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TONY WESTUnited States Department of JusticeAssistant Attorney GeneralCivil DivisionDAVID J. KLINEDirector, District Court SectionVICTOR M. LAWRENCEPrincipal Assistant Director, District Court SectionSAMUEL P. GO Senior Litigation Counsel, District Court SectionNEELAM IHSANULLAHTrial Attorney, District Court SectionOffice of Immigration Litigation
P.O. Box 868, Ben Franklin StationWashington, DC 20044Telephone: (202) 353-9923/(202) 532-4269Facsimile: (202) 616-8962 E-mail: [email protected]
Attorneys for Defendants-Respondents
UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF CALIFORNIA
WESTERN DIVISION
JOSE FRANCO-GONZALEZ, et al., ) )
Plaintiffs-Petitioners, ))
v. )JANET NAPOLITANO, et al., ) ) Defendants-Respondents. )
NO. CV 10-2211-DMG(DTB)
OPPOSITION TO EX PARTEAPPLICATION FOR EXPEDITEDDISCOVERY
INTRODUCTION
On November 15, 2010, Expedited Relief Plaintiffs Ever Francisco
Martinez-Rivas ("Martinez") and Aleksandr Petrovich Khukhryanskiy
("Khukhryanskiy"), through counsel, filed an ex parte application
for a temporary restraining order, a motion for a preliminary
injunction, and an ex parte application for expedited discovery in
support of the preliminary injunction hearing. On November 16,
Case 2:10-cv-02211-DMG -DTB Document 70 Filed 11/19/10 Page 1 of 20 Page ID #:1164
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Defendants, through undersigned counsel, responded to the ex parte
application for a temporary restraining order and sought an
extension for purposes of responding to the application for
expedited discovery. Plaintiffs opposed Defendants' request for an
extension on November 17. On November 18, Defendants' ex parte
application for an extension was granted. Defendants hereby oppose
Plaintiffs' ex parte application for expedited discovery.
Plaintiffs' request for expedited discovery in support of the
preliminary injunction hearing is unwarranted on several grounds.
First, because this Court lacks jurisdiction over this matter under
both the Real ID Act and the administrative exhaustion doctrine,
ordering any discovery would be inappropriate. Moreover, even if
jurisdiction is found, discovery is unnecessary because the motion
for a preliminary injunction seeks to resolve pure questions of law,
for which discovery would be unnecessary. Finally, expedited
discovery is an unusual measure requiring Plaintiffs to show good
cause and lack of undue prejudice to the opposing party. Plaintiffs
fail to establish that they are entitled to expedited discovery here
because their discovery request is premature, overly burdensome, and
not reasonably calculated to address the required elements for
obtaining the preliminary injunction. For these reasons, Expedited
Relief Plaintiffs' ex parte application for expedited discovery
should be denied.
ARGUMENT
A. Because this Court Lacks Jurisdiction to EntertainPlaintiffs’ Claims, Discovery is Unavailable
Defendants oppose Plaintiffs’ ex parte application for discovery
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on the ground that this Court lacks jurisdiction over the Amended
Complaint from which Plaintiffs seek a preliminary injunction. As1
outlined in Defendants’ Opposition to Plaintiffs’ Ex Parte
Application for Temporary Restraining Order, Dkt. # 61, this Court’s
review of Plaintiffs’ motion for a preliminary injunction is
improper on two key grounds.
First, because the motion for preliminary injunction seeks
judicial review of legal questions “arising from” Plaintiffs’
removal proceedings, the Real ID Act prohibits judicial review. The
Real ID Act, Pub. L. No. 109-13, Div. B., 119 Stat. 231 (May 11,
2005), which became effective on May 11, 2005, dramatically altered
the means by which aliens could obtain judicial review of legal and
factual issues arising from their removal proceedings. It
This jurisdictional argument specifically pertains to1
Expedited Relief Plaintiffs’ appointment of counsel claim. Expedited Relief Plaintiffs’ challenges to detention are stillpermitted in district court under the Real ID Act because theyare deemed as independent of the removal proceedings themselves. However, there is simply no federal right, constitutional orotherwise, to discovery in habeas proceedings as a generalmatter. Campbell v. Blodgett, 982 F.2d 1356, 1358 (9th Cir. 1993)(citing Harris v. Nelson, 394 U.S. 286 (1969) (adoption offederal rules of civil procedure was not intended to makediscovery provisions of rules available in habeas corpusproceedings)). A habeas proceeding does not proceed to "trial"and unlike other civil litigation, a habeas corpus petitioner isnot entitled to broad discovery. Bracy v. Gramley, 520 U.S. 899(1997); Harris, 394 U.S. at 295 (1969). Rather, discovery forhabeas matters is only granted at the Court's discretion, andupon a showing of good cause. Bracy, 520 U.S. 899; Herrera v.Collins, 506 U.S. 390, 444 (1993); McDaniel v. United StatesDist. Court (Jones), 127 F.3d 886, 888 (9th Cir. 1997); Jones v.Wood, 114 F.3d 1002, 1009 (9th Cir. 1997). Here, Plaintiffs failto show "good cause" as to how their requested expediteddiscovery is necessary to their habeas claims seeking a bondhearing; accordingly, expedited discovery for these claims areinappropriate.
