TONY WEST United States Department of Justice · TONY WEST United States Department of Justice Assistant Attorney General Civil Division DAVID J. KLINE Director, District Court Section

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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]

[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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Exhibit A

Case 2:10-cv-02211-DMG -DTB Document 70-1 Filed 11/19/10 Page 1 of 4 Page ID #:1184

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

Case 2:07-cv-03239-TJH -RNB Document 126 Filed 11/17/10 Page 1 of 3 Page ID #:1225




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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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Rule 37-2.1.

cc: Judge Hatter

