Flores v. Sessions

• Decision Date: 27 June 2017
• Docket Number: CV 85-4544 DMG (AGRx)
• Parties: Jenny L. FLORES, et al. v. Jefferson B. SESSIONS, III, et al.
• Court: U.S. District Court — Central District of California

394 F.Supp.3d 1041

Jenny L. FLORES, et al.

v.Jefferson B. SESSIONS, III, et al.

CV 85-4544 DMG (AGRx)

United States District Court, C.D. California.

Filed June 27, 2017

Rene Kathawala, Pro Hac Vice, Shaila Rahman Diwan, Pro Hac Vice, Elyse D. Echtman, Pro Hac Vice, Orrick Herrington and Sutcliffe LLP, New York, NY, Annette D. Kirkham, Law Foundation of Silicon Valley, Katherine H. Manning, Law Foundation of Silicon Valley Legal Advocates for Children and Youth, San Jose, CA, Carlos Holguin, Peter A. Schey, Center for Human Rights and Constitutional Law, Los Angeles, CA, Jennifer Kelleher Cloyd, Legal Advocates for Children and Youth, San Jose, CA, Michael S. Sorgen, Stephen A. Rosenbaum, La Raza Centro Legal Inc., Virginia Elizabeth Corrigan, Youth Law Center, San Francisco, CA, Steven H. Schulman, Latham and Watkins, Crystal Adams, National Center for Youth Law, Washington, DC, Carter C. White, UC Davis Civil Rights Clinic, Davis, CA, Elena Garcia, Orrick Herrington and Sutcliffe LLP, Irvine, CA, Freya E. K. Pitts, Leecia Welch, Neha Desai, Poonam Juneja, National Center for Youth Law, Oakland, CA, Holly S. Cooper, UC Davis School of Law, Davis, CA, Kevin M. Askew, Orrick Herrington and Sutcliffe LLP, Marchela Iahdjian, Center for Human Rights and Constitutional Law, Los Angeles, CA, for Jenny L. Flores, et al.

Carlton F. Sheffield, Christina Parascandola, Colin A. Kisor, August E. Flentje, US Department of Justice, Sarah B. Fabian, US Department of Justice Office of Immigration Litigation, Washington, DC, William Charles Silvis, Jeffrey S Robins, Department of Justice Office of Immigration Litigation - District Court Section, Washington, DC, Peter D. Keisler, Office of the Immigration Litigation - Civil Litigation US Department of Justice, Washington, DC, for Jefferson B. Sessions, III, et al.

Proceedings: IN CHAMBERS—ORDER RE PLAINTIFFS' MOTION TO ENFORCE AND APPOINT A SPECIAL MONITOR [201, 202]

DOLLY M. GEE, UNITED STATES DISTRICT JUDGE

I.INTRODUCTION

On July 24, 2015, the Court found that Defendants Jeh Johnson and the U.S. Department of Homeland Security ("DHS") and its subordinate entities, U.S. Immigration and Customs Enforcement ("ICE") and U.S. Customs and Border Protection ("CBP") had breached the settlement agreement (the "Agreement") that they had reached with Plaintiff Jenny L. Flores and other class members—accompanied and unaccompanied minors—in 1997. Flores v. Johnson , 212 F. Supp. 3d 864 (C.D. Cal. 2015) (" July 24, 2015 Order"). The Court subsequently gave Defendants an opportunity to respond to the Court's proposed remedies. On August 21, 2015, the Court issued its remedial order. Flores v. Lynch , 212 F. Supp. 3d 907 (C.D. Cal. 2015) (" August 21, 2015 Order"). Defendants appealed.

On July 6, 2016, the Ninth Circuit issued its opinion, affirming the district court in part and reversing in part. In particular, the Ninth Circuit concluded that while "the Settlement unambiguously applies both to accompanied and unaccompanied minors," it "does not create affirmative release rights for parents." Flores v. Lynch , 828 F.3d 898, 901 (9th Cir. 2016).

Before the Court is Plaintiffs' motion to enforce the Agreement. ("Pl. Mot.") [Doc. ## 201, 202.] According to Plaintiffs, Defendants are in breach of the Agreement by (1) continuing to detain class members in deplorable and unsanitary conditions in CBP facilities (also referred to as "Border Patrol Stations"); (2) failing to advise class members of their rights under the Agreement; (3) failing to make and record ongoing efforts aimed at release or placement of class members; (4) detaining class members for weeks or months in secure, unlicensed facilities; (5) commingling class members with unrelated adults for extend periods; and (6) interfering with class members' right to counsel. Plaintiffs request that the Court appoint a special monitor to ensure Defendants' compliance with the Agreement. Defendants filed an opposition. ("Def. Resp.") [Doc. # 208.] They then filed a motion for an evidentiary hearing, which the Court granted in part and denied in part. ("October 7, 2016 Order") [Doc. # 274.]

The Court in its October 7, 2016 Order stated that it would hold a January 30, 2017 evidentiary hearing on four of the six issues Plaintiffs identified. Id. at 1. In response to the Court's order, Plaintiffs filed supplemental briefing as well as a Statement of Uncontroverted Facts. See ("Pl. Supp.") [Doc. # 287]; ("Plaintiff's SUF") [Doc. # 314]. In turn, Defendants filed a separate Statement of Genuine Disputes of Material Fact and a Second Supplemental Response in opposition to Plaintiff's motion. See ("Def. Sec. Supp. Resp.") [Doc. # 296]; ("Def. SGDMF") [Doc. # 297].

