Case 2:12-cv-00700-DSF-RZ Document 11

Filed 02/23/12 Page 1 of 29 Page ID #:148

1 2 3 4 5 6 7 8 9

ANDR BIROTTE JR. United States Attorney LEON W. WEIDMAN Assistant United States Attorney Chief, Civil Division ROBERT I. LESTER (CBN 116429) Assistant United States Attorney 300 North Los Angeles Street Room 7516 Los Angeles, California 90012 Phone: (213) 894-2464 Fax: (213) 894-7819 robert.lester@usdoj.gov Attorneys for Defendants UNITED STATES DISTRICT COURT

10 FOR THE CENTRAL DISTRICT OF CALIFORNIA 11 WESTERN DIVISION 12 JOHN PAUL MORROW; and CHRISTIAN DAVIS, 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ) ) Plaintiffs, ) ) v. ) ) UNITED STATES PAROLE COMMISSION; ) ISAAC FULWOOD, JR., in his official ) capacity; CRANSTON J. MITCHELL, in his ) official capacity; PATRICIA K. CUSHWA, ) in her official capacity; J. PATRICIA ) WILSON SMOOT, in her official capacity; ) and the UNITED STATES OF AMERICA, ) ) Defendants. ) ________________________________________ ) No. CV 12-0700-DSF(RZx) OPPOSITION OF DEFENDANTS TO MOTION OF PLAINTIFFS FOR PRELIMINARY INJUNCTION.

DATE: TIME: CTRM:

March 19, 2012 1:30 p.m. Hon. Dale S. Fischer

Case 2:12-cv-00700-DSF-RZ Document 11

Filed 02/23/12 Page 2 of 29 Page ID #:149

1 2 I. 3 4 II. 5 A. 6 B. 7 8 FACTS

TABLE OF CONTENTS INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . 1

. . . . . . . . . . . . . . . . . . . . . . . . . . 1 Plaintiff John Paul Morrow . . . . . . . . . . . . . 1

Plaintiff Christian Davis . . . . . . . . . . . . . . 3

III. THE APPLICABLE STATUE AND REGULATION . . . . . . . . . . . 4 9 A. 10 B. 11 Videoconferencing 12 IV. 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 V. CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . i 25 C. 5. 3. 4. b. THE COURT SHOULD DENY PLAINTIFFS MOTION FOR A PRELIMINARY INJUNCTION . . . . . . . . . . . . . . . . . . 7 A. B. Preliminary Injunction Standard . . . . . . . . . . . 7 Plaintiffs Are Not Likely To Succeed On The Merits 1. 2. Applicable Standard For The Merits Plaintiffs Claim Under The APA Fails a. . 9 . . . . . . . . . . . . . . . . . 5 Background On The Commissions Use Of The Statute And The Regulation . . . . . . . . . . . 4

. . . . . 9 . . . . . 9

The Commissions Administrative Remedy System . . . . . . . . . . . . . . . . . 10 11 12

There Has Been No Final Agency Action .

Plaintiffs Claim Is Speculative And Not Ripe

18 U.S.C. 4208(e) Does Not Require That The Prisoner Be Allowed To Appear In Person Before The Hearing Examiner . . . . . . . . . . . . . 13 The Commissions Decision To Use VideoConferencing Is A Reasonable Construction Of The Parole Act . . . . . . . . . . . . . . . . . 22 . . . . . 24

Balancing The Competing Claims Of Injury

Case 2:12-cv-00700-DSF-RZ Document 11

Filed 02/23/12 Page 3 of 29 Page ID #:150

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

TABLE OF AUTHORITIES CASES Americopters, LLC v. FAA, 441 F.3d 726 (9th Cir. 2006) ........................... In re Cavanaugh, 306 F.3d 726 (9th Cir. 2002) ...........................

12 15

Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984) 17, 20 DISH Network Corp. v. FCC, 653 F.3d 771 (9th Cir. 2011) ............................ Idaho Sporting Congress, Inc. v. Rittenhouse, 305 F.3d 957 (9th Cir. 2002) ........................... Johnson v. Reilly, 349 F.3d 1149 (9th Cir. 2003) ........................... Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) ...... Merritt-Chapman & Scott Corp. v. United States, 528 F.2d 1392 (Ct. Cl. 1976) ........................... Paul Revere Insurance Group v. United States, 500 F.3d 957 (9th Cir. 2007) ........................... Putnam Family Partnership v. City of Yucaipa, --- F.3d --- 2012 WL 516063 (9th Cir. Feb. 17, 2012).. Ruviwat v. Smith, 701 F.2d 844 (9th Cir. 1983) ........................... Terrell v. United States, 564 F.3d 442 (6th Cir. 2009) ................... 8 10 9 17 20 14

17 10

17, 18, 20 15

United States v. Horvath, 492 F.3d 1075 (9th Cir. 2007) .......................... United States v. Thompson, 599 F.3d 595 (7th Cir. 2010) .......................

20, 21 10

Weinstein v. United Sates Parole Commission, 902 F.3d 1451 (9th Cir. 1990) ..........................

ii

Case 2:12-cv-00700-DSF-RZ Document 11

Filed 02/23/12 Page 4 of 29 Page ID #:151

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16

Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7, 29 S.Ct. 365, 172 L.Ed.2d 249 (2008) ....

8, 24 10

Wooton v. United States Parole Commission, 2010 WL 2595341 (C.D. Cal. June 22, 2010) ..............

Wooton v. United States Parole Commission, 2010 WL 2595341 (C.D. Cal. June 22, 2010) ............... 10 Parke-Bernet Galleries, Inc. v. Franklyn, 31 A.D.2d 276, 297 N.Y.S.2d 151 (N.Y. App. Div. 1969) .. STATUTES AND REGULATIONS 5 U.S.C. 704 ............................................. 10 16 16 16 19

5 U.S.C. 7118(3) .......................................... 8 U.S.C. 1324b(e)(1).................................. 10 U.S.C. 1185(a)(3).....................................

Parole Act ............................................... passim 22 U.S.C. 4136(2) ......................................... 28 U.S.C. 1361 .......................................... 42 U.S.C. 1997e(a) ...................................... 20 C.F.R. 404.936(c) .................................. 16 9 11 14

17 28 C.F.R. 2.23-2.24 & 2.26 ....................... 18 28 C.F.R. 541.7(d)(1) 19 20 21 22 23 24 25 26 27 28 iii 69 F.R. 5273 70 F.R. 19262 ........................................... 5, 6 6 .................................... 14 10, 11, 21

...............................................

Case 2:12-cv-00700-DSF-RZ Document 11

Filed 02/23/12 Page 5 of 29 Page ID #:152

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 A.

MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION A federal regulation, 28 C.F.R. 2.25, authorizes hearing examiners of the United States Parole Commission (Commission) to conduct parole hearings by videoconference with federal prisoners. The regulation is based on 18 U.S.C. 4208(e),

which entitles a prisoner to appear at his or her parole determination proceeding. Plaintiffs request this Court to This Court

expand the term appear to mean appear in person.

should reject that request because, among other things, Plaintiffs have failed to exhaust their administrative remedies, and the Commissions construction of the governing statute is reasonable.1 II. FACTS Plaintiff John Paul Morrow Morrow is serving a life sentence imposed by the United States Army on September 16, 1992. Exhibit A. He had been

convicted of, among other things, murder.

