IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

Transcription

1 Case: Document: Page: 1 Date Filed: 03/24/2015 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT STATE OF TEXAS, et al., ) ) Plaintiffs-Appellees, ) Case Number: ) v. ) ) UNITED STATES OF ) AMERICA, et al., ) ) Defendants-Appellants. ) ) MOTION FOR LEAVE TO FILE AMICUS CURIAE BRIEF OF JUDICIAL WATCH, INC. IN SUPPORT OF APPELLEES OPPOSITION TO APPELLANTS EMERGENCY MOTION FOR STAY PENDING APPEAL Pursuant to Rule 29(b) of the Federal Rules of Appellate Procedure, Judicial Watch, Inc., by counsel, respectfully moves for leave to file an amicus curiae brief in support of Appellees Opposition to Appellants Emergency Motion for Stay Pending Appeal. In support thereof, Judicial Watch states as follows: MEMORANDUM OF LAW 1. Judicial Watch, Inc. ( Judicial Watch ) is a not-for-profit, educational organization that seeks to promote transparency, integrity, and accountability in government and fidelity to the rule of law. Judicial Watch regularly monitors significant developments in the courts and the law, pursues public interest litigation, and files amicus curiae briefs on issues of public concern. Judicial 1 of 21

2 Case: Document: Page: 2 Date Filed: 03/24/2015 Watch regularly files amicus curiae briefs as a means to advance its public interest mission. 2. In this instance, Judicial Watch believes Appellants emergency motion raises important public policy questions that directly impact the rule of law. First, Appellants seek relief from this Court without waiting for the District Court to rule on the motion to stay Appellants filed in that court. Second, and more importantly, Appellants fail to demonstrate why destroying 30 years of status quo and undermining duly enacted laws is necessary at this immediate date. 3. The relief Appellants seek would destroy the status quo and, in so doing, undermine the rule of law. The District Court has already found that preserving the status quo is important. This Court should not overturn that ruling at this time. 4. U.S. Supreme Court Justices Clarence Thomas and Antonin Scalia recently emphasized the importance of preserving the status quo in important constitutional cases such as this lawsuit when they objected to the denial of a motion to stay pending appeal in a same sex marriage case. 5. Judicial Watch s proposed amicus curiae brief highlights Justices Thomas and Scalia s admonition and demonstrates how their concerns are directly applicable here. The proposed brief also demonstrates how Appellants have failed to comply with Rule 8 of the Federal Rules of Appellate Procedure of 21

3 Case: Document: Page: 3 Date Filed: 03/24/ Judicial Watch s motion is timely because Judicial Watch is seeking to file its proposed amicus curiae brief within the time period permitted by the Court for Appellees to file their opposition. The proposed brief is attached as Exhibit A. WHEREFORE, Judicial Watch respectfully requests that the Court grant its motion for leave to file an amicus curiae brief and accept for filing the amicus curiae brief attached as Exhibit A. Dated: March 24, 2015 Respectfully Submitted, /s/ Paul J. Orfanedes Paul J. Orfanedes JUDICIAL WATCH, INC. 425 Third Street, S.W., Suite 800 Washington, DC (202) Counsel for Judicial Watch, Inc of 21

4 Case: Document: Page: 4 Date Filed: 03/24/2015 CERTIFICATE OF SERVICE I hereby certify that on this 24th day of March 2015, I filed the foregoing via the CM/ECF system and served the foregoing via the CM/ECF system on all counsel who are registered CM/ECF users. /s/ Paul J. Orfanedes of 21

