8:12-cv-01137 #68

Case 8:12-cv-01137-CBM-AJW Document 68
Filed 10/29/12 Page 1 of 3 Page ID #:1577
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STUART F. DELERY Acting Assistant Attorney General, Civil Division AUGUST E. FLENTJE Acting Deputy Assistant Attorney General DAVID J. KLINE Director, Office of Immigration Litigation JEFFREY S. ROBINS Assistant Director JESI J. CARLSON (D.C. Bar No. 975478) Senior Litigation Counsel Department of Justice, Civil Division Office of Immigration Litigation District Court Section P.O. Box 868, Ben Franklin Station Washington, DC 20044 Telephone: (202) 305-7037 Email: jesi.j.carlson@usdoj.gov TIMOTHY M. BELSAN Trial Attorney Attorneys for Defendants UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA ) ) Plaintiffs, ) ) v. ) ) JANET NAPOLITANO, Secretary, ) Department of Homeland Security, ) et al., ) Defendants. ) ______________________________ ) MARTIN ARANAS, et al., No. 8:12-cv-1137-CBM (AJWx) DEFENDANTS NOTICE OF MOTION AND MOTION TO STAY DISCOVERY PROCEEDINGS
Hearing Date: November 26, 2012 Time: 11:00 a.m. Judge: Hon. Consuelo B. Marshall
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PLEASE TAKE NOTICE that on November 26, 2012 at 11:00 a.m. or as soon thereafter as the parties may be heard, Defendants will bring for hearing a Motion to Stay Discovery Proceedings. The hearing will take place before the Honorable Consuelo B. Marshall, in Courtroom 2, 312 N. Spring Street, Los Angeles, CA, 90012. This Motion is based on the Memorandum of Points and Authorities attached hereto, all pleadings, papers and files in this action, and such oral argument as may be presented at the hearing on the Motion. This Motion is also made following conferences between counsel for the Plaintiffs and Defendants pursuant to L.R. 7-3, which took place telephonically on October 5, 20121, and October 26, 2012. During the October 26, 2012 conference, Plaintiffs counsel confirmed that Plaintiffs oppose Defendants Motion. In addition, conferences between counsel for Defendants and the Bipartisan Legal Advisory Group (BLAG) took place telephonically on October 5, 2012, and October 26, 2012. BLAG informed Defendants by email that BLAG takes no position at this time but reserves its right to file a response after seeing the motion. DATED: October 29, 2012 Respectfully submitted, STUART F. DELERY Acting Assistant Attorney General Civil Division AUGUST E. FLENTJE Acting Deputy Assistant Attorney General DAVID J. KLINE Director Office of Immigration Litigation
While Counsel did not discuss specifically Defendants filing of a formal motion to stay discovery during the October 5, 2012 26(f) conference and meet and confer regarding Plaintiffs motion to compel discovery, Defendants have made their position that discovery should be stayed (at least until the pending dispositive motions have been resolved) known to both Plaintiffs and BLAG at least since that time (when all of these issues were discussed in detail). 1
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JEFFREY S. ROBINS Assistant Director s/ Jesi J. Carlson JESI J. CARLSON Senior Litigation Counsel Department of Justice, Civil Division Office of Immigration Litigation District Court Section P.O. Box 868, Ben Franklin Station Washington, DC 20044 Tel: (202) 532-4067 Fax: (202) 305-7000 Email: jesi.j.carlson@usdoj.gov TIMOTHY M. BELSAN Trial Attorney
Case 8:12-cv-01137-CBM-AJW Document 68-1 #:1580
Filed 10/29/12 Page 1 of 11 Page ID
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STUART F. DELERY Acting Assistant Attorney General, Civil Division AUGUST E. FLENTJE Acting Deputy Assistant Attorney General DAVID J. KLINE Director, Office of Immigration Litigation JEFFREY S. ROBINS Assistant Director JESI J. CARLSON (D.C. Bar No. 975478) Senior Litigation Counsel Department of Justice, Civil Division Office of Immigration Litigation District Court Section P.O. Box 868, Ben Franklin Station Washington, DC 20044 Telephone: (202) 305-7037 Email: jesi.j.carlson@usdoj.gov TIMOTHY M. BELSAN Trial Attorney Attorneys for Defendants UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA ) ) Plaintiffs, ) ) v. ) ) JANET NAPOLITANO, Secretary, ) Department of Homeland Security, ) et al., ) Defendants. ) ) ______________________________ ) MARTIN ARANAS, et al., No. 8:12-cv-1137-CBM (AJWx) DEFENDANTS MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO STAY DISCOVERY PROCEEDINGS PENDING RESOLUTION OF THE MOTIONS TO DISMISS Hearing Date: November 26, 2012 Time: 11:00 a.m. Judge: Hon. Consuelo B. Marshall
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INTRODUCTION This Court should stay discovery proceedings. As Magistrate Judge Wistrich concluded in his October 25, 2012 Order, Defendants previously made a persuasive showing that they may be entitled to a stay of discovery in light of the characteristics and potentially dispositive nature of the pending motions. See Dkt. No. 66. Defendants and the Bipartisan Legal Advisory Group (BLAG) filed motions to dismiss pending before this Court, which could resolve the entire case. The resolution of the motions to dismiss does not turn on any contested factual matter. As a result, a stay of discovery furthers the interests of judicial economy and preservation of government resources. Additionally, a stay of discovery would not prejudice Plaintiffs. Plaintiffs have not sought, nor are they entitled to, discovery concerning the merits of their claims the same claims at issue in the pending motions to dismiss. Moreover, although Plaintiffs contend that discovery is necessary for the resolution of their motions for class certification and for a preliminary injunction, this Court can decide both motions without discovery, as evidenced by the fact that Plaintiffs waited until after filing those motions to serve discovery. Accordingly, this Court should stay any discovery until it has ruled on the motions to dismiss. PROCEDURAL HISTORY Plaintiffs filed this action on July 14, 2012. Dkt. No. 1. That same day, Plaintiffs sent to Defendants a draft motion for a preliminary injunction. See Dkt. No. 16 at 5. On August 23, 2012, Plaintiffs filed motions for class certification and for a preliminary injunction. Dkt. Nos. 12, 13. Despite having long anticipated and prepared for the filing of those motions, Plaintiffs did not at that time seek discovery to support their motions or an order from this Court permitting expedited or early discovery. On August 27, 2012, this Court granted Defendants ex parte application, continuing the hearing on Plaintiffs motions to October 9, 2012, and ordering Defendants responses due September 14, 2012. Dkt. No. 17.
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On September 10, 2012, four days before Defendants responses to Plaintiffs motions were due, Plaintiffs e-mailed a Notice of Rule 30(b)(6) Depositions to counsel for Defendants. See Exhibit 1. The next day, Defendants informed Plaintiffs by e-mail that they opposed engaging in discovery prior to the October 9, 2012 hearing date. See E-mail from T. Belsan to P. Schey (Sept. 11, 2012, 17:31 EST) (attached hereto as Exhibit 2). Defendants further stated that the case should be resolved based upon the record of the agency under the APA and that discovery was improper at this stage of the litigation. Id. On September 14, 2012, Defendants filed their oppositions to Plaintiffs motions for class certification and for a preliminary injunction. Dkt. Nos. 35, 39. On September 24, 2012, Defendants sent a letter to Plaintiffs counsel explaining their position regarding Plaintiffs deposition notice in further detail. See Letter from J. Carlson to P. Schey (Sept. 24, 2012) (attached hereto as Exhibit 3). Defendants noted that the parties had not yet conferred as required by Federal Rule of Civil Procedure 26(f), and that, under Rule 26(d)(1), Plaintiffs could not seek discovery without a stipulation or court order. Id. Defendants made clear that they did not stipulate to early discovery. Id. In addition, Defendants informed Plaintiffs that because this is an APA case, discovery is unwarranted at any phase of the litigation. Id. The next day, Plaintiffs e-mailed to counsel for Defendants written discovery including requests for admission, production of documents, and interrogatories. See Exhibit 4. Plaintiffs did not, however, seek a court order allowing expedited discovery. On September 27, 2012, counsel for Defendants reiterated to counsel for Plaintiffs by telephone Defendants position that because the parties had not yet conferred pursuant to Rule 26(f) and Plaintiffs had not obtained a court order, any discovery they had served was premature. Despite Defendants position that discovery was premature, Counsel also informed Plaintiffs that Defendants were amenable to scheduling a Rule 26(f) conference to comply with the Federal Rules of Civil Procedure and to further discuss the issues. Notwithstanding that conversation, on
