Equal Access Educ. v. Merten

• Decision Date: 14 July 2004
• Docket Number: No. CIV.A. 103CV1113.,CIV.A. 103CV1113.
• Citation: 325 F.Supp.2d 655
• Court: U.S. District Court — Eastern District of Virginia
• Parties: EQUAL ACCESS EDUCATION, et al., Plaintiffs, v. Alan G. MERTEN, et al., Defendants.

325 F.Supp.2d 655

EQUAL ACCESS EDUCATION, et al., Plaintiffs, v. Alan G. MERTEN, et al., Defendants.

No. CIV.A. 103CV1113.

United States District Court, E.D. Virginia, Alexandria Division.

July 14, 2004.

COPYRIGHT MATERIAL OMITTED

Luis Alberto Parada, Catherine Rebekkah Rowland, Arnold & Porter, Washington, DC, for Plaintiffs/Movants.

William Henry Hurd, Troutman Sanders LLP, Deborah Love Feild, James V. Ingold, Jerry Kilgore, Alison Paige Landry, Maureen Fay Riley Matsen, Andrew Cameron O'Brion, William Eugene Thro, James D. Wright, Office of the Attorney General, Richmond, for Defendants/Respondents.

MEMORANDUM OPINION

ELLIS, District Judge.

In this case of first impression, two individual plaintiffs and one association challenge the admissions and enrollment policies of seven Virginia public post-secondary educational institutions on Supremacy Clause grounds.¹ More specifically, they allege that in implementing their policies to deny admission or enrollment to illegal aliens,² these institutions have violated the Supremacy Clause (i) by allowing state officials to make immigration status determinations; and (ii) by using standards different from those of the federal government to determine an applicant's immigration status, resulting in the misclassification of certain legal aliens as illegal aliens. At issue on cross-motions for summary judgment are threshold jurisdictional issues of standing and mootness, as well as the merits.

I.

This suit was filed on September 2, 2003 on behalf of Equal Access Education ("EAE") and five anonymous plaintiffs who brought suit under various "Doe" pseudonyms.³ By Memorandum Opinion and Order dated January 5, 2004, plaintiffs' motion to proceed by fictitious names was denied and, as a result, the individual plaintiffs were forced to identify themselves. See Doe v. Merten, 219 F.R.D. 387 (E.D.Va.2004). Plaintiffs' Second Amended Complaint, filed January 20, 2004, revealed that only two individuals ultimately chose to do so — Brian Marroquin and Fredy Vasquez.

In general terms, the Second Amended Complaint alleged that it was the admissions policy of seven public Virginia institutions — GMU, JMU, NVCC, UVA, VCU, Virginia Tech, and William & Mary — to deny admission to students based on actual or perceived illegal immigration status. Plaintiffs alleged that these admissions policies, coupled with the recommendations of the Virginia Attorney General to report students based on their perceived "illegal," "unlawful," or "undocumented" immigration status, had precluded and/or would preclude Marroquin, members of EAE, and many other qualified persons from applying to and/or attending the defendant institutions. Plaintiffs further alleged that other persons, including Vasquez and members of EAE, had applied to these institutions but were denied admission, and would continue to be denied admission, based on their actual or perceived illegal immigration status.

Based on these factual allegations, plaintiffs' complaint asserted three constitutional claims and a request for declaratory and injunctive relief. Count I alleged that, as a result of their admissions policies, defendants (i) were engaging in an impermissible regulation of immigration, (ii) were impermissibly occupying a field over which Congress had exclusive authority, and (iii) had impermissibly implemented a policy that was in conflict with the Constitution and other existing federal law on immigration, in violation of both the Supremacy Clause⁴ and the Commerce with Foreign Nations Clause⁵ of the Constitution.

Count II was a due process claim brought under 42 U.S.C. § 1983 against all defendants in which plaintiffs alleged that the enforcement or threat of enforcement of defendants' admissions policies deprived plaintiffs of their ability to apply to the defendant institutions in violation of the Due Process Clause and that defendants were committing this unconstitutional act under color of state law.

Count III sought declaratory relief pursuant to 28 U.S.C. § 2201 against all defendants regarding the constitutionality and enforceability of their admissions policies. Specifically, Count III sought a declaratory judgment that defendants' admissions policies violate the Constitution.