Morrow was later

transferred from the custody of the Army to the custody of the Federal Bureau of Prisons (BOP). On February 25, 2002,

a hearing examiner of the Commission conducted Morrows initial parole hearing in person. Exhibit C. The Commission decided to

Based on the circumstances described by Jessica Price, counsel for Plaintiffs, in her declaration, which are substantially accurate, Defendants do not contend that Plaintiffs should be deemed to have failed to comply with Local Rule 7-3. 1

Case 2:12-cv-00700-DSF-RZ Document 11

Filed 02/23/12 Page 6 of 29 Page ID #:153

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

continue the case so that it could obtain a current psychological report on Morrow from the BOP. Exhibit D.

On July 16, 2002, after receiving the requested report, the Commission conducted another hearing in person. Exhibit E.

The hearing examiner recommended that Morrow be granted parole after Morrow served 300 months. Id. Agreeing with the hearing

examiner, the Commission granted Morrow a parole date of March 17, 2017. Exhibit F. Morrow appealed the decision to the

Commissions National Appeals Board (Board), which affirmed the decision on October 29, 2002. Exhibit G.

On May 25, 2004, the Commission conducted an in-person interim hearing. Exhibit H. The Commission decided not to Exhibit I. The Board affirmed

change its previous decision. the decision. Exhibit K.

On May 3, 2006, the Commission conducted another interim in-person hearing. Exhibit L. On May 16, 2006, the Commission Exhibit M. The Board

ordered no change to the parole date. affirmed the decision. Exhibit N.

On March 25, 2008, Morrow received an interim hearing by video conference. Exhibit O. On April 2, 2008, the Commission

reaffirmed the presumptive parole date of March 17, 2017. Exhibit P. Although the Commission advised Morrow that he could

appeal to the Board, he did not file an appeal. Morrows most recent interim hearing was conducted on March 18, 2010, by video conference. Exhibit Q. Based on

Morrows accomplishments, the hearing examiner recommended that Morrow receive a 12-month credit. Id. On May 19, 2010, the

Commission adopted that recommendation, advancing Morrows 2

Case 2:12-cv-00700-DSF-RZ Document 11

Filed 02/23/12 Page 7 of 29 Page ID #:154

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

presumptive parole date to March 17, 2016.

Exhibit R.

The

Commission informed Morrow that his next interim hearing would be held in March 2012. Id. The Commission also advised him that

its decision was appealable to the Board (id.), but Morrow did not appeal. Morrows next interim hearing date is scheduled to be conducted in March 2012, by video conference. B. Plaintiff Christian Davis Davis is serving a life sentence imposed by the United States Army on January 27, 1993. convicted of murder. Id. Exhibit T. He, too, had been Exhibit S.

Davis was later transferred from the On May 30, 2002,

custody of the Army to the custody of the BOP.

a hearing examiner of the Commission conducted Morrows initial parole hearing in person. Exhibit V. Ultimately, the Commission

set a parole date of May 21, 2016, after the service of 288 months. Exhibit X. Though the Commission advised Davis of his

right to appeal to the Board (id.), Davis did not appeal the decision. On March 30, 2004, the Commission conducted an in-person interim hearing. Exhibit Y. The Commission decided not to Exhibit Z. The Board affirmed

change its previous decision. that decision. Exhibit BB.

On March 2, 2006, the Commission conducted another interim in-person hearing. Exhibit CC. The hearing examiner recommended Id. Ultimately, however,

that Davis be given 18-months credit.

the Commission decided not to change its previous decision. Exhibit DD. Though the Commission advised Davis of his right

to appeal to the Board (id.), he did not file an appeal. 3

Case 2:12-cv-00700-DSF-RZ Document 11

Filed 02/23/12 Page 8 of 29 Page ID #:155

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 A.

On March 25, 2008, Davis received another interim hearing by video conference. Exhibit EE. On September 23, 2008, the Exhibit

Commission kept the presumptive parole date in place. FF.

Although the Commission advised Davis of his right to appeal

to the Board (id.), he did not file an appeal. Davis most recent interim hearing was conducted on March 18, 2010 by video conference. Exhibit GG. The hearing examiner Id.

recommended a six-month credit for Davis achievements.

Ultimately, however, the Commission decided not to change its previous decision. Exhibit HH. Although the Commission advised

Davis of his right to appeal to the Board (id.), he did not file an appeal. Davis next interim hearing date is scheduled to be conducted in March 2012, by video conference. III. THE APPLICABLE STATUE AND REGULATION The Statute And The Regulation The relevant statute provides: The prisoner shall be Exhibit II.

allowed to appear and testify on his own behalf at the parole determination proceeding. 18 U.S.C. 4208(e).2

The relevant federal regulation provides: The Commission may conduct a parole determination hearing (including a rescission This provision was enacted in section 2 of the Parole Commission and Reorganization Act, Pub.L. 94-233, Mar. 15, 1976, 90 Stat. 219. The Parole Act was repealed by the Comprehensive Crime Control Act of 1984. See Pub.L. 98-473, Title II, 218(a)(5), 98 Stat. 1837, 2027, although parts of the Parole Act continue to apply as to convictions obtained prior to November 1, 1987. 4
2

Case 2:12-cv-00700-DSF-RZ Document 11

Filed 02/23/12 Page 9 of 29 Page ID #:156

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

hearing), a probable cause hearing, and an institutional revocation hearing, by a videoconference between the hearing examiner and the prisoner or releasee. 28 C.F.R. 2.25.3 B. Background On The Commissions Use Of Videoconferencing Until 2004, all parole release hearings were conducted onsite and in-person at the federal penitentiary where the prisoner was held. Early that year, the Commission began a pilot project

in which hearing examiners conducted some release hearings through a videoconference with the prisoner. The Commission

promulgated an interim rule at 28 C.F.R. 2.25 to give the public notice that it would be carrying out the pilot project. See 69 FR 5273-75 (Feb. 4, 2004). As the Commission explained, it was looking for ways to reduce travel costs and conserve the time of its hearing examiners, and saw hearings by videoconference as a means of achieving these ends. 69 FR 5273. The Commission noted its

expectation that videoconference technology had improved to the point that a prisoners ability to effectively participate in the hearing would not be diminished by the use of videoconferencing. Id. The Commission also noted that conducting hearings by

videoconference would be especially cost-effective for hearings that would otherwise have to be conducted at facilities that were difficult to reach. Id. By the end of 2004, the Commission had

The Commission promulgated the regulation pursuant to 18 U.S.C. 4203(a)(1). 5

Case 2:12-cv-00700-DSF-RZ Document 11

Filed 02/23/12 Page 10 of 29 Page ID #:157

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

conducted over 100 hearings through videoconferencing, and its determined that the technology worked well and did not diminish the prisoners ability to effectively participate in hearings. See 70 FR 19262 (Apr. 13, 2005). In February 2004, the Commission promulgated the videoconference regulation, stating that it was carrying out a pilot project to study the feasibility of conducting parole release hearings through video conferences between the hearing examiner (who was located in Washington, D.C.), and the prisoner (who was located at a prison in the United States). 5273. 69 Fed.Reg.

