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CARLOS R. HOLGUÍN (Cal. Bar No. 90754)
PETER A. SCHEY (Cal. Bar No. 58232)
Center for Human Rights & Constitutional Law
256 South Occidental Boulevard
Los Angeles, CA 90057
Telephone: (213) 388-8693
Email: crholguin@centerforhumanrights.org
pschey@centerforhumanrights.org
ORRICK, HERRINGTON & SUTCLIFFE LLP
Elena Garcia (Cal. Bar No. 299680)
egarcia@orrick.com
777 South Figueroa Street, Suite 3200
Los Angeles, CA 90017
Telephone: (213) 629-2020
Listing continues on next page
Attorneys for Plaintiffs

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA - WESTERN DIVISION

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JENNY LISETTE FLORES, et al.,
Plaintiffs,

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v.
MATTHEW G. WHITAKER, et al.,
Defendants.

Case No. CV 85-4544-DMG (AGRx)
REPLY TO OPPOSITION TO MOTION TO
ENFORCE SETTLEMENT, FOR
PERMANENT INJUNCTION AND FOR
ADJUDICATION OF CIVIL CONTEMPT

Hearing: November 30, 2018
Time:
9:30 a.m.
Room:
1st St. Courthouse
Courtroom 8C

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Counsel for Plaintiffs, continued
LEECIA WELCH (CAL. BAR NO. 208741)
NEHA DESAI (CAL. RLSA BAR NO. 803161)
CRYSTAL ADAMS (CAL. BAR NO. 308638)
National Center for Youth Law
405 14th Street, 15th Floor
Oakland, CA 94612
Telephone: (510) 835-8098
Email: lwelch@youthlaw.org
ndesai@youthlaw.org
cadams@youthlaw.org
HOLLY S. COOPER (Cal. Bar No. 197626)
Co-Director, Immigration Law Clinic
CARTER C. WHITE (Cal. Bar No. 164149)
Director, Civil Rights Clinic
University of California Davis School of Law
One Shields Ave. TB 30
Davis, CA 95616
Telephone: (530) 754-4833
Email: hscooper@ucdavis.edu
ccwhite@ucdavis.edu

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LA RAZA CENTRO LEGAL, INC.
18 Michael S. Sorgen (Cal. Bar No. 43107)
474 Valencia Street, #295
19 San Francisco, CA 94103
20 Telephone: (415) 575-3500
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THE LAW FOUNDATION OF SILICON VALLEY
Jennifer Kelleher Cloyd (Cal. Bar No. 197348)
Katherine H. Manning (Cal. Bar No. 229233)
Annette Kirkham (Cal. Bar No. 217958)
152 North Third Street, 3rd floor
San Jose, CA 95112
Telephone: (408) 280-2437
Facsimile: (408) 288-8850
Email: jenniferk@lawfoundation.org
kate.manning@lawfoundation.org
annettek@lawfoundation.org
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REPLY TO OPPOSITION TO MOTION TO ENFORCE
SETTLEMENT, ETC.

CV 85-4544-DMG (AGRX)

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Of counsel:

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YOUTH LAW CENTER
3 Virginia Corrigan (Cal. Bar No. 292035)
4 832 Folsom Street, Suite 700
San Francisco, CA 94104
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Telephone: (415) 543-3379
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REPLY TO OPPOSITION TO MOTION TO ENFORCE
SETTLEMENT, ETC.

CV 85-4544-DMG (AGRX)

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I.

INTRODUCTION

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This Court should order Defendants to continue complying with the Settlement

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notwithstanding their Proposed Rule and any final rule derived therefrom. Defendants

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nowhere deny that their Proposed Rule is materially inconsistent with the Settlement,

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nor do they dispute that the Administrative Procedure Act, 5 U.S.C. § 551 et seq.

