Case 2:12-cv-00981-ROS Document 355 Filed 11/24/14 Page 1 of 11

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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 MARICOPA
COUNTYS RESPONSE TO UNITED
STATES MOTION FOR PARTIAL
SUMMARY JUDGMENT

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Defendants.

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Defendant has failed to refute the United States showing that summary judgment

21 against the County is appropriate on the United States discriminatory policing claims.
22 I.

Issue Preclusion Applies against the County.

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A. The County Was a Party to Melendres through MCSO.

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Defendant does not take issue with the premise that MCSO was a defendant in the

25 Melendres case, or that MCSO is a part of the County. Nor could it, as both Arizona and
26 Federal courts have determined as much in explaining why MCSO is a nonjural entity.
27 See Braillard v. Maricopa Cnty., 232 P.3d 1263, 1269 (Ariz. Ct. App. 2010) (Although
28 A.R.S. 11201(A)(1) provides that counties have the power to sue and be sued through

Case 2:12-cv-00981-ROS Document 355 Filed 11/24/14 Page 2 of 11

1 their boards of supervisors, no Arizona statute confers such power on MCSO as a

2 separate legal entity. (emphasis added)); id. (rejecting the argument that MCSO has
3 admitted in court proceedings that it is a separate entity from the County (emphasis
4 added)); Ekweani v. Maricopa Cnty., No. 2:08-cv-1551, 2009 WL 976520, at *2 (D.
5 Ariz. Apr. 9, 2009) ([T]he office[] of the county sheriff . . . [is] simply [an]
6 administrative subdivision[] of the county.). Indeed, in its Motion to Dismiss in the
7 Melendres case, the County itself represented that MCSO is a county department and
8 not an entity separate and apart from Maricopa County. Doc. 39, Melendres v. Arpaio,
9 No. 2:07-cv-02513, Defendants Rule 12(B)(6) Motion to Dismiss Plaintiffs First
10 Amended Complaint, at 20 (Sept. 29, 2008), attached hereto as Ex. 1. Inasmuch as
11 MCSO is a part of the County and has remained a defendant in the Melendres case, the
12 holding against MCSO applies as well against the County.
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The fact that the plaintiffs and the County moved to dismiss the County from

14 Melendres because the County was not a necessary party only underscores the identity
15 between MCSO and the County. Doc. 351, at 4:3 (Defendants Response). 1 The County
16 was unnecessary because it was a separate party in name only; as far as the claims in
17 Melendres were concerned, it was represented through its county department, MCSO.
18 Ex. 1, at 20; see Sunshine Anthracite Coal Co. v. Adkins, 310 U.S. 381, 402 (1940)
19 (Identity of parties is not a mere matter of form, but of substance. . . . [P]arties
20 nominally different may be, in legal effect, the same. (internal quotation marks
21 omitted)). Defendant acknowledges as much in its Response brief, where it points out
22 that if a decision against the Sheriff was a decision against the County, Plaintiff could
23 have brought this very suit solely against the Sheriff. Doc. 351, at 7:6-7. Though the
24 County conflates the Sheriff with MCSO, that is exactly what the County and the
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Citations to page numbers refer to the page number printed in the ECF header of
28 Defendants Response.

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1 plaintiffs in Melendres confirmed when they moved to dismiss the County as

2 unnecessary: that a decision against [MCSO] was a decision against the County. 2
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B. The County Was in Privity with the Sheriff and MCSO

Even if the County is not to be considered an actual party in Melendres, issue

5 preclusion applies as to the County because it is in privity with the Sheriff. Privity exists
6 between officers of the same government, and issue preclusion can apply to a
7 government official for issues resolved against a different governmental official in earlier
8 litigation. See Adkins, 310 U.S. at 402-03; Fund for Animals, Inc. v. Lujan, 962 F.2d
9 1391, 1398 (9th Cir. 1992). The question is whether the government official in the first
10 litigation had the authority to bind the official in the second litigation. See Sunshine, 310
11 U.S. at 402-03 (holding that the National Bitumous Coal Commission bound the United
12 States such that preclusion applied in a subsequent suit against the Collector of Internal
13 Revenue, a different government official). As a County officer, A.R.S. 11-401(A)(1);
14 Fridena v. Maricopa Cnty., 504 P.2d 58, 61 (Ariz. Ct. App. 1972), the Sheriff had the
15 authority to bind the County in Melendres, and so he was in privity with the County.
Issue preclusion also applies against the County because it was adequately

