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Case 2:07-cv-02513-GMS Document 1990 Filed 03/28/17 Page 1 of 8

1 T.E. Wheeler, II
Acting Assistant Attorney General
2 Steven H. Rosenbaum (NY Bar No. 1901958)
3 Paul Killebrew (LA Bar No. 32176)
Matthew J. Donnelly (IL Bar No. 6281308)
4 Cynthia Coe (DC Bar No. 438792)
Maureen Johnston (WA Bar No. 50037)
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U.S. Department of Justice, Civil Rights Division
6 Special Litigation Section
601 D St. NW, Suite 5200
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Washington, D.C. 20004
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Attorneys for the United States
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IN THE UNITED STATES DISTRICT COURT FOR THE
10 DISTRICT OF ARIZONA
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12 Manuel de Jesus Ortega Melendres, on No. 2:07-cv-02513-GMS
behalf of himself and all others similarly
13 situated; et al.
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Plaintiffs, UNITED STATES’ RESPONSE
15 TO ORDER (DOC. 1923)
16 and

17 United States of America
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Plaintiff-Intervenor,
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v.
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21 Paul Penzone, in his official capacity as
Sheriff of Maricopa County, AZ; et al.
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23 Defendants.
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Case 2:07-cv-02513-GMS Document 1990 Filed 03/28/17 Page 2 of 8

RESPONSE OF THE UNITED STATES
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2 In November 2016, former Sheriff Joseph Arpaio, former Chief Deputy Gerard
3 Sheridan, and Lieutenant Joseph Sousa (collectively the “Non-Party Contemnors”) filed a
4 Motion for Recusal of the Court and its Monitor (Doc. 1878) and a Motion for Leave to
5 File Motion for Discovery (Doc. 1884). On January 13, 2017, this Court issued an order
6 inviting the parties to address two questions relating to these motions:
7 [W]hether: (a) the Sheriff has appropriately raised [the recusal] argument in his
appeal in the absence of a ruling from the district court, and (b) if so, whether and
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to what extent, if any, this Court retains jurisdiction to rule on the two pending
9 motions identified above.
10 Order, January 13, 2017 (Doc. 1923) at 1-2. The order also substituted Sheriff Paul
11 Penzone as Defendant for former Sheriff Arpaio. Id. at 2.
12 At a status conference on March 2, 2017, the Court ordered Sheriff Penzone to
13 inform the Court whether, as the new sheriff, he intends to pursue all or part of the two
14 pending motions. Order, March 2, 2017 (Doc. 1965) at 2. The Court also ordered
15 counsel for the Non-Party Contemnors to notify the Court by March 10, 2017, whether
16 they intend to assert that they have standing to bring the two motions in whole or in
17 part, and to file a brief by March 23, 2017, explaining the claimed basis for any
18 standing asserted. Id.
19 In response, on March 10, 2017, Sheriff Penzone filed a notice that “he does
20 not intend to assert or pursue any portions of the [recusal motion or discovery
21 motion].” Sheriff Paul Penzone’s Notice Pertaining to Pending Motions at Documents
22 1878 and 1884, March 10, 2017 (Doc. 1977) at 1-2. Counsel for the Non-Party
23 Contemnors also filed a notice that day stating that they “intend to assert their standing
24 to continue to urge those two motions.” Notice Regarding the Standing of Former
25 Sheriff Arpaio, Former Chief Deputy Sheridan, and Lieutenant Sousa, March 10, 2017
26 (Doc. 1976) at 2.
27 If the Non-Party Contemnors lack standing, the motions for recusal and
28 discovery would be resolved on that basis alone. But assuming for the purposes of this

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Case 2:07-cv-02513-GMS Document 1990 Filed 03/28/17 Page 3 of 8

