8:12-cv-01137 #13

Case 8:12-cv-01137-CBM-AJW Document 13
Filed 08/23/12 Page 1 of 21 Page ID #:134
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CENTER FOR HUMAN RIGHTS AND CONSTITUTIONAL LAW Peter A. Schey (Cal. Bar No. 58232) Carlos R. Holgun (Cal. Bar No. 90754) 256 S. Occidental Blvd. Los Angeles, CA 90057 Telephone: (213) 388-8693 (Schey Ext. 304, Holgun ext. 309) Facsimile: (213) 386-9484 pschey@centerforhumanrights.org crholguin@centerforhumanrights.org Additional counsel listed next page Attorneys for Plaintiffs UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA, SOUTHERN DIVISION ) ) ) ) ) ) Plaintiffs, ) ) ) v. ) ) ) ) Janet NAPOLITANO, Secretary of the ) Department of Homeland Security; ) Alejandro MAYORKAS, Director, United ) ) States Citizenship & Immigration ) Services; ) ) UNITED STATES CITIZENSHIP & ) IMMIGRATION SERVICES; and ) ) DEPARTMENT OF HOMELAND ) SECURITY, ) ) Defendants. ________________________________ SACV12-01137 CBM (AJWx) NOTICE OF MOTION AND MOTION FOR PROVISIONAL CLASS CERTIFICATION.
Martin R. ARANAS, Irma RODRIGUEZ, and 14 Jane DELEON,
Hearing: September 24, 2012 Time: 10:00 a.m. Hon. Consuelo B. Marshall Spring St., Courtroom No. 2
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Motion for Class Certification
Additional counsel for plaintiff Aranas: PUBLIC LAW CENTER Julie Greenwald (Cal. Bar No. 233714) Monica Ashiku (Cal. Bar No. 263112) 601 Civic Center Drive West Santa Ana, CA 92701 Telephone: (714) 541-1010 (Greenwald Ext. 263, Ashiku Ext. 249) Facsimile: (714) 541-5157 jgreenwald@publiclawcenter.org mashiku@publiclawcenter.org ASIAN LAW ALLIANCE Beatrice Ann M. Pangilinan (Cal. Bar No. 271064) 184 Jackson Street, San Jose, CA 95112 Telephone: (408) 287-9710 Facsimile: (408) 287-0864 Email: bpangilinan@asianlawalliance.org Additional counsel for plaintiffs Rodriguez and DeLeon: LAW OFFICES OF MANULKIN & BENNETT Gary H. Manulkin (Cal. Bar No. 41469) Reyna M. Tanner (Cal. Bar No. 197931) 10175 Slater Avenue, Suite 111 Fountain Valley, CA 92708 Telephone: 714-963-8951 Facsimile: 714-968-4948 gmanulkin@mgblaw.com reynatanner@yahoo.com ///
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Center for Human Rights & Constitutional Law 256 S. Occidental Blvd. Los Angeles, CA 90057 213/388-8693
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To defendants and their attorneys of record: PLEASE TAKE NOTICE that on September 24, 2012, at 10:00 a.m., or as soon thereafter as counsel may be heard, plaintiffs will and do hereby move the Court for an order provisionally certifying this case as a class action pursuant to Rule 23(b)(2) of the Federal Rules of Civil Procedure on behalf of the following classes of similarly situated persons: All members of lawful same-sex marriages whom the Department of Homeland Security, pursuant to 3 of the Defense of Marriage Act, 1 U.S.C. 7, has refused or will refuse to recognize as spouses for purposes of conferring lawful status and related benefits under the Immigration and Nationality Act, 8 U.S.C. 1101 et seq.
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This motion is based upon the accompanying memorandum of law and exhibits, and upon all other matters of record herein. A proposed order is lodged concurrently herewith. This motion is made following conferences of counsel pursuant to Local Rule 7-3 which took place on July19 and 26, and August 2, 9, and 13, 2012. Defendants stated they decline to take a position on this motion until after they have had an opportunity to review plaintiffs moving papers. Dated: August 23, 2012. CENTER FOR HUMAN RIGHTS AND CONSTITUTIONAL LAW Peter A. Schey Carlos R. Holgun PUBLIC LAW CENTER Julie Greenwald Marzouk Monica Ashiku ASIAN LAW ALLIANCE Beatrice Ann M. Pangilinan LAW OFFICES OF MANULKIN & BENNETT Gary H. Manulkin Reyna M. Tanner /s/ Peter A. Schey________________ /s/ Carlos R. Holgun _____________ Attorneys for Plaintiffs
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Certificate of Service SACV12-01137 CBM (AJWX) I hereby certify that on this 23rd day of August, 2012, I electronically filed the foregoing NOTICE OF MOTION FOR CLASS CERTIFICATION with the Clerk of Court by using the CM/ECF system, which provided an electronic notice and electronic link of the same to all attorneys of record through the Courts CM/ECF system. Dated: August 23, 2012. /// /s/ Karena Heredia ______________
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CENTER FOR HUMAN RIGHTS AND CONSTITUTIONAL LAW Peter A. Schey (Cal. Bar No. 58232) Carlos R. Holgun (Cal. Bar No. 90754) 256 S. Occidental Blvd. Los Angeles, CA 90057 Telephone: (213) 388-8693 (Schey Ext. 304, Holgun ext. 309) Facsimile: (213) 386-9484 pschey@centerforhumanrights.org crholguin@centerforhumanrights.org Additional counsel listed next page Attorneys for Plaintiffs UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA, SOUTHERN DIVISION ) ) ) ) ) ) Plaintiffs, ) ) ) v. ) ) ) ) Janet NAPOLITANO, Secretary of the ) Department of Homeland Security; ) Alejandro MAYORKAS, Director, United ) ) States Citizenship & Immigration ) Services; ) ) UNITED STATES CITIZENSHIP & ) IMMIGRATION SERVICES; and ) ) DEPARTMENT OF HOMELAND ) SECURITY, ) ) Defendants. ________________________________ SACV12-01137 CBM (AJWx) MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR CLASS CERTIFICATION.
