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Case 2:07-cv-02513-GMS Document 1991 Filed 03/28/17 Page 1 of 15

1 Charles J. Cooper*
Michael W. Kirk*
2 Harold S. Reeves*
COOPER & KIRK, PLLC
3 1523 New Hampshire Ave., N.W.
Washington, D.C. 20036
4 Telephone: (202) 220-9600
Fax: (202) 220-9601
5 ccooper@cooperkirk.com
mkirk@cooperkirk.com
6 hreeves@cooperkirk.com
7 * Admitted pro hac vice
8 John T. Masterson, Bar #007447
Joseph J. Popolizio, Bar #017434
9 Justin M. Ackerman, Bar #030726
JONES, SKELTON & HOCHULI, P.L.C.
10 40 North Central Avenue, Suite 2700
Phoenix, Arizona 85004
11 Telephone: (602) 263-1700
Fax: (602) 200-7846
12 jmasterson@jshfirm.com
jpopolizio@jshfirm.com
13 jackerman@jshfirm.com
14 Attorneys for Joseph M. Arpaio,
Gerard Sheridan, and Joseph Sousa
15
16 UNITED STATES DISTRICT COURT
17 DISTRICT OF ARIZONA
18 Manuel de Jesus Ortega Melendres, et al., NO. CV 07-02513-PHX-GMS
19 Plaintiffs, MOVANTS’ BRIEF REGARDING
THE COURT’S JURISDICTION
20 v. TO DECIDE THE PENDING
MOTIONS FOR RECUSAL AND
21 Joseph M. Arpaio, et al., DISCOVERY
22 Defendants.
23
24
25
26
27
28
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Pending before the Court are motions filed by Joseph Arpaio, Gerard Sheridan, and
2
Joseph Sousa (“Movants”), seeking to recuse the Court and its Monitor from future
3
proceedings in this case, and requesting discovery into unauthorized ex parte
4
communications between the Court and Monitor. 1 In their pending appeal before the Ninth
5
Circuit, Movants have separately requested that the Court of Appeals vacate this Court’s
6
decisions since May 2015 and reassign this case to a new judge and monitor. 2
7
On January 13, 2017, this Court asked the parties to brief two questions concerning
8
the recusal and discovery motions pending in this Court. Order at 1 (Jan. 13, 2017), Doc.
9
1923 (“January 2017 Order”). First, the Court asked whether Movants have appropriately
10
requested recusal and reassignment from the Ninth Circuit in the absence of a ruling from
11
this Court. Movants have appropriately requested that the Ninth Circuit require this Court’s
12
recusal and reassignment because parties may argue for the first time on appeal that a district
13
judge should be recused or a case should be reassigned. See, e.g., United States v. Sears,
14
Roebuck & Co., 785 F.2d 777, 780 (9th Cir. 1986) (reassignment); In re Manoa Fin. Co.,
15
781 F.2d 1370, 1373 (9th Cir. 1986) (recusal). In any event, most of the grounds for recusal
16
advanced in the Court of Appeals were presented and passed upon by this Court’s Order
17
Denying Motion for Recusal or Disqualification (July 10, 2015), Doc. 1164 (“July 2015
18
Order”).
19
Second, this Court asked whether it retains jurisdiction to rule on the pending
20
motions in light of Movants’ requests to the Ninth Circuit. As Movants have noted on other
21
occasions, 3 this Court always has both the power and the obligation to inquire into its own
22
1
23 See Motion for Recusal of the Court and Its Monitor (Nov. 10, 2016), Doc. 1878
(“Motion for Recusal”); Renewed Motion for Leave to File Motion for Discovery of Ex
24 Parte Communications Between the Court and the Monitor (Nov. 15, 2016), Doc. 1884
(“Motion for Discovery”).
