IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
STATE OF TEXAS, et al., )
)
Plaintiffs-Appellees, ) Case Number: 15-40238
)
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
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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.
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6. 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 20024
(202) 646-5172
Counsel for Judicial Watch, Inc.
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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
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Exhibit A
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APPEAL NO. 15-40238
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. 20024
(202) 646-5172
Counsel for Amicus Curiae
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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
STATE OF TEXAS, et al., )
)
Plaintiffs-Appellees, ) Case Number: 15-40238
)
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 28.2.1 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
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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
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i
TABLE OF CONTENTS
TABLE OF CONTENTS ............................................................................................ i
TABLE OF AUTHORITIES .................................................................................... ii
INTEREST OF JUDICIAL WATCH, INC. .............................................................. 1
ARGUMENT ............................................................................................................. 2
I. Appellants Did Not Provide the District
Court with the Opportunity To Rule ..................................................... 3
II. Preservation of the Status Quo is of Great
Importance When Benefits and Services
Are At-Issue .......................................................................................... 4
III. Appellants’ Argument Is
Unsupported by Facts ............................................................................ 7
CONCLUSION .......................................................................................................... 8
CERTIFICATE OF COMPLIANCE ......................................................................... 9
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ii
TABLE OF AUTHORITIES
Cases Page
Dayton Board of Education v. Brinkman, 439 U.S. 1358 (1978) .............................. 6
Hirschfeld v. Board of Elections, 984 F.2d 35 (2d Cir. 1993) ................................... 3
Houchins v. KQED, Inc., 429 U.S. 1341 (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
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iii
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
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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, well-
established 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.
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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
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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
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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, **205-210 (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
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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
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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.
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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
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Dinan, 23 Dreamers from Obama amnesty snared in criminal dragnet, The
Washington Times (Mar. 19, 2015), available at http://www.washingtontimes.com/
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 20024
(202) 646-5172
Counsel for Judicial Watch, Inc.
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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
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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
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