Case 2:12-cv-00981-ROS Document 354 Filed 11/24/14 Page 1 of 12

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Mark Kappelhoff
Deputy Assistant Attorney General
Jonathan M. Smith (DC Bar No. 396578)
Edward G. Caspar (MA Bar No. 650566)
Jennifer L. Mondino (NY Bar No. 4141636)
Paul Killebrew (LA Bar No. 32176)
T. Jack Morse (GA Bar No. 449134)
Puneet Cheema (CA Bar No. 268677)
Brian Buehler (NY Bar No. 4893665)
U.S. Department of Justice, Civil Rights Division
Special Litigation Section
601 D St. NW, 5th Floor
Washington, D.C. 20004
Attorneys for the United States

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IN THE UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF ARIZONA

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United States of America,

No. 2:12-cv-00981-ROS

Plaintiff,
v.
Maricopa County, Arizona; and Joseph M.
Arpaio, in his official capacity as Sheriff of
Maricopa County, Arizona,

UNITED STATES REPLY TO

DEFENDANT ARPAIOS RESPONSE
TO UNITED STATES MOTION FOR
PARTIAL SUMMARY JUDGMENT

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Defendants.

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Defendant does not contest that the prerequisites for issue preclusion are met,

21 other than arguing that application of issue preclusion would be unfair to him. Nor does
22 he contest that the Melendres determination, together with other facts not in dispute,
23 establishes his liability for the discriminatory policing claims in this case. Defendant
24 argues that application of issue preclusion would be unfair to him because, he asserts,
25 the United States adopted a wait and see attitude as to the litigation in Melendres. The
26 facts on which Defendant relies simply do not support his argument, and he fails to show
27 that the application of issue preclusion would be unfair. Because all of the requirements
28 for the application of issue preclusion are met, and its application would be just, fair, and

Case 2:12-cv-00981-ROS Document 354 Filed 11/24/14 Page 2 of 12

1 efficient for all parties and for the Court, the Court should apply issue preclusion to the
2 determination in Melendres that Defendant Arpaio engaged in intentional racial
3 discrimination in his immigration-related law enforcement operations. With that issue
4 determined, and as Defendant does not contest that it establishes his liability, the United
5 States respectfully requests that the Court enter judgment for the United States on its
6 discriminatory policing claims, Claims 1, 3 and 5 of the Complaint.
7 I.

Application of Issue Preclusion Would in No Way Be Unfair; Defendants

Argument to the Contrary Is Wholly Unsupported by the Facts.

Defendant argues that application of issue preclusion would be unfair because,

10 according to Defendant, the United States pursued a wait and see strategy in the
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11 Melendres case. Doc. 346, at 4. Defendants contention lacks any factual support.

A.

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Only a Purposeful Delay in Bringing Suit, to Elude the Binding Force

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of a Decision in a Preceding Case, Weighs against Issue Preclusion.

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In approving the application of offensive issue preclusion, the Supreme Court

15 advised that a circumstance[] that might justify reluctance to allow the offensive use of
16 collateral estoppel could exist when the plaintiff purposefully avoids joinder in the
17 preceding action and instead adopts a wait and see attitude, in the hope that the first
18 action by another plaintiff will result in a favorable judgment. Parklane Hosiery Co. v.
19 Shore, 439 U.S. 322, 330 (1979). It is not an incidental benefit to a plaintiff of seeing the
20 result of the first action that weighs against applying issue preclusion, but a plaintiffs
21 purposeful delay in bringing suit in order to rely on a previous judgment against a
22 defendant [without being] bound by that judgment if the defendant wins . . . . Id.
Thus, in Starker v. United States, the Ninth Circuit reversed a District Courts

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24 decision not to apply offensive issue preclusion even though the Federal Rules may have
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Defendant also reiterates his argument that the Melendres decision deprives the United
States of standing. That argument fails for the reasons set out in the United States
27 Response to Defendant Arpaios Motion for Partial Summary Judgment. See Doc. 350,
28 at 1-7.
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Case 2:12-cv-00981-ROS Document 354 Filed 11/24/14 Page 3 of 12

