Case 3:10-cv-01879-WQH -AJB Document 19 Filed 10/29/10 Page 1 of 3 1 2 3 4 5 6 7 LAURA E. DUFFY United States Attorney BETH A. CLUKEY Assistant U.S. Attorney California State Bar No. 228116 Office of the U.S. Attorney 880 Front Street, Room 6293 San Diego, California 92101-8893 Telephone: (619 557-7184 Facsimile: (619 557-5004 Email: beth.clukey@usdoj.gov Attorneys for Defendants 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CAROLYN MARTIN, v. Plaintiff, NAVAL CRIMINAL INVESTIGATIVE SERVICE ( NCIS ; MARK D. CLOOKIE, NCIS DIRECTOR; WADE JACOBSON, NCIS ACTING SPECIAL AGENT IN CHARGE, MARINE CORPS WEST FIELD OFFICE; SEAN SULLIVAN, STAFF JUDGE ADVOCATE, MARINE CORPS RECRUIT DEPOT SAN DIEGO; GERALD JERRY MARTIN, NCIS SPECIAL AGENT; RAY MABUS, SECRETARY OF THE NAVY; JOHN DOES 1-7, Defendants. UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF CALIFORNIA Case No. 10-cv-01879-WQH (AJB DEFENDANTS EX PARTE APPLICATION TO FILE A SURREPLY IN OPPOSITION TO PLAINTIFF S MOTION FOR A PRELIMINARY INJUNCTION DATE: November 1, 2010 TIME: 11:00 a.m. CTRM: 4 THE HONORABLE WILLIAM Q. HAYES NOW COMES Defendants LtCol. Sullivan in his official capacity and Ray Mabus, the Secretary of the Department of the Navy, in his official capacity ( collectively referred to as the United States and seek permission to file a surreply in opposition to Plaintiff s motion for a preliminary injunction. In support of its request, the United States sets forth the following: /// ///
Case 3:10-cv-01879-WQH -AJB Document 19 Filed 10/29/10 Page 2 of 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1. On September 9, 2010, Plaintiff filed a Complaint against Naval Criminal Investigative Service ("NCIS", Mark D. Clookie, NCIS Director; Wade Jacobson, NCIS Acting Special Agent in Charge, Marine Corps West Field Office; Sean Sullivan, Staff Judge Advocate, Marine Corps Recruit Depot San Diego; Gerald Jerry Martin, NCIS Special Agent; and, Ray Mabus, Secretary of the Navy. 1/ (Doc. #1. 2. On September 16, 2010, Plaintiff filed a request for a preliminary injunction against the United States. (Doc. #6. Plaintiff seeks to enjoin the Acting Commander of Marine Corps Recruit Depot ( MCRD San Diego from enforcing his military order debarring her from most portions of the onboard Law Center. 3. On October 18, 2010, the United States timely filed its opposition to Plaintiff s preliminary injunction request. The Court granted Plaintiff until October 28, 2010, by which to file her reply brief. (Docket #14. Plaintiff timely filed her reply brief. 4. On October 27, 2010, the Command at MCRD San Diego learned that a civilian attempted entry into the Law Center (Building 12 under false pretenses, either at the behest of Plaintiff or her attorney, to observe the layout and security at Building 12. The attempted unauthorized entry was related to this case. 5. In its surreply, attached to this application as Exhibit A, the United States has addressed Plaintiff s and her attorney s involvement in this subterfuge and blatant disregard for the Acting Commanding Officer s debarment Order. The United States believes the Court should hear these facts before ruling on Plaintiff s motion for a preliminary injunction, for