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UNITED STATES DISTRICT COURT

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WESTERN DISTRICT OF WASHINGTON

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AT SEATTLE

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18 JOSE SANCHEZ, ISMAEL RAMOS

No. ____________

19 CONTRERAS, and ERNEST GRIMES, on

20 behalf of themselves and all others

COMPLAINT FOR INJUNCTIVE AND

21 similarly situated,

DECLARATORY RELIEF

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Plaintiffs,

CLASS ACTION

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v.

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27 UNITED STATES OFFICE OF BORDER 28 PATROL; UNITED STATES CUSTOMS 29 & BORDER PROTECTION; 30 DEPARTMENT OF HOMELAND 31 SECURITY; JOHN C. BATES, Chief 32 Patrol Agent, Blaine Sector of the United 33 States Border Patrol, in his official 34 capacity; JANET NAPOLITANO, 35 Secretary, Department of Homeland 36 Security, in her official capacity; DAVID 37 AGUILAR, Acting Commissioner, United 38 States Customs & Border Protection, in his 39 official capacity; MICHAEL J. FISHER, 40 Chief of the United States Border Patrol, in 41 his official capacity; and JAY CUMBOW, 42 Agent in Charge for the Port Angeles 43 Office of the Olympic Peninsula of the 44 United States Border Patrol, in his official 45 capacity,

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Defendants.

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COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF (No. ______) – 1
25610-0034/LEGAL23477356.2

Perkins Coie LLP 1201 Third Avenue, Suite 4900
Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000

1

INTRODUCTION

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1. This civil rights lawsuit seeks to vindicate the rights of individual Plaintiffs and

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Class Members who have been—and/or who have a present fear that in the future they will

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be—unreasonably seized and/or interrogated in violation of the Fourth Amendment of the

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United States Constitution by the United States Border Patrol and its agents located throughout

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Washington State’s Olympic Peninsula.

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2. This action arises from the Border Patrol’s practice of stopping vehicles or

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participating in vehicle stops on the Olympic Peninsula without appropriate reasonable

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suspicion in order to interrogate and unreasonably seize the occupants of such vehicles.

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3. Plaintiffs and Class Members hereby seek a declaration:

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a. that Defendants have violated their Fourth Amendment rights;

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b. that Defendants have exceeded their statutory authority;

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c. that it is unlawful for Border Patrol agents to stop a vehicle or participate

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in a vehicle stop without a valid search or arrest warrant, unless the

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Border Patrol agent has a particularized reasonable suspicion based upon

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specific and articulable facts and rational inferences therefrom that an

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occupant of the vehicle is unlawfully in the United States.

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4. Plaintiffs and Class Members seek an injunction prohibiting Defendants from

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stopping vehicles or participating in vehicle stops:

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a. without a reasonable suspicion that an occupant of the vehicle is

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unlawfully in the United States;

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b. until each Border Patrol agent on the Olympic Peninsula has received

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training as to what constitutes reasonable suspicion for Border Patrol

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to stop a vehicle or for Border Patrol to participate in a vehicle stop;

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and

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COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF (No. ______) – 2
25610-0034/LEGAL23477356.2

Perkins Coie LLP 1201 Third Avenue, Suite 4900
Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000

1

c. until each Border Patrol agent on the Olympic Peninsula has

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demonstrated, through testing, that he or she understands what

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constitutes reasonable suspicion for a Border Patrol agent to stop a

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vehicle or to participate in a vehicle stop.

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5. Plaintiffs and Class Members additionally seek an injunction requiring:

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a. Defendants to maintain complete and accurate records that document

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that each agent has received training as to what constitutes reasonable

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suspicion to support a Border Patrol vehicle stop or for Border Patrol to

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participate in a vehicle stop;

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b. Defendants to maintain complete and accurate records that document

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that each agent has been tested and understands what constitutes

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reasonable suspicion to support a Border Patrol vehicle stop or for

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Border Patrol to participate in a vehicle stop; and

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c. Defendants to prepare documentation for all vehicle stops made by

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Border Patrol agents or in which Border Patrol agents participate, that

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sets forth in detail the basis for the reasonable suspicion used to justify

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the vehicle stop or interrogation of its occupants, and to maintain this

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documentation in such a manner that it is easily accessible for

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examination by a court-appointed special master for compliance,

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regardless of whether the Border Patrol ultimately determines that the

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occupant(s) stopped are undocumented citizens.

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43 In support of this relief, Plaintiffs assert and allege as follows:

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PARTIES

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6. Plaintiff Jose Sanchez is a resident of Forks, Washington, on the Olympic

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49 Peninsula. Plaintiff Sanchez is a correctional officer for Olympic Corrections Center. Plaintiff

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51 Sanchez was born in the United States and is of Latino/Hispanic descent.

COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF (No. ______) – 3
25610-0034/LEGAL23477356.2

Perkins Coie LLP 1201 Third Avenue, Suite 4900
Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000

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7. Plaintiff Ismael Ramos Contreras is a resident of Forks, Washington, on the

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3 Olympic Peninsula. Plaintiff Ramos Contreras is an eighteen-year-old high school senior at

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5 Forks High School. Plaintiff Ramos Contreras was born in the United States and is of

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7 Latino/Hispanic descent.

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8. Plaintiff Ernest Grimes is a resident of Neah Bay, Washington, on the Olympic

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11 Peninsula. Plaintiff Grimes is a correctional officer at Clallam Bay Corrections Center and a

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13 part-time police officer for the Neah Bay Police Department. Plaintiff Grimes was born in the

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15 United States and is African-American.

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9. Defendant Office of Border Patrol (“Border Patrol”) is a subagency within the

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19 United States Customs & Border Protection (“CBP”), which is an agency of the United States

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21 Department of Homeland Security (“DHS”). The Border Patrol is a federal law enforcement

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23 agency responsible for the enforcement of the laws and regulations governing the admission of

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25 foreign-born persons to the United States. The Border Patrol has responsibility for and

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27 oversight over policies, procedures, and practices relating to stopping and interrogating

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29 individuals on Washington State’s Olympic Peninsula.

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10. Defendant United States Customs & Border Protection is an agency of the

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33 United States Department of Homeland Security. The United States Customs & Border

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35 Protection is responsible for securing the borders of the United States. The United States

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37 Customs & Border Protection has authority over policies, procedures, and practices relating to

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39 stopping and interrogating individuals on Washington State’s Olympic Peninsula.

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11. Defendant Department of Homeland Security is a Cabinet-level department that

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43 is responsible for the coordination and unification of national security efforts. The Department

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45 of Homeland Security has authority over policies, procedures, and practices relating to stopping

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47 and interrogating individuals on Washington State’s Olympic Peninsula.

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12. Defendant John C. Bates is the Chief Patrol Agent for the Blaine Sector of the

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51 Border Patrol. In that capacity, Defendant Bates has direct responsibility for and oversight over

COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF (No. ______) – 4
25610-0034/LEGAL23477356.2

Perkins Coie LLP 1201 Third Avenue, Suite 4900
Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000

1 Blaine Sector Border Patrol policies, procedures, and practices relating to stopping and

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3 interrogating individuals on Washington State’s Olympic Peninsula. Defendant Bates is sued

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5 in his official capacity.

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13. Defendant Janet Napolitano is the Secretary of the DHS vested with all

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9 functions of all officers, employees, and organizational units of DHS. Defendant Napolitano

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11 has authority over all DHS policies, procedures, and practices relating to stopping and

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13 interrogating individuals on Washington State’s Olympic Peninsula. Defendant Napolitano is

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15 sued in her official capacity.

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14. Defendant David Aguilar is the Acting Commissioner of CBP. In that capacity,

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19 Defendant Aguilar has authority over all CBP policies, procedures, and practices relating to

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21 stopping and interrogating individuals on Washington State’s Olympic Peninsula. Defendant

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23 Aguilar is sued in his official capacity.

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15. Defendant Michael J. Fisher is Chief of the Border Patrol. In that capacity,

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27 Defendant Fisher has direct responsibility for and oversight over Border Patrol policies,

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29 procedures, and practices relating to stopping and interrogating individuals on Washington

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31 State’s Olympic Peninsula. Defendant Fisher is sued in his official capacity.

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16. Defendant Jay Cumbow is the Agent in Charge for the Port Angeles Office of

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35 the Olympic Peninsula of the Border Patrol. In that capacity, Defendant Cumbow has direct

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37 responsibility for and oversight over Border Patrol policies, procedures, and practices relating

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39 to stopping and interrogating individuals on Washington State’s Olympic Peninsula. Defendant

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41 Cumbow is sued in his official capacity.

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JURISDICTION AND VENUE

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17. The Court has jurisdiction over Plaintiffs’ claims under 28 U.S.C. §§ 1331 and

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47 1343.

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18. Venue in the Western District of Washington is proper under 28 U.S.C.

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51 § 1391(e)(1).

COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF (No. ______) – 5
25610-0034/LEGAL23477356.2

Perkins Coie LLP 1201 Third Avenue, Suite 4900
Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000

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19. Declaratory relief is authorized under 28 U.S.C. §§ 2201, 2202 and Fed. R. Civ.

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3 P. 57. Defendants’ actions constitute agency action within the meaning of the Administrative

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5 Procedure Act, 5 U.S.C. § 551, authorizing injunctive relief under the Administrative

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7 Procedure Act, 5 U.S.C. § 702 and Fed. R. Civ. P. 65.

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ALLEGATIONS

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20. During or around the winter of 2008-2009, at Forks on the Olympic Peninsula,

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13 Plaintiff Sanchez was traveling in a vehicle that was followed by one or more Border Patrol

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15 agents. When Plaintiff Sanchez arrived at his house, the Border Patrol agents approached him.

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17 Plaintiff Sanchez began to record the stop with his cell phone. At this point, the agents backed

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19 away.

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21. On information and belief, the Border Patrol lacked reasonable suspicion to

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23 justify this stop. On information and belief, it is alleged that the Border Patrol selected this

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25 vehicle for this stop solely because Plaintiff Sanchez appeared to the Border Patrol agents to be

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27 a person of color based on his complexion and hair color.

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22. During or around the summer of 2009, near Forks on the Olympic Peninsula,

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31 Plaintiff Sanchez and a member of his family were traveling in a vehicle that was stopped by

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33 Border Patrol agents. During the stop, Plaintiff Sanchez was interrogated by two Border Patrol

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35 agents regarding his immigration status. Border Patrol agents told Plaintiff Sanchez that they

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37 had stopped him because his vehicle windows were too dark. But during the stop, the agents

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39 did not ask for his insurance or registration. When Plaintiff Sanchez provided those

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41 documents, the agents refused to inspect them. The agents only wanted to see his ID and asked

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43 him how long he had been in the United States.

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23. On information and belief, the Border Patrol lacked reasonable suspicion to

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47 justify this stop and interrogation. On information and belief, it is alleged that the Border

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49 Patrol selected this vehicle for this stop and interrogation solely because Plaintiff Sanchez

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51

COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF (No. ______) – 6
25610-0034/LEGAL23477356.2

Perkins Coie LLP 1201 Third Avenue, Suite 4900
Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000

1 appeared to the Border Patrol agents to be a person of color based on his complexion and hair

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3 color.

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24. During or around the fall of 2011, at Forks on the Olympic Peninsula, Plaintiff

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7 Sanchez was traveling in a vehicle that was also stopped by one or more Border Patrol agents.

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9 During the stop, Plaintiff Sanchez was interrogated by two Border Patrol agents regarding his

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11 immigration status. Again, the Border Patrol agents told him that they had stopped him

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13 because the windows of the vehicle were too dark. But the driver’s side window was not

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15 tinted. And again, the agents only wanted to see Plaintiff Sanchez’s ID and asked him how

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17 long he had been in the United States.

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25. On information and belief, the Border Patrol lacked reasonable suspicion to

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21 justify this stop and interrogation. On information and belief, it is alleged that the Border

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23 Patrol selected this vehicle for this stop and interrogation solely because Plaintiff Sanchez

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25 appeared to the Border Patrol agents to be a person of color based on his complexion and hair

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27 color.

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26. Shortly after the most recent stop, Plaintiff Sanchez tried to file a complaint with

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31 Border Patrol because its agents were selecting his vehicles for stop and interrogation solely

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33 because he appeared to Border Patrol agents to be a person of color based on his complexion

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35 and hair color. The Border Patrol supervisor would not give him the names of the agents that

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37 had stopped his vehicles and would not take a complaint over the phone. When asked by

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39 Plaintiff Sanchez why Border Patrol agents repeatedly stopped and interrogated him regarding

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41 his immigration status, the Border Patrol supervisor stated: “We have certain cars that we need

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43 to pull over.”

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27. On or about July 22, 2011, at Port Angeles on the Olympic Peninsula, Plaintiff

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47 Ramos Contreras and four others were traveling in a vehicle that was stopped by Border Patrol

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49 agents. Once stopped, a Border Patrol agent tried unsuccessfully to grab the keys from the

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51 vehicle. The driver handed the keys to the Border Patrol agent; the agent retained the keys for

COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF (No. ______) – 7
25610-0034/LEGAL23477356.2

Perkins Coie LLP 1201 Third Avenue, Suite 4900
Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000

1 the duration of the stop. During the stop, Plaintiff Ramos Contreras was interrogated by four

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3 Border Patrol agents regarding his immigration status. The Border Patrol agents failed to

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5 provide Plaintiff Ramos Contreras with a reason for the stop, but insisted that the occupants

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7 hand over their identifying documents.

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28. On information and belief, the Border Patrol lacked reasonable suspicion to

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11 justify this stop and interrogation. On information and belief, it is alleged that the Border

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13 Patrol selected this vehicle for this stop and interrogation solely because Plaintiff Ramos

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15 Contreras and the other occupants appeared to the Border Patrol agents to be persons of color

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17 based on their complexion and hair color.