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September 28, 2012, Plaintiffs counsel sent to Defendants counsel a Proposed Stipulation Regarding Discovery Dispute, pursuant to Local Rule 37-1. In an accompanying letter, Plaintiffs request[ed] to confer with defendants in a good faith effort to eliminate or narrow the parties dispute regarding discovery and to finalize a joint stipulation pursuant to Local Rule 37-2. Letter from P. Schey to J. Carlson (Sept. 28, 2012) (attached hereto as Exhibit 5). Plaintiffs also noted that under Rule 30(a)(2), plaintiffs may seek leave to conduct early discovery. Id. Plaintiffs did not, however, seek a court order allowing expedited discovery at that time. On October 2, 2012, Defendants informed Plaintiffs via letter that because the parties had still not conferred under Rule 26(f) and Plaintiffs had not obtained a court order, both discovery and a motion to compel remained inappropriate. Letter from J. Carlson to P. Schey (Oct. 2, 2012) (attached hereto as Exhibit 6). Defendants, however, suggested a prompt Rule 26(f) conference to thoroughly discuss discoveryrelated issues, and proposed dates and times for such a conference that week. Id. Defendants also suggested that BLAG be included. On October 3, 2012, Plaintiffs sent a revised Proposed Stipulation Regarding Discovery Dispute to Defendants. On October 5, 2012, Plaintiffs, Defendants, and BLAG engaged in an initial Rule 26(f) conference via telephone and discussed all issues required pursuant to the Local Rules and Federal Rules of Civil Procedure. During that conference, Defendants indicated their position that discovery proceedings should be stayed pending the Courts resolution of the motions to dismiss pending before it.1 Following the Rule 26(f) conference, Plaintiffs re-served Defendants with the prior written discovery, including requests for admission, production of documents, and interrogatories. However, Plaintiffs re-served Defendants with the prior deposition notice for October 4, 2012 depositions, a date which had already passed. To date, Plaintiffs have not
Defendants indicated that because they believe discovery to be improper at this time, a subsequent Rule 26(f) Conference may be necessary at a later date to revisit some of the items of discussion. 3
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served a deposition notice dated any time after the Rule 26(f) conference.2 In addition, Plaintiffs, Defendants, and BLAG put together a Rule 26(f) report to be filed with the Court. Defendants consented to Plaintiffs filing of the final report on October 18, 2012, having outlined their position that discovery proceedings should be stayed at that time. Plaintiffs filed the report on October 27, 2012. See Dkt. No. 67. On October 17, 2012, Plaintiffs filed a motion to compel Defendants to appear in response to Plaintiffs deposition notice and to respond to Plaintiffs written discovery. See Dkt. No. 59. That same day, Plaintiffs filed an ex parte application to expedite resolution on the motion to compel due to the upcoming November 20, 2012 hearing. See Dkt. No. 60. On October 18, 2012, Defendants opposed the ex parte application. See Dkt. No. 61. On October 25, 2012, Magistrate Judge Wistrich denied Plaintiffs ex parte application. See Dkt. No. 66. Judge Wistrich concluded that to the extent that there is any urgency, it appears that it is attributable to plaintiffs failure to seek expedited discovery several months ago. Id. Judge Wistrich further held that Plaintiffs motion to compel was not yet ripe as Defendants had not even been afforded the opportunity to respond to the written discovery requests. Id. Finally, Judge Wistrich noted that while Defendants had not yet moved for a stay of discovery, [D]efendants have made a persuasive showing that they may be entitled to one in light of the characteristics and potentially dispositive nature of the pending motions. Id.
Because there is no deposition notice pending at this time, Defendants ensuing argument primarily addresses Plaintiffs written discovery. The arguments, however, apply equally to both types of discovery. 4
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ARGUMENT I. Discovery Proceedings Should Be Stayed Until This Court Rules on the Pending Motions to Dismiss. Discovery proceedings in this case should be stayed until this Court has ruled on the two pending motions to dismiss. As the Ninth Circuit has noted, a stay of discovery is warranted pending resolution of a potentially dispositive motion such as a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1) or (b)(6) when the motion to dismiss does not rely on contested factual issues. See Jarvis v. Regan, 833 F.2d 149, 155 (9th Cir. 1987) (Discovery is only appropriate where there are factual issues raised by a Rule 12(b) motion.); see also Rae v. Union Bank, 725 F.2d 478, 481 (9th Cir. 1984) ([D]iscovery is appropriate where there are factual issues raised by the motion.); Doherty v. Wireless Broad. Sys., 151 F.3d 1129, 1131 (9th Cir. 1998) (affirming lower court decision reducing EAJA fee award on the basis that party did not need to undertake discovery because the issue in the case was a purely legal question). When dispositive motions are pending, a stay furthers the goal of efficiency for the court and litigants. Little v. City of Seattle, 863 F.2d 681, 685 (9th Cir. 1988) (holding that on the facts presented, discovery could not have affected the district courts preliminary decision regarding issues of immunity). In considering whether a stay of all discovery pending the outcome of a dispositive motion is warranted, a case-by-case analysis is required. Skellerup Indus. Ltd. v. City of Los Angeles, 163 F.R.D. 598, 601 (C.D. Cal. 1995) (quotations and alterations omitted). Factors the Court should consider include: [T]he type of motion and whether it is a challenge as a matter of law or the sufficiency of the allegations; the nature and complexity of the action; whether counterclaims and/or cross-claims have been interposed; whether some or all of the defendants join in the request for a stay; the posture or stage of the litigation; the expected extent of discovery in light of the number of parties and complexity of the issues in the case; and any other relevant circumstances. Id.
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A stay is warranted in this case. First, there are two pending motions to dismiss: BLAGs motion to dismiss, Dkt. Nos. 36, 62, and Defendants Partial Motion to Dismiss, Dkt. No. 46. BLAGs motion contends that all three named Plaintiffs lack standing and therefore the Court lacks subject matter jurisdiction over all of Plaintiffs claims. Dkt. No. 62 at 8. BLAGs motion also contends that Plaintiffs equal protection and substantive due process claims fail to state a claim upon which relief can be granted. Id. at 8-29. Defendants motion asserts that Plaintiffs Aranas and Rodriguez lack standing and that Plaintiffs substantive due process and statutory discrimination claims must be dismissed. See Dkt. No. 46 at 1. Thus, the pending motions are potentially dispositive of the entire case. Moreover, neither motion relies on contested factual issues: Both of the pending motions raise purely legal challenges to Plaintiffs standing and claims. Thus, the Court can rule on the pending, potentially dispositive motions absent discovery. See, e.g., McCarthy v. Hawkins, 381 F.3d 407, 420-21 (5th Cir. 2004) (The constitutionality of these statutes is a purely legal question that can be resolved without the aid of either discovery or trial.). Accordingly, in the interest of judicial economy and preservation of government resources, Defendants ask this Court to stay all discovery in this case until it has ruled on the pending motions to dismiss.3 II. Plaintiffs Will Not Be Prejudiced by a Stay of Discovery Because Discovery Is Neither Necessary Nor Appropriate. Plaintiffs will not be prejudiced by a stay of discovery because no discovery is appropriate with regard to the merits of Plaintiffs claims, which present pure questions
Although this case involves a motion for class certification and a motion for a preliminary injunction, it is technically an action challenging agency action under the Administrative Procedure Act (APA). See Complaint, Dkt. No. 1 at 4. In such cases, discovery is typically precluded, even when constitutional issues are raised, as long as the Court is only faced with resolving issues of law. Occidental Engg Co. v. I.N.S., 753 F.2d 766, 769 (9th Cir. 1985) (stating that when reviewing a final agency action there are no disputed facts that the district court must resolve because the court is not required to resolve any facts in a review of an administrative proceeding). 6
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of law.4 It is likely that the constitutionality of Section 3 of DOMA will be resolved by the Supreme Court by June 2013, making it possible that no discovery will ever be needed for this case. Likewise, discovery is not necessary for this Court to rule on Plaintiffs motions for a preliminary injunction and for class certification. 1. No Discovery Is Necessary Concerning the Merits of Plaintiffs Claims. Plaintiffs have not at this time sought, nor are they entitled to, discovery concerning the merits of this action. Plaintiffs claim that Section 3 of DOMA is unconstitutional is a pure question of law for which there are no issues of fact to be elicited through discovery. See United States v. Lujan, 504 F.3d 1003, 1006 (9th Cir. 2007) ([T]he constitutionality of a federal statute [is] a question of law that we review de novo.); Ctr. for Individual Freedom v. Carmouche, 449 F.3d 655, 662 (5th Cir. 2006) ([A] facial challenge to the constitutionality of a statute presents a pure question of law.); Sindicato Puertorriqueno de Trabajadores v. Fortuno, No. 122171, --- F.3d ----, 2012 WL 5077158, *6 (1st Cir. Oct. 19, 2012) (holding that further factual development was unnecessary prior to reaching the merits because a facial challenge to a statute presents a question of law that the district court could and should have resolved on the present record). Accordingly, no discovery is appropriate with regard to the merits of Plaintiffs claims. 2. No Discovery Is Needed Regarding the Issuance of a Preliminary Injunction. Likewise, whether Plaintiffs have suffered irreparable harm is at this point a legal question. Although Plaintiffs allege the existence of contested factual issues concerning irreparable harm to class members, see Stipulation Re Discovery Dispute, Dkt. No. 59-1 at 2, 5-6, Defendants did not challenge any of Plaintiffs factual allegations but rather accepted them as true for purposes of their opposition. See Dkt.
