ADHAM AMIN HASSOUN v. JEFFREY SEARLS, in his official capacity as Acting Assistant Field
1:19-CV-00370 EAW
UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK
March 8, 2021
ELIZABETH A. WOLFORD, United States District Judge
Case 1:19-cv-00370-EAW Document 304 Filed 03/08/21
DECISION AND ORDER
INTRODUCTION
The instant habeas corpus petition has a long and complicated procedural history, involving multiple decisions by this Court and proceedings before both the Court of
BACKGROUND
The background of this action is set forth in detail in the Court‘s numerous prior Decisions (see Dkt. 55; Dkt. 75; Dkt. 138; Dkt. 150; Dkt. 225; Dkt. 256), familiarity with which is assumed for purposes of the instant Decision and Order. The Court has briefly summarized the key factual and procedural history below; additional details necessary to understanding the substantive issues before the Court are set forth in the relevant sections of its analysis.
At the time he commenced this action, Petitioner was a civil immigration detainee at the Buffalo Federal Detention Facility (the “BFDF”). Pursuant to
On May 15, 2020, Petitioner filed a motion to compel and for sanctions. (Dkt. 164). The Court entered a Decision and Order on June 18, 2020, granting Petitioner‘s motion to compel and reserving decision on the request for sanctions. (Dkt. 225). In that same Decision and Order, the Court ruled on various evidentiary issues the parties had raised in advance of the evidentiary hearing. (Id.).
Later in the day on June 18, 2020, Respondent filed a motion to cancel the evidentiary hearing and proceed to final judgment. (Dkt. 226). Without objectiоn from Petitioner, the Court granted Respondent‘s motion on June 22, 2020. (Dkt. 236). On June 29, 2020, the Court issued a Decision and Order granting the Petition and ordering Petitioner‘s release effective July 2, 2020, at 12:00 p.m., subject to conditions of supervision. (Dkt. 256). The Court further denied Respondent‘s motion to stay Petitioner‘s release pending appeal. (Id.).
Following entry of the Court‘s Decision and Order on June 29, 2020, Respondent filed two notices of appeal—one appealing the Court‘s rulings as to Petitioner‘s detention under
On July 13, 2020, Respondent filed before the Second Circuit a consent motion to extend the administrative stay through July 27, 2020. Motion to Extend Time, Hassoun v. Searls, No. 20-2056, Dkt. 43 (2d Cir. Jul. 13, 2020). In his consent motion, Respondent advised the Second Circuit that “[a]bsent an extraordinary or unforeseen circumstance, the government intends to remove Petitioner-Appellee from the United States by July 27, 2020.” Id. Despite having been informed that Petitioner‘s removal from the United States was imminent and having before it a consent request by Respondent to extend the administrative stay, the Second Circuit entered an Order on July 16, 2020, granting Respondent‘s motion for a stay pending appeal, and indicating that an opinion would be forthcoming. Hassoun v. Searls, No. 20-2056, Dkt. 60 (2d Cir. Jul. 16, 2020). The D.C. Circuit, on the other hand, took the more standard approach of granting the consent motion for an extension of the administrative stay after being advised that Petitioner‘s removal was forthcoming. Hassoun v. Searls, No. 20-5191, Document No. 1851462 (D.C. Cir. Jul. 13, 2020).
Petitioner was removed from the United States on July 21, 2020, thereby mooting his challenges to his ongoing detention. (Dkt. 275). Notwithstanding the fact that the issues before it had been mooted, the Second Circuit issued a published Opinion on July 30, 2020, setting forth the rationale for its Order granting Respondent‘s motion for a stay. Hassoun v. Searls, 968 F.3d 190 (2d Cir. 2020).