25 2
See Brief of Defendant-Appellant Joseph Arpaio and Non-Party Appellants Gerard
Sheridan & Joseph Sousa, Melendres v. Penzone, No. 16-16663 (9th Cir. Dec. 27, 2016),
26 ECF No. 11 (“CA9 Opening Brief”).
3
27 Brief Regarding the Standing of Former Sheriff Arpaio, Former Chief Deputy
Sheridan, and Lieutenant Sousa at 12–13 (Mar. 23, 2017), Doc. 1987 (“March 2017
28 Standing Brief”); Motion for Recusal at 3–7.
Case 2:07-cv-02513-GMS Document 1991 Filed 03/28/17 Page 3 of 15

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disqualification whenever information raising the issue is brought to its attention. See, e.g.,
2
King v. United States Dist. Court for Cent. Dist. of Cal., 16 F.3d 992, 993 n.2 (9th Cir.
3
1994). And if the pending recusal motion has merit, then it follows that the Court is
4
disqualified from exercising judicial authority. Yet the Court is continuing to exercise
5
jurisdiction over the case, including by investigating and potentially punishing Sheridan
6
and Sousa. It simply cannot be that the Court has jurisdiction to investigate and punish these
7
two individuals, yet lacks jurisdiction to entertain their objections to these investigations
8
and potential punishments. The prudential rule that district courts lose “jurisdiction” over
9
the subject matter of an appeal does not implicate a district court’s subject matter
10
jurisdiction, and it does not prevent this Court from adjudicating the pending motions. A
11
district judge always retains the power to recuse itself from ongoing proceedings, even
12
while an appeal is proceeding. See, e.g., Lopez Dominguez v. Gulf Coast Marine & Assocs.,
13
Inc., 607 F.3d 1066, 1073 (5th Cir. 2010). Because this Court is currently supervising and
14
investigating Sousa’s and Sheridan’s conduct, it necessarily retains both the right and the
15
duty to respond to defenses to that ongoing supervision (including, as here, the defense that
16
the Court and its Monitor must be recused because of their ex parte communications). See,
17
e.g., Hoffman ex rel. NLRB v. Beer Drivers & Salesmen’s Local Union 888, 536 F.2d 1268,
18
1276 (9th Cir. 1976). Finally, this Court’s resolution of the motions will aid rather than
19
obstruct the Ninth Circuit’s appellate review, and the Motion for Discovery does not overlap
20
in any relevant respect with the issues pending before the Ninth Circuit.
21
Movants respectfully submit that their pending motions for recusal and discovery are
22
justiciable and that the Court should decide those motions.
23
24 I. Movants Appropriately Raised Their Request for
Recusal and Reassignment in the Ninth Circuit.
25
Movants’ pending appeal to the Ninth Circuit requests, inter alia, that the Court of
26
Appeals reassign this case to a new judge and monitor on remand, and that it vacate this
27
Court’s rulings entered after Movants moved for recusal before this Court in May 2015.
28
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See CA9 Opening Brief at 3, 57, 59. 4 Movants made their request to the Ninth Circuit
2
pursuant to (1) the Court of Appeals’ inherent authority and its reassignment authority under
3
28 U.S.C. § 2106; (2) the judicial recusal statute, 28 U.S.C. § 455; and (3) the Due Process
4
Clause of the Fifth Amendment. See CA9 Opening Brief at 44–46.
