Aguilar et al v. Immigration and Customs Enforcement Division of the United States of America Department of Homeland Security

Filing 165

MEMORANDUM DECISION AND ORDER denying 137 Motion for Reconsideration. As set forth above, the Plaintiffs' motion for reconsideration (Docket No. 137) is denied. The Court further clarifies that the "attorneys' eyes only" designa tion is applicable to all immigration Infonnation, including that of witnesses, provided by the Plaintiffs during discovery. Any infonnation so designated may be viewed by ICE in house counsel provided that they are not involved in the prosecution of any related immigration proceedings. SO ORDERED (Signed by Magistrate Judge Frank Maas on 6/23/2009) (jmi)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK - - -- - -- - -- - -- - -- - -- - -- - -- - -- - -- - -- - -- - -- - -- - -- - -- - -- - -- - -- x A D R IA N A AGUILAR, et al., Plaintiffs, : : : -a g a in st: IM M IG R A T IO N AND CUSTOMS E N F O R C E M E N T DIVISION OF THE U N IT E D STATES DEPARTMENT OF HOMELAND SECURITY, et al., : : 07 Civ. 8224 (JGK)(FM) USDC SDNY DOCUM ENT E L E C T R O N I C A L L Y FILED D O C #: _________________ D A T E FILED: 06/23/2009 MEMORANDUM DECISION AND ORDER

Defendants. : - - -- - -- - -- - -- - -- - -- - -- - -- - -- - -- - -- - -- - -- - -- - -- - -- - -- - -- - -- x F R A N K MAAS, United States Magistrate Judge.

O n January 22, 2009, the Plaintiffs moved for reconsideration and c la rif ic a tio n of a Discovery Order ("Order") that I had issued on January 7, 2009. For the re a so n s set forth below, that motion (Docket No. 137), is denied, except insofar as it s e e k s clarification of the scope of an "attorneys' eyes only" restriction in the Order. I. B a c k g ro u n d T h e Order denied the Plaintiffs' requests for: (a) a protective order barring discovery of identifying im m ig ra tio n information (except to the extent disclosed in the S e c o n d Amended Complaint ("SAC")) and preventing the D e f en d a n ts from using discovery designated as confidential f o r any purpose other than the defense of this suit; and

(b ) leave for six unnamed Plaintiffs to proceed anonymously. (See Docket No. 123). With respect to the first application, I determined that immigration-related in f o rm a tio n ("Information") was central to the parties' claims and might help the D e f en d a n ts demonstrate a lawful basis for their detention of certain Plaintiffs. (Order at 4 -5 ). I also found that the Information might bolster the Defendants' assertions that they s u s p e c te d illegality at certain residence locations, and also be relevant to the credibility of th e Plaintiffs and their witnesses. (Id. at 5). I further determined that the spectre of the Information's use in another la w s u it was not sufficient to warrant a broad protective order applicable not only to the p u ta tiv e class, but to anyone "identified through the discovery process." (Id. at 6-7). I n e v e r th e l e ss directed that the Information be limited (at least until trial) to "attorneys' e ye s only." (Id. at 7). I concluded with respect to the Defendants' second application that the D e f e n d a n ts would be severely prejudiced if the six unnamed Plaintiffs were permitted to p ro c e ed anonymously. (Id. at 9). I therefore directed that their names be provided to the D e f en d a n ts , although I allowed such information to be designated for "attorneys' eyes o n ly," and permitted the anonymous Plaintiffs to be referred to by pseudonyms in public f ilin g s . (Id. at 9-10).

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O n January 22, 2009, the Plaintiffs filed a motion for reconsideration of th e Order, alleging that: (a) the Plaintiffs' Information is not relevant to the lawfulness of a n y seizures because those seizures occurred before the Defendants had obtained any In f o rm a tio n ; (b) any potential relevance of the Plaintiffs' immigration status to their c re d ib ility is insufficient to deny them the requested protective order; (c) there is no basis f o r requiring the disclosure the Information of third-party witnesses or putative class m e m b e rs ; and (d) the Plaintiffs have shown good cause for a protective order. (See Pls.' M e m . at i). The Plaintiffs' motion also seeks to clarify whether the "attorneys' eyes only" d e sig n a tio n permits in-house counsel at defendant Immigration and Customs Enforcement (" IC E " ) to view any information so designated. (See Pls.' Mem. at 19-22). The D e f e n d a n ts join in the Plaintiffs' motion only with respect to this request for clarification. (See Defs.' Mem. at 13-15). II. D is c u ss io n A. A p p lic a b le Law T h e standard for granting a motion for reconsideration "is strict, and re c o n sid e ra tio n will generally be denied unless the moving party can point to controlling d e c is io n s or data that the court overlooked ­ matters, in other words, that might re a s o n a b ly be expected to alter the conclusion reached by the court." Shrader v. CSX T ra n sp ., Inc., 70 F.3d 255, 257 (2d Cir. 1995); see also In re Health Mgmt. Sys., Inc. S e c s. Litig., 113 F. Supp. 2d 613, 614 (S.D.N.Y. 2000) (reconsideration is an