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Plaintiffs have made clear that they seek discovery only with regard to the issues presented in the motions for class certification and for a preliminary injunction. See Stipulation Re Discovery Dispute, Dkt. No. 59-1 at 2 ([P]laintiffs contend that discovery is immediately appropriate with respect to the factual claims defendants make in opposing plaintiffs motions for preliminary injunction and class certification . . .); see also Exhibit 5 (same). 7
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No. 39 at 2 n.1 (Defendants rely on the facts as alleged in the Complaint for purposes of this opposition.). Indeed, all of Defendants arguments concerning the lack of irreparable harm are based on legal rather than factual assertions. For example, when discussing Plaintiffs alleged harm of arrest and removal due to their being out of status, Defendants simply point to the statutes and regulations that govern the removal process, including the regulations allowing aliens ordered removed to seek relief from removal. Id. at 20-21. Defendants likewise point to the Morton Policy memos which describe ICEs prioritization of immigrants for removal in order to demonstrate that Plaintiffs are not within the list of such priorities. Id. at 23. These arguments as well as all of Defendants other arguments against irreparable harm raise only legal, not factual, issues. The issues that Plaintiffs point to as examples of why discovery is needed with regard to the preliminary injunction either: (1) pertain more to issues of class certification than irreparable harm, see Stipulation Re Discovery Dispute, Dkt. No. 591 at 6 (Again, by responding to plaintiffs discovery requests the parties, their counsel, and the [C]ourt would far better understand how many putative class members in fact face irreparable harm or have lost work authorization based upon DOMA. (emphasis added)); or (2) seek hypothetical, prospective information regarding what Defendants might do if DOMA is ruled unconstitutional, information that is both speculative and protected from disclosure under the deliberative process privilege (and other applicable privileges), see id. at 5 (Plaintiffs discovery seeks information on how defendants could, if at all, retroactively erase illegal employment and unauthorized presence . . . even if the Supreme Court eventually agrees with defendants that DOMA is unconstitutional.) (emphasis in original). Accordingly, Plaintiffs have not shown any need for discovery to respond to Defendants opposition to their motion for preliminary injunction.
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3. No Discovery Is Necessary Regarding Class Certification Before Resolution of the Motions to Dismiss. Finally, Plaintiffs do not need discovery regarding class certification before the Court Resolves the pending motions to dismiss. Defendants note that Plaintiffs themselves did not initially believe discovery was necessary for the resolution of their motion for class certification, as evident from their decision not to seek a court order commencing expedited discovery a procedure contemplated by the federal rules prior to filing their motion for class certification. See Fed. R. Civ. P. 26(d)(1) and
30(a)(2). Rather, Plaintiffs decided to file their class motion and notice it for the
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earliest possible hearing, September 24, 2012 approximately one month after filing.
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Indeed, Plaintiffs opposed Defendants request to move the hearing date to allow more
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time for briefing, providing further support that the Court could rule on their motions
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quickly, without the aid of discovery. Defendants agree, as Plaintiffs appear to have acknowledged through their position on the hearing schedule, that discovery is not necessary for the Court to resolve Plaintiffs motion for class certification. Moreover, Plaintiffs purported urgent need for such discovery is belied by their decision to wait until now to properly seek discovery. As previously noted, Plaintiffs could have sought an order from this Court permitting expedited discovery with regard to class certification. They did not choose to do so. Plaintiffs have known they would be seeking class certification for more than three months and have been repeatedly reminded by Defendants of the proper procedural steps for seeking such discovery. Moreover, Plaintiffs fail to point to anything in Defendants opposition to the motion for class certification so unexpected as to warrant early discovery. Indeed, Plaintiffs sent their Rule 30(b)(6) deposition notice, albeit improperly, before Defendants responded to their motions. Thus, even if there were any prejudice resulting from the issuance of a stay of discovery pending resolution of the motions to dismiss which there is not it would be a product of Plaintiffs decision to wait until this late date to seek discovery in compliance with the Federal Rules of Civil Procedure. Accordingly, this Court should stay all discovery proceedings until it has ruled on Defendants and
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BLAGs pending motions to dismiss, which may obviate the need for any discovery at all. CONCLUSION For the foregoing reasons, Defendants respectfully request that the Court stay discovery proceedings in this case until it has ruled on the two pending motions to dismiss. DATED: October 29, 2012 Respectfully submitted, STUART F. DELERY Acting Assistant Attorney General Civil Division AUGUST E. FLENTJE Acting Deputy Assistant Attorney General DAVID J. KLINE Director Office of Immigration Litigation JEFFREY S. ROBINS Assistant Director s/ Jesi J. Carlson JESI J. CARLSON Senior Litigation Counsel Department of Justice, Civil Division Office of Immigration Litigation District Court Section P.O. Box 868, Ben Franklin Station Washington, DC 20044 Tel: (202) 532-4067 Fax: (202) 305-7000 Email: jesi.j.carlson@usdoj.gov TIMOTHY M. BELSAN Trial Attorney
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Exhibit 1
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CENTER FOR HUMAN RIGHTS AND CONSTITUTIONAL LAW Peter A. Schey (Cal. Bar No. 58232) Carlos R. Holgun (Cal. Bar No. 90754) 256 S. Occidental Blvd. Los Angeles, CA 90057 Telephone: (213) 388-8693 (Schey Ext. 304, Holgun ext. 309) Facsimile: (213) 386-9484 pschey@centerforhumanrights.org crholguin@centerforhumanrights.org Additional counsel listed next page Attorneys for Plaintiffs
UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA, SOUTHERN DIVISION ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) SACV12-01137 CBM (AJWx) NOTICE OF FED. R. CIV. P. 30(B)(6) DEPOSITION OF DEFENDANTS DEPARTMENT OF HOMELAND SECURITY AND UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES
15 MARTIN R. ARANAS, 16 IRMA RODRIGUEZ, AND JANE DELEON, 17 18 19 20 -vs21 JANET NAPOLITANO, Secretary of the 22 Department of Homeland Security; DEPARTMENT OF HOMELAND 23 SECURITY; ALEJANDRO MAYORKAS, 24 Director, United States Citizenship and Immigration Services; and 25 UNITED STATES CITIZENSHIP & IMMIGRATION SERVICES, 26 27 28 Defendants. __________________________________ Plaintiffs,
Hearing: None
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Additional counsel for plaintiff Aranas: PUBLIC LAW CENTER Julie Greenwald (Cal. Bar No. 233714) Monica Ashiku (Cal. Bar No. 263112) 601 Civic Center Drive West Santa Ana, CA 92701 Telephone: (714) 541-1010 (Greenwald Ext. 263, Ashiku Ext. 249) Facsimile: (714) 541-5157 jgreenwald@publiclawcenter.org mashiku@publiclawcenter.org ASIAN LAW ALLIANCE Beatrice Ann M. Pangilinan (Cal. Bar No. 271064) 184 Jackson Street, San Jose, CA 95112 Telephone: (408) 287-9710 Facsimile: (408) 287-0864 Email: bpangilinan@asianlawalliance.org Additional counsel for plaintiffs Rodriguez and DeLeon: LAW OFFICES OF MANULKIN & BENNETT Gary H. Manulkin (Cal. Bar No. 41469) Reyna M. Tanner (Cal. Bar No. 197931) 10175 Slater Avenue, Suite 111 Fountain Valley, CA 92708 Telephone: 714-963-8951 Facsimile: 714-968-4948 gmanulkin@mgblaw.com reynatanner@yahoo.com ///
Center for Human Rights & Constitutional Law 256 S. Occidental Blvd. Los Angeles, CA 90057 213/388-8693
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///
TO: ALL PARTIES OF RECORD AND THEIR ATTORNEYS YOU ARE HEREBY NOTIFIED that, pursuant to Rules 26 and 30(b)(6), Federal Rules of Civil Procedure, the deposition of the Rule 30(b)(6) witnesses identified below will be taken upon oral examination at the time and place stated before an officer authorized by law to administer oaths. Pursuant to Rule 30(b)(6), you are requested to designate officers, directors, or managing agents, or other persons who consent to testify on your behalf, who are most knowledgeable with respect to each of the topics identified in Exhibit A to testify about such matters. TO BE EXAMINED: BEFORE WHOM APPEARANCE TO BE MADE: 30(b)(6) Representative(s) of the Department of Homeland Security Notary Public/Court Reporter
DATE AND TIME OF DHS DEPOSITION: Thursday, October 4, 2012 at 9:00 a.m. DATE AND TIME OF CIS DEPOSITION: Thursday, October 4, 2012 at 1:00 p.m. PLACE OF DEPOSITION: Law Office of Jim Tom Haynes
1555 Connecticut Ave., NW, Suite 200 Washington, DC 20036