For the reasons discussed below, the Court GRANTS in part and DENIES in part Plaintiffs' motion to enforce and appoint a special monitor.¹

II.LEGAL STANDARD

A. Burden of Proof—Preponderance of the Evidence

"The construction and enforcement of settlement agreements are governed by principles of local law which apply to interpretation of contracts generally." O'Neil v. Bunge Corp. , 365 F.3d 820, 822 (9th Cir. 2004) (internal citations and quotation marks omitted); Adams v. Johns-Manville Corp. , 876 F.2d 702, 704, 709 (9th Cir. 1989) ("Under California law, settlement agreements are governed by general principles of contract law.... The motion to enforce the settlement agreement essentially is an action to specifically enforce a contract."); July 24, 2015 Order, 212 F. Supp. 3d at 870. Under state law, courts apply the preponderance of the evidence standard to motions to enforce settlement agreements. See Buss v. Superior Court , 16 Cal. 4th 35, 54, 65 Cal.Rptr.2d 366, 939 P.2d 766 (1997) (preponderance of the evidence standard applies to "contractual causes of action") (citations omitted).

According to Defendants, the Court should use a clear and convincing standard. The cases that Defendants cite apply this higher burden of proof to civil contempt actions. See, e.g. , Kelly v. Wengler , 822 F.3d 1085, 1096 (9th Cir. 2016) ("The district court found by clear and convincing evidence that [defendant] was in civil contempt because it violated the settlement agreement and had failed to take all reasonable steps to comply."). As Defendants put it, "because Plaintiffs' motion to enforce the Agreement amounts to a request for civil sanctions against Defendants, ... the Court should require Plaintiffs to establish any violation of the Agreement under the clear and convincing standard." Def. Sec. Supp. Resp. at 4 (citations omitted).

The Court disagrees. Plaintiffs make no attempt to hold Defendants in civil contempt. Pl. Supp. at 24 ("Plaintiffs do not seek a contempt ruling against Defendants."); cf. Labor/Cmty. Strategy Ctr. v. L.A. Cty. Metro. Transp. Auth. , 564 F.3d 1115, 1123 (9th Cir. 2009) (moving party in motion for contempt must show alleged party in contempt violated court order by clear and convincing evidence). Plaintiffs' motion asserts breach of contract and seeks enforcement of the Agreement.

The Court therefore will apply the preponderance of the evidence standard to Plaintiffs' motion to enforce.

B. Substantial Compliance

"Like terms in a contract, distinct provisions of consent decrees are independent obligations, each of which must be satisfied before there can be a finding of substantial compliance." Rouser v. White , 825 F.3d 1076, 1081 (9th Cir. 2016). "Substantial compliance" means more than "taking significant steps toward compliance" with a consent decree. Id. at 1082. In California, "a party is deemed to have substantially complied with an obligation only where any deviation is ‘unintentional and so minor or trivial as not substantially to defeat the object which the parties intend to accomplish.’ " Id. (quoting Wells Benz, Inc. v. U.S. for Use of Mercury Elec. Co. , 333 F.2d 89, 92 (9th Cir. 1964) (citation and some quotation marks omitted)). "This standard doesn't require perfection.... Deviations are permitted so long as they don't defeat the object of the decree." Id. (citation omitted).

Defendants contend that if Plaintiffs satisfy their burden to show breach of the Agreement, the burden then shifts to the government to demonstrate that it substantially complied with the Agreement. Substantial compliance with a court order, however, is typically a "defense to an action for civil contempt." Balla v. Idaho State Bd. of Corr. , 869 F.2d 461, 466 (9th Cir. 1989) (emphasis added) (citation omitted). As discussed above, Plaintiffs do not bring a civil contempt action.

Nonetheless, Plaintiffs appear to agree that they must show Defendants "have not demonstrated ‘substantial compliance’ as required by Paragraph 30 of the Flores Agreement." Pl. Supp. at 24 ("The appropriate governing standard is substantial compliance by a preponderance of the evidence."); cf. Jeff D. v. Otter , 643 F.3d 278, 283–84 (9th Cir. 2011) ("Because consent decrees have many of the attributes of ordinary contracts [and] ... should be construed basically as contracts, the doctrine of substantial compliance, or substantial performance, may be employed.")

(internal citation and quotation marks omitted). Indeed, as Plaintiffs point out, there is a particular provision of the Agreement that explicitly bears on the "substantial compliance" inquiry. See Agreement ¶ 30 ("the Coordinator shall state to the court whether or not the INS is in substantial compliance with the terms of this Agreement") [Doc. # 101 at 8].

As such, the Court will apply the preponderance of the evidence standard to the issue of whether Plaintiffs have demonstrated that Defendants have failed to substantially comply with certain provisions of the Agreement.

III.EVIDENTIARY OBJECTIONS AND REQUEST FOR JUDICIAL NOTICE

Plaintiffs interpose no evidentiary objections, arguing instead that Defendants' evidence presents no genuine dispute of material facts that would require live in-court testimony in an evidentiary hearing. Defendants raise numerous...