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29. Plaintiff Ramos Contreras was also questioned by Border Patrol outside the

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21 Clallam County District Courthouse in Forks on the Olympic Peninsula. On or about

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23 December 2, 2010, while walking out of the courthouse, Plaintiff Ramos Contreras was

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25 approached by a plainclothes Border Patrol agent who questioned him regarding his

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27 immigration status. The Border Patrol agent asked Plaintiff Ramos Contreras where he lived

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29 and where he was born.

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30. On information and belief, the Border Patrol agent selected Plaintiff Ramos

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33 Contreras for this interrogation solely because he appeared to the Border Patrol agent to be a

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35 person of color based on his complexion and hair color.

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31. On or about October 15, 2011, near Clallam Bay on the Olympic Peninsula,

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39 Plaintiff Grimes was traveling in a vehicle that was stopped by a Border Patrol agent. During

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41 the stop, the Border Patrol agent approached the passenger window of Plaintiff Grimes’ car and

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43 had his hand on his holstered weapon. The agent seemed scared and volatile and yelled at

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45 Plaintiff Grimes to roll down his windows. During the stop, the agent did not provide a reason

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47 for stopping the vehicle. Instead, Plaintiff Grimes was interrogated by the Border Patrol agent

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49 regarding his immigration status. Plaintiff Grimes was wearing his correctional-officer uniform

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51 at the time of this stop.

COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF (No. ______) – 8
25610-0034/LEGAL23477356.2

Perkins Coie LLP 1201 Third Avenue, Suite 4900
Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000

1

32. On information and belief, the Border Patrol lacked reasonable suspicion to

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3 justify this stop and interrogation. On information and belief, it is alleged that the Border

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5 Patrol selected this vehicle for this stop and interrogation solely because Plaintiff Grimes

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7 appeared to the Border Patrol agent to be a person of color based on his complexion and hair

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9 color.

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33. Each of the Plaintiffs has a reasonable fear that he is likely to again be stopped

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13 and questioned on the Olympic Peninsula by Border Patrol agents without appropriate

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15 reasonable suspicion for such actions.

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34. Historical events, current developments, and public statements by Defendants

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19 indicate that Border Patrol agents intend to continue stopping vehicles and interrogating vehicle

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21 occupants on the Olympic Peninsula without appropriate reasonable suspicion.

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35. Thirty years ago—in 1982—a class action complaint for injunctive and

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25 declaratory relief was filed in the United States District Court for the Eastern District of

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27 Washington, captioned Nicacio v. United States Immigration & Naturalization Service, Cause

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29 No. C82-1018 RJM (“Nicacio”). The Chief Border Patrol agent for the Blaine Sector, which

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31 has jurisdiction for the Olympic Peninsula, was one of the Defendants in that lawsuit. See

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33 Nicacio v. INS, 595 F. Supp. 19 (E.D. Wash. 1984), aff’d, 769 F.2d 1133 (9th Cir. 1985),

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35 amended by 770 F.2d 700 (9th Cir. 1985).

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36. In Nicacio, the District Court found that:

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INS agents were regularly conducting roving patrol motor vehicle

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stops, detentions and interrogations in the Yakima Valley area of

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the Spokane Sector. Many of the stops were based solely on

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Hispanic appearance, or the agents’ subjective feelings or

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intuition, or the suspected illegal aliens’ innocuous behavior or

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appearance traits.

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Persons stopped were required in most cases to provide

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identification or documentation of legal presence in the United

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States. Defendants keep no record of automobile stops in which

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no illegal aliens are apprehended.

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51 Id. at 21.

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Perkins Coie LLP 1201 Third Avenue, Suite 4900
Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000

1

37. The District Court entered judgment for the plaintiffs and the certified class that

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3 they represented (“All persons of Mexican, Latin, or Hispanic appearance who have been, are,

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5 or will be traveling by motor vehicle on the highways of the State of Washington.”), the

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7 operative portions of which are as follows:

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1. IT IS HEREBY ORDERED: It is unlawful for the

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United States Immigration and Naturalization Service, its agents

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and employees and Border Patrol agents: To stop, detain, and

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interrogate persons of Hispanic appearance traveling by motor

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vehicle on the highways of the State of Washington without a

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valid search or arrest warrant, or unless they have a particularized

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reasonable suspicion based on specific articulable facts and

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rational inferences therefrom that the occupant of a vehicle is an

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alien unlawfully in the United States. Further, these specific

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articulable facts justifying the motor vehicle stops must be based

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upon particularized objective factors, and not solely upon the

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agents’ individual subjective impressions.

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2. IT IS FURTHER ORDERED that the United States

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Immigration and Naturalization Service, its agents and employees

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and Border Patrol agents: Shall not stop, detain, and interrogate

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persons of Hispanic appearance traveling by motor vehicle on the

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roadways of the State of Washington without documenting in

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writing the specific articulable facts on which defendants base

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their particularized reasonable suspicion for stopping, detaining

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and interrogating these persons. Defendants shall maintain this

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documentation for a period of not less than three years.

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32 Id. at 26.

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38. The District Court also required that “[c]opies of [its] Judgment shall be posted

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36 in the various INS and Border Patrol offices within the region and the supervisory personnel of

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38 INS shall proceed forthwith to implement the provisions of this Judgment.” Id.

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39. The defendants in Nicacio appealed; the Court of Appeals affirmed. Nicacio v.

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42 INS, 797 F.2d 700 (9th Cir. 1985). In addition to challenging the merits of the District Court’s

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44 findings and conclusions, the defendants argued that the injunction requiring them to document

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46 the grounds for vehicle stops that did not result in an arrest or seizure of property was

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48 “excessively intrusive and burdensome.” Id. at 706. The Court of Appeals held that the record

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50 did not support the defendants’ contention of burden and intrusiveness, and, in so holding,

51

COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF (No. ______) – 10
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Perkins Coie LLP 1201 Third Avenue, Suite 4900
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1 stated, “Indeed, it is difficult to imagine a remedy that would be less burdensome to the

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3 government and at the same time serve in any way to prevent future constitutional violations.”

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5 Id. Further, the Court of Appeals noted that the District Court would retain jurisdiction and that

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7 the defendants could seek to have the injunction modified “if a change in circumstances so

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9 requires.” Id.

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40. The defendants in Nicacio never sought to modify or seek relief from the

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13 affirmed judgment.

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41. On September 2, 2004, with reference to Nicacio, a request pursuant to the

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17 Freedom of Information Act (“FOIA”) was made for documents regarding the interrogations of

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19 persons who appeared to be Hispanic and were traveling on the State of Washington’s roads

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21 and regarding the required postings of the Nicacio judgment. The Department of Homeland

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23 Security, Immigration and Customs Enforcement, responded to this FOIA request on August 3,

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25 2005, indicating that it had “located no records that are responsive to [the] request.” With

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27 reference to Nicacio, this FOIA response stated as follows:

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After reviewing Nicacio v. U.S., we found no order requiring a

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posting of the decision. It was ordered that INS could not stop,

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detain, and interrogate persons of Hispanic appearance traveling

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by motor vehicle in the State of Washington without

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documenting, in writing, the specific facts for stopping, detaining

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and interrogating these persons. INS is required to maintain this

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documentation for a period of three years. Records of all

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apprehensions are being documented on either an I-44 or an I-213

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(Record of Deportable Alien) and then filed in the individual’s

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alien file. Furthermore, Detention and Removal Operations

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(DRO) does not initiate any stops unless they are targeting a

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specific individual with a final order of removal.

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42. This FOIA response indicates that Defendants are not complying with the

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44 documentation and posting requirements of the judgment in Nicacio, especially as to

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46 individuals initially stopped but ultimately not apprehended as removable (for which an I-213

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48 form is used) or where no property was seized (and documented on an I-44 form).

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51

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Perkins Coie LLP 1201 Third Avenue, Suite 4900
Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000

1

43. Starting in 2007, Defendants established periodic immigration checkpoints

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3 along roadways on the Olympic Peninsula in order to try to intercept non-citizens without

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5 documented permission to be in the United States.

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44. The Olympic Peninsula checkpoints were set up without advance notice and at

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9 locations where they could not be avoided by travelers who come upon them along the roads on

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11 which they are placed.

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45. Many residents of the area and others who traveled on those roads found these

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15 checkpoints objectionable. See, e.g., Manuel Valdes, Border Patrol roadblock irks Forks,

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17 Seattle Post-Intelligencer, Sept. 8, 2008.

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46. Public outcry over the Border Patrol’s interior checkpoints was severe. In

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21 response to constituent concerns, both United States Senator Maria Cantwell and United States

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23 Representative Norm Dicks wrote to Defendant Napolitano.

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47. In his February 9, 2009 letter, Representative Dicks questioned the value of the

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27 Olympic Peninsula checkpoint strategy and reported constituent complaints that “some degree

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29 of ethnic profiling has been occurring.”

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48. Senator Maria Cantwell wrote to Defendant Napolitano on March 27, 2009,

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33 expressing concern about the Border Patrol’s overly aggressive police tactics. Specifically, she

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35 reported that constituents have complained about Border Patrol agents targeting “Muslim,

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37 Hispanic, and tribal communities . . . solely on their race, ethnicity, or religion.”

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49. In response to the public outcry and threat of legal action, the Border Patrol

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41 ceased operating checkpoints on the Olympic Peninsula.

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50. Instead, however, the Border Patrol began a practice of stopping individual

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45 vehicles for questioning without appropriate reasonable suspicion. Like the checkpoints, this

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47 current practice of “roving patrol” stops as implemented by the Border Patrol is not focused on

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49 persons that the Border Patrol believes to have recently crossed the border from Canada. The

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51

COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF (No. ______) – 12
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Perkins Coie LLP 1201 Third Avenue, Suite 4900
Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000

1 Border Patrol’s practice of roving patrol stops has become increasingly prevalent in recent

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3 years.

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51. It is this policy and practice, which echoes the days of Nicacio thirty years ago,

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7 that is the subject of this lawsuit.

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52. It has long been established that a Border Patrol agent violates the Fourth

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11 Amendment of the United States Constitution when the agent stops a vehicle without

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13 reasonable suspicion of wrongdoing. See, e.g., United States v. Brignoni-Ponce, 422 U.S. 873,

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15 883 (1975) (“[A] requirement of reasonable suspicion for stops allows the Government

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17 adequate means of guarding the public interest and also protects residents of the border areas

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19 from indiscriminate official interference. Under the circumstances, and even though the

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21 intrusion incident to a stop is modest, we conclude that it is not ‘reasonable’ under the Fourth

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23 Amendment to make such stops on a random basis.”); see also United States v. Mallides, 473

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25 F.2d 859, 862 (9th Cir. 1973) (“Neither the Supreme Court nor this court has ever upheld the

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27 legality of a detention based upon an officer’s unsupported intuition, and we refuse to do so

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29 now.”).

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53. The requirement of reasonable suspicion necessitates “specific articulable

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33 facts, together with rational inferences from those facts, that reasonably warrant suspicion

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35 that the vehicle[] contain[s] aliens who may be illegally in the country.” Brignoni-Ponce,

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37 422 U.S. at 884.

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54. Reasonable suspicion cannot be based solely upon the ethnic and/or racial

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41 appearance of a vehicle’s occupants. Id. at 886.

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55. Moreover, Congress has limited the statutory authority of Border Patrol agents

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45 to stop vehicles away from the border. According to 8 U.S.C. § 1357(a)(3), a Border Patrol

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47 agent is only allowed, “within a reasonable distance from any external boundary of the United

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49 States, to board and search for aliens any . . . vehicle . . . for the purpose of patrolling the

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51 border to prevent the illegal entry of aliens into the United States[.]” (Emphasis added).

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Perkins Coie LLP 1201 Third Avenue, Suite 4900
Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000

1

56. The accompanying regulations further limit a Border Patrol agent by requiring

2
3 that an agent must have a “reasonable suspicion, based upon specific articulable facts, that the

4
5 person being questioned is, or is attempting to be, engaged in an offense against the United

6
7 States or is an alien illegally in the United States” in order to stop a vehicle or participate in a

8
9 vehicle stop. 8 C.F.R. § 287.8(b)(2).

10

11

57. On information and belief, Defendants have implemented a practice of stopping

12
13 vehicles or participating in vehicle stops based on a hunch or intuition, including stops based

14
15 solely on the ethnic and/or racial appearance of the occupants of the vehicle, and thus without

16
17 sufficient suspicion on which to base the stop.

18

19

58. On information and belief, Defendants are aware that Border Patrol agents

20
21 are making stops on the Olympic Peninsula based on nothing more than a hunch or

22
23 intuition, and that they have no basis to assume that the cars that they have stopped have

24
25 entered from the border or are carrying persons coming in from the border.

26

27

59. On information and belief, Defendants are aware that the practice of stopping

28
29 vehicles or participating in vehicle stops based on a hunch or intuition results in stops based

30
31 only on the racial and/or ethnic appearance of vehicle occupants.

32

33

60. It is exactly this kind of discriminatory policing on the basis of ethnic and/or

34
35 racial appearance that the Department of Justice flatly condemned in its investigation of the

36
37 Maricopa County Arizona Sheriff’s Office. The Department of Justice found that the Maricopa

38
39 Sheriff’s Office had engaged in racial profiling of Latinos. The report charges that the

40
41 Maricopa County Sheriff’s Office, in the course of immigration-related activities, frequently

42
43 stopped or arrested Latinos without either probable cause or reasonable suspicion. As a result,

44
45 the Department of Homeland Security revoked the authority of the Maricopa County Sheriff’s

46
47 Office to enforce immigration laws pursuant to a prior written agreement under 8 U.S.C.

48
49 § 1357(g), and the Department of Justice threatened legal action against that Sheriff’s Office to

50
51 ensure that the discriminatory policing ends.

