Case 2:17-cv-00218-RSM Document 134 Filed 08/29/18 Page 1 of 30 1 The Honorable Ricardo S. Martinez Chief United States District Judge 2 3 4 5 6 7 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 8 9 10 11 12 CASE NO. 2:17-CV-00218-RSM-JPD Daniel Ramirez Medina, Plaintiff, 13 14 15 16 17 18 v. U.S. DEPARTMENT OF HOMELAND SECURITY; U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT; and U.S. CITIZENSHIP AND IMMIGRATION SERVICES, LCR 37 SUBMISSION RE PLAINTIFF’S MOTION TO COMPLETE THE ADMINISTRATIVE RECORD, AND DEFENDANTS’ MOTION FOR PROTECTIVE ORDER Noted for Consideration: August 29, 2018 Defendants. 19 20 21 22 23 24 25 26 27 28 Gibson, Dunn & Crutcher LLP LCR 37 SUBMISSION Case No. 2:17-cv-00218-RSM-JPD Counsel Listed on Pages I–III Case 2:17-cv-00218-RSM Document 134 Filed 08/29/18 Page 2 of 30 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 Attorneys for Plaintiff: PUBLIC COUNSEL MARK D. ROSENBAUM (CA SBN 59940), pro hac vice mrosenbaum@publiccounsel.org JUDY LONDON (CA SBN 149431), pro hac vice jlondon@publiccounsel.org KATHRYN A. EIDMANN (CA SBN 268053), pro hac vice keidmann@publiccounsel.org ANNE M. HUDSON-PRICE (CA SBN 295930), pro hac vice aprice@publiccounsel.org ELIZABETH HADAWAY (CA SBN 308800), pro hac vice ehadaway@publiccounsel.org 610 South Ardmore Avenue Los Angeles, CA 90005 Telephone: (213) 385-2977 Facsimile: (213) 385-9089 GIBSON, DUNN & CRUTCHER LLP THEODORE J. BOUTROUS, JR. (CA SBN 132099), pro hac vice tboutrous@gibsondunn.com KATHERINE M. MARQUART (CA SBN 248043), pro hac vice kmarquart@gibsondunn.com NATHANIEL L. BACH (CA SBN 246518), pro hac vice nbach@gibsondunn.com 333 South Grand Avenue Los Angeles, CA 90071-3197 Telephone: (213) 229-7000 Facsimile: (213) 229-7520 ETHAN D. DETTMER (CA SBN 196046), pro hac vice edettmer@gibsondunn.com 555 Mission Street San Francisco, CA 94105 Telephone: (415) 393-8200 Facsimile: (415) 393-8306 20 21 22 23 24 ERWIN CHEMERINSKY (DC SBN 289330; IL SBN 3122596), pro hac vice echemerinsky@law.berkeley.edu University of California, Berkeley, School of Law *Affiliation for identification purposes only 215 Boalt Hall Berkeley, CA 94720-7200 Telephone: (510) 642-6483 25 26 27 28 Gibson, Dunn & Crutcher LLP LCR 37 SUBMISSION Case No. 2:17-cv-00218-RSM-JPD I Counsel Listed on Pages I–III Case 2:17-cv-00218-RSM Document 134 Filed 08/29/18 Page 3 of 30 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 LEAH M. LITMAN (DC SBN 1016310), pro hac vice llitman@law.uci.edu University of California, Irvine School of Law *Affiliation for identification purposes only 401 East Peltason Drive, Educ 1095 Irvine, CA 92697 Telephone: (949) 824-7722 LAURENCE H. TRIBE (MA SBN 126736; CA SBN 039441), pro hac vice larry@tribelaw.com Harvard Law School *Affiliation for identification purposes only 1575 Massachusetts Avenue Cambridge, MA 02138 Telephone: (617) 495-1767 ELIZABETH HAWKINS (SBN 43187) ehawkins@hawkinsimmigration.com Hawkins Law Group 17544 Midvale Avenue, Suite 301 Shoreline, WA 98133 Telephone: (206) 728-4220 Facsimile: (206) 973-5326 LUIS CORTES ROMERO (CA SBN 310852), pro hac vice lcortes@ia-lc.com Immigrant Advocacy & Litigation Center, PLLC 19309 68th Avenue South, Suite R-102 Kent, WA 98032 Telephone: (253) 872-4730 Facsimile: (253) 237-1591 NORTHWEST IMMIGRANT RIGHTS PROJECT MATT ADAMS (SBN 28287) matt@nwirp.org 615 Second Ave., Suite 400 Seattle, WA 98104 Telephone: (206) 957-8611 ATTORNEYS FOR PLAINTIFF 24 25 26 27 28 Gibson, Dunn & Crutcher LLP LCR 37 SUBMISSION Case No. 2:17-cv-00218-RSM-JPD II Counsel Listed on Pages I–III Case 2:17-cv-00218-RSM Document 134 Filed 08/29/18 Page 4 of 30 1 2 3 4 5 6 7 8 9 10 11 12 13 CHAD A. READLER Acting Assistant Attorney General WILLIAM C. PEACHEY Director JEFFREY S. ROBINS Assistant Director U.S. Department of Justice Civil Division Office of Immigration Litigation District Court Section P.O. Box 868, Ben Franklin Station Washington, D.C. 20044 Phone: (202) 616-1246 Fax: (202) 305-7000 Email: jeffrey.robins@usdoj.gov JAMES WALKER Trial Attorney U.S. Department of Justice Civil Division ATTORNEYS FOR DEFENDANTS 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Gibson, Dunn & Crutcher LLP LCR 37 SUBMISSION Case No. 2:17-cv-00218-RSM-JPD III Counsel Listed on Pages I–III Case 2:17-cv-00218-RSM Document 134 Filed 08/29/18 Page 5 of 30 1 The following Local Rule 37(a)(2) joint submission contains the following two motions: (1) 2 Plaintiff’s Motion to Complete the Administrative Record as to his Administrative Procedure Act 3 (“APA”) Claims (“Plaintiff’s Motion”) and (2) Defendants’ Motion for a Protective Order regarding 4 discovery as to Plaintiff’s Constitutional Claim (“Defendants’ Motion”). 5 I. PLAINTIFF’S INTRODUCTORY STATEMENT 6 By Plaintiff’s Motion, Mr. Ramirez seeks to supplement the administrative record with what 7 is currently missing from it and what Plaintiff has sought from the government even before this case 8 was filed: evidence regarding the government’s initial determination and subsequent continuous 9 reliance on its false accusation that Mr. Ramirez is a gang member. Discovery regarding these topics 10 is appropriate because the current administrative record (“AR”) does not reflect the agency’s 11 decisionmaking process or show that it considered all relevant factors, nor does it appear to contain 12 all documents on which the government relied. Moreover, and most importantly, the government’s 13 actions constitute bad faith and therefore permit discovery and admission of extra-record evidence. 14 As the Court is by now well aware, the government unlawfully arrested and detained Mr. 15 Ramirez in February 2017, and also terminated his DACA status after issuing him a Notice to Appear 16 and accusing him of being a gang member and having a gang tattoo. Dkt. 133 at 3–5 (Order Granting 17 Mot. for Prelim. Inj.). That gang accusation flies in the face of the government’s own record. 18 Indeed, Mr. Ramirez was released from detention on bond on March 29, 2017, after a hearing at 19 which the government’s counsel conceded that the government “do[es]n’t believe from this record 20 there is enough for us to argue that he’s a danger to the community.” Dkt. 122-1 at 31 (Bond Hrg. Tr. 21 at 26). And, on January 17, 2018, an Immigration Judge, after reviewing all evidence submitted by 22 Mr. Ramirez and the government found that Mr. Ramirez was not in a gang or associated with one. 23 Dkt. 124-1. 24 On February 6, 2018, Mr. Ramirez filed his Motion for a Preliminary Injunction (“PI 25 Motion”) to restore his DACA status and work authorization pending a decision on the merits. Dkt. 26 122. While Mr. Ramirez’s PI Motion was pending, on or about April 3, 2018, in response to an order 27 from another district court, the government delivered to Mr. Ramirez confirmation that his DACA 28 and work authorization were being restored, but also separately and simultaneously delivered a Gibson, Dunn & Crutcher LLP LCR 37 SUBMISSION Case No. 2:17-cv-00218-RSM-JPD 1 Counsel Listed on Pages I–III Case 2:17-cv-00218-RSM Document 134 Filed 08/29/18 Page 6 of 30 1 Notice of Intent to Terminate (“NOIT”) Mr. Ramirez’s just-restored DACA status. The 2 government’s stated basis for issuing the NOIT was its continued wrongful insistence that Mr. 3 Ramirez posed a public safety concern because it maintains he is “gang-affiliated.” Following a 4 hearing and supplemental briefing, on May 15, 2018, the Court granted Plaintiff’s PI Motion and 5 ordered that the government “shall not terminate Plaintiff’s DACA status and work authorization 6 pending a final decision by this Court on the merits of his claims,” and also enjoined Defendant 7 USCIS “from asserting, adopting, or relying in any proceedings on any statement or record made as 8 of this date purporting to allege or establish that Mr. Ramirez is a gang member, gang affiliated, or a 9 threat to public safety.” Dkt. 133 at 23. 10 While Plaintiff’s PI Motion was pending, on February 14, 2018, Plaintiff served discovery on 11 the government, including his First Set of Requests for Production, First Set of Requests for 12 Admission, and Deposition Notices for six government witnesses: Matthew E. Hicks, Taula Peter, 13 Lance Hernandez, Ernesto San Miguel, Kathlyn Lawrence, and Michael Melendez. See Declaration 14 of Nathaniel Bach, Exs. A-C. Counsel for Plaintiff and Defendants then conferred about this 15 discovery, with Defendants taking the position that no discovery was warranted on Plaintiff’s APA 16 claims beyond the administrative record already produced and because no Rule 26(f) conference had 17 yet occurred. Bach Decl., Ex. D. So that the parties could brief this discovery dispute, Plaintiff 18 agreed to take the noticed depositions off calendar and to extend Defendants’ deadlines to respond to 19 the written discovery. Id. Then, on February 26, 2018, the Central District of California issued its 20 order certifying a class of which Mr. Ramirez is a member (which would lead to the reinstatement of 21 his DACA and work authorization on or about April 3, 2018). Inland Empire–Immigrant Youth 22 Collective v. Nielsen, 2018 WL 1061408, at *22 (C.D. Cal. Feb. 26, 2018). Due to the Inland Empire 23 order, the parties agreed to extend the government’s response deadline pending further discussion. 24 Bach Decl., Ex. E. The parties now jointly bring this Rule 37(a)(2) submission. 25 To date, the government has produced only scant records regarding Mr. Ramirez’s arrest and 26 detention that it claims make up the administrative record, and on which Plaintiff’s APA claim is to 27 be adjudicated. And it is well-settled that discovery outside the administrative record is appropriate 28 in circumstances where, like here, the administrative record does not fully explain the government’s Gibson, Dunn & Crutcher LLP LCR 37 SUBMISSION Case No. 2:17-cv-00218-RSM-JPD 2 Counsel Listed on Pages I–III Case 2:17-cv-00218-RSM Document 134 Filed 08/29/18 Page 7 of 30 1 action, the record appears to be incomplete, and the agency acted in bad faith. 2 II. 3 DEFENDANTS’ INTRODUCTORY STATEMENT The Court should deny Plaintiff’s motion to supplement the administrative record and grant 4 Defendants’ motion to issue a protective order. Because all of Plaintiff’s remaining claims arise under 5 the APA – including his constitutional claims, no discovery is appropriate. And, the Court should 6 deny Plaintiff’s motion for supplementation of the record where Plaintiff cannot meet the high burden 7 for such supplementation. 8 9 In addressing these discovery questions, Defendants note that it remains unclear what final agency action Plaintiffs are challenging; whether such action is moot; and ultimately, how the broad 10 discovery that Plaintiff seeks is necessary to supplement the administrative record, and serves to 11 supplement the record rather than represent an extra-record fishing expedition. 12 Defendants maintain that the only final agency action at issue was the automatic termination 13 of Mr. Ramirez’s DACA resulting from ICE’s issuance of an NTA. To the extent the Court has found 14 that the determination regarding Mr. Ramirez’s gang affiliation that led USCIS to issue a Notice of 15 Intent to Terminate (NOIT) is itself a final agency action, Defendants stand ready to supplement the 16 administrative record with those non-privileged documents considered in the course of preparing the 17 NOIT, as appropriate, and without the need for engaging in discovery. 18 III. 19 DISPUTED DISCOVERY REQUESTS At issue in this joint submission are two separate motions regarding the discovery that 20 Plaintiff served on the government. See Bach Decl. (Exs. A-C). The first motion asks whether 21 Plaintiff’s served discovery is appropriate in order to supplement the administrative record as to 22 Plaintiff’s APA claims. The second motion asks whether the government is entitled to a protective 23 order prohibiting Plaintiff from taking the served discovery on his constitutional claim. Each is 24 presented separately below. 25 A. Plaintiff’s Motion to Complete the Administrative Record on APA Claims 26 1. 27 Plaintiff is entitled to discovery regarding his APA claims. It is well-settled that discovery 28 Moving Party’s Argument (Mr. Ramirez) outside the administrative record is appropriate in circumstances where, like here, the administrative Gibson, Dunn & Crutcher LLP LCR 37 SUBMISSION Case No. 2:17-cv-00218-RSM-JPD 3 Counsel Listed on Pages I–III Case 2:17-cv-00218-RSM Document 134 Filed 08/29/18 Page 8 of 30 1 record does not fully explain the government’s action, the record appears to be incomplete, and the 2 agency acted in bad faith. And while nothing further is needed for Plaintiff to prevail on his APA 3 claims—because the current AR makes clear that the government acted arbitrarily and capriciously, 4 as the Court preliminarily found in granting Plaintiff’s PI Motion—extra-record evidence and 5 discovery is warranted to contextualize the government’s behavior toward Mr. Ramirez and confirm 6 just how baseless and malicious that behavior has been. 7 Section 706 of the APA defines the scope of review of agency action, providing that a court 8 “shall review the whole record or those parts of it cited by a party.” 5 U.S.C. § 706. While a 9 reviewing court is therefore generally limited to considering only the materials in the administrative 10 record (Fla. Power & Light Co., v. Lorion, 470 U.S. 729, 743–44 (1985)), a number of exceptions 11 exist that permit a plaintiff to seek discovery in order to augment or complete the administrative 12 record. Courts “are permitted to admit extra-record evidence: (1) if admission is necessary to 13 determine ‘whether the agency has considered all relevant factors and has explained its decision,’ (2) 14 if ‘the agency has relied on documents not in the record,’ . . . or (4) ‘when plaintiffs make a showing 15 of agency bad faith.’” Lands Council v. Powell, 395 F.3d 1019, 1030 (9th Cir. 2005). These 16 exceptions “operate to identify and plug holes in the administrative record.” Id. at 1030. Here, 17 Plaintiff is entitled to discovery based on all three of the listed exceptions. 18 First, given the government’s continued insistence that Mr. Ramirez is a gang member despite 19 the great weight of evidence to the contrary—and in the face of the government’s own admissions 20 and an Immigration Judge’s contrary finding—discovery is necessary to determine “whether the 21 agency has considered all relevant factors and has explained its decision” to strip Mr. Ramirez of his 22 DACA status in February 2017 and to again attempt the same again in April 2018. Id. For example, 23 the government should be held to explain whether it has (and why it has apparently not) considered 24 all evidence available to it given the thin record upon which it attempts to justify its accusation. If the 25 government did in fact consider the weight of evidence disproving the its allegation, then how did it 26 weigh such evidence against the few, unsupported conclusions that ICE agents made at the time of 27 Plaintiff’s initial detention in February 2017? Even if such a weighing process did occur, the 28 government has not explained how it believes it is justified in continuing to insist (for example, in the Gibson, Dunn & Crutcher LLP LCR 37 SUBMISSION Case No. 2:17-cv-00218-RSM-JPD 4 Counsel Listed on Pages I–III Case 2:17-cv-00218-RSM Document 134 Filed 08/29/18 Page 9 of 30 1 2 April 3, 2018 NOIT) that Mr. Ramirez is a gang member. Moreover, portions of the government’s AR—e.g., ICE checklist states that Mr. Ramirez 3 poses a threat to national security or public safety (see Dkt. 93 (ICE CAR 000004))—are inconsistent 4 and incompatible with positions the government has taken elsewhere (e.g., the grant and renewal of 5 DACA status and concession at March 28, 2018 bond hearing that Mr. Ramirez does not pose a 6 public safety threat). Plaintiff is entitled to take discovery regarding these types of inconsistencies 7 and unsupported conclusions. 8 9 Second, discovery is warranted to determine whether Defendants relied on documents not already in the record. Lands Council, 395 F.3d at 1030. For example, the following types of 10 documents are currently missing from the administrative record: 1) Mr. Ramirez’s initial DACA 11 approval; 2) the results of background searches performed in connection with Mr. Ramirez’s original 12 DACA application; 3) the 2015 background search performed by the government for all DACA 13 recipients; and 4) Mr. Ramirez’s DACA renewal approval. Moreover, there is no contemporaneous 14 email correspondence contained in the administrative record beyond a single email sent by an ICE 15 agent on February 13, 2017, and there is no explanation for the two versions of the I-213 forms 16 contained in the AR. It stands to reason that a great many other documents may exist which should 17 also form part of the AR, and Plaintiff should be allowed written discovery and depositions to 18 determine what else might properly be part of the AR. 19 Third, the government’s continued insistence on accusing Mr. Ramirez of gang membership 20 in the face of contrary evidence, government admissions, and judicial findings, is the very definition 21 of bad faith. The “bad faith” exception derives from the Supreme Court’s conclusion that depositions 22 or other discovery probing the mental processes of the decisionmaker may be appropriate where there 23 is “a strong showing of bad faith or improper behavior” in the decisionmaking process. Citizens to 24 Preserve Overton Park v. Volpe, 401 U.S. 402, 420 (1971). Plaintiff has made such a showing of bad 25 faith and improper behavior here, and the Court has recognized as much in its May 15, 2018 Order 26 Granting Plaintiff’s Motion for Preliminary Injunction. Dkt. 133 (“Most troubling to the Court, is the 27 continued assertion that Mr. Ramirez is gang-affiliated, despite providing no evidence specific to Mr. 28 Ramirez to the Immigration Court in connection with his administrative proceedings, and offering no Gibson, Dunn & Crutcher LLP LCR 37 SUBMISSION Case No. 2:17-cv-00218-RSM-JPD 5 Counsel Listed on Pages I–III Case 2:17-cv-00218-RSM Document 134 Filed 08/29/18 Page 10 of 30 1 2 evidence to this Court to support its assertions four months later.”). 