in the united states court of appeals for the fifth … · case: 15-40238 document: 00512980288...

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

STATE OF TEXAS, et al., )

)

Plaintiffs-Appellees, ) Case Number: 15-40238

)

v. )

)

UNITED STATES OF )

AMERICA, et al., )

)

Defendants-Appellants. )

)

MOTION FOR LEAVE TO FILE AMICUS CURIAE BRIEF

OF JUDICIAL WATCH, INC. IN SUPPORT OF APPELLEES’

OPPOSITION TO APPELLANTS’ EMERGENCY MOTION

FOR STAY PENDING APPEAL

Pursuant to Rule 29(b) of the Federal Rules of Appellate Procedure, Judicial

Watch, Inc., by counsel, respectfully moves for leave to file an amicus curiae brief

in support of Appellees’ Opposition to Appellants’ Emergency Motion for Stay

Pending Appeal. In support thereof, Judicial Watch states as follows:

MEMORANDUM OF LAW

1. Judicial Watch, Inc. (“Judicial Watch”) is a not-for-profit, educational

organization that seeks to promote transparency, integrity, and accountability in

government and fidelity to the rule of law. Judicial Watch regularly monitors

significant developments in the courts and the law, pursues public interest

litigation, and files amicus curiae briefs on issues of public concern. Judicial

Case: 15-40238 Document: 00512980287 Page: 1 Date Filed: 03/24/2015

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Watch regularly files amicus curiae briefs as a means to advance its public interest

mission.

2. In this instance, Judicial Watch believes Appellants’ emergency

motion raises important public policy questions that directly impact the rule of law.

First, Appellants seek relief from this Court without waiting for the District Court

to rule on the motion to stay Appellants filed in that court. Second, and more

importantly, Appellants fail to demonstrate why destroying 30 years of status quo

and undermining duly enacted laws is necessary at this immediate date.

3. The relief Appellants seek would destroy the status quo and, in so

doing, undermine the rule of law. The District Court has already found that

preserving the status quo is important. This Court should not overturn that ruling

at this time.

4. U.S. Supreme Court Justices Clarence Thomas and Antonin Scalia

recently emphasized the importance of preserving the status quo in important

constitutional cases such as this lawsuit when they objected to the denial of a

motion to stay pending appeal in a same sex marriage case.

5. Judicial Watch’s proposed amicus curiae brief highlights Justices

Thomas’ and Scalia’s admonition and demonstrates how their concerns are directly

applicable here. The proposed brief also demonstrates how Appellants have failed

to comply with Rule 8 of the Federal Rules of Appellate Procedure.


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6. Judicial Watch’s motion is timely because Judicial Watch is seeking

to file its proposed amicus curiae brief within the time period permitted by the

Court for Appellees to file their opposition. The proposed brief is attached as

Exhibit A.

WHEREFORE, Judicial Watch respectfully requests that the Court grant its

motion for leave to file an amicus curiae brief and accept for filing the amicus

curiae brief attached as Exhibit A.

Dated: March 24, 2015 Respectfully Submitted,

/s/ Paul J. Orfanedes

Paul J. Orfanedes

JUDICIAL WATCH, INC.

425 Third Street, S.W., Suite 800

Washington, DC 20024

(202) 646-5172

Counsel for Judicial Watch, Inc.


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CERTIFICATE OF SERVICE

I hereby certify that on this 24th day of March 2015, I filed the foregoing via

the CM/ECF system and served the foregoing via the CM/ECF system on all

counsel who are registered CM/ECF users.



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Exhibit A


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APPEAL NO. 15-40238

IN THE

UNITED STATES COURT OF APPEALS


____________

STATE OF TEXAS, et al.,

Plaintiffs-Appellees,

v.

UNITED STATES, et al.,

Defendants-Appellants.

____________

AMICUS CURIAE BRIEF OF JUDICIAL WATCH, INC.

IN SUPPORT OF APPELLEES’ OPPOSITION TO APPELLANTS’

EMERGENCY MOTION FOR STAY PENDING APPEAL

____________

ON APPEAL FROM THE U.S. DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF TEXAS

BROWNSVILLE DIVISION ____________

Paul J. Orfanedes



Washington, D.C. 20024

(202) 646-5172

[email protected]

Counsel for Amicus Curiae


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IN THE UNITED STATES COURT OF APPEALS


STATE OF TEXAS, et al., )

)

Plaintiffs-Appellees, ) Case Number: 15-40238

)

v. )

)

UNITED STATES OF )

AMERICA, et al., )

)

Defendants-Appellants. )

)

SUPPLEMENTAL CERTIFICATE

OF INTERESTED PERSONS

The undersigned counsel of record certifies that the following listed persons

and entities as described in the fourth sentence of Rule 28.2.1 have an interest in

the outcome of this case. These representations are made in order that the judges

of this court may evaluate possible disqualifications or recusal.