These depositions shall be recorded by stenographic means. The oral examinations will continue from day-to-day thereafter on successive business days until completed.
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EXHIBIT A TOPICS FOR EXAMINATION 1. The Rule 30(b)(6) designees relationship with defendants, including his or her employment history, current position, and responsibilities. 2. The allegations in paragraphs 14-68 of Plaintiffs Complaint for Declaratory and Injunctive Relief filed July 12, 2012. 3. The manner in which defendants have tracked the cases regarding petitions or applications for benefits under the INA involving same sex married couples. 4. The standards, procedures, guidelines and/or instructions issued or followed by defendants regarding the processing of applications or petitions under the INA involving same sex married couples or their children. 5. The standards, procedures, guidelines and/or instructions issued or followed by defendants regarding granting immigrants temporary work permits and/or deferred action status in cases involving petitions or applications under the INA filed by persons in same sex marriages pending a definitive court verdict on the constitutionality of DOMA. 6. The standards, procedures, guidelines and/or instructions issued or followed by defendants regarding notifying immigrants seeking benefits under the INA in same sex ///
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marriages about seeking or obtaining temporary work permits and/or deferred action status pending a definitive court verdict on the constitutionality of DOMA.
Dated: September 10, 2012.
CENTER FOR HUMAN RIGHTS AND CONSTITUTIONAL LAW Peter A. Schey Carlos R. Holgun PUBLIC LAW CENTER Julie Greenwald Marzouk Monica Ashiku ASIAN LAW ALLIANCE Beatrice Ann M. Pangilinan LAW OFFICES OF MANULKIN & BENNETT Gary H. Manulkin Reyna M. Tanner
Peter A. Schey Attorneys for Plaintiffs
CERTIFICATE OF SERVICE SACV12-01137 CBM (AJWx) I hereby certify that on this 10th day of September, 2012, I served the foregoing on defendants counsel via email and overnight delivery as follows: Carlson, Jesi J. (CIV) <Jesi.J.Carlson@usdoj.gov> David (CIV) Kline <David.Kline@usdoj.gov> Belsan, Timothy M. (CIV) <Timothy.M.Belsan@usdoj.gov> Bill Orrick <Bill.Orrick@usdoj.gov> Jesi J. Carlson David Kline Timothy Belsan,
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Bill Orrick Office of Immigration Litigation Civil Division, U.S. Department of Justice Liberty Square Building 450 5th Street, N.W., Room LL111B (mail intake room) Washington, DC 20001
Dated: September 10, 2012 ///
Peter Schey
Exhibit 2

