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Case 2:07-cv-02513-GMS Document 1772 Filed 07/27/16 Page 1 of 7

Cecillia D. Wang (Pro Hac Vice)
cwang@aclu.org
Nida Vidutis*
nvidutis@aclu.org
ACLU Foundation
Immigrants’ Rights Project
39 Drumm Street
San Francisco, CA 94111
Telephone: (415) 343-0775
Facsimile: (415) 395-0950
Daniel J. Pochoda
dpochoda@acluaz.org
Brenda Muñoz Furnish
bmfurnish@acluaz.org
ACLU Foundation of Arizona
3707 N. 7th Street, Suite 235
Phoenix, AZ 85014
Telephone: (602) 650-1854
Facsimile: (602) 650-1376
*Application for admission pro hac vice forthcoming
Attorneys for Plaintiffs (Additional attorneys
for Plaintiffs listed on next page)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Manuel de Jesus Ortega Melendres,
et al.,
Plaintiffs,
v.
Joseph M. Arpaio, et al.,
Defendants.

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CV-07-2513-PHX-GMS

PLAINTIFFS’ SUPPLEMENTAL
MEMORANDUM REGARDING
COMPENSATION PURSUANT TO
THE COURT’S ORDER OF JULY 22,
2016

Case 2:07-cv-02513-GMS Document 1772 Filed 07/27/16 Page 2 of 7

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Additional Attorneys for Plaintiffs:
Andre I. Segura (Pro Hac Vice)
asegura@aclu.org
ACLU Foundation
Immigrants’ Rights Project
125 Broad Street, 17th Floor
New York, NY 10004
Telephone: (212) 549-2676
Facsimile: (212) 549-2654
Anne Lai (Pro Hac Vice)
alai@law.uci.edu
401 E. Peltason, Suite 3500
Irvine, CA 92697
Telephone: (949) 824-9894
Facsimile: (949) 824-0066

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Stanley Young (Pro Hac Vice)
syoung@cov.com
Covington & Burling LLP
333 Twin Dolphin Drive, Suite 700
Redwood Shores, CA 94065
Telephone: (650) 632-4700
Facsimile: (650) 632-4800
Tammy Albarran (Pro Hac Vice)
talbarran@cov.com
Lauren E. Pedley (Pro Hac Vice)
lpedley@cov.com
Covington & Burling LLP
One Front Street
San Francisco, CA 94111
Telephone: (415) 591-7066
Facsimile: (415) 955-6566

Julia Gomez
jgomez@maldef.org

Mexican American Legal Defense and
Educational Fund
634 South Spring Street, 11th Floor
Los Angeles, CA 90014
Telephone: (213) 629-2512
Facsimile: (213) 629-0266
James B. Chanin (Pro Hac Vice)
jbcofc@aol.com
Law Offices of James B. Chanin
3050 Shattuck Avenue
Berkeley, CA 94705
Telephone: (510) 848-4752
Facsimile: (510) 848-5819

Case 2:07-cv-02513-GMS Document 1772 Filed 07/27/16 Page 3 of 7

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PLAINTIFFS’ SUPPLEMENTAL MEMORANDUM REGARDING
COMPENSATION

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In response to the Court’s query on July 22, 2016 as to whether Plaintiffs prefer that
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(1) the Court enter an order for stipulated judgment with the minimum compensation
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amounts for unlawful detention as proposed by the Defendants or (2) the Court “enter
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nothing at all and let the parties pursue their rights under whatever other rights they may
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have,” (July 22, 2016 Hearing at 10:16-21) the Plaintiffs respectfully submit the following:
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Plaintiffs maintain their view that, based upon awards in other unlawful detention
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cases and cited by Plaintiffs in their Memorandum on Remedies for Civil Contempt, at Tab 6
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(Doc. 1684-1), the base compensation rates proposed in Plaintiffs’ July 19, 2016 proposal
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(Doc. 1747-3) for any individuals who can prove they were harmed by Defendants’ contempt
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under the compensation plan are appropriate and reasonable (with the possible additional
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proviso of a $10,000 cap per claimant as compensation for any total period of detention).1

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Defendants’ proposed rates do not adequately remedy the harm caused by their unlawful
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detentions. Plaintiffs therefore have several suggestions as to how to proceed.
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In view of the Court’s statements, the Court should issue a stipulated judgment
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adopting the Parties’ common proposals so that victims of the violation can be notified of
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their right to seek compensation. The BrownGreer compensation scheme in the stipulated
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judgment could use the minimum compensation amounts for unlawful detention set forth in
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Defendants’ July 19, 2016 proposal (Doc. 1747-4). However, the advertisements and other
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notices to be sent out by BrownGreer should explicitly state that individuals eligible for
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compensation may, as an alternative to applying under the BrownGreer compensation
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system, make a claim for compensation directly to this Court. Class members who do not
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want to accept the BrownGreer compensation amounts should be permitted to make a
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request to this Court for compensation and submit evidence of the harm or loss that they
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A $10,000 cap would be limited to compensation for the detention alone, and would not
affect any compensation an individual could receive for additional injuries as set forth in the
current compensation plan proposal, e.g., physical harm leading to out of pocket medical
expenses suffered as a result of the detention.
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incurred. Plaintiffs’ counsel would be available to advise and represent those class members

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in their motions for compensation, or could refer them to other attorneys for representation if

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desired. If appropriate, the Court may hold hearings in which Defendants would have an

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opportunity to present any objections. The Court would then make a determination of the

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appropriate compensation to be awarded based on the evidence submitted.

