8/2/2019 Government Response to Preliminary Injunction
1/113
1
2
3
4
5
6
78
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
ANDR BIROTTE JR.United States AttorneyLEON W. WEIDMANAssistant United States AttorneyChief, Civil DivisionROBERT I. LESTER (CBN 116429)Assistant United States Attorney
300 North Los Angeles StreetRoom 7516Los Angeles, California 90012Phone: (213) 894-2464Fax: (213) 894-7819
[email protected] for Defendants
UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF CALIFORNIA
WESTERN DIVISION
JOHN PAUL MORROW; and CHRISTIAN DAVIS, ))
Plaintiffs, ))
v. ))
UNITED STATES PAROLE COMMISSION; )ISAAC FULWOOD, JR., in his official )
capacity; 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. )
________________________________________ )
No. CV 12-0700
OPPOSITION OF TO MOTION OF PFOR PRELIMINARINJUNCTION.
DATE: March 1TIME: 1:30 p.CTRM: Hon. Da
Fischer
Case 2:12-cv-00700-DSF-RZ Document 11 Filed 02/23/12 Page 1 of 29
8/2/2019 Government Response to Preliminary Injunction
2/113
1
2
3
4
5
6
78
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
TABLE OF CONTENTS
I. INTRODUCTION . . . . . . . . . . . . . . . . . . .
II. FACTS . . . . . . . . . . . . . . . . . . . . . .
A. Plaintiff John Paul Morrow . . . . . . . . .
B. Plaintiff Christian Davis . . . . . . . . . .
III. THE APPLICABLE STATUE AND REGULATION . . . . . . .
A. The Statute And The Regulation . . . . . . .
B. Background On The Commissions Use Of
Videoconferencing . . . . . . . . . . . . .
IV. THE COURT SHOULD DENY PLAINTIFFS MOTION FOR APRELIMINARY INJUNCTION . . . . . . . . . . . . . .
A. Preliminary Injunction Standard . . . . . . .
B. Plaintiffs Are Not Likely To Succeed On The Me
1. Applicable Standard For The Merits .
2. Plaintiffs Claim Under The APA Fails .
a. The Commissions Administrative Reme
System . . . . . . . . . . . . . .
b. There Has Been No Final Agency Acti
3. Plaintiffs Claim Is Speculative And Not
4. 18 U.S.C. 4208(e) Does Not Require ThatPrisoner Be Allowed To Appear In PersonThe Hearing Examiner . . . . . . . . . .
5. The Commissions Decision To Use Video-Conferencing Is A Reasonable Construction
Case 2:12-cv-00700-DSF-RZ Document 11 Filed 02/23/12 Page 2 of 29
8/2/2019 Government Response to Preliminary Injunction
3/113
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
TABLE OF AUTHORITIES
CASES
Americopters, LLC v. FAA,441 F.3d 726 (9th Cir. 2006) ......................
In re Cavanaugh,306 F.3d 726 (9th Cir. 2002) ......................
Chevron U.S.A., Inc. v. Natural Resources Defense Counci
467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984)
DISH Network Corp. v. FCC,653 F.3d 771 (9th Cir. 2011) ......................
Idaho Sporting Congress, Inc. v. Rittenhouse,305 F.3d 957 (9th Cir. 2002) ......................
Johnson v. Reilly,
349 F.3d 1149 (9th Cir. 2003) .....................
Katz v. United States,389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) .
Merritt-Chapman & Scott Corp. v. United States,528 F.2d 1392 (Ct. Cl. 1976) ......................
Paul Revere Insurance Group v. United States,
500 F.3d 957 (9th Cir. 2007) ......................
Putnam Family Partnership v. City of Yucaipa,--- F.3d --- 2012 WL 516063 (9th Cir. Feb. 17, 2012
Ruviwat v. Smith,701 F.2d 844 (9th Cir. 1983) ......................
Terrell v. United States,564 F.3d 442 (6th Cir. 2009) ................... 1
United States v. Horvath,492 F.3d 1075 (9th Cir. 2007) .....................
United States v. Thompson,
Case 2:12-cv-00700-DSF-RZ Document 11 Filed 02/23/12 Page 3 of 29
8/2/2019 Government Response to Preliminary Injunction
4/113
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
Winter v. Natural Resources Defense Council, Inc.,555 U.S. 7, 29 S.Ct. 365, 172 L.Ed.2d 249 (2008) ..
Wooton v. United States Parole Commission,2010 WL 2595341 (C.D. Cal. June 22, 2010) .........
Wooton v. United States Parole Commission,2010 WL 2595341 (C.D. Cal. June 22, 2010) .........
Parke-Bernet Galleries, Inc. v. Franklyn,31 A.D.2d 276, 297 N.Y.S.2d 151 (N.Y. App. Div. 196
STATUTES AND REGULATIONS
5 U.S.C. 704 ........................................
5 U.S.C. 7118(3) .....................................
8 U.S.C. 1324b(e)(1)..................................
10 U.S.C. 1185(a)(3)..................................
Parole Act .............................................
22 U.S.C. 4136(2) ....................................
28 U.S.C. 1361 .......................................
42 U.S.C. 1997e(a) ...................................
20 C.F.R. 404.936(c) .................................
28 C.F.R. 2.23-2.24 & 2.26 ....................... 1
28 C.F.R. 541.7(d)(1) ...............................
69 F.R. 5273 ........................................
70 F.R. 19262 .........................................
Case 2:12-cv-00700-DSF-RZ Document 11 Filed 02/23/12 Page 4 of 29
8/2/2019 Government Response to Preliminary Injunction
5/113
1
2
3
4
5
6
78
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
MEMORANDUM OF POINTS AND AUTHORITIES
I.
INTRODUCTION
A federal regulation, 28 C.F.R. 2.25, authorizes
examiners of the United States Parole Commission (Commi
to conduct parole hearings by videoconference with feder
prisoners. The regulation is based on 18 U.S.C. 4208(which entitles a prisoner to appear at his or her paro
determination proceeding. Plaintiffs request this Court
expand the term appear to mean appear in person. Th
should reject that request because, among other things,
Plaintiffs have failed to exhaust their administrative r
and the Commissions construction of the governing statu
reasonable.1
II.
FACTS
A. Plaintiff John Paul Morrow
Morrow is serving a life sentence imposed by the Un
States Army on September 16, 1992. Exhibit A. He had b
convicted of, among other things, murder. Morrow was la
transferred from the custody of the Army to the custody
the Federal Bureau of Prisons (BOP). On February 25,
a hearing examiner of the Commission conducted Morrows
parole hearing in person. Exhibit C. The Commission de
Case 2:12-cv-00700-DSF-RZ Document 11 Filed 02/23/12 Page 5 of 29
8/2/2019 Government Response to Preliminary Injunction
6/113
1
2
3
4
5
6
78
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
continue the case so that it could obtain a current psyc
report on Morrow from the BOP. Exhibit D.
On July 16, 2002, after receiving the requested rep
the Commission conducted another hearing in person. Exh
The hearing examiner recommended that Morrow be granted
after Morrow served 300 months. Id. Agreeing with the
examiner, the Commission granted Morrow a parole date of17, 2017. Exhibit F. Morrow appealed the decision to t
Commissions National Appeals Board (Board), which aff
the decision on October 29, 2002. Exhibit G.
On May 25, 2004, the Commission conducted an in-per
interim hearing. Exhibit H. The Commission decided not
change its previous decision. Exhibit I. The Board aff
the decision. Exhibit K.
