(corrected) puente ninth circuit pfreb_filed (1)

No. 15-15211 No. 15-15213 No. 15-15215

IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

PUENTE ARIZONA, ET AL.,

Plaintiffs-Appellees,

v.

JOSEPH M. ARPAIO, ET AL.,

Defendants-Appellants.

On Appeal From the United States District Court for the District of Arizona

Case No. 2:14-CV-01356 The Honorable David G. Campbell United States District Court Judge

PETITION FOR PANEL REHEARING AND

REHEARING EN BANC

Erwin Chemerinsky Anne Lai University of California, Irvine School of Law 401 E. Peltason Dr. Irvine, CA 92697 Telephone: (949) 824-9894 Facsimile: (949) 824-2747 [email protected] [email protected]

Jessica Myers Vosburgh National Day Laborer Organizing Network 2104 Chapel Hill Rd. Birmingham, AL 35216 Telephone: (215) 317-1481 [email protected]

Attorneys for Plaintiffs-Appellees PUENTE ARIZONA, ET AL.,

Case: 15-15211, 05/16/2016, ID: 9978923, DktEntry: 127-2, of 53

Jessica Karp Bansal Emilou MacLean National Day Laborer Organizing Network 675 S. Park View St., Ste. B Los Angeles, CA 90057 Telephone: (213) 380-2214 [email protected] [email protected]

Cindy Pánuco Joshua Piovia-Scott Dan Stormer Hadsell Stormer & Renick LLP 127 N. Fair Oaks Ave., Ste. 204 Pasadena, CA 91103 Telephone: (866) 457-2590 [email protected] [email protected] [email protected]

Daniel J. Pochoda ACLU Foundation of Arizona 3707 N. 7th St., Ste. 235 Phoenix, AZ 85014 Telephone: (602) 650-1854 [email protected]

Ray A. Ybarra Maldonado Law Office of Ray A. Ybarra Maldonado, PLC 2701 E. Thomas Rd., Ste. A Phoenix, AZ 85016 Telephone: (602) 910-4040 [email protected]

Attorneys for Plaintiffs-Appellees PUENTE ARIZONA, ET AL.,


i

TABLE OF CONTENTS

Page(s)

TABLE OF AUTHORITIES ...................................................................... ii INTRODUCTION AND RULE 35(B)(1) STATEMENT ............................ 1 ARGUMENT ............................................................................................... 3

I. The Panel Opinion Conflicts with Circuit Precedents on the Application of Salerno .............................................................. 3

II. The Panel Opinion Nullifies the Supreme Court's "Purpose"

and "Effects" Analysis and Creates a Novel "Exclusive Impacts" Test ............................................................................ 8

III. The Panel Unjustifiably Fails to Consider a Narrowed

Injunction in the Alternative ................................................. 14 CONCLUSION .......................................................................................... 16


ii

TABLE OF AUTHORITIES

Page(s)

CASES Ayotte v. Planned Parenthood of N. New England 546 U.S. 320 (2006) .................................................................... 14, 15 Chamber of Commerce of U.S. v. Brown 554 U.S. 60 (2008) .............................................................................. 8 Citizens United v. Federal Election Commission 558 U.S. 310 (2010) ...................................................................... 7, 15 City of Los Angeles, California v. Patel,

135 S. Ct. 2443 (2015) ……………………………………………...….. 7 English v. General Electric Co. 496 U.S. 72 (1999) .............................................................................. 8 Exxon Corp. v. Hunt 475 U.S. 355 (1986) .................................................................... 15, 16 Gade v. National Solid Wastes Management Association 505 U.S. 88 (1992) .................................................................. 8, 10, 12 Garner v. Memphis Police Department 710 F.2d 240 (6th Cir. 1985) ........................................................... 14 Haywood v. Drown 556 U.S. 729 (2009) .......................................................................... 14 Hughes v. Oklahoma 441 U.S. 322 (1979) .......................................................................... 10 John Doe No. 1 v. Reed 561 U.S. 186 (2010) .......................................................................... 15


iii

Lopez-Valenzuela v. Arpaio 770 F.3d at 789 (9th Cir. 2014) ............................................... passim Lozano v. City of Hazleton 724 F.3d 297 (3rd Cir. 2013) ......................................................... 2, 4 N.Y. State Conference of Blue Cross & Blue Shield Plans v. Travelers Insurance Co. 514 U.S. 645 (1995) ............................................................................ 8 Oneok, Inc. v. Learjet, Inc. 135 S.Ct. 1591 (2015) ....................................................................... 11 Perez v. Campbell 402 U.S. 637 (1971) .......................................................................... 10 S. Pac. Transport Co. v. Public Utility Commission of State of Or. 9 F.3d 807 (9th Cir. 1993) ............................................................ 8, 13 Sprint Telephony PCS, L.P. v. County of San Diego 543 F.3d 571 (9th Cir. 2008) ......................................................... 3, 4 Tennessee v. Garner 471 U.S. 1 (1985) ........................................................................ 14, 15 United States v. Arizona 641 F.3d 339 (9th Cir. 2011) ..................................................... 1, 4, 5 United States v. Salerno 481 U.S. 739 (1987) .................................................................. passim United States v. South Carolina 720 F.3d 518 (4th Cir. 2013) ........................................................... 12 Wash. State Grange v. Wash. State Republican Party 552 U.S. 442 (2008) ............................................................................ 3


iv

STATUTES A.R.S. § 13-2002 .......................................................................................... 5 A.R.S. § 13-2008 .......................................................................................... 1 A.R.S. § 13-2009 .......................................................................................... 1 Act 69, 2011 S.C. Acts (S.B. 20) § 6 .......................................................... 13

MISCELLANEOUS

Michael Dorf, Facial Challenges to State and Federal Statutes, 46 Stan. L. Rev. 235 (1994) ......................................................................... 6 Richard Fallon, Fact and Fiction about Facial Challenges, 99 Cal. L. Rev. 915 (2011) ......................................................... 7, 12, 14, 15 Marc E. Isserles, Overcoming Overbreadth: Facial Challenges and the Valid Rule Requirement, 48 Am. U. L. Rev. 359 (1998) ............................ 5 Scott A. Keller & Misha Tseytlin, Applying Constitutional Decision Rules Versus Invalidating Statutes in Toto, 98 Va. L. R. 301 (2012) ... 4, 6 Gillian Metzger, Facial and As-Applied Challenges Under the Roberts Court, 36 Fordham Urb. L. J. 773 (2008) ................. 16 Hiroshi Motomura, The Rights of Others: Legal Claims and Immigration Outside the Law, 59 Duke L.J. 1723 (2010) ......................... 7


1

INTRODUCTION AND RULE 35(B)(1) STATEMENT

The panel decision in this case upholds a pair of measures

conceived of as part of Arizona’s state-level immigration strategy of

“attrition through enforcement.”1 The measures, passed in 2007 and

2008, turned unauthorized immigrant workers into felons by

capitalizing on the practical reality that, because of federal law, they

could not obtain employment in the state without relying on false

identity information.2 The panel opinion, in reaching its result:

• establishes new hurdles for litigants bringing facial constitutional

challenges that conflict with controlling Ninth Circuit precedent,

see, e.g., Lopez-Valenzuela v. Arpaio, 770 F.3d 772 (9th Cir. 2014)

(en banc);

• creates an intra- and inter-circuit split on a question of

exceptional importance—i.e., how United States v. Salerno, 481

U.S. 739 (1987) is applied in preemption cases, see United States v.

Arizona, 641 F.3d 339, 346 (9th Cir. 2011), aff'd in part, rev'd in

1 See, e.g., 1-SER-152 (statement of primary sponsor Rep. Pearce). The goal of the attrition policy is to make life so difficult for undocumented 2 H.B. 2779, also known as the Legal Arizona Workers Act, amended A.R.S. § 13-2009 to create a new ground of aggravated identity theft for use of the information of another person—real or fictitious—“with the intent to obtain employment.” 1-SER-72. The next year, H.B. 2745 expanded Arizona’s non-aggravated identity theft statute, A.R.S. § 13-2008, to target use of identifying information for employment. 1-SER-84. The District Court’s preliminary injunction reached only these provisions (hereinafter the “worker identity provisions”), leaving the remainder of Arizona’s identity theft statutes intact.


2

part and remanded, 132 S. Ct. 2492 (2012); Lozano v. City of

Hazleton, 724 F.3d 297, 313 n.22 (3rd Cir. 2013);

• subverts the Supreme Court’s “purpose” and “effects” test for

analyzing the preemption of state statutes, see infra Part II,

replacing it with a novel “exclusive impacts” standard; and

• unjustifiably refuses to consider partial invalidation, at a

minimum, thus inviting states to flout federal law by crafting

statutes just broad enough to immunize them from constitutional

scrutiny.

