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STUART F. DELERY

Acting Assistant Attorney General, Civil Division

AUGUST E. FLENTJE

Acting Deputy Assistant Attorney General

DAVID J. KLINE

Director, Office of Immigration Litigation

JEFFREY S. ROBINS

Assistant Director

JESI J. CARLSON (D.C. Bar No. 975478)

Senior Litigation Counsel

Department of Justice, Civil Division

Office of Immigration Litigation

District Court Section

P.O. Box 868, Ben Franklin Station

Washington, DC 20044Telephone: (202) 305-7037

Email: [email protected]

TIMOTHY M. BELSAN

Trial Attorney

Attorneys for Defendants

UNITED STATES DISTRICT COURT

FOR THE CENTRAL DISTRICT OF CALIFORNIA

MARTIN ARANAS, et al., ) No. 8:12-cv-1137-CBM (AJWx)

)

Plaintiffs, ) DEFENDANTS NOTICE OF MOTION

) AND MOTION TO STAY DISCOVERY

v. ) PROCEEDINGS

)

JANET NAPOLITANO, Secretary, )

Department of Homeland Security, )

et al., ) Hearing Date: November 26, 2012Defendants. ) Time: 11:00 a.m.

______________________________ ) Judge: Hon. Consuelo B. Marshall

Case 8:12-cv-01137-CBM-AJW Document 68 Filed 10/29/12 Page 1 of 3 Page ID #:1577

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JEFFREY S. ROBINS

Assistant Director

s/Jesi J. Carlson

JESI J. CARLSON






Washington, DC 20044

Tel: (202) 532-4067

Fax: (202) 305-7000


TIMOTHY M. BELSAN

Trial Attorney

Case 8:12-cv-01137-CBM-AJW Document 68 Filed 10/29/12 Page 3 of 3 Page ID #:1579

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STUART F. DELERY


AUGUST E. FLENTJE


DAVID J. KLINE


JEFFREY S. ROBINS

Assistant Director









TIMOTHY M. BELSAN

Trial Attorney





)

Plaintiffs, ) DEFENDANTS MEMORANDUM OF

) POINTS AND AUTHORITIES IN

v. ) SUPPORT OF MOTION TO STAY

) DISCOVERY PROCEEDINGS

JANET NAPOLITANO, Secretary, ) PENDING RESOLUTIONOF THE

Department of Homeland Security, ) MOTIONS TO DISMISS

et al., )Defendants. ) Hearing Date: November 26, 2012

) Time: 11:00 a.m.


Case 8:12-cv-01137-CBM-AJW Document 68-1 Filed 10/29/12 Page 1 of 11 Page ID#:1580

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INTRODUCTION

This Court should stay discovery proceedings. As Magistrate Judge Wistrich

concluded in his October 25, 2012 Order, Defendants previously made a persuasive

showing that they may be entitled to a stay of discovery in light of the characteristics

and potentially dispositive nature of the pending motions. See Dkt. No. 66.

Defendants and the Bipartisan Legal Advisory Group (BLAG) filed motions to

dismiss pending before this Court, which could resolve the entire case. The resolution

of the motions to dismiss does not turn on any contested factual matter. As a result, a

stay of discovery furthers the interests of judicial economy and preservation of

government resources.

Additionally, a stay of discovery would not prejudice Plaintiffs. Plaintiffs have

not sought, nor are they entitled to, discovery concerning the merits of their claims

the same claims at issue in the pending motions to dismiss. Moreover, although

Plaintiffs contend that discovery is necessary for the resolution of their motions for

class certification and for a preliminary injunction, this Court can decide both motions

without discovery, as evidenced by the fact that Plaintiffs waited until after filing those

motions to serve discovery. Accordingly, this Court should stay any discovery until it

has ruled on the motions to dismiss.

PROCEDURAL HISTORY

Plaintiffs filed this action on July 14, 2012. Dkt. No. 1. That same day,

Plaintiffs sent to Defendants a draft motion for a preliminary injunction. See Dkt. No.

16 at 5. On August 23, 2012, Plaintiffs filed motions for class certification and for a

preliminary injunction. Dkt. Nos. 12, 13. Despite having long anticipated and

prepared for the filing of those motions, Plaintiffs did not at that time seek discovery tosupport their motions or an order from this Court permitting expedited or early

discovery. On August 27, 2012, this Court granted Defendants ex parte application,

continuing the hearing on Plaintiffs motions to October 9, 2012, and ordering

Defendants responses due September 14, 2012. Dkt. No. 17.


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On September 10, 2012, four days before Defendants responses to Plaintiffs

motions were due, Plaintiffs e-mailed a Notice of Rule 30(b)(6) Depositions to counsel

for Defendants. See Exhibit 1. The next day, Defendants informed Plaintiffs by e-mail

that they opposed engaging in discovery prior to the October 9, 2012 hearing date.

See E-mail from T. Belsan to P. Schey (Sept. 11, 2012, 17:31 EST) (attached hereto as

Exhibit 2). Defendants further stated that the case should be resolved based upon the

record of the agency under the APA and that discovery was improper at this stage of

the litigation. Id.

On September 14, 2012, Defendants filed their oppositions to Plaintiffs motions

for class certification and for a preliminary injunction. Dkt. Nos. 35, 39. On

September 24, 2012, Defendants sent a letter to Plaintiffs counsel explaining their

position regarding Plaintiffs deposition notice in further detail. See Letter from J.

Carlson to P. Schey (Sept. 24, 2012) (attached hereto as Exhibit 3). Defendants noted

that the parties had not yet conferred as required by Federal Rule of Civil Procedure

26(f), and that, under Rule 26(d)(1), Plaintiffs could not seek discovery without a

stipulation or court order. Id. Defendants made clear that they did not stipulate to

early discovery. Id. In addition, Defendants informed Plaintiffs that because this is

an APA case, discovery is unwarranted at any phase of the litigation. Id. The next

day, Plaintiffs e-mailed to counsel for Defendants written discovery including requests

for admission, production of documents, and interrogatories. See Exhibit 4. Plaintiffs

did not, however, seek a court order allowing expedited discovery.

On September 27, 2012, counsel for Defendants reiterated to counsel for

Plaintiffs by telephone Defendants position that because the parties had not yet

conferred pursuant to Rule 26(f) and Plaintiffs had not obtained a court order, anydiscovery they had served was premature. Despite Defendants position that discovery

was premature, Counsel also informed Plaintiffs that Defendants were amenable to

scheduling a Rule 26(f) conference to comply with the Federal Rules of Civil

Procedure and to further discuss the issues. Notwithstanding that conversation, on


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September 28, 2012, Plaintiffs counsel sent to Defendants counsel a Proposed

Stipulation Regarding Discovery Dispute, pursuant to Local Rule 37-1. In an

accompanying letter, Plaintiffs request[ed] to confer with defendants in a good faith

effort to eliminate or narrow the parties dispute regarding discovery and to finalize a

joint stipulation pursuant to Local Rule 37-2. Letter from P. Schey to J. Carlson

(Sept. 28, 2012) (attached hereto as Exhibit 5). Plaintiffs also noted that under Rule

30(a)(2), plaintiffs may seek leave to conduct early discovery. Id. Plaintiffs did not,

however, seek a court order allowing expedited discovery at that time.