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(“APA”) precludes them from adopting a final rule that is not substantially the same

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as the Proposed Rule.
Defendants do not dispute that they have publicly denounced the Settlement

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repeatedly and vociferously as an impediment to border control; they likewise fail to

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answer Plaintiffs’ showing that the Proposed Rule’s raison d'être is to permit

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Defendants to do what this Court and the Ninth Circuit have repeatedly ruled they

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may not: namely, detain children indefinitely in secure, unlicensed facilities.
Nor do Defendants deny that despite repeated entreaties, they even failed to

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commit to observing the 45-day waiting period Paragraph 40 of the Settlement

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requires before implementing a final rule and declaring the Settlement terminated.1
Finally, apart from a boilerplate discussion of ripeness, Defendants fail to

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contest Plaintiffs’ showing that this Court may enjoin an anticipatory breach of the

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Settlement. Nowhere do Defendants refute Plaintiffs’ showing that their Proposed

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Rule constitutes an actionable anticipatory breach.

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On November 6, 2018, Defendants asked Plaintiffs to agree to continuing the
motion until December 21, 2018. Email between Sarah Fabian and Carlos Holguín,
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Plaintiffs replied they would not object to the requested continuance so long as
Defendants assured they would not implement a final regulation based on the
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Proposed Rule for at least 45 days following publication of the final rule, or until
26 after the Court rules on the present motion to enforce, whichever should occur later.
Id.
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Defendants never responded to Plaintiffs’ proposal and filed their opposition instead.
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MEMORANDUM IN SUPPORT OF MOTION FOR
PERMANENT INJUNCTION, ETC.

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Defendants nevertheless urge the Court to postpone the inevitable: that is, to

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delay declaring their Proposed Rule inconsistent with the Settlement—which it

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plainly is—and to delay enjoining Defendants against implementing final regulations

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that violate the Settlement. That, however, is a recipe for superfluous confusion and

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certain irreparable injury to class members. The Court is clearly empowered to enjoin

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Defendants’ anticipatory breach, and it should do so on the instant motion.

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II.

THE COURT SHOULD ENJOIN DEFENDANTS AGAINST IMPLEMENTING REGULATIONS

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THAT ARE INCONSISTENT WITH THE SETTLEMENT.

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In the main, Defendants oppose the instant motion on the theory it improperly

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seeks to “impede” their rulemaking prerogatives. Defs.’ Opp. at 2, (Doc. #521)

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(“Opp.”). It does not.
First, Defendants agreed to exercise their rulemaking authority in conformance

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with the Settlement. The Court’s enforcing that agreement hardly infringes on

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Defendants’ lawful prerogatives. See, e.g., Citizens for a Better Environment v.

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Gorsuch, 718 F.2d 1117, 1128-29 (D.C. Cir. 1983) (“the requirements imposed by

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the [consent] Decree do not represent judicial intrusion into the Agency’s affairs to

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the same extent they would if the Decree were ‘a creature of judicial cloth.’”).2
Second, nothing requires the Court to delay ruling on whether Defendants’

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Proposed Rule discharges their duties under the Settlement.

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In Ferrell v. Pierce, 560 F.Supp. 1344 (D. Ill. 1983), aff’d, 743 F.2d 454 (7th

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Cir. 1984), the district court disapproved proposed regulations of the Department of

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Housing and Urban Development (“HUD”) because they failed to comport with a

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binding settlement. Id. at 1361. The court found HUD’s failure to address conflicts

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between its proposed rule and the settlement an “anomalous or even ominous

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Much the same answers Defendants’ argument that the Court’s enforcing the
Settlement’s rulemaking clauses somehow violates sovereign immunity and
27 separation of powers. Opp. at 8 n.4. Even were those defenses valid, Defendants
28 waived them when they voluntarily entered into the Settlement.
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omission.” Id. 3 The court cited HUD’s “past conduct” as evidence it would excercise

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the discretion the proposed rule conferred to violate the settlement. Id. at 1365. The

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court accordingly enjoined HUD against implementing its proposed regulations. Id. at

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1372.
Here, Plaintiffs seek to enforce the plain terms of the Settlement. The

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Settlement is a contract which Congress has twice preserved.4 The agreement remains

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binding until Defendants incorporate children’s substantive Settlement rights into

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federal regulations. Those regulations may “not be inconsistent” with and must

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“implement” the Settlement. Settlement ¶ 9; Stipulation Extending Settlement

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Agreement (Dec. 7, 2001).
Defendants are therefore obligated to conform their rulemaking as agreed, yet

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their Proposed Rule manifests a resolve to do anything but implement the Settlement.

