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JESSICA PRICE (SBN 264053)jprice(aclu-sc.orgAHILAN T. ARULANANTHAM (SBN 23 784 1)aarulanantharn(aclu-sc . orgACLU FOUNDATION OF SOUTHERNCALIFORNIA1313 West Eight StreetLos Angeles, California 90017Telephone: 213.977.9500Fax: 213.977.5297STEPHEN S. SMITH (SBN 166539)S Sm ith@ GreenbergGlusker. cornLISA Y. WANG (SBN 274724)LWang(ZlGreenbergGlusker.comGREETJBERG GLUSKER FIELDS CLAMAN &MACHTINGER LLP1900 Avenue of the Stars, 21st FloorLos Angeles, California 90067-4590Telephone: 310.553.3610Fax: 310.553.0687Attorneys for PlaintiffsJOHN PAUL MORROW and CHRISTIAN DAVIS

UNITED STATES DISTRICT COURTCENTRAL DISTRICT OF CALIFORNIA

JOHN PAUL MORROW andCHRISTIAN DAVIS,ase No. 12-CV-700 DSF (RZx)Plaintiffs, PLAINTIFFS REPLY IN SUPPORTV.F THEIR MOTION FORPRELIMINARY INJUNCTIONUNITED STATES PAROLECOMMISSION; ISAAC FUL WOOD,JR., in his official cpacjy;CRANSTON J. MITCHELL, in hisofficial capacity; PATRICIA K.CUSHWA, in her official capacity;J. PATRICIA WILSON SMOOT, inher official capacity; and the UNITEDSTATES OF AMERICA,Defendants.

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1ABLE OF CONTENTS2 Page34I.NTRODUCTION ........................................................................................... 1II. THIS COURT HAS JURISDICTION UNDER SECTION 1331AND THE ADMINISTRATIVE PROCEDURE ACT..................................2A . Plaintiffs Need Not Proceed via Mandamus.........................................2B. Plaintiffs Claim is Ripe .......................................................................2C. Plaintiffs Need Not Exhaust Any Further Remedy ..............................3III. PLAINTIFFS WILL LIKELY SUCCEED ON THE MERITS .....................4

A. Congress intended the Commission to Conduct In-PersonHearings................................................................................................ 5B. This Court Should Follow Terrell, the Only Appellate CourtOpinion on this Issue ............................................................................6C. Other Statutes Confirm that Congress Intended "Appear" toMean "Appear In Person "....................................................................8

IV. PLAINTIFFS WILL SUFFER IRREPARABLE HARM, THEBALANCE OF EQUITIES TIP IN THEIR FAVOR, ANDINJUNCTIVE RELIEF IS IN THE PUBLIC INTEREST.............................9

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TABLE OF AUTHORITIESPage

CASESAs lam v. Mukasey,537 F.3d10 (2d Cir.008)...............................................................................10Chevron, USA , Inc. v. NRDC , Inc.,467.S .371984) ............................................................................................. 9El Rescate Legal Svcs., Inc. v. EOIR, 459 F.2d 7-4 2 (9th Cir.991)................................................................................Glacier Park Foundation v. Watt,663.2d 882 (9th Cir.982)................................................................................2Idaho Conservation League v. Mumma956F.2d 1508, 1516(9thCir. 1992) 3...................................................................In re Cybernetic Svcs., Inc.,252 F.3d039 (9th Cir.001).......................................................................... 6, 7INS v. Cardoza-Fonseca,480.S .211987) ............................................................................................. 9Johnson v. Reilly, 249 F.3d149 (9th Cir.003)..............................................................................Legal Aid Society ofAlameda County v. Brennan, 208 F.2d 1319ir. 1979)9th.............................................................................Salmon River Concerned Citizens v. Robertson,32 F.3d346 (9th Cir.994)................................................................................ 3Terrell v. Brewer,935.2d0159th Cir.991).............................................................................. 4Terrell v. United States,564 F.3d 442 (6th Cir. 2009)........................................................................ 1, 6, 8Tracy v. Salama ck,440 F.upp. 930 (S.D.N.Y.977)..................................................................... 1 1United States v. Horvath,492 F.3d0759th Cir.007).............................................................................. 9United States v. Navarro,169 F.3d228 (5th Cir.999).............................................................................. 10United States v. Thompson,585.3d 59 57th Cir.010).............................................................................. 10