1 Mr. Ramirez has established why the Court should permit discovery on his APA claims, 3 thereby granting Mr. Ramirez the ability to complete the record and probe the government’s bad faith 4 conduct. 2 Indeed, Plaintiff’s served discovery goes directly to the issue of the government’s gang 5 accusations against Mr. Ramirez, and is particularly appropriate in this case. Bach Decl., Ex. A, at 4 6 (seeking, for example, “[a]ll documents that you contend establish that Plaintiff’s tattoo is a gang 7 tattoo.”). 8 2. 9 When reviewing an agency decision, “the focal point for judicial review should be the Responding Party’s Argument (Government) 10 administrative record already in existence, not some new record made initially in the reviewing 11 court.” Ctr. for Biological Diversity v. U.S. Fish & Wildlife Serv., 450 F.3d 930, 943 (9th Cir. 2006) 12 (citing Camp v. Pitts, 411 U.S. 138, 142 (1973). A party “may not use ‘post-decision information as a 13 new rationalization either for sustaining or attacking the Agency's decision.’” Id. (quoting Ass'n of 14 Pac. Fisheries v. EPA, 615 F.2d 794, 811–12 (9th Cir. 1980)). This Court and the Ninth Circuit have 15 recognized four situations where discovery outside of the administrative record may be justified: 16 17 (1) if admission is necessary to determine whether the agency has considered all relevant factors and has explained its decision; 20 (2) if the agency has relied on documents not in the record; (3) when supplementing the record is necessary to explain technical terms or complex subject matter; or (4) where there has been a strong showing of bad faith or improper behavior on the part of agency decision makers. 21 Univ. of Washington v. Sebelius, No. C11-625RSM, 2011 WL 6447806, at *2 (W.D. Wash. Dec. 22, 22 2011) (Martinez, J.) (citing Lands Council v. Powell, 395 F.3d 1019, 1030 (9th Cir. 2005); Animal 23 Defense Counsel v. Hodel, 840 F.2d 1432, 1436 (9th Cir. 1988)); see also Camp, 411 U.S. at 143. 24 However, before supplementing the administrative record through discovery may even be considered 25 under these exceptions, a plaintiff has the “threshold burden of establishing that the administrative 18 19 26 27 28 1 Courts have previously allowed a DACA recipient to take discovery on APA claims in circumstances less clearly egregious than this. See Otero v. Kelly, 2017 WL 3081704, at *5 (D. Ariz. July 18, 2017). 2 Even if obtained documents and facts are ultimately not admitted as part of the administrative record, they may nonetheless be appropriately sought via discovery and admitted as “background facts.” ASARCO, Inc. v. EPA, 616 F.2d 1153, 1160 (9th Cir. 1980). Gibson, Dunn & Crutcher LLP LCR 37 SUBMISSION Case No. 2:17-cv-00218-RSM-JPD 6 Counsel Listed on Pages I–III Case 2:17-cv-00218-RSM Document 134 Filed 08/29/18 Page 11 of 30 1 record is so inadequate that meaningful judicial review of final agency action is effectively frustrated. 2 Id. (emphasis added) (citing Animal Defense Council, 840 F.2d at 1436-37). 3 Plaintiff’s argument that “it stands to reason that a great many other documents may exist,” 4 supra at 5, is insufficient to show that the record is inadequate or that any of the grounds for extra- 5 record discovery are satisfied. 3 Rather than attempt to identify ways in which the administrative 6 record is inadequate, Plaintiff argues about the relative strength of the evidence within the record 7 rather than identify evidence that the adjudicator should have considered. Id. at 4 (“[P]ortions of the 8 government’s AR . . . are inconsistent and incompatible with positions the government has taken 9 elsewhere . . . . Plaintiff is entitled to take discovery regarding these types of inconsistencies and 10 unsupported conclusions.”). Where Plaintiff makes no argument at all that the administrative record 11 is “so inadequate” that meaningful judicial review is frustrated, he fails to meet his burden altogether. 12 Instead, Plaintiff appears to improperly seek to have USCIS’s actions reviewed based on new 13 evidence. See Lands Council, 395 F.3d at 1030 (“[w]ere the federal courts routinely or liberally to 14 admit new evidence when reviewing agency decisions, it would be obvious that federal courts would 15 be proceeding, in effect, de novo rather than with the proper deference to agency process, expertise, 16 and decision-making.”) Thus, there is no reason for the Court to look at the particular circumstances 17 under which discovery may be permitted. Nonetheless, Plaintiff fails to establish any of the four 18 factors that would permit the Court to grant discovery upon a showing of sufficient inadequacy. 4 19 First, Plaintiff’s argument that the government failed to consider all relevant factors is based 20 on extra-record evidence that was not before the agency and is not appropriately offered for inclusion 21 in the record. Supra at 4-5 (“[I]n the face of the government’s own admissions and an Immigration 22 Judge’s contrary finding—discovery is necessary to determine ‘whether the agency has considered all 23 relevant factors and has explained its decision’”). Such comparisons to administrative proceedings 24 3 25 26 27 28 Plaintiff’s reliance on Otero, 2017 WL 3081704, at *4-5, is misplaced. There, the plaintiff identified “specific facts justifying their request,” to supplement the record because “Defendants may have relied on documents or other information not in the record.” Id. at 4. Here, Plaintiff fails to make that showing. 4 Although some courts permit “expansion of the record when necessary to explain agency action,” a claim that Plaintiff does not pursue here, the proper remedy in such circumstance is “not to take additional evidence, but instead to remand the matter for reconsideration by the agency.” San Luis & Delta Mendota Water Auth. v. U.S. Dep’t of the Interior, 984 F. Supp. 2d 1048, 1055 (E.D. Cal. 2013), citing Proietti v. Levi, 530 F.2d 836 (9th Cir. 1976). Here, it would be counterintuitive to permit Plaintiff discovery in an effort to supplement the record when he obtained an injunction that precluded USCIS from assessing his arguments and evidence on a more fulsome administrative record following USCIS’s NOIT. Gibson, Dunn & Crutcher LLP LCR 37 SUBMISSION Case No. 2:17-cv-00218-RSM-JPD 7 Counsel Listed on Pages I–III Case 2:17-cv-00218-RSM Document 134 Filed 08/29/18 Page 12 of 30 1 before other agencies are inappropriate in a record review case such as this and they bear no 2 relevance to the question of whether the record here is adequate to permit judicial review. This Court 3 has rejected such arguments before and should do so here as well. See Univ. of Washington, 2011 WL 4 6447806 at *2 (rejecting plaintiff’s contention “that documents from different [administrative] cases, 5 in which the Intermediary reached a different conclusion on jurisdiction, should also be considered by 6 the Court.”). 7 In Univ. of Washington, the plaintiff university argued that extra-record evidence related to its 8 claim should be added to the administrative record, but that evidence was not before the adjudicator 9 at the time of the agency decision,. Id. at *1. The Court noted specifically that the university did not 10 assert that the record was inadequate without the additional evidence, but “asserts that the letters go 11 to the question of whether the agency considered all relevant factors in reaching its decision.” Id. at 12 *3. The Court held that the letters were not necessary to determine whether the agency had 13 considered all relevant factors, where “the documents at issue were not actually put before the agency 14 in this case.” Univ. of Washington, 2011 WL 6447806 at *2. 15 Here, Plaintiff attempts to introduce evidence of an immigration court bond hearing, 16 conducted under the authority of the Executive Office of Immigration Review, a component of the 17 Department of Justice and independent of the Department of Homeland Security. Supra at 1. The 18 significance Plaintiff attempts to draw from that hearing is irrelevant to this matter, even more so 19 because the standards for a bond determination by an immigration judge are not the same as those 20 applied by USCIS to determine whether to terminate Plaintiff’s DACA. See Defendants’ 21 Supplemental Brief in Opposition to Plaintiff’s Motion for Preliminary Injunction [Dkt No. 131] at 8 22 n.6. 5 Thus, this Court should find that where USCIS must make its own determination in each 23 5 24 25 26 27 28 Dangerousness to the community for purposes of an immigration bond hearing is different from the Department of Homeland Security’s assessment of how to exercise discretion with regard to DACA requests. Compare Matter of Drysdale, 20 I. & N. Dec. 815, 817 (BIA 1994) (immigration detainees have the burden of demonstrating that they are not a danger to the community) and Matter of Guerra, 24 I. & N. Dec. 37, 40-41 (BIA 2006) (relevant factors in determining whether an alien should be released from immigration custody include arrests, convictions, and how extensive, recent, and serious the alien's criminal activity is); with Dkt. No. 90-4 (“If after consulting with ICE, USCIS determines that exercising prosecutorial discretion after removal has been deferred under DACA is not consistent with the Department of Homeland Security’s enforcement priorities, and ICE does not plan to issue an NTA, the officer should refer the case to HQSCOPS, though the normal chain of command, to determine whether or not a NOIT is appropriate. . . .”); see, e.g., Dkt. Nos. 90-6 and 52-5, Q:55 (“Indicators that you pose such a threat [to national security or public safety] include, but are not limited to, gang membership, participation in criminal activities, or participation in activities that threaten the United States.”). Gibson, Dunn & Crutcher LLP LCR 37 SUBMISSION Case No. 2:17-cv-00218-RSM-JPD 8 Counsel Listed on Pages I–III Case 2:17-cv-00218-RSM Document 134 Filed 08/29/18 Page 13 of 30 1 individual case, records from other agency proceedings are not properly part of USCIS’s record— 2 unless specifically considered by the agency. See, e.g., Univ. of Washington, 2011 WL 6447806 at 3 *2. Here, Defendants acknowledge that the NOIT references DHS email records that summarize 4 Plaintiff’s merits hearing in immigration court. Defendants will supplement the administrative record 5 with non-privileged documents that reflect such email records, but note that supplementation of the 6 record through discovery is not appropriate. 7 Second, Plaintiff’s allegation that the agency relied on documents not in the record is without 8 merit. Plaintiff notes that the record does not contain Plaintiff’s prior DACA requests and related 9 materials such as the prior background checks. Supra at 4. However, Plaintiff does not show that the 10 agency relied on any of these documents or that it was in any way required to consider them. In fact, 11 Defendants issued Plaintiff’s NOIT based on information obtained at the time of Plaintiff’s arrest and 12 thereafter, including Plaintiff’s admission that he was previously affiliated with gangs, and all of the 13 documents relied on from the relevant events are in the administrative record. Plaintiff also alleges 14 that there is only one email in the administrative record, but fails to explain why it “stands to reason” 15 that there must be more than one. Id. Defendants again acknowledge that the NOIT identifies 16 consultation between USCIS and ICE, and reiterate that Defendants will supplement the 17 administrative record with non-privileged documents that reflect such consultation. However, further 18 supplementation of the record is not appropriate based on Plaintiff’s vague supposition. 6 19 Lastly, Plaintiff alleges bad faith derived from “the government’s continued insistence on 20 accusing Mr. Ramirez of gang membership in the face of contrary evidence, government admissions, 21 and judicial findings.” Id. at 5. As discussed, the existence of extra-record evidence that may indicate 22 another agency’s different findings are irrelevant here, and would not, in any case, demonstrate bad 23 faith on the part of Defendants. See United States v. Iron Mountain Mines, Inc., 987 F. Supp. 1250, 24 1260–61 (E.D. Cal. 1997) (Bad faith requires a strong showing that the agency engaged in willful 25 misconduct); id. (The party alleging agency bad faith has “a significant evidentiary burden”) (citing 26 Sokaogon Chippewa Community v. Babbitt, 961 F. Supp. 1276, 1280 (W.D. Wis. 1997)); see also 27 28 6 Plaintiff also alleges that there are “two versions of the I-213 forms contained in the AR” without explanation. Supra at 4-5. Notwithstanding the minor differences in these versions, Plaintiff fails to demonstrate how such variation renders the existing record incomplete or the relevance of such various to the claims now before the Court. Gibson, Dunn & Crutcher LLP LCR 37 SUBMISSION Case No. 2:17-cv-00218-RSM-JPD 9 Counsel Listed on Pages I–III Case 2:17-cv-00218-RSM Document 134 Filed 08/29/18 Page 14 of 30 1 Smith Prop. Holdings, 4411 Connecticut L.L.C. v. United States, 311 F. Supp. 2d 69, 85 (D.D.C. 2 2004) (finding that the Environmental Protection Agency’s [EPA] prior offer of reimbursement to 3 Plaintiff did not support a showing of bad faith in the agency’s subsequent determination that 4 reimbursement was not warranted) (citing Iron Mountain Mines, Inc., 987 F. Supp. at 1260–61). The 5 Smith Prop. Holdings Court held that, even if Smith’s allegations were proven true (that the agency 6 defendant “misstate[d] the holding of applicable cases; falsely represented that Smith submitted its 7 removal claims late; falsely stated that Smith failed to provide evidence that the culvert was 8 abandoned; and falsely indicates the meaning of the FOSC's [EPA Federal On–Scene Coordinator] 9 Order”), the Court would only find the agency action to be arbitrary and capricious, and not bad faith. 10 Id. at 84-85. 11 Plaintiff has offered nothing to indicate bad faith, and has certainly not made a strong 12 showing. His only allegation is that the reason the NOIT was issued, the Government’s suspicion that 13 he is or was affiliated with gangs (because he said he was), is not supported by findings in other 14 independent agency hearings. The Government’s determination is rationally supported by the 15 administrative record, which is adequate to permit this Court to review the agency decision without 16 the extraordinary remedy of discovery Plaintiff seeks. 7 17 3. 18 Defendants concede, as they must, that Plaintiff may obtain extra-record discovery if the Moving Party’s Reply (Mr. Ramirez) 19 record is inadequate to support meaningful judicial review and one of the exceptions applies to permit 20 discovery beyond the current AR. Defendants’ arguments against discovery are an effort to continue 21 to shield from this Court’s review evidence that was before them both at the time they initially 22 stripped Mr. Ramirez of his DACA status and when they issued him a NOIT to terminate it again. 8 23 But Defendants cannot pick and choose those documents and communications about Mr. Ramirez to 24 compile an incomplete and misleading AR while ignoring the balance of the evidence before it that 25 7 26 27 28 Defendants’ position that the administrative record is adequate to permit judicial review does not vitiate Defendants’ position that this Court lacks jurisdiction over the issuance of the NOIT, which was an intermediate agency decision that effected no legal consequence on Plaintiff, and which itself was rendered moot by the natural expiration of Plaintiff’s DACA and EAD without agency action. 8 While beyond the scope of the present Motion, Plaintiff disagrees with Defendants’ statement that “Plaintiff’s reinstated DACA expired on the original expiration date, in compliance with the preliminary injunction order in Inland Empire.” Gibson, Dunn & Crutcher LLP LCR 37 SUBMISSION Case No. 2:17-cv-00218-RSM-JPD 10 Counsel Listed on Pages I–III Case 2:17-cv-00218-RSM Document 134 Filed 08/29/18 Page 15 of 30 1 supports Mr. Ramirez’s claims, and in particular those government admissions that concede Mr. 2 Ramirez is not a threat to public safety. 3 The government even admits that there exist other documents that it considered or had in front 4 of it that are missing from the AR, “acknowledg[ing] that the NOIT references DHS email records 5 that summarize Plaintiff’s merits hearing in immigration court,” and stating that it will “supplement 6 the [AR] with” such records. Supra at 9. In other words, Plaintiff’s well-founded suspicions that 7 additional records exist that should be part of the AR have been validated, and Defendants have been 8 sitting on such documents for at least six months. Plaintiff should be permitted discovery to confirm 9 all existing records have been considered for inclusion in the AR and to determine how Defendants 10 weighed such records when deciding to repeatedly falsely accuse Plaintiff of being a gang member. 11 This Court should therefore reject Defendants’ latest efforts to insulate from judicial review their bad 12 faith conduct toward Mr. Ramirez. 9 13 Defendants’ argument that the current record is adequate to support meaningful judicial 14 review is without merit. Defendants’ principal legal support is distinguishable, as in University of 15 Washington this Court denied supplementation of the record where the plaintiff sought to admit 16 documents from “different cases” (to which the same plaintiff was not a party), and because the 17 plaintiff had “fail[ed] to demonstrate that the [agency] had the documents at issue before it when it 18 made the challenged decision.” 2011 WL 6447806, at *2–3. This Court therefore held that it 19 “cannot make a finding that these documents are necessary to determine whether the agency has 20 considered all relevant factors . . . .” Id. at *3. Here, however, there are numerous documents that 21 Plaintiff has identified—e.g., his DACA application, background checks, and renewal papers—that 22 Defendants had before them and that bear upon the question of gang affiliation (or lack thereof), 23 24 25 26 27 28 9 Defendants’ citation to Center for Biological Diversity for the proposition that a party “may not use post-decision information as a new rationalization either for sustaining or attacking the Agency’s decision” is inapposite, as Plaintiff would not be using post-decision information as a “new” basis for challenging Defendants’ actions. 