United States of America v. Arizona, State of, et al

Filing 152

LODGED Proposed Lodged Motion to Dismiss Counterclaims re: 150 Consent MOTION for Leave to File Excess Pages for Motion to Dismiss Counterclaims. Document to be filed by Clerk if Motion to Leave to File or Amend is granted. Filed by Eric Himpton Holder, Jr, Janet A Napolitano, United States Department of Homeland Security, United States Department of Justice, United States of America. (Chilakamarri, Varu)

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1 2 3 4 5 6 7 8 9 10 Tony West Assistant Attorney General Dennis K. Burke United States Attorney Arthur R. Goldberg Assistant Director, Federal Programs Branch Varu Chilakamarri (NY Bar #4324299) Joshua Wilkenfeld (NY Bar #4440681) U.S. Department of Justice, Civil Division 20 Massachusetts Avenue, N.W. Washington, DC 20530 Tel. (202) 616-8489/Fax (202) 616-8470 varudhini.chilakamarri@usdoj.gov Attorneys for the United States 11 UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 The United States of America, Plaintiff, v. The State of Arizona, et al., Defendants. The State of Arizona; and Janice K. Brewer, Governor of the State of Arizona, in her Official Capacity, Counterclaimants, v. The United States of America; the United States Department of Homeland Security; the United States Department of Justice; and Janet Napolitano and Eric H. Holder, Jr., in their official capacities. Counterdefendants. No. 2:10-cv-1413-SRB COUNTERDEFENDANTS’ MOTION TO DISMISS COUNTERCLAIMS AND MEMORANDUM OF LAW IN SUPPORT THEREOF ORAL ARGUMENT REQUESTED 1 TABLE OF CONTENTS 2 Page 3 INTRODUCTION ............................................................................................................... 1 4 BACKGROUND ................................................................................................................. 2 5 LEGAL STANDARD ......................................................................................................... 4 6 ARGUMENT ...................................................................................................................... 5 7 8 I. 9 Arizona’s Constitutional Claims are Barred by the Collateral Estoppel and Political Question Doctrines, and they Fail to State a Cognizable Claim ................ 5 A. Arizona’s Attempt to Re-Litigate Claims Under Article IV, the Tenth Amendment, and for Alleged Failure to Enforce Immigration Laws is Precluded by Arizona v. United States .......................................................... 5 B. Arizona’s Allegations Under Article IV of the Constitution (Count II) Raise a Nonjusticiable Political Question and Fail to State a Claim Upon Which Relief Can be Granted. .................................................................................. 8 C. Arizona’s Tenth Amendment Allegations (Count V) Must be Dismissed For Failure to State a Claim Upon Which Relief Can be Granted .............. 11 D. Arizona Lacks Standing to Raise Counts II, III, or V Against the Federal Government .............................................................................. 14 10 11 12 13 14 15 16 17 18 19 II. Arizona’s Statutory Claims Must be Dismissed as Unreviewable ........................... 15 A. Count III Must be Dismissed Because the Federal Government’s Enforcement of Immigration Laws is Committed to Agency Discretion by Law ....................................................................................... 15 B. Count I Must be Dismissed Because The Manner in Which DHS Works to Achieve “Operational Control” of the U.S. Border is Committed to Agency Discretion by Law and is Therefore Unreviewable. ...................... 18 C. Count IV Must be Dismissed Because Reimbursement Rates Under the SCAAP Program are Committed to the Attorney General’s Discretion by Law ....................................................................................... 25 20 21 22 23 24 25 26 27 CONCLUSION ................................................................................................................. 32 28 i 1 2 Counterdefendants, through their undersigned counsel, hereby move to dismiss the Counterclaims pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). 3 4 5 INTRODUCTION The United States filed suit to prevent the enforcement of a set of unprecedented 6 state immigration measures, enacted through Arizona Senate Bill 1070, which would 7 interfere and conflict with federal immigration laws and objectives. Now, through their 8 counterclaims, the State of Arizona and Governor Brewer (collectively “Arizona”) have 9 attempted to recast the justifications they advanced in defense of S.B. 1070 as claims 10 against the federal government – recycling a series of claims that Arizona brought against 11 the United States in 1994 that were rejected both by this Court and the Ninth Circuit. 