LYTTLE v. The UNITED STATES OF AMERICA et al

Filing 74

RESPONSE by Plaintiff Mark Daniel Lyttle re 73 Notice-(other) . (Reyes, Alexandria)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NORTH CAROLINA
CASE NO.
MARK DANIEL LYTTLE,
Plaintiff,
v.
THE UNITED STATES OF AMERICA,
et al.,
Defendants.

4:10-CV-142-D
)
)
)
PLAINTIFF’S RESPONSE TO
) FEDERAL DEFENDANTS’ NOTICE OF
)
SUPPLEMENTAL AUTHORITY
)
)
Local Civil Rule 7.2(e)
)
)
)

Federal Defendants have filed notice of the decision in Mirmehdi v. United States, --F.3d ----, No. 09-55846, 2011 WL 5222884 (9th Cir. Nov. 3, 2011) and asserted that it is
“directly relevant to the issues presented by their currently pending motions to dismiss.” On the
contrary, the issue in Mirmehdi was whether non-U.S. citizens could assert claims under Bivens
and the Federal Tort Claims Act, among other claims. Id. at *1, 3, 5. The plaintiffs in Mirmehdi
were citizens of Iran who were detained pending proceedings related to the merits of their
asylum applications. Id. at *1-2. The fact that the Mirmehdi plaintiffs were not U.S. citizens can
be fairly characterized as the entire basis for the Mirmehdi decision. “It is well established that
immigrants’ remedies for vindicating the rights which they possess under the Constitution are
not coextensive with those offered to citizens.” Id. at *3. The entire discussion of deportation
proceedings in that case referred to the deportation of non-U.S. citizens, not the deportation of a
U.S. citizen, which is never permissible. The Mirmehdi court expressly acknowledged this very
distinction, stating “because Congress has the ability to ‘make rules as to aliens that would be
unacceptable if applied to citizens,’ we must consider whether an immigrant may bring a Bivens
claim to vindicate certain constitutional rights separately from whether a citizen may bring such

a Bivens claim.” Id. at *3, n.3 (internal cits. omitted). Unlike the consideration of an asylum
petition, the “decision” whether to deport a U.S. citizen is not a matter of “diplomacy, foreign
policy, and the security of the nation.” Id. at *4. Given what happened to Plaintiff Mark Lyttle,
and given the submissions already made in the instant case, Plaintiff should not need to point out,
once again, that he is and always has been a United States Citizen. Whether or not the Ninth
Circuit recognizes the right of Iranian citizens to sue the U.S. government for their detention
during asylum proceedings, Plaintiff already has demonstrated in its briefing that U.S. citizens
absolutely do have legal recourse for their wrongful detention and deportation.
Respectfully submitted this 7th day of November, 2011.

TROUTMAN SANDERS LLP
/s/ Alexandria J. Reyes
MICHAEL E. JOHNSON
Georgia Bar No. 395039
[e-mail]
BRIAN P. WATT
Georgia Bar No. 741841
[e-mail]
ALEXANDRIA J. REYES
Georgia Bar No. 428936
[e-mail]
Bank of America Plaza, Suite 5200
600 Peachtree Street, N.E.
Atlanta, Georgia 30308-2216
Tel: [phone]
Fax: [phone]

With Local Counsel:
MCKINNEY &JUSTICE, P.A.
/s/ Jeremy L. McKinney
JEREMY L. MCKINNEY
N.C. Bar No. 23318
ANN MARIE DOOLEY
N.C. Bar No. 33895
[e-mail]

-2-

[e-mail]
910 North Elm Street
Post Office Box 1800
Greensboro, North Carolina 27402
Telephone [phone]
Facsimile 336.275.6045

And Co-Counsel:
AMERICAN CIVIL LIBERTIES UNION
OF NORTH CAROLINA LEGAL FOUNDATION
KATHERINE LEWIS PARKER
NC Bar No. 36263
Legal Director, American Civil Liberties Of
North Carolina Legal Foundation
Post Office Box 28004
Raleigh, North Carolina 27611
Tel: [phone]
Fax: [phone]
[e-mail]
AMERICAN CIVIL LIBERTIES UNION
IMMIGRANTS’ RIGHTS PROJECT
JUDY RABINOVITZ
American Civil Liberties Union Foundation
Immigrants’ Rights Project
125 Broad Street, 18th Floor
New York, NY 10004
Tel: [phone]
Fax: [phone]
[e-mail]

-3-

CERTIFICATE OF SERVICE
I hereby certify that on November 7, 2011, I electronically filed the preceding
PLAINTIFF’S RESPONSE TO FEDERAL DEFENDANTS’ NOTICE OF
SUPPLEMENTAL AUTHORITY with the Clerk of Court using the CM/ECF system which
will automatically send email notification of such filing to all parties of record.

TROUTMAN SANDERS LLP
/s/ Alexandria J. Reyes
ALEXANDRIA J. REYES
Georgia Bar No. 428936
[e-mail]
Bank of America Plaza, Suite 5200
600 Peachtree Street, N.E.
Atlanta, Georgia 30308-2216
Tel: [phone]
Fax: [phone]

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