Martin R. ARANAS, Irma RODRIGUEZ, and 14 Jane DELEON,
Hearing: September 24, 2012 Time: 10:00 a.m. Hon. Consuelo B. Marshall Spring St., Courtroom No. 2
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OUTLINE OF CONTENTS I Introduction ............................................................................................................ 1 II Proposed class definition. ..................................................................................... 3 III This action satisfies the requirements of rule 23(a). ............................................ 4 A Numerosity and impracticality of joinder. ................................................. 5 B Common questions of law or fact. .............................................................. 6 C Typicality of claims. ................................................................................... 7 D Adequacy of representation........................................................................ 8 IV This action satisfies the requirements of Rule 23(b)(2)....................................... 9 V Conclusion ............................................................................................................ 11
TABLE OF AUTHORITIES Adashunas v. Negley, 626 F.2d 600 (7th Cir. 1980).................................................... 4 American Airlines, Inc. v. Transport Workers Union, 44 F.R.D. 47 (N.D. Okla. 1968) ................................................................................................... 6 Arkansas Education Association v. Board of Education, 446 F.2d 763 (8th Cir. 1971) ........................................................................................................ 4 Carey v. Greyhound Bus Co., 500 F.2d 1372 (5th Cir. 1974) ..................................... 4 Catholic Social Services, Inc. v. Reno, Civ. S-86-1343 LKK (E.D. Cal.) ........................................................................................................................ 9 Cullen v. New York State Civil Service Commission, 435 F. Supp. 546 (E.D.N.Y. 1977) ..................................................................................................... 6 Eisen v. Carlisle and Jacqueline, 391 F.2d 555 (2nd Cir. 1968) ................................ 5 Haitian Refugee Center v. Smith, 676 F.2d 1023 (5th Cir. 1982) ............................... 7 Illinois Migrant Council v. Pilliod, 540 F.2d 1062 (7th Cir. 1976), modified, 548 F.2d 715 (7th Cir. 1977) .................................................................. 9 In re U.S. Financial Securities Litigation, 69 F.R.D. 24 (S.D.Cal. 1975)....................................................................................................................... 5 Johnson v. Georgia Highway Express, Inc., 417 F.2d 1122 (5th Cir. 1969)....................................................................................................................... 7 Jordan v. County of Los Angeles, 669 F.2d 1311 (9th Cir. 1982) ............................... 4 League of United Latin American Citizens v. Wilson, 131 F.3d 1297
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(9th Cir. 1997) ........................................................................................................ 8 Mendez v. INS, 563 F.2d 956 (9th Cir. 1977) .............................................................. 7 Immigrant Assistance Project v. INS, 709 F. Supp. 998 (W.D.Wa. 1989)....................................................................................................................... 7 Mersay v. First Republic Corp., 43 F.R.D. 465 (S.D.N.Y. 1968) ............................... 6 National Center for Immigrants' Rights, Inc. v. INS, Civ. No. 837927-KN (C.D. Cal.) .............................................................................................. 9 Newman, et al., v. Immigration & Naturalization Service, et al., No. CV 87-4757-WDK (C.D. Cal.)............................................................................... 9 Norwalk CORE v. Norwalk Redevelopment Agency, 395 F.2d 920 (2nd Cir. 1968) ....................................................................................................... 6 Orantes-Hernandez v. Smith, 541 F. Supp. 351 (C.D. Cal. 1982) ...................... 5, 6, 7 Plyler v. Doe, 457 U.S. 202; 102 S. Ct. 2382; 72 L. Ed. 2d 786 (1982) ..................... 7 Ramon Sepulveda v. INS, 863 F.2d 1458 (9th Cir. 1988)............................................ 7 Reno v. Catholic Social Services, 509 U.S. 43; 113 S. Ct. 2485; 125 L. Ed. 2d 38 (1993) ..................................................................................................... 8 Reno v. Flores, 507 U.S. 292; 113 S. Ct. 1439; 123 L. Ed. 2d 1 (1993) ..................... 