12 Arizona contends that the Counterdefendants (“United States”) have violated Article IV 13 of the U.S. Constitution by failing to protect the State from an “invasion of illegal aliens.” 14 15 16 17 Arizona further alleges that the federal government’s immigration policies have indirectly resulted in a variety of expenditures for Arizona, in violation of the Tenth Amendment. In addition to raising these purported constitutional claims, which are virtually identical to the claims that Arizona unsuccessfully raised in 1994, the State asserts that the federal 18 19 20 21 22 23 government, through the Department of Homeland Security (“DHS”) and Department of Justice (“DOJ”), has failed to enforce immigration laws to the extent and in the manner desired by Arizona, and that these federal agencies have violated statutory directives related to the Secure Fence Act and the State Criminal Alien Assistance Program. Through its counterclaims, Arizona repeatedly raises generalized allegations and 24 questions of a political nature, rather than a colorable constitutional or statutory claim. 25 This Court is not the proper forum in which to air such grievances. Arizona’s 26 constitutional claims represent an improper attempt to re-litigate legal issues which have 27 already been adjudicated by this Court, and which are plainly barred as non-justiciable or 28 non-cognizable. Arizona’s statutory claims fare no better, as they seek to compel federal 1 1 agencies to take actions relating to immigration enforcement and control that are 2 committed to these agencies’ discretion and expertise. There is no legal basis for 3 requesting such extraordinary steps, nor are there any judicially manageable standards for 4 supervising these aspects of the federal government’s system of immigration 5 enforcement. Accordingly, this Court should dismiss the counterclaims in their entirety. 6 BACKGROUND 7 8 9 10 The regulation and control of immigration and the nation’s borders is a matter that is constitutionally vested in the political branches of the federal government. See U.S. Const., art. I § 8, cl. 3 & 4; id. art. II § 3. Congress has placed primary authority for the 11 enforcement of immigration laws in the Attorney General and the Secretary of Homeland 12 Security. See, e.g., 8 U.S.C. 1103; 6 U.S.C. §§ 251–52, 271. The federal government 13 continues to expend significant resources to enforce the immigration laws to prevent the 14 illegal migration of aliens across this country’s borders, and to remove aliens who have 15 unlawfully entered the United States or engaged in activity rendering them removable 16 from the United States. For example, in fiscal year 2010, the budget for DHS included 17 approximately $11.4 billion for U.S. Customs and Border Protection (“CBP”) and 18 approximately $5.7 billion for U.S. Immigration and Customs Enforcement (“ICE”). See 19 http://www.dhs.gov/xlibrary/assets/budget_bib_fy2011.pdf, page 17. In fiscal year 2009, 20 among its many other enforcement efforts, CBP processed over 360 million individuals at 21 ports of entry and found over 224,000 aliens to be inadmissible. See id. at 52. ICE 22 23 24 25 removed approximately 135,880 criminal aliens from the country in 2009, representing a nearly 19% increase from 2008. Id. at 63. DHS removed 358,886 aliens under formal removal orders in 2008, and 393,289 aliens under formal removal orders in 2009. U.S. Dep’t of Homeland Security, Office of Immigration Statistics, “Yearbook of Immigration 26 27 28 Statistics” at 95 (2009), available at http://www.dhs.gov/xlibrary/assets/statistics/ yearbook/2009/ois_yb_2009.pdf. Since 2004, DHS has doubled the size of the Border 2 1 Patrol, and for the first time in history, CBP has deployed unmanned aircraft systems 2 over the entire southwest border. See February 15, 2011 Testimony of Michael Fisher, 3 Chief of U.S. Border Patrol, Before House Committee on Homeland Security, 4 Subcommittee on Border and Maritime Security, available at 5 http://homeland.house.gov/sites/homeland.house.gov/files/Testimony%20Fisher_0.pdf. 6 7 As part of many other ongoing measures to improve immigration enforcement, Congress has enacted two additional provisions to improve border security and to further 8 9 10 11 respond to situations where aliens may elude the federal government’s enforcement efforts and unlawfully enter the country. In 2006, Congress passed the Secure Fence Act, which provided that the Secretary 12 of DHS shall take all actions she deems necessary and appropriate to “achieve and 13 