450 F.3d at 943 (citation omitted, internal quotation marks omitted). From the outset, Defendants’ false accusation that Plaintiff is a gang member has violated the APA and Plaintiff’s constitutional rights. To the extent that material sought in discovery could be considered “post-decision,” it would contextualize and explain the gang accusation and is therefore not “new.” If Defendants’ argument were correct, an agency email admitting the error of actions taken against Mr. Ramirez (or any plaintiff) would be inadmissible. This is not the case. And as Defendants recognize, these materials are not “postdecision” as they relate to the issuance of the NOIT. Gibson, Dunn & Crutcher LLP LCR 37 SUBMISSION Case No. 2:17-cv-00218-RSM-JPD 11 Counsel Listed on Pages I–III Case 2:17-cv-00218-RSM Document 134 Filed 08/29/18 Page 16 of 30 1 which the Court is presently unable to consider in ruling on Plaintiffs’ APA claims because they are 2 not part of the AR. Defendants concede as much, but their promise to now introduce such records 3 appears insufficient. Indeed, the NOIT alludes to multiple and various DHS, USCIS, and ICE 4 records and communications, all of which must be added to the AR, not just those that Defendants 5 selectively choose. 10 Notably, at the March 28, 2017 bond hearing, the government’s counsel 6 admitted that he “do[es]n’t believe from this record there is enough for us to argue that he’s a danger 7 to the community.” Dkt. 122-1 at 31 (Bond Hrg. Tr. at 26) (emphasis added). That admission 8 requires establishment of what else (if anything) the government was considering as part of “this 9 record” in addition to the ICE records (e.g., the I-213 form) on which Defendants relied in first 10 terminating Mr. Ramirez’s DACA. By definition, therefore, and by Defendants’ implicit admission, 11 the current AR is inadequate for this Court to meaningfully review Defendants’ wrongful actions 12 toward Mr. Ramirez. 13 Defendants next fail to refute the applicability of the three exceptions that permit 14 supplementation of the AR in these circumstances. As to the first exception—the agency’s failure to 15 consider all relevant factors and explain its decision—Defendants claim that Plaintiff bases his 16 argument on “extra-record evidence that was not before the agency.” Supra at 8. This is incorrect 17 and misconstrues Plaintiff’s Motion. Documents regarding the grant and renewal of Plaintiff’s 18 DACA status (including the results of background checks) were unquestionably before the same 19 agency that terminated his DACA status, and Plaintiff specifically identified these as the types of 20 documents relevant to this exception. Supra at 5. And at the March 28, 2017 bond hearing, the 21 government’s counsel referred to a record that could not support a determination that Mr. Ramirez 22 was a public safety concern. Dkt. 122-1 at 31. That admission is critical, as it is entirely at odds with 23 and undermines the government’s current position that there is no countervailing evidence that was 24 25 26 27 28 10 The NOIT references various relevant communications and records, including, for example: (1) “USCIS has consulted with [ICE] and has determined that exercising prosecutorial discretion to defer removal action in your case is not consistent with DHS’s enforcement priorities”; (2) “DHS records show that on January 17, 2018, an immigration judge ordered you removed to Mexico”; (3) “DHS email records indicate that you disputed in immigration court that you are a gang member and that the immigration judge accepted this claim”; and (4) “ICE has informed USCIS that it is actively pursuing your removal.” Dkt. 126-1, Ex. C. Gibson, Dunn & Crutcher LLP LCR 37 SUBMISSION Case No. 2:17-cv-00218-RSM-JPD 12 Counsel Listed on Pages I–III Case 2:17-cv-00218-RSM Document 134 Filed 08/29/18 Page 17 of 30 1 on the record before it. 11 2 Moreover, evidence is not “not before the agency” simply because the agency decides to 3 ignore it or fails to deem it part of the AR, or where it does not support the agency action. 12 See 4 Thompson v. U.S. Dep’t of Labor, 885 F.2d 551, 555 (9th Cir. 1989) (“The whole administrative 5 record, however, is not necessarily those documents that the agency has compiled and submitted as 6 ‘the’ administrative record.”) (citation omitted, internal quotation marks omitted) (emphasis in 7 original). Therefore, “[t]he ‘whole’ administrative record . . . consists of all documents and materials 8 directly or indirectly considered by agency decision-makers and includes evidence contrary to the 9 agency’s position.” Id. (citation omitted, internal quotation marks omitted) (emphasis in original). 10 Defendants unquestionably had before them numerous documents not yet included as part of the AR 11 both at the time they initially wrongfully stripped Mr. Ramirez’s DACA and over a year later when 12 they issued the NOIT, and admit as much in their response. The Court should reject Defendants’ 13 improper efforts to cherry-pick limited evidence that they believe supports their actions. 14 As to the second exception—where the agency has relied on documents not in the record— 15 discovery is warranted to determine whether Defendants relied on any extra-record documents. Did 16 the government consider the documents before it that are currently missing from the AR (e.g., prior 17 DACA applications, background checks, approvals, and the record referenced at the bond hearing), 18 and if not why not? Defendants must answer these questions in discovery. And, in their response 19 herein, Defendants validate Plaintiff’s well-founded belief that other relied-on records exist by stating 20 that they will supplement the record with emails referenced in the NOIT. Supra at 9. In other words, 21 Defendants have already admitted they considered other documents not in the record. Plaintiff’s 22 supposition was correct, and through Defendants’ concession, they have opened the door to discovery 23 24 25 26 27 28 11 Defendants’ statement that “Plaintiff attempts to introduce evidence of an immigration court bond hearing,” supra at 8, is misleading and misstates the scope of what Plaintiff seeks. That hearing is relevant to this Motion for the government’s counsel’s admission that Mr. Ramirez is not a danger to public safety based on the then-current record. That referenced record is relevant and appropriate for consideration here, and the statements made at the hearing (and same record) were before Defendants when they issued the NOIT, in April 2018, and may properly be considered part of the AR on that basis. Defendants’ other argument that the bond hearing is irrelevant because of different legal standards for bond determination and determination of DACA eligibility is a red herring, as it is the underlying evidence that is relevant here. 12 Defendants’ reliance on University of Washington is again misplaced. As described supra, in that case, this Court denied supplementation where the plaintiff asked the Court to consider “documents filed in a different, but related case.” Univ. of Wash., 2011 WL 6447806, at *3. Gibson, Dunn & Crutcher LLP LCR 37 SUBMISSION Case No. 2:17-cv-00218-RSM-JPD 13 Counsel Listed on Pages I–III Case 2:17-cv-00218-RSM Document 134 Filed 08/29/18 Page 18 of 30 1 to determine what other relevant email records or documents exist on which Defendants relied in 2 twice seeking to terminate Plaintiffs’ DACA based on the same lie. 3 As to the last exception—agency bad faith or improper behavior—Defendants attempt to 4 prevent this Court from considering the judicial record already before it by asking the Court to ignore 5 the bad faith it has already found. See Dkt. 133; supra at 6. Indeed, the government argues that bad 6 faith cannot be determined by considering the conflicting positions Defendants have taken regarding 7 Mr. Ramirez in different proceedings. This position is unsupported by the case law, defies this 8 Court’s prior findings, and would mean that the government could in all cases take adverse wrongful 9 action against an individual based on a false premise and avoid a bad faith finding by shielding 10 admissions made in a parallel proceeding. Such a result would permit the government to take 11 incompatible positions by related agencies against the same individual. The government’s argument 12 in and of itself highlights the dangerousness of its position, while further highlighting its continuing 13 bad faith in these proceedings. Defendants cannot wield hand-picked records as a sword while 14 shielding other relevant materials that were before them. Moreover, the Court need not look beyond 15 the those records and statements made within USCIS to determine bad faith in any event; the mere 16 fact of USCIS again proceeding to strip Mr. Ramirez of his DACA by issuing a NOIT based on the 17 same false accusation is evidence enough. 18 Defendants’ proffered legal support only bolsters Plaintiff’s argument that the government has 19 engaged in bad faith, as there is strong, clear evidence in the judicial record of such bad faith. 13 20 Indeed, the evidence of bad faith is powerful here, and Defendants’ brazen statement that “Plaintiff 21 has offered nothing to indicate bad faith” (supra at 10) is contradicted by the facts. Defendants have 22 repeatedly lied about Mr. Ramirez—the father of a young son—falsely and very publicly accusing 23 him of being a gang member when the evidence, their own admissions, and judicial findings are to 24 the contrary. 25 Plaintiff is entitled to discovery and supplementation of the AR based on each of the three 26 27 28 13 Defendants’ citation to Smith Property Holdings, for example, does not support Defendants’ position. That case involved questions of whether an agency’s shifting positions on reimbursement to a property owner were evidence of bad faith. See Smith Prop. Holdings, 311 F. Supp. 2d at 84–85. Here, Mr. Ramirez has been repeatedly and knowingly defamed by the government and stripped of benefits needed for his livelihood. The scenarios are not remotely similar. Gibson, Dunn & Crutcher LLP LCR 37 SUBMISSION Case No. 2:17-cv-00218-RSM-JPD 14 Counsel Listed on Pages I–III Case 2:17-cv-00218-RSM Document 134 Filed 08/29/18 Page 19 of 30 1 exceptions addressed herein, but most surely on the bad-faith exception alone. 2 B. 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Defendants’ Motion for a Protective Order Regarding Discovery as to Plaintiff’s Constitutional Claim 1. Moving Party’s Argument (Government) Plaintiff’s motion to supplement the record appears to demonstrate Plaintiff’s recognition that he is required to seek leave of the Court to pursue discovery in this matter. Defendants agree, and for the reasons stated above, ask the Court to deny Plaintiff discovery in this straightforward APA record review case. Even if the Court were to find that Plaintiff has sufficiently stated a constitutional claim separate from his APA claim (a point that Defendants dispute), his discovery requests are premature. Plaintiff has not complied with either the Federal Rules or this Court’s Local Rules for pursuing discovery. a. Discovery is not permitted in an APA case. Defendants maintain that the apparently challenged intermediate agency decision here, to issue a NOIT on the basis of Plaintiff’s suspected gang affiliation, is not reviewable in this Court under the APA or otherwise. However, in a review of agency action like the one Plaintiff seeks, the role of the district court “is to determine whether or not as a matter of law the evidence in the administrative record permitted the agency to make the decision it did.” Occidental Engineering Co. v. INS, 753 F.2d 766, 769 (9th Cir. 1985) (emphasis added). Here, there are “no disputed facts that the district court must resolve,” id., and the entire case on review under the APA is a question of law, which the Court resolves on the administrative record that was before the agency’s adjudicators when making their decision. Nat’l Wildlife Fed’n v. U.S. Army Corps of Engineers, 384 F.3d 1163, 1170 (9th Cir. 2004); Am. Bioscience, Inc. v. Thompson, 269 F.3d 1077, 1083 (D.C. Cir. 2001). “An agency's designation and certification of the administrative record is treated like other established administrative procedures, and thus entitled to a presumption of administrative regularity.” McCrary v. Gutierrez, 495 F. Supp. 2d 1038, 1041 (N.D. Cal. 2007). Accordingly, “in the absence of clear evidence to the contrary, courts presume that public officers have properly discharged their official duties.” Id., citing Citizens to Preserve Overton Park, 401 U.S. at 415 (internal modifications and citation omitted). The governing case law forecloses Plaintiff’s requests for discovery, as the only Gibson, Dunn & Crutcher LLP LCR 37 SUBMISSION Case No. 2:17-cv-00218-RSM-JPD 15 Counsel Listed on Pages I–III Case 2:17-cv-00218-RSM Document 134 Filed 08/29/18 Page 20 of 30 1 ultimate issue in Plaintiff’s complaint is the legal question whether the agency’s decision to issue a 2 NOIT on the basis of suspected gang affiliation was arbitrary and capricious under the APA. 14 5 3 U.S.C. § 706(2)(A); see Dkt. No. 122 at 17 (“Defendants’ arbitrary decision and failure to follow 4 their own procedures resulted in tremendous, and entirely avoidable, harm to Mr. Ramirez.”); id. at 5 18 (“Mr. Ramirez is likely to establish that the government’s revocation of his DACA status and 6 work authorization violated the APA in several ways.”). 7 As explained in detail above, exceptions to the record rule prohibiting discovery in an APA 8 case may be allowed “in very limited circumstances,” and a plaintiff bears a heavy burden to make a 9 threshold showing that the record is so inadequate as to effectively preclude judicial review. If a 10 plaintiff meets that burden, he or she must then establish one of four factors to justify discovery. 11 Univ. of Washington, 2011 WL 6447806 at *2; McCrary, 495 F. Supp. 2d at 1041; see also Fence 12 Creek Cattle Co. v. U.S. Forest Serv., 602 F.3d 1125, 1131 (9th Cir. 2010). Where Plaintiff has not 13 offered any argument or evidence to show that the administrative record is insufficient to permit 14 judicial review, the Court should not take the extraordinary step of permitting discovery in such a 15 straightforward record review case as this. Rather, the Court should grant Defendants’ motion for a 16 protective order. 17 b. 18 Plaintiff’s Constitutional claims do not stand apart from his APA claims. Discovery is not available in an APA case simply because Plaintiff cloaks his Complaint in 19 constitutional garb. Brown v. Holder, 763 F.3d 1141, 1148 (9th Cir. 2014) (“mere failure of an 20 agency to follow its regulations is not a violation of due process”); Markham v. United States, 434 21 F.3d 1185, 1188 (9th Cir. 2006) (“[a] cognizable due process claim must be more than an ephemeral 22 and insubstantial denial of benefits[.]”). Despite Plaintiff’s attempts to characterize his claim as a 23 constitutional challenge, this is simply a matter of whether DHS’s decision to issue a NOIT to 24 Plaintiff on the basis of suspected gang affiliation was arbitrary and capricious. See Dkt. No. 78, 25 Second Amended Complaint, Count 2, ¶ 94 (“Here, the Agency Defendants violated the APA 26 27 28 14 Although the Second Amended Complaint pre-dates and thus does not challenge Defendants’ issuance of the NOIT, the surviving claims after Plaintiff dismissed his Bivens actions against individual defendants, see Dkt. No. 112, relate to the termination of Plaintiff’s DACA and are moot. Regardless of the issuance of the NOIT, which itself bore no legal consequence, Plaintiff’s reinstated DACA expired on the original expiration date, in compliance with the preliminary injunction order in Inland Empire. Gibson, Dunn & Crutcher LLP LCR 37 SUBMISSION Case No. 2:17-cv-00218-RSM-JPD 16 Counsel Listed on Pages I–III Case 2:17-cv-00218-RSM Document 134 Filed 08/29/18 Page 21 of 30 1 because their revocation of Mr. Ramirez’s DACA status and work authorization violated his rights 2 under the Due Process Clause.”); Ursack, Inc. v. Sierra Interagency Black Bear Grp., 639 F.3d 949, 3 955 (9th Cir. 2011) (an equal protection argument raised separately from an APA argument was 4 treated as an APA argument, where the “only question is whether the defendants’ treatment of Ursack 5 was rational (i.e., not arbitrary and capricious).”); Markham, 434 F.3d at 1187–88) (citing Czerkies v. 6 U.S. Dep’t of Labor, 73 F.3d 1435, 1443 (7th Cir. 1996) (en banc) (Posner, C.J.) (“The government 7 does not violate the Constitution every time it mistakenly denies a claim for benefits . . . . This is a 8 case of a claim for benefits ‘cloaked in constitutional terms.’ Czerkies has affixed the constitutional 9 label to a garden-variety [administrative] claim [.]”)). Even if Plaintiff could somehow show that the 10 agency failed to follow its own rules and such failure was a constitutional violation, his claim 11 amounts to nothing more than a veiled arbitrary and capricious claim, which must be folded into his 12 APA cause of action. 13 Thus, Plaintiffs face the basic problem that the Ninth Circuit has clearly held that the “mere 14 failure of an agency to follow its regulations is not a violation of due process.” Brown, 763 F.3d at 15 1148. 16 17 18 19 20 21 22 23 24 25 26 27 28 c. Even if allowed to proceed, Plaintiff’s discovery requests are premature and overbroad. Discovery “may not be used to conduct a fishing expedition in hopes that some fact supporting an allegation will be uncovered.” Inst. for Wildlife Prot. v. Norton, 337 F. Supp. 2d 1223, 1226 (W.D. Wash. 2004) (Martinez, J.), citing Rivera v. Nibco, Inc., 364 F.3d 1057, 1072 (9th Cir. 2004). If Plaintiff believes this case is not excepted from discovery under the APA, he has failed to follow either Federal Rules of Civil Procedure 26 and 34 or this Court’s Local Rule 16, requiring, among many other things, the parties to exchange initial disclosures, to confer on discovery issues, and to present the Court with a joint status report and a proposed discovery scheduling order that includes deadlines for the completion of discovery and the filing of dispositive motions. See Local Rules W.D. Wash. LCR 16(a), (b), 26; Fed. R. Civ. P. 26(a), (d), (f). Only then may a party serve discovery requests pursuant to Fed. R. Civ. P. 34. See Fed. R. Civ. P. 26(d)(1). Having taken none of those steps, Plaintiff puzzlingly noted in his request for production of documents only that the request Gibson, Dunn & Crutcher LLP LCR 37 SUBMISSION Case No. 2:17-cv-00218-RSM-JPD 17 Counsel Listed on Pages I–III Case 2:17-cv-00218-RSM Document 134 Filed 08/29/18 Page 22 of 30 1 was being made “Pursuant to the Rules 26 and 34 of the Federal Rules of Civil Procedure.” See Pl. 2 Ex. A, Plaintiff’s First Set of Requests for Production, at 2. 