Following Petitioner‘s removal, Respondent moved in both the Second and D.C. Circuit‘s for dismissal of the appeals as moot, as well as for vacatur of this Court‘s holdings and judgment as moot. Motion to Dismiss and to Vacate Judgment, Hassoun v. Searls, No. 20-2056, Dkt. 82 (2d Cir. Aug. 5, 2020); Motion to Dismiss Case as Moot and to Vacate, Hassoun v. Searls, No. 20-5191, Document No. 1855258 (D.C. Cir. Aug. 5, 2020). The Second Circuit granted Respondent‘s motion in a second published Opinion issued on Septеmber 22, 2020. Hassoun v. Searls, 976 F.3d 121 (2d Cir. 2020). In accordance with the Second Circuit‘s instructions, this Court entered a Text Order on December 16, 2020, dismissing the Petition as moot to the extent that it challenged the legality of Petitioner‘s detention pursuant to
The D.C. Circuit again took a different approach from the Second Circuit. On October 13, 2020, the D.C. Circuit issued an unpublished Order dismissing the appeal as moot and, on its own motion, remanding the matter to this Court with instructions to consider Respondent‘s request for vacatur as a motion for relief from an order pursuant to
With leave of the Court (Dkt. 297), Respondent filed a supplemental brief in support of his request for vacatur on Jаnuary 4, 2021 (Dkt. 299). Petitioner filed a supplemental opposition brief on January 20, 2021. (Dkt. 301)2.
I. Petitioner‘s Motion for Sanctions3
A. Additional Background
As set forth above, on May 15, 2020, Petitioner filed a motion to compel and for sanctions. (Dkt. 164). As the Court explained in its Decision and Order dated June 18, 2020, Petitioner‘s motion to compel arose from “Respondent‘s failure to produce in discovery information calling into question [government witness Shane Ramsundar‘s [“Ramsundar”]] credibility.” (Dkt. 225 at 22). In particular, Respondent had failed to turn over documents from Ramsundar‘s immigration alien file (“A-file”) that were responsive to Petitioner‘s request for “[a]ll documents and other evidence that would tend to undermine the credibility of all witnesses/informants against Petitioner.” (Id. (citation omitted)). Petitioner identified six categories of documents that he was asking the Court to оrder Respondent to turn over. (Id. at 22-23). At oral argument on the motion to compel, Respondent‘s counsel “represented on the record that they have produced all documents responsive to the six categories of documents” at issue. (Id. at 23). The Court found that “any documents falling within the categories [Petitioner had] enumerated in his motion to compel are responsive and should be produced” and accordingly granted Petitioner‘s motion to compel. (Id. at 24).
Petitioner also sought sanctions against Respondent, on multiple bases. First Petitioner sought sanctions based on Respondent‘s failure to produce evidence reflecting negatively on Ramsundar‘s credibility. (Dkt. 190 at 4-7). Second, Petitioner sought sanctions on the basis that the government had deleted video evidence undercutting a specific claim by Ramsundar that Petitioner had threatened him in the visitation area at the BFDF. (Id. at 7-8). In its Decision and Order of June 18, 2020, the Court reserved decision on Petitioner‘s request for sanctions, but noted that it had “serious concerns” about the government‘s conduct in this matter, and that “Respondent‘s counsel‘s handling of Ramsundar‘s claim that Petitioner threatened his life” was “at the very least sloppy, and possibly intentionally misleading.” (Dkt. 225 at 24-25).
On June 29, 2020, after entering its Decision and Order granting the Petition (Dkt. 256), the Court ordered the parties to submit supplemental briefing regarding “(1) the Court‘s continuing jurisdiction over Petitioner‘s pending motion for sanctions (Dkt. 164) in light of the Court‘s disposition of the Petition and the anticipated appeal thereof and (2) any аdditional steps that are necessary in order for the Court to finally determine the issues set forth in the motion for sanctions” (Dkt. 258). The parties filed supplemental briefs on July 20, 2020 (Dkt 273; Dkt. 274), and supplemental responses on July 27, 2020 (Dkt. 278; Dkt. 280).