maintain operational control” over the border. Pub. L. No. 109-367, § 2, 120 Stat. 2638 14 (2006), codified at 8 U.S.C. § 1701 note. The Secure Fence Act also amended Section 15 102 of the Illegal Immigration Reform and Immigrant Responsibility Act (“IIRIRA”), 16 Pub. L. No. 104-208, Div. C., § 102, which provides the Secretary with broad authority to 17 take “such actions as may be necessary” to install additional physical barriers and roads 18 near the border to deter illegal entry. See IIRIRA § 102(a) (as amended). As initially 19 enacted, the Secure Fence Act directed DHS to construct reinforced fencing and other 20 security features along five specific segments of the southern border, including a large 21 segment of the U.S. border in Arizona. See Pub. L. No. 109-367, § 3. However, in 2008, 22 23 24 25 Congress removed that requirement, and instead replaced it with a statutory framework that identifies as a target the construction of 700 miles of reinforced fencing along the southwest border, but which vests the Secretary with ultimate discretion to determine both where and what type of infrastructure is appropriate to achieve and maintain 26 27 28 operational control of the southwest border. Consolidated Appropriations Act, 2008, Pub. L. No. 110-161, Div. E, § 564 (amending IIRIRA § 102). As of February of this 3 1 year, DHS not only has completed approximately 649 miles of fencing along the 2 southwest border, but also continues to deploy additional border infrastructure and 3 technology. See March 9, 2011 Testimony of Janet Napolitano, Secretary of Homeland 4 Security, before Senate Committee on the Judiciary, available at 5 http://judiciary.senate.gov/pdf/11-3-9%20Napolitano%20Testimony.pdf; see also supra, 6 7 8 Fischer Testimony; Southwest Border Fence (Image of Construction Status), available at http://www.cbp.gov/linkhandler/cgov/newsroom/highlights/fence_map.ctt/ fence_map.pdf. 9 10 11 12 Through Section 241(i) of the Immigration and Nationality Act (“INA”), Congress has also provided for a system – referred to as the State Criminal Alien Assistance Program (“SCAAP”) – by which States may submit a written request for compensation 13 with respect to their incarceration of undocumented criminal aliens. See 8 U.S.C. 14 § 1231(i). Section 241 provides that, upon receipt of a State’s request for such assistance, 15 the “Attorney General shall, as determined by the Attorney General – (A) enter into a 16 contractual arrangement which provides for compensation to the State . . . or (B) take the 17 undocumented criminal alien into the custody of the Federal Government and incarcerate 18 the alien.” Id. § 1231(i)(1). Section 241 goes on to provide that “[c]ompensation under 19 paragraph (1)(A) shall be the average cost of incarceration of a prisoner in the relevant 20 State as determined by the Attorney General.” Id. § 1231(i)(2). In creating this program, 21 Congress also placed a statutory cap on the amount of money that could be appropriated 22 for the program every fiscal year, id. § 1231(i)(5); however, the amounts that Congress 23 has actually appropriated each year for these purposes have historically been less than the 24 25 maximum amount authorized by statute. See infra note 14. LEGAL STANDARD 26 27 28 Federal Rule of Civil Procedure 12(b)(1) provides for dismissal of a pleading where the claimant fails to meet its burden of establishing subject matter jurisdiction. St. 4 1 Clair v. City of Chico, 880 F.2d 199, 201 (9th Cir. 1989). In considering a motion under 2 Rule 12(b)(1), the court may consider the counterclaim as well as other evidence properly 3 before the court. Colwell v. Dep’t of HHS, 558 F.3d 1112, 1121 (9th Cir. 2009). 4 5 6 7 Under Rule 12(b)(6), a pleading may be dismissed when it fails to “state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). “To survive a motion to dismiss for failure to state a claim, a [counterclaimant] must state enough facts so that the claim is plausible on its face.” S.W. Windpower, Inc. v. Imperial Elec., Inc., 2011 WL 8 9 10 11 12 486089, at *1 (D. Ariz. Feb. 4, 2011). While the court should “treat all allegations of material fact in the [counterclaim] as true,” “conclusory allegations of law and unwarranted inferences are insufficient to defeat a motion to dismiss.” Id. The district court has broad discretion to dismiss claims under Rule 12(b)(6) when they have no legal 13 merit. Wood v. McEwen, 644 F.2d 797, 800 (9th Cir. 1981). Dismissal under Rule 14 12(b)(6) is also appropriate where claims are barred by collateral estoppel. See Fry v. 15 Northwestern Mut. Life Ins., 2010 WL 4581572, at *4 (D. Ariz. 2010). ARGUMENT 16 17 18 19 20 21 I. ARIZONA’S CONSTITUTIONAL CLAIMS ARE BARRED BY THE COLLATERAL ESTOPPEL AND POLITICAL QUESTION DOCTRINES, AND THEY FAIL TO STATE A COGNIZABLE CLAIM. A. Arizona’s Attempt to Re-Litigate Claims Under Article IV, the Tenth Amendment, and for Alleged Failure to Enforce Immigration Laws is Precluded by Arizona v. United States. 