5
Movants have appropriately raised this request on appeal in the absence of a ruling
6
from this Court. First, a request that the Court of Appeals exercise its inherent authority
7
and reassignment power under 28 U.S.C. § 2106 need not be raised for the first time in the
8
district court. In United States v. Sears, Roebuck & Co., 785 F.2d 777 (9th Cir. 1986), for
9
example, the Ninth Circuit held that it may entertain a request for reassignment regardless
10
of whether that request was raised before the district court, explaining that “[t]here is no
11
suggestion in any of the case law that the district court as an institution must first be given
12
the opportunity to consider whether to reassign a case.” Id. at 780. The Ninth Circuit also
13
held that an appellant need not request recusal pursuant to the judicial recusal statute, 28
14
U.S.C. § 455, before requesting reassignment. The Court held that “[t]here is simply
15
nothing in the disqualification statutes to prohibit this court from taking appropriate action
16
in the first instance.” Sears, Roebuck, 785 F.2d at 780–81. Elaborating the point, the Court
17
explained, “[w]e do not believe that the statutory provisions concerning disqualification are
18
either exhaustive or the exclusive method whereby a judge may be removed from hearing
19
a case.” Id. at 780. The Ninth Circuit has reaffirmed this rule on multiple occasions,
20
holding that it may entertain a request for reassignment even if that request was raised for
21
the first time on appeal. California v. Montrose Chem. Corp. of Cal., 104 F.3d 1507, 1521
22
(9th Cir. 1997); United States v. Alverson, 666 F.2d 341, 348 n.6, 349–50 (9th Cir. 1982).
23
Second, the Ninth Circuit has repeatedly held that appellants may raise recusal issues
24
for the first time on appeal. For example, in In re Manoa Finance Company, 781 F.2d 1370
25
(9th Cir. 1986), the Ninth Circuit entertained the merits of recusal motion brought under 28
26
27 4
For the May 2015 recusal motion before this Court, see Motion for Recusal or
28 Disqualification of District Court Judge G. Murray Snow (May 22, 2015), Doc. 1117.
3
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U.S.C. § 455 even though it found “no indication in the record that [the movant] raised
2
[recusal] below,” because the movant’s “failure to move for recusal at the trial level does
3
not preclude his raising the issue on appeal.” 781 F.2d at 1373. Many other cases likewise
4
establish that “failure to move for recusal at the trial level does not preclude raising on
5
appeal the issue of recusal under section 455.” United States v. Sibla, 624 F.2d 864, 868
6
(9th Cir. 1980). See also, e.g., United States v. Holland, 519 F.3d 909, 911 & n.1 (9th Cir.
7
2008); Toth v. Trans World Airlines, Inc., 862 F.2d 1381, 1388 n.4 (9th Cir. 1988); Noli v.
8
Commissioner, 860 F.2d 1521, 1527 (9th Cir. 1988). 5
9
The Court’s January 2017 Order cites United States v. Garner, 663 F.2d 834 (9th
10
Cir. 1981) for the proposition that “[w]hen there is a deficiency in the notice of appeal for
11
whatever reason, however, the district court is not deprived of jurisdiction.” Id. at 838.
12
That rule is not relevant here because Movants’ Notice of Appeal was timely and not
13
deficient. See Sheriff Arpaio, Chief Deputy Sheridan, & Lieutenant Sousa’s Notice of
14
Appeal (Sept. 15, 2016), Doc. 1807. The order in Garner was not appealable, see 663 F.2d
15
at 838; in contrast, the Court’s Second Amended Second Supplemental Permanent
16
Injunction/Judgment Order (July 26, 2016), Doc. 1765 (“Second Supplemental
17
Injunction”), was a final appealable order. See, e.g., NRDC v. Southwest Marine Inc., 242
18
F.3d 1163, 1166 (9th Cir. 2001) (post-judgment order modifying an injunction is a final and
19
appealable order). By appealing that final judgment, Movants also “implicitly brought all
20
of the district court’s subordinate orders within the jurisdiction of [the Ninth Circuit].” Hall
21
v. City of Los Angeles, 697 F.3d 1059, 1070 (9th Cir. 2012). Having filed a timely notice
22
of appeal, Movants were entitled to appeal this Court’s denial of their earlier recusal motion,
23
24
5
25 In Sears, Roebuck, 785 F.2d at 780, the Court suggested in dicta that a party should
raise a recusal motion under 28 U.S.C. § 455 before the district court in the first instance.
26 That passing statement was dicta because the case involved a request for reassignment under
the Court’s inherent authority, not a request for recusal under Section 455. And that dicta
27 is inconsistent with the wealth of Ninth Circuit holdings cited in the text—including cases
decided both before and after Sears, Roebuck—making clear that recusal under Section 455
28 may be raised for the first time on appeal.
