United States of America v. State of California et al

Filing 30

REPLY by Xavier Becerra, Edmund Gerald Brown, Jr, State of California re 18 Motion to Transfer Venue. (Attachments: # 1 Request for Judicial Notice & Exhibits A-D) (Sherman, Lee)

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XAVIER BECERRA
Attorney General of California
THOMAS PATTERSON
Senior Assistant Attorney General
MICHAEL NEWMAN
SATOSHI YANAI
Supervising Deputy Attorneys General
CHRISTINE CHUANG
ANTHONY HAKL
CHEROKEE DM MELTON
LEE I. SHERMAN
Deputy Attorneys General
State Bar No. 272271
300 S. Spring Street
Los Angeles, CA 90013
Telephone: [phone]
Fax: [phone]
E-mail: [e-mail]
Attorneys for Defendants

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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THE UNITED STATES OF AMERICA,
Plaintiff,

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Case No. 2:18-cv-00490-JAM-KJN

v.
THE STATE OF CALIFORNIA; EDMUND
GERALD BROWN JR., Governor of
California, in his official capacity; and
XAVIER BECERRA, Attorney General of
California, in his official capacity,

REPLY IN SUPPORT OF
DEFENDANTS’ MOTION TO
TRANSFER VENUE TO THE
NORTHERN DISTRICT OF
CALIFORNIA
Judge: Honorable John A. Mendez
Action Filed: March 6, 2018

Defendants.

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Reply in Support of Defs.’ Mot. Transfer Venue to N.D. Cal. (18-cv-00490-JAM-KJN)

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INTRODUCTION

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The standard set out by the Supreme Court and Ninth Circuit dictates that this case should

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be transferred to the Northern District, where identical constitutional and statutory questions are

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already being litigated between the same parties. The federal government’s opposition fails to

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rebut this plain legal conclusion. Instead, it pretends that the pre-existing lawsuit in the Northern

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District does not address the important Supremacy Clause and Tenth Amendment issues that are

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also present in this case—despite the Northern District judge’s plain statement that those very

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issues are at the core of the dispute. The federal government also improperly discounts the

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indisputable fact that both cases directly address the legal question whether SB 54 conflicts with 8

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U.S.C. § 1373.

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Concerning the federal government’s unfair accusation of forum shopping, it is not the

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State that sought out a different district. The federal government represented in the Northern

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District that its administrative review of the State’s compliance with § 1373 was incomplete.

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Days later, it filed in this district, contending that the State is violating § 1373, in an apparent

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attempt to avoid Judge Orrick making the first ruling on SB 54’s compliance with § 1373,

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preliminary or otherwise.

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Further, contrary to the federal government’s contention, factors of judicial economy and

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consistency point toward transfer, and the witnesses’ convenience will not be impaired by

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adjudicating the matter in the Northern District. Indeed, a great portion of the factual allegations

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in this case concern purported events in the Northern District. For these reasons, this Court

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should grant California’s motion and transfer this case to the Northern District of California.

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ARGUMENT
I.

THE SAME PARTIES ARE ALREADY LITIGATING IDENTICAL LEGAL ISSUES
The United States cannot reasonably dispute that the core legal issue in this case is already

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being addressed in the Northern District, in California v. Sessions, No. 17-cv-4701 (N.D. Cal.).

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Like this case, the previously filed action pits “the State’s broad constitutional police powers

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under the Tenth Amendment” against the federal government’s “broad, undoubted power over the

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subject of immigration and the status of aliens.” See ECF No. 19, RJN Ex. E at 1 (“Orrick
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Reply in Support of Defs.’ Mot. Transfer Venue to N.D. Cal. (18-cv-00490-JAM-KJN)

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Order”) (quoting United States v. Arizona, 567 U.S. 387, 394 (2012)). The State understands that

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the Northern District lawsuit involves funding conditions, and a Spending Clause claim. See

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Opp’n at 1, 10-11. That is not its basis for arguing that the cases are related. Rather, one of the

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funding conditions at issue in the Northern District requires compliance with § 1373, and its

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propriety turns on whether the federal government’s interpretation of § 1373 is aligned with the

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plain text of the statute and the Tenth Amendment of the Constitution. This is the core of the

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third cause of action in this case. The United States acknowledges that resolving that issue, and

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the others in this case, will involve the federal government’s power under the Supremacy Clause

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and “the defenses that California might raise under the Tenth Amendment.” Opp’n at 11. Judge

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Orrick will have to adjudicate this exact issue in the Northern District to resolve the State’s

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declaratory-relief claim. This important constitutional question, and its broad impact, should be

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returned to the district where it first was raised between the same parties, ensuring both judicial

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economy and consistency in decisions.1

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In addition to this common, overarching constitutional issue, both cases address the precise

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legal question of whether SB 54 conflicts with § 1373. Count Three of the United States’

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complaint here alleges that SB 54 “violate[s] the Supremacy Clause and 8 U.S.C. § 1373(a).”

