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IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF UTAH

CENTRAL DIVISION

In re: )
)
JOHN FITISEMANU, et al., )
)
Plaintiffs, )
)
v. )Case No. 1:18-CV-36CW
)
UNITED STATES OF AMERICA, )
et al., )
)
Defendants. )

Transcript of Hearing on Motion to Intervene

BEFORE THE HONORABLE CLARK WADDOUPS

September 6, 2018

Karen Murakami, CSR, RPR
8.430 U.S. Courthouse
351 South West Temple
Salt Lake City, Utah 84101
Telephone: 801-328-4800

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APPEARANCES OF COUNSEL:

For the Plaintiffs: GIBSON DUNN & CRUTCHER LLP
By Matthew D. McGill
Attorney at Law
1050 Connecticut Avenue NW
Washington, D.C. 20036

For the Defendants: STEPHEN MICHAEL PEZZI
U.S. Department of Justice
Assistant U.S. Attorney
20 Massachusetts Avenue
Washington, D.C. 20530

For the Intervenor: MANNING CURTIS BRADSHAW
& BEDNAR PLLC
By Jess M. Krannich
Attorney at Law
136 East South Temple
Salt Lake City, Utah 84111

KIRKLAND & ELLIS LLP
By Michael F. Williams
Lauren N. Beebe
Attorneys at Law
655 Fifteenth Street, N.W.
Washington, D.C. 20005

2
1 Salt Lake City, Utah, Thursday, September 6, 2018

2 * * *

3 THE COURT: Good afternoon. We're here in

4 the matter of Fitisemanu and others v. United States of

5 America, case number 1:18-cv-36. Will counsel state

6 their appearance.

7 MR. MCGILL: Good afternoon Your Honor,

8 Matthew McGill of Gibbs Dunn & Crutcher for plaintiffs.

9 THE COURT: Thank you.

10 MR. PEZZI: Good afternoon Your Honor,

11 Stephen Pezzi from the Department of Justice on behalf

12 of the United States.

13 THE COURT: Thank you.

14 MR. KRANNICH: Good afternoon Your Honor,

15 Jess Krannich on behalf of the proposed intervenor, the

16 American Samoan Government. With me is Mike Williams

17 and Lauren Beebe, both from the Kirkland & Ellis firm in

18 Washington, D.C.

19 MR. WILLIAMS: Good afternoon Your Honor.

20 THE COURT: Welcome.

21 We are here on the motion to intervene.

22 I've read the materials and the supporting materials

23 that you've referred to.

24 Let me begin with this observation, and then

25 I'll be happy to hear from the intervenors. It seems

3
1 clear to me that the intervenors should participate in

2 this lawsuit, the question is whether they participate

3 as an intervenor as a matter of right or intervenor as a

4 matter of permissive intervention or whether they simply

5 participate as amicus parties. So I believe that your

6 participation would be helpful to the court, your

7 insights on behalf of your client should be heard. My

8 question is in which of those specific procedural

9 grooves should they be heard. You may proceed.

10 MR. WILLIAMS: Thank you Your Honor, and

11 good afternoon. For the record, Mike Williams from

12 Kirkland & Ellis on behalf of the American Samoan

13 Government and Congresswoman Amata.

14 And, Your Honor, on the question of

15 intervention as of right or as permissive intervention

16 or as amicus curiae, I think I would make three points,

17 and those are the three elements from the statutory

18 requirements in Rule 24(a) for intervention as of right,

19 Your Honor, because this is a case where the American

20 Samoan Government has an interest.

21 THE COURT: What interest does the Samoan

22 Government have? This is an A or B decision. The

23 plaintiffs are either citizens or they're not citizens.

24 That doesn't change the interests of the Samoan

25 Government in any respect.

4
1 MR. WILLIAMS: Indeed it does, Your Honor,

2 because the American -- first, in the transaction maybe

3 whether they're citizens or not, Your Honor. But the

4 interest in that transaction that the American Samoan

5 Government has is a statutory and a constitutional

6 interest written right into the American Samoan

7 Constitution, both for the Samoans on

8 self-determination, that is, the ability to determine

9 the status of their own citizens, and also the

10 preservation of their society and culture. And, Your

11 Honor, if that's their interest, if it's in preserving

12 their society, their culture and their right to

13 determine what the status of their people is, if this

14 transaction is an A and B transaction where Your Honor

15 will determine whether or not these people should become

16 citizens under a theory of birthright citizenship, then

17 your ruling, Your Honor, and any subsequent rulings that

18 come of that will affect what status their citizens

19 have.