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eliminated district court habeas corpus jurisdiction over removal
orders and vested jurisdiction to review such orders exclusively in
the courts of appeal. See Martinez-Rosas v. Gonzales, 424 F.3d 926,
928-29 (9th Cir. 2005). Section 1252(a)(5) of Title 8, U.S. Code,
now provides:
Notwithstanding any other provision of law (statutory ornonstatutory), including section 2241 of title 28, or anyother habeas corpus provision, and sections 1361 and 1651 ofsuch title, a petition for review filed with an appropriatecourt of appeals in accordance with this section shall be thesole and exclusive means for judicial review of an order ofremoval entered or issued under any provision of this chapter,except as provided in subsection (e).
8 U.S.C. § 1252(a)(5).
8 U.S.C. § 1252(a)(5) interacts with another section of the
immigration laws, 8 U.S.C. § 1252(b)(9), a provision which came into
being with the Illegal Immigration Reform and Immigrant
Responsibility Act in 1996, to bar review of the present matter.
Known as the Zipper Clause, 8 U.S.C. § 1252(b)(9) “consolidates or
‘zips’ ‘judicial review of immigration proceedings into one action
in the court of appeals.’” Singh v. Gonzales, 499 F.3d 969, 976 (9th
Cir. 2007) (quoting Mahadeo v. Reno, 226 F.3d 3, 12 (1st Cir.
2000)). The provision, in pertinent part, reads:
Judicial review of all questions of law and fact, includinginterpretation and application of constitutional and statutoryprovisions, arising from any action taken or proceedingbrought to remove an alien from the United States under thissub-chapter shall be available only in judicial review of afinal order under this section.
8 U.S.C. § 1252(b)(9). The Real ID Act added to this provision to
make clear that the judicial review described in the Zipper Clause
of “an order or . . . questions of law or fact” (emphasis added) may
occur only pursuant to a petition for review of a final removal
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order. See id. Thus, acting together, sections 1252(b)(9) and
1252(a)(5) bar review of all constitutional and legal claims arising
from removal proceedings — including Plaintiffs’ claims regarding
their right to appointment of counsel, an issue which clearly
“[arises] from” their removal proceedings. See 8 U.S.C.
§ 1252(b)(9).
According to Plaintiffs, sections 1252(a)(5) and 1252(b)(9) do
not apply to bar district courts from reviewing cases where an alien
is currently in removal proceedings and has yet to be issued a final
removal order. See Dkt. # 66, at 3-6. Plaintiffs assert a
particularly narrow view of section 1252(b)(9), explaining that
“both the Supreme Court and Ninth Circuit have read it to apply only
to claims that seek review of removal orders, not claims (like those
raised here) that arise independently from the removal order and
could not be reviewed through the normal review process.” Id. at 4.
This is an incorrect statement of the law. The statutory language
of section 1252(b)(9) has wide reach, and encompasses all claims
arising from removal proceedings — not just those arising from the
final removal order itself. In the leading case defining the scope
of 8 U.S.C. § 1252(b)(9) post-Real ID Act, Aguilar v. ICE, 510 F.3d
1 (1st Cir. 2007), the court found that nothing in the Zipper Clause
limits its reach “to challenges to singular orders of removal or to
removal proceedings simpliciter,” specifically recognizing that
review under 8 U.S.C. § 1252(b)(9) does not require a final order of
removal but may constitute a challenge to claims arising within and
involving the proceedings themselves. Id. at 9 (emphasis). Aguilar
does carve out a narrow exception to the Zipper Clause for those
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claims that are “independent of, or wholly collateral to, the
removal process,” id. at 11, but it also makes clear that “the
provision encompasses ‘all questions of law and fact’ and extends to
both ‘constitutional and statutory’ challenges. Its expanse is
breathtaking.” Id. Aguilar has been adopted by district courts
around the country. See, e.g., Flores v. Hartnett, No. 10-2159,
2010 U.S. Dist. LEXIS 84933, at *8-9 (D. Mn. Aug. 18, 2010)
(explaining that section 1252(b)(9) “was designed to consolidate and
channel review of all legal and factual questions, including
constitutional and statutory challenges, that arise from the removal
of aliens into the administrative process”); Flores-Powell v.
