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Case 1:18-cv-00036-CW Document 103 Filed 02/19/19 Page 1 of 5

Matthew D. McGill (pro hac vice) Neil C. Weare (pro hac vice)
Jacob T. Spencer (pro hac vice) EQUALLY AMERICAN LEGAL DEFENSE
Jeremy M. Christiansen (SBN 15110) & EDUCATION FUND
GIBSON, DUNN & CRUTCHER LLP 1300 Pennsylvania Avenue, N.W.,
1050 Connecticut Avenue, N.W. #190-413
Washington, D.C. 20036 Washington, D.C. 20004
Phone: (202) 955-8500 Phone: (202) 304-1202
Fax: (202) 467-0539 Email: NWeare@equallyamerican.org
Email: MMcGill@gibsondunn.com Charles V. Ala’ilima (pro hac vice)
JSpencer@gibsondunn.com THE LAW OFFICES OF
JChristiansen@gibsondunn.com CHARLES V. ALA’ILIMA, PLLC
P.O. Box 1118
Nu’uuli, AS 96799
Phone: (684) 699-6732
Email: cvalaw@msn.com
Attorneys for Plaintiffs John Fitisemanu, Pale Tuli, Rosavita Tuli, and Southern
Utah Pacific Islander Coalition
IN THE UNITED STATES DISTRICT COURT
DISTRICT OF UTAH, CENTRAL DIVISION

JOHN FITISEMANU; PALE TULI;


ROSAVITA TULI; and
SOUTHERN UTAH PACIFIC
ISLANDER COALITION; Case No. 1:18-cv-00036-EJF
Plaintiffs,
v. NOTICE OF SUPPLEMENTAL
UNITED STATES OF AMERICA; AUTHORITY
U.S. DEPARTMENT OF STATE; UNDER DUCivR 7-1(b)(4)
MICHAEL POMPEO, in his official
capacity as Secretary of the U.S.
Department of State; and
CARL C. RISCH, in his official
capacity as Assistant Secretary of Judge Clark Waddoups
State for Consular Affairs;
Defendants.
Case 1:18-cv-00036-CW Document 103 Filed 02/19/19 Page 2 of 5

NOTICE OF SUPPLEMENTAL AUTHORITY UNDER DUCivR 7-1(b)(4)


Plaintiffs John Fitisemanu, Pale Tuli, Rosavita Tuli, and Southern Utah

Pacific Islander Coalition (“Plaintiffs”) respectfully submit this notice of

supplemental authority, which arose after briefing and oral argument on the cross-

motions for summary judgment currently pending before the Court. See D. Utah.
Civ. R. 7-1(b)(4).

1. On February 15, 2019, the United States Court of Appeals for the First

Circuit issued an opinion in Aurelius Investment, LLC v. Puerto Rico, No. 18-1671
(1st Cir. 2019) (attached as “Exhibit A”), striking down portions of the Puerto Rico

Oversight, Management, and Economic Stability Act as unconstitutional and

invalidating the appointments of members of the Financial Oversight and


Management Board for Puerto Rico because they were principal officers of the

United States whose appointments violated the Appointments Clause. See U.S.

Const. art. II, § 2, cl. 2.

2. In reaching this decision, the First Circuit held that “[h]owever much”

the Territories Clause of “Article IV may broaden the reach of Congress’s powers

over a territory,” Ex. A, at 24, “Congress can only act insofar as ‘other provisions
of the Constitution are not infringed,’” id. at 29 (quoting Atl. Cleaners & Dyers v.

United States, 286 U.S. 427, 435 (1932)). In light of “the teaching[s] of founding

era history” dating back to as early as “1787,” id. at 30, “the original public
meaning of ‘officer’” under the Appointments Clause, id. at 44, and principles of

constitutional construction, id. at 25, the court concluded that it “cannot be clearer

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Case 1:18-cv-00036-CW Document 103 Filed 02/19/19 Page 3 of 5

or more unequivocal that the Appointments Clause” applies in Puerto Rico, despite

Article IV, id. at 26.

3. The court further held that “nothing about the ‘Insular Cases’ casts

doubt” on that analysis. Ex. A, at 33. The court observed that while those cases

have not been overturned, they have been “discredited.” Id.; see also id. at 33

n.12, 35. In light of more recent Supreme Court authority, the court reasoned that
the “only course” available to lower courts “is to not further expand the[ir] reach.”

Id. at 36 (citing Reid v. Covert, 354 U.S. 1 (1957) (plurality opinion) and

Boumediene v. Bush, 553 U.S. 723 (2008)). Therefore, the court had “no trouble in
concluding that the Constitution’s structural provisions are not limited by

geography and follow the United States into its unincorporated territories.” Id. at

34-35; see also id. at 36 (concluding that “the Territor[ies] Clause and the ‘Insular
Cases’ do not impede the application of the Appointments Clause in an

unincorporated territory”).

4. The First Circuit’s holdings on the above points are directly related to

Plaintiffs’ arguments raised in the summary judgment briefing, see Dkt. 30 at 14-

22, 28-37; Dkt. 75 at 4-12, 18-26, and at oral argument, see, e.g., Dkt. 101 at

10:11-16. The First Circuit’s analysis is also directly related to questions asked by

this Court during oral argument. See, e.g., Dkt. 101 at 14, 18-21, 23-24.

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Case 1:18-cv-00036-CW Document 103 Filed 02/19/19 Page 4 of 5

Dated: February 19, 2019 Respectfully submitted.

s/ Matthew D. McGill

Neil C. Weare (pro hac vice) Matthew D. McGill (pro hac vice)
EQUALLY AMERICAN LEGAL DEFENSE & Jacob T. Spencer (pro hac vice)
EDUCATION FUND Jeremy M. Christiansen (SBN 15110)
1300 Pennsylvania Avenue, N.W., GIBSON, DUNN & CRUTCHER LLP
#190-413 1050 Connecticut Avenue, N.W.
Washington, D.C. 20004 Washington, D.C. 20036
Phone: (202) 304-1202 Phone: (202) 955-8500
Email: NWeare@equallyamerican.org Fax: (202) 467-0539
Email: MMcGill@gibsondunn.com
Charles V. Ala’ilima (pro hac vice) JSpencer@gibsondunn.com
THE LAW OFFICES OF JChristiansen@gibsondunn.com
CHARLES V. ALA’ILIMA, PLLC
P.O. Box 1118
Nu’uuli, AS 96799
Phone: (684) 699-6732
Email: cvalaw@msn.com

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Case 1:18-cv-00036-CW Document 103 Filed 02/19/19 Page 5 of 5

CERTIFICATE OF SERVICE

I hereby certify that I electronically filed the foregoing with the Clerk of the

Court for the United States District Court for the District of Utah by using the Court’s

CM/ECF system on February 19, 2019.

I certify that all participants in the case are registered CM/ECF users, and that

service will be accomplished by the CM/ECF system.

Dated: February 19, 2019 s/ Matthew D. McGill .


Matthew D. McGill