Case 3:20-cv-01035-SI Document 209 Filed 06/11/21 Page 1 of 35

BRIAN M. BOYNTON
Acting Assistant Attorney General
SCOTT ERIK ASPHAUG
Acting United States Attorney
ALEXANDER K. HAAS
Director, Federal Programs Branch
BRIGHAM J. BOWEN
Assistant Director, Federal Programs Branch
JORDAN L. VON BOKERN (DC 1032962)
KERI L. BERMAN
JASON LYNCH
MICHAEL P. CLENDENEN
Trial Attorneys
U.S. Department of Justice
Civil Division, Federal Programs Branch
1100 L Street, NW
Washington, D.C. 20530
Tel.: (202) 305-7919
Fax: (202) 616-8460

Attorneys for Defendants

UNITED STATES DISTRICT COURT

DISTRICT OF OREGON
PORTLAND DIVISION

INDEX NEWSPAPERS, LLC, et al., Case No. 3:20-cv-1035-SI

Plaintiffs. FEDERAL DEFENDANTS’
MOTION FOR AN INDICATIVE
RULING DISSOLVING THE
v. PRELIMINARY INJUNCTION
CITY OF PORTLAND, et al.,

Defendants.

FEDERAL DEFENDANTS’ MOTION FOR AN INDICATIVE RULING

 Case 3:20-cv-01035-SI Document 209 Filed 06/11/21 Page 2 of 35

FEDERAL DEENDANTS’ MOTION FOR AN INDICATIVE RULING DISSOLVING

THE PRELIMINARY INJUNCTION

Federal Defendants respectfully move under Federal Rule of Civil Procedure 62.1(a) for

an indicative ruling from this Court that it would dissolve the preliminary injunction, ECF

No. 157. In support of this Motion, Federal Defendants refer the Court to the attached

Memorandum. Pursuant to Local Rule 7-1, Federal Defendants certify that their counsel has

conferred in good faith with counsel for Plaintiffs and that Plaintiffs oppose this motion.

BRIAN M. BOYNTON
Acting Assistant Attorney General

SCOTT ERIK ASPHAUG

Acting United States Attorney

ALEXANDER K. HAAS
Director, Federal Programs Branch

BRIGHAM J. BOWEN
Assistant Director, Federal Programs Branch

/s/ Jordan L. Von Bokern

JORDAN L. VON BOKERN (DC 1032962)
KERI L. BERMAN
JASON LYNCH
MICHAEL P. CLENDENEN
Trial Attorneys
U.S. Department of Justice
Civil Division, Federal Programs Branch
1100 L Street, NW
Washington, D.C. 20530
Tel.: (202) 305-7919
Fax: (202) 616-8460

Counsel for Defendants

FEDERAL DEFENDANTS’ MOTION FOR AN INDICATIVE RULING

 Case 3:20-cv-01035-SI Document 209 Filed 06/11/21 Page 3 of 35

UNITED STATES DISTRICT COURT

DISTRICT OF OREGON
PORTLAND DIVISION

INDEX NEWSPAPERS, LLC, et al., Case No. 3:20-cv-1035-SI

Plaintiffs. FEDERAL DEFENDANTS’
MOTION FOR AN INDICATIVE
RULING DISSOLVING THE
v. PRELIMINARY INJUNCTION
CITY OF PORTLAND, et al.,

Defendants.

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF FEDERAL

DEFENDANTS’ MOTION FOR AN INDICATIVE RULING UNDER RULE 62.1(a)

FEDERAL DEFENDANTS’ MOTION FOR AN INDICATIVE RULING

 Case 3:20-cv-01035-SI Document 209 Filed 06/11/21 Page 4 of 35

TABLE OF CONTENTS

INTRODUCTION .......................................................................................................................... 1

BACKGROUND ............................................................................................................................ 2

LEGAL STANDARDS .................................................................................................................. 4

ARGUMENT .................................................................................................................................. 6

I. Given the Many Developments Since the Injunction’s Issuance, the Injunction Should Be

Dissolved............................................................................................................................. 6

A. The claims against Federal Defendants are moot ................................................... 6

1. The civil unrest that precipitated the events of last summer
has dissipated .............................................................................................. 7
2. No evidence shows that retaliatory animus exists today ............................ 9
3. Other courts in this District have found the claims moot ......................... 11
4. It is especially clear that the claims against USMS are moot ................... 12
5. No exception to mootness applies............................................................. 13

B. Changed circumstances vitiate Plaintiffs’ claims ................................................. 15

II. Plaintiffs Face No Likelihood of Irreparable Harm .......................................................... 21

III. The Balance of the Equities Favors Federal Defendants .................................................. 24

CONCLUSION ............................................................................................................................. 26

FEDERAL DEFENDANTS’ MOTION FOR AN INDICATIVE RULING - i

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TABLE OF AUTHORITIES

CASES

ACLU v. Finch,
638 F.2d 1336 (5th Cir. 1981) .................................................................................................. 10

ACLU v. NSA,
493 F.3d 644 (6th Cir. 2007) .................................................................................................... 19

Afifi v. Lynch,
101 F. Supp. 3d 90 (D.D.C. 2015) ............................................................................................ 19

Am. Diabetes Ass’n v. U.S. Dept. of the Army,

938 F.3d 1147 (9th Cir. 2019) .................................................................................................. 13

Bayer v. Neiman Marcus Grp., Inc.,

861 F.3d 853 (9th Cir. 2017) ................................................................................................ 6, 15

Bennett v. Spear,
520 U.S. 154 (1997) ............................................................................................................ 18, 19

Boardman v. Pac. Seafood Grp.,

822 F.3d 1011 (9th Cir. 2016) .................................................................................................. 21

City of Los Angeles v. Lyons,

461 U.S. 95 (1983) ........................................................................................................ 14, 21, 22

E. Bay Sanctuary Covenant v. Biden,

993 F.3d 640 (9th Cir. 2021) .................................................................................................... 20

Fairbanks N. Star Borough v. U.S. Army Corps of Eng’rs,

543 F.3d 586 (9th Cir. 2008) .................................................................................................... 18

Federal Election Commission v. Furgatch,

869 F.3d 1256 (9th Cir. 1989) .................................................................................................. 23

Fed. Election Comm’n v. Wisconsin Right To Life, Inc.,

551 U.S. 449 (2007) .................................................................................................................. 14

Feiner v. New York,

340 U.S. 315 (1951) .................................................................................................................. 24

For The Wild Rockies v. Cottrell,

632 F.3d 1127 (9th Cir. 2011) .................................................................................................. 21

Gomez v. Vernon,
255 F.3d 1118 (9th Cir. 2001) .................................................................................................. 17

FEDERAL DEFENDANTS’ MOTION FOR AN INDICATIVE RULING - ii

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Hodgers-Durgin v. de la Vina,
199 F.3d 1037 (9th Cir. 1999) (en banc) .................................................................................. 22

Index Newspapers LLC v. City of Portland,

No. 3:20-CV-1035-SI, 480 F. Supp. 3d 1120 (D. Or. Aug. 20, 2020) .............................. passim

Int’l Soc’y for Krishna Consciousness, Inc. v. Lee,

505 U.S. 672 (1992) .................................................................................................................. 24

Karnoski v. Trump,
926 F.3d 1180 (9th Cir. 2019) .................................................................................................... 5

Los Angeles Cty., Cal. v. Humphries,

562 U.S. 29 (2010) .................................................................................................................... 16

Lujan v. Nat’l Wildlife Fed’n,

497 U.S. 871 (1990) .................................................................................................................. 19

Nat’l Treasury Emp. Union v. Campbell,

654 F.2d 784 (D.C. Cir. 1981) .................................................................................................. 10

Network Project v. Corp. for Pub.,

Broad., 561 F.2d 963 (D.C. Cir. 1977) ..................................................................................... 10

NewGen, LLC v. Safe Cig, LLC,

840 F.3d 606 (9th Cir. 2016) ...................................................................................................... 5

Olagues v. Russoniello,
770 F.2d 791 (9th Cir. 1985) .................................................................................................... 21

O’Neal v. City of Seattle,

66 F.3d 1064 (9th Cir. 1995) .................................................................................................. 6, 7