Chadbourne, 677 F. Supp. 2d 455 (D. Mass. 2010) (explaining, “In
essence, the First Circuit has concluded that a district court
generally lacks jurisdiction to review a question of law or fact
arising from the removal process, but may review a question that is
independent of removal or cannot effectively be handled through the
available administrative process,” and considering whether the claim
at issue was “independent of the removal process.”).
In support of their narrow reading of section 1252(b)(9),
Plaintiffs rely on two Ninth Circuit cases, neither of which are
adequate for the purpose cited. Plaintiffs suggest that the court in
Singh v. Gonzales, 499 F.3d 969 (9th Cir. 2007), allowed an
ineffective assistance of counsel claim to be brought in district
court, despite the Zipper Clause, because it was not a challenge to
the removal order itself. Dkt. #66, at 6. This is an entirely
inadequate interpretation of that case. In Singh, the ineffective
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assistance of counsel at issue involved the attorney’s failure to2
meet the 30-day deadline to file a petition for review. Thus, the
ineffective assistance of counsel claim did not “[arise] from any
action taken or proceeding brought to remove an alien,” see 8 U.S.C.
§ 1252(b)(9); instead, it “occurred after the issuance of the final
order of removal.” Singh, 499 F.3d at 979 (emphasis added). As a
result, the Zipper Clause of 8 U.S.C. § 1252(b)(9) was not even
remotely applicable to the Singh petitioner.3
Plaintiffs assert that the Government’s interpretation of section
1252(b)(9) was rejected in Lolong v. Gonzales, 484 F.3d 1173, 1177
(9th Cir. 2007); however, that case did not even implicate the
Zipper Clause. As such, Plaintiffs’ assertions are without support.
Second, jurisdiction of this matter is prohibited on the basis
that Plaintiffs have failed to exhaust their administrative
Singh actually involved several incidents of deficient2
performance by more than one attorney. However, the incidentreferenced by the Court in its discussion of the Zipper Clause isthe one discussed above.
The Singh opinion also asserts, “Through this section [83
U.S.C. § 1252(b)(9)], ‘Congress made clear that review of a finalremoval order is the only mechanism for reviewing any issueraised in a removal proceeding.’” (quoting H.R. Rep. No. 109-72,at 173 (2005)). 499 F.3d at 976. This language from thelegislative history rejects Plaintiffs' position by making clearthat, with the exception of issues that are independent of orcollateral to the removal process, the only way to obtain reviewof the issues arising from a removal proceeding is through apetition for review, and not by taking the case to districtcourt.
It should be noted that this case has been superseded onother grounds by Singh v. Napolitano, 619 F.3d 1101 (9th Cir.2010), a factually unrelated case. The newer Singh opinion heldthat ineffective assistance of claims that arise after the entryof the final removal order must be exhausted with the Board ofImmigration Appeals.
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remedies. Specifically, Plaintiffs did not request relief from the
Board of Immigration Appeals (BIA) prior to seeking relief in this
Court. Plaintiffs have not even filed briefs in their appeals
cases, indicating the premature nature of this action. By rushing to
federal court before asking the BIA whether mentally ill
representatives are entitled to legal representation and bond
hearings, Plaintiffs have circumvented the administrative processes
that have been set up to adjudicate these issues. As case law has
shown, the BIA is fully capable of litigating due process and legal
challenges to immigration court procedures. See, e.g., Ghaly v.
INS, 58 F.3d 1425, 1430 (9th Cir. 1995) ("Any error committed by the
IJ [immigration judge] will be rendered harmless by the Board's
application of the correct legal standard"); Liu v. Waters, 55 F.3d
421, 426 (9th Cir. 1995) ("The BIA does have the authority to reopen
cases to fix administratively correctable procedural errors, even
when these errors are failures to follow due process"); Rojas-Garcia
v. Ashcroft, 339 F.3d 814, 819 (9th Cir. 2003) (a pre-Real ID Act
case where the court said that, in the context of petition for
review proceedings, "the petitioner must exhaust administrative
remedies before raising the constitutional claims in a habeas
petition when those claims are reviewable by the BIA on appeal").
