Advanced Federal Court Topics · 2019-12-01 · • Preliminary injunctions are injunctions holding the parties’ relationship in place until trial on the merits • Temporary restraining

Advanced Federal Court Topics:Discovery, Equal Access to Justice Act Fees,

Preliminary Injunctions, and Temporary Restraining Orders

Trina Realmuto, Directing Attorney, American Immigration Council, Boston, MABrad Banias, Associate Attorney, Barnwell Whaley Patterson, & Helms, LLC, Charleston, SC

Kate Melloy Goettel, Senior Litigation Attorney, National Immigrant Justice Center, Chicago, IL

DISCOVERYIs it good for your case?

Types of Cases and Availability of Discovery (Generally)

FULL DISCOVERY(Undisputed)

LIMITED DISCOVERY(With Exceptions)

NO DISCOVERY(With Exceptions)

Federal Tort Claim ActClaims;Biven’s Claims;8 USC 1421(c)*; and 8 USC 1503(c)

Habeas (28 USC 2241); andUnreasonable Delay Claims (5 USC 706)

Petition for Review (8 USC 1252); and Challenge to Benefit Denial (5 USC 706)

Full Discovery• Rule 26 – 26(f) conference, initial disclosures, expert disclosures, and

pre-trial disclosures.• Rule 30 – Depositions

• 30(b)(6) Deposition of Government Witness• Touhy Regulations

• Rule 33 – Interrogatories• Rule 36 – Requests to Admit• Rule 37 and Rule 11 – Sanctions or Discovery Abuse• Other ISSUES: Electronic Discovery, Protective Orders, Document

Review, Deponents, etc.

DO YOU REALLY WANT DISCOVERY?• Section 1421(c) states:• Judicial review: A person whose application

for naturalization under this subchapter is denied, after a hearing before an immigration officer under section 1447(a) of this title, may seek review of such denial before the United States district court for the district in which such person resides in accordance with chapter 7 of title 5. Such review shall be de novo, and the court shall make its own findings of fact and conclusions of law and shall, at the request of the petitioner, conduct a hearing de novo on the application.

• ROOM TO ARGUE FOR de novo review of denial alone.

Limited Discovery

• Habeas Petitions under 28 USC 2241:• 28 USC 2246: “On application for a writ of habeas corpus, evidence may be

taken orally or by deposition, or, in the discretion of the judge, by affidavit. If affidavits are admitted any party shall have the right to propound written interrogatories to the affiants, or to file answering affidavits.”

• ICE nearly always responds with a declaration in support of their Return (Response). This puts this statute into play.

• ICE will argue Rules governing 2254/2254 Petitions apply. But they allow discovery too but only with judicial permission (Rule 8).

• BE PREPARED to explain what factual issue requires interrogatories.

Limited Discovery • Unreasonable Delay Claims• 5 USC 706 – “compel agency action unlawfully withheld or

unreasonably delayed”• If you survive MTD, the Agency must prove its factual allegations.• IT WILL TRY TO DO THIS WITH A DECLARATION.• Room to depose the declarant. Room to stipulate to a “record.” Lots

of room, though you will likely need judicial intervention to get more than a declaration.

• Recognized exception for discovery into claims that the Agency has wholly failed or refused to undertake mandatory obligation.

No Discovery (with exceptions)

• Petition for Review under 8 USC 1252• After the Agency produces the record to the appropriate United

States Court of Appeals, you can argue that the record on appeal is insufficient for judicial review; this would require remand and is likely a merits argument.

• Most likely thing to happen is you point it out, and if it is a significant problem, OIL will fix the record.

No Discovery (with exceptions)• Challenging Final Agency Actions under Administrative Procedure Act

• Default Rule is Record Review.• Motion to Supplement – Add documents to the record to explain.• Motion to Complete – Add documents to the record to complete it. If the

Agency cannot put forth the documents, you may engage in limited discovery.

Questions on Discovery

• Does it help your case? Is it better to argue the record is insufficient to sustain the decision?

• Do you know what it takes to engage in full discovery?• Do you really want to do that?• Is your client willing to go through it?• Will completing/supplementing the record help the government?

EAJA Fees

EAJA Filing Deadline

• Within 30 days of a “final judgment” – 28 U.S.C. §2412(d)(1)(B)

• A “final judgment” means a judgment that is final and not appealable and includes an order of settlement. 28 U.S.C. § 2412(d)(2)(G).

Statutory Requirements

• Prevailing party status• Gov’t not substantially justified• No special circumstances would

make an award unjust• Prevailing party meets net worth

requirements• Statement of total amount of fees &

costs sought, along with itemization of time expended and rates charged

Prevailing party status• Buckhannon Board of Care & Home Inc.

v. West Virginia Dep’t of Health and Human

• Resources, 532 U.S. 598, 603 (2001)• Definition of prevailing party • Rejection of the “catalyst theory”

• Acceptable Court Orders post-Buckhannon

Substantial Justification

• Only need to show pre-litigation ORpost-litigation position was not substantially justified.