Judicial Watch, Inc., Amicus Curiae

Paul J. Orfanedes, Counsel for Amicus Curiae Judicial Watch, Inc.



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CORPORATE DISCLOSURE STATEMENT

Judicial Watch, Inc. is a not-for-profit, educational organization that has no

parent company, and no publicly held corporation has a 10% or greater ownership

interest in Judicial Watch, Inc.



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i

TABLE OF CONTENTS

TABLE OF CONTENTS ............................................................................................ i

TABLE OF AUTHORITIES .................................................................................... ii

INTEREST OF JUDICIAL WATCH, INC. .............................................................. 1

ARGUMENT ............................................................................................................. 2

I. Appellants Did Not Provide the District

Court with the Opportunity To Rule ..................................................... 3

II. Preservation of the Status Quo is of Great

Importance When Benefits and Services

Are At-Issue .......................................................................................... 4

III. Appellants’ Argument Is

Unsupported by Facts ............................................................................ 7

CONCLUSION .......................................................................................................... 8

CERTIFICATE OF COMPLIANCE ......................................................................... 9


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ii

TABLE OF AUTHORITIES

Cases Page

Dayton Board of Education v. Brinkman, 439 U.S. 1358 (1978) .............................. 6

Hirschfeld v. Board of Elections, 984 F.2d 35 (2d Cir. 1993) ................................... 3

Houchins v. KQED, Inc., 429 U.S. 1341 (1977)........................................................ 6

Nken v. Holder, 556 U.S. 418 (2009) .................................................................... 3, 6

Ruiz v. Estelle, 650 F.2d 555 (5th Cir. 1981)............................................................. 3

Securities and Exchange Commission v. Dunlap,

253 F.3d 768 (4th Cir. 2001) ........................................................................... 3

Strange v. Searcy, 574 U.S. __, 2015 U.S. LEXIS 912 (Feb. 9, 2015) ................. 5, 6

Texas v. United States, 2015 U.S. Dist. LEXIS 18551,

(S.D. Tx. Feb. 16, 2015) .............................................................................. 4, 5

Veasey v. Perry, 769 F.3d 890 (5th Cir. 2014) .......................................................... 6

Rules

Fed. R. App. P. 8(a)(2)(A)(ii) .................................................................................... 2

Fed. R. App. P. 29(b) ................................................................................................. 2

Fed. R. App. P. 29(c) ................................................................................................. 2

Miscellaneous

Michael D. Shear and Julia Peterson, Administration

to Try to Block Ruling That Postpones

Immigration Actions, The New York Times (Feb. 20, 2015) ......................... 1


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iii

Press Release, Documents Reveal DHS Abandoned

Illegal Alien Background Checks to Meet

Amnesty Requests Following Obama’s

DACA, Judicial Watch, Inc. (June 11, 2013) ................................................... 7

Stephen Dinan, 23 Dreamers from Obama

amnesty snared in criminal dragnet,

The Washington Times (Mar. 19, 2015) .................................................... 7, 8


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INTEREST OF JUDICIAL WATCH, INC.

Judicial Watch, Inc. (“Judicial Watch”) is a not-for-profit, educational

organization that seeks to promote transparency, integrity, and accountability in

government and fidelity to the rule of law. Judicial Watch regularly monitors

significant developments in the courts and the law, pursues public interest

litigation, and files amicus curiae briefs on issues of public concern. Judicial

Watch regularly files amicus curiae briefs as a means to advance its public interest

mission.

In this instance, Judicial Watch believes Appellants’ emergency motion for a

stay pending appeal raises important public policy questions that directly impact

the rule of law. In filing their motion, Appellants disregard fundamental, well-

established norms of appellate procedure, apparently to try to score political points.

See Michael D. Shear and Julia Peterson, Administration to Try to Block Ruling

That Postpones Immigration Actions, The New York Times (Feb. 20, 2015) (“The

government is . . . sending a message to immigration advocates, many of whom

have been frustrated by the Justice Department’s [actions].”). First, Appellants

seek relief from this Court without waiting for the District Court to rule on the

motion to stay Appellants filed in that court. Second, and more importantly,

Appellants fail to demonstrate why destroying 30 years of status quo and

undermining duly enacted laws is necessary at this immediate date.


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Judicial Watch files this amicus curiae brief pursuant to Rule 29(b) of the

Federal Rules of Appellate Procedure. In addition, pursuant to Rule 29(c) of the

Federal Rules of Appellate Procedure, Judicial Watch, Inc. states that no counsel

for a party authored this brief in whole or in part, and no counsel or party made a

monetary contribution intended to fund the preparation or submission of this brief.

Nor did any person other than Judicial Watch, Inc. or its counsel make a monetary

contribution to its preparation or submission.

