Puente Arizona v. Arpaio

• Decision Date: 02 May 2016
• Docket Number: 15–15215.,15–15213,Nos. 15–15211,s. 15–15211
• Citation: 821 F.3d 1098
• Parties: PUENTE ARIZONA; Susan E. Frederick–Gray; Sara Cervantes Arreola, on behalf of themselves and all others similarly situated, Plaintiffs–Appellees, v. Joseph M. ARPAIO, Sheriff of Maricopa County, Arizona, in his official capacity, Defendant–Appellant, and Bill Montgomery, Maricopa County Attorney, in his official capacity; County of Maricopa, State of Arizona; State of Arizona, Defendants. Puente Arizona; Susan E. Frederick–Gray; Sara Cervantes Arreola, on behalf of themselves and all others similarly situated, Plaintiffs–Appellees, v. Joseph M. Arpaio, Sheriff of Maricopa County, Arizona, in his official capacity; Bill Montgomery, Maricopa County Attorney, in his official capacity; County of Maricopa, State of Arizona, Defendants, and State of Arizona, Defendant–Appellant. Puente Arizona; Susan E. Frederick–Gray; Sara Cervantes Arreola, on behalf of themselves and all others similarly situated, Plaintiffs–Appellees, v. Bill Montgomery, Maricopa County Attorney, in his official capacity; County of Maricopa, State of Arizona, Defendants–Appellants, and Joseph M. Arpaio, Sheriff of Maricopa County, Arizona, in his official capacity; State of Arizona, Defendants.
• Court: U.S. Court of Appeals — Ninth Circuit

821 F.3d 1098

PUENTE ARIZONA; Susan E. Frederick–Gray; Sara Cervantes Arreola, on behalf of themselves and all others similarly situated, Plaintiffs–Appellees

v.Joseph M. ARPAIO, Sheriff of Maricopa County, Arizona, in his official capacity, Defendant–AppellantandBill Montgomery, Maricopa County Attorney, in his official capacity; County of Maricopa, State of Arizona; State of Arizona, Defendants.

Puente Arizona; Susan E. Frederick–Gray; Sara Cervantes Arreola, on behalf of themselves and all others similarly situated, Plaintiffs–Appellees

v.Joseph M. Arpaio, Sheriff of Maricopa County, Arizona, in his official capacity; Bill Montgomery, Maricopa County Attorney, in his official capacity; County of Maricopa, State of Arizona, DefendantsandState of Arizona, Defendant–Appellant.

Puente Arizona; Susan E. Frederick–Gray; Sara Cervantes Arreola, on behalf of themselves and all others similarly situated, Plaintiffs–Appellees

v.Bill Montgomery, Maricopa County Attorney, in his official capacity; County of Maricopa, State of Arizona, Defendants–AppellantsandJoseph M. Arpaio, Sheriff of Maricopa County, Arizona, in his official capacity; State of Arizona, Defendants.

Nos. 15–15211

15–15213

15–15215.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Feb. 12, 2016.

Filed May 2, 2016.

Dominic Draye (argued), John R. Lopez, IV, Office of the Attorney General, Phoenix, AZ, for Defendant–Appellant State of Arizona.

Douglas L. Irish, Thomas P. Liddy, J. Kenneth Mangum, Ann Thompson Uglietta, Maricopa County Attorney's Office; Phoenix, AZ, for Defendant–Appellant William Montgomery.

Michele Marie Iafrate, Iafrate & Associates, Phoenix, AZ, for Defendant–Appellant Joseph M. Arpaio.

Jessica Vosburgh (argued) National Day Laborer Organizing Network, Hoover, AL; Cindy Pánuco (argued), Joshua Piovia–Scott, and Dan Stormer, Hadsell Stormer & Renick LLC, Pasadena, CA; Anne Lai, University of California, Irvine School of

Law—Immigrant Rights Clinic, Irvine, CA; Daniel J. Pochoda, ACLU Foundation of Arizona, Phoenix, AZ; Jessica Karp Bansal, National Day Laborer Organizing Network, Los Angeles, CA; Ray A. Ybarra Maldonado, Law Office of Ray A. Ybarra Maldonado, PLC, Phoenix, AZ, for Plaintiffs–Appellees.

Victor Stone, Russell P. Butler, Maryland Crime Victims' Resource Center Inc., Upper Marlboro, MD; Steve Twist, Arizona Voice for Crime Victims, Inc., Scottsdale, AZ, for Amici Curiae Arizona Voice for Crime Victims, Inc., National Identity Theft Victim Assistance Network, Inc., and Maryland Crime Victims Resource Center Inc.

William L. Thorpe, Spencer G. Scharff, Thorpe Shwer, P.C., Phoenix, AZ, for Amici Curiae Professors Doris Marie Provine and Cecilia Menjívar.

Joshua T. Stehlik, Nicholas Espíritu, National Immigration Law Center, Los Angeles, CA, for Amici Curiae National Immigration Law Center, et al.

Benjamin C. Mizer, Principal Deputy Assistant Attorney General, John S. Leonardo, United States Attorney, Beth S. Brinkmann, Deputy Assistant Attorney General, Mark B. Stern, Lindsey Powell, Jeffrey E. Sandberg, William E. Havemann, Attorneys, Appellate Staff, Civil Division, United States Department of Justice, Washington, D.C., for Amicus Curiae United States of America.

Appeal from the United States District Court for the District of Arizona, David G. Campbell, District Judge, Presiding. D.C. No. 2:14–cv–01356–DGC.