20 And this is why in the D.C. Circuit, Your

21 Honor, in Judge Janice Rogers Brown opinion in the Tuaua

22 case she cited Cicero for principles going back to time

23 immemorial saying citizenship doesn't just have rights,

24 it also has responsibilities. And that's what the

25 American Samoan Government is interested in in this case

5
1 is in making sure that the people of American Samoa who

2 have this distinctive status, Your Honor, that has

3 historical import, that has cultural import that defines

4 the Samoan people, American Samoans, in a way that no

5 other people in the United States are defined, that they

6 either preserve that, or if there's going to be a change

7 to that status, that it come from their processes, Your

8 Honor, that it's the American Samoan people and it's the

9 United States democratic processes that make that

10 change. Not a federal judge.

11 THE COURT: There's another way of looking

12 at this. This is simply a Constitutional question.

13 Does the Fourteenth Amendment when it says "in the

14 United States" mean in the United States, or does it

15 mean in the United States, but not including the

16 territories of the United States? And that -- if it's a

17 constitutional right, the American Samoans don't get to

18 decide whether the Fifth Amendment applies, they don't

19 get to decide whether the First Amendment applies, they

20 don't get to decide a whole number of rights and vote on

21 them and say, well, as American Samoans, we don't think

22 people should have free speech rights here. So how is

23 this different?

24 MR. WILLIAMS: Well, Your Honor, if the

25 American Samoan people have relied -- the American

6
1 Samoan Government was actually established based on a

2 constitutional setting. This is a new principle that

3 people in American Samoa might have birthright

4 citizenship, Your Honor. The American Samoan Government

5 was signed -- was established by a statute of the United

6 States and by organic statutes within American Samoa

7 under the assumption that that's not true. So this

8 isn't just like Samoans as interlopers saying that

9 there's some First Amendment right that exists or that

10 it doesn't.

11 And this is also a point that goes to

12 adequacy of representation, Your Honor, because I

13 suspect the United States Government, while we're happy

14 to have them taking this side of the case, they do view

15 this simply as a matter of constitutional construction,

16 what does the Fourteenth Amendment say, should we give

17 it this entirely new meaning or should Your Honor order

18 that? But for the American Samoan people this is much

19 more important than --

20 THE COURT: How do I know you represent the

21 American Samoan people? I don't have a referendum. I

22 don't have even a platform that somebody argued on the

23 basis of saying, my platform is that we don't want to be

24 American citizens.

25 MR. WILLIAMS: Your Honor --

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1 THE COURT: So you're representing that this

2 is what the American Samoan people want. What's the

3 basis for that? It's simply the position the government

4 has taken.

5 MR. WILLIAMS: Your Honor, that government

6 was elected by the people of American Samoa.

7 THE COURT: On this issue?

8 MR. WILLIAMS: On --

9 THE COURT: Was this issue presented to the

10 American Samoan people in any format?

11 MR. WILLIAMS: This issue is a constant

12 subject of discussion within the American Samoan

13 Government to the point, Your Honor, where the current

14 administration has recently appointed special advisors

15 with expertise in American Samoan culture and

16 governmental issues to determine whether or not there

17 should be a plebiscite, to determine whether or not

18 there should be a reconsideration of American Samoan

19 status. And that's why they want to intervene in this

20 court today, Your Honor, is because they are concerned

21 that if Your Honor were to make a ruling without their

22 input, without them participating as parties in this

23 case, that you could preempt those democratic processes.

24 And there's no argument, there's no insinuation that the

25 American Samoan Government isn't a lawfully composed,

8
1 democratic representative body, Your Honor. It's as

2 vibrant and as active a body as any state government or

3 as any territorial government in the United States. And

4 their governor has retained me to ask for intervention

5 so that their voices can be heard here, as had their

6 representative to Congress, Your Honor, who's also

7 actively involved in these issues in determining how to

8 address any problems that arise because Samoan nationals

9 face issues as noncitizens when they're in the United

10 States.

11 THE COURT: I'm still not understanding why

12 you believe that that participation requires that they

13 be allowed to intervene as a matter of right. Why

14 doesn't the United States adequately represent the

15 argument you're arguing for?

16 MR. WILLIAMS: I think the answer there,

17 Your Honor, is because, as Your Honor has said, this is

18 an A/B transaction. I think that's how the United

19 States looks at it. But for the Samoan people, Your

20 Honor, it's not just an A/B transaction.

21 THE COURT: How is it not an A/B

22 transaction?

23 MR. WILLIAMS: Because it's not just a

24 question of whether these three people who are American

25 Samoan nationals here in Utah are entitled under the

9
1 text of the Fourteenth Amendment to birthright

2 citizenship.