1 technically authorized the plaintiffs joinder with the preceding suit, because there are
2 numerous possible explanations why [the plaintiffs] might have wanted the lawsuits tried
3 separately, and [t]his is not a case in which a litigant adopted a wait-and-see attitude
4 for the obvious purpose of eluding the binding force of an initial resolution of a simple
5 issue. Starker, 602 F.2d 1341, 13481350 (1979) (emphasis added). Likewise, the
6 Seventh Circuit affirmed the application of issue preclusion in Ross-Berger Companies,
7 Inc. v. Equitable Life Assur. Soc., even though the plaintiff arguably could easily have
8 joined the earlier action, because the second action asserted a claim distinct from the
9 first, and one case involved complicated questions not at issue in the other. Therefore,
10 the plaintiffs failure to participate in the earlier [case] does not show that it had adopted
11 a wait and see attitude for the obvious purpose of eluding the binding force of an initial
12 resolution of a simple issue. Ross-Berger Companies, Inc., 872 F.2d 1331, 1337 (7th
13 Cir. 1989) (quoting Starker, 602 F.2d at 1349-50); accord DeLeon v. Lloyds London,
14 Certain Underwriters, 259 F.3d 344, 349 (5th Cir. 2001) (holding that reluctance to apply
15 issue preclusion because of a plaintiffs wait and see attitude is not implicated in the
16 absence of dilatory tactics on the part of the plaintiff).
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Defendant points to three factual circumstances that, it argues, would make

18 application of issue preclusion unfair: the United States opposition to a 2009 motion by
19 Maricopa County to stay the Melendres litigation pending completion of the United
20 States newly begun investigation; various filings by the United States in the Melendres
21 case that, Defendant argues, show that the United States was heavily involved in the
22 Melendres litigation; and the United States filing of a statement of interest, after the
23 courts determination that Defendant had engaged in intentional discriminatory policing.
24 None of these events, nor any other circumstances, show that the United States engaged
25 in the kind of purposeful dilatory tactics that would justify a reluctance to apply issue
26 preclusion here; indeed the facts prove otherwise. DeLeon, 259 F.3d at 349.
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1. The United States Opposition to the 2009 Motion to Stay

Defendant argues that the United States actively resist[ed] becoming a party to

3 the Melendres case by opposing a motion in that case for an indefinite stay pending the
4 outcome of the United States recently initiated investigation. Doc. 346, at 6. Nothing
5 about that event shows a purposeful effort to avoid joining the Melendres case, however.
6 Defendant Maricopa County made the motion for an indefinite stay of the Melendres
7 litigation in May 2009, one month after the United States notified the County that the
8 United States was beginning an investigation into MCSOs practices. See Doc. 347-10,
9 Defense Ex. J, at 7 (page 2 of the United States brief in opposition to the stay).
10 Defendant himself opposed the motion for a stay, and the United States filed an amicus
11 brief counseling against it as well. See id.; Doc. 115, Melendres v. Arpaio, No. 2:07-cv12 02513 (June 15, 2009) (Defendant Arpaios opposition to stay), attached hereto as
13 Exhibit 1.
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As the United States noted in its amicus brief, a stay for the duration of the United

15 States investigation would have been inappropriate because the United States had only
16 just begun its investigation, it was impossible to predict how long the investigation would
17 take, and the United States potential causes of action were distinct from those of private
18 plaintiffs. Doc. 347-10, Defense Ex. J, at 7-8 (brief at 2-3). The court agreed and, in
19 denying the motion to stay, noted that the fact that the DOJs investigation is only in its
20 formative stages means that there is simply no way to know whether that investigation
21 will be coextensive with this case. Melendres v. Maricopa Cnty., No. 07-cv-02513, 2009
22 WL 2515618, at *4 (D. Ariz. Aug. 13, 2009). The United States opposition to the
23 Countys motion to stay plainly reflects a reasoned and good faith position taken to avoid
24 undue delay in the redress of ongoing violations of Federal civil rights laws, inasmuch as
25 the United States own, broader investigation was of unpredictable duration. See Doc.
26 347-10, Defense Ex. J, at 8 ([T]he United States does not intend, through the conduct of
27 its investigation, to delay, interfere with, or limit a private plaintiffs rights or abilities to
28 seek timely redress in a private cause of action.).

