Log Cabin Republicans v. United States of America et al

Filing 139

REPLY in support of MOTION for Review of Magistrate Judge's March 16, 2010 Discovery Ruling #135 filed by Defendants Donald H Rumsfeld, United States of America. (Parker, Ryan)

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' REPLY IN 15 ) SUPPORT OF MOTION FOR v. ) REVIEW OF MAGISTRATE 16 ) JUDGE'S DISCOVERY RULING UNITED STATES OF AMERICA AND ) 17 ROBERT M. GATES, Secretary of ) DATE/TIME: EXPEDITED Defense, ) RULING REQUESTED; 18 ) DISCOVERY MATTER Defendants. ) 19 ) BEFORE: Judge Phillips ) 20 ) ) 21 ) 22 23 24 25 26 27 28 INTRODUCTION Plaintiff does not dispute the primary point raised in Defendants' motion. As noted in Defendants' opening memorandum (Doc. 135), in the unique circumstances of this case, Defendants cannot in good faith "unqualifiedly admit or deny" Requests 3, 4, and 5 of Plaintiff's Requests for Admission ("Requests") because the United States does not have a single position on the questions
DEFENDANTS' REPLY IN SUPPORT 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]

-1-

1 presented; as noted, the positions of the Executive Branch (as articulated by the 2 President) and Congress differ on these questions. The only good faith response 3 Defendants can thus make to these requests is a qualified response, which Fed. R. 4 Civ. P. 36(a)(4) expressly permits. Plaintiff's only argument is that Defendants 5 have somehow failed to argue that the Magistrate Judge was incorrect in his ruling 6 that the United States must unqualifiedly admit these requests. Because the 7 Magistrate's ruling is beyond the bounds of Rule 36, however, his ruling is 8 erroneous and contrary to law, and, accordingly, should now be reversed. 9 10 ARGUMENT Each of the arguments Plaintiff presents in support of the Magistrate's ruling

11 fail to recognize that Fed. R. Civ. P. 36(a)(4) expressly permits a party to provide a 12 qualified response to a request where "good faith" requires such a response. An 13 unqualified response to Requests 3, 4, and 5, as ordered, under the unique 14 circumstances presented here, would neither be accurate nor appropriate. 15 Ignoring the express language of Rule 36(a)(4), Plaintiff argues (Pl's Opp. at 16 6), that Defendants do "not even attempt to show that Magistrate Judge Eick's 17 ruling was erroneous or contrary to law on the issue of a party's obligation to 18 respond to requests for admission." A Magistrate's ruling is erroneous or contrary 19 to law if it "does not comport with the standards set out in the statutes, rules, and 20 cases[.]" Grimes v. City and County of San Francisco, 951 F.2d 236, 241 21 (9th Cir. 1991) (emphasis added). Because Fed. R. Civ. P. 36(a)(4) expressly 22 permits a party to provide a qualified response to a request where "good faith" 23 requires it, the Magistrate's ruling directing otherwise is erroneous and contrary to 24 law; Defendants have explained clearly why a qualified response is the only 25 appropriate response in these circumstances, and the rules permit Defendants to 26 make it. 27 28
DEFENDANTS' REPLY IN SUPPORT 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]

-2-

1

Plaintiff invokes Marchand v. Mercy Medical Center, 22 F.3d 933 (9th Cir.

2 1994), in support of the Magistrate's ruling (Pl's Opp. at 6), but Marchand did not 3 address the situation in which a qualified response was required; the case instead 4 addressed objections that were determined to be inappropriate and a denial that 5 "had no reasonable basis" in the record. Id. at 938. To the extent Marchand has 6 any relevance, it acknowledges that a party may "admit [a request] to the fullest 7 extent possible, and explain in detail why other portions of a request may not be 8 admitted." Id., citing Holmgren v. State Farm Mutual Auto. Ins. Campaign, 976 9 F.2d 573 (9th Cir. 1992) (recognizing that under Fed. R. Civ. P. 36(a)(4) a party 10 may provide for a qualified response where good faith requires). This, of course, is 11 fully consistent with the authority set forth in Defendant's opening memorandum 12 (see Doc. 135 at 2-3). 13 Plaintiff also argues (Pl's Opp. at 6-8) that Defendants are somehow 14 attempting to contravene the Court's July 24 Discovery Order (Doc. 91). 15 Defendants, however, acknowledge that the Court has permitted discovery and, 16 consistent with that order, Defendants have produced thousands of pages of 17 documents and responded to hundreds of requests for admission and numerous 18 interrogatories. Defendants are simply attempting to respond to Requests 3, 4, and 19 5 by providing the type of qualified response that Fed. R. Civ. P. 36(a)(4) 20 expressly permits. 21 Defendants' right to make a qualified response is not only appropriate under 22 the Rules, it is also consistent with the legal principles governing a case such as 23 this involving a facial challenge and rational basis review. Classifications subject 24 to rational-basis review are not subject to challenge on the ground of changed 25 circumstances. See, e.g., United States v. Jackson, 84 F.3d 1154, 1161 (9th Cir. 26 1996); Montalvo-Huertas v. Rivera-Cruz, 885 F.2d 971, 977 (1st Cir. 1989) 27 ("[E]valuating the continued need for, and suitability of, legislation of this genre is 28
DEFENDANTS' REPLY IN SUPPORT 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]

