Bautista-Perez et al v. Gonzales et al

Filing 132

CORRECTED ORDER granting motion for leave to file surreply. Signed by Judge Thelton E. Henderson on 11/13/09. (rbe, COURT STAFF) (Filed on 11/13/2009)

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JONATHAN M. KAUFMAN, CA Bar No. 104576 [e-mail] The Law Offices of Jonathan M. Kaufman 220 Montgomery Street, Suite 976 San Francisco, CA 94104 [phone] [phone] (Fax) LINDA M. DARDARIAN, CA Bar No. 131001 [e-mail] RACHEL E. BRILL, CA Bar No. 233294 [e-mail] LIN YEE CHAN, CA Bar No. 255027 [e-mail] GOLDSTEIN, DEMCHAK, BALLER, BORGEN & DARDARIAN 300 Lakeside Drive, Suite 1000 Oakland, CA 94612 [phone] [phone] (Fax) ATTORNEYS FOR PLAINTIFFS AND THE CLASS UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

JOSE BAUTISTA-PEREZ, OSCAR GUARDADO-GONZALEZ, DENIS CABALLERO-ESPINOZA, JOSE ALVARADO-MENJIVAR, OSCAR RENE RAMOS, MARIA SALAZAR, JOSE BENJAMIN QUINTEROS, AND MARIA JOSEFA CRUZ, Individually and on behalf of all others similarly situated, Plaintiffs, vs. ERIC H. HOLDER, JR., Attorney General and JANET NAPOLITANO, Secretary of Homeland Security, Defendants.

Case No.: C 07-4192 TEH PLAINTIFFS' MOTION FOR ADMINISTRATIVE LEAVE TO FILE SURREPLY TO DEFENDANTS' REPLY TO PLAINTIFFS' OPPOSITION TO DEFENDANTS' CROSS-MOTION FOR SUMMARY JUDGMENT AND DECLARATION OF SCOTT G. GRIMES IN SUPPORT THEREOF, AND [PROPOSED] ORDER Date: Time: Courtroom: Judge: November 23, 2009 10:00 a.m. 12 Hon. Thelton E. Henderson

PLAINTIFFS' MOTION FOR ADMINISTRATIVE LEAVE TO FILE SURREPLY TO DEFENDANTS' REPLY TO PLAINTIFFS' OPPOSITION TO DEFENDANTS' CROSS-MOTION FOR SUMMARY JUDGMENT AND DECLARATION OF SCOTT G. GRIMES IN SUPPORT THEREOF, AND [PROPOSED] ORDER - CASE NO.: C 07-4192 TEH 100016-2

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Plaintiffs in the above-entitled action hereby move this Court for an order granting Plaintiffs leave to file a Surreply to Defendants' Reply to Plaintiffs' Opposition to Defendants' Cross-Motion for Summary Judgment (Dkt. 128) and Declaration of Scott G. Grimes in Support thereof. Both are submitted as attachments to this motion. This motion is made pursuant to Civil Local Rule 7-11. Prior to filing this Motion, Plaintiffs' attorney, Linda M. Dardarian, consulted by telephone with Defendant's attorney, Brian Mizoguchi, in order to obtain a stipulation to Plaintiffs' filing of a surreply. Because Defendant conditioned any such stipulation on postponing the long-scheduled hearing on the parties' Cross Motions for Summary Judgment, the parties were unable to reach an agreement. See Declaration of Linda M. Dardarian in Support of Plaintiff's Motion for Leave to File Surreply, filed herewith. Plaintiffs request permission to file this surreply to provide the Court with Plaintiffs' analysis of Section 549 of the Department of Homeland Security Appropriations Act, 2010, H.R. 2892, Pub. L. 111-83, __Stat. __ (Oct. 28, 2009) ("Section 549"), a new law that was enacted after Plaintiffs filed their Combined Opposition to Defendants' Cross-Motion for Summary Judgment and Reply brief, and which Defendant argues is dispositive on the two summary judgment motions currently pending before the Court. Plaintiffs filed their Motion for Partial Summary Judgment and Declaratory Relief on August 17, 2009. Defendant filed an Opposition to Plaintiffs' Motion for Partial Summary Judgment and Declaratory Relief as well as a Cross-Motion for Summary Judgment on October 2, 2009. On October 26, 2009, Plaintiffs filed a Combined Opposition to Defendant's Cross Motion for Summary Judgment and a Reply to Defendant's Opposition to Plaintiffs' Motion for Partial Summary Judgment and Declaratory Relief. Then, on October 28, 2009, Section 549 was enacted. On that same date, Defendant filed a Notice of New Law with the Court, alleging that Section 549 "explicitly clarified that the Government lawfully may collect the fees at issue in this case." See Defendants' Notice of New Law (Dkt. 127) at 2:1-2. On November 9, 2009, Defendant filed a Reply to Plaintiffs' Opposition to Defendant's Cross-Motion for Summary Judgment, further detailing its argument that Section 549 is dispositive as to both of the summary judgment motions pending before the Court. (Dkt. 128). 1
PLAINTIFFS' MOTION FOR ADMINISTRATIVE LEAVE TO FILE SURREPLY TO DEFENDANTS' REPLY TO PLAINTIFFS' OPPOSITION TO DEFENDANTS' CROSS-MOTION FOR SUMMARY JUDGMENT AND DECLARATION OF SCOTT G. GRIMES IN SUPPORT THEREOF, AND [PROPOSED] ORDER - CASE NO.: C 07-4192 TEH 100016-2