On August 11, 2020, the Court entered an Order requiring Respondent to file a further supplemental submission providing
B. Respondent‘s Motion to File Ex Parte and In Camera
As an initial matter, the Court grants in part Respondent‘s motion to file his additional supplemental submission ex parte and in camera. The information requested by the Court necessarily required Respondent‘s counsel to divulge privileged information, including confidential communications between government counsel and their agency clients and attorney work product. The Court has reviewed the supplemental briefing and accompanying declarations submitted by Respondent and these documents in fact consist largely of privileged information. It would not be appropriate for the Court to require that this privileged information be provided to Petitioner nor made available to the public. See In re The City of New York, 607 F.3d 923, 948 (2d Cir. 2010) (“[R]ather than require that the parties file . . . privileged documents with the court, the district court may, in the exercise of its informed discretion and on the basis of the circumstances presented, require that the party possessing the documents appear ex parte in chambers to submit the documents for in camera review by the judge[.]”); In re Grand Jury Subpoenas Dated Mar. 19, 2002 & Aug. 2, 2002, 318 F.3d 379, 386 (2d Cir. 2003) (describing submission of documents for in camera review as “a practice both long-standing and routine in cases involving claims of privilege”). Further, there is no prejudice to Petitioner in permitting the filing of these documents ex parte and in camera—briefing on the issue of sanctions is closed, and the Court ordered the supplemental briefing specifically pursuant to its own inherent authority to “sua sponte inquire into whether a party has made a false representаtion before it.” (Dkt. 281 at 2).
As to the declarations submitted by Respondent, the Court finds that these documents should remain ex parte and in camera in their entirety. However, the Court finds that certain portions of Respondent‘s supplemental brief merely recount information that is already known to Petitioner and/or do not disclose any privileged information. Accordingly, the Court has filed on the docket contemporaneously with this Decision and Order a redacted version of Respondent‘s supplemental brief.
C. Sanctions Requested by Petitioner
In his supplemental filing on July 20, 2020, Petitioner summarized the specific sanctions he is seeking, the basis for each request for sanctions, and, as to certain requested sanctions, the additional proceedings that he contends are necessary for a full adjudication. (Dkt. 274). The Court addresses each of Petitioner‘s requests for sanctions below.
1. Request for Attorney‘s Fees Under Fed. R. Civ. P. 37(a)(5)(A) in Connection with Petitioner‘s Successful Motion to Compel
Petitioner seeks to recover attorney‘s fees in connection with his successful
2. Request for Official Admonishments, Reprimands, or Censure Related to the Failure to Produce Ramsundar Credibility Evidence
Petitioner next requests that the Court impose sanctions because “[t]he government failed to disclose evidence that fatally undermined . . . Ramsundar‘s credibility and was directly responsive to Petitioner‘s discovery requests.” (Dkt. 274 at 8). Specifically, Petitioner urges the Court to issue “official admonishments, reprimands, or censure addressed to both Respondent‘s counsel and the government agents or officials responsible for the government‘s discovery failures.” (Id. at 9). Petitioner further requests that the Court оrder additional discovery and potentially hold a hearing into the discovery process in this case, in order to determine precisely what form such sanctions should take. (Id. at 9-10). Petitioner acknowledges that such actions would have to be taken pursuant to the Court‘s inherent authority to impose sanctions when a party “has acted in bad faith, vexatiously, wantonly, or for oppressive reasons.” (Id. at 10 (quoting Chambers v. NASCO, Inc., 501 U.S. 32, 45-46 (1991))).
“[T]he Supreme Court has made clear that courts should impose sanctions pursuant to their inherent authority only in rare circumstances.” Yukos Capital S.A.R.L. v. Feldman, 977 F.3d 216, 235 (2d Cir. 2020). The Court does not find that this is the rare case in which an imposition of sanctions due to its inherent authority is warranted. In this regard, the Court is persuaded by the well-reasoned decision in State v. United States Dep‘t of Commerce, 461 F. Supp. 3d 80 (S.D.N.Y. 2020), which presented strikingly similar circumstances. In рarticular, in that case, evidence came to light that “cast doubt on certain representations made, and testimony given,” by government counsel and witnesses. Id. at 86. The plaintiffs then filed a motion that, although framed as a motion for sanctions, was “really a motion for discovery first, and sanctions only second.” Id. at 88. The court declined to order such additional discovery and sanctions, explaining that “[d]iscovery serves the goals of litigation, not the other way around. And a federal court is not an investigative body charged with government oversight.” Id. at 91. The court further noted that the plaintiffs had already “prevailed on their claims and obtained all the substantive relief they sought” and “the broad scope of discovery” in that matter “was already unusual” for the type of аction. Id. As such, the court concluded “that ‘restraint and discretion’ counsel against the further expense of judicial resources in pursuit of these matters. . . .” Id. (quoting Chambers, 501 U.S. at 44).