Philadelphia v. Educ. Equal. League,

415 U.S. 605 (1974) .................................................................................................................. 10

Protectmarriage.com-Yes on 8 v. Bowen,
752 F.3d 827 (9th Cir. 2014) .................................................................................................... 14

Public Utilities Commission of California v. FERC,

100 F.3d 1451 (9th Cir. 1996) .................................................................................................. 13

Puente Arizona v. Arpaio,

2017 WL 1133012 n.5 (D. Ariz. Mar. 27, 2017) ...................................................................... 23

Rendish v. City of Tacoma,

123 F.3d 1216 (9th Cir. 1997) .................................................................................................. 21

FEDERAL DEFENDANTS’ MOTION FOR AN INDICATIVE RULING - iii

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Rivera v. United States,

924 F.2d 948 (9th Cir. 1991) ...................................................................................................... 6

Rosebrock v. Mathis,
745 F.3d 963 (9th Cir. 2014) .................................................................................................... 13

Ruiz v. City of Santa Maria,

160 F.3d 543 (9th Cir. 1998) ...................................................................................................... 7

Sharp v. Weston,
233 F.3d 1166 (9th Cir. 2000) .................................................................................................... 5

Soundboard Ass’n v. FTC,

888 F.3d 1261 (D.C. Cir. 2018) ................................................................................................ 18

Spomer v. Littleton,
414 U.S. 514 (1974) .................................................................................................................. 10

Taylor v. Resolution Tr. Corp.,

56 F.3d 1497 (D.C. Cir. 1995) .................................................................................................... 6

Thomas v. Cty. of Los Angeles,

978 F.2d 504 (9th Cir. 1992) ...................................................................................................... 9

Trailer Train Co. v. State Bd. of Equalization,

697 F.2d 860 (9th Cir. 1983) .................................................................................................... 23

United States v. Griefen,

200 F.3d 1256 (9th Cir. 2000) .................................................................................................. 24

Uzuegbunam v. Preczewski,
141 S. Ct. 792 (2021) .................................................................................................................. 7

Wal-Mart Stores, Inc. v. Dukes,

564 U.S. 338 (2011) .............................................................................................................. 7, 15

Walsh v. Nev. Dep’t of Human,

Res., 471 F.3d 1033 (9th Cir. 2006) ............................................................................................ 7

Western States Ctr. Inc. v. Dept. of Homeland Sec.,

Case No. 3:20-cv-1175, 2020 WL 6555054 (D. Or. Nov. 2, 2020) ......................................... 11

Western States Ctr. Inc. v. Dept. of Homeland Sec.,

Case No. 3:20-cv-1175, 2021 WL 1896965 (May 11, 2021) ......................................... 4, 11, 12

Wise et al. v. City of Portland,

Case No. 3:20-cv-1193-IM, 2021 WL 1950016 (D. Or. May 15, 2021) ........................ 4, 11, 14

FEDERAL DEFENDANTS’ MOTION FOR AN INDICATIVE RULING - iv

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STATUTES

5 U.S.C. § 704 ......................................................................................................................... 18, 19

40 U.S.C. § 1315 ....................................................................................................................... 8, 20

42 U.S.C. § 1983 ........................................................................................................................... 16

RULES

Fed. R. App. P. 12.1 ........................................................................................................................ 5

Federal Rule of Civil Procedure 62.1 ......................................................................................... ii, 5

FEDERAL DEFENDANTS’ MOTION FOR AN INDICATIVE RULING - v

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INTRODUCTION

The unique circumstances in Portland that gave rise to this case and to this Court’s

preliminary injunction have dissipated, rendering this case moot and further preliminary

injunctive relief unnecessary. The federal courthouse in Portland, which became a focal point of

last summer’s large daytime protests and of the accompanying nightly attacks on federal

property and federal law enforcement officers, has returned to near-uninterrupted quiet for more

than half a year. The U.S. Marshals Service (USMS) has not deployed to respond to group

criminal activity aimed at the federal courthouse since shortly after this Court’s original

injunction, and the Department of Homeland Security (DHS) has terminated Operation Diligent

Valor, returned to a static law enforcement posture, ended the deployment of U.S. Customs and

Border Protection (CBP) officers and agents, ended the deployment of U.S. Immigration and

Customs Enforcement (ICE) Special Response Teams, and has needed to respond to only a small

number of mostly low-attendance incidents since November, most of them in response to

criminal activity targeting the ICE facility in south Portland. In short, the activities of federal law

enforcement officers in Portland today are dramatically different from the activities of the

summer of 2020.

Even assuming that the entry of the original preliminary injunction was proper in light of

the circumstances at the time, which Federal Defendants dispute, the changed facts on the ground

make clear that the dispute giving rise to this case is no longer live. Plaintiffs’ claims are directed

at long-concluded actions by individual officers, rather than prospective general law enforcement

actions. And even if this case were not formally moot, the situation in Portland today does not

support the continuation of preliminary relief. Federal Defendants therefore request that this

Court enter an indicative ruling stating that it would grant Federal Defendants’ motion to

dissolve the preliminary injunction, permitting the court of appeals to remand the case for further

proceedings, if, indeed, any proceedings are necessary despite the changed circumstances.

FEDERAL DEFENDANTS’ MOTION FOR AN INDICATIVE RULING - 1

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BACKGROUND

As this Court described the situation in its preliminary injunction opinion—and as the

attached declaration of Federal Protective Service (FPS) Deputy Regional Director Patrick Zitny

factually supports—last summer Portland experienced “consistent protests” that were “generally

peaceful, particularly during the day and early evening,” but that were followed by nights of

“vandalism, destruction of property, looting, arson, and assault.” Index Newspapers LLC v. City

of Portland, No. 3:20-CV-1035-SI, 480 F. Supp. 3d 1120, 1137 (D. Or. Aug. 20, 2020); see also

Declaration of Patrick Zitny (“Zitny Decl.”), ECF No. 205 ¶ 3. Those groups “soon directed their

attention to the Mark O. Hatfield Federal Courthouse,” after which “additional federal officers

were deployed to Portland to support [FPS] and USMS personnel.” Index Newspapers, 480 F.

Supp. 3d at 1137; see also Zitny Decl. ¶¶ 3–4. In response, “the protests grew larger and more

intense, and the federal courthouse became a focus of attention.” Index Newspapers, 480 F.

Supp. 3d at 1137; see also Zitny Decl. ¶¶ 3–4. Agitators targeted the federal courthouse for

vandalism and destruction, and they directed acts of violence at federal law enforcement officers.

Index Newspapers, 480 F. Supp. 3d at 1137; see also Zitny Decl. ¶ 3 (“The protests occurred

daily, with largely peaceful protests occurring during the daytime hours. The daytime protests

were regularly followed by nightly criminal activity in the form of vandalism, destruction of

property, looting, arson, and assault, directed at federal property … and federal law enforcement

officers.”). Numerous federal law enforcement officers suffered injury. Index Newspapers, 480

F. Supp. 3d at 1137; Zitny Decl. ¶ 9 (“[D]uring the period from May 26, 2020 through October

31, 2020 … 219 federal law enforcement officers were injured responding to the violence.”). In

short, last summer there was “daily violence that required DHS law enforcement officers to use

force.” Zitny Decl. ¶ 9.

That is not the situation today. Whereas the criminal activity aimed at federal property

last summer required federal law enforcement officers to use force on a daily basis, DHS has had

to use force in response to unlawful groups fewer than two dozen times since November 1, 2020.

Zitny Decl. ¶ 6. And even that number overstates the situation in Portland today, as the handful

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of unruly crowds faced in those incidents have been substantially smaller than the crowds of last

summer. Zitny Decl. ¶ 5. For example, that number includes the most recent incident, a June 1

gathering outside of the ICE facility that included approximately seven participants; the group

had decreased to three participants when the group attempted to block an FPS vehicle, prompting

a response from FPS. Zitny Decl. ¶ 7. And the next most recent incident, on May 29, saw about a

dozen individuals, some of whom eventually attempted to unlawfully enter the facility and

damage a rolling gate. Zitny Decl. ¶ 8. Only 35 individuals in total have been arrested at these

two dozen incidents, with most simply receiving a citation and being released, and the number of

officers reporting injuries over that time period is significantly reduced from the summer months

as well. Zitny Decl. ¶ 6. The group gatherings have also been aimed primarily at the ICE facility

in south Portland, and they have been focused more on general anti-government sentiment and

ICE. Zitny Decl. ¶ 5. Indeed, DHS has terminated Operation Diligent Valor and has returned to a

more static operational posture, with only about a dozen out-of-Region FPS officers deployed to

Portland (Zitny Decl. ¶¶ 10–11)—all of which are steps showing a return to normalcy.