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Perkins Coie LLP 1201 Third Avenue, Suite 4900
Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000

1

61. On information and belief, Border Patrol agents working on the Olympic

2
3 Peninsula have not been given adequate training regarding the circumstances under which

4
5 vehicles may be stopped or vehicle occupants interrogated consistent with the United States

6
7 Constitution.

8

9

62. Additionally, Defendants have failed to establish policies and procedures that

10
11 ensure that Border Patrol agents working on the Olympic Peninsula understand and can

12
13 implement their training regarding the circumstances under which vehicles may be stopped or

14
15 vehicle occupants interrogated consistent with the United States Constitution. According to a

16
17 December 2011 Government Accountability Office report on Border Security, the Border

18
19 Patrol lacks a national policy assigning responsibility to ensure that Border Patrol agents are

20
21 sufficiently trained.

22

23

63. On information and belief, Defendants are aware that Border Patrol agents are

24
25 not completing paperwork that documents the bases for their reasonable suspicion for all stops,

26
27 specifically with respect to stops where Border Patrol agents discover that the person who is

28
29 stopped is lawfully present in the United States.

30

31

64. On information and belief, the Border Patrol does not have in place a practice

32
33 and procedure requiring the completion of paperwork that sets forth the bases of reasonable

34
35 suspicion for all stops. The lack of an established policy and procedure encourages or at least

36
37 allows for the Border Patrol’s stopping of vehicles or participating in vehicle stops that are

38
39 based on nothing other than the ethnic and/or racial appearance of a vehicle’s occupants.

40

41

65. On information and belief, one factor that has resulted in the ever-increasing

42
43 frequency and number of unlawful vehicle stops is the fact that there has been a dramatic

44
45 increase in the number of Border Patrol agents situated on the Olympic Peninsula—and the

46
47 number of agents continues to increase. Indeed, in the last decade the Port Angeles Office has

48
49 grown from less than five agents to over forty agents.

50

51

COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF (No. ______) – 15
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Perkins Coie LLP 1201 Third Avenue, Suite 4900
Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000

1

66. On information and belief, Border Patrol agents working on the Olympic

2
3 Peninsula do not have enough work preventing the “illegal entry of aliens into the United

4
5 States,” 8 U.S.C. § 1357(a)(3), across the Canada-United States border and have instead been

6
7 directed or given permission to engage or participate in the detention of vehicles and

8
9 interrogation of vehicle occupants who have not recently crossed the Canada-United States

10
11 border.

12

13

67. On July 29, 2011, Christian Sanchez provided testimony before the Advisory

14
15 Committee on Transparency. Mr. Sanchez testified that he was employed as a Border Patrol

16
17 agent, and that he had been stationed at Port Angeles on the Olympic Peninsula since

18
19 September 2009. He testified that the number of Border Patrol officers in the Port Angeles

20
21 office recently increased from four to forty and is still growing. As a stark example of this

22
23 growth, a new Border Patrol office is being constructed in Port Angeles at a taxpayer-funded

24
25 cost of around $6 million. See, e.g., New Border Patrol Agent in Charge at Port Angeles,

26
27 Seattle Post-Intelligencer, February 6, 2012.

28

29

68. Mr. Sanchez also testified that the Port Angeles office was “in a remote area,

30
31 with no border activity.” He testified that this situation has resulted in “high-energy men”

32
33 being “bored,” a situation that he characterized as a “bad combination.” He further stated that

34
35 the result was “bad morale and a dangerously unhealthy work environment.”

36

37

69. Mr. Sanchez’s testimony has brought added public attention to the practice and

38
39 policy of vehicle stops on the Olympic Peninsula, and in response Border Patrol representatives

40
41 have spoken publicly about their “mission” on the Olympic Peninsula.

42

43

70. Public statements by Border Patrol representatives demonstrates that Border

44
45 Patrol’s current policy and practice goes well beyond stopping individuals based upon

46
47 reasonable suspicion. Indeed, on August 16, 2011, the Peninsula Daily News reported on a

48
49 presentation that Station Supervisor Jose Romero made to the Port Angeles Regional Chamber

50
51 of Commerce. This story quotes Mr. Romero as saying that agents from his office are in areas

COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF (No. ______) – 16
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Perkins Coie LLP 1201 Third Avenue, Suite 4900
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1 throughout the Olympic Peninsula “pretty much every day,” and that “We are the only law

2
3 enforcement agency charged with protecting the whole country by patrolling the streets every

4
5 day.”

6

7

71. This same news article quotes Romero as stating, “Questioning someone’s

8
9 immigration status comes partly from a ‘gut feeling’ the agent might have about the person.”

10

11

CLASS ACTION ALLEGATIONS

12

13

72. Plaintiffs bring this class action on behalf of themselves and all others similarly

14
15 situated. The proposed Class is defined as follows:

16

17

All persons operating or occupying a vehicle on the Olympic

18

Peninsula who have been or will be in the future stopped,

19

detained and/or interrogated by Border Patrol, excluding those

20

vehicle operators or occupants disembarking from the

21

international ferry in Port Angeles.

22

23

73. Plaintiffs and members of the Class seek class-wide equitable, declaratory and

24
25 injunctive relief pursuant to Fed. R. Civ. P. 23(b)(2).

26

27

74. Membership in the Class is so numerous that individual joinder of all of their

28
29 members would be impracticable. Such joinder is also impracticable as membership in the

30
31 Class will change over time because many members of the Class are unaware of their rights,

32
33 and because many members of the Class have limited access to legal services and

34
35 representation.

36

37

75. There are many facts and questions of law common to the representative

38
39 Plaintiffs and the members of the Class, including the following:

40

41

a. The legality of stopping, detaining, and interrogating Plaintiffs and

42

43

members of the Class.

44

45

b. Border Patrol’s policy, procedure, or practice of stopping vehicles or

46

47

participating in vehicle stops and interrogating vehicle occupants on the

48

49

Olympic Peninsula without appropriate reasonable suspicion.

50

51

COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF (No. ______) – 17
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Perkins Coie LLP 1201 Third Avenue, Suite 4900
Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000

1

c. Border Patrol’s policy, procedure, or practice of stopping vehicles or

2

3

participating in vehicle stops and interrogating vehicle occupants on the

4

5

Olympic Peninsula based on hunch or intuition.

6

7

d. Border Patrol’s failure to maintain records of all stops, including those

8

9

stops where the agents determine that the persons stopped have lawful

10

11

status to reside in the United States.

12

13

76. The claims of the individual Plaintiffs are typical of the claims of the members

14
15 of the Class.

16

17

77. The individual Plaintiffs will fairly and adequately protect the interests of the

18
19 members of the Class. There is no conflict between the interests of the individual Plaintiffs and

20
21 members of the Class with respect to the issues in this action.

22

23

78. Plaintiffs have retained legal counsel who are experienced in civil rights and

24
25 class action litigation, and who will adequately represent the interests of the members of the

26
27 Class as well as those of the individual Plaintiffs.

28

29

79. Defendants have acted on grounds generally applicable to both the individual

30
31 Plaintiffs and the members of the Class, making declaratory and injunctive relief appropriate as

32
33 to the Class as well as the individual Plaintiffs.

34

35

FIRST CLAIM FOR RELIEF

36

37

Violation of the Fourth Amendment to the United States Constitution

38

39

80. Plaintiffs repeat and reallege each of the allegations set forth above.

40

41

81. Defendants’ unlawful practice of stopping vehicles without reasonable

42
43 suspicion, as set forth above, in violation of Plaintiffs’ and Class Members’ Fourth Amendment

44
45 rights, has adversely affected or aggrieved Plaintiffs and Class Members and caused them to

46
47 suffer harm. Moreover, Defendants’ unlawful practice is subject to repetition and is likely to

48
49 continue, placing Plaintiffs and Class Members at an imminent risk of suffering a legal wrong.

50

51

COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF (No. ______) – 18
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Perkins Coie LLP 1201 Third Avenue, Suite 4900
Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000

1

82. Plaintiffs and Class Members are entitled to judicial review of Defendants’

2
3 actions and are entitled to relief including a declaratory judgment and injunction.

4

5

SECOND CLAIM FOR RELIEF

6

7

Violation of 8 U.S.C. § 1357

8

9

83. Plaintiffs repeat and reallege each of the allegations set forth above.

10

11

84. Border Patrol agents have the power to arrest without warrant, “within a

12
13 reasonable distance from any external boundary of the United States, to board and search for

14
15 aliens any . . . vehicle . . . for the purpose of patrolling the border to prevent the illegal entry of

16
17 aliens into the United States.” 8 U.S.C. § 1357(a)(3).

18

19

85. However, in order to stop a vehicle, the Border Patrol agent must have “a

20
21 reasonable suspicion based upon specific articulable facts, that the person being questioned is,

22
23 or is attempting to be engaged in an offense against the United States or is an alien illegally in

24
25 the United States.” 8 C.F.R. § 287.8(b)(2).

26

27

86. By stopping the Plaintiffs and Class Members without reasonable suspicion, as

28
29 set forth in detail above, Defendants’ actions have exceeded the statutory authority provided by

30
31 8 U.S.C. § 1357(a)(3) and its implementing regulations at 8 C.F.R. § 287. Defendants’

32
33 unlawful practices have adversely affected or aggrieved Plaintiffs and Class Members and have

34
35 caused them to suffer harm. Moreover, Defendants’ unlawful practice is subject to repetition

36
37 and is likely to continue, placing Plaintiffs and Class Members at an imminent risk of suffering

38
39 a legal wrong.

40

41

87. Plaintiffs and Class Members are entitled to judicial review of Defendants’

42
43 actions under 5 U.S.C. §§ 702 and 706 and are entitled to relief including a declaratory

44
45 judgment and injunction.

46

47

REQUEST FOR RELIEF

48

49

WHEREFORE the Plaintiffs and Class Members request that the Court:

50

51

COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF (No. ______) – 19
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Perkins Coie LLP 1201 Third Avenue, Suite 4900
Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000

1

1. Certify the class according to the definition provided above and appoint the

2
3 undersigned as class counsel;

4

5

2. Declare that Defendants have violated Plaintiffs’ and Class Members’ rights

6
7 under the Fourth Amendment to the United States Constitution;

8

9

3. Declare that Defendants’ actions are in excess of Defendants’ statutory

10
11 jurisdiction or authority under 8 U.S.C. § 1357, and its implementing regulations at 8 C.F.R.

12
13 § 287;

14

15

4. Declare that it is unlawful for Border Patrol agents to stop or participate in the

16
17 stop of a vehicle without a valid search or arrest warrant unless the Border Patrol agent has a

18
19 particularized reasonable suspicion based upon specific and articulable facts and rational

20
21 inferences therefrom that the occupant of the vehicle is a person unlawfully in the United

22
23 States;

24

25

5. Declare that it is a violation of the Fourth Amendment to the United States

26
27 Constitution to stop or participate in a stop of a vehicle based solely on the occupants’ ethnic

28
29 and/or racial appearance;

30

31

6. Enjoin Defendants or their personnel from stopping vehicles or participating in

32
33 stops:

34

35

a. without reasonable suspicion that the occupants are not legally

36

37

present in the United States; and

38

39

b. until each Border Patrol agent has received training as to what

40

41

constitutes reasonable suspicion for a Border Patrol vehicle stop or

42

43

for Border Patrol to participate in a vehicle stop; and

44

45

c. until each Border Patrol agent has demonstrated, through testing, that

46

47

he or she understands what constitutes reasonable suspicion to

48

49

support a Border Patrol vehicle stop or for Border Patrol to

50

51

participate in a vehicle stop.

COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF (No. ______) – 20
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Perkins Coie LLP 1201 Third Avenue, Suite 4900
Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000

1

7. Enjoin Defendants’ unlawful conduct and require:

2

3

a. Defendants to maintain complete and accurate records that document

4

5

that each agent has received training as to what constitutes reasonable

6

7

suspicion to support a Border Patrol vehicle stop or for Border Patrol to

8

9

participate in a vehicle stop;

10

11

b. Defendants to maintain complete and accurate records that document

12

13

that each agent has been tested, and understands what constitutes

14

15

reasonable suspicion to support a Border Patrol vehicle stop or for

16

17

Border Patrol to participate in a vehicle stop; and

18

19

c. Defendants to prepare documentation for all vehicle stops made by

20

21

Border Patrol agents or in which Border Patrol agents participate, that

22

23

sets forth in detail the basis for the reasonable suspicion used to justify

24

25

the vehicle stop or interrogation of its occupants, and to maintain this

26

27

documentation in such a manner that it is easily accessible for

28

29

examination by a special master to ensure compliance, regardless of

30

31

whether the Border Patrol ultimately determines that the occupant(s)

32

33

stopped are undocumented citizens;

34

35

8. Appoint a special master, pursuant to Fed. R. Civ. P. 53, to oversee and ensure

36
37 implementation of the above injunctive measures, and to additionally audit and inspect

38
39 Defendants’ documentation to assure future compliance;

40

41

9. Award Plaintiffs and Class Members the attorneys’ fees and costs they incur

42
43 herein, pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412(d)(1)(A); and

44

45

10. Grant any other relief that the Court may determine to be just and equitable.

46

47

48

49

50

51

COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF (No. ______) – 21
25610-0034/LEGAL23477356.2

Perkins Coie LLP 1201 Third Avenue, Suite 4900
Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000

1
2 DATED: April 26, 2012
3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51

s/ Nicholas P. Gellert Nicholas P. Gellert, WSBA No. 18041
s/ Brendan J. Peters Brendan J. Peters, WSBA No. 34490
s/ Javier F. Garcia Javier F. Garcia, WSBA No. 38259
s/ Steven D. Merriman Steven D. Merriman, WSBA 44035 Perkins Coie LLP 1201 Third Avenue, Suite 4800 Seattle, WA 98101-3099 Telephone: 206.359.8000 Facsimile: 206.359.9000
Attorneys for Plaintiffs Cooperating Attorney for the ACLU and NWIRP
s/ Sarah Dunne Sarah Dunne, WSBA No. 34869
s/ La Rond Baker La Rond Baker, WSBA No. 43610 ACLU of Washington Foundation 901 5th Ave, Suite 630 Seattle, WA 98164 Telephone: 206.624.2184
s/ Matt Adams Matt Adams, WSBA No. 28287 Northwest Immigrant Rights Project 615 Second Ave., Ste. 400 Seattle, WA 98104 Telephone: 206.957.8611 Facsimile: 206.587.4009 Attorneys for Plaintiffs

COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF (No. ______) – 22
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Perkins Coie LLP 1201 Third Avenue, Suite 4900
Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000

 
 1

2

3

4

UNITED STATES DISTRICT COURT

5

WESTERN DISTRICT OF WASHINGTON

AT TACOMA

6

7 JOSE SANCHEZ, ISMAEL RAMOS CONTRERAS, and ERNEST FRIMES,
8 on behalf of themselves and all others similarly situated,
9
Plaintiffs, 10
v. 11
UNITED STATES OFFICE OF 12 BORDER PATROL, et al.,

CASE NO. 12-5378 BHS
ORDER ON DEFENDANTS’ MOTION TO DISMISS FOR LACK OF JURISDICTION

13

Defendants.