Plaintiffs assert that they need not exhaust their administrative
remedies because doing so would be futile and result in irreparable
harm due to the delay in accessing judicial review. Dkt. # 66, at
7. This argument misses the mark, as it rests on an assumption that
the Expedited Relief Plaintiffs will be unable to litigate the issue
of appointment of counsel before the BIA due to their mental
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deficiencies. See id. at 7 (“Here, Plaintiffs are no more able to
exhaust pro se than they are able to litigate their case as a whole
pro se; if the Court takes a practical view of the exhaustion
requirement, it obviously should not apply”). However, Plaintiffs
overlook the administrative proceedings in this case. In both
Expedited Relief Plaintiffs’ removal proceedings, the question of
mental competency was raised, thus putting the BIA on notice that it
must adjudicate the issue of the procedural safeguards guaranteed to
mentally ill respondents in removal proceedings. In Martinez’s
case, DHS raised the issue to the immigration court by entering
Martinez's psychological evaluation into evidence and noting the
court's ability to appoint a custodian to speak on Martinez's behalf
pursuant to 8 C.F.R. § 1240.4. See Dkt. # 57-12, at 4.
Additionally, the immigration judge in Martinez’s case certified to
the BIA the very issue of whether “the Court has erred in
interpreting the law regarding pro se incompetent aliens.” See Dkt.
# 57-13, at 10. The immigration judge in Khukhryanskiy’s case also
placed the plaintiff’s mental incompetency into issue and resolved
it by asking a custodian to be present and provide information
concerning such matters as competency, treatment history, placement
within the detention facility and family contacts. See Dkt. # 57,
at 8. Thus, contrary to Plaintiffs’ assertions, the issue as to how4
to proceed in light of their incompetency has been raised in both
Moreover, the Northwest Immigrant Rights Project has4
sought leave to file an amicus brief in support of Mr.Khukhryanskiy’s case once a briefing schedule is issued. Dkt. #57, at 8. As such, Mr. Khukhryanskiy will be assisted indefending his immigration appeal before the Board.
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appeals, and will, barring unforeseen circumstances, be resolved by
the BIA.
As a result of Plaintiffs’ failure to await the exhaustion of
administrative remedies, this Court is without subject matter
jurisdiction over Plaintiffs’ claims. At minimum, expedited
discovery at this premature point is unwarranted.
Ultimately, a federal district court is a court of limited
jurisdiction, see Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375,
378 (1994) (citations omitted), and only "may issue an injunction if
it has personal jurisdiction over the parties and subject matter
jurisdiction over the claim.” Zepeda v. United States Immigration
Service, 753 F.2d 719, 727 (9th Cir. 1985). When a court lacks
jurisdiction to hear a certain claim, it is also deprived of
authority to order discovery to occur. See, e.g., Freeman v. United
States, 556 F.3d 326, 343 (5th Cir. 2009) (refusing to “subject the
executive branch to discovery in a case over which the district
court lacks jurisdiction”); Rotroff v. Ahlin, No.
1:09-cv-02021-GSA-PC, 2009 WL 4828734, at *3 (E.D. Cal. Dec. 9,
2009) (holding that court lacked jurisdiction to order discovery
because it lacked personal jurisdiction over defendants); Ctr. for
Biological Diversity v. United States HUD, 241 F.R.D. 495, 501 (D.
Ariz. 2006) (stating, “discovery may be denied where it is clear
that further discovery would not demonstrate sufficient facts to
support jurisdiction”). Because this Court lacks subject matter
jurisdiction over the Plaintiffs' motion for preliminary injunction
for the reasons described above, it also lacks jurisdiction to grant
Plaintiffs’ ex parte application for expedited discovery.
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B. Discovery is Unnecessary Because the Motion for aPreliminary Injunction Involves Strictly LegalQuestions.
