Case 8:12-cv-01137-CBM-AJW Document 60

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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) DISCOVERY MATTER EX PARTE APPLICATION TO EXPEDITE HEARING AND RULING ON MOTION TO COMPEL DISCOVERY.

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. __________________________________
Ex Parte Applic to Expedite Motion to Compel Discovery

Plaintiffs,

Argument not requested.

Hon. ANDREW J. WISTRICH, U.S. MAGISTRATE JUDGE

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Ex Parte Applic to Expedite Motion to Compel Discovery

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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Case 8:12-cv-01137-CBM-AJW Document 60

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COME NOW plaintiffs who apply to this Court ex parte for an order waiving expediting consideration of Plaintiffs pending motion to compel discovery. Dkt 59, now set for hearing November 19, 2012. Plaintiffs seek to expedite discovery so that responses may be available to the parties and the Court prior to the November 20, 2012, hearing on plaintiffs motions for class certification and preliminary injunction. This application is based upon the accompanying memorandum in support of motion for ex parte application and declaration of counsel pursuant to Local Rule 719. Defendants oppose this application. Defendant-Intervenors take no position on the pending discovery disputes. Dated: October 17, 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 /s/ Peter A. Schey________________ /s/ Carlos R. Holgun _____________ Attorneys for Plaintiffs

Ex Parte Applic to Expedite Motion to Compel Discovery

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MEMORANDUM IN SUPPORT OF EX PARTE APPLICATION 1. Names of opposing counsel. For defendants: Jessie J. Carlson and Timothy M. Belsan, Department of Justice, Civil Division, Office of Immigration Litigation District Court Section, P.O. Box 868, Ben Franklin Station Washington, DC 20044; (202) 305-7037; jesi.j.carlson@usdoj.gov, Timothy.M.Belsan@usdoj.gov. For defendant-intervenor: Kerry W. Kircher, William Pittard, Christine Davenport, Todd B. Tatelman, Mary Beth Walker, Office of General Counsel, U.S. House of Representatives, 219 Cannon House Office Building, Washington, D.C. 20515, 202-225-9700; Kerry.Kircher@mail.house.gov, William.Pittard@mail.house.gov, Christine.Davenport@mail.house.gov, Todd.Tatelman@mail.house.gov, MaryBeth.Walker@mail.house.gov. 2. Reasons for seeking ex parte order; points and authorities. Plaintiffs seek to expedite discovery so that responses relevant to factual claims made by defendants in their oppositions to plaintiffs motions for class certification and a preliminary injunction may be available to the parties and the Court prior to the November 20, 2012, hearing on plaintiffs motions. This is a proposed class action case for declaratory and injunctive relief filed July 14, 2012, challenging discrimination in the granting of benefits under the Immigration and Nationality Act (INA), 8 U.S.C. 1101, et seq., against members of lawful marriages solely because they are of the same sex. Dkt. No. 1.
Ex Parte Applic to Expedite Motion to Compel Discovery

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Plaintiffs contend that members of marriages lawful under the law of the state of celebration are entitled to recognition as spouses under the INA regardless of their members sex or sexual orientation. Defendant U.S. Citizenship & Naturalization Services (CIS) does not deny that members of same-sex marriages qualify as spouses under the INA, but it nevertheless declines to recognize them as such in accord with 3(a) of the Defense of Marriage Act, Pub. L. 104-199, 3(a), 110 Stat. 2419, codified at 1 U.S.C. 7 (DOMA). By notice filed July 25, 2012, defendants Department of Homeland Security, et al., advised that they agree DOMA 3 is unconstitutional and that they would not defend the statute in this proceeding. (Dkt. 5.)1 On August 23, 2012, Plaintiffs filed motions for class certification and for a preliminary injunction. Dkt. Nos. 12, 13. On September 9, 2012, defendants filed their oppositions to plaintiffs motions for class certification and a preliminary injunction. Dkt. 35, 39. Defendants opposition briefs include factual claims on which plaintiffs have sought relevant discovery. As a result, on September 10, 2012, plaintiffs served defendants via email and overnight delivery with a Notice of Rule 36(b)(6) Depositions. Dkt. 59.3 (Ex. 2). By way of correspondence dated September 24, 2012, defendants declined to

Ex Parte Applic to Expedite Motion to Compel Discovery

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appear for deposition pursuant to plaintiffs notice of deposition upon oral examination of September 10, 2012. Dkt. 59.4 (Ex. 3). On September 24, 2012, plaintiffs propounded to defendants their first set of Requests for Admissions, Production of Documents, and Interrogatories. Dkt. 59.5 (Ex. 4). By way of correspondence dated October 2, 2012, defendants declined to respond to plaintiffs written discovery primarily because this is an APA case and review should be limited to the administrative record. Dkt. 59.8 (Ex. 7). By way of correspondence dated September 28, 2012, plaintiffs sought to meet and confer regarding the parties discovery disputes and explained the importance of resolving the parties disputes as promptly as possible in light of the hearing schedule on the pending motions. Dkt. 59.2 (Ex. 1) (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.). After several meet and confers and exchanges of the required joint stipulation regarding the parties discovery disputes, the motion to compel was filed with exhibits today. Dkt. 59.