On October 2, 2012, Defendants informed Plaintiffs via letter that because the

parties had still not conferred under Rule 26(f) and Plaintiffs had not obtained a court

order, both discovery and a motion to compel remained inappropriate. Letter from J.

Carlson to P. Schey (Oct. 2, 2012) (attached hereto as Exhibit 6). Defendants,

however, suggested a prompt Rule 26(f) conference to thoroughly discuss discovery-

related issues, and proposed dates and times for such a conference that week. Id.

Defendants also suggested that BLAG be included. On October 3, 2012, Plaintiffs sent

a revised Proposed Stipulation Regarding Discovery Dispute to Defendants.

On October 5, 2012, Plaintiffs, Defendants, and BLAG engaged in an initial

Rule 26(f) conference via telephone and discussed all issues required pursuant to the

Local Rules and Federal Rules of Civil Procedure. During that conference, Defendants

indicated their position that discovery proceedings should be stayed pending the

Courts resolution of the motions to dismiss pending before it.1

Following the Rule

26(f) conference, Plaintiffs re-served Defendants with the prior written discovery,

including requests for admission, production of documents, and interrogatories.

However, Plaintiffs re-served Defendants with the prior deposition notice for October4, 2012 depositions, a date which had already passed. To date, Plaintiffs have not

1Defendants indicated that because they believe discovery to be improper at this time, a subsequent

Rule 26(f) Conference may be necessary at a later date to revisit some of the items of discussion.


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served a deposition notice dated any time after the Rule 26(f) conference.2

In addition,

Plaintiffs, Defendants, and BLAG put together a Rule 26(f) report to be filed with the

Court. Defendants consented to Plaintiffs filing of the final report on October 18,

2012, having outlined their position that discovery proceedings should be stayed at that

time. Plaintiffs filed the report on October 27, 2012. See Dkt. No. 67.

On October 17, 2012, Plaintiffs filed a motion to compel Defendants to appear

in response to Plaintiffs deposition notice and to respond to Plaintiffs written

discovery. See Dkt. No. 59. That same day, Plaintiffs filed an ex parte application to

expedite resolution on the motion to compel due to the upcoming November 20, 2012

hearing. See Dkt. No. 60. On October 18, 2012, Defendants opposed the ex parte

application. See Dkt. No. 61.

On October 25, 2012, Magistrate Judge Wistrich denied Plaintiffs ex parte

application. See Dkt. No. 66. Judge Wistrich concluded that to the extent that there

is any urgency, it appears that it is attributable to plaintiffs failure to seek expedited

discovery several months ago. Id. Judge Wistrich further held that Plaintiffs motion

to compel was not yet ripe as Defendants had not even been afforded the opportunity

to respond to the written discovery requests. Id. Finally, Judge Wistrich noted that

while Defendants had not yet moved for a stay of discovery, [D]efendants have made

a persuasive showing that they may be entitled to one in light of the characteristics and

potentially dispositive nature of the pending motions. Id.

2 Because there is no deposition notice pending at this time, Defendants ensuing argument primarily

addresses Plaintiffs written discovery. The arguments, however, apply equally to both types ofdiscovery.


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ARGUMENT

I. Discovery Proceedings Should Be Stayed Until This Court Rules on the PendingMotions to Dismiss.

Discovery proceedings in this case should be stayed until this Court has ruled on

the two pending motions to dismiss. As the Ninth Circuit has noted, a stay of

discovery is warranted pending resolution of a potentially dispositive motion such as

a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1) or (b)(6)

when the motion to dismiss does not rely on contested factual issues. See Jarvis v.

Regan, 833 F.2d 149, 155 (9th Cir. 1987) (Discovery is only appropriate where there

are factual issues raised by a Rule 12(b) motion.); see also Rae v. Union Bank, 725

F.2d 478, 481 (9th Cir. 1984) ([D]iscovery is appropriate where there are factual

issues raised by the motion.);Doherty v. Wireless Broad. Sys., 151 F.3d 1129, 1131

(9th Cir. 1998) (affirming lower court decision reducing EAJA fee award on the basis

that party did not need to undertake discovery because the issue in the case was a

purely legal question). When dispositive motions are pending, a stay furthers the

goal of efficiency for the court and litigants. Little v. City of Seattle, 863 F.2d 681,

685 (9th Cir. 1988) (holding that on the facts presented, discovery could not have

affected the district courts preliminary decision regarding issues of immunity).

In considering whether a stay of all discovery pending the outcome of a

dispositive motion is warranted, a case-by-case analysis is required. Skellerup Indus.

Ltd. v. City of Los Angeles, 163 F.R.D. 598, 601 (C.D. Cal. 1995) (quotations and

alterations omitted). Factors the Court should consider include: [T]he type of motion

and whether it is a challenge as a matter of law or the sufficiency of the allegations;

the nature and complexity of the action; whether counterclaims and/or cross-claimshave been interposed; whether some or all of the defendants join in the request for a

stay; the posture or stage of the litigation; the expected extent of discovery in light of

the number of parties and complexity of the issues in the case; and any other relevant

circumstances. Id.


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A stay is warranted in this case. First, there are two pending motions to dismiss:

BLAGs motion to dismiss, Dkt. Nos. 36, 62, and Defendants Partial Motion to

Dismiss, Dkt. No. 46. BLAGs motion contends that all three named Plaintiffs lack

standing and therefore the Court lacks subject matter jurisdiction over all of Plaintiffs

claims. Dkt. No. 62 at 8. BLAGs motion also contends that Plaintiffs equal

protection and substantive due process claims fail to state a claim upon which relief

can be granted. Id. at 8-29. Defendants motion asserts that Plaintiffs Aranas and

Rodriguez lack standing and that Plaintiffs substantive due process and statutory

discrimination claims must be dismissed. See Dkt. No. 46 at 1. Thus, the pending

motions are potentially dispositive of the entire case.

Moreover, neither motion relies on contested factual issues: Both of the pending

motions raise purely legal challenges to Plaintiffs standing and claims. Thus, the

Court can rule on the pending, potentially dispositive motions absent discovery. See,

e.g.,McCarthy v. Hawkins, 381 F.3d 407, 420-21 (5th Cir. 2004) (The

constitutionality of these statutes is a purely legal question that can be resolved without

the aid of either discovery or trial.). Accordingly, in the interest of judicial economy

and preservation of government resources, Defendants ask this Court to stay all

discovery in this case until it has ruled on the pending motions to dismiss.3

II. Plaintiffs Will Not Be Prejudiced by a Stay of Discovery Because Discovery IsNeither Necessary Nor Appropriate.

Plaintiffs will not be prejudiced by a stay of discovery because no discovery is

appropriate with regard to the merits of Plaintiffs claims, which present pure questions

3 Although this case involves a motion for class certification and a motion for a preliminary

injunction, it is technically an action challenging agency action under the Administrative Procedure

Act (APA). See Complaint, Dkt. No. 1 at 4. In such cases, discovery is typically precluded, evenwhen constitutional issues are raised, as long as the Court is only faced with resolving issues of law.Occidental Engg Co. v. I.N.S., 753 F.2d 766, 769 (9th Cir. 1985) (stating that when reviewing a final

agency action there are no disputed facts that the district court must resolve because the court isnot required to resolve any facts in a review of an administrative proceeding).


