United States District Court, D. Arizona
G. Campbell United States District Judge
Court previously determined that state prosecution of fraud
in the I-9 process is preempted by federal law. Doc. 623.
Because the Court's definition of the preempted field was
narrower than the field proposed by Plaintiffs in their
motion for summary judgment, and other issues remained
regarding the appropriate remedy, the Court asked the parties
to file supplemental memoranda. See Docs. 654, 672,
676. The Court heard oral arguments on March 9, 2017. For the
reasons that follow, the Court will issue a permanent
injunction against Maricopa County Sheriff Paul Penzone.
Readers are referred to the Court's previous decisions
for relevant background information. See,
e.g., Puente Arizona v. Arpaio, No.
CV-14-01356-PHX-DGC, 2016 WL 6873294 (D. Ariz. Nov. 22,
contend that Plaintiffs lack standing to pursue their claim
because they have not established a case or controversy
related to use limitation found in 8 U.S.C. §
1324a(b)(5). That section provides that the federal I-9 form
used to prove a prospective employee's right to work in
the United States, and any information contained in or
appended to the form, “may not be used” for
purposes other than enforcement of the federal employment
verification system and prosecution under certain federal
criminal statutes. This use limitation was the primary
statutory provision on which the Court relied in finding that
state prosecution of identity theft or forgery in the I-9
process is preempted. Doc. 623.
did not contest standing in their summary judgment briefs,
despite arguing that federal preemption was limited to the
express terms of § 1324a(b)(5). But the Constitution
limits the jurisdiction of the federal courts to live cases
or controversies, and objections to subject matter
jurisdiction are not waivable. The Court therefore will
consider Defendants' arguments. See Lujan v. Defs. of
Wildlife, 504 U.S. 555, 559 (1992); Henderson ex
rel. Henderson v. Shinseki, 562 U.S. 428, 434-35 (2011).
Court determined at the preliminary injunction stage that
Plaintiffs had standing to bring this suit. Puente
Arizona v. Arpaio, 76 F.Supp.3d 833, 845-53 (D. Ariz.
2015). Standing, however, must be established by the
appropriate level of proof at each stage of the litigation.
Lujan, 504 U.S. at 561. Although “the proof
required to establish standing increases as the suit
proceeds, the standing inquiry remains focused on whether the
party invoking jurisdiction had the requisite stake in the
outcome when the suit was filed.” Davis v. Fed.
Election Comm'n, 554 U.S. 724, 734 (2008) (citation
argue that “now that the Court has limited the scope of
a potential injunction to the use limitation, none of the
Plaintiffs can satisfy the constitutional minimum for
standing.” Doc. 672 at 6. But Defendants'
contention that Plaintiffs were deprived of standing by the
Court's narrowing of the preempted field is based on a
misunderstanding of the standing requirement. To establish
standing, “a plaintiff must show (1) it has suffered an
‘injury in fact' that is (a) concrete and
particularized and (b) actual or imminent, not conjectural or
hypothetical; (2) the injury is fairly traceable to the
challenged action of the defendant; and (3) it is
likely, as opposed to merely speculative, that the injury
will be redressed by a favorable decision.” Friends
of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc.,
528 U.S. 167, 180-81 (2000) (emphasis added). A plaintiff
need not prevail on the merits of its claim to establish
standing; it merely must show an actual injury from the
“challenged action of the defendant” - the
conduct that the plaintiff claims to be unlawful. Even if the
plaintiff ultimately fails to prove the challenged conduct
unlawful, it has standing to obtain that judicial decision.
The standing doctrine ensures that litigants “have a
concrete stake” in the dispute, id. at 191,
not that they will succeed in the dispute. Thus, the fact
that Plaintiffs lost on a portion of their preemption claim
does not mean that they lacked standing to bring that claim
“when the suit was filed.” Davis, 554
U.S. at 734. Courts have made clear that “a plaintiff
need not prevail on the merits before he can establish his
standing to sue.” Prison Legal News v.
Livingston, 683 F.3d 201, 212 (5th Cir. 2012).
challenged Defendants' application of Arizona identity
theft and forgery statutes to unauthorized aliens who commit
fraud in obtaining employment. Doc. 191; Doc. 623 at 10. The
challenged action included prosecution of undocumented aliens
based not only on fraud committed in the I-9 process or to
obtain employment, but also based on “any false
communication made in the employment context in order to be
consistent with the I-9 false identity, such as false tax
forms, payroll forms, or applications for employment
benefits.” Id. at 14. The relevant question is
whether, when the case was filed, Plaintiffs could show the
relevant injury from this “challenged action of the
defendant[s].” Friends of the Earth, 528 U.S.
at 180-81. For reasons stated in its earlier ruling, the
Court again finds that Plaintiffs have shown sufficient
injury from the conduct challenged in their complaint.