For the U.S. Marshals Service, the decline in activity has been even more precipitous.

USMS has not deployed outside of the courthouse to respond to group criminal activity since

July 30, 2020. See Decl. of Acting U.S. Marshal Pete Cajigal (“Cajigal Decl.”), ECF No. 204

¶ 7. USMS has resumed its traditional responsibility of maintaining the security solely of the

interior of the federal courthouse, and the agency does not expect it will need to augment FPS in

FPS’s routine duties of responding to security concerns on the exterior of the courthouse Id. ¶ 12.

The USMS Special Operations Group ended its Portland deployment on August 27, and USMS

has not had staff from HQ or from other districts deployed to secure the staffing at the

courthouse since November 9, 2020. Id. ¶ 6. USMS officially shut down operations relating to

the protest activities on November 15, 2020. Id. ¶ 8. With the exception of some graffiti, the

federal courthouse has only rarely been the target of criminal activity since the beginning of

November—for example, in November a crowd of approximately five people threw trash over

the fence and pushed on the fence, and on March 11 and 12, 2021, a group of violent extremists

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vandalized the courthouse in response to the removal of the perimeter fencing. Id. ¶¶ 8–9. At

neither incident did the USMS deploy from the building. Id. ¶ 10. Operations for USMS are back

to normal.

The same is true of CBP and ICE. CBP has not had staff deployed to Portland to respond

to criminal activity aimed at federal property since January 24, 2021. See Declaration of Timothy

P. Sullivan (“Sullivan Decl.”), ECF No. 206 ¶ 4–5; Zitny Decl. ¶ 11 (“FPS is no longer being

augmented by other DHS law enforcement officers.”). And ICE has not deployed either its

Homeland Security Investigations Special Response Team or its Enforcement and Removal

Operations Special Response Team to Portland since late March. See Declaration of Patrick D.

McKenna (“McKenna Decl.”), ECF No. 208 ¶ 6; Declaration of Brian S. Acuna (“Acuna

Decl.”), ECF No. 207 ¶ 10. There are currently no plans to deploy CBP or ICE personnel to

Portland to respond to criminal activity aimed at federal property. Sullivan Decl. ¶ 6; McKenna

Decl. ¶ 6; Acuna Decl. ¶ 10. Indeed, FPS itself, which bears responsibility for protecting federal

property in its day-to-day responsibilities, has fewer than a dozen FPS officers from outside of

Region 10 deployed to Portland. Zitny Decl. ¶ 11.

In the past month, courts in this District have dismissed as moot two cases challenging

federal law enforcement officers’ actions in Portland and seeking injunctive relief; in both

instances, the plaintiffs contested mootness but did not prevail. See Wise et al. v. City of Portland

et al., Case No. 3:20-cv-1193-IM, 2021 WL 1950016 (D. Or. May 15, 2021); Western States Ctr.

Inc. v. Dept. of Homeland Sec., Case No. 3:20-cv-1175, 2021 WL 1896965 (May 11, 2021). In

two additional cases, Federal Defendants have pending motions to dismiss that raise mootness.

See Pettibone v. Biden, ECF No. 26, Case No. 3:20-cv-1464-YY (D. Or. Mar. 5, 2021); Wolfe v.

City of Portland, ECF No. 65, Case No. 3:20-cv-1882-SI (D. Or. Mar. 15, 2021).

LEGAL STANDARDS

Although the pending appeal of this Court’s preliminary injunction deprives this Court of

jurisdiction to dissolve the preliminary injunction outright, the Court can issue an indicative

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ruling on the motion to dissolve the preliminary injunction. If a party makes a motion for relief

that the District Court “lacks authority to grant because of an appeal that has been docketed and

is pending,” the District Court may defer consideration of the motion, deny the motion, or “state

either that it would grant the motion if the court of appeals remands for that purpose or that the

motion raises a substantial issue.” Fed. R. Civ. P. 62.1(a). “In considering these options, the

district court is free to consider new evidence at its discretion.” NewGen, LLC v. Safe Cig, LLC,

840 F.3d 606, 612 n.1 (9th Cir. 2016). This Court is therefore able to consider Federal

Defendants’ motion to dissolve the preliminary injunction and issue an indicative ruling on the

motion. That gives the Ninth Circuit the opportunity to remand the case for further proceedings.

See, e.g., Fed. R. App. P. 12.1(b) (“If the district court states that it would grant the motion or

that the motion raises a substantial issue, the court of appeals may remand for further

proceedings.”).

In evaluating a motion to dissolve or modify a preliminary injunction, a court must

determine whether the party seeking dissolution or modification has “established ‘a significant

change in facts or law’” that “‘warrants ... dissolution of the injunction.’” Karnoski v. Trump,

926 F.3d 1180, 1198 (9th Cir. 2019) (quoting Sharp v. Weston, 233 F.3d 1166, 1170 (9th Cir.

2000)) (“A party seeking modification or dissolution of an injunction bears the burden of

establishing that a significant change in facts or law warrants revision or dissolution of the

injunction.”)). In evaluating whether revision or dissolution of the injunction is warranted, the

same traditional four criteria govern as in determining whether to grant a preliminary injunction,

although “the burden with respect to these criteria is on the party seeking dissolution.” Id. As

Federal Defendants will discuss, the significant changed circumstances in Portland warrant

dissolution of the injunction.

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ARGUMENT

I. Given the Many Developments Since the Injunction’s Issuance, the Injunction
Should Be Dissolved
Plaintiffs’ only claims against Federal Defendants are for prospective equitable relief.1

Accordingly, Plaintiffs’ likelihood of success on the merits in this case depends on showing that

they are likely to succeed in obtaining final equitable relief. Because their claims are moot, and

because they will be unable to obtain final prospective relief for the same reasons they could not

sustain a preliminary injunction motion if they brought such a motion today, Plaintiffs are not

likely to succeed on the merits of their claims.

A. The claims against Federal Defendants are moot

Even assuming that Plaintiffs had adequately alleged their claims in their Second

Amended Complaint, and even assuming that Plaintiffs sufficiently proved their entitlement to a

preliminary injunction in August 2020 when this Court ordered such an injunction, the

drastically changed circumstances in Portland make clear that any claim to prospective equitable

relief in this case is moot. Because prospective equitable relief is the only remedy Plaintiffs seek

or could seek against Federal Defendants, Plaintiffs are unlikely to succeed on the merits of their

claims.

“A request for injunctive relief remains live only so long as there is some present harm

left to enjoin.” Bayer v. Neiman Marcus Grp., Inc., 861 F.3d 853, 864 (9th Cir. 2017) (quoting

Taylor v. Resolution Tr. Corp., 56 F.3d 1497, 1502 (D.C. Cir. 1995)). “Past exposure to illegal

conduct does not in itself show a present case or controversy regarding injunctive relief . . . if

unaccompanied by any continuing, present adverse effects.” Id. (quoting O’Neal v. City of

Seattle, 66 F.3d 1064, 1066 (9th Cir. 1995)). “Thus, a claim for injunctive relief becomes moot

1
Any claims for damages, including for nominal damages, would fail because the federal
government has sovereign immunity from damages claims for constitutional torts. Rivera v.
United States, 924 F.2d 948, 951 (9th Cir. 1991) (“The courts lack subject matter jurisdiction to
hear constitutional damage claims against the United States, because the United States has not
waived sovereign immunity with respect to such claims.”).
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once subsequent events have made clear the conduct alleged as the basis for the requested relief

could not reasonably be expected to recur.” Id. (quoting Ruiz v. City of Santa Maria, 160 F.3d

543, 549 (9th Cir. 1998)).

Similarly, a plaintiff who cannot reasonably be expected to benefit from prospective

relief ordered against the defendant in light of intervening events has no claim for an injunction.

See Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 364–65 (2011) (concluding plaintiffs whose

employment ended after an action was filed had no claim for injunctive relief against their

former employer concerning its employment practices); see also Walsh v. Nev. Dep’t of Human

Res., 471 F.3d 1033, 1036–37 (9th Cir. 2006) (concluding a plaintiff requesting an injunction

requiring her former employer to adopt and enforce lawful policies “lacked standing to sue for

injunctive relief from which she would not likely benefit”); Uzuegbunam v. Preczewski, 141 S.

Ct. 792, 796 (2021) (“To demonstrate standing, the plaintiff must . . . seek a remedy that

redresses that injury. And if in the course of litigation a court finds that it can no longer provide a

plaintiff with any effectual relief, the case generally is moot.”).

1. The civil unrest that precipitated the events of last summer has
dissipated
The decline in violent protest activity and the decline in responsive federal law

enforcement activity in Portland post-August 2020 have left prospective relief unnecessary.

Defendant USMS has not deployed from the courthouse in response to any incidents since July

2020 (Cajigal Decl. ¶ 7), and the incidents to which DHS has responded are markedly different

from last summer’s. Plaintiffs cannot continue to rely on predictions based on incidents from last

summer, nor should this Court continue an injunction based on the possibility that something

similar might recur at an unknown time, in an unknown place.

Since November 2020, violent activity at federal property has been intermittent, and the

size and strength of the protests has been shrinking, not growing, for months. See Zitny Decl. ¶ 5

(“The level of violence occurring currently is significantly lower than it was during the May-

October 2020 period.”); Cajigal Decl. ¶ 8 (“For the most part, there has not been any protest or

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riot activity directed at the Hatfield Courthouse since November 11, 2020.”). Accordingly, uses

of force and engagement by federal officers with groups engaged in criminal activity have

declined significantly. Zitny Decl. ¶ 6; Cajigal Decl. ¶ 7. In the summer of 2020, demonstrations

were far more frequent, and drew an augmented federal response. Zitny Decl. ¶ 5. Conversely

over the past seven months, fewer than two dozen protests near federal property in Portland

resulted in violent activity that prompted the use of force by DHS. Zitny Decl. ¶ 6. Only 35

individuals were arrested across those 23 incidents. Zitny Decl. ¶ 6. To the extent that there

continues to be unlawful activity at all to which federal officers have responded or may respond,

it has taken place predominately at the ICE facility on South Macadam Avenue in Portland.

Zitny Decl. ¶¶ 5, 14. The need for federal law enforcement activity in Portland has declined

precipitously and bears no resemblance to the situation of last summer, meaning that the

likelihood that federal officers will interact with members of the press and legal observers while

dispersing violent crowds is now greatly reduced. DHS retains its mandate to protect federal

property and its occupants under 40 U.S.C. § 1315 and will continue to do so as threats arise,

Zitny Decl. ¶ 11, but the dramatically reduced frequency and intensity of criminal activity

directed at federal properties since its height in the summer of 2020 means that the threat

landscape facing DHS at this time simply is not the same as it was during those daily attacks.2

The change of location for the bulk of the remaining unlawful gatherings—from the

Hatfield Courthouse to an ICE facility elsewhere in the city—also shows that the controversy

giving rise to this case has receded. The record in this case related entirely to the events

surrounding the Hatfield Courthouse and the unique situation that was presented there. The Ninth

2
On March 11, 2021, FPS removed the security fence around the Hatfield Federal Courthouse.
Later that night, a group of individuals used this opportunity to attack the courthouse, setting
multiple fires and breaking one large window. FPS officers dispersed the group with chemical
irritants. See Cajigal Decl. ¶ 9; Portland Protesters Set Fires, Damage Federal Courthouse,
Officers Respond with Tear Gas, Impact Munitions, Oregonian (Mar. 12, 2021),
https://www.oregonlive.com/portland/2021/03/federal-officers-deploy-impact-munitions-tear-
gas-at-downtown-portland-protesters.html. USMS has reinstalled the fence. See Cajigal Decl.
¶ 11.
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Circuit has held that when the allegations and record of a case relating to alleged police

misconduct relate to a specific physical location or region, the Court’s equitable power is limited

to that same location or region. Thomas v. Cty. of Los Angeles, 978 F.2d 504, 509 (9th Cir.

1992). That rule is a sensible reflection of the burdens facing plaintiffs who seek injunctive relief

against allegedly unlawful actions by law enforcement officers, as the mere possibility of future

exposure to unlawful exercises of discretion by law enforcement officers is insufficient to allow

a plaintiff to pursue such a remedy. Plaintiffs, who have built this case around the unique

circumstances of the large protests and accompanying criminal activity at the federal courthouse

last summer, cannot sustain it by pointing to the existence of separate police activity at a

physically distant location facing different circumstances at a different time period, especially

where Plaintiffs have not provided a factual basis to incorporate that separate police activity into

consideration of their narrowly defined claims.

Here, Plaintiffs’ entire case revolves around last summer’s nightly attacks on the federal

courthouse and on how federal law enforcement officers responded to them; they have raised no

factual or legal claims relating to FPS’s ordinary year-round policing activities with respect to

federal property in Portland. The alleged conduct that was the basis for Plaintiffs’ claims has

terminated and cannot reasonably be expected to recur, and Plaintiffs’ claims for prospective

injunctive relief are therefore moot.

2. No evidence shows that retaliatory animus exists today

In pursuing a preliminary injunction, Plaintiffs relied on their contention that certain

statements of then-President Trump and holders of politically appointed office indicated a

retaliatory motive. See Second Amended Compl. (“SAC”), ECF No. 53 ¶ 186; Mot. for Prelim.

Inj., ECF No. 133 at 7; Reply In Supp. of Mot. for Prelim. Inj., ECF No. 144 at 1–2, 5–6, 18.

Because none of those federal officials now directs or supervises federal officers in Portland,

much less the responses such officers might employ in riot-control circumstances, Plaintiffs’

equitable claims would now be moot even if the former officials had the intent ascribed to them

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by Plaintiffs. See Spomer v. Littleton, 414 U.S. 514, 521–22 (1974) (remanding for mootness

analysis an official-capacity suit for injunctive relief against a State’s Attorney because the suit

was “based upon an alleged practice of willful and malicious racial discrimination” that was

“personal to” the named defendant, who had left office); Nat’l Treasury Emp. Union v.

Campbell, 654 F.2d 784, 788 (D.C. Cir. 1981) (“[W]here the conduct challenged is personal to

the original named defendant, even though he was sued in his official capacity, a request for

prospective injunctive relief is mooted when the defendant resigns.”); see also Network Project

v. Corp. for Pub. Broad., 561 F.2d 963, 967 (D.C. Cir. 1977). Federal agents in Portland who

may be involved in the protection of federal property are no longer following Donald Trump’s

orders; they are under the direction of President Biden and Secretary Mayorkas—neither of

whom is accused by Plaintiffs of any intent to “quell” protests. See SAC ¶ 186. Months-old

statements by former federal officeholders no longer support any conclusions about future

actions—which must be the basis of prospective equitable relief, the only relief available in this

case. As such, Plaintiffs’ speculation regarding the retaliatory intent of those officeholders, even

assuming it was once plausibly grounded in the rhetoric Plaintiffs cite, no longer bears on future

relief in this case.

The Supreme Court has long held that, upon “an intervening change in administration,

the issuance of prospective coercive relief against the successor to the office must rest, at a

minimum, on supplemental findings of fact indicating that the new officer will continue the

practices of his predecessor.” Philadelphia v. Educ. Equal. League, 415 U.S. 605, 622 (1974)

(citing Spomer v. Littleton, 414 U.S. 514 (1974)); see also ACLU v. Finch, 638 F.2d 1336, 1346–

47 (5th Cir. 1981)). Here, such an intervening change in administration is exactly what has taken

place, and there is no evidence that any allegedly retaliatory motivations of past officeholders—

to the extent they existed at all—are shared by the new occupants of those offices.