• ALWAYS ARGUE BOTH.

• Court will look at whether gov’t position was reasonable based on several factors, including clarity of law, length and complexity of litigation, views of other courts on same issue, merits of position, and stage of resolution.

Special Circumstances• Narrowly construed by courts • Includes:

• Truly novel or close legal questions

• Prevailing party has “unclean hands”

• Gov’t bears burden of proof

Net WorthINDIVIDUAL: not more than$2 million at time of filing

CORPORATION: not more than $7 million and 500 employees maxat time of filing

Calculated for each named party

Documented through signed affidavit

Time Records• Keep contemporaneous, detailed,

itemized time records (date, timekeeper, task, time spent)

• Make sure work billed is compensable (fees on fees, pro bono & litigation work = ok; NOT agency work)

• Likely challenges: vague, non-descriptive, duplicative

• Best defense is a good offense!

Calculating Fees & RatesEAJA statutory rate adjusted for inflation

Bad faith exception to EAJA statutory rateIbrahim v. US DHS, 912 F.3d 1147 (9th Cir. 2019) (en banc)

Enhanced rates based on special factors (e.g. specialized knowledge, limited number of qualified counsel, etc.)

Documenting prevailing market ratesLaffey matrix

PRELIMINARY INJUNCTIONS & TEMPORARY RESTRAINING ORDERS

The Basics

• Preliminary injunctions are injunctions holding the parties’ relationship in place until trial on the merits

• Temporary restraining orders are temporary versions of PIs

• A preliminary injunction is an “extraordinary remedy” and “never awarded as of right.” Winter v. Nat'l Res. Def. Council, Inc., 555 U.S. 7, 24 (2008).

• Governing Rule = Federal Rule of Civil Procedure (FRCP) 65(a) & (b)

PIs and TROs – what’s the difference?

• Immediacy & opportunity for response• TRO =

• As a matter of practice, usually entered in a matter of a few days (or even hours)

• Court can issue a TRO without notice to adverse party (Fed. R. Civ. P 65(b))

• Attorney must certify that s/he gave notice to adverse party (FRCP 65(b)(3))

• PI = • Court must provide notice to the adverse party before issuing a PI. (FRCP

65(a)(1))• Courts frequently hold hearings, which may be evidentiary• May take weeks (or months) for a court to rule on a PI

What’s the difference? (cont’d)• Expiration

• TRO = Every TRO must state when it expires and normally shall not last more than 14 days (FRCP 65(b)(2))

• Court can extend a TRO for good cause.• PI = Generally for the life of the case.

Life cycle of PI/TRO

Court issues TRO Parties brief preliminary injunction; hearing

Court issues preliminary injunction replacing TRO

(most likely)

Court denies preliminary injunction; TRO dissolved

Court denies TRO Parties brief preliminary injunction; hearing

Court issues preliminary injunction

Court denies preliminary injunction (time for

plaintiff soul-searching)

What can a PI or TRO do?• Preserve the status quo

• This is known as a prohibitory injunction.• What is the status quo?

• “Last peaceable uncontested status existing between the parties before the dispute developed,” 11A Wright & Miller § 2948, at 136.

• Example: M.G.U. v. Nielsen, 325 F. Supp. 3d 111, 118 (D.D.C. 2018) – a family separation case. The court found that the plaintiff “contested her separation from the moment that she was separated from her son,” and, therefore, “the last uncontested status occurred when she and her son approached immigration officials together near the United States-Mexico border.”

What can’t a PI or TRO do?• Generally, a PI or TRO cannot require the other side to take action, known

as a mandatory injunction. • To prevail on a mandatory injunction, the moving party must show:1

• (1) Law and facts are clearly in the plaintiff’s favor; higher than likely-to-succeed standard

• (2) extreme or very serious damage would result absent an injunction• Mandatory injunctions are disfavored and rare.• Example:

• Innovation Law Lab v. Nielsen, 310 F. Supp. 3d 1150, 1165 (D. Or. 2018) – ordered certain accommodations for attorney access.

1 See, e.g., Garcia v. Google, Inc., 786 F.3d 733, 740 (9th Cir. 2015); Tom Doherty Assocs. v. Saban Entm't, Inc., 60 F.3d 27, 34 (2d Cir. 1995); Lake Charles Diesel, Inc. v. Gen. Motors Corp., 328 F.3d 192, 196 (5th Cir.2003); RoDaDrilling Co. v. Siegal, 552 F.3d 1203, 1208 & n. 3 (10th Cir.2009)

Standard for PIs and TROs

• The same 4-factor test applies for PIs and TROs:• (1) likelihood of success on the merits; • (2) irreparable harm in the absence of preliminary relief; • (3) balance of equities tips in favor of the movant; and • (4) an injunction is in the public interest. Winter v. Nat. Res. Def. Council, 555 U.S. 7, 20 (2008).