See Puente Arizona, 76 F.Supp.3d at 845-53.
on the fact that “a plaintiff must demonstrate standing
separately for each form of relief sought, ”
DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 352
(2006), Defendants argue that Plaintiffs' I-9 preemption
claim, on which Plaintiffs prevailed, is separate from the
broader preemption claim that gave them standing. Doc. 672 at
6-10. The Court does not agree. Plaintiffs made a single
preemption claim in their complaint: “In enacting
Section 1 of H.B. 2779 and Section 1 of H.B. 2745, amending
A.R.S. §§ 13-2008(A) and 13-2009(A), Arizona
impermissibly intruded on the federal government's
exclusive authority to regulate immigration, legislating in a
field occupied by the federal government and imposing burdens
and penalties on noncitizens not authorized by and contrary
to federal law and policy, all in violation of the Supremacy
Clause.” Doc. 191, ¶ 218. The Court cannot parse
this claim as Defendants suggest, finding one claim based on
fraud in the I-9 process and another based on other types of
fraud. The fact that the scope of the preempted conduct was
ultimately determined to be narrower than asserted in
Plaintiffs' complaint does not transform one claim into
further contend that Plaintiffs do not have standing to seek
injunctive relief. Doc. 672 at 6. This argument confuses the
question of whether there is a justiciable case or
controversy with the question of whether the evidence
supports the injunction Plaintiffs now request.
“Whether [a plaintiff] may ultimately be entitled to
the requested injunctive relief is not the same question as
whether [the plaintiff] has standing to seek injunctive
relief.” Disability Advocates, Inc. v.
Paterson, 598 F.Supp.2d 289, 310 (E.D.N.Y. 2009). It is
true that a party attempting to establish standing to seek
injunctive relief must satisfy the additional burden of
showing that he “is likely to suffer future
injury” absent the requested injunction.
Lyons, 461 U.S. at 105. But this additional burden
does not change the fact that the question of standing
focuses on the conduct challenged in the complaint. A
plaintiff has standing to seek injunctive relief if he
sufficiently alleges that he is likely to suffer a future
injury which is fairly traceable to the defendant's
challenged conduct and likely to be redressed by the
injunctive relief sought. Id. at 311. The scope of
injunctive relief warranted by the evidence is a separate
these clarifications in mind, the Court again finds that
Plaintiffs have standing. Defendants' further arguments
are unpersuasive for the reasons set forth above.
Plaintiffs have standing to proceed, Defendants argue that
the election of new Maricopa County Sheriff Paul Penzone and
the 2014 written policy change by the Maricopa County
Attorney's Office (“MCAO”) render the case
moot. Doc. 672 at 8 n.5. The Court does not agree.
case might become moot if subsequent events make it
absolutely clear that the allegedly wrongful behavior could
not reasonably be expected to recur. The heavy burden of
persuading the court that the challenged conduct cannot
reasonably be expected to start up again lies with the party
asserting mootness.” Friends of the Earth, 528
U.S. 167, 189 (internal quotation marks and citation
omitted); McCormack v. Herzog, 788 F.3d 1017, 1024
(9th Cir. 2015). “The voluntary cessation of challenged
conduct does not ordinarily render a case moot because a
dismissal for mootness would permit a resumption of the
challenged conduct as soon as the case is dismissed.”
Knox v. Serv. Employees Int'l Union, Local 1000,
567 U.S. 298 (2012). Voluntary cessation can moot
Plaintiffs' claims, however, if Defendants can meet the
“stringent standard” identified above - absolute
clarity that the wrongful behavior could not reasonably be
expected to recur. Rosebrock v. Mathis, 745 F.3d
963, 971 (9th Cir. 2014).
September 17, 2014 - three months after Plaintiffs filed this
case - County Attorney Bill Montgomery formally revised the
MCAO's written policy to prohibit reliance on the Form
I-9 as evidence in trial or for charging purposes. Doc. 589,
¶ 74; Doc. 538 at 29. Defendants allege that this policy
change is permanent and entrenched because MCAO promptly
dismissed all pending cases based on the Form I-9 and has not
filed identity theft or forgery charges based on a Form I-9
in the last 2.5 years. Doc. 672 at 15 (citing White v.
Lee, 227 F.3d 1214, 1243 (9th Cir. 2000)). They
emphasize that County Attorney Montgomery and his prosecutors
are committed to upholding the law, and assert that there
“is no evidence showing that they are likely to
disregard their sworn duties as public officials, attorneys,
prosecutors and officers of the court by charging future
identity theft/forgery cases in knowing violation of the Form
I-9 prohibition.” Id.