On May 3, 2006, the Commission conducted another in
in-person hearing. Exhibit L. On May 16, 2006, the Com
ordered no change to the parole date. Exhibit M. The B
affirmed the decision. Exhibit N.
On March 25, 2008, Morrow received an interim heari
video conference. Exhibit O. On April 2, 2008, the Com
reaffirmed the presumptive parole date of March 17, 2017
Exhibit P. Although the Commission advised Morrow that
appeal to the Board, he did not file an appeal.
Morrows most recent interim hearing was conducted
Case 2:12-cv-00700-DSF-RZ Document 11 Filed 02/23/12 Page 6 of 29
8/2/2019 Government Response to Preliminary Injunction
7/113
1
2
3
4
5
6
78
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
presumptive parole date to March 17, 2016. Exhibit R.
Commission informed Morrow that his next interim hearing
held in March 2012. Id. The Commission also advised hi
its decision was appealable to the Board (id.), but Morr
not appeal.
Morrows next interim hearing date is scheduled to
conducted in March 2012, by video conference. Exhibit SB. Plaintiff Christian Davis
Davis is serving a life sentence imposed by the Uni
States Army on January 27, 1993. Exhibit T. He, too, h
convicted of murder. Id. Davis was later transferred f
custody of the Army to the custody of the BOP. On May 3
a hearing examiner of the Commission conducted Morrows
parole hearing in person. Exhibit V. Ultimately, the C
set a parole date of May 21, 2016, after the service of
months. Exhibit X. Though the Commission advised Davis
right to appeal to the Board (id.), Davis did not appeal
decision.
On March 30, 2004, the Commission conducted an in-p
interim hearing. Exhibit Y. The Commission decided not
change its previous decision. Exhibit Z. The Board aff
that decision. Exhibit BB.
On March 2, 2006, the Commission conducted another
in-person hearing. Exhibit CC. The hearing examiner re
Case 2:12-cv-00700-DSF-RZ Document 11 Filed 02/23/12 Page 7 of 29
8/2/2019 Government Response to Preliminary Injunction
8/113
1
2
3
4
5
6
78
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
On March 25, 2008, Davis received another interim h
by video conference. Exhibit EE. On September 23, 2008
Commission kept the presumptive parole date in place. E
FF. Although the Commission advised Davis of his right
to the Board (id.), he did not file an appeal.
Davis most recent interim hearing was conducted on
18, 2010 by video conference. Exhibit GG. The hearing recommended a six-month credit for Davis achievements.
Ultimately, however, the Commission decided not to chang
previous decision. Exhibit HH. Although the Commission
Davis of his right to appeal to the Board (id.), he did
an appeal.
Davis next interim hearing date is scheduled to be
conducted in March 2012, by video conference. Exhibit I
III.
THE APPLICABLE STATUE AND REGULATION
A. The Statute And The Regulation
The relevant statute provides: The prisoner shall
allowed to appear and testify on his own behalf at the p
determination proceeding. 18 U.S.C. 4208(e).2
The relevant federal regulation provides:
The Commission may conduct a parole
determination hearing (including a rescission
2 This provision was enacted in section 2 of the P
Case 2:12-cv-00700-DSF-RZ Document 11 Filed 02/23/12 Page 8 of 29
8/2/2019 Government Response to Preliminary Injunction
9/113
1
2
3
4
5
6
78
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
hearing), a probable cause hearing, and an
institutional revocation hearing, by a
videoconference between the hearing examiner
and the prisoner or releasee.
28 C.F.R. 2.25.3
B. Background On The Commissions Use Of Videoconferen
Until 2004, all parole release hearings were conducsite and in-person at the federal penitentiary where the
was held. Early that year, the Commission began a pilot
in which hearing examiners conducted some release hearin
through a videoconference with the prisoner. The Commis
promulgated an interim rule at 28 C.F.R. 2.25 to give
public notice that it would be carrying out the pilot pr
See 69 FR 5273-75 (Feb. 4, 2004).
As the Commission explained, it was looking for way
reduce travel costs and conserve the time of its hearing
examiners, and saw hearings by videoconference as a mean
achieving these ends. 69 FR 5273. The Commission noted
expectation that videoconference technology had improved
point that a prisoners ability to effectively participa
hearing would not be diminished by the use of videoconfe
Id. The Commission also noted that conducting hearings
videoconference would be especially cost-effective for h
that would otherwise have to be conducted at facilities
Case 2:12-cv-00700-DSF-RZ Document 11 Filed 02/23/12 Page 9 of 29
8/2/2019 Government Response to Preliminary Injunction
10/113
1
2
3
4
5
6
78
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
conducted over 100 hearings through videoconferencing, a
determined that the technology worked well and did not d
the prisoners ability to effectively participate in hea
See 70 FR 19262 (Apr. 13, 2005).
In February 2004, the Commission promulgated the
videoconference regulation, stating that it was carrying
a pilot project to study the feasibility of conducting release hearings through video conferences between the
examiner (who was located in Washington, D.C.), and the
(who was located at a prison in the United States). 69
5273. The Commission reasoned that the use of videoconf
would conserve its limited financial resources and the t
expended by its hearing examiners, without detracting f
prisoners opportunity for a fair parole hearing. Id.
2005, the Commission observed that the pilot program had
well. Indeed, [t]he Commissions experience is that t
prisoners ability to effectively participate in the hea
not been diminished by the use of the videoconference pr
70 Fed.Reg. 19262.
A parole hearing by videoconference does not commen
the hearing examiner is convinced that the technology is
properly. Declaration of Stephen J. Husk 4, attached
Exhibit JJ. The hearing examiner is able to assess the
of the prisoner during the hearing. The camera has a zo
Case 2:12-cv-00700-DSF-RZ Document 11 Filed 02/23/12 Page 10 of 29
8/2/2019 Government Response to Preliminary Injunction
11/113
1
2
3
4
5
6
78
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
documents that are submitted during the hearing. Husk D
Otherwise, the prisoner can make an offer of proof and,
appropriate, the hearing examiner can continue the heari
A hearing examiner does not make the final decision
whether a particular prisoner will be released on parole
Commissioners themselves, who are the ultimate decision-
this process, neither participate in the videotaped hearobserve them when they are taking place. Instead, they
the hearing examiners written summary and the supportin
materials submitted to them. The Commissioners also hav
option of reviewing an audio recording that is kept of t
hearing. Husk Dec. 8.
The Commission conducts hearings at 67 BOP faciliti
throughout the country. The Commission currently provid
person hearings at 32 BOP institutions and videoconferen
hearings at 35 BOP institutions. Husk Decl. 9. Condu
many of the parole hearings by videoconference saves a
considerable amount of money for the Commission, and con
the time of hearing examiners, particularly with respect
facilities that are difficult to reach. Husk Decl. 9
IV.
THE COURT SHOULD DENY PLAINTIFFS MOTION FOR A
PRELIMINARY INJUNCTION
A. Preliminary Injunction Standard
Case 2:12-cv-00700-DSF-RZ Document 11 Filed 02/23/12 Page 11 of 29
8/2/2019 Government Response to Preliminary Injunction
12/113
1
2
3
4
5
6
78
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
the absence of preliminary relief, that the
balance of equities tips in his favor, and
that an injunction is in the public interest.
