Defendants' Response to Motion to Relate Cases — East Bay Sanctuary Covenant, et al. v. Trump (July 17, 2019)

Summary

Defendants' Response to Motion to Relate Cases, Doc 117, filed July 17, 2019 in East Bay Sanctuary Covenant, et al. v. Donald J. Trump, et al., Civil Action No. 3:18-cv-06810-JST, in the Northern District of California. Defendants state that the motion to relate this case to East Bay Sanctuary Covenant v. Barr, No. 3-19-cv-04073, should be denied. Defendants argue that the two cases involve different claims, parties, events and rules, with this case challenging an interim final rule and the other challenging a rule titled Asylum Eligibility and Procedural Modifications. Defendants also argue that Plaintiffs' theory of relatedness would create an end-run around the random assignment of cases. The filing ends with a certificate of service bearing the /s/ of Erez Reuveni.

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Date: 2019-07-17

Cite this document

“Defendants' Response to Motion to Relate Cases — East Bay Sanctuary Covenant, et al. v. Trump (July 17, 2019).” Original at archive.org, dated 2019-07-17. Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/2019-07-17-defendants-response-to-motion-to-relate-cases-east-bay-sanctuary-v-barr-case-no/, SHA-256 7e3e8231b95a1eabc09d264025cc62fd51fcba9776c9ba6962ae33d99057b095.

Full text

Case 3:18-cv-06810-JST Document 117 Filed 07/17/19 Page 1 of 7

JOSEPH H. HUNT
1
Assistant Attorney General
2 SCOTT G. STEWART
Deputy Assistant Attorney General
3 AUGUST E. FLENTJE
Special Counsel
4
WILLIAM C. PEACHEY
5 Director
EREZ REUVENI
6 Assistant Director
7 Office of Immigration Litigation
U.S. Department of Justice, Civil Division
8 P.O. Box 868, Ben Franklin Station
Washington, DC 20044
9 Tel: (202) 307-4293
10 Email: Erez.R.Reuveni@usdoj.gov
PATRICK GLEN
11 Senior Litigation Counsel
FRANCESCA GENOVA
12 Trial Attorney
13
UNITED STATES DISTRICT COURT
14 FOR THE NORTHERN DISTRICT OF CALIFORNIA
15 )
16 East Bay Sanctuary Covenant, et al., )
) Civil Action No. 3:18-cv-06810-JST
17 )
Plaintiffs, ) DEFENDANTS’ RESPONSE TO
18
) MOTION TO RELATE CASES
19 )
v. )
20 )
Donald J. Trump, President of the United )
21
States, et al., )
22 )
Defendants. )
23 )
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DEFENDANTS’ RESPONSE
TO MOTION TO RELATE CASES
East Bay Sanctuary v. Barr,
Case No. 1:19-cv-04073-WHO
Case 3:18-cv-06810-JST Document 117 Filed 07/17/19 Page 2 of 7

1 Defendants submit this response in opposition to Plaintiffs’ motion to relate this case to
2 East Bay Sanctuary Covenant v. Barr, No. 3-19-cv-04073 (N.D. Cal.), currently assigned to Judge
3 Orrick. The motion should be denied. This case and Case No. 3-19-cv-04073 involve different
4 claims, different parties, different events, and challenges to completely different rules. The cases
5 are not related. The Court should reject Plaintiffs’ attempt to misuse the related-case mechanism.
6 Local Rule 3-12 provides that when an “action is related to another” because “(1) the
7 actions concern substantially the same parties, property, transaction or event, and (2) it appears
8 likely that there will be an unduly burdensome duplication of labor and expense or conflicting
9 results if the cases are conducted before different Judges.” Civil L.R. 3-12(a). “The fundamental
10 rationale for the general rule requiring random assignment of cases is to ensure greater public
11 confidence in the integrity of the judicial process. The rule guarantees fair and equal distribution
12 of cases to all judges, avoids public perception or appearance of favoritism in assignments, and
13 reduces opportunities for judge-shopping.” Tripp v. Executive Office of the President, 196 F.R.D.
14 201, 202 (D.D.C.2000) (discussing D.D.C. Rule 40.3).
15 Neither of those criteria is satisfied here. First, this case does not concern substantially the
16 same parties, property, transaction, or event as Case No. 3-19-cv-04073. This case involves a
17 challenge under the Administrative Procedure Act (APA) to an interim final rule, “Aliens Subject
18 to a Bar on Entry Under Certain Presidential Proclamations; Procedures for Protection Claims,”
19 83 Fed. Reg. 55,934 (Nov. 9, 2018). That rule renders ineligible for asylum any alien who illegally
20 crosses the southern border without presenting for inspection at a port of entry if a Presidential
21 proclamation forbidding such entry is in effect. See id. Plaintiffs allege that the rule violates 8
22 U.S.C. § 1158(a)(1) and was improperly issued without notice and comment under 5 U.S.C. § 553.
23 See Complaint ¶¶ 101-10.
24 Case No. 3-19-cv-04073 does not challenge that rule. Rather, it challenges an entirely
25 different rule, “Asylum Eligibility and Procedural Modifications,” 84 Fed. Reg. 33829 (July 16,
26 2019), that provides that “an alien who enters or attempts to enter the United States across the
27 southern border after failing to apply for protection in a third country outside the alien’s country
28 of citizenship, nationality, or last lawful habitual residence through which the alien transited en