The Commission reasoned that the use of videoconferencing

would conserve its limited financial resources and the time expended by its hearing examiners, without detracting from the prisoners opportunity for a fair parole hearing. Id. In April

2005, the Commission observed that the pilot program had worked well. Indeed, [t]he Commissions experience is that the

prisoners ability to effectively participate in the hearing has not been diminished by the use of the videoconference procedure. 70 Fed.Reg. 19262. A parole hearing by videoconference does not commence unless the hearing examiner is convinced that the technology is working properly. Declaration of Stephen J. Husk 4, attached as The hearing examiner is able to assess the demeanor The camera has a zoom

Exhibit JJ.

of the prisoner during the hearing.

feature; the hearing examiner can turn up the volume on the videoconference unit. The hearing examiner can observe facial Husk Decl.

expressions and gauge the prisoners tone of voice. 5.

The BOP case manager can fax to the hearing examiner any 6

Case 2:12-cv-00700-DSF-RZ Document 11

Filed 02/23/12 Page 11 of 29 Page ID #:158

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

documents that are submitted during the hearing.

Husk Decl. 6.

Otherwise, the prisoner can make an offer of proof and, if appropriate, the hearing examiner can continue the hearing. A hearing examiner does not make the final decision as to whether a particular prisoner will be released on parole. The

Commissioners themselves, who are the ultimate decision-makers in this process, neither participate in the videotaped hearings nor observe them when they are taking place. Instead, they review

the hearing examiners written summary and the supporting materials submitted to them. The Commissioners also have the

option of reviewing an audio recording that is kept of the hearing. Husk Dec. 8.

The Commission conducts hearings at 67 BOP facilities throughout the country. The Commission currently provides in-

person hearings at 32 BOP institutions and videoconference hearings at 35 BOP institutions. Husk Decl. 9. Conducting

many of the parole hearings by videoconference saves a considerable amount of money for the Commission, and conserves the time of hearing examiners, particularly with respect to BOP facilities that are difficult to reach. IV. THE COURT SHOULD DENY PLAINTIFFS MOTION FOR A PRELIMINARY INJUNCTION A. Preliminary Injunction Standard A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in 7 Husk Decl. 9-12.

Case 2:12-cv-00700-DSF-RZ Document 11

Filed 02/23/12 Page 12 of 29 Page ID #:159

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest. Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7, 20, 29 S.Ct. 365, 172 L.Ed.2d 249 (2008). If the plaintiff does

not satisfy his burden of establishing the first element, the court need not consider the remaining three. Corp. v. FCC, 653 F.3d 771, 777 (9th Cir. 2011). In Winter, the Supreme Court emphasized that a preliminary injunction may issue only if the plaintiff demonstrates that irreparable injury is likely in the absence of an injunction. 555 U.S. at 22 (emph. in original). A preliminary injunction may DISH Network

not issue based only on a possibility of irreparable harm; it is an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief. Id.

The fact that the defendant is not conducting a new type of activity with completely unknown effects . . . is pertinent as well. Id. at 23.

Additionally, the district court must balance the competing claims of injury . . .. Id. at 24.

Finally, an application for preliminary injunction is disfavored where the granting of the preliminary injunction would give the plaintiff substantially the relief it would obtain after a trial on the merits. William W. Schwarzer, A. Wallace Tashima

& James M. Wagstaffe, Federal Civil Procedure Before Trial 13:79.10 (The Rutter Group 2011).

Case 2:12-cv-00700-DSF-RZ Document 11

Filed 02/23/12 Page 13 of 29 Page ID #:160

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

B.

Plaintiffs Are Not Likely To Succeed On The Merits 1. Applicable Standard For The Merits

Plaintiffs purport to assert claims for relief for violation of the Parole Act and seek review under the Administrative Procedure Act (APA). Their case, however, sounds more

properly in mandamus, because Plaintiffs allege that the Commission is denying them a right provided by statute. Johnson v. Reilly, 349 F.3d 1149, 1153 (9th Cir. 2003) (petitioners claim that the Commission denied him his legally mandated speedy parole revocation hearing following his arrest on a parole violator warrant sounds more properly in mandamus than habeas). Pursuant to 28 U.S.C. 1361, district courts have original jurisdiction of any action in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff. 28 U.S.C. 1361.

Mandamus is available only when (1) the plaintiffs claim is clear and certain; (2) the officials duty is nondiscretionary, ministerial and so plainly prescribed as to be free from doubt; and (3) no other adequate remedy is available. 349 F.3d at 1154. Johnson,

Even if this test for mandamus relief is met, Id.

a district court has discretion to deny relief. 2. Plaintiffs Claim Under The APA Fails

To the extent that the APA arguably applies to this case, the complaint should be dismissed for failure to exhaust administrative remedies. The APA provides for judicial review

only of [a]gency action made reviewable by statute and final agency action for which there is no other adequate remedy in a 9

Case 2:12-cv-00700-DSF-RZ Document 11

Filed 02/23/12 Page 14 of 29 Page ID #:161

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

court.

5 U.S.C. 704.

The APA requires that plaintiffs

exhaust available administrative remedies before bringing their grievances to federal court. Idaho Sporting Congress, Inc. v.

Rittenhouse, 305 F.3d 957, 965 (9th Cir. 2002); see also Weinstein v. United Sates Parole Commission, 902 F.3d 1451, 1453 (9th Cir. 1990) (federal prisoners are required to exhaust their administrative remedies prior to seeking federal court review of a Parole Commission decision). Use of available administrative remedies conserves the courts time because of the possibility that the relief applied for may be granted at the administrative level. Smith, 701 F.2d 844, 845 (9th Cir. 1983). Ruviwat v.

Moreover, it allows

the administrative agency an opportunity to correct errors occurring in the course of administrative proceedings. Id.

Thus, for example, this Court dismissed a habeas petition containing the identical district court challenge to videotaped parole hearing, because the prisoner had failed to appeal to the Board. Wooton v. United States Parole Commission,

2010 WL 2682387 (C.D. Cal.) (unpublished report and recommendation of Magistrate Judge Rosalyn M. Chapman), adopted in 2010 WL 2595341 (C.D. Cal. June 22, 2010) (unpublished order of District Judge Valerie Baker Fairbank). a. The Commissions Administrative Remedy System

The Commission regulations provide an administrative process to a disappointed prisoner, starting with the hearing examiner,4

The hearing examiner has the authority, among other things, to determine the location of a revocation hearing. 28 C.F.R. 2.23(a). 10

Case 2:12-cv-00700-DSF-RZ Document 11

Filed 02/23/12 Page 15 of 29 Page ID #:162

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

and ending with the National Appeals Board. 4215(a); 28 C.F.R. 2.23-2.24 & 2.26.5