Winter v. Natural Resources Defense Council, Inc., 555 U
20, 29 S.Ct. 365, 172 L.Ed.2d 249 (2008). If the plaint
not satisfy his burden of establishing the first element
court need not consider the remaining three. DISH NetCorp. v. FCC, 653 F.3d 771, 777 (9th Cir. 2011).
In Winter, the Supreme Court emphasized that a prel
injunction may issue only if the plaintiff demonstrates
irreparable injury is likely in the absence of an injunc
555 U.S. at 22 (emph. in original). A preliminary injun
not issue based only on a possibility of irreparable ha
is an extraordinary remedy that may only be awarded upo
showing that the plaintiff is entitled to such relief.
The fact that the defendant is not conducting a ne
of activity with completely unknown effects . . . is p
as well. Id. at 23.
Additionally, the district court must balance the
claims of injury . . .. Id. at 24.
Finally, an application for preliminary injunction
disfavored where the granting of the preliminary injunct
give the plaintiff substantially the relief it would obt
a trial on the merits. William W. Schwarzer, A. Wallace
Case 2:12-cv-00700-DSF-RZ Document 11 Filed 02/23/12 Page 12 of 29
C 2 12 00700 DSF RZ D t 11 Fil d 02/23/12 P 13 f 29
8/2/2019 Government Response to Preliminary Injunction
13/113
1
2
3
4
5
6
78
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
B. Plaintiffs Are Not Likely To Succeed On The Merits
1. Applicable Standard For The Merits
Plaintiffs purport to assert claims for relief for
of the Parole Act and seek review under the Administrati
Procedure Act (APA). Their case, however, sounds mo
properly in mandamus, because Plaintiffs allege that t
Commission is denying them a right provided by statute.Johnson v. Reilly, 349 F.3d 1149, 1153 (9th Cir. 2003)
(petitioners claim that the Commission denied him his
mandated speedy parole revocation hearing following his
a parole violator warrant sounds more properly in mand
than habeas).
Pursuant to 28 U.S.C. 1361, district courts have
jurisdiction of any action in the nature of mandamus to
officer or employee of the United States or any agency t
perform a duty owed to the plaintiff. 28 U.S.C. 1361
Mandamus is available only when (1) the plaintiffs clai
clear and certain; (2) the officials duty is nondiscret
ministerial and so plainly prescribed as to be free from
and (3) no other adequate remedy is available. Johnson,
349 F.3d at 1154. Even if this test for mandamus relief
a district court has discretion to deny relief. Id.
2. Plaintiffs Claim Under The APA Fails
To the extent that the APA arguably applies to this
Case 2:12-cv-00700-DSF-RZ Document 11 Filed 02/23/12 Page 13 of 29
Case 2 12 c 00700 DSF RZ Doc ment 11 Filed 02/23/12 Page 14 of 29
8/2/2019 Government Response to Preliminary Injunction
14/113
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
court. 5 U.S.C. 704. The APA requires that plainti
exhaust available administrative remedies before bringin
grievances to federal court. Idaho Sporting Congress,
Rittenhouse, 305 F.3d 957, 965 (9th Cir. 2002); see also
Weinstein v. United Sates Parole Commission, 902 F.3d 14
(9th Cir. 1990) (federal prisoners are required to exhaus
administrative remedies prior to seeking federal court r
a Parole Commission decision).
Use of available administrative remedies conserves
courts time because of the possibility that the relief
for may be granted at the administrative level. Ruviwa
Smith, 701 F.2d 844, 845 (9th
Cir. 1983). Moreover, it a
the administrative agency an opportunity to correct err
occurring in the course of administrative proceedings.
Thus, for example, this Court dismissed a habeas petitio
containing the identical district court challenge to vid
parole hearing, because the prisoner had failed to appea
to the Board. Wooton v. United States Parole Commission
2010 WL 2682387 (C.D. Cal.) (unpublished report and
recommendation of Magistrate Judge Rosalyn M. Chapman),
adopted in 2010 WL 2595341 (C.D. Cal. June 22, 2010)
(unpublished order of District Judge Valerie Baker Fairb
a. The Commissions Administrative Remedy Sy
The Commission regulations provide an administrativ
Case 2:12-cv-00700-DSF-RZ Document 11 Filed 02/23/12 Page 14 of 29
Case 2:12 cv 00700 DSF RZ Document 11 Filed 02/23/12 Page 15 of 29
8/2/2019 Government Response to Preliminary Injunction
15/113
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
and ending with the National Appeals Board. See 18 U.S.
4215(a); 28 C.F.R. 2.23-2.24 & 2.26.5 However, as
above, neither plaintiff filed any appeal with regard to
decisions arising out of the videoconferenced proceeding
Plaintiffs should not be excused from the exhaustio
requirement, given that: (1) Plaintiffs were prominently
of their right to appeal; and (2) Plaintiffs had already
exhibited familiarity with the administrative appeals pr
See also 42 U.S.C. 1997e(a) (prisoners are required to
such administrative remedies as are available). Nor sho
be excused because exhaustion now as to the 2008 and 201
proceedings would be futile. Even now the administrati
is not necessarily foreclosed to Plaintiffs.7 Moreover,
Commission still conducts some parole hearings in person
b. There Has Been No Final Agency Action
Plaintiffs have failed to identify a final agency
First, although the Commission has promulgated a regulat
5 The Board must issue a decision within 60 days oof the appeal. 18 U.S.C. 4215(b); 28 C.F.R. 2.26(c).Decisions of the Board are final. 28 C.F.R. 2.26(c).
6
Morrow had previously filed appeals arising out person hearings to the Board; Davis filed one appeal ariof an in-person hearing to the Board.
7 The Board can review even tardy appeals in the inof justice. See USPC Rules and Procedures Manual 2.26-0Appeals) ([L]ate appeals may be accepted for good cause
Case 2:12-cv-00700-DSF-RZ Document 11 Filed 02/23/12 Page 15 of 29
Case 2:12-cv-00700-DSF-RZ Document 11 Filed 02/23/12 Page 16 of 29
8/2/2019 Government Response to Preliminary Injunction
16/113
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
allowing for parole hearings to be conducted by videocon
the rule does not revoke the authority of the Commission
conduct any given parole hearing in person. See n. 8 &
accompanying it. And, with respect to these Plaintiffs,
appealed the absence of an in-person hearing to the Boar
someone at the Commission determined that any given paro
hearing is scheduled to be conducted by video-tape is ha
final agency action as contemplated by the APA. Becau
is no final agency action for review, the APA bars the d
court from hearing the case for lack of jurisdiction. E
Americopters, LLC v. FAA, 441 F.3d 726, 735 (9th Cir. 200
Therefore, based on the foregoing, the APA bars Pla
from proceeding with this case.
3. Plaintiffs Claim Is Speculative And Not Ripe
Plaintiffs claim is speculative and not ripe. Pla
devote a lot of attention to their argument that it is l
advantageous for them (for intangible, hard to describe
if parole hearings are conducted by video conference ins
in person. That proposition is debatable, and is a topi
suitable only for Congress, not for a court conducting s
analysis. Moreover, even if we assume, arguendo, that a
person hearing would likely be more favorable to a priso
one conducted by videoconference, even Plaintiffs do not
that the result of video conference hearings would inevi
Case 2:12-cv-00700-DSF-RZ Document 11 Filed 02/23/12 Page 16 of 29
Case 2:12-cv-00700-DSF-RZ Document 11 Filed 02/23/12 Page 17 of 29
8/2/2019 Government Response to Preliminary Injunction
17/113
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
Indeed, there is ample basis, even on this record,
the notion that an in-person hearing is, by definition,
advantageous for a prisoner than one by video-tape. In
a hearing examiner recommended -- after conducting the h
by video conference -- that Morrow be granted a 12-month
for his accomplishments. Exhibit Q. And in a video con
hearing the same day, the hearing examiner recommended t
be granted a six-month credit for his accomplishments.
