6/24/2020 Slack PDF Viewer Case 5:20-cv-00095 Document 6 Filed on 06/24/20 in TXSD Page 1 of 10 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS LAREDO DIVISION Gloria Carolina Manzo-Hernandez, Victor Zepeta-Jasso, Moises Amadeo Mancia-Mendoza, Mercy Rocio Duchi-Vargas, Jatzeel Antonio Cuevas-Cortes, Victor Manuel Nuñez-Hernandez, Petitioners, v. Warden Omar Juarez, in his official capacity, Respondent. § § § § § § § § § § § § § § § Case No. 5:20-cv-00095 THE GOVERNMENT’S OPPOSITION TO PETITIONERS’ REQUEST FOR A TRO The Government files this response in opposition to Petitioners’ request for a temporary restraining order (TRO). Dkt No. 4. As discussed below, Petitioners have failed to carry their heavy burden of demonstrating a clear entitlement to the preliminary relief they seek. There is no dispute that Petitioners are detained pursuant to court orders. See, e.g., Dkt. No. 1-1 at p.11 (Order signed by United States Magistrate Judge Diana Song Quiroga). If Petitioners believe that these orders should be vacated, or otherwise modified (such as allowing them to provide deposition testimony), the Bail Reform Act provides procedures for reviewing those claims. A habeas petition is an improper vehicle to make these challenges. As a 1 https://app.slack.com/client/T5AG4BQQM/GNQTV4CAU 1/10 6/24/2020 Slack PDF Viewer Case 5:20-cv-00095 Document 6 Filed on 06/24/20 in TXSD Page 2 of 10 result, Petitioners have no likelihood of success on the merits of their claims. Even assuming for the sake of argument that Petitioners could move forward with their habeas petition, their assertions of irreparable harm are undercut by their monthslong delay in seeking emergency relief. Further, the equities and public interests weigh in favor of not issuing an order that could jeopardize ongoing criminal prosecutions. For these reasons and all the reasons discussed below, the Court should deny Petitioners’ TRO request. THE BAIL REFORM ACT OF 1984 The Bail Reform Act of 1984, 18 U.S.C. §§ 3141-3150, authorizes and establishes the procedures for judicial officers to order the release or detention of an arrested person pending trial, sentence, and appeal. 18 U.S.C. § 1342. The Act also authorizes the detention of material witnesses “in accordance with the provisions of sections 3142.” 18 U.S.C. § 3144. “No material witness may be detained because of inability to comply with any condition of release if the testimony of such witness can adequately be secured by deposition, and if further detention is not necessary to prevent a failure of justice.” Id. The Act provides specific mechanisms for reviewing and appealing detention orders. Specifically, “[i]f a person is ordered detained . . . , the person may file, with the court having original jurisdiction over the offense, a motion for revocation or amendment of the order. The motion shall be determined promptly.” 18 U.S.C. § 2 https://app.slack.com/client/T5AG4BQQM/GNQTV4CAU 2/10 6/24/2020 Slack PDF Viewer Case 5:20-cv-00095 Document 6 Filed on 06/24/20 in TXSD Page 3 of 10 3145(b). Further, if the district court denies the request, a detainee may pursue an appeal. Id. at § 3145(c). STANDARD OF REVIEW A plaintiff seeking a temporary restraining order or preliminary injunction must establish the following: that he is likely to succeed on the merits; that he is likely to suffer irreparable harm in the absence of preliminary relief; that the balance of equities tips in his favor; and that an injunction is in the public interest. See Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). The Fifth Circuit has “cautioned repeatedly that a preliminary injunction is an extraordinary remedy which should not be granted unless the party seeking it has clearly carried the burden of persuasion on all four requirements.” Bluefield Water Ass’n, Inc. v. City of Starkville, 577 F.3d 250, 253 (5th Cir. 2009) (internal quotation marks omitted); United Offshore Co. v. S. Deepwater Pipeline Co., 899 F.2d 405, 408 (5th Cir. 1990) (plaintiffs “must clearly carry the burden of persuasion on each factor”); see also Winter, 555 U.S. at 21 (2008) (plaintiff must make a “clear showing” of entitlement to relief). ARGUMENT I. Petitioners cannot meet their heavy burden of showing a clear entitlement to a mandatory injunction. Petitioners have not carried their heavy burden of justifying the need for the extraordinary remedy they seek. Their burden is particularly high in this case 3 https://app.slack.com/client/T5AG4BQQM/GNQTV4CAU 3/10 6/24/2020 Slack PDF Viewer Case 5:20-cv-00095 Document 6 Filed on 06/24/20 in TXSD Page 4 of 10 because they are requesting a mandatory injunction—not merely asking that the status quo be maintained. See Martinez v. Mathews, 544 F.2d 1233, 1243 (5th Cir. 1976) (“Mandatory preliminary relief, which goes well beyond simply maintaining the status quo pendente lite, is particularly disfavored, and should not be issued unless the facts and law clearly favor the moving party.”); see also Exhibitors Poster Exchange, Inc. v. National Screen Service Corp., 441 F2d 560, 561 (5th Cir. 1971) (“[W]hen a plaintiff applies for a mandatory preliminary