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of law.4

It is likely that the constitutionality of Section 3 of DOMA will be resolved

by the Supreme Court by June 2013, making it possible that no discovery will ever be

needed for this case. Likewise, discovery is not necessary for this Court to rule on

Plaintiffs motions for a preliminary injunction and for class certification.

1.No Discovery Is Necessary Concerning the Merits of Plaintiffs Claims.Plaintiffs have not at this time sought, nor are they entitled to, discovery

concerning the merits of this action. Plaintiffs claim that Section 3 of DOMA is

unconstitutional is a pure question of law for which there are no issues of fact to be

elicited through discovery. See United States v. Lujan, 504 F.3d 1003, 1006 (9th Cir.

2007) ([T]he constitutionality of a federal statute [is] a question of law that we review

de novo.); Ctr. for Individual Freedom v. Carmouche, 449 F.3d 655, 662 (5th Cir.

2006) ([A] facial challenge to the constitutionality of a statute presents a pure

question of law.); Sindicato Puertorriqueno de Trabajadores v. Fortuno, No. 12-

2171, --- F.3d ----, 2012 WL 5077158, *6 (1st Cir. Oct. 19, 2012) (holding that further

factual development was unnecessary prior to reaching the merits because a facial

challenge to a statute presents a question of law that the district court could and should

have resolved on the present record). Accordingly, no discovery is appropriate with

regard to the merits of Plaintiffs claims.

2.No Discovery Is Needed Regarding the Issuance of a Preliminary Injunction.Likewise, whether Plaintiffs have suffered irreparable harm is at this point a

legal question. Although Plaintiffs allege the existence of contested factual issues

concerning irreparable harm to class members, see Stipulation Re Discovery Dispute,

Dkt. No. 59-1 at 2, 5-6, Defendants did not challenge any of Plaintiffs factual

allegations but rather accepted them as true for purposes of their opposition. See Dkt.

4 Plaintiffs have made clear that they seek discovery only with regard to the issues presented in the

motions for class certification and for a preliminary injunction. See Stipulation Re Discovery

Dispute, Dkt. No. 59-1 at 2 ([P]laintiffs contend that discovery is immediately appropriate with

respect to the factual claims defendants make in opposing plaintiffs motions for preliminaryinjunction and class certification . . .); see also Exhibit 5 (same).


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No. 39 at 2 n.1 (Defendants rely on the facts as alleged in the Complaint for purposes

of this opposition.). Indeed, all of Defendants arguments concerning the lack of

irreparable harm are based on legal rather than factual assertions. For example, when

discussing Plaintiffs alleged harm of arrest and removal due to their being out of

status, Defendants simply point to the statutes and regulations that govern the removal

process, including the regulations allowing aliens ordered removed to seek relief from

removal. Id. at 20-21. Defendants likewise point to the Morton Policy memos which

describe ICEs prioritization of immigrants for removal in order to demonstrate that

Plaintiffs are not within the list of such priorities. Id. at 23. These arguments as well

as all of Defendants other arguments against irreparable harm raise only legal, not

factual, issues.

The issues that Plaintiffs point to as examples of why discovery is needed with

regard to the preliminary injunction either: (1) pertain more to issues of class

certification than irreparable harm, see Stipulation Re Discovery Dispute, Dkt. No. 59-

1 at 6 (Again, by responding to plaintiffs discovery requests the parties, their

counsel, and the [C]ourt would far better understand how many putative class members

in fact face irreparable harm or have lost work authorization based upon DOMA.

(emphasis added)); or (2) seek hypothetical, prospective information regarding what

Defendants might do if DOMA is ruled unconstitutional, information that is both

speculative and protected from disclosure under the deliberative process privilege (and

other applicable privileges), see id. at 5 (Plaintiffs discovery seeks information on

how defendants could, if at all, retroactively erase illegal employment and

unauthorized presence . . . even ifthe Supreme Court eventually agrees with

defendants that DOMA is unconstitutional.) (emphasis in original). Accordingly,Plaintiffs have not shown any need for discovery to respond to Defendants opposition

to their motion for preliminary injunction.


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3.No Discovery Is Necessary Regarding Class Certification Before Resolutionof the Motions to Dismiss.

Finally, Plaintiffs do not need discovery regarding class certification before the

Court Resolves the pending motions to dismiss. Defendants note that Plaintiffs

themselves did not initially believe discovery was necessary for the resolution of their

motion for class certification, as evident from their decision not to seek a court order

commencing expedited discovery a procedure contemplated by the federal rules

prior to filing their motion for class certification. See Fed. R. Civ. P. 26(d)(1) and

30(a)(2). Rather, Plaintiffs decided to file their class motion and notice it for the

earliest possible hearing, September 24, 2012 approximately one month after filing.

Indeed, Plaintiffs opposed Defendants request to move the hearing date to allow moretime for briefing, providing further support that the Court could rule on their motions

quickly, without the aid of discovery. Defendants agree, as Plaintiffs appear to have

acknowledged through their position on the hearing schedule, that discovery is not

necessary for the Court to resolve Plaintiffs motion for class certification.

Moreover, Plaintiffs purported urgent need for such discovery is belied by their

decision to wait until now to properly seek discovery. As previously noted, Plaintiffs

could have sought an order from this Court permitting expedited discovery with regard

to class certification. They did not choose to do so. Plaintiffs have known they would

be seeking class certification for more than three months and have been repeatedly

reminded by Defendants of the proper procedural steps for seeking such discovery.

Moreover, Plaintiffs fail to point to anything in Defendants opposition to the motion

for class certification so unexpected as to warrant early discovery. Indeed, Plaintiffs

sent their Rule 30(b)(6) deposition notice, albeit improperly, before Defendants

responded to their motions. Thus, even if there were any prejudice resulting from the

issuance of a stay of discovery pending resolution of the motions to dismiss which

there is not it would be a product of Plaintiffs decision to wait until this late date to

seek discovery in compliance with the Federal Rules of Civil Procedure. Accordingly,

this Court should stay all discovery proceedings until it has ruled on Defendants and


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BLAGs pending motions to dismiss, which may obviate the need for any discovery at

all.

CONCLUSION

For the foregoing reasons, Defendants respectfully request that the Court stay

discovery proceedings in this case until it has ruled on the two pending motions to

dismiss.