GG.6 By contrast, for the in-person hearings that Morrow
been afforded in 2004 and 2006, the hearing examiners di
recommend that he be granted any relief. See Exhibits I
Davis had some success with in-person hearings; although
the hearing examiner did not recommend that Davis be aff
relief (Exhibit Z), the one in 2006 did recommend that D
receive an 18-month credit for his accomplishments (Exhi
The point is that Plaintiffs should not be permitte
the Parole Commission before the March 2012 parole heari
occur - much less bring a motion for preliminary injunc
Their claims simply are not ripe. For that reason alone
motion for preliminary injunction should be denied.
4. 18 U.S.C. 4208(e) Does Not Require That The
Be Allowed To Appear In Person Before The He
Examiner
Even addressing the merits of Plaintiffs argumen
Case 2:12 cv 00700 DSF RZ Document 11 Filed 02/23/12 Page 17 of 29
Case 2:12-cv-00700-DSF-RZ Document 11 Filed 02/23/12 Page 18 of 29
8/2/2019 Government Response to Preliminary Injunction
18/113
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
prisoner be allowed to appear and testify on his own be
the parole determination proceeding. The substantive q
raised by this petition is whether appear has its ordi
meaning of be visible or whether, instead, it should b
mean be physically present; i.e., appear in person.
ordinary meaning applies, there is no question that Sect
4208(e) is satisfied here: Plaintiffs will be visible t
videoconferencing, and will be seen and heard by the Com
in that fashion while giving testimony. It is not out o
ordinary for administrative agencies to have parties ap
by teleconferencing.7
Plaintiffs, however, argue that appear must be gi
special meanings of either be physically present or a
person. Therefore, they contend, their Section 4208(e)
appear will be violated when the Commission conducts t
hearing (at least their fifth, apparently) by videoconfe
This argument ignores the plain meaning of Section 4208(
adding words not found in the statute.
In interpreting a statute, [the court must] first
the plain meaning of its text. See Paul Revere Insuran
v. United States, 500 F.3d 957, 962 (9th Cir. 2007). The
meaning of appear (when unadorned by the modifier in
is to become or be visible. That is true today, and i
Case 2:12 cv 00700 DSF RZ Document 11 Filed 02/23/12 Page 18 of 29
Case 2:12-cv-00700-DSF-RZ Document 11 Filed 02/23/12 Page 19 of 29
8/2/2019 Government Response to Preliminary Injunction
19/113
1
2
3
4
5
6
7
8
9
10
11
1213
14
15
16
17
18
19
20
21
22
23
24
true in 1976 when Section 4208(e) was enacted. See The
Dictionary and Thesaurus (1996) 62; The Random House Dic
of the English Language, The Unabridged Edition (1969) 7
Websters Third New International Dictionary (1963) 103
come into view (as from a distance or place of concealme
become visible; . . . b: to be in sight: be visible).
In order for appear to be synonymous with physica
presence, the words in person must follow. But such a
of Section 4208(e) would be impermissible, because a cou
not add to the statute terms that Congress omitted. In
Cavanaugh, 306 F.3d 726, 738 (9th Cir. 2002). Indeed, in
strikingly similar situation, the Ninth Circuit explainewould not insert the word personally or directly int
statutory requirement that a statement be submitted by
party . . . to a judge:
[S]ubmitted is not necessarily the
equivalent of spoken in the presence of or
handed to. Nor - as we have noted above -
- does the statute require that a statement
must be submitted directly or personally
to the judge. [W]e may not add to the
statute terms that Congress omitted.
United States v. Horvath, 492 F.3d 1075, 1081 (9th Cir. 2
Here, as in Horvath, the unmodified word cannot bear the
g
Case 2:12-cv-00700-DSF-RZ Document 11 Filed 02/23/12 Page 20 of 29
8/2/2019 Government Response to Preliminary Injunction
20/113
1
2
3
4
5
6
7
8
9
10
11
1213
14
15
16
17
18
19
20
21
22
23
24
5 U.S.C. 7118(3), enacted in 1978, provides
organizations or agencies the right . . . to
person or otherwise and give testimony.
8 U.S.C. 1324b(e)(1), as added on November 6
Pub.L. 99-603, Title I, 102(a), 100 Stat. 337
provides that any person accused in a complain
engaging in an unfair-immigration practices s
the right . . . to appear in person or otherwi
give testimony.
10 U.S.C. 1185(a)(3), enacted in 1980, provi
any officer required to show cause for retenti
active duty shall be allowed to appear in per(Emphasis added in each).
If Plaintiffs theory were correct, all of the in
language in those statutes was surplusage, and the or o
language in Section 1342b(e)(1) would be gibberish. Any
that nullifies the words Congress writes, while giving e
to words Congress omitted, is not statutory interpretati
statutory interpolation. The Court must reject that app
Plaintiffs offer no authority that undermines the p
ordinary meaning of appear -- that is, to be or becom
visible. Even if Plaintiffs were able to establish tha
appear is ambiguous and could mean either be visible
be physically present, they would still lose on the me
Case 2:12-cv-00700-DSF-RZ Document 11 Filed 02/23/12 Page 21 of 29
8/2/2019 Government Response to Preliminary Injunction
21/113
1
2
3
4
5
6
7
8
9
10
11
1213
14
15
16
17
18
19
20
21
22
23
24
means be visible, any ambiguity must be resolved in fa
the Commissions interpretation under Chevron U.S.A., In
Natural Resources Defense Council, Inc., 467 U.S. 837, 1
2778, 81 L.Ed.2d 694 (1984). Courts will defer to an a
interpretation of a statute that it is charged with impl
if the statute is ambiguous and the agencys interpretat
is reasonable. Putnam Family Partnership v. City of Yu
- F.3d ---, 2012 WL 516063, *6 (9th Cir. Feb. 17, 2012)
A statute is ambiguous if Congress has no directly spo
the precise question at issue. Id.
Plaintiffs do not explain why the Court should cons
meaning of the phrase appear . . . at the parole determproceeding" in 18 U.S.C. 4208(b) to mean only what the
it commonly meant in 1976. Under Plaintiffs reasoning,
example, the Fourth Amendments use of the term search
not possibly include law enforcement actions that use mo
technology (such as wiretapping), because there was no s
as wiretapping in 1791 - yet that is not the law. See,
Katz v. United States, 389 U.S. 347, 353, 88 S.Ct. 507,
19 L.Ed.2d 576 (1967) (The Governments activities in
electronically listening to and recording the petitioner
[while he was using a telephone booth] constituted a se
seizure within the meaning of the Fourth Amendment.)
Plaintiffs rely heavily on Terrell v. United States
Case 2:12-cv-00700-DSF-RZ Document 11 Filed 02/23/12 Page 22 of 29
8/2/2019 Government Response to Preliminary Injunction
22/113
1
2
3
4
5
6
7
8
9
10
11
1213
14
15
16
17
18
19
20
21
22
23
24
this Court - and even assuming, arguendo, that the cour
methodology was correct -- that decision does not compel
suggest, a ruling in Plaintiffs favor, because it rests
critical factual error. Indeed, the opinion makes clear
the Sixth Circuit had realized its factual mistake, it w
ruled in favor of the government.
