Case 7:08-cv-00057 Document 36 Filed in TXSD on 09/16/08 Page 1 of 55

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS
McALLEN DIVISION

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AMALIA RAMIREZ CASTELANO,

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ARTURO GARCIA, SOFIA ELIZABETH LOPEZ,)

MIRIAM SUJEE GONZALEZ, JUAN LUIS

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FLORES, ROCIO FLORES, 1.S., a minor by and )

through his next friend Sonia Raquel

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Cantu-Sanchez, DAVID HERNANDEZ, and

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JUAN ARANDA, on their own behalf, and on )

behalf of all others similarly situated,

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PLAINTIFFS-PETITIONERS,

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v.

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CONDOLEEZZA RICE, Secretary of State,

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PATRICK F. KENNEDY, Under Secretary for )

Management, MAURA HARTY, Assistant

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Secretary of State for Consular Affairs, ANN

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BARRETT, Managing Director, Passport Services )

Directorate, and UNITED STATES OF AMERICA,)

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DEFENDANTS-RESPONDENTS.

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CA M-08-057

SECOND AMENDED CLASS ACTION COMPLAINT AND PETITION FOR DECLARATORY, INJUNCTIVE, AND MANDAMUS RELIEF
By this Second Amended Class Action Complaint and Petition for Declaratory, Injunctive, and Mandamus Relief, Plaintiffs-Petitioners Amalia Ramirez Castelano, Arturo Garcia, Sofia Elizabeth Lopez, Miriam Sujee Gonzalez, Juan Luis Flores, Rocio Flores, J.S. a minor through his next friend Sonia Raquel Cantu-Sanchez, David Hernandez, and Juan Aranda (collectively, "Plaintiffs"), on behalf of themselves and all others similarly situated, allege the following against Defendants Condoleezza Rice, Patrick F. Kennedy, Maura Harty, Ann Barrett, and the United States of America (collectively, " Defendants"):