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This alternative mechanism for compensation must be made available because

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“[w]here a contempt is found and damages are found to result therefrom, the trial court has

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no discretion, but is required to assess the damage against the respondent.” Yanish v.

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Barber, 232 F.2d 939, 947 (9th Cir. 1956) (overruled on other grounds pertaining to a trial

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court’s discretion in awarding attorneys’ fees in Donovan v. Burlington Northern, Inc. 781

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F.2d 680, 682 (9th Cir. 1986)); see also Vuitton et Fils S.A. v. Carousel Handbags, 592 F.2d

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126, 130 (2d Cir. 1979) (“[O]nce the plaintiff has proved that he has suffered harm because

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of a violation of the terms of an injunction, compensatory damages are appropriate”). In this

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case, the Court has already found that contemnors committed contempt in continuing to

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detain individuals based solely on suspected unlawful status after December 23, 2011. If

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those detained in violation of the Court’s injunction do not elect to receive compensation as

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determined by BrownGreer, then they should be given an opportunity to make a case for the

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compensation that they should receive as a result Defendants’ contempt in a further

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proceeding (or proceedings) and should be awarded compensation by this Court.2 Portland

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Feminist Women’s Health Center v. Advocates for Life, Inc., 877 F.2d 787, 790 (9th Cir.

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Under the case law cited above, other alternatives—such as requiring the victims of
Defendants’ contempt of the preliminary injunction order to pursue remedies through
separate Section 1983 actions alone—would not be appropriate. Such a course would
undermine judicial efficiency and result in unnecessary expenditure of resources by the
Parties. Moreover, there are practical hurdles to filing separate Section 1983 actions for
those class members who are unfamiliar with the U.S. legal system and/or located outside the
country. Of course, class members’ ability to file separate Section 1983 actions will not be
impaired by creation of any compensation scheme or process by this Court. However, now
that contempt has been found, this Court should ensure that all class members injured by
Defendants’ contempt can receive adequate compensation.

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1989) (discussing the Court’s remedial powers in a civil contempt proceeding); United States

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v. United Mine Workers of Am., 330 U.S. 258, 304 (1947).

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Furthermore, Plaintiffs could present evidence relating to a representative

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compensation claim for at least one class member in this Court. This would serve the

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purpose of illustrating the damages caused by the Defendants’ contempt and providing

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Plaintiffs with an opportunity to submit evidence supporting their proposed rate of

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compensation. Based on the amount of compensation awarded in that representative case,

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the Parties and the Court might then be in a better position to evaluate the likely awards to

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future claimants who opt to litigate their claims individually rather than participate in the

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BrownGreer compensation scheme. With that information, Plaintiffs believe the Parties

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could be more likely to reach voluntary agreement on appropriate baseline rates for any

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administrative compensation scheme. Plaintiffs have been in touch with some class

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members detained in violation of the preliminary injunction who are interested in pursuing

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compensation, and expect they would be ready to present a case within 30-45 days.

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Finally, Plaintiffs note that any of the routes set forth above will result in the

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expenditure of additional attorneys’ fees and costs, and Plaintiffs therefore intend to apply to

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the Court for such fees and costs as a further remedy for the contempt and under 42 U.S.C. §

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1988. See Doc. 1755 at 2-3 and 6. In the effort to reach a compromise position with

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Defendants, Plaintiffs were (and are still) willing to agree to substantial limitations on

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attorneys’ fees for work on behalf of claimants who elect to participate in the BrownGreer

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compensation plan (i.e., fees for “Track B” claims only, capped at $750 per claim), but that

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agreement does not extend to any work Plaintiffs’ counsel must undertake to pursue

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compensation for class members outside of the BrownGreer compensation scheme.

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RESPECTFULLY SUBMITTED this 27th day of July, 2016.

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By: /s/ Lauren E. Pedley

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Cecillia D. Wang (Pro Hac Vice)
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Case 2:07-cv-02513-GMS Document 1772 Filed 07/27/16 Page 6 of 7

Andre I. Segura (Pro Hac Vice)
Nida Vidutis*
ACLU Foundation
Immigrants’ Rights Project

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Daniel Pochoda
Brenda Muñoz Furnish
ACLU Foundation of Arizona

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Anne Lai (Pro Hac Vice)

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Stanley Young (Pro Hac Vice)
Tammy Albarran (Pro Hac Vice)
Lauren E. Pedley (Pro Hac Vice)
Covington & Burling, LLP

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Julia Gomez
Mexican American Legal Defense and
Educational Fund

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James B. Chanin (Pro Hac Vice)

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Attorneys for Plaintiffs

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*Application for admission pro hac vice
forthcoming

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Case 2:07-cv-02513-GMS Document 1772 Filed 07/27/16 Page 7 of 7

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CERTIFICATE OF SERVICE
I hereby certify that on July 27, 2016, I electronically transmitted the attached

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document to the Clerk’s office using the CM/ECF System for filing. Notice of this filing

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will be sent by e-mail to all parties by operation of the Court’s electronic filing system or by

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mail as indicated on the Notice of Electronic Filing.

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Dated this 27th day of July, 2016.
/s/ Lauren E. Pedley