3 Were the Court to instruct Defendants to respond to Plaintiff’s requests, there are no 4 parameters established for the scope of discovery, or a deadline for its completion. Plaintiff has 5 offered no initial disclosures as to the witnesses or experts he would theoretically call, nor any expert 6 testimony reports. The purpose of the Rule 26(f) conference is to ensure discovery is efficiently and 7 meaningfully executed. See Lombana v. Green Tree Servicing, LLC, No. LA CV 14-8330 JCG, 2016 8 WL 7661674, at *1 (C.D. Cal. Jan. 12, 2016) (“[T]he record does not reflect that the parties met and 9 conferred concerning a discovery plan before Defendant served its Discovery Requests, thus 10 rendering the Discovery Requests premature”); Fleshman v. Wells Fargo Bank, N.A., No. 03:13-CV- 11 02062-HZ, 2015 WL 4488163, at *1 (D. Or. July 23, 2015) (finding plaintiffs were in violation of 12 Fed. R. of Civ. P. 26(d)(1) and LR 26–1(4) because no Rule 26(f) discovery planning conference had 13 occurred prior to serving discovery). 14 Plaintiffs here have skipped every step and jumped straight to seeking a significant body of 15 information and records, many of which are already in the administrative record, but many that were 16 not before the agency in making its decision to issue the NOIT due to suspicion of gang affiliation, 17 and are therefore outside the scope of this matter under any analysis. See Cabell v. Zorro Prods., Inc., 18 294 F.R.D. 604, 609 (W.D. Wash. 2013) (Martinez, J.) (“unfocused fishing expeditions are 19 discouraged by Federal Rule of Civil Procedure 26(b) and by Local Rule 26(f), which requires that 20 discovery requests ... should be reasonably targeted, clear, and as specific as possible.”), citing LCR 21 26(f) (internal citation and quotations omitted); id. (“Where the relevance of the requested 22 information is low, avoiding the harm that comes with the burden of overbroad discovery ‘constitutes 23 good cause for a protective order.’”), citing DeFreitas v. Tillinghast, 2013 WL 209277, at *3 (W.D. 24 Wash. 2013). For example, Plaintiffs seek privileged communications “between the officers who 25 arrested or detained Plaintiff and the Office of Chief Counsel,” as well as irrelevant “communication 26 between you and any member of the media concerning Plaintiff.” See Pl. Ex. A, Request for 27 Production Nos. 7, 8. 28 Where Plaintiff has made no effort to establish the scope of discovery or set a discovery plan Gibson, Dunn & Crutcher LLP LCR 37 SUBMISSION Case No. 2:17-cv-00218-RSM-JPD 18 Counsel Listed on Pages I–III Case 2:17-cv-00218-RSM Document 134 Filed 08/29/18 Page 23 of 30 1 with Defendants, and offers no justification for his attempt to expand the administrative record, the 2 Court should grant Defendants’ motion for a protective order. 3 2. 4 Defendants cannot carry their burden to show why a protective order should issue to prevent Responding Party’s Argument (Mr. Ramirez) 5 Plaintiff from taking discovery regarding his separate constitutional claim, and their Motion for a 6 Protective Order should therefore be denied. 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 a. Defendants Fail to Carry Their Burden to Establish that Plaintiff is not Entitled to Discovery on his Separate Constitutional Claim. Defendants’ actions toward Mr. Ramirez violated his constitutional rights and are the basis for his claim for declaratory relief. Defendants misconstrue Plaintiff’s constitutional claim for declaratory relief, wrongly stating that “the only ultimate issue in Plaintiff’s complaint is the legal question whether the agency’s decision to issue a NOIT on the basis of suspected gang affiliation was arbitrary and capricious under the APA.” Supra at 16. In fact, Plaintiff’s constitutional claim alleges that “Defendants’ [February 2017] revocation of Mr. Ramirez’s DACA status and work authorization violated his rights under the Fifth Amendment.” Dkt. 78, ¶ 149. Defendants also point to Plaintiff’s PI Motion to argue that Plaintiff’s constitutional claim is in fact an APA claim. But Plaintiff did not move for an injunction on his declaratory relief claim, only on his APA claims, and thus this argument fails, too. See Dkt. 122. Defendants’ Motion fails on these threshold bases alone. Moreover, Defendants’ argument that Plaintiff’s constitutional claim is duplicative of his APA claims is wrong, and irrelevant in any event. “A direct constitutional challenge is reviewed independent of the APA.” Grill v. Quinn, 2012 WL 174873, at *2 (E.D. Cal. Jan. 20, 2012) (citing Porter v. Califano, 592 F.2d 770, 781 (5th Cir. 1979)). “As such the court is entitled to look beyond the administrative record with regard to [such] claim[s].” Id.; see also Rydeen v. Quigg, 748 F. Supp. 900, 906 (D.D.C. 1990), aff’d, 937 F.2d 623 (Fed. Cir. 1991). Thus, “discovery as to . . . non-APA claim[s] is permissible.” Grill, 2012 WL 174873, at *2 (granting extra-record discovery with respect to plaintiff’s independent constitutional claims, as well as certain of his APA claims); Miccosukee Tribe of Indians of Fla. v. United States, 2010 WL 337653, at *2 (S.D. Fla. Jan. 22, 2010) (“[I]t appears that discovery related to the Plaintiff’s equal protection claim is not limited by the Gibson, Dunn & Crutcher LLP LCR 37 SUBMISSION Case No. 2:17-cv-00218-RSM-JPD 19 Counsel Listed on Pages I–III Case 2:17-cv-00218-RSM Document 134 Filed 08/29/18 Page 24 of 30 1 APA . . . nor the agency record, but rather requires independent review and therefore discovery 2 related to the equal protection claim appropriately may proceed.”); see also Webster v. Doe, 486 U.S. 3 592, 604 (1988) (confirming that a plaintiff who is entitled to judicial review of his constitutional 4 claims under the APA is entitled to discovery regarding those claims); Porter, 592 F.2d at 785 5 (remanding for discovery on First Amendment claim). 6 Courts agree that where a plaintiff asserts both APA and non-APA claims, discovery as to 7 non-APA claims is appropriate separate and apart from the APA claims. See J.E.F.M. v. Lynch, 2015 8 WL 9839679, at *3 (W.D. Wash. Aug. 27, 2015) (permitting discovery as to constitutional claims); 9 see also Am. Cargo Transp., Inc. v. United States, 2006 WL 753236, at *1 n.1 (W.D. Wash. Mar. 22, 10 2006) (recognizing that “a court may allow discovery as to non-APA claims”). Indeed, allowance of 11 discovery as to constitutional claims irrespective of concurrently asserted APA claims makes sense, 12 as such discovery would be permitted where a plaintiff only brought a constitutional claim. 13 14 b. Plaintiff’s Discovery Requests are Timely. Defendants’ argument that Plaintiff’s discovery requests are premature because a Rule 26(f) 15 conference has not yet occurred lacks merit for the simple reason that no such conference is required 16 pursuant to Rule 26(d)(1), which states “[a] party may not seek discovery from any source before the 17 parties have conferred as required by Rule 26(f), except in a proceeding exempted from initial 18 disclosure under Rule 26(a)(1)(B),” and this is such an exempted proceeding. See Fed. R. Civ. P. 19 26(a)(1)(B)(i) (“The following proceedings are exempt from initial disclosure: (i) an action for 20 review on an administrative record . . . .”). Defendants also misstate the requirements of Local Civil 21 Rule 16, which exempts this type of action from its provisions, but in any event speaks to actions to 22 be taken by the Court to implement a scheduling order. See W.D. Wash. LCR 16(b)(6). The Court 23 appears to recognize that this is an exempted action, as it has not previously issued a scheduling order 24 or set a Rule 16 conference. 25 Even if this action were not exempt from the procedural requirements of Federal Rule 26 and 26 Local Civil Rule 16, Defendants’ argument that discovery is premature is a procedural one that the 27 Court and the parties could remedy. But such an objection is not a basis for a blanket protective 28 order preventing Plaintiff from taking discovery. Moreover, counsel have already engaged in a Gibson, Dunn & Crutcher LLP LCR 37 SUBMISSION Case No. 2:17-cv-00218-RSM-JPD 20 Counsel Listed on Pages I–III Case 2:17-cv-00218-RSM Document 134 Filed 08/29/18 Page 25 of 30 1 lengthy meet and confer regarding the discovery served in this matter (Bach Decl., Exs. D, E), so 2 Defendants should not be heard to complain about these ministerial steps. Plaintiff’s counsel believes 3 that a scheduling order would be appropriate at this stage of the case, however the current absence of 4 one does not support Defendants’ Motion for a protective order. Defendants’ Motion should be 5 denied. 6 7 3. Moving Party’s Reply (Government) a. Plaintiff’s APA and constitutional claims are one and the same. 8 Plaintiff’s assertion that discovery is appropriate because he made constitutional challenges 9 independent of his APA claims is incorrect. Only Counts One, Two, and Eight remain in Plaintiff’s 10 Second Amended Complaint after voluntary dismissal of the individual Bivens claims. The first two 11 counts are entitled APA claims and the third seeks a declaration of Plaintiff’s “constitutionally 12 protected interests in his DACA status and the benefits conferred thereunder.” See Dkt. No. 78 ¶ 149. 13 What remains of Counts One and Two are explicit APA claims, and only Count Two 14 mentions a constitutional violation, which by Plaintiff’s own characterization is still subordinate to 15 the APA claim. Id. at ¶ 93 (“This Count is brought against the Agency Defendants and seeks 16 declaratory and injunctive relief under the APA.”); see also Dkt. No. 122, Motion for Preliminary 17 Injunction, at 18 (“Specifically, the government violated the APA because its conduct was: (1) 18 ‘arbitrary, capricious, [and] an abuse of discretion’[]; (2) contrary to its own internal operating 19 procedures and therefore in violation of the Accardi doctrine[]; and (3) in violation of Mr. Ramirez’s 20 rights under the Due Process Clause[].”) (internal citations to Plaintiff’s SAC omitted). Thus, 21 Plaintiff claims are pure “garden-variety administrative claim[s]” to which he has merely “affixed the 22 constitutional label.” Markham, 434 F.3d at 1187-88 (9th Cir. 2006). 23 Plaintiff cites no mandatory authority to support his position, and his reliance on Grill v. 24 Quinn is misplaced. In that case, the complaint contained “two distinct causes of action,” the first 25 under the APA and the second a due process claim that “stands on its own as a constitutional claim 26 independent of the strictures of the APA.” 2012 WL 174873 at *2. Similarly, in Rydeen, the plaintiff 27 made an APA claim that the agency acted arbitrarily in interpreting its statutory authority, and an 28 additional independent claim that the patent expiration notice process was constitutionally Gibson, Dunn & Crutcher LLP LCR 37 SUBMISSION Case No. 2:17-cv-00218-RSM-JPD 21 Counsel Listed on Pages I–III Case 2:17-cv-00218-RSM Document 134 Filed 08/29/18 Page 26 of 30 1 inadequate. 748 F. Supp. at 905-906. In Miccosukee Tribe of Indians of Fla., the district court 2 dismissed plaintiff’s APA claim entirely and permitted an independent equal protection claim to go 3 forward. 2010 WL 337653 at *1. The court denied defendants’ motion to limit the case to review of 4 the AR because the APA no longer applied. 15 Id. By Plaintiff’s own design, his claims are based in a 5 violation of the APA. Rather than challenge the DACA termination process, Plaintiff alleges the 6 agency’s application of the process was arbitrary and capricious, which is a legal question resolved 7 by review of the AR. See Dkt. No. 122 at 18. That Plaintiff alleges the processing of his DACA 8 termination also violated due process does not create an independent claim subject to discovery. 9 To the extent the Court interpreted Plaintiff’s claims as including the subsequent decision to 10 issue the NOIT—an intermediate agency action that has since become moot itself—the remaining 11 issue is a straightforward question of law: was the agency’s decision to issue the NOIT based on 12 Plaintiff’s suspected gang affiliation arbitrary and capricious? The Court can answer this question 13 based on the AR without discovery, and Plaintiff has not met his heavy burden to show otherwise. 16 14 b. 15 16 17 18 19 20 21 22 23 24 Plaintiff’s arguments for discovery without a Rule 26(f) conference are irreconcilable. Plaintiff argues that a Fed. R. Civ. P. 26(f) conference is not necessary prior to initiating discovery because this is “an action for review on an administrative record,” while arguing simultaneously that discovery is necessary because this is a constitutional case not limited to review on the AR. Plaintiff appears to be trying to subvert the heavy burden of establishing the extraordinary circumstances necessary to compel discovery in an APA case by arguing it is not an APA case, while 15 Plaintiff’s reliance on Webster, J.E.F.M., and Am. Cargo Transp., Inc., are also misleading. Each case stands only for the proposition that discovery may be permitted in an APA case when independent constitutional claims are identified. Defendants maintain Plaintiff has not made such a claim. See Webster, 486 U.S. at 604 (district courts have “latitude to control any discovery process which may be instituted” if discovery is warranted) (emphasis added); J.E.F.M., 2015 WL 9839679 at *3 (finding plaintiffs raised constitutional claims not governed by the APA); Am. Cargo, 2006 WL 753236 at *1 n.1 (denying discovery on two non-APA claims because the court construed the motion as “arising under the APA”). 16 25 26 27 28 Defendants’ offer to supplement the AR with documents that were before the agency adjudicator who issued the NOIT should not be construed as evidence of bad faith in the construction of the AR. The AR was composed in June 2017, 8 months prior to issuance of the NOIT. Dkt. Nos. 91-92. Though the Court interpreted the SAC as incorporating a prospective challenge to the NOIT, the documents Defendants now offer did not exist at the time the AR was created. It was not until Plaintiff filed a supplemental brief in support of his motion for preliminary injunction on May 7, 2018 that he first challenged the NOIT, and it was not until this Court’s May 15, 2018 Order granting the motion that Defendants were on notice that the NOIT issuance was subject to this Court’s jurisdiction at all. Dkt. Nos. 130, 132. Defendants’ offer to supplement the AR now demonstrates Defendants’ continued good faith effort to resolve this case and further supports granting Defendants’ protective order to permit adjudication on the record. Gibson, Dunn & Crutcher LLP LCR 37 SUBMISSION Case No. 2:17-cv-00218-RSM-JPD 22 Counsel Listed on Pages I–III Case 2:17-cv-00218-RSM Document 134 Filed 08/29/18 Page 27 of 30 1 also trying to subvert the numerous requirements of the federal and local rules that govern discovery 2 by claiming the rules do not apply because this is an APA case. He cannot have it both ways. 3 Plaintiff’s argument now that Rule 26(d)(1) permits discovery requests without a Rule 26(f) 4 conference because APA cases are exempt from initial disclosures under Rule 26(a)(1)(B) is circular 5 and untenable. As explained in greater detail above, case law is clear that claims raised under the 6 APA are, absent extraordinary circumstances, decided only on an administrative record already in 7 existence. Occidental Engineering Co., 753 F.2d at 769 (the role of the district court “is to determine 8 whether or not as a matter of law the evidence in the administrative record permitted the agency to 9 make the decision it did.”). Logically, there is no reason to make initial disclosures of intended 10 witnesses and experts in an APA case because no discovery requests should follow. Plaintiff received 11 the administrative record in June 2017 and made no indication of any intention to refute the record or 12 seek discovery of any additional materials. 13 Furthermore, the Rule 26(f) conference and attendant federal and local requirements 14 preceding discovery are not “ministerial.” Plaintiff seeks broad discovery, including substantial 15 privileged materials, which Plaintiff has not shown were considered in the decision at issue, nor are 16 they required to explain the decision. See Cabell, 294 F.R.D. at 609 (Martinez, J.) (“[U]nfocused 17 fishing expeditions are discouraged by [Fed. R. Civ. P.] 26(b) and by [LCR] 26(f), which requires 18 that discovery requests . . . should be reasonably targeted, clear, and as specific as possible.”). 19 Discovery at this stage would lack any scope or deadline, would be untethered to the issues at 20 stake, and would leave Defendants blind to Plaintiff’s intended witnesses and experts. Importantly, 21 Defendants’ offer herein to supplement the AR with those additional documents that were considered 22 by the agency in issuing the NOIT, and which arguably belong in the AR now that the Court has 23 ruled favorably on Plaintiff’s challenge to the NOIT issuance, demonstrates the value of the pre- 24 discovery meet and confer process Plaintiff is attempting to undercut as a mere technicality. It stands 25 to reason that the documents Defendants provide to supplement the administrative record will satisfy 26 at least some of Plaintiff’s concerns, and any subsequent disagreement over the record would be 27 streamlined for more efficient judicial resolution. 