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Kassem v. Napolitano

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


July 31, 2009

NAGEEB KASSEM, ET AL., PLAINTIFFS,
v.
JANET NAPOLITANO, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Anthony W. Ishii Chief United States District Judge

ORDER ON PLAINTIFFS' OBJECTIONS TO COURT'S JULY 29, 2009 ORDER VACATING ORAL ARGUMENT

(Document #77)

On July 30, 2009, Plaintiffs filed an eight-page objection to this court's July 29, 2009 order, which pursuant to L. R. 78-230 (h)*fn1 vacated an oral argument hearing on Defendants' motion to dismiss that was set for August 3, 2009. Plaintiffs request that this court reset the oral argument hearing or in the alternative grant Plaintiffs the right to file a sur-reply. Plaintiffs argue that the court's decision to take this matter under submission without oral argument constitutes a violation of Plaintiffs' due process rights under the Fifth Amendment.

The court has reviewed Plaintiffs' objections and does not find that oral argument is a requisite element of due process or that Plaintiffs' due process rights have been violated. In fact, Plaintiffs' counsel, himself, acknowledges that the Supreme Court has held that oral argument is not required as an element of due process. See Plaintiffs' objections at page 6. Plaintiffs do not cite to any Ninth Circuit case law that holds oral argument to be a necessary requirement of due process. Rather, Plaintiffs rely on a 1964 Ninth Circuit case for the proposition that: "the opportunity to be heard orally on questions of law is not an inherent element of procedural due process."*fn2 See Plaintiffs' objections at page 7. This court agrees. Accordingly, the court denies Plaintiffs' request for the court to reset the matter for oral argument.

Moreover, in support of Plaintiffs' due process argument, Plaintiffs' counsel, Bruce Leichty, represents that he has appeared in a number of civil cases assigned to Judge Ishii in the past several years, and that in each case, Judge Ishii has dropped the hearings from the calendar and ruled against him. See Plaintiffs' objections at page 3. Mr. Leichty further asserts that "in each of those cases, (including the last time in this case when a hearing was dropped from calendar), [Mr. Leichty] has identified errors of fact or law in the subsequent decision of the court issued without benefit of oral argument, which [Mr. Leichty] believes could have been prevented by oral argument." Id. Furthermore, Plaintiffs' counsel explains that he is "a graduate of a distinguished law school (Boalt Hall at UC Berkeley) and admitted to practice before several courts of appeal and the U.S. Supreme Court, and a former extern at the 9th Circuit Court of Appeals, is an astute and principled litigator, and does not accept that he is simply always wrong, but he does allow for the possibility that judges do not always become fully engaged on a given matter." See Plaintiffs' objections at pages 3-4.*fn3 The court, however, notes that an attorney's introspective self-assessment of their astuteness and abilities plays no role in the court's decision in whether to take a matter under submission without oral argument. Moreover, where an attorney went to law school does not factor into the court's decision.

Plaintiffs' counsel seeks permission to file a sur-reply as alternative relief. Pursuant to the Local Rules, parties are not entitled to sur-replies. See L.R. 78-230. Additionally, it is not apparent to the court how helpful a sur-reply would be in this case given the extensive briefing and in light of the fact that the court has had the opportunity to familiarize itself with the facts and law of this case by reviewing four amended complaints and one complete round of motions to dismiss. Nonetheless, the court will permit Plaintiff to file a sur-reply for purposes of responding to new arguments, if any, that arose in Defendants' replies and for which Plaintiff has not had the opportunity to address.

ORDER

Accordingly, IT IS HEREBY ORDERED that Plaintiffs' request for oral argument is DENIED and Plaintiffs' request to file a sur-reply is GRANTED. Plaintiff may file a sur-reply on or by August 17, 2009.

IT IS SO ORDERED.


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