GOP AGs’ ‘Fact Memo’ Imposes ‘Significant Burden’: DOJ Motion to Strike

DOJ moved Thursday to strike the March 7 supplemental fact memorandum by the Louisiana and Missouri attorneys general in support of their motion for a preliminary injunction (PI) to block what they allege is the Biden administration’s collusion with Big Tech to censor right-leaning social media content in violation of the First Amendment (see 2303080002).

The Republican AGs’ roughly 350-page supplemental “fact memo,” which the plaintiffs “styled as ‘proposed findings of fact,’” is permitted “by neither the applicable rules” nor the court’s orders, said DOJ’s motion to strike or impose alternative relief (docket 3:22-cv-01213). Amid the tight April 5 “impending deadline” to respond, DOJ asked the court to resolve its motion by March 15, “or as soon thereafter as practicable.” U.S. District Judge Terry Doughty for Western Louisiana in Monroe, a Donald Trump appointee, responded in a minute docket entry with an expedited briefing schedule, giving the AGs a Monday deadline to reply to DOJ’s motion. DOJ’s optional reply is due Tuesday.

The AGs gave the government “no notice that they planned to file this memorandum on top of their 68-page principal supplemental brief,” said DOJ. The court should strike the “unauthorized” fact memo in full, it said. At a minimum, “given the impossibility of responding” to more than 400 pages of supplemental briefing by April 5, the court should impose “some alternative remedial measure” to relieve the “significant burden” that the AGs’ “tactics” imposed on the government, it said.

The AGs previously asked for, and got, the government’s consent to file a supplemental PI motion brief of up to 70 pages, “without any mention of separate proposed findings of fact,” said DOJ. What the AGs delivered instead was the 68-page supplemental PI motion brief, plus the 350-page fact memo the same day that spans “1,442 separate paragraphs,” it said: “Even a one-week extension would not provide nearly enough time to respond to Plaintiffs’ 400 pages of briefing.”

Unlike “typical proposed findings of fact,” the fact memo doesn’t “concisely lay out, with record citations, the concrete factual conclusions” that the AGs believe are justified and “would establish a First Amendment claim,” said DOJ. The fact memo instead “summarizes, and adds rhetorical gloss to, each part of each piece of evidence” the AGs rely on to make their claims, it said. Much like a legal brief, the fact memo lays out the AGs “general factual narrative,” and tries to persuade the court that their evidence “justifies their extravagant inferences,” it said.

The court should strike the fact memo because federal and local rules don’t authorize parties “to file proposed findings of fact with emergency motions as a matter of course,” said DOJ. Nor did the court invite or authorize the AGs “to file proposed findings of fact here,” it said. The federal rules “make no mention of proposed findings of fact in connection with emergency motions,” it said. The local rules suggest proposed findings of fact can’t be filed in support of a motion “without leave of court,” it said.

The AGs didn’t seek, and the court didn’t grant, leave to file the fact memo, said DOJ. The court ruled only that the AGs could file their supplemental PI motion brief, and the AGs “only sought leave to extend the page limit” of that brief to 68 pages, it said. The AGs “simply unilaterally” decided to file their 350-page fact memo, it said: “Other courts have stricken proposed findings of fact filed by parties that failed to first seek leave of court.”

The court should also strike the fact memo “because it imposes an improper, and significant, burden” on the government, said DOJ. The AGs’ fact memo “functionally serves as a 350-page supplement” to their supplemental PI motion brief, it said. It doesn’t set forth, “in concise terms, the concrete factual conclusions” the AGs believe the court must reach “to satisfy the elements of their First Amendment claim,” it said.

Though the fact memo “imposes significant and unjustifiable burdens” on the government, striking it wouldn’t prejudice the AGs’ case, said DOJ. The AGs could file, on the docket, “the documentary exhibits they want to rely on,” it said. They also could be permitted to file a new supplemental PI motion brief, within the page limits set by the court, “that includes citations to those exhibits,” it said. Striking the fact memo would prevent the AGs only “from adding a needlessly elaborate summary of each exhibit through what is, in effect, an oversized supplemental brief” that the government didn’t consent to and that the court didn’t authorize, it said.