Motion for Leave to File, Confederated Tribes of the Chehalis Reservation et al. v. Mnuchin, No. 1:20-cv-01002 (D.D.C.), Doc. 69 (May 19, 2020)

Summary

Ute Tribe's Motion for Surreply in Confederated Tribes of the Chehalis Reservation, et al. v. Stephen Mnuchin, No. 1:20-cv-1002-APM, filed May 19, 2020. The Ute Indian Tribe of the Uintah and Ouray Reservation asks leave to file a short surreply, attached to the motion. The Tribe states that the movant group led by Calista Corporation made one argument about independent subject matter jurisdiction in its opening brief and the opposite argument in its Reply Brief. It further states that Calista Corporation now asserts, for the first time, that it is the real party in interest in this APA case. Counsel Jeffrey S. Rasmussen and Rollie E. Wilson sign for the Tribe.

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            Case 1:20-cv-01002-APM Document 69 Filed 05/19/20 Page 1 of 3



                                      UNITED STATES DISTRICT COURT
                                          DISTRICT OF COLUMBIA


 CONFEDERATED TRIBES OF THE
 CHEHALIS RESERVATION, ET AL.,

                        Plaintiffs,

                                                        UTE TRIBE’S MOTION FOR SURREPLY

     v.


 STEPHEN MNUCHIN, IN HIS OFFICIAL                            Civil Case No.: 1:20-cv-1002-APM
 CAPACITY AS Secretary of the Treasury,
 SECRETARY,

                         Defendant.


          The Ute Indian Tribe of the Uintah and Ouray Reservation files this motion to file a short

surreply on two issue. The proposed surreply is attached hereto.

          First, in their motions to intervene opening brief, the movants all acknowledges that under

the law in this circuit, the Movant is required to establish an independent ground for subject matter

jurisdiction. The Tribe responded to that argument. The movant group led by Calista Corporation

(hereinafter Calista Corporation) was apparently convinced that the Tribe was correct—that

Movant had failed to establish an independent ground for subject matter jurisdiction. Now, in its

Reply Brief, Calista Corporation makes a new argument. In fact, it makes the exact opposite

argument from that made in its opening brief.

          Second, Calista Corporation now asserts that in this APA case, it is the real party in interest.

Neither it nor any other movant made that argument in their briefs in support of their motions. The

Tribe seeks to briefly respond to that new argument.
          Case 1:20-cv-01002-APM Document 69 Filed 05/19/20 Page 2 of 3



                                     DISCUSSION OF LAW

        Courts “routinely” grant leave to file a surreply ‘“when a party is unable to contest matters

presented to the court for the first time’ in the last scheduled pleading.” Ben-Kotel v. Howard

Univ., 319 F.3d 532, 536 (D.C. Cir. 2003) (quoting Lewis v. Rumsfeld, 154 F. Supp. 2d 56, 61

(D.D.C. 2001)); Mitchell v. Craftworks Rests. & Breweries, Inc., 2018 U.S. Dist. LEXIS 183345

(D.D.C. 2018) (“Though a degree of unfairness is inevitable whenever new evidence is presented

in a reply, such unfairness can be mitigated by allowing the opposing party the opportunity to file

a sur-reply.”).

        In determining whether or not to grant such leave, a court considers “whether the movant’s

reply in fact raises arguments or issues for the first time, whether the nonmovant’s

proposed surreply would be helpful to the resolution of the pending motion, and whether the

movant would be unduly prejudiced were leave to be granted.” Banner Health v. Sebelius, 905 F.

Supp. 2d 174, 187 (D.D.C. 2012).

        In the present case, the Tribe plainly meets those requirements. Calista Corporation makes

two new arguments in its reply. In fairness, the Tribe’s short surreply should be permitted and

considered by the Court.

Respectfully submitted, May 19, 2020

                                              FREDERICKS PEEBLES & PATTERSON LLP


                                              s/ Jeffrey S. Rasmussen
                                              Frances C. Bassett, Pro Hac Vice Admission
                                              Jeremy J. Patterson, Pro Hac Vice Admission
                                              Jeffrey S. Rasmussen, Pro Hac Vice Admission
                                              1900 Plaza Drive
                                              Louisville, Colorado 80027
                                              Telephone: (303) 673-9600
                                              Facsimile: (303) 673-9155/9839
                                              Email: fbassett@ndnlaw.com
                                              Email: jpatterson@ndnlaw.com
                                                 2
Case 1:20-cv-01002-APM Document 69 Filed 05/19/20 Page 3 of 3



                           Email: jrasmussen@ndnlaw.com

                           and
                           s/ Rollie E. Wilson
                           Rollie E. Wilson (D.C. Bar No. 1008022)
                           401 9th Street, N.W., Suite 700
                           Washington, D.C. 20004
                           Telephone: (202) 450-4887
                           Facsimile: (202) 450-5106
                           Email: rwilson@ndnlaw.com

                           Counsel for Plaintiff Ute Indian Tribe of the Uintah
                           and Ouray Reservation




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