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JESSICA PRICE (SBN 264053) jprice(aclu-sc.org AHILAN T. ARULANANTHAM (SBN 23 784 1) aarulanantharn(aclu-sc . org ACLU FOUNDATION OF SOUTHERN CALIFORNIA 1313 West Eight Street Los Angeles, California 90017 Telephone: 213.977.9500 Fax: 213.977.5297 STEPHEN S. SMITH (SBN 166539) S Smith@GreenbergGlusker. corn LISA Y. WANG (SBN 274724) LWang(ZlGreenbergGlusker.com GREETJBERG GLUSKER FIELDS CLAMAN & MACHTINGER LLP 1900 Avenue of the Stars, 21st Floor Los Angeles, California 90067-4590 Telephone: 310.553.3610 Fax: 310.553.0687 Attorneys for Plaintiffs JOHN PAUL MORROW and CHRISTIAN DAVIS

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UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

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V.

JOHN PAUL MORROW and CHRISTIAN DAVIS, Plaintiffs,

Case No. 12-CV-700 DSF (RZx)

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UNITED STATES PAROLE COMMISSION; ISAAC FUL WOOD, JR., in his official cpacjy; CRANSTON J. MITCHELL, in his official capacity; PATRICIA K. CUSHWA, in her official capacity; J. PATRICIA WILSON SMOOT, in her official capacity; and the UNITED STATES OF AMERICA, Defendants.

PLAINTIFFS REPLY IN SUPPORT OF THEIR MOTION FOR PRELIMINARY INJUNCTION

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TABLE OF CONTENTS Page

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5 I.

INTRODUCTION ........................................................................................... 1

M II. THIS COURT HAS JURISDICTION UNDER SECTION 1331 IN AND THE ADMINISTRATIVE PROCEDURE ACT..................................2
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A. B.

Plaintiffs Need Not Proceed via Mandamus.........................................2 Plaintiffs Claim is Ripe .......................................................................2 Plaintiffs Need Not Exhaust Any Further Remedy ..............................3

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III. PLAINTIFFS WILL LIKELY SUCCEED ON THE MERITS .....................4 A. B. C. Congress intended the Commission to Conduct In-Person Hearings................................................................................................ This Court Should Follow Terrell, the Only Appellate Court Opinion on this Issue ............................................................................6 Other Statutes Confirm that Congress Intended "Appear" to Mean "Appear In Person "....................................................................8 5

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IV. PLAINTIFFS WILL SUFFER IRREPARABLE HARM, THE BALANCE OF EQUITIES TIP IN THEIR FAVOR, AND INJUNCTIVE RELIEF IS IN THE PUBLIC INTEREST.............................9 V. CONCLUSION ................................................................................... . .......... 12

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TABLE OF AUTHORITIES 2 3 4 5 6 7 8 9
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As lam v. Mukasey, 537 F.3d 110 (2d Cir. 2008)...............................................................................10 Chevron, USA, Inc. v. NRDC, Inc., 467 U.S. 837 (1984) ............................................................................................. 9 El Rescate Legal Svcs., Inc. v. EOIR, 959 F.2d 7- 2 (9th Cir. 1991)................................................................................ 4 4 Glacier Park Foundation v. Watt, 663 F.2d 882 (9th Cir. 1982)................................................................................2 Idaho Conservation League v. Mumma 956F.2d 1508, 1516(9thCir. 1992) .................................................................... 3 In re Cybernetic Svcs., Inc., 252 F.3d 1039 (9th Cir. 2001).......................................................................... 6, 7 INS v. Cardoza-Fonseca, 480 U.S. 421 (1987) ............................................................................................. 9 Johnson v. Reilly, 349 F.3d 1149 (9th Cir. 2003).............................................................................. 2 Legal Aid Society ofAlameda County v. Brennan, 608 F.2d 1319 (9th Cir. 1979) .............................................................................. 2 Salmon River Concerned Citizens v. Robertson, 32 F.3d 1346 (9th Cir. 1994)................................................................................ 3 Terrell v. Brewer, 935 F.2d 1015 (9th Cir. 1991).............................................................................. 4 Terrell v. United States, 564 F.3d 442 (6th Cir. 2009)........................................................................ 1, 6, 8