8 Senter v. General Motors Corp., 532 F.2d 511 (6th Cir. 1976), cert. denied, 429 U.S. 870 (1976)................................................................................... 5 Thomas & Thomas Rodmakers, Inc. v. Newport Adhesives & Composites, Inc., 209 F.R.D. 159 (C.D. Cal. 2002)............................................... 3 Yaffe v. Powers, 454 F.2d 1362 (1st Cir. 1972)....................................................... 3, 5 Statutes, Rules and Regulations Rule 23, Fed.R.Civ.Proc. ....................................................................................passim Defense of Marriage Act, Pub. L. 104-199, 3(a), 110 Stat. 2419, codified at 1 U.S.C. 7.................................................................................................. 1 8 U.S.C. 1101, et seq ................................................................................................ 1 Other Authorities 7A Wright & Miller, FEDERAL PRACTICE AND PROCEDURE, 1775......................... 8 7A Wright, Miller & Kane, Federal Practice and Procedure 1760............................. 3
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR CLASS CERTIFICATION I INTRODUCTION This is an action for declaratory and injunctive relief challenging discrimination in the conferring of benefits under the Immigration and Nationality Act, 8 U.S.C. 1101, et seq. (INA), against members of lawful marriages solely because the spouses are of the same sex. Plaintiffs contend that members of marriages lawful under the law of the state of celebration are entitled to recognition as spouses under the INA regardless of their members sex or sexual orientation. Defendant U.S. Citizenship & Naturalization Services (CIS) declines to recognize these marriages in accord with 3(a) of the Defense of Marriage Act, Pub. L. 104-199, 3(a), 110 Stat. 2419, codified at 1 U.S.C. 7 (DOMA),1 though the agency concedes the statute is unconstitutional. As applied to plaintiffs and those similarly situated, the DOMA takes a unitary class of married couples and divides it in two: opposite-sex couples who are treated as married and have access to interim and final benefits under the INA, and same-
DOMA 3 provides: In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word 'marriage' means only a legal union between
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sex couples whose marriages do not exist insofar as conferring interim or permanent lawful status under the INA. Denied lawful status solely on account of their sex and sexual orientation, immigrant spouses of U.S. citizens and lawfully present aliens (and their immigrant children, as in the case of plaintiff Aranas), unlike their heterosexual counterparts, are often consigned to the undocumented underground where they are subject to detention and removal, denied the right to work lawfully in the United States so they may survive and support their families, face a range of exploitative situations, and are treated by the Government as being in unauthorized status which triggers future bars to admission as lawful permanent residents. As shown in plaintiffs concurrently filed motion for preliminary injunction, this discrimination and sundering of families denies both substantive due process and equal protection in violation of the Fifth Amendment to the United States Constitution. DOMA 3 must survive heightened scrutiny because it discriminates based on sex and sexual orientation, intimate matters which lie at the heart of individual autonomy and liberty, and as such, are not proper bases for governmental classification absent an important reason for making them so. As plaintiffs motion for preliminary injunction demonstrates, the Government has no important, nor even rational, basis for discriminating against same-sex couples. There is no dispute that defendants have applied and will continue to apply DOMA 3 to deny recognition to same-sex marriages when implementing the INA.
one man and one woman as husband and wife, and the word 'spouse' refers only to a person of the opposite sex who is a husband or a wife.
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It is equally clear that whether their doing so comports with the constitutional guarantees of due process and equal protection is a question of law common to all members of same-sex marriages refused immigration benefits under the INA solely because of DOMA 3. This is a question of law that effects immigrants and their U.S. citizen and lawful resident spouses throughout the country and should be settled in a single proceeding: if any such marriages are entitled to recognition under the INA, all are. Furthermore, and importantly in this case, what temporary protection plaintiffs and their proposed class members receive while the courts address DOMAs constitutionality should be uniform and its availability known to plaintiffs and putative class members. This action is a paradigmatic candidate for class treatment; it should accordingly be certified pursuant to Rule 23, Fed. R. Civ. Proc.2 II PROPOSED CLASS DEFINITION. Rule 23 contains an implicit requirement that the class be defined so that the class membership is ascertainable. Thomas & Thomas Rodmakers, Inc. v. Newport Adhesives & Composites, Inc., 209 F.R.D. 159, 163 (C.D. Cal. 2002). A Rule 23(b)(2) class, is adequately defined so long as the general outlines of