5 Case: Document: Page: 1 Date Filed: 03/24/2015 Exhibit A 5 of 21

6 Case: Document: Page: 2 Date Filed: 03/24/2015 APPEAL NO IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT STATE OF TEXAS, et al., Plaintiffs-Appellees, v. UNITED STATES, et al., Defendants-Appellants. AMICUS CURIAE BRIEF OF JUDICIAL WATCH, INC. IN SUPPORT OF APPELLEES OPPOSITION TO APPELLANTS EMERGENCY MOTION FOR STAY PENDING APPEAL ON APPEAL FROM THE U.S. DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS BROWNSVILLE DIVISION Paul J. Orfanedes JUDICIAL WATCH, INC. 425 Third Street, S.W., Suite 800 Washington, D.C (202) porfanedes@judicialwatch.org Counsel for Amicus Curiae 6 of 21

7 Case: Document: Page: 3 Date Filed: 03/24/2015 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT STATE OF TEXAS, et al., ) ) Plaintiffs-Appellees, ) Case Number: ) v. ) ) UNITED STATES OF ) AMERICA, et al., ) ) Defendants-Appellants. ) ) SUPPLEMENTAL CERTIFICATE OF INTERESTED PERSONS The undersigned counsel of record certifies that the following listed persons and entities as described in the fourth sentence of Rule have an interest in the outcome of this case. These representations are made in order that the judges of this court may evaluate possible disqualifications or recusal. Judicial Watch, Inc., Amicus Curiae Paul J. Orfanedes, Counsel for Amicus Curiae Judicial Watch, Inc. /s/ Paul J. Orfanedes 7 of 21

8 Case: Document: Page: 4 Date Filed: 03/24/2015 CORPORATE DISCLOSURE STATEMENT Judicial Watch, Inc. is a not-for-profit, educational organization that has no parent company, and no publicly held corporation has a 10% or greater ownership interest in Judicial Watch, Inc. /s/ Paul J. Orfanedes 8 of 21

9 Case: Document: Page: 5 Date Filed: 03/24/2015 TABLE OF CONTENTS TABLE OF CONTENTS... i TABLE OF AUTHORITIES... ii INTEREST OF JUDICIAL WATCH, INC ARGUMENT... 2 I. Appellants Did Not Provide the District Court with the Opportunity To Rule... 3 II. III. Preservation of the Status Quo is of Great Importance When Benefits and Services Are At-Issue... 4 Appellants Argument Is Unsupported by Facts... 7 CONCLUSION... 8 CERTIFICATE OF COMPLIANCE... 9 i 9 of 21

10 Case: Document: Page: 6 Date Filed: 03/24/2015 TABLE OF AUTHORITIES Cases Page Dayton Board of Education v. Brinkman, 439 U.S (1978)... 6 Hirschfeld v. Board of Elections, 984 F.2d 35 (2d Cir. 1993)... 3 Houchins v. KQED, Inc., 429 U.S (1977)... 6 Nken v. Holder, 556 U.S. 418 (2009)... 3, 6 Ruiz v. Estelle, 650 F.2d 555 (5th Cir. 1981)... 3 Securities and Exchange Commission v. Dunlap, 253 F.3d 768 (4th Cir. 2001)... 3 Strange v. Searcy, 574 U.S., 2015 U.S. LEXIS 912 (Feb. 9, 2015)... 5, 6 Texas v. United States, 2015 U.S. Dist. LEXIS 18551, (S.D. Tx. Feb. 16, 2015)... 4, 5 Veasey v. Perry, 769 F.3d 890 (5th Cir. 2014)... 6 Rules Fed. R. App. P. 8(a)(2)(A)(ii)... 2 Fed. R. App. P. 29(b)... 2 Fed. R. App. P. 29(c)... 2 Miscellaneous Michael D. Shear and Julia Peterson, Administration to Try to Block Ruling That Postpones Immigration Actions, The New York Times (Feb. 20, 2015)... 1 ii 10 of 21

11 Case: Document: Page: 7 Date Filed: 03/24/2015 Press Release, Documents Reveal DHS Abandoned Illegal Alien Background Checks to Meet Amnesty Requests Following Obama s DACA, Judicial Watch, Inc. (June 11, 2013)... 7 Stephen Dinan, 23 Dreamers from Obama amnesty snared in criminal dragnet, The Washington Times (Mar. 19, 2015)... 7, 8 iii 11 of 21

