Temporary restraining order denied in case involving policy of service dogs on repat flights
Pago Pago, AMERICAN SAMOA — A federal court judge in California has denied without prejudice the ex-parte application by a local resident, identified in court documents, as Jane Doe for a temporary restraining order (TRO) an order to show cause why a preliminary injunction should not be issued against senior ASG officials involved with American Samoa’s repatriation program for local residents stranded across the U.S.
And one of the issues raised by US District Court Judge John W. Holcomb in his denial decision, deals with local policy of not allowing service animals into American Samoa, saying that the plaintiff didn’t cite the specific “policy” in her motion.
Plaintiff’s ex-parte application was filed Apr. 23rd, the same date that the complaint was filed with the US Central District Court of California, alleging that the COVID-19 Task Force rule which prohibits pets from entering the territory is discriminating against service animals and those American Samoa residents that genuinely require the assistance of Service Animals. (See Samoa News edition June 10th for details.)
Since the late March of 2020, flights between Honolulu and Pago Pago have been suspended as part of the local government’s COVID-19 restrictions to prevent the spread of the deadly pandemic to American Samoa.
In the ex-parte application, plaintiff seeks a TRO to prohibit the defendants from enforcing a rule that excludes plaintiff’s service animals from entering American Samoa.
Plaintiff has a statutorily protected right as a disabled person to be accompanied by a service animal in all areas of a public entity's facilities where members of the public, participants in services, programs or activities, or invitees, as relevant, are allowed to go, the motion application states.
Attorney for Jane Doe argued that immediate relief is necessary because this rule violates plaintiffs rights under the Americans with Disabilities Act (ADA) and prevents plaintiff, a disable person, from returning home to her family and business affairs in American Samoa like other “non-disabled” members of the public are permitted to do.
Plaintiff further argues that a TRO is in the public interest because discrimination against persons with disabilities is a violation of federal law and prevents those disabled persons from otherwise living an ordinary, productive, and economically fruitful life.
The court record shows that the plaintiff is represented by attorney Edward William O’Connell Jr., based in Lake Elsinore, California.
In a separate memorandum filed in support of the ex-parte application, O’Connell claimed that plaintiff has offered to provide defendants with documents for her service dogs — such as Service Dogs License and certifications, Medical certificates, Microchip information, Proof of 2 (two) Rabies Shots, FAVN tests (completed and sent directly to Hawaii), U.S Department of Transportation Service Animal Air Transportation Form and her U.S Department of Transportation Relief Attestation form.
“Despite being allowed to fly on a commercial flight [from U.S mainland] to Hawaii, allowed to enter Hawaii, and all of the training Plaintiff’s service animals have received, the defendants still refuse to permit service animals into the territory of American Samoa,” O’Connell claimed.
In Apr. 28th decision, Judge Holcomb explained the legal standard to justify ex-parte relief. In addition, he said this “Court’s Local Rules” require the attorney for the moving party — referring to the plaintiff:
• to make reasonable, good faith efforts orally to advise counsel for all other parties, if known, of the date and substance of the proposed ex parte application; and
• to advise the Court in writing and under oath of efforts to contact other counsel and whether any other counsel, after such advice, opposes the application.
Relatedly, a party seeking a TRO must show that it is likely to suffer imminent irreparable harm in the absence of injunctive relief, in addition to showing that: it is likely to succeed on the merits; the balance of equities tips in its favor; and an injunction is in the public interest, according to the judge.
COURT LOCAL RULES
Regarding the Court’s Local Rules, Holcomb said plaintiff’s counsel failed to comply with the notice requirements for ex parte applications.
He said the application merely states that plaintiff’s counsel provided detailed notice to the American Samoa Attorney General, whose office was served electronically with all papers before filing them with the court.
“That statement does not meet the requirements” of Local Rules and the “Court admonishes counsel henceforth to comply assiduously with all Local Rules,” the judge said.
IMMINENT IRREPARABLE HARM
“Plaintiff fails to establish how she will be irreparably prejudiced or harmed if the underlying request for injunctive relief is heard according to regular, noticed motion procedures,” Holcomb said in his five-page decision and cited previous federal court decisions in support of this issue.
“Most notably, although plaintiff describes defendants’ alleged discriminatory policy in her moving papers, plaintiff does not cite or quote that policy,” the judge said and referred to the ex-parte application, which states in part that:
• Defendants have instituted a rule that prohibits dogs from entering the territory of American Samoa.
• The Defendant’s rule does not distinguish between ordinary dogs and service animals.
“Similarly, the memorandum that purportedly prescribes the rule at issue is not included in plaintiff’s evidence,” the judge said, referring to the plaintiff’s declaration memorandum filed in support of the application.
A footnote in the decision, points out that plaintiff purports to submit the memo issued by defendants as Exhibit C to her declaration. However, Exhibit C does not contain the memo or any similar document.
“Accordingly, there is not sufficient evidence for this Court to determine whether the challenged rule risks imminent and irreparable harm,” the judge said.
In conclusion, the court “denies” plaintiffs’ instant Application to the extent that it seeks relief on an ex parte basis. Furthermore, the Court makes this Order without prejudice to plaintiff seeking injunctive relief through a regularly noticed motion.
Samoa News points out that Jane Does’ declaration filed in court is “sealed” and the redacted version available on the court’s public records does not show Exhibit C or any other Exhibit that plaintiff may have submitted to the court.
Therefore it’s unclear as to what memo that plaintiff is claiming prescribes the policy she is referring to. The Lemanu Administration’s COVID-19 declarations — since taking the helm of government on Jan. 3, 2021 — has no specific rule pertaining to the issue raised by plaintiff in her lawsuit.
The Administration’s declarations are posted the ASG website (www.americansamoa.gov).
Since the judge’s Apr. 28th decision, there have been no new filings with the federal court on this case, and the defendants are expected to file a response to the lawsuit in the coming days.
Samoa News also points out that the COVID-19 Task Force in its last meeting discussed service animals and said it was possible that it would allow such repeats — those accompanied with service dogs — on the July Repatriation flight. However, special arrangements would have to be made to accommodate such passengers in quarantine — both in Hawaii and American Samoa.