From: To: Cc: Subject: Date:
Belsan, Timothy M. (CIV) "Peter Schey"; Carlson, Jesi J. (CIV); Kline, David (CIV) Carlos Holguin; Reyna Tanner; Julie Greenwald; Bea Pangilinan; Monica Ashiku RE: Aranas v. Napolitano Tuesday, September 11, 2012 5:31:00 PM
Peter, DefendantsopposeengagingindiscoverypriortotheOctober9,2012hearingdate.Webelieve thatthecaseshouldberesolvedbasedupontherecordoftheagencyundertheAPA.Inany event,itisimproperatthisstageofthelitigation. Sincerely, Tim

From: Peter Schey [mailto:pschey@centerforhumanrights.org] Sent: Monday, September 10, 2012 8:54 PM To: Carlson, Jesi J. (CIV); Kline, David (CIV); Belsan, Timothy M. (CIV); Bill Orrick Cc: Carlos Holguin; Reyna Tanner; Julie Greenwald; Bea Pangilinan; Monica Ashiku Subject: Re: Aranas v. Napolitano
Dear Jesi, Tim, David and Bill, I would like to chat with one or more of you tomorrow (Tuesday) if possible to discuss plaintiffs' interest in conducting a Rule 30(b)(6) deposition before the hearing on plaintiffs' motions for a preliminary injunction and class certification. If you like, I am also prepared to discuss other issues under Rule 26(d). I have attached a Rule 30(b)(6) deposition notice. We are flexible on dates but do believe it would be helpful to all parties and the Court to get this deposition done before the October 9, 2012 hearing date. You may reach me at 323-251-3223. Thank you. best wishes, Peter Schey Center for Human Rights and Constitutional Law www.centerforhumanrights.org
Exhibit
Exhibit
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CENTER FOR HUMAN RIGHTS AND CONSTITUTIONAL LAW Peter A. Schey (Cal. Bar No. 58232) Carlos R. Holgun (Cal. Bar No. 90754) 256 S. Occidental Blvd. Los Angeles, CA 90057 Telephone: (213) 388-8693 (Schey Ext. 304, Holgun ext. 309) Facsimile: (213) 386-9484 pschey@centerforhumanrights.org crholguin@centerforhumanrights.org Additional counsel listed next page Attorneys for Plaintiffs
UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA, SOUTHERN DIVISION ) ) ) ) ) Plaintiffs, ) ) ) -vs) ) JANET NAPOLITANO, Secretary of the ) Department of Homeland Security; et ) ) al., ) ) ) Defendants. ) __________________________________ SACV12-01137 CBM (AJWx) PLAINTIFFS FIRST SET OF INTERROGATORIES, REQUESTS
FOR ADMISSIONS, AND
15 MARTIN R. ARANAS, et al., 16 17 18 19 20 21 22 23 24 25 26 27 28
REQUESTS FOR PRODUCTION OF DOCUMENTS.
Requests for Admissions 1-21; Requests for Documents 1-15; Interrogatories 1-21.
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Additional counsel for plaintiff Aranas: PUBLIC LAW CENTER Julie Greenwald (Cal. Bar No. 233714) Monica Ashiku (Cal. Bar No. 263112) 601 Civic Center Drive West Santa Ana, CA 92701 Telephone: (714) 541-1010 (Greenwald Ext. 263, Ashiku Ext. 249) Facsimile: (714) 541-5157 jgreenwald@publiclawcenter.org mashiku@publiclawcenter.org ASIAN LAW ALLIANCE Beatrice Ann M. Pangilinan (Cal. Bar No. 271064) 184 Jackson Street, San Jose, CA 95112 Telephone: (408) 287-9710 Facsimile: (408) 287-0864 Email: bpangilinan@asianlawalliance.org Additional counsel for plaintiffs Rodriguez and DeLeon: LAW OFFICES OF MANULKIN & BENNETT Gary H. Manulkin (Cal. Bar No. 41469) Reyna M. Tanner (Cal. Bar No. 197931) 10175 Slater Avenue, Suite 111 Fountain Valley, CA 92708 Telephone: 714-963-8951 Facsimile: 714-968-4948 gmanulkin@mgblaw.com reynatanner@yahoo.com ///
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Plaintiffs request that defendants USCIS and DHS, by authorized officers or agents thereof, within 30 days or such other time as may be fixed by the Court, respond to the following requests for admissions, requests for production of documents, and interrogatories in accordance with Rules 33, 34, and 36 of the Federal Rules of Civil Procedure. I DEFINITIONS AND INSTRUCTIONS 1. When asked to produce a document, provide an admission or answer an interrogatory, the request pertains to information in the possession of the Department of Homeland Security (DHS), its subordinate agencies, including U.S. Citizenship and Immigration Services (CIS), past or present officers, employees, agents, consultants and contractors of the same. 2. If you object to the production of a portion of a document, but not the entire document, produce that portion of the document to which no objection is made and indicate your objection on the document or an accompanying document (referring to the portion produced by page number[s]). 3. If you object to providing a response to any portion of an interrogatory, but not the entire interrogatory, please respond to that portion of the interrogatory to which no objection is made and indicate in your response that you object to the remaining portion of the interrogatory. 4. Please set forth fully the factual and legal basis for each objection you make. If your objection relates to a document, please state (unless you
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believe this information is also privileged or objectionable) the date of the document, name of the author, if known, the agency or entity which generated the document, the recipient(s) of the document, the number of pages, the general subject matter of the document, any reference numbers on the document, and the identity of the present custodian of the document. If you believe the limited information sought in this paragraph is also privileged or objectionable, please explain fully the basis for your position. 5. If you object to any discovery request herein on the ground that it is too broad or burdensome, please respond to the request the extent you deem it not overly broad or burdensome. Please note your objection and provide a description of the quantity of the balance of the information not produced or responded to and explain why you believe that production of these documents or a response would be unduly burdensome. 6. These requests are continuing in nature and any documents or other information which you discover subsequent to the service of your responses should be brought to the attention of plaintiffs through supplemental responses. 7. In responding to requests, please ensure that each response may be linked to the request to which it responds. Please number the pages of all documents that you produce sequentially. In response to each request please separately state which documents respond to the request with reference to the document and its page number(s). Please do not answer a request for
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production of documents by simply stating the documents sought are provided in response to another request. Instead, specifically state the title(s) of the particular document(s) and page numbers as they appear in your responses. Plaintiffs will seek an order compelling appropriate management of your responses unless you make a good faith effort to comply with this instruction. As used herein 1. The words you or your include the DHS, its subordinate agencies, including CIS, and the past and present officers, employees and agents of the DHS and/or CIS. 2. The term document means any written, recorded, taped or graphic matter, as well as information in electronic form, including all nonidentical copies and drafts thereof. Document specifically includes electronically stored information as that term is used in the Federal Rules of Civil Procedure, and any and all computer disks or other computer readable media, and any information from any e-mail system. 3. When used with respect to a place or office, the term identify means to provide the name of the place or office, its street and mailing addresses, its telephone number, and the identity of its officer-in-charge. When used with respect to a person, the term identify means to provide the persons full name, job description or title (other than for immigrants), and last known U.S. mailing and street addresses and telephone number(s).
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Plaintiffs counsel will not make public any personnel information about third persons, including their names or addresses, and will enter into an appropriate stipulation protecting such information from unauthorized disclosure. If you nevertheless refuse to provide third parties names, please assign them each a number and provide that number in your response in place of their names. When used with respect to a document, the term identify means to (1) identify the custodian of the document, and (2) state the page number(s) of the document if produced by you for inspection and copying, or, if not produced, identify the author(s) of the document, and state the date of the document, number of pages, and its subject. When used with respect to a filing system, the term identify means (1) provide the name of the filing system, (2) identify the custodian of the filing system, (3) identify the location of the filing system, and (4) state whether, and if so where, an index to the filing system exists. 11. The term present (e.g., from January 2006 to the present) means the date on which you respond to these discovery requests. 12. The term bi-national same-sex couple (BNSSC) refers to two persons of the same sex, one of whom is a U.S. citizen or lawful permanent resident alien, and the other of whom is a foreign national, who are lawfully married pursuant to the laws of the jurisdiction in which their marriage was celebrated.
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13. The term immigration benefit[s] refers to any authorization, status, permission, waiver, or exercise of discretion pursuant to the Immigration and Nationality Act, 8 U.S.C. 1101, et seq. (INA). II REQUESTS FOR ADMISSIONS 1. Admit that CIS has advised BNSSCs whose applications or petitions for immigration benefits it has denied pursuant to 3 of the Defense of Marriage Act, 1 U.S.C. 7 (DOMA), that the authorization of the alien spouse to accept employment is terminated pursuant to 8CFR274a.14(a)(1). 2. Admit that has advised BNSSCs whose applications or petitions for immigration benefits it has denied pursuant to DOMA 3 that the foreign national spouses parole into the United States is terminated. 3. Admit that CIS has advised BNSSCs whose applications or petitions for immigration benefits it has denied pursuant to DOMA 3 that the foreign national spouse is thereafter accruing unlawful presence and that any alien over 18 years old who is illegally in the United States after April 1, 1997, and who accrues six months or more unlawful presence will be prohibited from being admitted to the United States should that person depart this country and seek readmission within three years, and that any such foreign national spouse who is illegally in the United States for over one year after April 1, 1997, departs the United States, and seeks readmission within ten years, that person will be prohibited entry.