two reasons: (1 the facts support the United States position, that MCRD San Diego is not a public place but, rather, is a closed military base; and, (2 these actions lend additional support for the Acting Commanding General s justification to the extent any is needed for the debarment Order. In short, these new developments justify good cause to allow the filing of a surreply. /// 26 27 28 1/ Plaintiff also sues John Does 1-7. The United States does not represent these unnamed parties. 2 Def s Ex Parte Application to File Surreply 10cv1879(WQH
Case 3:10-cv-01879-WQH -AJB Document 19 Filed 10/29/10 Page 3 of 3 1 2 3 4 5 6 7 8 6. The proper procedure by which to file a surreply is to request leave to file the brief. See Heffelfinger v. Electronic Data Sys. Corp., 580 F. Supp. 2d 933, 966 n.116 (C.D. Cal. 2008. A proper basis upon which to allow the filing of a surreply is to give a party an opportunity to address new facts or arguments occurring after the party s brief was filed. Hill v. England, No. CVF05869RECTAG, 2005 WL 3031136, at *1 (E.D. Cal. Nov. 8, 2005. WHEREFORE, the United States respectfully requests leave to file the surreply attached to this application as Exhibit A, which addresses only the new developments discussed above and does not rehash arguments raised in its opposition. 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DATED: October 29, 2010 Respectfully submitted, LAURA E. DUFFY United States Attorney s/ Beth A. Clukey BETH A. CLUKEY Assistant United States Attorney Attorneys for Defendants Email: beth.clukey@usdoj.gov 3 Def s Ex Parte Application to File Surreply 10cv1879(WQH
Case 3:10-cv-01879-WQH -AJB Document 19-1 Filed 10/29/10 Page 1 of 25 EXHIBIT A
Case 3:10-cv-01879-WQH -AJB Document 19-1 Filed 10/29/10 Page 2 of 25 1 2 3 4 5 6 7 LAURA E. DUFFY United States Attorney BETH A. CLUKEY Assistant U.S. Attorney California State Bar No. 228116 Office of the U.S. Attorney 880 Front Street, Room 6293 San Diego, California 92101-8893 Telephone: (619 557-7184 Facsimile: (619 557-5004 Email: beth.clukey@usdoj.gov Attorneys for Defendants 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CAROLYN MARTIN, v. Plaintiff, NAVAL CRIMINAL INVESTIGATIVE SERVICE ( NCIS ; MARK D. CLOOKIE, NCIS DIRECTOR; WADE JACOBSON, NCIS ACTING SPECIAL AGENT IN CHARGE, MARINE CORPS WEST FIELD OFFICE; SEAN SULLIVAN, STAFF JUDGE ADVOCATE, MARINE CORPS RECRUIT DEPOT SAN DIEGO; GERALD JERRY MARTIN, NCIS SPECIAL AGENT; RAY MABUS, SECRETARY OF THE NAVY; JOHN DOES 1-7, Defendants. UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF CALIFORNIA Case No. 10-cv-01879-WQH (AJB DEFENDANTS SURREPLY IN OPPOSITION TO PLAINTIFF S MOTION FOR A PRELIMINARY INJUNCTION DATE: November 1, 2010 TIME: 11:00 a.m. CTRM: 4 THE HONORABLE WILLIAM Q. HAYES I. INTRODUCTION On October 27, 2010, Plaintiff and her attorney attempted to deceitfully gain entry to MCRD San Diego s Law Center. They blatantly violated the Acting Commanding General s debarment order, which serves only to reinforce his decision. They have evidenced a complete lack of respect for the military regulations which mandate the security requirements of the MCRD Law Center and Recruit Depot as a USMC/DoD Installation.