3 THE COURT: What else is it?

4 MR. WILLIAMS: What else is it, Your Honor,

5 is that any determination of whether or not Your Honor

6 looking at the Fourteenth Amendment as text should defy

7 its history, should defy the settled expectations of the

8 American Samoan Government and other territorial

9 governments --

10 THE COURT: Those are just factors to be

11 considered by the court. In the end the decision is A

12 or B.

13 MR. WILLIAMS: But, Your Honor, when you say

14 "those are factors to be considered by the court," that

15 hits the nail right on the head of the adequacy of

16 representation issue, because there is no reason that

17 the United States would put those arguments in front of

18 Your Honor. And I'll say on many of these issues the

19 Samoan Government and the Congresswoman from American

20 Samoa will have diametrically opposed views to the

21 United States Government on the controlling caselaw and

22 on what it means. This isn't just a matter of our being

23 friends of the court who know more about what the Samoan

24 history and the Samoan culture and the legal framework

25 that brought us to this point means.

10
1 THE COURT: None of those issues were

2 brought up in your motion to intervene. You haven't

3 presented the court with any additional information that

4 you could submit that the United States is not also

5 fully capable of presenting.

6 MR. WILLIAMS: Your Honor, in our motion to

7 intervene we spoke about the American Samoan's right to

8 self-determination, which is something that the United

9 States Government has no interest in asserting before

10 this court at all.

11 THE COURT: How does that even become an

12 issue?

13 MR. WILLIAMS: It becomes an issue --

14 THE COURT: The Fourteenth Amendment either

15 means in the United States or it doesn't mean in the

16 United States.

17 MR. WILLIAMS: But, Your Honor, the history,

18 the purpose, and even practicalities relating to the

19 Fourteenth Amendment, all will inform the court's view

20 of whether or not this should be extended to nationals

21 of American -- U.S. nationals who are residents of

22 American Samoa. And on the question of whether or not

23 there's some disruption that this court could have,

24 whether or not there's some harm to the people of

25 American Samoa to Samoan -- U.S. nationals who are

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1 American Samoan residents as a result of this court's

2 view one way or the other, that's not just a binary

3 decision, Your Honor, and that's something that the

4 United States isn't going to have any interest to put

5 before this court. And to give you an example, Your

6 Honor, on page 7 of the opposition to the motion to

7 intervention, I think the plaintiffs put this matter

8 squarely because they make --

9 THE COURT: By the way, you need to slow

10 down.

11 MR. WILLIAMS: Sorry, Your Honor. I get

12 very excited about these things, and I'm originally from

13 New Jersey.

14 THE COURT: We'll excuse you from being from

15 New Jersey, but we won't excuse you from speaking too

16 fast.

17 MR. WILLIAMS: Understood, Your Honor.

18 So what I'll say is on page 7 of the

19 opposition brief, the plaintiffs make the argument, The

20 United States Government is the sovereign here anyway,

21 so how could there be any diversity of interests? Now,

22 on the diversity of interest point, Your Honor, you're

23 seeing, and you will see in your court, there are

24 Samoans who are U.S. nationals who want to retain that

25 status. There are Samoans who, as the plaintiffs in

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1 this case are, are changing that status. The United

2 States Government can't be assumed to represent this

3 diversity of interests. Nor, Your Honor, can it be

4 assumed that because the United States is technically

5 legally the sovereign of American Samoa, American Samoa

6 is an unincorporated territory, it has its own

7 self-governance, but it's not a commonwealth like the

8 commonwealth of the Northern Mariana Islands, it's not a

9 commonwealth like Puerto Rico. It's an unincorporated

10 territory that's administered by the Department of

11 Interior. The United States' interest under statute

12 would be this is ours and we can tell Your Honor what we

13 think about it.

14 What the American Samoans bring to the table

15 is the perspective that says first, no, Your Honor,

16 there's another interest here, and that's in our

17 interest in not having you declare that we are all

18 United States citizens before we've had a chance to

19 resolve that issue and address it ourselves. This isn't

20 an issue of general applicability, Your Honor. It's an

21 issue that affects some 100,000 people throughout the

22 United States that have a functioning government, that

23 have a voice in Congress and that have representatives

24 throughout the United States who listen to them as well.

25 And under those circumstances, Your Honor, the American

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1 Samoan Government is the only entity before you that

2 will say, it's not just a matter of looking at the text

3 of the Fourteenth Amendment. This is an existential

4 issue for us and for our culture and for our society.

5 And that's why we got involved in this case in the first

6 instance.

7 There was a congressman who passed away just

8 a couple of years ago, but he was in Congress for 13

9 years. His name was Eni Faleomavaega. And I'll give

10 you the spelling on that later in this penance for

11 speaking too fast now. But he used to boast about how

12 American Samoa is the only U.S. territory that wasn't

13 taken by conquest. That's something that's very

14 important for the American Samoan Government, is that

15 this is a voluntary association with the United States.