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TABLE OF AUTHORITIES(continued) Page

STATUTES5 U.S.C. 701-06 ......................................................................................................... 25 U.S.C. 7118a(3)...................................................................................................85 U.S.C. 7702(d)(4)................................................................................................88 U.S.C. 1229a(b)(2)(A) (2000)..............................................................................98 U.S.C. 1252(b) (1996)..........................................................................................918 U.S.C. 4208(b)...................................................................................................518 U.S.C. 4208(e)...................................................................................................818 U.S.C. 4208(g)...................................................................................................528U.S.C. 1331 ..........................................................................................................2

OTHER AUTHORITIES8 C.F.R. 2.25..............................................................................................................528 C.F.R. 2.lh ............................................................................................................ 528 C.F.R. 2.12.........................................................................................................428 C.F.R. .12(d)....................................................................................................528 C.F.R. .14(b)(3).............................................................................................. 528 C.F.R. .23(a).................................................................................................. 1028C.F.R.2.24 ....................................................................................................... 1028 C.F.R. .25......................................................................................................... 528 C.F.R. .26......................................................................................................... 428 C.F.R. .26a)(1)............................................................................................... 428 C.F.R. .26(e)................................................................................................... 428 C.F.R. .73(a)................................................................................................. 1 1

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I. INTRODUCTIONPlaintiffs filed this motion to enforce a basic right that Congress plainly

provided them: the right to appear in person at their parole hearings. In response,Defendants make two basic sets of arguments, both of which are meritless. First,Defendants assert that the Court lacks jurisdiction to review Plaintiffs parole statusbecause such review is the task of the Parole Commission. But this responsefundamentally misconstrues the nature of Plaintiffs claim. Plaintiffs do not seekreview of their most recent parole determinations, nor do they seek release onparole through this suit. Rather, they ask this Court to vindicate their right toappear in person at their forthcoming parole commission hearings, as the Parole Actplainly requires. Because there is no mechanism for administrative review of thedecision to hold their hearings by video, this Court has jurisdiction to adjudicatetheir claim on the merits.

Second, Defendants claim that the parole statute is ambiguous, and that itslanguage can be read to permit hearings by video. But Defendants ignore thestatutes context, which makes clear that Congress intended for parole hearings tooccur in-person. They also fail to rebut the only federal appellate court to considerthe issue, which rejected their position, Terrell v. United States, 564 F.3d 442, 449-50 (6th Cir. 2009). Defendants assert that Terrell was wrongly decided because theexistence of a technology known as the "Picturephone" shows that Congress likelyhad videoconferencing in mind when it enacted this statute in 1976. However, thedismal history of the Picturephone proves Plaintiffs (and the Terrell courts) point:videoconferencing did not exist at the time the governing statute was enacted, andCongress did not have it in mind.

Defendants other arguments fare no better. The Court should grant thesimple but important relief that Plaintiffs seek and order Defendants to afford theman in-person parole hearing, as Congress intended.

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II. THIS COURT HAS JURISDICTION UNDER SECTION 1331 AND THEADMINISTRATIVE PROCEDURE ACTBoth the federal question statute, 28 U.S.C. 1331, and the Administrative

Procedure Act ("APA"), 5 U.S.C. 701-06, give this Court authority to decidethis case. See Dkt. 1 at 2 (citing both statutes as bases for jurisdiction). Defendantsdo not actually dispute that the Parole Act creates a right of action cognizable underSection 1331, but in any event, "[r]egardless whether a statute implies a privateright of action, administrative actions thereunder may be challenged under the APAunless they fall within the limited exceptions of that Act." Glacier ParkFoundation v. Watt, 663 F.2d 882, 885 (9th Cir. 1982).