Because the Expedited Relief Plaintiffs’ claims only involve
issues of law, they do not need to obtain discovery to establish
whether or not they are entitled to a preliminary injunction. In
this case — both with the putative class action and the motion for
preliminary injunction currently before the court — Plaintiffs are
bringing purely legal and constitutional challenges. In the
preliminary injunction motion, Expedited Relief Plaintiffs seek
consideration of just two issues: whether they are entitled to
appointment of counsel, and whether they are entitled to bond
hearings. Also tangentially related to the above claims is the issue
of whether the Attorney General's regulatory safeguards are
sufficient to protect the rights of the mentally ill in immigration
proceedings. These are all questions of law that this Court can
resolve by legal analysis. Thus, a factual examination that would
require the Government to undertake extensive discovery at this very
early stage of this case is unwarranted.
It is well established that litigants alleging only issues of
law are not entitled to discovery. See, e.g., 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”); see also Chudasama v. Mazda Motor Corp.,
123 F.3d 1353, 1367 (11th Cir. 1997) (finding no right to discovery
following motion to dismiss that raised purely legal questions);
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Brazos Valley Coalition for Life, Inc. v. City of Bryan Texas, 421
F.3d 314, 327 (5th Cir. 2005) (“[N]or can we readily imagine, how
any additional discovery would have been necessary to answer these
purely legal questions.”); McCarthy v. Hawkins, 381 F.3d 407 (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.”). This case law is dispositive of Plaintiffs’
request for expedited discovery, as the only issues in Plaintiffs’
preliminary injunction motion are legal in nature.
Defendants intend to bring a Rule 12(b)(1) or 12(c) motion to
dismiss for lack of jurisdiction shortly, based on their arguments
outlined above. Because it would be inefficient to proceed with
discovery when this case could be disposed of on legal issues, this
court should stay discovery until the motion to dismiss is
adjudicated. Several courts have held that stays of discovery are
warranted when a motion to dismiss presents a question of law that
is potentially dispositive of the case. See, e.g., Jarvis v. Regan,
833 F.2d 149, 155 (9th Cir. 1987); Rodriguez v. Robbins, No. 07-3239
(C.D. Cal. Nov. 17, 2010)(attached as Exhibit A); Chattler v. United
States, 2008 WL 495702, *1-*2 (N.D. Cal. Feb. 20, 2008).
Whether or not this Court is willing to proceed with a stay, it
is clear that this case involves purely legal issues that do not
give rise to the need for discovery. In their motion for a
preliminary injunction, Plaintiffs assert that their mental illness
entitles them to appointed counsel. Congress has decided that
aliens in immigration court proceedings, whether incompetent or not,
do not have a right to appointed counsel at government expense. See
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8 U.S.C. §§ 1362, 8 U.S.C. § 1229a(b)(4)(A). To the extent
Plaintiffs are arguing that the Constitution, the "full and fair"
hearing requirement, or the Rehabilitation Act require a mentally
incompetent alien be afforded an attorney at the Government's
expense, these are all questions of law that require no discovery.
To the extent Plaintiffs are arguing that the regulatory safeguards
put in place by the Attorney General are not adequate to protect the
representation rights of incompetent aliens, that is also a question
of law that requires no discovery.
Additionally, whether aggravated felons, such as Expedited Relief
Plaintiffs, are entitled to a bond hearing because of the length of
their detention and/or their alleged mental health concerns is also
a legal issue. The Government is required by law to mandatorily
detain the Expedited Relief Plaintiffs without bond because they are
both aggravated felons. See 8 U.S.C. § 1226(c). This mandatory
detention scheme has been deemed constitutional by the Supreme Court
in Demore v. Kim, 538 U.S. 510 (2003). To the extent that Plaintiffs
challenge their mandatory detention as unconstitutional or in
violation of the immigration statutes or the Rehabilitation Act,
this is a question of law that requires no discovery.
Nor is discovery necessary for Expedited Relief Plaintiffs to
argue that they are eligible for a preliminary injunction. To
obtain a preliminary injunction, Expedited Relief Plaintiffs must
establish that (1) they are likely to succeed on the merits, (2)
they are likely to suffer irreparable harm in the absence of
preliminary relief, (3) the balance of equities tips in their favor,
and (4) an injunction is in the public interest. Winter v. Natural
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Res. Def. Council, 129 S.Ct 365, 374 (2008). Plaintiffs allege that
they will experience the “irreparable” harm of removal from this
country; violation of their constitutional and federal statutory
rights; and continued prolonged detention, tipping the balance of
hardships sharply in their favor. Dkt. # 57, at 40. Yet none of the
discovery requested by the ex parte application will be useful in
establishing these harms, demonstrating how little the expedited
discovery sought is related to the preliminary injunction motion
itself.
Additionally, Plaintiffs allege that this preliminary injunction
will serve the public interest by upholding constitutional rights.