The Arizona worker identity provisions became the focus of

national attention due to Defendant-Appellant Sheriff Joseph Arpaio’s

controversial method of enforcing them through high-profile worksite

raids. See, e.g., 1-SER-196-97. The decision of the panel (Judges

Tallman, Silverman and Lasnik3) reverses a carefully reasoned decision

by District Judge David Campbell granting a preliminary injunction to

Plaintiffs-Appellees. That District Court decision—which found the

challenged provisions likely unconstitutional under the Supremacy

Clause based on their text, purpose and practical effects—brought a

temporary halt to the seven-year enforcement campaign that had

separated hundreds of breadwinners from their families and spread fear

among an already exploitable segment of the workforce.14-ER-3187-88

Garcia Decl. ¶¶ 17-19, 23-24.

The panel’s opinion now leaves Arizona’s immigrant community

without protection from the raids. The panel does not deny that reversal

3 Sitting by designation.


3

of the injunction will cause irreparable harm to Plaintiff-Appellees. Nor

does it disagree with Plaintiffs-Appellees or the United States that state

efforts to punish fraud by undocumented workers to demonstrate work

authorization intrude upon an area of exclusive federal control and

disrupt the congressional calibration of force. Slip Opinion (“Op.”) at 17-

20; Amicus Brief of the United States (Dkt. 116) (“US Br.”) at 11-20.

If left undisturbed, the panel opinion will have dangerous and

wide-ranging impacts. Plaintiffs-Appellees respectfully request

rehearing under Federal Rules of Appellate Procedure 35 and 40 to

ensure uniformity of the Court’s decisions and preserve future litigants’

ability to turn to the courts for the protection of constitutional rights.

ARGUMENT

I. The Panel Opinion Conflicts with Circuit Precedents on the Application of Salerno

In upholding the Arizona measures, the panel adopts an illogical

and ultimately untenable reading of Salerno that conflicts with the law

of this Circuit. The issue is not whether Salerno applies to facial

preemption challenges—the parties all agree it does.4 The issue is about

how the Salerno standard works in a preemption case. Recently, this

4 See Sprint Telephony PCS, L.P. v. County of San Diego, 543 F.3d 571, 579 n. 33 (9th Cir. 2008) (en banc). As courts and commentators have observed, there is some debate as to whether, outside of the First Amendment context, the Salerno test should continue to be controlling or whether statutes should instead be judged against a “plainly legitimate sweep” standard. Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442, 449 (2008) (citation omitted). For purposes of this petition, Plaintiffs-Appellees assume that the Salerno “no set of circumstances” formulation applies.


4

Court explained that, under Salerno, where a statute itself violates the

constitutional “decision rule” at issue, the “entire statute fails . . . and

thus would be invalid in all of its applications.” Lopez-Valenzuela, 770

F.3d at 789 (quoting Scott A. Keller & Misha Tseytlin, Applying

Constitutional Decision Rules Versus Invalidating Statutes in Toto, 98

Va. L. R. 301, 331 (2012)). This principle applies as well to preemption

cases. See infra Part II (describing decision rule in this case).

Rather than trying to determine if the constitutional decision rule

invalidated the worker identity provisions, defying the clear instruction

of Lopez-Valenzuela, the panel went straight to identifying applications

that (in its view) did not implicate federal interests. See Op. 17, 20. This

gets the analysis backwards, and creates a serious intra-circuit conflict.

As the Court admonished in Arizona:

Arizona’s framing of the Salerno issue assumes that S.B. 1070 is not preempted on its face, and then points out allegedly permissible applications of it. This formulation misses the point: there can be no constitutional application of a statute that, on its face, conflicts with Congressional intent and therefore is preempted by the Supremacy Clause.

641 F.3d at 345-46 (discussing Sprint). The Third Circuit has similarly

rejected the notion that a “hypothetical factual scenario in which

implementation . . . would not directly interfere with federal law” would

be able to save a statute from preemption. Lozano, 724 F.3d at 313

n.22;5 see also Marc E. Isserles, Overcoming Overbreadth: Facial

5 Lozano noted, as this Court also has, that the Supreme Court has not discussed Salerno in key preemption cases since it was decided. Id.; Arizona, 641 F.3d at 345 n.3. This would be consistent with notion that


5

Challenges and the Valid Rule Requirement, 48 Am. U. L. Rev. 359,

386-87 (1998) (explaining that “valid rule” facial challenges asserting an

infirmity in a statute itself meet the Salerno standard).

Ignoring Lopez-Valenzuela and Arizona, the panel rests its

conclusion that the worker identity provisions are not facially

preempted on the example of a U.S. citizen who was prosecuted because

she sought to conceal a past conviction record from her employer.6 The

panel asserts that Congress could not have intended to prevent Arizona

officials from prosecuting individuals like her. See Op. at 17. But the

question is not whether Congress sought to preclude states from

criminalizing the conduct of individuals like this U.S. citizen. Arizona is

free to prosecute her under other, constitutional statutes that do not

trench upon federal immigration policy.7 The question is whether the

worker identity provisions conflict with congressional intent by

targeting a field reserved for federal regulation, such that they should

Salerno does not pose a problem where a statute is preempted from the start. 6 See infra at 11 (identifying the only two cases brought by Defendants-Appellants in which an individual appeared to have a non-immigration purpose). It is unknown whether this individual made the false representation as part of the employment verification process or not. 7 Indeed, she could be (and in fact was) prosecuted under Arizona’s generally applicable forgery statute, A.R.S. § 13-2002. 1-ER-665-67. Alternatively, Arizona could have enacted a statute addressing identity theft in employment in a narrow class of cases not involving immigration.


6

be invalidated on their face. If the answer is yes, then even the

enforcement of the provisions against a U.S. citizen is invalid.8

Application of the panel’s approach to the facts of Lopez-

Valenzuela reveals the obvious tension between the two decisions. In

Lopez-Valenzuela, if the en banc Court had engaged in the sort of

analysis the panel conducted here, it would have conjured up examples

of class members denied an individualized bond hearing under

Arizona’s bail law, Proposition 100, who could have been denied a

hearing under a different, arguably defensible statute (e.g., a statute

categorically denying bail in a capital case). Based on those examples,

under this panel’s logic, Proposition 100 could not have been struck

down. But the Court did not take that approach. Instead, it found that

because Proposition 100 was not “carefully limited” to serve the interest

of assuring that defendants appear for trial, the law failed the test for

substantive due process and was invalid even as to “persons who could

be detained consistent with due process under a different . . . statute[.]”

Lopez-Valenzuela, 770 F.3d at 789. If the Court had found Proposition

100 to have a punitive purpose, cf. id. at 789-90, then the result would

have been the same. See Michael Dorf, Facial Challenges to State and

Federal Statutes, 46 Stan. L. Rev. 235, 279-81(1994) (discussing how

statutes enacted with a prohibited purpose can have no valid

applications and citing cases).

8 Keller & Tseytlin, supra, at 314 (discussing theory that “all individuals have the right not to be subject to unconstitutional laws . . . even if their conduct could have been banned under a different, hypothetical statute”).


7

As Richard Fallon explains in Fact and Fiction about Facial

Challenges, 99 Cal. L. Rev. 915 (2011), facial invalidation of statutes

outside of the First Amendment context is far more common than the

conventional wisdom suggests. He points to numerous examples where

the Supreme Court has struck down laws on their face without first

insisting on as-applied challenge where doing so, in its view, best

effectuates a constitutional principle. Id. at 946-48; see also Citizens

United v. Fed. Election Comm'n, 558 U.S. 310, 329-36 (2010) (voiding

statute prohibiting certain campaign expenditures); City of Los Angeles,

Calif. v. Patel, 135 S. Ct. 2443 (2015) (overturning municipal code

provision under Fourth Amendment). Courts’ willingness to pronounce

laws invalid extends to cases brought to enforce the Constitution’s

structural provisions, including the Supremacy Clause. Fallon, supra,

at 936.

In the immigration context, the Supremacy Clause has served as a

bulwark against measures borne of local prejudice towards

undocumented immigrants and their families. See Hiroshi Motomura,

The Rights of Others: Legal Claims and Immigration Outside the Law,

59 Duke L.J. 1723, 1739-45 (2010). The panel’s flawed and extreme

interpretation of Salerno creates nearly insurmountable hurdles for

would-be plaintiffs seeking to challenge the validity of state statutes in

the future and will invite confusion about facial challenges in

preemption cases. It should be reconsidered.


