1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 State of Arizona, et al., No. CV-21-00617-PHX-DWL
10 Plaintiff, ORDER
11 v.
12 Alejandro Mayorkas, et al.,
13 Defendants. 14 15 Pending before the Court is the State’s motion for reconsideration of an order 16 denying its motion for jurisdictional discovery. (Doc. 66.) For the following reasons, the 17 motion for reconsideration is denied. 18 RELEVANT BACKGROUND 19 In this action, the State has sued an array of federal agencies and officials for 20 implementing what the State characterizes as the “Population Augmentation Program,” 21 which is a “collection of policies of Defendants that have the direct effect of causing growth 22 in the population of the United States generally, and Arizona specifically, through 23 immigration.” (Doc. 13 ¶¶ 1-12, 33, 61-65.) 24 On July 14, 2021, the State filed a motion for preliminary injunction on the subset 25 of its claims premised on the notion that Defendants were required by the National 26 Environmental Policy Act (“NEPA”) to prepare an environmental impact statement 27 (“EIS”) before pursuing the policies and programs in question. (Doc. 17.) 28 On October 1, 2021, as the briefing process on the State’s motion was unfolding, 1 Defendants moved to dismiss the State’s complaint under Rules 12(b)(1) and 12(b)(6). 2 (Doc. 27.) 3 On February 7, 2022, the Court denied the State’s preliminary injunction motion, 4 concluding that the State’s NEPA-based challenges to the entirety of the Population 5 Augmentation Program and to the cessation of border wall construction (Counts One and 6 Two) were unlikely to succeed and that the State was not entitled to injunctive relief on its 7 NEPA-based challenge to the rescission of the MPP (Count Three) because any relief the 8 Court might grant would be duplicative of a permanent injunction already upheld by the 9 Fifth Circuit. (Doc. 47.) As relevant here, the Court held that the State was unlikely to 10 possess standing to pursue its NEPA-based challenge to the cessation of border wall 11 construction because the State could not show that migrants were crossing in increased 12 numbers or that wildlife and endangered species were being harmed because of the 13 challenged cessation. (Id. at 14-26.) 14 On February 17, 2022, 10 days after the issuance of this order, the State filed a 15 motion for “targeted jurisdictional discovery,” arguing that Defendants were “uniquely in 16 the custody and control of” information about why migrants cross the border and whether 17 barriers would result in effective deterrence. (Doc. 48 at 1.) The motion became fully 18 briefed in March 2022. (Docs. 51, 52.) 19 On April 28, 2022, the Court issued an order granting Defendants’ motion to dismiss 20 in part and denying the State’s motion for jurisdictional discovery. (Doc. 64.) The latter 21 was denied for two independent reasons: (1) the motion was untimely; and (2) the request 22 failed on the merits because the State offered “little more than a hunch” that discovery 23 might yield jurisdictionally relevant facts and because the requested materials—statistics 24 about where and how often migrants cross the border—were “irrelevant to answering the 25 question of whether a challenged government policy will have a predictable effect on ‘an 26 alien’s independent decision to resettle,’ which may be influenced by ‘any number of 27 variables.’” (Id. at 28-31, citing Whitewater Draw Natural Resource Conservation District 28 v. Mayorkas, 5 F.4th 997 (9th Cir. 2021).) 1 On May 12, 2022, the State filed the pending motion for reconsideration. (Doc. 66.) 2 ANALYSIS 3 The State argues that reconsideration is warranted for three reasons: (1) “this Court 4 improperly injected the issue of timeliness into the request for jurisdictional discovery”; 5 (2) even if the initial request was untimely, “subsequent events”—specifically, the federal 6 government’s recent announcement “that it intends to cancel the Title 42 restrictions on 7 border crossings”—“would render timely even a much-later filed motion”; and (3) new 8 evidence “confirms Arizona’s contention that border walls are effective, even with gaps.” 9 (Doc. 66 at 1-3.) The new evidence consists of a DHS official’s May 5, 2022 statement 10 that border walls are “effective in slowing the pace at which migrants can cross the border, 11 which is particularly important in urban and suburban areas” and an April 29, 2022 12 Washington Post article describing injuries to aliens who fell while attempting to climb 13 portions of the border wall in California. (Id. at 3.) 14 Reconsideration is an “extraordinary remedy” that is available only in “highly 15 unusual circumstances.” Kona Enters., Inc. v. Estate of Bishop, 229 F.3d 877, 890 (9th 16 Cir. 2000) (citations omitted). Thus, Arizona’s local rules provide that a motion for 17 reconsideration should be denied “absent a showing of manifest error or a showing of new 18 facts or legal authority that could not have been brought to [the Court’s] attention earlier 19 with reasonable diligence” and that “[n]o motion for reconsideration of an Order may 20 repeat any oral or written argument made by the movant in support of or in opposition to 21 the motion that resulted in the Order.” LRCiv 7.2(g). 22 Applying these principles, reconsideration is not warranted here. As an initial 23 matter, although the Court is unpersuaded that the timeliness analysis in the April 28, 2022 24 was incorrect or raises any party-presentation concerns under United States v. Sineneng- 25 Smith, 140 S. Ct. 1575 (2020)—courts have broad discretion to regulate discovery and the 26 State’s approach here1 undermined judicial efficiency and was inconsistent with principles