28 Defendants maintain that discovery is entirely inappropriate in this straightforward Gibson, Dunn & Crutcher LLP LCR 37 SUBMISSION Case No. 2:17-cv-00218-RSM-JPD 23 Counsel Listed on Pages I–III Case 2:17-cv-00218-RSM Document 134 Filed 08/29/18 Page 28 of 30 1 administrative record review case because Plaintiff has not made any showing that the record is 2 inadequate or that Defendants have acted in bad faith. Even if the Court disagrees, it should still grant 3 Defendants’ Protective Order because Plaintiff has failed to engage in any pre-discovery process. 4 5 6 CERTIFICATION I certify that the full responses by the respective parties to Plaintiff’s Motion and Defendants’ 7 Motion have been included in this submission, and that prior to making this submission the parties 8 conferred to attempt to resolve this discovery dispute in accordance with LCR 37(a). 9 10 11 DATED: August 29, 2018 Seattle, Washington Respectfully submitted, 12 13 14 15 /s/ Theodore J. Boutrous, Jr. GIBSON, DUNN & CRUTCHER LLP THEODORE J. BOUTROUS, JR. (CA SBN 132099), pro hac vice ETHAN D. DETTMER (CA SBN 196046), pro hac vice KATHERINE M. MARQUART (CA SBN 248043), pro hac vice NATHANIEL L. BACH (CA SBN 246518), pro hac vice 16 20 /s/ Mark D. Rosenbaum PUBLIC COUNSEL MARK D. ROSENBAUM (CA SBN 59940), pro hac vice JUDY LONDON (CA SBN 149431), pro hac vice KATHRYN A. EIDMANN (CA SBN 268053), pro hac vice ANNE M. HUDSON-PRICE (CA SBN 295930), pro hac vice ELIZABETH HADAWAY (CA SBN 308800), pro hac vice 21 ATTORNEYS FOR PLAINTIFF 17 18 19 22 23 24 25 26 27 28 Gibson, Dunn & Crutcher LLP LCR 37 SUBMISSION Case No. 2:17-cv-00218-RSM-JPD 24 Counsel Listed on Pages I–III Case 2:17-cv-00218-RSM Document 134 Filed 08/29/18 Page 29 of 30 1 2 3 4 5 6 7 8 9 10 11 12 CHAD A. READLER Acting Assistant Attorney General WILLIAM C. PEACHEY Director /s/ Jeffrey S. Robins JEFFREY S. ROBINS Assistant Director U.S. Department of Justice Civil Division Office of Immigration Litigation District Court Section P.O. Box 868, Ben Franklin Station Washington, D.C. 20044 Phone: (202) 616-1246 Fax: (202) 305-7000 Email: jeffrey.robins@usdoj.gov 14 JAMES WALKER Trial Attorney U.S. Department of Justice Civil Division 15 ATTORNEYS FOR DEFENDANTS 13 16 17 18 19 20 21 22 23 24 25 26 27 28 Gibson, Dunn & Crutcher LLP LCR 37 SUBMISSION Case No. 2:17-cv-00218-RSM-JPD 25 Counsel Listed on Pages I–III Case 2:17-cv-00218-RSM Document 134 Filed 08/29/18 Page 30 of 30 1 CERTIFICATE OF SERVICE 2 I hereby certify that on August 29, 2018, I electronically filed the foregoing document with the 3 Clerk of the Court using CM/ECF. I also certify that the foregoing document should automatically be 4 served this day on all counsel of record via transmission of Notices of Electronic Filing generated by 5 CM/ECF. 6 /s/ Theodore J. Boutrous, Jr. 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Gibson, Dunn & Crutcher LLP LCR 37 SUBMISSION Case No. 2:17-cv-00218-RSM-JPD 26 Counsel Listed on Pages I–III Case 2:17-cv-00218-RSM Document 134-1 Filed 08/29/18 Page 1 of 54 1 The Honorable Ricardo S. Martinez Chief United States District Judge 2 3 4 5 6 7 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 8 9 10 11 12 CASE NO. 2:17-CV-00218-RSM-JPD Daniel Ramirez Medina, Plaintiff, 13 14 15 16 17 18 v. DECLARATION OF NATHANIEL L. BACH IN SUPPORT OF LCR 37 SUBMISSION RE PLAINTIFF’S MOTION TO COMPLETE THE ADMINISTRATIVE RECORD U.S. DEPARTMENT OF HOMELAND SECURITY; U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT; and U.S. CITIZENSHIP AND IMMIGRATION SERVICES, Defendants. 19 20 21 22 23 24 25 26 27 28 Gibson, Dunn & Crutcher LLP DECLARATION OF N. BACH Case No. 2:17-cv-00218-RSM-JPD Counsel Listed on Pages I–II Case 2:17-cv-00218-RSM Document 134-1 Filed 08/29/18 Page 2 of 54 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 Attorneys for Plaintiff: PUBLIC COUNSEL MARK D. ROSENBAUM (CA SBN 59940), pro hac vice mrosenbaum@publiccounsel.org JUDY LONDON (CA SBN 149431), pro hac vice jlondon@publiccounsel.org KATHRYN A. EIDMANN (CA SBN 268053), pro hac vice keidmann@publiccounsel.org ANNE M. HUDSON-PRICE (CA SBN 295930), pro hac vice aprice@publiccounsel.org ELIZABETH HADAWAY (CA SBN 308800), pro hac vice ehadaway@publiccounsel.org 610 South Ardmore Avenue Los Angeles, CA 90005 Telephone: (213) 385-2977 Facsimile: (213) 385-9089 GIBSON, DUNN & CRUTCHER LLP THEODORE J. BOUTROUS, JR. (CA SBN 132099), pro hac vice tboutrous@gibsondunn.com KATHERINE M. MARQUART (CA SBN 248043), pro hac vice kmarquart@gibsondunn.com NATHANIEL L. BACH (CA SBN 246518), pro hac vice nbach@gibsondunn.com 333 South Grand Avenue Los Angeles, CA 90071-3197 Telephone: (213) 229-7000 Facsimile: (213) 229-7520 ETHAN D. DETTMER (CA SBN 196046), pro hac vice edettmer@gibsondunn.com 555 Mission Street San Francisco, CA 94105 Telephone: (415) 393-8200 Facsimile: (415) 393-8306 ERWIN CHEMERINSKY (DC SBN 289330; IL SBN 3122596), pro hac vice echemerinsky@law.berkeley.edu University of California, Berkeley, School of Law *Affiliation for identification purposes only 215 Boalt Hall Berkeley, CA 94720-7200 Telephone: (510) 642-6483 24 25 26 27 28 Gibson, Dunn & Crutcher LLP DECLARATION OF N. BACH Case No. 2:17-cv-00218-RSM-JPD Counsel Listed on Pages I–II I Case 2:17-cv-00218-RSM Document 134-1 Filed 08/29/18 Page 3 of 54 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 LEAH M. LITMAN (DC SBN 1016310), pro hac vice llitman@law.uci.edu University of California, Irvine School of Law *Affiliation for identification purposes only 401 East Peltason Drive, Educ 1095 Irvine, CA 92697 Telephone: (949) 824-7722 LAURENCE H. TRIBE (MA SBN 126736; CA SBN 039441), pro hac vice larry@tribelaw.com Harvard Law School *Affiliation for identification purposes only 1575 Massachusetts Avenue Cambridge, MA 02138 Telephone: (617) 495-1767 ELIZABETH HAWKINS (SBN 43187) ehawkins@hawkinsimmigration.com Hawkins Law Group 17544 Midvale Avenue, Suite 301 Shoreline, WA 98133 Telephone: (206) 728-4220 Facsimile: (206) 973-5326 LUIS CORTES ROMERO (CA SBN 310852), pro hac vice lcortes@ia-lc.com Immigrant Advocacy & Litigation Center, PLLC 19309 68th Avenue South, Suite R-102 Kent, WA 98032 Telephone: (253) 872-4730 Facsimile: (253) 237-1591 NORTHWEST IMMIGRANT RIGHTS PROJECT MATT ADAMS (SBN 28287) matt@nwirp.org 615 Second Ave., Suite 400 Seattle, WA 98104 Telephone: (206) 957-8611 23 24 25 26 27 28 Gibson, Dunn & Crutcher LLP DECLARATION OF N. BACH Case No. 2:17-cv-00218-RSM-JPD Counsel Listed on Pages I–II II Case 2:17-cv-00218-RSM Document 134-1 Filed 08/29/18 Page 4 of 54 1 I, Nathaniel L. Bach, declare as follows: 2 1. I am an attorney admitted to practice law pro hac vice before this Court. I am an associate at 3 the law firm of Gibson, Dunn & Crutcher LLP, and I am one of the attorneys responsible for 4 the representation of Daniel Ramirez Medina (“Mr. Ramirez”) in the above-captioned action. 5 I submit this declaration in support of Plaintiff’s Motion to Complete the Administrative 6 Record. The following facts are within my personal knowledge and, if called and sworn as a 7 witness, I would testify competently to these facts. 8 9 10 11 2. Attached hereto as Exhibit A is a true and correct copy of Plaintiff’s First Set of Requests for Production, served on February 14, 2018. 3. Attached hereto as Exhibit B is a true and correct copy of Plaintiff’s First Set of Requests for Admission, served on February 14, 2018. 12 4. Attached hereto as Exhibit C is a true and correct copy of Plaintiff’s served notices for the 13 depositions of Matthew E. Hicks, Taula Peter, Lance Hernandez, Ernesto San Miguel, 14 Kathlyn Lawrence, and Michael Melendez, served on February 14, 2018. 15 5. Attached hereto as Exhibit D is a true and correct copy of an email chain between counsel for 16 Plaintiff and counsel for Defendants dated between February 14, 2018 and February 23, 2018. 17 18 6. Attached hereto as Exhibit E is a true and correct copy of an email chain between counsel for Plaintiff and counsel for Defendants dated between February 27, 2018 and March 15, 2018. 19 I declare under penalty of perjury under the laws of the United States and the State of Washington 20 that the foregoing is true and correct, and that I executed this Declaration on August 29, 2018, in Los 21 Angeles, California. 22 /s/ 23 Nathaniel L. Bach _ Nathaniel L. Bach 24 25 26 27 28 Gibson, Dunn & Crutcher LLP DECLARATION OF N. BACH Case No. 2:17-cv-00218-RSM-JPD Counsel Listed on Pages I–II 1 Case Document 134-1 Filed 08/29/18 Page 5 of 54 EXHIBIT A Case 2:17-cv-00218-RSM Document 134-1 Filed 08/29/18 Page 6 of 54 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 8 9 10 11 12 13 14 15 16 17 CASE NO. 2:17-CV-00218-RSM-JPD Daniel Ramirez Medina, Plaintiff, v. U.S. DEPARTMENT OF HOMELAND SECURITY; U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT; U.S. CITIZENSHIP AND IMMIGRATION SERVICES, Defendants. 18 19 20 21 22 23 24 25 26 27 28 Gibson, Dunn & Crutcher LLP Plaintiff’s First Set of Requests for Production Case No. 2:17-cv-00218-RSM-JPD PLAINTIFF’S FIRST SET OF REQUESTS FOR PRODUCTION Case 2:17-cv-00218-RSM Document 134-1 Filed 08/29/18 Page 7 of 54 1 Pursuant to the Rules 26 and 34 of the Federal Rules of Civil Procedure, Plaintiff Daniel 2 Ramirez Medina hereby requests that Defendants U.S. Department of Homeland Security, U.S. 3 Immigration and Customs Enforcement, and U.S. Citizenship and Immigration Services, respond to 4 the following Requests for Production fully, separately, in writing, and under oath, and produce the 5 following documents within thirty (30) days of service. 6 DEFINITIONS 7 For purposes of these Requests, the following words will have the meaning indicated below: 8 1. 9 “COMMUNICATED” means participated in or was a party to any conversation, discussion, letter, meeting, memoranda, note or other transfer of information, whether written or oral, 10 or by any other means, including, without limitation, telegram, telex, electronic mail, instant 11 message, text message or other electronic format electronically, and includes any document which 12 abstracts, digests, transcribes or records any such communications. 13 14 15 16 17 2. “DACA” means the Deferred Action for Childhood Arrivals program established on June 15, 2012, in a memorandum by then-Secretary of Homeland Security Janet Napolitano. 3. “DHS” means Defendant U.S. Department of Homeland Security, including all its various components, subdivisions, agencies, and other subordinate entities. 4. “DOCUMENT” means any record or communication (including any electronically 18 stored information) that would be considered a document within the meaning of Rule 34 of the 19 Federal Rules of Civil Procedure. 20 5. “ICE” means Defendant U.S. Immigration and Customs Enforcement. 21 6. “MEMBER OF THE MEDIA” means a reporter, journalist, editor, columnist, writer, 22 blogger, producer, fact-checker or other individual involved in writing, editing, and/or producing 23 news or opinion content for a newspaper, website (including blogs), television or radio station or 24 network, or wire service. 25 7. “PLAINTIFF” means Plaintiff Daniel Ramirez Medina. 26 8. “USCIS” means Defendant U.S. Citizenship and Immigration Services. 27 28 Gibson, Dunn & Crutcher LLP Plaintiff’s First Set of Requests for Production Case No. 2:17-cv-00218-RSM-JPD 2 Case 2:17-cv-00218-RSM Document 134-1 Filed 08/29/18 Page 8 of 54 1 9. “You” or “your” refers to DHS, including your personnel, be they affiliated with ICE, 2 USCIS, or any other DHS component, subdivision, agency, and other subordinate entity, and 3 including your contractors and their personnel. 4 10. The terms “and” and “or” shall be construed in the inclusive sense, either disjunctively 5 or conjunctively, as necessary to bring within the scope of this request any information that may 6 otherwise be construed to be outside its scope. The term “each” includes “every” and vice versa. 7 The terms “a,” “an,” and “any” include “all,” and “all” includes “a,” “an,” and “any.” 8 9 INSTRUCTIONS 1. In answering these Requests, you are required to furnish all information within the 10 scope of the Requests that is personally known or reasonably available to you, including information 11 in your possession, custody, or control, which shall include actual and constructive possession, 12 custody, or control. Any document which is not in your immediate physical possession, but in regard 13 to which you have a right to compel production from a third person, or which is otherwise subject to 14 the control of the person or entity in question, is within your “possession, custody, or control.” When 15 these Requests call for information or a document that was previously in your possession, custody or 16 control, but is not currently in your possession, custody, or control, you should identify its present 17 location and custodian if known, or otherwise its last known location and custodian. 18 19 20 21 22 2. In answering these Requests, you must make a diligent search of your records and of other papers and materials in your possession, custody, or control. 3. If any Request has subparts, answer each subpart separately and in full, and do not limit your answer to the Request as a whole. 4. If, in response to any Request or subpart to any Request, you assert that the answer 23 can be found, in whole or in part, in the answer to another Request, please state the number of the 24 Request or Requests where the answer may be found and, where applicable, the subpart(s) where the 25 answer may be found. Also, state whether the Request or Requests referenced as containing the 26 answer have the full and complete answer, and if not, supply the balance of the answer pursuant to 27 the Federal Rules of Civil Procedure and these Instructions. 28 Gibson, Dunn & Crutcher LLP Plaintiff’s First Set of Requests for Production Case No. 2:17-cv-00218-RSM-JPD 3 Case 2:17-cv-00218-RSM Document 134-1 Filed 08/29/18 Page 9 of 54 1 5. Requests that cannot be answered in full shall be answered as completely as possible, 2 and incomplete answers shall be accompanied by a specification of the reasons for the 3 incompleteness of the answer and of whatever knowledge, information, or belief is possessed with 4 respect to each unanswered or incompletely answered Request. Incomplete answers shall be 5 accompanied by a statement of the names, business and residential addresses, and telephone numbers 6 of the persons whom you believe to be in control of the complete information requested. 7 6. As to every Request that you fail to answer in whole or in part on the ground that the 8 information sought involves a document or oral communication that you contend to be privileged or 9 otherwise protected from disclosure, state in detail: (a) the date of the document, (b) the name of the 10 individuals who either authored, sent, and received the document, (c) a description of the document 11 sufficient to identify it without revealing the information for which the privilege is claimed, and 12 (d) the privilege or doctrine pursuant to which the document is being withheld or redacted. 13 7. Unless otherwise specified, each Request is not time-limited. 14 8. Each Request is to be continuing. If after serving an answer to any Request, you 15 obtain or become aware of any further information pertaining to that Request, you are requested to 16 serve a supplemental answer setting forth such information. 17 18 REQUESTS FOR PRODUCTION REQUEST FOR PRODUCTION NO. 1 19 All documents that you contend establish that Plaintiff presents or has presented an 20 “Egregious Public Safety Concern,” or poses or has posed a threat to national security or public 21 safety. 22 REQUEST FOR PRODUCTION NO. 2 23 24 25 26 27 28 Gibson, Dunn & Crutcher LLP All documents that you contend establish that Plaintiff is or has been affiliated with a gang. REQUEST FOR PRODUCTION NO. 3 All documents that you contend establish that Plaintiff’s tattoo is a gang tattoo. REQUEST FOR PRODUCTION NO. 4 All documents concerning Plaintiff’s arrest on February 10, 2017, including but not limited to all documents concerning: Plaintiff’s First Set of Requests for Production Case No. 2:17-cv-00218-RSM-JPD 4 Case 2:17-cv-00218-RSM Document 134-1 Filed 08/29/18 Page 10 of 54 1 a. The circumstances of Plaintiff’s arrest; 2 b. The individuals involved in Plaintiff’s arrest; 3 c. The reasons for Plaintiff’s arrest; 4 d. All background checks, biometric evaluations, and other evaluations, screenings, or 5 investigations of or relating to Plaintiff conducted in conjunction with Plaintiff’s arrest; 6 e. All interviews of Plaintiff or other individuals conducted in conjunction with Plaintiff’s arrest; 7 f. All documents, possessions, or other items that you confiscated from Plaintiff in conjunction 8 9 10 11 with his arrest. REQUEST FOR PRODUCTION NO. 5 All documents concerning Plaintiff’s February 10, 2017 to March 29, 2017 detention, including but not limited to all documents concerning: 12 a. The individuals involved in Plaintiff’s detention; 13 b. Plaintiff’s security classification and housing unit placement while in detention; 14 c. The reasons for Plaintiff’s detention; 15 d. The reasons for Defendants’ decision to qualify Plaintiff as a high security risk during his 16 17 18 19 20 21 22 23 24 detention; e. All background checks, biometric evaluations, and other evaluations, screenings, or investigations of or relating to Plaintiff conducted in conjunction with Plaintiff’s detention; f. All interviews of Plaintiff or other individuals conducted in conjunction with Plaintiff’s detention. REQUEST FOR PRODUCTION NO. 6 All documents concerning the rescission of Plaintiff’s DACA status. REQUEST FOR PRODUCTION NO. 7 All documents concerning any consultation between the officers who arrested or detained 25 Plaintiff and the Office of Chief Counsel regarding Plaintiff’s DACA eligibility or status. 