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Tracy v. Salamack, 440 F. Supp. 930 (S.D.N.Y. 1977)..................................................................... 11 United States v. Horvath, 492 F.3d 1075 (9th Cir. 2007).............................................................................. 9 United States v. Navarro, 169 F.3d228 (5th Cir. 1999).............................................................................. 10 United States v. Thompson, 585 F.3d 595 (7th Cir. 2010).............................................................................. 10

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STATUTES

TABLE OF AUTHORITIES (continued) Page 5 U.S.C. 701-06 ......................................................................................................... 2 5 U.S.C. 7118a(3)...................................................................................................8 5 U.S.C. 7702(d)(4)................................................................................................8 8 U.S.C. 1229a(b)(2)(A) (2000)..............................................................................9 8 U.S.C. 1252(b) (1996)..........................................................................................9 18 U.S.C. 4208(b)...................................................................................................5 18 U.S.C. 4208(e)...................................................................................................8 18 U.S.C. 4208(g)...................................................................................................5 28U.S.C. 1331 ..........................................................................................................2

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OTHER AUTHORITIES

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8 C.F.R. 2.25..............................................................................................................5 28 C.F.R. 2.lh ............................................................................................................ 5 28 C.F.R. 2.12.........................................................................................................4 28 C.F.R. 2.12(d)....................................................................................................5 28 C.F.R. 2.14(b)(3) ............................................................................................... 5 28 C.F.R. 2.23(a).................................................................................................. 10 28C.F.R.2.24 ....................................................................................................... 10 28 C.F.R. 2.25......................................................................................................... 5 28 C.F.R. 2.26......................................................................................................... 4 28 C.F.R. 2.26 (a)(1)............................................................................................... 4 28 C.F.R. 2.26(e) .................................................................................................... 4 28 C.F.R. 2.73(a) .................................................................................................. 11

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I. INTRODUCTION Plaintiffs filed this motion to enforce a basic right that Congress plainly provided them: the right to appear in person at their parole hearings. In response, Defendants make two basic sets of arguments, both of which are meritless. First, Defendants assert that the Court lacks jurisdiction to review Plaintiffs parole status because such review is the task of the Parole Commission. But this response fundamentally misconstrues the nature of Plaintiffs claim. Plaintiffs do not seek review of their most recent parole determinations, nor do they seek release on parole through this suit. Rather, they ask this Court to vindicate their right to appear in person at their forthcoming parole commission hearings, as the Parole Act plainly requires. Because there is no mechanism for administrative review of the decision to hold their hearings by video, this Court has jurisdiction to adjudicate

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their claim on the merits. Second, Defendants claim that the parole statute is ambiguous, and that its

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language can be read to permit hearings by video. But Defendants ignore the 16 z 17 1 19 20 21 22 23 24 25 26 27 28
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statutes context, which makes clear that Congress intended for parole hearings to occur in-person. They also fail to rebut the only federal appellate court to consider the issue, which rejected their position, Terrell v. United States, 564 F.3d 442, 44950 (6th Cir. 2009). Defendants assert that Terrell was wrongly decided because the existence of a technology known as the "Picturephone" shows that Congress likely had videoconferencing in mind when it enacted this statute in 1976. However, the dismal history of the Picturephone proves Plaintiffs (and the Terrell courts) point: videoconferencing did not exist at the time the governing statute was enacted, and Congress did not have it in mind. Defendants other arguments fare no better. The Court should grant the simple but important relief that Plaintiffs seek and order Defendants to afford them an in-person parole hearing, as Congress intended.

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II. THIS COURT HAS JURISDICTION UNDER SECTION 1331 AND THE ADMINISTRATIVE PROCEDURE ACT Both the federal question statute, 28 U.S.C. 1331, and the Administrative Procedure Act ("APA"), 5 U.S.C. 701-06, give this Court authority to decide this case. See Dkt. 1 at 2 (citing both statutes as bases for jurisdiction). Defendants do not actually dispute that the Parole Act creates a right of action cognizable under Section 1331, but in any event, "[r]egardless whether a statute implies a private right of action, administrative actions thereunder may be challenged under the APA unless they fall within the limited exceptions of that Act." Foundation v. Watt, 663 F.2d 882, 885 (9th Cir. 1982). Glacier Park

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A.