Before: BARRY G. SILVERMAN and RICHARD C. TALLMAN, Circuit Judges, and ROBERT S. LASNIK,^* Senior District Judge.

OPINION

TALLMAN

, Circuit Judge:

An immigrant advocacy organization, Puente Arizona, along with individual unauthorized aliens¹ and taxpayers of Maricopa County (collectively “Puente”), challenge provisions of Arizona's identity theft laws which prohibit using a false identity to obtain employment. The district court found the laws facially preempted by federal immigration policy and granted a preliminary injunction preventing the Arizona government defendants (collectively “Arizona”) from enforcing the challenged provisions. Arizona appeals that preliminary injunction, and defendant Maricopa County individually appeals its liability under 42 U.S.C. § 1983

based on Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). Because we find that the challenged laws are not preempted in all applications, we reverse the district court's holding that the laws are likely facially preempted and we vacate the district court's preliminary injunction. We also dismiss Maricopa County's Monell appeal for lack of jurisdiction. We remand for consideration of the as-applied challenge to the statutes.

I

This case began when Arizona amended its identity theft laws to reach the growing problem of employment-related identity theft within the state. Arizona passed H.B. 2779 in 2007, known as the “Legal Arizona Workers Act,” which amended Arizona's aggravated identity theft statute, A.R.S. § 13–2009

. The statute now prohibits using the information of another (real or fictitious) person “with the intent to obtain employment.” A.R.S. § 13–2009. In 2008, Arizona passed H.B. 2745, titled “Employment of Unauthorized Aliens,” which expanded Arizona's general identity theft statute to also reach employment-related identity theft. See A.R.S. § 13–2008(A).

These bills were passed, at least in part, in an effort to solve some of Arizona's problems stemming from illegal immigration. The titles of the legislation and the legislative history show an intent on the part of Arizona legislators to prevent unauthorized aliens from coming to and remaining in the state. But these bills were also aimed at curbing the growing and well-documented problem of identity theft in Arizona. Between 2006 and 2008, Arizona had the highest per-capita identity theft rates in the nation, and one third of all identity theft complaints in the state involved employment-related fraud.²

Since the laws were amended, Arizona has been aggressively enforcing employment-related identity theft. Although most of these enforcement actions have been brought against unauthorized aliens, some authorized aliens and U.S. citizens have also been prosecuted. And while many of the people prosecuted under the identity theft laws used a false identity to prove that they are authorized to work in the United States, other defendants used false documents for non-immigration related reasons. For example, Arizona has prosecuted U.S. citizens who used another individual's identity to hide a negative criminal history from a potential employer.

In response to these prosecutions, Puente challenged the amended identity theft laws as unconstitutional for violating the Supremacy Clause and the Equal Protection Clause. In an attempt to repeal the identity theft laws, Puente sued Maricopa County Sheriff Joseph Arpaio, Maricopa County Attorney Bill Montgomery, Maricopa County, and the State of Arizona. On August 8, 2014, Puente moved for a preliminary injunction solely on its facial preemption claim.

Relying on recent Supreme Court precedent, Puente argued that the federal Immigration Reform and Control Act (“IRCA”) established a “comprehensive framework” for regulating the employment of unauthorized aliens, and therefore Arizona's employment-related identity theft laws were facially preempted. See Arizona v. United States, ––– U.S. ––––, 132 S.Ct. 2492, 2504, 183 L.Ed.2d 351 (2012)

. The District Court agreed that the laws were likely unconstitutional on their face and granted the requested preliminary injunction on conflict and field preemption grounds on January 5, 2015.

Specifically, the district court enjoined Arizona “from enforcing A.R.S. § 13–2009(A)(3)

and the portion of A.R.S. § 13–2008(A) that addresses actions committed ‘with the intent to obtain or continue employment.’ ”³ In the same order, the district court also denied Maricopa County's Rule 12(b)(6) motion to dismiss under Monell. Maricopa County argued that its lack of control over Sheriff Arpaio shows that he is not a final policymaker for the County. The district court rejected that argument because control is just one factor in the Monell policymaker analysis. The County moved for reconsideration and the district court again held that the Sheriff is a policymaker.

Arizona then filed this timely interlocutory appeal challenging the district court's preliminary injunction. Maricopa County also seeks review of the district court's Monell holding. But there has been no final judgment entered to date, and the merits of this case remain pending in the district court. Importantly, the district court has yet to consider the merits of Puente's as-applied preemption challenge.

II

We turn first to the preliminary injunction. Preliminary injunctive relief is subject to “limited review” on appeal. See Flexible Lifeline Sys., Inc. v. Precision Lift, Inc., 654 F.3d 989, 993–94 (9th Cir.2011)

. A preliminary injunction should only be set aside if the district court “abused its discretion or based its decision on an erroneous legal standard or on clearly erroneous findings of fact.” United States v. Peninsula Commc'ns, Inc., 287 F.3d 832, 839 (9th Cir.2002). The district court's legal conclusions, such as whether a statute is preempted, are reviewed de novo. See

In re Korean Air Lines Co., 642 F.3d 685, 691 n. 3 (9th Cir.2011).

To obtain a preliminary injunction, the plaintiff must prove “that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008)

.⁴ Here, the district court found that Puente met its burden on each element of the Winter test. We disagree, and hold that Puente is not likely to succeed on, and has not raised serious questions about, the merits of its facial challenge. This conclusion is guided by principles of preemption jurisprudence and the...