26 REQUEST FOR PRODUCTION NO. 8 27 28 Gibson, Dunn & Crutcher LLP All documents concerning any communication between you and any member of the media concerning Plaintiff. Plaintiff’s First Set of Requests for Production Case No. 2:17-cv-00218-RSM-JPD 5 Case 2:17-cv-00218-RSM Document 134-1 Filed 08/29/18 Page 11 of 54 1 2 DATED: February 14, 2018 3 Seattle, Washington 4 5 6 7 8 9 10 11 12 13 14 15 /s/ Theodore J. Boutrous, Jr. GIBSON, DUNN & CRUTCHER LLP THEODORE J. BOUTROUS, JR. (CA SBN 132099), pro hac vice ETHAN D. DETTMER (CA SBN 196046), pro hac vice KATHERINE M. MARQUART (CA SBN 248043), pro hac vice NATHANIEL L. BACH (CA SBN 246518), pro hac vice JESSE S. GABRIEL (CA SBN 263137), pro hac vice /s/ Mark D. Rosenbaum PUBLIC COUNSEL MARK D. ROSENBAUM (CA SBN 59940), pro hac vice JUDY LONDON (CA SBN 149431), pro hac vice KATHRYN A. EIDMANN (CA SBN 268053), pro hac vice ANNE M. HUDSON-PRICE (CA SBN 295930), pro hac vice ELIZABETH HADAWAY (CA SBN 308800), pro hac vice /s/ Luis Cortes Romero BARRERA LEGAL GROUP, PLLC LUIS CORTES ROMERO (CA SBN 310852), pro hac vice JOHN C. BARRERA (SBN 47658), pro hac vice JOSE GARCIA (SBN 46518), pro hac vice Attorneys for Plaintiff 16 17 18 19 20 21 22 23 24 25 26 27 28 Gibson, Dunn & Crutcher LLP Plaintiff’s First Set of Requests for Production Case No. 2:17-cv-00218-RSM-JPD 6 Case 2:17-cv-00218-RSM Document 134-1 Filed 08/29/18 Page 12 of 54 1 2 3 4 5 6 7 8 9 10 CERTIFICATE OF SERVICE I hereby certify that on February 14, 2018, I served the foregoing document on the following by electronic mail and overnight UPS. Jeffrey S. Robins jeffrey.robins@usdoj.gov Aaron S. Goldsmith aaron.goldsmith@usdoj.gov U.S. Department of Justice Civil Division Office of Immigration Litigation District Court Section P.O. Box 868, Ben Franklin Station Washington, D.C. 20044 Attorneys for Defendants 11 /s/ Nathaniel L. Bach________ 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Gibson, Dunn & Crutcher LLP Plaintiff’s First Set of Requests for Production Case No. 2:17-cv-00218-RSM-JPD 7 Case Document 134-1 Filed 08/29/18 Page 13 of 54 EXHIBIT Case 2:17-cv-00218-RSM Document 134-1 Filed 08/29/18 Page 14 of 54 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 8 9 10 11 12 13 14 15 16 17 CASE NO. 2:17-CV-00218-RSM-JPD Daniel Ramirez Medina, Plaintiff, v. U.S. DEPARTMENT OF HOMELAND SECURITY; U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT; U.S. CITIZENSHIP AND IMMIGRATION SERVICES, Defendants. 18 19 20 21 22 23 24 25 26 27 28 Gibson, Dunn & Crutcher LLP Plaintiff’s First Set of Requests for Admission Case No. 2:17-cv-00218-RSM-JPD PLAINTIFF’S FIRST SET OF REQUESTS FOR ADMISSION Case 2:17-cv-00218-RSM Document 134-1 Filed 08/29/18 Page 15 of 54 1 Pursuant to the Rules 26 and 36 of the Federal Rules of Civil Procedure, Plaintiff Daniel 2 Ramirez Medina propounds the following Requests for Admission to Defendants U.S. Department of 3 Homeland Security, U.S. Immigration and Customs Enforcement, and U.S. Citizenship and 4 Immigration Services, each of which is to be answered fully, separately, in writing, and under oath, 5 within thirty (30) days of service. 6 DEFINITIONS 7 For purposes of these Requests, the following words will have the meaning indicated below: 8 1. 9 “COMMUNICATED” means participated in or was a party to any conversation, discussion, letter, meeting, memoranda, note or other transfer of information, whether written or oral, 10 or by any other means, including, without limitation, telegram, telex, electronic mail, instant 11 message, text message or other electronic format electronically, and includes any document which 12 abstracts, digests, transcribes or records any such communications. 13 14 15 16 17 2. “DACA” means the Deferred Action for Childhood Arrivals program established on June 15, 2012, in a memorandum by then-Secretary of Homeland Security Janet Napolitano. 3. “DHS” means Defendant U.S. Department of Homeland Security, including all its various components, subdivisions, agencies, and other subordinate entities. 4. “DOCUMENT” means any record or communication (including any electronically 18 stored information) that would be considered a document within the meaning of Rule 34 of the 19 Federal Rules of Civil Procedure. 20 5. “ICE” means Defendant U.S. Immigration and Customs Enforcement. 21 6. “MEMBER OF THE MEDIA” means a reporter, journalist, editor, columnist, writer, 22 blogger, producer, fact-checker or other individual involved in writing, editing, and/or producing 23 news or opinion content for a newspaper, website (including blogs), television or radio station or 24 network, or wire service. 25 7. “PLAINTIFF” means Plaintiff Daniel Ramirez Medina. 26 8. “USCIS” means Defendant U.S. Citizenship and Immigration Services. 27 28 Gibson, Dunn & Crutcher LLP Plaintiff’s First Set of Requests for Admission Case No. 2:17-cv-00218-RSM-JPD 2 Case 2:17-cv-00218-RSM Document 134-1 Filed 08/29/18 Page 16 of 54 1 9. “You” or “your” refers to DHS, including your personnel, be they affiliated with ICE, 2 USCIS, or any other DHS component, subdivision, agency, and other subordinate entity, and 3 including your contractors and their personnel. 4 10. The terms “and” and “or” shall be construed in the inclusive sense, either disjunctively 5 or conjunctively, as necessary to bring within the scope of this request any information that may 6 otherwise be construed to be outside its scope. The term “each” includes “every” and vice versa. 7 The terms “a,” “an,” and “any” include “all,” and “all” includes “a,” “an,” and “any.” 8 9 INSTRUCTIONS 1. The answer shall specifically admit or deny each Request or subpart thereof, or if any 10 Request or subpart thereof cannot be admitted or denied, set forth in detail the reasons for the 11 inability to answer that Request or subpart thereof, and the efforts made to supply a complete answer. 12 13 14 2. In a case where lack of information or knowledge is asserted as a reason for failure to admit or deny a Request or subpart thereof, state in detail the efforts made to supply an answer. 3. Pursuant to Rule 36(a) of the Federal Rules of Civil Procedure, the matters for which 15 admissions are requested will be deemed admitted unless a written and signed response is received 16 within thirty (30) days from the date of service hereof. 17 18 19 4. The wording of any Request does not constitute an admission of what the facts or evidence will ultimately show. 5. If, in response to any Request or subpart to any Request, you assert that the answer 20 can be found, in whole or in part, in the answer to another Request, please state the number of the 21 Request or Requests where the answer may be found and, where applicable, the subpart(s) where the 22 answer may be found. Also, state whether the Request or Requests referred to as containing the 23 answer have the full and complete answer, and if not, supply the balance of the answer pursuant to 24 the Federal Rules of Civil Procedure and these Instructions. 25 6. Requests that cannot be answered in full shall be answered as completely as possible, 26 and incomplete answers shall be accompanied by a specification of the reasons for the 27 incompleteness of the answer and of whatever knowledge, information, or belief is possessed with 28 respect to each unanswered or incompletely answered Request. Incomplete answers shall be Gibson, Dunn & Crutcher LLP Plaintiff’s First Set of Requests for Admission Case No. 2:17-cv-00218-RSM-JPD 3 Case 2:17-cv-00218-RSM Document 134-1 Filed 08/29/18 Page 17 of 54 1 accompanied by a statement of the names, business and residential addresses, and telephone numbers 2 of the persons whom you believe to be in control of the complete information requested. 3 7. Each Request is to be continuing. If after serving an answer to any Request, you 4 obtain or become aware of any further information pertaining to that Request, you are requested to 5 serve a supplemental answer setting forth such information. 6 7 8 REQUESTS FOR ADMISSION REQUEST FOR ADMISSION NO. 1 Admit that, in order to apply for DACA, an applicant must submit extensive documentation 9 establishing that he or she meets the criteria and undergo a thorough background check, in which 10 DHS reviews the applicant’s biometric and biographic information against a variety of databases 11 maintained by DHS and other federal government agencies. 12 REQUEST FOR ADMISSION NO. 2 13 Admit that individuals granted deferred action under the DACA program have been 14 determined by the government not to pose a threat to national security or public safety. 15 REQUEST FOR ADMISSION NO. 3 16 17 18 Admit that Plaintiff applied for and received DACA status in 2014. REQUEST FOR ADMISSION NO. 4 Admit that, in 2015, USCIS conducted an additional screening of all individuals granted 19 deferred action under DACA—including Plaintiff—to identify records that contained information 20 indicating known or suspected gang association. 21 REQUEST FOR ADMISSION NO. 5 22 Admit that, as a result of the additional screening in 2015, USCIS found no records that 23 contained information indicating that Plaintiff had any known or suspected gang association. 24 REQUEST FOR ADMISSION NO. 6 25 Admit that Plaintiff reapplied for and received renewed DACA status in 2016. 26 27 28 Gibson, Dunn & Crutcher LLP Plaintiff’s First Set of Requests for Admission Case No. 2:17-cv-00218-RSM-JPD 4 Case 2:17-cv-00218-RSM Document 134-1 Filed 08/29/18 Page 18 of 54 1 2 3 REQUEST FOR ADMISSION NO. 7 Admit that DHS has confirmed that Plaintiff does not pose a threat to national security or public safety on three separate occasions: 4 a. First, in 2014, when Plaintiff applied for and received DACA status; 5 b. Second, in 2015, when USCIS conducted an additional screening of all DACA 6 beneficiaries and found no records that contained information indicating that Plaintiff 7 had any known or suspected gang association; 8 9 10 c. Third, in 2016, when Plaintiff reapplied for and received renewed DACA status. REQUEST FOR ADMISSION NO. 8 Admit that individuals who are granted deferred action pursuant to the DACA program are 11 eligible to receive certain benefits—including, work authorization, public benefits such as Social 12 Security, retirement, and disability (and, in some states, including Washington, unemployment 13 insurance, financial aid, and food assistance), and the ability to travel abroad under certain 14 circumstances—that would not otherwise be available to them. 15 REQUEST FOR ADMISSION NO. 9 16 Admit that Plaintiff received certain benefits as a DACA recipient, including work 17 authorization, that would not otherwise have been available to him. 18 REQUEST FOR ADMISSION NO. 10 19 Admit that Plaintiff was promised by the federal government that he would be protected from 20 arrest or detention based solely on his immigration status during the time period that his deferred 21 action was in effect. 22 REQUEST FOR ADMISSION NO. 11 23 Admit that on February 10, 2017, Plaintiff was arrested based solely on the fact that he was 24 born in Mexico. 25 REQUEST FOR ADMISSION NO. 12 26 27 Admit that beginning on February 10, 2017, Plaintiff was detained for 47 days based solely on the fact that he was born in Mexico. 28 Gibson, Dunn & Crutcher LLP Plaintiff’s First Set of Requests for Admission Case No. 2:17-cv-00218-RSM-JPD 5 Case 2:17-cv-00218-RSM Document 134-1 Filed 08/29/18 Page 19 of 54 1 REQUEST FOR ADMISSION NO. 13 2 Admit that on February 10, 2017, Plaintiff had DACA status, was authorized to work in the 3 United States, and had no criminal history. 4 REQUEST FOR ADMISSION NO. 14 5 Admit that on February 10, 2017, ICE agents confiscated Plaintiff’s work permit, which was 6 marked with a “C33” designation that identified him as a DACA recipient with work authorization. 7 REQUEST FOR ADMISSION NO. 15 8 Admit that on February 10, 2017, ICE agents fingerprinted Plaintiff and used this information 9 to access his records, which revealed that Plaintiff had no criminal history, had twice been granted 10 DACA status, had DACA status currently in effect, and possessed valid employment authorization 11 through May 4, 2018. 12 REQUEST FOR ADMISSION NO. 16 13 Admit that the ICE Officers who arrested and detained Plaintiff on February 10, 2017, were 14 aware that Plaintiff had DACA status, was authorized to work in the United States, and had no 15 criminal history. 16 REQUEST FOR ADMISSION NO. 17 17 Admit that Plaintiff was not affiliated with a gang on February 10, 2017, at any point before 18 that date, or at any point thereafter. 19 REQUEST FOR ADMISSION NO. 18 20 Admit that you have access to both local, state, and national databases regarding gang 21 affiliation. 22 REQUEST FOR ADMISSION NO. 19 23 Admit that you have no information to establish that Plaintiff is or ever was affiliated with a 24 gang. 25 REQUEST FOR ADMISSION NO. 20 26 27 28 Gibson, Dunn & Crutcher LLP Admit that you have access to both local, state, and national databases regarding gang tattoos. REQUEST FOR ADMISSION NO. 21 Admit that you have no information to establish that Plaintiff’s tattoo is affiliated with a gang. Plaintiff’s First Set of Requests for Admission Case No. 2:17-cv-00218-RSM-JPD 6 Case 2:17-cv-00218-RSM Document 134-1 Filed 08/29/18 Page 20 of 54 1 2 REQUEST FOR ADMISSION NO. 22 Admit that, prior to revoking an individual’s DACA status, you are required to provide a 3 “Notice of Intent to Terminate” which thoroughly explains the grounds for the proposed termination 4 of DACA, unless there is an “Egregious Public Safety Concern.” 5 REQUEST FOR ADMISSION NO. 23 6 Admit that individuals served with a “Notice of Intent to Terminate” DACA status are to be 7 afforded “33 days to file a brief or statement contesting the grounds cited in the Notice of Intent to 8 Terminate” prior to termination of their DACA status, unless there is an “Egregious Public Safety 9 Concern.” 10 11 REQUEST FOR ADMISSION NO. 24 Admit that Plaintiff posed no “Egregious Public Safety Concern” on February 10, 2017, or at 12 any time thereafter. 13 REQUEST FOR ADMISSION NO. 25 14 Admit that you did not provide Plaintiff with a Notice of Intent to Terminate prior to revoking 15 his DACA status. 16 REQUEST FOR ADMISSION NO. 26 17 Admit that Plaintiff was not afforded “33 days to file a brief or statement” prior to termination 18 of his DACA status. 19 REQUEST FOR ADMISSION NO. 27 20 Admit that, pursuant to ICE’s prosecutorial discretion checklist, when ICE agents consider 21 whether to arrest or remove an individual who may be eligible for DACA, if the only basis for 22 ineligibility is an alleged threat to national security or public safety, the ICE agents are required to 23 consult with the ICE Office of Chief Counsel. 24 REQUEST FOR ADMISSION NO. 28 25 Admit that the ICE agents who arrested Plaintiff on February 10, 2017 failed to consult with 26 the Office of Chief Counsel for further review, as is required where a purported threat to national 27 security or public safety is the reason for DACA ineligibility. 28 Gibson, Dunn & Crutcher LLP Plaintiff’s First Set of Requests for Admission Case No. 2:17-cv-00218-RSM-JPD 7 Case 2:17-cv-00218-RSM Document 134-1 Filed 08/29/18 Page 21 of 54 1 2 REQUEST FOR ADMISSION NO. 29 Admit that Plaintiff posed no threat to national security or public safety on February 10, 2017, 3 or at any time thereafter. 4 REQUEST FOR ADMISSION NO. 30 5 6 7 Admit that you told members of the media that Plaintiff is affiliated with a gang. REQUEST FOR ADMISSION NO. 31 Admit that when Plaintiff was put in detention, he was labeled forced to wear an orange 8 jumpsuit signifying a higher security classification, and housed with known gang members. 9 REQUEST FOR ADMISSION NO. 32 10 Admit that when Plaintiff was put in detention, you had no support for the assertion that 11 Plaintiff was affiliated with a gang or was otherwise a public safety risk. 12 DATED: February 14, 2018 13 Seattle, Washington 14 15 16 17 18 19 20 21 22 23 24 25 /s/ Theodore J. Boutrous, Jr. GIBSON, DUNN & CRUTCHER LLP THEODORE J. BOUTROUS, JR. (CA SBN 132099), pro hac vice ETHAN D. DETTMER (CA SBN 196046), pro hac vice KATHERINE M. MARQUART (CA SBN 248043), pro hac vice NATHANIEL L. BACH (CA SBN 246518), pro hac vice JESSE S. GABRIEL (CA SBN 263137), pro hac vice /s/ Mark D. Rosenbaum PUBLIC COUNSEL MARK D. ROSENBAUM (CA SBN 59940), pro hac vice JUDY LONDON (CA SBN 149431), pro hac vice KATHRYN A. EIDMANN (CA SBN 268053), pro hac vice ANNE M. HUDSON-PRICE (CA SBN 295930), pro hac vice ELIZABETH HADAWAY (CA SBN 308800), pro hac vice /s/ Luis Cortes Romero BARRERA LEGAL GROUP, PLLC LUIS CORTES ROMERO (CA SBN 310852), pro hac vice JOHN C. BARRERA (SBN 47658), pro hac vice JOSE GARCIA (SBN 46518), pro hac vice Attorneys for Plaintiff 26 27 28 Gibson, Dunn & Crutcher LLP Plaintiff’s First Set of Requests for Admission Case No. 2:17-cv-00218-RSM-JPD 8 Case 2:17-cv-00218-RSM Document 134-1 Filed 08/29/18 Page 22 of 54 1 2 3 4 5 6 7 8 9 10 CERTIFICATE OF SERVICE I hereby certify that on February 14, 2018, I served the foregoing document on the following by electronic mail and overnight UPS. Jeffrey S. Robins jeffrey.robins@usdoj.gov Aaron S. Goldsmith aaron.goldsmith@usdoj.gov U.S. Department of Justice Civil Division Office of Immigration Litigation District Court Section P.O. Box 868, Ben Franklin Station Washington, D.C. 20044 Attorneys for Defendants 11 /s/ Nathaniel L. Bach________ 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Gibson, Dunn & Crutcher LLP Plaintiff’s First Set of Requests for Admission Case No. 2:17-cv-00218-RSM-JPD 9 Case Document 134-1 Filed 08/29/18 Page 23 of 54 EXHIBIT Case 2:17-cv-00218-RSM Document 134-1 Filed 08/29/18 Page 24 of 54 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 8 9 10 11 12 CASE NO. 2:17-CV-00218-RSM-JPD Daniel Ramirez Medina, Plaintiff, 13 14 15 16 17 18 v. U.S. DEPARTMENT OF HOMELAND SECURITY; U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT; U.S. CITIZENSHIP AND IMMIGRATION SERVICES, Defendants. 19 20 21 22 23 24 25 26 27 28 Gibson, Dunn & Crutcher LLP NOTICE OF DEPOSITION OF ERNESTO SAN MIGUEL Case No. 2:17-cv-00218-RSM-JPD NOTICE OF DEPOSITION OF ERNESTO SAN MIGUEL Case 2:17-cv-00218-RSM Document 134-1 Filed 08/29/18 Page 25 of 54 1 PLEASE TAKE NOTICE that pursuant to Rule 30(b)(1) of the Federal Rules of Civil 2 Procedure, Plaintiff Daniel Ramirez Medina, by his undersigned attorneys, will take the deposition 3 upon oral examination of Ernesto San Miguel. The deposition will take place at 615 Second Ave., 4 Suite 400, Seattle, Washington 98104, commencing on March 1, 2018, at 9:30 a.m. 5 The deposition will take place before a court reporter or other persons authorized to 6 administer oaths, and will be conducted from day to day until completed, in accordance with the 7 Federal Rules of Civil Procedure and applicable Orders of this Court. The deposition will be 8 recorded stenographically and will also be recorded by videotape and audiotape. 