See 18 U.S.C. However, as set forth

above, neither plaintiff filed any appeal with regard to the decisions arising out of the videoconferenced proceedings. Plaintiffs should not be excused from the exhaustion requirement, given that: (1) Plaintiffs were prominently informed of their right to appeal; and (2) Plaintiffs had already exhibited familiarity with the administrative appeals process.6 See also 42 U.S.C. 1997e(a) (prisoners are required to exhaust such administrative remedies as are available). Nor should they

be excused because exhaustion now as to the 2008 and 2010 proceedings would be futile. Even now the administrative route Moreover, the

is not necessarily foreclosed to Plaintiffs.7

Commission still conducts some parole hearings in person.5 b. There Has Been No Final Agency Action

Plaintiffs have failed to identify a final agency action. First, although the Commission has promulgated a regulation

The Board must issue a decision within 60 days of receipt of the appeal. 18 U.S.C. 4215(b); 28 C.F.R. 2.26(c). Decisions of the Board are final. 28 C.F.R. 2.26(c). Morrow had previously filed appeals arising out of inperson hearings to the Board; Davis filed one appeal arising out of an in-person hearing to the Board. The Board can review even tardy appeals in the interest of justice. See USPC Rules and Procedures Manual 2.26-09 (Late Appeals) ([L]ate appeals may be accepted for good cause in the discretion of the National Appeals Board.). Therefore, administrative appeals may still be available to Plaintiffs. Husk Decl. 9 (The Commission currently provides inperson hearings at 32 [BOP] institutions and video conference hearings at 35 institutions.) 11
5 7 6

Case 2:12-cv-00700-DSF-RZ Document 11

Filed 02/23/12 Page 16 of 29 Page ID #:163

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

allowing for parole hearings to be conducted by videoconference, the rule does not revoke the authority of the Commission to conduct any given parole hearing in person. accompanying it. See n. 8 & text

And, with respect to these Plaintiffs, neither That

appealed the absence of an in-person hearing to the Board. someone at the Commission determined that any given parole

hearing is scheduled to be conducted by video-tape is hardly a final agency action as contemplated by the APA. Because there

is no final agency action for review, the APA bars the district court from hearing the case for lack of jurisdiction. E.g.,

Americopters, LLC v. FAA, 441 F.3d 726, 735 (9th Cir. 2006). Therefore, based on the foregoing, the APA bars Plaintiffs from proceeding with this case. 3. Plaintiffs Claim Is Speculative And Not Ripe Plaintiffs

Plaintiffs claim is speculative and not ripe.

devote a lot of attention to their argument that it is less advantageous for them (for intangible, hard to describe reasons) if parole hearings are conducted by video conference instead of in person. That proposition is debatable, and is a topic

suitable only for Congress, not for a court conducting statutory analysis. Moreover, even if we assume, arguendo, that an in-

person hearing would likely be more favorable to a prisoner than one conducted by videoconference, even Plaintiffs do not argue that the result of video conference hearings would inevitably result in another denial of parole. The Commission may well

grant them parole as a result of the next videoconferenced hearing, and they would no longer have standing to challenge the Commissions videoconference regulation. 12

Case 2:12-cv-00700-DSF-RZ Document 11

Filed 02/23/12 Page 17 of 29 Page ID #:164

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Indeed, there is ample basis, even on this record, to reject the notion that an in-person hearing is, by definition, more advantageous for a prisoner than one by video-tape. In 2010,

a hearing examiner recommended -- after conducting the hearings by video conference -- that Morrow be granted a 12-month credit for his accomplishments. Exhibit Q. And in a video conferenced

hearing the same day, the hearing examiner recommended that Davis be granted a six-month credit for his accomplishments. GG.6 Exhibit

By contrast, for the in-person hearings that Morrow had

been afforded in 2004 and 2006, the hearing examiners did not recommend that he be granted any relief. See Exhibits I and M.

Davis had some success with in-person hearings; although in 2004, the hearing examiner did not recommend that Davis be afforded any relief (Exhibit Z), the one in 2006 did recommend that Davis receive an 18-month credit for his accomplishments (Exhibit CC). The point is that Plaintiffs should not be permitted to sue the Parole Commission before the March 2012 parole hearings occur - much less bring a motion for preliminary injunction. Their claims simply are not ripe. For that reason alone, the

motion for preliminary injunction should be denied. 4. 18 U.S.C. 4208(e) Does Not Require That The Prisoner Be Allowed To Appear In Person Before The Hearing Examiner Even addressing the merits of Plaintiffs arguments, their claim fails. Section 4208(e) of Title 18 requires that a

Ultimately, the Commission adopted the recommendation as to Morrow (Exhibit R), but declined to adopt the recommendation as to Davis (Exhibit HH). 13

Case 2:12-cv-00700-DSF-RZ Document 11

Filed 02/23/12 Page 18 of 29 Page ID #:165

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

prisoner be allowed to appear and testify on his own behalf at the parole determination proceeding. The substantive question

raised by this petition is whether appear has its ordinary meaning of be visible or whether, instead, it should be read to mean be physically present; i.e., appear in person. If the

ordinary meaning applies, there is no question that Section 4208(e) is satisfied here: Plaintiffs will be visible through

videoconferencing, and will be seen and heard by the Commission in that fashion while giving testimony. It is not out of the

ordinary for administrative agencies to have parties appear by teleconferencing.7 Plaintiffs, however, argue that appear must be given the special meanings of either be physically present or appear in person. Therefore, they contend, their Section 4208(e) right to

appear will be violated when the Commission conducts this hearing (at least their fifth, apparently) by videoconference. This argument ignores the plain meaning of Section 4208(e) by adding words not found in the statute. In interpreting a statute, [the court must] first look to the plain meaning of its text. See Paul Revere Insurance Group The plain

v. United States, 500 F.3d 957, 962 (9th Cir. 2007).

meaning of appear (when unadorned by the modifier in person) is to become or be visible. That is true today, and it no less

See, e.g., 20 C.F.R. 404.936(c)(hearings before a Social Security Administration administrative law judge); 28 C.F.R. 541.7(d)(1) & 541.8(e)(1) (inmate may appear at disciplinary hearing either in person or electronically [for example, by video or telephone conferencing] at the discretion of the hearing officer). 14

Case 2:12-cv-00700-DSF-RZ Document 11

Filed 02/23/12 Page 19 of 29 Page ID #:166

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

true in 1976 when Section 4208(e) was enacted.

See The Oxford

Dictionary and Thesaurus (1996) 62; The Random House Dictionary of the English Language, The Unabridged Edition (1969) 72; Websters Third New International Dictionary (1963) 103 (a: to come into view (as from a distance or place of concealment): become visible; . . . b: to be in sight: be visible). In order for appear to be synonymous with physical presence, the words in person must follow. But such a reading

of Section 4208(e) would be impermissible, because a court may not add to the statute terms that Congress omitted. Cavanaugh, 306 F.3d 726, 738 (9th Cir. 2002). In re

Indeed, in a

strikingly similar situation, the Ninth Circuit explained that it would not insert the word personally or directly into a statutory requirement that a statement be submitted by such party . . . to a judge: [S]ubmitted is not necessarily the equivalent of spoken in the presence of or handed to. Nor - as we have noted above -

- does the statute require that a statement must be submitted directly or personally to the judge. [W]e may not add to the

statute terms that Congress omitted. United States v. Horvath, 492 F.3d 1075, 1081 (9th Cir. 2007). Here, as in Horvath, the unmodified word cannot bear the weight Plaintiffs construction places upon it. Moreover, it is clear that Congress knew how to bestow the right to appear in person when it meant to. To give just a few

examples from statutes enacted not long after Section 4208(e): 15

Case 2:12-cv-00700-DSF-RZ Document 11

Filed 02/23/12 Page 20 of 29 Page ID #:167

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

5 U.S.C. 7118(3), enacted in 1978, provides labor organizations or agencies the right . . . to appear in person or otherwise and give testimony.