4
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see July 2015 Order, and they were additionally entitled to raise for the first time on appeal
2
any new arguments concerning recusal or reassignment.
3
Finally, Movants note that most of the grounds for recusal they have advanced in the
4
Ninth Circuit were in fact raised before, and decided by, this Court. This Court denied that
5
motion, see July 2015 Order at 2, and this Court’s decision is now properly before the Ninth
6
Circuit.
7
8 II. This Court Retains Jurisdiction To Decide the Recusal and Discovery Motions.
9 The “general rule is that once a notice of appeal has been filed, the lower court loses
10 jurisdiction over the subject matter of the appeal.” California Dep’t of Toxic Substances
11 Control v. Commercial Realty Projects, Inc., 309 F.3d 1113, 1120 (9th Cir. 2002) (quoting
12 In re Combined Metals Reduction Co., 557 F.2d 179, 200 (9th Cir. 1977)). But the so-
13 called “divestment rule” is simply “a rule of judicial economy and not one that strips the
14 district court of subject matter jurisdiction.” Id. at 1121. The rule “is not a creature of
15 statute and is not absolute in character.” Hoffman, 536 F.2d at 1276. Instead, it is a “judge-
16 made doctrine” that is “designed to avoid the confusion and waste of time that might flow
17 from putting the same issues before two courts at the same time.” Kern Oil & Ref. Co. v.
18 Tenneco Oil Co., 840 F.2d 730, 734 (9th Cir. 1988) (quoting 9 J. MOORE ET AL., MOORE’S
19 FEDERAL PRACTICE ¶ 203.11 (2d ed. 1987)). Thus the Ninth Circuit has been careful to
20 emphasize that this “creature of judicial prudence,” Masalosalo by Masalosalo v. Stonewall
21 Ins. Co., 718 F.2d 955, 956 (9th Cir. 1983), “should not be employed to defeat its purposes
22 nor to induce needless paper shuffling,” Kern Oil, 840 F.2d at 734 (quoting MOORE’S
23 FEDERAL PRACTICE ¶ 203.11).
24 Accordingly, the divestment rule simply “refers discretely to a loss of jurisdiction
25 over those aspects of the case involved in the appeal,” California Dep’t of Toxic Substances,
26 309 F.3d at 1120, and the courts have recognized “a number of exceptions to the general
27 rule that a district court loses jurisdiction upon the filing of a notice of appeal,” Stein v.
28
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Wood, 127 F.3d 1187, 1189 (9th Cir. 1997). For example, it is settled that the “filing of a
2
notice of appeal does not divest the trial court of jurisdiction over matters or issues not
3
appealed.” In re Castaic Partners II, LLC, 823 F.3d 966, 969 n.3 (9th Cir. 2016). The
4
district court similarly retains authority to act “in aid of the appeal, or to correct clerical
5
mistakes, or in aid of execution of a judgment that has not been superseded . . . .” In re
6
Thorp, 655 F.2d 997, 998 (9th Cir. 1981). See also Resnik v. La Paz Guest Ranch, 289 F.2d
7
814, 818 (9th Cir. 1961) (district court retains authority to act “in aid of the appeal”).
8
Among the many other exceptions, the district court retains authority to, inter alia,
9
supervise a continuing course of conduct and enter further contempt orders based on
10
violations of the orders on appeal, Hoffman, 536 F.2d at 1276; modify an injunction to
11
preserve the status quo, Southwest Marine, 242 F.3d at 1166; award attorneys’ fees,
12
Masalosalo, 718 F.2d at 957; and issue orders regarding the custody of a prisoner while an
13
appeal is taken from an order granting or denying habeas relief, Stein, 127 F.3d at 1190.