Case 3:10-cv-01879-WQH -AJB Document 19-1 Filed 10/29/10 Page 3 of 25 1 2 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 II. FACTS On October 27, 2010, Charles Williams, a civilian, attempted to gain entry into MCRD s Law Center. (Ex. 1, Williams Stmt., 2. He went there at the behest of Plaintiff s attorney. (Id. Plaintiff s attorney asked Mr. Williams to observe the layout of the building and its new security procedures. (Id. 3. Mr. Williams thought MCRD s security procedures were tied to information necessary to this litigation. (Id. 2. Mr. Williams had not been to the Law Center since the addition of the security window, metal detector and new security system for screening visitors. (Id. When Mr. Williams arrived at the Law Center, he did not answer truthfully to the Marine, LCPL Qureshi, at the counter. Per existing safety procedures, LCPL Qureshi asked Mr. Williams why he wanted access to the building. (Ex. 2, Qureshi Decl., p.1. Mr. Williams said he was there to speak to Capt. Grey; when asked why he wanted to speak with him, Mr. Williams said he was a witness for Capt. Grey. (Id. LCPL Qureshi, believing Mr. Williams, escorted him to Capt. Grey s office. LCPL Qureshi escorted him because, per regulations, all non-office of the Staff Judge Advocate ( OSJA personnel must be escorted to their destination. (Id. While escorting him through the Law Building, LCPL Qureshi perceived Mr. Williams behavior as odd because of the way he was acting. (Id. p.2. LCPL Qureshi s assessment of Mr. Williams behavior was based on his experience serving as Ground Security Forces Marine. Per regulations, LCPL Qureshi did not depart until Capt. Grey told him to let the visitor in. Later, Capt. Grey confirmed that Mr. Williams was not, in fact, a witness for him. (Ex. 3, email fr. Capt. Grey to Maj. Houtz, dated Oct. 28, 2010, 1327. Capt. Grey knew the true nature of Mr. Williams visit to the Law Center. (Ex. 3. He had received a telephone call from Plaintiff s attorney, during which the attorney asked Capt. Grey to sign a statement describing the layout and security of the building. Capt. Grey declined to do so. (Id. Thereafter, Mr. Williams called and left a message, stating he would meet with Capt. Grey the morning of October 27. Before his arrival, Capt. Grey left a message stating that Mr. Williams had to go through Major Keske. (Id. Thus, when Mr. Williams appeared at Capt. Grey s office, he escorted him to Major Keske s office. /// 2 Def s Ex Parte Application to File Surreply 10cv1879(WQH
Case 3:10-cv-01879-WQH -AJB Document 19-1 Filed 10/29/10 Page 4 of 25 1 2 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 Mr. Williams told Major Keske he wanted a tour of the office. (Ex. 4, Keske Aff., p.1. When asked why, he said he wanted to look at the building because Plaintiff was a friend and asked him to. (Id. After Major Keske directly asked him whether he was at the base on official business, to which he said no, Major Keske escorted him off base. Major Keske is aware of a criminal investigation involving Plaintiff and knows of this lawsuit as well. MCRD San Diego is not an open base. Rather, anyone attempting to gain entry to the base must supply proper identification upon demand. (Ex. 5, Depot Order P5400.29C, Ch. 4, 4001, p.4-3. Visitors must have an official military sponsor prior to being allowed onboard; the general public is not authorized unless specifically authorized by the Commanding General. (Id. 4005. Anyone who enters the base in violation of the regulations may be charged with trespassing. (Id. 4006. A visitor whose actions are prejudicial to the good order and discipline of the Depot is considered undesirable and will not be permitted entry to the station. (Id. 4007. III. ANALYSIS This new development is relevant to Plaintiff s request for injunctive relief for three reasons. First, the Acting Commanding General issued the debarment order because he does not trust Plaintiff. Her most recent subterfuge shows her propensity for dishonesty and further supports his decision. Second, she set in motion a series of actions that triggered the MCRD s security policies and procedures, the existence of which Plaintiff has challenged. Plaintiff deployed underhanded tactics in an attempt to gain entry because she knows MCRD is a closed base. Third, the lengths to which Plaintiff will go to gain access to MCRD exemplifies why the Commanding General must have unfettered discretion to bar civilians from a military installment. The safety of the base is of paramount importance to commanding officers. Based on their military experience, they are uniquely qualified to evaluate and decide who is prejudicial to the good order and discipline of the Depot, who should be allowed entry and who should not. /// /// /// 3 Def s Ex Parte Application to File Surreply 10cv1879(WQH