8 U.S.C. 1324b(e)(1), as added on November 6, 1986, Pub.L. 99-603, Title I, 102(a), 100 Stat. 3374,

provides that any person accused in a complaint of engaging in an unfair-immigration practices shall have the right . . . to appear in person or otherwise and give testimony. 10 U.S.C. 1185(a)(3), enacted in 1980, provides that any officer required to show cause for retention on active duty shall be allowed to appear in person.8 (Emphasis added in each). If Plaintiffs theory were correct, all of the in person language in those statutes was surplusage, and the or otherwise language in Section 1342b(e)(1) would be gibberish. Any theory

that nullifies the words Congress writes, while giving effect to words Congress omitted, is not statutory interpretation but statutory interpolation. The Court must reject that approach.

Plaintiffs offer no authority that undermines the plain and ordinary meaning of appear -- that is, to be or become visible. Even if Plaintiffs were able to establish that

appear is ambiguous and could mean either be visible or be physically present, they would still lose on the merits. Although the government contends that appear unambiguously

Congress also knew how to grant the right to be present when it wished to. See, e.g., 22 U.S.C. 4136(2). 16

Case 2:12-cv-00700-DSF-RZ Document 11

Filed 02/23/12 Page 21 of 29 Page ID #:168

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

means be visible, any ambiguity must be resolved in favor of the Commissions interpretation under Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). Courts will defer to an agencys

interpretation of a statute that it is charged with implementing if the statute is ambiguous and the agencys interpretation is reasonable. Putnam Family Partnership v. City of Yucaipa,

- F.3d ---, 2012 WL 516063, *6 (9th Cir. Feb. 17, 2012). A statute is ambiguous if Congress has no directly spoken to the precise question at issue. Id.

Plaintiffs do not explain why the Court should constrain the meaning of the phrase appear . . . at the parole determination proceeding" in 18 U.S.C. 4208(b) to mean only what they argue it commonly meant in 1976. Under Plaintiffs reasoning, for

example, the Fourth Amendments use of the term search could not possibly include law enforcement actions that use modern technology (such as wiretapping), because there was no such thing as wiretapping in 1791 - yet that is not the law. See, e.g.,

Katz v. United States, 389 U.S. 347, 353, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) (The Governments activities in electronically listening to and recording the petitioners words [while he was using a telephone booth] constituted a search and seizure within the meaning of the Fourth Amendment.) Plaintiffs rely heavily on Terrell v. United States, 564 F.3d 442 (6th Cir. 2009). Terrell is the only published opinion

directly addressing how to interpret 18 U.S.C. 4208(e), and in it that court ruled in favor of the prisoners position. 443, 449-54. Id. at

In addition to that decision not being binding on 17

Case 2:12-cv-00700-DSF-RZ Document 11

Filed 02/23/12 Page 22 of 29 Page ID #:169

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

this Court - and even assuming, arguendo, that the courts methodology was correct -- that decision does not compel, or even suggest, a ruling in Plaintiffs favor, because it rests on a critical factual error. Indeed, the opinion makes clear that if

the Sixth Circuit had realized its factual mistake, it would have ruled in favor of the government. Terrell rests entirely on the unsubstantiated and incorrect assertion that [a]t the time appear pursuant to 18 U.S.C. 4208(e) was enacted into law [1976], videoconferencing did not exist. 564 F.3d at 449. That this factual premise is the

linchpin of the decision is clear because the court went on to explain that [s]ubsequent technological developments made appear ambiguous because videoconferencing offered an alternate to in-person hearing in which all participating persons would still be visible to and be able to interact with each other. Id. And, the court conceded, [i]f the statute is ambiguous, Id. But the

then we defer to the agencys interpretation.

court held there was no ambiguity because [a]t the time the statute was enacted, [appear] unambiguously meant that the prisoner appeared in person . . . because no technology existed to project the prisoners visage into the room with the hearing examiner. Id. at 451 (emphasis added).

The flaw with this syllogism is that videoconferencing did exist in 1976, and had in fact been used for hearings in which all participating persons would still be visible to and be able to interact with each other. The Sixth Circuit error

seems to stem from the fact that the term videoconferencing postdates Section 4208(e)s enactment. 18 But both the concept and

Case 2:12-cv-00700-DSF-RZ Document 11

Filed 02/23/12 Page 23 of 29 Page ID #:170

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

the technology itself existed in 1976, albeit under the name videophone or picturephone. AT&T and Bell Laboratories, at great expense, developed videoconferencing technology under the trademarked name Picturephone. Picturephones debuted at the Worlds Fair in

1964, and soon entered commercial use, receiving wide-spread public attention, including on the front page of the New York Times and in the magazines Life and Popular Science.9 Videoconferencing (under the name Picturephones) was not merely a matter of public excitement, it was a technology viewed as important to the development of the justice system. For

example, in 1969, a court in New York noted that [i]t may be that progress in communications, the development of technological devices such as the videophone, will ultimately reach a point where it may be said that a foreign domiciliary is physically present in New York for all intents and purposes. Parke-Bernet

Galleries, Inc. v. Franklyn, 31 A.D.2d 276, 277, 297 N.Y.S.2d 151 (N.Y. App. Div. 1969).10 In 1970, commercial Picturephone See http://www.corp.att.com/

service debuted in Pittsburgh.

attlabs/reputation/timeline/70picture.html.