22 23 In Counts II, III, and V of its Counterclaim, Arizona advances the same claims 24 against the United States that were rejected by this Court in Arizona v. United States, No. 25 94-866 (D. Ariz. 1997) (“Arizona I”), where the State of Arizona alleged that the United 26 States had violated constitutional and statutory provisions relating to illegal immigration. 27 See id., aff’d, 104 F.3d 1095 (9th Cir. 1997) (for reasons set forth in California v. United 28 5 1 States, 104 F.3d 1086 (9th Cir. 1997), cert. denied, 522 U.S. 806 (1997)). 1 These claims 2 are therefore barred by the doctrine of collateral estoppel, which precludes “relitigation of 3 both issues of law and issues of fact if those issues were conclusively determined in a 4 prior action.” United States v. Stauffer Chemical Co., 464 U.S. 165, 170-71 (1984); 5 Segal v. Am. Tel. & Tel. Co., 606 F.2d 842, 845 (9th Cir. 1979) (defining issue preclusion 6 7 8 9 10 11 as foreclosing litigation of “issues of fact or law that were actually litigated and necessarily decided by a valid and final judgment between the parties, whether on the same or a different claim”). Undoubtedly, the collateral estoppel doctrine applies here because the claims at issue in Counts II, III, and V were actually litigated and decided in Arizona I. 2 In Count II, Arizona claims that the United States has violated Article IV, Section 12 13 4 of the Constitution by failing to protect the State from an invasion of unlawfully present 14 aliens (Counterclaim ¶ 163). In its prior lawsuit, Arizona claimed that the United States 15 failed to “protect the State of Arizona from the massive influx of illegal aliens that has 16 occurred and is continuing to occur . . . and to guarantee the sovereignty of the state and a 17 republican form of government to the people of the State of Arizona.” See Arizona I, 18 Amended Complaint ¶ 34, Doc. 13 3; see also id. ¶ 28 (stating that “[t]he massive and 19 20 21 1 The Ninth Circuit’s decision in California v. United States was incorporated into the Ninth Circuit’s affirmance of the dismissal of Arizona I. Accordingly, this memorandum refers to portions of California as having decided the appeal from Arizona I. 22 2 26 Similarly, Counts II, III, and V are barred by res judicata, because Arizona could have raised these various claims in its prior dismissed action against the United States. See, e.g., Stewart v. U.S. Bancorp, 297 F.3d 953, 956 (9th Cir. 2002) (“Res judicata, or claim preclusion, prohibits lawsuits on ‘any claims that were raised or could have been raised’ in a prior action.” (quoting Owens v. Kaiser Found. Health Plan, Inc., 244 F.3d 708, 713 (9th Cir. 2001) (emphasis in Stewart)). 27 3 23 24 25 28 Pursuant to L.R. Civ. 7.1(d)(4), copies of the Amended Complaint in Arizona I and this Court’s decision in Arizona I will be included as attachments to the courtesy copy of the instant motion delivered to the Court, as well as to counsel for all parties. 6 1 unlawful migration of foreign nationals constitutes an invasion of the State of Arizona . . . 2 pursuant to Article IV, Section 4”). In Count V, Arizona alleges that it has been forced 3 to expend state resources on incarceration and other expenses due to unlawfully present 4 aliens, in violation of the Tenth Amendment (Counterclaim ¶¶ 202-204). Similarly, in 5 Arizona I, the State alleged that “[a]s a result of federal immigration policy, the State of 6 7 8 9 10 11 12 13 Arizona has been required to expend its funds for the incarceration of those illegal aliens who commit felonies against the people of the State of Arizona,” and that “[i]n essence, the United States has ‘commandeered’ the Legislature of the State of Arizona” in violation of the Tenth Amendment. See Arizona I, Amended Complaint ¶¶ 63, 30. So too, in Count III, Arizona alleges that the federal government has adopted immigration enforcement policies “that are so extreme that they amount to an abdication of DHS’ and the DOJ’s statutory responsibilities,” (Counterclaim ¶¶ 180-182); and here again, in 14 Arizona I, the State asserted claims based on the “federal government’s manifestly 15 inadequate enforcement policy, its failure to observe its obligations under statutory and 16 constitutional law, and its reliance on policies that actually impede identification and 17 deportation of undocumented immigrants.” See Arizona I, Amended Complaint ¶¶ 3, 6, 18 31-32. 