Terrell rests entirely on the unsubstantiated and i
assertion that [a]t the time appear pursuant to 18 U.
4208(e) was enacted into law [1976], videoconferencing
exist. 564 F.3d at 449. That this factual premise is
linchpin of the decision is clear because the court went
explain that [s]ubsequent technological developments maappear ambiguous because videoconferencing offered an
to in-person hearing in which all participating persons
still be visible to and be able to interact with each ot
Id. And, the court conceded, [i]f the statute is ambig
then we defer to the agencys interpretation. Id. But
court held there was no ambiguity because [a]t the time
statute was enacted, [appear] unambiguously meant that
prisoner appeared in person . . . because no technology
to project the prisoners visage into the room with the
examiner. Id. at 451 (emphasis added).
The flaw with this syllogism is that videoconferenc
did exist in 1976, and had in fact been used for hearing
Case 2:12-cv-00700-DSF-RZ Document 11 Filed 02/23/12 Page 23 of 29
8/2/2019 Government Response to Preliminary Injunction
23/113
1
2
3
4
5
6
7
8
9
10
11
1213
14
15
16
17
18
19
20
21
22
23
24
the technology itself existed in 1976, albeit under the
videophone or picturephone.
AT&T and Bell Laboratories, at great expense, devel
videoconferencing technology under the trademarked name
Picturephone. Picturephones debuted at the Worlds Fa
1964, and soon entered commercial use, receiving wide-sp
public attention, including on the front page of the New
Times and in the magazines Life and Popular Science.9
Videoconferencing (under the name Picturephones)
merely a matter of public excitement, it was a technolog
as important to the development of the justice system.
example, in 1969, a court in New York noted that [i]t mthat progress in communications, the development of tech
devices such as the videophone, will ultimately reach a
where it may be said that a foreign domiciliary is physi
present in New York for all intents and purposes. Park
Galleries, Inc. v. Franklyn, 31 A.D.2d 276, 277, 297 N.Y
(N.Y. App. Div. 1969).10 In 1970, commercial Picturephon
service debuted in Pittsburgh. See http://www.corp.att.
attlabs/reputation/timeline/70picture.html.
9 Donald Janson, Picture-Telephone service is startPittsburgh, New York Times (July 1, 1970) 1; W.S. BaconAmazing New Picture Phone: A step closer to in person,Popular Science (June 1968) 46, available athttp://books.google.com/books?id=mykDAAAAMBAJ&pg=PA46;Bell System introduces PICTUREPHONE service Life Maga
Case 2:12-cv-00700-DSF-RZ Document 11 Filed 02/23/12 Page 24 of 29
8/2/2019 Government Response to Preliminary Injunction
24/113
1
2
3
4
5
6
7
8
9
10
11
1213
14
15
16
17
18
19
20
21
22
23
24
Most significantly, however, in January 1976 - thr
before Section 4208(e) was enacted -- the United States
Claims issued a decision in which it prominently mention
it had participated in an experiment sponsored by the A
Bar Association and the Federal Judicial Center and he
argument delivered by counsel in New York, New York, usi
Picturephone facilities provided by the American Telep
Telegraph Company. Merritt-Chapman & Scott Corp. v. Un
States, 528 F.2d 1392, 1393 (Ct. Cl. 1976). It may well
this experiment was on Congresss mind when it was consi
how parole hearings might be conducted down the line; in
event, Congress certainly must have been aware of a techuniversally heralded as the way of the future.
Thus, the Sixth Circuits Terrell decision actually
the Commissions position in this case, not Plaintiffs.
because the Sixth Circuit held that if videoconferencing
existed at the time Section 4208(e) passed (which it did
the statute would at best be ambiguous, and that any amb
would be resolved in favor of the Commission under Chevr
See Terrell, 564 F.3d at 449. Therefore Terrell, like c
sense and plain language, supports the idea that when a
is visible, audible, and actively participating in a par
hearing, he has appeared for purposes of Section 4208(
Plaintiffs also cite United States v. Thompson, 599
Case 2:12-cv-00700-DSF-RZ Document 11 Filed 02/23/12 Page 25 of 29
8/2/2019 Government Response to Preliminary Injunction
25/113
1
2
3
4
5
6
7
8
9
10
11
1213
14
15
16
17
18
19
20
21
22
23
24
determination whether the inmate will be released, but r
performs an advisory function. 28 C,F.R. 2.23; Husk D
Thus, the prisoners right to appear and testify has n
understood to encompass a right to have face-to-face int
with the ultimate decision-maker -- the Commissioners th
Rather, the right to appear at the proceeding is satisfi
prisoners is provided an opportunity to be heard or al
give oral testimony that is treated as part of the recor
which the parole determination is based.
In contrast, in supervised release revocation proce
the judge is both the hearing examiner and the ultimat
decision-maker. In supervised release revocation casesappearing before the court allows the defendant to plea
casepersonally to the judge who will decide whether to
supervised release and return him to prison. Thompson,
at 599 (emphasis in original). In parole determinations
no statute (or regulation) provides the prisoner the rig
to plead his casepersonally to the Commissioners.
A prisoners exercise of his right to appear and
testify . . . at the parole determination proceeding w
entail testimony in the same room as the decision-maker,
regardless of the respective locations of the prisoner a
hearing examiner at the time the testimony is given. Pl
major practical objection to the Commissions use of vid
Case 2:12-cv-00700-DSF-RZ Document 11 Filed 02/23/12 Page 26 of 29
8/2/2019 Government Response to Preliminary Injunction
26/113
1
2
3
4
5
6
7
8
9
10
11
1213
14
15
16
17
18
19
20
21
22
23
24
actual decision-maker even before the Commission adopted
videoconferencing method.
Before the Commission adopted videoconferencing pro
the hearing examiner, not the Commissioners, would typic
travel to federal prisons to conduct parole hearings. T
prisoners right to appear and testify on his own behal
parole determination proceeding has never been understo
encompass a right to have face-to-face interaction with
ultimate decision-maker. Rather, the right to appear
proceeding is satisfied if the prisoner is allowed to gi
testimony that is treated as part of the record. Since
physical absence of the ultimate decision-maker does notstatutory violation, then the physical absence of the he
examiner should not have that effect.
5. The Commissions Decision To Use Video-Confere
Is A Reasonable Construction Of The Parole Act
Plaintiffs argue that the notice provision of 18 U.