9 10 11 DATED: February 14, 2018 Seattle, Washington 12 Respectfully submitted, 13 /s/ Theodore J. Boutrous, Jr. GIBSON, DUNN & CRUTCHER LLP THEODORE J. BOUTROUS, JR. (CA SBN 132099), pro hac vice ETHAN D. DETTMER (CA SBN 196046), pro hac vice KATHERINE M. MARQUART (CA SBN 248043), pro hac vice NATHANIEL L. BACH (CA SBN 246518), pro hac vice JESSE S. GABRIEL (CA SBN 263137), pro hac vice 14 15 16 17 18 19 20 21 22 23 /s/ Mark D. Rosenbaum PUBLIC COUNSEL MARK D. ROSENBAUM (CA SBN 59940), pro hac vice JUDY LONDON (CA SBN 149431), pro hac vice KATHRYN A. EIDMANN (CA SBN 268053), pro hac vice ANNE M. HUDSON-PRICE (CA SBN 295930), pro hac vice ELIZABETH HADAWAY (CA SBN 308800), pro hac vice /s/ Luis Cortes Romero BARRERA LEGAL GROUP, PLLC LUIS CORTES ROMERO (CA SBN 310852), pro hac vice JOHN C. BARRERA (SBN 47658), pro hac vice JOSE GARCIA (SBN 46518), pro hac vice 24 25 Attorneys for Plaintiff 26 27 28 Gibson, Dunn & Crutcher LLP NOTICE OF DEPOSITION OF ERNESTO SAN MIGUEL Case No. 2:17-cv-00218-RSM-JPD 1 Case 2:17-cv-00218-RSM Document 134-1 Filed 08/29/18 Page 26 of 54 1 2 3 4 5 6 7 8 9 10 CERTIFICATE OF SERVICE I hereby certify that on February 14, 2018, I served the foregoing document on the following by electronic mail and overnight UPS. Jeffrey S. Robins jeffrey.robins@usdoj.gov Aaron S. Goldsmith aaron.goldsmith@usdoj.gov U.S. Department of Justice Civil Division Office of Immigration Litigation District Court Section P.O. Box 868, Ben Franklin Station Washington, D.C. 20044 Attorneys for Defendants 11 /s/ Nathaniel L. Bach________ 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Gibson, Dunn & Crutcher LLP NOTICE OF DEPOSITION OF ERNESTO SAN MIGUEL Case No. 2:17-cv-00218-RSM-JPD 2 Case 2:17-cv-00218-RSM Document 134-1 Filed 08/29/18 Page 27 of 54 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 8 9 10 11 12 CASE NO. 2:17-CV-00218-RSM-JPD Daniel Ramirez Medina, Plaintiff, 13 14 15 16 17 18 v. U.S. DEPARTMENT OF HOMELAND SECURITY; U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT; U.S. CITIZENSHIP AND IMMIGRATION SERVICES, Defendants. 19 20 21 22 23 24 25 26 27 28 Gibson, Dunn & Crutcher LLP NOTICE OF DEPOSITION OF KATHLYN LAWRENCE Case No. 2:17-cv-00218-RSM-JPD NOTICE OF DEPOSITION OF KATHLYN LAWRENCE Case 2:17-cv-00218-RSM Document 134-1 Filed 08/29/18 Page 28 of 54 1 PLEASE TAKE NOTICE that pursuant to Rule 30(b)(1) of the Federal Rules of Civil 2 Procedure, Plaintiff Daniel Ramirez Medina, by his undersigned attorneys, will take the deposition 3 upon oral examination of Kathlyn Lawrence. The deposition will take place at 615 Second Ave., 4 Suite 400, Seattle, Washington 98104, commencing on March 2, 2018, at 9:30 a.m. 5 The deposition will take place before a court reporter or other persons authorized to 6 administer oaths, and will be conducted from day to day until completed, in accordance with the 7 Federal Rules of Civil Procedure and applicable Orders of this Court. The deposition will be 8 recorded stenographically and will also be recorded by videotape and audiotape. 9 10 11 DATED: February 14, 2018 Seattle, Washington 12 Respectfully submitted, 13 /s/ Theodore J. Boutrous, Jr. GIBSON, DUNN & CRUTCHER LLP THEODORE J. BOUTROUS, JR. (CA SBN 132099), pro hac vice ETHAN D. DETTMER (CA SBN 196046), pro hac vice KATHERINE M. MARQUART (CA SBN 248043), pro hac vice NATHANIEL L. BACH (CA SBN 246518), pro hac vice JESSE S. GABRIEL (CA SBN 263137), pro hac vice 14 15 16 17 18 19 20 21 22 23 /s/ Mark D. Rosenbaum PUBLIC COUNSEL MARK D. ROSENBAUM (CA SBN 59940), pro hac vice JUDY LONDON (CA SBN 149431), pro hac vice KATHRYN A. EIDMANN (CA SBN 268053), pro hac vice ANNE M. HUDSON-PRICE (CA SBN 295930), pro hac vice ELIZABETH HADAWAY (CA SBN 308800), pro hac vice /s/ Luis Cortes Romero BARRERA LEGAL GROUP, PLLC LUIS CORTES ROMERO (CA SBN 310852), pro hac vice JOHN C. BARRERA (SBN 47658), pro hac vice JOSE GARCIA (SBN 46518), pro hac vice 24 25 Attorneys for Plaintiff 26 27 28 Gibson, Dunn & Crutcher LLP NOTICE OF DEPOSITION OF KATHLYN LAWRENCE Case No. 2:17-cv-00218-RSM-JPD 1 Case 2:17-cv-00218-RSM Document 134-1 Filed 08/29/18 Page 29 of 54 1 2 3 4 5 6 7 8 9 10 CERTIFICATE OF SERVICE I hereby certify that on February 14, 2018, I served the foregoing document on the following by electronic mail and overnight UPS. Jeffrey S. Robins jeffrey.robins@usdoj.gov Aaron S. Goldsmith aaron.goldsmith@usdoj.gov U.S. Department of Justice Civil Division Office of Immigration Litigation District Court Section P.O. Box 868, Ben Franklin Station Washington, D.C. 20044 Attorneys for Defendants 11 /s/ Nathaniel L. Bach________ 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Gibson, Dunn & Crutcher LLP NOTICE OF DEPOSITION OF KATHLYN LAWRENCE Case No. 2:17-cv-00218-RSM-JPD 2 Case 2:17-cv-00218-RSM Document 134-1 Filed 08/29/18 Page 30 of 54 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 8 9 10 11 12 CASE NO. 2:17-CV-00218-RSM-JPD Daniel Ramirez Medina, Plaintiff, 13 14 15 16 17 18 v. U.S. DEPARTMENT OF HOMELAND SECURITY; U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT; U.S. CITIZENSHIP AND IMMIGRATION SERVICES, Defendants. 19 20 21 22 23 24 25 26 27 28 Gibson, Dunn & Crutcher LLP NOTICE OF DEPOSITION OF LANCE HERNANDEZ Case No. 2:17-cv-00218-RSM-JPD NOTICE OF DEPOSITION OF LANCE HERNANDEZ Case 2:17-cv-00218-RSM Document 134-1 Filed 08/29/18 Page 31 of 54 1 PLEASE TAKE NOTICE that pursuant to Rule 30(b)(1) of the Federal Rules of Civil 2 Procedure, Plaintiff Daniel Ramirez Medina, by his undersigned attorneys, will take the deposition 3 upon oral examination of Lance Hernandez. The deposition will take place at 615 Second Ave., Suite 4 400, Seattle, Washington 98104, commencing on February 28, 2018, at 9:30 a.m. 5 The deposition will take place before a court reporter or other persons authorized to 6 administer oaths, and will be conducted from day to day until completed, in accordance with the 7 Federal Rules of Civil Procedure and applicable Orders of this Court. The deposition will be 8 recorded stenographically and will also be recorded by videotape and audiotape. 9 10 11 DATED: February 14, 2018 Seattle, Washington 12 Respectfully submitted, 13 /s/ Theodore J. Boutrous, Jr. GIBSON, DUNN & CRUTCHER LLP THEODORE J. BOUTROUS, JR. (CA SBN 132099), pro hac vice ETHAN D. DETTMER (CA SBN 196046), pro hac vice KATHERINE M. MARQUART (CA SBN 248043), pro hac vice NATHANIEL L. BACH (CA SBN 246518), pro hac vice JESSE S. GABRIEL (CA SBN 263137), pro hac vice 14 15 16 17 18 19 20 21 22 23 /s/ Mark D. Rosenbaum PUBLIC COUNSEL MARK D. ROSENBAUM (CA SBN 59940), pro hac vice JUDY LONDON (CA SBN 149431), pro hac vice KATHRYN A. EIDMANN (CA SBN 268053), pro hac vice ANNE M. HUDSON-PRICE (CA SBN 295930), pro hac vice ELIZABETH HADAWAY (CA SBN 308800), pro hac vice /s/ Luis Cortes Romero BARRERA LEGAL GROUP, PLLC LUIS CORTES ROMERO (CA SBN 310852), pro hac vice JOHN C. BARRERA (SBN 47658), pro hac vice JOSE GARCIA (SBN 46518), pro hac vice 24 25 Attorneys for Plaintiff 26 27 28 Gibson, Dunn & Crutcher LLP NOTICE OF DEPOSITION OF LANCE HERNANDEZ Case No. 2:17-cv-00218-RSM-JPD 1 Case 2:17-cv-00218-RSM Document 134-1 Filed 08/29/18 Page 32 of 54 1 2 3 4 5 6 7 8 9 10 CERTIFICATE OF SERVICE I hereby certify that on February 14, 2018, I served the foregoing document on the following by electronic mail and overnight UPS. Jeffrey S. Robins jeffrey.robins@usdoj.gov Aaron S. Goldsmith aaron.goldsmith@usdoj.gov U.S. Department of Justice Civil Division Office of Immigration Litigation District Court Section P.O. Box 868, Ben Franklin Station Washington, D.C. 20044 Attorneys for Defendants 11 /s/ Nathaniel L. Bach________ 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Gibson, Dunn & Crutcher LLP NOTICE OF DEPOSITION OF LANCE HERNANDEZ Case No. 2:17-cv-00218-RSM-JPD 2 Case 2:17-cv-00218-RSM Document 134-1 Filed 08/29/18 Page 33 of 54 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 8 9 10 11 12 CASE NO. 2:17-CV-00218-RSM-JPD Daniel Ramirez Medina, Plaintiff, 13 14 15 16 17 18 v. U.S. DEPARTMENT OF HOMELAND SECURITY; U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT; U.S. CITIZENSHIP AND IMMIGRATION SERVICES, Defendants. 19 20 21 22 23 24 25 26 27 28 Gibson, Dunn & Crutcher LLP NOTICE OF DEPOSITION OF MATTHEW E. HICKS Case No. 2:17-cv-00218-RSM-JPD NOTICE OF DEPOSITION OF MATTHEW E. HICKS Case 2:17-cv-00218-RSM Document 134-1 Filed 08/29/18 Page 34 of 54 1 PLEASE TAKE NOTICE that pursuant to Rule 30(b)(1) of the Federal Rules of Civil 2 Procedure, Plaintiff Daniel Ramirez Medina, by his undersigned attorneys, will take the deposition 3 upon oral examination of Matthew E. Hicks. The deposition will take place at 615 Second Ave., Suite 4 400, Seattle, Washington 98104, commencing on February 26, 2018, at 9:30 a.m. 5 The deposition will take place before a court reporter or other persons authorized to 6 administer oaths, and will be conducted from day to day until completed, in accordance with the 7 Federal Rules of Civil Procedure and applicable Orders of this Court. The deposition will be 8 recorded stenographically and will also be recorded by videotape and audiotape. 9 10 11 DATED: February 14, 2018 Seattle, Washington 12 Respectfully submitted, 13 /s/ Theodore J. Boutrous, Jr. GIBSON, DUNN & CRUTCHER LLP THEODORE J. BOUTROUS, JR. (CA SBN 132099), pro hac vice ETHAN D. DETTMER (CA SBN 196046), pro hac vice KATHERINE M. MARQUART (CA SBN 248043), pro hac vice NATHANIEL L. BACH (CA SBN 246518), pro hac vice JESSE S. GABRIEL (CA SBN 263137), pro hac vice 14 15 16 17 18 19 20 21 22 23 /s/ Mark D. Rosenbaum PUBLIC COUNSEL MARK D. ROSENBAUM (CA SBN 59940), pro hac vice JUDY LONDON (CA SBN 149431), pro hac vice KATHRYN A. EIDMANN (CA SBN 268053), pro hac vice ANNE M. HUDSON-PRICE (CA SBN 295930), pro hac vice ELIZABETH HADAWAY (CA SBN 308800), pro hac vice /s/ Luis Cortes Romero BARRERA LEGAL GROUP, PLLC LUIS CORTES ROMERO (CA SBN 310852), pro hac vice JOHN C. BARRERA (SBN 47658), pro hac vice JOSE GARCIA (SBN 46518), pro hac vice 24 25 Attorneys for Plaintiff 26 27 28 Gibson, Dunn & Crutcher LLP NOTICE OF DEPOSITION OF MATTHEW E. HICKS Case No. 2:17-cv-00218-RSM-JPD 1 Case 2:17-cv-00218-RSM Document 134-1 Filed 08/29/18 Page 35 of 54 1 2 3 4 5 6 7 8 9 10 CERTIFICATE OF SERVICE I hereby certify that on February 14, 2018, I served the foregoing document on the following by electronic mail and overnight UPS. Jeffrey S. Robins jeffrey.robins@usdoj.gov Aaron S. Goldsmith aaron.goldsmith@usdoj.gov U.S. Department of Justice Civil Division Office of Immigration Litigation District Court Section P.O. Box 868, Ben Franklin Station Washington, D.C. 20044 Attorneys for Defendants 11 /s/ Nathaniel L. Bach________ 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Gibson, Dunn & Crutcher LLP NOTICE OF DEPOSITION OF MATTHEW E. HICKS Case No. 2:17-cv-00218-RSM-JPD 2 Case 2:17-cv-00218-RSM Document 134-1 Filed 08/29/18 Page 36 of 54 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 8 9 10 11 12 CASE NO. 2:17-CV-00218-RSM-JPD Daniel Ramirez Medina, Plaintiff, 13 14 15 16 17 18 v. U.S. DEPARTMENT OF HOMELAND SECURITY; U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT; U.S. CITIZENSHIP AND IMMIGRATION SERVICES, Defendants. 19 20 21 22 23 24 25 26 27 28 Gibson, Dunn & Crutcher LLP NOTICE OF DEPOSITION OF MICHAEL MELENDEZ Case No. 2:17-cv-00218-RSM-JPD NOTICE OF DEPOSITION OF MICHAEL MELENDEZ Case 2:17-cv-00218-RSM Document 134-1 Filed 08/29/18 Page 37 of 54 1 PLEASE TAKE NOTICE that pursuant to Rule 30(b)(1) of the Federal Rules of Civil 2 Procedure, Plaintiff Daniel Ramirez Medina, by his undersigned attorneys, will take the deposition 3 upon oral examination of Michael Melendez. The deposition will take place at 615 Second Ave., 4 Suite 400, Seattle, Washington 98104, commencing on March 5, 2018, at 9:30 a.m. 5 The deposition will take place before a court reporter or other persons authorized to 6 administer oaths, and will be conducted from day to day until completed, in accordance with the 7 Federal Rules of Civil Procedure and applicable Orders of this Court. The deposition will be 8 recorded stenographically and will also be recorded by videotape and audiotape. 9 10 11 DATED: February 14, 2018 Seattle, Washington 12 Respectfully submitted, 13 /s/ Theodore J. Boutrous, Jr. GIBSON, DUNN & CRUTCHER LLP THEODORE J. BOUTROUS, JR. (CA SBN 132099), pro hac vice ETHAN D. DETTMER (CA SBN 196046), pro hac vice KATHERINE M. MARQUART (CA SBN 248043), pro hac vice NATHANIEL L. BACH (CA SBN 246518), pro hac vice JESSE S. GABRIEL (CA SBN 263137), pro hac vice 14 15 16 17 18 19 20 21 22 23 /s/ Mark D. Rosenbaum PUBLIC COUNSEL MARK D. ROSENBAUM (CA SBN 59940), pro hac vice JUDY LONDON (CA SBN 149431), pro hac vice KATHRYN A. EIDMANN (CA SBN 268053), pro hac vice ANNE M. HUDSON-PRICE (CA SBN 295930), pro hac vice ELIZABETH HADAWAY (CA SBN 308800), pro hac vice /s/ Luis Cortes Romero BARRERA LEGAL GROUP, PLLC LUIS CORTES ROMERO (CA SBN 310852), pro hac vice JOHN C. BARRERA (SBN 47658), pro hac vice JOSE GARCIA (SBN 46518), pro hac vice 24 25 Attorneys for Plaintiff 26 27 28 Gibson, Dunn & Crutcher LLP NOTICE OF DEPOSITION OF MICHAEL MELENDEZ Case No. 2:17-cv-00218-RSM-JPD 1 Case 2:17-cv-00218-RSM Document 134-1 Filed 08/29/18 Page 38 of 54 1 2 3 4 5 6 7 8 9 10 CERTIFICATE OF SERVICE I hereby certify that on February 14, 2018, I served the foregoing document on the following by electronic mail and overnight UPS. Jeffrey S. Robins jeffrey.robins@usdoj.gov Aaron S. Goldsmith aaron.goldsmith@usdoj.gov U.S. Department of Justice Civil Division Office of Immigration Litigation District Court Section P.O. Box 868, Ben Franklin Station Washington, D.C. 20044 Attorneys for Defendants 11 /s/ Nathaniel L. Bach________ 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Gibson, Dunn & Crutcher LLP NOTICE OF DEPOSITION OF MICHAEL MELENDEZ Case No. 2:17-cv-00218-RSM-JPD 2 Case 2:17-cv-00218-RSM Document 134-1 Filed 08/29/18 Page 39 of 54 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 8 9 10 11 12 CASE NO. 2:17-CV-00218-RSM-JPD Daniel Ramirez Medina, Plaintiff, 13 14 15 16 17 18 v. U.S. DEPARTMENT OF HOMELAND SECURITY; U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT; U.S. CITIZENSHIP AND IMMIGRATION SERVICES, Defendants. 19 20 21 22 23 24 25 26 27 28 Gibson, Dunn & Crutcher LLP NOTICE OF DEPOSITION OF TAULA PETER Case No. 2:17-cv-00218-RSM-JPD NOTICE OF DEPOSITION OF TAULA PETER Case 2:17-cv-00218-RSM Document 134-1 Filed 08/29/18 Page 40 of 54 1 PLEASE TAKE NOTICE that pursuant to Rule 30(b)(1) of the Federal Rules of Civil 2 Procedure, Plaintiff Daniel Ramirez Medina, by his undersigned attorneys, will take the deposition 3 upon oral examination of Taula Peter. The deposition will take place at 615 Second Ave., Suite 400, 4 Seattle, Washington 98104, commencing on February 27, 2018, at 9:30 a.m. 5 The deposition will take place before a court reporter or other persons authorized to 6 administer oaths, and will be conducted from day to day until completed, in accordance with the 7 Federal Rules of Civil Procedure and applicable Orders of this Court. The deposition will be 8 recorded stenographically and will also be recorded by videotape and audiotape. 9 10 11 DATED: February 14, 2018 Seattle, Washington 12 Respectfully submitted, 13 /s/ Theodore J. Boutrous, Jr. GIBSON, DUNN & CRUTCHER LLP THEODORE J. BOUTROUS, JR. (CA SBN 132099), pro hac vice ETHAN D. DETTMER (CA SBN 196046), pro hac vice KATHERINE M. MARQUART (CA SBN 248043), pro hac vice NATHANIEL L. BACH (CA SBN 246518), pro hac vice JESSE S. GABRIEL (CA SBN 263137), pro hac vice 14 15 16 17 18 19 20 21 22 23 /s/ Mark D. Rosenbaum PUBLIC COUNSEL MARK D. ROSENBAUM (CA SBN 59940), pro hac vice JUDY LONDON (CA SBN 149431), pro hac vice KATHRYN A. EIDMANN (CA SBN 268053), pro hac vice ANNE M. HUDSON-PRICE (CA SBN 295930), pro hac vice ELIZABETH HADAWAY (CA SBN 308800), pro hac vice /s/ Luis Cortes Romero BARRERA LEGAL GROUP, PLLC LUIS CORTES ROMERO (CA SBN 310852), pro hac vice JOHN C. BARRERA (SBN 47658), pro hac vice JOSE GARCIA (SBN 46518), pro hac vice 24 25 Attorneys for Plaintiff 26 27 28 Gibson, Dunn & Crutcher LLP NOTICE OF DEPOSITION OF TAULA PETER Case No. 2:17-cv-00218-RSM-JPD 1 Case 2:17-cv-00218-RSM Document 134-1 Filed 08/29/18 Page 41 of 54 1 2 3 4 5 6 7 8 9 10 CERTIFICATE OF SERVICE I hereby certify that on February 14, 2018, I served the foregoing document on the following by electronic mail and overnight UPS. Jeffrey S. Robins jeffrey.robins@usdoj.gov Aaron S. Goldsmith aaron.goldsmith@usdoj.gov U.S. Department of Justice Civil Division Office of Immigration Litigation District Court Section P.O. Box 868, Ben Franklin Station Washington, D.C. 20044 Attorneys for Defendants 11 /s/ Nathaniel L. Bach________ 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Gibson, Dunn & Crutcher LLP NOTICE OF DEPOSITION OF TAULA PETER Case No. 2:17-cv-00218-RSM-JPD 2 Case Document 134-1 Filed 08/29/18 Page 42 of 54 EXHIBIT Case 2:17-cv-00218-RSM Document 134-1 Filed 08/29/18 Page 43 of 54 From: To: Cc: Subject: Date: Bach, Nathaniel L. Robins, Jeffrey (CIV) Goldsmith, Aaron (CIV); Dettmer, Ethan; Mark Rosenbaum; Luis Cortes (lcortes@barreralegal.com); Marquart, Katie; Walker, James (CIV) RE: Ramirez Medina v. U.S. DHS, et al., Case No. 2:17-CV-00218 (W.D. Wa.) Friday, February 23, 2018 5:46:02 PM Jeff, Thanks for your email. As for the briefing schedule, we agree that a submission pursuant to LR 37(a) (2) is appropriate, and propose delivering to you on or about March 14 our submission setting forth the basis to supplement the administrative record or to allow additional discovery related to Plaintiff’s APA claims. Following delivery of that submission, the timing of LR 37(a)(2) would run as usual. If Defendants intend to move for a protective order on any basis, we suggest that such a motion be combined in the same LR 37 submission, with Defendants’ delivering to us your opening submission following our delivery of Plaintiff’s submission. As to your position that discovery is not timely as to the constitutional and declaratory relief claims because the Rule 26(f) conference has not yet occurred, we disagree on the basis that no such conference is required pursuant to Rule 26(d)(1), which states “[a] party may not seek discovery from any source before the parties have conferred as required by Rule 26(f), except in a proceeding exempted from initial