Rule 23 provides that class certification should be sought as soon as practicable. Plaintiffs recognize this motion is made early in these proceedings, but proposed class members are suffering irreparable injury as a result of defendants applying the DOMA 3 to deny them lawful status and the right to work in the United States. Class certification, even if provisional, should be granted in order to protect absent class members from irreparable injury. Zepeda v. United States Immigration & Naturalization Service, 753 F.2d 719, 727 (9th Cir. 1983) (class-wide preliminary injunctive relief may only be granted if the court has certified or provisionally certified a class).
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the membership of the class are determinable at the outset of the litigation, 7A Wright, Miller & Kane, FEDERAL PRACTICE AND PROCEDURE 1760 at 118, and it is administratively feasible for the court to determine whether a particular individual is a member. Id. at 121. Plaintiffs seek provisional certification under Rule 23(b)(2) of the following class: All members of lawful same-sex marriages whom the Department of Homeland Security, pursuant to 3 of the Defense of Marriage Act, 1 U.S.C. 7, has refused or will refuse to recognize as spouses for purposes of conferring lawful status and related benefits under the Immigration and Nationality Act, 8 U.S.C. 1101 et seq. As proposed, the class definition comprises a group whose path to lawful status defendants uniformly block pursuant to DOMA 3. These proposed class members have all suffered [] statutory violations warranting some relief. Adashunas v. Negley, 626 F.2d 600, 604 (7th Cir. 1980). Class members may be readily identified by whether they have suffered the specified injury. Defendants apply DOMA 3 uniformly to every immigrant who is married to a person of the same sex. Defendants uniformly deny recognition they would otherwise grant if only the proposed class members were married to someone of a different sex. The proposed class definition accordingly satisfies Rule 23. III THIS ACTION SATISFIES THE REQUIREMENTS OF RULE 23(a). To receive class treatment an action must also satisfy the four requirements of
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Rule 23(a) of the Federal Rules of Civil Procedure. The instant action does so. A Numerosity and impracticality of joinder.
Rule 23(a)(1) requires that the class be so numerous that joinder is impractical. Courts generally find the numerosity requirement of Rule 23(a)(1) satisfied when relatively few class members are involved. See, e.g., Jordan v. County of Los Angeles, 669 F.2d 1311, 1319 (9th Cir. 1982); Carey v. Greyhound Bus Co., 500 F.2d 1372, 1381 (5th Cir. 1974) (number of class members assumed to be 28); Arkansas Education Association v. Board of Education, 446 F.2d 763, 765-66 (8th Cir. 1971) (class membership of 20 persons). It is not necessary to determine the exact size of the class in order to satisfy Rule 23(a)(1), especially where it would do no practical good to identify all individual class members when ruling on a certification motion. In re U.S. Financial Securities Litigation, 69 F.R.D. 24, 34 (S.D.Cal. 1975). Rather, the conduct complained of is the benchmark for determining whether a subdivision (b)(2) class exists, making it uniquely suited to civil rights actions in which the members of the class are often incapable of specific enumeration. Yaffe, supra, 454 F.2d at 1366 (emphasis supplied). Where the exact size of the class is unknown but general knowledge and common sense indicate that it is large, the numerosity requirement is satisfied. Orantes-Hernandez v. Smith, 541 F. Supp. 351, 371 (C.D. Cal. 1982). The numerosity requirement of Rule 23(a)(1) is satisfied here. Plaintiffs
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challenge a statute that is uniformly applied against a constantly increasing number of lawfully married same-sex couples and their immigrant children. This action accordingly satisfies the numerosity requirement of Rule 23(a)(1). B Common questions of law or fact.