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3. Other courts in this District have found the claims moot

Two other courts in this District have held that similar claims related to Federal

Defendants’ law enforcement activities in Portland are now moot. In Wise v. City of Portland et

al., the allegations were remarkably similar to those in this case—the plaintiffs there alleged that

they were “protest medics” who wore distinctive clothing to identify them as such, and they

claimed that federal law enforcement officers responding to crowds around the federal

courthouse were retaliating against the protest medics in violation of the First and Fourth

Amendments. Wise et al. v. City of Portland et al., Case No. 3:20-cv-1193-IM, 2021 WL

1950016, at *2 (D. Or. May 15, 2021). The district court dismissed their claims against DHS and

USMS for numerous reasons, including mootness. Id. The court’s opinion relied on the same

changed circumstances that Federal Defendants identify today—that the sporadic protests still

taking place are “markedly distinct from the protests that occurred daily when Plaintiffs brought

their Complaint,” that the protests “have decreased in size, frequency, and even in location,” that

the protests “are motivated by more of a general anti-government sentiment’ than the earlier

protests of the summer,” and that, “[a]s a result, engagement with protesters by federal agents

has declined significantly.” Id. at *10. The court likewise relied on the change in administrations,

which vitiated any reliance the plaintiffs could place on the allegedly retaliatory motivations of

former officeholders. Id. As the court in Wise held, plaintiffs cannot rely on “the general

assumption that protests of some kind will continue to occur in Portland” to transform factual

allegations from last summer’s unique circumstances into a lawsuit seeking prospective remedies

against “Federal law enforcement’s general riot-control procedures.” Id. at *10–11.

Likewise, in Western States, the district court dismissed as moot a lawsuit that challenged

Federal Defendants’ allegedly retaliatory treatment of protesters around the federal courthouse.

In that case, the court had previously entered an injunction against Federal Defendants for a few

days at the beginning of November, finding that certain public statements by officeholders

showed a retaliatory intent. Western States Ctr. Inc. v. Dept. of Homeland Sec., Case No. 3:20-

cv-1175, 2020 WL 6555054, at *1 (D. Or. Nov. 2, 2020). But on May 11, 2021, the court

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dismissed the action as moot, holding that the public statements purportedly showing a

retaliatory motivation were “not only erased but utterly repudiated by this change in

administration.” 2021 WL 1896965, at *1 (May 11, 2021).

The same changed circumstances from those cases are present here, except that those

decisions were issued almost a month ago—and Federal Defendants filed their evidence of

mootness in Wise on March 5—so this Court has the benefit of additional months of facts

showing that the changed circumstances in Portland have persisted. As the attached declarations

make clear, those additional months have been characterized by the same precipitous decline in

relevant law enforcement activities as characterized the preceding months. The persuasive effect

of those other dismissals should be even stronger in light of that stronger record.

4. It is especially clear that the claims against USMS are moot

No claims are more clearly moot than those against the U.S. Marshals Service. As the

attached declaration of Acting U.S. Marshal Pete Cajigal makes clear, the U.S. Marshals Service

has not been involved in the federal law enforcement actions at issue since November 2020. The

U.S. Marshals Service has not deployed outside the courthouse to respond to group criminal

activity aimed at the building since July 30, 2020; their current assignment and posture is to

protect the interior of the building, and they do not anticipate exiting the building to respond to

criminal activity. Cajigal Decl. ¶¶ 7, 12. Even during the most recent criminal activity (other than

occasional graffiti) targeting the Federal Courthouse, in which extremists responded to the

removal of the building’s security fence by vandalizing the building and starting fires, the U.S.

Marshals Service did not engage with those criminals except to pull the doors closed when

individuals attempted to hold them open. Id. ¶ 9–10. And although Federal Defendants contest

that the mere presence of out-of-state officers is a factor against finding mootness, the U.S.

Marshals Service hasn’t had out-of-state Deputies—members of the Special Operations Group or

otherwise—assigned to secure the staffing at the courthouse since November 9, 2020. Id. ¶ 6.

This Court suggested in its preliminary injunction decision that the departure of out-of-state law

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enforcement officers would have a particularly persuasive effect on questions of mootness, Index

Newspapers, 480 F. Supp. 3d at 1140, and that is exactly what has happened with respect to the

U.S. Marshals Service. The U.S. Marshals Service has essentially returned to its role and level of

interaction with violent extremists that it would have had absent the events of last summer,

making it clear that any live controversy about the U.S. Marshals Service—and any interest

Plaintiffs have in a remedy against the U.S. Marshals Service—has dissipated. Regardless of

how this Court resolves the rest of this motion, it should rule that the claims against the U.S.

Marshals Service are moot and should enter an indicative ruling that it would dissolve the

preliminary injunction against USMS.

5. No exception to mootness applies

The facts that make Plaintiffs’ claims moot are not an example of voluntary cessation,

because Federal Defendants are not relying here on a voluntary change in enforcement tactics.

Federal Defendants have not claimed any change in a policy or practice at issue in this lawsuit,

so they are not required to overcome the higher bar imposed by a voluntary cessation of

challenged activity. Rosebrock v. Mathis, 745 F.3d 963, 971 (9th Cir. 2014) (if voluntary

cessation is basis of mootness claim, “stringent” test requires party asserting mootness to meet

“heavy burden” of showing that “subsequent events made it absolutely clear that the allegedly

wrongful behavior could not reasonably be expected to recur”); Am. Diabetes Ass’n v. U.S. Dept.

of the Army, 938 F.3d 1147, 1152 (9th Cir. 2019) (same). Rather, the circumstances giving rise to

the law enforcement activity in this case—the nightly crowds of violent extremists targeting the

federal courthouse and federal law enforcement officers with violence and destruction—have

themselves abated. The Ninth Circuit has held the voluntary cessation doctrine inapplicable

where the actions of a third party are responsible for the change in Defendants’ actions. Public

Utilities Commission of California v. FERC, 100 F.3d 1451, 1460 (9th Cir. 1996). Federal

officers no longer deploy from the federal courthouse on a near-nightly basis to respond to large

riotous crowds or other criminal activity, not because Federal Defendants have decided to stop

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responding to large riotous crowds or to other criminal activity aimed at the federal courthouse,

but because large riotous crowds and people intent on that type of criminal activity have largely

chosen to stop targeting federal facilities in Portland for criminal activity. See Wise, 2021 WL

1950016, at *11 (“[The voluntary cessation] doctrine, however, does not apply here. The

changed circumstances mooting Plaintiffs’ claims were entirely out of Federal Defendants’

control.”).

Likewise, Plaintiffs cannot show that this case presents an issue capable of repetition yet

evading review. For this exception to apply, Plaintiffs’ claims would need to meet two separate

requirements that fail to meet: “(1) the challenged action is in its duration too short to be fully

litigated prior to cessation or expiration, and (2) there is a reasonable expectation that the same

complaining party will be subject to the same action again.” Protectmarriage.com-Yes on 8 v.

Bowen, 752 F.3d 827, 836 (9th Cir. 2014) (quoting Fed. Election Comm’n v. Wisconsin Right To

Life, Inc., 551 U.S. 449, 462 (2007)). Plaintiffs’ claims do not meet the first step, because such

claims must be of “inherently limited duration” such that the “class[] of cases” would “always

evade judicial review” because by “a particular date … the alleged injury will either cease or no

longer be redressible.” Id. Claims of misconduct by law enforcement officers are not such

claims. See, e.g., City of Los Angeles v. Lyons, 461 U.S. 95, 109 (1983). And Plaintiffs’ claims

do not meet the second step, because there is no reasonable expectation that the parties in this

lawsuit will be exposed to the retaliatory use of force in the future. Although the Court may find

based on Plaintiffs’ representations that they are reasonably likely to attend future protests or

even to be subject to crowd control measures at such protests, the substance of Plaintiffs’ claim

is that they have been and will continue to be targeted for injury on the basis of protected speech

activities. There is no reasonable likelihood of this alleged targeting recurring because first, no

targeting policy ever existed, and second, the circumstances from which Plaintiffs sought to

extrapolate a policy of targeting no longer apply.