EXHIBIT
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1. This is a case about the federal government denying a class of persons their fundamental rights to due process and equal protection, and their right not to be subject to arbitrary and capricious government action, in violation of the United States Constitution and federal law.
2. Plaintiffs are U.S. citizens who properly submitted fee-paid, substantiated applications for U.S. passports to the United States Department of State (hereafter "Department of State" or "Department").
3. For many citizens, applying for a passport is a routine affair that results in the Department processing an application and issuing a passport in a matter of weeks. Defendants, however, have not treated Plaintiffs and members ofthe proposed class like other citizens.
4. Plaintiffs and those they seek to represent are, or are perceived by the government to be, of Mexican descent. When they or their parents were born in states bordering Mexico (i.e., Texas, New Mexico, Arizona and California (hereafter "Southwestern border states")), their births were attended by midwives or other nonphysicians (hereafter "midwives") in a home or local clinic. On the basis of these common and innocent facts - Mexican descent and a midwifeassisted birth in a Southwestern border state - Defendants have demanded that these passport applicants furnish a litany of additional documents to substantiate their citizenship and qualification for a passport, and have then arbitrarily deemed their applications abandoned, classifying them as "filed without action," even after substantial evidence of the applicants' U.S. citizenship has been provided. In this way, the Department effectively denies the passport applications and leaves Plaintiffs and proposed class members with no recourse other than to file a lawsuit or reapply, pay yet another fee, and face the same treatment again.
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5. The Department's policy, pattern, and practice of subjecting passport applications by persons of Mexican descent whose births were attended by midwives to heightened scrutiny and burdensome and excessive demands, and then channeling their applications into a regulatory black hole, is unconstitutional. It deprives Plaintiffs of their right to due process of law, discriminates on the basis of race, ancestry, and ethnicity, and is arbitrary and capricious.
6. Indeed, rather than making individualized decisions about Plaintiffs' passport applications, Defendants have adopted a policy that casts unwarranted suspicion on the basis of Mexican descent and midwife-assisted birth in a Southwestern border state.
7. The Department first imposes unreasonable, burdensome, and excessive evidentiary demands on such applicants. Specifically, the Department demands that these passport applicants prove birth in the United States by producing a host of documents that go far beyond what other applicants must ordinarily produce. As a matter of course, the Department seeks from Plaintiffs and proposed class members documents that likely never existed, that applicants would plainly not possess in the first instance if they ever did exist, or that ordinary people would rarely possess decades after the documents were originally issued.
8. Further, even after Plaintiffs expend substantial effort and cost in an effort to comply with the Department's impermissibly heightened standards - and produce evidence that goes well beyond what is demanded of other persons who apply for and receive passports Defendants still refuse to adjudicate Plaintiffs' passport applications individually and on the merits. Instead, the Department arbitrarily and unreasonably deems Plaintiffs' applications abandoned, classifying them as "filed without further action" or otherwise closed.
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9. When the Department of State classifies an application as "filed without further action," it effectively denies the application, but it does so without affording the applicant the same process as when it issues a formal denial. By all appearances, the Department has instituted and maintained a discriminatory policy, pattern, and practice of deeming applications "filed without further action" or otherwise closing applications of those they regard with categorical suspicion. Through this policy, pattern, and practice the Department deflects and quietly but effectively denies applications as to which there is neither a sufficient individualized basis nor supervisory approval for a formal denial. The Department's maintenance and application of this process to Plaintiffs and proposed class members, which ultimately results in their being unable to obtain passports, violates such persons' rights to due process and equal protection, and is arbitrary and capricious and otherwise contrary to law.
10. Without passports, Plaintiffs and those who are similarly situated are denied a vital resource and right that they -like all other U.S. citizens - require to travel, work, access affordable medical care, and maintain business interests and contact with family members outside the United States. In fact, once new passport requirements are fully implemented in June 2009, Plaintiffs and those who are similarly situated will face the impossible situation of not knowing if they will be able to return home if they leave the United States.
11. The Department is likely to claim that it needs to impose heightened passport requirements because several midwives working in Southwestern border states were convicted of fraudulently registering births in the region. But those relatively isolated incidents do not give Defendants a basis to violate the due process and equal protection rights of midwife-delivered Mexican-American passport applicants from Southwestern border states. Indeed, rather than
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conducting individual inquiries, Defendants have stripped Plaintiffs and those who are similarly situated of the rights and benefits of U.S. citizenship to which they are entitled and have effectively reduced to second-class citizenship status an entire swath of passport applicants based solely on their being of Mexican or Latino descent and having been delivered by midwives in nonhospital settings in Southwestern border states.
12. Plaintiffs allege that by their discriminatory policy, pattern, and practice, Defendants named herein deprive them and many hundreds of similarly situated U.S. passport applicants of the due process and equal protection rights guaranteed to each of them under the Fifth Amendment to the Constitution of the United States, as well as their rights under the Administrative Procedure Act. On behalf of themselves and those who are similarly situated, Plaintiffs thus seek declaratory, injunctive, and mandamus relief from Defendants' policy, pattern, and practice of sUbjecting passport applicants who are Mexican-American or have Latino surnames to differential treatment based on a categorical suspicion; imposing on them arbitrary, unreasonable, burdensome, and excessive requests for additional evidence; and then arbitrarily closing or filing the passport applications "without further action," without fair notice to the applicants or an individualized adjudication on the merits.
I. JURISDICTION AND VENUE 13. Jurisdiction lies under 28 U.S.C. § 1331 (federal question), 28 U.S.C. § 1346(a)(2) (actions against officers of the United States), 28 U.S.C. § 1361 (Writ of Mandamus), 28 U.S.C. §§ 2201-2202 (Declaratory Judgment Act), 8 U.S.C. § 1503 (denial of rights and privileges as a U.S. Citizen), and 5 U.S.C. §§ 701-702 (Administrative Procedure Act).
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14. Venue is proper under 28 U.S.C. § 1391(e). Plaintiffs reside within the jurisdiction of this Court and submitted their applications for U.S. passports at designated locations, including but not limited to the U.S. Post Offices in McAllen and Harlingen, Texas, in the Southern District of Texas, within this Court's jurisdiction.
II. THE PARTIES 15. Plaintiff-Petitioner Amalia Ramirez Castelano is of Mexican descent and was born in Weslaco, Texas, in 1968: She currently resides in Mission, Texas. Ms. Castelano applied for a U.S. passport in May 2007. She subsequently received a letter, dated December 17, 2007, from the Department of State through its National Passport Center in New Hampshire, informing her that her passport application was being filed without action. 16. Plaintiff-Petitioner Arturo Garcia is of Mexican descent and was born in 1932 in San Benito, Texas. He currently lives in Alton, Texas. Mr. Garcia applied for a U.S. passport in or about 2006. He subsequently received a letter dated February 6, 2007, from the Department of State, informing him that his passport application was being filed without further action. 17. Plaintiff-Petitioner Sofia Elizabeth Lopez is of Mexican descent and was born in 1989 in Brownsville, Texas, where she currently resides. She applied for a U.S. passport in 2007. She subsequently received a letter, dated February 21, 2008, from the Department of State through its Houston Passport Agency, informing her that her passport application was being filed without further action. 18. Plaintiff-Petitioner Miriam Sujee Gonzalez is of Mexican descent and was born in 1976 in Brownsville, Texas. She also currently resides in Houston, Texas. Ms. Gonzalez
• In accordance with General Order 2004-11 and Federal Rule of Civil Procedure 5.2, specific dates of birth are not listed herein. Exhibits referenced herein and containing personal identifying information have been filed with the Court in two formats: (I) in redacted form, and (2) under seal without redactions.
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applied for a U.S. passport in 2007. She subsequently received a letter, dated February 2,2008, from the Department of State through its Houston Passport Agency, informing her that her passport application was being filed without further action.
19. Plaintiff-Petitioner Juan Luis Flores is of Mexican descent and was born in 1954 in Rio Hondo, Texas. He currently resides in Los Fresnos, Texas. Mr. Flores applied for a U.S. passport in November 2007. He subsequently received a letter, dated March 26,2008, from the Department of State through its Charleston Passport Center, informing him that his passport application was being filed without further action.
20. Plaintiff-Petitioner Rocio Flores is of Mexican descent and was born in 1978 in Matamoros, Mexico. She currently resides in Los Fresnos, Texas. She acquired U.S. citizenship through her father, Plaintiff Juan Luis Flores. Ms. Flores applied for a U.S. passport in November 2007. She subsequently received a letter, dated March 26,2008, from the Department of State through its Charleston Passport Center, informing her that her passport application was being filed without further action.
21. Plaintiff-Petitioner J.S., a minor, is of Mexican descent and was born in 1994 in San Juan, Texas. He currently resides in Mission, Texas. Sonia Raquel Cantu-Sanchez is his mother and "next friend." J.S., through his mother, applied for a U.S. passport on January 3, 2008. He subsequently received a letter, dated April 24, 2008, from the Department of State through its Houston Passport Agency, informing him that his passport application was being filed without further action.
22. Plaintiff-Petitioner David Hernandez is of Mexican descent and was born in 1964 in San Benito, Texas. He currently resides in Harlingen, Texas. Mr. Hernandez applied for a
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u.s. passport in 2007. He subsequently received a letter, dated April 8, 2008, from the
Department of State through its National Passport Center in New Hampshire, informing him that his passport application was being filed without further action.
23. Plaintiff-Petitioner Juan Aranda is of Mexican descent and was born in 1970 in Weslaco, Texas, where he currently resides. Mr. Aranda applied for a U.S. passport on May 23, 2007. After receiving neither a passport nor written correspondence about the status of his application, he called the Department's toll-free number and was then informed that his case had been closed. Mr. Aranda reapplied for a passport on November 18,2007. He received a letter, dated February 1,2008, from the Department of State through its National Passport Center in New Hampshire, informing him that his passport application was being filed without further action.
24. Defendant-Respondent Condoleezza Rice is the duly appointed Secretary of State of the United States. She is the head of the Department of State and is responsible for setting and overseeing implementation of the policies and procedures employed by the Department of State and all its various subdivisions, including the Bureau of Consular Affairs and Passport Services Directorate. Secretary Rice is sued here in her official capacity.
25. Defendant-Respondent Patrick F. Kennedy is the Department of State's Under Secretary for Management. Under Secretary Kennedy leads a number of bureaus within the Department of State, including the Bureau of Consular Affairs, and is responsible for setting and overseeing implementation of the policies and procedures employed by the bureaus under his leadership. Under Secretary Kennedy is sued here in his official capacity.
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26. Defendant-Respondent Maura Harty is the Assistant Secretary of State for Consular Affairs. The Bureau of Consular Affairs is responsible for providing the passports that enable U.S. citizens to travel internationally. Assistant Secretary Harty is responsible for setting and overseeing implementation of the policies and procedures employed by the Bureau of Consular Affairs. Assistant Secretary Harty is sued here in her official capacity.
27. Defendant-Respondent Ann Barrett is the Managing Director of the Passport Services Directorate, within the Bureau of Consular Affairs. The Passport Services Directorate adjudicates passport applications and issues passports to U.S. citizens. Passport Services includes 13 Regional Passport Agencies, one Gateway City Passport Agency, one Special Issuance Agency, three National Processing Facilities, the National Passport Information Center, a network of more than nine thousand public government offices across the United States designated by Passport Services to accept applications, and Headquarters offices in Washington, D.C. Director Barrett is responsible for setting and overseeing implementation of the policies and procedures employed by the Passport Services Directorate. Director Barrett is sued here in her official capacity.
28. The United States of America is also a named Defendant-Respondent. 29. As referred to herein, the "Department" or "the Department of State" includes all Defendants-Respondents named herein.
III. THE FACTS A. The Need of Plaintiffs and Similarly Situated U.S. Citizens for a Passport
30. Plaintiffs are part of an ever-growing group of U.S. citizens seeking passports, many for the first time. Over the years, they have been able to travel freely as citizens across the
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nation's land borders. Most recently, they have been able to do so using their birth certificates along with a government-issued photo identification document such as a driver's license. By virtue of the Western Hemisphere Travel Initiative ("WHTI"), an outgrowth of the Intelligence Reform and Terrorism Prevention Act of 2004, they now need a passport, passport card or other WHTI-compliant document that denotes identity and citizenship when entering the United States by air. By June 1,2009, the date the U.S. government has set for implementation of the full requirements of the land and sea phase ofWHTI, most U.S. citizens - Plaintiffs included - will be required to have a passport or passport card in order to enter the United States through a sea or land port of entry.
31. For many U.S. citizens, including Plaintiffs, it is imperative that a passport be secured by the time WHTI is fully implemented. For those who live near the external boundary of the United States, the need for a passport is particularly urgent, as so many must regularly cross the border for work, to access affordable medical care, to tend to business interests, and to visit family members and friends who live on the other side of the border.
32. Driven by an interest in and, in many cases, the need to travel outside the United States, Plaintiffs and countless other U.S. citizens have applied for U.S. passports from the Passport Services Directorate of the Department of State's Bureau of Consular Affairs.
33. Routine application and execution fees, which are nonrefundable, currently total $100 for passport applicants ages 16 and over and $85 for those under age 16. The Department represents that three weeks is the approximate processing time for routine passport applications. See http://travel.state. gov/passport/get/processing/processing_I 740.html (last visited September 4,2008).
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34. Persons born in the United States and applying for a passport for the first time generally must submit a birth certificate in support of their application for a passport. A birth certificate showing the applicant's full name, place and date of birth, and parents' full names; signed by the official custodian of birth records; bearing the seal of the issuing office; and showing a filing date within one year of the date of birth is "primary evidence" of birth in the United States. See 72 Fed. Reg. 64930,64936 (Nov. 19,2007) (codified at 8 C.F.R. § 51.42 (effective Feb. 1,2008)); see also http://travel.state.gov/passport/get/first/first_830.html (last visited September 4, 2008).
35. Persons born in the United States who are unable to submit such a birth certificate must submit "secondary evidence" sufficient to establish birth in the United States by a preponderance of the evidence. Secondary evidence includes but is not limited to baptismal certificates, medical and school records, certificates of circumcision, hospital birth certificates, other documentary evidence, and affidavits of persons having personal knowledge of the facts of the applicant's birth. See 72 Fed. Reg. at 64936 (codified at 8 C.F.R. § 51.42 (effective Feb. 1, 2008)); see also 22 C.F.R. § 51.43 (2007).
36. The Department may require an applicant to provide additional evidence needed to establish that the applicant is a U.S. citizen or noncitizen national. See 72 Fed. Reg. at 64936 (codified at 22 C.F.R. § 51.45 (effective Feb. 1,2008)); see also 22 C.F.R. § 51.54 (2007). Its regulations, however, do not purport to attempt to alter the "preponderance of the evidence" standard that courts have uniformly long held to be the standard by which one must establish U.S. citizenship to claim the rights and privileges thereof.
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B. Defendants' Categorical Suspicion of Mexican-Americans Delivered by Midwives 37. Despite having submitted valid birth certificates and, in most cases, additional
evidence of having been born in the United States (or otherwise having derived U.S. citizenship), Plaintiffs and proposed class members have endured lengthy delays - far longer than the typical three-week processing time - in the handling of their passport applications. On infonnation and belief, this is because Plaintiffs and proposed class members are or are perceived to be of Mexican descent and were born with the assistance of midwives in Southwestern border states.
3S. Indeed, while their births span decades, a fact common to Plaintiffs and members of the proposed class is that their births (or the birth of a parent through whom citizenship has been derived) were attended by midwives, at home or in a local clinic or other nonhospital setting.
39. Midwife-assisted births have been common in certain parts of the United States, including Texas and other parts of the Southwest, particularly in underserved communities with limited access to hospitals and private physicians.
40. In fact, midwifery has a history in Texas that predates the State's fonnal existence. As the Texas Department of State Health Services ("Texas Health Services Department") has noted, "Parteras serving the Spanish speaking population and 'granny ladies' in rural Texas are part of the traditional folklore and cultural legacy of Texas history." Texas Midwifery Board, About the Profession - History in Texas, available at http://www.dshs.state.tx.us/midwife/mw_history.shtm(lastvisitedSeptember4.200S).InI925. for example, more than half the babies born in Texas were delivered by midwives. See id. For many women, a midwife-assisted birth at a home or local clinic has been the only option for a
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range of reasons, including lack of a nearby hospital, lack of health insurance, and language and cultural barriers. Indeed, the Texas Health Services Department has itself associated the prevalence of midwife-assisted births in the state with the "rural and working poor population in Texas, among whom low income served as a barrier to institutional medical care." Jd. For all these reasons, midwife delivery has for many decades been preferred and common among mothers residing in Southwestern border states, and in Texas particularly. Even today, a significant number of births in this region are with the assistance of a midwife. For example, in 2004, thousands of births in Texas were assisted by midwives. See Texas Department of State Health Services Center for Health Statistics, Migrationfor Birth: A Birth-Origin Study of Texas Newborns January-December 2004, at 3-318 (2008), available at http://www.dshs.state.tx.us/ chs/pubs/migr/MFB2004.pdf (last visited September 4, 2008).
41. Despite the sizeable number of midwife-assisted births and the important reasons why so many women have relied on midwives over the years, with WHTI having prompted a wave of new passport applications, Defendants appear to have adopted and applied blanket suspicion toward one particular group of passport applicants - those who are or are perceived to be of Mexican descent and whose deliveries in Southwestern border states were assisted by midwives. These include Plaintiffs and members of the proposed class.
42. Over the course of this long history of midwifery, a relatively small number of midwives concentrated in Southwestern border states, and in Texas in particular, registered births as having taken place in the United States when in fact they did not. Specifically, since 1960, the government has reportedly secured convictions for approximately 75 midwives in the South Texas region for fraudulently registering births in the United States. Most of these convictions
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came in and after the 1980s; approximately 12 preceded that period, and none is known to have preceded the 1960s.
43. At some point in time, the former Immigration and Naturalization Service ("INS") (functions of which were absorbed by the Department of Homeland Security when the latter was created and the former dissolved) developed and began using a list of "suspicious" midwives. A copy of a document believed to be the "suspicious midwives list," which does not include convictions past 1996, is attached hereto as Exhibit A. Though no more than 60 midwives were convicted to that point, the list identifies nearly 250 midwives as having been labeled "suspicious." Little is known to the public as to how the INS came to label nearly 200, if not more, unconvicted midwives as "suspicious."
44. The fact remains that the overwhelming majority of midwife-delivered babies registered as having been born in the United States, even in the areas where these "suspicious" midwives practiced, were born in the United States. Indeed, even midwives who were convicted for having fraudulently registered births are also known to have actually assisted in the births of babies who were delivered in the United States and were legitimately registered as such. For example, in at least one instance, an applicant who was delivered by a convicted midwife established to the satisfaction of a federal district court that her birth took place in the United States. In fact, an applicant alleged to have been specifically identified as having been fraudulently registered nonetheless has proven her birth in the United States and been issued a passport.
45. Moreover, to the extent that the government has had suspicions about midwiferelated fraud dating back decades, it did not give affected persons any notice or opportunity to
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counter the allegation of fraud in their individual cases. For many, evidence supporting the fact of their births in the United States that once existed is now unavailable due to the passage of so much time. In this way, the Department itself has put at risk the legitimate claims to U.S. citizenship of countless proposed class members.
46. On information and belief, the Department of State relies on the "suspicious midwives list," and even goes beyond that list, and treats Mexican-American and certain other Latino passport applicants delivered by midwives - even those not on the "suspicious midwives list," let alone convicted - with blanket suspicion. The Department applies this blanket suspicion even to births that precede 1960, despite the fact that there is no reported evidence of midwiferelated fraud prior to that period. C. Defendants' Arbitrary, Unreasonable, and Burdensome Demands for Unnecessary
Supplemental Documentation 47. In casting a categorical net of suspicion this broadly and in engaging in, sanctioning, and allowing the above-noted practices by the Department, Defendants are effectively denying the passports of many for the alleged sins of a few, without individualized suspicion and without a fair or meaningful process for Plaintiffs and proposed class members to demonstrate their citizenship and to enjoy the same rights and privileges as their fellow citizens. 48. Rather than receiving prompt adjudication of their passport applications, Plaintiffs and members of the proposed class have instead encountered a bureaucracy that has subjected them to arbitrary, unreasonable, excessive, and burdensome demands for further documentation and evidence of their U.S. citizenship.
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49. Plaintiffs and members of the proposed class submitted the same documentary evidence with their passport applications that, in countless other cases, has sufficed for the Department to adjudicate the application and provide a passport.
50. In response to Plaintiffs and members of the proposed class, however, instead of adjudicating their passport applications as filed (with the same evidence deemed sufficient for the issuance of a passport in other cases), the Department, through written and, in many cases, telephonic communications, has demanded supplemental evidence of citizenship.
51. In virtually none of these cases did the Department provide a meaningful explanation as to what it perceived to be deficient in the submission that preceded the demand for further evidence. Letters from the Department's Passport Centers typically assert only that "we have determined that further information is needed to support your claim of birth in the U.S." or the evidence submitted "does not sufficiently support your date and place of birth in the United States."
52. The Department goes on either to direct the applicant to submit particular documents or to instruct that it is necessary that the applicant submit a combination of original documents created prior to or at the time of the applicant's birth, followed by a list of examples that include documents that, if they existed at all, would be burdensome and often costly to obtain. Affidavits from persons with direct knowledge of the circumstances of the applicant's birth are not identified as an option in these letters.
53. In some cases, the government seeks documents that never existed, that people would plainly not possess in the first instance, or that people would certainly not possess decades after the documents were originally issued. For example, an applicant born in 1934 and his
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Mexican-born daughter, who acquired citizenship through him, simultaneously applied for U.S. passports. Her application was granted. The father, however, was sent the standard letter requesting additional documentation. After he sent a wealth of evidence, including a copy of his daughter's U.S. passport, which, he explained, had been issued on the basis of his U.S. citizenship, the Department instructed that he provide a 1935 census report. He responded that there was no census in 1935. The Department then directed that he produce additional documents, including records of prenatal care that (if received by his mother) would have dated back nearly 75 years.
54. In many instances, the only plausible means by which an applicant could secure the documents sought - for example, border crossing cards that parents used in the 1960s and later remitted to the government - would be through a request to the government itself under the Freedom of Information Act, assuming the government has itself maintained complete files and not discarded such documents over the years. Yet the Department provides no information as to how applicants can secure original documents that may be in the government's possession and control. And applicants who have gone to federal immigration offices seeking to locate documents that would evidence their parents' presence in the United States when they were born have been told such old documents were not maintained or were otherwise not accessible.
55. The Department has also insisted that applicants produce documentary evidence that will almost invariably not exist for the children of parents who did not continuously reside in the United States but who were among many for whom going back and forth across the border was common and routine. The Department in this manner has made it virtually impossible for such applicants to obtain passports, even though the absence of the supplemental evidence
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demanded by the government in these cases makes it no more or less likely that these applicants were born in the United States.
56. In addition to demanding a host of documents that might not even exist or be accessible, or that could take inordinate time and resources to attempt to locate even if they were to exist, the Department's demand generally also includes the threat that failure to respond "adequately" within a relatively tight time frame - often 30 or 45 days - will result in the denial of the application.
57. In many cases, the Department's demand is issued to a passport applicant whose citizenship has previously been recognized and relied upon in proceedings through which the applicant's family member(s) secured immigration benefits or a certificate of citizenship.
58. In some cases, demands for additional evidence are issued to applicants who previously held a U.S. passport.
59. In other cases, the Department's demand is for essentially the same documents that the applicant has already provided in support of his or her application. Indeed, some applicants whose cases were filed without further action but who paid a new fee and submitted the same evidence received U.S. passports on their second try.
60. Applicants who attempt to correspond with the Department to address the problems they are experiencing find themselves unable to make contact with any Department employee who can or will give accurate answers to questions about their applications.
61. In some cases, the Department provides confusing information to potential applicants about the kinds of documents required in the first instance to apply for a passport. The Passport Office in Brownsville, Texas, for example, has instructed passport applicants to
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present with their applications a Long Form Certified Birth Certificate or a U.S. Naturalization Form, and has reportedly refused to accept applications in the absence thereof. However, not every U.S. citizen possesses one of these two forms. Moreover, citizenship and eligibility for a passport may be demonstrated with evidence that does not include either form. Yet this information is not revealed on the sheet of directions that the Brownsville Passport Office makes most accessible to prospective applicants, and, as a result, a number of U.S. citizens attempting to apply for passports have been turned away.
62. Except in limited circumstances not applicable here, a passport applicant is entitled to receive a passport upon demonstrating by a preponderance of evidence that she or he is a U.S. citizen or national. For Plaintiffs and members of the proposed class, however, Defendants, in an arbitrary, capricious, impermissible, and discriminatory manner, have effectively imposed a substantially higher burden of proof by demanding and insisting upon excessive production of difficult-if-not-impossible-to-obtain documents after the applicants have already provided evidence sufficient to meet the applicable evidentiary standard, and in any event have provided evidence sufficient to warrant an individualized adjudication on the merits of the application.
63. On information and belief, Defendants have failed to provide adjudicators with adequate training, guidance, and supervision required to avoid discriminatory and arbitrary and capricious decisions in regard to what type and amount of evidence should and will be accepted as sufficient to meet the preponderance of the evidence standard.
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D. Defendants' Policy, Pattern, and Practice of Classifying Passport Applications as "Filed Without Further Action" 64. Rather than adjudicate the applications of Plaintiffs and members of the proposed
class on the merits, the Department has adopted and employed a policy, pattern, and practice of simply closing their applications even after the applicants have responded to the Department's demands for additional evidence. Defendants in this manner have abdicated their adjudicatory responsibilities and their duty to issue passports to otherwise eligible applicants who have sufficiently demonstrated that they are U.S. citizens or nationals.
65. Plaintiffs and proposed class members have submitted documentation and evidence that should have been sufficient for a passport to issue and, in any event, for a meaningful individualized decision on the merits of their applications.
66. Instead, Plaintiffs and proposed class members thereafter each received from the Department virtually identical letters stating:
Our office wrote to you on [date], and requested further information and/or documentation in support of your passport application. We have not received a response from you, or you have not fully complied, with the request for additional information and/or documentation in the referenced correspondence. Therefore, your passport application is being filed without further action. See, e.g., Exhibits B at 1, C at 1, D at 1, E at 1, F at 21. 67. With new regulations that became effective February 1,2008, the Department gave itself unbounded authority to treat applications as having been "abandoned." See 72 Fed. Reg. 64930,64938-39 (Nov. 19,2007) (codified at 22 C.F.R. § 51.65). In reality, even before its new regulation went into effect, the Department began its pattern and practice of issuing "filed without further action" letters, deeming abandoned and effectively denying applications from
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persons such as Plaintiffs who had submitted evidence sufficient to warrant issuance of a passport or, in any event, a meaningful adjudication on the merits rather than having the Department treat their applications as having been abandoned.
68. Notably, the Department published a proposed rule in March 2007 that did not grant itself the authority to deem applications abandoned in this manner. Under the proposed rule, "[a]n applicant for a passport w[ould] be denied if an applicant fail [ed] to meet his or her burden of proof ... or otherwise d[id] not provide documentation sufficient to establish entitlement to passport issuance within ninety days of notification by the Department that additional information from the applicant is required." 72 Fed. Reg. 10095, 10104 (Mar. 7, 2007). When the Department published its final rule in November 2007, however, it provided that "[a]n application for a passport will be denied or treated as abandoned if an applicant fails to meet his or her burden of proof ...." 72 Fed. Reg. at 64938-64939 (codified at 22 C.F.R. § 51.65(b» (emphasis added).
69. In a separate subsection of its new regulations, the Department further provided that it would "notify in writing any person whose application for issuance of a passport has been denied ... set[ting] forth the specific reasons for the denial ...." Id. at 64938 (codified at 22 C.F.R. § 51.65(a». (The regulations being replaced similarly provided that applicants denied passports would be given notice of the specified reasons for the adverse action. See 22 C.F.R. § 51.75 (2007).) When it added for itself authority to treat applications as abandoned - even on the basis of an unspecified burden of proof having not been met - however, the Department did not provide that it would give applicants notice of the specific reasons why their applications were treated as abandoned.
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70. Because the prospect of such broad authority to treat applications as abandoned (and to not give specific reasons for doing so) was not a possible outcome of the rule change as published, the public had neither notice nor an opportunity to comment on the wisdom or propriety of the rule that the Department promulgated.
71. Having one's passport application deemed "filed without further action" is functionally the same as having one's application denied, but it is an outcome that the Department effects without affording the same process to the applicant as when an application is formally denied.
72. On information and belief, the Department widely employs the technique of deeming applications "filed without further action" or otherwise closed rather than denying passport applications in part because the procedures for explicitly and formally "denying" a passport application are more complicated and require a number of supervisory approvals, while an application can be "filed without further action" or otherwise deemed abandoned or closed without the review and other procedural protections that would have to precede a formal "denial. "
73. On information and belief, by the technique of deeming applications "filed without further action" or otherwise closed, the Department enables its adjudicators to deflect and effectively reject applications that may present complications in the mind of the adjudicators but as to which there is an insufficient basis for a denial of the application.
74. On information and belief, Defendants have been employing the technique of "filing without further action" or otherwise closing the applications of Plaintiffs and proposed class members as a sub silentio means of denying passports on the basis of Defendants'
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categorical suspicion of applicants who are Mexican-American or have Latino surnames whose births were attended by midwives in Southwestern border states.
75. Passport adjudicators under the direction and control of Defendants routinely "file[] without further action" or otherwise close applications submitted by Plaintiffs and proposed class members when there is no reasonable basis to conclude that the application has been abandoned.
76. In countless cases, "filed without further action" letters are issued to proposed class members after they have submitted responsive supplemental documentation.
77. It is also common that the Department issues "filed without further action" letters or otherwise closes applications before it has given applicants sufficient time to gather documents that have been demanded but that can be difficult and time-consuming to secure. In fact, a number of Plaintiffs received "filed without further action" letters from the Department well before the end of the 90-day period that the Department's own regulation requires it to provide applicants to respond to demands for additional information. See 22 C.F.R. § 51.65(b) (2008) (stating that passport applications will be denied or treated as abandoned if an applicant does not provide "documentation sufficient to establish entitlement to passport issuance within ninety days of notification by the Department that additional information from the applicant is required").
78. In many cases, the "filed without further action" decision is issued to persons whose citizenship has previously been recognized in a formal proceeding before a federal agency and/or a court of law, and/or through whom family members have received immigration benefits or derived their own citizenship.
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79. The issuance of "filed without further action" letters and closures of the applications in this manner leaves Plaintiffs and proposed class members in the untenable position of having to live without the passport each needs and be denied a right and privilege to which each is entitled, petition for a federal court to render a de novo determination of citizenship with the attendant cost that many cannot bear, or apply yet again for a passport with payment of another fee to the Department but with no indication that a new application will meet with a different response from Defendants.
80. Defendants' policy, pattern, and practice also has a chilling effect on applicants who receive Department demands for extensive additional evidence in support of their applications and have watched friends, neighbors and family members go to great lengths to produce such evidence in their own cases only to receive "filed without further action" letters that effectively deny them passports.
81. Applicants who have received the "filed without further action" letters have not been informed of any avenue for administratively appealing the Department's decision to close their applications and effectively deny them passports. On information and belief, there are, in fact, no further administrative remedies available to applicants who receive "filed without further action" letters.
82. The Department's "filed without further action" letters also fail to inform applicants that they may seek a de novo adjudication of their citizenship by petitioning a federal district court. The letters instead advise only that applicants may apply again in the future, although applicants' original documents are not always returned. The letters note that application fees paid for the application that has been filed without action will not be returned.
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83. On information and belief, Defendants have not provided adjudicators with sufficient guidance, training, or supervision to ensure that there is consistency and foundation as to when an application may permissibly and reasonably be classified as "filed without further action" or otherwise closed or deemed abandoned. Defendants also failed to provide adjudicators sufficient guidance, training, or supervision to ensure that they make decisions in a nondiscriminatory fashion.
84. Defendants have thus engaged in the unconstitutional policy, pattern, and practice of subjecting applicants who are Mexican-Americans or have Latino surnames, and whose births in Southwestern border states were attended by midwives, to arbitrary, capricious, unreasonable, discriminatory, and burdensome demands for evidence that other applicants generally do not face. The Department has implemented this unconstitutional policy, pattern, or practice despite the absence of individualized suspicion against the applicants and has in the same manner ultimately classified their applications as "filed without further action." In other words, the Department has prevented Plaintiffs and proposed class members from obtaining passports without the benefit of individualized adjudication on the merits, and with only a bare nod to the applicants being able to start all over again with a new filing fee and no reason to expect a different outcome.
85. Plaintiffs and proposed class members are thus subjected to arbitrary, capricious, unreasonable, and burdensome demands for additional evidence, an impermissibly heightened burden of proof, a lack of adequate notice regarding perceived deficiencies in their applications, and effective denial by the "filing without further action" of their applications, even after they
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have gone to extraordinary effort and expense to produce supplemental evidence of their births in the United States. E. Plaintiffs' Experiences in the Passport Application Process
86. The experiences of the Plaintiffs are a function of and typical of the systemic policies, patterns and practices described herein.
1. AMALIA CASTELANO 87. Amalia Castelano (nee Moralez) was born in Weslaco, Texas, in 1968. At the time of her birth, Ms. Castelano's parents were citizens of Mexico and resided in Reynosa, Mexico, but had local crossing cards. While pregnant with Amalia, Ms. Castelano' s mother was visiting family members in Weslaco, Texas, when she unexpectedly went into labor. 88. Ms. Castelano's birth was attended by a midwife, Manuella Bazan, whose name does not appear on the "suspicious midwives list." See Exhibit A. Her birth was registered by Manuella Bazan in Hidalgo County, Texas, on the same day as her birth. 89. Ms. Castelano was baptized in Weslaco, Texas, approximately two months after her birth. 90. Shortly after Ms. Castelano was born, her parents returned to Mexico, taking her with them. Ms. Castelano resided with her family in Mexico from 1969 until 1990. 91. On April 12, 1972, Ms. Castelano' s birth was registered in Reynosa, Mexico, in order to ensure that she would be able to access healthcare for various medical problems. She attended school in Reynosa up to the third year of secondary school. 92. In 1990, Ms. Castelano moved back to the United States. She has resided here continuously since then.
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93. On January 31, 1990, Ms. Castelano married Gilberto Castelano in Hidalgo County, Texas. Mr. Castelano immigrated and ultimately was naturalized as a U.S. citizen through his wife's status as a U.S. citizen. Their three children were all born in the United States.
94. In May 2007, Ms. Castelano applied for a U.S. passport. 95. In a letter dated September 7,2007, the passport agency directed that she provide additional evidence of her U.S. citizenship within 30 days. See Exhibit G at 4. 96. With the help of counsel, a response was prepared, with a variety of (original) documents, and sent to the National Passport Center on October 2,2007, and delivered on October 4,2007. See id. at 3,5. This package of supporting documents included Ms. Castelano's baptismal certificate (noting her birth in Weslaco, Texas); her parents' Forma 13 (a Mexican document used to apply for a U.S. border crossing card) and border crossing cards; Mexican school certificates from 1980, 1981, and 1984; her marriage certificate; an affidavit from her parents explaining the circumstances of her birth; and a declaration from Federico Vaquera Moralez (the cousin of Ms. Castelano's father) as witness to her birth. The documents submitted are attached hereto as Exhibit G. 97. On or about October 23,2007, Ms. Castelano received a phone call from the National Passport Center, requesting additional documentation of the manner in which her mother crossed into the United States, asserting that the documentation previously submitted did not establish this fact. The caller informed her that her application would be "closed" within 30 days if she did not provide such documentation.
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98. Ms. Castelano consulted counsel, who prepared a letter, dated October 31,2007, requesting that the application be granted or denied on the basis of the documentation provided, and that in the future, all communication be directed to counsel. Ms. Castelano co-signed this letter. See id. at 34.
99. In November 2007, Ms. Castelano received a message on her answering machine from the Passport Center requesting a copy of her Mexican birth certificate, the existence of which had been disclosed in the affidavit of her parents. On November 26,2007, Ms. Castelano sent a copy of her Mexican birth certificate and a copy of the October 31, 2007 letter from her attorney to the Department, and again requested that the Office deal directly with counsel.
100. The only written communication Ms. Castelano received from the Department was its letter dated September 7,2007. Ms. Castelano responded to this request on October 2, 2007, by sending supporting documentation. Her attempt to provide evidence is confirmed by the UPS tracking record and the telephone call from the National Passport Center advising Ms. Castelano that the documents submitted in the package delivered on October 4, 2007, were insufficient and did not adequately establish her mother's manner of crossing into the United States. The Department's receipt of the October 4,2007 package is further confirmed by the message on Ms. Castelano's answering machine requesting her Mexican birth certificate (the existence of which was disclosed in the materials submitted on October 2,2007, and received on October 4, 2007).
101. Its receipt of the requested evidence notwithstanding, the Department responded to Ms. Castelano's submission of the requested evidence by letter dated December 17,2007, denying the very fact that she had already replied. See Exhibit G at 1. This letter informed her
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that "[s]ince we have not received a response from you to our previous correspondence, your application is being filed without action." ld. It further stated that her citizenship documents would be returned to her within four to six weeks under separate cover. The letter did not suggest any avenue of appeal for Ms. Castelano. Instead, it stated that if she still wishes to obtain a passport, she will "need to reapply, submit proof of [her] United States citizenship and pay all fees." ld.
102. Ms. Castelano received another letter from the Department, dated March 7, 2008, stating: "Since we have not received a response from you to our previous correspondence, your passport application is being filed without further action.... If you still wish to obtain a passport book and/or passport card, you will need to reapply." ld. at 2. The March 7, 2008 letter enclosed documents previously submitted in support of Ms. Castelano' s passport application.
103. The letter of December 17, 2007, in effect denied Ms. Castelano' s application for a passport. On information and belief, Ms. Castelano asserts that the Department's "closure" of her passport application was the product and function of the policy, pattern, and practice alleged herein.
2. ARTURO GARCIA 104. Arturo Garcia was born in San Benito, Texas, in 1932. The identity of the midwife who delivered him is not known. 105. Mr. Garcia's mother died in childbirth with his younger sister, and his birth was not contemporaneously registered. His birth was later registered in Travis County, Texas, in 1969, and he was issued a delayed birth certificate, which was based on a baptismal certificate issued in San Benito that indicated his date of birth, a Selective Service Registration Card dated
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June 10, 1964, and the personal testimony of Jesus Lugo, an acquaintance of Mr. Garcia's father. Mr. Garcia's older brothers were also born in Texas and issued delayed birth certificates.
106. Mr. Garcia was baptized in San Benito, Texas, on March 3, 1945, and, though he did not attend school, lived in Texas for most of his life before his 1952 marriage to a Mexican woman. His certificate of marriage was issued in Mexico and describes his wife as "Mexican" and Mr. Garcia as "Northamerican." See Exhibit H at 4-5.
107. In 1972, three of Mr. Garcia's children were granted Certificates of Citizenship by virtue of his U.S. citizenship. A fourth child received his Certificate of Citizenship in 2001. When his fifth child, Armando Garcia, filed for such a certificate, the adjudicating U.S. Citizenship and Immigration Services (USCIS) officer denied Armando's claim for derivative citizenship based on asserted skepticism as to whether Arturo Garcia's birth actually occurred in the United States. While Armando's case was under review before the U.S. Court of Appeals for the Fifth Circuit, and after a de novo review of the documentation supporting Arturo Garcia's claim to U.S. citizenship, an Administrative Appeals officer found that a "preponderance of the evidence" supported Arturo Garcia's claim. Accordingly, Armando Garcia also received his Certificate of Citizenship based on his father's U.S. citizenship. See Exhibit H at 8.
108. To date, however, Mr. Garcia has not been able to obtain a U.S. passport. Despite five Certificates of Citizenship having issued to his children on the basis of Mr. Garcia's citizenship, the Department asserted that he had insufficient proof of his claim to citizenship and required that he produce his mother's birth certificate, his elementary school records, or a census report substantiating his residency in the United States. The documents demanded either never
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existed in Mr. Garcia's case or were not available to him for a number of reasons. He was consequently unable to comply with this aspect of the Department's demand.
109. On February 6, 2007, Mr. Garcia received a letter from the Department informing him that his application was filed without further action.
110. In this manner, the Department effectively denied Mr. Garcia's application for a passport. On information and belief, Mr. Garcia asserts that the Department's "closure" of his passport application was the product and function of the policy, pattern, and practice alleged herein.
111. Subsequent to the filing of this lawsuit, Mr. Garcia learned that the Department intends to grant his passport application. As of the date of this second amended complaint, however, Mr. Garcia had not yet received his passport.
3. SOFIA ELIZABETH LOPEZ 112. Sofia Elizabeth Lopez was born in 1989 in Brownsville, Texas. Her birth was attended by a midwife named Enriqueta Gonzalez, who signed the birth certificate three days later and filed it in Brownsville, Texas, the same day. 113. Enriqueta Gonzalez is identified on the "suspicious midwives list" as having been convicted, see Exhibit A at 2, but the evidence surrounding Sofia Elizabeth Lopez's birth demonstrates that her U.S. birth record is legitimate. 114. Bertha Lopez, who was also a witness to the birth of Sofia Elizabeth Lopez, has provided an affidavit explaining the circumstances of Sofia Elizabeth Lopez's birth in Brownsville, Texas.
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115. Two days after her birth, Sofia Elizabeth Lopez was taken to Matamoros, Mexico, where her parents resided. She was baptized there on June 9, 1990. Her baptismal certificate confirms that she was born in Brownsville, Texas, on the date shown on the face of her U.S. birth certificate. See Exhibit B at 5-6. Because her family lived in Mexico, her mother registered her birth with the Mexican civil registry as having been born in Matamoros, Mexico, on May 3, 1990, in order to allow her to access Mexican health care, immunization services, and other social services.
116. At the age of six, Ms. Lopez began crossing the border daily to attend school in the United States. She eventually moved to Brownsville in May 2002.
117. Ms. Lopez applied for a U.S. passport on October 12,2007. 118. By letter dated October 24,2007, the Department requested the "long form" of her birth certificate, which she provided. See id. at 7. 119. Then, by letter dated December 5, 2007, the Department informed her that because she was not born in a "medical facility," her birth certificate was "not acceptable for passport purposes," and that she therefore needed to submit additional supporting documentation. Id. at 8. 120. By letter dated February 1, 2008, Ms. Lopez explained the circumstances of her birth and that the use of midwives was extremely common in Hispanic communities, both for their low-cost as well as for cultural and linguistic reasons. See id. at 10. She included a detailed list of the supporting documentation she could provide and noted why she was unable to provide certain forms of documentation. She sent what she was able to provide, including school records from when she began attending school at age six in the United States, immunization records, a
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baptismal certificate, a notice of Enriqueta Gonzalez's death (to explain why she could not get additional evidence from her), and an affidavit from Bertha Lopez, the woman who had taken her mother to the midwife on the day she was born. See id. at 60. In addition, Sofia Elizabeth Lopez sent her mother's border crossing card to demonstrate her mother's physical presence in the United States. Because Ms. Lopez's family did not reside in the United States during her early childhood, she could not provide U.S. tax, rent, or employment letters for her parents. See Exhibits B. Ms. Gonzalez, the midwife who delivered Ms. Lopez, passed away on May 22, 2002; it was therefore impossible for Ms. Lopez to obtain any further documentation from her in support of Ms. Lopez's passport application. See id. at 61.
121. Ms. Lopez subsequently received a form letter from the Department, dated on or about February 21, 2008, stating as follows:
Our office wrote to you on 12/08/2007, and requested further information andlor documentation in support of your passport application executed on 10112/2007. We have not received a response from you, or you have not fully complied, with the request for additional information and/or documentation in the referenced correspondence. Therefore, your passport application is being filed without further action. Id. at 1. 122. The letter of February 21, 2008, in effect denied Ms. Lopez's application for a passport. On information and belief, Ms. Lopez asserts that the Department's "closure" of her passport application was the product and function of the policy, pattern, and practice alleged herein. 4. MIRIAM SUJEE GONZALEZ 123. Miriam Sujee Gonzalez was born in Brownsville, Texas, in 1976. Her birth was attended by midwife Enriqueta Cavazos, whose name does not appear on the "suspicious
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midwives list." See Exhibit A. Ms. Cavazos signed the birth certificate two days after Miriam was born and filed it the same day with the Brownsville Registrar.
124. Miriam currently resides in Houston, Texas. She attended primary school in Brownsville and most of middle and high school in Houston, Texas.
125. Miriam Gonzalez applied for a U.S. passport at the Passport Agency in Houston, Texas, in or about June 2007.
126. The Department responded by letter, dated November 6,2007, and requested additional information to support her place and date of birth, specifically directing that she submit "a combination of early public documents created at the time of [her] birth." See Exhibit I at 7.
127. Miriam Gonzalez, now through counsel, responded to this demand on February 1, 2008, by sending a variety of documents by Federal Express. The documents were delivered on February 2, 2008. See id. at 5. In addition to a completed Supplemental Worksheet, this package included, among other documents, her birth certificate and her original baptismal certificate, indicating that she was baptized on February 13, 1977, in Mexico, but that her place of birth was Brownsville, Texas; Brownsville-based and Houston-based school records; and two Brownsville School District health records showing immunizations and other basic health information. See id. at 8-54.
128. By letter dated February 19,2008, the Department informed Miriam Gonzalez that it had not received a response from her and that her application was therefore being "filed without further action." See id. at 1.
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129. In response, by letter dated February 27, 2008, Miriam, through counsel, challenged the assertion that the documents had not been received by the Passport Office and sent a Federal Express airbill as proof that the documents had been delivered on February 2, 2008, within the 90-day timeframe the agency had allotted. She insisted that the agency locate the numerous original documents that she had sent at their direction and requested adjudication of her application. See id. at 2-4.
130. Miriam Gonzalez has not received any further substantive response from the Department or a meaningful individualized adjudication of her application, and the Department has not returned her original birth certificate.
13l. The letter of February 19,2008, in effect denied Ms. Gonzalez's application for a passport. On information and belief, Ms. Gonzalez asserts that the Department's "closure" of her passport application was the product and function of the policy, pattern, and practice alleged herein.
5. JUAN LUIS FLORES 132. Juan Luis Flores was born in Rio Hondo, Texas, in 1954, with the aid of a midwife named Justina Rios. Ms. Rios does not appear on the "suspicious midwives list." See Exhibit A. Ms. Rios signed the birth certificate and filed it with the Cameron County Registrar the day after Mr. Flores was born. 133. Mr. Flores lived in Rio Hondo, Texas, until he was 14 months old when his family, originally from Mexico, was deported. In 1967, Mr. Flores moved to Harlingen for a brief time and then moved to Houston in 1968. In or around 1981-1982, he moved back to
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Harlingen, where he lived until 1994. Since that time, Mr. Flores has lived and worked on both sides of the border in that area (principally in Los Fresnos, Texas).
134. Although he never married the mother of his children, he filed numerous income tax returns while they were under the age of 18, in which he listed them as his children. Said returns were signed under oath. For purposes of 8 U.S.c. § 1409(a)(4)(B), he thereby legitimated his children, and on that basis, in 2001, one of Mr. Flores's daughters, Sandra Flores, obtained a Certificate of Citizenship through his U.S. citizenship. In 1975, Mr. Flores's father, Emilio Flores, also immigrated on the basis of his son, Juan Luis Flores, being a U.S. citizen. Emilio Flores is now a naturalized U.S. citizen and has been issued a U.S. passport.
135. In November 2007, Juan Luis Flores applied for a U.S. passport. 136. By letter dated January 10,2008, the Department's Passport Agency in Charleston, South Carolina, directed that he complete a Supplemental Worksheet detailing his biographical data and provide additional evidence to support his claim of birth in the United States by sending "a combination of early public records created prior to or at the time of [his] birth" within 30 days. See Exhibit C at 15. 137. On February 8, 2008, Mr. Flores, through counsel, sent a letter to the Department explaining that Mr. Flores was attempting to comply with its demands and that he needed an additional 30 days to gather supporting documentation. See id. at 14. 138. On March 3, 2008, Mr. Flores sent the Department the completed Supplemental Worksheet and supporting documents, including the baptismal certificate for his sister, Maria de la Luz Flores Hernandez, showing that she was baptized in Rio Hondo, Texas, on December 12, 1953, and, in turn evidencing his family's physical presence in the United States months prior to
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Mr. Flores's birth. See id. at 3. Mr. Flores also sent his own original baptismal certificate, showing that he had been baptized in Matamoros, Mexico, on September 2, 1955, and indicating that he had been born in Rio Hondo, Texas, on the date indicated in his original birth certificate. Finally, Mr. Flores sent a declaration by his father that explains the circumstances of his birth and why the family moved from Brownsville to Matamoros. See id. at 9.
139. The Department responded by returning his documentation with a form letter, dated March 26, 2008, stating as follows:
Our office wrote to you and requested further information and/or documentation in support of your passport application. We have not received a response from you, or you have not fully complied, with the request for additional information and/or documentation in the referenced correspondence. Therefore, your passport application is being filed without further action. [d. at 1. 140. The letter of March 26,2008, effectively denied Mr. Flores's application for a passport. On information and belief, Mr. Flores asserts that the Department's "closure" of his passport application was the product and function of the policy, pattern, and practice alleged herein. See id. 6. ROCIO FLORES 141. Rocio Flores is the older daughter of Juan Luis Flores. She was born in 1978 in Matamoros, Mexico. 142. Like her younger sister, Rocio Flores was legitimated by her father when, prior to her eighteenth birthday, he filed tax returns, stating under oath that she was his daughter. 143. Also like her sister, Sandra, Rocio Flores claims to have acquired U.S. citizenship through her father. Sandra Flores applied for a Certificate of Citizenship on May 24, 1999, and
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was recognized as a U.S. citizen on March 22,2001, on the basis of her father's U.S. citizenship. Rocio Flores also applied for a Certificate of Citizenship, but with the aid of an accredited representative rather than an attorney. That application was denied on the erroneous ground that she had not been "legitimated" within the meaning of 8 U.S.c. § 1409. The representative did not appeal the denial.
144. On November 27,2007, together with her father and sister, Rocio Flores filed an application for a U.S. passport. The application of Rocio' s sister, Sandra Flores, was approved, and she was issued a U.S. passport.
145. The Department, through its Charleston Passport Agency, responded to Rocio Flores, however, in a letter dated January 10, 2008, demanding additional documentation preferably a USCIS-issued Certificate of Citizenship or a Consular Report of her birth. See Exhibit D at 3. If she could not provide those documents, the letter indicated that she could alternatively submit an "Affidavit of Parentage of Physical Presence" to be filled out by her father on a form supplied by the Passport Office that would require him to detail his physical presence and residence in the United States and abroad prior to Rocio's birth. See id. In addition, the letter instructed her to send public documents that "must account for ten (10) years of physical presence in the United States, at least five (5) of which are after hislher fourteenth birthday." The letter stated that she would be given 30 days to produce this evidence. See id.
146. Ms. Flores complied. On February 8, 2008, through retained counsel, she sent a letter to the Department with an affidavit from her father, Juan Luis Flores, attesting to his physical presence. See id. at 6. She also explained that she was attempting to comply with their
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request for supporting documents and needed an additional 30 days to gather this additional evidence. See id.
147. On March 3, 2008, Rocio Flores sent the Department another letter stating that she did not have additional documentation to support her father's affidavit and requesting an adjudication based on the ample documentation of her father's citizenship previously provided. See id. at 2.
148. The Department responded by form letter (identical to that sent to her father), dated March 26, 2008, indicating that her documents were being returned to her and that her application was "being filed without further action." Id. at 1.
149. The letter of March 26, 2008, in effect denied Ms. Flores's application for a passport. On information and belief, Ms. Flores asserts that the Department's "closure" of her passport application was the product and function of the policy, pattern, and practice alleged herein.
7. J.S. (minor) 150. 1.S. was born in 1994 at the San Juan Maternity Center in San Juan, Texas. His birth was registered with the Hidalgo County Registrar 13 days after he was born. 151. J.S.'s birth was attended by a midwife named Rita V. Colunga. Ms. Colunga appears on the "suspicious midwives list," but is not identified as having been convicted. See Exhibit A at 1. 152. Shortly after he was born, J.S. 's parents, both Mexican citizens who resided in Mexico at the time of his birth, returned to Mexico, taking him with them.
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153. J.S., through his mother, applied for a U.S. passport on January 3, 2008. He presented his "long form" Texas birth certificate, which was signed the day of his birth and filed with the local registrar shortly thereafter.
154. In response to his application, the Department sent a letter, dated January 14, 2008, directing him to complete a biographical Supplemental Worksheet and submit "a combination of early public documents created at the time of [his] birth" and evidence of his mother's residency in the United States at the time of his birth. See Exhibit J at 1.
155. Attempting to comply with this request, the applicant submitted J.S. 's Mexican baptismal certificate, dated July 5, 1998, which shows the date of birth reflected in his original birth certificate, and his Mexican school records from 2005 through 2007. He also submitted a birth certificate and "Statistical Records" (complete with his footprint and his mother's fingerprint), both of which were issued by the San Juan Maternity Clinic, in San Juan, Texas. See id. at 29.
156. Because his mother did not live in the United States at the time of his birth, he could not provide proof that his mother was "residing" there at the time of his birth. He did, however, send his mother's Mexican passport as proof of her place of residency. In the affidavit subsequently provided to the Department (in the applicant's second submission of evidence, dated March 31, 2008), J.S. 's mother explained that she was not then and is not now "residing" in the United States. See id. at 11. She explained that she was present in the United States at the time of J.S. 's birth after crossing into the country with a local crossing card. She further explained that she no longer has this card but now has a current laser visa and the number of her prior document. See id.
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157. On February 21,2008, the Department sent a second request for additional evidence, this time explaining that the midwife who delivered him had been "suspected of filing questionable U.S. birth certificates" and specifically requiring that, within 45 days, he send prenatal and postnatal records and immunization records "created during his infancy." Id. at 23.
158. J.S. responded on or about March 31, 2008, by sending a letter requesting additional time to locate the requested prenatal and postnatal records and enclosing his brother's prenatal records as proof of the legitimacy of the birth facility. See id. at 11, 12. In addition, the applicant submitted the requested records from immunizations during J.S. 's infancy, which were administered between 1994 and 2003 in Mexico, where he and his family resided at that time. See id. at 13-16. 1.S. sent an affidavit from his mother to the Department, explaining that access to public medical care (namely, immunizations) was the reason why she registered 1.S. with the Mexican civil registry. See id. at 12. In addition, J.S. sent the Department the Mexican birth registration, which shows his correct date of birth, but was not registered until more than three weeks after 1.S. was born. See id. at 25.
159. By letter dated April 24, 2008, the Department informed J.S. that it was closing his application "without further action," for failure to provide proof of his "mother's residence in the United States at the time of[his] birth." Id. at 24. The Department returned most of his documents, but not his original, long-form Texas birth certificate.
160. The letter of April 24, 2008, in effect denied 1.S.'s application for a passport. On information and belief, 1.S. asserts that the Department's "closure" of his passport application was the product and function of the policy, pattern, and practice alleged herein.
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8. DAVID HERNANDEZ 161. David Hernandez was born in 1964 in San Benito, Texas. 162. A few months prior to his birth, Mr. Hernandez's mother, a citizen of Mexico and now a lawful permanent resident of the United States, entered the United States with a border crossing card. At the time of Mr. Hernandez's birth, his mother was staying in San Benito, Texas. See Exhibit E. 163. Mr. Hernandez's birth was attended by a midwife named Albina Pedraza. While spending the weekend at the home of nearby friends, Victoria and Carlos Barrientos, David's mother unexpectedly went into labor. See id. at 19. At Victoria Barrientos' suggestion, she enlisted the aid of Ms. Pedraza, a midwife whom her friend had used to assist in the delivery of her own children. See id. Albina Pedraza is on the "suspicious midwives list," but she is not identified as having been convicted. See Exhibit A at 2. 164. Mr. Hernandez's birth was timely registered with the local registrar eight days after he was born. See Exhibit E. 165. Mr. Hernandez's mother returned to Mexico, taking Mr. Hernandez with her, when he was nine days old to be with his maternal grandmother. Mr. Hernandez spent most of his infancy in Mexico, returning briefly to Texas when he was baptized in San Benito. See id. at 8-9. 166. In September 1967, after Hurricane Beulah, Mr. Hernandez and his mother moved back to the Rio Grande Valley, where he lived and attended school. See id. at 9. 167. Mr. Hernandez has also served honorably in the United States Army, where he received various ribbons and medals. See id.
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168. Mr. Hernandez applied for a U.S. passport in 2007. 169. In a letter dated August 3 1, 2007, the Department notified Mr. Hernandez that the birth document he provided, in its view, did not support his claim of U.S. birth and directed that he substantiate his claim by completing a Supplemental Worksheet and sending a combination of contemporaneously-created documents that would evidence his place of birth or his parents' residency in the United States at the time of his birth. See id. at 3. In a letter dated October 22, 2007, the Department also directed that Mr. Hernandez provide "a combination of early public documents created prior to or at the time of [his] birth" within 45 days. See id. at 2. 170. In response, Mr. Hernandez provided a variety of documents to evidence his birth in the United States, including his baptismal certificate, which indicates that he was baptized in San Benito, Texas, on July 3, 1966, and that he was born in San Benito on the date reflected in his original birth certificate, and his Texas Department of Health immunization records, issued by the Harlingen Health Center, which show immunizations administered from 1970 through 1974. See id. at 5, 13. He also provided school records from 1979 to evidence his having attended school in the Harlingen School District. See id. at 16-17. As an explanation of why he could not provide his school records from earlier years, he sent a letter from the Custodian of Records for the Harlingen Public School District stating that Mr. Hernandez's elementary school records are no longer available. See id. at 15. In an effort to forestall any assertion of Mexican birth, Mr. Hernandez requested a search of Mexican birth records for a record of himself and provided the Department with the resulting letter from the Mexican Civil Registry which indicated that no such person existed in their records. See id. at 6-7. To explain further the circumstances of his birth, he submitted affidavits from his mother, see id. at 8-9, and from
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Abundio Barrientos Rios, the daughter of Victoria Barrientos, who was present when David's mother went into labor, see id. at 19. He further attempted to prove the legitimacy of his midwife-assisted birth by sending an open records request to the Texas Midwifery Board, in which he requested the licensure file for Alvina M. Pedraza. The Midwifery Board responded by letter, indicating that no records prior to 1983 were available and that no such file was found in searches of post-1983 records. See id. at 12. Mr. Hernandez also sent this letter to the Department. In addition, he sent the Department his certificate of discharge from the Army, which shows that he served from 1986 through 1989. See id. at 18.
171. The Department responded by letter, dated April 8,2008, asserting that it had "not received a response from [him], or [he had] not fully complied with the request for additional information and/or documentation," and informing Mr. Hernandez that his passport application was therefore being "filed without further action." See Exhibit E at 1. With the letter, the Department returned the numerous documents Mr. Hernandez had submitted.
172. The letter of April 8, 2008, in effect denied Mr. Hernandez's application for a passport. On information and belief, Mr. Hernandez asserts that the Department's "closure" of his passport applications was the product and function of the policy, pattern, and practice alleged herein.
9. JUAN ARANDA 173. Juan Aranda was born in Weslaco, Texas, in 1970, with the aid of a midwife named Manuela Bazan. Ms. Bazan does not appear on the "suspicious midwives list." See Exhibit A. Ms. Bazan signed Mr. Aranda's birth certificate and filed it with the Hidalgo County
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registrar two days after his birth. Mr. Aranda was baptized at St. Joan of Arc Roman Catholic Church in Weslaco on April 26, 1970.
174. Mr. Aranda has lived in the United States his entire life. His mother, Cupertina Espinoza, is originally from Mexico. She moved to South Texas the year before Mr. Aranda was born to work as a live-in housekeeper for a family that owned a flower shop called La Perla, which still exists on the main street of Weslaco. For the last 13 years, Mr. Aranda has worked as a supervisor for a U.S. company that filters and sells drinking water in Mexico.
175. Mr. Aranda applied for a passport on May 23, 2007. With his application, he submitted his birth certificate, and two photographs of himself. On September 7,2007, the Department's Passport Agency in Portsmouth, New Hampshire, sent Mr. Aranda a letter directing him to complete a Supplemental Worksheet that asked for detailed biographical data. See Exhibit F at 5. The Department also instructed him to submit additional evidence to support his claim of birth in the United States by sending "a combination of early public records created prior to or at the time of [his] birth" within 30 days. See id. at 5-10.
176. Mr. Aranda was on a business trip when the letter arrived at his home. By the time he returned, there was insufficient time remaining to respond to the Department's letter. When Mr. Aranda subsequently called the Department to check on the status of his application, he was informed that it had been closed. His documents and photographs were not returned to him.
177. On November 18, 2007, Mr. Aranda applied a second time for a passport. With this application, he re-submitted the same documents he had attached to his first application. To
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obtain those same documents he had to go to his local city hall, pay a fee, and request a duplicate original birth certificate. He also had new photos taken to attach to his second application.
178. On December 18,2007, the Department's Passport Agency in Portsmouth, New Hampshire, sent Mr. Aranda a letter stating that "further information is needed to support your claim of birth in the U.S." See id. at 26. It directed him to "submit a combination of early public records created prior to or at the time of your birth" and listed as examples of such documents his mother's prenatal medical records in the U.S., a newspaper announcement of his birth in the U.S., and his parents' U.S. school records. See id. at 26-27. It also demanded that he complete a Supplemental Worksheet that asked for biographical details. This time, the Department gave Mr. Aranda 45 days to respond, and stated that his application would be denied unless he "adequately address[ed] the requirements above for issuance of a passport." Id. at 26.
179. Mr. Aranda submitted his response to the Department's letter on January 23, 2008, well within the 45-day period the Department told him he had. See id. at 28-29. His response included a completed Supplemental Worksheet, a certified copy of his baptismal certificate, and his official elementary and junior high school records from the Weslaco Independent School District. See id. at 30-41. Additionally, Mr. Aranda submitted his own letter in which he itemized the list of other documents that the Department had provided as examples of what would satisfy its demand for supplemental proof of his U.S. citizenship and explained that he was unable to secure those documents because they did not exist. He stated, for example, that he could not obtain records of his mother's prenatal medical care or medical care at the time of his birth because she did not receive such care from a doctor or hospital. He explained that he had been delivered by a midwife and that he had been unable to locate her or
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any of her family members. In his Supplemental Worksheet, he elaborated that his mother "did not have the resources for [prenatal and postnatal medical care]." Id. at 28. Explaining why he could not provide a newspaper birth announcement, he wrote in his letter that an announcement of his birth was "not put in the newspaper." Id. at 28-29.
180. Despite his timely response to the Department's December 18 letter, Mr. Aranda received a letter from the Department's Portsmouth, New Hampshire Passport Agency on February 1, 2008, stating that it has not "received a response from you, or you have not fully complied, with the request for additional information and/or documentation in the referenced correspondence. Therefore, your passport application is being filed without further action." See id. at 21.
181. In February 2008, Mr. Aranda sent a letter to the Department's Portsmouth, New Hampshire Passport Agency stating that he had "respond[ed] to your questions within the 45 days you gave me." Id. at 22. He further explained that he had enclosed a letter "addressing every question you had on your cover letter" and that he had complied with the other demands in the Department's letter. Id. He concluded his letter stating "I was born and raised in the United States. I attended and graduated from school in the United States. So why is my citizenship being questioned. I respectfully would like to request the reason for the denial of my application for passport." Id.
182. On February 28, 2008, the Department sent Mr. Aranda a one-sentence letter and returned to Mr. Aranda the documents he had submitted with his second application. See id. at 23.
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183. In March, 2008, Mr. Aranda visited Congressman Juan Hinojosa's local office in McAllen, Texas. He later communicated via email with Rosie Cavazos, a member of Congressman Hinojosa's staff, on April 3, 2008, about whether she had been able to contact anyone in reference to his application for a passport. That same day, Ms. Cavazos responded to Mr. Aranda that the Department had found that his application was "not sufficient to satisfy the agency," and that Congressman Hinojosa's office would "also be submitting a formal written request." Mr. Aranda has not heard of any further developments regarding his application. See id. at 46-47.
184. Mr. Aranda traveled to Harlingen on June 19,2008, to speak to an immigration officer about his application. He showed the officer he met with the Department's February 1 letter and asked what he could do. The officer recommended that he tell ChannelS news about what happened to him and stated that it appeared to her based on the documents that he is indeed a U.S. citizen. Mr. Aranda asked if the immigration officer would put this in writing, and the officer responded that she could not do that.
185. The Department's February 1, 2008 letter, in effect denied Mr. Aranda's application for a passport. On information and belief, Mr. Aranda asserts that the Department's "closure" of his passport applications was the product and function of the policy, pattern, and practice alleged herein.
IV. CLASS ALLEGATIONS 186. The cases described above are not isolated instances, but rather a small sampling of the hundreds of cases of people similarly situated to Plaintiffs. Their cases reflect and are the product of the herein-described nationwide discriminatory policy, pattern, and practice.
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187. Plaintiffs herein seek to represent a nationwide class, consisting of all persons (a) who are Mexican-Americans and/or have Latino surnames, (b) whose births in Southwestern border states were attended by midwives or whose citizenship is claimed through a parent whose birth in a Southwestern border state was attended by a midwife, and (c) who have filed or will
file applications for u.s. passports, in whose cases, on or after April 8, 2003, Defendants did, or
will, classify as "filed without further action," treat as abandoned, or otherwise close their applications.
188. On information and belief, Plaintiffs allege that the class as so defined numbers at least in the hundreds.
189. The class is so numerous that joinder of all members would be impracticable. 190. The claims of the Plaintiffs are typical of the claims of the class. 191. The Plaintiffs, and their counsel, can and will fairly and adequately protect the interests of the proposed class. Class counsel are experienced in class action litigation and civil rights litigation of the type involved here. 192. There are questions of law and fact that are common to the class that predominate over any individual questions. Further, Defendants have acted, or refused to act, on grounds generally applicable to the class, making appropriate final injunctive, mandamus, and declaratory relief with respect to the class as a whole.
V. DECLARATORY AND INJUNCTIVE RELIEF ALLEGATIONS 193. An actual and substantial controversy exists between Plaintiffs and Defendants as to their respective legal rights and duties. Plaintiffs contend that Defendants' actions violate Plaintiffs' rights and the rights of proposed class members, including their clear right to have
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their passport applications acted upon in an individualized, fair, and nondiscriminatory manner. On information and belief, Defendants contend that their actions do not violate the rights of Plaintiffs and the proposed class members.
194. Defendants' failure to provide individualized adjudications on the merits to passport applicants categorically deemed "suspicious" because of their perceived Mexican ancestry and midwife-assisted births, and their failure to issue passports despite these applicants' compliance to the extent possible with their arbitrary and burdensome demands for evidence has caused, and will continue to cause, irreparable injury to Plaintiffs and members of the proposed class. Plaintiffs and proposed class members have no plain, speedy, and adequate remedy at law.
195. Based on the foregoing, the Court should grant declaratory and injunctive relief under 28 U.S.C. §§ 1361,2201, and 2202,5 U.S.C. §§ 701-702, and 8 U.S.C. § 1503.
VI. CAUSES OF ACTION A. CLASS-WIDE DECLARATORY JUDGMENTS AND
CORRESPONDING INJUNCTIVE RELIEF (Violation of Due Process under the U.S. Const. Amend. V) 196. Plaintiffs hereby incorporate by reference all allegations of the preceding paragraphs as if fully set forth herein. 197. Defendants' policy, pattern, and practice of treating Plaintiffs and proposed class members as categorically suspicious, subjecting them to burdensome and excessive demands for additional evidence, imposing a heightened burden of proof, and then closing or filing away their fee-paid passport applications, instead of adjudicating them on their individual merits, violates the Due Process Clause of the Fifth Amendment to the U.S. Constitution.
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198. Furthermore, to the extent that applicable regulations afford the Department unfettered discretion and a mechanism for implementing the policy, pattern, and practice complained of herein, such regulations violate the Due Process Clause to the Fifth Amendment of the U.S. Constitution.
B. CLASS-WIDE DECLARATORY JUDGMENTS AND CORRESPONDING INJUNCTIVE RELIEF
(Violation of Equal Protection under the U.S. Const. Amend. V) 199. Plaintiffs herby incorporate by reference all allegations of the preceding paragraphs as if fully set forth herein. 200. On information and belief, Defendants have improperly applied a higher level of scrutiny and imposed additional burdens on Plaintiffs' and proposed class members' passport applications and further classified them as "filed without further action" or otherwise abandoned because they are citizens of Mexican descent or have Latino surnames and their births in Southwestern border states were assisted by midwives. 201. Defendants' decision to take Plaintiffs' and proposed class members' race, ancestry, and ethnicity into account, and base decisions on the same, when processing their passport applications is unconstitutional and violates their Fifth Amendment-protected right to equal protection.
C. CLASS-WIDE DECLARATORY JUDGMENTS AND CORRESPONDING INJUNCTIVE RELIEF (Violation of Administrative Procedure Act)
202. Plaintiffs hereby incorporate by reference all allegations of the preceding paragraphs as if fully set forth herein.
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203. Defendants' "filing without further action" and effective denial of Plaintiffs' applications for U.S. passports constitutes final, adverse agency actions under the Administrative Procedure Act ("APA").
204. Said denials and the processes by which they were reached are arbitrary, capricious, and contrary to law, within the meaning of the APA. See 5 U.S.c. § 703.
205. Alternatively, Defendants' "filing without further action" or effective denial of Plaintiffs' applications for U.S. passports constitutes a failure to act that forms the basis for a reviewing court to compel agency action unlawfully withheld or unreasonably delayed. See 5 U.S.C. § 701.
D. WRIT OF MANDAMUS 206. Plaintiffs hereby incorporate by reference all allegations of the preceding paragraphs as if fully set forth herein. 207. On behalf of the class they seek to represent, Plaintiffs seek a Writ of Mandamus, mandating that Defendants actually and individually adjudicate under the proper standard the passport applications of Plaintiffs and all proposed class members, rather than closing or filing the applications "without further action." 208. Defendants have a ministerial, nondiscretionary duty to Plaintiffs and members of the proposed class to adjudicate their passport applications on their individual merits. 209. Defendants' failure to do so, and instead to create and maintain the policy, pattern, and practice described herein, is tantamount to denying Plaintiffs and proposed class members their constitutionally and statutorily protected rights and privileges.
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210. Plaintiffs and proposed class members have no adequate remedy at law for the failure of Defendants to adjudicate their applications on their individual merits and under the proper standards.
211. The Court should grant relief in the form of a Writ of Mandamus compelling Defendants to adjudicate on the individual merits and under the proper standard the applications of Plaintiffs and proposed class members.
E. DECLARATORY JUDGMENT
INDIVIDUAL ACTIONS 212. Plaintiffs hereby incorporate by reference all allegations of the preceding paragraphs as if fully set forth herein. 213. Plaintiffs have been denied rights and privileges claimed as citizens and nationals of the United States, within the meaning of8 U.S.C. § 1503, by virtue of the denial of their applications for a U.S. passport and consequent inability to travel freely. Therefore, the named Plaintiffs are entitled to bring a declaratory judgment action under 8 U.S.C. § 1503, seeking a declaration that they are, indeed, U.S. citizens.
VII. PRAYER FOR RELIEF WHEREFORE, it is respectfully requested that in view of the above, this Honorable Court grant the following relief:
(1) Assume jurisdiction over the matter; (2) Certify this case as a class action as soon as is practicable; (3) Declare that Defendants' policy, pattern, and practice of treating Plaintiffs and class
members as categorically suspicious; subjecting them to arbitrary, burdensome, and excessive demands for additional evidence; imposing a heightened burden of proof; and then closing or filing away their fee-paid passport applications, instead of adjudicating
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them on their individual merits, violates due process, equal protection, the Administrative Procedure Act, and other applicable law; (4) Grant the requested writs, and set aside the effective denial of Plaintiffs' and class members' applications for United States Passports; (5) Issue a Writ of Mandamus and such other injunctive relief as may be appropriate, mandating that Defendants adjudicate the passport applications of Plaintiffs and all class members on an individualized nondiscriminatory basis in a manner consistent with the applicable burden of proof; (6) Further declare that Plaintiffs are U.S. citizens and permanently restrain and enjoin Defendants from withholding the requested passports; (7) Award reasonable attorney fees and costs pursuant to the Equal Access to Justice Act and such other law as may be applicable; and (8) Grant such other and further relief as the Court may consider appropriate.
Respectfully submitted, sf Lisa S. Brodyaga, Federal Id: 1178, Texas State Bar: 03052800 Attorney at Law Refugio del Rio Grande, Inc. 17891 Landrum Park Road San Benito, TX 78586 (956) 421-3226 (956) 421-3423 (fax) Attorney- In-Charge
Robin L. Goldfaden* American Civil Liberties Union Foundation Immigrants' Rights Project 39 Drumm Street San Francisco, CA 94111 (415) 343-0776 (415) 395-0950 (fax)
Vanita Gupta· American Civil Liberties Union Foundation Racial Justice Program
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125 Broad Street New York, NY 10004 (212) 549-2607 (212) 549-2651 (fax) Lisa Graybill, Texas State Bar: 24054454 American Civil Liberties Union Foundation of Texas P.O. Box 12905 Austin, TX 78711 (512) 478-7300 (512) 478-7303 (fax) Adam K. Levin* Melissa N. Henke* David 1. Weiner* Robert B. Wolinsky* Hogan & Hartson LLP 555 13th Street, NW Washington, DC 20004 (202) 637-5600 (202) 637-5910 (fax)
*Applications for pro hac vice admission forthcoming.
55