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ECF No. 1 ¶ 65. And in the Northern District, the State’s amended complaint prays for a

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declaration that SB 54 “compl[ies] with Section 1373,” or in the alternative “that Section 1373

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cannot be lawfully enforced against” SB 54. ECF No. 19, Ex. B, ¶¶ 152-53. Indeed, in the

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Northern District case, Judge Orrick already asked: “Don’t you think that the clash is going to be

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what the Federal Government actually interprets 1373 to be; specifically, what does ‘regarding’

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mean? . . . And isn’t that the entire guts of the issue that we’re going to have to deal with in this

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case?” Opp’n, Ex. A at 11:19-24 (emphasis added). He then answered his own question: “The

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whole issue is going to boil down, it seems to me, here, on the difference between what

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‘regarding status’ and ‘regarding enforcement’ is, and how far you take the definition of what

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‘regarding status’ is, because there is a point at 1373 where it runs directly, it seems to me, into

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Because the scope of § 1373 and the constitutional limitations on the statute are at issue in each
case, different forums risk imposing conflicting obligations on the State. Contra Opp’n at 2, 12.
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Reply in Support of Defs.’ Mot. Transfer Venue to N.D. Cal. (18-cv-00490-JAM-KJN)

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the Tenth Amendment.” Id. at 44:22-45:2. In fact, there has already been a hearing on the State’s

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motion for preliminary injunction almost exclusively devoted to this very issue. See Req. for

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Judicial Notice in Supp. of Mot. to Transfer Venue (“Reply Br. RJN”), Ex. A (Prelim. Inj. Hr’g

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Tr.). The State’s motion to transfer seeks to place these identical legal issues, between the same

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two parties, before the same district court in accordance with the well-established doctrine of the

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first-to-file rule. See Alltrade, Inc. v. Uniweld Products, Inc., 946 F.2d 622, 625 (9th Cir. 1991).

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If there has been any forum shopping here, as the United States has accused, see Opp’n at

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14-15, it is not by the State. See Kurtz v. Intelius, Inc., No. 11-cv-1009, 2011 WL 4048645, at *2

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(E.D. Cal. Sept. 9, 2011) (Mendez, J.) (explaining plaintiffs’ accusation of “forum shopping [was]

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unfounded” when it was the plaintiff that sought “to get around an adverse ruling by . . . filing in

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a different district”). The State filed suit in the Northern District last year, amending its

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complaint to include the § 1373 claim in October 2017. ECF No. 19, Ex. B. During the

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following months, the federal government repeatedly argued that the court should dismiss that

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claim, and deny the State a preliminary injunction based on assertions that the ongoing federal

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administrative process addressing SB 54’s compliance with § 1373 was not yet complete. See

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Reply Br. RJN, Ex. A at 27:6-8, 29:22-23, 39:22-24; Ex. B (Defs.’ Opp’n to Mot. for Prelim. Inj.)

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at 17-18 (discussing the “ongoing” administrative process to determine “whether [SB 54] violates

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Section 1373” and “has not had an opportunity to fully consider the State’s arguments to the

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contrary”); Ex. C (Defs.’ Mot. to Dismiss) at 2, 22-23 (same); Ex. D (Defs.’ Reply in Supp. of

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Mot. to Dismiss) at 13 (same). Indeed, on February 28, 2018, counsel for the United States

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argued in the Northern District that: “I just want to remind the Court there’s still an administrative

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process going on . . . and that there is no final agency determination yet on 1373 compliance.”

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Opp’n, Ex. A at 6:7-15; see also id. at 41:7-13. On March 5, 2018, Judge Orrick declined to

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dismiss the claim, and also declined to issue a preliminary injunction, largely based on the United

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States’ expression of uncertainty about the federal government’s own interpretation of § 1373 vis-

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à-vis SB 54. See Orrick Order at 2, 23, 25, 26 (collectively discussing the “number of open

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questions” regarding the federal government’s interpretation of § 1373). The next day, the United

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States filed this lawsuit, and included a cause of action that SB 54 “violate[s]” § 1373(a).
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Reply in Support of Defs.’ Mot. Transfer Venue to N.D. Cal. (18-cv-00490-JAM-KJN)

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The fact that the two lawsuits involve other specific claims, see Opp’n at 11-12, is

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immaterial. The Supreme Court has instructed that “[t]o permit a situation in which two cases

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involving precisely the same issues are simultaneously pending in different District Courts leads

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to the wastefulness of time, energy and money that [28 U.S.C.] § 1404(a) was designed to

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prevent.” Cont’l Grain Co. v. The Barge FBL-585, 364 U.S. 19, 26 (1960). In the Ninth Circuit

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an important consideration in determining whether the interests of justice dictate a transfer of

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venue under § 1404(a) is the pendency of a related case in the transferee forum. A.J. Indus., Inc.