A. Plaintiffs Need Not Proceed via MandamusDefendants argue that this case "sounds more properly in mandamus,"

because Plaintiffs allege that the Commission is denying them a right provided bystatute. Dkt. 11 at 9. However, Defendants do not argue that mandamus is theexclusive method by which Plaintiffs must proceed, and the case they cite --Johnson v. Reilly, 349 F.3d 1149, 1153 (9th Cir. 2003) -- held only that mandamuswas more proper "than habeas" as a vehicle in that case, which did not involve apre-hearing challenge to the procedures that the Commission intended to use.Unlike Johnson, this is not a challenge to a past denial of parole. Plaintiffs are notproceeding via habeas and both Section 1331 and the APA provide jurisdiction. 2

B. Plaintiffs Claim is RipeDefendants also argue that Plaintiffs claim is not ripe because the ParolePlaintiffs cite to prior filings b their docket and page number. They citeDefendants brief in opposition as "Dkt. 11 at" their opening brief as "Dkt. 6 at," and so forth.Perhaps Plaintiffs also could have brought a mandamus proceeding.However, the availability of mandamus does not make it the exclusive method ofproceeding. See Legal Aid Society ofAlameda County v. Brennan, 608 F.2d 1319,1 331 (9th Cir. 1979) (holding that judicial review of agency action was appropriateunder the APA even where relief in the nature of mandamus was "alsoappropriate.") In any event, if the Court were to conclude that mandamus was theonly proper method of proceeding, the Court should then treat Plaintiffs claim as apetitio for writ of mandamus. PLAINTIFF REPLY IN SUPPORT OF99901 -00001 / 1818269 . 1HEIR PRELIMINARY INJUNCTIONCase 2:12-cv-00700-DSF-RZ Document 15 Filed 03/05/12 Page 6 of 17 Page ID #:275


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Commission has not yet decided whether to grant them parole. Dkt. 11 at 12. ButPlaintiffs do not challenge the denial of parole. They challenge the method bywhich their next parole hearing is to be conducted. The Parole Commission hasmade clear its intent to conduct Plaintiffs next parole hearing by video. MorrowDecl. T T 15 , 18;. United States Parole Commission Docketing Schedule, availableat (last visited March 3,2012). Because Plaintiffs have alleged injury from that decision, their claim is ripe.Salmon River Concerned Citizens v. Robertson, 32 F.3d 1346, 1355 (9th Cir. 1994)citing Idaho Conservation League v. Mumma, 956 F.2d 1508 , 1516 (9th Cir. 1992)(holding that "plaintiffs need not wait to challenge a specific project when theirgrievance is with an overall plan. . ." Otherwise "the underlying programmaticauthorization would forever escape review. To the extent that the plan pre-determined the future, it represents a concrete injury that plaintiffs must, at somepoint, have standing to challenge. That point is now, or it is never.").

For similar reasons, Defendants argument that there has been no finalagency action under the APA because the Commission can still conduct in-personhearings is nonsensical. Dkt. 11 at 11-12. The Parole Commission has alreadydecided to hold Plaintiffs next parole hearing by video and permits no appeal ofthat decision. The APA requires nothing more.

C. Plaintiffs Need Not Exhaust Any Further RemedyDefendants also argue that Plaintiffs have failed to exhaust their

administrative remedies arising out of the denial of parole pursuant to the APA,Dkt. 11 at 3-4, 10-11, but that claim rests on the same confusion about the ripenessof Plaintiffs claim. As stated above, Plaintiffs do not challenge the denial ofparole, they challenge the decision to conduct their next parole proceeding byvideo. Plaintiffs claim suffers from no exhaustion-related defect, for severalreasons.

First, Defendants identify no appeal mechanism for the decision to conduct3LAINTIFF REPLY IN SUPPORT OF99901-00001/1818269.1HEIR PRELIMINARY INJUNCTION123456789101 11213C,WZ4oc.5c6171819202122232425262728Case 2:12-cv-00700-DSF-RZ Document 15 Filed 03/05/12 Page 7 of 17 Page ID #:276


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the hearing by video, and Plaintiffs are aware of none. The rules governing theNational Appeals Board, the entity that would otherwise resolve an appeal from theCommission, provide it no authority to address the legality of the video regulation.28 C.F.R. 2.26 (a)(1)(a prisoner may appeal "any decision to grant. . ., rescinddeny, or revoke parole"); 28 C.F.R. 2.26(e) (listing grounds for appeal).