8

II. The Panel Opinion Nullifies the Supreme Court’s “Purpose” and “Effects” Analysis and Creates a Novel “Exclusive Impacts” Test

The panel’s decision also conflicts with binding Supreme Court

law, under which courts examining preemption challenges to state laws

that overlap with a federal field must look to the state law’s purpose

and practical effects to determine if it may stand. See, e.g., N.Y. State

Conference of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 514

U.S. 645, 658 (1995) (after determining that New York law made no

explicit reference to ERISA, looking to its “purpose” and “effect” to

decide preemption claim); Chamber of Commerce of U.S. v. Brown, 554

U.S. 60, 70 (2008) (holding California statute preempted by NLRA

where “legislative purpose is . . . the furtherance of a labor policy”). As

this Court explained in S. Pac. Transp. Co. v. Pub. Util. Comm’n of

State of Or., 9 F.3d 807 (9th Cir. 1993), the goal of looking at state

legislative purpose and effects is not to diminish congressional intent—

it is to honor it. Id. at 811 (the “[relevant] field is defined by reference to

the ‘purpose of the state law in question,’” and to “fall within the

preempted field, [the state law] must have some direct and substantial

effect”) (quoting English v. Gen. Elec. Co., 496 U.S. 72, 84, (1999));

accord Gade v. Nat'l Solid Wastes Mgmt. Ass'n, 505 U.S. 88, 105-06

(1992). Faithful application of the constitutional decision rule in this

case should have compelled the panel to conclude that the Arizona’s

worker identity provisions are invalid on their face.

There could be no clearer case of ostensibly “neutral” state

measures having a prohibited purpose and effect than those challenged


9

here. First, the titles and official descriptions of H.B. 2779 and H.B.

2745 make explicit that the proposals were intended to address

employment of undocumented immigrants. 1-ER-26; 1-SER-107 (Senate

Amended Fact Sheet for H.B. 2779); 1-SER-118 (House Summary for

H.B. 2745).9 Moreover, contrary to the panel’s speculation that the bills

were “also aimed at curbing . . . identity theft” in general, Op. at 8, the

unrefuted record evidence demonstrates that the purpose of the worker

identity provisions was to punish undocumented workers and express

Arizona’s disapproval of federal policy in the area. For example,

legislators advocating for the bill:

• urged that the provisions be strong enough to ensure

unauthorized workers “stay in jail” and “never be allowed to be

citizens of the United States again,” 1-SER-190 (statement of Sen.

Tom O’Halleran);

• noted that unauthorized workers should be punished harshly

under the provisions because doing otherwise “would be viewed as

a weakening of our . . . opposition to illegal immigration,” 1-SER-

187 (statement of Sen. Robert Burns);

• explained that state action was necessary because “the Feds have

not done their job” to quell the “national epidemic” of unlawful

immigration that threatens the “destruction of our country,” 1-

SER-149-51 (statement of Rep. Pearce).

9 H.B. 2745 even included a corollary provision for employers who knowingly accepted false identity information from a person for the purpose of determining whether the person “has the legal right or authorization . . . to work under 8 [U.S.C. §] 1324a.” 1-SER-84.


10

As the District Court found, “Defendants provide[d] no legislative

history that shows a contrary” or any other intent. 1-ER-27.10

The panel downplays the significance of this overwhelming

evidence of impermissible legislative purpose, holding—in direct conflict

with the Supreme Court precedent cited above—that it “does not matter

if Arizona passed the identity theft laws for a good or bad purpose.” Op.

at 16 (emphasis added). The panel cites several cases to support this

astonishing conclusion, but none of them do. Rather, in every precedent

cited by the panel for the proposition that courts should look beyond

state legislative purpose, lawmakers had professed some non-prohibited

motive. See, e.g., Hughes v. Oklahoma, 441 U.S. 322, 336-38 (1979)

(examining Commerce Clause challenge where state claimed legitimate

local purpose); Gade, 505 U.S. at 105-06 (refusing to save state law from

preemption simply because legislature “articulates a purpose other than

(or in addition to) workplace health and safety”); Perez v. Campbell, 402

U.S. 637, 651-52 (1971) (overruling prior preemption cases “enabl[ing]

state legislatures to nullify nearly all unwanted federal legislation by

simply . . . articulating some state interest or policy—other than

frustration of the federal objective—that would be tangentially

furthered by the proposed state law”). The reason courts looked beyond

purpose to practical effect, then, was to discern the true target of state

regulation. Oneok, Inc. v. Learjet, Inc., 135 S. Ct. 1591, 1599-1600

(2015) (analyzing precedents and emphasizing that key is to consider

10 The Federal Trade Commission statistics cited by the panel regarding identity theft complaints in Arizona, Op. at 8 n.2, were nowhere to be found in the legislative record.


11

“the target at which the state law aims”). Where state lawmakers are,

as here, transparent about their purpose to frustrate Congressional

intent, the law does not permit the Court to look the other way. Id. at

1600 (rejecting dissent’s contention, similar to the panel’s view here,

that the Court should focus on “what the State seeks to regulate . . . not

why the State seeks to regulate it”).

Of course, in this case, the practical effect of the worker identity

provisions has been fully consistent with their purpose. In other words,

if what matters is whether the legislature succeeded in disrupting the

federal scheme, the answer is a resounding yes. See 1-ER-27

(concluding that laws “would [] have the most impact on unauthorized

[immigrants]”); see also US Br. at 20 (enforcement against persons who

commit fraud to demonstrate authorization to work “interferes with

federal control”). Defendants-Appellants had been enforcing the worker

identity provisions for years before the District Court entered its

injunction, and they could point to only two cases in the record where

individuals were prosecuted for using a false identity for a non-

immigration purpose. Appellants’ Opening Brief (“AOB”) at 9 n.2; see 4-

ER 593-96, 664; 5-ER-900-01, 905. See also 1-ER-27 (citing Sheriff’s

Office News Release reporting that “100% of [] suspects” arrested in 55

worksite raids were “illegal aliens”); 1-SER 222 (County Attorney’s

Office report referring to worker identity provisions as “Illegal

Immigration Legislation”).11

11 The question on a facial challenge is what the practical effects of a law were at the time of passage. Here, it was entirely predictable that the laws would have primarily been enforced against undocumented


12

Rather than trying to determine whether the true target of the

worker identity provisions was to enter the federally regulated field, the

panel judged Arizona’s laws under a more absolute standard, requiring

that there be not be a single (actual or hypothetical) application that

has impacts outside of the field. See Op. at 17. But this approach, newly

minted by the panel, is unsupported by any precedent. In fact, as the

Supreme Court has already declared, a law directed at a preempted

field “is not saved from pre-emption simply because the State can

demonstrate some additional effect outside [the preempted area].”

Gade, 505 U.S. at 107.

Moreover, the panel’s approach does not reflect the way that

preemption doctrine has been applied in the immigration context. For

example, in United States v. South Carolina, 720 F.3d 518 (4th Cir.

2013), the Fourth Circuit found that Congress had occupied the field of

“creating, possessing, and using fraudulent immigration documents”

and struck down a South Carolina statute making it “unlawful for any

immigrants. Because they lack proof of authorization to work, undocumented immigrants cannot pass the employment verification process without using false identity information. See 14-ER-3200 Cervantes Decl. ¶ 6; 14-ER-3186-87 Garcia Decl. ¶¶ 14-15. Nevertheless, if there was any doubt that this would be the impact of the laws, the record in this case resolves that doubt. See Lopez-Valenzuela, 770 F.3d at 789 (striking down Proposition 100 laws where they had “been fully implemented” and there was “no possibility” officials would “implement them in a narrower, constitutional manner”); cf. Fallon, supra, at 960 (explaining that many of the Supreme Court’s decisions rejecting facial challenges may be better understood as reflecting ripeness concerns and uncertainty about judging practical effects of a law in a pre-enforcement challenge).


13

person to display or possess a false or counterfeit ID for the purpose of

proving lawful presence in the United States.” Id. at 532-33; see also Act

69, 2011 S.C. Acts (S.B. 20) §6(B). This provision certainly could have

applied to a U.S. citizen whom a state officer suspects of being

unlawfully present and demands identification from, and who, for the

purpose of proving lawful presence and complying with Section 6(B)(1)

of the Act, offers a false state driver’s license because she or he wants to

avoid detection on an outstanding warrant. But the court did not accept

South Carolina’s assertion that the provision “address[ed] ordinary

fraud,” and instead struck down the subsection in toto. South Carolina,

720 F.3d at 532.

In sum, “purpose” and “effects,” taken together, allow courts to

distinguish between state laws that have some tangential but

acceptable effect on a field of federal regulation, on the one hand, and

state laws that improperly regulate in a prohibited field, on the other.

