Armstrong, et al v. Davis, et al

Filing 2451

[TENTATIVE] ORDER TO REVISE THE MODIFIED INJUNCTION (Docket No. 2180 ). Status Report due by 11/21/2014. Signed by Judge Claudia Wilken on 11/7/2014. (ndr, COURT STAFF) (Filed on 11/7/2014)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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JOHN ARMSTRONG, et al.,

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United States District Court
For the Northern District of California

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No. C 94-2307 CW

Plaintiffs,

[TENTATIVE] ORDER
TO REVISE THE
MODIFIED
INJUNCTION
(Docket No. 2180)

v.
EDMUND G. BROWN, JR., et al.,
Defendants.
________________________________/

This tentative order revises Sections D.2. and D.3. of this

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Court's Modified Injunction (Docket No. 2180).

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pursuant to the Ninth Circuit's recent opinion in Armstrong v.

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Brown, 2014 WL 4783091 (9th Cir.)

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Circuit held that Sections D.2. and D.3. of this Court's Modified

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Injunction delegated too much authority to the Court-appointed

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expert witness to resolve disputes between Plaintiffs' counsel and

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the State.

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Court to revise those sections to be consistent with its opinion.

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It is made

In that opinion, the Ninth

It then vacated those sections, and instructed this

BACKGROUND
Section D.2. provides the procedure to be used with regard to

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disputed allegations of non-compliance.

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part, "If the parties are unable to resolve the dispute

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informally, Plaintiffs' counsel may request that the Court's

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expert review and resolve the matter."

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WL 3638675, at *11 (N.D. Cal.), aff'd in part, vacated in part,

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remanded, by 2014 WL 4783091 (9th Cir.).

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"Administrative decisions made by the Court's expert pursuant to

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It provides, in relevant

Armstrong v. Brown, 2012

Furthermore, it states,

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this section shall be final as between Plaintiffs and Defendants."

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Id.

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Section D.3. provides, in relevant part, that with regard to

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incidents in dispute as presented in the parties' pleadings, the

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Plaintiffs "shall attempt to resolve these disputes through

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negotiation with Defendants.

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may be referred to the Court's expert pursuant to paragraph D.2.,

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above."

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If negotiations fail, the disputes

Id.

The Ninth Circuit held that this delegation of authority to

United States District Court
For the Northern District of California

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the Court's expert is "impermissible" as it extends "beyond the

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scope of the duties that may be assigned to a Rule 706 expert."

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Armstrong, 2014 WL 4783091, at * 10 ("While we have approved the

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appointment of non-judicial officers to make recommendations and

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resolve disputes ancillary to complex litigation, those

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appointments specifically limited the expert to making

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recommendations subject to review by the district court.").

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Accordingly, the Court provides the following tentative
ruling:
In Section D.2., strike the following sentence:

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"Administrative decisions made by the Court's expert pursuant to

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this section shall be final as between Plaintiffs and Defendants"

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and replace it as follows: "Administrative recommendations made by

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the Court's expert pursuant to this section shall be reviewable by

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this Court on a motion by any party dissatisfied with the expert's

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decision."

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D.2., there is no reason to alter its language.

Because Section D.3. derives its meaning from Section

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CONCLUSION

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Within fourteen days of the date of this order, the parties

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shall meet and respond to this proposal with a joint statement or

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separate statements.

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IT IS SO ORDERED.

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Dated:

November 7, 2014

CLAUDIA WILKEN
United States District Judge

United States District Court
For the Northern District of California

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