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The fact that Defendant himself opposed the Countys motion to stay, far from

2 being immaterial, only underscores the legitimacy of the United States opposition to
3 the motion. Doc. 346, at 7, n.3. Like the United States, Defendant argued against the
4 stay because it is unknown when that investigation will be completed or what that
5 investigation will reveal, if anything. Ex. 1, at 2 (Defendant Arpaios opposition to
6 Countys motion to stay).
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Significantly, although Defendant asserts that the United States actively resisted

8 becoming a party to Melendres by opposing the stay, neither the Countys motion for a
9 stay, nor any other motion in the case, ever sought to join the United States as a party.
10 See Doc. 105, Melendres v. Arpaio, No. 2:07-cv-02513 (May 28, 2009) (Countys
11 motion to stay), attached hereto as Exhibit 2; Doc. 333-4, Ex. 4 to the United States SOF
12 (Melendres docket sheet).
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Clearly, the United States opposition to the stay motion was not a dilatory

14 tactic, DeLeon, 259 F.3d at 349, for the obvious purpose of eluding the binding force
15 of an initial resolution of a simple issue. Starker, 602 F.2d 1349-50. Rather, the United
16 States was entitled to pursue its investigation to determine the full scope of Defendants
17 unconstitutional conduct. See Nations v. Sun Oil Co., 695 F.2d 933, 938 (5th Cir. 1983)
18 (plaintiff, who sued defendant for personal injuries after two other plaintiffs had sued the
19 same defendant for injuries resulting from the same event, was entitled to issue
20 preclusion because the court found no proof of purposeful delay. [The plaintiff] was
21 entitled to await the development of his injuries and their predictable consequences.);
22 Restatement (Second) of Judgments 29, comment e (1982) (in deciding whether to
23 apply offensive issue preclusion notwithstanding the fact that the plaintiff did not join the
24 earlier action, [d]ue recognition should be given . . . to the normally available option of a
25 plaintiff to prosecute his claim without the encumbrance of joining with others whose
26 situation does not substantially coincide with his own.). As such, the United States
27 2009 opposition to the Countys motion to stay does not justify reluctance to apply
28 issue preclusion. Parklane, 439 U.S. at 331.

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2. The United States Was Not Heavily Involved in Melendres.

Defendant also asserts that the United States was heavily involved in the

3 Melendres litigation (1) because it sought to attend, but not participate in, depositions; (2)
4 by requesting deposition transcripts, substituting counsel, and making various
5 appearances during proceedings; and (3) by filing motions for protective orders and,
6 Defendant inaccurately asserts, to change venue. Doc. 346, at 8-9. None of these
7 actions show that the United States was heavily involved in the Melendres litigation,
8 much less that it employed any dilatory tactics to avoid being bound by a judicial
9 determination in that case.
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First, requesting deposition transcripts, substituting counsel, and making

11 various appearances reflect only routine efforts to stay apprised of related litigation
12 hardly the kind of actions that would show that the United States was heavily involved
13 in the Melendres case, and far from the kind of active participation in a preceding lawsuit
14 that would demonstrate that a subsequent plaintiffs failure to join the action was due to
15 an obvious purpose of eluding the binding force of an initial resolution. Starker, 602
16 F.2d at 1349-50. In contrast, the cases cited by Defendant involve plaintiffs who had
17 actively participated in the preceding litigation, whether through counsel or by
18 testifying themselves in the proceedings. See In re Air Crash Disaster at Stapleton Intl
19 Airport, Denver, Colo., on Nov. 15, 1987, 720 F. Supp. 1505, 1523-24 (D. Colo. 1989)
20 (subsequent plaintiffs were represented by counsel who actively participated in the
21 preceding trial, and like all other plaintiffs injured in the event, could have joined
22 that case), revd on other grounds sub nom. Johnson v. Contl Airlines Corp., 964 F.2d
23 1059 (10th Cir. 1992); see Charles J. Arndt, Inc. v. City of Birmingham, 748 F.2d 1486,
24 1494 (11th Cir. 1984) (subsequent plaintiff not only was aware of the preceding suit, but
25 actively involved in it by testifying in the case on two occasions).
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Second, the United States request to attend, but not to participate in, depositions

27 does not amount to active participation in the case because the Court denied the United
28 States request, and counsel for the United States never did attend Melendres depositions.

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1 Doc. 346, at 9. Nor does the request demonstrate that the United States should have
2 joined the preceding litigation: the United States investigation was ongoing, and its
3 request was necessitated by Defendant Arpaios refusal to cooperate with that
4 investigation. See Doc. 347-15, Defense Ex. O, at 7. Because the scope of the
5 misconduct under investigation was broader than that at issue in Melendres, and because
6 the investigation was not complete, joinder at that time would not have been appropriate.
7 See Nations, 695 F.2d at 938 (plaintiff was entitled to await the development of his
8 injuries and their predictable consequences before bringing suit); Restatement (Second)
9 of Judgments 29, comment e (1982) (Due recognition should be given . . . to the
10 normally available option of a plaintiff to prosecute his claim without the encumbrance of
11 joining with others whose situation does not substantially coincide with his own.).
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Finally, the United States motions for protective orders and so-called motion to