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17 represented by MCSO in that case. A partys representation of a nonparty is adequate

18 for preclusion purposes only if, at a minimum: (1) the interests of the nonparty and her
19 representative are aligned, and (2) either the party understood herself to be acting in a
20 representative capacity or the original court took care to protect the interests of the
21 nonparty. Taylor v. Sturgell, 553 U.S. 880, 900 (2008) (internal citations omitted).
22 Both of those circumstances are present here.
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In this case, unlike in Melendres, the United States asserts unique wrongdoing on the
part of the County. Not only is it legally responsible for the civil rights violations of its
Sheriff, who is a County officer and chief County policymaker in law enforcement
matters, see Doc. 332, at 14 (United States Motion for Partial Summary Judgment), but
it has failed to live up to its promises to ensure that the Sheriff complies with the
nondiscrimination provisions of Title VI. Id. at 15.

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First, the Countys interests clearly were aligned with those of MCSO in

2 Melendresthe County and MCSO opposed the plaintiffs claims in that case, and each
3 sought to avoid the Sheriffs and MCSOs liability. All three parties filed a common
4 Answer denying the plaintiffs allegations, see Melendres v. Arpaio, Doc. 62, at 1,
5 Defendants Answer to Plaintiffs First Amended Complaint, attached hereto as Ex. 2,
6 and the County is liable for the Sheriffs misconduct in law enforcement matters. United
7 States v. Maricopa Cnty., et al., 915 F. Supp. 2d 1073, 1082-84 (D. Ariz. 2012); see
8 Braillard, 232 P.3d at 1269 n.2 (Maricopa County pays its own debts, and it funds the
9 Sheriffs [sic] official functions. Whether the County or the Sheriff is liable is of no
10 practical consequence. One or both paths must be good, and they both lead to the same
11 money. (quoting Payne v. Arpaio, No. 2:09-cv-1195, 2009 WL 3756679, at *6 (D.
12 Ariz. Nov. 4, 2009))); see also LaFrance v. Kitsap Cnty., No. 3:07-cv-05347, 2008 WL
13 269009, at *5 (W.D. Wash. Jan. 29, 2008) (holding that individual Sheriffs were in
14 privity with the County inasmuch as the county can only act through its human
15 representatives).
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Second, MCSO, as a party to Melendres, certainly understood that it was

17 representing the Countys interests concerning the claims in Melendres. MCSO is a

18 county department, as the County and MCSO represented in their joint Motion to
19 Dismiss the plaintiffs First Amended Complaint. Ex. 1, at 20. Moreover, the same legal
20 counsel represented the County, MCSO, and the Sheriff in filing their motion to dismiss
21 and the defendants Answer to the First Amended Complaint. See Exs. 1, 2. 3 The
22 County obtained separate legal counsel before the claims against it were dismissed, see
23 Doc. 333-4, Ex. 4 to the United States SOF, entry 84 (Melendres docket sheet), but that
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Additionally, the Maricopa County Attorneys Office represents the County in civil
26 matters, and has represented MCSO and Arpaio throughout the course of the Melendres
litigation. See Doc. 333-4, Ex. 4 to the United States SOF (Melendres docket sheet
27 showing the Maricopa County Attorneys Office as counsel for Defendants Arpaio and
28 MCSO through the present).

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1 cannot alter MCSOs and its counsels understanding of the identity of interests between
2 MCSO and the County. The County therefore was in privity with MCSO in Melendres,
3 and issue preclusion applies as to the County.
4 II.
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Defendant Is Subject to Liability under Section 14141 and Title VI.