14 This matter comes before the Court on Defendants’ Motion to Dismiss for Lack of
15 Jurisdiction. Dkt. 15. The Court has considered the pleadings filed in support of and in
16 opposition to the motion and the file herein.
17 On April 26, 2012, Plaintiffs filed this putative class action, seeking to enjoin Defendants
18 from practices that are resulting in vehicle stops alleged to violate the Fourth Amendment. Dkt.
19 1. In their Motion to Dismiss, Defendants argue that the Complaint should be dismissed because
20 Plaintiffs lack standing to seek equitable relief and that there is no private cause of action under 8
21 U.S.C. § 1357. Dkt. 15. Defendants’ motion should be denied because Plaintiffs have alleged
22 sufficient facts, if true, that establish they have standing. Defendants’ motion regarding 8 U.S.C.
23 § 1357 should likewise be denied. Plaintiffs do not rely on a private right of action under 8
24

ORDER - 1

1 U.S.C. § 1357, but maintain that the Court has jurisdiction pursuant to the Administrative

2 Procedures Act (“APA”), 5 U.S.C. § 702, to review agency action in violation of § 1357.

3

I. BACKGROUND FACTS AND PENDING MOTION

4 A. Facts

5

The named Plaintiffs assert that this action “arises from the Border Patrol’s practice of

6 stopping vehicles or participating in vehicle stops on the Olympic Peninsula without appropriate

7 reasonable suspicion in order to interrogate and unreasonably seize the occupants of such

8 vehicles.” Dkt. 1, at 2. Each of the named Plaintiffs allege that Defendants have violated their

9 Fourth Amendment rights and remain in fear that Defendants will continue to violate their rights.

10 Id. The three named Plaintiffs’ allegations regarding their contact with Border Patrol agents are

11 summarized as follows:

12

Plaintiff Sanchez, who lives and works on the Olympic Peninsula, was born in the United

13 States and is of Latino/Hispanic decent. Dkt. 1, at 3. He asserts that he had three contacts with

14 the Defendants’ Border Patrol agents. Dkt. 1, at 6-7. He alleges that during or around the winter

15 of 2008-2009, he was in a vehicle that was followed by one or more Border Patrol agents. Dkt.

16 1, at 6. When he arrived at his house, the agents approached him. Id. Plaintiff began to record

17 the stop on his cell phone. Id. The agents then purportedly “backed away.” Id.

18

Plaintiff Sanchez’s next encounter occurred in or around the summer of 2009. Dkt. 1, at

19 6. He and a family member were in a vehicle that was stopped by Border Patrol agents. Id.

20 Plaintiff Sanchez alleges that he was told that he was stopped because the vehicle windows were

21 tinted too darkly, but when he attempted to provide his insurance and registration, the agents

22 refused to inspect them. Id. He asserts that the agents questioned him regarding his immigration

23 status. Id.

24

ORDER - 2

1

In the fall of 2011, Plaintiff Sanchez was in a vehicle that was once again stopped by

2 Border Patrol agents. Dkt. 1, at 7. Although the driver’s side window was not tinted, the agents

3 told him that his vehicle was stopped because the windows were too darkly tinted. Id. He

4 asserts that the agents were only interested in his immigration status, and asked to see his

5 identification. Id.

6

At the time this case was filed, Plaintiff Contreras was an eighteen-year-old high school

7 senior at Forks High School. Dkt. 1, at 4. Plaintiff Contreras was born in the United States and

8 is of Latino/Hispanic descent. Id. On July 22, 2011, Plaintiff Contreras and a few others were in

9 a vehicle that was stopped by Border Patrol agents. Id., at 7. Once the vehicle was stopped, one

10 of the agents tried to grab the keys out of the vehicle. Id. Although the agent was unable to take

11 the keys, the driver handed them to the agent and the agent held them for the duration of the stop.

12 Id. Plaintiff Contreras alleges that he was then interrogated by four Border patrol agents

13 regarding his immigration status. Id. He was not given any reason for the stop. Id.

14

Plaintiff Contreras was also questioned about his immigration status outside the Clallam

15 County District Courthouse by a Border Patrol agent on December 2, 2010. Id., at 8.

16

Plaintiff Grimes, who also lives and works on the Olympic Peninsula, was born in the

17 United States and is African-American. Dkt. 1, at 4. Plaintiff Grimes alleges that he was

18 stopped by Border Patrol on October 15, 2011, near Clallam Bay. Id., at 8. Plaintiff Grimes

19 alleges that the agent “approached the passenger window of Plaintiff Grimes’ car and had his

20 hand on his holstered weapon. The agent seemed scared and volatile and yelled at Plaintiff

21 Grimes to roll down his windows.” Id. Plaintiff Grimes states that he was interrogated about his

22 immigration status, but was given no reason for the stop. Id.

23

24

ORDER - 3

1 B. Pending Motion to Dismiss

2

In Defendants’ Motion to Dismiss, they argue that Plaintiffs’ claims should be dismissed

3 because they have failed to establish standing to seek equitable relief. Dkts. 15 and 24.

4 Defendants also argue that Plaintiffs’ second claim, under 8 U.S.C. § 1357, should be dismissed

5 because § 1357 does not provide a private cause of action. Id.

6

Plaintiffs oppose the motion. Dkt. 22. Plaintiffs argue that at least one of the named

7 Plaintiffs has alleged more than one incident where Border Patrol has stopped him contrary to

8 the Fourth Amendment's prohibition against unreasonable seizures. Dkt. 22. Plaintiffs contend

9 that is enough to show they have standing to seek equitable relief. Id. Further, Plaintiffs argue

10 that they are not making a claim under 8 U.S.C. § 1357, but are asserting that this Court has

11 jurisdiction to review agency action in violation of 8 U.S.C. § 1357, pursuant to the APA, 5

12 U.S.C. § 702. Id.

13

II. DISCUSSION

14 A. Standard for Motion to Dismiss

15

A complaint must be dismissed under Fed. R. Civ. P. 12(b)(1) if, considering the factual

16 allegations in the light most favorable to the plaintiff, the action: (1) does not arise under the

17 Constitution, laws, or treaties of the United States, or does not fall within one of the other

18 enumerated categories of Article III, Section 2, of the Constitution; (2) is not a case or

19 controversy within the meaning of the Constitution; or (3) is not one described by any

20 jurisdictional statute. Baker v. Carr, 369 U.S. 186, 198 (1962); D.G. Rung Indus., Inc. v.

21 Tinnerman, 626 F. Supp. 1062, 1063 (W.D. Wash. 1986); see 28 U.S.C. §§ 1331 (federal

22 question jurisdiction) and 1346 (United States as a defendant). When considering a motion to

23 dismiss pursuant to Rule 12(b)(1), Court are not restricted to the face of the pleadings, but may

24

ORDER - 4

1 review any evidence to resolve factual disputes concerning the existence of jurisdiction.

2 McCarthy v. United States, 850 F.2d 558, 560 (9th Cir. 1988), cert. denied, 489 U.S. 1052

3 (1989); Biotics Research Corp. v. Heckler, 710 F.2d 1375, 1379 (9th Cir. 1983). A federal court

4 is presumed to lack subject matter jurisdiction until plaintiff establishes otherwise. Kokkonen v.

5 Guardian Life Ins. Co. of America, 511 U.S. 375 (1994); Stock West, Inc. v. Confederated

6 Tribes, 873 F.2d 1221, 1225 (9th Cir. 1989). Therefore, a plaintiff bears the burden of proving

7 the existence of subject matter jurisdiction. Stock West, 873 F.2d at 1225; Thornhill Publishing

8 Co., Inc. v. Gen’l Tel & Elect. Corp., 594 F.2d 730, 733 (9th Cir. 1979).

9 B. Motion to Dismiss for Lack of Standing

10

Pursuant to Article III of the United States Constitution, federal courts are limited to

11 hearing only “cases” or “controversies.” “Standing is a core component of the Article III cases

12 or controversies requirement.” Barnum Timber Co. v. U.S. E.P.A., 633 F.3d 894, 897 (9th Cir.

13 2011) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992)). In order to have Article

14 III standing, a plaintiff must show they have “suffered an injury in fact,” that is caused by “the

15 conduct complained of,” and that will be “redressed by a favorable decision.” Camreta v.

16 Greene, 131 S. Ct. 2020, 2028 (2011) (quoting Lujan, at 560-561).

17

In order to receive injunctive relief, a plaintiff must make an additional showing that they

18 have standing. City of Los Angeles v. Lyons, 461 U.S. 95, 111 (1983). “The equitable remedy is

19 unavailable absent a showing of irreparable injury, a requirement that cannot be met where there

20 is no showing of any real or immediate threat that the plaintiff will be wronged again—a

21 likelihood of substantial and immediate irreparable injury.” City of Los Angeles v. Lyons, 461

22 U.S. 95, 111 (1983) (internal quotations omitted). Even though “case or controversy

23 considerations obviously shade into those determining whether the complaint states a sound basis

24

ORDER - 5

1 for equitable relief,” the “real or immediate threat” showing is also required. Id. Further, the

2 alleged injuries must be to the named class members because “injunctive relief is not available

3 based on alleged injuries to unnamed members of a proposed class.” Hodgers-Durgin v. de la

4 Vina, 199 F.3d 1037, 1045 (9th Cir. 1999).

5

Defendants state in their motion that they are not challenging Plaintiffs’ Article III

6 standing under the Lujan test at this point in the litigation. Dkt. 15, at 6. They contend that

7 because the additional standing requirement for injunctive relief (announced in Lyons) is so

8 similar to the Lujan test, the Court need only address whether Plaintiffs have established an

9 entitlement to equitable relief at this time. Id. (citing Hodgers-Durgin, at 1042). That is, that the

10 Plaintiffs have not shown that there is a real or immediate threat that they will be “wronged

11 again.” Id.

12 Defendants’ Motion to Dismiss Plaintiffs’ case for failure to show that they have standing to

13 seek equitable relief (Dkt. 15) should be denied. The named Plaintiffs have sufficiently shown

14 that they are likely to suffer substantial and immediate irreparable injury. “The possibility of

15 recurring injury ceases to be speculative when actual repeated incidents are documented.”

16 Nicacio v. U.S. I.N.S., 797 F.2d 700 (9th Cir. 1985) (overruled on other grounds by Hodgers-

17 Durgin v. de la Vina, 199 F.3d 1037, 1042 (9th Cir. 1999)). In this case, at least one of the

18 named Plaintiffs has alleged that he has been stopped twice in violation of the Fourth

19 Amendment. (Plaintiff Sanchez contends that he has been stopped three times and seized at least

20 twice.) At this stage in the litigation, these allegations are sufficient to show that there is a real

21 and immediate threat that he will be “wronged again.” Lyons, at 111.

22 Defendants rely on Hodgers-Durgin and argue that like the plaintiffs in that case, the

23 Plaintiffs here do not have standing to seek equitable relief – that is that they have not shown that

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1 there is a likelihood of substantial and immediate irreparable injury to them. In Hodgers-Durgin,

2 the Ninth Circuit held that the named plaintiffs (Mr. Lopez and Ms. Hodgers-Durgin) had failed

3 to make the required showing. It found:

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We hold that Mr. Lopez and Ms. Hodgers–Durgin have not demonstrated a

sufficient likelihood of injury to warrant equitable relief. Mr. Lopez drives

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between 400 and 500 miles a week and sees Border Patrol agents nearly every

day. Ms. Hodgers–Durgin drives between Rio Rico and Nogales at least four or

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five times a week and sees Border Patrol agents “all over the place” whenever she

travels. Yet Mr. Lopez and Ms. Hodgers–Durgin were each stopped only once in

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10 years. Based on plaintiffs' own factual record, we believe that it is not

sufficiently likely that Mr. Lopez or Ms. Hodgers–Durgin will again be stopped

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by the Border Patrol. In the absence of a likelihood of injury to the named

plaintiffs, there is no basis for granting injunctive relief that would restructure the

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operations of the Border Patrol and that would require ongoing judicial

supervision of an agency normally, and properly, overseen by the executive

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branch.