DATED: October 29, 2012 Respectfully submitted,

STUART F. DELERY

Acting Assistant Attorney General

Civil Division

AUGUST E. FLENTJE


DAVID J. KLINE

Director


JEFFREY S. ROBINS

Assistant Director

s/Jesi J. CarlsonJESI J. CARLSON







Tel: (202) 532-4067

Fax: (202) 305-7000


TIMOTHY M. BELSAN

Trial Attorney


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Exhibit 1


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CENTER FORHUMAN RIGHTS AND CONSTITUTIONAL LAWPeter A. Schey (Cal. Bar No. 58232)Carlos R. Holgun (Cal. Bar No. 90754)256 S. Occidental Blvd.Los Angeles, CA 90057Telephone: (213) 388-8693 (Schey Ext. 304, Holgun ext. 309)

Facsimile: (213) [email protected]@centerforhumanrights.org

Additional counsel listed next page

Attorneys for Plaintiffs

UNITED STATES DISTRICT COURT FOR THE

CENTRAL DISTRICT OF CALIFORNIA, SOUTHERN DIVISION

MARTIN R.ARANAS,IRMA RODRIGUEZ, ANDJANE DELEON,

Plaintiffs,

-vs-

JANETNAPOLITANO,Secretary of theDepartment of Homeland Security;DEPARTMENT OF HOMELANDSECURITY;ALEJANDRO MAYORKAS,Director, United States Citizenship and

Immigration Services;andUNITED STATES CITIZENSHIP &IMMIGRATION SERVICES,

Defendants.__________________________________

))))))

)))))))))))))

))))))))

SACV12-01137 CBM AJWx)

NOTICE OF FED. R. CIV. P.30(B)(6) DEPOSITION OF

DEFENDANTSDEPARTMENT OFHOMELAND SECURITY ANDUNITED STATESCITIZENSHIP ANDIMMIGRATION SERVICES

Hearing: None


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2Center for Human Rights & Constitutional Law

256 S. Occidental Blvd.Los Angeles, CA 90057

213/388-8693

Additional counsel for plaintiff Aranas:

PUBLIC LAW CENTERJulie Greenwald (Cal. Bar No. 233714)Monica Ashiku (Cal. Bar No. 263112)601 Civic Center Drive WestSanta Ana, CA 92701Telephone: (714) 541-1010 (Greenwald Ext. 263, Ashiku Ext. 249)Facsimile: (714) 541-5157

[email protected]@publiclawcenter.org

ASIAN LAW ALLIANCEBeatrice Ann M. Pangilinan (Cal. Bar No. 271064)184 Jackson Street, San Jose, CA 95112Telephone: (408) 287-9710Facsimile: (408) 287-0864


Additional counsel for plaintiffs Rodriguez and DeLeon:

LAW OFFICES OF MANULKIN &BENNETTGary H. Manulkin (Cal. Bar No.41469)Reyna M. Tanner (Cal. Bar No.197931)10175 Slater Avenue, Suite 111Fountain Valley, CA 92708Telephone: 714-963-8951

Facsimile: [email protected]@yahoo.com

/ / /


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213/388-8693

TO: ALL PARTIES OF RECORD AND THEIR ATTORNEYS

YOU ARE HEREBY NOTIFIED that, pursuant to Rules 26 and 30(b)(6), Federal

Rules of Civil Procedure, the deposition of the Rule 30(b)(6) witnesses identified below

will be taken upon oral examination at the time and place stated before an officer

authorized by law to administer oaths. Pursuant to Rule 30(b)(6), you are requested to

designate officers, directors, or managing agents, or other persons who consent to testify on

your behalf, who are most knowledgeable with respect to each of the topics identified in

Exhibit A to testify about such matters.

TO BE EXAMINED: 30(b)(6) Representative(s) of theDepartment of Homeland Security

BEFORE WHOM APPEARANCE TOBE MADE: Notary Public/Court Reporter

DATE AND TIME OF DHS DEPOSITION: Thursday, October 4, 2012 at 9:00 a.m.

DATE AND TIME OF CIS DEPOSITION: Thursday, October 4, 2012 at 1:00 p.m.

PLACE OF DEPOSITION: Law Office of Jim Tom Haynes

1555 Connecticut Ave., NW, Suite 200


These depositions shall be recorded by stenographic means. The oral examinations

will continue from day-to-day thereafter on successive business days until completed.

/ / /


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213/388-8693

EXHIBIT A TOPICS FOR EXAMINATION

1. The Rule 30(b)(6) designees relationship with defendants, including his or her

employment history, current position, and responsibilities.

2. The allegations in paragraphs 14-68 of Plaintiffs Complaint for Declaratory and

Injunctive Relief filed July 12, 2012.

3. The manner in which defendants have tracked the cases regarding petitions or

applications for benefits under the INA involving same sex married couples.

4. The standards, procedures, guidelines and/or instructions issued or followed by

defendants regarding the processing of applications or petitions under the INA involving

same sex married couples or their children.


defendants regarding granting immigrants temporary work permits and/or deferred action

status in cases involving petitions or applications under the INA filed by persons in same

sex marriages pending a definitive court verdict on the constitutionality of DOMA.


defendants regarding notifying immigrants seeking benefits under the INA in same sex

/ / /


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213/388-8693

marriages about seeking or obtaining temporary work permits and/or deferred action status

pending a definitive court verdict on the constitutionality of DOMA.

Dated: September 10, 2012. CENTER FORHUMAN RIGHTS ANDCONSTITUTIONAL LAW

Peter A. ScheyCarlos R. Holgun

PUBLIC LAW CENTERJulie Greenwald MarzoukMonica Ashiku

ASIAN LAW ALLIANCEBeatrice Ann M. Pangilinan

LAW OFFICES OF MANULKIN &BENNETTGary H. ManulkinReyna M. Tanner

Peter A. ScheyAttorneys for Plaintiffs

CERTIFICATE OF SERVICE

SACV12-01137 CBM (AJWx)

I hereby certify that on this 10th day of September, 2012, I served the

foregoing on defendants counsel via email and overnight delivery as follows:

Carlson, Jesi J. (CIV)

David (CIV) Kline Belsan, Timothy M. (CIV) Bill Orrick

Jesi J. CarlsonDavid KlineTimothy Belsan,


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213/388-8693

Bill OrrickOffice of Immigration Litigation

Civil Division, U.S. Department of JusticeLiberty Square Building450 5th Street, N.W., Room LL111B (mail intake room)Washington, DC 20001

Dated: September 10, 2012Peter Schey

/ / /


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From: Belsan, Timothy M. (CIV)

To: "Peter Schey"; Carlson, Jesi J. (CIV); Kline, David (CIV)

Cc: Carlos Holguin; Reyna Tanner; Julie Greenwald; Bea Pangilinan; Monica Ashiku

Subject: RE: Aranas v. Napolitano

Date: Tuesday, September 11, 2012 5:31:00 PM

Peter,

Defendants oppose engaging in discovery prior to the October 9, 2012 hearing date. We believe

that the case should be resolved based upon the record of the agency under the APA. In any

event, it is improper at this stage of the litigation.