injunction, such relief should not be granted except in rare instances in which the facts and law are clearly in favor of the moving party.”). As discussed below, Petitioners have fallen well short of showing that the facts and law clearly favor the issuance of an emergency mandatory injunction. II. Petitioners have not shown that the law and facts clearly favor the issuance of a TRO. A. Petitioners have no likelihood of success on the merits. Petitioners’ claims fail as a threshold matter because they have not properly invoked the Court’s jurisdiction. Specifically, a detainee like Petitioners here cannot use a habeas petition to challenge the lawfulness of his detention order. Instead, Congress has established specific procedures in the Bail Reform Act for challenging detention orders. Numerous courts have held that a habeas petition cannot circumvent those procedures. See Reese v. Warden Philadelphia FDC, 904 F.3d 244, 245 (3d Cir. 2018) (holding “that a federal detainee’s request for release pending 4 https://app.slack.com/client/T5AG4BQQM/GNQTV4CAU 4/10 6/24/2020 Slack PDF Viewer Case 5:20-cv-00095 Document 6 Filed on 06/24/20 in TXSD Page 5 of 10 trial can only be considered under the Bail Reform Act and not under a § 2241 petition for habeas relief”); see also United States v. Pipito, 861 F.2d 1006, 1009 (7th Cir. 1987); c.f., Fassler v. United States, 858 F.2d 1016, 1017-19 (5th Cir. 1988) (criticizing the use of habeas to challenge a detention order, but stopping short of holding that it lacked jurisdiction over the habeas petition); Garza-Villanueva v. McAleenan, 1:19-CV-065, 2019 WL 2424080, at *3-4 (S.D. Tex. Apr. 26, 2019) (discussing Fassler and agreeing with the Third Circuit’s decision in Reese), report and recommendation adopted, 1:19-CV-65, 2019 WL 2420132 (S.D. Tex. June 10, 2019). Rather than filing a habeas petition, a detainee should seek review from the district court overseeing the criminal case, 18 U.S.C. § 3145(b); and, if relief is not obtained there, the detainee can seek further appellate review. 18 U.S.C. § 3145(c); see also Aguilar-Ayala v. Ruiz, 973 F.2d 411, 413 (5th Cir. 1992) (holding that “[r]ead together, Rule 15(a) and § 3144 provide a detained witness with a mechanism for securing his own release. He must file a ‘written motion,’ Fed.R.Crim.P. 15(a), requesting that he be deposed . . .”). Thus, here, Petitioners should file motions in the corresponding criminal cases asking the district court to modify their detention orders and, if that motion is denied, they can pursue an appeal. They cannot file a habeas petition as an alternative means to challenge their detention orders. Thus, 5 https://app.slack.com/client/T5AG4BQQM/GNQTV4CAU 5/10 6/24/2020 Slack PDF Viewer Case 5:20-cv-00095 Document 6 Filed on 06/24/20 in TXSD Page 6 of 10 Petitioners have no likelihood of success on the merits of their claims because their habeas petition should be dismissed.1 Additionally, assuming Petitioners could pursue a habeas petition, they have not overcome the presumption that their detainment orders are lawful. There is a general presumption that the government’s actions are valid. See 10 Ring Precision, Inc. v. Jones, 722 F.3d 711, 725, n.79 (5th Cir. 2013) (“In the absence of clear and convincing evidence to the contrary, “[a] presumption of regularity attaches to the actions of Government agencies.”) (quoting U.S. Postal Serv. v. Gregory, 534 U.S. 1 (2001)). Here, the presumption of validity attaches because the challenged actions are being carried out pursuant to court orders. In order to rebut this presumption, a careful, fact-specific analysis of each detainee’s circumstances, including a close review of the court proceedings and the criminal case associated with each person, would have to be undertaken. Rather than meet this burden, Petitioners have made broad assertions based on alleged similarities in the proposed class of petitioners. Indeed, Petitioners go so far as to assert that their detentions were part of an “automatic” court process. See TRO at 8 (emphasis in original) (citing Halpern Decl.). This broad assertion is based on the 1 Petitioners also cannot rely on the Declaratory Judgment Act as a waiver of the government’s sovereign immunity. See Anderson v. U.S., 229 F.2d 675, 677 (5th Cir. 1956) (“the Declaratory Judgments Act, 28 U.S.C. § 2201, does not grant any consent of the United States to be sued”); Muirhead v. Mecham, 427 F.3d 14, 18 n.1 (1st Cir. 2005) (same). 