16 They had chiefs who signed Deeds of Cession and agreed

17 to become part of the United States. The United States

18 isn't going to talk about that history, they are not

19 going to say it's important, because for them it's not

20 and it shouldn't be. They're the sovereign. For them

21 this is another department within the U.S. Department of

22 Interior.

23 THE COURT: So why can't your clients make

24 those arguments just as well as permissive intervenors

25 or as a matter of amicus?

14
1 MR. WILLIAMS: As permissive intervenors,

2 Your Honor, I think there might be something that could

3 be worked out there, provided that we have a relatively

4 full capability to participate within this case. This

5 is a case that's likely to go to summary judgment

6 without extensive discovery. Our clients' interests

7 could be represented as permissive intervenors. But the

8 reason I'm focussing on 24(a), Your Honor, is because if

9 24(a) requires an interest and requires a transaction

10 and requires an inadequacy of representation, we meet

11 all three of those prerequisites, Your Honor; that

12 interest being that governmental parens patriae interest

13 in preserving self-determination and culture, that

14 transaction being the judicial creation of birthright

15 citizenship for everybody in American Samoa today, and

16 that inadequacy of representation being the United

17 States' interest in saying, yes, it's A and B, Your

18 Honor, let's look at the civil war, let's look at the

19 Fourteenth Amendment, let's look at what people means;

20 and our saying, no, there's more than that, Your Honor,

21 because there's a history here and there's a culture

22 that relies upon the current framework that we've relied

23 upon.

24 THE COURT: If you were allowed to intervene

25 as a matter of right, how would that change the ongoing

15
1 procedure? I now have pending before me motions for

2 summary judgment. If you're allowed to intervene, how

3 would you add to that?

4 MR. WILLIAMS: Your Honor, we would file our

5 own summary judgment brief on whatever schedule Your

6 Honor orders. If you want to put us on an expedited

7 timetable so as not to unduly delay these proceedings,

8 we're ready to participate there. If this case were to

9 advance to discovery for some reason, because of a 56(f)

10 issue or something, then we would participate in

11 discovery as well, and we would bring a different

12 perspective to bear when taking depositions of these

13 plaintiffs, and possibly whatever witnesses the United

14 States government might bring. Because, Your Honor, on

15 some of these legal issues the Government's bedrock

16 cases here are the insular cases. You'll see that

17 American Samoa is going to show Your Honor that these

18 insular cases, if they didn't exist, we probably would

19 have to invent them for American Samoa today, or else

20 American Samoa, as we know it, and American Samoan

21 culture wouldn't exist. At the same time, these cases

22 that the United States Government is going to rely upon

23 describe the American Samoan people as savages, as

24 idiots, as brown-skinned natives, and those aren't

25 positions that the American Samoan Government would

16
1 adopt and it's the sort of positions that we would

2 reject today.

3 You're going to see, Your Honor, our

4 positions on these legal issues might get to the same

5 place if it's just A or B, as United States Government,

6 provided the United States Government stays the course.

7 When it comes to the opinion that Your Honor is going to

8 write, when it comes to the reasoning that Your Honor is

9 going to undertake, it's going to be important to have

10 the American Samoan Government, the only government that

11 really speaks for these people, participate in a way

12 that Your Honor can draw upon and that's active in

13 discovery and that's active at every layer of briefing.

14 That's why, Your Honor, the Court of Appeals for the

15 District of Columbia Circuit had no problem granting our

16 motion for intervenor status when we asked for it then,

17 Your Honor.

18 THE COURT: Do you see that discovery is

19 going to be necessary in order to support the arguments

20 you're making?

21 MR. WILLIAMS: I hope not, Your Honor, but

22 looking at the summary judgment briefs that I've seen

23 filed to this point, none of them are making the

24 arguments that we're making. We've had an opportunity

25 to give you a preview of them in the brief, the motion

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1 to intervene that we've provided. We've briefed these

2 issues extensively in the District Court in D.C. and at

3 the Court of Appeals of the D.C. Circuit and at the

4 United States Supreme Court when we were convincing them

5 to deny certiori. But we would like to have the

6 opportunity to submit them as parties in front of Your

7 Honor.

8 THE COURT: Do you believe that the facts

9 you would present in support of your motion would come

10 in as uncontested?

11 MR. WILLIAMS: I do not, Your Honor. I

12 think that the plaintiffs would contest certain of the

13 facts that we would put forward. I'm not sure about

14 that, but I've seen they've taken a different approach

15 to the history of American Samoa than the history that

16 the American Samoan Government put forward in D.C., for

17 example.