See, e.g., S. Pac. Transp. Co., 9 F.3d at 811. The District Court did not

abuse its discretion in finding that the Arizona measures—which

singled out employment-related identity theft and stigmatized the

survival activity of undocumented immigrants—fell into the latter. The

panel’s novel “exclusive impacts” test, on the other hand, cannot be

squared with Supreme Court precedent. It actually renders the

“purpose” and “effects” analysis meaningless. Unless the opinion is

corrected, the panel’s nullification of Supreme Court law will create

considerable turmoil for future litigants and courts.


14

III. The Panel Unjustifiably Fails to Consider a Narrowed Injunction in the Alternative

Having concluded (erroneously) that the worker identity

provisions were not preempted in their entirety, the panel should have

taken the common sense step of considering whether the provisions

should be invalidated in part. Its failure to do so constitutes grave error.

As Lopez-Valenzuela noted, a court deciding a facial challenge

should consider whether there is any “reasonable or readily apparent

narrowing construction” that could allow the statute to be applied in a

constitutional manner. 770 F.3d at 789 (citation omitted). Plaintiffs-

Appellees do not believe severing the worker identity provisions to save

just a few anomalous applications is reasonable12—thus, we have urged

invalidation of the provisions as a whole. However, if the panel was not

inclined to invalidate the provisions in their entirety, then the “normal

rule” of “partial . . . invalidation” of a statute should apply. Ayotte v.

Planned Parenthood of N. New England, 546 U.S. 320, 328-29 (2006)

(holding abortion law unconstitutional “to the extent that it reaches too

far” and failed to exempt minors who need to terminate their

pregnancies without delay to preserve life and health); Tennessee v.

Garner, 471 U.S. 1, 11 (1985) (holding state use of force statute

unconstitutional insofar as it authorized use of force against an

unarmed, non-violent suspect). This remedy is equally available in the

preemption context. See Haywood v. Drown, 556 U.S. 729, 736-42 (2009) 12 Indeed, this would appear contrary to state legislative intent. See Fallon, supra, at 958. Arizona lawmakers were interested in these measures precisely because of the impact they would have on unlawful immigration. See supra at 9-10.


15

(finding New York scheme requiring certain damages actions to be filed

in state courts of limited jurisdiction preempted as to § 1983 claims

though provision applied equally to state law claims); Exxon Corp. v.

Hunt, 475 U.S. 355, 358 (1986) (holding state law preempted as to

certain categories of cases).

The panel should have invalidated the Arizona provisions to the

extent they punish fraud committed to demonstrate work authorization

under federal immigration law.13 It is of little consequence that

Plaintiffs framed their challenge to the worker identity provisions on

this appeal as a facial one. Cf. Op. at 14. As the Supreme Court recently

stated in Citizens United, “the distinction between facial and as-applied

challenges is not so well defined that it has some automatic effect or . . .

must always control the . . . disposition[.]” 558 U.S. at 331; see also John

Doe No. 1 v. Reed, 561 U.S. 186, 194 (2010) (“The label is not what

matters.”). Indeed, in many cases cited above in which the Supreme

Court partially invalidated a statute, Plaintiffs and/or the lower courts

had characterized their challenge as a facial one. Ayotte, 546 U.S. at

325; Garner v. Memphis Police Dep't, 710 F.2d 240, 246 (6th Cir. 1983),

aff'd in part and remanded sub nom. Tennessee v. Garner, 471 U.S. 1

(1985); Exxon Corp., 475 U.S. at 361.

Nor did the panel need any more of a record to affirm the District

Court’s preliminary injunction in part. Cf. Op. at 14. Where the

constitutional problem is apparent, certain categories of applications of

a state law that offend federal law may be struck down. See Fallon, 13 This is equivalent to the narrowed injunction suggested by the United States in its amicus brief. US Br. at 25.


16

supra, at 924-25 (ruling of partial invalidity in a broad category of cases

generally less fact intensive than a ruling of invalidity in one specific

case). The record contains ample evidence of unconstitutional

applications of the worker identity provisions. See supra at 11-12.

By stating that some further record is necessary, the panel

conflates claims of a statute’s partial invalidity with claims that officials

are enforcing a statute in an unconstitutional manner. If taken

seriously, the panel’s decision creates a risk that future litigants will be

relegated to bringing only a narrow type of facial challenge (one that

calls for invalidation of a statute in its entirety) or a narrow type of as-

applied challenge (involving slow and costly post-enforcement

litigation). Cf. Gillian Metzger, Facial and As-Applied Challenges

Under the Roberts Court, 36 Fordham Urb. L. J. 773, 786-87 (2008)

(discussing dangers of such an approach for effectively enforcing the

Constitution). At the same time, it serves as “an open invitation to the

States to flout federal law by including valid provisions within clearly

invalid statutes,” thus rendering them (under the panel’s logic)

impossible to challenge facially and burdensome to challenge as applied.

Exxon Corp., 475 U.S. at 358 (declining, for this reason, to uphold state

law with some invalid applications). That simply cannot be the rule.

CONCLUSION

For the reasons stated above, this Court should grant Plaintiffs-

Appellees’ petition.


17

Dated: May 16, 2016 Respectfully Submitted,

By /s/ Anne Lai Anne Lai Erwin Chemerinsky University of California, Irvine School of Law 401 E. Peltason Dr., Ste. 3500 Irvine, CA 92616-5479 Jessica Myers Vosburgh National Day Laborer Organizing Network 2104 Chapel Hill Rd. Birmingham, AL 35216 Jessica Karp Bansal Emilou MacLean National Day Laborer Organizing Network 675 S. Park View St., Ste. B Los Angeles, CA 90057 Cindy Pánuco Joshua Piovia-Scott Dan Stormer Hadsell Stormer & Renick LLP 127 N. Fair Oaks Ave., Ste. 204 Pasadena, CA 91103 Daniel J. Pochoda ACLU Foundation of Arizona 3707 N. 7th St., Ste. 235 Phoenix, AZ 85014


18

Ray A. Ybarra Maldonado Law Office of Ray A. Ybarra Maldonado, PLC 2701 E. Thomas Rd., Ste. A Phoenix, AZ 85016

Attorneys for Plaintiffs-Appellees


Form 11. Certificate of Compliance Pursuant to Circuit Rules 35-4 and 40-1

Form Must be Signed by Attorney or Unrepresented Litigant and Attached to the Back of Each Copy of the Petition or Answer

(signature block below)

I certify that pursuant to Circuit Rule 35-4 or 40-1, the attached petition for panel rehearing/petition for rehearing en banc/answer is: (check applicable option)

_X__ Proportionately spaced, has a typeface of 14 points or more and contains _4,200_____ words (petitionsand answers must not exceed 4,200 words).

or

____ Monospaced, has 10.5 or fewer characters per inch and contains _______words or ________ lines of text (petitions and answers must not exceed4,200 words or 390 lines of text).

or

____ In compliance with Fed. R. App. 32(c) and does not exceed 15 pages.

___________________________ Signature of Attorney or Unrepresented Litigant

(New Form 7/1/2000)

/s/ Anne Lai


CERTIFICATE OF SERVICE

I hereby certify that I electronically filed the foregoing

PETITION FOR PANEL REHEARING AND REHEARING EN

BANC with the Clerk of the Court for the United States Court of

Appeals for the Ninth Circuit by using the appellate CM/ECF system on

May 16, 2016. I certify that all participants in the case are registered

CM/ECF users and that service will be accomplished by the appellate

CM/ECF system.

Dated: May 16, 2016 /s/ Anne Lai Anne Lai


Appendix: Panel OpinionMay 2, 2016


FOR PUBLICATION

UNITED STATES COURT OF APPEALSFOR THE NINTH CIRCUIT

PUENTE ARIZONA; SUSAN E.FREDERICK-GRAY; SARA

CERVANTES ARREOLA, on behalf ofthemselves and all others similarlysituated,


v.

JOSEPH M. ARPAIO, Sheriff ofMaricopa County, Arizona, in hisofficial capacity,

Defendant-Appellant,

and

BILL MONTGOMERY, MaricopaCounty Attorney, in his officialcapacity; COUNTY OF MARICOPA,State of Arizona; STATE OF

ARIZONA,Defendants.

No. 15-15211

D.C. No.2:14-cv-01356-

DGC

Case: 15-15211, 05/02/2016, ID: 9959412, DktEntry: 121-1, Page 1 of 26 Case: 15-15211, 05/16/2016, ID: 9978923, DktEntry: 127-2, of 53

PUENTE ARIZONA V. ARPAIO2




v.

JOSEPH M. ARPAIO, Sheriff ofMaricopa County, Arizona, in hisofficial capacity; BILL

MONTGOMERY, Maricopa CountyAttorney, in his official capacity;COUNTY OF MARICOPA, State ofArizona,

Defendants,

and

STATE OF ARIZONA,Defendant-Appellant.

No. 15-15213

D.C. No.2:14-cv-01356-

DGC


PUENTE ARIZONA V. ARPAIO 3




v.