ARGUMENT

I. Appellants Did Not Provide the District Court With the

Opportunity to Rule.

Noticeably absent from Appellants’ emergency motion is why Appellants

believe this Court should rule on its motion at this time. On February 23, 2015,

Appellants moved for a stay pending appeal in the District Court. Appellees

responded, and on March 9, 2015, the District Court issued an order indicating it

would rule on the motion after a March 19, 2015 hearing. Nothing in the record

suggests the District Court will not rule shortly.

Rule 8(a)(2)(A)(ii) of the Federal Rules of Appellate Procedure, on which

Appellants rely, requires that a motion for a stay pending appeal filed in the

appellate court “must state that, a motion having been made, the district court

denied the motion or failed to afford the relief requested and state any reasons

given by the district court for its action.” Fed. R. App. P. 8(a)(2)(A)(ii). The


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District Court has not denied Appellants’ motion. Nor has the District Court failed

to afford the relief requested. It simply has not yet had the opportunity to rule on

the motion. Based on the plain language of the rule, Appellants’ motion should be

denied for this reason alone.

Similarly, this Court has held explicitly, “[T]he district court should have the

opportunity to rule on the reasons and evidence presented in support of a stay,

unless it clearly appears that further arguments in support of the stay would be

pointless in the district court.” Ruiz v. Estelle, 650 F.2d 555, 567 (5th Cir. 1981).

Other circuits impose the same requirement. See Hirschfeld v. Board of Elections,

984 F.2d 35, 38 (2d Cir. 1993) (The movants’ “papers give no explanation why the

instant motion for a stay pending appeal was made in the first instance to this

Court. No showing of impracticability of bringing such a motion in the district

court was offered in briefs or oral argument. The [movant] clearly made no effort

to follow proper appellate procedure in their motion for a stay.”); see also

Securities and Exchange Commission v. Dunlap, 253 F.3d 768, 774 (4th Cir.

2001). The requirement makes sense because “a stay is an intrusion into the

ordinary processes of administration and judicial review” and “is not a matter of

right.” Nken v. Holder, 556 U.S. 418, 427 (2009) (internal citations omitted).

Appellants’ sole argument for seeking relief from this Court before the

District Court has ruled is their “view of the urgency of obtaining a stay of the


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preliminary injunction.” Appellants’ Emergency Motion for Stay Pending Appeal

at 8. As demonstrated below, Appellants fails to show why destroying 30 years of

status quo and undermining duly enacted laws is necessary at this immediate date.

Because Appellants failed to wait for the District Court to rule in the motion to stay

pending appeal they filed in that court, Appellants do not satisfy the basic

requirements of Rule 8 and their emergency motion must be denied.

II. Preservation of the Status Quo Is of Great Importance When

Benefits and Services Are At-Issue.

In its February 16, 2015 decision preliminarily enjoining implementation of

the Deferred Action for Parents of American and Lawful Permanent Residents

(“DAPA”) program, the District Court found it was important to preserve the status

quo. Texas v. U.S., 2015 U.S. Dist. LEXIS 18551, **205-210 (S.D. Tx. Feb. 16,

2015). First, the court concluded that, even with a preliminary injunction in place,

“DHS may continue to prosecute or not prosecute [] illegally-present individuals,

as current laws dictate. This has been the status quo for at least the last five years.”

Id. Second, the court found, “If the preliminary injunction is denied, Plaintiffs will

bear the costs of issuing licenses and other benefits once DAPA beneficiaries –

armed with Social Security cards and employment authorization documents – seek

those benefits.” Id. Third, the court noted that, once DAPA beneficiaries received

benefits and services from the states, there is no effective way to “put[] the

toothpaste back in the tube” should Appellees ultimately prevail on the merits of


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their lawsuit. Id. In short, the District Court found that preserving the status quo is

important. This Court should not overturn that ruling at this time.

As this District Court found, a DAPA beneficiary not only receives a

promise that he or she will not be deported, but also receives the opportunity to

apply for numerous government benefits and services, such as the authority to

work and a driver’s license. Because granting Appellants’ motion would allow

millions of individuals to begin applying for benefits and services they otherwise

would not be eligible to receive, the recent admonition by U.S. Supreme Court

Justices Thomas and Scalia about failing to preserve the status quo pending appeal

is pertinent. In Strange v. Searcy, the Supreme Court declined to stay an

injunction preventing the Attorney General of Alabama from enforcing several

provisions of Alabama law defining marriage as a legal union of one man and one

woman pending an appeal of the injunction. Consequently, Alabama was required

to begin issuing marriage licenses to same-sex couples. As a result, individuals

undoubtedly have begun receiving marriage licenses and resulting government

benefits and services they otherwise would not be eligible to receive. If Alabama

succeeds on the merits, it will be required to void same-sex marriage licenses and

retract all benefits and services issued during the pendency of the appeal. In

objecting to the denial of the stay, Justices Thomas and Scalia wrote:

The [Supreme] Court look[ed] the other way as yet another Federal

District Judge casts aside state laws without making any effort to


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preserve the status quo pending the Court’s resolution of a

constitutional question . . . This acquiescence may well be seen as a

signal of the Court’s intended resolution of that question. This is not

the proper way to discharge our Article III responsibilities. And, it is

indecorous for this Court to pretend that it is.