18 THE COURT: That would suggest then that we

19 would need to have discovery.

20 MR. WILLIAMS: Either discovery, Your Honor,

21 or the sort of briefing that actually draws upon some of

22 the historical record that draws upon some of the

23 historical facts that the United States is particularly

24 unsuited and disinclined to draw upon here, but that

25 might be relevant to Your Honor's decisionmaking. I can

18
1 give you a concrete example, if it would be helpful.

2 THE COURT: Sure.

3 MR. WILLIAMS: The plaintiffs argue that the

4 American Samoan people from the time they became a

5 territory assumed that they were citizens. They do so

6 on the basis of some senate reports from the 1930s that

7 were investigating the historical underpinnings of

8 whether or not Samoans should be citizens. The American

9 Samoan Government contests that history. I don't think

10 there would be a lot of discovery resulting from that.

11 But these are the sort of facts that, as I've said, the

12 United States Government is unsuited to present to Your

13 Honor and would also be disinclined to present to Your

14 Honor when it comes to a matter of Samoan culture and

15 Samoan history. And this is just one area where I think

16 we not only bring a unique perspective, but beyond being

17 an amicus, a friend of the court, we actually have an

18 interest that's at stake here. It's not just telling

19 Your Honor a history. It's telling Your Honor the

20 history of us.

21 THE COURT: Your argument raises a concern

22 as to the failure of the intervenors, the would-be

23 intervenors, to comply with subparagraph (c) of Rule 24.

24 As I had understood your argument, it was, well, we

25 don't need to tell the plaintiffs what our position is

19
1 because they already know what our defense is. It

2 sounds to me like you want to make a whole lot of

3 defenses that haven't been disclosed.

4 MR. WILLIAMS: Your Honor, the plaintiffs in

5 this case and plaintiffs' counsel in this case

6 understand these defenses very well.

7 THE COURT: But aren't you required to state

8 those defenses and put them on paper so you become bound

9 by them?

10 MR. WILLIAMS: And, Your Honor, we have put

11 them in our motion to intervene at a very high level in

12 a way that, as Your Honor may have seen from our papers,

13 passes muster in the majority of the circuits right now.

14 In fact, we cite the Providence case where the Sixth

15 Circuit had found an abuse of discretion, a denial of

16 intervention on a technical 24(c) ground that the

17 would-be intervenor there had not submitted a pleading.

18 THE COURT: Wouldn't it be appropriate if

19 the court were to consider your argument for

20 intervention say it's conditioned upon your submitting a

21 written pleading that complies with subparagraph (c)?

22 MR. WILLIAMS: Yes, Your Honor, and we would

23 comply with that directive immediately.

24 THE COURT: Okay. Any other arguments you

25 want to make before I hear from the plaintiffs?

20
1 MR. WILLIAMS: I think the one last point I

2 would make, Your Honor, is it's very hard to overstate

3 the importance of these issues to the American Samoan

4 people in a way that's not necessarily felt from a

5 courtroom in D.C. or from a courtroom in Salt Lake City.

6 There's a lot of frustration on the point of the

7 American Samoan Government and many residents of

8 American Samoa because they don't necessarily have

9 access to the same sources of news here, and they have

10 the sense that their story hasn't been told. On the

11 surface, this looks like it's a case about equality.

12 These are noncitizens, they seem like good people, we

13 should make them citizens. But there's a complexity

14 here, Your Honor, which is why we're arguing so

15 strenuously for intervention so that we can give Your

16 Honor the benefit of that side of the story.

17 Thank you, Your Honor.

18 THE COURT: Thank you.

19 Let's hear from the opposition.

20 MR. MCGILL: Thank you, Your Honor. Matthew

21 McGill of Gibson, Dunn & Crutcher for the plaintiffs.

22 I'll start where Your Honor did, we too

23 believed that the American Samoan Government had a place

24 in this case, and that's why from the outset we

25 consented to their participation as amici. We do not

21
1 think, and we still do not believe, that intervention is

2 appropriate.

3 I'll start with intervention of right. I

4 think the easiest or clearest grounds on which to

5 dispose of the motion for intervention of right is

6 adequacy of representation because this case is clearly

7 controlled by the Tenth Circuit's decision in Tri-State

8 Generation. And Tri-State -- here, as in Tri-State, as

9 Your Honor recognized, this is a binary issue. The

10 question is whether this statute violates the

11 citizenship clause of the Fourteenth Amendment or does

12 it not violate that provision of the Constitution?