4208(b), which states that an inmate shall be provided
notice of the time and place of the proceeding, is dif
to reconcile with a video hearing that occurs in two loc
Plaintiffs are misguided. The parole determination pro
occurs at the institution where the prisoner testifies.
institution is the principal locus of the proceeding, si
participants, except the hearing examiner, are located t
Case 2:12-cv-00700-DSF-RZ Document 11 Filed 02/23/12 Page 27 of 29
8/2/2019 Government Response to Preliminary Injunction
27/113
1
2
3
4
5
6
7
8
9
10
11
1213
14
15
16
17
18
19
20
21
22
23
24
Plaintiffs also argue that, pursuant to 18 U.S.C.
if parole is denied, a personal conference to explain t
reasons for a denial shall be held, if feasible, stro
implies an in-person hearing. All that provision does i
to require that a direct communication between each pris
a representative of the Commission, if feasible, about
facts and circumstances surrounding that prisoners case
videoconferenced hearing is not inconsistent with that
requirement. Moreover, the language indicates that a p
conference will only be held if feasible. Accordingl
turns out that a personal conference cannot occur afte
videoconference hearing, then the Commission is excused conducting it due to the if feasible language. Theref
the statutory language does not exclude videoconference
Finally, Plaintiffs argue that the requirement that
hearing be held at the institution, pursuant to 4208
cannot easily be reconciled with the concept of a video
where the examiner does not come to the prison. Before
of videoconferencing by the Commission, there was no
inconsistency between (a) the fact that the Commissioner
physically absent from the hearing where the prisoner te
and (b) the conclusion that the parole determination pr
nevertheless occurred at the institution where the tes
was given. Likewise, the physical absence of the hearin
Case 2:12-cv-00700-DSF-RZ Document 11 Filed 02/23/12 Page 28 of 29
8/2/2019 Government Response to Preliminary Injunction
28/113
1
2
3
4
5
6
7
8
9
10
11
1213
14
15
16
17
18
19
20
21
22
23
24
C. Balancing The Competing Claims Of Injury
Plaintiffs have not shown that they would be irrepa
harmed if their parole hearings are conducted by
videoconferencing. For example, Plaintiffs allege that
of videoconferencing left Plaintiffs effectively unable
present documents available in support of their claim .
Compl. 3. That is not true. They may produce any doc
they wish to the Commission before the hearing. If they
documents just prior to the hearing, the BOP case manage
the documents to the hearing examiner. Husk Decl. 6.
Plaintiffs could also make an offer of proof and seek a
continuance of the hearing. Additionally, as set forth Husk Declaration, the Commission has established that it
videoconference technology effectively and fairly. Inde
Morrow admits that a[a]t my last hearing [conduct by
videoconference in 2010 . . . This was the most progress
ever had during a hearing. Morrow Decl. 17.
As noted above, it may well be that the Commission
grant parole to Plaintiffs after videoconferenced hearin
March 2012. Issuing a preliminary injunction based onl
possibility of irreparable harm is inconsistent with our
characterization of injunctive relief as an extraordinar
that may only be awarded upon a clear showing that the p
is entitled to such relief. Winter, 555 U.S. at 22. P
Case 2:12-cv-00700-DSF-RZ Document 11 Filed 02/23/12 Page 29 of 29
8/2/2019 Government Response to Preliminary Injunction
29/113
1
2
3
4
5
6
7
8
9
10
11
1213
14
15
16
17
18
19
20
21
22
23
24
By contrast, as set forth above, the Commission wil
an actual hardship if required to conduct all parole hea
person. Conducting parole hearings by videoconference r
the Commissions travel costs and conserves the time of
examiners, particularly with respect to BOP facilities t
difficult to reach. Husk Decl. 9.11 Based on the foreg
the balance of hardships tips in favor of the Parole Com
V.
CONCLUSION
In conclusion, this Court should deny Plaintiffs m
preliminary injunction.
DATE: February 23, 2012. Respectfully submitted,ANDR BIROTTE JR.United States AttorneyLEON W. WEIDMANAssistant United States AtChief, Civil Division
/s/ Robert I. LesterROBERT I. LESTERAssistant United States At
Attorneys for Defendants
Case 2:12-cv-00700-DSF-RZ Document 11-1 Filed 02/23/12 Page 1 of 84
8/2/2019 Government Response to Preliminary Injunction
30/113
1
2
3
4
5
6
7
8
9
10
11
1213
14
15
16
17
18
19
20
21
22
23
24
ANDR BIROTTE JR.United States AttorneyLEON W. WEIDMAN
Assistant United States AttorneyChief, Civil DivisionROBERT I. LESTER (CBN 116429)Assistant United States Attorney
300 North Los Angeles StreetRoom 7516Los Angeles, California 90012Phone: (213) 894-2464Fax: (213) [email protected]
Attorneys for Defendants
UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF CALIFORNIA
WESTERN DIVISION
JOHN PAUL MORROW; and CHRISTIAN DAVIS, ))
Plaintiffs, ))
v. ))
UNITED STATES PAROLE COMMISSION; )ISAAC FULWOOD, JR., in his official )capacity; 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. )
________________________________________ )
No. CV 12-0700
EXHIBITS TO OP
OF DEFENDANTS
OF PLAINTIFFS
PRELIMINARY IN
DATE: March 1TIME: 1:30 p.CTRM: Hon. Da
Fischer
Case 2:12-cv-00700-DSF-RZ Document 11-1 Filed 02/23/12 Page 2 of 84
8/2/2019 Government Response to Preliminary Injunction
31/113
1
2
3
4
5
6
7
8
9
10
11
1213
14
15
16
17
18
19
20
21
22
23
24
Attached are the certified administrative record of
the United States Parole Commission for plaintiffs John
Morrow (Exhibits A-S) and Christian Davis (Exhibits T-II
Exhibit JJ is the declaration of Stephen J. Husk.
DATE: February 23, 2012. Respectfully submitted,
ANDR BIROTTE JR.United States AttorneyLEON W. WEIDMAN
Assistant United States AtChief, Civil Division
/s/ Robert I. LesterROBERT I. LESTERAssistant United States At
Attorneys for Defendants
Case 2:12-cv-00700-DSF-RZ Document 11-1 Filed 02/23/12 Page 3 of 84 Page ID #:179
8/2/2019 Government Response to Preliminary Injunction