1 brief that the Non-Party Contemnors have standing, the United States submits that this
2 Court has authority to consider the recusal and discovery motions and should deny
3 them.
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Question One: Has the Sheriff appropriately raised the recusal
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argument in his appeal absent a ruling from this Court?
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The scope of the recusal issues currently before the Court of Appeals is unclear
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and has been made less clear by the notices filed on March 10, 2017. The notice of
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appeal in Melendres v. Penzone, No. 16-16663 (9th Cir.), cites the Second
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Supplemental Permanent Injunction/Judgment Order (Doc. 1748) and “all
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interlocutory, non-final orders incorporated therein.” Sheriff Arpaio, Chief Deputy
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Sheridan, & Lieutenant Sousa’s Notice of Appeal, September 15, 2016 (Doc. 1807) at
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1-2. The opening brief, however, includes new arguments on appeal that appear to be
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similar to those made in the present recusal motion, which was submitted in this Court
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after the injunction was entered and after the notice of appeal was filed. Compare,
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e.g., Appellants’ Br. 43-44, Melendres v. Penzone, No. 16-16663 (Dec. 27, 2016), with
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Motion for Recusal of the Court and its Monitor (Doc. 1878) at 8-9. Confusing
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matters further, the 2015 recusal motion (Doc. 1117)—the denial of which (Doc. 1164)
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is arguably among the non-final orders noticed for appeal—did not seek discovery or
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the recusal of the monitor. Non-Party Contemnors sought that relief for the first time
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after filing their notice of appeal. Furthermore, the Non-Party Contemnors have yet to
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establish that they have standing to assert the matters in the present recusal and
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discovery motions in any court. In any event, it is not necessary for this Court to
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resolve which issues are properly on appeal because, as explained below, Federal Rule
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of Civil Procedure 62.1 provides an appropriate and efficient way of resolving the
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pending motions.
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1 Question Two: Whether, and to what extent, if any, this Court retains
2 jurisdiction to rule on the pending recusal and discovery motions.
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This Court has authority to consider the recusal and discovery motions and
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should deny them.
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The “general rule is that once a notice of appeal has been filed, the lower court
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loses jurisdiction over the subject matter of the appeal.” Bennett v. Gemmill (In re
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Combined Metals Reduction Co.), 557 F.2d 179, 200 (9th Cir. 1977). Commonly
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called the “divestment rule,” it “refers discretely to a loss of jurisdiction over those
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aspects of the case involved in the appeal.” California Dep’t of Toxic Substances
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Control v. Commercial Realty Projects, Inc., 309 F.3d 1113, 1120-1121 (9th Cir.
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2002). 1
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The pendency of an appeal does not deprive this Court of authority to decide
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all matters relating to this case, however. The divestment rule is not absolute. It is a
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“judge-made doctrine designed to avoid the confusion and waste of time that might
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flow from putting the same issues before two courts at the same time.” Id. at 1120
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(citing Kern Oil & Refining Co. v. Tenneco Oil Co., 840 F.2d 730, 734 (9th Cir.
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1988)). The divestment rule, therefore, “is a rule of judicial economy and not one that
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strips the district court of subject matter jurisdiction” in every instance. Id. at 1121
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(citing Stein v. Wood, 127 F.3d 1187, 1189 (9th Cir. 1997) (divestment rule “should
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not be employed to defeat its purposes”)).
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23 The relevant notice of appeal was filed on September 15, 2016. The Non-Party
Contemnors filed the pending motion for recusal over a month later, on November 10,
24 2016. Sheriff Arpaio, Chief Deputy Sheridan, and Lieutenant Sousa’s Motion for
25 Recusal of the Court and its Monitor, November 10, 2016 (Doc. 1878). They filed
their renewed motion for discovery on November 15, 2016. Sheriff Arpaio, Chief
26 Deputy Sheridan, and Lieutenant Sousa’s Renewed Motion for Discovery of Ex Parte
Communications Between the Court and the Monitor, November 15, 2016 (Doc.
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1885). When the motions were made, an appeal was already pending for purposes of
28 the divestment rule.