 </s> UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF TEXAS MCALLEN DIVISION

AMALIA RAMIREZ CASTELANO,

§

ARTURO GARCIA, SOFIA ELIZABETH §

LOPEZ, MIRIAM SUJEE GONALEZ,

§

JUAN LUIS FLORES, ROCIO FLORES,

§

J.S. a minor by and through his next friend §

Sonia Raquel Cantu-Sanchez, DAVID

§

HERNANDEZ, and JUAN ARANDA,

§

on their own behalf, and on behalf of all

§

others similarly situated,

§

§

Petitioners/Plaintiffs

§

§

v.

§

§

CONDOLEEZZA RICE, Secretary of State, §

PATRICK F. KENNEDY, Under Secretary §

for Management MAURA HARTY,

§

Assistant Secretary of State for Consular

§

Affairs, ANN BARRETT, Managing

§

Director, Passport Services Directorate,

§

and UNITED STATES OF AMERICA,

§

§

Respondents/Defendants

§

CA M-08-057

DEFENDANTS' PARTIAL MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM PURSUANT TO FED.R.CIV.PRO. 12(b)6) AND MOTION TO SEVER
PRELIMINARY STATEMENT The nine individual plaintiffs in this case claim to be U.S. citizens who have been wrongly denied a U.S. passport by the Passport Services Directorate of the Department of State (“Passport Office”). In their Second Amended Complaint, plaintiffs rely on the same exact set of alleged facts to support three very different causes of action, including relief under the

Administrative Procedures Act (“APA”), 5 U.S.C. § 701 et seq., 8 U.S.C. § 1503 (“section 1503), and a request for a writ of mandamus. As the Second Amended Complaint (“Complaint”) stands, however, plaintiffs have not plead sufficient facts supporting their right to each type of relief; rather, because they incorporate by reference each and every preceding allegation, plaintiffs have incorporated facts which cannot and do not support the relief requested. Thus this Court should dismiss plaintiffs’ claims under the APA and for a writ of mandamus.
Alternatively, as plaintiffs concede in their Complaint, there is an adequate remedy at law available to them under 8 U.S.C. § 1503, and thus the court must dismiss for failure to state a claim plaintiffs’ request for a writ of mandamus and for relief under the APA.
Finally, as plaintiffs claims’ under section 1503 are inherently individual claims requiring individual adjudication by this Court, the Court should sever the individual claims under section 1503.
BACKGROUND The Secretary Of State Has Authority To Issue Passports And Broad Discretion Over The Manner And Process Of Issuance.
The Passport Act of 1926 provides that the "Secretary of State may grant and issue passports under such rules as the President shall designate and prescribe for and on behalf of the United States." 22 U.S.C. § 211a. Pursuant to this broad authority, the Secretary of State has promulgated various regulations concerning the application process. For example, “the applicant has the burden of proving that he or she is a U.S. citizen or non-citizen national.” 8 C.F.R. § 51.40. In determining whether the applicant has met this burden, the Secretary has broad discretion to determine what evidence is sufficient. Thus, persons born in the U.S. applying for
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a passport for the first time generally must produce a birth certificate that “. . . show[s] the full name of the applicant, the applicant's place and date of birth, the full name of the parent(s), and must be signed by the official custodian of birth records, bear the seal of the issuing office, and show a filing date within one year of the date of birth.” 22 C.F.R. § 51.42(a).
A birth certificate, however, is not all the documentation that may be required. “If the applicant cannot submit a birth certificate that meets the requirement of paragraph (a) of this section, he or she must submit secondary evidence sufficient to establish to the satisfaction of the Department that he or she was born in the United States. Secondary evidence includes but is not limited to hospital birth certificates, baptismal certificates, medical and school records, certificates of circumcision, other documentary evidence created shortly after birth but generally not more than 5 years after birth, and/or affidavits of persons having personal knowledge of the facts of the birth.” 22 C.F.R. § 51.42(b) (emphasis added.)
And this broad discretion permits the Secretary to seek additional documents as the Secretary deems necessary. Specifically, “The Department may require an applicant to provide any evidence that it deems necessary to establish that he or she is a U.S. citizen or non-citizen national, including evidence in addition to the evidence specified in 22 C.F.R. § 51.42 through 51.44.” 22 C.F.R. § 51.45 (emphasis added.)
ANALYSIS I. STANDARD OF REVIEW.
A motion to dismiss under Rule 12(b)(6) should be granted where it appears beyond doubt “that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Blackburn v. City of Marshall, 42 F.3d 925, 931 (5th Cir. 1995). Although the district
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court must accept the well-pleaded factual allegations of the complaint as true, “conclusory allegations or legal conclusions masquerading as factual conclusions will not suffice to prevent a motion to dismiss.” Fernandez-Montes v. Allied Pilots Ass’n, 987 F.2d 278, 284 (5th Cir. 1993) (emphasis added). The ultimate question in a Rule 12(b)(6) motion is whether the complaint states a valid cause of action when it is viewed in the light most favorable to the plaintiff and with every doubt resolved in favor of the plaintiff. Lowrey v. Texas A&M University System, 117 F.3d 242, 247 (5th Cir. 1997). A court, however, is not to strain to find inferences favorable to the plaintiff and is not to accept conclusory allegations, unwarranted deductions or legal conclusions. R2 Invs. LDC v. Phillips, 401 F.3d 638, 642 (5th Cir. 2005) (citations omitted). The court does not evaluate the plaintiff’s likelihood of success; instead, it only determines whether the plaintiff has a legally cognizable claim. United States ex rel. Riley v. St. Luke’s Episcopal Hosp., 355 F.3d 370, 376 (5th Cir. 2004). II. THE COMPLAINT IS INHERENTLY SELF-CONTRADICTORY AND FAILS
UNDER RULE 8. Federal Rule of Civil Procedure 8(d)(2) permits a party to plead in the alternative and Rule 8(e) permits separate claims regardless of consistency. However, "a court need not feel constrained to accept as truth conflicting pleadings that make no sense, or that would render a claim incoherent, or that are contradicted either by statements in the complaint itself or by documents upon which its pleadings rely, or by facts of which the court may take judicial notice." In re Livent, Inc. Noteholders Sec. Litig., 151 F. Supp. 2d 371, 405-06 (S.D.N.Y. 2001). The Livent court recognized that prior amendments to Rule 8 were meant to do away with some
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amount of the formalism of the past and that Rule 8 permitted a complaint to incorporate alternative statements and plead separate claims "regardless of consistency." See Rule 8(e).1
The Livent court noted that this permissive standard “cannot be construed as an invitation to incoherent, self-contradictory pleadings.” Id. at 406. Moreover, although separate claims may be permitted, “each unitary claim must be sufficient standing on its own.” Id. at 407. But “[t]hat is not to say, however, that Rule 8(e) grants plaintiffs license to plead inconsistent assertions of facts within the allegations that serve as the factual predicates for an independent, unitary claim.” Id. Rather, “[i]nternally conflicting factual assertions that constitute integral components of a claim must be distinguished from a permissible alternative statement embodying a theory of a whole sufficient claim.” Id.
In this instance, plaintiffs’ Complaint sets forth conflicting factual assertions that lead to an inconsistent set of facts which fail to support their particular claims. Plaintiffs admit in paragraph 79 that they have the option to “. . . petition a federal court to render a de novo determination of citizenship . . . ,” and similarly assert in the last sentence of paragraph 4 that plaintiffs’ available recourse includes the ability to “file a lawsuit.” Plaintiffs then incorporate these allegations into their cause of action seeking a writ of mandamus. Such admissions and contentions actually serve to deny plaintiffs’ claim for mandamus relief, by flatly contradicting their conclusion in paragraph 211 that they have been left without an adequate remedy at law. To establish mandamus jurisdiction, a petitioner must establish that there is no other adequate remedy available. See Heckler v. Ringer, 466 U.S. 602, 616-17 (1984). Thus, by asserting facts
1 Defendants note that Rule 8 was amended in 2007, after the Livent decision, and section 8(e)(2) was deleted. However, current provisions 8(d)(2) and 8(e) are consistent with the provisions relied on in the Livent decision.
4

in their mandamus claim that they have an adequate remedy, plaintiffs’ claim for mandamus must fail. Moreover, as set forth in detail below, leave to amend should be denied as to this claim as plaintiffs concede (and defendants do not dispute under the facts alleged in the Complaint) that plaintiffs may pursue an individual action for relief under Section 1503.
Paragraphs 4 and 79 are also incorporated into plaintiffs’ cause of action under the APA. But such admissions defeat their claim for relief under the APA, as the APA must give way to statutes such as 8 U.S.C. § 1503, where Congress provided for specific jurisdiction. The APA, by its terms, provides a right to judicial review of all “final agency actions for which there is no other adequate remedy in a court.” 5 U.S.C. § 704.
In addition to these allegations, plaintiffs’ Complaint asserts specifically that they have the right to bring a section 1503 claim based on their factual allegations: In paragraph 213, plaintiffs allege that there has been a “denial of their passport applications” such that they have been denied a right and privilege sufficient to support a section 1503 declaratory judgment action. Defendants do not contest plaintiffs’ ability to bring an individual section 1503 claim under the factual allegations brought in the Complaint.
As a result, both because plaintiffs plead facts in their APA claim which demonstrate that they have an adequate remedy under section 1503, and because they assert a separate right to relief under section 1503, plaintiffs’ APA claims must also fail. Moreover, as set forth in detial below, since plaintiffs do have an adequate remedy under section 1503, leave to amend should be denied.
5

III. PLAINTIFFS’ MANDAMUS CLAIMS ARE BARRED AS A MATTER OF LAW, AND THEREFORE SHOULD BE DISMISSED WITHOUT LEAVE TO AMEND.
To establish mandamus jurisdiction, a petitioner must show that: (1) he has a clear right
to relief; (2) the defendant has a clear, non-discretionary duty to act; and (3) there is no other
adequate remedy available. Heckler, 466 U.S. at 616-17; In re Bankers Trust Co., 61 F.3d 465,
469 (6th Cir. 1995).
Section 1503 states in pertinent part:
(a) Proceedings for declaration of United States nationality If any person who is within the United States claims a right or privilege as a national of the United States and is denied such right or privilege by any department or independent agency, or official thereof, upon the ground that he is not a national of the United States, such person may institute an action under the provisions of section 2201 of Title 28 against the head of such department or independent agency for a judgment declaring him to be a national of the United States....
8 U.S.C. § 1503(a). The statute specifically provides an adequate remedy for plaintiffs, and
therefore plaintiffs cannot seek mandamus relief. Looking at the four corners of the complaint,
and assuming the allegations as true, the court must conclude that they allege an adequate remedy
available under this statute, and therefore mandamus relief is improper. For example, plaintiffs
allege:
• in paragraph 2 that they are U.S. citizens; • in paragraph 4 that a lawsuit is one available recourse; • in paragraph 11 that they have been stripped of their rights and benefits of U.S. citizenship; • in paragraph 79 that they have the right to petition this court under 1503; • in paragraphs 103, 110, 122, 131, 140, 149, 172, and 185160, that defendants action in
effect constituted a denial of their passport application; • in paragraph 203 they conceded that defendants action constitutes final agency action,
and incorporate this allegation into their 1503 claim; and • in paragraph 213 plaintiffs allege that there has been a “denial of their passport
applications” such that they have been denied a right and privilege sufficient to support a 8 U.S.C. § 1503 declaratory judgment action
6

Taking such allegations as true, and conceding as they do that plaintiffs in fact have an adequate remedy available to them, there is no basis in fact or in law for mandamus relief. Moreover, defendants do not challenge plaintiffs’ ability to assert a section 1503 claim. Quite the contrary, in its concurrently-filed answer, defendants assert that circumstances plead permit plaintiffs, as individuals, to bring such an action. Thus, as a matter of law, this court should grant defendants motion to dismiss, and deny leave to amend. IV. PLAINTIFFS CANNOT SEEK APA REVIEW BECAUSE SECTION 1503 IS THE
ONLY STATUTE UNDER WHICH SUCH A CLAIM MAY BE ASSERTED, AND IT PROVIDES AND ADEQUATE REMEDY. As Congress has provided an effective remedy under section 1503 for all individuals for whom the Department of State has denied a passport, and whom claim a right as a national, none of plaintiffs’ claims are amenable to resolution under the APA, and plaintiffs fail to state a claim for which relief may be granted with respect to those APA claims. The APA, by its terms, provides a right to judicial review of all “final agency actions for which there is no other adequate remedy in a court.” 5 U.S.C. § 704. Plaintiffs cannot prevail on their APA claim alleging that defendants have denied issuance of a passport to them because 8 U.S.C. § 1503 specifically provides them with an adequate remedy at law, as plaintiffs themselves allege in paragraphs 79 and 213 of the Second Amended Complaint. In fact, assuming the allegations in the complaint to be true, as required when considering a motion to dismiss, plaintiffs are U.S. citizens who have been wrongly denied a passport. Thus, section 1503 provides for specific subject matter jurisdiction, as well as a cause of action. 8 U.S.C. § 1503(a) (“an action under this subsection . . . shall be filed in the district court of the United States for the district in which such person resides or claims a
7

residence, and jurisdiction over such officials in such cases is conferred upon those courts”). Moreover, because Congress specifically provided this statutory basis for such claims, the general causes of action under the APA do not apply. See 5 U.S.C. § 702 (providing that there is no APA jurisdiction where “any other statute that grants consent to suit expressly . . . .”); United States v. Fausto, 484 U.S. 439, 448-49 (1988) (general grants of jurisdiction cannot be relied upon in the face of a specific statute that confers and conditions jurisdiction). Where Congress specifically provides for district court jurisdiction over such a claim, assertion of any other basis of jurisdiction contradicts Congressional intent.
Where, as here, plaintiffs cannot overcome the legal obstacles and effectively amend to bring and APA claims, defendants respectfully request that the court grant its motion to dismiss without leave to amend. V. PLAINTIFFS ARE IMPROPERLY JOINED AND THIS COURT SHOULD
SEVER THE REMAINING INDIVIDUAL CLAIMS. The individual plaintiffs do not assert a right to relief under section 1503 that "arises out of the same transaction, occurrence, or series of transactions or occurrences" as required under Fed. R. Civ. P. 20(a).2 Because the factual allegations and legal interests for each plaintiff are unrelated and dissimilar to those of other plaintiffs, plaintiffs fail to satisfy the permissive joinder requirements of Rule 20(a). Additionally, allegations of general and unrelated delay in adjudication do not satisfy Rule 20(a). See Coughlin v. Rogers, 130 F.3d 1348 (9th Cir. 1997).
2 Two requirements must be met for joinder to be allowed: “All persons may join in one action as plaintiffs if they assert any right to relief jointly, severally, or in the alternative in respect of or arising out of the same transaction, occurrence, or series of transactions or occurrences and if any question of law or fact common to all these persons will arise in the action.” Fed. R. Civ. P. 20(a).
8

Consequently, defendants respectfully move to sever all the causes of action of all remaining plaintiffs from the claims of plaintiff Castelano on the grounds of misjoinder. Fed. R. Civ. P. 20(b), 21.3
In determining whether severance is appropriate, a court considers: (1) whether the claims arise out of the same transaction or occurrence; (2) whether the claims present common questions of law or fact; and (3) whether prejudice to a substantial right would be avoided if severance was granted. Coughlin, 130 F.3d at 1350 (finding joinder inappropriate due to unique nature of each naturalization application).
A. No Common Transaction or Occurrence Exists Amongst Plaintiffs. First, each plaintiff’s passport application was executed separately and independently from one another. Therefore, it cannot be said that plaintiffs’ claims arise from the same transaction or occurrence. Moreover, plaintiffs’ claims of citizenship rest on different grounds. For example, plaintiff Rocio Flores’ claim is a claim of derivative citizenship, not her birth in the United States, and thus has different evidentiary requirements than many of the other plaintiffs, all of whom claim birth in the United States. See Complaint, ¶¶ 141, 143. Plaintiff Arturo Garcia claims birth in the United States, and no midwife was listed on the birth certificate provided with his passport application. Id. at ¶ 104. However, his birth was registered 47 (fortyseven) years after his birth. See id. at ¶ 105. Each plaintiff filed their applications separately, separately
3 Failure to satisfy either of the two requirements for joinder is a sufficient basis for the Court to sever the claims. Upon a finding of misjoinder, "[p]arties may be dropped or added by order of the court on motion of any party or of its own initiative at any stage of the action and on such terms as are just. Any claim against a party may be severed and proceeded with separately." Fed. R. Civ. P. 21.
9

signed their applications under oath, and each application was adjudicated separately. See Complaint, ¶¶ 87-185, inclusive.
The existence of a common allegation of delay of adjudication or failure to adjudicate, in and of itself, does not suffice to create a common transaction or occurrence. Coughlin, 130 F.3d at 1350. In Coughlin, 49 plaintiffs sought a writ of mandamus compelling the former INS to adjudicate their pending applications or petitions. "[T]he basic connection among all the claims [was] the alleged procedural problem of delay." Id. The court of appeals rejected that as a basis for finding a common transaction or occurrence, noting in relevant part:
[e]ach Plaintiff has waited a different length of time, suffering a different duration of alleged delay. Furthermore, the delay [was] disputed in some instances and varies from case to case. Id. The same is true here. Although delay or “failure to deny” may be a common thread in all the claims, the reasons for the results in each case depend on the applicant’s particular circumstances. In some cases applicants may have failed to submit requested information, others may have not submitted requested information in a timely fashion, other may have submitted copies of birth certificates with wildly differing results, such as plaintiff Sofia Lopez, who admits to being named in two birth certificates, one alleging birth in the United States, the other alleging birth in Mexico. Complaint, ¶¶ 112, 115. Because each applicant’s particular circumstances vary, the reasons for the delay in adjudicating applications vary. Therefore, the delay itself is not a common transaction or occurrence.
10

B. No Common Questions Of Law Or Fact Exist Amongst Plaintiffs. 1. Plaintiffs’ combined legal claims alone are too numerous and different to support joinder.
Plaintiffs’ allegations of due process rights violations similarly would require individualized adjudication and consideration. See Nguyen Da Yen v. Kissinger, 70 F.R.D. 656 (N.D. Cal. 1976). In Nguyen, plaintiffs alleged that Vietnamese children were brought to the United States in violation of due process without proper documentation showing that they were orphaned. Id. In response, the court held that the requirements of Rule 23(b)(2) were not satisfied because, even if a class were certified, the court would be faced with "[s]ome two thousand individual adjudications." Id. In so finding, the court based its holding on a determination that the requirement of a "close identity" between plaintiffs was lacking because of the individualized nature of each person’s due process claim. Id.
2. Claims of citizenship for passport applications are individual and do not present common questions of law or fact.
No common question of fact arises with regards to applications for passports. Each application for a United States passport reflects the particular circumstances of the applicant and requires separate adjudication by the Passport Office. Similarly, a court taking jurisdiction to review a denial of a passport on grounds of a failure to establish nationality under 8 U.S.C. § 1503 would require an individual hearing. As another district court noted when granting severance under a different statute requiring individual hearings, each application would have to be addressed separately by the court. Abdelkarim v. Gonzales, 2007 WL 1284924 (E.D. Mich. 2007).
11

Here, each plaintiff presents a different factual situation. Thus, each plaintiff must receive personalized attention by the Passport Office and, ultimately, this Court. Consequently, there can be no common issues of fact or law. Also, the mere fact that all plaintiffs’ claims arise under the same general law does not necessarily establish a common question of law or fact:
Clearly, each plaintiffs’ claim is discrete, and involves different legal issues, standards and procedures. Indeed, even if plaintiffs’ cases were not severed, the Court would still have to give each claim individualized attention. Therefore, the claims do not involve common questions of law or fact. Coughlin, 130 F.3d at 1351. Moreover, an allegation of similarity of claims cannot serve as a basis for joinder where it is irrelevant to the plaintiffs’ individual claims. See Saval v. BL Ltd., 710 F.2d 1027, 1031-32 (4th Cir. 1983) (claims of similarity in automobile defects were irrelevant to the warranty relief sought and did not satisfy the transaction-or-occurrence test). Rule 20 of the Federal Rules of Civil Procedure is designed to promote trial convenience and to expedite the final determination of disputes. Saval, 710 F.2d at 1031; League to Save Lake Tahoe v. Tahoe Regional Planning Agency, 558 F.2d 914, 917 (9th Cir. 1977). In a mandamus/APA action such as this one, the common allegation of delay does not alter plaintiffs’ legal rights or remedies. Nor does the common allegation of delay aid in the Court’s disposition of plaintiffs’ claims. Because plaintiffs can not demonstrate how each of their cases arises from the same transaction or occurrence, or show how each case involves common questions of law or fact, defendants respectfully request that the Court sever these claims so that each it can consider each the facts of each individual case separately.
12

CONCLUSION Plaintiffs’ Complaint fails to plead inherently contradictory claims in the alternative, asserting for each of the causes of action allegations of fact that defeat plaintiffs’ claims under the APA and the Mandamus Act. Moreover, both APA and mandamus relief require the unavailability of specific adequate remedy, provided by Congress for claims such as plaintiffs under 8 U.S.C. § 1503. Accordingly the Court should dismiss Plaintiffs’ claims under the APA and mandamus for failure to state a claim. Further, as individual plaintiff’s are misjoined, the Court should sever the claims of all remaining plaintiffs from the claims of plaintiff Castelano.

Dated: October 15, 2008
DONALD J. DEGABRIELLE JR United States Attorney
LISA LUIS United States Attorney's Office Southern District of Texas PO Box 61129 Houston, TX 77208 713-567-9534 Fax: 713-718-3303 Email: lisa.luis@usdoj.gov

GREGORY G. KATSAS Assistant Attorney General
S/ Elizabeth J. Stevens ELIZABETH J. STEVENS (VA Bar No. 47445)* Assistant Director District Court Section Office of Immigration Litigation Civil Division U.S. Department of Justice P.O. Box 868, Ben Franklin Station Washington, D.C. 20044 Tel: (202) 616-9752 Fax: (202) 305-7000 E-mail: Elizabeth.Stevens@USDOJ.gov

Counsel for Federal Defendants * application for pro hac vice admission pending

13

CERTIFICATE OF SERVICE

I hereby certify that on October 15, 2008, I electronically filed the foregoing with the Clerk of the Court by using the CM/ECF system which will send a notice of electronic filing to the following attorneys of record:

Elisabeth Lisa S. BRODYAGA Attorney at Law 17891 Landrum Park Road San Benito, Texas 78586 Email: lisabrodyaga@aol.com

Lisa GRAYBILL ACLU FOUNDATION OF TEXAS P.O. Box 12905 Austin, TX 78711 Email: Lgraybill@aclutx.org

In addition, I certify that on October 15, 2008, I provided true and correct copies of the foregoing document via e-mail on the following non-ECF filers, who are not yet attorneys of record but are listed as new counsel on plaintiffs’ latest filing:

Robin L. GOLDFADEN ACLU FOUNDATION Immigrant Rights Project 39 Drumm Street San Francisco CA 94111 Email: rgoldfaden@aclu.org

Vanita GUPTA ACLU FOUNDATION Racial Justice Program 125 Broad Street New York, NY 10004 Email: vgupta@aclu.org

Adam K. LEVIN Email: AKLevin@HHLAW.com Melissa N. HENKE Email: MNHenke@HHLAW.com David J. WEINER Email: DJWeiner@HHLAW.com Robert B. WOLINSKY Email: RBWolinsky@HHLAW.com HOGAN & HARTSON LLP 555 13th Street, NW Washington, D.C. 20004

/s/ Elizabeth J. Stevens Assistant Director United States Department of Justice

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF TEXAS MCALLEN DIVISION

AMALIA RAMIREZ CASTELANO,

§

ARTURO GARCIA, SOFIA ELIZABETH §

LOPEZ, MIRIAM SUJEE GONALEZ,

§

JUAN LUIS FLORES, ROCIO FLORES,

§

J.S. a minor by and through his next friend §

Sonia Raquel Cantu-Sanchez, DAVID

§

HERNANDEZ, and JUAN ARANDA,

§

on their own behalf, and on behalf of all

§

others similarly situated,

§

§

Petitioners/Plaintiffs

§

§

v.

§

§

CONDOLEEZZA RICE, Secretary of State, §

PATRICK F. KENNEDY, Under Secretary §

for Management MAURA HARTY,

§

Assistant Secretary of State for Consular

§

Affairs, ANN BARRETT, Managing

§

Director, Passport Services Directorate,

§

and UNITED STATES OF AMERICA,

§

§

Respondents/Defendants

§

CA M-08-057

PROPOSED ORDER
Now, this __ day of ______, 2008, Defendants’ motion to dismiss Plaintiffs claims for relief under the Administrative Procedure Act and seeking a writ of mandamus under Rule 12(b)(6) of the Federal Rules of Civil Procedure is hereby GRANTED. Plaintiffs are denied leave to amend. Defendants motion to sever the individual claims of Plaintiffs is granted, with each plaintiff to refile an individual action.
__________________________ CRANE, RANDY U.S. District Court Judge

 </s> Case 7:08-cv-00057 Document 89 Filed in TXSD on 06/26/09 Page 1 of 24

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS
McALLEN DIVISION

)

AMALIA RAMIREZ CASTELANO, et al.,

)

on their own behalf, and on behalf of all others

)

similarly situated,

)

)

PLAINTIFFS-PETITIONERS,

)

)

v.

)

)

HILLARY RODHAM CLINTON, Secretary of State, )

et al.,

)

)

DEFENDANTS-RESPONDENTS.

)

)

CA M-08-057 (Class Action)

EMERGENCY JOINT MOTION FOR EXPEDITED PRELIMINARY APPROVAL OF THE CLASS ACTION SETTLEMENT AGREEMENT AND EXPEDITED FAIRNESS
HEARING AND MOTION FOR CLASS CERTIFICATION FOR SETTLEMENT PURPOSES ONLY

This Emergency Joint Motion for Expedited Preliminary Approval of the Class Action

Settlement Agreement and Expedited Fairness Hearing and Motion for Class Certification for

Settlement Purposes Only is respectfully filed, through counsel, by Plaintiffs Amalia Ramirez

Castelano, Sofia Elizabeth Lopez, and J.S., a minor by and through his next friend Sonia Raquel

Cantu-Sanchez (collectively, “Plaintiffs”), on behalf of themselves and a putative class of all

others similarly situated, and Defendants Hillary Rodham Clinton, Secretary of State; Patrick F.