Defendants' motion to dismiss was ultimately decided by Memorandum Opinion and Order dated February 24, 2004. See Equal Access Education v. Merten, 305 F.Supp.2d 585 (E.D.Va.2004). Both the threshold jurisdictional questions of standing with respect to each plaintiff, as well as the merits, were addressed. Specifically, Marroquin, as an illegal alien, which he then claimed to be, was held to have standing to sue defendants because their alleged admissions policies aimed at excluding illegal aliens⁶ would cause him "imminent injury, namely denial of admission on the basis of his illegal immigration status" and "[a]n injunction preventing the implementation of these policies would redress that injury." Id. at 594 (emphasis added). Indeed, Marroquin also had standing to sue defendants UVA and William & Mary even though he had not applied for admission to their Fall 2004 class because he had "concrete plans to apply to both UVA and William & Mary in less than a year's time" and thus had "established that the injury he [would] suffer from the implementation of these institutions' alleged admissions policies [was] sufficiently imminent." Id. at 596-97.

Vasquez, an alien currently residing legally in the United States under a grant of Temporary Protective Status ("TPS"), did not have "standing to challenge admissions policies that only injure those who reside in this country illegally." Id. at 597. This did not end the analysis, however, for plaintiffs' complaint was construed to include an allegation that defendants' admissions policies deny admission to individuals they wrongfully perceive to be illegal aliens. Thus, "[a]s someone who holds TPS status, but was nonetheless allegedly denied admission to GMU and Virginia Tech based on his perceived illegal immigration status, Vasquez [had] standing to bring this claim." Id. at 597. Both Virginia Tech and GMU argued that Vasquez was not injured by the alleged admissions policies, but rather was denied admission to both schools for reasons having nothing to do with his immigration status, misperceived or otherwise. Yet, the conclusion ultimately reached was that "[a]t this early stage in the proceedings, before discovery ha[d] been completed," there existed "a genuine issue of material fact as to whether Virginia Tech's asserted reasons for denying admission to Vasquez [his GPA and SAT scores] [were] true." Id. at 598. Therefore, "at least for the time being," Vasquez had standing to challenge Virginia Tech's denial of his admission based on misperceived immigration status. Id. Similarly, a genuine dispute existed "as to whether Vasquez's transcript was received before or after the [GMU] deadline and thus whether GMU's proffered reason for denying admission to Vasquez [was] true." Id. at 599. Therefore GMU's motion to dismiss Vasquez for lack of standing was also "denied at this time." Id. Based on these rulings, EAE had associational standing because its members, Marroquin and Vasquez,⁷ would have standing to sue in their own right. Id. at 600. The Court specifically noted, however, on more than one occasion "that a motion pursuant to Rule 12(b)(1), Fed.R.Civ.P., can be brought at any time and hence plaintiffs' standing may be challenged again on summary judgment." See, e.g., id. at 598 n. 10.

Reaching the merits, the Court held that defendants were not federally pre-empted from using federal immigration standards to deny admission to illegal aliens and that "such a policy does not violate the Supremacy Clause. Thus, to the extent the complaint claim[ed] otherwise, it [was] properly subject to threshold dismissal." Id. at 608. However, if plaintiffs were able to adduce facts at summary judgment or trial that showed that "defendants are using standards different from federal standards to classify aliens as legal or illegal ... they may establish a conflict with federal law and hence a Supremacy Clause bar. Thus, dismissal on this issue [was] not warranted...." Id. Finally, both plaintiffs' foreign commerce clause claim and their due process clause claim were dismissed for the reasons stated in the memorandum opinion. Id. at 611, 614.

As a result, only one claim remains in this case at summary judgment, namely "whether defendants' admissions policies simply adopt federal standards, in which case they are not invalid under the Supremacy Clause, or instead create and apply state standards to assess the immigration status of applicants, in which case the policies may run afoul of the Supremacy Clause." Id. at 603. State standards to assess immigration status may effectively exist if federal standards are misapplied in a systemic and pervasive manner. Given the previous ruling on the motion to dismiss, however, there is no doubt that the Supremacy Clause does not prevent public post-secondary institutions from denying admission or enrollment to illegal aliens. Put another way, these institutions may, consistent with the Supremacy Clause, deny admission or enrollment to aliens unlawfully in this country.⁸

II.

The renewal of defendants' challenge to plaintiffs' standing at the summary judgment stage was contemplated in the initial ruling on the motion to dismiss and is invited by rule and established precedent because standing is a subject matter jurisdiction issue that can be revisited at any time. See Rule 12(h)(3), Fed.R.Civ.P. ("Whenever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action."); Lovern v. Edwards, 190 F.3d 648, 654 (4th Cir.1999) ("[A] federal court is obliged to dismiss a case whenever it appears the court lacks subject matter jurisdiction. Indeed, the absence of jurisdiction...