13 There is no middle ground. There is no third way for

14 the court to decide that issue. And here, as in

15 Tri-State, the movants and the defendants have the

16 identical legal objective, which is namely to defeat the

17 plaintiffs' Fourteenth Amendment arguments. There is no

18 daylight between the ultimate legal objective of the

19 defendants' and that of the movants. That, under

20 Tri-State, creates a presumption of adequacy of

21 representation that can only become -- can only be

22 overcome by a concrete showing, "concrete showing,"

23 that's the Tenth Circuit's words, that the

24 representation of the defendant is somehow inadequate.

25 The movants have failed to make that

22
1 showing. The movants, instead, concede on page 8 of

2 their brief, their opening brief, that the, quote, "the

3 U.S. defendants have taken the legal position that the

4 movants advocate." They have not only the same

5 objective, they have the same legal position.

6 What we've heard now is that that might not

7 be so, that we've heard now for the first time, and we

8 heard four times, that the American Samoan Government

9 intends to take discovery. I think that contention is

10 waived. It does not appear in any of their briefs, in

11 this intervention proceeding. They do not indeed

12 identify any argument at all that the United States does

13 not make that they would make. And indeed this is the

14 purpose of Rule 24(c), this is why the rules require the

15 proposed intervenor to attach a pleading to the motion

16 for intervention so we see what the proposed intervenor

17 is -- what defenses they will raise and we can map that

18 against that which the defendant already has done.

19 The defendants, for reasons -- the movants,

20 rather, for reasons they have never explained, fail to

21 attach either a motion to dismiss or an answer to their

22 motion for intervention. It is -- goes without saying

23 that movants here are well represented by very able and

24 very sophisticated counsel who are well aware of the

25 rule's requirements. They have never explained their

23
1 forfeiture on this point, or their -- I guess that's not

2 the right term. They've never explained their failure

3 to satisfy the rule's requirements.

4 Now, turning back just to Tri-State and the

5 adequacy of representation analysis. I think what --

6 the best way you can frame the argument of the movants

7 in terms of adequacy of representation is that the

8 United States has a different set of motives for defense

9 of the statute here than the American Samoan Government

10 has, but their motives are not the same. The United

11 States has an obligation set forth in regulations to

12 defend the constitutionality of acts of Congress, the

13 American Samoan Government has other things at stake,

14 but Tri-State again addresses that issue on the nose.

15 It says on page 1073 of that decision that "even where a

16 party seeking intervention may have different ultimate

17 motivations from the governmental agency," end quote,

18 the presumption of adequacy still applies. So Tri-State

19 dictates that the adequacy of -- that the presumption of

20 adequacy applies, and it further dictates that the

21 movants must make a concrete showing as to the United

22 States's inadequacy. There is no -- the movants,

23 neither their motion nor their reply brief points to any

24 argument that the United States makes that they disagree

25 with, nor do they point to -- nor do they elaborate any

24
1 argument that they would make beyond that which the

2 United States already has made. And that really is not

3 surprising because, as Your Honor has indicated, this is

4 a pure question of law. The question is, as you said,

5 does the Fourteenth Amendment citizenship clause, when

6 it uses the term "United States," include these

7 unincorporated territories or does it not? That

8 question is resolved by the text of the Fourteenth

9 Amendment, its history, and by the precedence of the

10 Supreme Court that have considered that text and

11 history. There is nothing else to bring to the table

12 that is of relevance or consequence to that legal

13 question.

14 The discovery that is now being asserted as

15 necessary, or perhaps useful, is only a distraction from

16 that core legal inquiry. This is why we moved for

17 summary judgment and why the United States agreed that

18 there are no factual issues, that this is a pure

19 question of law that can be decided on these papers.

20 And, respectfully, I think that is what our plaintiffs

21 are entitled to. They are being denied their

22 birthright, their right to citizenship. My client would

23 like to vote in November, and unless this court rules by

24 October 30th, he won't be able to because that's the

25 deadline for voter registration in this state. That's

25
1 just one of the many indignities and injuries being

2 imposed on the plaintiffs each and every day that they

3 are denied their birthright citizenship.

4 So I don't think it is correct for the

5 movants to assert that we suffer no prejudice from their

6 intervention at this late date. We have before Your

7 Honor, and have had for a little while now, fully

8 briefed motions for summary judgment that are a fully

9 sufficient basis on which to decide this case. If the

10 movants had complied with Rule 24, they might have filed

11 a motion to dismiss with their papers urging that the --

12 urging that our case be dismissed on purely legal

13 grounds, and we might have been able to roll them into

14 the briefing schedule that we had agreed -- to which we

15 had agreed with the United States, and we would maybe

16 not be here on this contested motion at all. But they

17 did not do that. They declined to, and declined even

18 now, even today, as we sit here, they still have not

19 tendered a pleading that is required by Rule 24(c).