-3-

1 exactly the kind of policy judgment that the rational basis test was designed to 2 preclude."); United States v. Teague, 93 F.3d 81, 84 (2d Cir. 1996). Indeed, courts 3 have found that even where Congress has determined that a previous enactment is 4 no longer necessary, that finding does not render the statute unconstitutional. See 5 Smart v. Ashcroft, 401 F.3d 119, 123 (2d Cir. 2005) ("A congressional decision 6 that a statute is unfair, outdated, and in need of improvement does not mean that 7 the statute when enacted was wholly irrational or, for purposes of rational basis 8 review, unconstitutional."); Howard v. U.S. Dept. of Defense, 354 F.3d 1358, 9 1361-62 (Fed. Cir. 2004) ("Congress acts based on judgments as to preferable 10 policy; the fact that Congress repeals or modifies particular legislation does not 11 reflect a judgment that the legislation, in its pre-amendment form, lacked rational 12 support."). This further supports the appropriateness of Defendant's responses to 13 Requests 3, 4, and 5, which make explicit reference to the President's statements 14 about the "Don't Ask, Don't Tell" (DADT) policy, but also state that Congress was 15 of a different view in 1993 when it enacted the statute. 16 The question posed in this case, moreover, is whether Congress "rationally 17 could have believed" that the conditions of the statute would promote its objective. 18 Western & Southern Life Ins. Co. v. State Bd. of Equalization, 451 U.S. 648, 67119 72, 101 S. Ct. 2070, 68 L. Ed. 2d 514 (1981). Whether the President has a view 20 about the need for the statute that differs from the considered judgment of 21 Congress in 1993 is not the relevant question for purposes of the litigation. 22 Plaintiff's suggestion (Pl's Opp. at 8) that Western & Southern Life Ins. Co. 23 permits a court to examine "evidence of whether [a] questioned law further[s] the 24 desired governmental objective post-enactment," id., misreads that decision (and 25 the governing law). 26 28
DEFENDANTS' REPLY IN SUPPORT MOTION FOR REVIEW OF MAGISTRATE JUDGE'S DISCOVERY RULING

In determining whether a law satisfies rational basis review, the court "must

27 answer two questions: (1) Does the challenged legislation have a legitimate
UNITED STATES DEPARTMENT OF JUSTICE CIVIL DIVISION, FEDERAL PROGRAMS BRANCH P.O. BOX 883, BEN FRANKLIN STATION WASHINGTON, D.C. 20044 [phone]

-4-

1 purpose? and (2) Was it reasonable for the lawmakers to believe that use of the 2 challenged classification would promote the purpose?" Western & Southern Life 3 Ins. Co., 451 U.S. at 668. The first question has already been answered. See Witt 4 v. Department of the Air Force, 527 F.3d 806, 821(9th Cir. 2008) ("[i]t is clear that 5 the government advances an important governmental interest" in enacting the 6 DADT statute). That leaves the second question, and the Supreme Court has made 7 clear that "whether in fact" a law "will accomplish its objectives is not the 8 question." Western & Southern Life Ins. Co., 451 U.S. at 671-72 (emphasis in 9 original). The question is instead whether the legislature "rationally could have 10 believed" that the statute "would promote its objective." Id. (emphasis in original). 11 Because it is Congress' judgment in 1993 that controls that question, Defendants' 12 responses to Requests 3, 4, and 5 not only satisfy Fed. R. Civ. P. 36, they are also 13 in accord with the governing law. 14 Finally, Plaintiff contends (Pl's Opp. at 9-10) that a qualified response on 15 behalf of the "United States" is somehow inconsistent with Defendant's objections 16 to discovery, which sought (successfully) to limit document production to the 17 Department of Defense. Pl's Opp. at 9-10. It is not; unlike Plaintiff's document 18 requests, which the Magistrate limited to the Department of Defense (Doc. 127 at 19 1), the Magistrate's Order requires "Defendant United States of America [to] 20 unqualifiedly admit or deny Requests for Admission[] Nos. 3, 4, 5] (id. at 3)." The 21 only way in which Defendants can offer a good faith and accurate response on 22 behalf of the United States is to offer a qualified response: the Executive being of 23 the view that the DADT policy does not contribute to and even weakens our 24 national security, and the Congress being of the view that enactment of the statute 25 furthered a governmental interest in military effectiveness, and thus national 26 security, in the unique setting of the military. In these circumstances, the only 27 appropriate response is a qualified one, and that is precisely why Fed. R. Civ. P. 28
DEFENDANTS' REPLY IN SUPPORT 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]

-5-

1 36(a)(4) expressly permits qualified answers. The Magistrate Judge's Order goes 2 beyond the bounds of Rule 36 to direct the United States to "unqualifiedly admit or 3 deny," thus placing the United States in an untenable situation of picking between 4 two words, neither of which alone, in the circumstances, would constitute a good 5 faith response as to the position of the United States as contemplated by Rule 36. 6 For all of the reasons set forth herein, Defendants request that the Magistrate 7 Judge's Order directing Defendants to "unqualifiedly admit or deny" Plaintiff's 8 Requests for Admission 3, 4, and 5 be modified or reversed.1 9 10 Dated: April 1, 2010 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
The terms "contribute," "weakens," and "national security" in the context of this litigation are vague and ambiguous, and thereby violate the intent of Fed. R. Civ. P. 36 requiring that requests be drafted in a manner that is "`simple and direct . . . and limited to singular relevant facts.'" Safeco of America v. Rawstron, 181 F.R.D. 441, 446 (C.D. Cal. 1998) (quoting S.E.C. v. Micro-Moisture Controls, 21 F.R.D. 164, 166 (S.D.N.Y. 1957)). These requests also fail to relate to "facts, the application of law to fact, or opinions about either," as Rule 36 requires. Fed. R. Civ. P. 36(a)(1)(A). Because the Magistrate's ruling also failed to recognize and apply these principles of law, the ruling is erroneous and contrary to law for these additional reasons.
DEFENDANTS' REPLY IN SUPPORT 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]

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

1

-6-

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
DEFENDANTS' REPLY IN SUPPORT 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

-7-

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