Rule 23(a)(2) requires that there be questions of law or fact common to the class. Even where there are individual variations in the facts or legal issues as they relate to a particular named plaintiff or proposed class member, the commonality requirement is satisfied so long as the class shares some common question of law or fact. See, e.g., Eisen v. Carlisle and Jacqueline, 391 F.2d 555, 562 (2nd Cir. 1968) (class certification granted notwithstanding varying fact patterns underlying each individual ... transaction ...); Senter v. General Motors Corp., 532 F.2d 511, 524 (6th Cir. 1976), cert. denied, 429 U.S. 870 (1976) (class certification granted in employment discrimination action brought on behalf of Black employees even though it was manifest that every decision to hire, fire or discharge an employee may involve individual considerations); Norwalk CORE v. Norwalk Redevelopment Agency, 395 F.2d 920, 937 (2nd Cir. 1968) (class certified in challenge to relocation practices of urban renewal project despite the different treatment suffered by each tenant during the relocation process); Cullen v. New York State Civil Service Commission, 435 F. Supp. 546, 559 (E.D.N.Y. 1977) (class certification granted in lawsuit challenging coercive practices in obtaining political contributions from public employees even though fact questions specific to each instance of the alleged
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coercion will remain). Common questions of law presented in this proposed class action include whether defendants applying DOMA 3 to deny recognition to same-sex marriages under the INA denies plaintiffs and their proposed class members due process or equal protection under the Fifth Amendment. It is clear that the claims plaintiffs present here raise questions of law (due process and equal protection) and fact (same-sex marriages) common to all proposed class members. C Typicality of claims.
Rule 23(a)(3) requires that the claims of the named plaintiffs be typical of the claims ... of the class. Meeting this requirement usually follows from the presence of common questions of law, and courts have thus construed subdivisions (a)(2) and (a)(3) as largely duplicative. Orantes-Hernandez v. INS, supra, 541 F. Supp. at 371; American Airlines, Inc. v. Transport Workers Union, 44 F.R.D. 47, 48 (N.D. Okla. 1968) (holding (a)(3) met by representatives sharing common with the class any claim or defense it has); Mersay v. First Republic Corp., 43 F.R.D. 465, 468-69 (S.D.N.Y. 1968) (allegation that defendants engage in scheme common to all members of class held to support finding that claims of representative party typical). As has been seen, the case at bar presents only common questions. Plaintiff DeLeon has applied for an immigration benefit under the INA based upon her same-sex marriage to plaintiff Rodriguez, and her application has been denied solely based upon DOMA. Her son, plaintiff Aranas, is eligible for accompanying relative status
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but his eligibility is strictly linked to the eligibility of his mother, plaintiff DeLeon. Plaintiffs claims are clearly typical of those of the proposed class. D Adequacy of representation.
The final requirement for class certification set out in Rule 23(a)(4), is that the named plaintiffs will fairly and adequately protect the interest of the class. The two principal elements of this requirement are (1) that the class representatives interests are co-extensive and not antagonistic to the class members; and (2) that counsel for the named representatives are qualified. Johnson v. Georgia Highway Express, Inc., 417 F.2d 1122, 1124-25 (5th Cir. 1969). Plaintiffs here have no interests in conflict with those of the proposed class members. The named plaintiffs seek the same injunctive and declaratory relief for the class as they do for themselves. Plaintiffs seek to vindicate rights that are violated through the uniform application of the DOMA. Their goal is to declare defendants applying DOMA 3 against members of same-sex couples unlawful and to enjoin further application of DOMA 3 when defendants adjudicate applications for benefits available under the INA. Plaintiffs lead counsel are employed by a non-profit organization specializing in complex federal litigation on behalf of immigrants and refugees. They have successfully litigated numerous class actions and individual cases in the federal courts involving the rights of immigrants. See, e.g., Plyler v. Doe, 457 U.S. 202 (1982); Ramon Sepulveda v. INS, 863 F.2d 1458 (9th Cir. 1988); Haitian Refugee Center v. Smith, 676 F.2d 1023 (5th Cir. 1982); Mendez v. INS, 563 F.2d 956 (9th
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Cir. 1977); Immigrant Assistance Project v. INS, 709 F. Supp. 998 (W.D.Wa. 1989); Orantes-Hernandez v. Smith, 541 F. Supp. 351 (C.D. Cal. 1982); League of United Latin American Citizens v. Wilson, 131 F.3d 1297 (9th Cir. 1997); Reno v. Catholic Social Services, 509 U.S. 43 (1993); Reno v. Flores, 507 U.S. 292 (1993); PerezOlano v. Gonzalez, 248 F.R.D. 248 (C.D. Cal. 2008). Counsel will adequately represent the proposed class. The requirements of Rule 23(a)(4) are accordingly satisfied. IV THIS ACTION SATISFIES THE REQUIREMENTS OF RULE 23(b)(2). In addition to satisfying the four requirements of Rule 23(a), a class action must meet one of the requirements of Rule 23(b). This action meets the requirements of Rule 23(b)(2): i.e., the party opposing the class has acted or refused to act on grounds generally applicable to the class thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole ... In a (b)(2) class action the party opposing the class does not have to act directly against each member of the class. As long as his actions would affect all persons similarly situated, his acts apply generally to the whole class. 7A Wright & Miller, FEDERAL PRACTICE AND PROCEDURE, 1775, at 19. In this case defendants uniformly apply DOMA 3 to deny lawfully married couples and their immigrant children immigration benefits. Plaintiffs allege they do so in violation of the equal protection and due process guarantees of the Fifth Amendment to the United States Constitution. The proposed class in this case is