BILL MONTGOMERY, MaricopaCounty Attorney, in his officialcapacity; COUNTY OF MARICOPA,State of Arizona,

Defendants-Appellants,

and

JOSEPH M. ARPAIO, Sheriff ofMaricopa County, Arizona, in hisofficial capacity; STATE OF

ARIZONA,Defendants.

No. 15-15215

D.C. No.2:14-cv-01356-

DGC

OPINION

Appeal from the United States District Courtfor the District of Arizona

David G. Campbell, District Judge, Presiding

Argued and SubmittedFebruary 12, 2016—San Francisco, California

Filed May 2, 2016



Before: Barry G. Silverman and Richard C. Tallman,Circuit Judges, and Robert S. Lasnik,* Senior District

Judge.

Opinion by Judge Tallman

SUMMARY**

Civil Rights

The panel vacated the district court’s preliminaryinjunction, reversed the district court’s finding regarding themerits of plaintiffs’ facial preemption claim, dismissed anappeal by Maricopa County, and remanded, in an actionchallenging provisions of Arizona’s identity theft laws, whichprohibit using a false identity to obtain employment.

The panel first rejected plaintiffs’ assertion that Arizona’semployment-related identity theft laws were faciallypreempted by the federal Immigration Reform and ControlAct. The panel determined that although some applicationsof the identity theft laws may come into conflict with theImmigration Reform and Control Act’s comprehensivescheme or with the federal government’s exclusive discretionover immigration-related prosecutions, when the laws areapplied to U.S. citizens or lawful permanent residents those

* The Honorable Robert S. Lasnik, Senior United States District Judgefor the Western District of Washington, sitting by designation.

** This summary constitutes no part of the opinion of the court. It hasbeen prepared by court staff for the convenience of the reader.



concerns are not implicated. Holding that Arizona’semployment-related identity theft laws were not preemptedin all applications, the panel vacated the district court’spreliminary injunction and reversed the district court’sfinding that plaintiffs’ facial preemption challenge was likelyto succeed on the merits. The panel remanded withinstructions to evaluate the merits of plaintiffs’ remainingclaims, including the as-applied preemption challenge.

The panel dismissed Maricopa County’s appeal from thedistrict court’s denial of the County’s motion to dismisspursuant to Monell v. Department of Social Services, 436U.S. 658 (1978). The panel held that the County’s appeal didnot fall within one of the narrow categories where invokingpendent jurisdiction would be proper.

COUNSEL

Dominic Draye (argued), John R. Lopez, IV, Office of theAttorney General, Phoenix, Arizona, for Defendant-AppellantState of Arizona.

Douglas L. Irish, Thomas P. Liddy, J. Kenneth Mangum, AnnThompson Uglietta, Maricopa County Attorney’s Office;Phoenix, Arizona, for Defendant-Appellant WilliamMontgomery.

Michele Marie Iafrate, Iafrate & Associates, Phoenix,Arizona, for Defendant-Appellant Joseph M. Arpaio.

Jessica Vosburgh (argued) National Day Laborer OrganizingNetwork, Hoover, Alabama; Cindy Pánuco (argued), JoshuaPiovia-Scott, and Dan Stormer, Hadsell Stormer & Renick



LLC, Pasadena, California; Anne Lai, University ofCalifornia, Irvine School of Law—Immigrant Rights Clinic,Irvine, California; Daniel J. Pochoda, ACLU Foundation ofArizona, Phoenix, Arizona; Jessica Karp Bansal, NationalDay Laborer Organizing Network, Los Angeles, California;Ray A. Ybarra Maldonado, Law Office of Ray A. YbarraMaldonado, PLC, Phoenix, Arizona, for Plaintiffs-Appellees.

Victor Stone, Russell P. Butler, Maryland Crime Victims’Resource Center Inc., Upper Marlboro, Maryland; SteveTwist, Arizona Voice for Crime Victims, Inc., Scottsdale,Arizona, 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, Arizona, for Amici Curiae Professors Doris MarieProvine and Cecilia Menjívar.

Joshua T. Stehlik, Nicholas Espíritu, National ImmigrationLaw Center, Los Angeles, California, for Amici CuriaeNational Immigration Law Center, et al.

Benjamin C. Mizer, Principal Deputy Assistant AttorneyGeneral, 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, UnitedStates Department of Justice, Washington, D.C., for AmicusCuriae United States of America.



OPINION

TALLMAN, Circuit Judge:

An immigrant advocacy organization, Puente Arizona,along with individual unauthorized aliens1 and taxpayers ofMaricopa County (collectively “Puente”), challengeprovisions of Arizona’s identity theft laws which prohibitusing a false identity to obtain employment. The districtcourt found the laws facially preempted by federalimmigration policy and granted a preliminary injunctionpreventing the Arizona government defendants (collectively“Arizona”) from enforcing the challenged provisions. Arizona appeals that preliminary injunction, and defendantMaricopa County individually appeals its liability under42 U.S.C. § 1983 based on Monell v. Department of SocialServices, 436 U.S. 658 (1978). Because we find that thechallenged laws are not preempted in all applications, wereverse the district court’s holding that the laws are likelyfacially preempted and we vacate the district court’spreliminary injunction. We also dismiss Maricopa County’sMonell appeal for lack of jurisdiction. We remand forconsideration of the as-applied challenge to the statutes.

I

This case began when Arizona amended its identity theftlaws to reach the growing problem of employment-relatedidentity theft within the state. Arizona passed H.B. 2779 in

1 We use the term “unauthorized alien” throughout this opinion to referto “aliens who have entered or are present in the United States in violationof federal immigration law.” Valle del Sol Inc. v. Whiting, 732 F.3d 1006,1012 n.1 (9th Cir. 2013).



2007, known as the “Legal Arizona Workers Act,” whichamended Arizona’s aggravated identity theft statute, A.R.S.§ 13-2009. The statute now prohibits using the informationof another (real or fictitious) person “with the intent to obtainemployment.” A.R.S. § 13-2009. In 2008, Arizona passedH.B. 2745, titled “Employment of Unauthorized Aliens,”which expanded Arizona’s general identity theft statute toalso reach employment-related identity theft. See A.R.S.§ 13-2008(A).

These bills were passed, at least in part, in an effort tosolve some of Arizona’s problems stemming from illegalimmigration. The titles of the legislation and the legislativehistory show an intent on the part of Arizona legislators toprevent unauthorized aliens from coming to and remaining inthe state. But these bills were also aimed at curbing thegrowing and well-documented problem of identity theft inArizona. Between 2006 and 2008, Arizona had the highestper-capita identity theft rates in the nation, and one third ofall identity theft complaints in the state involvedemployment-related fraud.2

Since the laws were amended, Arizona has beenaggressively enforcing employment-related identity theft.

2 See Fed. Trade Comm’n, Consumer Fraud and Identity TheftComplaint Data: January - December 2006 at 18, 22 (2007),https://www.ftc.gov/sites/default/files/documents/reports_annual/sentinel-cy-2006/sentinel-cy2006.pdf; Fed. Trade Comm’n, Consumer Fraud andIdentity Theft Complaint Data: January - December 2007 at 18, 22(2008), https://www.ftc.gov/sites/default/files/documents/reports_annual/sentinel-cy-2007/sentinel-cy2007.pdf; Fed. Trade Comm’n, ConsumerSentinel Network Data Book for January - December 2008 at 14, 20(2009), https://www.ftc.gov/sites/default/files/documents/reports_annual/sentinel-cy-2008/sentinel-cy2008.pdf.



Although most of these enforcement actions have beenbrought against unauthorized aliens, some authorized aliensand U.S. citizens have also been prosecuted. And whilemany of the people prosecuted under the identity theft lawsused a false identity to prove that they are authorized to workin the United States, other defendants used false documentsfor non-immigration related reasons. For example, Arizonahas prosecuted U.S. citizens who used another individual’sidentity to hide a negative criminal history from a potentialemployer.

In response to these prosecutions, Puente challenged theamended identity theft laws as unconstitutional for violatingthe Supremacy Clause and the Equal Protection Clause. In anattempt to repeal the identity theft laws, Puente suedMaricopa County Sheriff Joseph Arpaio, Maricopa CountyAttorney Bill Montgomery, Maricopa County, and the Stateof Arizona. On August 8, 2014, Puente moved for apreliminary injunction solely on its facial preemption claim.

Relying on recent Supreme Court precedent, Puenteargued that the federal Immigration Reform and Control Act(“IRCA”) established a “comprehensive framework” forregulating the employment of unauthorized aliens, andtherefore Arizona’s employment-related identity theft lawswere facially preempted. See Arizona v. United States, 132 S.Ct. 2492, 2504 (2012). The District Court agreed that thelaws were likely unconstitutional on their face and grantedthe requested preliminary injunction on conflict and fieldpreemption grounds on January 5, 2015.