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4. Admit that you are aware of no records showing that when advising a member of a BNSSC whose application or petition for immigration benefits you have denied in writing pursuant to DOMA 3, you have advised the member of the BNSSC that you or the Administration believe DOMA is unconstitutional or that the foreign born spouse may be granted any temporary authorized status and employment authorization pending a definitive ruling by the courts on the constitutionality of DOMA. 5. Admit that you are aware of no records showing that when advising a member of a BNSSC whose application or petition for immigration benefits you have denied in writing pursuant to DOMA 3 you have advised the member of the BNSSC of any procedures that person may follow to retain or obtain temporary employment authorization and temporary authorized presence pending a definitive ruling by the courts on the constitutionality of DOMA. 6. Admit that you have not issued any written instructions or directives to USCIS or USICE officers directing them to advise members of BNSSCs whose applications or petitions for immigration benefits may not be approved or have been denied pursuant to DOMA 3 about any procedures such persons may follow to retain or obtain temporary employment authorization and temporary authorized presence pending a definitive ruling by the courts on the constitutionality of DOMA.
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7. Admit that you have not issued any written instructions or directives to USCIS or USICE officers instructing them to advise members of BNSSCs whose applications or petitions for immigration benefits may not be approved or have been denied pursuant to DOMA 3 about any procedures such persons may follow to retain or obtain temporary employment authorization and temporary authorized presence pending a definitive ruling by the courts on the constitutionality of DOMA. 8. Admit that you have not issued any written instructions or directives to USCIS or USICE officers instructing them to grant members of BNSSCs, whose applications or petitions for immigration benefits may not be approved or have been denied pursuant to DOMA 3, temporary employment authorization and temporary authorized presence pending a definitive ruling by the courts on the constitutionality of DOMA. 9. Aside from the Memoranda from John Morton, Director, ICE, to ICE employees dated Mar. 2, 2011 and June 17, 2011, admit that you have not made available to the public on your web site, in the Code of Federal Regulations, or in any other way readily available to members of BNSSCs or their counsel, the procedures and standards to be applied when you decide whether to grant or deny a member of a BNSSC temporary authorized status and employment authorization. 10. Admit that you are not aware of any BNSSCs or their counsel being notified about procedures available under the Memoranda from John
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Morton, Director, ICE, to ICE employees dated Mar. 2, 2011 and June 17, 2011, when members of BNSSCs or their counsel have been advised by you in writing that an application or petition for an immigration benefit cannot be approved or must be denied because of DOMA 3. 11. Admit that plaintiff Jane DeLeon may be eligible for a waiver of inadmissibility were it not for DOMA 3. 12. Admit that plaintiff Jane DeLeon is prima facie eligible for lawful permanent residence were she granted a waiver of inadmissibility. 13. Admit that plaintiff Martin Aranas is prima facie eligible for lawful permanent residence as a derivative beneficiary of plaintiff Jane DeLeon were plaintiff DeLeons application for adjustment of status granted. 14. Admit that CIS does not know how many applications and petitions for immigration benefits filed by members of BNSSCs it has denied pursuant to DOMA 3. 15. Admit that you have not kept track of the number of foreign national members of BNSSCs denied immigration benefits pursuant to DOMA 3 who have departed the United States after receiving denial letters from you telling them their employment authorization and lawful status is terminated and they are acquiring unlawful presence towards the three and ten-year bars. 16. Admit that you have not kept track of the number of cases in which you have terminated employment authorizations of foreign nationals when
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you denied their applications or petitions for immigration benefits pursuant to DOMA 3. 17. Admit that you do not know in how many cases you have terminated employment authorizations of foreign nationals when you denied their applications or petitions for immigration benefits pursuant to DOMA 3. 18. Admit that you have issued no instructions or directives requiring your officers to inform members of BNSSCs denied temporary authorized presence or work authorization because their application or petition for an immigration benefit was denied pursuant to DOMA 3 how to seek administrative review of the termination of any previously approved parole status or temporary authorized status and employment authorization. 19. Admit that you are not aware of the number of foreign national members of BNSSCs denied immigration benefits pursuant to DOMA 3 who qualify or do not qualify for an immigration benefit independently of their marriages. 20. Admit that foreign nationals working without authorization are more likely to be exploited on the job and to suffer violations of labor and health and safety laws. 21. Admit that the number of members of BNSSCs denied immigration benefits pursuant to DOMA 3 is in the hundreds.
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III
REQUESTS FOR PRODUCTION OF DOCUMENTS 1. Please produce for inspection and copying all documents discussing
or referencing CISs policy, practice, or procedures for adjudicating applications or petitions for immigration benefits filed by members of BNSSCs. 2. Other than the Memoranda from John Morton, Director, ICE, to ICE employees dated Mar. 2, 2011 and June 17, 2011, please produce for inspection and copying all documents discussing or referencing CISs policy, practice, or procedures for exercising prosecutorial discretion towards foreign national members of BNSSCs denied immigration benefits pursuant to DOMA 3. 3. Other than the Memoranda from John Morton, Director, ICE, to ICE employees dated Mar. 2, 2011 and June 17, 2011, please produce for inspection and copying all documents discussing or referencing how your officers should advise members of BNSSCs denied immigration benefits pursuant to DOMA 3 or their counsel about CISs policy, practice, or procedures for exercising prosecutorial discretion towards foreign national members of BNSSCs denied immigration benefits pursuant to DOMA 3. 4. Other than the Memoranda from John Morton, Director, ICE, to ICE employees dated Mar. 2, 2011 and June 17, 2011, please produce for inspection and copying all documents discussing or referencing CISs policy, practice, or procedures for granting or denying employment authorization to
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foreign national members of BNSSCs denied immigration benefits pursuant to DOMA 3. 5. Other than the Memoranda from John Morton, Director, ICE, to ICE employees dated Mar. 2, 2011 and June 17, 2011, please produce for inspection and copying all documents discussing or referencing how your officers should advise members of BNSSCs denied immigration benefits pursuant to DOMA 3 or their counsel about CISs policy, practice, or procedures for granting or denying employment authorization to foreign national members of BNSSCs denied immigration benefits pursuant to DOMA 3. 6. Other than the Memoranda from John Morton, Director, ICE, to ICE employees dated Mar. 2, 2011 and June 17, 2011, please produce for inspection and copying all documents discussing or referencing CISs policy, practice, or procedures for granting or denying temporary authorized status of any sort for national members of BNSSCs denied immigration benefits pursuant to DOMA 3. 7. Other than the Memoranda from John Morton, Director, ICE, to ICE employees dated Mar. 2, 2011 and June 17, 2011, please produce for inspection and copying all documents discussing or referencing how your officers should advise members of BNSSCs denied immigration benefits pursuant to DOMA 3 or their counsel about CISs policy, practice, or procedures for granting or denying temporary authorized status of any sort
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for national members of BNSSCs denied immigration benefits pursuant to DOMA 3.5. Please produce for inspection and copying all statistical reports reflecting adjudications of applications or petitions for immigration benefits filed by members of BNSSCs. 8. Please produce for inspection and copying all reports, including statistical reports, reflecting the exercise of prosecutorial discretion pursuant to the Memoranda from John Morton, Director, ICE, to ICE employees dated Mar. 2, 2011 and June 17, 2011 in cases of foreign national members of BNSSCs denied immigration benefits pursuant to DOMA 3. 9. Please produce for inspection and copying all reports, including statistical reports, reflecting the granting or denial of employment authorization to foreign national members of BNSSCs denied immigration benefits pursuant to DOMA 3. 10. Please produce for inspection and copying all reports, including statistical reports, reflecting the granting or denial of temporary authorized status of any sort in cases of foreign national members of BNSSCs denied immigration benefits pursuant to DOMA 3. 11. Please produce for inspection and copying all press releases, public statements, and other documents advising members of BNSSCs denied immigration benefits pursuant to DOMA 3 of their options to remain lawfully in the United States.