14
15
A. The Court Retains Jurisdiction To Decide the Motion for Recusal.
16
This Court retains jurisdiction to decide the Motion for Recusal because courts
17
always have an independent obligation to inquire into whether they may continue to preside
18
over a case. That obligation exists independent of anyone’s standing to raise the recusal
19
issue, see March 2017 Standing Brief at 12–13, and it likewise exists independent of
20
whether aspects of the case are on appeal. Because this Court retains jurisdiction to
21
supervise and investigate Sheridan’s and Sousa’s conduct, and to enter further orders
22
punishing them, it necessarily retains the power (and the duty) to adjudicate their defenses
23
to that ongoing supervision. Finally, this Court’s resolution of the Motion for Recusal will
24
aid rather than obstruct the Ninth Circuit’s appellate review.
25
1. This Court has both the power and duty to adjudicate the Motion for Recusal.
26
Courts always have an independent obligation to inquire into whether they must be
27
disqualified whenever information raising the issue surfaces, from whatever source. See,
28
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e.g., United States v. Holland, 519 F.3d 909, 912–13 (9th Cir. 2008); King, 16 F.3d at 993
2
n.2; United States v. Sibla, 624 F.2d 864, 868 (9th Cir. 1980); see generally March 2017
3
Standing Brief. This obligation is particularly acute here, because the grounds for the
4
Court’s recusal have been extensively laid out in a series of filings. This fact alone is
5
dispositive of the question whether this Court has jurisdiction to decide whether it may
6
continue to preside over the case.
7
Moreover, this Court necessarily has the power to inquire into whether it must be
8
disqualified because it is exercising continuing jurisdiction over the case and is currently
9
investigating Sheridan and Sousa. No one disputes that the Court has jurisdiction to enforce
10
its Second Supplemental Injunction while Movants’ appeal of that injunction proceeds.
11
District courts retain jurisdiction to alter or modify injunctions while those injunctions are
12
on appeal, FED. R. CIV. P. 62(c), and the Ninth Circuit has held that “an appeal from a
13
contempt order would not affect the court’s jurisdiction to issue further contempt orders
14
based on subsequent violations of the basic injunctive order,” Hoffman, 536 F.2d at 1276.
15
Indeed, the Ninth Circuit held in Hoffman that the divestment rule simply “should not be
16
applied” when a district court retains continuing jurisdiction over a supervisory order,
17
concluding that “in the kinds of cases where the court supervises a continuing course of
18
conduct and where as new facts develop additional supervisory action by the court is
19
required, an appeal from the supervisory order does not divest the district court of
20
jurisdiction to continue its supervision.” Id.; see also Island Creek Coal Sales Co. v. City
21
of Gainesville, 764 F.2d 437, 440 (6th Cir. 1985) (“Where, as here, the district court is
22
attempting to supervise its judgment and enforce its order through civil contempt
23
proceedings, pendency of appeal does not deprive it of jurisdiction for these purposes.”).
24
If this Court has jurisdiction to continue to investigate the conduct of Sheridan and
25
Sousa, and to enter further punishment (including contempt) against them, then it
26
necessarily follows that this Court can—and must—entertain any defenses Sheridan and
27
Sousa may raise to that investigation, including the defense that the judicial officers
28
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investigating them must be disqualified. See Hoffman, 536 F.2d at 1276–77 (adjudicating
2
defenses to the district court’s orders entered pursuant to its continued supervision of an
3
order on appeal). The position that this Court retains jurisdiction to investigate yet is free
4
to disregard defenses to that investigation has no basis in the prudential divestment rule and
5
would raise serious due process concerns.
6
2. Courts have recognized that district courts retain jurisdiction to recuse
7
themselves while an appeal is proceeding. The leading case is Lopez Dominguez v. Gulf
8
Coast Marine & Associates, Inc., 607 F.3d 1066 (5th Cir. 2010), where the district court
9
entered a final appealable order dismissing a case for forum non conveniens, but then after
10
the appeal was filed, the district court discovered that it must be recused under 28 U.S.C.