The factors that led the State court to conclude that additional discovery was not warranted are present here. Petitioner successfully persuaded this Court to grant the Petition despite the alleged government misconduct and has been released from immigration detention. The robust discovery permitted in this case was already an anomaly 12 -
for a habeas case. Moreover, there has been a change in administration resulting in new leadership at the Department of Justice, which may complicate any inquiry into the processes that led to the discovery failures in this case. Under these circumstances, thе Court does not find it appropriate to order the additional discovery sought by Petitioner.
Further, the Court does not find that the record before it supports the imposition of sanctions under its inherent authority. Indeed, Petitioner essentially concedes as much, contending that additional discovery is necessary to determine “whether formal admonishments, reprimands, or censure are warranted here—and, if they are, to determine their content, scope, and appropriate addressees.” (Dkt. 274 at 10). The Court agrees that the record before it is not sufficient to support an imposition of sanctions pursuant to its inherent authority.
To be clear, the Court continues to be troubled by the conduct of Respondent‘s counsel in connection with this case. The Court expects all attorneys who appear before it to conduct themselves with the utmost candor, but that expectation is particularly keen when it comes to attorneys representing the United States of America. As guardians of the public interest, government attorneys have a “heightened ethical obligation that extends beyond just representing the narrow interests of [their] most direct client”—they “also must endeavor to do justice.” DaCosta v. City of New York, 296 F. Supp. 3d 569, 600 (E.D.N.Y. 2017) (internal quotation marks omitted). This obligation “applies equally to attorneys who represent the government in civil disputes.” Id. The Court is not convinced that this standard was satisfied here—instead, it appears that Respondent‘s
narrow and crabbed view of Respondent‘s discovery obligations. However, in order to support the imposition of sanctions under its inherent authority, the Court would have to make a “factual finding[] of bad faith . . . characterized by a high degree of specificity” and conclude that counsel‘s actions were “entirely without color.” Milltex Indus. Corp. v. Jacquard Lace Co., 55 F.3d 34, 38 (2d Cir. 1995) (quotation omitted). On the record before it, the Court will not make such a finding.
3. Request for Sanctions Related to Late Disclosure of Evidence Regarding Mohammed Al Abed
Petitioner‘s next request is for sanctions related to Respondent‘s late disclosure of evidence calling into question the credibility of Mohammed Al Abed (“Al Abed”), whom the government intended to call as a witness at the evidentiary hearing. As Pеtitioner explains, after the evidentiary hearing was canceled, “Respondent‘s counsel disclosed three separate documents showing that Mohammed Al Abed had insisted on benefits from the government as an explicit quid pro quo in exchange for information and testimony about [Petitioner].” (Dkt. 274 at 11). Petitioner argues that the failure to produce these documents earlier, coupled with Respondent‘s representations to the Court and Petitioner that Al Abed was afraid of reprisal from Petitioner if he testified against him, “raises grave concerns” that Respondent‘s counsel “made an intentional, strategic decision to conceal that Mr. Al Abed had demanded benefits as a condition for testifying. . . .” (Dkt. 274 at 12-13). Petitioner further notes that at oral argument on his motion to compel, Respondent‘s counsel told the Court that it had already produced “any additional documents that show Mr. Ramsundar or any other witness who sought benefits in exchange - 14 -
for testimony or has ever received such benefits at any time” (id. at 13), despite having not produced these documents related to Al Abed. Based on these facts, Petitioner seeks three forms of sanctions: (1) attorney‘s fees pursuant to
The Court declines to impose sanctions based on the late disclosure of the Al Abed documents. As to Petitioner‘s request for sanctions for the failure to timely supplement discovery responses, the Court notes that
precluding him as a witness. Accordingly, the Court does not find imposition of sanctions pursuant to
The Court further declines to hold the additional proceedings that would be necessary in order to impose the additional sanctions suggested by Petitioner. Respondent‘s counsel have provided an explanation to the Court of the failure to produce the Al Abed documеnts prior to the Court‘s issuance of its Decision and Order on June 18, 2020, and the Court finds that explanation credible. The record before the Court does not support the imposition of attorney discipline, nor does the Court find additional discovery in this regard warranted, for many of the same reasons discussed above.
