Log Cabin Republicans v. United States of America et al

Filing 135

NOTICE OF MOTION AND MOTION for Review of Magistrate Judge's March 16, 2010 Discovery Ruling filed by Defendants Donald H Rumsfeld, United States of America. (Attachments: #1 Memorandum, #2 Proposed Order, #3 Exhibit, #4 Exhibit)(Freeborne, Paul)

Log Cabin Republicans v. United States of America et al

Doc. 135 Att. 1

1 TONY WEST Assistant Attorney General 2 ANDRÉ BIROTTE, Jr. United States Attorney 3 VINCENT M. GARVEY PAUL G. FREEBORNE 4 W. SCOTT SIMPSON JOSHUA E. GARDNER 5 RYAN B. PARKER U.S. Department of Justice 6 Civil Division Federal Programs Branch 7 P.O. Box 883 Washington, D.C. 20044 8 Telephone: [phone] Facsimile: [phone] 9 E-mail: paul.freeborne@ usdoj.gov 10 Attorneys for Defendants United States of America and Secretary of Defense 11 UNITED STATES DISTRICT COURT 12 FOR THE CENTRAL DISTRICT OF CALIFORNIA EASTERN DIVISION 13 LOG CABIN REPUBLICANS, ) No. CV04-8425 VAP (Ex) 14 ) Plaintiff, ) DEFENDANTS' 15 ) MEMORANDUM OF POINTS v. ) AND AUTHORITIES IN 16 ) SUPPORT OF DEFENDANTS' UNITED STATES OF AMERICA AND ) MOTION FOR REVIEW OF 17 ROBERT M. GATES, Secretary of ) MAGISTRATE JUDGE'S Defense, ) DISCOVERY RULING 18 ) Defendants. ) DATE/TIME: EXPEDITED 19 ) RULING REQUESTED; ) DISCOVERY MATTER 20 ) ) BEFORE: Judge Phillips 21 ) 22 23 24 25 INTRODUCTION Pursuant to Local Rule 72-2.1, Defendants the United States and Secretary

26 Gates object to, and seek relief from, the portion of the Magistrate's ruling dated 27 March 16, 2010 (Doc. 127) requiring Defendants to "unqualifiedly admit or deny" 28
DEFENDANTS' MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS' MOTION FOR REVIEW OF MAGISTRATE JUDGE'S DISCOVERY RULING UNITED STATES DEPARTMENT OF JUSTICE CIVIL DIVISION, FEDERAL PROGRAMS BRANCH P.O. BOX 883, BEN FRANKLIN STATION WASHINGTON, D.C. 20044 [phone]

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Dockets.Justia.com

1 Plaintiff's Requests for Admission Nos. 3, 4, and 5 of Plaintiff's First Set of 2 Requests for Admission (Doc. 127 at 3) (hereafter sometimes "Plaintiff's 3 Requests" or "Requests"). In the unique circumstances of this case, Defendants 4 cannot in good faith "unqualifiedly admit or deny" these particular Requests 5 because the United States does not have a single position on the questions 6 presented; simply put, the positions of the Executive Branch (as articulated by the 7 President) and Congress differ on these questions. Fed. R. Civ. P. 36(a)(4) 8 expressly permits a party to provide a qualified response to a request for admission 9 precisely so that the party can respond in good faith. Defendants respectfully 10 submit that the Magistrate Judge's order directs a response in a manner beyond the 11 scope of what is contemplated by the Federal Rules of Civil Procedure, and thus 12 Defendants hereby seek reversal or modification of the Order so as to permit 13 Defendants to respond in good faith.1 14 15 ARGUMENT Fed. R. Civ. P. 36(a)(4) expressly permits a party to provide a qualified