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B. Changed circumstances vitiate Plaintiffs’ claims

Even if Plaintiffs’ claims were not formally moot, the changed circumstances in this case

would make clear that Plaintiffs do not currently have a likelihood of success on the merits. Each

plaintiff is required to show at all times throughout this litigation that he or she has “a reasonably

certain basis for concluding he or she has some personal need for prospective relief”; without

that, a plaintiff has “no claim for injunctive relief” even if the plaintiff had such a basis at the

outset of the lawsuit. Bayer v. Neiman Marcus Grp., Inc., 861 F.3d 853, 865 (9th Cir. 2017); see

also Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 364–65 (2011) (holding that the district court

could not certify an employee class for a final injunction under Rule 23(b)(2) where the class

included a substantial number of employees who had left their employment after initiation of the

lawsuit, because those class members would “have no claim for injunctive or declaratory relief at

all” because they “have no more need for prospective relief than those who left beforehand”).

The record in the case at this juncture does not provide a reasonably certain basis for concluding

that Plaintiffs need injunctive relief, as the record relates to long-past incidents that were part of

a concluded law enforcement operation carried out in response to abated civil unrest and

ultimately directed by departed officeholders. Because prospective injunctive relief is the only

remedy purportedly available, Plaintiffs’ inability to show an entitlement to it has deprived their

underlying claims of a likelihood of success.

Plaintiffs seek to justify prospective relief—the only relief available—solely on the basis

of past conduct by non-party individuals, whose conduct and motivations Plaintiffs seek to

attribute to Federal Defendants. Because Plaintiffs are seeking injunctive relief against DHS and

USMS rather than pursuing claims against the individuals who allegedly acted with a retaliatory

motivation, Plaintiffs must show that they have live claims for First Amendment violations

against Federal Defendants themselves, and that those are claims for which prospective

injunctive relief is available against Federal Defendants themselves given Plaintiffs’ inability to

pursue damages remedies. For example, the Supreme Court rejected the argument that a

municipality could be subjected to prospective injunctive relief for the actions of its employees

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on a theory of respondeat superior under 42 U.S.C. § 1983, holding that even for those claims

the plaintiffs must show that the challenged employees’ actions were pursuant to a policy or

custom of the municipality. Los Angeles Cty., Cal. v. Humphries, 562 U.S. 29, 37 (2010). The

Court held that the policy-or-custom requirement was a basic expression of the requirement that

a municipality be held responsible for its “own violations” and not “where only the violations of

others were at issue,” because the municipality’s liability must arise “out of the municipality's

own wrongful conduct.” Id. at 37–38. Here, Plaintiffs bring their claims only against Federal

Defendants, and must show that Federal Defendants’ violations are the basis of this lawsuit.

Throughout this litigation, Plaintiffs have been unable to identify a single policy of

Federal Defendants’ that directed individual federal law enforcement officers to retaliate against

First Amendment activities or that authorized individual federal law enforcement officers to do

so. Indeed, in seeking a preliminary injunction, they admitted that their retaliation claim was

based on the theory that “officers have exercised their discretion in an arbitrary and retaliatory

fashion to punish journalists for recording government conduct.” Pls.’ Mot. for a Prelim. Inj.,

ECF No. 133 at 32. Later, in an attempt to raise an inference of wrongdoing on the part of

Federal Defendants themselves, Plaintiffs relied on the “sheer volume” of alleged incidents and

the fact that Federal Defendants had not disciplined any of its employees for any treatment of

journalists or legal observers. Pls.’ Rep. in Supp. of Mot. for Prelim. Inj., ECF No. 144 at 11. In

short, Plaintiffs attempt to show that Federal Defendants have met the elements of First

Amendment retaliation on the basis of allegations that non-parties have committed constitutional

torts and that Federal Defendants have not internally reviewed and adjudicated those alleged

torts in a manner satisfactory to Plaintiffs. They raise that challenge without any allegation that

prior to seeking injunctive relief Plaintiffs in fact sought to have Federal Defendants review and

adjudicate any alleged retaliation through any internal proceeding. In other words, Plaintiffs

suggest that this Court can infer a policy permitting retaliation based on Federal Defendants’

failure to sua sponte act upon the factual and legal assertions Plaintiffs have made during this

litigation. That purported basis for inferring a policy is a far cry from the case Plaintiffs relied

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on, Gomez v. Vernon, 255 F.3d 1118 (9th Cir. 2001). That case involved a prison supervisor who

had personally witnessed open retaliation against prison litigators and had participated in it

himself, leading the Ninth Circuit to make its statement that “a policy-maker’s pronouncement

that he has not or will not discipline officers that retaliated against prison litigators is sufficient

evidence of a policy or custom.” Id. at 1127. The factual basis for finding such a policy is not

present here.

In previously holding that Plaintiffs had demonstrated a retaliatory intent by Federal

Defendants, this Court likewise relied on alleged actions by individual federal law enforcement

actions that allegedly showed a retaliatory intent. As to the question whether Federal Defendants

in fact had a policy of First Amendment retaliation that supported the claim against Federal

Defendants, this Court stated that the alleged actions of individual officers “ha[ve] not been

reflective of a policy or practice of respecting First Amendment rights.” Index Newspapers LLC

v. City of Portland, No. 3:20-CV-1035-SI, 2020 WL 4883017 (D. Or. Aug. 20, 2020).

Regardless of whether it was appropriate to find a likelihood of success on the merits of

Plaintiffs’ claims last summer, the changed circumstances in Portland over the past months make

clear that Plaintiffs’ cannot succeed under the present facts in their attempt to infer a policy of

retaliation by summing up the alleged actions of individual officers. Plaintiffs never showed—

and it is unclear whether they attempted to show—that there was a preexisting, unannounced

DHS or USMS policy directing or authorizing retaliation against journalists and legal observers.

At most, Plaintiffs attempted to show that Federal Defendants did not apply their existing

prohibitions against retaliation with sufficient rigor or enthusiasm during last summer’s frequent

clashes near the Hatfield Courthouse, with Plaintiffs pointing to the frequency of allegedly

problematic encounters as proof that the agencies must have been tacitly accepting of First

Amendment retaliation. Federal Defendants dispute these inferences, which ignore the chaotic

and unique circumstances of the nightly violence within crowds and against officers. But even

accepting for the sake of argument that Plaintiffs could use the events of last summer to show

that some sort of de facto policy emerged of tolerating retaliation in responding to those riots,

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that evidence would provide no basis to conclude that such a pseudo-policy of toleration exists

almost a year later, where the daily mass protests against law enforcement officers and the

nightly mass violence targeting federal law enforcement officers has disappeared, and where the

political officeholders who allegedly harbored retaliatory intent have since been replaced. The

alleged existence of an emergent tolerance for retaliation almost a year ago would not provide a

factual basis for inferring the existence of such a policy today. And Plaintiffs are not entitled to

an injunction—protecting them against law enforcement activity that is allegedly motivated by

retaliation—when no evidence exists that Plaintiffs will encounter any such activity, let alone

that they would find themselves in the particular situation of being subject to retaliatory activity

targeting their First Amendment expressions at (no-longer-existent) protests at the Hatfield

Courthouse.

Furthermore, to the extent Plaintiffs contend that any of federal law enforcement officers’

actions in Portland reflect an unlawful “policy” of Federal Defendants, they have not established

a waiver of sovereign immunity that gives this Court the power to enter an injunction. The

United States has waived sovereign immunity for prospective non-damages relief in limited

circumstances under the Administrative Procedure Act (“APA”), but only as to “final agency

action for which there is no other adequate remedy in a court.” 5 U.S.C. § 704. And Plaintiffs

have not identified any “final agency action” here. An agency action is “final” only if two

conditions are met: “First, the action must mark the consummation of the agency’s

decisionmaking process—it must not be of a merely tentative or interlocutory nature. And

second, the action must be one by which rights or obligations have been determined, or from

which legal consequences will flow.” Fairbanks N. Star Borough v. U.S. Army Corps of Eng’rs,

543 F.3d 586, 591 (9th Cir. 2008) (quoting Bennett v. Spear, 520 U.S. 154, 177–78 (1997)).

Thus, “Bennett directs courts to look at finality from the agency’s perspective (whether the

action represents the culmination of the agency’s decisionmaking) and from the regulated

parties’ perspective (whether rights or obligations have been determined, and legal consequences

flow).” Soundboard Ass’n v. FTC, 888 F.3d 1261, 1271 (D.C. Cir. 2018). Here, even if this

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Court concludes for example that there was some temporary practice of not taking sufficiently

robust action to protect against or respond to potential First Amendment retaliation, Plaintiffs

have not shown that it was the consummation of a decisionmaking process and that legal

consequences flowed from that practice or that it determined rights and obligations. The same is

true of any allegedly unlawful policy Plaintiffs claim exists for any of the theories on which they

sought a preliminary injunction.