1 On September 26, 2012, the Court accordingly granted BLAG leave to intervene as a party-defendant in this action solely to defend the constitutionality of Section 3 of
Ex Parte Applic to Expedite Motion to Compel Discovery

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Examples of defendants claims warranting discovery as propounded include: 1. In their opposition to plaintiffs motion for class certification, defendants argue that the Court should refuse to certify Plaintiffs proposed class because the definition is not limited in geographic scope. Dkt. 59.6 Ex. 5 at 7.2 Plaintiffs seek discovery on the number of people denied immigration benefits under DOMA and any instructions issued to defendants officers which will disclose whether there are geographical differences in the manner in which defendants handle DOMA cases. 2. Defendants argue in opposition to class certification that commonality cannot be established where there is wide factual variation requiring individual adjudications of each class members claims. Id. at 10. The discovery requests seek information only in defendants possession about whether plaintiffs or proposed class members petitions or applications have been denied under DOMA because of unique facts in each case, or whether such applications and petitions have been denied simply because DOMA prohibits any federal benefit based upon a same sex marriage, regardless of any other individual facts involved. 3. Defendants argue that plaintiff DeLeons claims are not typical of the claims of the proposed class. See, e.g., Id. Ex. 5 at 13. Defendants are in the best position to know how many immigrants waiver applications they have denied based

the Defense of Marriage Act (1 U.S.C. 7). (Dkt. 43.) 2 Defendants also argue that the district court must conduct a rigorous analysis to determine that the requirements of Rule 23 have been met. Id. at 9. Plaintiffs agree. Defendants point makes clear the importance of defendants promptly providing
Ex Parte Applic to Expedite Motion to Compel Discovery

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on DOMA. Responses to plaintiffs discovery requests would make clear how unique or common the plaintiff DeLeon case is. 4. Regarding adequacy of representation and typicality, defendants argue that DeLeons case involves the denial under DOMA of her application for a waiver of inadmissibility (based upon her marriage), versus other proposed class members whose applications for visas (also based upon their marriages) have also been denied under DOMA. Id. Ex. 5 at 14-15. The discovery sought would disclose whether there is any material difference in the standards or procedures followed when defendants deny a family-based application for waiver or a visa petition under DOMA. 5. Defendants argue that the facts fail to establish numerosity required for class certification. Id. Ex. 5 at 15-18. Defendants have likely assessed how many applications they have denied under DOMA and this information is relevant to the courts determination of the numerosity requirement for class certification. 6. Defendants concede [t]he denial of Ms. DeLeons I-601 application for a waiver of inadmissibility and, in turn, her loss of work authorization was based on Section 3 of DOMA. As a result of that denial, she cannot legally work in the United States and is now accruing unlawful presence in the United States. Dkt. 59.7 Ex. 6 at 19. Defendants argue that [t]he effect of USCISs denial of Ms. DeLeons I-601 waiver would be ended by an order by this Court ultimately declaring DOMA to be unconstitutional. Id. Plaintiffs discovery seeks information on how defendants

responses to plaintiffs limited discovery requests.

Ex Parte Applic to Expedite Motion to Compel Discovery

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could, if at all, retroactively erase illegal employment and unauthorized presence to prevent application of statutory bars under the INA from being triggered (because of plaintiffs forced unauthorized employment and unauthorized presence) even if the Supreme Court agrees with defendants that DOMA is unconstitutional. 7. Defendants argue that there is no evidence at all that there are putative class members who face irreparable harm here, and there is no evidence that there are putative class members who have lost work authorization based upon DOMA. Id. Ex. 6 at 22. By responding to the discovery requests the parties and the court will know how many putative class members in fact face irreparable harm or have lost work authorization based upon DOMA. Plaintiffs clearly 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.3

3 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, and have done so. Porter v. Califano, 592 F.2d 770, 781 (5th Cir. 1979); see also, e.g., Reno v. Catholic Soc. Servs., 509 U.S. 43 (1993) (district court jurisdiction over non-APA claims of immigrants denied benefits under the INA); McNary v. Haitian Refugee Center, Inc., 498 U.S. 479, 493, 111 S. Ct. 888, 112 L. Ed. 2d 1005 (1991) (jurisdiction over non-APA constitutional and statutory 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
Ex Parte Applic to Expedite Motion to Compel Discovery