Id. at 41-42. Discovery is unnecessary on this factor, as it
involves purely legal questions. 5
In their document requests, Dkt. # 60-2, Expedited Relief5
Plaintiffs seek production from Defendant Department of HomelandSecurity of their medical evaluations, detention records, andtreatment records. Plaintiffs justify these requests by stating,“What the Government knew about these men’s mental capabilitiesis clearly relevant to the question of what the Governmentexpected to be able to do by way of formulating a ‘defense’ toprotect their rights in their removal proceedings.” Dkt. # 60,at 5. These documents are irrelevant to addressing the issuesraised in the preliminary injunction motion. The issue of mentalcompetency was raised in the removal proceedings of bothExpedited Relief plaintiffs. See infra at 8-9. Because theissue of mental competency was put into play in removalproceedings, the immigration judges were required to apply theprocedural safeguards for mentally ill respondents contained inthe immigration regulations. See, e.g, 8 C.F.R. §§§ 1240.10(c),103.5a(c)(2) and 1240.4. Thus, the factual issue of mentalcompetency is not a part of this case, as Plaintiffs suggest;rather, it is a veil for the real legal issue of whether theprocedural safeguards currently in place are adequate – again, alegal question that does not require discovery.
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C. Plaintiffs’ Ex Parte Application for Expedited DiscoveryDoes Not Meet the Standard of “Good Cause”
Finally, even if this Court should find that discovery in some
form is warranted in the overall case, the Expedited Relief
Plaintiffs’ ex parte application for expedited discovery still lacks
merit. In order for the Court to grant expedited discovery before
the Rule 26(f) scheduling conference, the moving party must meet the
"good cause" standard. Yokohama Tire Corp. v. Dealers Tire Supply,
Inc., 202 F.R.D. 612, 614 (D. Ariz. 2001). To meet this standard,
plaintiffs must demonstrate an affirmative reason for the Court to
grant expedited discovery. "Plaintiff must make some prima facie
showing of the need for the expedited discovery.” Merrill Lynch,
Pierce, Fenner & Smith, Inc. v. O'Connor, 194 F.R.D. 618, 623 (N.D.
Ill. 2000). Plaintiffs’ need must outweigh prejudice to the
responding party. Semitool, Inc. v. Tokyo Electron America, 208
F.R.D. 273, 275 (N.D. Cal. 2002).
Although the good cause standard may be satisfied where a party
seeks a preliminary injunction, “expedited discovery is not
automatically granted merely because a party seeks a preliminary
injunction.” Am. LegalNet, Inc. v. Davis, 673 F. Supp. 2d 1063,
1066 (C.D. Cal. 2009). "Factors commonly considered in determining
the reasonableness of expedited discovery include, but are not
limited to: '(1) whether a preliminary injunction is pending; (2)
the breadth of the discovery requests; (3) the purpose for
requesting the expedited discovery; (4) the burden on the defendants
to comply with the requests; and (5) how far in advance of the
typical discovery process the request was made.'" Id. at 1067. In
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this case, Plaintiffs fail to show good cause that overrides the
severe prejudice Defendants would face if the Court grants expedited
discovery.
While a motion for preliminary injunction is pending in the
present case, the other factors utilized in considering the
reasonableness of expedited discovery counsel against Plaintiffs’
application. First, Plaintiffs’ discovery requests are overbroad,
and lie outside the scope of the requested injunctive relief. The
motion for a preliminary injunction merely seeks the appointment of
counsel and custody hearings for Martinez and Khukhryanskiy. Dkt. #
57, at 3. However, Plaintiffs’ discovery requests seek to unearth,
inter alia, Defendant Department of Homeland Security’s various
policies, procedures and guidance for identifying, evaluating and
treating the mentally ill as well as adjudicating their competency.
See Dkt. # 60-1 (Notice of Deposition); Dkt. # 60-2 (First Set of
Document Requests). Such expedited discovery is unwarranted, as it
addresses issues which are irrelevant as to the two plaintiffs for
whom the preliminary injunction has been filed. See Irish Lesbian &
Gay Org. v. Giuliani, 918 F.Supp. 728, 730-31 (S.D.N.Y. 1996)
(denying expedited discovery which was a “broadside not reasonably
tailored to the time constraints under which both parties must
proceed or the specific issues that will be determined at the
preliminary injunction hearing”); Philadelphia Newspapers, Inc. v.
