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CENTER FOR HUMAN RIGHTS AND CONSTITUTIONAL LAW Peter A. Schey (Cal. Bar No. 58232) Carlos R. Holguín (Cal. Bar No. 90754) 256 S. Occidental Blvd. Los Angeles, CA 90057 Telephone: (213) 388-8693 (Schey Ext. 304, Holguín 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; et ) ) al., ) ) ) ) Defendants, ) ) BIPARTISAN LEGAL ADVISORY GROUP ) ) OF THE UNITED STATES HOUSE OF ) REPRESENTATIVES, ) ) ) Intervenor-Defendant ) ________________________________ ) Martin R. ARANAS, et al., SACV12-01137 CBM (AJWx) PLAINTIFFS’ OPPOSITION TO DEFENDANT’S MOTION TO STAY DISCOVERY.

Hearing: November 26, 2012 Time: 10:00 am Hon. Consuelo B. Marshall Spring St., Courtroom No. 2

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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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MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO MOTION TO STAY DISCOVERY I INTRODUCTION This is a proposed class action for declaratory and injunctive relief challenging discrimination in the granting of benefits under the Immigration and Nationality Act (“INA”), 8 U.S.C. §§ 1101, et seq., against members of lawful marriages solely because they 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. II. DISCOVERY PROCEEDINGS SHOULD NOT BE STAYED Defendants’ Motion seeks to stay discovery proceedings in this case until this Court has ruled on the defendants’ and defendant-intervenor’s pending motions to dismiss. Dkt # 68-1 at 1. Defendants argue that a stay of discovery is warranted pending resolution of a potentially dispositive motion – such as a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1) or (b)(6) – when the motion to dismiss does not rely on contested factual issues. Id. citing Jarvis v. Regan, 833 F.2d 149, 155 (9th Cir. 1987) (“Discovery is only appropriate where there are factual issues raised by a Rule 12(b) motion.”); see also Rae v. Union Bank, 725 F.2d 478, 481 (9th Cir. 1984) (same). Whether a stay of all discovery pending the outcome of a

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dispositive motion is warranted, requires “a case-by-case analysis ...” Skellerup Indus. Ltd. v. City of Los Angeles, 163 F.R.D. 598, 601 (C.D. Cal. 1995) (quotations and alterations omitted). Factors to be considered include: “[T]he type of motion and whether it is a challenge as a ‘matter of law’ or the ‘sufficiency’ of the allegations; the nature and complexity of the action; … the posture or stage of the litigation; the expected extent of discovery in light of the number of parties and complexity of the issues in the case; and any other relevant circumstances.” Id. (emph. added). Defendants argue that “neither motion [to dismiss] relies on contested factual issues: Both of the pending motions [filed by defendants and intervenor-defendant] raise purely legal challenges to Plaintiffs’ standing and claims.” Dkt # 68-1 at 6.1 These arguments generally set forth precedent decisions involving discovery into maters raised in a motion to dismiss or having nothing to do with any pending motion. In this case, however, plaintiffs’ noticed Rule 30(b)(6) deposition and written discovery requests are aimed at facts in

1 Defendants also argue that “[a]lthough this case involves a motion for class certification and a motion for a preliminary injunction, it is technically an action challenging agency action under the Administrative Procedure Act (“APA”).” Dkt. #68-1 at fn. 3. In such cases, defendants claim, discovery is typically precluded, even when constitutional issues are raised, as long as the Court is only faced with resolving issues of law. Id., citing Occidental Eng’g Co. v. I.N.S., 753 F.2d 766, 769 (9th Cir. 1985) (stating that when reviewing a final agency action “there are no disputed facts that the district

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dispute regarding plaintiffs’ motions for provisional class certification and a preliminary injunction. III. PLAINTIFFS MAY BE PREJUDICED BY A STAY OF DISCOVERY. Defendants’ motion to dismiss does not seek dismissal of this action, but rather challenges only the standing of plaintiffs Aranas and Rodriguez and the legal sufficiency of plaintiffs’ substantive due process claim. See Motion to Dismiss (Dkt. ) #46.1 at 7-9. Defendants concede (1) that plaintiff DeLeon, at the very least, has standing; and (2) that plaintiffs’ equal protection claim is plainly viable. Defendants’ suggestion that their motion to dismiss is potentially dispositive is, therefore, wholly undercut by defendants’ own concessions. Even were the Court to grant defendants’ motion in full, therefore, this case would proceed, and there is accordingly no reason to stay discovery pending disposition of defendants’ nondispositive motion. Nor should defendants be permitted to assert BLAG’s motion to dismiss as grounds to stay discovery. First, BLAG has not sought to stay discovery, but has instead initiated discovery of its own. It is further clear that BLAG’s motion to dismiss is directly at odds with multiple decisions holding DOMA § 3 violative of equal protection. E.g., Windsor v. United States, _ F.3d _, 2012 U.S. App. LEXIS 21785 (2d Cir. September 27, 2012);