Plaintiffs Need Not Proceed via Mandamus

Defendants argue that this case "sounds more properly in mandamus," 13


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because Plaintiffs allege that the Commission is denying them a right provided by statute. Dkt. 11 at 9. However, Defendants do not argue that mandamus is the exclusive method by which Plaintiffs must proceed, and the case they cite -Johnson v. Reilly, 349 F.3d 1149, 1153 (9th Cir. 2003) -- held only that mandamus was more proper "than habeas" as a vehicle in that case, which did not involve a pre-hearing challenge to the procedures that the Commission intended to use.

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Unlike Johnson, this is not a challenge to a past denial of parole. Plaintiffs are not proceeding via habeas and both Section 1331 and the APA provide jurisdiction. B. Plaintiffs Claim is Ripe 2

Defendants also argue that Plaintiffs claim is not ripe because the Parole Plaintiffs cite to prior filings b their docket and page number. They cite ," their opening brief as "Dkt. 6 at Defendants brief in opposition as "Dkt. 11 at ," and so forth. Perhaps Plaintiffs also could have brought a mandamus proceeding. However, the availability of mandamus does not make it the exclusive method of proceeding. See Legal Aid Society ofAlameda County v. Brennan, 608 F.2d 1319, 1 331 (9th Cir. 1979) (holding that judicial review of agency action was appropriate under the APA even where relief in the nature of mandamus was "also appropriate.") In any event, if the Court were to conclude that mandamus was the only proper method of proceeding, the Court should then treat Plaintiffs claim as a n petitio for writ of mandamus.
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Commission has not yet decided whether to grant them parole. Dkt. 11 at 12. But Plaintiffs do not challenge the denial of parole. They challenge the method by which their next parole hearing is to be conducted. The Parole Commission has made clear its intent to conduct Plaintiffs next parole hearing by video. Morrow Decl.

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18;. United States Parole Commission Docketing Schedule, available

at <http://wwwjustice.gov/uspc /docketing_schedule .htm> (last visited March 3, 2012). Because Plaintiffs have alleged injury from that decision, their claim is ripe. Salmon River Concerned Citizens v. Robertson, 32 F.3d 1346, 1355 (9th Cir. 1994)

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citing Idaho Conservation League v. Mumma, 956 F.2d 1508, 1516 (9th Cir. 1992)
(holding that "plaintiffs need not wait to challenge a specific project when their grievance is with an overall plan. . ." Otherwise "the underlying programmatic authorization would forever escape review. To the extent that the plan predetermined the future, it represents a concrete injury that plaintiffs must, at some point, have standing to challenge. That point is now, or it is never."). For similar reasons, Defendants argument that there has been no final agency action under the APA because the Commission can still conduct in-person hearings is nonsensical. Dkt. 11 at 11-12. The Parole Commission has already decided to hold Plaintiffs next parole hearing by video and permits no appeal of that decision. The APA requires nothing more. C. Plaintiffs Need Not Exhaust Any Further Remedy Defendants also argue that Plaintiffs have failed to exhaust their administrative remedies arising out of the denial of parole pursuant to the APA, Dkt. 11 at 3-4, 10-11, but that claim rests on the same confusion about the ripeness of Plaintiffs claim. As stated above, Plaintiffs do not challenge the denial of parole, they challenge the decision to conduct their next parole proceeding by video. Plaintiffs claim suffers from no exhaustion-related defect, for several reasons. First, Defendants identify no appeal mechanism for the decision to conduct
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the hearing by video, and Plaintiffs are aware of none. The rules governing the National Appeals Board, the entity that would otherwise resolve an appeal from the Commission, provide it no authority to address the legality of the video regulation. 28 C.F.R. 2.26 (a)(1)(a prisoner may appeal "any decision to grant. . ., rescind deny, or revoke parole"); 28 C.F.R. 2.26(e) (listing grounds for appeal). Second, "[e]xhaustion is not required if (1) administrative remedies would be futile; (2) the actions of the agency clearly and unambiguously violate statutory or constitutional rights; or (3) the administrative procedure is clearly shown to be inadequate to prevent irreparable injury." Terrell v. Brewer, 935 F.2d 1015, 1019

(9th Cir. 1991). All three exceptions apply. Appeal to the Commission is futile, as it has promulgated a regulation authorizing hearings by video. See El Rescate Legal