11
§ 455 because it owned stock in one of the parties. 607 F.3d at 1070–71. Accordingly, one
12
week after it entered its final order dismissing the case, and after a notice of appeal had
13
already been filed, the district court entered an order recusing itself. Id. at 1071. The Fifth
14
Circuit held that although generally “a notice of appeal transfers jurisdiction to [the Court
15
of Appeals],” the district court had authority to recuse itself from the case. Id. at 1073. The
16
Fifth Circuit explained that the district court was not “stripped of all jurisdiction once
17
plaintiffs’ notice of appeal became effective,” id., and held that although the district court
18
could not vacate the orders on appeal, id. at 1071, “it was still appropriate for [the district
19
judge] to recuse himself, insofar as he retained certain residual jurisdiction over this case,”
20
id. at 1073. The panel added that the district court’s recusal could also “be viewed as being
21
in aid of this appeal, as it brings to our attention serious questions concerning the propriety
22
of the dismissal that is now on appeal.” Id.
23
Just as the district court retained jurisdiction to recuse itself in Lopez Dominguez, so
24
too does this Court have the authority to recuse itself. The Court “retain[s] certain residual
25
jurisdiction over this case,” and its recusal is rightly viewed “as being in aid of [the ongoing]
26
appeal.” Id.; see also In re Thorp, 655 F.2d at 998 (district courts retain authority to act in
27
aid of appeal). If anything, this Court’s ability to recuse itself is even more clear than in
28
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Lopez Dominguez, for in this case the Court is exercising continuing jurisdiction and
2
supervisory authority while the appeal proceeds, whereas in Lopez Dominguez the district
3
court recused itself after a final judgment resolving all outstanding matters in the case.
4
Other courts have likewise recognized the propriety of addressing recusal motions
5
after a case has already proceeded on appeal. In Reeves v. Wells Fargo Home Mortgage,
6
for example, the district court applied Lopez Dominguez to entertain a recusal motion after
7
final judgment, explaining that “while an appeal is pending, a district court may consider
8
the issue of recusal,” even if it “may not reopen a final judgment.” 2012 WL 12877661, at
9
*2 (W.D. Tex. Oct. 3, 2012). Similarly, in Pitrolo v. County of Buncombe, the district court
10
entertained a recusal motion while an appeal was pending, holding that “a district court does
11
not lose jurisdiction to consider and rule on matters in aid of an appeal,” and that “[a] final
12
ruling on the issue of recusal will aid the appeal in that all matters will be placed before the
13
United States Court of Appeals for the Fourth Circuit, provided that appropriate and timely
14
procedural mechanisms are followed by the parties.” 2013 WL 588753, at *3 (W.D.N.C.
15
Feb. 13, 2013). See also Guerrero v. Weeks, 2013 WL 5934303, at *2 (E.D. Va. Nov. 5,
16
2013).
17
This is the only result consistent with the text and purpose of the judicial recusal
18
statute and the Due Process Clause. The judicial-recusal requirements safeguard “the
19
public’s confidence in the judicial process,” Liljeberg v. Health Servs. Acquisition Corp.,
20
486 U.S. 847, 864 (1988), because “to perform its high function in the best way ‘justice
21
must satisfy the appearance of justice,’ ” In re Murchison, 349 U.S. 133, 136 (1955)
22
(quoting Offutt v. United States, 348 U.S. 11, 14 (1954)). If a district court lacked the power
23
to recuse itself simply because a case was on appeal, then the court could continue to
24
adjudicate a case for months or years without addressing serious concerns about recusal.
25
The analysis does not change simply because Movants have also requested that the
26
Court of Appeals require recusal or reassign the case to a new judge. In Lopez Dominguez,
27
too, recusal issues were simultaneously implicated on appeal, and the Fifth Circuit
28
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emphasized that it had “the authority to address any violation of § 455 that occurred in this
2
case.” 607 F.3d at 1075. Yet the Fifth Circuit nonetheless unanimously held that the district
3
court retained jurisdiction to recuse itself.