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" e x tra o rd in a ry remedy to be employed sparingly in the interests of finality and c o n se rv a tio n of scarce judicial resources"). Consequently, an abiding conviction that the is s u e was wrongly decided is not enough to warrant reconsideration. L o c a l Civil Rule 6.3 gives effect to these precepts by requiring a party se e k in g reconsideration to set forth the factual matters or controlling decisions that it b e lie v e s were overlooked. Rule 6.3 is to "be narrowly construed and strictly applied so as to avoid repetitive arguments on issues that have been considered fully by the court." Mikol v. Barnhart, 554 F. Supp. 2d 498, 500 (S.D.N.Y. 2008). In short, a moving party may not "treat the court's initial decision as the o p e n in g of a dialogue in which that party may then use such a motion to advance new th e o rie s or adduce new evidence in response to the court's rulings." Polsby v. St. M a rtin 's Press, Inc., No. 97 Civ. 690 (MBM), 2000 WL 98057, at *1 (S.D.N.Y. Jan. 18, 2 0 0 0 ) (internal quotations omitted). B. Im m ig ra tio n -S ta tu s Information T h e Plaintiffs do not contend that the Court overlooked applicable law. Rather, the Plaintiffs argue in their motion that the Court overlooked critical facts, in c lu d in g the "nature of Plaintiffs' allegations of `seizure' and Defendants' defenses th e re to ." (Pls.' Mem. at 6). A "seizure" occurs within the meaning of the Fourth A m e n d m e n t when a reasonable person, considering all of the surrounding circumstances, w o u ld not have considered himself free to leave. Michigan v. Chestnut, 486 U.S. 567,

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5 7 3 -74 (1988). Here, it apparently is undisputed that nine named Plaintiffs were in v o l u n ta r ily taken to detention centers. (Pls.' Mem. at 8). The Plaintiffs nevertheless co n tend that all of the named Plaintiffs ­ even those not taken to detention centers ­ were u n law f u lly "seized" by the Defendants at the moment the Defendants effected entry into th e i r homes and "round[ed] up" certain of them for questioning. (Id. at 8-9). Because th e se allegedly unlawful seizures occurred before the Plaintiffs were questioned and re v e ale d any information, the Plaintiffs assert that the Information is not relevant to a d e te rm in a tio n of the lawfulness of the "searches and seizures" at issue in this case. (Id. at 7 , 10). In their papers, the Defendants distinguish between any initial seizures that m a y have occurred upon their arrival at a named Plaintiff's home and the subsequent a rre st and detention of certain Plaintiffs. (Defs.' Mem. at 6-7). In doing so, their view of th e case is not dissimilar to that previously espoused by the Plaintiffs. Indeed, in their S A C , the Plaintiffs alleged that the Defendants "implemented, enforced, encouraged a n d /o r sanctioned a policy, practice and/or custom of . . . stopping, detaining, in v e stig a tin g , searching, and effecting seizures in the absence of a reasonable, articulable s u s p ic io n of unlawful activity or probable cause" in violation of the Fourth Amendment. (Order at 4) (citing SAC ¶ 433) (emphasis added). Now, however, the Plaintiffs appear to be suggesting for the first time that th e ir seizure claim subsumes their detention claim, and that any inquiry thus should be

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f o c u se d on the Information that the Defendants knew prior to their arrival at the named P la in t if f s ' residences.1 According to the Plaintiffs, "the lawfulness of Plaintiffs' s u b s e q u e n t questioning, arrest and removal flows from the lawfulness of Defendants' e n try." (Reply at 3). The Plaintiffs ultimately may be able to demonstrate that the Defendants' in itia l entry was unlawful, but at this preliminary stage, the Court cannot assume that this is so. To be sure, the Defendants admit that they lacked probable cause to enter the P la in t if f s ' homes, but they also maintain that they did so based on the Plaintiffs' v o lu n ta ry consent. As the Plaintiffs themselves have noted, consent is an established ex ce p tio n to the requirement that officers have a warrant and probable cause to enter a h o m e . (See Pls.' Mem. at 12, citing Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1 9 7 3 )). Accordingly, if consent to enter a home is established, to prevail in this case, the P la in tif f s will need to demonstrate that the Defendants' later actions were unlawful. See, e .g ., United States v. Deutsch, 987 F.2d 878, 883 (2d Cir. 1993) (upholding arrest of s u s p e c t following consensual entry into his home). In that regard, the Information

