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Puente Arizona v. Arpaio

United States District Court, D. Arizona

March 24, 2017

Puente Arizona, et al., Plaintiffs,
Joseph M Arpaio, et al., Defendants.


          David G. Campbell United States District Judge

         The 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, 2016).

         I. Standing.

         Defendants 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.

         Defendants 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).

         The 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 omitted).

         Defendants 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).

         Plaintiffs 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.

         Relying 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 two.[1]

         Defendants 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 question. Id.

         With these clarifications in mind, the Court again finds that Plaintiffs have standing. Defendants' further arguments are unpersuasive for the reasons set forth above.

         II. Mootness.

         Even if 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.

         A. County Attorney.

         “A 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).

         On 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.

         The 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).

         What is 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 relief.[2]

         B. Sheriff.

         The 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).[3] 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 (1974)).

         Defendants 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.

         After 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).

         The 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.

         The 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.

         III. Injunctive Relief.

         A. Clarification of the Scope of Preemption.

         In its 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.

         Congress's 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.[4]

         Defendants 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.

         If one 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 intent.

         Section 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).

         A 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 ...

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