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Their opposition to the present motion, therefore, proposes the Court stay its hand on

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a hope and a wish that Defendants’ final regulations might actually implement the

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Settlement, rather than carry out Defendants’ determination to abrogate it. Given the

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explicit purpose of Defendants’ rulemaking and their many statements excoriating the

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Settlement as an impediment to border control, accepting Defendants’ position

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demands a copious measure of credulity. Nor, given Defendants’ many prior breaches

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In Ferrell HUD affirmatively moved the court to modify the settlement to conform
to its proposed rule. That Defendants here have elected to march unilaterally toward
22 completing their anticipatory breach is even more “anomalous or even ominous” than
23 was HUD’s approach in Ferrell. 560 F.Supp. at 1361.
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See Homeland Security Act of 2002, Pub. L. No. 107-296, 116 Stat. 2135 (“HSA”),
Trafficking Victims Protection Reauthorization Act, Pub L. No. 110-457, 122 Stat.
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5044, codified in pertinent part at 8 U.S.C. § 1232 (“TVPRA”).
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Defendants acknowledge that the HSA savings clause, 6 U.S.C. § 552(a), and its
incorporation in the TVPRA, 8 U.S.C. § 1232(b)(1), maintained the Settlement in
28 effect as a consent decree. Flores v. Sessions, 862 F.3d 863, 871 n.7 (9th Cir. 2017).
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of the Settlement, is this action a tabula rasa permitting doubt over whether

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Defendants’ Proposed Rule will in fact spawn inconsistent final regulations.
As the Court knows, since 2014 Defendants have repeatedly violated both of

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the Settlement’s fundamental requirements: (i) that they release children to reputable

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custodians without unnecessary delay; and (ii) that for howsoever long Defendants do

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detain children, they place them in facilities holding a state license to care for

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dependent, as opposed to delinquent, children.

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This Court and the Ninth Circuit have just as repeatedly rejected Defendants’

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arguments for violating these requirements. Order Re: Plaintiffs’ Motion to Enforce

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Settlement (July 24, 2015) (Doc. #177); Order Re: Response to Order to Show Cause

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(August 21, 2015) (Doc. #189); aff’d in relevant part, Flores v. Lynch, 828 F.3d 898

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(9th Cir. 2016); Order Granting Motion to Enforce (Jan. 20, 2017) (Doc. #318), aff’d,

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Flores v. Sessions, 862 F.3d 863 (9th Cir. 2017); Order Denying Ex Parte Application

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for Limited Relief from Settlement Agreement (July 9, 2018) (Doc. #455); Order Re:

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Plaintiffs’ Motion to Enforce (July 30, 2018) (Doc. #470). Defendants nevertheless

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continue to insist, without evidence, that they must jettison the Settlement for the

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greater cause of border control, this time by dint of rulemaking that itself breaches the

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Settlement. As in Ferrell, Defendants must own their past conduct.
In any event, Plaintiffs here ask the Court to enjoin Defendants’ implementing

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regulations that violate the Settlement, not their rulemaking itself. See [Proposed]

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Order Enforcing Settlement, etc. (Nov. 2, 2018) (Doc. #516-1), at 1 (proposing that

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Defendants be “enjoined against implementing the Proposed Rule or its material

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equivalent.” (emphasis added)). So long as Defendants continue to abide by the

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Settlement, inconsistent regulations are beside the point.5

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For years, Defendants have had regulations on the books that conflict with the
Settlement. See 8 C.F.R. § 236.3 (2018) (restricting release to unrelated adults to
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“unusual and compelling circumstances” and allowing placement of children “in any
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But that is clearly not what Defendants have in mind. Their rulemaking instead

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aims expressly to abrogate class members’ Settlement rights and, indeed, repudiate

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the agreement in its entirety. There is no reasonable doubt that Defendants are

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determined to violate the Settlement in the very ways this Court and the Ninth Circuit

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have repeatedly ruled they may not.6

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If, contrary to their declared purpose, Defendants were to continue adhering to

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the Settlement despite having adopted inconsistent regulations, the Court’s enjoining

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implementation of those regulations could do them no harm. Melendres v. Arpaio,

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695 F.3d 990, 1002 (9th Cir. 2012) (“The Defendants cannot be harmed by an order

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enjoining an action they will not take.”). But Defendants are in no position to

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complain if they are taken at their word: they have promised they will violate the

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Settlement under the aegis of inconsistent regulations, and there is nothing

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precipitous about the Court’s enjoining them against doing so.