4. Request for Spoliation and Other Sanctions with Regard to the Failure to Preserve Ramsundar Video Evidence
Petitioner‘s final sanctions request relates to the failure to preserve video evidence contradicting Ramsundar‘s claim that Petitioner had threatened him in the visitation area at the BFDF and the failure to timely correct the record regarding this claim. The Court‘s decision of June 18, 2020, discusses the factual background of this issue in detail. (See Dkt. 225 at 25-26). In sum, Ramsundar claimed that the threat had been made on February 27, 2020, and a sworn statement by Ramsundar to that effect was submitted to the Court on March 16, 2020, in connection with a request by Respondent for sanctions. (Id. at 25). However, on March 24, 2020, staff at the BFDF reviewed video recordings showing that Ramsundar had not been in the visitation area on that date. (Id.). These video recordings were not preserved, nor were video recordings from other days during that same week. - 16 -
Further, Respondent‘s counsel did not immediately correct the record before the Court, but instead cited to Ramsundar‘s claim in a filing on April 8, 2020. (Id. at 25-26).
“Petitioner respectfully requests that the Court issue a formal admonishment directed to Respondent‘s counsel and all relevant agencies and officials regarding their duty to preserve evidence even when it is unfavorable to their case; Petitioner also seeks attorney‘s fees for the time spent responding to [Respondent‘s] motion for sanctions based on the supposed threat.” (Dkt. 274 at 16). The Court declines to impose either of these requested sanctions.
As to Petitioner‘s request for a formal admonishment, Petitioner contends that this sanction is warranted under
As to Petitioner‘s request for attorney‘s fees, he seeks imposition of this sanction pursuant to the Court‘s inherent authority. (Dkt. 274 at 17). Again, the Court
persuaded that this is the rare case in which the imposition of such sanctions is warranted. Petitioner concedes that the current record is insufficient to determine “whether the spоliation that occurred here was the result of bad faith” and contends that “[f]urther factual inquiry—through testimony at deposition or in court—is necessary to determine how [the spoliation] occurred and whether it is attributable to bad faith.” (Id.). The Court has already explained at length why it will not order such additional discovery in this case; that explanation applies equally to this request for sanctions. While Respondent‘s counsel‘s conduct was, at a minimum, extremely careless, the current posture of this litigation does not warrant the expenditure of judicial resources urged by Petitioner. See State, 461 F. Supp. 3d at 84 (explaining that the conclusion that further inquiry into the allegation that the defendants had concealed evidence was not warranted was “based primarily on the fact that, even if Plaintiffs’ allegations are accurate, that would not have changed the outcome of this litigation”).
For all these reasons, the Court grants Petitioner‘s motion for sanctions (Dkt. 164) solely to the extent that the Court finds Petitioner is entitled to an award of attorney‘s fees under
II. Respondent‘s Request For Vacatur
The Court turns next to Respondent‘s request that the Court vacate its rulings and judgment related to Petitioner‘s detention under
Before the Court considers the merits of Respondent‘s request for vacatur, it must address certain threshold disagreements between the parties. First, Respondent argues that the Court should apply Second Circuit caselaw in resolving his motion for vacatur and, relatedly, that the Court is bound by the Seсond Circuit‘s vacatur of the Court‘s rulings as to the regulation. (Dkt. 299 at 16-17). Second, Petitioner argues that the Court is not limited to applying the Munsingwear standard, but instead, has broader discretion under
As to Respondent‘s argument regarding the applicable circuit law,
previously determined that “
In any event, the Court disagrees that a request to vacate a final judgment is merely “procedural.” As Petitioner points out, in the analogous context of patent law, where 20 -
district courts apply regional circuit law as to procedure аnd Federal Circuit law as to substance, the Federal Circuit has held that “[a] district court‘s denial of a motion to vacate its judgment . . . [under
Turning to Petitioner‘s arguments as to the applicable substantive standards, the Court agrees that it is not limited to the factors elucidated in Munsingwear. The Supreme Court itself has distinguished between Munsingwear vacatur and consideration of a
However, this does not mean that the Munsingwear inquiry is irrelevant, nor does the Court understand Petitioner to argue that this is the case. Instead, Petitioner contends that “factors beyond the ordinary Munsingwear/Bancorp factors
As noted above, Munsingwear counsels in favor of vacatur where a matter was mooted while on appeal through hаppenstance. See U.S. Bancorp, 513 U.S. at 23. Here, the parties disagree over whether Petitioner‘s removal from the United States was a matter of happenstance or was instead the product of the government‘s voluntary actions. This distinction is critical, because vacatur is generally not appropriate “in a case in which review is prevented, not by happenstance, but by the deliberate action of the losing party before the district court[.]” United States v. Garde, 848 F.2d 1307, 1310 (D.C. Cir. 1988) (citation omitted).