Donald Janson, Picture-Telephone service is started in Pittsburgh, New York Times (July 1, 1970) 1; W.S. Bacon, Amazing New Picture Phone: A step closer to in person, Popular Science (June 1968) 46, available at http://books.google.com/books?id=mykDAAAAMBAJ&pg=PA46; Bell System introduces PICTUREPHONE service, Life Magazine (July 3, 1964) 97, available at http://books.google.com/books?id=nEEEAAAAMBAJ&pg=PA97. That decision was ultimately reversed, but not for any reason material to this case. 26 N.Y.2d 13, 256 N.E.2d 506 (1970). 19
10

Case 2:12-cv-00700-DSF-RZ Document 11

Filed 02/23/12 Page 24 of 29 Page ID #:171

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Most significantly, however, in January 1976 - three months before Section 4208(e) was enacted -- the United States Court of Claims issued a decision in which it prominently mentioned that it had participated in an experiment sponsored by the American Bar Association and the Federal Judicial Center and heard oral argument delivered by counsel in New York, New York, using Picturephone facilities provided by the American Telephone & Telegraph Company. Merritt-Chapman & Scott Corp. v. United It may well be that

States, 528 F.2d 1392, 1393 (Ct. Cl. 1976).

this experiment was on Congresss mind when it was considering how parole hearings might be conducted down the line; in any event, Congress certainly must have been aware of a technology universally heralded as the way of the future. Thus, the Sixth Circuits Terrell decision actually supports the Commissions position in this case, not Plaintiffs. That is

because the Sixth Circuit held that if videoconferencing had existed at the time Section 4208(e) passed (which it did), the statute would at best be ambiguous, and that any ambiguity would be resolved in favor of the Commission under Chevron. See Terrell, 564 F.3d at 449. Therefore Terrell, like common

sense and plain language, supports the idea that when a prisoner is visible, audible, and actively participating in a parole hearing, he has appeared for purposes of Section 4208(e). Plaintiffs also cite United States v. Thompson, 599 F.3d 595 (7th Cir. 2010), to support their position. However, the

Commissions parole determinations are clearly distinguishable from the supervised release revocation hearings in Thompson. In the former, the hearing examiner does not make the final 20

Case 2:12-cv-00700-DSF-RZ Document 11

Filed 02/23/12 Page 25 of 29 Page ID #:172

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

determination whether the inmate will be released, but rather performs an advisory function. 28 C,F.R. 2.23; Husk Decl. 8.

Thus, the prisoners right to appear and testify has never been understood to encompass a right to have face-to-face interaction with the ultimate decision-maker -- the Commissioners themselves. Rather, the right to appear at the proceeding is satisfied if the prisoners is provided an opportunity to be heard or allowed to

give oral testimony that is treated as part of the record on which the parole determination is based. In contrast, in supervised release revocation proceedings, the judge is both the hearing examiner and the ultimate decision-maker. In supervised release revocation cases

appearing before the court allows the defendant to plead his case personally to the judge who will decide whether to revoke supervised release and return him to prison. at 599 (emphasis in original). Thompson, 599 F.3d

In parole determinations,

no statute (or regulation) provides the prisoner the right to plead his case personally to the Commissioners. A prisoners exercise of his right to appear and testify . . . at the parole determination proceeding will not

entail testimony in the same room as the decision-maker, regardless of the respective locations of the prisoner and the hearing examiner at the time the testimony is given. Plaintiffs

major practical objection to the Commissions use of videoconferencing -- that it undermines a fact finders ability to assess demeanor and credibility -- ignores the fact that parole applicants were not entitled to appear in person before the

21

Case 2:12-cv-00700-DSF-RZ Document 11

Filed 02/23/12 Page 26 of 29 Page ID #:173

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

actual decision-maker even before the Commission adopted the videoconferencing method. Before the Commission adopted videoconferencing procedures, the hearing examiner, not the Commissioners, would typically travel to federal prisons to conduct parole hearings. Thus, the

prisoners right to appear and testify on his own behalf at the parole determination proceeding has never been understood to encompass a right to have face-to-face interaction with the ultimate decision-maker. Rather, the right to appear at the

proceeding is satisfied if the prisoner is allowed to give oral testimony that is treated as part of the record. Since the

physical absence of the ultimate decision-maker does not create a statutory violation, then the physical absence of the hearing examiner should not have that effect. 5. The Commissions Decision To Use Video-Conferencing Is A Reasonable Construction Of The Parole Act Plaintiffs argue that the notice provision of 18 U.S.C. 4208(b), which states that an inmate shall be provided with notice of the time and place of the proceeding, is difficult to reconcile with a video hearing that occurs in two locations. Plaintiffs are misguided. The parole determination proceeding The

occurs at the institution where the prisoner testifies.

institution is the principal locus of the proceeding, since all participants, except the hearing examiner, are located there. From the prisoners standpoint, he appear[s] . . . at the parole determination proceeding when he gives his testimony at the institution. 18 U.S.C. 4208(e).

22

Case 2:12-cv-00700-DSF-RZ Document 11

Filed 02/23/12 Page 27 of 29 Page ID #:174

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Plaintiffs also argue that, pursuant to 18 U.S.C. 4208(g), if parole is denied, a personal conference to explain the reasons for a denial shall be held, if feasible, strongly implies an in-person hearing. All that provision does is

to require that a direct communication between each prisoner and a representative of the Commission, if feasible, about the facts and circumstances surrounding that prisoners case; a videoconferenced hearing is not inconsistent with that requirement. Moreover, the language indicates that a personal Accordingly, if it

conference will only be held if feasible.

turns out that a personal conference cannot occur after a videoconference hearing, then the Commission is excused from conducting it due to the if feasible language. Therefore,

the statutory language does not exclude videoconference hearings. Finally, Plaintiffs argue that the requirement that the hearing be held at the institution, pursuant to 4208(b), cannot easily be reconciled with the concept of a video hearing where the examiner does not come to the prison. Before the use

of videoconferencing by the Commission, there was no inconsistency between (a) the fact that the Commissioners were physically absent from the hearing where the prisoner testified and (b) the conclusion that the parole determination proceeding nevertheless occurred at the institution where the testimony was given. Likewise, the physical absence of the hearing

examiner should not create an inconsistency.

23

Case 2:12-cv-00700-DSF-RZ Document 11

Filed 02/23/12 Page 28 of 29 Page ID #:175

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

C.

Balancing The Competing Claims Of Injury Plaintiffs have not shown that they would be irreparably

harmed if their parole hearings are conducted by videoconferencing. For example, Plaintiffs allege that the use

of videoconferencing left Plaintiffs effectively unable to present documents available in support of their claim . . .. Compl. 3. That is not true. They may produce any documents If they locate

they wish to the Commission before the hearing.

documents just prior to the hearing, the BOP case manager can fax the documents to the hearing examiner. Husk Decl. 6. Finally,

Plaintiffs could also make an offer of proof and seek a continuance of the hearing. Additionally, as set forth in the

Husk Declaration, the Commission has established that it uses the videoconference technology effectively and fairly. Indeed,

Morrow admits that a[a]t my last hearing [conduct by videoconference in 2010 . . . This was the most progress I have ever had during a hearing. Morrow Decl. 17.

As noted above, it may well be that the Commission would grant parole to Plaintiffs after videoconferenced hearings in March 2012. Issuing a preliminary injunction based only on a

possibility of irreparable harm is inconsistent with our characterization of injunctive relief as an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief. Winter, 555 U.S. at 22. Plaintiffs

have not demonstrated that they are likely to suffer irreparable harm before a decision on the merits can be rendered.