Kennedy, Under Secretary for Management; Janice Jacobs, Assistant Secretary of State for

Consular Affairs; Florence Fultz, Managing Director, Passport Services Directorate; and the

United States of America (collectively, “Defendants”). The parties respectfully request that the

Court:

(a) Grant preliminary approval of the proposed settlement agreement (attached hereto

as Exhibit 1);

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Case 7:08-cv-00057 Document 89 Filed in TXSD on 06/26/09 Page 2 of 24
(b) Conditionally certify the class for settlement purposes, subject to final certification in connection with final approval of the settlement;
(c) Approve the form and method of notifying the class of the proposed settlement; (d) Set an expedited schedule for the Fairness Hearing and other appropriate dates
and (e) After the hearing, certify the class and grant final approval to the settlement. Further, the parties respectfully request that the Court expedite its preliminary approval of the settlement and schedule a Fairness Hearing as soon as practical, in view of the exigent circumstances surrounding this matter. Members of the proposed settlement class seek to immediately re-apply for their passports, which have now become a necessity for them to cross the US-Mexico land border, as the final phase of the Western Hemisphere Travel Initiative (“WHTI”) went into effect June 1, 2009. Prompt approval of the settlement will help mitigate the effects of WHTI on the proposed class. Accordingly, the public interest would be served best by prompt approval of the parties’ settlement.
2

Case 7:08-cv-00057 Document 89 Filed in TXSD on 06/26/09 Page 3 of 24

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS
McALLEN DIVISION

)

AMALIA RAMIREZ CASTELANO, et al.,

)

on their own behalf, and on behalf of all others

)

similarly situated,

)

)

PLAINTIFFS-PETITIONERS,

)

)

v.

)

)

HILLARY RODHAM CLINTON, Secretary of State, )

et al.,

)

)

DEFENDANTS-RESPONDENTS.

)

)

CA M-08-057 (Class Action)

MEMORANDUM IN SUPPORT OF THE EMERGENCY JOINT MOTION FOR EXPEDITED PRELIMINARY APPROVAL OF THE CLASS ACTION SETTLEMENT
AGREEMENT AND EXPEDITED FAIRNESS HEARING AND MOTION FOR CLASS CERTIFICATION FOR SETTLEMENT PURPOSES ONLY
Plaintiffs and Defendants jointly submit this Memorandum in Support of the Emergency

Joint Motion for Expedited Preliminary Approval of the Class Action Settlement Agreement and

Expedited Fairness Hearing and Motion for Class Certification for Settlement Purposes Only.

For the reasons articulated in the motion and this supporting memorandum, the parties

respectfully request that the Court promptly grant preliminary approval of the settlement

agreement, preliminary certification of the proposed settlement class, approval of class notice

procedures, and an order establishing dates for a Fairness Hearing. The parties further request

that the Court certify the proposed settlement class for settlement purposes only pursuant to

Federal Rule of Civil Procedure 23.

Finally, the parties respectfully request that the Court expedite its preliminary approval of

the settlement and schedule the Fairness Hearing as soon as practical, in view of the exigent

circumstances surrounding this matter. Members of the proposed settlement class seek to

1

Case 7:08-cv-00057 Document 89 Filed in TXSD on 06/26/09 Page 4 of 24
immediately re-apply for their passports, which have now become a necessity for them to cross the US-Mexico land border, as the final phase of the Western Hemisphere Travel Initiative (“WHTI”) went into effect June 1, 2009. Prompt approval of the settlement will help mitigate the effects of WHTI on the proposed class.
STATEMENT OF FACTS A. Nature of the Case Plaintiffs, on behalf of themselves and those who are similarly situated, alleged that Defendants engaged in a policy, pattern, and practice of applying heightened scrutiny to a class of passport applicants whose births in Southwest border states were attended by midwives or birth attendants, or whose citizenship was claimed through a parent whose birth in a Southwestern border state was attended by a midwife or birth attendant. See Sec. Am. Compl. ¶ 5. Plaintiffs alleged that these passport applicants were subjected to excessive demands for documentation of birth in the United States that went beyond what other applicants were required to submit. See id. ¶ 7. Plaintiffs further alleged that, even after applicants responded to the demands for additional information, the State Department, without a proper individualized, evidence-based adjudication of the merits of each application, deemed their applications “filed without further action” or otherwise abandoned and closed and refused to issue them passports. See id. ¶ 8. Based on these allegations, Plaintiffs, on behalf of themselves and those who are similarly situated, asserted claims under the Fifth Amendment for violations of due process and equal protection, and the Administrative Procedure Act, 28 U.S.C. § 1361, and 28 U.S.C. §§ 2201-02. See Sec. Am. Compl. ¶¶ 196-211. In their Second Amended Complaint, filed September 16, 2008, Plaintiffs sought declaratory, injunctive, and mandamus relief on behalf of
2

Case 7:08-cv-00057 Document 89 Filed in TXSD on 06/26/09 Page 5 of 24
themselves and a proposed class. See id. at 53-54 (Prayer for Relief). Though Plaintiffs also raised claims individually under 8 U.S.C. § 1503(a) (Id. ¶¶ 212-13), Plaintiffs recently moved to sever these claims. See D.E. 88.
Defendants answered the Second Amended Complaint, denying these allegations and asserting numerous defenses.
B. Proposed Settlement Agreement After several months of negotiations, the parties reached a settlement that will dispose of this action. The terms of the parties’ settlement are embodied in the Stipulation and Agreement of Settlement and Release (the “Settlement Agreement”). See Exhibit 1. The settlement confers significant benefits on the Plaintiffs and all Class Members.1 The key terms of the Settlement Agreement include the following:
• Class Members who did not receive a passport may re-apply without paying the passport application fee again, as long as they complete a claim submission process within the proper deadlines. They may also avoid the $25 passport execution fee if they re-apply at a Passport Agency/Center or at one of the five temporary mobile units the State Department agreed to provide in southern Texas. Id. ¶¶ 30-33;
• The State Department will revise and reinforce its standards for maintaining and using a list of midwives and birth attendants convicted or suspected of engaging in birth certificate fraud in the passport application review process. Id. ¶ 53;
• The State Department will no longer send “filed without further action” letters or designate passport applications as “abandoned” or otherwise closed. As part of a
1 Unless otherwise noted, capitalized terms have the same meaning as defined in the Settlement Agreement.
3

Case 7:08-cv-00057 Document 89 Filed in TXSD on 06/26/09 Page 6 of 24
series of new procedures designed for Class Members and others, Class Members’ passport applications will either be approved and a passport issued, or denied by the Department, unless withdrawn in writing by the Class Member. Id. ¶ 25; • The State Department will improve its procedures for communicating with Class Members when requesting additional information, and in those instances where an application is being denied. Id. §§ C & D; • The State Department will provide additional training to its personnel to explain, communicate, and reinforce adherence to the appropriate standards and policies for reviewing passport applications. Id. ¶¶ 54-57; • The State Department will establish a review process so that Class Member reapplications will be initially reviewed by a senior-level employee specially trained by the Department. In those instances where a passport is not issued at this stage, a three-member panel made up of senior-level employees will then review the entire application and make the decision to approve the application and issue a passport or deny the application. Id. ¶¶ 34-47; and • Class Members who are denied passports will have an additional sixty days to respond to the specific reasons for the denial of their application. The threemember panel will review any such responses and additional information before making a final decision. Id. ¶¶ 45. In addition to these terms, the Settlement Agreement provides that, in consideration of the other provisions in the agreement, Class Members release all Defendants from all Settled Claims, as defined in paragraph 13 of the Settlement Agreement, and with no admission of wrongdoing by the Defendants. See Id. ¶¶ 16-17 & 88. It further provides for the payment of
4

Case 7:08-cv-00057 Document 89 Filed in TXSD on 06/26/09 Page 7 of 24
attorneys’ fees in the amount of $150,000.00 and establishes procedures for notifying Class Members of the proposed settlement. Id. ¶ 77-80, 89.
The proposed settlement class is defined in paragraph 2 of the Settlement Agreement. See id. ¶ 2. Specifically, the proposed class is defined to include any individual who:
(1) filed an application, domestically, for a U.S. passport between April 8, 2003 and the Effective Date of Settlement; (2) submitted a birth certificate indicating a domestic, non-institutional birth that was certified, filed, or registered by a midwife or other birth attendant within Texas; and (3) were either (a) issued a letter stating that their application was filed without further action, abandoned, or closed or (b) were not sent a decision on their application and filed such application prior to September 15, 2008. Excluded from the proposed class are any individuals who: (1) were issued a passport; (2) were issued a passport denial letter; (3) have a pending application which was filed on or after September 15, 2008; (4) re-file passport applications overseas; (5) previously dismissed lawsuits, with prejudice, brought under 8 U.S.C. § 1503, or had judgment entered against them in § 1503 proceedings; or (6) had applications filed without further action based on one of the following reasons: insufficient/no photograph; insufficient/no signature; insufficient/no fees; insufficient/no identification; incomplete application form; failure to apply in person at a passport agency/center or acceptance facility; delayed birth certificate; 22 C.F.R. § 51.60; or 22 C.F.R. § 51.61.
5

Case 7:08-cv-00057 Document 89 Filed in TXSD on 06/26/09 Page 8 of 24
See Ex. 1 ¶ 2. Pursuant to Rule 23(e)(3), the parties hereby notify the Court that, other than as stated in
the Settlement Agreement, there are no agreements requiring disclosure that were “made in connection with the propos[ed settlement].” See Fed. R. Civ. P. 23(e)(3).
C. Proposed Notice to the Class Notice of the proposed settlement is to be provided to Class Members by publication. See Ex. 1 ¶ 77. The proposed notice form (the “Notice”) is attached as Exhibit E to the Settlement Agreement. The Notice contains a summary of the terms of the settlement, a description of the proposed class and who may qualify as a Class Member, instructions on how to obtain further information about the settlement, and procedures for objecting and appearing at the fairness hearing. Notice will be prominently displayed at all regional passport agencies and centers, posted on the State Department’s website, distributed to local community groups, and disseminated to all Post Office locations and passport acceptance facilities in Texas that process passport applications. Id. ¶ 79.
ARGUMENT I. Standard of Review
Settlements are “‘highly favored’” and “’will be upheld whenever possible because they are a means of amicably resolving doubts and preventing lawsuits.’” Miller v. Republic Nat’l Life Ins. Co., 559 F.2d 426, 428 (5th Cir. 1977) (quoting Pearson v. Ecological Sci. Corp., 522 F.2d 171, 176 (5th Cir. 1975)). The public policy favoring settlement agreements is particularly strong in complex class action litigation, where voluntary pretrial settlements obviate the need for expensive and time-consuming litigation. See Bass v. Phoenix Seadrill/78, Ltd., 749 F.2d 1154, 1164 (5th Cir. 1985); Maher v. Zapata Corp., 714 F.2d 436, 455 (5th Cir. 1983).
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When considering whether to grant preliminary approval to a class action settlement, the Court’s role is to review the proposal preliminarily to determine whether it suffers any obvious defects that would preclude final approval and is otherwise sufficient to warrant public notice and a hearing. McNamara v. Bre-X Minerals Ltd., 214 F.R.D. 424, 427 n.2 (E.D. Tex. 2002); Manual for Complex Litigation Fourth §§ 13.14, 21.633 (2004) (explaining that class notice under Rule 23(c)(2) and settlement notice under Rule 23(e) may be combined). “If the proposed settlement discloses no reason to doubt its fairness, has no obvious deficiencies, does not improperly grant preferential treatment to class representatives or segments of the class, does not grant excessive compensation to attorneys, and appears to fall within the range of possible approval, the court should grant preliminary approval.” In re OCA, Inc. Sec. & Derivs. Litig., No. 05-2165, 2008 WL 4681369, at *11 (E.D. La. Oct. 17, 2008).
After the Court has conditionally certified the settlement class, the Court must ensure that the settlement class is properly certified under Rule 23. See Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 620 (1997) (holding that courts must certify settlement classes according to Rule 23 standards). Specifically, the Court must make findings on the record that the class satisfies all four prerequisites of Rule 23(a) and one or more of the provisions of Rule 23(b). San Antonio Hispanic Police Officers’ Org., Inc. v. City of San Antonio, 188 F.R.D. 433, 441 (W.D. Tex. 1999). The Court must consider the proposed settlement when deciding certification issues, as the settlement is relevant to the question of whether the class should be certified. Amchem Prods., 521 U.S. at 619-20.
The parties respectfully submit that the proposed settlement class satisfies these requirements. The Court should therefore conditionally certify the class so that notice may be
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sent and a fairness hearing scheduled before the Court issues a final order approving the settlement, issuing a ruling on class certification, and entering the appropriate judgment. II. The Proposed Settlement Is Fair, Reasonable, and Adequate
The Court should preliminarily approve the Settlement Agreement because the terms of the settlement are fair, reasonable, and beyond adequate. While the Court has discretion in evaluating preliminarily the settlement’s fairness and reasonableness, courts are generally guided at this stage by the same factors that govern final approval of class action settlements: (1) the potential “existence of fraud or collusion behind the settlement; (2) the complexity, expense, and likely duration of the litigation; (3) the stage of the proceedings and the amount of discovery completed; (4) the probability of [the] plaintiffs’ success on the merits; (5) the range of possible recovery; and (6) the opinions of class counsel, class representatives, and absent class members.” Reed v. Gen. Motors Corp., 703 F.2d 170, 172 (5th Cir. 1983). These factors weigh in favor of the proposed settlement agreement in this case.
A. There Is No Fraud or Collusion Behind the Settlement The Settlement Agreement was negotiated between the parties at arm’s length, and there is no suggestion of fraud or collusion. “As a general principle, ‘the courts respect the integrity of counsel and presume the absence of fraud or collusion in negotiating the settlement, unless evidence to the contrary is offered.’” Hemphill v. San Diego Ass’n of Realtors, Inc., 225 F.R.D. 616, 621 (S.D. Cal. 2005) (citing A. Conte and H. Newberg, Newberg on Class Actions § 11.51 (4th ed. 2002) at 158-59). This case has been vigorously contested by both sides. The parties engaged in extensive briefing and discovery and have negotiated at arm’s length a resolution of the action, which resulted in the Settlement Agreement. Furthermore, because Plaintiffs sued the federal government and other federal defendants for declaratory and injunctive relief and do not
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seek monetary damages, and any attorneys’ fees awarded must be separately approved by the court, there is no danger that Plaintiffs colluded with the government defendants to sacrifice the interests of Class Members for their own monetary gain.
As this Settlement Agreement was the result of the fair functioning of the adversarial process, the first factor clearly supports preliminary approval.
B. The Complexity, Expense, and Likely Duration of Litigation Favors Settlement
This action presents several complex factual and legal issues that favor resolution of this litigation through a class-wide settlement. Early settlement in civil rights actions for injunctive relief is generally favored because it avoids potentially protracted litigation involving remedial decrees and reduces transaction costs. See Ayers v. Thompson, 358 F.3d 356, 369 (5th Cir. 2004).
Plaintiffs’ counsel have undertaken significant factual and legal investigation to develop the claims here, and full prosecution of a class action through trial would generate massive costs for both sides. Moreover, this litigation has already lasted almost a year and a half, and without a settlement it could last many more months (and possibly years if there are appeals). Obtaining timely relief is particularly important to Class Members now that the final phase of WHTI is in effect. WHTI requires every American to have a valid U.S. passport or passport card or other designated document to enter the United States. If the Settlement Agreement is approved, Class Members will have the opportunity to re-apply without additional costs and potentially receive passports enabling them to cross the U.S.-Mexico land border and travel internationally.
In sum, the Settlement Agreement allows both sides to obtain an expeditious resolution of this case, saves the parties the needless expense of continued litigation, and provides benefits to Class Members. Accordingly, this factor weighs in favor of approving the settlement.
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C. Proceedings Are Advanced Sufficiently to Warrant Settlement The Court should approve a settlement agreement if a case has advanced far enough to enable the parties to assess the strength of their litigating positions. See In re Chicken Antitrust Litig. Am. Poultry, 669 F.2d 228, 241 (5th Cir. 1982) (suggesting settlements should be approved unless “the record shows unmistakably that the settlement was the product of uneducated guesswork”). In this case, there has been formal discovery exchanged on both sides, and the parties have had extensive discussions about the issues as part of their settlement negotiations. Critical legal issues in the case also have been litigated in pretrial motions to dismiss. Accordingly, both sides are well-informed about their case and in a position to negotiate a fair settlement. Consequently, this factor warrants preliminary approval of the settlement. D. The Probability of Success on the Merits Favors Settlement “[A]bsent fraud or collusion, the most important factor [in evaluating settlements] is the probability of the plaintiffs’ success on the merits.” Parker v. Anderson, 667 F.2d 1204, 1209 (5th Cir. 1982). This factor requires the Court to assess whether, in light of the inherent risks of litigation, the proposed settlement is reasonable. Reed, 703 F.2d at 172. Plaintiffs believe that the evidence would allow them to prove one or more violations of the Due Process clause, the Equal Protection clause, violation of the Administrative Procedure Act, or a right to Mandamus. While Plaintiffs believe they have a strong case, however, they also recognize the potential legal and factual defenses asserted by Defendants in the case. Accordingly, Plaintiffs believe a negotiated settlement that provides immediate relief is favorable to an uncertain recovery in the future. Similarly, Defendants have asserted numerous defenses and have not admitted or conceded any wrongdoing, but they also recognize the risks inherent in proceeding to trial.
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E. The Range of Possible Recovery Strongly Favors Settlement The benefits for the Plaintiffs and Class Members are well in line with the range of possible recovery. In an action for declaratory and injunctive relief, the range of possible recovery is generally limited by the specific forms of relief requested in the complaint. See Ault v. Walt Disney World Co., 254 F.R.D. 680, 688 (M.D. Fla. 2009). The Settlement Agreement provides the settlement class with the most important relief sought by the Second Amended Complaint. Specifically, in the Settlement Agreement Defendants agree to implement or modify various policies and procedures and to re-adjudicate Plaintiffs’ and Class Members’ passport applications under these new procedures without payment of an additional application fee. Defendants also agreed to apply virtually all of the new procedures to future passport applicants who may share some similar circumstances as Class Members. Accordingly, the Settlement Agreement falls within the reasonable range of possible recovery for Plaintiffs, and this fifth factor counsels for preliminary approval of the agreement. F. Class Counsel Favors Settlement Class counsel is of the opinion that this settlement is a favorable outcome for the class. Class counsel arrived at this conclusion after extensive investigation and negotiations with Defendants’ counsel. Class counsel have experience litigating class actions and, based on their expertise, believe that the Settlement provides a favorable result to the class. Thus, the sixth factor favors preliminary approval of the Settlement Agreement. III. The Court Should Approve Parties’ Proposed Form and Method of Class Notice Rule 23(e)(1) requires that the court “direct notice in a reasonable manner to all class members who would be bound by the proposal.” The Court has complete discretion in determining what constitutes reasonable notice of a class settlement under Rule 23(e), in form as
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well as method, particularly in a Rule 23(b)(2) class. Fowler v. Birmingham News Co., 608 F.2d 1055, 1059 (5th Cir. 1979); 7B Fed. Prac. & Proc. § 1797.6 (2009). “A class settlement notice need only properly identify the plaintiff class and generally describe the terms of the settlement so as to alert members ‘with adverse viewpoints to investigate and to come forward and be heard.’” DeHoyos v. Allstate Corp., 240 F.R.D. 269, 298 (W.D. Tex. 2007) (citation omitted).
Here, the proposed notice procedures involve posting the Notice at regional passport agencies and centers, displaying the Notice on the State Department’s website, providing the Notice to various organizations in the southern Texas communities that are likely to provide assistance to potential Class Members, and disseminating the Notice to all Post Office locations and passport acceptance facilities in Texas that process passport applications. These notification procedures are specifically tailored to ensure that Class Members will be informed of the settlement and their rights to object. In particular, the parties believe that notice on the Department of State’s website and in Post Offices/acceptance facilities is reasonably calculated to inform Class Members of the settlement, as these are the two most likely locations potential applicants will search for passport-related information.2/
The contents of the Notice are adequate to inform Class Members of their rights. The Notice contains a description of the proposed class and instructions to determine whether an individual qualifies, a summary of the litigation and the proposed settlement, a discussion of how to obtain more information, and instructions about how to file an objection. Class notices should generally provide only limited information so as not to confuse or overwhelm Class Members, and a simple summary of the settlement is particularly appropriate in class actions certified under
2/ Individual Class Members cannot be readily identified to warrant individual notice by mail, as the State Departm ent does not m aintain records in a m anner that would enable the affirmative identification of passport applican ts who would qualify as Class Mem bers. Such notice also is not required by Rule 23(e) or the U.S. Constitution. DeHoyos, 240 F.R.D. at 296.
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Rule 23(b)(2). Id. at 301. The proposed Notice here provides ample information to enable potential Class Members to determine whether they qualify for relief, what relief the settlement will provide, how to file an objection, and how to obtain more information.3 The Notice is therefore reasonable and satisfies Rule 23(e)’s requirements. IV. The Attorneys’ Fees and Expenses Provided for by the Settlement Agreement Are
Reasonable As part of the Settlement Agreement, Defendants have agreed to pay attorneys’ fees and costs to Class Counsel. The Court may award reasonable attorneys’ fees and nontaxable costs that are authorized by the parties’ agreement in a class action settlement. See Fed. R. Civ. P. 23(h). The negotiated fee award of $150,000.00 is entirely reasonable, and fully consistent with the law of this District, given the complexity of this case, the substantial work and time invested to litigate and ultimately negotiate a settlement, and the significant benefits and relief provided to the putative class as a result. The parties thus submit that the award of fees and costs provided by the Settlement Agreement should be preliminarily approved by the Court. V. The Class Should Be Conditionally and Finally Certified for Purposes of the Settlement In preliminarily approving a settlement agreement, the Court “should make a preliminary determination that the proposed class satisfies the criteria set out in Rule 23(a) and at least one of the subsections of Rule 23(b).” Manual for Complex Litigation Fourth § 21.632. The proposed settlement class easily satisfies these requirements. The Court must also assure itself that the proposed class satisfies Rules 23(a) and (b) in order to finally certify the class and enter final judgment.
3 The Notice also informs the Class Mem bers, pursuant to Rule 23(h)(1), of the attorneys’ fees that are included as part of the settlement agreement.
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A. The Proposed Settlement Class Satisfies Rule 23(a)’s Requirements For purposes of Rule 23(a), the Court must find that: “(1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class.” Fed. R. Civ. P. 23(a). Plaintiffs submit that this settlement class complies with Rule 23(a).
1. Numerosity To satisfy the numerosity requirement of Rule 23(a)(1), a plaintiff must show that the class is too numerous to make joinder practicable. Pederson v. Louisiana State Univ., 213 F.3d 858, 868 (5th Cir. 2000). When the size of the class is greater than 100 members, there is a general presumption that joinder is impracticable. See Mullen v. Treasure Chest Casino, LLC, 186 F.3d 620, 624 (5th Cir. 1999) (citing 1 Newberg on Class Actions § 3.05, at 3-25 (3d ed. 1992)). In addition, the Court may consider other factors such as the ease with which class members may be identified, the nature of the action, and the size of each plaintiff’s claim. Id. at 624-25 (citing Ziedman v. J. Ray McDermott & Co., 651 F.2d 1030, 1038 (5th Cir. 1981)). Here, Plaintiffs contended in their Second Amended Complaint that there are hundreds of potential Class Members. See Sec. Am. Compl. ¶ 186. Further factual investigation by Plaintiffs’ counsel revealed that the number of potential Class Members may even exceed that number. The number of potential class members satisfies the numerosity requirement and raises a presumption that joinder is impracticable. Id. at 624. Moreover, Class members are not easily identifiable. The State Department does not maintain records in a manner that would enable the Department to affirmatively identify passport
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applicants who would qualify as Class Members. Such facts demonstrate the impracticability of joinder.
Accordingly, this settlement class satisfies the numerosity requirement of Rule 23(a). 2. Commonality
“The test for commonality is not demanding and is met ‘where there is at least one issue, the resolution of which will affect all or a significant number of the putative class members.’” Mullen, 186 F.3d at 625 (quoting Lightbourn v. County of El Paso, 118 F.3d 421, 426 (5th Cir. 1997)). That requirement is easily met here because there is at least one issue—the legality of the standards used by Defendants to adjudicate passport applications—whose resolution will affect all of the putative Class Members’ claims. In fact, though the individual facts supporting their claim for citizenship may differ, plaintiffs and putative Class Members allege the same factual assertions supporting each of their class action causes of action. The resolution of each of these issues will affect the rights or remedies of each putative Class Member.
Thus, the dispositive issues here will be common to all putative Class Members, satisfying Rule 23(a)’s commonality requirement.
3. Typicality “Like commonality, the test for typicality is not demanding.” Mullen, 186 F.3d at 625. The plaintiffs’ claims are typical of the class claims if they are premised on similar legal and remedial theories. Id. Here, the named plaintiffs’ claims and the Class Member claims are uniformly predicated on challenging Defendants’ policies and practices as applied to the class. The class action seeks, among other things, injunctive and declaratory relief regarding Defendants’ policies and practices in reviewing and adjudicating putative Class Member
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passport applications. Typicality is met as the class claims are premised on identical legal and remedial theories, and are typical across the putative class. Mullen, 186 F.3d at 625.
Indeed, to not leave any doubt, the named Plaintiffs’ recently moved to sever their individual claims under 8 U.S.C. § 1503(a) from the class action, leaving only claims that are based on the same legal theories as the Class Members’ claims. See D.E. 88.
For these reasons, this settlement class meets Rule 23(a)’s typicality requirement. 4. Adequacy of Representation
Rule 23(a)(4) requires that the class representatives, along with their counsel, adequately represent the interests of the class, including absent class members. “Differences between named plaintiffs and class members render the named plaintiffs inadequate representatives only if those differences create conflicts between the named plaintiffs’ interests and the class members’ interests.” Mullen, 186 F.3d at 625-26. Any factual variances between the named plaintiffs’ cases and those of putative class members with regard to their passport applications do not affect the alignment of interests so as to render class representation inadequate. See id. at 626.
There is no conflict of interest between the named plaintiffs and the Class Members because they have all been subjected to the same policies and practices of the Defendants and will receive the same relief – an opportunity to re-apply for a passport, fee free, under a revised set of policies and procedures. While there may be factual differences in individual cases that result in different outcomes after Class Members complete the re-adjudication process contemplated by the Settlement Agreement, this does not affect the Class Members’ interests, which are the same for the named plaintiffs and Class Members alike.
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Additionally, counsel for the named plaintiffs can adequately represent the class because they have extensive experience in class action and civil rights litigation. See id. at 625 (noting importance of experienced class counsel).
Therefore, the proposed class satisfies the Rule 23(a) criteria for class actions. B. The Proposed Class May Be Certified Under Rule 23(b)(2) The parties reached a settlement that includes approval of a class for settlement purposes only. Consistent with that, Plaintiffs’ now seek to have this settlement class certified pursuant to Fed. R. Civ. P. 23(b)(2). A class may be certified under Rule 23(b)(2) if “the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.” Fed. R. Civ. P. 23(b)(2). In other words, class certification is appropriate under Rule 23(b)(2) “if ‘broad, class-wide injunctive or declaratory relief is necessary to redress a groupwide injury.’” See LaFlamme v. Carpenters Local Union No. 370 Pension Plan, 212 F.R.D. 448, 456 (N.D.N.Y. 2003) (internal citations omitted). “The requirement of 23(b)(2) is almost automatically fulfilled in actions where the relief sought is primarily injunctive.” San Antonio Hispanic Police Officers’ Org., 188 F.R.D. at 444. Here, Plaintiffs brought an action for injunctive and declaratory relief to redress Defendants’ alleged policy, pattern, and practice of subjecting passport applications from persons along the U.S.-Mexico border whose births were attended by midwives to heightened scrutiny. Because the class action complaint alleges and seeks injunctive and declaratory relief for the alleged mistreatment of the group as a whole, certification under Rule 23(b)(2) is appropriate.
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C. The Class Will Be Adequately Notified For classes certified under Rule 23(b)(2), “the court may direct appropriate notice to the class.” Fed. R. Civ. P. 23(c)(2)(A). However, the Court need not provide any notice before certifying a class action under Rule 23(b)(2) unless money damages are sought. See In re Monumental Life Ins. Co., 365 F.3d 408, 416-17 (5th Cir. 2004). Class Members will be notified of the class action both before and after the settlement is given final approval. The Settlement Agreement provides for notice of the proposed settlement to be transmitted to each Post Office and acceptance facility that accepts passport applications in Texas, posted at all regional Passport Agencies and Centers, published on the State Department’s website, and distributed by the State Department to various local community organizations. See Ex. 1 ¶ 79.4 In addition, the Settlement Agreement requires notice of the final settlement to be published on the State Department’s website, and distributed by the State Department to various local community organizations. Id. ¶ 82. These notices are appropriate under Rule 23(c)(2) and will enable Class Members to obtain the relief they are entitled to under the Settlement Agreement.5 D. Appointment of Class Counsel As part of the class certification process, the Court must appoint class counsel. See Fed. R. Civ. P. 23(g). In appointing class counsel, the Court must consider (i) the work counsel has done in identifying or investigating potential claims in the action; (ii) counsel’s experience in
4 The parties requested this Court’s approval of the form and method of this notice in their Joint Motion for Expedited Preliminary Approval of the Class Action Settlement Agreement and Expedited Fairness Hearing. 5 In addition, the Department will publish details of the class settlement and availability of the re-adjudication process to all potential Class Mem bers by adve rtising in both English and Spanish in the Sunday edition of the following newspapers for six (6) weeks: El Paso Time s, Diario de El Paso , Laredo Morning Times , The Brownsville Herald , El Nuevo, and Del Rio Herald. See Ex. 1 ¶ 59.
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handling class actions, other complex litigation, and the types of claims asserted in the action; (iii) counsel’s knowledge of the applicable law; and (iv) the resources that counsel will commit to representing the class. Fed. R. Civ. P. 23(g)(1)(A). The parties respectfully request that counsel for the Plaintiffs be appointed as class counsel. Plaintiffs’ counsel have undertaken significant work in developing the claims in this litigation, has substantial experience in handling class actions and negotiating settlements, is knowledgeable in this area of the law, and has devoted vast resources to pursuing this litigation. Plaintiffs’ counsel are best able to represent the interests of the class and should therefore be appointed class counsel. VI. WHTI Counsels for Expedited Preliminary Approval and an Expedited Hearing
The parties desire a swift resolution of this litigation so that relief can be immediately available to Plaintiffs and Class Members. As the Court is well aware, the final phase of WHTI went into effect on June 1, 2009. The need for passports is particularly pressing, especially for adults living near the U.S.-Mexico border who have families, jobs, and other important needs on both sides of the border. Expedited approval of the Settlement Agreement will allow putative Class Members to re-apply, in short order, for passports under the terms of the agreement. Accordingly, the parties respectfully request that the Court promptly provide preliminary approval to the Settlement Agreement and move quickly to establish an expedited schedule for the fairness hearing and final approval of the settlement.
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CONCLUSION For the foregoing reasons, the Court should preliminarily approve the Settlement Agreement, conditionally certify the proposed class for purposes of settlement, approve the form and method of the notice to the class, and schedule appropriate dates for a fairness hearing and other proceedings necessary to give final approval to the settlement. Following the fairness hearing, the Court should formally certify the proposed settlement class as defined in the Settlement Agreement pursuant to Federal Rule of Civil Procedure 23 and enter final judgment. Dated: June 26, 2009
Respectfully submitted,

_______/s/____________________

________/s/____________________

Lisa S. Brodyaga Federal Id: 1178

Jonathan Rolbin

Texas State Bar: 03052800

Trial

Attorney

Refugio del Rio Grande, Inc.

U.S. Department of Justice

17891 Landrum Park Road

Civil Division

San Benito, TX 78586

Offi

ce of Immigration Litigation

(956) 421-3226

Washington,

DC 20044

(956) 421-3423 (fax)

P.O. Box 868, Ben Franklin Station

(202)

532-4327

(202)

305-7000 (fax)

Vanita Gupta

American Civil Liberties Union Foundation

Tony West

Racial Justice Program

Assistant Attorney General

125 Broad Street

U.S. Department of Justice

New York, NY 10004

Civil

Division

(212) 549-2607

Washington,

DC 20044

(212) 549-2651 (fax)

P.O. Box 868, Ben Franklin Station

(202)

532-4327

Lisa Graybill, Texas State Bar: 24054454

(202) 305-7000 (fax)

American Civil Liberties Union

Foundation of Texas

Elizabeth

Stevens

P.O. Box 12905

Assistant

Director

Austin, TX 78711

U.S. Department of Justice

(512) 478-7300

Civil

Division

(512) 478-7303 (fax)

Washington, DC 20044

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Adam K. Levin Thomas J. Widor Melissa N. Henke David J. Weiner Hogan & Hartson LLP 555 13th Street, NW Washington, DC 20004 (202) 637-5600 (202) 637-5910 (fax)
Attorneys for Plaintiffs

(202)

P.O. Box 868, Ben Franklin Station 305-7000 (fax)
Attorneys for Defendants

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CERTIFICATE OF SERVICE I hereby certify that on this 23d day of June, 2009, I electronically filed the foregoing Emergency Joint Motion for Expedited Preliminary Approval of the Class Action Settlement and Expedited Fairness Hearing and Motion for Class Certification for Settlement Purposes Only and Memorandum in Support with the Clerk of the Court using the CM/ECF system, which will send notification of such filing to all counsel of record.
/s/ Thomas Widor

 </s> Case 7:08-cv-00057 Document 89-1 Filed in TXSD on 06/26/09 Page 1 of 72

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS
McALLEN DIVISION

AMALIA RAMIREZ CASTELANO SOFIA ELIZABETH LOPEZ, and J.S. a minor by and through his next friend Sonia Raquel Cantu-Sanchez, on their own behalf, and on behalf of all others similarly situated,

Case No. CA M-08057 (Class Action)

PLAINTIFFS-PETITIONERS,

v.