The unique circumstances of this case make it a close question whether Petitioner‘s removal can be characterized as happenstance or something close thereto. Certainly it is a rather large coincidence that the government was suddenly able to arrange for Petitionеr‘s removal so quickly after this Court granted the Petition. However, as the Court has previously noted, there is substantial evidence that the government had been engaged in ongoing and active efforts to remove Petitioner from the United States since his release from criminal custody. (Dkt. 256 at 3); see also Hassoun v. Sessions, No. 18-CV-586-FPG, 2019 WL 78984, at *2 (W.D.N.Y. Jan. 2, 2019) (discussing extensive efforts made 22 -
to identify a country that would accept Petitioner). Moreover, were it the case that the government could have simply arranged for Petitioner‘s removal at any time, as Petitioner seems to suggest, it is not at all clear why the government would have elected not to do so before expending the time and resources necessary to defend this case, particularly once it became clear that this Court was skeptical of the legal justification for detention. The Court cannot conclude on the instant record that the timing of Petitioner‘s removal was engineered by Respondent, rather than being the culmination of years of efforts to comply with the government‘s statutory mandate to remove Petitioner from the United States. Nor, as Petitioner suggests, does the Court find it necessary to order additional discovery as to this issue. (See Dkt. 301 at 14 n. 2 (“The Court could, if it deemed it relevant, require the government to explain in more detail the timing and substance of its efforts to find a receiving country.”)). Petitioner has cited no case in which a court ordered such discovery, and the Court does not find that the circumstances of this case counsel in favor of such action.
Moreover, even if Petitioner‘s removal wаs not pure happenstance—indeed, Respondent acknowledges that “mootness in this case was the work of several actors, including Petitioner, Respondent, and the country of removal” (Dkt. 299 at 12)—it is also not the case, as Petitioner suggests, that the result in this case was the functional equivalent of a voluntary settlement (see Dkt. 301 at 12). The government had a mandatory, statutory duty to remove Petitioner from the United States. That this result was also agreeable to Petitioner, such that he was willing to take actions necessary to facilitate it, does not mean that the government was any less bound to pursue this outcome, and its actions cannot 23 -
fairly be characterized as voluntary. See N. California Power Agency v. Nuclear Regulatory Comm‘n, 393 F.3d 223, 225 (D.C. Cir. 2004) (“Of prime consideration . . . is whether the party seeking relief from the judgment below caused the mootness by voluntary act” (quotation omitted and emphasis added)).
CONCLUSION
For the reasons discussed above, the Court: (1) grants Petitioner‘s motion for sanctions (Dkt. 164) solely to the extent that the Court finds Petitioner is entitled to an award of attorney‘s fees under
supplemental opposition to Respondent‘s request for vacatur under seal (Dkt. 300); and (5) grants Respondent‘s request for vacatur.
Petitiоner shall file his application for fees within 21 days of entry of this Decision and Order, Respondent shall file any response within 14 days after receipt of the fee application, and Petitioner shall file any reply within seven days of receipt of the response. The Court vacates as moot its prior rulings and judgment as to Petitioner‘s challenges to his detention under
SO ORDERED.
ELIZABETH A. WOLFORD
United States District Judge
Dated: March 8, 2021
Rochester, New York