13 change venue asserted no influence over the Melendres litigation, nor otherwise
14 demonstrate an obvious purpose of eluding the binding force of a determination in that
15 case. Starker, 602 F.2d 349-50. The motions for protective orders were brought by
16 United States Immigration and Customs Enforcement (ICE) in response to subpoenas
17 issued by the Melendres parties that sought over 30,000 pages of documents containing a
18 vast amount of personally identifiable information. See Doc. 347-17, Defense Ex. Q, at
19 3-4, 17-20. ICE sought the protective orders to allow it to produce the documents
20 without redactions. Id. As to the so-called motion to change venue, the United States
21 did not seek to change the venue of the Melendres litigation, but to transfer to the
22 presiding judge of the Melendres case the United States 2010 case against Defendants
23 seeking to enforce the provisions of Title VI that allow the United States access to
24 funding recipients information concerning their grant-funded programs. See id. at 3425 39. (MCSO had resisted the United States efforts to seek such information. The parties
26 agreed to the dismissal of this Title VI access suit after reaching an agreement providing
27 the United States access to the information sought. See Doc. 63, United States v.
28 Maricopa County, et al., No. 2:10-cv-01878, at 2 (Aug. 1, 2011) (motion to dismiss

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1 without prejudice), attached hereto as Exhibit 3.) In no way do these actions suggest any
2 dilatory strategy on the part of the United States to avoid joinder for the obvious purpose
3 of eluding the binding force of a determination in Melendres. Starker, 602 F.2d at 3494 50.
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3. The United States Statement of Interest Concerning Potential

Remedies in Melendres
Finally, Defendant points out that, after the court in Melendres determined that

8 Defendant was engaging in systemic racial discrimination in its immigration-related law

9 enforcement operations, and more than a year after the United States had filed suit in this
10 case, the United States filed a statement of interest concerning potential forms of relief in
11 Melendres. Doc. 346, at 9; Doc. 347-18, Defense Ex. R (United States Statement of
12 Interest (June 13, 2013)). Defendant does not explain how this statement of interest
13 demonstrates that the United States had inappropriately delayed filing suit in order to
14 avoid joinder with Melendres for the obvious purpose of eluding the binding force of a
15 determination in that case. Starker, 602 F.2d 349-50. Indeed, the Melendres courts
16 determination already had been made.
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Rather, it is clear that the United States submitted the statement of interest

18 consistent with its broad interest in ensuring that identified unconstitutional police
19 conduct is adequately remedied. Doc. 347-18, Defense Ex. R, at 1 (United States
20 Statement of Interest (June 13, 2013)). As the United States pointed out in the statement
21 of interest, the United States is responsible for enforcing several federal civil rights
22 statutes that prohibit law enforcement agencies such as [MCSO] from depriving persons
23 of rights under the United States Constitution and federal law, id. at 1-2, and [p]ursuant
24 to these statutes, the United States has worked to remedy violations of the Constitution
25 and other federal laws and to achieve sustainable reform in numerous law enforcement
26 agencies throughout the country. Id. at 2. Additionally, in its order holding that
27 Defendant Arpaio had engaged in discriminatory policing, the court in Melendres
28 specifically had asked the parties to consider two previous stipulations of settlement

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1 secured by the United States in other jurisdictions. See id. at 2; see Melendres v. Arpaio,
2 989 F. Supp. 2d 822, 912 (D. Ariz. 2013). In view of that request, the United States
3 invited the courts attention to another very recent Consent Decree in United States v.
4 City of New Orleans, Doc. 347-18, Defense Ex. R, at 2 (United States Statement of
5 Interest), and to the United States proposed pre-suit settlement agreement in this case,
6 because [t]he provisions of the proposed agreement are consistent with what the United
7 Statesoften in partnership with the law enforcement agencies themselveshas found to
8 be effective in remedying systemic constitutional violations, enhancing police services,
9 and restoring the trust of the community in their law enforcement officers. Id. at 3. 2
Clearly, the United States filed the statement of interest in Melendres in

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11 furtherance of the United States unique interests in securing and administering remedies
12 of systemic civil rights violations nationwide, and not pursuant to any dilatory wait and
13 see strategy. And it cannot give rise to any reluctance to apply issue preclusion, because
14 the relevant issueDefendants intentional discriminationalready had been
15 determined.
4. Defendant Has Failed to Show How Application of Issue Preclusion

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Would Be Unfair to Him.