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created by the policies and practices at issue. Courts have repeatedly certified classes consisting of immigrants subject to challenged statutes, regulations, practices or policies. See, e.g., Catholic Social Services, Inc. v. Reno, Civ. S-86-1343 LKK (E.D. Cal.); Newman, et al., v. Immigration & Naturalization Service, et al., No. CV 87-4757-WDK (C.D. Cal.); Immigrant Assistance Project v. INS, Civil No. C-88-379R (W.D. Wa.); National Center for Immigrants' Rights, Inc. v. INS, Civ. No. 83-7927-KN (C.D. Cal.) (order issued July 9, 1985, certifying a nationwide class of all persons subjected to an INS regulation under challenge); see generally Illinois Migrant Council v. Pilliod, 540 F.2d 1062, 1072 (7th Cir. 1976), modified, 548 F.2d 715 (7th Cir. 1977). The requirements of subsection (b)(2) have accordingly been met.
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CONCLUSION For the foregoing reasons, this action should be certified as a class action
pursuant to Rule 23(b), Fed.R.Civ.Proc. Dated: August 23, 2012. CENTER FOR HUMAN RIGHTS AND CONSTITUTIONAL LAW Peter A. Schey Carlos R. Holgun PUBLIC LAW CENTER Julie Greenwald Marzouk Monica Ashiku ASIAN LAW ALLIANCE Beatrice Ann M. Pangilinan LAW OFFICES OF MANULKIN & BENNETT Gary H. Manulkin Reyna M. Tanner /s/ Peter A. Schey________________ /s/ Carlos R. Holgun _____________ /// Attorneys for Plaintiffs
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CERTIFICATE OF SERVICE SACV12-01137 CBM (AJWX) I hereby certify that on this 23rd day of August, 2012, I electronically filed the foregoing MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF CLASS CERTIFICATION with the Clerk of Court by using the CM/ECF system, which provided an electronic notice and electronic link of the same to all attorneys of record through the Courts CM/ECF system.
Dated: August 23, 2012. ///
/s/ Karena Heredia ______________
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Case 8:12-cv-01137-CBM-AJW Document 13-1 #:155
Filed 08/23/12 Page 1 of 10 Page ID
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CENTER FOR HUMAN RIGHTS AND CONSTITUTIONAL LAW Peter A. Schey (Cal. Bar No. 58232) Carlos R. Holgun (Cal. Bar No. 90754) 256 S. Occidental Blvd. Los Angeles, CA 90057 Telephone: (213) 388-8693 (Schey ext. 304; Holgun ext. 309) Facsimile: (213) 386-9484 pschey@centerforhumanrights.org crholguin@centerforhumanrights.org Counsel for Plaintiffs Additional counsel for plaintiffs listed next page UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA, WESTERN DIVISION
Martin R. ARANAS, 16 Irma RODRIGUEZ, and 17 Jane DELEON, 18 19 20 21 22 23 24 25 26 27 28
) ) ) ) ) ) Plaintiffs, ) ) ) ) v. ) ) Janet NAPOLITANO, Secretary of the ) Department of Homeland Security; ) Alejandro MAYORKAS, Director, United ) ) States Citizenship & Immigration ) ) Services; ) UNITED STATES CITIZENSHIP & ) IMMIGRATION SERVICES; and ) ) DEPARTMENT OF HOMELAND ) SECURITY, ) ) ) Defendants. ) _______________________________ )
SACV12-01137 CBM (AJWx) [PROPOSED] ORDER PROVISIONALLY CERTIFYING CLASS ACTION.
Hearing: Sept. 24, 2012 Time: 10:00 a.m. Hon. Consuelo B. Marshall
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[Proposed] Order re: Class Certification
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This matter came on regularly for hearing on the plaintiffs motion for class certification. The Court has considered the briefs, evidence, and argument in support of and in opposition to plaintiffs motion and now rules on plaintiffs motion as follows: In this action plaintiffs seek declaratory and injunctive relief barring defendants Secretary of U.S. Department of Homeland Security (DHS) and United States Citizenship and Immigration Services (CIS) from discriminating against lawfully married couples applying for benefits under the Immigration and Nationality Act (INA) on the basis of sex or sexual orientation. Plaintiffs contend that 3 of the Defense of Marriage Act, Pub. L. 104-199, 3(a), 110 Stat. 2419, codified at 1 U.S.C. 7 (DOMA), as CIS applies it against same-sex couples, is irrational, serves no cognizable governmental interest, and accordingly denies due process and equal protection in violation of the Fifth Amendment to the United States Constitution. Plaintiffs move the Court to certify this case as a class action pursuant to Rule 23(b)(2), Fed.R.Civ.Proc., on behalf of the following class of similarly situated persons: All members of lawful same-sex marriages whom the Department of Homeland Security, pursuant to 3 of the Defense of Marriage Act, 1 U.S.C. 7, has refused or will refuse to recognize as spouses for purposes of conferring lawful status and related benefits under the Immigration and Nationality Act, 8 U.S.C. 1101 et seq.