16 response to a request where "good faith" requires such a response. "A responding 17 party that cannot admit or deny a request outright may make an admission with a 18 qualification or deny only part of a request." Loudermilk v. Best Pallet Co., 19 No. 08-68869, 2009 WL 3272429, at *2 (N.D. Ill. Oct. 8, 2009) (citation omitted). 20 This rule permits a party to, "in good faith, qualify its answer or deny only part of a 21 matter." Wiwa v. Royal Dutch Petroleum, No. 96-8386, 2009 WL 1457142, at * 4 22 (S.D.N.Y. May 26, 2009). And while any qualification should "provide clarity and 23 lucidity to the genuineness of the issue[s] and not . . . obfuscate, frustrate, or 24 25 Defendants note that they already have complied or fully intend to comply 26 with all other aspects of the Magistrate Judge's March 16, 2010 order, including as 27 by stipulation of the parties related thereto (Doc. 134), and herein only seek relief from this one narrow but important aspect of the order. 28
DEFENDANTS' MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS' MOTION FOR REVIEW OF MAGISTRATE JUDGE'S DISCOVERY RULING

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UNITED STATES DEPARTMENT OF JUSTICE CIVIL DIVISION, FEDERAL PROGRAMS BRANCH P.O. BOX 883, BEN FRANKLIN STATION WASHINGTON, D.C. 20044 [phone]

1 compound the references," Henry v. Champlain Enter., 212 F.R.D. 73, 78 2 (N.D.N.Y. 2003), the bar for a qualified admission "should not be set too high. A 3 response under [Fed. R. Civ. P. 36(a)(4)] should be deemed sufficient if it 4 reasonably informs the requesting party what is being admitted or denied." Wiwa, 5 2009 WL 1457142 at *4 (citing JP Morgan Chase Bank v. Liberty Mut. Ins. Co., 6 No. 01-11523, 2002 WL 31159139, at *1 (S.D.N.Y. Sept. 27, 2002)). 7 8 9 10 11 Plaintiff's Requests 3, 4, and 5 ask as follows: 3. 4. 5. Admit that DADT does not contribute to our national security. Admit that DADT weakens our national security. Admit that discharging members pursuant to DADT weakens our national security.

12 These particular Requests were juxtaposed with separate Requests by which 13 Plaintiff asked Defendants to admit that in certain speeches President Obama made 14 particular statements regarding the effect on national security of the "Don't Ask 15 Don't Tell" policy (10 U.S.C. § 654 and its implementing regulations) (sometimes 16 hereafter "DADT").2 In response to those separate Requests, Defendants admitted 17 that the President in fact made the statements. 18 In response to Requests 3, 4, and 5, at issue here, Defendants made explicit 19 reference to the responses to the separate Requests regarding the President's 20 statements about the DADT, but also stated that Congress was of a different view 21 22 23 24 Specifically, Defendants admitted that President Obama made the 25 statement that the DADT policy "does not contribute to national security," and that President Obama made the statement that the DADT policy "weakens the national 26 security." See Defendants' Responses to Plaintiff's Requests For Admission (Nos. 27 1 and 2), attached hereto at Attachment 1. A copy of the transcript of the hearing before the Magistrate Judge is attached hereto as Attachment 2. 28
DEFENDANTS' MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS' MOTION FOR REVIEW OF MAGISTRATE JUDGE'S DISCOVERY RULING

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UNITED STATES DEPARTMENT OF JUSTICE CIVIL DIVISION, FEDERAL PROGRAMS BRANCH P.O. BOX 883, BEN FRANKLIN STATION WASHINGTON, D.C. 20044 [phone]