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Ultimately, the facts simply do not support Defendants argument that the United

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19 States adopted a wait and see attitude with respect to the Melendres litigation. As the
20 court in Melendres noted in denying the Countys motion for a stay, the United States
21 investigation was only in its formative stages in 2009, Melendres, 2009 WL 2515618,
22 at *4, when the parties in Melendres were already well into litigation and discovery, see
23 Doc. 333-4, Ex. 4 to the United States SOF (Melendres docket sheet). When the United
24 States completed its investigation in December 2011, the court in Melendres was
25 deciding motions for summary judgment. See Doc. 333, United States SOF, 1;
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The United States noted that news media previously had obtained a copy of the proposal
27 in April 2012 and that counsel for MCSO previously had released portions of it to the
28 public. Doc. 347-18, Defense Ex. R, at 3, n.1.

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1 Ortega-Melendres v. Arpaio, 836 F. Supp. 2d 959, 969 (D. Ariz. 2011). The United
2 States filed its Complaint in this case in May 2012, a full year before the court ruled in
3 Melendres in May 2013. See Doc. 1, Complaint (May 10, 2012); Melendres, 989 F.
4 Supp. 2d 822 (May 24, 2013). And because of [t]he complicating effect of the
5 additional issues and the additional parties that this case would have brought to
6 Melendres by the time attempts to reach a negotiated pre-suit settlement in the instant
7 case were exhausted, joinder with Melendres at that time was impracticable. Parklane
8 Hosiery, 439 U.S. at 332 n.17 (quoting SEC v. Everest Mgmt. Corp., 475 F.2d 1236,
9 1240 (2d Cir. 1972)); see Ross-Berger Cos., Inc., 872 F.2d at 1337 (where one case
10 involved complicated questions not at issue in the other, the plaintiffs failure to
11 participate in the earlier [case] does not show that it had adopted a wait and see attitude
12 for the obvious purpose of eluding the binding force of an initial resolution of a simple
13 issue.).
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More fundamentally, Defendant has failed to explain how the application of issue

15 preclusion otherwise would be unfair to himwhat injustice it would work, what

16 prejudice he would experience. See Nations, 695 F.2d at 938 (Even if [plaintiff]
17 intentionally delayed . . . , such action was not shown to be fundamentally unfair.
18 [Defendant] had a full, fair and complete opportunity to litigate the negligence issue
19 during the [previous] trials. They have no right to a second bite at the apple.). His
20 failure in this regard is unavoidable, because application of issue preclusion would be
21 only fair, just, and efficient, as the United States has fully set out in its Motion for Partial
22 Summary Judgment. Indeed, the result for which Defendant advocatesthe need for the
23 parties to present at trial in this case, the same evidence on the same issue that Defendant
24 agrees was determined in Melendreswould serve no purpose but to waste scarce
25 judicial resources and the resources of the people of Maricopa County and the United
26 States.
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CONCLUSION
As set out above, Defendants opposition to the United States Motion for Partial

3 Summary Judgment is completely lacking in any factual basisthe facts simply do not
4 support that the United States adopted a wait and see attitude that would justify
5 reluctance to apply issue preclusion to the Melendres decision. Defendant points to no
6 other reason why summary judgment should not be granted for the United States on its
7 discriminatory policing claims. He does not contest that the prerequisites for issue
8 preclusion are met, nor that the issue determined in Melendres, together with other
9 undisputed facts, establishes his liability on the United States discriminatory policing
10 claims. For the foregoing reasons, the United States therefore respectfully requests that
11 the Court grant the United States Motion for Partial Summary Judgment.
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Respectfully submitted,
MARK KAPPELHOFF
Deputy Assistant Attorney General
Jonathan Smith
Chief, Special Litigation Section

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/s/ Edward G. Caspar

Edward G. Caspar (MA Bar No. 650566)
Jennifer L. Mondino (NY Bar No. 4141636)
Paul Killebrew (LA Bar No. 32176)
T. Jack Morse (GA Bar No. 449134)
Puneet Cheema (CA Bar No. 268677)
Brian Buehler (NY Bar No. 4893665)
U.S. Department of Justice
Civil Rights Division
950 Pennsylvania Avenue, N.W.
Washington, D.C. 20530
Tel. (202) 514-2000/Fax (202) 514-6273
edward.g.caspar@usdoj.gov

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ATTORNEYS FOR THE UNITED STATES

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CERTIFICATE OF SERVICE
I certify that on November 24, I used the Courts CM/ECF system to serve a true

4 and correct copy of the foregoing filing on counsel of record.

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/s/ Edward G. Caspar

EDWARD G. CASPAR

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