Specifically, the district court enjoined Arizona “fromenforcing 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 sameorder, the district court also denied Maricopa County’s Rule12(b)(6) motion to dismiss under Monell. Maricopa Countyargued that its lack of control over Sheriff Arpaio shows thathe is not a final policymaker for the County. The districtcourt rejected that argument because control is just one factorin the Monell policymaker analysis. The County moved forreconsideration and the district court again held that theSheriff is a policymaker.

Arizona then filed this timely interlocutory appealchallenging the district court’s preliminary injunction. Maricopa County also seeks review of the district court’sMonell holding. But there has been no final judgment enteredto date, and the merits of this case remain pending in thedistrict court. Importantly, the district court has yet toconsider the merits of Puente’s as-applied preemptionchallenge.

II

We turn first to the preliminary injunction. Preliminaryinjunctive relief is subject to “limited review” on appeal. SeeFlexible Lifeline Sys., Inc. v. Precision Lift, Inc., 654 F.3d989, 993–94 (9th Cir. 2011). A preliminary injunction shouldonly be set aside if the district court “abused its discretion orbased its decision on an erroneous legal standard or on clearlyerroneous findings of fact.” United States v. PeninsulaCommc’ns, Inc., 287 F.3d 832, 839 (9th Cir. 2002). Thedistrict court’s legal conclusions, such as whether a statute is

3 For the sake of simplicity, we will refer to these challenged provisionsas the “identity theft laws.”



preempted, are reviewed de novo. See In re Korean Air LinesCo., 642 F.3d 685, 691 n.3 (9th Cir. 2011).

To obtain a preliminary injunction, the plaintiff mustprove “that he is likely to succeed on the merits, that he islikely to suffer irreparable harm in the absence of preliminaryrelief, that the balance of equities tips in his favor, and that aninjunction is in the public interest.” Winter v. Nat. Res. Def.Council, Inc., 555 U.S. 7, 20 (2008).4 Here, the district courtfound that Puente met its burden on each element of theWinter test. We disagree, and hold that Puente is not likelyto succeed on, and has not raised serious questions about, themerits of its facial challenge. This conclusion is guided byprinciples of preemption jurisprudence and the uniqueburdens imposed on facial challenges.

We first address long-held principles of preemption. Congress of course has the power, under the SupremacyClause, to preempt state law. Arizona, 132 S. Ct. at 2500. Congress may exercise this power expressly or preemptionmay be implied where the state law is in an area fullyoccupied by federal regulation or where it conflicts withfederal law. Id. at 2500–01.

There are two types of conflict preemption. Id. at 2501. Conflict preemption occurs where (1) it is impossible tocomply with both federal and state law, or (2) where the statelaw “stands as an obstacle to the accomplishment and

4 Because the Ninth Circuit utilizes a “sliding scale” approach to theWinter test, a preliminary injunction is also appropriate when a plaintiffraises “serious questions” as to the merits and “the balance of hardshipstips sharply in [plaintiff’s] favor.” All. for the Wild Rockies v. Cottrell,632 F. 3d 1127, 1135 (9th Cir. 2011) (internal quotations omitted).



execution of the full purposes and objectives of Congress.” Id. (quoting Hines v. Davidowitz, 312 U.S. 52, 67 (1941)). Field preemption can also take two forms. A law is fieldpreempted where (1) the “regulatory framework is sopervasive” that there is no room for state regulation, or(2) where the “federal interest [is] so dominant that thefederal system will be assumed to preclude enforcement ofstate laws on the same subject.” Id. (quoting Rice v. Santa FeElevator Corp., 331 U.S. 218, 230 (1947)).

In both field and conflict preemption cases, thetouchstone of our inquiry is congressional intent. Wyeth v.Levine, 555 U.S. 555, 565 (2009). When analyzingcongressional intent “we start with the assumption that thehistoric police powers of the States were not to be supersededby the Federal Act unless that was the clear and manifestpurpose of Congress.” Id. (quoting Rice, 331 U.S. at 230). Puente argues that this presumption against preemption doesnot apply here because the identity theft laws do not regulatein an area of historic state power.5 We reject this argumentbecause, while the identity theft laws certainly have effects inthe area of immigration, the text of the laws regulate for thehealth and safety of the people of Arizona. See MedtronicInc. v. Lohr, 518 U.S. 470, 475 (1996). Therefore, only ifCongress’s intent to preempt the challenged state statute is“clear and manifest” may we deem the statute preempted. See Wyeth, 555 U.S. at 565.

5 The Supreme Court rejected a similar argument in Wyeth and appliedthe presumption against preemption even though the state tort claim atissue in that case touched on an area of historic federal regulation. SeeWyeth, 555 U.S. at 565 n.3.



We are also guided by the rules that apply to facialchallenges. United States v. Salerno, 481 U.S. 739, 746(1987), instructs that to succeed on a facial challenge theplaintiff must show that “no set of circumstances exists underwhich the Act would be valid.” Salerno’s applicability inpreemption cases is not entirely clear, however. In the FirstAmendment context, the Supreme Court recognizes a type offacial challenge in which a statute will be invalidated asoverbroad if “a substantial number of its applications areunconstitutional, judged in relation to the statute’s plainlylegitimate sweep.” United States v. Stevens, 559 U.S. 460,473 (2010) (quoting Washington v. Glucksberg, 521 U.S. 702,740 n.7 (1997) (Stevens, J., concurring)). Whether the“substantial number of applications” test applies to facialpreemption challenges has not yet been decided by theSupreme Court. Without more direction, we have chosen tocontinue applying Salerno. United States v. Arizona,641 F.3d 339, 345 (9th Cir. 2011), aff’d in part, rev’d in partand remanded, 132 S. Ct. 2492 (2012); Sprint TelephonyPCS, L.P. v. County of San Diego, 543 F.3d 571, 579 n.3 (9thCir. 2008) (en banc).6 We therefore proceed, keeping in mindthe high bar that Puente must overcome under Salerno before

6 The Supreme Court’s majority opinion in Arizona does not citeSalerno, which has led some courts to conclude Salerno does not apply tofacial preemption challenges. See Lozano v. City of Hazleton, 724 F.3d297, 313 n.22 (3d Cir. 2013). Lozano is an immigration preemption casein which the Third Circuit essentially found a strict application ofSalerno’s rule incompatible with substantive preemption doctrine. See id. The district court in this case employed Lozano’s reasoning to hold thatSalerno should not apply here. Salerno remains binding law in the NinthCircuit, however, and we are not free to ignore it. Sprint Telephony,543 F.3d at 579 n.3 (“In cases involving federal preemption of a localstatute, . . . the [Salerno] rule applies with full force.”).



we may strike down the identity theft laws on this facialchallenge.

Applying the preemption and facial challenges frameworkdiscussed above, we conclude that the identity theft laws arenot facially preempted because they have obviousconstitutional applications. This case is made significantlyeasier by the scope of Arizona’s interlocutory appeal and thetext of the challenged provisions.

First, the scope of this appeal is limited. Puente movedfor a preliminary injunction based solely on its claim that theidentity theft laws are facially preempted under theSupremacy Clause. See Pls.’ Mot. Prelim. Inj., Case No.2:14-cv-01356-DGC (D. Ariz. Aug. 8, 2014) at 1 (“[T]hechallenged provisions constitute a facially invalid stateintrusion into an area of exclusive federal control.”). Basedon this facial challenge, Puente asked the district court toenjoin enforcement of all applications of the identity theftlaws. See id. The district court has yet to address Puente’sas-applied challenge, and without a fully developed record wethink it inappropriate now to enjoin only certain applicationsof the identity theft laws.7 See 16 C.J.S. Constitutional Law

7 We thank the United States for filing a helpful amicus brief in thismatter, but we decline to implement their suggestion to engage in an as-applied analysis. The United States agrees with us that the identity theftlaws are constitutional on their face but has asked us to narrow thepreliminary injunction to prohibit two applications of the laws:(1) enforcement actions that rely on the Form I-9, and (2) prosecutions of“fraud committed to demonstrate work authorization under federalimmigration law.” On this facial challenge we decline to enjoin certainapplications of the laws. The question of which applications of the lawsare preempted is properly left for the district court, which has yet to ruleor create a suitable record on Puente’s as-applied challenge.



§ 243 (2016) (discussing the importance of factual findingson an as-applied challenge).