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Svcs., Inc. v. EOIR, 959 F.2d 742, 747 (9th Cir. 1991) (exhaustion futile where agency position "already set," such that appeal "very likely" to lose). The regulation violates the statutes unambiguous command. And the appeal procedure does not permit review of the decision to conduct hearings by video. 28 C.F.R. 2.26. III. PLAINTIFFS WILL LIKELY SUCCEED ON THE MERITS With respect to the merits, Defendants scarcely address Plaintiffs primary argument, which is that the statutory text and context make clear that Congress intended the Commission to conduct hearings in-person. Rather, Defendants argue that videoconferencing existed in 1976 in the form of the "Picturephone" and, therefore, that Congress intended to include it within the definition of "appear" in the statute. However, history reveals, unsurprisingly, that the Picturephone was not videoconferencing, and that Congress almost certainly did not have it in mind when Defendants assertion that Plaintiffs will no longer have "standing" to proceed with this claim if the Commission grants them parole is irrelevant. Dkt. 11 at 12-13. Apart from the fact that it conflates standing and mootness, Defendants have not granted Plaintiffs parole, and Defendants cannot cancel the hearings unless they intend to do so. U.S. Parole Commission Rules and Procedures Manual, 28 C.F.R. 2.12-03 (2010), available at <www.justice.gov/uspc/documents/uspcmanuall 1 1507.pdf (last visited Mar. 5, 2012).
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it wrote the Parole Act. A. Congress Intended the Commission to Conduct In-Person Hearings.

The statutory text and context make clear that when Congress said the inmate "shall be allowed to appear and testify on his own behalf at the parole determination proceeding," in 1976, it meant that the inmate shall appear in-person, in the presence of the hearing examiner. Dkt. 6-1 at 9. Most obviously, the statute requires that "the proceeding shall be held during the next regularly scheduled proceedings by the Commission at the institution in which the prisoner is confined," 18 U.S.C. 4208(b) (emphasis added). Defendants have no coherent response to this language. They appear to argue that its requirement is satisfied as long as the prisoner is present "at the institution where [he] testifies," but this is nonsensical - the prisoner will always be present where he is testifying. See Dkt. 11 at 22-23. The only coherent reading of the statutes requirement that the "proceeding" occur "at the institution" where the prisoner is confined is that it must be conducted in-person, not by examiners hundreds of miles away. Defendants argument against the statutes requirement for a "personal conference," if feasible, to explain the reasons for a denial, 18 U.S.C. 4208(g), fares no better. Dkt. 11 at 23. Defendants claim that the requirement applies only if the meeting "is feasible," but the regulation authorizing videoconference contains no analogous requirement. See 8 C.F.R. 2.25. The Commission has given itself authority to conduct hearings by video even if in-person hearings are feasible.

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Defendants cannot explain this incongruity. In contrast, Plaintiffs interpretation of the statute makes perfect sense of these provisions. 4 Several other Parole Commission regulations are rendered nonsensical if parole hearings may take place by video. 5ee 28 C.F.R. 2.1(h) ("The term effective date of parole refers to a parole date that has been approved following an in-person hearing -held within nine months of such date, or following a pre-release record review."); 28 C.F.R. 2.12(d) ("Consideration of disciplinary infractions in cases with presumptive parole date may be deferred until the commencement of the next in-person hearingor the frerelease record review required by 2.14(b).") (emphasis added); 28 C.F.R. 2.14(b)(3) ("A pre-release review pursuant to this section shall not be required ian in-person hearing has been held within nine
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B.

This Court Should Follow Terrell, the Only Appellate Court Opinion on this Issue.

The Sixth Circuit, the only circuit court to address this issue, got it right when it looked to the ordinary meaning of the words "appear and testify at" as these words were understood in 1976. Terrell, 564 F.3d 442 at 449-50. Defendants acknowledge Terrell, but ask this Court to disregard it for various reasons. Dkt. 11 at 17-20. Defendants arguments are meritless. Defendants first ask the Court to ignore the understanding of the word "appear" in 1976, on the ground that an interpretive methodology tied to history would create problems in constitutional interpretation. Dkt. 11 at 17. However, without resolving the controversial questions surrounding the relevance of historical context in constitutional interpretation, it is well-settled that courts look to the common, contemporaneous meaning of words to determine Congressional intent in statutes. See Dkt. 6 at 9; see also In re Cybernetic Svcs., Inc., 252 F.3d 1039, 1050 (9th Cir. 2001). The Sixth Circuit followed that principle in Terrell.