20 There's only a promise to do so if this court now asks

21 for.

22 I think intervention of right is foreclosed

23 by Tri-State, and I think it would be prejudicial to us.

24 I will quickly turn to permissive

25 intervention, and I have just three quick points on

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1 that. First, it's obviously a discretionary judgment of

2 Your Honor. But Tri-State also makes clear that the

3 adequacy of representation of the United States is a

4 fully sufficient basis on which the motion for

5 permissive intervention could be denied.

6 The second point is that granting the motion

7 for permissive intervention here creates a, I think, a

8 potentially far-reaching precedent. Here we have

9 something that happens several times a year in this

10 district and others, which is a challenge to an act of

11 Congress, a constitutional challenge to an act of

12 Congress. Every act of Congress has its beneficiaries,

13 every act of Congress has those members of Congress who

14 voted for it and supported it, every act of Congress has

15 people who like it. If all that is required to become a

16 party to litigation is that you say, that, well, I

17 support this statute, it means a lot to me, and I want

18 to participate in the litigation, and I should be

19 allowed to under the permissive grounds for

20 intervention, even though the United States is

21 vigorously defending it and fully defending it, and even

22 though the United States is making all the relevant

23 legal arguments, and even if I, as the proposed

24 intervenor, have no particularly relevant legal argument

25 to add to that, that -- if that is a sufficient ground

27
1 for intervention, that's a potentially far-reaching

2 precedent.

3 The third point is that intervention, as I

4 have said, for us at this point would be quite

5 prejudicial. The movants defaulted on their Rule 24(c)

6 obligations. That default continues to this day. Had

7 they not defaulted, the prejudice might have been

8 minimized. But it seems that what is -- you know, the

9 default now perhaps can be explained by the fact that

10 what they really want is to delay the adjudication, the

11 final adjudication of this case, through discovery on

12 irrelevant issues.

13 There's no -- as the United States

14 recognized, there's no factual issue here that needs to

15 be explored. The fact that we, as the plaintiffs, and

16 the movants of the government of American Samoa have

17 different renditions of the history of American Samoa

18 114 years ago is inconsequential to the legal issue

19 before the court. There's no version of that history

20 that would affect the legal analysis before the court,

21 which is, are they part of the United States, or are

22 they not?

23 So I would think -- I would urge the court

24 to exercise its discretion to deny the motion for

25 permissive intervention and to allow the movants to

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1 participate as amicus curiae. That would enable them to

2 make their views known in writing and it would enable

3 them to participate in this argument before Your Honor

4 with this court's leave. If the court were inclined to

5 grant permissive intervention, I would urge the court to

6 condition it on the movants adopting the briefs of the

7 United States as they have been filed. That would

8 preserve the movants' ability to participate in argument

9 and to participate in the Court of Appeals as parties,

10 and it would eliminate, mostly, the prejudice to the

11 plaintiffs because we would not be basically starting

12 over at the start line of this litigation again.

13 So, just to summarize, we have no objection

14 to their participation as amici curiae. We think the

15 intervention of right is clearly foreclosed by the Tenth

16 Circuit's decision in Tri-State because the United

17 States's representation of the American Samoan

18 Government is clearly of the interests asserted by the

19 American Samoan Government is more than adequate. And

20 we think that there is ample grounds on which this court

21 could exercise its discretion to deny the motion for

22 permissive intervention.

23 Thank you, Your Honor.

24 THE COURT: Does the United States wish to

25 be heard on this issue?

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1 MR. PEZZI: Just very briefly, Your Honor.

2 THE COURT: Yes, you may proceed.

3 MR. PEZZI: Good afternoon Your Honor,

4 Stephen Pezzi from the Department of Justice.

5 Like I said, I'll be very brief. As Your

6 Honor is aware, we do not oppose the motion to

7 intervene, but we didn't file a brief. And so, other

8 than what I'm about to say, unless Your Honor has any

9 particular questions, I don't have a lot to add.

10 I will say with respect to discovery, which

11 is an issue that came up today, I think for the first

12 time, although it's perhaps a little bit premature, Your

13 Honor should know that the Federal Government would

14 oppose any discovery of certainly the defendants in this

15 case, even as to discovery of the plaintiffs, which it

16 sounds likes is what the intervenors potentially are

17 considering. It's hard for me to understand what

18 discovery would be necessary for Your Honor to decide

19 these issues. I do think that Your Honor is faced with

20 a pure question of law.

21 I agree with Your Honor that the Government

22 of American Samoa has an important perspective here that

23 would be useful to the court in deciding these issues,

24 but again as to whether that's as an intervenor or

25 amicus curiae, that's up to Your Honor's discretion.