HILLARY RODHAM CLINTON, Secretal'Y_ of State, PATRICK F. KENNEDY, Under Secretary for Management, JANICE JACOBS Assistant Secretal)' of State for Consular ADifrfeacitorsr.,-1FPLaOsRspEoNrtCSEerFvUicLesTDZi2rMecatonraagtien, g and UN1TEDSTATES OF AMERICA, DEFENDANTS-RESPONDENTS. 1

STIPULATION AND AGREEMENT OF SETTLEMENT AND RELEASE Plaintiffs Amalia Ramirez Castelano; Sofia Elizabeth Lopez; and J.S., a
minor by and through his next friend Sonia Raquel Cantu-Sanchez, on behalf of
themselves, the Class and all Class Members (as defined below); and Defendants
Hillary Rodham Clinton, Secretary of State; Patrick F. Kennedy, Under Secretary
for Management; Janice Jacobs, Assistant Secretary of State for Consular Affairs;
1 Hillary Rodham Clinton has been automatically substituted in her official capacity as Secretary of State pursuant to Fed. R. Civ. P. 25(d) for Condoleezza Rice. Janice Jacobs has been automatically substituted in her official capacity as the Assistant Secretary for the Bureau of Consular Affairs, pursuant to Fed. R. Civ. P. 25(d) for Maura Harty. Florence Fultz has been automatically substituted in her official capacity as Managing Director, Passport Services Directorate, pursuant to Fed. R. Civ. P. 25(d) for Ann Barrett.
EXHIBIT
I 1

Case 7:08-cv-00057 Document 89-1 Filed in TXSD on 06/26/09 Page 2 of 72
Florence Fultz, Managing Di rector, Passport Services Directorate; and the United States of America ( hereinafter collectively referred to as “D efendants”), by and through their attorneys, hereby enter in to this Stipulation and Agreement of Settlement and Release (the “ Stipulation”), as of the date beneath Defendants’ Counsel’s signature, effective upon t he approval of the Court pursuant t o Rule 23 of the Federal Rules of Civil Procedure. WHEREAS:
A. On February 6, 2008, Plainti ff Amalia Ram irez Castelano filed a Petition for Habeas Corpus and Co mplaint for Declaratory and Injunctive Relief against Defendants in the United States Dist rict Court for the Southern District of Texas. Thereafter, on April 7, 2008, Caste lano and Plaintiffs Florencio Gonzalez, Jr., Elvia Estela Elissetche, Arturo Ga rcia, Sofia Elizabeth Lopez, J essica Gonzalez, Miriam Sujee Gonzalez, Juan Luis Flores, and Rocio Flores, filed a First Amended Petition for Habeas Corpus a nd Class Action Petition for Writ of Mandamus and Com plaint for Declaratory a nd Injunctive Relief (hereafter “First Amended Complaint”). Thereafter, on September 9, 2008, Plaintiffs Amalia Ramirez Castelano, Arturo Garcia, Sofia Elizabeth Lopez, Miriam Sujee Gonzalez, Juan Luis Flores, Rocio Flor es, J.S., a m inor by and th rough his next friend Sonia Raquel Cantu-Sanchez, David Hernandez, and Juan Aranda moved for leave to file a Second Am ended Class Action Com plaint and Petition for D eclaratory,
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Injunctive and Mandamus Relief on behalf of them selves and all others sim ilarly situated against Defendants seeking cl ass certification, designation of Class Counsel, and declaratory and i njunctive relief and mandam us. The motion was granted and the Second Amended Complaint deemed filed on September 16, 2009.
B. Plaintiffs Florencio Gonzalez, Jr., Elvia Estela Elissetche and Jessica Gonzalez, named in the First Amended Co mplaint, were granted and received U.S. passports prior to t he filing of the m otion for leave to file t he Second Am ended Complaint and were not nam ed as Plainti ffs in the Second Amended Com plaint. Thus, by operation of law, on September 16, 2008, Plaintiffs Florencio Gonzalez, Jr., Elvia Estela Elissetche and Jessica G onzalez dismissed their claims in their entirety.
C. Plaintiff Arturo Garcia received his U.S. passport after the filing of the motion for leave to file t he Second Amended Complaint. On Novem ber 5, 2008, the Parties stipulated to the dismissal of the claims of Plaintiff Arturo Garcia in the Second Amended Complaint.
D. On or about Janua ry 28, 2009, Plaint iff Miriam Sujee Gonzalez received her U.S. p assport, and on January 30, 2009, the Parties stipulated to the dismissal of the claims of Plaintiff Miriam Sujee Gonzalez in the Second Amended Complaint.
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E. On or about February 24, 2009, Plaintiffs Juan Luis Flores, David Hernandez, and Juan Ara nda received their U.S. passports, and the Parties stipulated to the dism issal of the clai ms of Plaintiffs Juan Luis Flores, David Hernandez, and Juan Aranda in the S econd Amended Complaint on February 27, 2009.
F. On or about May 14, 2009, Pl aintiff Rocio Flores received her U.S. passport, and on May 15, 2009, th e Parties stipulated to the dismissal of the claims of Plaintiff Rocio Flores in the Second Amended Complaint.
G. On or about June 12, 2009, Plaintiffs Amalia Ra mirez Castelano, Sofia Elizabeth Lopez, and J.S., a minor by and through his next friend Soni a Raquel Cantu-Sanchez, m oved to sever t heir individual claims for relief brought under 8 U.S.C. § 1503(a) from their remaining claims.
H. To date, the Court has not grante d class certification, designation of Class Counsel, or declaratory or injunctive relief.
I. Plaintiffs, on behalf of the mselves and t hose who are sim ilarly situated, have alleged that the Department of State has engaged in a policy, pattern, and practice of categorically applying heightened scrutiny to a class of passport applicants whose births in Southwestern border states were attended by midwives or birth attendants or whose citizenship is claimed through a parent whose birth i n a Southwestern border state was attende d by a m idwife or birth attendant.
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Plaintiffs allege that the Department of State impermissibly and unlawfully applies

a heightened burden of proof t o these passport applications, subjecting the

applicants to burdensom e, unreasonable, and excessive demands for

documentation of birth i n the United States that go far beyond what other

applicants are required to subm it. Plai ntiffs further allege that, even after

applicants respond t o the demands for add itional information, the Departm ent of

State, without a proper individualized, evidence-based adjudication of the merits of

each application, arbitrarily de ems their applications “filed without further action”

or otherwise abandoned and closed and refuses to issue them passports.

J. Based on these allegations, Plainti ffs, on behalf of t hemselves and

those who are sim ilarly situated, have asserted claims under the Fifth Amendm ent

for violations of due process and equa l protection, the Adm inistrative Procedure

Act, 28 U.S.C. § 1361, and 28 U.S.C. §§ 2201-02. By th eir Second Amended

Complaint, Plaintiffs seek decl aratory, injunctive, and mandamus relief on behalf

of themselves and a proposed class.

Plaintiffs additionally raised claim s

individually under 8 U.S.C. § 1503(a).

K. Defendants deny all liability w ith respect to the instant Action; deny

that they have engaged in any wrongdoing; deny the alle gations in the Com plaint,

First Amended Complaint, and Second Am ended Complaint except as otherwise

admitted in Defendants’ Answer; deny that they committed any violation of law;

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deny that they acted im properly in any way; and deny liabil ity of any kind to the Named Plaintiffs, the Cl ass, or the Cl ass Members, but have ag reed to th e settlement and dismissal of the Action with prejudice in order to: (i) avoid the substantial expense, inconvenience, and distraction of protracted litigation; and (ii) finally put to rest and term inate the Action and any and a ll Settled Claim s as defined in paragraph 13.
L. The Parties have conducted arm ’s length negotiations to settle the litigation and believe it is in their mutual interests to avoid the risks and burdens of trial in this m atter. Accordingly, the Pa rties enter into this A greement to resolve all claims brought forth i n the instan t Action and to dism iss the Action with prejudice. The Parties believe that settle ment addresses the issues in dispute and achieves the best relief possible consi stent with the interests of the Named Plaintiffs, the Class, and all Class Members.
M. After considering the benefits that the Named Plaintiffs, the Class, and the Class Memb ers will recei ve from settle ment of the Action and the risks of litigation, Class Counsel have concluded that the term s and conditions of this Stipulation are fair, reasonable, and in t he best interests of the Named Plaintiffs, the Class, and the Class Memb ers; have agreed that the Released Parties should be released from the Settled Claim s pursuant to the term s and provisions of this
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Stipulation; and have agreed to the dismissal with prejudice of all Settled Claims as

defined in paragraph 13.

NOW, THEREFORE, it is hereby STIPULATED AND AGREED, by and

among the Parties to this Stipulation, thr ough their respective attorneys, subject to

the certification of the Class for settlement and approval of the Court pursuant to

Rule 23(e) of the Federal Rul es of Civil Procedure, in consideration of the benefits

flowing to the Parties hereto from the Settlement, that the Settled Claims as against

the Released Parties shall be co mpromised, settled, forever re leased, barred, an d

dismissed with prejudice, upon and subject to the following terms and conditions:

I. DEFINITIONS:

Wherever used in this Stipulation, the following terms have the meanings set

forth below:

1.

“Action” means the above-capti oned action pending in the United

States District Court for the Southern District of Texas, Case No. CA M-08-057.

2.

“Class” means, for purposes of th is settlement only, a plaintiff

class certified pursuant to Rule 23 of the Federal Rules of Civil Procedure,

comprising all persons who fil ed an application, domestically, for a U.S. passport

between April 8, 2003 and the Effectiv e Date of Settlement, and who: (1)

submitted a birth certificate indicating a dom estic, non-institutional birth; (2) that

was certified, filed, or registered by a mi dwife or other bi rth attendant within t he

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state of Texas; and (3)(a) were issued a letter stating that their application was filed without further action, abandoned, or closed or (b) were not sent a decision on their application and filed such application prio r to September 15, 2008. Persons shall be excluded from the Class (i) who were i ssued a passport; (ii) who were sent a passport denial letter; (iii ) who have a pending application which was filed on or after September 15, 2008; (iv) who re-file passport applications overseas; (v) who previously dismissed lawsuits, with prej udice, brought under 8 U.S.C. § 1503, or had judgment ent ered against them in § 1503 proceedings; or (vi) who had applications filed without further action based on one of the following reasons:
• Insufficient/no photograph; • Insufficient/no signature; • Insufficient/no fees; • Insufficient/no identification; • Incomplete application form; • Failure to apply in person at a passport agency/center or
acceptance facility; • Delayed birth certificate; • 22 C.F.R. § 51.60; or • 22 C.F.R. § 51.61. The Class ceases to exist, and all membership in the Class ends, upon the termination of this Stipulation pursuant to paragraph 87.
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3.

“Class Member” means any person who is within the Class

definition, including the Named Plaintiffs, and who is not otherwise excluded.

4.

“Effective Date of Settlement” or “Effective Date” means the date

upon which the Settlement provided for in th is Stipulation shall become effective ,

as set forth in paragraph 83.

5.

“Plaintiff(s)” or “Named Plai ntiff(s)” means Amalia Ram irez

Castelano, Sofia Elizabeth Lopez, and J. S., a minor by and through his next friend

Sonia Raquel Cantu-Sanchez.

6.

“Plaintiffs’ Counsel” or “Class Counsel” means the American

Civil Liberties Union Foundation; Ho gan & Hartson LLP; American Civil

Liberties Union Foundation of Texas; and Lisa S. Brodyaga, Esq. on behalf of

Refugio del Rio Grande, Inc. Should thes e entities change their names or merge

with other entities, those new entities shall also qualify as Class Counsel.

7.

“The Department” refers to the Un ited States Department of State,

including but not li mited to the Bureau of Consular Affairs, the Passport Servic es

Directorate, and the Regional Passport Agencies and Centers.

8.

“Adjudication” refers to the pr ocess by which the Department

reviews applications for passports, c onducts individualized inquiries and

investigations, reviews documents and s upporting materials submitted by passport

applicants, and decides to issue a passport or deny a passport application.

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9.

“SBA Adjudicator” or “SBA Official ” is a senior-level adjudicator

at the GS-11 level or higher in the Houston Passport Agency, the National Passport

Center, and the Charleston Pa ssport Center and at the FS-04 level or higher at

overseas posts in Mexico. The Departme nt may also designat e SBA Adjudicators

at any other Agency or Center as necessary.

10.

“The Panel” refers to the three member panel of SBA Adjudicators

responsible for final review and adju dication of all Class Mem ber passport

applications, unless a decision to issue has been made previously by an SBA

Adjudicator.

11.

“SBA List” refers to the list ma intained by the Department on

which appear the names of midwives and/or birth attendants (referred to as Suspect

Birth Attendants) who have been convict ed of birth certificate fraud and/or who

the Department has a reasonable suspicion of having engaged in birt h certificate

fraud, based on: a) a conviction or plea agreement involving a crime of document

fraud; b) an adm ission, confession, or st atement of implication made by the bi rth

attendant, a client, or a witness pertaini ng to birth certificat e fraud by the birth

attendant; c) information recei ved from a law enforcement agency regarding the

birth attendant and his/her involvem ent in birth certificate fraud; d) documents or

other information s upporting a reasonable suspicion that the birth attendant has

engaged in birt h certificate fraud; or e) disciplinary action taken by t he Texas

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Midwifery Board or other stat e licensing ag ency for falsely registering births or

falsely filing birth re cords. The Departme nt will continuously review, revise, and

maintain the SBA list. The SBA list will not be disseminated in any form to Class

Counsel. For purposes of t his paragraph, reasonable suspic ion shall mean that

there is an articulable and reasonable ba sis for t he belief t hat an individual has

engaged in birth certificate fraud. Mere guesses or hunches are insufficient.

12.

“Released Parties” means any a nd all of the Defendants, their

predecessors and successors, their depart ments and agencies, and their past or

present agents, employees, and contractors.

13.

“Settled Claims” means any and all actions, in law or equity, that

were asserted or that could have been asserted by Class Members or anyone acting

on behalf of or in pl ace of a Class Me mber, based upon t he facts alleged in t he

Second Amended Com plaint or t hat could have been alleged in t he Second

Amended Complaint and that arise from the subject matter of this action, including

but not lim ited to claim s brought unde r the U.S. Constitution, including but not

limited to claims under the Fi fth Amendment and claims of violations of t he Due

Process Clause and/or Equal Protection Cl ause; claims brought pursuant to t he

Administrative Procedures Act (5 U.S.C. § 701, et seq.); claims seeking a Writ of

Mandamus; and any other actions seeking Declaratory or Injunctive relief brought

under 28 U.S.C. § 1346(a)(2); 28 U.S.C. § 2201-2202; an d/or 28 U.S.C. § 1361.

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Only individual actions against the Depa rtment brought under 8 U.S.C. § 1503(a)

are excepted from the claim s settled with prejudice by this action, subject to

paragraph 29.

14.

“Settlement” means the settlement provided for in this Stipulation.

15.

“Settlement Agreement” an d “Stipulation” as used herein shall

refer to t he entirety of t his document, including all exhibits and at tachments.

Either term may be used herein interchangeably.

II. RELEASE; SCOPE AND EFFECT OF RELEASE

16.

On the Effective Date , the Named Plain tiffs, the Class, and the

Class Members, on behalf of them selves, their heirs, executors, adm inistrators,

representatives, attorneys, successors, assi gns, agents, affiliates, and partners, and

any persons they represent (“Rel easing Parties”), shall be deemed to have, and by

operation of the Final Judgm ent shall to the extent provi ded herein, fully, finally,

and forever release, relinquish, and discharge the Released Parties of and from any

and all of the Settled Claim s, and the Releasing Parties shall forever be barred and

enjoined from bringing or prosecuting any Settled Claim against any of the

Released Parties.

17.

In consideration for the releas es contained herein, and subject to

this Stipulation’s conditions, the Department shall institute the polices, procedures,

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and terms set forth below fo r the adjudi cation of t he passport applications of a ll

Class Members during the existence of this Stipulation.

III. SETTLEMENT TERMS AND PROCEDURES

A. Acknowledgments and General Adjudication Standards.

18.

Nothing in this Stipulation shall be read to modify, alter, shift, or

otherwise change the burden of proof standards on a ll passport applicants set forth

in 22 C.F.R. § 51.40. The burden of proo f remains on the applicant, including a

Class Member, who must establish his or her eligibility for a passport by a

preponderance of the evidence, except where otherwise provi ded by statute.

Moreover, nothing in this Stipulation shall be read to modify, alter, or ot herwise

change the Department’s di scretion to request evidence as set forth in 22 C.F.R. §

51.45 from any passport applicant, including a Class Member.

19.

The Parties acknowledge that t he preponderance of the evidence is

a “more likely than not” sta ndard. The Department agrees to reinforce this

standard through its on-going training procedures and continuing education

methods.

20.

The Department will issue a passport when the applicant has

demonstrated U.S. citizenship or nationa lity by a preponderance of the evidence,

the applicant’s identity is not reasonabl y in questi on, the applicant has com plied

with all requirements, procedures, and instructions for filing a passport application,

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and there are no statutory, regulatory, or other legally sufficient reasons not to

issue.

21.

In the event that the Department sends a fee-free letter or Customer

Information Letter (CIL) to an applicant who is not part of the Cl ass, such action

shall not be deemed to be an expansion of the Class or the Class definition.

22.

Nothing in this Stipulation, except that which is spe cifically stated

herein, shall m odify, change, or otherwi se affect the Department’s duties, rights,

practices, and procedures pursuant to any statute or regulation.

23.

Nothing in this Stipulation sha ll modify, change, or otherwise

affect the Department’s duti es and disc retionary right to review any passport

application for fraud, institute internal fraud investigations , and/or refer fraud

matters to prosecutorial agencies. Nothing in this Stipulation shall change, modify,

or otherwise alter the policies and pro cedures the Department m aintains for

instituting passport fraud investigations by the Fra ud Prevention Unit and/or by

Diplomatic Security.

24.

Nothing in this Stipulation shall be construed in any manner to

imply, assert, or otherwise claim that the Department applies different standards of

adjudication to non-institutional births generally.

25.

The Department no longer issues “filed-without-further-action”

letters and shall no longer de signate any passport appli cation as abandoned. Th e

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final disposition of all fee-paid passport a pplications, as of September 15, 2008, is:

(a) issuance of a passport; (b) denial in writing; or (c) withdrawal of the application

in writing by the applicant.

26.

Nothing in this Stipulation sha ll affect, change, or otherwise

modify the Department’s policies, procedures, and abilities to deny any passport

application (Class Mem ber or other app licant) pursuant to 22 C.F.R. §§ 51.60

and/or 51.61.

27.

The Department acknowledges th at it shall not deny a passport

application of a Class Mem ber based sole ly on the fact that the Depart ment

previously sent the applicant a “filed wit hout further action” letter. However, th e

Department may rely on information prev iously acquired or subm itted with an

earlier application.

28.

The Department shall make a good faith effort to adjudicate Class

Member passport applications in a reas onably timely manner. However, when

considering the reasonableness of time for adjudication, appropriate credit shall be

given for the time required by any Class Me mber to respond to a CIL and/or any

additional requests for information, as well as any requested extensions.

29.

A Class Member may bring an indivi dual action in United States

District Court under 8 U.S.C. § 1503 only after completing re-adjudication under

the procedures outlined in Section III; pr ovided, however, that any Class Mem ber

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who has filed a lawsuit under 8 U.S.C. § 1503 on or before three (3) days

following approval by the Court of this Stipulation, as described in paragraph

83(b), may elect (i) to have his or her passport application re-adjudicated pursuant

to the procedures outlined in Section III, or (ii) to maintain and litigate his or her

individual action under 8 U.S.C. § 1503. If the Class Member elects re-

adjudication, then the Class Member’s lawsuit shall be stayed, or dismissed

without prejudice if ordered by the court. However, the re-adjudication of such

passport application shall be held in abeyance until the dismissal or stay of such

lawsuit. Any Class Member who files a § 1503 lawsuit more than three (3) days

after approval by the Court of this Stipulation, but prior to completing re-

adjudication, shall have such lawsuit dismissed without prejudice.

B. Class Member Re-adjudication Procedures 30. The Department will re-adjudicate passport applications of all

Class Members, in accordance with the procedures provided for herein.

31.

Class Members are entitled to re-adjudication of their passport

applications without the payment of an additional application fee but subject to

eligibility procedures. The Department will identify those eligible for a fee-free

adjudication but it is incumbent on the Class Member to first submit certain

information by the deadline stated in paragraph 32. The Class Member must

submit in writing his or her full name, place of birth, date of birth, current address,

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last four num bers of his/her social secu rity number, approximate date of initial

application, and his/her m other’s full name for identification purposes. Such

submissions shall be made by mail or elec tronically through an internet address

that the Departm ent shall create for this purpose. Mailing address and internet

information shall be provided pursuant to the Notice Provisions herein. If applying

by mail, the Class Mem ber also shall s ubmit a copy of the filed-without-furt her-

action letter he or she previously received, if available. The Department shall then

confirm/deny the applicant’s eligibility a nd status as a Class Member and, if

confirmed, will send (i) a letter invitin g the Class Mem ber to reapply without

payment of an additional passport application fee (“fee-free letter”) and (ii) a CIL.

The Class Member is responsible for a ny other applicable fees, including the

execution fee if the Class Member re-applies at a passport acceptance facility (e.g.,

U.S. Post Office). The Cl ass Member must personally execute a new application

at any U.S. Passport Agency, passport acceptance facility, or m obile unit (a s

provided in paragraph 33), show valid id entification at the time of execution, and

include required documentation (photos, birth certificate, etc.), a copy of the fee-

free letter and may include any other additional relevant documentation.

32.

The deadline for requesting fe e-free re-adjudication is 11:59 p.m.

on June 1, 2010, and for subm itting a fee-free letter is 5:00 p. m. on December 31

2010. Class Members may continue to re-apply for a passport after that date (an d

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before the expiration of the Settlement as set forth here in) but shall not be entitled

to re-adjudication without the payment of the application fee.

33.

Any Class Member who wishes to avoid paying the execution fee

may re-apply in person at the Houston Passport Agency or any other U.S. Passport

Agency. In addition, in an effort to provi de an alternative, the Department agrees

to provide temporary mobile intake facilities in five (5) southe rn border locations

for one or two days each. These inta ke facilities will accept Class Mem ber

passport applications, and only from those who have the fee-free adjudication

letter. The five (5) locations and dates shall be chosen by the Department and will

begin after June 1, 2009. The Department will make every effo rt, to the extent

practicable, to include inform ation concerning the dates and locations of the

mobile units on its website and in the fee-free letter.

C. Requests for Supporting Evidence.

34.

A Class Mem ber who submits a bi rth certificate that otherwise

complies with 22 C.F.R. § 51.42(a) will not be denied a passport solely on the

basis that the birth certificat e was exec uted by a birth attendant whose name

appears on the SBA List. However, the Cl ass Member will be required to provide

additional evidence of birt h in the Unite d States. The Parties acknowledge that

such requests for evidence, as set fo rth herein, are reasonable and not undul y

burdensome.

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35.

Additional evidence will be requested from the Class Member first

through a CIL sent to the Class Member.

36.

A sample CIL is attached hereto as Exhibit A to this Stipulation.

The CIL will be in English and Spanish. The Departm ent will not m odify the

substance of the information conveyed in the CIL sent to Class Members while this

Stipulation is in effect, unless Clas s Counsel agrees in writing to such

modifications, subject to the following exception: The Dep artment, may, at its

discretion, modify the substance of the CIL by including reference to and enclosure

of an Offi ce of Management and Budge t (OMB) biographical questionnaire and

removing from the CIL any inform ation which is repetitive of what is included in

the biographical questionnaire.

37.

Nothing in this Stipulation prohibits the Department from

requesting secondary evidence under 22 C.F. R. § 51.42(b) or requesting additional

documents consistent with the Departments’ discretion to do so as set forth in 22

C.F.R. § 51.45.

38.

Class Members who do not submit a response to the CIL with their

passport application will be given ninety (90) days to respond to CILs; Class

Members who request additional time, in writing, prior to the end of the first ninety

(90) day period shall be automatically give n an additional forty-five (45) days to

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respond. Additional periods of time may be given at the discretion of the SBA

Adjudicator/the Panel, and any reasonable requests will be granted.

39.

Unless the Class Mem ber indicates that his or her response t o the

CIL is a partial response, once a response is received, the SBA Adjudicator shall

proceed within a reasonable time to (i ) adjudicate and approve issuance of the

passport; (ii) conta ct the Class Member and seek additional information (as

outlined below); or (iii) refer the application to the Panel.

40.

Any failure by any Class Mem ber to respond in writing to a CIL

will not prevent the Class Mem ber’s application from being adjudicated by the

SBA Adjudicator or from going to th e Panel for further review and fina l

adjudication as described below in Section D. If a Class Memb er fails to respond

within ninety (90) days to the CIL, th e SBA Adjudicator may choose to adjudicate

the application based on the inform ation available and issue a decision on that

basis. If the SBA Adjudicator does not issue a passport, the SBA Adjudicator shall

then refer the application to the Panel consistent with procedures set forth in

section D below.

41.

Additional Requests for Inform ation. After a Class M ember

submits a response to a CIL, the SBA Adj udicator will adjudicate the application.

If the SBA Adjudicator decides not to issu e the passport, the case will be reviewed

by the Panel. The Panel or the SBA Adjudicator may contact the Class Member by

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telephone and/or letter and request a personal or tele phone interview and/or

specific additional inform ation that m ay assist in the further adjudication of t he

application, and which is to be submitted within sixty (60) days.

42.

Nothing in this Stipulation is in tended to prohi bit or restric t the

Department from further communication w ith a Class Mem ber with regard to

requesting additional documents or inform ation which may assist the Departm ent

in the adj udication of the Class Member's application, except as provided i n

paragraph 47.

D. Panel Review

43.

If, after review of all information available, and what was provided

in response to CILs and/or any a dditional requests, the SBA Adjudicator

adjudicates the application and determ ines that the inform ation is insufficient to

establish an entitlement to a passport under the preponderance of the evidence

standard, the SBA Adjudicator shall then refer the application to the Panel for

review and final adjudication.

44.

The Panel shall review all Cl ass Member applications in which the

SBA Adjudicator has concluded not to issue a passport. Consistent with paragraph

41, the Panel may request additional information from the Class Member.

However, any fail ure by a ny Class Mem ber to respond to any request for

additional information will not prevent the Class Member’s application from being

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adjudicated by the Panel. Th e Panel will review the entir ety of the application and

all the inform ation collected by the SBA Ad judicator, adjudicate the application,

and determine whether to issue the passport or deny the application.

45.

If, after reviewing the applicati on, any inform ation provided in

response to the C IL, a phone call, a letter requesting specific additional

information, or an interview, the Pane l decides not to i ssue a passport, the

Department will deny the application. The Cl ass Member will recei ve a letter

informing the Class Member of the specific reasons why the application is being

denied. The letter will inform the Class Member that, although the application is

denied, he or she may, within sixty (60) days, subm it any further information that

the Class Member feels specifically rebuts the conclusions asserted in the letter or

may proceed with available legal remedies. If the Class Mem ber does not subm it

any additional information within sixty (60) days, the case shall rem ain denied.

Upon receipt of any such additional information, the Panel will reopen the case and

re-adjudicate the application considering the additional inform ation and either

issue the passport or deny the application. If denied, a letter will be sent inform ing

the Class Member that his or her passpor t application was reopened and inform ing

the Class Memb er of specific reasons why the application was then denied. No

further review will be provided absent the filing of a new fee-paid application.

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46.

The Department will, in accordance with 22 C.F.R. § 51.46, return

to the Class Mem ber original documents subm itted in support of his or her

application, and the written notice shall in such instances identify the docu ments

being returned to the Class Member.

47.

When a Class Member provides a letter of representation to the

Department indicating that the Class Member is represented by an attorney in the

particular matter, the Department will make a good faith effort to copy the attorney

on all further correspondence with the Class Member pertaining to that matter.

E. Application of Standards and Procedu res to Applicants not part of the Class

48.

The Department ag rees that th e standards and procedures for

adjudicating passport applications set fort h above in Secti ons III.A., III.C. an d

III.D. also will be applied to all applican ts not otherwise p art of the Class who

submit a birth certificate indicating a domestic, non-instit utional birth that was

certified, filed, or registered in Texas by a midwife or birth attendant on the SBA

list (hereinafter “Applicants”), subject to certain specified exceptions and

limitations stated in this Stipulation.

49.

Applicants shall not receive fee-free re-adjudication.

50.

Domestic Applicants shall receive the benefit of the procedures for

CIL/Requests for Additional Information and review by an SBA Adjudicator and

the Panel.
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51.

Overseas Applicants in Mexico shall receive the benefit of the

procedures for CIL/Requests for Addit ional Information and review by an SB A

Adjudicator and a Consular Manager in lieu of the Panel.

52.

For all other overseas Applicants , the Department will m ake a

good faith effort to provide the proc edures for CIL/Requests for Additional

Information and review by a trained adjudicator and a Consular Manager in lieu of

the Panel.

F. SBA List

53.

An authorized official shall cer tify on behalf of t he Department:

(1) the number of midwives or birth attendants on the SBA List as of the Effective

Date of Settlement; (2) the num ber of midwives or birth attenda nts added, if any,

to the SBA List during that pe riod of the Stipulation; (3) the num ber of midwives

or birth attendants rem oved, if any from the SBA List during t hat period of the

Stipulation; and (4) that this i nformation is true, correct, an d complete as of the

date of certification. The cert ification shall also attest that the Department has

maintained, reviewed, and, if applicab le, modified the list according to the

standards set forth in the Definition secti on. The Department shall provide Class

Counsel with an initial certification within sixty (60) days of t he Effective Date of

Settlement. Thereafter, the Department shall provide Class Counsel with an annual

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certification and a final certification within forty-five (45) days of the term ination

of this Agreement.

G. Training Commitments

54.

Within sixty (60) days of the E ffective Date, the Department will

provide training concerning the adjudication standards and procedures for Class

Members to all SBA Adjudicators, including members of the Panels and fraud

prevention managers in the Houston Passport Agency, the National Passport

Center, and the Charleston Passport Center, and to SBA Adjudicators and Consular

Managers in Mexico. This trai ning shall communicate, explain, and reinforce that

the commitments, procedures, provisions, and standards set forth in this Stipulation

are to be properly effectuated in the adjudi cation process. It will also include th e

dissemination and discussion of the principles relating to the preponderance of the

evidence standards identified in Exhibit B to this Stipulation. The Department will

make a good faith effort to inco rporate this same training in its regular, initial, and

ongoing training programs for all passport adjudicators. The Department shall

maintain a record reflecting who has been trained pursuant to the Stipulation.

55.

The Department will conduct add itional training every six (6)

months therafter until the Termination Date.

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56.

The initial training will consist of at least a full day of training and

will include newly developed written traini ng materials consis tent with this

Stipulation and live and/or video conference class-room instruction.

57.

The Department will create th e position of SBA Official in the

Houston Passport A gency, the National Pa ssport Center, the Charlest on Passport

Center, and at overseas posts in Mexico. This official will have expertise in

adjudicating SBA cases, will generally be the primary adjudicator in SBA cases,

and may serve on the Panel. The Department may desi gnate SBA Adjudicators or

Officials at any other Agency or Center as necessary, and train them accordingly.

The Panel will be com prised of three SBA officials who will be given additiona l

training regarding adjudication of SBA cases and their role in the process.

H. Community Outreach Efforts

58.

The Department and Class Counsel agree to engage in outreach

efforts to Texas border communities. Th e Department and Class Counsel will

coordinate regarding the location(s), date(s) and subject matter(s) of such outreach,

as appropriate. Such outreach efforts may incl ude presentations or publicly

disseminated statements on t he following: the key substantive and procedural

terms of this Stipulation; that the De partment employs race neutral policies,

practices and procedures in a djudicating passport applications; t hat birth in t he

United States by the applicant and eligibility to apply for a U.S. passport based on

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that birth is not in any way affected by the immigration status of either birth parent

or other family members; that non-institutional birth in the U nited States is not in

and of itself a prohibition to qualifying for a U.S. passpor t; that there has been

significant fraud by m idwives and other birth attendants certifying birt hs as

occurring in the United States when they have not occu rred in the United States;

and that it is a crime to knowingly subm it a fraudulent doc ument in support of a

passport application; potential publicly av ailable sources for locating documents

that may support a showing of birth in t he United States and assist in promoting an

understanding of the types of documents that would be useful in establi shing birth

in the United States.

I. Miscellaneous Provisions

59.

Within twenty-one (21) days of the Effective Date, the Department

will communicate the details of the cla ss settlement and availability of the re-

adjudication process to all Class Mem bers by advertising in the following

newspapers: El Paso Times, Diario de El Paso , Laredo Morning Times , The

Brownsville Herald, El Nuevo, and Del Rio Herald. These advertisements (the text

of which is provided here as Exhibit C) shall appear in the Sunday paper for six (6)

weeks in both English and Spanish.

60.

Within twenty-one (21) days of the Effective Date, the Department

will inform all relevant staff at Passpor t Offices and overseas posts in Mexico

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about their responsibilities regarding the terms as set forth in this Settlement. The

Department will provide Class Counsel with a copy of this final signed guidance,

solely for informational purposes, subject to appropriate redactions. Class Counsel

shall not disseminate nor disclose the guidance outside of Class Counsel.

61.

Where the sharing of information among Defendants and any other

agency is required by this Stipulati on, Defendants shall com ply with all

requirements of the Privacy Act.

62.

If the Department is required to provide Class Counsel with

personal identifying information of Cla ss Members, Class Counsel shall use t he

information only to comply with the Stip ulation’s terms. Class Counsel m ay not

duplicate or disseminate the personal id entifying information, except where

dissemination is necessary to comply with the requirements of the Stipulation, and

shall destroy or return the personal identifying information within thirty (30) days

of the term ination of this Stipulati on and Settlement Agreement p ursuant to

paragraph 87, except for one copy which may be retained in Class Counsel’s

archive of the Action until thirty (30) days after the running of the Texas Statute of

Limitations or ot her potentially applicable statute of lim itations for an attorney

malpractice claim accruing on or before th e termination of the obligations of the

Parties under this Stipulation pursuant to pa ragraph 87 of this Stipulat ion. Class

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Counsel assumes all obligations and respons ibilities for the storage, retention, use,

and release of the data consistent with applicable law.

63.

The Department and Class Co unsel will m utually approve (a) all

Notices to the Class; and (b) the Notice of Final Settlement Agreement.

64.

All press releases issued by the Departm ent or Class Counsel

regarding this Settlement shall be consistent with the provisions of this Agreement,

including all of the paragraphs in the Preamble.

65.

Class Counsel has had the opport unity to revie w and provide

written comments on the m aterials identified in the Exhibits and consents to their

use for the purposes identified in this Stipulation.

66.

On or about seven (7) m onths after the Effective Date and every

six (6) months thereafter until the term ination of this Agreement, the Departm ent

shall provide Class Counsel with a report concerning the subm ission and

adjudication of passport appli cations by Class Members (“Report”). The Report

shall be provided as a functional spreadsheet in electronic format and shall include

a separate row for each application and columns containing the following

information for each application: (1) the da te of the passport application, (2) the

date, if an y, of each written request for in formation, (3) the date, if an y, of each

request for an extension of tim e, (4) the date, if any, the a pplication was submitted

to the Panel, (5) the date, if any, of any passport issuance, and (6) the date, if any,

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of any application denial. Within forty-five (45) days of the termination of this

Agreement, the Department shall provide Class Counsel with a final Report

containing the aforementioned information.