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Importantly for present purposes, courts have held that occasional or obscure historic variances in the construction of a word do not render its meaning ambiguous; instead, courts should look to the common contemporaneous definition. In re Cybernetic Svcs, 252 F.3d at 1050 (finding that even though "older cases defining the term. . . [we]re sparse, and its historic meaning tended to vary," the court could assume that Congress intended to use "the common contemporaneous definition" of the word at issue). Defendants then argue that because the so-called "Picturephone" existed in 1976, Congress must have intended "appear" in the Parole Act to include "appear via videoconference." Dkt. 11 at 18-21. However, even cursory research reveals months of the parole date."); U.S. Parole Commission Rules and Procedures Manual, 28 C.F.R. 2.13-02 ("The prisoner and his representative will normally be entitled to be present during the entire hearing except during deliberations of the decision-makers, or where institutional security would be jeopardized, and/or personal safety of adverse witnesses might be involved) (emphasis added).
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that Defendants are grasping at straws. Videoconferencing by any reasonable definition did not exist in 1976, and the Picturephones dismal history only proves the point. The inventor of the Picturephone, AT&T, refers to it as a failed experiment. It was a completely impractical, unduly expensive, undeveloped technology that did not generate anything like "video." Picturephone, available at <http://www.corp.att.com/attlabs/reputation/timeline/70picture .html> (last visited See AT&T, 1970:

Mar. 5, 2012). It was a "crude" technology (that the public "didnt like") that transmitted a single image once every two seconds. See id. That is not video. The Picturephone provided what today we would call a slide show. In addition, the equipment was "too bulky, the controls too unfriendly, and the picture too small. [The] Picturephone was still big, expensive, and uncomfortably intrusive." Id. As

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AT&T itself writes: "It was only two decades later, with improvements in speed, resolution, miniaturization, and the incorporation of [sic] Picturephone into another piece of desktop equipment, the computer, that the promise of a personal video communication system was realized." Id. Below is a photo of the Picturephone as it existed 1976:

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Defendants have no factual support for their contention that the two-inch screen shown above, which would have provided still images every two seconds, constituted "videoconferencing" that "had in fact been used for hearings in which
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all participating persons would still be visible to and be able to interact with each other." Dkt. 11 at 18. Indeed, Defendants cite only three examples of the use of the Picturephone, and these were in contexts that Defendants themselves admit were entirely experimental. That experiment failed - consigned to the dustbin of history until the advent of real videoconferencing only decades later. Given that the Picturephone was barely capable of transmitting individual images every two seconds, Defendants claim that "videoconferencing" was "on Congress mind" in 1976 defies logic and common sense. Dkt. 11 at 20. To the contrary, the fact that videoconferencing was a nascent, expensive, unrealistic, awkward and incomplete technology in 1976 would strongly tend to show that Congress did not intend to include it when it used the word "appear" at that time. The existence of Picturephone technology in 1976 provides no reason for this Court to reject the holding in Terre/i. Terrell correctly decided that Section 4208(e) requires an in-person hearing because Congress did not have videoconferencing in mind in 1976. 564 F.3d at 454-455. Arguing that the Picturephone justifies reading the word "appear" to encompass videoconferencing is like arguing that the existence of the space shuttle today justifies reading a law passed this year regulating airline safety to apply to rocket flights to Mars in 2050. C. Other Statutes Confirm that Congress Intended "Appear" to Mean "Appear in Person" Defendants also point to other statutes, enacted by different Congressional sessions in provisions unrelated to the Parole Act, to argue that the use of "appear in person" or "appear in person or otherwise" in other statutes proves that "appear" in 18 U.S.C. 4208(e) means "appear via videoconference." Dkt. 11 at 16. Defendants first cite 5 U.S.C. 7118(a)(3), but the legislative history of a neighboring provision strongly suggests that Congress did not intend "or otherwise" to encompass videoconferencing. 5 U.S.C. 7702(d)(4) was part of the same title, was passed at the time, and had the same legislative history as Section 7118(a)(3).
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Congress clarified that "appear in person or otherwise" as used in Section 2 3 4 5 6 7 8 9