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The question before the Court is whether this action meets the requirements for class treatment under Rule 23, Fed.R.Civ.Proc. Rule 23 outlines a two-step process for determining whether class certification is appropriate. First, Rule 23(a) sets forth four prerequisites that must be met for any class: (1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class. Fed.R.Civ. Proc. 23(a). Hanon v. Dataproducts Corp., 976 F.2d 497, 508 (9th Cir. 1992). Second, the party seeking class certification must demonstrate that the action falls within one of the three kinds of actions permitted under Rule 23(b). Id. at 153. Rule 23 includes an implicit requirement that the class be adequately defined so that the class membership is ascertainable. Thomas & Thomas Rodmakers, Inc. v. Newport Adhesives & Composites, Inc., 209 F.R.D. 159, 163 (C.D. Cal. 2002). Defining a class as consisting of all persons who have been or will be affected by the conduct charged to the defendants is entirely appropriate where only injunctive or declaratory relief is sought. Indeed, the principal beneficiaries of an injunctive decree would seem likely to be those class members whose rights have not yet been violated. Fischer v. Dallas Federal Sav. & Loan Asso., 106 F.R.D. 465, 470 (N.D. Tx. 1985), affd, 835 F.2d 567 (5th Cir. 1988).
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Here members are defined explicitly by whether they have suffered specific injury; namely denial of benefits under the INA solely because they are in a samesex marriage. The class definition accordingly meets the requirements of Rule 23, Fed.R.Civ.Proc. Rule 23(a)(1) requires that the class be so numerous that joinder is impractical. It is not necessary to determine the exact size of the class in order to satisfy Rule 23(a)(1), especially where it would be unreasonable to require the named plaintiffs to identify the names of all class members. Welling v. Alexy, 155 F.R.D. 654, 656 (N.D. Cal. 1994). Rather, the conduct complained of is the benchmark for determining whether a subdivision (b)(2) class exists, making it uniquely suited to civil rights actions in which the members of the class are often incapable of specific enumeration. Yaffe v. Powers, 454 F.2d 1362, 1366 (1st Cir. 1972). Where the exact size of the class is unknown but general knowledge and common sense indicate that it is large, the numerosity requirement is satisfied. Orantes-Hernandez v. Smith, 541 F. Supp. 351, 371 (C.D. Cal. 1982). The numerosity requirement of Rule 23(a)(1) is satisfied here. Plaintiffs are challenging a statute that indisputably adversely effects hundreds or thousands of persons. Rule 23(a)(2) requires that there be questions of law or fact common to the class. Even where there are individual variations in the facts or legal issues as they relate to a particular named plaintiff or proposed class member, the commonality
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requirement is satisfied so long as the class shares some common question of law or fact. See, e.g., Eisen v. Carlisle and Jacqueline, 391 F.2d 555, 562 (2nd Cir. 1968). The common questions of fact presented in this action include whether CIS denies immigration benefits to the foreign born spouses of U.S. citizens and lawful permanent residents solely because they are of the same sex as their spouses. Common questions of law presented in this proposed class action include whether the DOMA, as applied to deny immigration benefits to bi-national same-sex couples, denies due process or equal protection in violation of the Fifth Amendment to the United States Constitution. Plaintiffs accordingly satisfy the commonality requirement of Rule 23(a)(2). Rule 23(a)(3) requires that the claims of the named plaintiffs be typical of the claims ... of the class. Meeting this requirement usually follows from the presence of common questions of law. Mersay v. First Republic Corp., 43 F.R.D. 465, 468-69 (S.D.N.Y. 1968). Where an action challenges a policy or practice, named plaintiffs that suffer one specific injury from the practice may represent a class suffering additional injuries, so long as all the injuries are shown to result from the practice. General Tel. Co. of Southwest v. Falcon, 457 U.S. 147, 157-59, 102 S. Ct. 2364, 72 L. Ed. 2d 740 (1982). As set forth above, plaintiffs claims present common questions of law and fact surrounding the constitutionality of the DOMA. Furthermore, plaintiffs claims are typical of the proposed class. They are legally married, their spouses are of the same sex, they have applied for benefits under the INA based upon their marriage, and they have been denied benefits under the INA