Second, "[e]xhaustion is not required if (1) administrative remedies would befutile; (2) the actions of the agency clearly and unambiguously violate statutory orconstitutional rights; or (3) the administrative procedure is clearly shown to beinadequate to prevent irreparable injury." Terrell v. Brewer, 935 F.2d 1015, 1019(9th Cir. 1991). All three exceptions apply. Appeal to the Commission is futile, as ithas promulgated a regulation authorizing hearings by video. See El Rescate LegalSvcs., Inc. v. EOIR, 959 F.2d 742, 747 (9th Cir. 1991) (exhaustion futile whereagency position "already set," such that appeal "very likely" to lose). Theregulation violates the statutes unambiguous command. And the appeal proceduredoes not permit review of the decision to conduct hearings by video. 28 C.F.R. 2.26.III. PLAINTIFFS WILL LIKELY SUCCEED ON THE MERITS

With respect to the merits, Defendants scarcely address Plaintiffs primaryargument, which is that the statutory text and context make clear that Congressintended the Commission to conduct hearings in-person. Rather, Defendants arguethat videoconferencing existed in 1976 in the form of the "Picturephone" and,therefore, that Congress intended to include it within the definition of "appear" inthe statute. However, history reveals, unsurprisingly, that the Picturephone was notvideoconferencing, and that Congress almost certainly did not have it in mind when

Defendants assertion that Plaintiffs will no longer have "standing" toproceed with this claim if the Commission grants them parole is irrelevant. Dkt. 11at 12-13. Apart from the fact that it conflates standing and mootness, Defendantshave not granted Plaintiffs parole, and Defendants cannot cancel the hearings unlessthey intend to do so. U.S. Parole Commission Rules and Procedures Manual, 28C.F.R. 2.12-03 (2010), available at


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it wrote the Parole Act.A .ongress Intended the Commission to Conduct In-Person Hearings.The statutory text and context make clear that when Congress said the inmate

"shall be allowed to appear and testify on his own behalf at the paroledetermination proceeding," in 1976, it meant that the inmate shall appear in-person,in the presence of the hearing examiner. Dkt. 6-1 at 9. Most obviously, the statuterequires that "the proceeding shall be held during the next regularly scheduledproceedings by the Commission at the institution in which the prisoner isconfined," 18 U.S.C. 4208(b) (emphasis added). Defendants have no coherentresponse to this language. They appear to argue that its requirement is satisfied aslong as the prisoner is present "at the institution where [he] testifies," but this isnonsensical - the prisoner will always be present where he is testifying. See Dkt. 11at 22-23. The only coherent reading of the statutes requirement that the"proceeding" occur "at the institution" where the prisoner is confined is that it mustbe conducted in-person, not by examiners hundreds of miles away.

Defendants argument against the statutes requirement for a "personalconference," if feasible, to explain the reasons for a denial, 18 U.S.C. 4208(g),fares no better. Dkt. 11 at 23. Defendants claim that the requirement applies only ifthe meeting "is feasible," but the regulation authorizing videoconference containsno analogous requirement. See 8 C.F.R. 2.25. The Commission has given itselfauthority to conduct hearings by video even if in-person hearings are feasible.Defendants cannot explain this incongruity. In contrast, Plaintiffs interpretation of

the statute makes perfect sense of these provisions. 4Several other Parole Commission regulations are rendered nonsensical ifparole hearings may take place by video. 5ee 28 C.F.R. 2.1(h) ("The termeffective date of parole refers to a parole date that has been approved following anin-person hearing - held within nine months of such date, or following a pre-releaserecord review."); 28 C.F.R. 2.12(d) ("Consideration of disciplinary infractions incases with presumptive parole date may be deferred until the commencement of thenext in-person hearingor the frerelease record review required by 2.14(b).")(emphasis added); 28 C.F.R. 2.14(b)(3) ("A pre-release review pursuant to thissection shall not be required ian in-person hearing has been held within nine

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B.his Court Should Follow Terrell, the Only Appellate Court Opinionon this Issue.The Sixth Circuit, the only circuit court to address this issue, got it rightwhen it looked to the ordinary meaning of the words "appear and testify at" as thesewords were understood in 1976. Terrell, 564 F.3d 442 at 449-50. Defendantsacknowledge Terrell, but ask this Court to disregard it for various reasons. Dkt. 11at 17-20. Defendants arguments are meritless.

Defendants first ask the Court to ignore the understanding of the word"appear" in 1976, on the ground that an interpretive methodology tied to historywould create problems in constitutional interpretation. Dkt. 11 at 17. However,without resolving the controversial questions surrounding the relevance ofhistorical context in constitutional interpretation, it is well-settled that courts look tothe common, contemporaneous meaning of words to determine Congressionalintent in statutes. See Dkt. 6 at 9; see also In re Cybernetic Svcs., Inc., 252 F.3d1039, 1050 (9th Cir. 2001). The Sixth Circuit followed that principle in Terrell.