Case 3:10-cv-01879-WQH -AJB Document 19-1 Filed 10/29/10 Page 5 of 25 1 2 3 4 5 6 IV. CONCLUSION Plaintiff and her attorney engaged in underhanded tactics to gain access to MCRD s Law Center to learn about its layout and security systems, apparently to support arguments made in their reply brief. They used this Court to evade the Acting Commanding General s order, essentially securing a preliminary injunction without the Court s permission. Plaintiff s most recent behavior further undermines any claimed likelihood of prevailing on the merits, and her request should be denied. 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DATED: October 29, 2010 Respectfully submitted, LAURA E. DUFFY United States Attorney s/ Beth A. Clukey BETH A. CLUKEY Assistant United States Attorney Attorneys for Defendants Email: beth.clukey@usdoj.gov 4 Def s Ex Parte Application to File Surreply 10cv1879(WQH
Case 3:10-cv-01879-WQH -AJB Document 19-1 Filed 10/29/10 Page 6 of 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 LAURA E. DUFFY United States Attorney BETH A. CLUKEY Assistant U.S. Attorney California State Bar No. 228116 Office of the U.S. Attorney 880 Front Street, Room 6293 San Diego, California 92101-8893 Telephone: (619 557-7184 Facsimile: (619 557-5004 Email: beth.clukey@usdoj.gov Attorneys for Defendants CAROLYN MARTIN, v. Plaintiff, NAVAL CRIMINAL INVESTIGATIVE SERVICE ( NCIS ; MARK D. CLOOKIE, NCIS DIRECTOR; WADE JACOBSON, NCIS ACTING SPECIAL AGENT IN CHARGE, MARINE CORPS WEST FIELD OFFICE; SEAN SULLIVAN, STAFF JUDGE ADVOCATE, MARINE CORPS RECRUIT DEPOT SAN DIEGO; GERALD JERRY MARTIN, NCIS SPECIAL AGENT; RAY MABUS, SECRETARY OF THE NAVY; JOHN DOES 1-7, Defendants. UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF CALIFORNIA Case No. 10-cv-01879-WQH (AJB TABLE OF EXHIBITS TO SURREPLY DATE: November 1, 2010 TIME: 11:00 a.m. CTRM: 4 THE HONORABLE WILLIAM Q. HAYES Exhibit 1 Declaration of Charles Williams Pages: 01-02 Exhibit 2 Sworn Statement of LCPL Qureshi Pages: 03-05 Exhibit 3 Email fr. Capt. Grey Pages: 06-08 Exhibit 4 Aff. of Maj. Keske Pages: 09-11 Exhibit 5 MCRD-SD Base Order P5400.29C, Ch. 4 Pages: 12-18 27 28
Case 3:10-cv-01879-WQH -AJB Document 19-1 Filed 10/29/10 Page 7 of 25 1 2 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 DATED: October 29, 2010 Respectfully submitted, LAURA E. DUFFY United States Attorney s/ Beth A. Clukey BETH A. CLUKEY Assistant United States Attorney Attorneys for Defendants Email: beth.clukey@usdoj.gov 2 Table of Exhibits 10cv879(WQH
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Case 3:10-cv-01879-WQH -AJB Document 19-2 Filed 10/29/10 Page 1 of 1 1 2 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA 3 4 5 6 7 8 9 10 11 12 13 14 CAROLYN MARTIN, v. Plaintiff, NAVAL CRIMINAL INVESTIGATIVE SERVICE ( NCIS ; MARK D. CLOOKIE, NCIS DIRECTOR; WADE JACOBSON, NCIS ACTING SPECIAL AGENT IN CHARGE, MARINE CORPS WEST FIELD OFFICE; SEAN SULLIVAN, STAFF JUDGE ADVOCATE, MARINE CORPS RECRUIT DEPOT SAN DIEGO; GERALD JERRY MARTIN, NCIS SPECIAL AGENT; RAY MABUS, SECRETARY OF THE NAVY; JOHN DOES 1-7, Defendants. IT IS HEREBY CERTIFIED THAT: Case No. 10-cv-01879-WQH (AJB CERTIFICATE OF SERVICE 15 16 17 18 19 20 I, the undersigned, am a citizen of the United States and am at least eighteen years of age. My business address is 880 Front Street, Room 6293, San Diego, California 92101-8893. I am not a party to the above-entitled action. I have caused service of : DEFENDANTS EX PARTE APPLICATION TO FILE A SURREPLY IN OPPOSITION TO PLAINTIFF S MOTION FOR A PRELIMINARY INJUNCTION, WITH ATTACHMENT to the following ECF participants: 21 22 23 24 John David Blair-Loy ACLU Foundation of San Diego and Imperial Counties P.O. Box 87131 San Diego, CA 92138 dblairloy@aclusandiego.org Sean Connor Riordan ACLU Foundation of San Diego & Imperial Counties P.O. Box 87131 San Diego, CA 92138 sriordan@aclusandiego.org 25 26 27 28 I declare under penalty of perjury that the foregoing is true and correct. Executed on October 29, 2010. s/ Beth A. Clukey Beth A. Clukey