Gannett Satellite Information Network, Inc., No. 98-CV-2782, 1998 WL
404820 (E.D. Pa. July 15, 1998) (denying motion for expedited
discovery where movant's discovery requests were overly broad and
not reasonably tailored to the specific issues to be addressed at
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the preliminary injunction hearing); In re Websecure, Inc.
Securities Litigation, No. 97-10662-GAO, 1997 WL 770414 (D. Mass.
Nov. 26, 1997) (finding that expedited discovery was both
"particularized" and "necessary to prevent undue prejudice").
Documents relating to Defendants’ general policies, procedures or
guidance on mentally ill detainees (see Dkt. # 60-2, Document
Requests #5-8) are unnecessary for purposes of establishing the
eligibility of the Expedited Relief Plaintiffs for preliminary
injunctive relief.
This discovery may be more appropriate for the putative class
action claim of which both Martinez and Khukhryanskiy are a part,
should this case survive a motion to dismiss and a class be
certified. However, Plaintiffs are unable to seek discovery
relating to the class action claim prior to the certification of the
class itself. “Discovery on the merits of the class claim is
usually deferred until it is certain that the case will be allowed
to proceed as a class action.“ William W. Schwarzer, A. Wallace
Tashima & James M. Wagstaffe, Federal Civil Procedure Before Trial ¶
10:740 (The Rutter Group 2007).
Moreover, the discovery requested would impose an extensive and
undue burden on Defendants. The documents requested by Plaintiffs
go far beyond files specific to the Expedited Relief Plaintiffs’
request for preliminary injunctive relief and include discovery
requests seeking documentation on various agency policies,
procedures, or guidance regarding the mentally ill. Plaintiffs have
requested that a deposition and document production occur within a
week, on November 23, 2010. Defendants have yet to answer
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Plaintiffs’ amended complaint. Considering that discovery in a case
such as this one would normally occur well after Defendants have
answered the complaint, this request for discovery is not only
unduly burdensome, but also excessively premature.
Given that the documents requested are not relevant to defending
the motion for a preliminary injunction, the Government's burden of
producing this information greatly outweighs Plaintiffs' need for
it. Additionally, for the same reasons set forth above as to why
document discovery is not appropriate at this time, Plaintiffs are
also not entitled to the deposition of "Janet Napolitano or her
designee" as the testimony sought mirrors that of the document
requests.
To the extent that this Amended Complaint survives any possible
motions to dismiss, Plaintiffs will have an opportunity to seek
discovery in the normal course.
CONCLUSION
For the foregoing reasons, Defendants respectfully request that
Plaintiffs' ex parte application for expedited discovery be denied.
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DATED: November 19, 2010 Respectfully submitted,
TONY WESTAssistant Attorney General
DAVID J. KLINEDirector Office of Immigration LitigationDistrict Court Section
VICTOR M. LAWRENCEPrincipal Assistant DirectorOffice of Immigration LitigationDistrict Court Section
/s/ Samuel P. Go SAMUEL P. GOSenior Litigation CounselOffice of Immigration LitigationDistrict Court Section
/s/ Neelam Ihsanullah NEELAM IHSANULLAHTrial AttorneyOffice of Immigration LitigationDistrict Court SectionU.S. Department of JusticeCivil DivisionP.O. Box 868, Ben Franklin StationWashington, D.C. 20044
Attorneys for Defendants
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CERTIFICATE OF SERVICE
Case No. CV 10-2211-DMG(DTB)
I hereby certify that one copy of the foregoing OPPOSITION TO EXPARTE APPLICATION FOR EXPEDITED DISCOVERY was served pursuant to thedistrict court’s ECF system as to ECF filers on November 19, 2010,to the following ECF filers:
Ahilan T Arulanantham ACLU Foundation of Southern California 1313 West 8th Street Los Angeles, CA 90017 213-977-5211 Fax: 213-417-2211 Email: [email protected]
/s/ Neelam IhsanullahNeelam IhsanullahTrial AttorneyDistrict Court SectionOffice of Immigration LitigationCivil DivisionU.S. Department of JusticeP.O. Box 868, Ben Franklin StationWashington, D.C. 20044Tel: (202) 532-4269Fax: (202) 616-8962
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MINUTES FORM 11 Initials of Deputy Clerk klh
CIVIL-GEN
UNITED STATES DISTRICT COURTCENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES--GENERAL
Case No. CV 07-3239-TJH (RNBx) Date: November 17, 2010
Title: Alejandro Rodriguez, et al. v. Timothy S. Robbins, et al.