IV. CONTINGENT JURISDICTION

67. The Parties agree that this Court will not be asked to exercise

jurisdiction to supervise the implementation of this Stipulation. The Parties further

agree that this Court shall have contingent jurisdiction only over the matters

specifically set forth in Section V and only once the Parties have exhausted the

process for dispute resolution provided therein.

68. The Court shall not have jurisdiction over any claims arising

overseas, unless otherwise provided by law, and nothing in this Settlement

Agreement and Stipulation shall be meant to concede or confer jurisdiction in this

or any other district court over any overseas claims whether or not arising from this

Settlement Agreement and Stipulation.

V. DISPUTE RESOLUTION PROCEDURES

69.

The following dispute resolution process will be followed:

70.

Starting from the Effective Date, upon learning of any fact or facts

that constitute the basis for asserting that a Party, without notice or good cause

shown, has materially failed to comply with any term of the Stipulation and

Settlement Agreement, the Initiating Party shall promptly notify the other Party

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(the “Responding Party”) in writing of the fact or facts that support the contention

and request a written response with respect thereto. Such allegations of violations

of this Stipulation a nd Settlement Agreement must be substantiated with specific,

detailed, and tim ely information about th e violation sufficient to enable the

Responding Party to investigate and respond. Within thirty (30) days after receipt

of the notice, the Responding Party shall notify the Initiating Party in writing of the

Responding Party’s positi on and any action it has taken or intends to take in

connection therewith.

71.

Starting from the Effective Date, upon learning of any fact or facts

that constitute the basis for asserting that a Party, without notice or good cause

shown, has engaged in a pa ttern or practice constituting substantial noncompliance

with the terms of this Stipulation and Se ttlement Agreement, or that any Party has

expressly repudiated any of its term s, the Initiating Party shall prom ptly notify the

other Party (the “Responding Pa rty”) in writing of the fact o r facts that form the

basis of the contention and request a written response with respect thereto. Such

allegations of violations of this Sti pulation and Settlem ent Agreement must be

substantiated with specific, detailed, an d timely inform ation about the violation

sufficient to enable the Responding Party to investi gate and respond. Within sixty

(60) days after receipt of the notice, the Responding Party shall notify the Initiating

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Party in writing of the Responding Party’s position and any acti on it has taken or

intends to take in connection therewith.

72.

During the time period following the completion of the appropriate

process outlined in this section, the Parties shall negotiate in good faith in an effort

to resolve any remai ning disputes. The Pa rties agree that this negotiation period

will be considered exhausted if the negotiations have reached an impasse.

73.

Should the Parties be unable to re solve any issues raised between

them, after exhausting all of th e applicable procedures set forth in this section, and

subject to the limitations of Section IV, above, such issues shall be raised before a

Magistrate Judge in the Southern District of Texas upon which all parties agree and

selected by Judge Randy Crane, who shall hear , mediate, and, to t he fullest extent

possible, obtain t he agreement of both Partie s to resolve the issue(s) in dispute.

The Parties agree that the dispute resolution process set forth in this Section will be

considered exhausted if the mediation has reached an impasse.

74.

Except as identified specifically in this paragraph, the Parties agree

that failure to com ply with any of the de adlines in this Stip ulation and Settlement

Agreement does not constit ute a violation of this Stipulation in the case o f

unforeseeable circumstances. Any party that learns that it will be unable to comply

with any such deadline due to unforeseea ble circumstances shall notify the other

party as soon as practicable.

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75.

The Parties agree that the medi ation process sh all be conducted

confidentially and no public disclosure shall be made relating to the dispute before

or during the mediation process. All documents and inform ation disclosed by

either Party during t he mediation proce ss shall be governed by rule 408 of t he

Federal Rules of Evidence and shall not be admissible in any judicial proceeding.

All statements or conclusions of the me diator shall not be adm issible in any

subsequent judicial proceeding.

76.

The Parties specifically exempt any issues concerning the SBA

List from Dispute Resolution set forth a bove, with the exception of the issues set

forth in paragraph 53.

VI. CLASS NOTICE, TERMS OF ORDER FOR NOTICE, HEARING AND FINAL JUDGMENT

77.

Class notice shall be by publication only.

78.

Defendants shall bear the costs incurred in connection with

notifying the class of the terms and conditions of this Stipulation.

79.

Concurrently with t heir filing of this Stipulation, Class Counsel

and Defendants’ Counsel shall jointly appl y to the Court for Certification of the

Settlement Class and Preliminary Court Approval of the Settlement provided for in

this Stipulation and entry of a Prelim inary Approval Order, substantial ly in the

form appended hereto as E xhibit D. Such Prelim inary Approval Order will seek

approval of a Notice to the Cl ass (the “Notice” which is attached as Exhibit E), as
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well as a finding that the following satisfies the publication requirements of Fed. R.

Civ. P. 23: Within five (5) business da ys of the date of en try of the Prelim inary

Approval Order, the Department will post the Notice by:

A. Prominently displaying the Notice in all Regional Passport

Agencies and Centers;

B. Posting the Notice as a link on the Departm ent’s website, and

providing a link to a copy of this St ipulation. These links shall

continue to appear on the Departme nt’s website for the duration of

this Stipulation. However, follo wing the June 1, 2010 and Decem ber

31, 2010 deadlines, they may be m odified to reflect that requests for

and fee-free re-adjudication are no longer accepted;

C. Providing the Notice for distribution to Casa de Proyecto

Libertad, Catholic Charities – Roman Catholic Diocese of

Brownsville, La Union del Pueblos Enteros, South Texas Civil Rights

Project, South Texas Imm igration Council, and Te xas Rio Grande

Legal Aid;

D. Transmitting the Notice to e ach Post Office an d acceptance

facility that accepts passport a pplications in Texas. The Department

will ask (but cannot require) that each Post Office an

d other

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acceptance facility prominently display the Notice for at least six (6)

weeks;

80.

The Notice shall be in English and Spanish.

81.

If the Sett lement contemplated by thi s Stipulation is approved by

the Court, counsel for the Parties shall re quest that the Court enter Final Judgm ent

substantially in the form appended hereto as Exhibit F.

82.

Within twenty-one (21) days of the Effective Date, Defendants will

publish a Notice of Final Settl ement Agreement employing the same methods set

forth in paragraph 79 (B) a nd (C). The language of th e Notice of Final Settlement

Agreement will be agreed upon by the Parties and will constitute an updated

Notice to the Class.

VII. EFFECTIVE DATE OF SETTLEMENT, WAIVER OR TERMINATION

83.

The Effective Date of this Stipulation shall be the date wh en all of

the following shall have occurred: (a) en try of the Preliminary Approval Order in

all material respects in the form appended hereto as Exhibit D; (b) final approval

by the Court of this Stipulation, followi ng notice to the Class and a hearing, if

required and as prescribed by Rule 23 of the Federal Rules of Civil Procedure; and

(c) entry by t he Court of Final Judgm ent, in all material respects in the form

appended hereto as Exhibit F. Following entry of the Final Judgment, the Parties

agree to and the Court shall then dismiss the Settled Claims with prejudice.
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84.

In the event that the District Cour t’s approval of the Stipulati on or

the Final Judgm ent referenced is voided on appeal, vacated, or term inated, the

Parties’ good faith adherence to the terms of this Stipulation prior to said voidance,

vacation or termination shall not be considered unlawful.

85.

Defendants’ Counsel or Class C ounsel shall have the right to

terminate the Settlement and this Stipul ation by providing written notice of their

election to do so (“Ter mination Notice”) to all other Parties here to within thirty

(30) days of (a) the District Court’s declining to enter the Prelim inary Approval

Order or m odifying that Preli minary Approval Order in any mat erial respect; (b)

the District Court’s declining to ap prove the Settlem ent embodied in this

Stipulation or any material part of it; (c) the District Court’s declining to enter the

Final Judgment or modifying t he Final J udgment in any material respect; (d) the

Court of Appeals or the United States S upreme Court’s m odifying, reversing, or

vacating in any material respect the Final Judgment; or (e) the District Court’s, the

Court of Appeal’s, or the United States S upreme Court’s modifying, reversing, or

vacating and entering an Alternative Judgment in any material respect.

86.

Except as otherwise provided herein , in the event the Settlement is

terminated or modified in a ny material respect or fails to become effective for any

reason, then the Settlement shall be without prejudice and none of its terms shall be

effective or enforceable; the Parties to this Stipulation shall be deemed to have

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reverted to their respective status in the Action as of the date and time immediately

prior to the execution of thi s Stipulation; and except as otherwise expressly

provided, the Parties shall proceed in all respects as if this Stipulation and any

related orders had not been entered. In the event the Settlement is term inated or

modified in any material respect, the Defendants shall be deemed not to have

waived, modified, or be estopped from as serting any additional defenses available

to them.

VIII. TERMINATION OF OBLIGATIONS

87.

The obligations of this Sti pulation shall term inate after two (2)

years and eleven (11) months from the Effective Date without further action by the

Court. However all applications covered by this Agreement m ust be submitted by

the termination date of th is Agreement, and thus sh all be treated under this

Agreement and be resolved in accordance with the terms of this Agreement.

IX. NO ADMISSION OF WRONGDOING

88.

This Stipulation, whether or no t executed, and any proceed ings

taken pursuant to it:

a. Shall not be construed to waiv e, reduce, or ot herwise diminish

the authority of t he Defendants to enfor ce the laws of the United States against

Class Members, consistent with the Cons titution, laws of the United States, and

applicable regulations;

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b. Shall not be offered or received against the Defendants as

evidence of, or construed as or deemed to be evidence of, any presumption,

concession, or admission by any of the Defendants of the truth of any fact alleged

by the Plaintiffs or the validity of any claim that had been or could have been

asserted in the Action or in any litigation, or the deficiency of any defense that has

been or could have been asserted in the Action, or of any liability, negligence,

fault, or wrongdoing of the Defendants; or any admission by the Defendants of any

violations of, or failure to comply with, the Constitution, laws or regulations; and

c. Shall not be offered or received against the Defendants as

evidence of a presumption, concession, or admission of any liability, negligence,

fault, or wrongdoing, or in any way referred to for any other reason as against any

of the Parties to this Stipulation, in any other civil, criminal, or administrative

action or proceeding, other than such proceedings as may be necessary to

effectuate the provisions of this Stipulation; provided, however, that if this

Stipulation is approved by the Court, Defendants may refer to it and rely upon it to

effectuate the liability protection granted them hereunder.

X. ATTORNEYS’ FEES

89.

Defendants agree to pay $150,000.00 in attorney fees and costs as

part of the settlement within sixty (60) days of the Effective Date of the

Stipulation. The payment of $150,000.00 shall be made to Hogan & Hartson and

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will fully satisfy any and all claim s for a ttorney fees and costs in this Action.

Plaintiffs agree and shall not seek nor be permitted any additional fees and costs

under the Equal Access to Justice Act or otherwise.

XI. ADDITIONAL PROVISIONS

90.

This Stipulation, and the obligati ons incurred herein, shall be in

full and final disposition of the Action with prejudice, including any and all Settled

Claims against Defendants. On the Ef fective Date, Plaintiffs, including Class

Members, shall be deemed to have

fully, finally, and forever released,

relinquished, and discharged the Defend ants of and from any and all Settled

Claims, subject to the provisions of Section V.

91.

All of the exhibits attach ed hereto are hereby incorporated by

reference as though fully set forth herein.

92.

This Stipulation may not be modified or amended, nor m ay any of

its provisions be waived except by a writing si gned by all Parties hereto or their

successors-in-interest.

93.

The waiver by one Party of any breach of this Stipulation by any

other Party shall not be deemed a waiver of any other prior or subsequent breach of

this Stipulation. Failure by a Party to seek enforcement of any provi sion of the

Agreement shall not be constr ued as a waiver of the Pa rty’s right to enforce the

Agreement.

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94.

This Stipulation and its exhibits constitute the entire Agreement

among the Parties hereto concerning th e Settlement of the Action, and no

representations, warranties, or inducements have been made by any Party hereto

other than those contained and memorialized in such documents.

95.

This Stipulation may be executed in one or more counterparts. All

executed counterparts and each of them sh all be deemed to be one and the same

instrument provided that c ounsel for the Parties to this Stipulation shall exchange

among themselves original signed counterparts.

96.

This Stipulation shall be binding upon, and inure to the benefit of,

the successors and assignees of the Parties hereto.

97.

If any provision of this Stipul

ation is declared voi d or

unenforceable by any court of competen t jurisdiction, for any reason, the

remainder of the Agreement shall remain in full force and effect.

98.

This Stipulation shall not be cons trued more strictly against one

Party than another merely by vi rtue of the fact that it, or any part of i t, may have

been prepared by counsel for one of the Parties, it being recognized by the Partie s

that this Stipulation is the result of ar m’s length negotiations between the Parties

and that all Parties have c ontributed substantially and materially to the preparation

of this Stipulation.

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99.

All counsel and any other pe rson executing this Stipulati on and

any of the exhibits hereto, or any re lated settlement documents, warrant and

represent that they have the full authority to do so and that they have the authority

to take appropriate action re quired or permitted to be taken pursuant to the

Stipulation to effectuate its terms.

100. Class Counsel and Defendants’ C ounsel agree to cooperate full y

with one another in seeking Court approval of the Preliminary Order in Connection

with the Settlement Proceedings, the Stipulation and Agreement of Settlement, and

to promptly agree upon and execute a ll such other documentation as m ay be

reasonably required to obtain final approval by the Court of the Settlement.

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FOR THE PLAINTIFFS:
DATED: June 5, 2009

FOR THE DEFENDANTS:
DATED: Juned~ 2009

//-:···-· . c_

~ //~ -·..

---·=--------==-
-

Adam K. Levin Thomas J. Widor Melissa N. Henke David J. Weiner Hogan & Hartson LLP 555 13th Street, NW Washington, DC 20004

Lisa S. Brodyaga Refugio del Rio Grande, Inc. 17891 Landrum Park Road San Benito, TX 78586

Jonathan Rolbin Trial Attorney U.S. Department of Justice, Civil Division Office of Immigration Litigation P.O. Box 868, Ben Franklin Station Washington, DC 20044
Attorneys for Defendants

Vanita Gupta American Civil Liberties Union Foundation Racial Justice Program 125 Broad Street New York, NY 10004

Lisa Graybill American Civil Liberties Union Foundation of Texas P.O. Box 12905 Austin, TX 78711

Attorneys for PlaintiffS

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Exhibit A

Case 7:08-cv-00057 Document 89-1 Filed in TXSD on 06/26/09 Page 44 of 72
Thank you for your recent passport application. Upon review, we have determined that we need additional information regarding the factual circumstances of your birth. This is because your birth record was filed on [MM/DD/YYYY] by a birth attendant who is suspected of /has been convicted of submitting false birth records. The Department of State recognizes that midwife births were and are common in some border areas of the United States, particularly along the Texas-Mexico border. However, the Department has evidence that some birth attendants fraudulently registered some births as having occurred in the United States even though they actually occurred outside the United States. Therefore, we request that you provide the following additional information in support of your claim of birth in the United States.
FIRST, please provide in a detailed written response, the following biographical information to the extent it is available:
• Baptism information, Confirmation information, or other ceremony information (date of event, name and location of religious/other institution);
• All schools attended, inside and outside the United States (name of school, address, city, state, county, years attended – e.g. 8/1990 – 6/1994);
• Mother’s address (street address, city, state), one year prior, at the time of, and one year after your birth;
• Mother’s employer at the time of your birth (name of employer, address dates of employment);
• Mother’s pre/postnatal care information (name/address of hospital/clinic, doctor/midwife/birth attendant, dates of visits); and,
• Family information – mother, father, brother(s), sister(s) – living and deceased (full name, relationship, date/place of birth, U.S. citizenship status).
• All former residences, in and out of the United States. Please provide detailed information to the extent available: street address, city, state, postal code, country, dates of residence, names of others living at address. If such detail is not available, please provide as much as possible, at minimum, the date and city of residence.
• All current and former employers (company name, address, country, dates employed, supervisor, telephone number)
SECOND, please attach additional early public records, including any foreign documents, created as close as possible to the time of your birth. You may also attach any documents that show your name and date and place of birth. These records may include, but are not limited to, the documents listed on the attached sheet. It is helpful for you to submit as many documents as possible. However, not all of these documents are being requested. Please note that the list of documents is only suggestive and that you are encouraged to submit any documents which help demonstrate your presence and/or your mother's presence in the United States at the time of your birth. We will consider any and all information that you submit.

Case 7:08-cv-00057 Document 89-1 Filed in TXSD on 06/26/09 Page 45 of 72
YOUR RESPONSE TIME. Please respond to and return the requested information within ninety (90) days of the date of this letter. If you choose not to respond, your application will be reviewed based on the information already provided and obtained by the Department. If you believe you will need additional time to respond, you may submit a written request that the Department hold your application for an additional forty-five (45) days. DEPARTMENT OF STATE REVIEW. If, after review and adjudication of your application and documents, it is determined that you have established that you are entitled to a U.S. passport, the Department will issue you a passport. Otherwise, you will either receive a request for further information from the Department, or you will be notified in writing that your passport application is being denied. Sincerely,
Regional Director Please return this letter with your reply to the following address:
Please check the appropriate box below: I confirm that my response to the information and documents requested in this letter is complete and do not anticipate the submission of further documentation. I have submitted some documentation with my response, but I anticipate submitting more documents within ninety (90) days of the date of this letter. I will need an additional forty-five (45) days in which to complete my response.
__________
__________
If you have any questions regarding this letter or your passport application, contact the National Passport Information Center (NPIC), toll-free, at 1-877-487-2778 (TTY/TDD: 1-888-874-7793). For general passport information, or to check the status of your passport application, please visit us on-line at travel.state.gov.

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SUGGESTED SUPPLEMENTAL DOCUMENTATION
Below is a list of suggested documents that you may submit with your response. Please note that not all of these documents are being requested. It is helpful for you to submit as much relevant information as possible, but the list of documents below is only suggestive. You are encouraged to submit any documents or information that you feel demonstrate your presence and/or your birth mother’s presence in the United States at the time of your birth.
1. Records from your early childhood (first five years) that may assist in demonstrating your physical presence in the United States:
• Your baptismal certificate or a photocopy of the church registry record of baptism, signed by the priest or minister, or other early religious/ceremonial records
• Early medical records, such as immunization records
2. Records that may assist in demonstrating your mother’s presence in the United States at the time of your birth:
• Parents’ Border Crossing Card(s) or Forma-13 • Parents’ Alien Registration Card(s) • Parents’ foreign passports with visas entry stamp(s) • Parents’ marriage certificate • Evidence of your mother’s (or father’s) residence at the time of your birth. This could
include tax records, employment records, medical records, public or welfare records, property ownership or property rental records, business registrations, professional license applications and/or registrations, automobile registrations. • If your parents were in school when you were born, parents’ school records showing their residence at the time of your birth • Evidence of any involvement your parents may have had with the former Immigration and Naturalization Services (INS) close to the time of your birth • Records of your mother’s pre-natal medical care • Federal, state, county, or school census records • Other U.S./foreign civil or public records or documents created near the time of your birth
3. Other records:
• School records for you and/or your siblings, U.S. and/or foreign • Siblings’ certified birth certificates or baptismal certificates • Siblings’ certificates of citizenship, if any • Family bibles or baby books • Relevant photographic evidence
Please provide original or certified copies when submitting records where obtainable. Photocopies or notarized copies of records are not acceptable for passport purposes, unless requested.

Case 7:08-cv-00057 Document 89-1 Filed in TXSD on 06/26/09 Page 47 of 72
SOURCES OF RECORDS
There are several different government and non-governmental organizations that archive records or that may assist in the location of responsive records. They include the county public libraries that provide free access to the internet as well as searchable microfiche of newspapers and other public documents. City and county records departments archive and provide copies of certain records. Hospital records may be available from the particular hospital or medical facility where care was administered. County Board of Education and/or the school office of the school attended may maintain records. Internet search engines such as Google, Yahoo, AOL, etc. as well as websites such as Ancestry.com, Heritage.com, and others provide the ability to search various databases and locate additional census records and/or immigration records and information that may be of assistance. The local office of USCIS or regional National Archives locations may archive immigration related documents and provide copies upon written request.

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Exhibit B

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Preponderance of the Evidence/Training Criteria
Adjudication training will:
A) Explain that the fact that an applicant’s birth record shows birth in a non-institutional setting, or with the assistance of a midwife or other birth attendant included on the SBA list, is not itself a basis for denying a passport application.
B) Reinforce that the adjudicatory standard is preponderance of the evidence, which means that it is “more likely than not” that the individual was born in the United States.
C) Stress that passports are the premier citizenship document and passport determinations have serious implications for each applicant. The Constitution provides that any person born in the United States and subject to the jurisdiction thereof is a U.S. citizen.
D) Explain that passport adjudication involves the exercise of judgment by the adjudicator. It must be based on an objective weighing of evidence, both pro and con, that can be specifically identified and articulated by the adjudicator. Rumor, innuendo, and speculation are not to be considered.
E) Explain that midwife births were and are common in some border areas of the United States, particularly along the Texas-Mexico border. Midwife births were and are legitimately registered in many cases.
F) Recognize that there are many cases in which a child is inappropriately registered as being born in both the United States and Mexico. Parents may register the birth of a U.S.-born child both in the United States and Mexico for a number of reasons. Examples may include obtaining health, education, or other benefits in Mexico, particularly if they expect to raise the child in Mexico.
G) Reiterate that the fact of dual registration, in and of itself, does not preclude a finding that the applicant is eligible for a passport. In cases of dual registration, the adjudicator must look to the totality of the circumstances to determine the most credible place of birth.
H) Stress that the Department strives for consistency in adjudication, and transparency in communications with passport applicants.
I) Recognize that the greater the length of time since an applicant’s birth, the more difficult it is likely to be for the applicant to obtain evidence contemporaneous with his or her birth. Evidence of birth in the United States of some older applicants may have been previously accepted by legacy INS or the Department of State and those applicants may not have preserved evidence relevant to their birth in the United States.
J) Recognize that negative inferences should not be drawn from an applicant’s inability to produce documents remitted to DHS, legacy INS, or other federal or state agencies.

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Exhibit C

Case 7:08-cv-00057 Document 89-1 Filed in TXSD on 06/26/09 Page 52 of 72
Legal Notice
If You Applied For But Did Not Receive A U.S. Passport and Your Birth Certificate Was Filed or Registered in Texas By A Midwife or Birth Attendant Please Read this Legal Notice – It May Affect Your Rights
Certain Persons Are Entitled To Re-Apply For Free And Have Their Passport Application Adjudicated Under A Revised Set Of Procedures
A settlement of a class action lawsuit may affect you if you applied for a U.S. Passport in the United States between April 8, 2003 and the Effective Date of Settlement and did not receive a passport. Under the terms of the settlement, certain persons have the opportunity to re-apply for a passport without paying the application fee and have their application reviewed under a revised set of court-approved procedures. If you think you qualify, you will need to send certain information to the State Department so that you can be identified as a class member and invited to participate.
The U.S. District Court for the Southern District of Texas has authorized this notice.
WHAT IS THIS ALL ABOUT?
A class action lawsuit alleged that the State Department was improperly processing the passport applications of persons whose births were assisted by midwives or birth attendants in Texas and along the U.S./Mexico border. Over the years, a large number of midwives and birth attendants filed birth certificates in Texas for people who were not born in the United States. However, the lawsuit asserted that this fact did not justify the State Department’s practices for processing these applications. The State Department denied the allegations in the lawsuit and asserted many defenses. An agreement to settle the lawsuit was reached in June 2009. The settlement is not an admission of wrongdoing or an indication that any law was violated.
DO I QUALIFY?
You qualify if:
(1) You filed an application for a passport in the United States between April 8, 2003 and June 1, 2009; AND (2) Your birth certificate was filed or registered in Texas by a midwife or birth attendant; AND (3) One of the following is true: (a) You received a letter from the State Department saying that your application was “filed without further action,” “abandoned,” or “closed”; OR

Case 7:08-cv-00057 Document 89-1 Filed in TXSD on 06/26/09 Page 53 of 72
(b) A decision was not issued on your application and you filed the application prior to September 15, 2008.
WHO DOES NOT QUALIFY?
Not all people who meet the factors above will qualify. You will NOT qualify if:
(a) you have been issued a passport; (b) you were sent a letter by the State Department denying your application; (c) you have a pending application which was filed on or after September 15, 2008; (d) you filed or re-filed your application in another country; (e) you lost an action for a declaration of U.S. nationality; (f) your application was classified as “filed without further action” or “abandoned” or “closed” based upon one of several reasons set forth under the passport regulations for supporting denial of a passport (such as being the subject of an outstanding federal, state, or local felony warrant for arrest, or failure to pay a repatriation loan to the United States). For a complete list of all such reasons see federal regulation 22 C.F.R. §§ 51.60 and 51.61; OR (g) your application was rejected because of
·No photographs or bad photographs; ·No signature or a bad signature; ·No payment of fees or the failure to pay the proper amount of fees; ·No identification or use of improper identification; ·An incomplete application form; ·You did not apply in person; ·Your birth certificate was filed more than one year after your birth.
HOW DO I KNOW IF I AM A CLASS MEMBER?
To be identified as a class member, you will need to provide your full name, date of birth, place of birth, current address, last four numbers of your social security number, approximate date of your application, and your mother's full name to the State Department. There are two ways for you to submit this information: electronically by going to www.state.gov or in writing by sending it in an envelope with proper postage to the U.S. State Department/Charleston Passport Center 1269 Holland Street, Building 643, Charleston, South Carolina 29405-2604. If you apply by mail, include a copy of the letter you received from the passport agency saying that your earlier application was filed without further action or closed, if you still have it.
The State Department will review your information according to the qualifying terms and exclusions described above. The Department will then notify you by writing informing you whether or not you are an eligible class member.
WHAT DO I GET?
Those who qualify as class members will receive two primary benefits. First,

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class members will get to re-apply for a passport without paying the passport application fee (currently $75), and may avoid paying the $25 passport execution fee if they re-apply at a Passport Agency/Center or at one of the five temporary mobile units the State Department will provide in southern Texas. More information about the mobile units, including when and were they will be located, will be posted to the State Department’s web site at www.state.gov.
Second, each class member will have their re-application and supporting information reviewed under a set of court-approved procedures that are designed to ensure that the standards for obtaining a U.S. passport are applied fairly and appropriately.
This settlement does not guarantee that you will be issued a passport. You will still need to demonstrate U.S. citizenship or nationality by a preponderance of the evidence, ensure that your identity is not reasonably in question, and comply with all requirements, procedures, and instructions for filing a passport application. There may also be statutory, regulatory, or other legally sufficient reasons that may prevent the issuance of a passport.
HOW DO I GET MY PASSPORT APPLICATION REVIEWED WITHOUT PAYING THE APPLICATION FEE?
Only class members will receive a review of their passport application without paying the fee. To obtain fee-free review, simply submit the information noted above in order to confirm that you are a class member. The State Department will notify you in writing if you are a class member and if you are eligible for a review of your application without paying the fee.
IS THERE A DEADLINE FOR GETTING FEE-FREE REVIEW?
Yes. To obtain review of your application without paying the fee, you must submit your information to confirm that you are a class member by 11:59 p.m. on June 1, 2010. Class members can still re-apply for a passport after that date but will need to pay the application fee.
WHAT DO I DO AFTER I GET CONFIRMATION THAT I AM A CLASS MEMBER?
Once you are notified that you are a class member entitled to fee-free review of your application, you must submit your fee-free letter with your passport re-application and supporting information by 5:00 p.m. on December 31, 2010. The Department will then review your application under the new, court-approved procedures to determine if you should be issued a passport.
WHAT ARE THE NEW PROCEDURES?
There are several new procedures. First, the Department is revising and

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reinforcing its standards for maintaining and using a list of midwives and birth attendants convicted or suspected of engaging in birth certificate fraud in the passport application review process.
Second, the Department is no longer sending “filed without further action” letters or designating applications as “abandoned” or otherwise closed. As part of the new procedures, class member passport re-applications will either be issued or denied by the Department, unless withdrawn in writing by the class member.
Third, the Department has improved its procedures for communicating with class members when requesting additional information, as well as in those instances where an application may be denied.
Fourth, the Department is providing additional training to its personnel to explain, communicate, and reinforce adherence to the appropriate standards and policies for reviewing passport applications.
Fifth, the Department is establishing a review process so that class member reapplications will be first reviewed by a senior-level employee. In those instances where a passport is not issued at this stage, a three-member panel made up of senior-level employees will then review the entire application and make the decision to issue a passport or deny the application.
Sixth, class members who are denied passports will have an additional opportunity to respond to the specific reasons for the denial of their application. The three-member panel will re-review any such additional responses before making a final decision.
HOW WILL I KNOW WHETHER OR NOT I WILL GET A PASSPORT?
Once you have submitted your re-application and any additional information, it will be reviewed by a senior-level employee specially trained by the State Department. If the decision is not to issue a passport, the application will then be reviewed by a three-member panel of senior-level employees specially trained by the State Department. A decision to issue you a passport may occur at any stage of this process. If a decision to issue you a passport is made, it will be sent to you. If there is a need for any additional information, the Department will contact you. If a decision is made not to issue you a passport and to deny your application, you will receive a letter specifying why your application was denied.
WHAT HAPPENS IF I AM STILL DENIED A PASSPORT?
If you are denied a passport as a result of the re-application process, you will have 60 days to respond to the denial letter. If you do not respond, your application remains denied. If you re-apply and your passport application is denied, you may then bring your own lawsuit under 8 U.S.C. § 1503 in the U.S. district court where you live.

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WHAT IF I ALREADY FILED MY OWN LAWSUIT OR I INTEND TO FILE A LAWSUIT?
All class members are strongly encouraged to re-apply under these procedures regardless of whether you already filed a lawsuit or are considering it. You do not need to file a lawsuit to be a class member. Also, if you re-apply, you may receive a passport, and you still will have an opportunity later to bring your own lawsuit if your passport application is denied.
Any class member who has already filed a lawsuit under 8 U.S.C. § 1503 may choose either to participate in the re-application process or continue with the lawsuit. If you choose to re-apply, then your lawsuit will be stayed, or dismissed without prejudice if ordered by the court. You will be able to resume your lawsuit later if you do not receive a passport after re-application and review.
Any class member who has not already filed a lawsuit cannot do so until after they have gone through the re-application process UNLESS you file a lawsuit under 8 U.S.C. § 1503 in the district court where you live no more than three (3) business days following preliminary Court approval of the Settlement.
All other claims which arise from, are and/or could have been based on the facts alleged in the class action complaint are forever released, relinquished, and discharged by operation of the settlement. This release includes any claims that seek relief under the Fifth Amendment alleging violations of the Due Process Clause and/or Equal Protection Clause; allege violations of the Administrative Procedures Act (5 U.S.C. § 701, et seq.); seek a Writ of Mandamus; or involve any other actions which seek Declaratory or Injunctive relief brought under 28 U.S.C. § 1346(a)(2), 28 U.S.C. § 2201-2202, and/or 28 U.S.C. § 1361.5.
WHERE CAN I FIND COMPLETE INFORMATION?
Complete information on the settlement, including the full text of the settlement agreement with all the terms of the settlement is available on line at www.state.gov or www.aclutx.org.
WHO REPRESENTS ME AND WHAT IF I HAVE QUESTIONS?
Class Counsel represents class members and they are available to answer your questions. You may contact them at:
Castelano Class Settlement Lisa S. Brodyaga, Esq. Refugio del Rio Grande, Inc. 17891 Landrum Park Road San Benito, TX 78586 (956) 421-3226

Case 7:08-cv-00057 Document 89-1 Filed in TXSD on 06/26/09 Page 57 of 72
Castelano Class Settlement c/o Lisa Graybill, Esq. American Civil Liberties Union Foundation of Texas P.O. Box 12905 Austin, TX 78711 (512) 478-7300
Castelano Class Settlement Vanita Gupta, Esq. American Civil Liberties Union Foundation Racial Justice Program 125 Broad Street New York, NY 10004 (212) 549-2607
Castelano Class Settlement Adam K. Levin, Esq. Tom Widor, Esq Hogan & Hartson LLP 555 13th Street, NW Washington, DC 20004 (202) 637-5600

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Exhibit D

Case 7:08-cv-00057 Document 89-1 Filed in TXSD on 06/26/09 Page 59 of 72

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS
McALLEN DIVISION

)

AMALIA RAMIREZ CASTELANO, et al.,

)

on their own behalf, and on behalf of all others

)

similarly situated,

)

)

PLAINTIFFS-PETITIONERS,

)

)

v.

)

)

HILLARY CLINTON, Secretary of State,

)

et al.,

)

)

DEFENDANTS-RESPONDENTS.