11 Id., at 1044. This case is distinguishable. Unlike the plaintiffs in Hodgers-Durgin, at least one

12 of the named Plaintiffs asserts that he has been stopped more than once in a two- or three-year

13 period. Further, unlike the plaintiffs in Hodgers-Durgin there is no evidence in the record of

14 how often the named Plaintiffs encountered Border Patrol agents, although the Complaint alleges

15 that there has been a surge of Border Patrol agents on the Olympic Peninsula. Dkt. 1. Lastly,

16 there is no showing, yet, to justify the stops of the Plaintiffs. Plaintiffs contend in the Complaint

17 that the sole basis for each of the stops was the Border Patrol agents’ intuition “based solely on

18 the color and nature of the Plaintiffs’ skin and hair.” Dkt. 1. At this stage in the litigation,

19 Plaintiffs have shown they have sufficient standing to seek equitable relief.

20 C. Motion to Dismiss Claim for Relief Under 8 U.S.C. § 1357

21 Pursuant to 8 U.S.C. § 1357(a)(3), Border Patrol agents can make warrantless arrests “within

22 a reasonable distance from any external boundary to the United States,” they can “board and

23 search for aliens [in] any . . . vehicle . . . for the purpose of patrolling the border to prevent the

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1 illegal entry of aliens into the united States.” Under 8 C.F.R. § 287.8(b)(2), a Border Patrol

2 agent must have “a reasonable suspicion based upon specific articulable facts, that the person

3 being questioned is, or is attempting to be engaged in an offense against the United States or is

4 an alien illegally in the United States.”

5 Defendants’ motion to dismiss Plaintiffs’ second claim (Dkt. 15) should be denied. Plaintiffs

6 state that they are not making a claim under 8 U.S.C. § 1357. Dkt. 22. Plaintiffs argue that

7 jurisdiction to review the Border Patrol’s actions is not found under § 1357, but under the APA.

8 Id. Plaintiffs contend that by stopping them (and the other putative class members) “without

9 reasonable suspicion based on specific articulable facts” that Defendants are exceeded their

10 statutory authority. Dkt. 1, at 19. Plaintiffs assert in their Complaint that the Defendants’

11 actions constitute reviewable “agency action within the meaning of the [APA], 5 U.S.C. § 551,

12 authorizing injunctive relief under the [APA], 5 U.S.C. § 702.” Dkt. 1, at 6.

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In their reply, Defendants state that their “confusion regarding Plaintiffs’ basis for

14 bringing their Second Claim is understandable because Plaintiffs labeled the claim ‘Violation of

15 8 U.S.C. § 1357’” rather than identifying the claim as a claim under the APA. Dkt. 24.

16 Defendants then go on to argue that the second claim should be dismissed by raising new

17 arguments in the reply. For example, they argue that because the first claim (“Violation of the

18 Fourth Amendment”) and the second claim (“Violation of 8 U.S.C. § 1357”) are the same claim,

19 and in fact ask for the same relief, the second claim should be dismissed. Id. (citing Sackett v.

20 E.P.A., 132 S. Ct. 1367, 1372 (2012) (noting the APA’s judicial review provision also requires

21 that the person seeking APA review of final agency action have “no other adequate remedy in a

22 court.”)). Due to the fact that Plaintiffs do not have an opportunity to respond, in the interests of

23 due process, those arguments will not be reached here. Defendants’ motion to dismiss Plaintiffs’

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ORDER - 8

1 claim for a “violation of 8 U.S.C. § 1357” should be denied because Plaintiffs have clarified that

2 they make no such a claim.

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III. ORDER

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Therefore, it is hereby ORDERED that Defendants’ Motion to Dismiss for Lack of

5 Jurisdiction (Dkt. 15) is DENIED.

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Dated this 27th day of August, 2012.

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BENJAMIN H. SETTLE

United States District Judge

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ORDER - 9

 
 Case 3:12-cv-05378-BHS Document 55 Filed 09/24/13 Page 1 of 5

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THE HONORABLE BENJAMIN H. SETTLE

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UNITED STATES DISTRICT COURT

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WESTERN DISTRICT OF WASHINGTON

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AT SEATTLE

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18 JOSE SANCHEZ, ISMAEL RAMOS

No. 3:12-CV-05378 BHS

19 CONTRERAS, and ERNEST GRIMES, on

20 behalf of themselves and all others

STIPULATION AND [PROPOSED]

21 similarly situated,

ORDER OF DISMISSAL

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Plaintiffs,

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v.

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27 UNITED STATES OFFICE OF BORDER

28 PATROL, UNITED STATES CUSTOMS

29 & BORDER PROTECTION,

30 DEPARTMENT OF HOMELAND

31 SECURITY; JOHN C. BATES, Chief

32 Patrol Agent, Blaine Sector of the United

33 States Border Patrol, in his official

34 capacity; JANET NAPOLITANO,

35 Secretary, Department of Homeland

36 Security, in her official capacity;

37 THOMAS WINKOWSKI, Acting

38 Commissioner, United States Customs &

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Border Protection, in his official capacity;1MICHAEL J. FISHER, Chief of

41 the United States Border Patrol, in his

42 official capacity; and JAY CUMBOW,

43 Agent in Charge for the Port Angeles

44 Office of the Olympic Peninsula of the

45 United States Border Patrol, in his official

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1 Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Thomas Winkowski, the Acting Commissioner of CBP, has been substituted as defendant in place of his predecessor, David Aguilar.

STIPULATION AND [PROPOSED] ORDER OF DISMISSAL (No. 3:12-CV-05378 BHS) – 1

Perkins Coie LLP 1201 Third Avenue, Suite 4900
Seattle, WA 98101-3099 Phone: 206.359.8000

82900-0001/LEGAL27921717.1

Fax: 206.359.9000

Case 3:12-cv-05378-BHS Document 55 Filed 09/24/13 Page 2 of 5

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Defendants.

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STIPULATION

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IT IS HEREBY STIPULATED AND AGREED by the undersigned attorneys for the

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parties that, pursuant to Rule 41(a)(1)(ii) of the Federal Rules of Civil Procedure, the above-

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Stipulated to and presented on this 24th day of September, 2013.

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STIPULATION AND [PROPOSED] ORDER OF DISMISSAL (No. 3:12-CV-05378 BHS) – 2
82900-0001/LEGAL27921717.1

Perkins Coie LLP 1201 Third Avenue, Suite 4900
Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000

Case 3:12-cv-05378-BHS Document 55 Filed 09/24/13 Page 3 of 5

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DATED: September 24, 2013

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s/ Nicholas P. Gellert Nicholas P. Gellert #18041 NGellert@perkinscoie.com Brendan J. Peters #34490 BPeters@perkinscoie.com Javier F. Garcia #38259 JGarcia@perkinscoie.com Steven D. Merriman #44035 SMerriman@perkinscoie.com
Perkins Coie LLP 1201 Third Avenue, Suite 4900 Seattle, WA 98101-3099 Telephone: 206.359.8000 Facsimile: 206.359.9000
Cooperating Attorneys for the ALCU and NWIRP
Sarah Dunne, WSBA No. 34869 La Rond Baker, WSBA No. 43610 ACLU of Washington Foundation 901 5th Ave, Suite 630 Seattle, WA 98164 Telephone: 206.624.2184
Matt Adams, WSBA No. 28287 Northwest Immigrant Rights Project 615 Second Ave., Ste. 400 Seattle, WA 98104 Telephone: 206.957.8611 Facsimile: 206.587.4009
Attorneys for Plaintiffs

STIPULATION AND [PROPOSED] ORDER OF DISMISSAL (No. 3:12-CV-05378 BHS) – 3
82900-0001/LEGAL27921717.1

Perkins Coie LLP 1201 Third Avenue, Suite 4900
Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000

Case 3:12-cv-05378-BHS Document 55 Filed 09/24/13 Page 4 of 5

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/s/ Timothy Belsan

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Timothy Belsan United States Department of Justice

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Office of Immigration Litigation

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District Court Section

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Ben Franklin Station, P.O. Box 868

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Washington, DC 20044

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Rebecca S. Cohen Assistant United States Attorney

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United States Attorney's Office

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700 Stewart Street, Suite 5220

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Seattle, WA 98101-1271

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Attorneys for Defendants

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ORDER

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The parties having so stipulated and agreed, it is hereby SO ORDERED. The above-

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DATED this _____ day of _____________________, 2013.

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The Honorable Benjamin H. Settle States District Court Judge

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STIPULATION AND [PROPOSED] ORDER OF DISMISSAL (No. 3:12-CV-05378 BHS) – 4
82900-0001/LEGAL27921717.1

Perkins Coie LLP 1201 Third Avenue, Suite 4900
Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000

Case 3:12-cv-05378-BHS Document 55 Filed 09/24/13 Page 5 of 5

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CERTIFICATE OF SERVICE

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On the 24th day of September, 2013, I caused to be served upon the following, at the

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addresses stated below, via the method of service indicated, a true and correct copy of the

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foregoing document.

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STIPULATION AND [PROPOSED] ORDER OF DISMISSAL

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12 Timothy M. Belsan 13 Trial Attorney 14 United States Department of Justice 15 Office of Immigration Litigation 16 District Court Section 17 Ben Franklin Station, P.O. Box 868 18 Washington, DC 20044
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_ _ Via hand delivery ___ Via U.S. Mail, 1st Class,
Postage Prepaid _ _ Via Overnight Delivery _ _ Via Facsimile _ Via Email _X Via ECF

20 Attorney for Defendants
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23 Rebecca S. Cohen 24 Assistant United States Attorney 25 United States Attorney's Office 26 700 Stewart Street, Suite 5220 27 Seattle, Washington 98101-1271
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___ Via hand delivery ___ Via U.S. Mail, 1st Class,
Postage Prepaid ___ Via Overnight Delivery _ _ Via Facsimile _ Via Email

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30 Attorney for Defendants

_X Via ECF

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I certify under penalty of perjury under the laws of the State of Washington that the

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36 foregoing is true and correct.
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DATED at Seattle, Washington, this 24th day of September, 2013.

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/s/Steven D. Merriman

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Steven D. Merriman, WSBA 44035

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STIPULATION AND [PROPOSED] ORDER OF DISMISSAL (No. 3:12-CV-05378 BHS) – 5
82900-0001/LEGAL27921717.1

Perkins Coie LLP 1201 Third Avenue, Suite 4900
Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000

 
 April 26, 2012 Contact: Doug Honig, ACLU
206-624-2184 Matt Adams, NWIRP 206-957-8611
Lawsuit Challenges Unconstitutional Stops and Interrogations by Border Patrol Agents on Olympic Peninsula
Three residents of the Olympic Peninsula today filed a class-action lawsuit challenging the U.S. Border Patrol’s practice of stopping vehicles and interrogating occupants without legal justification. Filed in U.S. District Court in Seattle, the lawsuit says that the Border Patrol’s suspicionless stops on the Peninsula violate constitutional rights, and it seeks a court injunction barring such unlawful stops in the future. Northwest Immigrant Rights Project (NWIRP) and the ACLU of Washington are representing the residents and will seek class-action status for the suit.
“The Border Patrol’s actions have created a climate of fear and anxiety for many people living on the Olympic Peninsula. The residents in this suit all are U.S. citizens who worry that they could be stopped and questioned without reason any time they drive or are passengers in cars. We’re asking the court to put in place safeguards to stop the Border Patrol’s unlawful and unfair practices,” said Sarah Dunne, legal director of ACLU.
“People are being stopped based solely on their appearance and ethnicity. This is unlawful and contrary to American values. No one in a car should be stopped and interrogated by government agents unless the law enforcement officer has a legal basis to do so,” said Matt Adams, legal director of NWIRP.
The lawsuit seeks a declaration that the Border Patrol’s suspicionless stops violate the Fourth Amendment and exceed the agency’s legal powers. The suit seeks to prohibit Border Patrol agents from stopping vehicles without reasonable suspicion that an occupant has entered the U.S. without approval. It also seeks to prohibit stops altogether until each agent on the Olympic Peninsula has received training regarding what constitutes reasonable suspicion for a stop. The suit would have the court require that Border Patrol agents prepare documentation recording the basis of their suspicion that justifies each stop. Furthermore, the documentation should be easily accessible to a court-appointed special master to monitor compliance.