DOCKET ENTRY
PRESENT:HON. ROBERT N. BLOCK, UNITED STATES MAGISTRATE JUDGE
Kerri Hays n/a Deputy Clerk Court Reporter
ATTORNEYS PRESENT FOR PLAINTIFFS: ATTORNEYS PRESENT FOR DEFENDANTS:None present None present
PROCEEDINGS: (IN CHAMBERS)
Respondents’ Motion to Stay Discovery, filed November 3, 2010
The Court is mindful of the authorities cited by petitioners for the proposition thata party moving to stay discovery pending the determination of a dispositive motion hasthe burden of making a “strong showing” that it likely will prevail on the motion.However, not all courts subscribe to that proposition, especially where the motion todismiss presents solely a question of law that is potentially dispositive of the case. See,e.g., Jarvis v. Regan, 833 F.2d 149, 155 (9th Cir. 1987) (holding that a district court didnot abuse its discretion by staying discovery pending the disposition of motions todismiss because “[d]iscovery is only appropriate where there are factual issues raised bya Rule 12(b) motion”); Chattler v. United States, 2008 WL 495702, *1-*2 (N.D. Cal.Feb. 20, 2008) (granting stay of discovery with respect to all claims as to whichdefendants’ motion to dismiss raised only legal issues, without addressing whetherdefendants had made a “strong showing” that they likely would prevail on the motion);Ameritel Inns v. Moffat Bros. Plastering, L.C., 2007 WL 1792323, *4 (D. Idaho June 20,2007) (granting temporary stay of all discovery other than service of initial disclosureson the basis that defendant’s motion to dismiss did not appear to be “without somedegree of foundation in law” and there was a possibility that defendant might prevail);Johnson v. New York Univ. School of Educ., 205 F.R.D. 433, 434 (S.D.N.Y. 2002)(explaining that courts have held “that a stay of discovery is appropriate pendingresolution of a potentially dispositive motion where the motion appear[s] to havesubstantial grounds or, stated another way, do[es] not appear to be without foundationin law” (internal quotation marks omitted)). Moreover, this Court previously advised the
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UNITED STATES DISTRICT COURTCENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES--GENERAL
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parties that it was unwilling to speculate on the likelihood that the District Judge wouldgrant or deny respondents’ Rule 12(c) motion. Nevertheless, the Court has no hesitationin finding that respondents’ prospective motion does not appear to be “without somedegree of foundation in law” and that there is at least a possibility that respondents mayprevail. For the foregoing reasons, as well as those set forth in the Court’s November5, 2010 Minute Order and respondents’ Supplemental Memorandum, respondents’motion to stay discovery pending the District Judge’s ruling on respondents’ Rule 12(c)motion is granted.
Further, to the extent that petitioners’ “Notice of Filing Additional LegalAuthority” was intended as a request that the Court order respondents to turn over theA-files of the class members, even if the Court granted the stay motion, petitioners’request is denied because the Court concurs with respondents that the Ninth Circuit’srationale in Dent v. Holder has no applicability whatsoever to the instant case.
Petitioners’ Motion to Compel and Respondents’ Motion for ProtectiveOrder, filed October 19, 2010
The Court’s granting of respondents’ stay motion renders moot respondents’motion for a protective order. Moreover, in view of the Court’s granting of respondents’stay motion, petitioners’ motion to compel discovery is denied without prejudice to itsrefiling after the District Judge issues his ruling on respondents’ Rule 12(c) motion.However, prior to petitioners’ refiling of any motion to compel discovery, counsel forboth sides are ordered to meet and confer again in light of the District Judge’s ruling andthen, if they are unable to reach a complete resolution of their discovery disputes, toarrange with the Magistrate Judge’s courtroom deputy for a date and time to appearbefore the Court in person to meet and confer further under the Court’s auspices. If andwhen the Court is satisfied that counsel truly have made a good faith effort to eliminatethe necessity for hearing the motion or at least eliminate as many of their disputes aspossible, the Court will set a briefing schedule for the filing of a new Joint Stipulation,wherein each side will be required to set forth with respect to each discovery request stillremaining in dispute not only its contentions but also how its counsel proposed to resolvethe dispute over that discovery request at the further conference of counsel. See Local
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UNITED STATES DISTRICT COURTCENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES--GENERAL
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Rule 37-2.1.
cc: Judge Hatter
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