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The hearing on plaintiffs motions for class certification and a preliminary injunction is scheduled for November 20, 2012, and is consolidated with hearings on BLAGs and defendants separate motions to dismiss. Defendants have been in possession of plaintiffs discovery requests for many weeks. The information sought should for the most part be readily available to defendants. The motion to compel should be resolved without hearing inasmuch as the issue is straightforward, the parties have set forth their positions in the joint stipulation re discovery disputes, and whether this is strictly an APA case in which no discovery is allowed, or not, does not require additional briefing or oral argument. Whether the motion to compel discovery is resolved with or without a hearing, plaintiffs urge that disposition of the motion be expedited such that if the motion is granted, defendants will have a reasonable amount of time to produce the requested discovery and appear for a 30(b)(6) deposition prior to November 20, 2012, taking into account that the requests were served many weeks ago. Dated: October 17, 2012. CENTER FOR HUMAN RIGHTS AND CONSTITUTIONAL LAW Peter A. Schey Carlos R. Holgun /s/ Peter A. Schey________________ /s/ Carlos R. Holgun _____________ Attorneys for Plaintiffs

generally limited to administrative record in cases where relief is at issue, especially at the preliminary injunction stage.)
Ex Parte Applic to Expedite Motion to Compel Discovery

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DECLARATION RE NOTICE OF EX PARTE APPLICATION I, Peter A. Schey, declare and say as follows: 1. I am an attorney admitted to the bar of the United States District Court for the Central District of California. I am one of the attorneys for plaintiffs. My business address is 256 S. Occidental Blvd., Los Angeles, California, 90057. 2. I am familiar with the foregoing ex parte application and the sequence of events described therein at pp. 4-7 are true and correct to the best of my knowledge. 3. The parties have met and conferred telephonically and via email and defendants have made clear that they oppose this ex parte application. I declare under penalty of perjury that the foregoing is true and correct. Executed this 17th day of October 2012, at Los Angeles, California.

s/_____________________________ Peter A. Schey

Ex Parte Applic to Expedite Motion to Compel Discovery

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Ex Parte Applic to Expedite Motion to Compel Discovery

CERTIFICATE OF SERVICE SACV12-01137 CBM (AJWx) I hereby certify that on this 17th day of October, 2012, I electronically filed the foregoing EX PARTE APPLICATION TO EXPEDITE MOTION TO COMPEL DISCOVERY with the Clerk of Court by using the CM/ECF system, which provided an electronic notice and electronic link of the same to all attorneys of record through the Courts CM/ECF system. Dated: October 17, 2012 /// /s/ _Peter Schey_______

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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 Attorneys for Plaintiffs Additional counsel listed next page

UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA, SOUTHERN DIVISION

MARTIN R. ARANAS, IRMA RODRIGUEZ, AND 17 JANE DELEON, Plaintiffs, -vsJANET NAPOLITANO, Secretary of the Department of Homeland Security; DEPARTMENT OF HOMELAND SECURITY; ALEJANDRO MAYORKAS, Director, United States Citizenship and Immigration Services; and UNITED STATES CITIZENSHIP & IMMIGRATION SERVICES,

Defendants. 28 __________________________________
Proposed Order re Expediting Motion to Compel

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SACV12-01137 CBM (AJWx) DISCOVERY MATTER [PROPOSED] ORDER EXPEDITING PLAINTIFFS MOTION TO COMPEL DISCOVERY

Hon. ANDREW J. WISTRICH, U.S. MAGISTRATE JUDGE

Argument not requested

Center for Human Rights & Constitutional Law 256 S. Occidental Blvd. Los Angeles, CA 90057 213/388-8693

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Proposed Order re Expediting Motion to Compel

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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IT IS ORDERED that plaintiffs ex parte application to expedite consideration of Plaintiffs Motion to Compel Discovery is granted. [__] Plaintiffs Motion to Compel Discovery will be decided based on the written submissions of the parties without hearing. [__] Hearing on Plaintiffs Motion to Compel Discovery will be held on _____________, 2012, at ___ AM/PM. [__] Defendants may submit any further written argument or exhibits they wish the Court to consider in addition to their portion of the Joint Stipulation already on file (Dkt. 59.1) on or before ____________________, 2012, and plaintiffs may file a reply by the following business. Dated:________________, 2012. ________________________ United States Magistrate Judge

Presented by: Peter Schey One of the attorneys for plaintiffs /s/Peter Schey___________________ ///

Proposed Order re Expediting Motion to Compel

Center for Human Rights & Constitutional Law 256 S. Occidental Blvd. Los Angeles, CA 90057 213/388-8693

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CERTIFICATE OF SERVICE SACV12-01137 CBM (AJWx) I hereby certify that on this 17th day of October, 2012, I electronically filed the foregoing [proposed] EX PARTE ORDER CONTINUING MOTION TO DISMISS with the Clerk of Court by using the CM/ECF system, which provided an electronic notice and electronic link of the same to all attorneys of record through the Courts CM/ECF system. Dated: October 17, 2012 /// /s/ _Peter Schey_______

Proposed Order re Expediting Motion to Compel

Center for Human Rights & Constitutional Law 256 S. Occidental Blvd. Los Angeles, CA 90057 213/388-8693