1 when it enacted Section 654 in 1993.3 Such a qualified response was appropriate; 2 indeed, a qualified response is the only response possible under the circumstances. 3 The President's statements set forth the Executive's view that the statute does not 4 contribute to national security and, indeed, that it weakens it. But it was the 5 considered judgment of Congress in 1993 that the statute was necessary for 6 military effectiveness, and thus to ensure national security, and that statute remains 7 in force today. Importantly, it is the rationality of Congress' determination that is 8 relevant and controlling for purposes of litigation in which a statute is called into 9 question. 10 In light of the Court's ruling that this case is governed by rational basis 11 review, the only question presented, thus, is whether Congress "rationally could 12 have believed" that the conditions of the statute would promote its objective. 13 Western & Southern Life Ins. Co. v. State Bd. of Equalization, 451 U.S. 648, 67114 72, 101 S. Ct. 2070, 68 L. Ed. 2d 514 (1981). Whether the President has a view 15 about the need for the statute that differs from the considered judgment of 16 Congress is thus irrelevant for purposes of the litigation.4 17 18 Defendants also lodged objections to these requests, which objections they 19 stand by as appropriate. Contrary to Rule 36, these requests fail to relate to "facts, the application of law to fact, or opinions about either," see Fed. R. Civ. P. 20 36(a)(1)(A). Moreover, the terms "contribute," "weakens," and "national security" 21 in the context of this litigation are vague and ambiguous, and thereby further render these requests improper. 22 4 It is the Government's view that, when presented with a facial challenge to 23 the constitutionality of a statute, as here, the relevant legal consideration is whether 24 Congress had a rational basis for the statute at the time it was enacted. Indeed, a 25 statute is not subject to challenge on the ground of changed circumstances. See, e.g., United States v. Jackson, 84 F.3d 1154, 1161 (9th Cir. 1996); Montalvo26 Huertas v. Rivera-Cruz, 885 F.2d 971, 977 (1st Cir. 1989); United States v. 27 Teague, 93 F.3d 81, 84 (2d Cir. 1996). Courts have found that, even where Congress has determined that a previous enactment is no longer necessary, such a 28
DEFENDANTS' MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS' MOTION FOR REVIEW OF MAGISTRATE JUDGE'S DISCOVERY RULING

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UNITED STATES DEPARTMENT OF JUSTICE CIVIL DIVISION, FEDERAL PROGRAMS BRANCH P.O. BOX 883, BEN FRANKLIN STATION WASHINGTON, D.C. 20044 [phone]

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Defendants respectfully submit that the responses to Request Nos. 3, 4, and

2 5, therefore, were made in good faith and that they accurately reflect the position of 3 the United States: the Executive being of the view that Section 654 does not 4 contribute to and even weakens our national security, and the Congress being of 5 the view that enactment of the statute furthered a governmental interest in military 6 effectiveness, and thus national security, in the unique setting of the military. In 7 these circumstances, the only appropriate response is a qualified one, and that is 8 precisely why Fed. R. Civ. P. 36(a)(4) expressly permits qualified answers. The 9 Magistrate Judge's Order goes beyond the bounds of Rule 36 to direct the United 10 States to "unqualifiedly admit or deny," thus placing the United States in an 11 untenable situation of picking between two words, neither of which alone, in the 12 circumstances, would constitute a good faith response as to the position of the 13 United States as contemplated by Rule 36. 14 For all of the reasons set forth herein, Defendants request that the Magistrate 15 Judge's Order directing Defendants to "unqualifiedly admit or deny" Plaintiff's 16 Requests for Admission 3, 4, and 5 be modified or reversed. 17 18 19 20 21 22 23 24 25 26 finding does not render the statute unconstitutional. See Smart v. Ashcroft, 401 27 F.3d 119, 123 (2d Cir. 2005); Howard v. U.S. Dept. of Defense, 354 F.3d 1358, 1361-62 (Fed. Cir. 2004). 28
DEFENDANTS' MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS' MOTION FOR REVIEW OF MAGISTRATE JUDGE'S DISCOVERY RULING

Dated: March 26, 2010

Respectfully submitted, TONY WEST Assistant Attorney General ANDRÉ BIROTTE, JR United States Attorney VINCENT M. GARVEY Deputy Branch Director

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UNITED STATES DEPARTMENT OF JUSTICE CIVIL DIVISION, FEDERAL PROGRAMS BRANCH P.O. BOX 883, BEN FRANKLIN STATION WASHINGTON, D.C. 20044 [phone]

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DEFENDANTS' MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS' MOTION FOR REVIEW OF MAGISTRATE JUDGE'S DISCOVERY RULING

/s/ Paul G. Freeborne PAUL G. FREEBORNE W. SCOTT SIMPSON JOSHUA E. GARDNER RYAN B. PARKER Trial Attorneys U.S. Department of Justice, Civil Division Federal Programs Branch 20 Massachusetts Ave., N.W. Room 6108 Washington, D.C. 20044 Telephone: [phone] Facsimile: [phone] [e-mail] Attorneys for Defendants United States of America and Secretary of Defense

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UNITED STATES DEPARTMENT OF JUSTICE CIVIL DIVISION, FEDERAL PROGRAMS BRANCH P.O. BOX 883, BEN FRANKLIN STATION WASHINGTON, D.C. 20044 [phone]