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1 Unless you have any other questions, that's

2 all I have.

3 THE COURT: No. Thank you.

4 MR. PEZZI: Thank you, Your Honor.

5 THE COURT: Mr. Williams.

6 MR. WILLIAMS: Thank you, Your Honor.

7 Just three quick points. The first is a

8 point of clarification. Your Honor asked at what other

9 junctions in these proceedings our participation might

10 be important, and that's why I raised discovery. I

11 agree there are two fully briefed summary judgment

12 motions in front of Your Honor. To the extent that this

13 raises a pure issue of law, Your Honor should understand

14 we're not pushing for discovery. I was giving examples

15 in response to a question Your Honor had asked. And

16 even spoke about how some of -- you can call it a

17 historical perspective as opposed to a factual

18 perspective, but how that might be different from an

19 American Samoan view than it is from that of the United

20 States Government.

21 So Your Honor should understand to the

22 extent there's been any suggestion we're trying to slow

23 down these proceedings, I'll commit to Your Honor that

24 on whatever schedule you require our participation,

25 whether it's the filing of an answer, whether it's the

31
1 filing of a motion for summary judgment, we are ready,

2 capable, and able to fulfill Your Honor's instructions.

3 The last two points are also related to

4 timing, Your Honor. And, that is, there's been an

5 argument that the history of the American Samoan

6 involvement is irrelevant to the legal question of

7 whether or not the Constitution should apply there.

8 But, Your Honor, there's a reason that 118 years after

9 American Samoa joined the United States that this issue

10 is just coming up, and that context, I think, will be

11 important for what Your Honor resolves in this case when

12 you're addressing these issues. There is a divergence

13 of views, not just motivations, but a divergence of

14 views on legal issues between the United States

15 Government and the American Samoan Government. We hope

16 it gets to the same place. But if it doesn't, Your

17 Honor, to the extent the Samoan interests and

18 self-determination differs from the United States

19 Government issue that this is just something that the

20 Navy used to supervise, that's why we're saying that

21 Your Honor should hear from us.

22 On the prejudice point, Your Honor, and this

23 is a very important timing point to us, because the

24 American Samoan Government and Congresswoman Amata have

25 litigated these issues before against counsel for these

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1 plaintiffs. We weren't given notice of the complaint

2 when it was filed. There was a footnote in the

3 opposition to the motion to intervene indicating that

4 the American Samoan Government should have picked it up

5 from an A.P. wire story months ago. I'm not claiming

6 that we were entitled to notice the way that the United

7 States Attorney General was entitled to notice, but it

8 would have been a good thing to give notice to the

9 American Samoan Government because both of the parties

10 in this case were certainly on notice that these issues

11 were important. There is no real question about the

12 positions we're going to take, Your Honor, because we

13 briefed item in the District Court in D.C., the Court of

14 Appeals in D.C., and before the United States Supreme

15 Court against both of these parties' counsel, Your

16 Honor. So this isn't a case where there is any

17 prejudice by allowing us to make our arguments, that is,

18 the arguments on behalf of the government, as opposed to

19 the United States Government, as counsel for the

20 plaintiff is asking.

21 So for those reasons, Your Honor, I would

22 ask that you grant our motion under Rule 24(a). And I

23 thank you for your time.

24 THE COURT: Thank you.

25 Anything further before I conclude the

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1 hearing?

2 I'm going to take two steps: One is I'm

3 going to take this under submission, but before I decide

4 the issue, I'm going to require that the would-be

5 intervenors submit an answer that complies with

6 subparagraph (c). I would like to decide this motion as

7 soon as possible. Is it possible for you to file your

8 answer by the 10th of September? That's Monday.

9 MR. WILLIAMS: Yes, Your Honor.

10 THE COURT: Subject to receiving that answer

11 on the 10th, I will then consider the answer and then

12 make my ruling as to whether the motion to intervene

13 will be allowed.

14 If there's nothing further, we will be in

15 recess.

16 (Whereupon, the matter was concluded.)

17 * * *

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1 C E R T I F I C A T E

2

3 State of Utah

4 County of Salt Lake

5

6 I, Karen Murakami, a Certified Shorthand Reporter

7 for the State of Utah, do hereby certify that the

8 foregoing transcript of proceedings was taken before me

9 at the time and place set forth herein and was taken

10 down by me in shorthand and thereafter transcribed into

11 typewriting under my direction and supervision;

12 That the foregoing pages contain a true and

13 correct transcription of my said shorthand notes so

14 taken.

15 IN WITNESS WHEREOF, I have hereunto set my hand

16 this 10th day of September, 2018.

17

18

19 Karen Murakami

20 Karen Murakami, CSR, RPR

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