The plaintiffs have experienced unwarranted stops and interrogations in a variety of settings, all while going about their daily lives. Agents provided flimsy pretexts or no reason at all for the stops. Some stops appear to be based on nothing but the Border Patrol agents’ perception of the plaintiffs’ ethnicity or the color of their skin. The incidents are typical of troubling encounters which many residents of the Peninsula have had with Border Patrol agents.
 Jose Sanchez is a resident of Forks and correctional officer for the Olympic Corrections Center. In 2011 in Forks, Border Patrol agents stopped the vehicle he was in, saying its windows were too dark – even though the driver’s side window was not tinted. The agents questioned Sanchez – a U.S. citizen – about where he was from. In an earlier incident, Sanchez and a family member were traveling in a vehicle near Forks, when Border Patrol agents stopped the car and interrogated him about his immigration status. Though agents told him that his vehicle was stopped because its windows were too dark, the agents did not ask for his insurance or registration. When he provided those documents, the agents refused to inspect them. In yet another incident at Forks, Sanchez was traveling home in a vehicle which was followed by Border Patrol agents. When he arrived at his house, the agents approached him. But when Sanchez began to record the encounter with his cell phone, the agents backed away. When Sanchez called the Border Patrol office to complain about being repeatedly stopped and interrogated, the office supervisor told him simply, “We have certain cars that we need to pull over.”
 Ismael Ramos Contreras is a resident of Forks and a senior and student government body president at Forks High School. In 2011 at Port Angeles, he was traveling in a vehicle with several teenage friends to pick up tuxedos for a Quinceañera (15th birthday) celebration when the vehicle was stopped by four Border Patrol agents. One agent tried to take the key out of the ignition, so the driver handed him the key. Agents interrogated the boys about their immigration status, but never provided a reason for the stop. In an earlier incident in 2010, while walking out of the Clallam County Courthouse in Forks with his mother, Ramos Contreras was approached by a person who addressed him by name and began questioning him about where he lived and came from. Based on the questions, his mother identified the person as a Border Patrol agent; the person indeed turned out to be an agent who was in plain clothes and wearing their badge backwards.
 Ernest Grimes is a resident of Neah Bay, a correctional officer at Clallam Bay Corrections Center, and a part-time police officer. In 2011 near Clallam Bay, a Border Patrol agent stopped the vehicle in which Grimes was traveling, approached with his hand on his weapon, and yelled at Grimes to roll down his window. Without offering a reason for the stop, the agent interrogated Grimes about his immigration status. Grimes, who is African American, was wearing his correctional officer uniform at the time.
Representing the plaintiffs are NWIRP legal director Matt Adams, ACLU-WA legal director Sarah Dunne and staff attorney La Rond Baker, and cooperating attorneys Nicholas Gellert, Brendan Peters, Javier Garcia, and Steve Merriman of the firm Perkins Coie LLP

 
 Case: 3:12-cv-5378 As of: 01/09/2015 09:20 PM PST 1 of 8
CLOSED,STAYED
U.S. District Court United States District Court for the Western District of Washington (Tacoma)
CIVIL DOCKET FOR CASE #: 3:12−cv−05378−BHS

Sanchez et al v. United States Office of Border Patrol et al Assigned to: Judge Benjamin H. Settle Cause: 28:1331 Federal Question: Other Civil Rights
Plaintiff

Date Filed: 04/26/2012 Date Terminated: 09/27/2013 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Jose Sanchez

represented by Brendan Peters PERKINS COIE (SEA) 1201 3RD AVE STE 4800 SEATTLE, WA 98101−3099 206−359−8132 Fax: 206−359−9132 Email: BPeters@perkinscoie.com ATTORNEY TO BE NOTICED

Javier Garcia PERKINS COIE (SEA) 1201 3RD AVE STE 4800 SEATTLE, WA 98101−3099 206−359−8036 Email: jgarcia@perkinscoie.com ATTORNEY TO BE NOTICED

La Rond Baker AMERICAN CIVIL LIBERTIES UNION OF WA 901 5TH AVENUE STE 630 SEATTLE, WA 98164 206−624−2184 Email: lbaker@aclu−wa.org ATTORNEY TO BE NOTICED

Matt Adams NORTHWEST IMMIGRANT RIGHTS PROJECT (SEA) 615 2ND AVE STE 400 SEATTLE, WA 98104 206−957−8611 Email: matt@nwirp.org ATTORNEY TO BE NOTICED

Nicholas Peter Gellert PERKINS COIE (SEA) 1201 3RD AVE STE 4800 SEATTLE, WA 98101−3099 206−359−8680 Fax: FAX 359−8500 Email: NGellert@perkinscoie.com ATTORNEY TO BE NOTICED

Sarah A Dunne ACLU OF WASHINGTON

Case: 3:12-cv-5378 As of: 01/09/2015 09:20 PM PST 2 of 8

901 FIFTH AVENUE SUITE 630 SEATTLE, WA 98164 206−624−2184 Email: dunne@aclu−wa.org ATTORNEY TO BE NOTICED

Steven Douglas Merriman PERKINS COIE (SEA) 1201 3RD AVE STE 4900 SEATTLE, WA 98101−3099 206−359−8000 Email: smerriman@perkinscoie.com ATTORNEY TO BE NOTICED

Plaintiff Ismael Ramos Contreras

represented by Brendan Peters (See above for address) ATTORNEY TO BE NOTICED

Javier Garcia (See above for address) ATTORNEY TO BE NOTICED

La Rond Baker (See above for address) ATTORNEY TO BE NOTICED

Matt Adams (See above for address) ATTORNEY TO BE NOTICED

Nicholas Peter Gellert (See above for address) ATTORNEY TO BE NOTICED

Sarah A Dunne (See above for address) ATTORNEY TO BE NOTICED

Steven Douglas Merriman (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Ernest Grimes on behalf of themselves and all others similarly situated

represented by Brendan Peters (See above for address) ATTORNEY TO BE NOTICED

Javier Garcia (See above for address) ATTORNEY TO BE NOTICED

La Rond Baker (See above for address) ATTORNEY TO BE NOTICED

Matt Adams (See above for address) ATTORNEY TO BE NOTICED

Nicholas Peter Gellert (See above for address)

Case: 3:12-cv-5378 As of: 01/09/2015 09:20 PM PST 3 of 8
ATTORNEY TO BE NOTICED
Sarah A Dunne (See above for address) ATTORNEY TO BE NOTICED
Steven Douglas Merriman (See above for address) ATTORNEY TO BE NOTICED

V. Defendant United States Office of Border Patrol
Defendant United States Customs and Border Protection
Defendant Department of Homeland Security
Defendant John C Bates Chief Patrol Agent, Blaine Sector of the United States Border Patrol, in his official capacity
Defendant

represented by Rebecca Shapiro Cohen US ATTORNEY'S OFFICE (SEA) 700 STEWART ST STE 5220 SEATTLE, WA 98101−1271 206−553−6526 Fax: 206−553−4073 Email: rebecca.cohen@usdoj.gov ATTORNEY TO BE NOTICED
Timothy Michael Belsan US DEPARTMENT OF JUSTICE (BOX 868) PO BOX 868 BEN FRANKLIN STATION WASHINGTON, DC 20044 202−532−4596 Email: timothy.m.belsan@usdoj.gov ATTORNEY TO BE NOTICED
represented by Rebecca Shapiro Cohen (See above for address) ATTORNEY TO BE NOTICED
Timothy Michael Belsan (See above for address) ATTORNEY TO BE NOTICED
represented by Rebecca Shapiro Cohen (See above for address) ATTORNEY TO BE NOTICED
Timothy Michael Belsan (See above for address) ATTORNEY TO BE NOTICED
represented by Rebecca Shapiro Cohen (See above for address) ATTORNEY TO BE NOTICED
Timothy Michael Belsan (See above for address) ATTORNEY TO BE NOTICED

Case: 3:12-cv-5378 As of: 01/09/2015 09:20 PM PST 4 of 8

Secretary Janet Napolitano Secretary, Department of Homeland Security, in her official capacity

represented by Rebecca Shapiro Cohen (See above for address) ATTORNEY TO BE NOTICED

Timothy Michael Belsan (See above for address) ATTORNEY TO BE NOTICED

Defendant
David Aguilar Acting Commissioner, United States Customs and Border Protection, in his official capacity

represented by Rebecca Shapiro Cohen (See above for address) ATTORNEY TO BE NOTICED
Timothy Michael Belsan (See above for address) ATTORNEY TO BE NOTICED

Defendant
Michael J Fisher Chief of the United States Border Patrol, in his official capacity

represented by Rebecca Shapiro Cohen (See above for address) ATTORNEY TO BE NOTICED

Timothy Michael Belsan (See above for address) ATTORNEY TO BE NOTICED

Defendant
Jay Cumbow Agent in Charge for the Port Angeles Office of the Olympic Peninsula of the United States Border Patrol, in his official capacity

represented by Rebecca Shapiro Cohen (See above for address) ATTORNEY TO BE NOTICED
Timothy Michael Belsan (See above for address) ATTORNEY TO BE NOTICED

Date Filed 04/26/2012
04/26/2012 04/26/2012
04/27/2012 04/27/2012

# Docket Text
1 COMPLAINT against defendant(s) David V Aguilar, John C Bates, Jay Cumbow, Department of Homeland Security, Michael J Fisher, Janet Napolitano, United States Customs &Border Protection, United States Office of Border Patrol (Receipt # 0981−2794885), filed by Ernest Grimes, Ismael Ramos Contreras, Jose Sanchez.(Merriman, Steven) (Entered: 04/26/2012)
2 PRAECIPE to attach document (Civil Cover Sheet) re 1 Complaint, by Plaintiff(s) Ismael Ramos Contreras, Jose Sanchez, Ernest Grimes. (Merriman, Steven) Modified on 4/27/2012 (DJ). (Entered: 04/26/2012)
3 PRAECIPE TO ISSUE SUMMONS re 1 Complaint, by Plaintiffs Ernest Grimes, Ismael Ramos Contreras, Jose Sanchez. (Attachments: # 1 Summons DHS, # 2 Summons Eric Holder, # 3 Summons Janet Napolitano, # 4 Summons Jay Cumbow, # 5 Summons Jenny Durkan, # 6 Summons John Bates, # 7 Summons Michael Fisher, # 8 Summons United States Border Patrol, # 9 Summons United States Customs and Border Protection)(Merriman, Steven) (Entered: 04/26/2012)
NOTICE to Filer: Incorrect Divisional Office −− The incorrect divisional office was selected by the filer upon case opening. This case is now assigned a Tacoma case number and judge. All future documents shall reflect the new case number and judge.(DJ) (Entered: 04/27/2012)
4 Summons(es) electronically issued as to defendant(s) David Aguilar, John C. Bates, Jay Cumbow, Department of Homeland Security, Michael J. Fisher, Janet Napolitano, United States Customs and Border Protection, United States Office of Border Patrol. (Attachments: # 1 Summons, # 2 Summons, # 3 Summons, # 4

Case: 3:12-cv-5378 As of: 01/09/2015 09:20 PM PST 5 of 8

04/27/2012 04/27/2012 04/27/2012 04/27/2012 05/01/2012 05/14/2012
05/14/2012
05/23/2012 06/19/2012 06/20/2012 07/11/2012 07/12/2012
07/12/2012
07/23/2012 07/23/2012

Summons, # 5 Summons, # 6 Summons, # 7 Summons, # 8 Summons)(DJ) (Entered: 04/27/2012)
5 ORDER REGARDING DISCOVERY AND DEPOSITIONS. Authorized by Judge Robert J. Bryan. (JL) (Entered: 04/27/2012)
6 ORDER REGARDING INITIAL DISCLOSURES, JOINT STATUS REPORT AND EARLY SETTLEMENT. FRCP 26f Conference Deadline is 7/12/2012; Initial Disclosure Deadline is 7/19/2012; Joint Status Report due by 7/26/2012. Authorized by Judge Robert J. Bryan. (JL) (Entered: 04/27/2012)
JSR due 7/26/2012. (JL) (Entered: 04/27/2012)
7 Summons electronically issued as to defendant(s) David Aguilar. (DJ) (Entered: 04/27/2012)
8 AFFIDAVIT of Service of Summons and Complaint on Sandra Bowers, Receptionist at USDC Seattle on 4/30/2012, filed by Plaintiffs Ernest Grimes, Ismael Ramos Contreras, Jose Sanchez. (Merriman, Steven) (Entered: 05/01/2012)
9 NOTICE of Appearance by attorney Timothy Michael Belsan on behalf of Defendants David Aguilar, John C Bates, Jay Cumbow, Department of Homeland Security, Michael J Fisher, Janet Napolitano, United States Customs and Border Protection, United States Office of Border Patrol. (Belsan, Timothy) (Entered: 05/14/2012)
10 NOTICE of Appearance by attorney Rebecca Shapiro Cohen on behalf of Defendants David Aguilar, John C Bates, Jay Cumbow, Department of Homeland Security, Michael J Fisher, Janet Napolitano, United States Customs and Border Protection, United States Office of Border Patrol. (Cohen, Rebecca) (Entered: 05/14/2012)
11 AFFIDAVIT of Mailing of Summons and Complaint to on 4/30/2012, filed by Plaintiffs Ernest Grimes, Ismael Ramos Contreras, Jose Sanchez. (Attachments: # 1 Exhibit A−I)(Merriman, Steven) (Entered: 05/23/2012)
12 STIPULATION AND PROPOSED ORDER Extending Defendants' Deadline to Respond to Plaintffs' Complaint by parties. (Cohen, Rebecca) (Entered: 06/19/2012)
13 STIPULATION AND ORDER EXTENDING DEFENDANTS' DEADLINE TO RESPOND TO PLAINTIFFS' COMPLAINT, signed by Judge Robert J. Bryan. (DK) (Entered: 06/20/2012)
14 JOINT STATUS REPORT signed by all parties estimated Trial Days: 5.. (Merriman, Steven) (Entered: 07/11/2012)
15 MOTION to Dismiss for lack of jurisdiction by Defendants David Aguilar, John C Bates, Jay Cumbow, Department of Homeland Security, Michael J Fisher, Janet Napolitano, United States Customs and Border Protection, United States Office of Border Patrol. (Attachments: # 1 Proposed Order) Noting Date 8/3/2012, (Cohen, Rebecca) (Entered: 07/12/2012)
16 MOTION to Stay discovery pending resolution of motion to dismiss by Defendants David Aguilar, John C Bates, Jay Cumbow, Department of Homeland Security, Michael J Fisher, Janet Napolitano, United States Customs and Border Protection, United States Office of Border Patrol. (Attachments: # 1 Proposed Order, # 2 Exhibit A−C, # 3 Exhibit D−F, # 4 Exhibit G−I) Noting Date 7/27/2012, (Cohen, Rebecca) (Entered: 07/12/2012)
17 RESPONSE, by Plaintiffs Ernest Grimes, Ismael Ramos Contreras, Jose Sanchez, to 16 MOTION to Stay discovery pending resolution of motion to dismiss. (Merriman, Steven) (Entered: 07/23/2012)
18 DECLARATION of Nicholas P. Gellert filed by Plaintiffs Ernest Grimes, Ismael Ramos Contreras, Jose Sanchez re 16 MOTION to Stay discovery pending resolution of motion to dismiss (Merriman, Steven) (Entered: 07/23/2012)

Case: 3:12-cv-5378 As of: 01/09/2015 09:20 PM PST 6 of 8

07/26/2012 07/27/2012 07/30/2012 08/06/2012 08/08/2012
08/10/2012 08/22/2012 08/22/2012 08/22/2012 08/23/2012 08/24/2012
08/24/2012