As more fully set out in the United States Response to Defendants Motion for

6 Summary Judgment, Defendant is subject to liability under Section 14141 and Title VI,
7 and that conclusion is law of the case. Doc. 348, at 14-16. Nevertheless, Defendants
8 argument that Section 14141 and Title VI provide for a narrower scope of liability than
9 Section 1983 is unsupported by the texts of the statutes. If anything, Section 14141
10 provides for a broader scope of liability than Section 1983, because Section 14141
11 explicitly premises liability for a governmental authority on the conduct of other actors,
12 namely, law enforcement officers: It shall be unlawful for any governmental authority .
13 . . to engage in a pattern or practice of conduct by law enforcement officers . . . that
14 deprives persons of rights, privileges, or immunities secured or protected by the
15 Constitution or laws of the United States. 42 U.S.C. 14141 (emphasis added). In
16 addition, the term engage in indicates that liability under 14141 may be conditioned
17 on less direct causal involvement in a violation than is required by the subjects, or
18 causes to be subjected language of Section 1983. See Louis-Charles v. Sun-Sentinel
19 Co., 595 F. Supp. 2d 1304, 1307 (S.D. Fla. 2008) (interpreting the term engage in as
20 used in the Fair Labor Standards Act to require only a minimal amount of
21 participation). In any event, that Defendant is subject to liability under Section 14141
22 and Title VI is firmly established in this case.
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The County Is Subject to Liability for Breach of Its Contractual Assurances.

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Defendant does not contest that it committed to the contractual assurances; that in

25 the contractual assurances, it promised to comply with Title VI and require any
26 subgrantees or contractors to comply as well, Doc. 351, at 11; or that Defendant Arpaio
27 and MCSO were Defendants subgrantees of Federal funds. See Doc. 332, at 15
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1 (Defendants Response to the United States Statement of Facts). Defendant argues that it
2 cannot be liable for breaching its contractual assurances that it will require [its]
3 subgrantees or contractors to comply with Title VI, because it lacked the authority to
4 live up to its promises. See Doc. 351, at 11-13. Its argument collapses under the great
5 weight of the legal authority and factual record against it.
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Defendant promised to require Defendant Arpaio and MCSOits

7 subgranteesto comply with the nondiscrimination provisions of Title VI. See Doc.
8 332, at 15 (United States Motion for Partial Summary Judgment); Doc. 352, at 12-13
9 (Defendants Response to the United States Statement of Facts). Defendant suggests in
10 its Response that this commitment obligated it to take action, consistent with its
11 authority, to ensure the Sheriffs compliance. Doc. 351, at 12. Because Defendant
12 Arpaio and MCSO engaged in widespread intentional discrimination in violation of Title
13 VI, as has been determined in Melendres, the County necessarily failed either to
14 require or to ensure the Sheriffs compliance with Title VI. Summary judgment for
15 the United States on its contract claim against the County therefore is appropriate.
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To the extent that Defendant argues that state law somehow limited its obligation

17 to require the Sheriffs compliance with Title VI, that argument must fail because
18 [f]ederal law governs the interpretation of contracts entered pursuant to federal law
19 where the federal government is a party. Chickaloon-Moose Creek Native Assn v.
20 Norton, 360 F.3d 972, 980 (9th Cir. 2004). Contracts with the Federal government
21 should be interpreted against the backdrop of the legislative scheme that authorized
22 them, and [the] interpretation of ambiguous terms or implied covenants can only be made
23 in light of the policies underlying the controlling legislation. Peterson v. U.S. Dept. of
24 Interior, 899 F.2d 799, 807 (9th Cir. 1990). Here, the legislative scheme of Title VI
25 would be dangerously undermined if the contractual assurances were not interpreted as
26 mandating that Defendant take action to require the Sheriff, its subgrantee, to comply
27 with Title VI.
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Moreover, it is beyond question that Defendant had sufficient authority to require