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Service detention facility having separate accommodations for juveniles” without
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Defendants have never contended that these regulations trump the Settlement; they
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the detention, release, and treatment of minors in the custody of the INS and shall
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21 Agreement.”).
Moreover, as Plaintiffs established in their opening brief, at this point Defendants’
reconciling a final rule with the Settlement would run afoul of the APA’s limitations
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on a final rule’s diverging fundamentally from its proposed version. See
24 Memorandum in Support of Motion to Enforce Settlement, etc. (Nov. 21, 2018) (Doc.
#516) at 17-18 (citing Envtl. Def. Ctr. v. U.S. Envtl. Protection Agency, 344 F.3d 832,
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851 (9th Cir. 2003)).
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Defendants’ conforming their final rule to the Settlement—which they have no intent
of doing anyway—would require contorting the Proposed Rule far more than what
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III.

AN ANTICIPATORY BREACH IS RIPE FOR JUDICIAL REVIEW.

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Defendants do not contest Plaintiffs’ showing that the Proposed Rule in an

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actionable anticipatory breach. Instead, they argue that Plaintiffs’ challenge is not

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ripe until Defendants publish a final rule. Defendants ignore that the Settlement is a

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contract which the Court may enforce pursuant to standard contract law, including

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that of anticipatory breach.
By its very nature, an “anticipatory breach satisfies prudential ripeness . . .”

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Perry Capital LLC v. Mnuchin, 864 F.3d 591, 632 (D.C. Cir.), cert. denied, _ U.S. _,

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138 S. Ct. 978 (2018) (citing Sys. Council EM-3 v. AT&T Corp., 159 F.3d 1376, 1383

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(D.C. Cir. 1998). “In other words, anticipatory breach is ‘a doctrine of

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accelerated ripeness’ because it ‘gives the plaintiff the option to have the law treat the

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promise to breach [or the act rendering performance impossible] as a breach

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itself.’” Homeland Training Ctr., LLC v. Summit Point Auto. Research Ctr., 594 F.3d

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285, 294 (4th Cir. 2010) (citing Franconia Assocs. v. United States, 536 U.S. 129,

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143 (2002)).
Plaintiffs’ right to sue for anticipatory breach, therefore, does not hinge on

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Defendants’ completing their breach. Plaintiffs need only show that Defendants

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intend to repudiate the Settlement. Defendants’ Proposed Rule, public statements, and

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past conduct leave no doubt that they do. Defendants’ failure to contest Plaintiffs’

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showing that they are in anticipatory breach— likely because they have no plausible

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rebuttal to offer—waives opposition. Defendants’ authorities are plainly not to the

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contrary. 7

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None of the authorities Defendants cite involves a settlement: that is, a contract that
that may be enforced against anticipatory breach. See Ohio Forestry Ass’n, Inc. v.
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Sierra Club, 523 U.S. 726 (1998) (challenge to federal land and resource
27 management plan unconstrained by settlement or consent decree); Nevada v. Dep’t of
Energy, 457 F.3d 78 (D.C. Cir. 2005) (no settlement at issue; APA challenge to
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environmental impact statement); Am. Portland Cement All. v. E.P.A., 101 F.3d 772
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REPLY TO OPPOSITION TO MOTION TO ENFORCE
SETTLEMENT, ETC.

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There is no impediment to this Court’s adjudicating Defendants in anticipatory

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breach, and it should do so.8

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(D.C. Cir. 1996) (same; challenge to EPA determination against regulating cement
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In West Virginia v. EPA (In re Murray Energy Corp.), 788 F.3d 330 (D.C. Cir. 2015),
the petitioners did not seek to enforce a settlement, but rather attacked an existing
agreement between the EPA and several unrelated parties “hop[ing] to obtain a
backdoor ruling from the Court that EPA lacks legal authority . . . to regulate carbon
dioxide emissions from existing power plants.” Id. at 336. The settlement, however,
“did not obligate EPA to issue a final rule restricting carbon dioxide emissions from
existing power plants. It simply set a timeline for EPA to decide whether to do so.”
Id. (emphasis in original).