19 NOTICE that the following is RE−NOTED: 15 MOTION to Dismiss for lack of jurisdiction. Filed by Defendants David Aguilar, John C Bates, Jay Cumbow, Department of Homeland Security, Michael J Fisher, Janet Napolitano, United States Customs and Border Protection, United States Office of Border Patrol. Noting Date 8/10/2012, (Cohen, Rebecca) (Entered: 07/26/2012)
20 REPLY, filed by Defendants David Aguilar, John C Bates, Jay Cumbow, Department of Homeland Security, Michael J Fisher, Janet Napolitano, United States Customs and Border Protection, United States Office of Border Patrol, TO RESPONSE to 16 MOTION to Stay discovery pending resolution of motion to dismiss (Cohen, Rebecca) (Entered: 07/27/2012)
21 ORDER ON MOTION TO STAY DISCOVERY PENDING RESOLUTION OF MOTION TO DISMISS, denying 16 Motion to Stay. Signed by Judge Robert J. Bryan. (JL) (Entered: 07/30/2012)
22 RESPONSE, by Plaintiffs Ernest Grimes, Ismael Ramos Contreras, Jose Sanchez, to 15 MOTION to Dismiss for lack of jurisdiction. (Merriman, Steven) (Entered: 08/06/2012)
23 MINUTE ORDER SETTING TRIAL, PRETRIAL DATES AND ORDERING MEDIATION; Length of Trial: *FIVE DAYS*. Bench Trial is set for 5/13/2013 at 09:30 AM in Courtroom A before Judge Robert J. Bryan. Joinder of Parties due by 9/14/2012, Class certification motion due by 10/23/12, Expert Witness Disclosure/Reports under FRCP 26(a)(2) due by 11/14/2012, Motions due by 12/24/2012, Discovery completed by 12/21/2012, Dispositive motions due by 1/21/2013, Settlement conference to be held by 3/14/2013, 39.1 mediation to be completed by 4/13/2013, 39.1 Settlement Report due by 4/20/2013, Motions in Limine due by 4/26/2013, Pretrial Order due by 4/26/2013, Pretrial Conference set for 5/3/2013 at 08:30 AMn. Trial briefs to be submitted by 5/3/2013, Authorized by Judge Robert J. Bryan. (DK) (Entered: 08/08/2012)
24 REPLY, filed by Defendants David Aguilar, John C Bates, Jay Cumbow, Department of Homeland Security, Michael J Fisher, Janet Napolitano, United States Customs and Border Protection, United States Office of Border Patrol, TO RESPONSE to 15 MOTION to Dismiss for lack of jurisdiction (Cohen, Rebecca) (Entered: 08/10/2012)
25 STIPULATION AND PROPOSED ORDER for a Protective Order by parties. (Cohen, Rebecca) (Entered: 08/22/2012)
26 MINUTE ORDER REASSIGNING CASE. Judge Robert J. Bryan RECUSES himself from the above−entitled cause of action. This case is REASSIGNED in rotation to Judge Benjamin H Settle for all further proceedings. Counsel are requested to modify their pleadings to reflect this change. Entered as directed by Judge Robert J. Bryan. (DK) (Entered: 08/22/2012)
Noting Date Set/Reset re 15 MOTION to Dismiss for lack of jurisdiction : Noting Date 8/22/2012, to reflect transfer of case to Judge Settle. (TG) (Entered: 08/22/2012)
MOTION(S) REFERRED: re 15 MOTION to Dismiss for lack of jurisdiction referred to Judge Benjamin H. Settle. (JL) (Entered: 08/23/2012)
27 Revised MINUTE ORDER SETTING TRIAL AND PRETRIAL DATES − *FIVE DAY* Bench Trial is set for 5/14/2013 at 9:00 AM in Courtroom E before Judge Benjamin H. Settle. Joinder of Parties due by 9/24/2012, Amended Pleadings due by 10/4/2012, Expert Witness Disclosure/Reports under FRCP 26(a)(2) due by 11/5/2012, Rebuttal Expert Disclosure/Reports due by 12/5/2012, Motions due by 12/17/2012, Discovery completed by 1/14/2013, Dispositive motions due by 2/13/2013, Settlement conference to be held by 3/15/2013, 39.1 mediation to be completed by 4/4/2013, Motions in Limine due by 4/8/2013, 39.1 Settlement Report due by 4/15/2013, Pretrial Order due by 4/22/2013, Trial briefs to be submitted by 4/23/2013, Pretrial Conference set for 4/29/2013 at 11:00 AM in Courtroom E before Judge Benjamin H. Settle. (MGC) (Entered: 08/24/2012)
28 ORDER by Judge Benjamin H Settle re 25 Stipulation filed by Jay Cumbow, United States Customs and Border Protection, John C Bates, Michael J Fisher,

Case: 3:12-cv-5378 As of: 01/09/2015 09:20 PM PST 7 of 8

08/27/2012 09/05/2012
09/10/2012 09/21/2012 09/21/2012 09/25/2012 10/04/2012 10/11/2012 10/15/2012
11/07/2012 11/07/2012 01/02/2013 01/03/2013
01/04/2013

United States Office of Border Patrol, Janet Napolitano, Department of Homeland Security, David Aguilar. (TG) (Entered: 08/24/2012)
29 ORDER by Judge Benjamin H Settle denying 15 Motion to Dismiss.(TG) (Entered: 08/27/2012)
30 Agreed MOTION Enforcement of Confidentiality Agreement by Defendants David Aguilar, John C Bates, Jay Cumbow, Department of Homeland Security, Michael J Fisher, Janet Napolitano, United States Customs and Border Protection, United States Office of Border Patrol. Noting Date 9/5/2012, (Cohen, Rebecca) (Entered: 09/05/2012)
31 ANSWER to 1 Complaint, by David Aguilar, John C Bates, Jay Cumbow, Department of Homeland Security, Michael J Fisher, Janet Napolitano, United States Customs and Border Protection, United States Office of Border Patrol.(Cohen, Rebecca) (Entered: 09/10/2012)
32 MOTION CR 37 Submission Regarding Plaintiffs' Request for Production Nos. 20−24 by Plaintiffs Ernest Grimes, Ismael Ramos Contreras, Jose Sanchez. (Attachments: # 1 Proposed Order) Noting Date 9/21/2012, (Gellert, Nicholas) (Entered: 09/21/2012)
33 DECLARATION of Nicholas P. Gellert filed by Plaintiffs Ernest Grimes, Ismael Ramos Contreras, Jose Sanchez re 32 MOTION CR 37 Submission Regarding Plaintiffs' Request for Production Nos. 20−24 (Attachments: # 1 Exhibit 1)(Gellert, Nicholas) (Entered: 09/21/2012)
34 ORDER by Judge Benjamin H Settle granting 30 Motion Regarding Enforcement of Confidentiality Agreement.(TG) (Entered: 09/25/2012)
35 ORDER by Judge Benjamin H Settle denying 32 Motion to Compel Request for Production.(TG) (Entered: 10/04/2012)
36 STIPULATION AND PROPOSED ORDER Re Amended Scheduling Order by parties. (Gellert, Nicholas) (Entered: 10/11/2012)
37 STIPULATION AND ORDER by Judge Benjamin H Settle re 36 Stipulation filed by Ernest Grimes, Ismael Ramos Contreras, Jose Sanchez: 39.1 mediation to be completed by 9/27/2013, 39.1 Settlement Report due by 10/11/2013, Discovery completed by 7/15/2013, Dispositive motions due by 8/15/2013, Expert Witness Disclosure/Reports under FRCP 26(a)(2) due by 5/6/2013, Motions due by 6/17/2013, Motions in Limine due by 10/4/2013, Proposed pretrial order due by 10/17/2013, Proposed Findings of Fact and Conclusions of Law to be submitted by 10/18/2013, Rebuttal Expert Disclosure/Reports due by 6/5/2013, Settlement conference to be held by 9/13/2013, Trial briefs to be submitted by 10/18/2013, Bench Trial is set for 11/5/2013 at 09:00 AM before Judge Benjamin H Settle. Final Pretrial Conference set for 10/21/2013 at 01:30 PM before Judge Benjamin H Settle. (TG) (Entered: 10/15/2012)
38 STIPULATION AND PROPOSED ORDER regarding Privacy Act by parties. (Attachments: # 1 Exhibit 1)(Cohen, Rebecca) (Entered: 11/07/2012)
39 STIPULATION AND PRIVACY ACT PROTECTIVE ORDER signed by Judge Benjamin H. Settle. (MGC) (Entered: 11/07/2012)
40 STIPULATION AND PROPOSED ORDER for Privacy Act Protective Order by parties. (Cohen, Rebecca) (Entered: 01/02/2013)
41 STIPULATION AND PRIVACY ACT PROTECTIVE ORDER by Judge Benjamin H Settle re 40 Stipulation filed by Jay Cumbow, United States Customs and Border Protection, John C Bates, Michael J Fisher, United States Office of Border Patrol, Janet Napolitano, Department of Homeland Security, David Aguilar. (TG) (Entered: 01/03/2013)
42 Stipulated MOTION and Proposed Order Regarding Deadline to File Motion for Class Certification by Plaintiffs Ernest Grimes, Ismael Ramos Contreras, Jose Sanchez. Noting Date 1/4/2013, (Gellert, Nicholas) (Entered: 01/04/2013)

Case: 3:12-cv-5378 As of: 01/09/2015 09:20 PM PST 8 of 8

01/07/2013 02/12/2013 02/14/2013 02/14/2013 03/14/2013 03/18/2013 04/25/2013 04/29/2013 06/12/2013
06/17/2013 06/21/2013 06/24/2013
08/21/2013
09/24/2013 09/27/2013

43 ORDER by Judge Benjamin H Settle granting 42 Stipulated Motion extending deadline to file motion for class certification to March 1, 2013.(TG) (Entered: 01/07/2013)
44 Stipulated MOTION and Proposed Order to Stay Litigation by Plaintiffs Ernest Grimes, Ismael Ramos Contreras, Jose Sanchez. Noting Date 2/12/2013, (Merriman, Steven) (Entered: 02/12/2013)
45 STIPULATION AND ORDER TO STAY LITIGATION by Judge Benjamin H Settle re 44 Stipulated MOTION and Proposed Order to Stay Litigation filed by Ernest Grimes, Ismael Ramos Contreras, Jose Sanchez. (TG) (Entered: 02/14/2013)
Case Stayed (TG) (Entered: 02/14/2013)
46 Stipulated MOTION To Extend Litigation Stay and Joint Status Report by Plaintiffs Ernest Grimes, Ismael Ramos Contreras, Jose Sanchez. Noting Date 3/15/2013, (Gellert, Nicholas) (Entered: 03/14/2013)
47 ORDER by Judge Benjamin H Settle granting 46 Stipulated Motion to Extend Litigation Stay to 4/29/2013.(TG) (Entered: 03/18/2013)
48 Stipulated MOTION To Extend Litigation Stay by Plaintiffs Ernest Grimes, Ismael Ramos Contreras, Jose Sanchez. Noting Date 4/25/2013, (Gellert, Nicholas) (Entered: 04/25/2013)
49 ORDER by Judge Benjamin H Settle granting 48 Stipulated Motion To Extend Litigation Stay to June 12, 2013.(TG) (Entered: 04/29/2013)
50 Stipulated MOTION to Extend Litigation Stay and JSR by Defendants David Aguilar, John C Bates, Jay Cumbow, Department of Homeland Security, Michael J Fisher, Janet Napolitano, United States Customs and Border Protection, United States Office of Border Patrol. Noting Date 6/12/2013, (Cohen, Rebecca) (Entered: 06/12/2013)
51 ORDER granting 50 Stipulated Motion by Judge Benjamin H Settle. Stay continued until 6/21/2013. (TG) (Entered: 06/17/2013)
52 STIPULATION AND PROPOSED ORDER to Extend Litigation Stay, and JSR by parties. (Cohen, Rebecca) (Entered: 06/21/2013)
53 STIPULATION AND ORDER by Judge Benjamin H Settle re 52 Stipulation filed by Jay Cumbow, United States Customs and Border Protection, John C Bates, Michael J Fisher, United States Office of Border Patrol, Janet Napolitano, Department of Homeland Security, David Aguilar. Parties to file dismissal paperwork or new status report by August 21, 2013. (TG) (Entered: 06/24/2013)
54 JOINT STATUS REPORT signed by all parties estimated Trial Days: 0. Filed by Defendants David Aguilar, John C Bates, Jay Cumbow, Department of Homeland Security, Michael J Fisher, Janet Napolitano, United States Customs and Border Protection, United States Office of Border Patrol.(Cohen, Rebecca) (Entered: 08/21/2013)
55 STIPULATION AND PROPOSED ORDER of Dismissal by parties. (Gellert, Nicholas) (Entered: 09/24/2013)
56 STIPULATION AND ORDER OF DISMISSAL by Judge Benjamin H Settle. (TG) (Entered: 09/27/2013)

 
 1

Hon. Benjamin H. Settle

2

3

4

5

6

7

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA

8

9

JOSE SANCHEZ, et al.,

Plaintiffs,
10 v.

NO. CV12-5378-RJB SETTLEMENT AGREEMENT

11 UNITED STATES BORDER PATROL, et al.,

12

Defendants.