24

Case 2:12-cv-00700-DSF-RZ Document 11

Filed 02/23/12 Page 29 of 29 Page ID #:176

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

By contrast, as set forth above, the Commission will suffer an actual hardship if required to conduct all parole hearings in person. Conducting parole hearings by videoconference reduces

the Commissions travel costs and conserves the time of hearing examiners, particularly with respect to BOP facilities that are difficult to reach. Husk Decl. 9.11 Based on the foregoing,

the balance of hardships tips in favor of the Parole Commission. V. CONCLUSION In conclusion, this Court should deny Plaintiffs motion for preliminary injunction. DATE: February 23, 2012. Respectfully submitted, ANDR BIROTTE JR. United States Attorney LEON W. WEIDMAN Assistant United States Attorney Chief, Civil Division

/s/ Robert I. Lester ROBERT I. LESTER Assistant United States Attorney Attorneys for Defendants

Moreover, an injunction is not in the public interest. The public interest is in reducing federal expenditures at this time of fiscal crisis. The right to videoconference some parole hearings is consistent with the public interest. 25

11

Case 2:12-cv-00700-DSF-RZ Document 11-1

Filed 02/23/12 Page 1 of 84 Page ID #:177

1 2 3 4 5 6 7 8 9

ANDR BIROTTE JR. United States Attorney LEON W. WEIDMAN Assistant United States Attorney Chief, Civil Division ROBERT I. LESTER (CBN 116429) Assistant United States Attorney 300 North Los Angeles Street Room 7516 Los Angeles, California 90012 Phone: (213) 894-2464 Fax: (213) 894-7819 robert.lester@usdoj.gov Attorneys for Defendants UNITED STATES DISTRICT COURT

10 FOR THE CENTRAL DISTRICT OF CALIFORNIA 11 WESTERN DIVISION 12 JOHN PAUL MORROW; and CHRISTIAN DAVIS, 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ) ) Plaintiffs, ) ) v. ) ) UNITED STATES PAROLE COMMISSION; ) ISAAC FULWOOD, JR., in his official ) capacity; CRANSTON J. MITCHELL, in his ) official capacity; PATRICIA K. CUSHWA, ) in her official capacity; J. PATRICIA ) WILSON SMOOT, in her official capacity; ) and the UNITED STATES OF AMERICA, ) ) Defendants. ) ________________________________________ ) No. CV 12-0700-DSF(RZx) EXHIBITS TO OPPOSITION OF DEFENDANTS TO MOTION OF PLAINTIFFS FOR PRELIMINARY INJUNCTION

DATE: TIME: CTRM:

March 19, 2012 1:30 p.m. Hon. Dale S. Fischer

Case 2:12-cv-00700-DSF-RZ Document 11-1

Filed 02/23/12 Page 2 of 84 Page ID #:178

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Attached are the certified administrative record of the United States Parole Commission for plaintiffs John Paul Morrow (Exhibits A-S) and Christian Davis (Exhibits T-II). Exhibit JJ is the declaration of Stephen J. Husk. DATE: February 23, 2012. Respectfully submitted, ANDR BIROTTE JR. United States Attorney LEON W. WEIDMAN Assistant United States Attorney Chief, Civil Division

/s/ Robert I. Lester ROBERT I. LESTER Assistant United States Attorney Attorneys for Defendants

Case 2:12-cv-00700-DSF-RZ Document 11-1

Filed 02/23/12 Page 3 of 84 Page ID #:179

John Morrow

Case 2:12-cv-00700-DSF-RZ Document 11-1

Filed 02/23/12 Page 4 of 84 Page ID #:180

Case 2:12-cv-00700-DSF-RZ Document 11-1

Filed 02/23/12 Page 5 of 84 Page ID #:181

Case 2:12-cv-00700-DSF-RZ Document 11-1

Filed 02/23/12 Page 6 of 84 Page ID #:182

Case 2:12-cv-00700-DSF-RZ Document 11-1

Filed 02/23/12 Page 7 of 84 Page ID #:183

Case 2:12-cv-00700-DSF-RZ Document 11-1

Filed 02/23/12 Page 8 of 84 Page ID #:184

Case 2:12-cv-00700-DSF-RZ Document 11-1

Filed 02/23/12 Page 9 of 84 Page ID #:185

Case 2:12-cv-00700-DSF-RZ Document 11-1 Filed 02/23/12 Page 10 of 84 Page ID #:186

Case 2:12-cv-00700-DSF-RZ Document 11-1 Filed 02/23/12 Page 11 of 84 Page ID #:187

Case 2:12-cv-00700-DSF-RZ Document 11-1 Filed 02/23/12 Page 12 of 84 Page ID #:188

10

Case 2:12-cv-00700-DSF-RZ Document 11-1 Filed 02/23/12 Page 13 of 84 Page ID #:189

11

Case 2:12-cv-00700-DSF-RZ Document 11-1 Filed 02/23/12 Page 14 of 84 Page ID #:190

12

Case 2:12-cv-00700-DSF-RZ Document 11-1 Filed 02/23/12 Page 15 of 84 Page ID #:191

13

Case 2:12-cv-00700-DSF-RZ Document 11-1 Filed 02/23/12 Page 16 of 84 Page ID #:192

14

Case 2:12-cv-00700-DSF-RZ Document 11-1 Filed 02/23/12 Page 17 of 84 Page ID #:193

15

Case 2:12-cv-00700-DSF-RZ Document 11-1 Filed 02/23/12 Page 18 of 84 Page ID #:194

16

Case 2:12-cv-00700-DSF-RZ Document 11-1 Filed 02/23/12 Page 19 of 84 Page ID #:195

17

Case 2:12-cv-00700-DSF-RZ Document 11-1 Filed 02/23/12 Page 20 of 84 Page ID #:196

18

Case 2:12-cv-00700-DSF-RZ Document 11-1 Filed 02/23/12 Page 21 of 84 Page ID #:197

19

Case 2:12-cv-00700-DSF-RZ Document 11-1 Filed 02/23/12 Page 22 of 84 Page ID #:198

20

Case 2:12-cv-00700-DSF-RZ Document 11-1 Filed 02/23/12 Page 23 of 84 Page ID #:199

21

Case 2:12-cv-00700-DSF-RZ Document 11-1 Filed 02/23/12 Page 24 of 84 Page ID #:200

22

Case 2:12-cv-00700-DSF-RZ Document 11-1 Filed 02/23/12 Page 25 of 84 Page ID #:201

23

Case 2:12-cv-00700-DSF-RZ Document 11-1 Filed 02/23/12 Page 26 of 84 Page ID #:202

24

Case 2:12-cv-00700-DSF-RZ Document 11-1 Filed 02/23/12 Page 27 of 84 Page ID #:203

25

Case 2:12-cv-00700-DSF-RZ Document 11-1 Filed 02/23/12 Page 28 of 84 Page ID #:204

26

Case 2:12-cv-00700-DSF-RZ Document 11-1 Filed 02/23/12 Page 29 of 84 Page ID #:205

27

Case 2:12-cv-00700-DSF-RZ Document 11-1 Filed 02/23/12 Page 30 of 84 Page ID #:206

28

Case 2:12-cv-00700-DSF-RZ Document 11-1 Filed 02/23/12 Page 31 of 84 Page ID #:207

29

Case 2:12-cv-00700-DSF-RZ Document 11-1 Filed 02/23/12 Page 32 of 84 Page ID #:208

30

Case 2:12-cv-00700-DSF-RZ Document 11-1 Filed 02/23/12 Page 33 of 84 Page ID #:209