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7702(d)(4), meant to appear in person or through counsel. See House Conference Report No. 95-1717, 2874 (1978) (stating that employee may "appear" either "in person, or through an attorney or representative"). Nothing in the context or history of the other two statutes on which Defendants rely suggest any other inference for those provisions. Dkt. 11 at 16. Moreover, Congress has specifically modified at least one statute to permit videoconferencing to replace in-person appearances. In 2000, Congress amended the statute governing removal proceedings for non-citizens to permit videoconferencing. Compare 8 U.S.C. 1252(b) (1996) (specifying procedures for hearings, but not mentioning video) with 8 U.S.C. 1229a(b)(2)(A) (2000) (amendment specifying that proceedings may take place, inter alia "through video

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conference"). To the extent other statutes provide any guidance in interpreting the Parole Act, they support Plaintiffs position that Congress would have specifically authorized hearings by videoconference if it had intended them. 6

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Defendants cite United States v. Horvath, 492 F.3d 1075 (9th Cir. 2007), as a "strikingly similar" case in support of their view, Dkt. 11 at 15, but Horvath involved a statute amended in 1996, not 1976, addressed the meaning of the word "submit" rather than "appear," and relied on the prevalence of submission by means of couriers or other staff at that time, id. at 1081, whereas videoconference was not prevalent in 1976. Defendants argument that the Court should afford deference to their interpretation of the statute also fails. Dkt. 11 at 17. The Court should afford deference only if, by" employing traditional tools of statutory construction, [it] ascertains that Congress had an intention on the precise question at issue." Chevron, USA, Inc. v. NRDC, Inc., 467 U. S. 837, 843 (1984). For the reasons advanced above, however, ordinary tools of statutory construction -- the common, contemporary of the meaning of the word appear, the context of the words at issue, and the historical context -- the meaning of the statute "is clear," and the Court need not defer to the Parole Commissions interpretation. See, e.g., INS v. CardozaFonseca, 480 U.S. 421, 446-47 (1987) (declining to apply Chevron deference where traditional tools of statutory analysis showed that agencys interpretation was incorrect). Congress has left nogg for the Court to fill, as it clearly did not intend to allow for parole hearings by video.
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IV. PLAINTIFFS WILL SUFFER IRREPARABLE HARM, THE BALANCE OF EQUITIES TIP IN THEIR FAVOR, AND INJUNCTIVE RELIEF IS IN THE PUBLIC INTEREST Defendants offer no response to Plaintiffs substantial evidence and authority establishing that video hearings simply cannot substitute for in-person hearings. Dkt. 6 at 12-15 (harms include increased possibility of parole denial caused by technical difficulties at hearing and lack of personal access to the examiner, as well as independent dignitary harm). Defendants offer only the declaration of Mr. Husk, but he pointedly fails to state that his information about the functioning of the parole video system is based on personal observation of any hearings, let alone a large number of them. Dkt. 11-1, Exh. JJ at 79. That Mr. Husk can conceive of a theoretical system in which inmates could provide documents without difficulty is irrelevant; the failure of the Parole Commission in practice to provide a procedure for Plaintiffs to pass documents back and forth during the hearing, see Davis Decl.