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v. U.S. Dist. Ct. for C.D. Cal., 503 F.2d 384, 389 (9th Cir. 1974). Given the commonality of the

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legal issues in these two cases—including both the Tenth Amendment issue that broadly

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permeates all of the laws at issue in each case and the precise question of whether SB 54 complies

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with § 1373—this legal dispute should be transferred to the district where it began.2

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II.

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THE UNITED STATES MISCONSTRUES THE CIRCUMSTANCES CONCERNING THE
CONVENIENCE OF THE PARTIES AND WITNESSES
When it comes to the convenience of the parties and witnesses in litigating this action in the

Eastern District versus the Northern District, the United States again mischaracterizes the
situation. In particular, the United States wrongly emphasizes that the challenged laws “were
enacted” in the Eastern District and that the Governor and Attorney General, the officials charged
with enforcing those laws, “reside” there. Opp’n at 1. Where the votes took place when the
Legislature approved the bills at issue, and where the Governor may have been located when he
signed those bills, simply are not factors mentioned in the relevant authorities applicable to a
motion to transfer. The Legislature obviously legislates in a statewide manner, not just in one
federal judicial district. The Governor and Attorney General likewise are statewide officials with
statewide authority and responsibilities, which they carry out through offices located statewide,
including in the Northern District. Simply stated, it is of no practical or legal consequence to this
case that California’s capital is located in the Eastern District.
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Indeed, if the two cases already were in the same district—either the Northern District or
Eastern District—it is likely they would be related under the applicable local rule. See N.D. Cal.
L.R. 3-12(a) (“An action is related to another when: (1) The actions concern substantially the
same parties, property, transaction or event; and (2) It appears likely that there will be an unduly
burdensome duplication of labor and expense or conflicting results if the cases are conducted
before different Judges.”); see E.D. Cal. L.R. 123(a) (similar criteria for relating cases).
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Reply in Support of Defs.’ Mot. Transfer Venue to N.D. Cal. (18-cv-00490-JAM-KJN)

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Nonetheless, the United States doubles down on its convenience argument by inexplicably

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contending that “the events giving rise to this suit all took place in [the Eastern District].” Opp’n

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at 5; see id. at 6 (purporting that “the laws were debated in Sacramento, enacted in Sacramento,

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and enforced in Sacramento for the express purpose of frustrating and obstructing federal

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immigration enforcement”). The United States is wrong; the alleged events giving rise to the suit

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occurred statewide, not just in the Eastern District. Indeed, according to the evidence offered by

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the United States itself, “California’s laws impact three ICE geographic Areas of Responsibility

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(AORs): Los Angeles, San Diego, and San Francisco”—and particularly localities in the Northern

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District. Decl. of Thomas D. Homan, ECF No. 2-2 ¶ 21; see also, e.g., id. ¶¶ 29 (describing

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impact in Monterey County), 44 (describing impact in Santa Clara County, San Jose, and

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Alameda County), 45 (describing impact in San Francisco City and County and Sonoma County),

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53 & 59 (describing impact in Contra Costa County), 74 (describing impact in San Jose and Santa

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Cruz County), 90 (describing impact of statements from the Mayor of Oakland).

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This Court has previously deemed transfer appropriate in a similar circumstance. In Am.

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Canine Found. v. Sun, No. 06-cv-654, 2006 WL 2092614, at *4 (E.D. Cal. July 27, 2006), the

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plaintiffs challenged the constitutionality of a state law. In transferring the case to the Northern

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District, this Court concluded that “[w]hile [the bill] was passed by the California legislature

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which sits in Sacramento, there is nothing to suggest that it would be difficult for plaintiff or the

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state of California to present its evidence in the Northern District.” Id. There was also a

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“currently . . . pending case in the Northern District.” Id. The same circumstances exist here.

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Moreover, the two cases will involve overlapping discovery surrounding the federal

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government’s interpretation of § 1373. Since the parties are about to begin discovery in the

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Northern District case, transfer will not result in “delay,” Opp’n at 1, but rather prevent

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duplication. Thus, “[t]he interests of justice ‘weigh particularly heavily’ in favor of a transfer.”

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Am. Canine, 2006 WL 2092614, at *3.

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CONCLUSION
For these reasons, the Court should transfer this case to the Northern District.

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Reply in Support of Defs.’ Mot. Transfer Venue to N.D. Cal. (18-cv-00490-JAM-KJN)

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Dated: March 23, 2018

Respectfully Submitted,

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Xavier Becerra
Attorney General of California

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/s/ Lee I. Sherman
Lee I. Sherman
Deputy Attorney General
Attorneys for Defendants

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Reply in Support of Defs.’ Mot. Transfer Venue to N.D. Cal. (18-cv-00490-JAM-KJN)

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CERTIFICATE OF SERVICE

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I hereby certify that on March 23, 2018, I electronically transmitted the attached document
to the Clerk’s Office using the U.S. District Court for the Eastern District of California’s

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Electronic Document Filing System (ECF) which will serve a copy of this document on all

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counsel of record.

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/s/ Lee I. Sherman______
Lee I. Sherman
Deputy Attorney General

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Certificate of Service