Administration trying to avoid answering complaint

The Biden administration is trying to avoid answering the massive complaint against them for violations of the First Amendment. Their latest delaying tactic takes advantage of the Fifth Circuit’s administrative stay of the preliminary injunction in the case. But the plaintiffs are insisting the administration give an answer, which they have never given.

Administration tries to stall

The case, Missouri v. Biden, has been open since May of 2022. (See docket pages containing documents filed at the District Court and the Fifth Circuit Court of Appeals.) Never once has the government answered the complaint, now in its Third Amended iteration. On June 14, 2022, the plaintiffs moved for a preliminary injunction against the government to stop its First Amendment violations. But on July 12, the administration moved to dismiss for lack of subject-matter jurisdiction.

After that, came the first of three amended complaints. This, more than anything else, prompted repeated stays of deadlines for answering the complaint. The government withdrew its July 12 motion shortly after the First Amendment Complaint came down. After the Second, they filed another motion to dismiss. That was the motion the court denied on March 20, 2023 – except that the Court dismissed claims for injunctive relief against President Biden, purely on separation-of-powers grounds, but left open a later filing for declaratory relief. (This Memorandum Ruling explains the court’s reasoning.)

The most recent stay of an answer to the complaint dates to March 30, 2023. Judge Doughty stayed the answer pending resolution of the motion for preliminary injunction. But the Court also ordered the parties to issue a Joint Status Report within fourteen days of any such resolution, when it came. (On May 5, 2023, the Plaintiffs filed their Third Amended Complaint.)

On July 4, the court resolved that motion – by granting it. That started the clock toward the Status Report.

Plaintiffs refuse a stay or waiver

Yesterday the parties filed their Joint Status Report, with one Exhibit containing emails between Kyla Snow, trial attorney in the Justice Department’s Civil Division, and John Sauer, Special Assistant Attorney General for Louisiana.

Ms. Snow suggested waiving an answer completely, citing responses the administration has already filed. Sauer refused, saying an answer was an integral part in the case. He also reminded Snow that the Third Amendment Complaint raised issued upon which no discovery has yet taken place. So Snow next asked for a stay of the answer, pending resolution of the appeal before the Fifth Circuit. She admits here that the government hopes the Fifth Circuit – and possibly the Supreme Court – will change the case fundamentally.

Again Sauer said no, and reiterated that the plaintiffs are already suffering “irreparable injury” from First Amendment violations that are now, once again, permitted under the Fifth Circuit’s administrative stay. Then he raised the stakes. He asked for deadlines of July 25 for an answer to the complaint, and of August 8 to complete a discovery conference under Rule 26(f) of the Federal Rules of Civil Procedure.

Has the appeal changed anything?

The next day, of course, the Fifth Circuit expedited the appeal, stayed the injunction, and set a July 25 deadline for the Biden administration to brief the Fifth Circuit on their appeal. So now the government must file two briefs on the same day. So Ms. Snow wrote back on Monday morning, suggesting that filing an answer by July 25 would be “patently unreasonable.” Sauer asked how that could be, since she already had said an answer would duplicate other responses the administration had already filed. He offered her another two weeks to file the answer, but she refused.

There the cases rests, except for the appeal. Remarkably, the Plaintiffs have already filed their Appelees’ Brief, though that was not due until August 4. In the Joint Status Report, the Plaintiffs now ask for an August 1 deadline for the answer to the complaint, and an August 15 deadline for the Rule 26(f) conference.