574 U.S. __, 2015 U.S. LEXIS 912, **3-4 (Feb. 9, 2015) (Thomas, J., dissenting).

This Court should affirm the importance of preserving the status quo until a

final resolution is reached on the merits. See Veasey v. Perry, 769 F.3d 890, 892

(5th Cir. 2014) (“A stay pending appeal ‘simply suspends judicial alteration of the

status quo.’” (quoting Nken v. Holder, 556 U.S. at 429); see also Dayton Board of

Education v. Brinkman, 439 U.S. 1358, 1359 (1978) (“[T]he maintenance of the

status quo is an important consideration in granting a stay.”); Houchins v. KQED,

Inc., 429 U.S. 1341, 1346 (1977) (“[T]he preservation of that status quo is an

important factor favoring a stay.”). If this Court were to grant Appellants’ motion,

it would cast aside decades-old immigration laws passed by Congress and signed

by the President. These laws have been in place for almost 30 years. In seeking a

stay pending appeal, Appellants fail to demonstrate why destroying 30 years of

status quo and undermining duly enacted laws is necessary at this immediate date.

None of the reasons cited by Appellants in their motion answer the question: why

today? This Court should not discharge its Article III responsibilities by

acquiescing to Appellants’ unsubstantiated pleas. It should deny the motion.


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III. Appellants’ Argument Is Unsupported by Facts.

Appellants’ motion also should be denied because it is unsupported by facts.

Appellants argue:

The injunction also irreparably interferes with [Department of

Homeland Security (“DHS”)]’s ability to protect the Homeland and

secure our borders. Deferred action helps immigration officials

distinguish criminals and other high priority aliens from aliens who

are not priorities for removal and whose cases may additionally

burden backlogged immigration courts. Rather than wasting

resources determining whether encountered individuals are

enforcement priorities, DHS would be able to rely on proof of

deferred action to quickly confirm that they are not.

Appellants’ Emergency Motion for Stay Pending Appeal at 17 (internal citations

omitted). Through a Freedom of Information Act request, Judicial Watch obtained

records showing that DHS is failing to conduct required, comprehensive

background checks on aliens who apply for Appellants’ original deferred action

program, known as Deferred Action for Childhood Arrivals (“DACA”), in order to

accelerate the processing of applications. See Press Release, Documents Reveal

DHS Abandoned Illegal Alien Background Checks to Meet Amnesty Requests

Following Obama’s DACA, Judicial Watch, Inc. (June 11, 2013). Specifically, the

records reveal that DHS abandoned rigorous checks of DACA applicants’

backgrounds for minimal, “lean and lite” background checks. Id. In early March

2015, it was reported that 23 DACA beneficiaries were picked up in a nationwide

sweep of criminal aliens, 15 of which are current DACA recipients. See Stephen


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Dinan, 23 Dreamers from Obama amnesty snared in criminal dragnet, The

Washington Times (Mar. 19, 2015), available at http://www.washingtontimes.com/

new/2015/mar/19/23-dreamers-obama-amnesty-snared-criminal-dragnet. Because

there is evidence to suggest that comprehensive backgrounds checks are not being

performed, allowing the DAPA program to take effect pending Appellants’ appeal

of the District Court’s preliminary injunction is unlikely to assist DHS in

distinguishing criminal and other high priority aliens from non-criminal aliens.

CONCLUSION

For these reasons, Appellants’ motion for a stay should be denied.

Dated: March 24, 2015 Respectfully Submitted,


Paul J. Orfanedes



Washington, DC 20024

(202) 646-5172

Counsel for Judicial Watch, Inc.


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CERTIFICATE OF COMPLIANCE

1. This brief complies with the type-volume limitation of Fed. R. App. P.

32(a)(7)(B) because this brief contains 1,812 words, excluding the parts of the

brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii).

2. This brief complies with the typeface requirements of Fed. R. App. P.

32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because this

brief has been prepared in a proportionally spaced typeface using Microsoft Word

2010 in proportional Times New Roman, 14-point font.



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CERTIFICATE OF SERVICE

I hereby certify that on this 24th day of March 2015, I filed the foregoing via

the CM/ECF system and served the foregoing via the CM/ECF system on all

counsel who are registered CM/ECF users.



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