2 that the Sheriff comply with Title VI. The Department of Justice spelled out for
3 Defendant what it needed to do to satisfy that obligation in a 2010 letter informing
4 Defendant of the various civil rights laws with which it needed to comply. See Doc. 333,
5 Ex. 6, Declaration of Letoya Johnson, at Ex. H. Under the heading, Ensuring the
6 Compliance of Subrecipients, Defendant was informed that [s]tate agencies that make
7 subawards must have in place standard grant assurances and review procedures to
8 demonstrate that they are effectively monitoring the civil rights compliance of
9 subrecipients. Id. at US_0737612. Defendant certainly has the power to live up to those
10 obligations, as the United States has set out more fully in its Response to Defendants
11 Motion for Summary Judgment. See Doc. 348, at 8-14. In providing Defendant Arpaio
12 and MCSO with Federal financial assistance, Defendant could have informed them that
13 they must comply with the non-discrimination provisions of Title VI and directed the
14 Sheriff to report to it under oath on the steps he was taking to ensure that MCSO would
15 comply. See A.R.S. 11-253; Doc. 349, at 10, 19 (United States Statement of
16 Additional Facts in Response to the Countys Motion for Summary Judgment [hereinafter
17 SAF]). Defendant could have conferred with the Sheriff and MCSO on best practices to
18 guard against such discrimination. See Doc. 349, at 11, 20. Failing the Sheriffs
19 cooperation, Defendant could have used its budgetary authority to encourage his
20 cooperation and compliance. See id. at 10, 17. Instead, Defendant did nothing. County
21 Manager David Smith was in charge of the Countys Office of Management and Budget
22 (OMB), which was responsible for considerable oversight of the Sheriffs Office. See
23 Deposition of David Smith, at Tr.9:1-18, attached hereto as Exhibit 3; Doc. 349, Ex. 2, at
24 2, 5 (County Oversight Resolution directing OMB to provide financial controls of
25 MCSO, perform operational efficiency reviews of MCSO, and perform certain
26 oversight functions and review of MCSO). Mr. Smith testified that the County Board
27 of Supervisors never attempted to investigate how the Sheriffs Office conducted its
28 immigration-related activities, that he is unaware of the County Board of Supervisors or

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1 OMB investigating whether MCSO had engaged in discrimination, and that he never
2 directed anyone to do so. See Ex. 3, at Tr. 114:16 115:24. County Supervisor Andrew
3 Kunasek testified that he does not think the Board ever had a discussion about the
4 complaints being raised about racial profiling by MCSO. Deposition of Andrew
5 Kunasek, at Tr.123:23 124:8, attached hereto as Exhibit 4.
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In view of its plain authority to take sufficient steps to require its subgrantees to

7 comply with Title VI, and its failure to do so, Defendant is subject to liability for the
8 breach of its contractual assurances.
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The United States Has the Authority to Enforce the Contractual Assurances.
Decades of uncontroverted legal authority firmly establish the United States

11 inherent right to bring civil actions to enforce grant recipients contractual assurances to
12 comply with Title VI. In United States v. Marion County School District, the Fifth
13 Circuit considered this exact issue and held that the United States is entitled to sue to
14 enforce contractual assurances of compliance with Title VIs prohibition against
15 discrimination. 625 F.2d 607, 617 (5th Cir. 1980); see Brown v. Califano, 627 F.2d
16 1221, 1232 n.67 (D.C. Cir. 1980) (The Attorney General also may bring suit to enforce
17 the assurances of compliance provided by a school district.). As the court explained in
18 Marion County:
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It is settled law that the United States has authority to fix the terms and conditions
upon which its money allotments to state and other governmental entities should
be disbursed. As the Supreme Court has long recognized, the United States may
attach conditions to a grant of federal assistance, the recipient of the grant is
obligated to perform the conditions, and the United States has an inherent right to
sue for enforcement of the recipients obligation in court.

24 Marion Cnty. Sch. Dist., 625 F.2d at 609 (internal citations omitted); see also Natl Fedn
25 of Indep. Bus. v. Sebelius, 132 S. Ct. 2566, 2603-04 (2012) (We have upheld
26 Congresss authority to condition the receipt of funds on the States complying with
27 restrictions on the use of those funds, because that is the means by which Congress
28 ensures that the funds are spent according to its view of the general Welfare.) .