12 Case: Document: Page: 8 Date Filed: 03/24/2015 INTEREST OF JUDICIAL WATCH, INC. Judicial Watch, Inc. ( Judicial Watch ) is a not-for-profit, educational organization that seeks to promote transparency, integrity, and accountability in government and fidelity to the rule of law. Judicial Watch regularly monitors significant developments in the courts and the law, pursues public interest litigation, and files amicus curiae briefs on issues of public concern. Judicial Watch regularly files amicus curiae briefs as a means to advance its public interest mission. In this instance, Judicial Watch believes Appellants emergency motion for a stay pending appeal raises important public policy questions that directly impact the rule of law. In filing their motion, Appellants disregard fundamental, wellestablished norms of appellate procedure, apparently to try to score political points. See Michael D. Shear and Julia Peterson, Administration to Try to Block Ruling That Postpones Immigration Actions, The New York Times (Feb. 20, 2015) ( The government is... sending a message to immigration advocates, many of whom have been frustrated by the Justice Department s [actions]. ). First, Appellants seek relief from this Court without waiting for the District Court to rule on the motion to stay Appellants filed in that court. Second, and more importantly, Appellants fail to demonstrate why destroying 30 years of status quo and undermining duly enacted laws is necessary at this immediate date of 21

13 Case: Document: Page: 9 Date Filed: 03/24/2015 Judicial Watch files this amicus curiae brief pursuant to Rule 29(b) of the Federal Rules of Appellate Procedure. In addition, pursuant to Rule 29(c) of the Federal Rules of Appellate Procedure, Judicial Watch, Inc. states that no counsel for a party authored this brief in whole or in part, and no counsel or party made a monetary contribution intended to fund the preparation or submission of this brief. Nor did any person other than Judicial Watch, Inc. or its counsel make a monetary contribution to its preparation or submission. ARGUMENT I. Appellants Did Not Provide the District Court With the Opportunity to Rule. Noticeably absent from Appellants emergency motion is why Appellants believe this Court should rule on its motion at this time. On February 23, 2015, Appellants moved for a stay pending appeal in the District Court. Appellees responded, and on March 9, 2015, the District Court issued an order indicating it would rule on the motion after a March 19, 2015 hearing. Nothing in the record suggests the District Court will not rule shortly. Rule 8(a)(2)(A)(ii) of the Federal Rules of Appellate Procedure, on which Appellants rely, requires that a motion for a stay pending appeal filed in the appellate court must state that, a motion having been made, the district court denied the motion or failed to afford the relief requested and state any reasons given by the district court for its action. Fed. R. App. P. 8(a)(2)(A)(ii). The of 21

14 Case: Document: Page: 10 Date Filed: 03/24/2015 District Court has not denied Appellants motion. Nor has the District Court failed to afford the relief requested. It simply has not yet had the opportunity to rule on the motion. Based on the plain language of the rule, Appellants motion should be denied for this reason alone. Similarly, this Court has held explicitly, [T]he district court should have the opportunity to rule on the reasons and evidence presented in support of a stay, unless it clearly appears that further arguments in support of the stay would be pointless in the district court. Ruiz v. Estelle, 650 F.2d 555, 567 (5th Cir. 1981). Other circuits impose the same requirement. See Hirschfeld v. Board of Elections, 984 F.2d 35, 38 (2d Cir. 1993) (The movants papers give no explanation why the instant motion for a stay pending appeal was made in the first instance to this Court. No showing of impracticability of bringing such a motion in the district court was offered in briefs or oral argument. The [movant] clearly made no effort to follow proper appellate procedure in their motion for a stay. ); see also Securities and Exchange Commission v. Dunlap, 253 F.3d 768, 774 (4th Cir. 2001). The requirement makes sense because a stay is an intrusion into the ordinary processes of administration and judicial review and is not a matter of right. Nken v. Holder, 556 U.S. 418, 427 (2009) (internal citations omitted). Appellants sole argument for seeking relief from this Court before the District Court has ruled is their view of the urgency of obtaining a stay of the of 21