Importantly for present purposes, courts have held that occasional or obscurehistoric variances in the construction of a word do not render its meaningambiguous; instead, courts should look to the common contemporaneous definition.In re Cybernetic Svcs, 252 F.3d at 1050 (finding that even though "older casesdefining the term. . . [we]re sparse, and its historic meaning tended to vary," thecourt could assume that Congress intended to use "the common contemporaneousdefinition" of the word at issue).

Defendants then argue that because the so-called "Picturephone" existed in1976, Congress must have intended "appear" in the Parole Act to include "appearvia videoconference." Dkt. 11 at 18-21. However, even cursory research revealsmonths of the parole date."); U.S. Parole Commission Rules and ProceduresManual, 28 C.F.R. 2.13-02 ("The prisoner and his representative will normally beentitled to be present during the entire hearing except during deliberations of thedecision-makers, or where institutional security would be jeopardized, and/orpersonal safety of adverse witnesses might be involved) (emphasis added).

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that Defendants are grasping at straws. Videoconferencing by any reasonabledefinition did not exist in 1976, and the Picturephones dismal history only provesthe point. The inventor of the Picturephone, AT&T, refers to it as a failedexperiment. It was a completely impractical, unduly expensive, undevelopedtechnology that did not generate anything like "video." See AT&T, 1970:Picturephone, available at (last visitedMar. 5, 2012). It was a "crude" technology (that the public "didnt like") thattransmitted a single image once every two seconds. See id. That is not video. ThePicturephone provided what today we would call a slide show. In addition, theequipment was "too bulky, the controls too unfriendly, and the picture too small.[The] Picturephone was still big, expensive, and uncomfortably intrusive." Id . AsAT&T itself writes: "It was only two decades later, with improvements in speed,resolution, miniaturization, and the incorporation of [sic] Picturephone into anotherpiece of desktop equipment, the computer, that the promise of a personal videocommunication system was realized." Id . Below is a photo of the Picturephone as itexisted 1976:

Defendants have no factual support for their contention that the two-inchscreen shown above, which would have provided still images every two seconds,constituted "videoconferencing" that "had in fact been used for hearings in which

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all participating persons would still be visible to and be able to interact with eachother." Dkt. 11 at 18. Indeed, Defendants cite only three examples of the use of thePicturephone, and these were in contexts that Defendants themselves admit wereentirely experimental. That experiment failed - consigned to the dustbin of historyuntil the advent of real videoconferencing only decades later.

Given that the Picturephone was barely capable of transmitting individualimages every two seconds, Defendants claim that "videoconferencing" was "onCongress mind" in 1976 defies logic and common sense. Dkt. 11 at 20. To thecontrary, the fact that videoconferencing was a nascent, expensive, unrealistic,awkward and incomplete technology in 1976 would strongly tend to show thatCongress did not intend to include it when it used the word "appear" at that time.

The existence of Picturephone technology in 1976 provides no reason for thisCourt to reject the holding in Terre/i. Terrell correctly decided that Section 4208(e)requires an in-person hearing because Congress did not have videoconferencing inmind in 1976. 564 F.3d at 454-455. Arguing that the Picturephone justifies readingthe word "appear" to encompass videoconferencing is like arguing that theexistence of the space shuttle today justifies reading a law passed this yearregulating airline safety to apply to rocket flights to Mars in 2050.

C.ther Statutes Confirm that Congress Intended "Appear" to Mean"Appear in Person"Defendants also point to other statutes, enacted by different Congressionalsessions in provisions unrelated to the Parole Act, to argue that the use of "appearin person" or "appear in person or otherwise" in other statutes proves that "appear"in 18 U.S.C. 4208(e) means "appear via videoconference." Dkt. 11 at 16.