Sincerely,

Tim

From: Peter Schey [mailto:[email protected]]

Sent: Monday, September 10, 2012 8:54 PMTo: Carlson, Jesi J. (CIV); Kline, David (CIV); Belsan, Timothy M. (CIV); Bill OrrickCc: Carlos Holguin; Reyna Tanner; Julie Greenwald; Bea Pangilinan; Monica AshikuSubject: Re: Aranas v. Napolitano

Dear Jesi, Tim, David and Bill,I would like to chat with one or more of you tomorrow (Tuesday) if possible to discussplaintiffs' interest in conducting a Rule 30(b)(6) deposition before the hearing on plaintiffs'motions for a preliminary injunction and class certification. If you like, I am also prepared todiscuss other issues under Rule 26(d). I have attached a Rule 30(b)(6) deposition notice. Weare flexible on dates but do believe it would be helpful to all parties and the Court to get this

deposition done before the October 9, 2012 hearing date.You may reach me at 323-251-3223.Thank you.best wishes,Peter ScheyCenter for Human Rights and Constitutional Lawwww.centerforhumanrights.org


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CENTER FOR HUMAN RIGHTS AND CONSTITUTIONAL LAWPeter A. Schey (Cal. Bar No. 58232)Carlos R. Holgun (Cal. Bar No. 90754)256 S. Occidental Blvd.Los Angeles, CA 90057Telephone: (213) 388-8693 (Schey Ext. 304, Holgun ext. 309)

Facsimile: (213) [email protected]@centerforhumanrights.org

Additional counsel listed next page

Attorneys for Plaintiffs

UNITED STATES DISTRICT COURT FOR THE

CENTRAL DISTRICT OF CALIFORNIA, SOUTHERN DIVISION

MARTIN R.ARANAS,et al.,

Plaintiffs,

-vs-

JANET NAPOLITANO,Secretary of theDepartment of Homeland Security; etal.,

Defendants.__________________________________

)))))

)))))))))))


PLAINTIFFSFIRST SET OF

INTERROGATORIES,REQUESTS

FOR ADMISSIONS, AND

REQUESTS FOR PRODUCTION OF

DOCUMENTS.

Requests for Admissions 1-21;

Requests for Documents 1-15;Interrogatories 1-21.


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Additional counsel for plaintiff Aranas:

PUBLIC LAW CENTERJulie Greenwald (Cal. Bar No. 233714)Monica Ashiku (Cal. Bar No. 263112)601 Civic Center Drive West

Santa Ana, CA 92701Telephone: (714) 541-1010 (Greenwald Ext. 263, Ashiku Ext. 249)Facsimile: (714) 541-5157

[email protected]@publiclawcenter.org

ASIAN LAW ALLIANCEBeatrice Ann M. Pangilinan (Cal. Bar No. 271064)184 Jackson Street, San Jose, CA 95112Telephone: (408) 287-9710

Facsimile: (408) 287-0864Email: [email protected]

Additional counsel for plaintiffs Rodriguez and DeLeon:

LAW OFFICES OF MANULKIN &BENNETTGary H. Manulkin (Cal. Bar No. 41469)Reyna M. Tanner (Cal. Bar No. 197931)10175 Slater Avenue, Suite 111Fountain Valley, CA 92708

Telephone: 714-963-8951Facsimile: [email protected]@yahoo.com

/ / /


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Plaintiffs request that defendants USCIS and DHS, by authorized

officers or agents thereof, within 30 days or such other time as may be fixed

by the Court, respond to the following requests for admissions, requests for

production of documents, and interrogatories in accordance with Rules 33,34, and 36 of the Federal Rules of Civil Procedure.

I DEFINITIONS AND INSTRUCTIONS

1. When asked to produce a document, provide an admission or

answer an interrogatory, the request pertains to information in the

possession of the Department of Homeland Security (DHS), its subordinateagencies, including U.S. Citizenship and Immigration Services (CIS), past or

present officers, employees, agents, consultants and contractors of the same.

2. If you object to the production of a portion of a document, but not

the entire document, produce that portion of the document to which no

objection is made and indicate your objection on the document or an

accompanying document (referring to the portion produced by page

number[s]).

3. If you object to providing a response to any portion of an

interrogatory, but not the entire interrogatory, please respond to that portion

of the interrogatory to which no objection is made and indicate in your

response that you object to the remaining portion of the interrogatory.

4. Please set forth fully the factual and legal basis for each objection

you make. If your objection relates to a document, please state (unless you


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believe this information is also privileged or objectionable) the date of the

document, name of the author, if known, the agency or entity which

generated the document, the recipient(s) of the document, the number of

pages, the general subject matter of the document, any reference numbers onthe document, and the identity of the present custodian of the document. If

you believe the limited information sought in this paragraph is also

privileged or objectionable, please explain fully the basis for your position.

5. If you object to any discovery request herein on the ground that it is

too broad or burdensome, please respond to the request the extent you deemit not overly broad or burdensome. Please note your objection and provide a

description of the quantity of the balance of the information not produced or

responded to and explain why you believe that production of these

documents or a response would be unduly burdensome.

6. These requests are continuing in nature and any documents or other

information which you discover subsequent to the service of your responses

should be brought to the attention of plaintiffs through supplemental

responses.

7. In responding to requests, please ensure that each response may be

linked to the request to which it responds. Please number the pages of all

documents that you produce sequentially. In response to each request please

separately state which documents respond to the request with reference to

the document and its page number(s). Please do not answer a request for


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production of documents by simply stating the documents sought are

provided in response to another request. Instead, specifically state the title(s)

of the particular document(s) and page numbers as they appear in your

responses. Plaintiffs will seek an order compelling appropriate managementof your responses unless you make a good faith effort to comply with this

instruction.

As used herein

1. The words you or your include the DHS, its subordinate

agencies, including CIS, and the past and present officers, employees andagents of the DHS and/or CIS.

2. The term document means any written, recorded, taped or

graphic matter, as well as information in electronic form, including all non-

identical copies and drafts thereof. Document specifically includes

electronically stored information as that term is used in the Federal Rules

of Civil Procedure, and any and all computer disks or other computer

readable media, and any information from any e-mail system.

3. When used with respect to a place or office, the term identify

means to provide the name of the place or office, its street and mailing

addresses, its telephone number, and the identity of its officer-in-charge.

When used with respect to a person, the term identify means to provide

the persons full name, job description or title (other than for immigrants),

and last known U.S. mailing and street addresses and telephone number(s).


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Plaintiffs counsel will not make public any personnel information about

third persons, including their names or addresses, and will enter into an

appropriate stipulation protecting such information from unauthorized

disclosure. If you nevertheless refuse to provide third parties names, pleaseassign them each a number and provide that number in your response in

place of their names. When used with respect to a document, the term

identify means to (1) identify the custodian of the document, and (2) state

the page number(s) of the document if produced by you for inspection and

copying, or, if not produced, identify the author(s) of the document, andstate the date of the document, number of pages, and its subject. When used

with respect to a filing system, the term identify means (1) provide the

name of the filing system, (2) identify the custodian of the filing system, (3)

identify the location of the filing system, and (4) state whether, and if so

where, an index to the filing system exists.