DEFENDANTS’ RESPONSE
TO MOTION TO RELATE CASES
East Bay Sanctuary v. Barr,
Case No. 1:19-cv-04073-WHO
Case 3:18-cv-06810-JST Document 117 Filed 07/17/19 Page 3 of 7

1 route to the United States is ineligible for asylum.” Id. at 33830. Plaintiffs in Case No. 3-19-cv-
2 04073 allege that this rule violates the APA because it: (1) conflicts with numerous statutory
3 provisions (8 U.S.C. §§ 1158(a), (a)(2)(A), (b)(2)(A)(vi)), including provisions that are important
4 to Plaintiffs’ new challenge but are not at issue in this case, (2) was improperly issued without
5 notice and comment under 5 U.S.C. § 553, and (3) is arbitrary and capricious under the APA, 5
6 U.S.C. § 706(2)(A). See Complaint, Case No. 3-19-cv-04073, ¶¶ 137-50. Sections 1158(a)(2)(A)
7 and 1158(b)(2)(A)(vi) are not at issue in this case, this case does not involve any arbitrary-and-
8 capricious claim under the APA, and this case does not necessitate review of an administrative
9 record for purposes of assessing whether the challenged rule is arbitrary and capricious. Any
10 commonality in the general nature of the claims in the cases is superficial because the two cases
11 involve two completely different rules that must be assessed on their own merits. The aliens with
12 a direct interest in the new rule are also distinct from those affected by the 2018 rule challenged
13 here: the 2018 rule applies to those who crossed the border illegally, yet the new rule applies to
14 those who have not sought relief in a third country. So the two cases involve meaningfully different
15 legal challenges and drastically different record-based challenges.
16 Plaintiffs suggest these cases are “closely related” because both cases involve requests for
17 “declaratory and injunctive relief” directed at interim final rules issued without notice and arising
18 in the context of Executive Branch regulation of the border. Mot. 2. This Court should reject such
19 a boundless approach to deeming cases “related.” Thousands of cases could be said to involve
20 “declaratory and injunctive relief” directed at Executive action affecting the border. Plaintiffs’
21 theory of relatedness would create an end-run around the random assignment of cases in this or
22 any other jurisdiction and render a nullity general rules governing jurisdiction and venue. And the
23 possibility that both cases involve similar plaintiffs purporting to speak on behalf of migrants
24 arriving by way of Mexico does not mean the cases involve substantially similar property,
25 transactions, or events. See Nozolino v. Hartford Life & Acc. Ins. Co., No. 12-CV-04314-JST,
26 2013 WL 2468350, at *1 (N.D. Cal. June 7, 2013) (Tigar, J.) (rejecting claim that cases are related
27 because they involve claims brought under a similar statute and have a similar defendant). Instead,
28 the rules at issue in these two cases apply to different populations of aliens and those true parties

DEFENDANTS’ RESPONSE
TO MOTION TO RELATE CASES
East Bay Sanctuary v. Barr,
Case No. 1:19-cv-04073-WHO
Case 3:18-cv-06810-JST Document 117 Filed 07/17/19 Page 4 of 7

1 in interest are not identical. Were it otherwise, any case involving APA claims raised by aliens at
2 or near the southern border would be related. If anything, Plaintiffs’ claim that these cases involve
3 an understanding of events at the border raises questions as to why this case was brought in this
4 district rather than a district where the alleged events being challenged will take place, and gives
5 the appearance that Plaintiffs are forum-shopping in this jurisdiction rather than filing suit in a
6 jurisdiction on the border.
7 Plaintiffs also err in suggesting that the two cases concern substantially the same parties.
8 As to Defendants, the Department of Justice or Department of Homeland Security or their
9 components are defendants in nearly every immigration case, and their presence obviously does
10 not warrant circumventing the normal, random assignment of cases that applies in this District. To
11 hold otherwise would require every immigration case to be venued in this District and assigned to
12 this Court, which is contrary to the letter and purpose of the local rules. See L.R. 3-3(a); see also
13 General Order No. 44, A.2. The cases also involve different defendants: this case involves claims
14 directed at the President of the United States, and Case No. 3-19-cv-04073 does not. As for
15 Plaintiffs, their participation as organizational plaintiffs pushes the bounds of proper standing
16 based on their asserted injuries making asylum claims on behalf of individual clients, and should
17 not also warrant disregarding normal rules regarding venue and relatedness. In reality, and as
18 noted, the individuals with a direct interest in the rule here are distinct from those impacted by the
19 2019 rule challenged in the other case, in that the first rule applies to those who crossed the border
20 illegally, and the 2019 rule applies to those who have not sought protection in a third country
21 while en route to the United States.. Thus, the true parties in interest in both cases are different.
22 Second, Plaintiffs’ suggestion that the Court has already expended significant “resources
23 [] to understanding the legal issues and the factual background in” this case, Mot. 4, does not show
24 that there will be an unduly burdensome duplication of labor and expense or conflicting results if
25 the cases are conducted before different judges. Again, as noted, the cases involve different
26 policies and are challenges based on different statutory provisions, will entail review of different
27 administrative records, and involve factual allegations that are unique to each case. The fact that
28 both cases involve APA claims generally or that some aspect of the government is a defendant