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The United States inherent authority to sue to enforce its contracts is well

2 established. Although as a sovereign the United States may not be sued, yet as a
3 corporation or body politic they may bring suits to enforce their contracts and protect
4 their property, in the State courts, or in their own tribunals administering the same laws.
5 Cotton v. United States, 52 U.S. (11 How.) 229, 231 (U.S. 1850); see also Rex Trailer
6 Co. v. United States, 350 U.S. 148, 151 (U.S. 1956) (The Government has the right to
7 make contracts and hold and dispose of property, and, for the protection of its property
8 rights, it may resort to the same remedies as a private person.) (citing Cotton); United
9 States v. City of Redwood City, 640 F.2d 963, 969 (9th Cir. 1981) (It has been
10 established as a general rule that the United States may sue to protect its interests.). In
11 fact, the governments right to sue is so fundamental that courts are entitled to conclude
12 that Congress has nullified the right only if the evidence of Congress intent is
13 extremely, even unmistakably, clear. Marion Cnty. Sch. Dist., 625 F.2d at 611 (citations
14 omitted).
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The United States authority to sue to enforce Title VI contractual assurances also

16 is confirmed by Department of Justice regulations and guidance, to which courts must

17 defer in the interpretation of Title VI, unless the courts find such interpretation to be
18 unreasonable. Title VI explicitly provides that compliance may be effected by fund
19 termination or any other means authorized by law, and it directs Federal agencies to
20 issue regulations to effectuate its prohibition against discrimination. 42 U.S.C. 2000d21 1. Consistent with that authority, the Department of Justice issued regulations requiring
22 Federal funding recipients to commit to contractual assurances to comply with Title VI,
23 28 C.F.R. 42.105, and authorizing the United States to pursue civil actions to enforce
24 those assurances, id. 42.108(a)(1). Agency guidance issued by the Department of
25 Justice also confirms that the United States may bring civil actions to enforce Title VI
26 contractual assurances. See Department of Justice, Guidelines for the Enforcement of
27 Title VI, Civil Rights Act of 1964, 28 C.F.R. 50.3, pt. I.B.1 (listing various
28 [p]ossibilities of judicial enforcement, including suits to enforce contractual

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1 assurances) [hereinafter Title VI Enforcement Guidelines]. As the agency responsible for

2 administering Title VIs nondiscrimination provision across the Federal government,
3 courts must defer to the reasonable interpretation of the Department of Justice that Title
4 VI authorizes the United States to require contractual assurances of compliance from
5 grant recipients, and to bring civil actions to enforce those assurances. See City of
6 Arlington, Tex. v. F.C.C., 133 S. Ct. 1863, 1868 (2013) (Statutory ambiguities will be
7 resolved, within the bounds of reasonable interpretation, not by the courts but by the
8 administering agency.); Exec. Order No. 12250, 45 Fed. Reg. 72995, 1-101, 1-201
9 (Nov. 2, 1980) (providing that the Attorney General is responsible for the review and
10 approval of all other agencies Title VI regulations, and for the coordination of the
11 implementation and enforcement by Executive Agencies of the nondiscrimination
12 provisions of Title VI).
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Defendant cites to no case, statute, or other law in contravention of this clear,

14 longstanding legal authority for the United States to sue to enforce Title VI contractual
15 assurances. Rather, Defendant points to one failed amendment to the Act proposed by
16 Congressman George Meader. See 110 Cong. Rec. 2804 (1964). Congressman Meader
17 offered the amendment to remove the provision permitting enforcement by any . . .
18 means authorized by law and replace it with a provision that would permit enforcement
19 only through breach-of-contract actions. See 110 Cong. Rec. 2492-94 (1964).
20 Congresss rejection of that amendment in favor of the existing enforcement provision
21 signals not that it intended to restrict the United States from enforcing contractual
22 assurances, but that it intended to allow the United States several alternative courses of
23 action to secure compliance. Title VI Enforcement Guidelines, 28 C.F.R. 50.3(a). As
24 the court recognized in Marion County, the record of the floor debates prior to the Acts
25 passage indicates that it was Congress specific understanding that the any other means
26 authorized by law language in Title VI quoted above included government suits to
27 enforce contractual assurances of the kind filed by the United States here. Marion Cnty.
28 Sch. Dist., 625 F.2d at 612.

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In view of the dearth of legal authority cited by Defendant and the clear and

2 longstanding precedent supporting the United States authority to sue to enforce the Title
3 VI contractual assurances, Defendants argument must fail.
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CONCLUSION

For the foregoing reasons, Defendant has failed to refute the United States

6 showing that summary judgment for the United States is appropriate.

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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, 2014, I used the Courts CM/ECF system to serve a

26 true 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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