11. The term present (e.g., from January 2006 to the present) means

the date on which you respond to these discovery requests.

12. The term bi-national same-sex couple (BNSSC) refers to two

persons of the same sex, one of whom is a U.S. citizen or lawful permanent

resident alien, and the other of whom is a foreign national, who are lawfully

married pursuant to the laws of the jurisdiction in which their marriage was

celebrated.


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13. The term immigration benefit[s] refers to any authorization,

status, permission, waiver, or exercise of discretion pursuant to the

Immigration and Nationality Act, 8 U.S.C. 1101, et seq. (INA).

II REQUESTS FOR ADMISSIONS

1. Admit that CIS has advised BNSSCs whose applications or petitions

for immigration benefits it has denied pursuant to 3 of the Defense of

Marriage Act, 1 U.S.C. 7 (DOMA), that the authorization of the alien spouse

to accept employment is terminated pursuant to 8CFR274a.14(a)(1).

2. Admit that has advised BNSSCs whose applications or petitions forimmigration benefits it has denied pursuant to DOMA 3 that the foreign

national spouses parole into the United States is terminated.

3. Admit that CIS has advised BNSSCs whose applications or petitions

for immigration benefits it has denied pursuant to DOMA 3 that the

foreign national spouse is thereafter accruing unlawful presence and that

any alien over 18 years old who is illegally in the United States after April 1,

1997, and who accrues six months or more unlawful presence will be

prohibited from being admitted to the United States should that person

depart this country and seek readmission within three years, and that any

such foreign national spouse who is illegally in the United States for over one

year after April 1, 1997, departs the United States, and seeks readmission

within ten years, that person will be prohibited entry.


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4. Admit that you are aware of no records showing that when advising

a member of a BNSSC whose application or petition for immigration benefits

you have denied in writing pursuant to DOMA 3, you have advised the

member of the BNSSC that you or the Administration believe DOMA isunconstitutional or that the foreign born spouse may be granted any

temporary authorized status and employment authorization pending a

definitive ruling by the courts on the constitutionality of DOMA.

5. Admit that you are aware of no records showing that when advising

a member of a BNSSC whose application or petition for immigration benefitsyou have denied in writing pursuant to DOMA 3 you have advised the

member of the BNSSC of any procedures that person may follow to retain or

obtain temporary employment authorization and temporary authorized

presence pending a definitive ruling by the courts on the constitutionality of

DOMA.

6. Admit that you have not issued any written instructions or directives

to USCIS or USICE officers directing them to advise members of BNSSCs

whose applications or petitions for immigration benefits may not be

approved or have been denied pursuant to DOMA 3 about any procedures

such persons may follow to retain or obtain temporary employment

authorization and temporary authorized presence pending a definitive

ruling by the courts on the constitutionality of DOMA.


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to USCIS or USICE officers instructing them to advise members of BNSSCs


approved or have been denied pursuant to DOMA 3 about any proceduressuch persons may follow to retain or obtain temporary employment




to USCIS or USICE officers instructing them to grant members of BNSSCs,whose applications or petitions for immigration benefits may not be

approved or have been denied pursuant to DOMA 3, temporary

employment authorization and temporary authorized presence pending a

definitive ruling by the courts on the constitutionality of DOMA.

9. Aside from the Memoranda from John Morton, Director, ICE, to ICE

employees dated Mar. 2, 2011 and June 17, 2011, admit that you have not

made available to the public on your web site, in the Code of Federal

Regulations, or in any other way readily available to members of BNSSCs or

their counsel, the procedures and standards to be applied when you decide

whether to grant or deny a member of a BNSSC temporary authorized status

and employment authorization.

10. Admit that you are not aware of any BNSSCs or their counsel being

notified about procedures available under the Memoranda from John


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Morton, Director, ICE, to ICE employees dated Mar. 2, 2011 and June 17,

2011, when members of BNSSCs or their counsel have been advised by you

in writing that an application or petition for an immigration benefit cannot

be approved or must be denied because of DOMA 3.11. Admit that plaintiff Jane DeLeon may be eligible for a waiver of

inadmissibility were it not for DOMA 3.

12. Admit that plaintiff Jane DeLeon is prima facie eligible for lawful

permanent residence were she granted a waiver of inadmissibility.

13. Admit that plaintiff Martin Aranas is prima facie eligible for lawfulpermanent residence as a derivative beneficiary of plaintiff Jane DeLeon

were plaintiff DeLeons application for adjustment of status granted.

14. Admit that CIS does not know how many applications and

petitions for immigration benefits filed by members of BNSSCs it has denied

pursuant to DOMA 3.

15. Admit that you have not kept track of the number of foreign

national members of BNSSCs denied immigration benefits pursuant to

DOMA 3 who have departed the United States after receiving denial letters

from you telling them their employment authorization and lawful status is

terminated and they are acquiring unlawful presence towards the three and

ten-year bars.

16. Admit that you have not kept track of the number of cases in which

you have terminated employment authorizations of foreign nationals when


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you denied their applications or petitions for immigration benefits pursuant

to DOMA 3.

17. Admit that you do not know in how many cases you have

terminated employment authorizations of foreign nationals when youdenied their applications or petitions for immigration benefits pursuant to

DOMA 3.

18. Admit that you have issued no instructions or directives requiring

your officers to inform members of BNSSCs denied temporary authorized

presence or work authorization because their application or petition for animmigration benefit was denied pursuant to DOMA 3 how to seek

administrative review of the termination of any previously approved parole

status or temporary authorized status and employment authorization.

19. Admit that you are not aware of the number of foreign national

members of BNSSCs denied immigration benefits pursuant to DOMA 3

who qualify or do not qualify for an immigration benefit independently of

their marriages.

20. Admit that foreign nationals working without authorization are

more likely to be exploited on the job and to suffer violations of labor and

health and safety laws.

21. Admit that the number of members of BNSSCs denied immigration

benefits pursuant to DOMA 3 is in the hundreds.


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III REQUESTS FOR PRODUCTION OF DOCUMENTS

1. Please produce for inspection and copying all documents discussing

or referencing CISs policy, practice, or procedures for adjudicating

applications or petitions for immigration benefits filed by members ofBNSSCs.