Defendants first cite 5 U.S.C. 7118(a)(3), but the legislative history of aneighboring provision strongly suggests that Congress did not intend "or otherwise"to encompass videoconferencing. 5 U.S.C. 7702(d)(4) was part of the same title,was passed at the time, and had the same legislative history as Section 7118(a)(3).99901-00001/1818269.1 8LAINTIFF REPLY IN SUPPORT OFTHEIR PRELIMINARY INJUNCTION12345678910z 11-0 1213- 14& 15c I61718192 0212 2232 4252 62 72 8Case 2:12-cv-00700-DSF-RZ Document 15 Filed 03/05/12 Page 12 of 17 Page ID #:281


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Congress clarified that "appear in person or otherwise" as used in Section7702(d)(4), meant to appear in person or through counsel. See House ConferenceReport No. 95-1717, 2874 (1978) (stating that employee may "appear" either "inperson, or through an attorney or representative"). Nothing in the context or historyof the other two statutes on which Defendants rely suggest any other inference forthose provisions. Dkt. 11 at 16.

Moreover, Congress has specifically modified at least one statute to permitvideoconferencing to replace in-person appearances. In 2000, Congress amendedthe statute governing removal proceedings for non-citizens to permitvideoconferencing. Compare 8 U.S.C. 1252(b) (1996) (specifying procedures forhearings, but not mentioning video) with 8 U.S.C. 1229a(b)(2)(A) (2000)(amendment specifying that proceedings may take place, inter alia "through videoconference"). To the extent other statutes provide any guidance in interpreting theParole Act, they support Plaintiffs position that Congress would have specificallyauthorized hearings by videoconference if it had intended them. 6

Defendants cite United States v. Horvath, 492 F.3d 1075 (9th Cir. 2007), as a"strikingly similar" case in support of their view, Dkt. 11 at 15, but Horvathinvolved a statute amended in 1996, not 1976, addressed the meaning of the word"submit" rather than "appear," and relied on the prevalence of submission by meansof couriers or other staff at that time, id . at 1081, whereas videoconference was notprevalent in 1976.Defendants argument that the Court should afford deference to theirinterpretation of the statute also fails. Dkt. 11 at 17. The Court should afforddeference only if, by" employing traditional tools of statutory construction, [it]ascertains that Congress had an intention on the precise question at issue."Chevron, USA, Inc. v. NRDC, Inc., 467 U. S. 837, 843 (1984). For the reasonsadvanced above, however, ordinary tools of statutory construction -- the common,contemporary of the meaning of the word appear, the context of the words at issue,and the historical context -- the meaning of the statute "is clear," and the Court neednot defer to the Parole Commissions interpretation. See, e.g., INS v. Cardoza-Fonseca, 480 U.S. 421, 446-47 (1987) (declining to apply Chevron deferencewhere traditional tools of statutory analysis showed that agencys interpretation wasincorrect). Congress has left nogg for the Court to fill, as it clearly did not intendto allow for parole hearings by video.

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IV. PLAINTIFFS WILL SUFFER IRREPARABLE HARM, THE BALANCEOF EQUITIES TIP IN THEIR FAVOR, AND INJUNCTIVE RELIEF IS INTHE PUBLIC INTERESTDefendants offer no response to Plaintiffs substantial evidence and authorityestablishing that video hearings simply cannot substitute for in-person hearings.

Dkt. 6 at 12-15 (harms include increased possibility of parole denial caused bytechnical difficulties at hearing and lack of personal access to the examiner, as wellas independent dignitary harm). Defendants offer only the declaration of Mr. Husk,but he pointedly fails to state that his information about the functioning of theparole video system is based on personal observation of any hearings, let alone alarge number of them. Dkt. 11-1, Exh. JJ at 79. That Mr. Husk can conceive of atheoretical system in which inmates could provide documents without difficulty isirrelevant; the failure of the Parole Commission in practice to provide a procedurefor Plaintiffs to pass documents back and forth during the hearing, see Davis Decl.J8, 10, Garcia Decl. J 14, 23, constitutes one of several irreparable harms thatPlaintiffs describe without rebuttal.

Defendants also argue that Plaintiffs suffer no harm because the ultimateparole decision is not made by the hearing examiner. Dkt. 11 at 20-21. However,the Parole Commissions own regulations show that the presence of the hearingexaminer matters. The examiner makes a recommendation to grant or deny parole.28 C.F.R. 2.23(a). While supervisory officials have authority to override thatrecommendation, the regulations make it harder to reverse than to affirm it. 28C.F.R. 2.23(a), (b), 2.24. The examiners ability to gauge Plaintiffs credibilityis plainly an important factor in the parole determination. See U nited States v.Navarro, 169 F.3d 228 1 239 (5th Cir. 1999) (rejecting sentencing by video becausethe "fact-finder loses the opportunity to respond to the immediacy of thedefendants human presence and the gravity of the proceeding is diminished").