13
THIS SETTLEMENT AGREEMENT ("Agreement") in Jose Sanchez, et al. v. United
14
States Border Patrol, et al., Case No. CV12-5378-RJB (U.S.D.C. W.D. Wash.) is made and
15
voluntarily and freely entered into by and between the plaintiffs, Jose Sanchez, Ismael Ramos
16
Contreras, and Ernest Grimes (collectively, "Plaintiffs"), and the defendants, United States
17 Border Patrol; United States Customs and Border Protection ("CBP"); Department of Homeland
18 Security ("DHS"); John C. Bates, Chief Patrol Agent, Blaine Sector of the United States Border
19 Patrol, in his official capacity; Janet Napolitano, Secretary, DHS, in her official capacity;

20

21

22
SETTLEMENT AGREEMENT - I (Case No. CVI2-5378-RJB)
23

OFFICE OF THE UNITED STATES ATTORNEY
700 Stewart Street. Suite 5220 Seattle, WA 98101 (206) 553-7970

1 Thomas Winkowski, I Acting Commissioner of CBP, in his official capacity; Michael J. Fisher,

2 Chief of the United States Border Patrol, in his official capacity; and Jay Cumbow, Agent in

Charge for the Port Angeles, Washington Station of the United States Border Patrol, in his 3

official capacity (collectively, "Defendants"), by and through their undersigned counsel. 4
Plaintiffs and Defendants are jointly referred to herein as the "Parties."
5
RECITALS
6
A. On April 26, 2012, Plaintiffs filed their Complaint in the above-referenced action,

7

seeking - for themselves and a class of persons similarly situated - an injunction

8

against the United States Border Patrol's conducting or participating in vehicle

9

stops on the Olympic Peninsula without required reasonable suspicion that the

10

occupants of the vehicles stopped are not legally in the United States. Defendants

11

denied any wrongdoing.

12

B. Although Plaintiffs Complaint was filed as a putative class action, this

Agreement was reached prior to the filing of a motion for class certification, and
13

no class has been celiified.
14
C. The Pmiies desire to settle fully and finally all differences between them related
15
to this action.

16

NOW, THEREFORE, in consideration of the mutual terms, conditions, promises and

17 covenants set forth below, by this AGREEMENT, the Pmiies agree as follows:

18

1. Letter to ACLU and NWIRP. Within thiliy (30) days of the effective date of this

19 Agreement, CBP, via its component organization, the U.S. Border Patrol, specifically the Chief

20

21 I Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Thomas Winkowski, the Acting
Commissioner of CBP, has been substituted as defendant in place of his predecessor, David Aguilar.

22
SETTLEMENT AGREEMENT - 2 (Case No. CV12-5378-RJB)
23

OFFICE OF THE UNITED STATES ATTORNEY
700 Stewart Street. Suite 5220 Seattle, WA 98101 (206) 553-7970

1 of the Blaine Sector, will issue a letter to the American Civil Liberties Union of Washington
2 ("ACLU") and the Northwest Immigrant Rights Project ("NWIRP") containing the language
3 provided in Exhibit A attached hereto. 2. Training. As soon as is practicable, but no later than one year from the effective
4 date of this Agreement, the Border Patrol will provide a single refresher training on the
5
application of Fourth Amendment principles, including those relating to vehicle stops that must 6
be based on reasonable suspicion, to all Border Patrol Agents assigned to the Port Angeles, 7 Washington Station, on the date that the training is conducted. This training will also address
8 when Border Patrol Agents should contact state law enforcement authorities for vehicle-related
9 public safety concerns that they observe. As pmi of this training, agents in attendance will

10 receive written materials on the topics covered. Both the content and the length of the training
11 will be determined solely by CBP. Further, CBP's Office of Chief Counsel will be involved in
12 the training's development and implementation. Notification that the foregoing training has been
conducted will be provided via letter to the ACLU and the NWIRP no later than one year from
13
the effective date of this Agreement.
14
3. Production of Field Contact Data Sheets. Every six months for a period of
15
eighteen months from the effective date of this Agreement (i. e. three times), CBP will produce to
16
Plaintiffs' counsel via appropriately redacted installments those Field Contact Data Sheets
17 ("FCDS") that are issued by agents at the Port Angeles, Washington Station. Any produced
18 FCDS will be redacted consistent with applicable laws, including FOIA, to protect information
19 including, but not limited to, personally identifiable information, such as name, date of bitih,

20 place of birth, alias name(s), social security number; addressees); contact information; vehicle

21

22
SETTLEMENT AGREEMENT - 3 (Case No. CVI2-5378-RJB)
23

OFFICE OF THE UNITED STATES ATTORNEY
700 Stewart Street, Suite 5220 Seattle, WA 98101 (206) 553-7970

1 information; and any information that may be confidential, sensitive, or as otherwise protected

2 by law.

3

4. Dismissal of Action. Within seven (7) days of the execution of this Agreement,

Plaintiffs will present the Court with a stipulated motion for an order of dismissal of this action
4

with prejudice.
5 5. Costs of Litigation. The Parties agree that they will each bear their own costs and

6 fees, including attorney's fees, related to this action.

7

6. Release of Claims. Each of the Plaintiffs, on behalf of himself, his guardians,

8 heirs, executors, administrators, and assigns does hereby unconditionally release the United

9 States of America, the Depmiment of Homeland Security, United States Customs and Border

10 Protection, and the United States Border Patrol, their sub-agencies, officers, agents, employees,

11 and attorneys from any and all claims, demands, rights, and causes of action he has asserted in
12 Sanchez, et al. v. Us. Border Patrol, et al., No. 12-CV-5378 (W.D. Wash.), and from any claims
arising from the same facts that formed the basis of the claims and causes of action therein,
13
including without limitation any claim for attorneys' fees and costs, whether for personal
14
injuries, damage to property, or economic losses, whether known or unknown, whether arising
15
under common law, statute, or the U.S. Constitution, whether for monetary damages or
16 injunctive relief, and whether, when directed against an individual, it is brought or stated against
17 him/her in an official or personal capacity. Each of the Defendants agrees and acknowledges
18 that this settlement, and specifically this Release and the dismissal with prejudice, shall not

19 impact any of the Plaintiffs' ability to bring a claim arising from or related to any future actions

20 by the United States Border Patrol, including Plaintiffs' standing to seek injunctive or

21 declaratory relief.

22
SETTLEMENT AGREEMENT - 4 (Case No. CVI2-5378-RJB)
23

OFFICE OF THE UNITED STATES ATTORNEY
700 Stewart Street, Suite 5220 Seattle, WA 98101 (206) 553-7970

1

Each of the Plaintiffs agrees and acknowledges that he is currently represented by

2 counsel who has advised him regarding this Release.

3

7. No Admission of Liability. The execution of this Agreement is not, is in no way

intended to be, and should not be construed as an admission of liability or fault on the part of the
4
United States of America,DHS, CBP, or the United States Border Patrol, or any of their agents,
5
sub-agencies, contractors, servants, or employees, and Defendants specifically deny that they are
6
liable to Plaintiffs. Furthermore, pursuant to Federal Rule of Evidence 408, this Agreement

7 cannot be used as evidence ofliability or fault on the part ofthe United States of America, DHS,

8 CBP, or the United States Border Patrol, or any of their agents, sub-agencies, contractors,

9 servants, or employees in any future proceeding. This Agreement is entered into by all Parties

10 for the purpose of resolving disputed claims and/or to avoid the expenses and risks of further

11 litigation.

12

8.

13

14

15

16

17

18

19

Miscellaneous Terms.
A. The persons signing this Agreement warrant and represent that they possess full authority to bind the persons on whose behalf they are signing to the terms of the settlement.
B. It is contemplated that this Agreement may be executed in several counterparts, with a separate signature page for each party. All such counterparts and signature pages, together, shall be deemed to be one document.
C. By the execution of this Agreement the Pat1ies acknowledge its receipt and sufficiency as a complete compromise of matters involving disputed issues of fact and law and fully assume the risk of any mistake of fact or law. The Pat1ies acknowledge that this Agreement contains the entire understanding between the Parties, and that no promise or representation not contained in this Agreement has been made by any pat1y hereto.

20

21

22
SETTLEMENT AGREEMENT - 5 (Case No. CVI2-5378-RJB)
23

OFFICE OF THE UNITED STATES ATTORNEY
700 Stewart Street, Suite 5220 Seattle, WA 98101 (206) 553-7970

1

D. The Parties represent that each has been represented by counsel of choice

in connection with the review, approval, and execution of this Agreement;

2

that each has shown this Agreement to his, her, or its respective attorney

who has explained it and advised that it is a legally binding contract; that

3

each party has read and understood this Agreement; and that each party intends to be bound by each provision of this Agreement.

4

E. This Agreement cannot be modified or amended except by an instrument

in writing, agreed to and signed by all of the Parties, nor shall any

5

provision of this Agreement be waived other than by a written waiver signed by all of the Parties.

6

F. The captions of paragraphs in this Agreement are for convenience only

and shall not be deemed to limit, construe, affect, or alter the meaning of

7

such paragraphs.

G. The effective date of this Agreement shall be the date this Agreement is

8

executed by the last of the Parties hereto to execute this Agreement.

9

By signing below, Plaintiffs Jose Sanchez, Ismael Ramos Contreras, and Ernest Grimes,

10 and Defendants United States Border Patrol, CBP, DHS, John C. Bates, Janet Napolitano, 11 Thomas Winkowski, Michael J. Fisher, and Jay Cumbow, hereby agree to, and are bound by, the 12 terms of this Agreement.

13

14

15

16

Ismael Ramos Contreras, Plaintiff Date:

17

18

19

20

21

22
SETILEMENT AGREEMENT - 6 (Case No. CV12-5378·RJB)
23

OFFICE OF THE UNITED STATES ATTORNEY
700 Stewart Street, Suite 5220 Seattle, WA 98101 (206) 553·7970

1

D. The Parties represent that each has been represented by counsel ofchoice

in connection with the review, approval, and execution of this Agreement;

2

that each has shown this Agreement to his, her, or its respective attorney who has explained it and advised that it is a legally binding contract; that

each party has read and understood this Agreement; and that each party

3

intends to be bound by each provision of this Agreement.

4

E. This Agreement cannot be modified or amended except by an instrument

in writing, agreed to and signed by all of the Parties, nor shall any

5

provision of this Agreement be waived other than by a written waiver signed by all of the Parties.

6

F. The captions of paragraphs in this Agreement are for convenience only

and shall not be deemed to limit, construe, affect, or alter the meaning of

7

such paragraphs.

G. The effective date of this Agreement shall be the date this Agreement is

8

executed by the last of the Parties hereto to execute this Agreement.

9

By signing below, Plaintiffs Jose Sanchez, Ismael Ramos Contreras, and Ernest Grimes,

10 and Defendants United States Border Patrol, CBP, DHS, John C. Bates, Janet Napolitano, 11 Thomas Winkowski, Michael J. Fisher, and Jay Cumbow, hereby agree to, and are bound by, the 12 terms of this Agreement.

13

14

Jose Sanchez, Plaintiff Date:

15

C-Jj/q 16

Ismael Ramos Contreras, Plaintiff

Date:

//3

17

18

Ernest Grimes, Plaintiff Date:

19

20

21

22
SETfLEMENT AGREEMENT - 6 (Case No. CVI2-5378-RJ8)
23

OFFICE OF THE UNITED STATES ATTORNEY
700 Stewart Street, Suite 5220 Seattle, WA 9810 I (206) 553-7970

1 % -Timothy Belsan
2 Department of Justice, Office of Immigration Litigation
Attorney for Defendants
3 Date: If - £.0 - / 3

4·
Rebecca Cohen 5 Assistant United States Attorney
Attorney for Defendants
6 Date: C\~ ao -a.O\3

7

8 9 10

11
12

13 14 15 16 17 18

19

20
21 22
SETTLEMENT AGREEMENT -7 (Case No. CVI2-5378-RJ8)
23

Or r-l eu or: T I·I E. U NI TED ST ATES ATTORNEY
700 StewA rt Street. Su ite S220
Seallle, IV A ~H 10 1 (206) 553-7970

1

Exhibit A

"The U.S. Border Patrol is committed to abiding by the requirements of federal

2

law. This commitment extends to the Border Patrol's initiation of vehicle stops

on Washington State's Olympic Peninsula and is made with full awareness of the

3

requirements in the FOUlih Amendment to the U.S. Constitution, including how

the Fourth Amendment has been interpreted by both the U.S. Supreme Court and

4

the Ninth Circuit Court of Appeals.

"Consistent with its commitment to abide by the requirements of federal law, the

5

Border Patrol acknowledges that for vehicle stops made under the FOUlih

Amendment in non-border search situations-in other words, those brief,

6

investigatory inquiries commonly referred to as 'Terry' stops (drawing their name

from the seminal case of Terry v. Ohio, 392 U.S. 1 (1968) and its progeny)-

7

agents must have reasonable suspicion of a violation of law. To be reasonable,

the suspicion must be based upon articulable facts which constitute objectively

8

valid reasons for an agent to suspect that a patiicular individual may be involved

in a violation of law. Moreover, the assessment of whether or not reasonable

9

suspicion exists must be based upon all the facts and circumstances at issue, and these facts and circumstances must raise a suspicion that the patiicular individual

being stopped may be engaged in wrongdoing.
10

"Because, as the U.S. Supreme Court has stated, 'Roads near the border carry not

11

only aliens seeking to enter the country illegally, but a large volume of legitimate

traffic as well,' the Border Patrol acknowledges that in many circumstances it will

12

not be sufficient to establish reasonable suspicion to justify a vehicle stop under

Teny simply that a vehicle is in an area near an international border. In addition,

13

the Border Patrol acknowledges that it is subject to, and is committed to act in compliance with, applicable Department of Homeland Security guidance,

including with respect to the use of race or ethnicity in law enforcement activities,

14

and in particular, we call your attention to Secretary Ridge's June 1,2004

guidance on this topic, a copy of which is attached to this letter for your ease of

15

reference. "

16

17

18

19

20

21

22
SETTLEMENT AGREEMENT - 8 (Case No. CYI2-5378-RJB)
23

OFFICE OF THE UNITED STATES ATTORNEY
700 Stewart Street, Suite 5220 Seattle. WA 9810 I (206) 553-7970