15 Case: Document: Page: 11 Date Filed: 03/24/2015 preliminary injunction. Appellants Emergency Motion for Stay Pending Appeal at 8. As demonstrated below, Appellants fails to show why destroying 30 years of status quo and undermining duly enacted laws is necessary at this immediate date. Because Appellants failed to wait for the District Court to rule in the motion to stay pending appeal they filed in that court, Appellants do not satisfy the basic requirements of Rule 8 and their emergency motion must be denied. II. Preservation of the Status Quo Is of Great Importance When Benefits and Services Are At-Issue. In its February 16, 2015 decision preliminarily enjoining implementation of the Deferred Action for Parents of American and Lawful Permanent Residents ( DAPA ) program, the District Court found it was important to preserve the status quo. Texas v. U.S., 2015 U.S. Dist. LEXIS 18551, ** (S.D. Tx. Feb. 16, 2015). First, the court concluded that, even with a preliminary injunction in place, DHS may continue to prosecute or not prosecute [] illegally-present individuals, as current laws dictate. This has been the status quo for at least the last five years. Id. Second, the court found, If the preliminary injunction is denied, Plaintiffs will bear the costs of issuing licenses and other benefits once DAPA beneficiaries armed with Social Security cards and employment authorization documents seek those benefits. Id. Third, the court noted that, once DAPA beneficiaries received benefits and services from the states, there is no effective way to put[] the toothpaste back in the tube should Appellees ultimately prevail on the merits of of 21

16 Case: Document: Page: 12 Date Filed: 03/24/2015 their lawsuit. Id. In short, the District Court found that preserving the status quo is important. This Court should not overturn that ruling at this time. As this District Court found, a DAPA beneficiary not only receives a promise that he or she will not be deported, but also receives the opportunity to apply for numerous government benefits and services, such as the authority to work and a driver s license. Because granting Appellants motion would allow millions of individuals to begin applying for benefits and services they otherwise would not be eligible to receive, the recent admonition by U.S. Supreme Court Justices Thomas and Scalia about failing to preserve the status quo pending appeal is pertinent. In Strange v. Searcy, the Supreme Court declined to stay an injunction preventing the Attorney General of Alabama from enforcing several provisions of Alabama law defining marriage as a legal union of one man and one woman pending an appeal of the injunction. Consequently, Alabama was required to begin issuing marriage licenses to same-sex couples. As a result, individuals undoubtedly have begun receiving marriage licenses and resulting government benefits and services they otherwise would not be eligible to receive. If Alabama succeeds on the merits, it will be required to void same-sex marriage licenses and retract all benefits and services issued during the pendency of the appeal. In objecting to the denial of the stay, Justices Thomas and Scalia wrote: The [Supreme] Court look[ed] the other way as yet another Federal District Judge casts aside state laws without making any effort to of 21