)

)

CA M-08-057 (Class Action)

[PROPOSED] ORDER GRANTING PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT

Before the Court is the Joint Motion for Preliminary Approval of Class Action Settlement (the “Motion”) filed by Plaintiffs Amalia Ramirez Castelano, Sofia Elizabeth Lopez, and J.S., a minor by and through his next friend Sonia Raquel Cantu-Sanchez, on behalf of themselves, the Class and all Class Members and De fendants (collectively, the “Settling Parties”). Whereas the Settling Parties have reached an agreement to settle, subject to approval of the Court pursuant to 23(e) of the Federal Rules of Civil Procedure; th e Court has read and considered the Stipulation and Agreement of Settlem ent and Release (the “Settlement Agreement”) signed by the Settling Parties, which sets f orth the terms and conditions of the proposed settle ment of the Action; and the Settling Parties have consented to the entry of this Order;
The Court has decided to GRANT the Motion. IT IS THEREFORE ORDERED THAT:

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1. This Order (the “Preliminary Approval Order”) incorporates by reference the definitions in the Settling Parties’ Stipulation and Agreement of Settlement and Release (the “Settlement Agreement”), and all terms used herein have the same meanings as set forth in that Settlement Agreement, unless otherwise defined herein.
2. The terms of the Settlement Agreement are preliminarily approved. The Court finds that the Settlement Agreement has no obvious deficiencies, is within the bounds of a reasonable settlement, and that the amount of attorneys’ fees and expenses is within the bounds of a reasonable settlement.
3. Pursuant to Federal Rule of Civil Procedure 23(b), the Court conditionally certifies, subject to final certification in connection with final approval of the Settlement Agreement, the Class as defined in the Settlement Agreement.
4. The Court approves, as to form and content, the Notice to the Class (“Notice”), attached as Exhibit E to the Settlement Agreement and said Notice shall also be translated in Spanish, by a certified translator.
5. Within five (5) business days of the date of this Order, Defendants shall publish the Notice as specified in Paragraph 79 of the Settlement Agreement.
6. Compliance with the procedures specified in Paragraph 79 of the Settlement Agreement satisfies the notice requirements of Federal Rule of Civil Procedure 23(e).
7. The Court will hold a Final Settlement Hearing ("Fairness Hearing") on ________ __ , 2009 at ________ to determine whether the terms of the Settlement Agreement are fair, reasonable, and adequate and should be approved by the Court, and to rule upon such other matters as the Court may deem appropriate; and whether a Final Judgment, attached as exhibit F
2

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to the Settlement Agreement, should be entered and the Released Parties should be released from the Settled Claims by the Releasing Parties, as provided in the Settlement Agreement.
8. Any Class Member may appear at the Fairness Hearing and show cause why the Settlement Agreement should not be approved as fair, reasonable, and adequate; provided, however, that no class member shall be entitled to contest the approval of the terms and conditions of the Settlement Agreement, or, if approved, the judgment thereon, unless he/she first submits written objections in accordance with the instructions contained in the Notice.
9. Any Class Member who intends to make an appearance at the Fairness Hearing, either in person or through counsel at that Class Member’s expense, must deliver to Class Counsel and Defendants’ Counsel and file with the Court, no later than 5 business days before the Fairness Hearing, a notice of intention to appear and a statement identifying any documents the Class Member will seek to introduce or witnesses the Class Member will seek to call at the Fairness Hearing.
10. Any Class Member who fails to comply with paragraphs 8 and 9 shall waive and forfeit any and all rights that Class Member may have to appear separately or object, or to take any appeal of the orders of judgment in this action, and shall be bound by all the terms of this Settlement Agreement, and any other orders of the Court, upon final approval of the settlement.
11. The Court may continue or adjourn the Fairness Hearing from time to time and without further notice to the Class. The Court reserves the right to approve or modify the Settlement Agreement at any time as may be consented to by the Settling Parties and without further notice to the Class. The Court further reserves the right to enter an order of final judgment and dismissal, dismissing the action with prejudice as to the Defendants and against the Plaintiffs and the Class Members at any time and without further notice to the Class.
3

Case 7:08-cv-00057 Document 89-1 Filed in TXSD on 06/26/09 Page 62 of 72 12. Without further order of the Court, the Settling Parties may agree to reasonable
extensions of time to carry out any of the provisions of this Preliminary Approval Order. SO ORDERED this __ day of ___________, 2009, at McAllen, Texas. ______________________________ RANDY CRANE UNITED STATES DISTRICT JUDGE
4

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Exhibit E

Case 7:08-cv-00057 Document 89-1 Filed in TXSD on 06/26/09 Page 64 of 72
NOTICE OF PROPOSED SETTLEMENT AGREEMENT AND HEARING IN A CLASS ACTION
Castelano, et al. v. Clinton, et al., Civil Action No. CA M-08057 in the United States District Court for the Southern District of Texas
TO: All persons (1) who applied in the United States for a passport between April 8, 2003 and the Effective Date of Settlement; (2) whose birth certificate was registered or filed in Texas by a midwife or other birth attendant; and (3) who received a letter from the State Department stating that their passport application was “filed without further action,” “abandoned,” or “closed,” OR who were not issued a decision on an application filed prior to September 15, 2008.
You are hereby notified that a hearing has been scheduled for [Insert day], 2009, at [time], before the Honorable Randy Crane of the U.S. District Court for the Southern District of Texas, 1701 West Business Hwy 83, 9th Floor, McAllen, Texas for consideration of a proposed settlement of the claims that have been brought on your behalf in this lawsuit.
THE PURPOSE OF THIS NOTICE:
This notice has three purposes: 1) to tell you about the proposed settlement and the fairness hearing; 2) to tell you how to obtain more information, including a copy of the full proposed settlement agreement; and 3) to explain how you may object to the proposed settlement if you disagree with it.
THE BASIS FOR THIS CASE:
A class action lawsuit alleged that the State Department was improperly processing the passport applications of persons whose births were assisted by midwives or birth attendants in Texas and along the U.S./Mexico border. Over the years, a large number of midwives and birth attendants filed birth certificates in Texas for people who were not born in the United States. However, the lawsuit asserted that this fact did not justify the State Department’s practices for processing these applications. The State Department denied the allegations in the lawsuit and asserted many defenses. The class action lawsuit was settled in June 2009. The settlement is not an admission of wrongdoing or an indication that any law was violated.
The parties have reached a tentative settlement that the Court has preliminarily approved. The settlement is not an admission of wrongdoing or an indication that any law was violated.
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A DESCRIPTION OF THE PROPOSED SETTLEMENT:
The following description is only a summary of the key points in the proposed settlement agreement. Information on how to obtain a copy of the full, proposed agreement is provided after this summary.
Those who qualify as class members: 1) They filed an application for a passport in the United States between
April 8, 2003 and the Effective Date of Settlement; AND 2) Their birth certificate was filed or registered in Texas by a midwife or
birth attendant; AND 3) One of the following is true:
(a) they received a letter from the State Department saying that the application was "filed without further action," "abandoned" or "closed"; OR (b) a decision was not issued on their application and the application was filed prior to September 15, 2008.
Those who do not qualify as class members: Even if they meet the factors above to qualify, persons will not qualify for the settlement if any of the following apply: (a) They have been issued a passport; (b) They were sent a letter by the State Department denying their application; (c) They have a pending application which was filed on or after September 15, 2008; (d) They filed or re-filed their application in another country; (e) They lost an action for a declaration of US nationality; (f) Their application was classified as "filed without further action" or "abandoned" or "closed" based upon one of several reasons set forth under the passport regulations for supporting denial of a passport (such as being the subject of an outstanding federal, state, or local felony warrant for arrest, or failure to pay a repatriation loan to the United States). For a complete list of all such reasons see federal regulation 22 C.F.R. §§ 51.60 and 51.61; or (g) Their application was rejected because of:
·No photographs or bad photographs; ·No signature or a bad signature; ·No payment of fees or the failure to pay the proper amount of fees; ·No identification or use of improper identification; ·An incomplete application form; ·They did not apply in person; ·Their birth certificate was filed more than one year after their birth.
THE SUMMARY OF THE TERMS:
Those who qualify as class members may re-apply without paying the passport application fee (currently $75), as long as they complete the claim
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submission process within the proper deadlines. They may also avoid paying the $25 passport execution fee if they re-apply at a Passport Agency/Center or at one of the five temporary mobile units the State Department will provide in southern Texas.
In addition, the State Department will revise and reinforce its standards for maintaining and using a list of midwives and birth attendants convicted or suspected of engaging in birth certificate fraud in the passport application review process.
The State Department will no longer send “filed without further action” letters or designate applications as “abandoned” or otherwise closed. As part of the new procedures, class members passport applications will either be approved and a passport issued, or denied by the Department, unless withdrawn in writing by the class member.
The State Department will improve its procedures for communicating with class members when requesting additional information, and in those instances where an application is being denied.
The State Department will provide additional training to its personnel to explain, communicate, and reinforce adherence to the appropriate standards and policies for reviewing passport applications.
The State Department will establish a review process so that class member re-applications will be initially reviewed by a senior-level employee specially trained by the Department. In those instances where a passport is not issued at this stage, a three-member panel made up of senior-level employees will then review the entire application and make the decision to issue a passport or deny the application.
Finally, class members who are denied passports will have an additional sixty (60) days to respond to the specific reasons for the denial of their application. The three-member panel will review any such responses and additional information before making a final decision.
You do not need to file a lawsuit to be a Class Member. You are a Class Member if you meet the three criteria described above and none of the exclusions applies. As a Class Member you are also bound by the settlement and waive certain rights. Any class member who previously filed a lawsuit under 8 U.S.C. § 1503 may choose either to re-apply or continue with the lawsuit. If they choose to re-apply, then the lawsuit will be stayed, or dismissed if so ordered by the court, pending completion of re-adjudication. If you re-apply, you will still have an opportunity to bring your own lawsuit if your passport re-application is denied.
The agreement further provides that, in consideration of the other provisions in the agreement, class members release all defendants from all "settled claims." For a complete description of the terms, releases and "settled claims," you should obtain a
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full copy of the proposed settlement agreement. Defendants do not admit any wrongdoing, fault, or liability. The settlement agreement cannot be used against defendants as evidence of any presumption, concession, or admission of any liability, negligence, fault, or wrongdoing in future actions.
The agreement provides for and resolves all claims by Class Counsel for an award of attorneys’ fees and costs.
THIS IS A SUMMARY OF THE PROPOSED AGREEMENT. TO UNDERSTAND IT FULLY, YOU SHOULD READ THE ENTIRE AGREEMENT. Copies of the proposed settlement may be obtained from: 1) The State Department’s website (www.state.gov); or 2) the ACLU of Texas (www.aclutx.org)
IF YOU AGREE with the proposed settlement, you do not need to do anything at this time. If you wish to attend, you may be present at the public hearing on the proposed settlement as stated above.
IF YOU DISAGREE with the proposed settlement, you have a right to object to it and to the dismissal of the remaining claims in the lawsuit. Your objections will be considered by the Court as it reviews the settlement ONLY IF you follow these procedures:
1. Objections must be filed in writing by mail with the Clerk of the United States District Court for the Southern District of Texas, 1701 West Business Hwy 83, 9th Floor, McAllen, Texas 78501. CONTACT CLASS COUNSEL, NOT THE COURT, REGARDING THE FAIRNESS HEARING.
ALL OBJECTIONS MUST CONTAIN THE FOLLOWING INFORMATION: a. Name, address, and telephone number of the person filing the objection. b. A statement of the reasons for the objection. c. A statement that copies of the objections have also been sent to the
attorneys listed at the end of this notice.
2. You must send copies of your objections to all attorneys listed at the end of this notice.
3. The deadline for receipt of written objections by the Court and the attorneys listed below is XXXX, 2009. Objections filed by mail must be postmarked on or before XXXX, 2009 to be considered timely. Objections filed or mailed after the above date will not be considered. Class members who fail to lodge objections on or before XXXX, 2009, will not be permitted to testify at the settlement hearing.
4. No later than XXXX, 2009, the attorneys for plaintiffs and defendants shall file and serve responses, if any, to objections they timely receive from persons opposed to the proposed settlement.
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Castelano Class Settlement c/o Lisa Graybill, Esq. American Civil Liberties Union, Foundation of Texas P.O. Box 12905 Austin, TX 78711

Jonathan M. Rolbin, Trial Attorney Office of Immigration Litigation District Court Section U.S. Department of Justice Civil Division P.O. Box 878, Ben Franklin Station Washington, D.C. 20044

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 </s> Case 7:08-cv-00057 Document 91 Filed in TXSD on 07/02/09 Page 1 of 1

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF TEXAS
MCALLEN DIVISION

AMALIA RAMIREZ CASTELANO, et al, §

§

Petitioners,

§

VS.

§

§

CONDOLEEZZA RICE, et al,

§

§

Respondents.

§

CIVIL ACTION NO. M-08-57

ORDER GRANTING UNOPPPOSED MOTION TO SEVER PLAINTIFFS’ 8 U.S.C. § 1503(a) CLAIMS

Before the Court is the motion of Plaintiffs Amalia Ramirez Castelano, Sofia Elizabeth

Lopez, and J.S., a minor by and through his next friend Sonia Raquel Cantu-Sanchez

(collectively, the “Plaintiffs”), for an order severing their individual claims brought under 8

U.S.C. § 1503(a) from the other claims brought as part of their class action complaint..

On consideration of same, it is hereby ORDERED that said motion be, and hereby is,

GRANTED.

It is further ORDERED that said claims be severed, and the Clerk of the Court is directed

to assign a new case number to the severed portion based upon this Order and shall docket a

copy of this Order as the first entry. Because the Docket for Case No. CA M-08057 contains

many documents that may affect the severed claims, the severed parties are permitted to refer to

documents previously filed and docketed in Case No. CA M-08057 at any time and for any

purpose in future proceedings on the severed portion of this case.

SO ORDERED this 2nd day of July, 2009, at McAllen, Texas.

___________________________________ Randy Crane United States District Judge
1 / 1

 </s> Case 7:08-cv-00057 Document 93 Filed in TXSD on 07/07/09 Page 1 of 4

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF TEXAS
MCALLEN DIVISION

AMALIA RAMIREZ CASTELANO, et al, §

§

Petitioners,

§

VS.

§

§

CONDOLEEZZA RICE, et al,

§

§

Respondents.

§

CIVIL ACTION NO. M-08-57

ORDER GRANTING PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT

1 / 4

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7. The Court will hold a Final Settlement Hearing (“Fairness Hearing”) on August 14, 2009 at 10 a.m. to determine whether the terms of the Settlement Agreement are fair, reasonable, and adequate and should be approved by the Court, and to rule upon other matters as the Court may deem appropriate; and whether a Final Judgment, attached as exhibit F 2 / 4

Case 7:08-cv-00057 Document 93 Filed in TXSD on 07/07/09 Page 3 of 4 3 / 4

Case 7:08-cv-00057 Document 93 Filed in TXSD on 07/07/09 Page 4 of 4 SO ORDERED this 7th day of July, 2009, at McAllen, Texas. ___________________________________ Randy Crane United States District Judge
4 / 4

 </s> Case 7:08-cv-00057 Document 99 Filed in TXSD on 08/14/09 Page 1 of 1

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF TEXAS
MCALLEN DIVISION

AMALIA RAMIREZ CASTELANO, et al, §

§

Petitioners,

§

VS.

§

§

CONDOLEEZZA RICE, et al,

§

§

Respondents.

§

CIVIL ACTION NO. M-08-57

ORDER

After consideration of the Unopposed Motion to Approve Attorneys’ Fees and Expenses

Pursuant to the Stipulation and Agreement of Settlement and Release, of the record as a whole,

and any arguments and briefing of counsel, and good cause appearing, the Court finds that the

motion should be granted. It is, therefore,

ORDERED that Defendants shall pay Class Counsel $150,000.00 in attorneys’ fees, costs

and expenses in accordance with the terms of the parties’ Settlement Agreement in this matter.

SO ORDERED this 14th day of August, 2009, at McAllen, Texas.

___________________________________ Randy Crane United States District Judge

1 / 1

 </s> Case 7:08-cv-00057 Document 100 Filed in TXSD on 08/14/09 Page 1 of 3

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF TEXAS
MCALLEN DIVISION

AMALIA RAMIREZ CASTELANO, et al §

§

VS.

§

§

CONDOLEEZZA RICE, et al

§

CIVIL ACTION NO. M-08-57

FINAL ORDER AND JUDGMENT APPROVING CLASS ACTION SETTLEMENT

Before the Court is the Motion for Final Approval of Proposed Class Action Settlement

(the “Motion”) filed by Plaintiffs Amalia Ramirez Castelano, Sofia Elizabeth Lopez, and J.S., a

minor by and through his next friend Sonia Raquel Cantu-Sanchez, on behalf of themselves, the

Class and all Class Members and Defendants (collectively, the “Settling Parties”).

Having read and considered the Settlement Agreement and having held a hearing on the

fairness of the proposed Settlement, at which objectors to the Settlement could appear, and based

upon familiarity with the files and proceedings in this matter, the Court finds that:

1. The Final Judgment Order (the “Order”) incorporates by reference the definitions

in the Settling Parties’ Stipulation and Agreement of Settlement and Release (the “Settlement

Agreement”), and all terms used herein have the same meanings as set forth in that Settlement

Agreement, unless otherwise defined herein.

2. The Court has subject matter jurisdiction over this Action, the Class

Representatives, the Class, and the Defendants.

3. The Court preliminarily approved the Settlement Agreement by Order of June 29,

2009.

4. Notice of the proposed Settlement has been timely disseminated in accordance

with the terms of the Preliminary Approval Order, which authorized such notice. Such notice

1 / 3

Case 7:08-cv-00057 Document 100 Filed in TXSD on 08/14/09 Page 2 of 3
satisfies the requirements of Rule 23(c)(2) of the Federal Rules of Civil Procedure and the due process requirement of the Fifth Amendment.
5. The issues as to liability and remedies in the Action are issues as to which there are substantial grounds for difference of opinion, and the proposed settlement of the Action constitutes a resolution of those issues that is fair, reasonable, and adequate to the Class Members.
ACCORDINGLY, IT IS HEREBY ORDERED: 6. The Court hereby approves the Settlement set forth in the Settlement Agreement and finds that:
A. the Settlement Agreement is fair, reasonable, and adequate and in the best interests of the Class; B. the Settlement Agreement has been negotiated at arm’s length between competent, able counsel, and no collusion existed in connection with the Settlement Agreement; C. the record is sufficiently developed and complete to have enabled Plaintiffs and Defendants to evaluate and consider their positions. 7. The portions of the Preliminary Approval Order that, for settlement purposes only, preliminarily and conditionally certified this action as a class action, designated class representatives, and designated class counsel are hereby made final and unconditional. 8. The Settlement Agreement shall be consummated and implemented in accordance with its terms, which are hereby incorporated by reference herein. 9. This Action, the Second Amended Complaint and all claims asserted therein, except for any individual claims under 8 U.S.C. § 1503 that are severed from the Second
2 / 3

Case 7:08-cv-00057 Document 100 Filed in TXSD on 08/14/09 Page 3 of 3
Amended Complaint, are hereby dismissed with prejudice. All parties and Class Members shall bear their own costs and fees except to the extent expressly provided in the Settlement Agreement or in this Final Order. All costs and expenses incurred in identifying and providing notice to the Class and administering the Settlement shall be paid as set forth in the Settlement Agreement.
10. Without affecting the finality of this Final Judgment, the Court retains jurisdiction, as limited by Section IV of the Settlement Agreement, over proceedings arising out of or related to this Settlement Agreement, and the Final Order.
11. This Final Order and Judgment shall not be construed as or deemed to be evidence of an admission or concession as to any claim, defense, or prayer for relief alleged or asserted in this Action.
12. There being no just reason for delay, this Final Order shall be deemed final and the Clerk of the Court is directed to enter this Final Order forthwith.
SO ORDERED this 14th day of August, 2009, at McAllen, Texas. ___________________________________ Randy Crane United States District Judge
3 / 3

 </s> Case: 7:08-cv-00057 As of: 06/12/2012 12:43 PM CDT 1 of 16
CLOSED, HABEAS, MAG
U.S. District Court SOUTHERN DISTRICT OF TEXAS (McAllen) CIVIL DOCKET FOR CASE #: 7:08−cv−00057

Castelano v. Rice et al Assigned to: Judge Randy Crane Related Cases: 7:08−cv−00004
1:09−cv−00045 7:09−cv−00063 7:09−cv−00066 1:09−cv−00034 7:09−cv−00068 1:09−cv−00036 7:09−mc−00008 1:09−cv−00080 7:09−cv−00177 1:09−cv−00191 Cause: 8:1105(a) Aliens: Habeas Corpus to Release INS Det Petitioner

Date Filed: 02/06/2008 Date Terminated: 08/14/2009 Jury Demand: Plaintiff Nature of Suit: 530 Habeas Corpus (General) Jurisdiction: U.S. Government Defendant

Amalia Ramirez Castelano

represented by Elisabeth Lisa S Brodyaga Attorney at Law 17891 Landrum Park Rd San Benito, TX 78586−7197 956−421−3226 Fax: 956−421−3423 Email: lisabrodyaga@aol.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Vanita Gupta ACLU Racial Justice Program 125 Broad STreet 17TH Floor New York, NY 1004 212−549−2607 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Adam K Levin Hogan Hartson LLP 555 13th St N W Washington, DC 20004 202−637−6846 Email: aklevin@hhlaw.com ATTORNEY TO BE NOTICED

Lisa Graybill ACLU Foundation Of Texas P. O. Box 12905 Austin, TX 78711 512−478−7300 Fax: 512−478−7303 Email: lgraybill@aclutx.org ATTORNEY TO BE NOTICED

Melissa N Henke Hogan &Harson LLP 555 13th Street NW Washington, DC 20004

Case: 7:08-cv-00057 As of: 06/12/2012 12:43 PM CDT 2 of 16

202−637−5546 Email: mnhenke@hhlaw.com TERMINATED: 07/16/2009

Robert B Wolinsky Hogan &Hartson LLP 555 13th St, NW Washington, DC 20004−1109 202−637−5600 Fax: 202−637−5910 Email: rbwolinsky@hhlaw.com ATTORNEY TO BE NOTICED

Thomas Widor Hogan and Hartson 555 13th St NW Washington, DC 20004 202−637−2799 Email: tjwidor@hhlaw.com ATTORNEY TO BE NOTICED

Petitioner Florencio Gonzalez, Jr.

represented by Vanita Gupta (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Adam K Levin (See above for address) ATTORNEY TO BE NOTICED

Elisabeth Lisa S Brodyaga (See above for address) ATTORNEY TO BE NOTICED

Melissa N Henke (See above for address) TERMINATED: 07/16/2009

Robert B Wolinsky (See above for address) ATTORNEY TO BE NOTICED

Thomas Widor (See above for address) ATTORNEY TO BE NOTICED

Petitioner
Elvia Elissetche TERMINATED: 09/16/2008

represented by Elisabeth Lisa S Brodyaga (See above for address) ATTORNEY TO BE NOTICED

Petitioner
Arturo Garcia, Sr. TERMINATED: 11/05/2008

represented by Vanita Gupta (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Adam K Levin (See above for address) ATTORNEY TO BE NOTICED

Elisabeth Lisa S Brodyaga

Case: 7:08-cv-00057 As of: 06/12/2012 12:43 PM CDT 3 of 16

(See above for address) ATTORNEY TO BE NOTICED

Lisa Graybill (See above for address) ATTORNEY TO BE NOTICED

Melissa N Henke (See above for address) TERMINATED: 07/16/2009

Robert B Wolinsky (See above for address) ATTORNEY TO BE NOTICED

Thomas Widor (See above for address) ATTORNEY TO BE NOTICED

Petitioner Sofia Elizabeth Lopez

represented by Vanita Gupta (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Adam K Levin (See above for address) ATTORNEY TO BE NOTICED

Elisabeth Lisa S Brodyaga (See above for address) ATTORNEY TO BE NOTICED

Lisa Graybill (See above for address) ATTORNEY TO BE NOTICED

Melissa N Henke (See above for address) TERMINATED: 07/16/2009

Robert B Wolinsky (See above for address) ATTORNEY TO BE NOTICED

Thomas Widor (See above for address) ATTORNEY TO BE NOTICED

Petitioner
Jessica Gonzalez TERMINATED: 09/16/2008

represented by Elisabeth Lisa S Brodyaga (See above for address) ATTORNEY TO BE NOTICED

Petitioner
Miriam Sujee Gonzalez TERMINATED: 03/02/2009

represented by Vanita Gupta (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Adam K Levin (See above for address) ATTORNEY TO BE NOTICED

Case: 7:08-cv-00057 As of: 06/12/2012 12:43 PM CDT 4 of 16

Petitioner Juan Luis Flores TERMINATED: 03/02/2009
Petitioner Rocio Flores TERMINATED: 05/15/2009

Elisabeth Lisa S Brodyaga (See above for address) ATTORNEY TO BE NOTICED
Lisa Graybill (See above for address) ATTORNEY TO BE NOTICED
Melissa N Henke (See above for address) TERMINATED: 07/16/2009
Robert B Wolinsky (See above for address) ATTORNEY TO BE NOTICED
Thomas Widor (See above for address) ATTORNEY TO BE NOTICED
represented by Vanita Gupta (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Adam K Levin (See above for address) ATTORNEY TO BE NOTICED
Elisabeth Lisa S Brodyaga (See above for address) ATTORNEY TO BE NOTICED
Lisa Graybill (See above for address) ATTORNEY TO BE NOTICED
Melissa N Henke (See above for address) TERMINATED: 07/16/2009
Robert B Wolinsky (See above for address) ATTORNEY TO BE NOTICED
Thomas Widor (See above for address) ATTORNEY TO BE NOTICED
represented by Vanita Gupta (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Adam K Levin (See above for address) ATTORNEY TO BE NOTICED
Elisabeth Lisa S Brodyaga (See above for address) ATTORNEY TO BE NOTICED

Case: 7:08-cv-00057 As of: 06/12/2012 12:43 PM CDT 5 of 16

Petitioner David Hernandez TERMINATED: 03/02/2009
Petitioner Juan Aranda TERMINATED: 03/02/2009

Lisa Graybill (See above for address) ATTORNEY TO BE NOTICED
Melissa N Henke (See above for address) TERMINATED: 07/16/2009
Robert B Wolinsky (See above for address) ATTORNEY TO BE NOTICED
Thomas Widor (See above for address) ATTORNEY TO BE NOTICED
represented by Vanita Gupta (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Adam K Levin (See above for address) ATTORNEY TO BE NOTICED
Elisabeth Lisa S Brodyaga (See above for address) ATTORNEY TO BE NOTICED
Lisa Graybill (See above for address) ATTORNEY TO BE NOTICED
Melissa N Henke (See above for address) TERMINATED: 07/16/2009
Robert B Wolinsky (See above for address) ATTORNEY TO BE NOTICED
Thomas Widor (See above for address) ATTORNEY TO BE NOTICED
represented by Elisabeth Lisa S Brodyaga (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Vanita Gupta (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Adam K Levin (See above for address) ATTORNEY TO BE NOTICED
Lisa Graybill (See above for address)

Case: 7:08-cv-00057 As of: 06/12/2012 12:43 PM CDT 6 of 16

ATTORNEY TO BE NOTICED

Melissa N Henke (See above for address) TERMINATED: 07/16/2009

Robert B Wolinsky (See above for address) ATTORNEY TO BE NOTICED

Thomas Widor (See above for address) ATTORNEY TO BE NOTICED

Petitioner
J.S. a minor by and through his next friend Sonia Raquel Cantu−Sanchez

represented by Elisabeth Lisa S Brodyaga (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Vanita Gupta (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Adam K Levin (See above for address) ATTORNEY TO BE NOTICED

Lisa Graybill (See above for address) ATTORNEY TO BE NOTICED

Melissa N Henke (See above for address) TERMINATED: 07/16/2009

Robert B Wolinsky (See above for address) ATTORNEY TO BE NOTICED

Thomas Widor (See above for address) ATTORNEY TO BE NOTICED

V.
Respondent
Condoleezza Rice Secretary of State

represented by Elizabeth J. Stevens U.S. Dept of Justice Civil Division 450 5th Street NW Room 6108 Washington, DC 20001 202−616−9752 Fax: 202−305−7000 Email: elizabeth.stevens@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jonathan M Rolbin US Dept of Justice 450 5th St NW PO Box 868

Case: 7:08-cv-00057 As of: 06/12/2012 12:43 PM CDT 7 of 16

Ben Franklin Station Washington, DC 20044 202−532−4327 Email: jonathan.rolbin@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Peter Michael Bryce U.S. Dept of Justice 20 Massachusetts Ave, NW Washington, DC 20530 202−616−8335 Fax: 202−616−8470 Email: peter.bryce@usdoj.gov LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Lisa Luis United States Attorney's Office Southern District of Texas PO Box 61129 Houston, TX 77208 713−567−9534 Fax: 713−718−3303 Email: lisa.luis@usdoj.gov ATTORNEY TO BE NOTICED

Rene Carlo Benavides Gutierrez Wymer 7718 Broadway San Antonio, TX 78209 210−225−2299 Fax: 210−225−2266 Email: rbenavides@gutierrezwymer.com ATTORNEY TO BE NOTICED

Victor Rodriguez , Jr Colvin, Chaney, Saenz &Rodriguez, LLP 1201 E. Van Buren PO BOX 2155 Brownsville, TX 78522 956−542−7441 Fax: 956−541−2170 Email: vi.rodriguez@rcclaw.com ATTORNEY TO BE NOTICED

Respondent
Celeste F. TERMINATED: 04/07/2008

represented by Lisa Luis (See above for address)

Rene Carlo Benavides (See above for address) ATTORNEY TO BE NOTICED

Respondent United States of America

represented by Elizabeth J. Stevens (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jonathan M Rolbin (See above for address) LEAD ATTORNEY

Case: 7:08-cv-00057 As of: 06/12/2012 12:43 PM CDT 8 of 16

ATTORNEY TO BE NOTICED

Peter Michael Bryce (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Lisa Luis (See above for address) ATTORNEY TO BE NOTICED

Rene Carlo Benavides (See above for address) ATTORNEY TO BE NOTICED

Victor Rodriguez , Jr (See above for address) ATTORNEY TO BE NOTICED

Respondent
Patrick F. Kennedy Under Secretary for Management

represented by Elizabeth J. Stevens (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jonathan M Rolbin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Lisa Luis United States Attorney's Office PO Box 61129 Houston, TX 77208 713−567−9534 Fax: 713−718−3303 Email: lisa.luis@usdoj.gov ATTORNEY TO BE NOTICED

Victor Rodriguez , Jr (See above for address) ATTORNEY TO BE NOTICED

Respondent
Maura Harty Assistant Secretary of State for Consular Affairs

represented by Elizabeth J. Stevens (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jonathan M Rolbin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Lisa Luis (See above for address) ATTORNEY TO BE NOTICED

Victor Rodriguez , Jr (See above for address) ATTORNEY TO BE NOTICED

Case: 7:08-cv-00057 As of: 06/12/2012 12:43 PM CDT 9 of 16

Respondent
Ann Barrett Managing Director, Passport Services Directorate

represented by Elizabeth J. Stevens (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jonathan M Rolbin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Lisa Luis (See above for address) ATTORNEY TO BE NOTICED

Victor Rodriguez , Jr (See above for address) ATTORNEY TO BE NOTICED

Date Filed 02/06/2008 02/06/2008 02/06/2008 02/06/2008 02/06/2008 02/07/2008
02/07/2008 04/06/2008 04/06/2008 04/06/2008 04/07/2008
04/07/2008
04/07/2008 04/09/2008 04/09/2008 04/09/2008

# Docket Text
1 PETITION for Writ of Habeas Corpus (Filing fee $ 5 receipt number 3453019) filed by Amalia Ramirez Castelano.(Brodyaga, Elisabeth) (Entered: 02/06/2008)
2 EXHIBITS re: 1 Petition for Writ of Habeas Corpus by Amalia Ramirez Castelano, filed.(Brodyaga, Elisabeth) (Entered: 02/06/2008)
3 Sealed Event, filed. (Entered: 02/06/2008)
4 EXHIBITS re: 1 Petition for Writ of Habeas Corpus by Amalia Ramirez Castelano, filed.(Brodyaga, Elisabeth) (Entered: 02/06/2008)
5 Summonses by Amalia Ramirez Castelano, filed.(Brodyaga, Elisabeth) (Entered: 02/06/2008)
6 ORDER for Initial Pretrial and Scheduling Conference and Order to Disclose Interested Persons. Initial Conference set for 5/7/2008 at 09:30 AM before Judge Randy Crane. Parties notified.(bgarces, ) (Entered: 02/07/2008)
Summons Issued as to Condoleezza Rice, Celeste F., United States of America (bgarces, ) (Entered: 02/07/2008)
7 Sealed Event, filed. (Entered: 04/06/2008)
8 Sealed Event, filed. (Entered: 04/06/2008)
9 Sealed Event, filed. (Entered: 04/06/2008)
10 First AMENDED Petition for Habeas Corpus against Condoleezza Rice, United States of America filed by Florencio Gonzalez, Jr., Elvia Elissetche, Arturo Garcia, Sr., Sofia Elizabeth Lopez, Jessica Gonzalez, Miriam Sujee Gonzalez, Juan Luis Flores, Rocio Flores, Amalia Ramirez Castelano.(Brodyaga, Elisabeth) (Entered: 04/07/2008)
11 EXHIBITS re: 10 Amended Complaint/Counterclaim/Crossclaim etc., by Florencio Gonzalez, Jr., Elvia Elissetche, Arturo Garcia, Sr., Sofia Elizabeth Lopez, Jessica Gonzalez, Amalia Ramirez Castelano, Miriam Sujee Gonzalez, Juan Luis Flores, Rocio Flores, filed.(Brodyaga, Elisabeth) (Entered: 04/07/2008)
12 Sealed Event, filed. (Entered: 04/07/2008)
13 Sealed Event, filed. (Entered: 04/09/2008)
14 Sealed Event, filed. (Entered: 04/09/2008)
15 Sealed Event, filed. (Entered: 04/09/2008)

Case: 7:08-cv-00057 As of: 06/12/2012 12:43 PM CDT 10 of 16

04/09/2008 04/10/2008 04/10/2008 04/21/2008 04/24/2008
04/24/2008 05/06/2008
05/06/2008 05/07/2008
05/16/2008 06/20/2008 06/23/2008 06/24/2008 06/24/2008
06/25/2008 06/26/2008 07/28/2008
09/09/2008