Court does not doubt these assertions or the County
Attorney's dedication to the law, but the burden of
establishing mootness is heavy. “[W]hile a statutory
change is usually enough to render a case moot, an executive
action that is not governed by any clear or codified
procedures cannot moot a claim.” McCormack v.
Herzog, 788 F.3d 1017, 1025 (9th Cir. 2015). Internal
policies can be altered, even by successive administrations.
Id.; Bell v. City of Boise, 709 F.3d 890,
900 (9th Cir. 2013). While the Court does not question the
good faith of Defendant Montgomery's assurances of
compliance, “promises to refrain from future
violations, no matter how well meant, are not sufficient to
establish mootness.” TRW, Inc. v. F.T.C., 647
F.2d 942, 953 (9th Cir. 1981).
more, the 2014 policy only prohibits reliance on the Form I-9
itself, not on documents submitted with the Form I-9. Doc.
612-12 at 49-50. The policy also prohibits reliance on the
Form I-9 only for trial and charging, not for other law
enforcement purposes. Thus, the policy does not address all
of the conduct preempted by federal law. The Supreme Court
has made clear that a “case becomes moot only when it
is impossible for a court to grant any effectual relief
whatever to the prevailing party.” Knox v. Serv.
Employees Int'l Union, Local 1000, 567 U.S. 298
(2012) (quotation marks and citation omitted). Because
MCAO's 2014 policy affects only a portion of the conduct
found unconstitutional by this Court, a permanent injunction
would provide Plaintiffs with additional
Court also finds that election of a new sheriff does not moot
this case. An action against a public officer in his official
capacity “does not abate” when the officer ceases
to hold office while the action is pending; instead,
“[t]he officer's successor is automatically
substituted as a party.” Fed.R.Civ.P.
25(d). A claim may become moot, however, if
“a change in parties renders the need for an injunction
against alleged future harm uncertain[.]” DuPree v.
United States, 559 F.2d 1151, 1153 (9th Cir. 1977)
(citing Spomer v. Littleton, 414 U.S. 514, 522
rely on Spomer, a civil rights action alleging a
pattern of purposeful racial discrimination by former
Alexander County State's Attorney Peyton Berbling. The
plaintiffs brought suit against Berbling in his official
capacity and sought injunctive relief. Spomer, 414
U.S. at 520. The district court dismissed a portion of the
claim on qualified-immunity grounds. Id. The Court
of Appeals reversed, and, while the case was pending before
the Supreme Court, Berbling's successor (Spomer) took
office and was substituted in the action. Id. Noting
that “there may no longer be a controversy between
respondents and any Alexander County State's Attorney
concerning injunctive relief to be applied in futuro, [the
Supreme Court] remand[ed] to the Court of Appeals for a
determination, in the first instance, of whether the former
dispute regarding the availability of injunctive relief
against the State's Attorney is now moot[.]”
Id. at 522. In doing so, the Court relied on the
fact that the “wrongful conduct charged in the
complaint is personal to Berbling, despite the fact that he
was also sued in his then capacity as State's
Attorney.” Id. at 521.
Spomer, the Ninth Circuit addressed the impact of a
change in administration on a court's ability to grant
relief. Hoptowit v. Spellman, 753 F.2d 779, 782 (9th
Cir. 1985). Hoptowit did not address mootness, but
considered whether a court must make “supplemental
findings of fact indicating that the new officer will
continue the practices of his predecessor” before
granting injunctive relief. Id. The Ninth Circuit
concluded that such findings were not necessary if “the
continuation of the dispute is a reasonable inference.”
Id. It further found that continuation of a dispute
can reasonably be inferred if the dispute is based on
“institutional practices” rather than
“idiosyncratic abuses of the particular members of the
outgoing administration.” Id. Thus, if the
challenged conduct in this case arises from an established
policy or a recurrent practice of MCSO officials, the case is
not mooted by a change in sheriff. See Am. Civil
Liberties Union of Mississippi, Inc. v. Finch, 638 F.2d
1336, 1346 (5th Cir. 1981).
Court cannot conclude that MCSO's extensive practice of
seizing and relying on Form I-9s and accompanying documents
is simply an “idiosyncratic abuse of the particular
members of the outgoing administration.”
Hoptowit, 753 F.2d at 782. Although many of the
factual allegations in this case focused on former Sheriff
Arpaio and his statements, Plaintiffs also provided evidence
of an established institutional policy. Over a period of
several years, MCSO conducted over 80 workplace raids
resulting in the arrest of over 800 employees. Doc. 520 at
59; Doc. 573, ¶ 80. MCSO regularly seized Form I-9s and
accompanying documents during these raids, and submitted
these to MCAO when referring cases for prosecution. Doc. 538
at 29; Doc. 573, ¶ 80; Doc. 525 at 12; Doc. 589 at 48.