17 Case: Document: Page: 13 Date Filed: 03/24/2015 preserve the status quo pending the Court s resolution of a constitutional question... This acquiescence may well be seen as a signal of the Court s intended resolution of that question. This is not the proper way to discharge our Article III responsibilities. And, it is indecorous for this Court to pretend that it is. 574 U.S., 2015 U.S. LEXIS 912, **3-4 (Feb. 9, 2015) (Thomas, J., dissenting). This Court should affirm the importance of preserving the status quo until a final resolution is reached on the merits. See Veasey v. Perry, 769 F.3d 890, 892 (5th Cir. 2014) ( A stay pending appeal simply suspends judicial alteration of the status quo. (quoting Nken v. Holder, 556 U.S. at 429); see also Dayton Board of Education v. Brinkman, 439 U.S. 1358, 1359 (1978) ( [T]he maintenance of the status quo is an important consideration in granting a stay. ); Houchins v. KQED, Inc., 429 U.S. 1341, 1346 (1977) ( [T]he preservation of that status quo is an important factor favoring a stay. ). If this Court were to grant Appellants motion, it would cast aside decades-old immigration laws passed by Congress and signed by the President. These laws have been in place for almost 30 years. In seeking a stay pending appeal, Appellants fail to demonstrate why destroying 30 years of status quo and undermining duly enacted laws is necessary at this immediate date. None of the reasons cited by Appellants in their motion answer the question: why today? This Court should not discharge its Article III responsibilities by acquiescing to Appellants unsubstantiated pleas. It should deny the motion of 21

18 Case: Document: Page: 14 Date Filed: 03/24/2015 III. Appellants Argument Is Unsupported by Facts. Appellants motion also should be denied because it is unsupported by facts. Appellants argue: The injunction also irreparably interferes with [Department of Homeland Security ( DHS )] s ability to protect the Homeland and secure our borders. Deferred action helps immigration officials distinguish criminals and other high priority aliens from aliens who are not priorities for removal and whose cases may additionally burden backlogged immigration courts. Rather than wasting resources determining whether encountered individuals are enforcement priorities, DHS would be able to rely on proof of deferred action to quickly confirm that they are not. Appellants Emergency Motion for Stay Pending Appeal at 17 (internal citations omitted). Through a Freedom of Information Act request, Judicial Watch obtained records showing that DHS is failing to conduct required, comprehensive background checks on aliens who apply for Appellants original deferred action program, known as Deferred Action for Childhood Arrivals ( DACA ), in order to accelerate the processing of applications. See Press Release, Documents Reveal DHS Abandoned Illegal Alien Background Checks to Meet Amnesty Requests Following Obama s DACA, Judicial Watch, Inc. (June 11, 2013). Specifically, the records reveal that DHS abandoned rigorous checks of DACA applicants backgrounds for minimal, lean and lite background checks. Id. In early March 2015, it was reported that 23 DACA beneficiaries were picked up in a nationwide sweep of criminal aliens, 15 of which are current DACA recipients. See Stephen of 21

19 Case: Document: Page: 15 Date Filed: 03/24/2015 Dinan, 23 Dreamers from Obama amnesty snared in criminal dragnet, The Washington Times (Mar. 19, 2015), available at new/2015/mar/19/23-dreamers-obama-amnesty-snared-criminal-dragnet. Because there is evidence to suggest that comprehensive backgrounds checks are not being performed, allowing the DAPA program to take effect pending Appellants appeal of the District Court s preliminary injunction is unlikely to assist DHS in distinguishing criminal and other high priority aliens from non-criminal aliens. CONCLUSION For these reasons, Appellants motion for a stay should be denied. Dated: March 24, 2015 Respectfully Submitted, /s/ Paul J. Orfanedes Paul J. Orfanedes JUDICIAL WATCH, INC. 425 Third Street, S.W., Suite 800 Washington, DC (202) Counsel for Judicial Watch, Inc of 21

20 Case: Document: Page: 16 Date Filed: 03/24/2015 CERTIFICATE OF COMPLIANCE 1. This brief complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B) because this brief contains 1,812 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii). 2. This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because this brief has been prepared in a proportionally spaced typeface using Microsoft Word 2010 in proportional Times New Roman, 14-point font. /s/ Paul J. Orfanedes of 21

21 Case: Document: Page: 17 Date Filed: 03/24/2015 CERTIFICATE OF SERVICE I hereby certify that on this 24th day of March 2015, I filed the foregoing via the CM/ECF system and served the foregoing via the CM/ECF system on all counsel who are registered CM/ECF users. /s/ Paul J. Orfanedes 21 of 21