27 1 As discussed in the April 28, 2022 order (Doc. 64 at 28-29), the State had many opportunities to consider the need for jurisdictional discovery between the filing of its 28 complaint in April 2021 and the denial of its preliminary injunction motion in February 2022, including when Defendants moved to dismiss for lack of jurisdiction and for failure 1 of sound case and docket management—the State also overlooks that timeliness only 2 provided one of two independent grounds for denying its motion. The other was that, 3 regardless of timeliness, the request failed on the merits. 4 None of the developments identified in the State’s motion call that conclusion into 5 question. It is unclear to the Court how or why the announced plan to cancel the Title 42 6 restrictions on border crossings would bear on whether aliens are entering the country 7 illegally because of gaps in the border wall or whether wildlife is being harmed by the 8 decision to stop construction. Additionally, that plan has now been enjoined. Louisiana v. 9 Centers for Disease Control & Prevention, 2022 WL 1604901 (W.D. La. 2022). As for 10 the DHS official’s statement that border walls are “effective at slowing the pace at which 11 migrants can cross the border,” this statement is not only ambiguous but fails to address 12 one of the core causation problems previously identified by the Court—that “regardless of 13 Defendants’ action or inaction, Arizona would have been left with an incomplete wall on 14 its southern border filled with gaps. It is speculative that the less-incomplete version of the 15 border wall the State wishes to compel Defendants to build would necessarily deter 16 migrants from entering Arizona. An incomplete wall is an incomplete wall.” (Doc. 47 at 17 17. See also Doc. 64 at 10-11, 31 n.5.) Finally, as for the Washington Post article, if 18 anything it underscores one of the additional causation problems previously identified by 19 the Court—that “aliens committed to entering the United States have time and again found 20 ways to overcome and bypass walls on the southern border,” including by “climb[ing] the 21 fence along the international border.” (Doc.
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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 State of Arizona, et al., No. CV-21-00617-PHX-DWL
10 Plaintiff, ORDER
11 v.
12 Alejandro Mayorkas, et al.,
13 Defendants. 14 15 Pending before the Court is the State’s motion for reconsideration of an order 16 denying its motion for jurisdictional discovery. (Doc. 66.) For the following reasons, the 17 motion for reconsideration is denied. 18 RELEVANT BACKGROUND 19 In this action, the State has sued an array of federal agencies and officials for 20 implementing what the State characterizes as the “Population Augmentation Program,” 21 which is a “collection of policies of Defendants that have the direct effect of causing growth 22 in the population of the United States generally, and Arizona specifically, through 23 immigration.” (Doc. 13 ¶¶ 1-12, 33, 61-65.) 24 On July 14, 2021, the State filed a motion for preliminary injunction on the subset 25 of its claims premised on the notion that Defendants were required by the National 26 Environmental Policy Act (“NEPA”) to prepare an environmental impact statement 27 (“EIS”) before pursuing the policies and programs in question. (Doc. 17.) 28 On October 1, 2021, as the briefing process on the State’s motion was unfolding, 1 Defendants moved to dismiss the State’s complaint under Rules 12(b)(1) and 12(b)(6). 2 (Doc. 27.) 3 On February 7, 2022, the Court denied the State’s preliminary injunction motion, 4 concluding that the State’s NEPA-based challenges to the entirety of the Population 5 Augmentation Program and to the cessation of border wall construction (Counts One and 6 Two) were unlikely to succeed and that the State was not entitled to injunctive relief on its 7 NEPA-based challenge to the rescission of the MPP (Count Three) because any relief the 8 Court might grant would be duplicative of a permanent injunction already upheld by the 9 Fifth Circuit. (Doc. 47.) As relevant here, the Court held that the State was unlikely to 10 possess standing to pursue its NEPA-based challenge to the cessation of border wall 11 construction because the State could not show that migrants were crossing in increased 12 numbers or that wildlife and endangered species were being harmed because of the 13 challenged cessation. (Id. at 14-26.) 14 On February 17, 2022, 10 days after the issuance of this order, the State filed a 15 motion for “targeted jurisdictional discovery,” arguing that Defendants were “uniquely in 16 the custody and control of” information about why migrants cross the border and whether 17 barriers would result in effective deterrence. (Doc. 48 at 1.) The motion became fully 18 briefed in March 2022. (Docs. 51, 52.) 19 On April 28, 2022, the Court issued an order granting Defendants’ motion to dismiss 20 in part and denying the State’s motion for jurisdictional discovery. (Doc. 64.) The latter 21 was denied for two independent reasons: (1) the motion was untimely; and (2) the request 22 failed on the merits because the State offered “little more than a hunch” that discovery 23 might yield jurisdictionally relevant facts and because the requested materials—statistics 24 about where and how often migrants cross the border—were “irrelevant to answering the 25 question of whether a challenged government policy will have a predictable effect on ‘an 26 alien’s independent decision to resettle,’ which may be influenced by ‘any number of 27 variables.’” (Id. at 28-31, citing Whitewater Draw Natural Resource Conservation District 28 v. Mayorkas, 5 F.4th 997 (9th Cir. 2021).) 