To the extent Plaintiffs challenge a generalized policy, such a claim is not cognizable

under the APA. A plaintiff cannot seek “wholesale improvement” of a federal agency’s

operations “by court decree.” Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 891 (1990). Broad law

enforcement operations are not an “‘agency action’ within the meaning of [5 U.S.C.] § 702,

much less a ‘final agency action’ within the meaning of § 704.” Id. at 890 (identifying a “‘drug

interdiction program’ of the Drug Enforcement Administration” as an example of agency

“operations” that are not agency actions); see also ACLU v. NSA, 493 F.3d 644, 678 (6th Cir.

2007) (concluding that law enforcement activity is not an “agency action” subject to APA review

despite plaintiffs attempt to characterize the activity as part of a “Program”); Afifi v. Lynch, 101

F. Supp. 3d 90, 110 n.14 (D.D.C. 2015) (concluding that law enforcement operations, such as

investigations, are generally not final agency actions and citing additional cases). A generalized

policy of where to deploy officers and what they generally should be doing does not terminate

the decisionmaking process and finalize how federal officers will act toward Plaintiffs, as would

be required for a final agency action. See Bennett, 520 U.S. at 177–78. And there is no indication

that the generalized policy does something other than simply leave most discretion to federal

officers on the scene. Indeed, Plaintiffs themselves admitted earlier in this litigation that their

theory of the retaliation claim was that “officers have exercised their discretion in an arbitrary

and retaliatory fashion.” Pls.’ Motion for a Prelim. Inj., ECF No. 133 at 32. As such, any waiver

of sovereign immunity under the APA cannot authorize injunctive relief against an alleged

informal policy of not sufficiently responding to litigation claims of retaliatory conduct, or to an

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alleged informal policy of being insufficiently selective when applying force or clearing an area

when faced with dangerous crowds.

To be clear, nothing in this motion requires this Court to abandon legal conclusions and

factual conclusions it previously reached in granting the preliminary injunction. Federal

Defendants do maintain their previous position that the First Amendment and 40 U.S.C. § 1315

permit federal law enforcement officers to use crowd-dispersal tactics to protect federal property

and officers from crowds that are on or near federal property, without exempting self-described

journalists and legal observers from those crowd-dispersal tactics, and that Plaintiffs lacked

standing to pursue injunctive relief. And this Court could reexamine its August 2020 order

regarding the preliminary injunction—because it is not bound to its prior conclusions, even after

the Ninth Circuit denied a stay pending appeal of the preliminary injunction.3 But even if this

Court adheres to the reasoning in its original issuance of the preliminary injunction, this Court

should still consider whether the situation in Portland today warrants extraordinary preliminary

relief.

In sum, the changed circumstances in Portland today, and indeed over the past seven

months, have rendered this case moot. Plaintiffs are therefore unable to prevail on their claims in

this case. And even if this case is not moot, it is unlikely that Plaintiffs could succeed on their

underlying claims, dependent as they were on the unique circumstances that this Court

considered when it entered a preliminary injunction almost one year ago.

3
The motions panel of the Ninth Circuit, in denying a stay of the preliminary injunction pending
appeal, did not pronounce any legal conclusion that is binding on this Court in its evaluation
whether to grant, modify, or dissolve a preliminary injunction. As the en banc Ninth Circuit
recently held, a decision by a motions panel on a motion to stay a preliminary injunction raises
separate legal issues from the consideration of the preliminary injunction itself, and that “[s]uch
a predictive analysis should not, and does not, forever decide the merits of the parties’ claims. …
To the extent the issues share predictive similarity, the motions panel may be persuasive but not
binding.” E. Bay Sanctuary Covenant v. Biden, 993 F.3d 640, 661–62 (9th Cir. 2021) (en banc).
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II. Plaintiffs Face No Likelihood of Irreparable Harm

“[P]laintiffs may not obtain a preliminary injunction unless they can show that irreparable

harm is likely to result in the absence of the injunction.” All. For The Wild Rockies v. Cottrell,

632 F.3d 1127, 1135 (9th Cir. 2011). To establish a likelihood of irreparable harm, Plaintiff

“must do more than merely allege imminent harm sufficient to establish standing; [they] must

demonstrate immediate threatened injury.” Boardman v. Pac. Seafood Grp., 822 F.3d 1011,

1022 (9th Cir. 2016) (citation omitted). Separate from any Article III standing concerns, where

“there is no showing of any real or immediate threat that the plaintiff will be wronged again,”

there is no irreparable injury supporting equitable relief. Lyons, 461 U.S. at 111; see Olagues v.

Russoniello, 770 F.2d 791, 797 (9th Cir. 1985); see also Rendish v. City of Tacoma, 123 F.3d

1216, 1226 (9th Cir. 1997) (“[N]o presumption of irreparable harm arises in a First Amendment

retaliation claim.”).

Reviewing this Court’s earlier decision on irreparable harm reveals just how different the

facts are today from this Court’s recitation of facts on August 20 when it found a likelihood of

irreparable harm. Index Newspapers, 480 F. Supp. 3d at 1150–52. Federal Defendants are not

relying on a voluntary change in tactics or enforcement strategies; federal law enforcement

officers are not routinely leaving federal property to engage with large violent crowds; entire

federal law enforcement agencies have stood down from any personnel augmentation and even

from responsibility for responding to the criminal activity in question in light of the reduced

level of unrest; Operation Diligent Valor has ended; Plaintiffs have raised no claims with this

Court of violations of the preliminary injunction; and Federal Defendants are not relying on any

revocable agreement with state political actors. The few details that today remain in common—

protests and criminal activity still happen in Portland and sometimes target federal property—

would be the sort of generalized concerns about hypothetical future shortcomings in policing that

would not be sufficient to show a likelihood of success on the merits.

In light of those factual developments, it is unlikely and highly speculative that any of

Plaintiffs will suffer irreparable harm at the hands of Federal Defendants. They are unlikely to

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attend a protest in the future—as non-participating journalists and legal observers—that targets

federal property for violence and prompts a federal law enforcement response that involves the

use of force against the crowd, given the rarity of such protests and such responses over the past

months. And their likelihood of future harm further relies on showing that they would likely be

unlawfully targeted in a manner that violates the First Amendment.

The changed nature of the circumstances in Portland also makes any risk of future harm

further removed from the scope of this case. Plaintiffs challenged the actions of Federal

Defendants in responding to large protests and criminal activity that targeted the federal

courthouse as part of last summer’s nationwide demonstrations. To the extent they now seek an

injunction by showing a likelihood of future harm from the generalized risk that protests may

take place in the city of Portland and some individual law enforcement officer might not act as

the Plaintiffs would wish, Plaintiffs would be arguing that the mere existence of policing is

sufficient to show a likelihood of future bad policing that will harm them in particular. Just as in

Lyons, that would be insufficient here.

Even if Plaintiffs respond to this motion by asserting to this Court for the first time that

Federal Defendants have violated the preliminary injunction in the ten months since it has been

entered, that conveniently timed representation to this Court would not change the analysis. A

plaintiff cannot show a likelihood of irreparable harm on the basis of allegations of isolated past

tortious acts without something more that makes the future imposition of that injury likely.

Lyons, 461 U.S. at 111; see also Hodgers-Durgin v. de la Vina, 199 F.3d 1037, 1044 (9th Cir.

1999) (en banc) (plaintiffs alleging past discriminatory stops by the U.S. Border Patrol had not

shown likelihood of future discriminatory stops even though the plaintiffs alleged they were

constantly in the presence of Border Patrol agents). And furthermore, any claim of a preliminary

injunction violation would not evidence a likelihood of future First Amendment violations unless

that alleged violation were itself shown to be not just a violation of the injunction. The Court’s

injunction includes prohibitions on actions that do not themselves violate the First Amendment,

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and Plaintiffs would therefore need to show that a prohibited action was, for example, retaliation

or the unlawful denial of a right of access.