Second, we think it significant that the identity theft lawsare textually neutral—that is, they apply to unauthorizedaliens, authorized aliens, and U.S. citizens alike. Both A.R.S.§ 13-2009(A)(3) and A.R.S. § 13-2008(A) sanction “[a]nyperson” who commits identity theft to obtain employment. As noted in hypotheticals raised at oral argument, these lawscould easily be applied to a sex offender who uses a falseidentity to get a job at a daycare center. Or the laws could beapplied to stop a convicted felon from lying about hiscriminal history on a job application for a position of trust. In fact, Arizona has prosecuted U.S. citizens for doing justthat. The key point is this: one could not tell that the identitytheft laws undermine federal immigration policy by lookingat the text itself. Only when studying certain applications ofthe laws do immigration conflicts arise.

Bearing in mind the scope of our review and the statutorylanguage, we now turn to the ultimate question: Are theidentity theft laws facially preempted by federal immigrationlaw?

Puente argues that the identity theft laws are in conflictwith and are field preempted by IRCA. Puente contends thatthe identity theft laws are preempted for three reasons: (1) thelaws were passed with an intent to regulate immigration;(2) the laws conflict with the federal government’s choice ofsanctions and exclusive prosecutorial discretion forimmigration-related crimes; and (3) the laws conflict with thetext of IRCA. We reject all three of these arguments. Although there is tension between the federal scheme andsome applications of the identity theft laws, we hold that this



tension is not enough to rise to the level of a “clear andmanifest purpose” to preempt the identity theft laws in theirentirety. See Wyeth, 555 U.S. at 565.

The parties argue vigorously about the import of statelegislative history in this case. But these arguments aboutwhether to look to state legislative history miss the mark intwo ways. First, Arizona’s legislative history tells us nothingabout whether Congress intended to preempt state statuteslike the identity theft laws. If Congress intended to preemptlaws like the one challenged here, it would not matter whatArizona’s motives were; the laws would clearly bepreempted.

Second, when we do look to state action, we lookprimarily to a statute’s effects to determine if the stateencroached on an area Congress intended to reserve.8 SeeGade v. Nat’l Solid Wastes Mgmt. Ass’n, 505 U.S. 88, 105(1992). Said another way, it does not matter if Arizonapassed the identity theft laws for a good or badpurpose—what matters is whether the legislature succeededin carrying out that purpose. See Hughes v. Oklahoma,441 U.S. 322, 336 (1979) (“[W]hen considering the purposeof a challenged statute, [courts are] not bound by ‘[t]he name,description or characterization given it by the legislature or

8 We do not mean to suggest that the state’s purpose in passing a statuteis not relevant to our preemption analysis, as both this court and theSupreme Court have analyzed purpose in preemption cases. See N.Y.State Conf. of Blue Cross & Blue Shield Plans v. Travelers Ins. Co.,514 U.S. 645, 658 (1995); Tillison v. City of San Diego, 406 F.3d 1126,1129 (9th Cir. 2005). In accordance with Supreme Court precedent, wehold only that state legislative purpose is not dispositive. See Perez v.Campbell, 402 U.S. 637, 651–52 (1971) (overruling prior preemptioncases that focused on “the purpose rather than the effect of state laws”).



the courts of the State,’ but will determine for [themselves]the practical impact of the law.” (internal quotation omitted)). Thus, the crucial question is whether Congress intended topreempt the identity theft laws given the practical effect ofthose laws. We think not.

We agree with Puente and the district court that thelegislative history of both H.B. 2779 and H.B. 2745 show anintent on the part of Arizona legislators to preventunauthorized aliens from remaining in the state. But if thatwas the legislature’s only goal, it failed. The legislature alsorectified the growing problem of employment-related identitytheft. We think Congress would agree that the identity theftlaws validly apply to any person who uses another’s identityfor non-immigration reasons. There is evidence in the recordthat the laws have been applied to people who use another’sidentity to hide their criminal record. Congress could nothave intended to preempt the state from sanctioning crimesthat protect citizens of the state under Arizona’s traditionalpolice powers without intruding on federal immigrationpolicy. Thus, we hold that despite the state legislativehistory, Congress did not intend to preempt state criminalstatutes like the identity theft laws.9

Next, Puente argues that the identity theft laws arepreempted because they conflict with the federalgovernment’s enforcement techniques and exclusive

9 On remand, Puente may again produce evidence of the Arizonalegislature’s intent to regulate immigration when asking the district courtto enjoin certain immigration-related applications of the identity theftlaws. We hold only that this legislative history is not sufficient to doomthe statutes where they can be validly applied in ways that do notimplicate immigration.



discretion in the area of immigration. In making thesearguments, Puente relies heavily on the Supreme Court’sdecision in Arizona. There, the Supreme Court struck downa state law that made it a misdemeanor for “an unauthorizedalien to knowingly apply for work, solicit work in a publicplace or perform work as an employee or independentcontractor.” Arizona, 132 S. Ct. at 2503.

The Arizona Court held that this statute was in conflictwith IRCA’s “comprehensive framework for combating theemployment of illegal aliens.” Id. at 2504 (internal quotationomitted). Examining the legislative history of IRCA, theCourt pointed to failed proposals to criminalize unauthorizedaliens applying for work. Id. Because Congress “made adeliberate choice” to punish employers instead of employeeswith criminal sanctions under IRCA, Arizona’s attempt tocreate a crime on the employee-side conflicted “with thecareful balance struck by Congress” in this area. Id. at2504–05. Essentially, this conflict in statutory remediesbetween the federal and state statutes rendered the statestatute unconstitutional. Id. at 2505. Puente argues that asimilar conflict in techniques is present here because theidentity theft laws authorize different (and generally harsher)punishments than authorized under federal law.

Puente also argues that the identity theft laws deprive theUnited States of necessary prosecutorial discretion overimmigration-related crimes. We recently found this argumentpersuasive in Valle del Sol. 732 F.3d at 1027; see alsoArizona Dream Act Coal. v. Brewer, No. 15-15307, 2016 WL1358378, at *6 (9th Cir. Apr. 5, 2016) (explaining that theExecutive has “very broad discretion” to determineimmigration enforcement priorities). The statute at issue inValle del Sol criminalized harboring and transporting



unauthorized aliens. Valle del Sol, 732 F.3d at 1012–13. Theharboring statute in Valle del Sol “divest[ed] federalauthorities of the exclusive power to prosecute these crimes”in line with federal priorities. Id. at 1027. Because Arizonahad given itself the power to prosecute harboring crimes instate court it could do so “in a manner unaligned with federalimmigration enforcement priorities.” Id. This co-opting offederal discretion over enforcement, coupled with differentstatutory penalties under state law, led the Valle del Sol courtto hold Arizona’s harboring statute unconstitutional. Id. at1029. Puente argues that like the harboring statute in Valledel Sol, the identity theft laws undermine federal discretion topunish immigration-related fraud in line with federalpriorities.

While these arguments may be persuasive in the contextof Puente’s as-applied challenge, we do not find thempersuasive in a facial attack. Arizona, Valle del Sol, and theirprogeny10 are easily distinguishable from this case. In thosecases, the contested state statutes, on their face, applied onlyto unauthorized aliens, so every application of the statute hadthe potential to conflict with federal immigration policy. Incontrast, the statutes at issue here make it a crime for “anyperson” to use a false document to gain employment.

Although some applications of the identity theft laws maycome into conflict with IRCA’s “comprehensive scheme” or

10 The list of cases analyzing preemption in the immigration context islarge and continuously growing. The vast majority of these cases analyzestatutes or government actions that apply only to unauthorized aliens. See,e.g., Arizona Brewer, No. 15-15307, 2016 WL 1358378, at *10(explaining why the policy at issue in that case applied to onlyunauthorized aliens and highlighting other similar cases).



with the federal government’s exclusive discretion overimmigration-related prosecutions, when the laws are appliedto U.S. citizens or lawful permanent residents those concernsare not implicated. Thus, Arizona, Valle del Sol, and all otherpreemption cases where the statutory language singles outunauthorized aliens, do not control here. In this case, Arizonaexercised its police powers to pass criminal laws that applyequally to unauthorized aliens, authorized aliens, and U.S.citizens. Just because some applications of those lawsimplicate federal immigration priorities does not mean thatthe statute as a whole should be struck down.

Finally, Puente makes an argument for preemption basedon the text of IRCA. Puente argues that IRCA was drafted toallow only federal government prosecutions of those who usefalse documents to obtain employment. See 8 U.S.C.§§ 1324a(b)(5), (d)(2)(F)–(G). In particular, IRCA providesthat any information employees submit to indicate their workstatus “may not be used” for purposes other than prosecutionunder specified federal criminal statutes for fraud, perjury,and related conduct. Id. § 1324a(b)(5).