16 Sealed Event, filed. (Entered: 04/09/2008)
17 Sealed Event, filed. (Entered: 04/10/2008)
18 Sealed Event, filed. (Entered: 04/10/2008)
19 Sealed Event, filed. (Entered: 04/21/2008)
20 Opposed MOTION to Intervene by David Hernandez, Florencio Gonzalez, Jr., Elvia Elissetche, Arturo Garcia, Sr., Sofia Elizabeth Lopez, Jessica Gonzalez, Amalia Ramirez Castelano, Miriam Sujee Gonzalez, Juan Luis Flores, Rocio Flores, filed. Motion Docket Date 5/14/2008. (Attachments: # 1 Proposed Order)(Brodyaga, Elisabeth) (Entered: 04/24/2008)
21 Sealed Event, filed. (Entered: 04/24/2008)
22 Unopposed MOTION for Continuance of The Initial Pretrial Conference and Extension of Answer Date. by Condoleezza Rice, Celeste F., United States of America, filed. Motion Docket Date 5/27/2008. (Attachments: # 1 Proposed Order)(Benavides, Rene) (Entered: 05/06/2008)
ORAL ORDER cancelling hearing set for Wednesday, 5/7/2008 until further notice. Order resetting is forthcoming. (Judge Randy Crane) Parties notified.(lcervantes) (Entered: 05/06/2008)
23 ORDER granting 22 Unopposed MOTION for Continuance of The Initial Pretrial Conference and Extension of Answer Date. (Initial Pretrial Conference reset for 8/6/2008 at 09:30 AM before Judge Randy Crane; answer due 7/25/08).(Signed by Judge Randy Crane) Parties notified.(bgarces, ) (Entered: 05/07/2008)
24 Sealed Event, filed. (Entered: 05/16/2008)
25 Sealed Event, filed. (Entered: 06/20/2008)
26 Sealed Event, filed. (Entered: 06/23/2008)
27 MOTION for Peter Bryce to Appear Pro Hac Vice by Condoleezza Rice, United States of America, filed. Motion Docket Date 7/14/2008. (Bryce, Peter) (Entered: 06/24/2008)
28 Joint MOTION for Extension of Time to File Response and Stay Briefing by Condoleezza Rice, Celeste F., United States of America, filed. Motion Docket Date 7/14/2008. (Attachments: # 1 Proposed Order)(Benavides, Rene) (Entered: 06/24/2008)
29 ORDER granting 27 Motion for Peter Bryce to Appear Pro Hac Vice.(Signed by Judge Randy Crane) Parties notified.(mzamarripa, ) (Entered: 06/25/2008)
30 MOTION for Lisa Luis to Appear Pro Hac Vice by Condoleezza Rice, Celeste F., United States of America, filed. Motion Docket Date 7/16/2008. (Luis, Lisa) (Entered: 06/26/2008)
31 ORDER GRANTING JOINT MOTION FOR EXTENSION OF TIME AND TO STAY BRIEFING SCHEDULE granting 28 Joint Motion for Extension of Time. Defendant's Answer shall be filed on or before 9/25/08. Further, it is Ordered the Initial Pretrial Conference currently sheduled for 08/06/08 is reset to 10/8/2008 at 09:30 AM before Judge Randy Crane. Finally, it is Ordered that further briefing on any Motion to Intervene filed in this matter be stayed until further order of the Court. Any response will be due no later than twenty (20) days after the entry of an order lifting the stay. (Signed by Judge Randy Crane) Parties notified.(mzamarripa, ) (Entered: 07/29/2008)
32 Opposed MOTION to Amend 10 Amended Complaint/Counterclaim/Crossclaim etc., by Florencio Gonzalez, Jr., Elvia Elissetche, Arturo Garcia, Sr., Sofia Elizabeth Lopez, Jessica Gonzalez, Amalia Ramirez Castelano, Miriam Sujee Gonzalez, Juan Luis Flores, Rocio Flores, filed. Motion Docket Date 9/29/2008. (Attachments: # 1 Exhibit 1, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit E, # 7 Exhibit F, # 8 Exhibit G, # 9 Exhibit H, # 10 Exhibit I, # 11 Exhibit J, # 12 Proposed Order)(Brodyaga, Elisabeth) (Entered: 09/09/2008)

Case: 7:08-cv-00057 As of: 06/12/2012 12:43 PM CDT 11 of 16

09/09/2008 09/16/2008 09/16/2008
09/16/2008
09/16/2008 09/17/2008 09/17/2008 09/25/2008 09/28/2008 10/15/2008 10/15/2008 10/16/2008 11/04/2008

33 Sealed Event, filed. (With attachments) (Entered: 09/09/2008)
34 Opposed MOTION for Extension of Time Answer or Otherwise Respond, Opposed MOTION for Continuance of Initial Pretrial Conference( Motion Docket Date 10/6/2008.) by Condoleezza Rice, United States of America, filed. (Attachments: # 1 Proposed Order)(Bryce, Peter) (Entered: 09/16/2008)
35 ORDER GRANTING PLAINTIFFS' MOTION FOR LEAVE TO FILE SECOND AMENDED COMPLAINT AND DEFENDANTS' EMERGENCY MOTION TO EXTEND TIME TO ANSWER granting 32 Opposed MOTION for leave to Amend Complaint/Counterclaim/Crossclaim etc., granting 34 Opposed MOTION for Extension of Time Answer of other response to Second Amended Complaint to be extended to 10/15/2008.(Signed by Judge Randy Crane) Parties notified.(mzamarripa, ) (Entered: 09/16/2008)
36 Second AMENDED Class Action Complaint against Patrick F. Kennedy, Maura Harty, Ann Barrett, Condoleezza Rice, United States of America filed by Juan Aranda, Arturo Garcia, Sr., Sofia Elizabeth Lopez, Amalia Ramirez Castelano, J.S., Miriam Sujee Gonzalez, Juan Luis Flores, Rocio Flores, David Hernandez. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J)(mzamarripa, ) (Entered: 09/17/2008)
37 NOTICE OF RESCHEDULING OF INITIAL PRETRIAL CONFERENCE ( Initial Conference reset for 12/3/2008 at 09:30 AM before Judge Randy Crane).(Signed by Judge Randy Crane) Parties notified.(mzamarripa, ) (Entered: 09/17/2008)
38 MOTION for Elizabeth J. Stevens to Appear Pro Hac Vice by Patrick F. Kennedy, Maura Harty, Ann Barrett, Condoleezza Rice, United States of America, filed. Motion Docket Date 10/7/2008. (Stevens, Elizabeth) (Entered: 09/17/2008)
39 MOTION for Adam Levin, and Melissa Henke to Appear Pro Hac Vice by Juan Aranda, J.S., Florencio Gonzalez, Jr., Arturo Garcia, Sr., Sofia Elizabeth Lopez, Amalia Ramirez Castelano, Miriam Sujee Gonzalez, Juan Luis Flores, Rocio Flores, David Hernandez, filed. Motion Docket Date 10/7/2008. (Brodyaga, Elisabeth) (Entered: 09/17/2008)
40 CERTIFICATE OF SERVICE of 36 Amended Complaint/Counterclaim/Crossclaim etc.,, by Juan Aranda, J.S., Florencio Gonzalez, Jr., Arturo Garcia, Sr., Sofia Elizabeth Lopez, Amalia Ramirez Castelano, Miriam Sujee Gonzalez, Juan Luis Flores, Rocio Flores, David Hernandez, filed.(Brodyaga, Elisabeth) (Entered: 09/25/2008)
41 MOTION for Robin L. Goldfaden to Appear Pro Hac Vice by Juan Aranda, J.S., Florencio Gonzalez, Jr., Arturo Garcia, Sr., Sofia Elizabeth Lopez, Amalia Ramirez Castelano, Miriam Sujee Gonzalez, Juan Luis Flores, Rocio Flores, David Hernandez, filed. Motion Docket Date 10/20/2008. (Brodyaga, Elisabeth) (Entered: 09/28/2008)
42 MOTION to Dismiss 36 Amended Complaint/Counterclaim/Crossclaim etc.,, In Part For Failure To State A Claim Pursuant to Rule 12(b)(6) And Motion To Sever by Patrick F. Kennedy, Maura Harty, Ann Barrett, Condoleezza Rice, United States of America, filed. Motion Docket Date 11/4/2008. (Attachments: # 1 Proposed Order)(Stevens, Elizabeth) (Entered: 10/15/2008)
43 ANSWER to 36 Amended Complaint/Counterclaim/Crossclaim etc.,, by Patrick F. Kennedy, Maura Harty, Ann Barrett, Condoleezza Rice, United States of America, filed.(Stevens, Elizabeth) (Entered: 10/15/2008)
44 MOTION for Jonathan M. Rolbin to Appear Pro Hac Vice by Patrick F. Kennedy, Maura Harty, Ann Barrett, Condoleezza Rice, Celeste F., United States of America, filed. Motion Docket Date 11/5/2008. (mzamarripa, ) (Entered: 10/21/2008)
45 RESPONSE in Opposition to 42 MOTION to Dismiss 36 Amended Complaint/Counterclaim/Crossclaim etc.,, In Part For Failure To State A Claim Pursuant to Rule 12(b)(6) And Motion To Sever MOTION to Dismiss 36 Amended

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11/05/2008 11/07/2008 11/10/2008 11/17/2008
11/25/2008 11/26/2008 11/26/2008 12/03/2008
12/03/2008
12/03/2008

Complaint/Counterclaim/Crossclaim etc.,, In Part For Failure To State A Claim Pursuant to Rule 12(b)(6) And Motion To Sever, filed by Juan Aranda, J.S., Sofia Elizabeth Lopez, Amalia Ramirez Castelano, Miriam Sujee Gonzalez, Juan Luis Flores, Rocio Flores, David Hernandez. (Attachments: # 1 Proposed Order)(Brodyaga, Elisabeth) (Entered: 11/04/2008)
46 STIPULATION of Dismissal of Petitioner Arturo Garcia by Arturo Garcia, Sr., filed.(Brodyaga, Elisabeth) (Entered: 11/05/2008)
47 Unopposed MOTION for Extension of Time To Reply to Plaintiff's Opposition to Defendants' Partial Motion to Dismiss by Patrick F. Kennedy, Maura Harty, Ann Barrett, Condoleezza Rice, United States of America, filed. Motion Docket Date 11/28/2008. (Attachments: # 1 Proposed Order)(Luis, Lisa) (Entered: 11/07/2008)
48 ORDER granting 47 Motion for Extension of Time. Defendants shall have until 11/17/2008 in which to file a reply brief.(Signed by Judge Randy Crane) Parties notified.(mzamarripa, ) (Entered: 11/12/2008)
49 REPLY in Support of 42 MOTION to Dismiss 36 Amended Complaint/Counterclaim/Crossclaim etc.,, In Part For Failure To State A Claim Pursuant to Rule 12(b)(6) And Motion To Sever MOTION to Dismiss 36 Amended Complaint/Counterclaim/Crossclaim etc.,, In Part For Failure To State A Claim Pursuant to Rule 12(b)(6) And Motion To Sever, filed by Patrick F. Kennedy, Maura Harty, Ann Barrett, Condoleezza Rice, United States of America. (Stevens, Elizabeth) (Entered: 11/17/2008)
50 MOTION for Vanita Gupta to Appear Pro Hac Vice by Juan Aranda, J.S., Sofia Elizabeth Lopez, Amalia Ramirez Castelano, Miriam Sujee Gonzalez, Juan Luis Flores, Rocio Flores, David Hernandez, filed. Motion Docket Date 12/15/2008. (Brodyaga, Elisabeth) (Entered: 11/25/2008)
51 REPORT of Rule 26(f) Planning Meeting by Juan Aranda, Patrick F. Kennedy, Maura Harty, Ann Barrett, J.S., Florencio Gonzalez, Jr., Sofia Elizabeth Lopez, Amalia Ramirez Castelano, Miriam Sujee Gonzalez, Juan Luis Flores, Rocio Flores, Condoleezza Rice, United States of America, David Hernandez, filed.(Brodyaga, Elisabeth) (Entered: 11/26/2008)
52 Unopposed MOTION for Leave to File Sur−reply to Motion to Dismiss by Juan Aranda, J.S., Florencio Gonzalez, Jr., Sofia Elizabeth Lopez, Amalia Ramirez Castelano, Miriam Sujee Gonzalez, Juan Luis Flores, Rocio Flores, David Hernandez, filed. Motion Docket Date 12/16/2008. (Attachments: # 1 Exhibit Sur−reply, # 2 Proposed Order)(Brodyaga, Elisabeth) (Entered: 11/26/2008)
53 SCHEDULING ORDER. Amended Pleadings due by 3/6/2009 Joinder of Parties due by 3/6/2009 Pltf Expert Report due by 5/8/2009 Deft Expert Report due by 5/29/2009 Discovery due by 6/12/2009 Dispositive Motion Filing due by 6/19/2009 Non−Dispositive Motion Filing due by 6/19/2009 Joint Pretrial Order due by 7/27/2009 Pretrial Conference set for 8/3/2009 at 09:30 AM before Judge Randy Crane Jury Selection set for 8/4/2009 at 09:30AM before Judge Randy Crane Motion Hearing set for 7/17/2009 at 09:30 AM before Judge Randy Crane.(Signed by Judge Randy Crane) Parties notified.(mzamarripa, ) (Entered: 12/03/2008)
Minute Entry for proceedings held before Judge Randy Crane. Initial PRETRIAL and SCHEDULING CONFERENCE held on 12/3/2008. The Court announced that it had earlier today granted several motions to appear pro hac vice. The Court confirmed that this a unique litigation and is not parallel to other litigation in any other court and further addressed counsel re: request to certify class, June 1st deadline; and the issue of discovery, schedule and time tables. The Court issued a scheduling order setting trial in August 2009, copy tendered to counsel. Appearances: E. Lisa S. Brodyaga, Robin Goldfaden, David Weiner; Jonathan M. Rolbin. (ERO:Richard Cortez [10:05−10:22]), filed.(lcervantes) (Entered: 12/03/2008)
54 ORDER granting 50 Motion for Vanita Gupta to Appear Pro Hac Vice for all Plaintiffs.(Signed by Judge Randy Crane) Parties notified.(mzamarripa, ) (Entered: 12/05/2008)

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12/03/2008 12/03/2008 12/08/2008
12/09/2008 12/09/2008
12/16/2008 12/29/2008 12/29/2008 01/06/2009 01/07/2009 01/15/2009
01/15/2009 01/30/2009 02/27/2009

55 ORDER granting 44 Motion for Jonathan M. Rolbin to Appear Pro Hac Vice for all defendants.(Signed by Judge Randy Crane) Parties notified.(mzamarripa, ) (Entered: 12/08/2008)
56 ORDER granting 41 Motion for Robin L. Goldfaden to Appear Pro Hac Vice for all Plaintiffs.(Signed by Judge Randy Crane) Parties notified.(mzamarripa, ) (Entered: 12/08/2008)
57 NOTICE of Supplemental Authority in Support of Defendants' Motion to Dismiss for Failure to State Claim and Motion to Sever re: 42 MOTION to Dismiss 36 Amended Complaint/Counterclaim/Crossclaim etc.,, In Part For Failure To State A Claim Pursuant to Rule 12(b)(6) And Motion To Sever MOTION to Dismiss 36 Amended Complaint/Counterclaim/Crossclaim etc.,, In Part For Failure To State A Claim Pursuant to Rule 12(b)(6) And Motion To Sever by Patrick F. Kennedy, Maura Harty, Ann Barrett, Condoleezza Rice, United States of America, filed. (Attachments: # 1 Perales v. Casillas)(Rodriguez, Victor) (Entered: 12/08/2008)
58 ORDER granting 52 Motion for Leave to File Sur−Reply in Further Opposition to Defendant's Partial Motion to Dismiss.(Signed by Judge Randy Crane) Parties notified.(mzamarripa, ) (Entered: 12/09/2008)
59 SURREPLY to 42 MOTION to Dismiss 36 Amended Complaint/Counterclaim/Crossclaim etc.,, In Part For Failure To State A Claim Pursuant to Rule 12(b)(6) And Motion To Sever filed by Juan Aranda, J.S., Florencio Gonzalez, Jr., Arturo Garcia, Sr., Sofia Elizabeth Lopez, Amalia Ramirez Castelano, Miriam Sujee Gonzalez, Juan Luis Flores, Rocio Flores, David Hernandez. (mzamarripa, ) (Entered: 12/09/2008)
60 RESPONSE to 57 Notice (Other), Notice (Other), Notice (Other) Defendants' Notice of Supplemental Authority in Support of Partial Motion to Dismiss and Motion to Sever, filed by Amalia Ramirez Castelano. (Henke, Melissa) (Entered: 12/16/2008)
61 ORDER granting 30 Motion for Lisa Luis to Appear Pro Hac Vice.(Signed by Judge Randy Crane) Parties notified.(bgarces, ) (Entered: 12/29/2008)
62 ORDER granting 38 Motion for Elizabeth J Stevens to Appear Pro Hac Vice.(Signed by Judge Randy Crane) Parties notified.(bgarces, ) (Entered: 12/29/2008)
63 ORDER granting 39 Motion for Adam K. Levin to Appear Pro Hac Vice for Plaintiffs.(Signed by Judge Randy Crane) Parties notified.(mzamarripa, ) (Entered: 01/06/2009)
64 ORDER granting 39 Motion for Adam K. Levin, Melissa N. Henke, Robert B. Wolinsky and David Weiner to Appear Pro Hac Vice for Plaintiffs. (Mr. Levin had been previously been granted leave to appear on 1/06/09 per order DE#63)(Signed by Judge Randy Crane) Parties notified.(mzamarripa, ) (Entered: 01/07/2009)
65 MOTION for Thomas J. Widor to Appear Pro Hac Vice by Juan Aranda, J.S., Florencio Gonzalez, Jr., Arturo Garcia, Sr., Sofia Elizabeth Lopez, Amalia Ramirez Castelano, Miriam Sujee Gonzalez, Juan Luis Flores, Rocio Flores, David Hernandez, filed. Motion Docket Date 2/4/2009. (Levin, Adam) (Entered: 01/15/2009)
66 ORDER granting 65 Motion for Thomas Widor to Appear Pro Hac Vice for Plaintiffs.(Signed by Judge Randy Crane) Parties notified.(mzamarripa, ) (Entered: 01/22/2009)
67 STIPULATION of Dismissal of Plaintiff−Petitioner Miriam Sujee Gonzalez by Miriam Sujee Gonzalez, filed.(Levin, Adam) (Entered: 01/30/2009)
68 STIPULATION of Dismissal Voluntary Dismissal of Plaintiff−Petitioner Juan Luis Flores by Juan Aranda, Florencio Gonzalez, Jr., Arturo Garcia, Sr., Sofia Elizabeth Lopez, Amalia Ramirez Castelano, Miriam Sujee Gonzalez, Juan Luis Flores, Rocio Flores, David Hernandez, filed.(Widor, Thomas) (Entered: 02/27/2009)

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02/27/2009 02/27/2009
02/27/2009
03/02/2009
03/06/2009
03/06/2009 03/09/2009 03/09/2009 03/23/2009
03/27/2009 04/01/2009
04/07/2009 04/17/2009 04/27/2009

69 STIPULATION of Dismissal Voluntary Dismissal of Juan Aranda by Juan Aranda, J.S., Florencio Gonzalez, Jr., Arturo Garcia, Sr., Sofia Elizabeth Lopez, Amalia Ramirez Castelano, Miriam Sujee Gonzalez, Juan Luis Flores, Rocio Flores, David Hernandez, filed.(Widor, Thomas) (Entered: 02/27/2009)
70 STIPULATION of Dismissal Voluntary Dismissal of Plaintiff−Petitioner David Hernandez by Juan Aranda, J.S., Florencio Gonzalez, Jr., Arturo Garcia, Sr., Sofia Elizabeth Lopez, Amalia Ramirez Castelano, Miriam Sujee Gonzalez, Juan Luis Flores, Rocio Flores, David Hernandez, filed.(Widor, Thomas) (Entered: 02/27/2009)
71 STIPULATION re: Protective Order by Juan Aranda, Patrick F. Kennedy, Maura Harty, Ann Barrett, J.S., Florencio Gonzalez, Jr., Arturo Garcia, Sr., Sofia Elizabeth Lopez, Amalia Ramirez Castelano, Miriam Sujee Gonzalez, Juan Luis Flores, Rocio Flores, Condoleezza Rice, United States of America, David Hernandez, filed.(Widor, Thomas) (Entered: 02/27/2009)
72 ORDER GRANTING PLAINTIFFS' STIPULATIONS granting 69 Stipulation of Dismissal, 67 Stipulation of Dismissal, 70 Stipulation of Dismissal, 68 Stipulation of Dismissal. Miriam Sujee Gonzalez; David Hernandez; Juan Aranda and Juan Luis Flores terminated.(Signed by Judge Randy Crane) Parties notified.(mzamarripa, ) (Entered: 03/03/2009)
73 Opposed MOTION for Leave to File Plaintiffs' Third Amended and Supplemental Class Action Complaint and Petition for Declaratory, Injunctive, and Mandamus Relief by J.S., Sofia Elizabeth Lopez, Amalia Ramirez Castelano, Rocio Flores, filed. Motion Docket Date 3/26/2009. (Attachments: # 1 Exhibit 1, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit E, # 7 Exhibit F, # 8 Proposed Order)(Widor, Thomas) (Entered: 03/06/2009)
74 Sealed Event, filed. (With attachments) (Entered: 03/06/2009)
75 NOTICE OF FILING ADMINISTRATIVE RECORD (UNDER SEAL) by Patrick F. Kennedy, Maura Harty, Ann Barrett, Condoleezza Rice, United States of America, filed. (Rolbin, Jonathan) (Entered: 03/09/2009)
76 Sealed Event, filed. (With attachments) (Entered: 03/09/2009)
77 Joint MOTION for Extension of Time to File Responses to Plaintiffs' Opposed Motion for Leave to File Third Amended and Supplemental Class Action Complaint and Petition for Declaratory, Injunctive, and Mandamus Relief by J.S., Sofia Elizabeth Lopez, Amalia Ramirez Castelano, Rocio Flores, filed. Motion Docket Date 4/13/2009. (Attachments: # 1 Proposed Order)(Widor, Thomas) (Entered: 03/23/2009)
78 ORDER granting 77 Motion for Extension of Time.(Signed by Judge Randy Crane) Parties notified.(bgarces, ) (Entered: 03/27/2009)
79 Joint MOTION for Extension of Time for Additional Time to File Responses to Plaintiffs' Opposed Motion for Leave to File Third Amended and Supplemental Class Action Complaint and Petition for Declaratory, Injunctive, and Mandamus Relief by J.S., Sofia Elizabeth Lopez, Amalia Ramirez Castelano, Rocio Flores, filed. Motion Docket Date 4/21/2009. (Attachments: # 1 Proposed Order)(Widor, Thomas) (Entered: 04/01/2009)
80 ORDER granting 79 Motion for Extension of Time to File Third Amended and Supplemental Class Action Complaint. Defendants shall have until 4/29/09 to file their response and Plaintiffs shall have until 5/6/2009 to file their reply.(Signed by Judge Randy Crane) Parties notified.(mzamarripa, ) (Entered: 04/07/2009)
81 Sealed Event, filed. (Entered: 04/17/2009)
82 Joint MOTION for Extension of Time to File Responses to Plaintiffs' Opposed Motion for Leave to File Third Amended and Supplemental Class Action Complaint and Petition for Declaratory, Injunctive, and Mandamus Relief and Motion to Amend the Rule 16 Scheduling Order by J.S., Sofia Elizabeth Lopez, Amalia Ramirez Castelano, Rocio Flores, filed. Motion Docket Date 5/18/2009. (Attachments: # 1 Proposed Order)(Widor, Thomas) (Entered: 04/27/2009)

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04/29/2009
05/15/2009 05/15/2009 06/01/2009 06/11/2009 06/12/2009 06/26/2009
06/29/2009 07/01/2009 07/02/2009 07/06/2009 07/07/2009

83 AMENDED SCHEDULING ORDER granting 82 Joint MOTION for Extension of Time to File Responses to Plaintiffs' Opposed Motion for Leave to File Third Amended and Supplemental Class Action Complaint and Petition for Declaratory, Injunctive, and Mandamus Relief and Motion to Amend the Rule 16. ( Amended Pleadings due by 4/3/2009, Joinder of Parties due by 4/3/2009, Pltf Expert Report due by 6/12/2009, Deft Expert Report due by 7/3/2009, Discovery due by 7/17/2009, Dispositive Motion Filing due by 7/24/2009, Non−Dispositive Motion Filing due by 7/24/2009, Joint Pretrial Order due by 8/31/2009, Pretrial Conference set for 9/8/2009 at 09:30 AM before Judge Randy Crane, Jury Selection set for 9/9/2009 at 09:30AM before Judge Randy Crane, Motion Hearing set for 8/21/2009 at 09:30 AM before Judge Randy Crane).(Signed by Judge Randy Crane) Parties notified.(mzamarripa, ) (Entered: 04/29/2009)
84 STIPULATION re: Dismissal of Rocio Flores by Patrick F. Kennedy, Maura Harty, J.S., Sofia Elizabeth Lopez, Amalia Ramirez Castelano, Rocio Flores, Condoleezza Rice, United States of America, filed.(Brodyaga, Elisabeth) (Entered: 05/15/2009)
85 Sealed Event, filed. (Entered: 05/15/2009)
86 Unopposed MOTION to Withdraw 73 Opposed MOTION for Leave to File Plaintiffs' Third Amended and Supplemental Class Action Complaint and Petition for Declaratory, Injunctive, and Mandamus Relief by J.S., Sofia Elizabeth Lopez, Amalia Ramirez Castelano, filed. Motion Docket Date 6/22/2009. (Attachments: # 1 Proposed Order)(Widor, Thomas) (Entered: 06/01/2009)
87 ORDER granting 86 Motion to Withdraw; withdrawing 73 Opposed MOTION for Leave to File Plaintiffs' Third Amended and Supplemental Class Action Complaint and Petition for Declaratory, Injunctive, and Mandamus Relief.(Signed by Judge Randy Crane) Parties notified.(mzamarripa, ) (Entered: 06/11/2009)
88 Unopposed MOTION to Sever Individual 1503 Claims by J.S., Sofia Elizabeth Lopez, Amalia Ramirez Castelano, filed. Motion Docket Date 7/2/2009. (Attachments: # 1 Proposed Order)(Brodyaga, Elisabeth) (Entered: 06/12/2009)
89 Joint EMERGENCY MOTION( Motion Docket Date 7/16/2009.), Joint MOTION Preliminary Approval of the Class Action Settlement Agreement and Expedited Fairness Hearing and Motion for Class Certification for Settlement Purposes Only by J.S., Sofia Elizabeth Lopez, Amalia Ramirez Castelano, filed. (Attachments: # 1 Exhibit 1, # 2 Proposed Order, # 3 Proposed Order)(Widor, Thomas) (Entered: 06/26/2009)
90 NOTICE of Setting as to 89 Joint EMERGENCY MOTIONJoint MOTION Preliminary Approval of the Class Action Settlement Agreement and Expedited Fairness Hearing and Motion for Class Certification for Settlement Purposes Only. Parties notified. Motion Hearing set for Wednesday, 07/01/2009 at 03:30 PM before Judge Randy Crane, filed. (lcervantes) (Entered: 06/29/2009)
Minute Entry for proceedings held before Judge Randy Crane. MOTION HEARING held on 7/1/2009. Appearances: Elisabeth Lisa S. Brodyaga/Thomas Widor; Elizabeth J. Stevens.(ERO:Richard Cortez [3:39−4:15]), filed.(lcervantes) (Entered: 07/01/2009)
91 ORDER GRANTING UNOPPOSED MOTION TO SEVER PLAINTIFFS' 8 U.S.C. §1503(a) CLAIMS granting 88 Motion to Sever. Civil Action No. M−09−177 has been opened)(Signed by Judge Randy Crane) Parties notified.(mzamarripa, ) (Entered: 07/06/2009)
92 Unopposed MOTION for Approval of Attorneys' Fees and Expenses Pursuant to the Terms of the Stipulation and Agreement by J.S., Sofia Elizabeth Lopez, Amalia Ramirez Castelano, filed. Motion Docket Date 7/27/2009. (Attachments: # 1 Exhibit 1, # 2 Proposed Order)(Widor, Thomas) (Entered: 07/06/2009)
93 ORDER GRANTING PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT granting 89 Motion for Emergency.(Signed by Judge Randy Crane) Parties notified.(mzamarripa, ) (Entered: 07/07/2009)

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07/16/2009 08/03/2009 08/07/2009 08/12/2009 08/12/2009 08/14/2009 08/14/2009

94 NOTICE of Withdrawal of Counsel by J.S., Sofia Elizabeth Lopez, Amalia Ramirez Castelano, filed. (Widor, Thomas) (Entered: 07/16/2009)
95 Letter (SEALED EVENT), filed. (With attachments) Modified on 8/10/2009 (bgarces, ). (Additional attachment(s) added on 8/10/2009: # 2 Letter, # 3 Sealed Attachments) (bgarces, ). (Entered: 08/03/2009)
96 OBJECTION to the Notice of Proposed Settlement Agreement and Hearing in a Class Action, filed by Jose Santos Araujo, pro se. (Attachments: # 1 Attachment, # 2 Attachment, # 3 Attachment / letter)(mzamarripa, ) (Entered: 08/11/2009)
97 Joint RESPONSE to 95 Sealed Event THE OBJECTION OF CELIA CALDERA, filed by Patrick F. Kennedy, Maura Harty, Ann Barrett, Condoleezza Rice, United States of America. (Rolbin, Jonathan) (Entered: 08/12/2009)
98 Joint RESPONSE to 96 Objections OF JOSE SANTOS ARAUJO, filed by Patrick F. Kennedy, Maura Harty, Ann Barrett, Condoleezza Rice, United States of America. (Attachments: # 1 Exhibit One)(Rolbin, Jonathan) (Entered: 08/12/2009)
99 ORDER granting 92 Unopposed Motion to Approve Attorneys' Fees and Expenses.(Signed by Judge Randy Crane) Parties notified.(mzamarripa, ) (Entered: 08/17/2009)
100 FINAL ORDER AND JUDGMENT APPROVING CLASS ACTION SETTLEMENT. Case terminated on 08/14/2009.(Signed by Judge Randy Crane) Parties notified.(mzamarripa, ) (Entered: 08/18/2009)


[CONTENT] the U.S. District Court | the Southern District | Texas | February 6, 2008 | April 7, 2008 | September 16, 2008 | nine | the U.S. State Department | the United States ||| U.S. | years earlier | U.S. | U.S. ||| the State Department | U.S. |||  |||  ||| U.S. | Mexico ||| Mexican ||| ACLU | United States | April 8, 2003 |||  ||| under 8 | U.S. | U.S. | 5 | U.S.C. | 703 ||| second ||| October 15, 2008 ||| six months ||| June 26, 2009 | the District Court ||| June 1, 2010 ||| 150,000 ||| Court | two years | eleven months ||| Court | Randy Crane | July 7, 2009 ||| Court | Crane | August 14, 2009 ||| July 2, 2009 | Court | three | 8 | 1503 | U.S. | 7:09 ||| October 25, 2010 | three | 8 | 1503 [SUMMARY] By filing a complaint in the U.S. District Court for the Southern District of Texas on February 6, 2008, which they amended on April 7, 2008, and again on September 16, 2008, nine named plaintiffs brought a class action lawsuit naming, as defendants, the U.S. State Department and the United States.  The plaintiffs alleged that each had been born in the U.S. years earlier, with the births occurring not in a medical facility but typically attended by a midwife who, for some, registered the birth as occurring in the U.S.  Recently, each plaintiff had applied for a U.S. passport.  Rather than adjudicate their applications by granting or denying each a passport, the State Department requested additional proof of U.S. citizenship from each.  After supplying additional proof, the plaintiffs alleged that, usually, the agency did not acknowledge its receipt and, instead, advised the plaintiffs that their applications would be filed "without further action."  To the plaintiffs, this kind of stalling non-decision was how the agency avoided legal formalities and approvals required to actually deny a passport application and constituted, effectively, denial.  The plaintiffs' U.S. citizenship assertions were often complicated by their having also been registered in Mexico as having been born there.  Bogus Mexican birth registrations, filed by their parents, typically made the plaintiffs eligible for health benefits or school in that country when, at times, the parents resided there.

Represented by the ACLU and private counsel, the plaintiffs sought to represent a national class consisting of "all persons who have filed or will in the future file applications for United States passports, in whose cases, on or after April 8, 2003, the defendants did, or will in the future, 'file' or 'close' their applications without formally adjudicating them."  The plaintiffs alleged that their inability to travel freely, resulting from the effective denial of their passport applications, significantly and unlawfully restricted their liberty.  They sought a declaratory judgment under 8 U.S.C. § 1503 that the named plaintiffs were, in fact, U.S. citizens; a class-wide declaratory judgment that defendants had violated due process by failing to adjudicate and otherwise obstructing the class's applications, and corresponding injunctive relief; a class-wide declaratory judgment that defendants had violated equal protection by treating the class differently from similarly situated U.S. citizens of different race, ethnicity or ancestry, and corresponding injunctive relief; a class-wide declaration that defendants had violated the Administrative Procedure Act, 5 U.S.C. § 703, by acting arbitrarily and capriciously, and corresponding injunctive relief; a writ of mandamus compelling the defendants to actually adjudicate the applications and issue the passports; and attorneys' fees and costs. Plaintiffs also initially sought habeas relief, but dropped this cause of action in their second amended complaint.

On October 15, 2008, the defendants filed a partial motion to dismiss for failure to state a claim upon which relief can be granted.  Over the course of the following six months, several individual plaintiffs obtained their passports and voluntarily dismissed their claims.

On June 26, 2009, the parties informed the District Court that they had come to a agreement. Under the terms of their proposed settlement, the defendants agreed to re-adjudicate the applications of the class without denying them solely because an applicant had been birthed by a midwife on defendants' list of suspected or known birth certificate forgers, and to waive fees if the class member made a request by June 1, 2010. Defendants also agreed to train their employees on re-adjudication under the terms of the settlement, to give notice to the class, and to pay attorneys' fees of $150,000. The Court was to retain only contingent jurisdiction to mediate disputes over the settlement should the other dispute resolution mechanisms listed be exhausted, and the settlement was to last for two years and eleven months.

The parties moved for preliminary approval and class certification for settlement purposes, and the Court (Judge Randy Crane) granted their motion on July 7, 2009.

After hearing objections from individuals who wanted to be covered by the settlement but who had been denied passports and were thus not part of the class, and responses from the parties, who pointed out that the objectors were not bound by the settlement and could thus still bring their own claims, the Court (Judge Crane) gave its final approval to the settlement on August 14, 2009.

(Note that on July 2, 2009, the Court approved the motion of three plaintiffs to sever their individual claims under 8 U.S.C. § 1503 for declarations that they were U.S. citizens, and created the separate case of Castelano v. Rice, No. 7:09-cv-00177, to address these claims. By October 25, 2010, all three plaintiffs had received their passports and dismissed their claims, reserving the right to file future 8 U.S.C. § 1503 claims should the need arise.)