disclosure under Rule 26(a)(1)(B),” and this is such an exempted proceeding. Let us know if you still intend to move for a protective order on this or any other basis, notwithstanding subdivision 26(d)(1). I can confirm that we have agreed to continue the noticed depositions. If you still intend to move for a protective order on the constitutional and declaratory relief claims, we will agree to continue Defendants’ response dates on the served RFPs and RFAs until after the Court has ruled; however, if you agree that discovery is timely under Rule 26(d)(1) and do not intend to challenge its timeliness via a protective order, then we can discuss further an appropriate timeframe for Defendants’ responses. Thanks, and regards, Nat Nathaniel L. Bach GIBSON DUNN Gibson, Dunn & Crutcher LLP 333 South Grand Avenue, Los Angeles, CA 90071-3197 Tel +1 213.229.7241 • Mobile +1 310.200.0787 • Bio NBach@gibsondunn.com • www.gibsondunn.com From: Robins, Jeffrey (CIV) [mailto:Jeffrey.Robins@usdoj.gov] Sent: Friday, February 23, 2018 12:03 PM Case 2:17-cv-00218-RSM Document 134-1 Filed 08/29/18 Page 44 of 54 To: Bach, Nathaniel L. Cc: Goldsmith, Aaron (CIV) ; Dettmer, Ethan ; Mark Rosenbaum ; Luis Cortes (lcortes@barreralegal.com) ; Marquart, Katie ; Walker, James (CIV) Subject: RE: Ramirez Medina v. U.S. DHS, et al., Case No. 2:17-CV-00218 (W.D. Wa.) Nat, I’m following up on our initial meet and confer, held on February 21, 2018, regarding the Government’s intent to file a motion for a protective order in response to the discovery requests and deposition notices served on the Government by email late on February 14, 2018. During the course of the meet and confer, Defendants explained why no discovery is appropriate. You identified reasons that you thought discovery was appropriate, but acknowledged that Plaintiff has not filed a motion for discovery to supplement the administrative record, and indicated you would go back and look at the parameters of Rule 26 as it applied to your statement that discovery would be appropriate under separate Constitutional and Declaratory Judgment claims, but would not be subject to scheduling order and Rule 26(f) requirements. We spoke generally about the possibility of resolving the parties’ disagreements using an agreed briefing schedule or the Court’s Rule 37-1 joint motion process. Further, while you did not agree to withdraw your discovery requests or deposition notices, you agreed that there would be no depositions at this time, agreed that deposition notices would be continued, and were willingness to come to an agreement regarding the extension of the deadline for Defendants to respond to any discovery related to a ruling from the Court on these discovery questions. At your prompting, Defendants clarified that we oppose conducting any depositions until the Court has had an opportunity to rule on Defendants’ intended protective order or any alternative briefing the parties agree to. You indicated you would confer with your team and get back to us today with your thoughts. We look forward to your response and to agreeing on a briefing schedule and dates regarding your discovery requests that are sufficient to accommodate the Court ruling on the briefing we will put forward. Thanks, Jeff Jeffrey S. Robins Assistant Director Office of Immigration Litigation District Court Section (202) 616-1246 Case 2:17-cv-00218-RSM Document 134-1 Filed 08/29/18 Page 45 of 54 From: Bach, Nathaniel L. [mailto:NBach@gibsondunn.com] Sent: Tuesday, February 20, 2018 9:17 PM To: Robins, Jeffrey (CIV) Cc: Goldsmith, Aaron (CIV) ; Dettmer, Ethan ; Mark Rosenbaum ; Luis Cortes (lcortes@barreralegal.com) ; Marquart, Katie Subject: RE: Ramirez Medina v. U.S. DHS, et al., Case No. 2:17-CV-00218 (W.D. Wa.) Ok, I’ll send a dial in for 11:30am ET. Nathaniel L. Bach GIBSON DUNN Gibson, Dunn & Crutcher LLP 333 South Grand Avenue, Los Angeles, CA 90071-3197 Tel +1 213.229.7241 • Mobile +1 310.200.0787 NBach@gibsondunn.com • www.gibsondunn.com From: Robins, Jeffrey (CIV) [mailto:Jeffrey.Robins@usdoj.gov] Sent: Tuesday, February 20, 2018 9:52 AM To: Bach, Nathaniel L. Cc: Goldsmith, Aaron (CIV) ; Dettmer, Ethan ; Mark Rosenbaum ; Luis Cortes (lcortes@barreralegal.com) ; Marquart, Katie Subject: RE: Ramirez Medina v. U.S. DHS, et al., Case No. 2:17-CV-00218 (W.D. Wa.) Nat, that works for us. 10:30 or 11:30 is best. Jeff Jeffrey S. Robins Assistant Director Office of Immigration Litigation District Court Section (202) 616-1246 From: Bach, Nathaniel L. [mailto:NBach@gibsondunn.com] Sent: Monday, February 19, 2018 6:18 PM To: Robins, Jeffrey (CIV) Cc: Goldsmith, Aaron (CIV) ; Dettmer, Ethan ; Mark Rosenbaum ; Luis Cortes (lcortes@barreralegal.com) ; Marquart, Katie Case 2:17-cv-00218-RSM Document 134-1 Filed 08/29/18 Page 46 of 54 Subject: Re: Ramirez Medina v. U.S. DHS, et al., Case No. 2:17-CV-00218 (W.D. Wa.) Jeff, are you available for the call on Wednesday morning, between 10:30-noon ET? Nat Nathaniel L. Bach GIBSON DUNN Gibson, Dunn & Crutcher LLP 333 South Grand Avenue, Los Angeles, CA 90071-3197 Tel +1 213.229.7241 • Fax +1 213.229.6241 NBach@gibsondunn.com • www.gibsondunn.com On Feb 16, 2018, at 11:11 AM, Robins, Jeffrey (CIV) wrote: Nat, Defendants’ position is that no discovery is appropriate in this APA action, which is reviewed on the administrative record already before the court. Jeff Jeffrey S. Robins Assistant Director Office of Immigration Litigation District Court Section (202) 616-1246 From: Bach, Nathaniel L. [mailto:NBach@gibsondunn.com] Sent: Friday, February 16, 2018 1:53 PM To: Robins, Jeffrey (CIV) ; Goldsmith, Aaron (CIV) Cc: Dettmer, Ethan ; Mark Rosenbaum ; Luis Cortes (lcortes@barreralegal.com) ; Marquart, Katie Subject: RE: Ramirez Medina v. U.S. DHS, et al., Case No. 2:17-CV-00218 (W.D. Wa.) Jeff, I will check on our side’s availability for a call, but it would make that meet and confer more productive to know in advance the basis on which you will be seeking a protective order, including any case law that you believe supports that motion. If you can send that to us today, then we can probably find a time on Tuesday to discuss. Best, Case 2:17-cv-00218-RSM Document 134-1 Filed 08/29/18 Page 47 of 54 Nat Nathaniel L. Bach GIBSON DUNN Gibson, Dunn & Crutcher LLP 333 South Grand Avenue, Los Angeles, CA 90071-3197 Tel +1 213.229.7241 • Mobile +1 310.200.0787 NBach@gibsondunn.com • www.gibsondunn.com From: Robins, Jeffrey (CIV) [mailto:Jeffrey.Robins@usdoj.gov] Sent: Friday, February 16, 2018 10:34 AM To: Bach, Nathaniel L. ; Goldsmith, Aaron (CIV) Cc: Dettmer, Ethan ; Mark Rosenbaum ; Luis Cortes (lcortes@barreralegal.com) ; Marquart, Katie Subject: RE: Ramirez Medina v. U.S. DHS, et al., Case No. 2:17-CV-00218 (W.D. Wa.) Mr. Bach, I confirm receipt of your email, discovery requests, and deposition notices. Please let me know your availability on Tuesday, February 20, 2018, for a call to meet and confer regarding Defendants’ intended motion for a protective order from all the discovery you seek. As part of that call we would be happy to discuss our request that you withdraw the notices of deposition until the Court has ruled on Defendants’ motion for a protective order, and Defendants’ conflicts that make pursuit of the depositions that you have noticed unreasonable. Jeff Jeffrey S. Robins Assistant Director Office of Immigration Litigation District Court Section (202) 616-1246 From: Bach, Nathaniel L. [mailto:NBach@gibsondunn.com] Sent: Wednesday, February 14, 2018 7:33 PM To: Robins, Jeffrey (CIV) ; Goldsmith, Aaron (CIV) Cc: Dettmer, Ethan ; Mark Rosenbaum ; Luis Cortes (lcortes@barreralegal.com) ; Marquart, Katie Subject: Ramirez Medina v. U.S. DHS, et al., Case No. 2:17-CV-00218 (W.D. Wa.) Case 2:17-cv-00218-RSM Document 134-1 Filed 08/29/18 Page 48 of 54 Counsel: attached are service copies of Plaintiff’s First Set of Requests for Production, First Set of Requests for Admission, and Notices of Deposition in the above captioned matter. We are willing to discuss alternate, mutually agreeable days for the depositions; please contact me if you would like to discuss. Sincerely, Nat Bach Nathaniel L. Bach GIBSON DUNN Gibson, Dunn & Crutcher LLP 333 South Grand Avenue, Los Angeles, CA 90071-3197 Tel +1 213.229.7241 • Mobile +1 310.200.0787 NBach@gibsondunn.com • www.gibsondunn.com This message may contain confidential and privileged information. If it has been sent to you in error, please reply to advise the sender of the error and then immediately delete this message. Case Document 134-1 Filed 08/29/18 Page 49 of 54 EXHIBIT Case 2:17-cv-00218-RSM Document 134-1 Filed 08/29/18 Page 50 of 54 From: To: Cc: Subject: Date: Bach, Nathaniel L. Robins, Jeffrey (CIV) Walker, James (CIV); Dettmer, Ethan; Mark Rosenbaum (mrosenbaum@publiccounsel.org); Luis Cortes (lcortes@barreralegal.com); Marquart, Katie Re: Ramirez Medina v. U.S. DHS, et al., Case No. 2:17-CV-00218 (W.D. Wa.) Thursday, March 15, 2018 10:04:02 AM Yes, correct. Nathaniel L. Bach GIBSON DUNN Gibson, Dunn & Crutcher LLP 333 South Grand Avenue, Los Angeles, CA 90071-3197 Tel +1 213.229.7241 • Mobile +1 310.200.0787 NBach@gibsondunn.com • www.gibsondunn.com On Mar 15, 2018, at 9:55 AM, Robins, Jeffrey (CIV) wrote: Nat, I’ll follow up soon. And to confirm, we are in agreement that the dates to respond to your discovery requests are all extended pending further discussion? Thanks, Jeff Jeffrey S. Robins Assistant Director Office of Immigration Litigation District Court Section (202) 616-1246 From: Bach, Nathaniel L. [mailto:NBach@gibsondunn.com] Sent: Thursday, March 15, 2018 12:51 PM To: Robins, Jeffrey (CIV) ; Walker, James (CIV) Cc: Dettmer, Ethan ; Mark Rosenbaum (mrosenbaum@publiccounsel.org) ; Luis Cortes (lcortes@barreralegal.com) ; Marquart, Katie Subject: RE: Ramirez Medina v. U.S. DHS, et al., Case No. 2:17-CV-00218 (W.D. Wa.) Jeff, We continue to believe that discovery is warranted and appropriate in our case, at this juncture. Case 2:17-cv-00218-RSM Document 134-1 Filed 08/29/18 Page 51 of 54 However, we agree it makes sense to table further discussion until there has been a determination regarding the Inland Empire order. Once that has happened, please let us know your availability for a meet and confer call next week. Thanks Nathaniel L. Bach GIBSON DUNN Gibson, Dunn & Crutcher LLP 333 South Grand Avenue, Los Angeles, CA 90071-3197 Tel +1 213.229.7241 • Mobile +1 310.200.0787 • Bio NBach@gibsondunn.com • www.gibsondunn.com From: Robins, Jeffrey (CIV) [mailto:Jeffrey.Robins@usdoj.gov] Sent: Wednesday, March 14, 2018 9:37 AM To: Bach, Nathaniel L. ; Walker, James (CIV) Cc: Dettmer, Ethan ; Mark Rosenbaum (mrosenbaum@publiccounsel.org) ; Luis Cortes (lcortes@barreralegal.com) ; Marquart, Katie Subject: RE: Ramirez Medina v. U.S. DHS, et al., Case No. 2:17-CV-00218 (W.D. Wa.) Nat, I have not heard back from you regarding our ongoing discussion regarding the timing of your discovery in this matter and your views regarding the propriety of continuing to pursue discovery in light of the class action certification. In follow-up to our earlier discussions, to be clear, Defendants do not agree that your discovery requests are timely under Rule 26(d)(1), and for the reasons previously discussed. Given the back and forth we’ve had on this we want to confirm our agreement to continue Defendants’ deadline to respond the your pending discovery requests until resolved by Court (or withdrawn), further discuss the schedule for doing so, and formalize that agreement by stipulation. Further, as you may know, the parties in Inland Empire have sought a short extension from the Court, through tomorrow, to continue negotiations regarding possible modifications to that court’s order – including the implementation timeline. I can talk in further detail once a further stipulation is filed by the parties tomorrow, but there will be greater certainty regarding Mr. Ramirez’s claims via that injunction soon. Thank you, Case 2:17-cv-00218-RSM Document 134-1 Filed 08/29/18 Page 52 of 54 Jeff Jeffrey S. Robins Assistant Director Office of Immigration Litigation District Court Section (202) 616-1246 From: Robins, Jeffrey (CIV) Sent: Friday, March 02, 2018 8:21 AM To: 'Bach, Nathaniel L.' ; Walker, James (CIV) Cc: Dettmer, Ethan ; Mark Rosenbaum (mrosenbaum@publiccounsel.org) ; Luis Cortes (lcortes@barreralegal.com) ; Marquart, Katie Subject: RE: Ramirez Medina v. U.S. DHS, et al., Case No. 2:17-CV-00218 (W.D. Wa.) Nat, Defendants continue to review the Central District of California’s preliminary injunction and are discussing how to proceed. Given the deadlines imposed by the preliminary injunction, I will follow up with you next week with regard to Defendants’ intended course of action. I would also suggest that we reconvene then regarding your proposed briefing schedule regarding your discovery requests, and ask whether you believe those requests are still appropriate in light of the certification of the class? Thanks, Jeff Jeffrey S. Robins Assistant Director Office of Immigration Litigation District Court Section (202) 616-1246 From: Bach, Nathaniel L. [mailto:NBach@gibsondunn.com] Sent: Thursday, March 01, 2018 10:08 AM To: Robins, Jeffrey (CIV) ; Walker, James (CIV) Cc: Dettmer, Ethan ; Mark Rosenbaum (mrosenbaum@publiccounsel.org) ; Luis Cortes (lcortes@barreralegal.com) ; Marquart, Katie Case 2:17-cv-00218-RSM Document 134-1 Filed 08/29/18 Page 53 of 54 Subject: RE: Ramirez Medina v. U.S. DHS, et al., Case No. 2:17-CV-00218 (W.D. Wa.) Jeff, following up on my email, please confirm that the government will be complying with the Order and restoring Mr. Ramirez Medina’s DACA and EAD to their original date of expiration. Thank you. Nathaniel L. Bach GIBSON DUNN Gibson, Dunn & Crutcher LLP 333 South Grand Avenue, Los Angeles, CA 90071-3197 Tel +1 213.229.7241 • Mobile +1 310.200.0787 • Bio NBach@gibsondunn.com • www.gibsondunn.com From: Bach, Nathaniel L. Sent: Tuesday, February 27, 2018 11:23 PM To: Robins, Jeffrey (CIV) ; Walker, James (CIV) Cc: Dettmer, Ethan ; Mark Rosenbaum (mrosenbaum@publiccounsel.org) ; Luis Cortes (lcortes@barreralegal.com) ; Marquart, Katie Subject: Ramirez Medina v. U.S. DHS, et al., Case No. 2:17-CV-00218 (W.D. Wa.) Jeff: As you know, on Monday, the district court in Inland Empire – Immigrant Youth Collective et al. v. Nielsen, Case No. 5:17-cv-02048 (C.D. Cal.), issued an Order Granting Plaintiffs’ Motion for Class Certification and Granting Plaintiffs’ Motion for Classwide Preliminary Injunction (“Order”). As the government stated in its opposition to Daniel Ramirez Medina’s PI Motion, he is a member of the putative, now certified, class in that action. As such, the Order requires, inter alia, that “Defendants immediately . . . restore [his] DACA and EAD[], subject to their original date of expiration.” (Order at 35.) Therefore, please confirm that the government will comply with the Order and immediately restore Mr. Ramirez Medina’s DACA and EAD to their original date of expiration and the timeframe on which such restoration will occur. We look forward to your prompt response. Sincerely, Nat Nathaniel L. Bach GIBSON DUNN Case 2:17-cv-00218-RSM Document 134-1 Filed 08/29/18 Page 54 of 54 Gibson, Dunn & Crutcher LLP 333 South Grand Avenue, Los Angeles, CA 90071-3197 Tel +1 213.229.7241 • Mobile +1 310.200.0787 • Bio NBach@gibsondunn.com • www.gibsondunn.com This message may contain confidential and privileged information. If it has been sent to you in error, please reply to advise the sender of the error and then immediately delete this message. Case 2:17-cv-00218-RSM Document 134-2 Filed 08/29/18 Page 1 of 3 1 The Honorable Ricardo S. Martinez Chief United States District Judge 2 3 4 5 6 7 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 8 9 10 11 12 CASE NO. 2:17-CV-00218-RSM-JPD Daniel Ramirez Medina, Plaintiff, 13 14 15 16 17 18 v. U.S. DEPARTMENT OF HOMELAND SECURITY; U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT; and U.S. CITIZENSHIP AND IMMIGRATION SERVICES, Defendants. 19 20 21 22 23 24 25 26 27 28 Gibson, Dunn & Crutcher LLP [PROPOSED] ORDER RE DISCOVERY MOTIONS Case No. 2:17-cv-00218-RSM-JPD [PROPOSED] ORDER RE PLAINTIFF’S MOTION TO COMPLETE THE ADMINISTRATIVE RECORD, AND DEFENDANTS’ MOTION FOR PROTECTIVE ORDER Case 2:17-cv-00218-RSM Document 134-2 Filed 08/29/18 Page 2 of 3 1 This matter comes before the Court on (1) Plaintiff’s Motion to Complete the Administrative 2 Record as to his Administrative Procedure Act (“APA”) Claims (“Plaintiff’s Motion”) and (2) 3 Defendants’ Motion for a Protective Order regarding discovery as to Plaintiff’s Constitutional Claim 4 (“Defendants’ Motion”), IT IS ORDERED that: 5 1. Plaintiff’s Motion is [GRANTED / DENIED]; and 6 2. Defendants’ Motion is [GRANTED / DENIED]. 7 8 9 10 Dated this ___ day of __________, 2018. _________________________________________ THE HONORABLE RICARDO S. MARTINEZ CHIEF UNITED STATES DISTRICT JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Gibson, Dunn & Crutcher LLP [PROPOSED] ORDER RE DISCOVERY MOTIONS Case No. 2:17-cv-00218-RSM-JPD 1 Case 2:17-cv-00218-RSM Document 134-2 Filed 08/29/18 Page 3 of 3 1 2 3 4 5 6 7 8 9 10 PRESENTED BY: /s/ Theodore J. Boutrous, Jr. GIBSON, DUNN & CRUTCHER LLP THEODORE J. BOUTROUS, JR. (CA SBN 132099), pro hac vice ETHAN D. DETTMER (CA SBN 196046), pro hac vice KATHERINE M. MARQUART (CA SBN 248043), pro hac vice NATHANIEL L. BACH (CA SBN 246518), pro hac vice /s/ Mark D. Rosenbaum PUBLIC COUNSEL MARK D. ROSENBAUM (CA SBN 59940), pro hac vice JUDY LONDON (CA SBN 149431), pro hac vice KATHRYN A. EIDMANN (CA SBN 268053), pro hac vice ANNE M. HUDSON-PRICE (CA SBN 295930), pro hac vice ELIZABETH HADAWAY (CA SBN 308800), pro hac vice Attorneys for Plaintiff 11 12 13 14 15 16 17 18 19 20 21 22 CHAD A. READLER Acting Assistant Attorney General WILLIAM C. PEACHEY Director /s/ Jeffrey S. Robins JEFFREY S. ROBINS Assistant Director U.S. Department of Justice Civil Division Office of Immigration Litigation District Court Section P.O. Box 868, Ben Franklin Station Washington, D.C. 20044 Phone: (202) 616-1246 Fax: (202) 305-7000 Email: jeffrey.robins@usdoj.gov 24 JAMES WALKER Trial Attorney U.S. Department of Justice Civil Division 25 Attorneys for Defendants 23 26 27 28 Gibson, Dunn & Crutcher LLP [PROPOSED] ORDER RE DISCOVERY MOTIONS Case No. 2:17-cv-00218-RSM-JPD 2