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12. Please produce for inspection and copying the most recent documents you possess describing the categories of aliens granted deferred action status (e.g. U visa applicants, VAWA applicants, etc.) and the numbers granted deferred action status. 13. Other than the Memoranda from John Morton, Director, ICE, to ICE employees dated Mar. 2, 2011 and June 17, 2011, please produce for inspection and copying all documents discussing or referencing CISs policy, practice, or procedures for granting or denying employment authorization to foreign national beneficiaries of visa petitions filed by their U.S. citizen spouses and who have pending applications for adjustment of status. 14. Other than the Memoranda from John Morton, Director, ICE, to ICE employees dated Mar. 2, 2011 and June 17, 2011, please produce for inspection and copying all documents discussing or referencing CISs policy, practice, or procedures for granting or denying deferred action status to foreign national beneficiaries of visa petitions filed by their U.S. citizen spouses and who have pending applications for adjustment of status. 15. Other than the Memoranda from John Morton, Director, ICE, to ICE employees dated Mar. 2, 2011 and June 17, 2011, please produce for inspection and copying all documents discussing or referencing CISs policy, practice, or procedures for granting or denying temporary authorized status (other than deferred action status) for foreign national beneficiaries of visa
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petitions filed by their U.S. citizen spouses and who have pending applications for adjustment of status. IV INTERROGATORIES 1. To the extent that you deny any of the foregoing requests for admissions, please explain the factual basis for your denial. 2. Please state why when informing members of BNSSCs that their applications or benefits under the INA have been denied because of DOMA 3 you do not also advise such persons that the Administration believes DOMA is unconstitutional and that the foreign national member of the BNSSC may be granted temporary authorized status and employment authorization pending a definitive court ruling on the constitutionality of DOMA. 3. If DOMA is declared unconstitutional by the U.S. Supreme Court, explain on what basis you may retroactively grant employment authorization to foreign nationals in BNSSCs who worked for longer than six months without authorization after you terminated their employment authorization or refused to grant them work authorization when you denied a petition or application based upon DOMA 3, and who are therefore now ineligible for adjustment of status. 4. If DOMA is declared unconstitutional by the U.S. Supreme Court, explain on what basis you or a court may retroactively grant authorized
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presence so as to avoid application of the three and ten-year bars for foreign nationals not eligible for adjustment of status. 5. If DOMA is declared unconstitutional by the U.S. Supreme Court, explain on what basis the Department of State may approve visas despite the applicant having had more than six or twelve months of unauthorized presence because they were not granted temporary authorized status by you after their application or petition for immigration benefits was denied under DOMA 3. 6. Identify any non-profit legal services organizations you have communicated with to determine the availability of free or low-cost immigration services to low-income members of BNSSCs seeking immigration benefits under the INA. 7. Identify the non-profit legal services organizations you have communicated with to inform them about the procedures available to BNSSC foreign nationals denied benefits based on DOMA 3 to apply for temporary authorized status and temporary employment, and explain what such groups were informed by you. 8. Identify any lawyers or legal professional associations you have communicated with to inform them about the procedures available to BNSSC foreign nationals denied benefits based on DOMA 3 to apply for temporary authorized status and temporary employment, and explain what such lawyers or professional associations were informed by you.
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9. Explain whether you have estimated or determined the staff hours required to implement your current policy and practice with respect to granting or denying some form of temporary authorized presence to BNSSC foreign nationals denied benefits based on DOMA 3. 10. Explain whether you have estimated or determined the agency costs associated with your current policy and practice with respect to granting or denying some form of temporary authorized presence to BNSSC foreign nationals denied benefits based on DOMA 3. 11. Explain whether you have made any effort, and if so describe those efforts, to determine the number of BNSSC foreign nationals denied benefits based on DOMA 3 who are able to afford to retain private counsel or who are in fact represented by private counsel versus those who are not represented by private counsel. 12. Explain whether you have estimated or determined the staff hours required and agency costs associated with your current policy and practice with respect to granting or denying some form of temporary authorized presence to BNSSC foreign nationals denied benefits based on DOMA 3. 13. Explain in detail (or produce) any instructions or directives issued to USCIS or USICE officers directing them to advise members of BNSSCs whose applications or petitions for immigration benefits may not be approved or have been denied pursuant to DOMA 3 about any procedures such persons may follow to retain or obtain temporary employment
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authorization and temporary authorized presence pending a definitive ruling by the courts on the constitutionality of DOMA. 14. Explain in detail (or produce) any instructions or directives issued to USCIS or USICE officers directing them on how to adjudicate requests for any sort of temporary authorized status and employment authorization made by members of BNSSCs whose applications or petitions for immigration benefits may not be approved or have been denied pursuant to DOMA 3. 15. Please identify each foreign national member of a BNSSC denied immigration benefits pursuant to DOMA 3 upon whom CIS has conferred any form of lawful immigration status and employment authorization. 16. Describe in detail how and why your implementation of a preliminary injunction in the form proposed by plaintiffs in this case would require any greater or less dedication of agency resources than required following your present policy and practice with regards granting temporary authorized presence and employment authorization to persons denied immigration benefits under DOMA 3. 17. Describe in detail how and why your implementation of a preliminary injunction in the form proposed by plaintiffs in this case would require any greater costs to the CIS or ICE than required following your present policy and practice with regards granting temporary authorized
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presence and employment authorization to persons denied immigration benefits under DOMA 3. 18. State how many applications and petitions for immigration benefits filed by members of BNSSCs you have denied pursuant to DOMA 3. 19. Of the number identified in response to Interrogatory No. 19, state how many such persons have been granted or extended on temporary authorized presence and/or employment authorization since the time of the denial you issued under DOMA 3. 20. Explain any information that you have made available to the public on your web site, in the Code of Federal Regulations, or in any other way readily available to members of BNSSCs or their counsel regarding the procedures and standards to be applied when you decide whether to grant or deny a member of a BNSSC temporary authorized status and employment authorization. 21. Describe any training sessions or programs you have made available to your officers regarding the procedures and standards to be applied when they decide whether to grant or deny a member of a BNSSC denied a benefit under DOMA 3 temporary authorized status and employment authorization. Dated: September 25, 2012. CENTER FOR HUMAN RIGHTS AND CONSTITUTIONAL LAW Peter A. Schey Carlos R. Holgun
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PUBLIC LAW CENTER Julie Greenwald Marzouk Monica Ashiku ASIAN LAW ALLIANCE Beatrice Ann M. Pangilinan LAW OFFICES OF MANULKIN & BENNETT Gary H. Manulkin Reyna M. Tanner
Peter A. Schey Attorneys for Plaintiffs
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CERTIFICATE OF SERVICE SACV12-01137 CBM (AJWx) I hereby certify that on this 25th day of September, 2012, I caused the foregoing to be served via email to the following counsel: David Kline (CIV) David.Kline@usdoj.gov Jesi J. Carlson, (CIV) Jesi.J.Carlson@usdoj.gov Timothy Belsan, timothy.m.belsan@usdoj.gov Paul D. Clement pclement@bancroftpllc.com H. Christopher Bartolomucci cbartolomucci@bancroftpllc.com Nicholas J. Nelson nnelson@bancroftpllc.com Michael H. McGinley mmcginley@bancroftpllc.com Kerry W. Kircher, Kerry.Kircher@mail.house.gov William Pittard, William.Pittard@mail.house.gov Christine Davenport, Christine.Davenport@mail.house.gov Todd B. Tatelman, Todd.Tatelman@mail.house.gov Mary Beth Walker, MaryBeth.Walker@mail.house.gov And via overnight delivery on the following counsel: JESI J. CARLSON Senior Litigation Counsel TIMOTHY M. BELSAN (KS 24112) Trial Attorney Civil Division Office of Immigration Litigation U.S. Department of Justice 450 Fifth Street, N.W. Washington, DC 20530 Paul D. Clement H. Christopher Bartolomucci BANCROFT PLLC 1919 M Street, N.W. Suite 470 Washington, D.C. 20036 Kerry W. Kircher, General Counsel William Pittard, Deputy General CounselMary Beth Walker, Assistant Counsel
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OFFICE OF GENERAL COUNSEL, U.S. HOUSE OF REPRESENTATIVES 219 Cannon House Office Building Washington, D.C. 20515
Dated: September 24,, 2012 Peter Schey ///
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Exhibit
CENTER FOR HUMAN RIGHTS AND CONSTITUTIONAL LAW