Here, of course, the Settlement does substantively constrain Defendants’ rulemaking;
Plaintiffs are parties to the agreement, and as such, are entitled to enforce it against
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anticipatory breach.
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Should it be disposed to defer enjoining Defendants against implementing
inconsistent regulations until after publication of a final rule, Plaintiffs respectfully
26 suggest the Court hold the instant motion in abeyance and order the parties to submit
simultaneously and within one week of publication supplemental briefs discussing
27 whether Defendants’ final rule cures their anticipatory breach. The motion could
28 thereafter stand submitted.
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IV.

CONCLUSION.
For the foregoing reasons, the Court should grant this motion and enter an

order as Plaintiffs propose.

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Dated: November 16, 2018

CARLOS R. HOLGUÍN,
PETER A. SCHEY
Center for Human Rights &
Constitutional Law
LEECIA WELCH
NEHA DESAI
National Center for Youth Law
HOLLY S. COOPER
CARTER WHITE
U.C. Davis School of Law
ELENA GARCIA
Orrick, Herrington & Sutcliffe, LLP

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LA RAZA CENTRO LEGAL, INC.
Michael S. Sorgen (Cal. Bar No. 43107)
THE LAW FOUNDATION OF SILICON
VALLEY
Of counsel:
YOUTH LAW CENTER
Virginia Corrigan (Cal. Bar No. 292035)

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Carlos Holguín
Carlos Holguín
Holly S. Cooper
Holly S. Cooper

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REPLY TO OPPOSITION TO MOTION TO ENFORCE
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Attachment A

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From:
Subject:
Date:
To:
Cc:

Carlos Holguín crholguin@centerforhumanrights.org
Re: Flores Motion - Request for Extension
November 6, 2018 at 1:15 PM
Fabian, Sarah B (CIV) Sarah.B.Fabian@usdoj.gov
Holly S Cooper hscooper@ucdavis.edu, Peter Schey pschey@centerforhumanrights.org, Flentje, August (CIV)
August.Flentje@usdoj.gov

Dear Sarah,
Plaintiffs have no objection to your requested extension provided Defendants agree they will not implement a final
regulation based on the Proposed Rule for at least 45 days following publication of the final rule, or else the Court’s
disposition of the motion to enforce, etc., whichever should occur later.

—
Carlos Holguín
General Counsel
Center for Human Rights & Constitutional Law
256 S. Occidental Blvd.
Los Angeles, California 90057
(213) 388-8693 x.309 (v)
​(213) 290-1642​ (direct)
(213) 386.9484 (fax)
http://www.centerforhumanrights.org
-CONFIDENTIALITY NOTICE: This communication, including any attachments, is for the sole
use of the intended recipient(s) and may contain confidential and legally privileged information.
Any unauthorized interception, review, use, distribution, or disclosure not authorized by the
intended recipient(s) is prohibited and may violate applicable laws, including the Electronic
Communications Privacy Act of 1986, Pub. L. 99-508, 100 Stat. 1848, codified at 18 U.S.C. §§
2510 et seq. If you are not the intended recipient, please contact the sender and destroy all
copies of the original communication.

On Nov 6, 2018, at 12:55 PM, Fabian, Sarah B (CIV) <Sarah.B.Fabian@usdoj.gov> wrote:

Peter, Carlos, and Holly:
The government requires additional time to respond to your latest motion, and intends
to seek an extension of the hearing date to allow for additional response time. We
would like to ask to extend the hearing date to December 21. Please let me know asap
if Plaintiffs will agree to our requested extension.
Best,
Sarah
Sarah B. Fabian
Senior Litigation Counsel
Office of Immigration Litigation – District Court Section
Department of Justice
PO Box 868, Ben Franklin Station
Washington, DC 20044
(202) 532-4824