32/113
John Morrow 1
Case 2:12-cv-00700-DSF-RZ Document 11-1 Filed 02/23/12 Page 4 of 84 Page ID #:180
8/2/2019 Government Response to Preliminary Injunction
33/113
2
Case 2:12-cv-00700-DSF-RZ Document 11-1 Filed 02/23/12 Page 5 of 84 Page ID #:181
8/2/2019 Government Response to Preliminary Injunction
34/113
3
Case 2:12-cv-00700-DSF-RZ Document 11-1 Filed 02/23/12 Page 6 of 84 Page ID #:182
8/2/2019 Government Response to Preliminary Injunction
35/113
4
Case 2:12-cv-00700-DSF-RZ Document 11-1 Filed 02/23/12 Page 7 of 84 Page ID #:183
8/2/2019 Government Response to Preliminary Injunction
36/113
5
Case 2:12-cv-00700-DSF-RZ Document 11-1 Filed 02/23/12 Page 8 of 84 Page ID #:184
8/2/2019 Government Response to Preliminary Injunction
37/113
6
Case 2:12-cv-00700-DSF-RZ Document 11-1 Filed 02/23/12 Page 9 of 84 Page ID #:185
8/2/2019 Government Response to Preliminary Injunction
38/113
7
Case 2:12-cv-00700-DSF-RZ Document 11-1 Filed 02/23/12 Page 10 of 84 Page ID#:186
8/2/2019 Government Response to Preliminary Injunction
39/113
8
Case 2:12-cv-00700-DSF-RZ Document 11-1 Filed 02/23/12 Page 11 of 84 Page ID#:187
8/2/2019 Government Response to Preliminary Injunction
40/113
9
Case 2:12-cv-00700-DSF-RZ Document 11-1 Filed 02/23/12 Page 12 of 84 Page ID#:188
8/2/2019 Government Response to Preliminary Injunction
41/113
10
Case 2:12-cv-00700-DSF-RZ Document 11-1 Filed 02/23/12 Page 13 of 84 Page ID#:189
8/2/2019 Government Response to Preliminary Injunction
42/113
11
Case 2:12-cv-00700-DSF-RZ Document 11-1 Filed 02/23/12 Page 14 of 84 Page ID#:190
8/2/2019 Government Response to Preliminary Injunction
43/113
12
Case 2:12-cv-00700-DSF-RZ Document 11-1 Filed 02/23/12 Page 15 of 84 Page ID#:191
8/2/2019 Government Response to Preliminary Injunction
44/113
13
Case 2:12-cv-00700-DSF-RZ Document 11-1 Filed 02/23/12 Page 16 of 84 Page ID#:192
8/2/2019 Government Response to Preliminary Injunction
45/113
14
Case 2:12-cv-00700-DSF-RZ Document 11-1 Filed 02/23/12 Page 17 of 84 Page ID#:193
8/2/2019 Government Response to Preliminary Injunction
46/113
15
Case 2:12-cv-00700-DSF-RZ Document 11-1 Filed 02/23/12 Page 18 of 84 Page ID#:194
8/2/2019 Government Response to Preliminary Injunction
47/113
16
Case 2:12-cv-00700-DSF-RZ Document 11-1 Filed 02/23/12 Page 19 of 84 Page ID#:195
8/2/2019 Government Response to Preliminary Injunction
48/113
17
Case 2:12-cv-00700-DSF-RZ Document 11-1 Filed 02/23/12 Page 20 of 84 Page ID#:196
8/2/2019 Government Response to Preliminary Injunction
49/113
18
Case 2:12-cv-00700-DSF-RZ Document 11-1 Filed 02/23/12 Page 21 of 84 Page ID#:197
8/2/2019 Government Response to Preliminary Injunction
50/113
19
Case 2:12-cv-00700-DSF-RZ Document 11-1 Filed 02/23/12 Page 22 of 84 Page ID#:198
8/2/2019 Government Response to Preliminary Injunction
51/113
20
Case 2:12-cv-00700-DSF-RZ Document 11-1 Filed 02/23/12 Page 23 of 84 Page ID#:199
8/2/2019 Government Response to Preliminary Injunction
52/113
21
Case 2:12-cv-00700-DSF-RZ Document 11-1 Filed 02/23/12 Page 24 of 84 Page ID#:200
8/2/2019 Government Response to Preliminary Injunction
53/113
22
Case 2:12-cv-00700-DSF-RZ Document 11-1 Filed 02/23/12 Page 25 of 84 Page ID#:201
8/2/2019 Government Response to Preliminary Injunction
54/113
23
Case 2:12-cv-00700-DSF-RZ Document 11-1 Filed 02/23/12 Page 26 of 84 Page ID#:202
8/2/2019 Government Response to Preliminary Injunction
55/113
24
Case 2:12-cv-00700-DSF-RZ Document 11-1 Filed 02/23/12 Page 27 of 84 Page ID#:203
8/2/2019 Government Response to Preliminary Injunction
56/113
25
Case 2:12-cv-00700-DSF-RZ Document 11-1 Filed 02/23/12 Page 28 of 84 Page ID#:204
8/2/2019 Government Response to Preliminary Injunction
57/113
26
Case 2:12-cv-00700-DSF-RZ Document 11-1 Filed 02/23/12 Page 29 of 84 Page ID#:205
8/2/2019 Government Response to Preliminary Injunction
58/113
27
Case 2:12-cv-00700-DSF-RZ Document 11-1 Filed 02/23/12 Page 30 of 84 Page ID#:206
8/2/2019 Government Response to Preliminary Injunction
59/113
28
Case 2:12-cv-00700-DSF-RZ Document 11-1 Filed 02/23/12 Page 31 of 84 Page ID#:207
8/2/2019 Government Response to Preliminary Injunction
60/113
29
Case 2:12-cv-00700-DSF-RZ Document 11-1 Filed 02/23/12 Page 32 of 84 Page ID#:208
8/2/2019 Government Response to Preliminary Injunction
61/113
30
Case 2:12-cv-00700-DSF-RZ Document 11-1 Filed 02/23/12 Page 33 of 84 Page ID#:209
8/2/2019 Government Response to Preliminary Injunction
62/113
31
Case 2:12-cv-00700-DSF-RZ Document 11-1 Filed 02/23/12 Page 34 of 84 Page ID#:210
8/2/2019 Government Response to Preliminary Injunction
63/113
32
Case 2:12-cv-00700-DSF-RZ Document 11-1 Filed 02/23/12 Page 35 of 84 Page ID#:211
8/2/2019 Government Response to Preliminary Injunction
64/113
33
Case 2:12-cv-00700-DSF-RZ Document 11-1 Filed 02/23/12 Page 36 of 84 Page ID#:212
8/2/2019 Government Response to Preliminary Injunction
65/113
34
Case 2:12-cv-00700-DSF-RZ Document 11-1 Filed 02/23/12 Page 37 of 84 Page ID#:213
8/2/2019 Government Response to Preliminary Injunction
66/113
35
Case 2:12-cv-00700-DSF-RZ Document 11-1 Filed 02/23/12 Page 38 of 84 Page ID#:214
8/2/2019 Government Response to Preliminary Injunction
67/113
36
Case 2:12-cv-00700-DSF-RZ Document 11-1 Filed 02/23/12 Page 39 of 84 Page ID#:215
8/2/2019 Government Response to Preliminary Injunction
68/113
37
Case 2:12-cv-00700-DSF-RZ Document 11-1 Filed 02/23/12 Page 40 of 84 Page ID#:216
8/2/2019 Government Response to Preliminary Injunction
69/113
38
Case 2:12-cv-00700-DSF-RZ Document 11-1 Filed 02/23/12 Page 41 of 84 Page ID#:217
8/2/2019 Government Response to Preliminary Injunction
70/113
39
Case 2:12-cv-00700-DSF-RZ Document 11-1 Filed 02/23/12 Page 42 of 84 Page ID#:218
8/2/2019 Government Response to Preliminary Injunction
71/113
40
Case 2:12-cv-00700-DSF-RZ Document 11-1 Filed 02/23/12 Page 43 of 84 Page ID#:219
8/2/2019 Government Response to Preliminary Injunction
72/113
41
Case 2:12-cv-00700-DSF-RZ Document 11-1 Filed 02/23/12 Page 44 of 84 Page ID#:220