court must resolve” because the “court is not required to resolve any facts in a review of an administrative proceeding”).
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Massachusetts v. United States HHS, 682 F.3d 1 (1st Cir. 2012); In re Golinski, 587 F.3d 956 (9th Cir. 2011). The odds this action could be dismissed en toto are accordingly very long indeed. In any event, while the pending motions to dismiss may involve only issues of law, there is no question but that plaintiffs’ motions for class certification and a preliminary injunction, and defendants’ opposition to those motions, raise issues of fact on which the parties disagree and which should be explored through discovery now. Defendants’ factual claims include the following: 1. In their opposition to plaintiffs’ motion for class certification, defendants argue that the Court should “refuse to certify Plaintiffs’ proposed class because the definition is not limited in geographic scope.” Dkt. 59.6 Ex. 5 at 7.2 Plaintiffs seek discovery on the number of people denied immigration benefits under DOMA and any instructions issued to defendants’ officers which will disclose whether there are geographical differences in the manner in which defendants handle DOMA cases. 2. Defendants argue in opposition to class certification that commonality cannot be established “where there is wide factual variation requiring individual adjudications of each class member’s claims.” Id. at 10

2 Defendants also argue that “the district court must conduct a rigorous analysis to determine that the requirements of Rule 23 have been met.” Id. at 9. Plaintiffs agree. Defendants’ point makes clear the importance of
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(emph. supplied). The discovery requests seek information only in defendants’ possession about whether plaintiffs’ or proposed class members’ petitions or applications have been denied under DOMA because of unique facts in each case, or whether such applications and petitions have been denied solely because DOMA prohibits any federal benefit based upon a same sex marriage, regardless of any other individual facts involved. 3. Defendants argue that plaintiff DeLeon’s claims are not “typical” of the claims of the proposed class. See, e.g., Id. Ex. 5 at 13. Defendants are in the best position to know how many immigrants’ waiver applications they have denied based on DOMA. Responses to plaintiffs’ discovery requests would make clear how “unique” or “common” plaintiff DeLeon’s case really is. 4. Regarding adequacy of representation and typicality, defendants argue that DeLeon’s case involves the denial under DOMA of her application for a waiver of inadmissibility (based upon her marriage), versus other proposed class members whose applications for visas (based upon their marriages) have also been denied under DOMA. Id. Ex. 5 at 14-15. The discovery sought would disclose whether there is any material difference in the standards or procedures followed when defendants deny a family-based application for waiver or a visa petition under DOMA. 5. Defendants argue that the facts fail to establish “numerosity” required for class certification. Id. Ex. 5 at 15-18. Defendants have hopefully

defendants providing responses to plaintiffs’ limited discovery requests.
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assessed how many applications they have denied under DOMA and this information is relevant to the court’s determination of the numerosity requirement for class certification. 6. Defendants concede “[t]he denial of Ms. DeLeon’s I-601 application for a waiver of inadmissibility – and, in turn, her loss of work authorization – was based on Section 3 of DOMA. As a result of that denial, she cannot legally work in the United States and is now accruing unlawful presence in the United States.” Dkt. 59.7 Ex. 6 at 19. Defendants argue that “[t]he effect of USCIS’s denial of Ms. DeLeon’s I-601 waiver would be ended by an order by this Court ultimately declaring DOMA to be unconstitutional.” Id. Plaintiffs discovery seeks information on how defendants could, if at all, retroactively erase illegal employment and unauthorized presence to prevent application of statutory bars under the INA from being triggered (because of plaintiff’s forced unauthorized employment and unauthorized presence) even if the Supreme Court agrees with defendants that DOMA is unconstitutional. 7. Defendants argue that there is “no evidence” that there are putative class members who face irreparable harm here, and there is “no evidence that there are putative class members … who have lost work authorization based upon DOMA.” Id. Ex. 6 at 22. By responding to the discovery requests the parties and the court will know how many putative class members in fact face irreparable harm or “have lost work authorization based upon DOMA.” Finally, Plaintiffs disagree with defendants’ contention that class-wide
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judicial review of the constitutionality of DOMA § 3 is limited to the administrative record compiled in plaintiff DeLeon's individual case.3 In short, plaintiffs’ discovery does not seek information relating to the pending motions to dismiss but rather to the pending motions for class certification and a preliminary injunction. While plaintiffs believe their motions for class certification may be granted without requiring defendants to respond to the limited discovery plaintiffs have propounded, in the event the Court believes that disposition of these motions require further factual development, it should, at minimum, permit plaintiffs’ Rule 30(b)(6) deposition to proceed. This deposition can be conducted promptly and information obtained to address the factual allegations offered in defendants’ oppositions to plaintiffs’ motions for class certification and a preliminary injunction. District courts may exercise "wide discretion in controlling discovery."