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Because Section 549 was enacted after Plaintiffs filed their Combined Opposition to Defendant's Cross Motion for Summary Judgment and Reply to Defendant's Opposition to Plaintiffs' Motion for Partial Summary Judgment, Plaintiffs have not had an opportunity to provide the Court with their analysis of the impact of the new law on Plaintiffs' claims. Plaintiffs therefore respectfully move for leave to file a surreply in order to provide the Court with this analysis, and to respond to Defendant's two filings on this issue. Plaintiffs request leave to file a surreply in order to set forth their argument that Section 549 is not dispositive as to the motions pending before the Court is premised on the following three bases: 1. Section 549 does not amend 8 U.S.C. § 1254a(c)(1)(B), which provides for a $50.00 cap

on the fees charged as a condition of registering for Temporary Protected Status ("TPS"). 2. To the extent that Section 549 can be construed to retroactively apply to the TPS

registration process, it is unconstitutional. 3. Section 549 has no effect on the TPS registration process absent notice and rule making,

as required by the Administrative Procedures Act. For the above reasons, Plaintiffs move for leave to file the surreply submitted concurrently herewith. Dated: November __, 2009 Respectfully submitted, GOLDSTEIN, DEMCHAK, BALLER, BORGEN & DARDARIAN

LINDA M. DARDARIAN, CA Bar No. 131001 RACHEL E. BRILL, CA Bar No. 233294 LIN YEE CHAN, CA Bar No. 255027 300 Lakeside Drive, Suite 1000 Oakland, CA 94612 [phone]; [phone] (Fax) JONATHAN M. KAUFMAN, CA Bar No. 104576 [e-mail] The Law Offices of Jonathan M. Kaufman 220 Montgomery Street, Suite 976 San Francisco, CA 94104 [phone]; [phone] (Fax) ATTORNEYS FOR PLAINTIFFS 2
PLAINTIFFS' MOTION FOR ADMINISTRATIVE LEAVE TO FILE SURREPLY TO DEFENDANTS' REPLY TO PLAINTIFFS' OPPOSITION TO DEFENDANTS' CROSS-MOTION FOR SUMMARY JUDGMENT AND DECLARATION OF SCOTT G. GRIMES IN SUPPORT THEREOF, AND [PROPOSED] ORDER - CASE NO.: C 07-4192 TEH 100016-2

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[PROPOSED] ORDER Upon consideration of Plaintiffs' Motion for Leave to File a Surreply to Defendant's Reply to Plaintiffs' Opposition to Defendants' Cross-motion for Summary Judgment, and for good cause shown, the Plaintiffs' Motion for Leave to File a Surreply IS HEREBY GRANTED. IT IS SO ORDERED. DATED: 11/13/09

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Hon. Thelton E. Henderson United States District Judge

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PLAINTIFFS' MOTION FOR ADMINISTRATIVE LEAVE TO FILE SURREPLY TO DEFENDANTS' REPLY TO PLAINTIFFS' OPPOSITION TO DEFENDANTS' CROSS-MOTION FOR SUMMARY JUDGMENT AND DECLARATION OF SCOTT G. GRIMES IN SUPPORT THEREOF, AND [PROPOSED] ORDER - CASE NO.: C 07-4192 TEH 100016-2

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