Foundation
256 S. OCCIDENTAL BOULEVARD LOS ANGELES, CA 90057 Telephone: (213) 388-8693 Facsimile: (213) 386-9484
September 28, 2012 Jesi J. Carlson, Esq. Timothy M. Belsan, Esq. United States Department of Justice, Civil Division Office of Immigration Litigation, District Court Section P.O. Box 868 Ben Franklin Station Washington, DC 20044 Via e-mail, telecopier, and first class mail. Re: Martin Aranas, et al., v. Napolitano, et al., No. CV 06-02816-PHX-RCBl.
Dear Counsel: We are in receipt of defendants correspondence dated September 24, 2012, declining to appear for deposition pursuant to plaintiffs notice of deposition upon oral examination of September 10, 2012. Although we assume defendants position as set out in your letter will pertain as well to plaintiffs interrogatories, requests for production of documents, and requests for admissions served September 25, 2012, in accordance with Local Rule 37-1, we nevertheless request to confer with defendants in a good faith effort to eliminate or narrow the parties' dispute regarding discovery and to finalize a joint stipulation pursuant to Local Rule 37-2, a proposed Stipulation is attached. As we discussed at length on the telephone yesterday, plaintiffs believe that the responses to the discovery sought are relevant and admissible, and would be important for the court to have when deciding the pending motions for class certification and a preliminary injunction. Only defendants possess the requested information. In summary, plaintiffs contend that discovery is immediately appropriate with respect to the factual claims defendants make in opposing plaintiffs' motions for preliminary injunction and class certification, including those regarding whether proposed class members will suffer irreparable injury in the absence of preliminary injunctive relief and whether common questions of law pertain to a sufficient number of similarly situated individuals as to make joinder impracticable. Defendants acknowledge that under Rule 30(a)(2), plaintiffs may seek leave to conduct early discovery. Plaintiffs contend that factual issues defendants oppositions raise constitute good cause for the courts granting such leave. Plaintiffs encourage defendants to cooperate with early discovery so as to eliminate the necessity for the presentation and adjudication of a formal discovery motion.
Case 8:12-cv-01137-CBM-AJW Document 68-2 Filed 10/29/12 Page 41 of 44 Page ID #:1631 Jesi J. Carlson Timothy M. Belsan September 28, 2012 Page 2 of 2 Plaintiffs also disagree with defendants contention that class-wide judicial review of the constitutionality of DOMA 3 is limited to the administrative record compiled in plaintiff DeLeon's individual case. Plaintiffs have a clear right to sue directly under the Constitution and independently of the APA to enjoin defendants from violating her and putative class members constitutional rights. Porter v. Califano, 592 F.2d 770, 781 (5th Cir. 1979); see also, e.g., McNary v. Haitian Refugee Center, Inc., 498 U.S. 479, 493, 111 S. Ct. 888, 112 L. Ed. 2d 1005 (1991) (constitutional challenge to decisions under INA 210 Special Agricultural Worker program not limited to administrative record); Smith v. Schlesinger, 513 F.2d 462, 473 (D.C. Cir. 1975) (where action in the District Court encompasses an attack on constitutionality of the procedures judicial review must of necessity consider more than the formal administrative record.); ITT Fed. Servs. Corp. v. United States, 45 Fed. Cl. 174, 185 (1999) (discovery appropriate even were review generally limited to administrative record in cases where relief is at issue, especially at the preliminary injunction stage.). Discovery in the instant action should accordingly proceed in accordance with the Federal Rules of Civil Procedure. Unless the parties can resolve their dispute, plaintiffs will seek an Order compelling responses to all outstanding discovery requests. Again, we encourage defendants to recede from the contrary position set out in their letter of September 24, 2012. As we discussed on the telephone yesterday, plaintiffs counsel remain available to confer at defendants counsels earliest convenience, and hope you will agree to meet and confer on Monday October 1, 2012 or Tuesday October 2, 2012. Please advise as soon as possible. Thank you,
Peter A. Schey, Esq. Executive Director Attachment cc:
Carlos Holgun, Esq. General Counsel
Kerry W. Kircher, General Counsel (w/ attach) William Pittard, Deputy General Counsel (w/ attach) Office of General Counsel, U.S. House of Representatives
Exhibit
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STUART F. DELERY Acting Assistant Attorney General, Civil Division AUGUST E. FLENTJE Acting Deputy Assistant Attorney General DAVID J. KLINE Director, Office of Immigration Litigation JEFFREY S. ROBINS Assistant Director JESI J. CARLSON (D.C. Bar No. 975478) Senior Litigation Counsel Department of Justice, Civil Division Office of Immigration Litigation District Court Section P.O. Box 868, Ben Franklin Station Washington, DC 20044 Telephone: (202) 305-7037 Email: jesi.j.carlson@usdoj.gov TIMOTHY M. BELSAN Trial Attorney Attorneys for Defendants UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA MARTIN ARANAS, et al., ) ) Plaintiffs, ) ) v. ) ) JANET NAPOLITANO, Secretary, ) Department of Homeland Security, ) et al., ) Defendants. ) ______________________________ ) No. 8:12-cv-1137-CBM (AJWx)
[PROPOSED] ORDER
Hearing Date: November 26, 2012 Time: 11:00 a.m. Judge: Hon. Consuelo B. Marshall
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This Court, having considered the pleadings, exhibits, memoranda of points and authorities, and any oral argument: HEREBY ORDERS that all discovery is stayed in this action until further order of the Court.
SO ORDERED this ______ day of __________________, 2012.
Hon. Consuelo B. Marshall United States District Court Judge

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Case 8:12-cv-01137-CBM-AJW Document 68

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Case 8:12-cv-01137-CBM-AJW Document 68

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1555 Connecticut Ave., NW, Suite 200 Washington, DC 20036

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Dated: September 10, 2012.

Peter A. Schey Attorneys for Plaintiffs

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Dated: September 10, 2012 ///

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Peter, DefendantsopposeengagingindiscoverypriortotheOctober9,2012hearingdate.Webelieve thatthecaseshouldberesolvedbasedupontherecordoftheagencyundertheAPA.Inany event,itisimproperatthisstageofthelitigation. Sincerely, Tim

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15 MARTIN R. ARANAS, et al., 16 17 18 19 20 21 22 23 24 25 26 27 28

REQUESTS FOR PRODUCTION OF DOCUMENTS.

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SO ORDERED this day of ____________, 2012.