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solely because they are in a same sex marriage. The typicality requirement of Rule 23(a)(3) is therefore satisfied. The final requirement for class certification is that the named plaintiff will fairly and adequately protect the interest of the class. Rule 23(a)(4), Fed.R.Civ.Proc. This requirement is satisfied where (1) the class representatives interests are not antagonistic to the class members; and (2) counsel for the named representatives are qualified to represent the proposed class. Burkhalter Travel Agency v. MacFarms Int'l. Inc., 141 F.R.D. 144, 153 (N.D. Cal. 1991). Here the interests of the class representatives are not antagonistic to those of the proposed class members. Their mutual goal is to declare the DOMA unlawful and to enjoin its further application. Class counsel are also qualified to prosecute this action on behalf of the class. Plaintiffs lead counsel are employed by a non-profit organization specializing in federal litigation on behalf of immigrants and refugees. They have litigated numerous class actions in the federal courts involving the rights of immigrants. E.g., Plyler v. Doe, 457 U.S. 202 (1982); Reno v. Catholic Social Services, 509 U.S. 43 (1993); Reno v. Flores, 507 U.S. 292 (1993); League of United Latin American Citizens v. Wilson, 131 F.3d 1297 (9th Cir. 1997); Perez-Olano v. Gonzalez, 248 F.R.D. 248 (C.D. Cal 2008). Rule 23(a)(4) is accordingly satisfied in this case. In addition to satisfying the four requirements of Rule 23(a), a proposed class action must meet one of the requirements of Rule 23(b).
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Plaintiffs contend this action meets the requirements of Rule 23(b)(2): i.e., that the party opposing the class has acted or refused to act on grounds generally applicable to the class thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole ... An action may be certified under subsection (b)(2) where the defendants acts apply generally to the whole class. See generally Illinois Migrant Council v. Pilliod, 540 F.2d 1062, 1072 (7th Cir. 1976), modified, 548 F.2d 715 (7th Cir. 1977). Here the DOMA directs defendants to deny immigration benefits under the INA to all who seek them based upon a same-sex marriage. This does not depend on individual differences, but is rather a universal directive where individuals seek immigration benefits based on a same-sex marriage. Certification under Rule 23(b)(2) is accordingly appropriate. Perez-Olano v. Gonzalez, supra, 248 F.R.D. at 258-59. ***** For the foregoing reasons, IT IS HEREBY ORDERED that this action is provisionally certified as a class action pursuant to Rule 23(b), Fed.R.Civ.Proc. The class shall be defined as set forth above.
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IT IS FURTHER ORDERED pursuant to Rule 23(g), Fed.R.Civ.Proc., that Peter A. Schey and Carlos R. Holguin of the Center for Human Rights & Constitutional Law, Julie Greenwald and Monica Ashiku of the Public Law Center, Beatrice Ann M. Pangilinan of the Asian Law Alliance, and Gary H. Manulkin and Reyna M. Tanner, of the Law Offices of Manulkin & Bennett, be appointed class counsel. Dated: _________________, 2012 _____________________________ United States District Judge
Presented by: /s/_ Peter Schey_________ /s/_ Carlos Holgun_________ Attorneys for plaintiffs
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CERTIFICATE OF SERVICE SACV12-01137 CBM (AJWx) I hereby certify that on this 23rd day of August 2012, I electronically filed the foregoing [PROPOSED] ORDER CERTIFYING CLASS with the Clerk of Court by using the CM/ECF system, which provided an electronic notice and electronic link of the same to all attorneys of record through the Courts CM/ECF system.
/s/ Karena Heredia ______________ Dated: August 23, 2012. ///
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Case 8:12-cv-01137-CBM-AJW Document 13

Filed 08/23/12 Page 1 of 21 Page ID #:134

Martin R. ARANAS, Irma RODRIGUEZ, and 14 Jane DELEON,

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Motion for Class Certification

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Motion for Class Certification

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Martin R. ARANAS, Irma RODRIGUEZ, and 14 Jane DELEON,

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Motion for Class Certification

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Motion for Class Certification

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Dated: August 23, 2012. ///

/s/ Karena Heredia ______________

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Martin R. ARANAS, 16 Irma RODRIGUEZ, and 17 Jane DELEON, 18 19 20 21 22 23 24 25 26 27 28

SACV12-01137 CBM (AJWx) [PROPOSED] ORDER PROVISIONALLY CERTIFYING CLASS ACTION.

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[Proposed] Order re: Class Certification

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[Proposed] Order re: Class Certification

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