4
3. This Court’s resolution of the Motion for Recusal will aid rather than
5
undermine the Ninth Circuit’s appellate review. This Court’s adjudication of the Motion
6
for Recusal will aid the Ninth Circuit’s review because by deciding that motion, this Court
7
will “bring[ ] to [the Court of Appeals’] attention serious questions concerning the propriety
8
of the [decision] that is now on appeal.” Lopez Dominguez, 607 F.3d at 1073. And it is
9
hard to see how this Court’s adjudication of the Motion for Recusal would disrupt the Ninth
10
Circuit’s appellate review or create “confusion and waste of time.” Kern Oil, 840 F.2d at
11
734.
12
To be sure, were this Court to grant the Motion for Recusal, it would moot a portion
13
of the relief that Movants have sought from the Ninth Circuit, i.e., their request that the
14
Court of Appeals reassign this case to a new judge on remand. But this Court’s resolution
15
of the Motion for Recusal will not in any way affect the inquiry that the Ninth Circuit must
16
make. The Motion for Recusal does not ask this Court to vacate any of its prior decisions.
17
Thus regardless of whether this Court decides to recuse itself prospectively, the Ninth
18
Circuit must still independently inquire into the recusal question because it must decide
19
whether vacatur is appropriate. The Ninth Circuit has held on multiple occasions that a
20
district court may enter orders while a case is proceeding on appeal where “the status of this
21
case on appeal remains unaltered by the [new] orders because the question before us remains
22
unchanged.” Armstrong v. Brown, 732 F.3d 955, 959 n.6 (9th Cir. 2013). See also
23
Southwest Marine, 242 F.3d at 1167 (district court may act where its actions “left
24
unchanged the core questions before the appellate panel”). Here, the core question before
25
the Ninth Circuit will remain unchanged, regardless of how this Court decides the Motion
26
for Recusal.
27
28
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The mere fact that granting the Motion for Recusal would moot a portion of the relief
2
that Movants have sought from the Ninth Circuit (i.e., Movants’ request for reassignment)
3
does not nullify this Court’s power and obligation to decide the motion. In Hoffman, for
4
example, the Ninth Circuit explained that district courts exercising continuing supervision
5
over an ongoing course of conduct retain authority to continue their supervision “even
6
though in the course of that supervision the court acts upon or modifies the order from which
7
the appeal is taken.” 536 F.2d at 1276. Similarly, after a district court enters a preliminary
8
injunction, it may proceed to trial and enter a final judgment, notwithstanding that its final
9
judgment would moot the appeal of the preliminary injunction. In that circumstance, the
10
“appeal from the grant of a preliminary injunction becomes moot when the trial court enters
11
a permanent injunction, because the former merges into the latter.” Grupo Mexicano de
12
Desarrollo SA v. Alliance Bond Fund, Inc., 527 U.S. 308, 314 (1999). See also, e.g.,
13
Planned Parenthood Arizona Inc. v. Betlach, 727 F.3d 960, 963 (9th Cir. 2013) (dismissing
14
as moot the appeal of a preliminary injunction); In re Estate of Ferdinand Marcos Human
15
Rights Litig., 94 F.3d 539, 544 (9th Cir. 1996) (same). Thus this Court cannot refrain from
16
deciding the recusal motion simply out of concern that the Court’s adjudication of that
17
motion might affect the Ninth Circuit’s appellate review.
18
19
B. The Court Retains Jurisdiction To Decide the Motion for Discovery.
20
The Court has jurisdiction over the Motion for Discovery for two reasons. First, just
21
as this Court has jurisdiction to decide whether to recuse itself, see supra Part II.A., it
22
necessarily has jurisdiction to permit discovery relevant to the recusal question. Thus, for
23
all the reasons just discussed, the Court retains jurisdiction to grant discovery into the
24
substance of the ex parte communications between the Court and its Monitor.