2. Other than the Memoranda from John Morton, Director, ICE, to ICE

employees dated Mar. 2, 2011 and June 17, 2011, please produce for

inspection and copying all documents discussing or referencing CISs policy,

practice, or procedures for exercising prosecutorial discretion towardsforeign national members of BNSSCs denied immigration benefits pursuant

to DOMA 3.



inspection and copying all documents discussing or referencing how your

officers should advise members of BNSSCs denied immigration benefits

pursuant to DOMA 3 or their counsel about CISs policy, practice, or

procedures for exercising prosecutorial discretion towards foreign national

members of BNSSCs denied immigration benefits pursuant to DOMA 3.




practice, or procedures for granting or denying employment authorization to


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foreign national members of BNSSCs denied immigration benefits pursuant

to DOMA 3.


employees dated Mar. 2, 2011 and June 17, 2011, please produce forinspection and copying all documents discussing or referencing how your



procedures for granting or denying employment authorization to foreign

national members of BNSSCs denied immigration benefits pursuant toDOMA 3.




practice, or procedures for granting or denying temporary authorized status

of any sort for national members of BNSSCs denied immigration benefits

pursuant to DOMA 3.



inspection and copying all documents discussing or referencing how your



procedures for granting or denying temporary authorized status of any sort


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for national members of BNSSCs denied immigration benefits pursuant to

DOMA 3.5. Please produce for inspection and copying all statistical reports

reflecting adjudications of applications or petitions for immigration benefits

filed by members of BNSSCs.8. Please produce for inspection and copying all reports, including

statistical reports, reflecting the exercise of prosecutorial discretion pursuant

to the Memoranda from John Morton, Director, ICE, to ICE employees dated

Mar. 2, 2011 and June 17, 2011 in cases of foreign national members of

BNSSCs denied immigration benefits pursuant to DOMA 3.9. Please produce for inspection and copying all reports, including

statistical reports, reflecting the granting or denial of employment

authorization to foreign national members of BNSSCs denied immigration

benefits pursuant to DOMA 3.

10. Please produce for inspection and copying all reports, including

statistical reports, reflecting the granting or denial of temporary authorized

status of any sort in cases of foreign national members of BNSSCs denied

immigration benefits pursuant to DOMA 3.

11. Please produce for inspection and copying all press releases, public

statements, and other documents advising members of BNSSCs denied

immigration benefits pursuant to DOMA 3 of their options to remain

lawfully in the United States.


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12. Please produce for inspection and copying the most recent

documents you possess describing the categories of aliens granted deferred

action status (e.g. U visa applicants, VAWA applicants, etc.) and the numbers

granted deferred action status.13. Other than the Memoranda from John Morton, Director, ICE, to ICE



practice, or procedures for granting or denying employment authorization to

foreign national beneficiaries of visa petitions filed by their U.S. citizenspouses and who have pending applications for adjustment of status.




practice, or procedures for granting or denying deferred action status to

foreign national beneficiaries of visa petitions filed by their U.S. citizen

spouses and who have pending applications for adjustment of status.




practice, or procedures for granting or denying temporary authorized status

(other than deferred action status) for foreign national beneficiaries of visa


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petitions filed by their U.S. citizen spouses and who have pending

applications for adjustment of status.

IV INTERROGATORIES

1. To the extent that you deny any of the foregoing requests foradmissions, please explain the factual basis for your denial.

2. Please state why when informing members of BNSSCs that their

applications or benefits under the INA have been denied because of DOMA

3 you do not also advise such persons that the Administration believes

DOMA is unconstitutional and that the foreign national member of theBNSSC may be granted temporary authorized status and employment

authorization pending a definitive court ruling on the constitutionality of

DOMA.

3. If DOMA is declared unconstitutional by the U.S. Supreme Court,

explain on what basis you may retroactively grant employment

authorization to foreign nationals in BNSSCs who worked for longer than six

months without authorization after you terminated their employment

authorization or refused to grant them work authorization when you denied

a petition or application based upon DOMA 3, and who are therefore now

ineligible for adjustment of status.


explain on what basis you or a court may retroactively grant authorized


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presence so as to avoid application of the three and ten-year bars for foreign

nationals not eligible for adjustment of status.


explain on what basis the Department of State may approve visas despite theapplicant having had more than six or twelve months of unauthorized

presence because they were not granted temporary authorized status by you

after their application or petition for immigration benefits was denied under

DOMA 3.

6. Identify any non-profit legal services organizations you havecommunicated with to determine the availability of free or low-cost

immigration services to low-income members of BNSSCs seeking

immigration benefits under the INA.

7. Identify the non-profit legal services organizations you have

communicated with to inform them about the procedures available to

BNSSC foreign nationals denied benefits based on DOMA 3 to apply for

temporary authorized status and temporary employment, and explain what

such groups were informed by you.

8. Identify any lawyers or legal professional associations you have

communicated with to inform them about the procedures available to

BNSSC foreign nationals denied benefits based on DOMA 3 to apply for

temporary authorized status and temporary employment, and explain what

such lawyers or professional associations were informed by you.


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9. Explain whether you have estimated or determined the staff hours

required to implement your current policy and practice with respect to

granting or denying some form of temporary authorized presence to BNSSC

foreign nationals denied benefits based on DOMA 3.10. Explain whether you have estimated or determined the agency

costs associated with your current policy and practice with respect to

granting or denying some form of temporary authorized presence to BNSSC

foreign nationals denied benefits based on DOMA 3.

11. Explain whether you have made any effort, and if so describe thoseefforts, to determine the number of BNSSC foreign nationals denied benefits

based on DOMA 3 who are able to afford to retain private counsel or who

are in fact represented by private counsel versus those who are not

represented by private counsel.

12. Explain whether you have estimated or determined the staff hours

required and agency costs associated with your current policy and practice

with respect to granting or denying some form of temporary authorized

presence to BNSSC foreign nationals denied benefits based on DOMA 3.

13. Explain in detail (or produce) any instructions or directives issued

to USCIS or USICE officers directing them to advise members of BNSSCs


approved or have been denied pursuant to DOMA 3 about any procedures

such persons may follow to retain or obtain temporary employment


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20



14. Explain in detail (or produce) any instructions or directives issued

to USCIS or USICE officers directing them on how to adjudicate requests forany sort of temporary authorized status and employment authorization

made by members of BNSSCs whose applications or petitions for

immigration benefits may not be approved or have been denied pursuant to

DOMA 3.

15. Please identify each foreign national member of a BNSSC deniedimmigration benefits pursuant to DOMA 3 upon whom CIS has conferred

any form of lawful immigration status and employment authorization.

16. Describe in detail how and why your implementation of a

preliminary injunction in the form proposed by plaintiffs in this case would

require any greater or less dedication of agency resources than required

following your present policy and practice with regards granting temporary

authorized presence and employment authorization to persons denied

immigration benefits under DOMA 3.

17. Describe in detail how and why your implementation of a

preliminary injunction in the form proposed by plaintiffs in this case would

require any greater costs to the CIS or ICE than required following your

present policy and practice with regards granting temporary authorized


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21

presence and employment authorization to persons denied immigration

benefits under DOMA 3.

18. State how many applications and petitions for immigration benefits

filed by members of BNSSCs you have denied pursuant to DOMA 3.19. Of the number identified in response to Interrogatory No. 19, state

how many such persons have been granted or extended on temporary

authorized presence and/or employment authorization since the time of the

denial you issued under DOMA 3.

20. Explain any information that you have made available to the publicon your web site, in the Code of Federal Regulations, or in any other way

readily available to members of BNSSCs or their counsel regarding the

procedures and standards to be applied when you decide whether to grant

or deny a member of a BNSSC temporary authorized status and employment

authorization.