The Plaintiffs' original letter seeking a protective order did not characterize their allegations in this way. (See letter to the Court from Donna L. Gordon, Esq., dated Sept. 11, 2008, at 4 n.1) ("[O]nly what Defendants knew or did not know prior to the seizures and detentions of Plaintiffs . . . is relevant.") (emphasis added)). Similarly, in a subsequent letter to the Court, the Plaintiffs' did not dispute the Defendants' understanding, (see letter to the Court from Ass't U.S. Att'y Kristin Vassallo, dated Sept. 19, 2008, at 2), that one of the SAC's assertions was that the Defendants detained certain Plaintiffs without a lawful basis. (See letter to the Court from Patrick Gennardo, Esq., dated Sept. 23, 2008). -6 -

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regarding all nine named Plaintiffs may support the Defendants' claim that their actions w e re proper based on the Information volunteered by these Plaintiffs. (Order at 4-5). The named Plaintiffs also argue that their Information is not g e rm a n e because they are litigating the lawfulness of their removal from their homes " b e fo re the Executive Office for Immigration Review ["EOIR"], not this Court." (See P ls.' Mem. at 9 n.8). This crabbed reading of the SAC overlooks the extensive emphasis th e Plaintiffs have placed upon the actions that the Defendants took in removing the n am ed Plaintiffs from their residences. It also ignores the Plaintiffs' own discovery r e q u e s ts which seek "all documents concerning events occurring after the home raids" a n d their interrogatory responses, which state that the Plaintiffs' Bivens claims, are "not lim ite d to alleging unconstitutional entries into the homes" and in fact allege, among o th e r things, that the "Defendants violated [their] constitutional rights regarding . . . d e te n tio n ." (See Decl. of Ass't U.S. Att'y Kristin Vassallo, dated Feb. 10, 2009, Ex. D at 3 ). The fact that the named Plaintiffs may also be litigating the constitutionality of the e v id e n c e gathered during their arrests before the EOIR therefore does not preclude the D e f e n d a n ts from defending against the claims of improper detention in this suit. Furthermore, although the Defendants concede that they did not have p rob ab le cause to believe that any of the named Plaintiffs were here illegally before a rriv in g at their residences, and that the named Plaintiffs' immigration status therefore is irre le v a n t to the issue of consent, (see Pls.' Mem. at 13), this may not hold true for the

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p u tativ e class members, whose homes may have been raided on the basis of a reasonable su sp icio n of illegality. Moreover, the immigration status of the named Plaintiffs and their w itn e s s e s is arguably relevant to a determination of their credibility. (See Order at 5). As th e Court recognized in the Order, an effort to attack credibility based on an inquiry into s o m e o n e 's immigration status frequently is disallowed when that issue is collateral to the p a rtie s' claims. (Id. at 3). Here, however, the Plaintiffs' immigration status lies at the h e a rt of the parties' claims about the reasonableness of the Defendants' actions. Additionally, because the parties in this action include both immigrants and the agency th a t prosecutes immigration offenses, the immigration status of a particular Plaintiff or w itn e s s may be relevant to that individual's biases for or against the parties. Finally, the immigration status of the named Plaintiffs and putative class m e m b e rs may be relevant to their allegations of emotional and mental distress. (See SAC ¶ 419(d)). As the Plaintiffs correctly observe, in E.E.O.C. v. First Wireless Group, Inc., 2 0 0 7 U.S. Dist. LEXIS 11893, at *12-14 (E.D.N.Y. Feb. 20, 2007), the court precluded s u c h an inquiry in connection with the claimant's emotional distress damage claims. There, however, the immigration status bore no relation to the harm alleged, which was w o rk p lac e pay inequality. Here, by contrast, the Defendants may be able to demonstrate th a t at least some of a Plaintiff's emotional distress arose from a fear that the Plaintiff m ig h t be detained by ICE which existed in advance of an actual raid.