• Must show each factor independently, but there is circuit split on whether the factors are on a “sliding scale.”

Likelihood of success on the merits

• Most show that you are likely to succeed on the facts and law of your claim. In other words: Will you win?

• Usually the most important factor.

Irreparable Harm• “The concept of irreparable harm does not readily lend itself to definition.”

Judicial Watch, Inc. v. Dep't of Homeland Sec., 514 F.Supp.2d 7, 10 (D.D.C. 2007). • Key principles:

• Harm is both certain and great; actual and not theoretical• Harm is imminent • Injury must be “beyond remediation”• Economic harm is not irreparable harm.

• Examples:• Irreparable harm often found in claims regarding immigration detention.1

• Irreparable harm often not found where immigrant about to lose status or work authorization. 2

1 See, e.g., Hernandez v. Sessions, 872 F.3d 976, 995 (9th Cir. 2017); Jolly v. Coughlin, 76 F.3d 468, 482 (2d Cir. 1996); Jarpa v. Mumford, 211 F.Supp.3d 706, 711 (D. Md. 2016); R.I.L–R v. Johnson, 80 F.Supp.3d 164, 191 (D.D.C. 2015).2 See, e.g., Boansi v. Johnson, No. 2:14-CV-47-BO, 2014 WL 6883133, at *2 (E.D.N.C. Dec. 3, 2014) (citing Sampson v. Murray, 415 U.S. 61, 90, (1974) (economic loss not irreparable harm); see also Moreno v. Nielsen, No. 18-CV-1135 (RRM), 2019 WL 653139, at *5 (E.D.N.Y. Feb. 15, 2019) (examining whether to grant a TRO where employer about to cease operations).

Balance of Equities & Public Interest

• When the government is the defendant, these two factors merge. Nken v. Holder, 556 U.S. 418 (2009)

• Constitutional and statutory violations are almost never in the public interest.1

• On the other hand, immigration enforcement and deference to the immigration agencies is in the public interest. 2

1 See, e.g., Ramirez v. U.S. Immigration & Customs Enf't, 310 F. Supp. 3d 7, 33 (D.D.C. 2018) (“Plaintiffs have identified a specific statutory provision where the agency's discretion has been clearly constrained by Congress. The public interest surely does not cut in favor of permitting an agency to fail to comply with a statutory mandate.”). 2 See, e.g., Tenorio-Serrano v. Driscoll, 324 F. Supp. 3d 1053, 1067 (D. Ariz. 2018) (finding balance of equities tips in the government’s favor where Defendants would “face serious hardship if the Court ordered them to refrain from complying with ICE detainers.”).

2019 AILA Spring Federal Court Litigation Conference © 2019 American Immigration Lawyers Association

EAJA Fees


EAJA Filing Deadline

• Within 30 days of a “final judgment” – 28 U.S.C. §2412(d)(1)(B)

• A “final judgment” means a judgment that is final and not appealable and includes an order of settlement. 28 U.S.C. § 2412(d)(2)(G).


Statutory Requirements

• Prevailing party status• Gov’t not substantially justified• No special circumstances would

make an award unjust• Prevailing party meets net worth

requirements• Statement of total amount of fees &

costs sought, along with itemization of time expended and rates charged


Prevailing party status• Buckhannon Board of Care & Home

Inc. v. West Virginia Dep’t of Health and Human

• Resources, 532 U.S. 598, 603 (2001)• Definition of prevailing party • Rejection of the “catalyst theory”

• Acceptable Court Orders post-Buckhannon


Substantial Justification

• Only need to show pre-litigation ORpost-litigation position was not substantially justified.

• ALWAYS ARGUE BOTH.

• Court will look at whether gov’t position was reasonable based on several factors, including clarity of law, length and complexity of litigation, views of other courts on same issue, merits of position, and stage of resolution.


Special Circumstances• Narrowly construed by courts • Includes:

• Truly novel or close legal questions

• Prevailing party has “unclean hands”

• Gov’t bears burden of proof


Net WorthINDIVIDUAL: not more than$2 million at time of filing

CORPORATION: not more than $7 million and 500 employees maxat time of filing

Calculated for each named party

Documented through signed affidavit


Time Records• Keep contemporaneous, detailed,

itemized time records (date, timekeeper, task, time spent)

• Make sure work billed is compensable (fees on fees, pro bono & litigation work = ok; NOT agency work)

• Likely challenges: vague, non-descriptive, duplicative

• Best defense is a good offense!


Calculating Fees & RatesEAJA statutory rate adjusted for inflation

Bad faith exception to EAJA statutory rateIbrahim v. US DHS, 912 F.3d 1147 (9th Cir. 2019) (en banc)

Enhanced rates based on special factors (e.g. specialized knowledge, limited number of qualified counsel, etc.)

Documenting prevailing market ratesLaffey matrix


Documents

Advanced Federal Court Topics · 2019-12-01 · • Preliminary injunctions are injunctions holding the parties’ relationship in place until trial on the merits • Temporary restraining