21. Describe any training sessions or programs you have made

available to your officers regarding the procedures and standards to be

applied when they decide whether to grant or deny a member of a BNSSC

denied a benefit under DOMA 3 temporary authorized status and

employment authorization.

Dated: September 25, 2012. CENTER FOR HUMAN RIGHTS ANDCONSTITUTIONAL LAWPeter A. ScheyCarlos R. Holgun


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PUBLIC LAW CENTERJulie Greenwald MarzoukMonica Ashiku

ASIAN LAW ALLIANCEBeatrice Ann M. Pangilinan

LAW OFFICES OF MANULKIN &BENNETTGary H. ManulkinReyna M. Tanner

Peter A. Schey

Attorneys for Plaintiffs/ / /


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CERTIFICATE OF SERVICE


I hereby certify that on this 25th day of September, 2012, I caused the

foregoing to be served via email to the following counsel:

David Kline (CIV) [email protected] J. Carlson, (CIV) [email protected] Belsan, [email protected]

Paul D. Clement [email protected]. Christopher Bartolomucci [email protected] J. Nelson [email protected] H. McGinley [email protected]

Kerry W. Kircher, [email protected] Pittard, [email protected] Davenport, [email protected] B. Tatelman, [email protected] Beth Walker, [email protected]

And via overnight delivery on the following counsel:

JESI J. CARLSONSenior Litigation Counsel

TIMOTHY M. BELSAN (KS 24112)Trial AttorneyCivil Division Office of Immigration LitigationU.S. Department of Justice450 Fifth Street, N.W.Washington, DC 20530

Paul D. ClementH. Christopher BartolomucciBANCROFT PLLC

1919 M Street, N.W.Suite 470Washington, D.C. 20036

Kerry W. Kircher, General CounselWilliam Pittard, Deputy General CounselMary Beth Walker, AssistantCounsel


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OFFICE OF GENERAL COUNSEL,U.S. HOUSE OF REPRESENTATIVES219 Cannon House Office BuildingWashington, D.C. 20515

Dated: September 24,, 2012Peter Schey

/ / /


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Exhibit


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CENTER FOR HUMAN RIGHTS AND CONSTITUTIONAL LAWFoundation

256 S. OCCIDENTAL BOULEVARD

LOS ANGELES, CA 90057

Telephone: (213) 388-8693 Facsimile: (213) 386-9484

September 28, 2012

Jesi J. Carlson, Esq.Timothy M. Belsan, Esq.United States Department of Justice, Civil DivisionOffice of Immigration Litigation, District Court SectionP.O. Box 868 Ben Franklin StationWashington, DC 20044

Via e-mail, telecopier, and first class mail.

Re: Martin Aranas, et al., v. Napolitano, et al., No. CV 06-02816-PHX-RCBl.

Dear Counsel:

We are in receipt of defendants correspondence dated September 24, 2012, declining toappear for deposition pursuant to plaintiffs notice of deposition upon oral examinationof September 10, 2012.

Although we assume defendants position as set out in your letter will pertain as well toplaintiffs interrogatories, requests for production of documents, and requests foradmissions served September 25, 2012, in accordance with Local Rule 37-1, wenevertheless request to confer with defendants in a good faith effort to eliminate or

narrow the parties' dispute regarding discovery and to finalize a joint stipulationpursuant to Local Rule 37-2, a proposed Stipulation is attached.

As we discussed at length on the telephone yesterday, plaintiffs believe that theresponses to the discovery sought are relevant and admissible, and would be importantfor the court to have when deciding the pending motions for class certification and apreliminary injunction. Only defendants possess the requested information.

In summary, plaintiffs contend that discovery is immediately appropriate with respectto the factual claims defendants make in opposing plaintiffs' motions for preliminaryinjunction and class certification, including those regarding whether proposed classmembers will suffer irreparable injury in the absence of preliminary injunctive relief

and whether common questions of law pertain to a sufficient number of similarlysituated individuals as to make joinder impracticable.

Defendants acknowledge that under Rule 30(a)(2), plaintiffs may seek leave to conductearly discovery. Plaintiffs contend that factual issues defendants oppositions raiseconstitute good cause for the courts granting such leave. Plaintiffs encouragedefendants to cooperate with early discovery so as to eliminate the necessity for thepresentation and adjudication of a formal discovery motion.


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es . ar sonTimothy M. BelsanSeptember 28, 2012

Page 2 of 2

Plaintiffs also disagree with defendants contention that class-wide judicial review ofthe constitutionality of DOMA 3 is limited to the administrative record compiled in

plaintiff DeLeon's individual case. Plaintiffs have a clear right to sue directly under theConstitution and independently of the APA to enjoin defendants from violating her andputative class members constitutional rights. Porter v. Califano, 592 F.2d 770, 781 (5thCir. 1979); see also, e.g., McNary v. Haitian Refugee Center, Inc., 498 U.S. 479, 493, 111 S. Ct.888, 112 L. Ed. 2d 1005 (1991) (constitutional challenge to decisions under INA 210Special Agricultural Worker program not limited to administrative record); Smith v.Schlesinger, 513 F.2d 462, 473 (D.C. Cir. 1975) (where action in the District Courtencompasses an attack on constitutionality of the procedures judicial reviewmust of necessity consider more than the formal administrative record.); ITT Fed. Servs.Corp. v. United States, 45 Fed. Cl. 174, 185 (1999) (discovery appropriate even werereview generally limited to administrative record in cases where relief is at issue,especially at the preliminary injunction stage.).

Discovery in the instant action should accordingly proceed in accordance with theFederal Rules of Civil Procedure. Unless the parties can resolve their dispute, plaintiffswill seek an Order compelling responses to all outstanding discovery requests.

Again, we encourage defendants to recede from the contrary position set out in theirletter of September 24, 2012.

As we discussed on the telephone yesterday, plaintiffs counsel remain available toconfer at defendants counsels earliest convenience, and hope you will agree to meetand confer on Monday October 1, 2012 or Tuesday October 2, 2012. Please advise assoon as possible.

Thank you,

Peter A. Schey, Esq. Carlos Holgun, Esq.Executive Director General Counsel

Attachment

cc: Kerry W. Kircher, General Counsel (w/ attach)William Pittard, Deputy General Counsel (w/ attach)Office of General Counsel,U.S. House of Representatives


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Exhibit


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STUART F. DELERY


AUGUST E. FLENTJE


DAVID J. KLINE


JEFFREY S. ROBINS

Assistant Director









TIMOTHY M. BELSAN

Trial Attorney





)

Plaintiffs, )

) [PROPOSED] ORDER

v. )

)

JANET NAPOLITANO, Secretary, )

Department of Homeland Security, )

et al., ) Hearing Date: November 26, 2012Defendants. ) Time: 11:00 a.m.



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This Court, having considered the pleadings, exhibits, memoranda of points and

authorities, and any oral argument:

HEREBY ORDERS that all discovery is stayed in this action until further order

of the Court.

SO ORDERED this ______ day of __________________, 2012.

Hon. Consuelo B. Marshall

United States District Court Judge


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