3 Plaintiffs have a clear right to sue directly under the Constitution and independently of the APA to enjoin defendants from violating her and putative class members’ constitutional rights, and have done so. Porter v. Califano, 592 F.2d 770, 781 (5th Cir. 1979); see also, e.g., Reno v. Catholic Soc. Servs., 509 U.S. 43 (1993) (district court jurisdiction over non-APA claims of immigrants denied benefits under the INA); McNary v. Haitian Refugee Center, Inc., 498 U.S. 479, 493, 111 S. Ct. 888, 112 L. Ed. 2d 1005 (1991) (jurisdiction over non-APA constitutional and statutory challenge to decisions under INA § 210 Special Agricultural Worker program not limited to administrative record); Smith v. Schlesinger, 513 F.2d 462, 473 (D.C. Cir. 1975) (where “action in the District Court encompasses … an attack on … constitutionality of the procedures … judicial review must of necessity consider more than the formal administrative record.”); ITT Fed. Servs. Corp. v. United States, 45 Fed. Cl. 174, 185 (1999) (discovery appropriate even were

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Little v. City of Seattle, 863 F.2d 681, 685 (9th Cir. 1988). The Ninth Circuit Court of Appeals has held that in a context of a pending motion to dismiss for failure to state a claim on which relief can be granted, a district court may enter a protective order staying discovery, on a showing of good cause, when the district court "is convinced that the plaintiff will be unable to state a claim for relief." Wood v. McEwen, 644 F.2d 797, 801 (9th Cir. 1981) (per curiam) (emphasis added) (affirming district court's protective order staying discovery in light of a pending motion to dismiss where “there was a real question” whether the plaintiff's claim presented a substantive basis for vacating a prior judgment and plaintiff at no time alleged that any prejudice resulted from the order), cert. denied, 455 U.S. 942, 102 S. Ct. 1437, 71 L. Ed. 2d 654 (1982).4 To use the language of the Ninth

review generally limited to administrative record “in cases where relief is at issue, especially at the preliminary injunction stage.”) 4 The Federal Rules of Civil Procedure do not provide for automatic or blanket stays of discovery when a potentially dispositive motion is pending. Indeed, district courts look unfavorably upon such blanket stays of discovery. See, e.g., Seven Springs, 2007 U.S. Dist. LEXIS 32068, 2007 WL 1146607, at *2; see also Skellerup Indus. Ltd. v. City of L.A., 163 F.R.D. 598, 600601 (C.D. Cal. 1995) ("Had the Federal Rules contemplated that a motion to dismiss under Fed.R.Civ.P. 12(b)(6) would stay discovery, the Rules would contain a provision for that effect. In fact, such a notion is directly at odds with the need for expeditious resolution of litigation" (citation and quotation marks omitted).). Additionally, a motion for a protective order seeking to preclude discovery must be supported by "good cause" and a "strong showing." See Blankenship v. Hearst Corp., 519 F.2d 418, 429 (9th Cir. 1975); accord Skellerup Indus. Ltd., 163 F.R.D. at 600; Gray v. First Winthrop Corp., 133 F.R.D. 39, 40 (N.D. Cal. 1990) ("The moving party must show a particular and
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Circuit Court of Appeals, if the pending motions to dismiss do not convince the court that the plaintiffs will be unable to state a claim for relief, then a stay of discovery is unwarranted. See Wood, 644 F.2d at 801. This is not a case in which the pending motions to dismiss should “convince[ ]” the Court that plaintiffs will be unable to state a claim for relief. If the Court believes that further factual development is needed in order to adjudicate the pending motions for provisional class certification and a preliminary injunction, defendants’ motion to stay discovery should be denied.5 ///

specific need for the protective order, as opposed to making stereotyped or conclusory statements."). 5 If the Court agrees with defendants that whether plaintiffs have suffered irreparable harm “is at this point a legal question,” and that defendants have “not challenge[d] any of Plaintiffs’ factual allegations but rather accepted them as true for purposes of their opposition[s]” to plaintiffs’ motions, Dkt. No. 68-1 at 7, then discovery may not be required before the Court rules on plaintiffs’ motions for class certification and a preliminary injunction.
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IV

CONCLUSION For the foregoing reasons, in the event the Court believes factual

disputes relating to plaintiffs’ motions for class certification and a preliminary injunction are sufficiently significant as to warrant limited discovery, it should deny defendants’ motion to stay discovery and at minimum permit plaintiffs’ Rule 30(b)(6) deposition to proceed. Dated: November 5, 2012. CENTER FOR HUMAN RIGHTS AND CONSTITUTIONAL LAW Peter A. Schey Carlos R. Holguín 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. Holguín __________ Attorneys for Plaintiffs ///

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Certificate of Service SACV12-01137 CBM (AJWX) I hereby certify that on this 5th day of November, 2012, I electronically filed the foregoing OPPOSITION TO MOTION TO STAY DISCOVERY 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 Court’s CM/ECF system. Dated: November 5, 2012 /s/ __Peter A. Schey__________

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