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1 To the extent the pending appeal limits this Court’s authority to decide the
2 pending recusal and discovery motions, Federal Rule of Civil Procedure 62.1 makes
3 clear that this Court may still act. The rule states:
4 (a) Relief Pending Appeal. If a timely motion is made for relief that the court
5 lacks authority to grant because of an appeal that has been docketed and is
pending, the court may:
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(1) defer considering the motion;
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(2) deny the motion; or
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(3) state either that it would grant the motion if the court of appeals remands for
9 that purpose or that the motion raises a substantial issue.
10 (b) Notice to the Court of Appeals. The movant must promptly notify the circuit
clerk under Federal Rule of Appellate Procedure 12.1 if the district court states
11 that it would grant the motion or that the motion raises a substantial issue.
12 (c) Remand. The district court may decide the motion if the court of appeals
13 remands for that purpose.
14 Fed. R. Civ. P. 62.1.
15 Under Rule 62.1 this Court may take certain actions regardless of the scope
16 of the pending appeal. First, this Court may deny the recusal and discovery motions
17 outright. Second, this Court may state that it is inclined to grant the motions or that the
18 motions raise a substantial issue, which requires the Non-Party Contemnors to notify
19 the Ninth Circuit; in that event, this Court could decide the recusal and discovery
20 motions if the Ninth Circuit remands for that purpose. Or this Court could defer action
21 on either or both motions.
22 Application of Rule 62.1(a)(2) is appropriate for the pending motions.
23 Although Rule 62.1 is often invoked when parties seek relief from a judgment or order
24 (e.g., based on fraud, mistake, or inadvertence under Federal Rule of Civil Procedure
25 60), Rule 62.1 also applies to motions for recusal. See Pierce v. Smith, 2016 WL
26 740321 (E.D. Cal. Feb. 25, 2016) (where litigant simultaneously filed a motion for
27 disqualification of judge and magistrate and a notice of appeal, district court had
28 authority to deny disqualification); May v. Patterson, 2013 WL 5634141, at *3 (S.D.

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1 Ala. Oct. 16, 2013) (pursuant to Rule 62.1(a)(2), denying recusal motion filed after
2 notice of appeal); Morris v. Kesselring, 2012 WL 278727, at *2 (M.D. Pa. Jan. 31,
3 2012) (court considered and denied motion for recusal while appeal was pending);
4 Perry v. Schwarzenegger, 790 F. Supp. 2d 1119, 1123 (N.D. Cal. 2011) (considering
5 and denying motion for recusal while appeal was pending), aff’d sub nom. Perry v.
6 Brown, 671 F.3d 1052 (9th Cir. 2012), vacated and remanded sub nom. Hollingsworth
7 v. Perry, 133 S. Ct. 2652 (2013). Here, the recusal and discovery motions have been
8 briefed, and regardless of whether recusal has been properly raised in the Ninth
9 Circuit, the Court retains jurisdiction to deny them.
10 Ruling on the pending motions makes sense because it is consistent with the
11 principles underlying the divestment rule. If this Court decides the pending motions,
12 the Ninth Circuit will have a more complete record should it determine that the
13 appellants have standing and have properly raised recusal issues on appeal. Also,
14 judicial economy will be best served by this Court’s deciding the pending recusal and
15 discovery motions at this time. Accordingly, the United States recommends that this
16 Court invoke Rule 62.1(a)(2) to consider the recusal motion and discovery motion and,
17 should the Court determine that the movants have standing, deny them for the reasons
18 stated in the United States’ opposition briefs (Docs. 1908 and 1909).
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1 Respectfully submitted this 28th day of March, 2017.
2
3
4 T.E. Wheeler, II
Acting Assistant Attorney General
5 Civil Rights Division
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7 Steven H. Rosenbaum
Chief, Special Litigation Section
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/s/ Cynthia Coe
11 Paul Killebrew
Special Counsel
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Cynthia Coe (DC Bar No. 438792)
13 Matthew J. Donnelly (IL Bar No. 6281308)
Maureen Johnston (WA Bar No. 50037)
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Trial Attorneys
15 U.S. Department of Justice
Civil Rights Division
16 Special Litigation Section
17 601 D St. NW
Washington, D.C. 20004
18 Tel. (202) 353-1121
19 cynthia.coe@usdoj.gov
20 ATTORNEYS FOR THE UNITED STATES

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2 CERTIFICATE OF SERVICE
3 I certify that on or about March 28, 2017, I filed the foregoing through the
4 Court’s CM/ECF system which will serve a true and correct copy of the filing on
5 counsel of record.
6 /s/ Cynthia Coe

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