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J8, 10, Garcia Decl. J 14, 23, constitutes one of several irreparable harms that Plaintiffs describe without rebuttal. Defendants also argue that Plaintiffs suffer no harm because the ultimate parole decision is not made by the hearing examiner. Dkt. 11 at 20-21. However, the Parole Commissions own regulations show that the presence of the hearing examiner matters. The examiner makes a recommendation to grant or deny parole. 28 C.F.R. 2.23(a). While supervisory officials have authority to override that recommendation, the regulations make it harder to reverse than to affirm it. 28 C.F.R. 2.23(a), (b), 2.24. The examiners ability to gauge Plaintiffs credibility is plainly an important factor in the parole determination. See United States v. Navarro, 169 F.3d 228 1 239 (5th Cir. 1999) (rejecting sentencing by video because the "fact-finder loses the opportunity to respond to the immediacy of the defendants human presence and the gravity of the proceeding is diminished"). See also Aslam v. Mukasey, 537 F.3d 110, 114 (2d Cir. 2008) (stating in
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Moreover, if the Commissions argument were a valid basis for not 2 3 4 conducting the hearings in person, it would also be valid for not holding the hearing at all. Congress decided that the hearing matters, even though the examiner does not make the ultimate decision. Congress mandated that it occur and that it occur in person. It thereby expressed an understanding that there was a benefit to having the hearing, and having it in person, and, thus, a detriment to not having the hearing or not having it in person. Defendants argument that Plaintiffs have gotten better results in their more recent hearings is also meritless and has no tendency to show, as Defendants imply, that videoconferencing helps the inmate. Dkt. 11 at 24. It is hardly surprising that Mr. Morrow saw the most progress at his last parole hearing, because he is closer than he has ever been to his presumptive parole date (in 2016), Morrow Dccl. 17, and has "substantially observed the rules of the institution," 28 C.F.R. 2.73(a). Obviously this does not prove that the video hearing will not cause him harm as compared to an in person hearing. Finally, Defendants only claim of hardship or injury is that they expend extra time and money in conducting in-person parole hearings! However, Defendants undermine their own argument by continuing to hold half of their parole hearings in person. Dkt. 11-1, Exh. JJ at 81. Moreover, they estimate the removal hearing context that "virtual reality is rarely a substitute for actual presence" and that "watching an event on the screen remains less than the complete equivalent of actually attending it" because "videoconferencing may render it difficult for a factfinder in adjudicative proceedings to make credibility determinations and to gauge demeanor. ) Id. That is why, even today, courts hold that the word "ajpear" by"default" means "in person." United States v. Thompson, 599 F.3d 595, 601 (7th Cir. 2010) (holding that "appear" by "default" means tin person," and videoconferencing is the "exception to the rule" which applies only vhen explicitly permitted). The only argument Defendants make that the injunction does not serve the public interest is relegated to a footnote on the last page of their opposition. Dkt. 11 at 25 n. 11. They argue that the public has an interest in "reducing federal expenditures." Id. However, this cannot outweigh the publics interest in the government following the laws passed by Congress, particularly given that most of those laws require the expenditure of money. It merely saving money was a significant enough public interest to allow the government to disregard its own laws, then the Executive Branch could refuse to follow virtually any law.
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PLAINTIFF REPLY IN SUPPORT OF THEIR PRELIMINARY INJUNCTION

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entire cost savings for both Plaintiffs in this case at slightly more than $200,000, which is likely less than the cost of litigating this case. Id. at 82. This hardly outweighs Plaintiffs right to a fair parole hearing -- their only chance for the next two years to present in person their case for release. See Tracy v. Salamack, 440 F.

Supp. 930, 933 (S.D.N.Y. 1977) (holding, in parole context, that substantial loss of freedom "decisively" outweighs administrative burden). V. CONCLUSION The Court should grant the narrow, limited injunction that Plaintiffs seek by enjoining the Commission from holding Plaintiffs upcoming hearings by video. DATED: March 5, 2012 GREENBERG GLUSKER FIELDS CLAMAN & MACHTINGER LLP

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By: STEPHEN S. SMITH Attorneys for Plaintiffs JOT-IN PAUL MORROW and CHRISTIAN DAVIS

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PLAINTIFF REPLY IN SUPPORT OF THEIR PRELIMINARY INJUNCTION

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PROOF OF SERVICE
2 I am a citizen of the United States and employed in Los Angeles County, California. I 3 am over the age of 18 and not a party to the within action. My business address is 1900 Avenue of the Stars, Suite 2100, Los Angeles, California 90067-4590. 4 On March 5, 2012, I served the foregoing document described as PLAINTIFFS REPLY IN SUPPORT OF THEIR MOTION FOR PRELIMINARY INJUNCTION on the 6 interested parties in this action 5 7 I 8 9 by placing 0 the original 0 a true and correct copy thereof enclosed in sealed envelope addressed as follows: Andr Birotte Jr., Esq. United States Attorney Leon W. Weidman, Esq. Assistant United States Attorney Chief, Civil Division Robert I. Lester, Esq. Assistant United States Attorney 300 North Los Angeles Street Room 7516 Los Angeles, CA 90012 Phone: (213) 894-2464 Fax: (213) 894-7819 Attorneys for Defendants

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BY REGULAR U.S. MAIL:


18 19 20 21 22 I declare that I am employed in the office of a member of the bar of this court at whose 23 direction the service was made. 24 25 26 NANCY L. LUIS 27 28
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As follows: I am readily familiar" with the firms practice of collection and processing correspondence for mailing. Under that practice it would be deposited with U.S. postal service on that same day with postage thereon fully prepaid at Los Angeles, California in the ordinary course of business. I am aware that on motion of the party served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing in affidavit.

Executed on March 5, 2012, at Los Angeles, California.

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