What is more, MCSO used state grant monies from the Legal
Arizona Workers Act (“LAWA”) to fund the salaries
of a specialized unit responsible for carrying out the
workplace raids. Doc. 520, ¶ 52; Doc. 573, ¶ 52.
evidence thus supports a conclusion that MCSO's violation
of the use limitation in § 1324a(b)(5) was a policy or
practice, not merely the result of former Sheriff
Arpaio's personal conduct. Because the Court reasonably
can infer that the dispute will continue under Sheriff
Penzone, the Court cannot find that Plaintiffs' claims
against Sheriff Penzone are moot. Hoptowit, 753 F.2d
at 782; see also Ciudadanos Unidos De San Juan v. Hidalgo
Cty. Grand Jury Comm'rs, 622 F.2d 807, 822 (5th Cir.
1980). This conclusion is strengthened by the general
unwillingness of courts to find a claim moot absent a clear
indication “that the allegedly wrongful behavior could
not reasonably be expected to recur, ” Friends of
the Earth, 528 U.S. 167, 189, and the fact that Sheriff
Penzone has provided the Court with no declaration or other
evidence suggesting that he intends to discontinue use of I-9
forms and related documents.
Clarification of the Scope of Preemption.
previous order, the Court found that Defendants are preempted
“from using the Form I-9 and accompanying documents for
investigations or prosecutions of violations of the Arizona
identity theft and forgery statutes.” Doc. 623 at 2.
Reviewing relevant statutory and regulatory language,
legislative history, and other sources, the Court found that
“Congress clearly and manifestly intended to preempt .
. . application of the Arizona identity theft and forgery
statutes to unauthorized alien fraud committed in the I-9
process.” Id. at 28. The parties' recent
briefing makes clear that the Court must be more precise in
defining the scope of this preemption. Doc. 654.
most direct expression regarding the preemptive effect of the
I-9 process is found in the use limitation of §
1324a(b)(5): “A form designated or established by the
Attorney General under this subsection [the Form I-9, ] and
any information contained in or appended to such form, may
not be used for purposes other than for enforcement of this
chapter and sections 1001, 1028, 1546, and 1621 of Title
18.” 8 U.S.C. § 1324a(b)(5); Doc. 623. The
question is whether Congress intended to preempt the use of
items beyond those specifically mentioned in this use
limitation - the Form I-9 and information “contained in
or appended to such form.” Plaintiffs argue that
Congress intended to preempt the use of “information
and documents submitted by workers as part of the I-9
verification process - even if not attached to the I-9 by
employers or if separated by law enforcement from the I-9 in
the course of an investigation[.]” Id. at 6.
Plaintiffs also argue for a broad understanding of the word
“use” to include reliance on the I-9 and related
documents for any law enforcement purpose, not just to prove
a crime in court. Id. at 12. To ensure compliance
with this broadened preemptive intent, Plaintiffs would have
the Court bar Defendants from even possessing I-9s or related
documents in their files. Doc. 654 at 17.
argue that preemption is limited to the items specified in
the use limitation - the I-9 and documents physically
attached to it. Doc. 672 at 11. Defendants also argue that
“use” means more than simply possessing the
documents - that some affirmative action is required.
Id. at 13.
were to look only to the language of § 1324a(b)(5), the
scope of preemption could be narrowed to the Form I-9 and
documents physically attached to it. The use limitation
refers only to the Form I-9 and “information contained
in or appended to such form, ” and append means
“to attach, ” “affix” or “add
as a supplement or appendix.” Merriam-Webster's
Collegiate Dictionary at 56 (10th ed. 2001). But other
statutory provisions suggest that Congress had a broader
1 of the I-9 form requires a prospective employee to provide
his or her name, address, date of birth, and social security
number, and to swear under penalty of perjury that he or she
is a citizen or national of the United States, a lawful
permanent resident alien, or an alien authorized to work in
the United States. In section 2 of the form, the employer
must identify documents the employer reviewed to verify the
employee's identity and work authorization. The
regulations identify specific documents, referred to as
“List A” documents, that can be used by a
prospective employee to show both identity and authorization
to work. These include U.S. passports, permanent resident
alien cards, or federal employment authorization documents.
“List B” documents can be used to show identity,
and include items such as driver's licenses or state,
federal, or school ID cards. “List C” documents
can be used to show employment authorization, and include
social security cards and other federally- or tribally-issued
documents. 8 C.F.R. § 274a.2(b)(1)(v).
prospective employee must show the employer either a List A
document or a combination of List B and List C documents.
While an employer is not required to attach copies of List A,
B, or C documents to the Form I-9, he is required to examine
them in order to verify that the individual is authorized to
work in the United States. The employer then attests on the
Form I-9 that he has made the verification. 8 U.S.C. §
1324a(b)(1)(A). Thus, prospective employees must ...