31

Case 2:12-cv-00700-DSF-RZ Document 11-1 Filed 02/23/12 Page 34 of 84 Page ID #:210

32

Case 2:12-cv-00700-DSF-RZ Document 11-1 Filed 02/23/12 Page 35 of 84 Page ID #:211

33

Case 2:12-cv-00700-DSF-RZ Document 11-1 Filed 02/23/12 Page 36 of 84 Page ID #:212

34

Case 2:12-cv-00700-DSF-RZ Document 11-1 Filed 02/23/12 Page 37 of 84 Page ID #:213

35

Case 2:12-cv-00700-DSF-RZ Document 11-1 Filed 02/23/12 Page 38 of 84 Page ID #:214

36

Case 2:12-cv-00700-DSF-RZ Document 11-1 Filed 02/23/12 Page 39 of 84 Page ID #:215

37

Case 2:12-cv-00700-DSF-RZ Document 11-1 Filed 02/23/12 Page 40 of 84 Page ID #:216

38

Case 2:12-cv-00700-DSF-RZ Document 11-1 Filed 02/23/12 Page 41 of 84 Page ID #:217

39

Case 2:12-cv-00700-DSF-RZ Document 11-1 Filed 02/23/12 Page 42 of 84 Page ID #:218

40

Case 2:12-cv-00700-DSF-RZ Document 11-1 Filed 02/23/12 Page 43 of 84 Page ID #:219

41

Case 2:12-cv-00700-DSF-RZ Document 11-1 Filed 02/23/12 Page 44 of 84 Page ID #:220

42

Case 2:12-cv-00700-DSF-RZ Document 11-1 Filed 02/23/12 Page 45 of 84 Page ID #:221

43

Case 2:12-cv-00700-DSF-RZ Document 11-1 Filed 02/23/12 Page 46 of 84 Page ID #:222

Christan Davis

44

Case 2:12-cv-00700-DSF-RZ Document 11-1 Filed 02/23/12 Page 47 of 84 Page ID #:223

45

Case 2:12-cv-00700-DSF-RZ Document 11-1 Filed 02/23/12 Page 48 of 84 Page ID #:224

46

Case 2:12-cv-00700-DSF-RZ Document 11-1 Filed 02/23/12 Page 49 of 84 Page ID #:225

47

Case 2:12-cv-00700-DSF-RZ Document 11-1 Filed 02/23/12 Page 50 of 84 Page ID #:226

48

Case 2:12-cv-00700-DSF-RZ Document 11-1 Filed 02/23/12 Page 51 of 84 Page ID #:227

49

Case 2:12-cv-00700-DSF-RZ Document 11-1 Filed 02/23/12 Page 52 of 84 Page ID #:228

50

Case 2:12-cv-00700-DSF-RZ Document 11-1 Filed 02/23/12 Page 53 of 84 Page ID #:229

51

Case 2:12-cv-00700-DSF-RZ Document 11-1 Filed 02/23/12 Page 54 of 84 Page ID #:230

52

Case 2:12-cv-00700-DSF-RZ Document 11-1 Filed 02/23/12 Page 55 of 84 Page ID #:231

53

Case 2:12-cv-00700-DSF-RZ Document 11-1 Filed 02/23/12 Page 56 of 84 Page ID #:232

54

Case 2:12-cv-00700-DSF-RZ Document 11-1 Filed 02/23/12 Page 57 of 84 Page ID #:233

55

Case 2:12-cv-00700-DSF-RZ Document 11-1 Filed 02/23/12 Page 58 of 84 Page ID #:234

56

Case 2:12-cv-00700-DSF-RZ Document 11-1 Filed 02/23/12 Page 59 of 84 Page ID #:235

57

Case 2:12-cv-00700-DSF-RZ Document 11-1 Filed 02/23/12 Page 60 of 84 Page ID #:236

58

Case 2:12-cv-00700-DSF-RZ Document 11-1 Filed 02/23/12 Page 61 of 84 Page ID #:237

59

Case 2:12-cv-00700-DSF-RZ Document 11-1 Filed 02/23/12 Page 62 of 84 Page ID #:238

60

Case 2:12-cv-00700-DSF-RZ Document 11-1 Filed 02/23/12 Page 63 of 84 Page ID #:239

61

Case 2:12-cv-00700-DSF-RZ Document 11-1 Filed 02/23/12 Page 64 of 84 Page ID #:240

62

Case 2:12-cv-00700-DSF-RZ Document 11-1 Filed 02/23/12 Page 65 of 84 Page ID #:241

63

Case 2:12-cv-00700-DSF-RZ Document 11-1 Filed 02/23/12 Page 66 of 84 Page ID #:242

64

Case 2:12-cv-00700-DSF-RZ Document 11-1 Filed 02/23/12 Page 67 of 84 Page ID #:243

65

Case 2:12-cv-00700-DSF-RZ Document 11-1 Filed 02/23/12 Page 68 of 84 Page ID #:244

66

Case 2:12-cv-00700-DSF-RZ Document 11-1 Filed 02/23/12 Page 69 of 84 Page ID #:245

67

Case 2:12-cv-00700-DSF-RZ Document 11-1 Filed 02/23/12 Page 70 of 84 Page ID #:246

68

Case 2:12-cv-00700-DSF-RZ Document 11-1 Filed 02/23/12 Page 71 of 84 Page ID #:247

69

Case 2:12-cv-00700-DSF-RZ Document 11-1 Filed 02/23/12 Page 72 of 84 Page ID #:248

70

Case 2:12-cv-00700-DSF-RZ Document 11-1 Filed 02/23/12 Page 73 of 84 Page ID #:249

71

Case 2:12-cv-00700-DSF-RZ Document 11-1 Filed 02/23/12 Page 74 of 84 Page ID #:250

72

Case 2:12-cv-00700-DSF-RZ Document 11-1 Filed 02/23/12 Page 75 of 84 Page ID #:251

73

Case 2:12-cv-00700-DSF-RZ Document 11-1 Filed 02/23/12 Page 76 of 84 Page ID #:252

74

Case 2:12-cv-00700-DSF-RZ Document 11-1 Filed 02/23/12 Page 77 of 84 Page ID #:253

75

Case 2:12-cv-00700-DSF-RZ Document 11-1 Filed 02/23/12 Page 78 of 84 Page ID #:254

76

Case 2:12-cv-00700-DSF-RZ Document 11-1 Filed 02/23/12 Page 79 of 84 Page ID #:255

77

Case 2:12-cv-00700-DSF-RZ Document 11-1 Filed 02/23/12 Page 80 of 84 Page ID #:256

78

Case 2:12-cv-00700-DSF-RZ Document 11-1 Filed 02/23/12 Page 81 of 84 Page ID #:257

79

Case 2:12-cv-00700-DSF-RZ Document 11-1 Filed 02/23/12 Page 82 of 84 Page ID #:258

80

Case 2:12-cv-00700-DSF-RZ Document 11-1 Filed 02/23/12 Page 83 of 84 Page ID #:259

81

Case 2:12-cv-00700-DSF-RZ Document 11-1 Filed 02/23/12 Page 84 of 84 Page ID #:260

82