Finally, Federal Defendants also respectfully submit that the “Furgatch factors” are not

the appropriate means by which to analyze whether there is a likelihood of irreparable harm

sufficient to enter an injunction, because those factors are used in certain administrative regimes

where statutory injunctions have displaced the traditional equitable requirements for injunctive

relief. In Federal Election Commission v. Furgatch, the court was assessing whether the Federal

Election Commission (FEC) had met the statutory requirements necessary to enjoin a future

violation of the Federal Election Campaign Act, which requires that the FEC show a person “has

committed, or is about to commit … a violation” of that Act. 869 F.3d 1256, 1260 (9th Cir.

1989) (quoting 52 U.S.C. § 30109(a)(6)(B)). The Court was not discussing the requirement that a

party seeking a preliminary injunction demonstrate a likelihood of irreparable injury—indeed,

the court’s decision never discussed that requirement, because numerous administrative regimes

have statutory provisions for the issuance of injunctions that do not require satisfaction of the

default equitable requirements for an injunction. “The standard requirements for equitable relief

need not be satisfied when an injunction is sought to prevent the violation of a federal statute

which specifically provides for injunctive relief.” Trailer Train Co. v. State Bd. of Equalization,

697 F.2d 860, 869 (9th Cir. 1983); see also Puente Arizona v. Arpaio, 2017 WL 1133012, at *9

n.5 (D. Ariz. Mar. 27, 2017) (distinguishing between the Furgatch factors and the common law

standards for preliminary injunctive relief). For that reason, the discussions of scienter and of

negative inferences from an insistence on litigating the merits—foreign concepts to disputes over

equitable preliminary injunctions—are not applicable here.

Plaintiffs sought this preliminary injunction by arguing that federal officials acted with

retaliatory intent in directing an outsize contingent of out-of-state federal law enforcement

officers who were faced with large daytime protests that descended almost every night into

outbreaks of violence. The situation in Portland today bears no resemblance to that description.

Those federal officials are out of office, the presence of federal law enforcement officers has

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shrunk dramatically, the daily mass protests have ended, and the nighttime criminal attacks on

federal property have decreased to infrequent and mostly small incidents. The situation in

Portland now is dissimilar in kind, not just in degree, from last summer, and it has been for more

than half a year. Even assuming that the extraordinary relief of a preliminary injunction was

appropriate last summer, the circumstances today no longer warrant that relief.

III. The Balance of the Equities Favors Federal Defendants

As this Court previously stated, the preservation of First Amendment principles and

constitutional rights is in the public interest, Index Newspapers, 480 F. Supp. 3d at 1154. But

when the evidence shows, as it does here, that Plaintiffs are not at risk of being deprived of those

rights, those legitimate public interests can be preserved without imposing countervailing costs

on other legitimate interests. The government has a comprehensive interest in maintaining public

order to protect public property. See Feiner v. New York, 340 U.S. 315, 320 (1951); United

States v. Griefen, 200 F.3d 1256, 1260 (9th Cir. 2000). Moreover, the federal government, just as

any other property owner, has an interest in “preserv[ing] the property under its control for the

use to which it is lawfully dedicated.” Int’l Soc’y for Krishna Consciousness, Inc. v. Lee, 505

U.S. 672, 679–80 (1992).

Federal Defendants have a strong interest in protecting law enforcement officers and

public institutions from physical attack. Over the summer, nighttime attackers sought to assault

federal officers and to destroy the federal courthouse, and though the attacks have become quite

rare, there are still occasionally attempts to attack federal property. Federal law enforcement

officers face the possibility that such attacks might take place, and there is a strong public

interest in ensuring that federal law enforcement agencies are able to respond to such attacks

effectively when they arise.

As the attached declarations show, individuals who presumably are not actually engaged

in a newsgathering function have exploited the terms of the preliminary injunction to commit

criminal activity. Individuals marked as press have engaged in criminal activity that poses risks

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to officer safety, throwing objects at officers and kicking chemical munition canisters at officers.

Acuna Decl. ¶ 7(a)–(c). It is true that the preliminary injunction permits federal law enforcement

officers to use force against or arrest individuals marked as press who are committing crimes.

But because federal law enforcement officers have seen individuals marked as press break the

law, and because the officers know that any person can attempt to mark themselves as press,

federal law enforcement officers cannot treat people marked “press” as categorically not a threat

and divert their attention to others. So, when officers are moving in formation to respond to a

threat in front of them, they have been forced to let people marked as press get behind their lines,

necessitating that an officer divert attention to those individuals in case they attack officers from

behind. Acuna Decl. ¶ 7(b). People marking themselves as “press” have used the injunction’s

protections as a means of harassment, physically surrounding law enforcement officers during

operations and taunting them and attempting to identify individual officers. Acuna Decl. ¶ 7(a).

That is especially dangerous during law enforcement operations when officers need to maintain a

“reaction gap”—a physical space sufficient to perceive and respond to threats. Acuna Decl.

¶ 7(c). A law enforcement officer responding to unruly criminal activity should be permitted to

insist that unknown third parties maintain a minimum physical distance for the officer’s safety,

yet officers responding to criminal activities aimed at federal property in Portland are hampered

in maintaining such a gap when confronted with individuals who presumably are not acting in a

newsgathering capacity or otherwise serving a press function but have nonetheless identified

themselves as press.

Although this Court’s injunction attempts to prevent abuses of the preliminary injunction

by stating that journalists and legal observers cannot “impede, block, or otherwise physically

interfere with the lawful activities of the Federal Defendants,” Index Newspapers, 480 F. Supp.

3d at 1156, the abuses of the preliminary injunction delay officers’ lawful actions and leave them

with an unenviable choice in the fast-paced and ambiguous atmosphere of a criminal gathering:

take action that is lawful under the terms of the preliminary injunction and hope that the later

factual record is sufficient to overcome a possible contempt motion that relies on a declaration of

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the wrongdoer, or fail to address someone who is interfering with law enforcement activities. For

example, one person marked as press deliberately placed herself between an officer and a person

who was approaching the ICE facility with a burning object as the officer was preparing to

deploy a less-lethal munition at the prospective arsonist; when the officer instructed her to move

out of the way—a lawful order under the preliminary injunction—the individual claimed that she

did not have to comply because she was press. Zitny Decl. ¶ 15. Plaintiffs may argue that the

preliminary injunction imposes no burden because it permits officers to respond to such self-

declared press who deliberately block law enforcement officers or impede their duties. But

officers still face the risk of a future adversarial process that relies heavily on retrospective

judgment and an imperfect record of events. And it is difficult to determine whether an

individual is actually marked as press, given that many people who mark themselves as press

dress the same as the rest of the crowd, in all black, with press markings that are nonstandard and

difficult to discern. Zitny Decl. ¶ 18.

At bottom, if any threat existed to Plaintiffs’ First Amendment rights last summer, it has

dissipated over the past seven months and is no longer being guarded against by this preliminary

injunction. But the interests Federal Defendants have—in accessing their lawful range of law

enforcement responses to any attacks that might take place on federal officers, property, and

institutions—remain impaired. Dissolving the federal injunction would best serve the legitimate

interests of the public.

CONCLUSION

This Court should enter an indicative ruling that it would dissolve its preliminary

injunction of August 20, 2020, ECT No. 157

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Dated: June 11, 2021 Respectfully submitted,

BRIAN M. BOYNTON
Acting Assistant Attorney General

SCOTT ERIK ASPHAUG

Acting United States Attorney

ALEXANDER K. HAAS
Director, Federal Programs Branch

BRIGHAM J. BOWEN
Assistant Director, Federal Programs Branch

/s/ Jordan L. Von Bokern

JORDAN L. VON BOKERN (DC 1032962)
KERI L. BERMAN
JASON LYNCH
MICHAEL P. CLENDENEN
Trial Attorneys
U.S. Department of Justice
Civil Division, Federal Programs Branch
1100 L Street, NW
Washington, D.C. 20530
Tel.: (202) 305-7919
Fax: (202) 616-8460

Counsel for Defendants

FEDERAL DEFENDANTS’ MOTION FOR AN INDICATIVE RULING - 27