1 On May 12, 2022, the State filed the pending motion for reconsideration. (Doc. 66.) 2 ANALYSIS 3 The State argues that reconsideration is warranted for three reasons: (1) “this Court 4 improperly injected the issue of timeliness into the request for jurisdictional discovery”; 5 (2) even if the initial request was untimely, “subsequent events”—specifically, the federal 6 government’s recent announcement “that it intends to cancel the Title 42 restrictions on 7 border crossings”—“would render timely even a much-later filed motion”; and (3) new 8 evidence “confirms Arizona’s contention that border walls are effective, even with gaps.” 9 (Doc. 66 at 1-3.) The new evidence consists of a DHS official’s May 5, 2022 statement 10 that border walls are “effective in slowing the pace at which migrants can cross the border, 11 which is particularly important in urban and suburban areas” and an April 29, 2022 12 Washington Post article describing injuries to aliens who fell while attempting to climb 13 portions of the border wall in California. (Id. at 3.) 14 Reconsideration is an “extraordinary remedy” that is available only in “highly 15 unusual circumstances.” Kona Enters., Inc. v. Estate of Bishop, 229 F.3d 877, 890 (9th 16 Cir. 2000) (citations omitted). Thus, Arizona’s local rules provide that a motion for 17 reconsideration should be denied “absent a showing of manifest error or a showing of new 18 facts or legal authority that could not have been brought to [the Court’s] attention earlier 19 with reasonable diligence” and that “[n]o motion for reconsideration of an Order may 20 repeat any oral or written argument made by the movant in support of or in opposition to 21 the motion that resulted in the Order.” LRCiv 7.2(g). 22 Applying these principles, reconsideration is not warranted here. As an initial 23 matter, although the Court is unpersuaded that the timeliness analysis in the April 28, 2022 24 was incorrect or raises any party-presentation concerns under United States v. Sineneng- 25 Smith, 140 S. Ct. 1575 (2020)—courts have broad discretion to regulate discovery and the 26 State’s approach here1 undermined judicial efficiency and was inconsistent with principles
27 1 As discussed in the April 28, 2022 order (Doc. 64 at 28-29), the State had many opportunities to consider the need for jurisdictional discovery between the filing of its 28 complaint in April 2021 and the denial of its preliminary injunction motion in February 2022, including when Defendants moved to dismiss for lack of jurisdiction and for failure 1 of sound case and docket management—the State also overlooks that timeliness only 2 provided one of two independent grounds for denying its motion. The other was that, 3 regardless of timeliness, the request failed on the merits. 4 None of the developments identified in the State’s motion call that conclusion into 5 question. It is unclear to the Court how or why the announced plan to cancel the Title 42 6 restrictions on border crossings would bear on whether aliens are entering the country 7 illegally because of gaps in the border wall or whether wildlife is being harmed by the 8 decision to stop construction. Additionally, that plan has now been enjoined. Louisiana v. 9 Centers for Disease Control & Prevention, 2022 WL 1604901 (W.D. La. 2022). As for 10 the DHS official’s statement that border walls are “effective at slowing the pace at which 11 migrants can cross the border,” this statement is not only ambiguous but fails to address 12 one of the core causation problems previously identified by the Court—that “regardless of 13 Defendants’ action or inaction, Arizona would have been left with an incomplete wall on 14 its southern border filled with gaps. It is speculative that the less-incomplete version of the 15 border wall the State wishes to compel Defendants to build would necessarily deter 16 migrants from entering Arizona. An incomplete wall is an incomplete wall.” (Doc. 47 at 17 17. See also Doc. 64 at 10-11, 31 n.5.) Finally, as for the Washington Post article, if 18 anything it underscores one of the additional causation problems previously identified by 19 the Court—that “aliens committed to entering the United States have time and again found 20 ways to overcome and bypass walls on the southern border,” including by “climb[ing] the 21 fence along the international border.” (Doc. 47 at 17 & n.5.) 22 As the Court previously held, “[h]ere, beyond making vague requests . . . the State 23 does not point to any specific evidence allegedly in Defendants’ possession that would 24 address the relevant causation questions in this case. Nor does the State explain how the 25 evidence it seeks would otherwise goes to the crux of the causation issues discussed in the 26 to state a claim; when Defendants responded to the State’s motion for preliminary 27 injunction; and when the Court provided the parties with a tentative ruling before the February 1, 2022 preliminary injunction motion hearing. Nevertheless, the State waited 28 until 10 days after the adverse ruling to file its motion. February 2022 order, [the April 2022] order, or Arizona v. Biden.” (Doc. 64 at 31.) The || same is true here. 3 Accordingly, 4 IT IS ORDERED that the State’s motion for reconsideration (Doc. 66) is denied. 5 Dated this 27th day of June, 2022. 6 7
9 Dominic W. Lanza 10 United States District Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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