6 https://app.slack.com/client/T5AG4BQQM/GNQTV4CAU 6/10 6/24/2020 Slack PDF Viewer Case 5:20-cv-00095 Document 6 Filed on 06/24/20 in TXSD Page 7 of 10 declaration of someone who was not present at the detainees’ initial appearances. At the same time, Petitioners concede that not every material witness has been designated to testify in criminal proceedings under 8 U.S.C. § 1324, and that, in certain cases, the Court did in fact order “the government to depose and release four witnesses detained in one case.” See Halpern Decl., Dkt. No. 1-7 at ¶ 11. At bottom, each case is unique and requires an individualized assessment; this evaluation is best made on a motion under the applicable provisions of the Bail Reform Act rather than attempting to resolve claims in a putative habeas class action based on second-hand observations supporting broad attacks on the Court’s procedures. B. Petitioners have not clearly established irreparable harm. Petitioners’ length of detainment undercuts their claim of immediate irreparable harm. Petitioners assert that they have been held unlawfully for months. In fact, they emphasize that, in some of their cases, they have been detained for as long as six months. See TRO Motion at p. 6. They do not, however, explain the delay in seeking injunctive relief during this time. Nor do they explain why emergency relief is necessary now rather than in the short period of time it would take for the Court to resolve a preliminary injunction request. Thus, the delay in seeking a TRO undermines their claim of irreparable harm warranting immediate action. See, e.g., Rimkus Consulting Group, Inc. v. Cammarata, 255 F.R.D. 417, 438 (S.D. Tex. 2008) (holding that a “delay in seeking injunctive relief in this court 7 https://app.slack.com/client/T5AG4BQQM/GNQTV4CAU 7/10 6/24/2020 Slack PDF Viewer Case 5:20-cv-00095 Document 6 Filed on 06/24/20 in TXSD Page 8 of 10 weighs heavily against a finding of irreparable injury”); Gonannies v. Goarpair.com, Inc., 464 F. Supp. 2d 603, 609 (N.D. Tex. 2006) (six-month wait before seeking injunctive relief constituted undue delay even where the movant raised a presumption of irreparable harm); Boire v. Pilot Freight Carriers, Inc., 515 F.2d 1185, 1193 (5th Cir. 1975) (affirming district court’s denial of temporary injunctive relief where movant, among other things, delayed three months in making its request).2 C. Granting the TRO request is not clearly in the public’s interest, and the balance of equities do not clearly tip in the Petitioners’ favor. This Court ordered Petitioners detained in furtherance of ongoing criminal actions. The public has a strong interest in the enforcement of criminal statutes. See generally In re Grand Jury Subpoena, 866 F.3d 231, 234 (5th Cir. 2017) (“We have previously recognized that due to the significant public interest in law enforcement, criminal prosecutions often take priority over civil actions . . . “). Any order that could jeopardize the underlying criminal case would run counter to the public’s interest in law enforcement. 2 Furthermore, it is not clear that modifying the Petitioners’ detention orders under § 3144 would actually result in their release. If the Petitioners’ have no legal status in this country, they may be detained under immigration authorities. Which authorities are implicated, and how they apply, depends upon the circumstances of each Petitioner. 8 https://app.slack.com/client/T5AG4BQQM/GNQTV4CAU 8/10 6/24/2020 Slack PDF Viewer Case 5:20-cv-00095 Document 6 Filed on 06/24/20 in TXSD Page 9 of 10 Similarly, when considering a motion for preliminary injunction, the court must “balance the competing claims of injury and must consider the effect” that granting or denying relief would have on each party. Winter, 555 U.S. at 24. Here, the government has an interest in the underlying criminal cases in which each Petitioner was ordered detained. Petitioners make much of the fact that most federal prosecutions end in a guilty plea. TRO Motion at 1 (“the overwhelming majority will never testify in any form because they will be released without testifying after a guilty plea”). But this raises the question whether criminal defendants would plead guilty if the witnesses against them were unavailable to testify. Ensuring that these witnesses are available to further a criminal enforcement action (whether through guilty pleas or trial verdicts), is the very reason Congress authorized the detention of material witnesses. An order requiring the Petitioners’ immediate release would frustrate that purpose, which causes the equities to weigh against the issuance of the requested TRO. CONCLUSION For the foregoing reasons, the Government respectfully request that Petitioners’ motion for a temporary restraining order be denied. Dated: June 24, 2020 Respectfully Submitted, RYAN K. PATRICK UNITED STATES ATTORNEY 9 https://app.slack.com/client/T5AG4BQQM/GNQTV4CAU 9/10 6/24/2020 Slack PDF Viewer Case 5:20-cv-00095 Document 6 Filed on 06/24/20 in TXSD Page 10 of 10 s/Jimmy A. Rodriguez JIMMY A. RODRIGUEZ Assistant United States Attorney Southern District of Texas Texas Bar No. 24037378 Federal ID No. 572175 1000 Louisiana, Suite 2300 Houston, Texas 77002 Tel: 713) (567-9532 Fax: (713) 718-3303 jimmy.rodriguez2@usdoj.gov Attorney-in-Charge for Defendant Michael P. Makens Assistant United States Attorney Southern District of Texas Texas Bar No. 24104845 Federal ID No. 3428802 11204 McPherson Road, 100A Laredo, Texas 78045 Tel: 956) (723-6523 Ce ll: (956) 388-0662 Michael.Makens@usdoj.gov Attorney for Defendant CERTIFICATE OF SERVICE I hereby certify that foregoing document was served on all counsel of record via the Court’s ECF system on June 24, 2020. s/Jimmy A. Rodriguez JIMMY A. RODRIGUEZ 10 https://app.slack.com/client/T5AG4BQQM/GNQTV4CAU 10/10