8/2/2019 Government Response to Preliminary Injunction
73/113
42
Case 2:12-cv-00700-DSF-RZ Document 11-1 Filed 02/23/12 Page 45 of 84 Page ID#:221
8/2/2019 Government Response to Preliminary Injunction
74/113
43
Case 2:12-cv-00700-DSF-RZ Document 11-1 Filed 02/23/12 Page 46 of 84 Page ID#:222
8/2/2019 Government Response to Preliminary Injunction
75/113
Christan Davis 44
Case 2:12-cv-00700-DSF-RZ Document 11-1 Filed 02/23/12 Page 47 of 84 Page ID#:223
8/2/2019 Government Response to Preliminary Injunction
76/113
45
Case 2:12-cv-00700-DSF-RZ Document 11-1 Filed 02/23/12 Page 48 of 84 Page ID#:224
8/2/2019 Government Response to Preliminary Injunction
77/113
46
Case 2:12-cv-00700-DSF-RZ Document 11-1 Filed 02/23/12 Page 49 of 84 Page ID#:225
8/2/2019 Government Response to Preliminary Injunction
78/113
47
Case 2:12-cv-00700-DSF-RZ Document 11-1 Filed 02/23/12 Page 50 of 84 Page ID#:226
8/2/2019 Government Response to Preliminary Injunction
79/113
48
Case 2:12-cv-00700-DSF-RZ Document 11-1 Filed 02/23/12 Page 51 of 84 Page ID#:227
8/2/2019 Government Response to Preliminary Injunction
80/113
49
Case 2:12-cv-00700-DSF-RZ Document 11-1 Filed 02/23/12 Page 52 of 84 Page ID#:228
8/2/2019 Government Response to Preliminary Injunction
81/113
50
Case 2:12-cv-00700-DSF-RZ Document 11-1 Filed 02/23/12 Page 53 of 84 Page ID#:229
8/2/2019 Government Response to Preliminary Injunction
82/113
51
Case 2:12-cv-00700-DSF-RZ Document 11-1 Filed 02/23/12 Page 54 of 84 Page ID#:230
8/2/2019 Government Response to Preliminary Injunction
83/113
52
Case 2:12-cv-00700-DSF-RZ Document 11-1 Filed 02/23/12 Page 55 of 84 Page ID#:231
8/2/2019 Government Response to Preliminary Injunction
84/113
53
Case 2:12-cv-00700-DSF-RZ Document 11-1 Filed 02/23/12 Page 56 of 84 Page ID#:232
8/2/2019 Government Response to Preliminary Injunction
85/113
54
Case 2:12-cv-00700-DSF-RZ Document 11-1 Filed 02/23/12 Page 57 of 84 Page ID#:233
8/2/2019 Government Response to Preliminary Injunction
86/113
55
Case 2:12-cv-00700-DSF-RZ Document 11-1 Filed 02/23/12 Page 58 of 84 Page ID#:234
8/2/2019 Government Response to Preliminary Injunction
87/113
56
Case 2:12-cv-00700-DSF-RZ Document 11-1 Filed 02/23/12 Page 59 of 84 Page ID#:235
8/2/2019 Government Response to Preliminary Injunction
88/113
57
Case 2:12-cv-00700-DSF-RZ Document 11-1 Filed 02/23/12 Page 60 of 84 Page ID
#:236
8/2/2019 Government Response to Preliminary Injunction
89/113
58
Case 2:12-cv-00700-DSF-RZ Document 11-1 Filed 02/23/12 Page 61 of 84 Page ID
#:237
8/2/2019 Government Response to Preliminary Injunction
90/113
59
Case 2:12-cv-00700-DSF-RZ Document 11-1 Filed 02/23/12 Page 62 of 84 Page ID
#:238
8/2/2019 Government Response to Preliminary Injunction
91/113
60
Case 2:12-cv-00700-DSF-RZ Document 11-1 Filed 02/23/12 Page 63 of 84 Page ID
#:239
8/2/2019 Government Response to Preliminary Injunction
92/113
61
Case 2:12-cv-00700-DSF-RZ Document 11-1 Filed 02/23/12 Page 64 of 84 Page ID
#:240
8/2/2019 Government Response to Preliminary Injunction
93/113
62
Case 2:12-cv-00700-DSF-RZ Document 11-1 Filed 02/23/12 Page 65 of 84 Page ID
#:241
8/2/2019 Government Response to Preliminary Injunction
94/113
63
Case 2:12-cv-00700-DSF-RZ Document 11-1 Filed 02/23/12 Page 66 of 84 Page ID
#:242
8/2/2019 Government Response to Preliminary Injunction
95/113
64
Case 2:12-cv-00700-DSF-RZ Document 11-1 Filed 02/23/12 Page 67 of 84 Page ID
#:243
8/2/2019 Government Response to Preliminary Injunction
96/113
65
Case 2:12-cv-00700-DSF-RZ Document 11-1 Filed 02/23/12 Page 68 of 84 Page ID
#:244
8/2/2019 Government Response to Preliminary Injunction
97/113
66
Case 2:12-cv-00700-DSF-RZ Document 11-1 Filed 02/23/12 Page 69 of 84 Page ID
#:245
8/2/2019 Government Response to Preliminary Injunction
98/113
67
Case 2:12-cv-00700-DSF-RZ Document 11-1 Filed 02/23/12 Page 70 of 84 Page ID
#:246
8/2/2019 Government Response to Preliminary Injunction
99/113
68
Case 2:12-cv-00700-DSF-RZ Document 11-1 Filed 02/23/12 Page 71 of 84 Page ID
#:247
8/2/2019 Government Response to Preliminary Injunction
100/113
69
Case 2:12-cv-00700-DSF-RZ Document 11-1 Filed 02/23/12 Page 72 of 84 Page ID
#:248
8/2/2019 Government Response to Preliminary Injunction
101/113
70
Case 2:12-cv-00700-DSF-RZ Document 11-1 Filed 02/23/12 Page 73 of 84 Page ID
#:249
8/2/2019 Government Response to Preliminary Injunction
102/113
71
Case 2:12-cv-00700-DSF-RZ Document 11-1 Filed 02/23/12 Page 74 of 84 Page ID
#:250
8/2/2019 Government Response to Preliminary Injunction
103/113
72
Case 2:12-cv-00700-DSF-RZ Document 11-1 Filed 02/23/12 Page 75 of 84 Page ID
#:251
8/2/2019 Government Response to Preliminary Injunction
104/113
73
Case 2:12-cv-00700-DSF-RZ Document 11-1 Filed 02/23/12 Page 76 of 84 Page ID
#:252
8/2/2019 Government Response to Preliminary Injunction
105/113
74
Case 2:12-cv-00700-DSF-RZ Document 11-1 Filed 02/23/12 Page 77 of 84 Page ID
#:253
8/2/2019 Government Response to Preliminary Injunction
106/113
75
Case 2:12-cv-00700-DSF-RZ Document 11-1 Filed 02/23/12 Page 78 of 84 Page ID
#:254
8/2/2019 Government Response to Preliminary Injunction
107/113
76
Case 2:12-cv-00700-DSF-RZ Document 11-1 Filed 02/23/12 Page 79 of 84 Page ID
#:255
8/2/2019 Government Response to Preliminary Injunction
108/113
77
Case 2:12-cv-00700-DSF-RZ Document 11-1 Filed 02/23/12 Page 80 of 84 Page ID
#:256
8/2/2019 Government Response to Preliminary Injunction
109/113
78
Case 2:12-cv-00700-DSF-RZ Document 11-1 Filed 02/23/12 Page 81 of 84 Page ID
#:257
8/2/2019 Government Response to Preliminary Injunction
110/113
79
Case 2:12-cv-00700-DSF-RZ Document 11-1 Filed 02/23/12 Page 82 of 84 Page ID
#:258
8/2/2019 Government Response to Preliminary Injunction
111/113
80
Case 2:12-cv-00700-DSF-RZ Document 11-1 Filed 02/23/12 Page 83 of 84 Page ID
#:259
8/2/2019 Government Response to Preliminary Injunction
112/113
81
Case 2:12-cv-00700-DSF-RZ Document 11-1 Filed 02/23/12 Page 84 of 84 Page ID
#:260
8/2/2019 Government Response to Preliminary Injunction
113/113
82
Top Related