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A c c o rd in g ly, I adhere to my prior determination that the Defendants may in q u ire about the Information during discovery. C. A tto rn e ys ' Eyes Only Limitation T h e Plaintiffs contend that the Order bars "the use of immigration status in f o rm a tio n gleaned from this litigation in parallel immigration and criminal p ro c e ed in g s ." (Reply at 7-8) (citing Order at 7). To the contrary, the Order recognized th a t such a broad proclusive order might "immunize thousands of undocumented aliens f ro m removal or immigration-related criminal prosecution during or after the pendency of th is litigation." (Order at 7). Accordingly, the Order simply required that any In f o rm a tio n disclosed during discovery be restricted to "attorneys' eyes only" until trial, s o that, in the interim, the Plaintiffs would not have to "be concerned that information c o n c ern in g their immigration status will be used improperly in connection with parallel p ro c e e d in g s ." (Id.). Both parties request clarification of this "attorneys' eyes only" limitation. The Plaintiffs request that this restriction apply beyond the discovery phase of this case in o r d e r to protect the Plaintiffs and their witnesses at trial. (Reply at 8). The Plaintiffs also re q u e st that ICE in-house counsel ­ including those who supervise, but do not directly litig a te ­ be excluded from viewing the "attorneys' eyes only" information, noting that th e y are "involved in decision-making in parallel proceedings, in which at least nine P la in tif f s are involved." (Pls.' Mem. at 19, 21; Reply at 9). In the alternative, they

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re q u e st that ICE in-house counsel submit affidavits explaining their need for the in f o rm a tio n and that they recuse themselves from the parallel proceedings. (Pls.' Mem. at 2 1 ). The Defendants counter that ICE is a defendant in this case, and that its inh o u s e counsel should therefore be "permitted to access discovery in order to assist in the d e f en s e of the agency in this action." (Defs.' Mem. at 13). If the Court rules that the In f o rm a tio n cannot be used before trial in immigration proceedings, however, the D e f en d a n ts do not object to precluding attorneys who are actively prosecuting im m ig ra tio n proceedings from viewing any "attorneys' eyes only" material during the d is c o v e ry phase of this case. (Id. at 14). The Defendants further request clarification as to whether the "attorneys' eyes only" protection extends to mere witnesses and as to the u s e s of the Information that are proper under the Order. (Id. at 14-15). Finally, the D e f en d a n ts seek permission to request modification of the Order should criminal conduct b e unearthed prior to trial. (Id. at 15). The "attorneys' eyes only" designation was intended to address the P la in tif f s' concerns arising from ICE's dual role as a defendant in this action and the p ro s e c u to r in immigration proceedings. (Order at 5). As numerous courts have re c o g n ize d , "[i]t is very difficult for the human mind to compartmentalize and selectively su p p re ss information once learned, no matter how well-intentioned the effort may be to d o so." See, e.g., Norbrook Labs. Ltd. v. G.C. Hanford Mfg. Co., No. 5: 03 Civ. 165

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(H G M /G L S ) , 2003 WL 1956214, at * 5 (N.D.N.Y. Apr. 24, 2003) (quoting FTC v. E x x o n Corp., 636 F.2d 1336, 1350 (D.C. Cir. 1980)); Sullivan Mkt'g v. Valassis C o m m c 'n s , No. 93 Civ. 6350 (PKL)(JCF), 1994 WL 177795, at *3 (S.D.N.Y. May 5, 1 9 9 4 ) (same). Indeed, notwithstanding the "attorneys' eyes only" designation, the mere f a c t that ICE in-house counsel also serve as immigration prosecutors heightens the risk th a t they might inadvertently reveal Information subject to that restriction. At the same tim e , however, ICE in-house counsel also may be able to provide valuable assistance to th e Assistant United States Attorneys charged with the defense of this action. In these c irc u m s ta n c es , an order absolutely precluding ICE in-house counsel from reviewing the I n f o r m a tio n would be overkill. The competing needs of the Plaintiffs, putative class m e m b e r s , and Defendants are adequately addressed by requiring that any ICE in-house c o u n se l who view Information designated "attorneys' eyes only" not also be involved in th e prosecution of any immigration proceedings involving an individual whose In f o rm a tio n is disclosed. The "attorneys' eyes only" designation will apply to any Information, in c lu d in g that concerning witnesses, provided by the Plaintiffs during discovery. Any in f o rm a tio n designated "attorneys' eyes only" ­ even if it reveals criminal activity ­ th e re f o re may not be used by ICE for immigration prosecutions. If, however, ICE learns f ro m other sources of illegal activity by the Plaintiffs or their witnesses, it certainly may p ro c e e d with a prosecution on the basis of that independently-obtained information.

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