DEFENDANTS’ RESPONSE
TO MOTION TO RELATE CASES
East Bay Sanctuary v. Barr,
Case No. 1:19-cv-04073-WHO
Case 3:18-cv-06810-JST Document 117 Filed 07/17/19 Page 5 of 7

1 does not mean litigating the cases separately will be an unduly burdensome duplication of labor.
2 Indeed, the opposite is true: the administrative record in this case will be largely irrelevant to
3 review in Case No. 3-19-cv-04073, as each APA case must be reviewed on its own administrative
4 record. Again, the legal issues and factual background of both cases are different, and suggesting
5 otherwise prejudges the new case on the merits in a manner suggestive of forum shopping.
6 This is not the first time Plaintiffs have asked this Court to relate this case to an unrelated
7 case involving immigration policies at the border. In February of this year Plaintiffs Innovation
8 Law Lab, Central American Resource Center, and Al Otro Lado—three of the four Plaintiffs in
9 this case—asked this Court to relate this case to Innovation Law Lab v. Nielsen, No. 3-19-cv-00807
10 (N.D. Cal.). That case involved a challenge to a different border initiative, the “Migrant Protection
11 Protocols” (MPP), issued by the Department of Homeland Security and its components. There, as
12 here, Plaintiffs asserted that the cases involve a “substantially similar body of facts,” and “require
13 an understanding of … the southern border.” Motion to Relate Cases (ECF 110) at 2. This Court
14 denied the motion, concluding that “no cases are related and no reassignments shall occur.” See
15 ECF 112. Plaintiffs repeat similar arguments for relating this case and Case No. 3-19-cv-04073,
16 and they carry no more weight than in Innovation Law Lab, suggesting that Plaintiffs are again
17 asking for related case treatment simply because they think that this Court will rule for them, not
18 because the cases are actually related. Allowing such repeat forum-shopping does discredit to the
19 Court and undermines the purposes of random case assignment.
20 For these reasons, the government respectfully submits that these cases are not related and
21 that Plaintiffs’ motion should be denied.
22 //
23 //
24 //
25 //
26 //
27 //
28 //

DEFENDANTS’ RESPONSE
TO MOTION TO RELATE CASES
East Bay Sanctuary v. Barr,
Case No. 1:19-cv-04073-WHO
Case 3:18-cv-06810-JST Document 117 Filed 07/17/19 Page 6 of 7

Respectfully submitted,
1
2 JOSEPH H. HUNT
Assistant Attorney General
3
SCOTT G. STEWART
4
Deputy Assistant Attorney General
5
AUGUST E. FLENTJE
6 Special Counsel
7
WILLIAM C. PEACHEY
8 Director
9 By: /s/ Erez Reuveni
10 EREZ REUVENI
Assistant Director
11 Office of Immigration Litigation
U.S. Department of Justice, Civil Division
12 P.O. Box 868, Ben Franklin Station
13 Washington, DC 20044
Tel: (202) 307-4293
14 Email: Erez.R.Reuveni@usdoj.gov
15 PATRICK GLEN
16 Senior Litigation Counsel

17 FRANCESCA GENOVA
Trial Attorneys
18
19 Dated: July 17, 2019 Attorneys for Defendants

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DEFENDANTS’ RESPONSE
TO MOTION TO RELATE CASES
East Bay Sanctuary v. Barr,
Case No. 1:19-cv-04073-WHO
Case 3:18-cv-06810-JST Document 117 Filed 07/17/19 Page 7 of 7

1 CERTIFICATE OF SERVICE
2 I hereby certify that on July 17, 2019 I electronically filed the foregoing document with the
3 Clerk of the Court for the United States Court of for the Northern District of California by using
4 the CM/ECF system. Counsel in the case are registered CM/ECF users and service will be
5 accomplished by the CM/ECF system.
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By: /s/ Erez Reuveni
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EREZ REUVENI
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DEFENDANTS’ RESPONSE
TO MOTION TO RELATE CASES
East Bay Sanctuary v. Barr,
Case No. 1:19-cv-04073-WHO

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