Again, we reject this argument because this is a facialchallenge and this argument applies only to certainapplications of the statute not evident from the statute’s text. IRCA’s document use limitation is only violated when theidentity theft laws are applied in ways that rely on the FormI-9 and attached documents. Just because Arizona could (andhas in the past) enforced the identity theft laws in violation ofIRCA’s document use limitation does not mean the lawsshould be struck down in their entirety. Arizona retains thepower to enforce the laws in ways that do not implicatefederal immigration priorities. While the district court mayultimately decide to enjoin identity theft enforcement actions



which rely on I-9 documents, that is not a reason to strikedown the laws in their entirety.

In sum, we reject all of Puente’s arguments because eachone applies to only certain applications of the identity theftlaws. Accordingly, Puente has not met its burden of showinga clear and manifest purpose to completely preempt theselaws. See Cal. Div. of Labor Standards Enf’t v. DillinghamConst., N.A., 519 U.S. 316, 334 (1997) (“We could not holdpre-empted a state law in an area of traditional stateregulation based on so tenuous a relation without doing graveviolence to our presumption that Congress intended nothingof the sort.”). Because Puente has not come forward with acompelling reason why the statute is preempted on its face,we hold that Puente has not raised a serious question going tothe merits of its facial challenge.

We stress again that the only question for us to answer onthis facial challenge is whether the identity theft laws shouldbe enjoined in all contexts as applied to all parties. On thisrecord, we cannot say that every application isunconstitutional. Thus, we vacate the district court’spreliminary injunction and reverse its finding that Puente’sfacial challenge is likely to succeed on the merits. In doingso, we make no comment on the viability of Puente’s as-applied challenge still pending in the district court.

III

We now turn to Maricopa County’s Monell appeal. Thedistrict court found that Sheriff Arpaio is a policymaker forMaricopa County. Accordingly, the Court held that theCounty can be liable for the Sheriff’s actions under § 1983based on Monell v. Department of Social Services, 436 U.S.



658 (1978).11 The County attempts to appeal this ruling,arguing that it has no control over the Sheriff, a state officialunder Arizona law, so it should not be liable for his actions. In response, Puente argues that this issue is not properlybefore the court on an interlocutory preliminary injunctionappeal. We agree.

Generally parties must wait for final judgment to appeala district court’s ruling. See 28 U.S.C. § 1291. But in somecircumstances an interlocutory order is immediatelyappealable by statute—for example, when an interlocutoryorder grants an injunction. Id. § 1292(a)(1). In that case, wemay exercise pendent jurisdiction over issues outside theinjunction only if the issue is “inextricably intertwined” withor “necessary to ensure meaningful review of” the injunction. Meredith v. Oregon, 321 F.3d 807, 812–13, amended,326 F.3d 1030 (9th Cir. 2003) (quoting Swint v. ChambersCty. Comm’n, 514 U.S. 35, 51 (1995)).

Since 1995, the Supreme Court has made clear thatinvocation of pendent jurisdiction should be extremelylimited. See Swint, 514 U.S. at 45–48. Post-Swint, we havebeen hesitant to find pendent jurisdiction and we interpret the“inextricably intertwined” standard narrowly. Meredith,321 F.3d at 813–15. The standard is only satisfied where theissues are “(a) [] so intertwined that we must decide thependent issue in order to review the claims properly raised oninterlocutory appeal, or (b) resolution of the issue properlyraised on interlocutory appeal necessarily resolves the

11 In Monell, the Supreme Court held that local governments can beliable under § 1983 for constitutional violations resulting from “policy orcustom . . . made by its lawmakers or by those whose edicts or acts mayfairly be said to represent official policy.” 436 U.S. at 694.



pendent issue.” Cunningham v. Gates, 229 F.3d 1271, 1285(9th Cir. 2000), as amended (Oct. 31, 2000) (internal citationsomitted).

Issues are not “inextricably intertwined” when courtsapply different legal standards to each issue. Id. Forexample, in Swint, the Supreme Court held the EleventhCircuit erred in exercising pendent jurisdiction over acounty’s Monell liability, in part, because that issue could notbe “inextricably intertwined” with the proper subject of theinterlocutory appeal—qualified immunity. Swint, 514 U.S.at 51. The Swint Court suggested that a premature Monellappeal could not be bootstrapped onto a proper qualifiedimmunity interlocutory appeal because the issues involveddifferent legal inquiries. See id. While “qualified immunityturns on whether [individuals] violated clearly establishedfederal law,” a county’s liability under Monell for thesheriff’s actions turned “on the allocation of law enforcementpower.” Id. Even though the issues shared common facts,that was not enough to confer pendent jurisdiction where theissues involved different legal tests. See id; see alsoCunningham, 229 F.3d at 1285.

Post-Swint, we have found pendent jurisdiction in twonarrow categories of cases. First, jurisdiction is proper whenthe pendent issue implicates “the very power the district courtused to issue the rulings” under review. Hendricks v. Bank ofAm., 408 F.3d 1127, 1134–35 (9th Cir. 2005) (quotingMeredith, 321 F.3d at 816). For example, we have exercisedjurisdiction over issues of subject matter jurisdiction andpersonal jurisdiction when attending an interlocutory appeal. Id.; Smith v. Arthur Andersen LLP, 421 F.3d 989, 998 (9thCir. 2005). Issues, such as jurisdiction, which question theauthority of the court are “necessary to ensure meaningful



review of” injunctions because if the appellate court does nothave jurisdiction then it does not have the authority to addressany issue on appeal. See Hendricks, 408 F.3d at 1134.

Second, we have also exercised pendent jurisdiction overa small set of cases where ruling on the merits of the properinterlocutory appeal will necessarily resolve all of theremaining issues presented by the pendent appeal. SeeHuskey v. City of San Jose, 204 F.3d 893, 905 (9th Cir. 2000). To illustrate, in Huskey we held that a city’s Monell appeal ina § 1983 case was “inextricably intertwined” with anindividual defendant’s appeal from a denial of summaryjudgment based on qualified immunity. Id. at 904–05. There,we reversed the district court’s denial of qualified immunityfor a city attorney because the plaintiff failed to show aconstitutional violation. Id. at 902. Since this decision“necessarily foreclose[d] the possibility of the [c]ity’s § 1983liability,” we exercised pendent jurisdiction over the city’sMonell liability and held that the district court erred indenying the city’s motion for summary judgment. Id. at 904.

We hold that we do not have pendent jurisdiction overMaricopa County’s Monell liability. A district court’s orderdenying a county’s motion to dismiss under Monell isgenerally not immediately appealable. See Collins v. Jordan,110 F.3d 1363, 1366 n.1 (9th Cir. 1996). Thus, we must findthat the County’s Monell liability is “inextricablyintertwined” with the preliminary injunction to address themerits of the County’s argument. The fact that the partiesbriefed the Monell issue separately is a good indicator that itinvolves different legal standards from the injunction appeal. Just as the Supreme Court refused to exercise pendentjurisdiction in Swint because issues of Monell liability andqualified immunity involve different legal tests, we refuse to



combine a Monell appeal with an action revolving aroundapplication of the Winter test and preemption principles. These legal inquiries are analytically distinct.

Nor does the Monell issue fall within one of the narrowcategories of pendent jurisdiction. The Monell issue does notquestion the district court’s authority to impose an injunction. Unlike jurisdictional issues and certain immunities from suit,Monell is just a defense to liability. See Swint, 514 U.S. at43. If a county can show that the alleged wrongdoer is not apolicymaker that does not mean the court is without power tohear the case, it simply means the court should grantjudgment for the county.

Finally, because we reverse the district court’spreliminary injunction and remand for further proceedings,this case is also unlike the Huskey line of cases where rulingon the interlocutory appeal necessarily resolves the pendentappeal. In Huskey, we agreed to hear a city’s prematureappeal because we had already decided the plaintiff could notsucceed on his § 1983 claim and therefore the city could notbe liable. This case is inapposite—here we do not commenton the merits of Puente’s as-applied preemption challenge orits equal protection challenge, both of which remain pendingand should be addressed in the first instance by the districtcourt. Thus, our ruling on the preliminary injunction todaydoes not resolve the County’s ultimate liability in this case.

Because this case does not fall within one of the narrowcategories where invoking pendent jurisdiction is proper, wedismiss Maricopa County’s appeal for lack of jurisdiction.



IV

We hold that Arizona’s employment-related identity theftlaws are not preempted in all applications. We reverse thedistrict court’s finding that the laws are likely faciallypreempted. We also vacate the district court’s preliminaryinjunction and remand with instructions to evaluate the meritsof Puente’s remaining claims, including the as-appliedpreemption challenge. Finally, we dismiss MaricopaCounty’s Monell appeal for lack of jurisdiction withoutprejudice to renew that argument before final judgment isrendered.

Each party shall bear its own costs on appeal.

REVERSED in part, injunction VACATED,DISMISSED in part, and REMANDED with instructions.


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