25
Second, this Court also has the authority to decide the Motion for Discovery because
26
that motion is not at all implicated by the ongoing appeal. The divestment rule only deprives
27
a district court of jurisdiction over “the subject matter of the appeal.” California Dep’t of
28
11
Case 2:07-cv-02513-GMS Document 1991 Filed 03/28/17 Page 13 of 15

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Toxic Substances, 309 F.3d at 1120. Movants’ appeal does not implicate any issues related
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to discovery, and merely granting Movants discovery cannot possibly disturb the Court of
3
Appeals’ review over the questions pending before it. This Court is just as free to adjudicate
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the Motion for Discovery as it is free to investigate Sheridan and Sousa pursuant to an
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injunction whose validity is now on appeal to the Ninth Circuit.
6
Indeed, courts routinely allow discovery and merits-related proceedings to continue
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while unrelated orders are pending on appeal. This scenario most frequently arises when a
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district court allows an interlocutory appeal or enters a preliminary injunction, and then
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permits discovery, summary judgment, or trial while the appeal proceeds. See, e.g., Betlach,
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727 F.3d at 963 (case allowed to proceed to summary judgment after entry of preliminary
11
injunction); United States v. Ray, 731 F.2d 1361, 1369 (9th Cir. 1984) (district court can
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proceed to trial and conviction while defendant takes an interlocutory appeal); United States
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v. Crozier, 674 F.2d 1293, 1297 (9th Cir. 1982), vacated on other grounds, 468 U.S. 1206
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(1984) (where resolution of issues raised in appeal is collateral to outcome of trial, district
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court retains jurisdiction during interlocutory appeal to proceed to trial); 16 WRIGHT &
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MILLER, FED. PRACTICE & PROCEDURE § 3921.2 (3d ed. 2017) (“The power to act pending
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appeal from preliminary injunction rulings is illustrated by district court rulings that explain
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or clarify the preliminary injunction itself and on matters of pleading, discovery, summary
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judgment, settlement, trial, and contempt” (footnotes omitted)). Accordingly, this Court
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should decide the Motion for Discovery notwithstanding the fact that an unrelated appeal is
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pending before the Ninth Circuit. 6
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26 6
Because this Court has both the power and duty to adjudicate the motions for
27 recusal and discovery, the procedure for an indicative ruling provided by Federal Rule of
Civil Procedure 62.1 is irrelevant; that procedure applies only where the district court “lacks
28 authority to grant” the motion. FED. R. CIV. P. 62.1(a).
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Case 2:07-cv-02513-GMS Document 1991 Filed 03/28/17 Page 14 of 15

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CONCLUSION
2
For the foregoing reasons, the Court should decide the pending motions for recusal
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and discovery.
4
5
DATED this 28th day of March, 2017.
6
7 COOPER & KIRK, PLLC
8 By Charles J. Cooper
9 Charles J. Cooper*
Michael W. Kirk*
10 Harold S. Reeves*
COOPER & KIRK, PLLC
11 1523 New Hampshire Ave., N.W.
Washington, D.C. 20036
12
* Admitted pro hac vice
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14 JONES, SKELTON & HOCHULI, P.L.C.

15 By John T. Masterson
John T. Masterson
16 Joseph J. Popolizio
Justin M. Ackerman
17 40 North Central Avenue, Suite 2700
Phoenix, Arizona 85004
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Attorneys for Joseph M. Arpaio,
19 Gerard Sheridan, and Joseph Sousa
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Case 2:07-cv-02513-GMS Document 1991 Filed 03/28/17 Page 15 of 15

1 CERTIFICATE OF SERVICE
2 I hereby certify that on this 28th day of March, 2017, I caused the foregoing

3 document to be filed electronically with the Clerk of Court through the CM/ECF System

4 for filing; and served on counsel of record via the Court’s CM/ECF system.

5
/s/ Charles J. Cooper
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Charles J. Cooper
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