See also Aslam v. Mukasey, 537 F.3d 110, 114 (2d Cir. 2008) (stating in99901-00001/1818269.10LAINTIFF REPLY IN SUPPORT OFTHEIR PRELIMINARY INJUNCTION12345678910z 11121314r)516171819202122232425262728Case 2:12-cv-00700-DSF-RZ Document 15 Filed 03/05/12 Page 14 of 17 Page ID #:283


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Moreover, if the Commissions argument were a valid basis for notconducting the hearings in person, it would also be valid for not holding the hearingat all. Congress decided that the hearing matters, even though the examiner doesnot make the ultimate decision. Congress mandated that it occur and that it occur inperson. It thereby expressed an understanding that there was a benefit to having thehearing, and having it in person, and, thus, a detriment to not having the hearing ornot having it in person.

Defendants argument that Plaintiffs have gotten better results in their morerecent hearings is also meritless and has no tendency to show, as Defendants imply,that videoconferencing helps the inmate. Dkt. 11 at 24. It is hardly surprising thatMr. Morrow saw the most progress at his last parole hearing, because he is closerthan he has ever been to his presumptive parole date (in 2016), Morrow Dccl. 17,and has "substantially observed the rules of the institution," 28 C.F.R. 2.73(a).Obviously this does not prove that the video hearing will not cause him harm ascompared to an in person hearing.

Finally, Defendants only claim of hardship or injury is that they expendextra time and money in conducting in-person parole hearings! However,Defendants undermine their own argument by continuing to hold half of theirparole hearings in person. Dkt. 11-1, Exh. JJ at 81. Moreover, they estimate theremoval hearing context that "virtual reality is rarely a substitute for actualpresence" and that "watching an event on the screen remains less than the completeequivalent of actually attending it" because "videoconferencing may render itdifficult for a factfinder in adjudicative proceedings to make credibilitydeterminations and to gauge demeanor. ) Id . That is why, even today, courts holdthat the word "ajpear" by"default" means "in person." United States v. Thompson,599 F.3d 595, 601 (7th Cir. 2010) (holding that "appear" by "default" means tinperson," and videoconferencing is the "exception to the rule" which applies onlyvhen explicitly permitted).The only argument Defendants make that the injunction does not serve thepublic interest is relegated to a footnote on the last page of their opposition. Dkt. 11at 25 n. 11. They argue that the public has an interest in "reducing federalexpenditures." Id . However, this cannot outweigh the publics interest in thegovernment following the laws passed by Congress, particularly given that most ofthose laws require the expenditure of money. It merely saving money was asignificant enough public interest to allow the government to disregard its ownlaws, then the Executive Branch could refuse to follow virtually any law.

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PLAINTIFF REPLY IN SUPPORT OF99901-00001 /1818269 . 11HEIR PRELIMINARY INJUNCTIONCase 2:12-cv-00700-DSF-RZ Document 15 Filed 03/05/12 Page 15 of 17 Page ID #:284


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entire cost savings for both Plaintiffs in this case at slightly more than $200,000,which is likely less than the cost of litigating this case. Id . at 82. This hardlyoutweighs Plaintiffs right to a fair parole hearing -- their only chance for the nexttwo years to present in person their case for release. See Tracy v. Salamack, 4 4 0 F .Supp. 930, 933 (S.D.N.Y. 1977) (holding, in parole context, that substantial loss offreedom "decisively" outweighs administrative burden).V. CONCLUSION

The Court should grant the narrow, limited injunction that Plaintiffs seek byenjoining the Commission from holding Plaintiffs upcoming hearings by video.

DATED: March 5 , 2 0 1 2REENBERG GLUSKER FIELDSCLAMAN & MACHTINGER LLPBy: STEPHEN S. SMITHAttorneys for Plaintiffs JOT-IN P AU LMORROW and CHRISTIAN DAVIS2 22 32 42 52 62 72 8

99901-00001/1818269.1 1 2LAINTIFF REPLY IN SUPPORT OFTHEIR PRELIMINARY INJUNCTION



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