@earthlink.net

Date: May 25, 2017

/s/ Albert M. Ferlo

Albert M. Ferlo