19 Each of these claims was dismissed by this Court under Rule 12(b)(6), and the 20 dismissal was affirmed by the Ninth Circuit. See Arizona I, April 18, 1995 Order, Doc. 21 28; California, 104 F.3d 1091-94. Arizona’s counterclaims are thus squarely foreclosed 22 by the collateral estoppel doctrine. In fact, Arizona even concedes that it has brought 23 these counterclaims in an effort to re-litigate issues that were definitively decided in the 24 earlier litigation: Arizona’s attorney-of-record in this action, Attorney General Thomas 25 26 27 28 Horne, has acknowledged that “[t]here are prior cases that went against [Arizona]” and that the counterclaims were filed so as to “ask[ ] the 9th Circuit to take a second look.” See Jerry Markon, “Arizona Files Countersuit Tied to Challenge of its Immigration Law,” The Washington Post, February 14, 2011, available at 7 1 http://www.washingtonpost.com/wp-dyn/content/article/2011/02/13/ 2 AR2011021303377.html. The underlying purpose of the collateral estoppel doctrine, 3 which is to promote adjudicative certainty, reliability, and finality, see Allen v. McCurry, 4 449 U.S. 90, 94 (1980), cannot be disregarded simply because a party wants the Court to 5 take a “second look.” For this reason alone, this Court should dismiss Counts II, III, and 6 V of the Counterclaim. 7 8 9 10 B. Arizona’s Allegations Under Article IV of the Constitution (Count II) Raise a Nonjusticiable Political Question and Fail to State a Claim Upon Which Relief Can be Granted. Arizona alleges that the United States has violated Article IV of the U.S. 11 Constitution by failing to protect the State from an “invasion” of unlawfully present 12 aliens. See, e.g., Counterclaim ¶¶ 162, 171. This Court lacks jurisdiction over this claim. 13 The Ninth Circuit has unequivocally held that federal courts lack jurisdiction over claims 14 brought under the “Invasion Clause” because such claims present a non-justiciable 15 political question: 16 17 18 19 20 21 22 23 24 25 [T]he issue of protection of the States from invasion implicates foreign policy concerns which have been constitutionally committed to the political branches. The Supreme Court has held that the political branches have plenary powers over immigration. For this Court to determine that the United States has been “invaded” when the political branches have made no such determination would disregard the constitutional duties that are the specific responsibility of other branches of government, and would result in the Court making an ineffective non-judicial policy decision. Additionally, even if the issue were properly within the Court’s constitutional responsibility, there are no manageable standards to ascertain whether or when an influx of illegal immigrants should be said to constitute an invasion. The Court notes that the other Circuits that have addressed the issues before us in similar suits against the United States have reached the same conclusions that we do. 26 California, 104 F.3d at 1091 (internal citations omitted). The court’s opinion in 27 California reflects the clear and binding determination of the Ninth Circuit, which, along 28 with other Circuits, has dismissed Invasion Clause claims as non-justiciable political 8 1 questions. See Barber v. Hawaii, 42 F.3d 1185, 1199 (9th Cir. 1994) (rejecting Invasion 2 Clause claim); see also Padavan v. United States, 82 F.3d 23 (2d Cir. 1996) (same); New 3 Jersey v. United States, 91 F.3d 463 (3d Cir. 1996) (same); Chiles v. United States, 69 4 F.3d 1094 (11th Cir. 1995) (same). 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 In California, the Ninth Circuit joined the other Circuits cited above in holding that an Invasion Clause claim represents a quintessential example of a question that is non-justiciable due to a lack of judicially applicable standards and the serious separation of powers concerns that would arise if the judiciary were to thrust itself into the matter. See 104 F.3d at 1090-91 (citing Baker v. Carr, 369 U.S. 186, 217 (1962)). The Ninth Circuit was correctly guided by Baker v. Carr, in which the Supreme Court established six “formulations” that signal the presence of issues which are committed – on separation of powers grounds – to the political branches and which therefore are unsuitable for judicial review: [1] a textually demonstrable constitutional commitment of the issue to a coordinate political department; or [2] a lack of judicially discoverable and manageable standards for resolving it; or [3] the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or [4] the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or [5] an unusual need for unquestioning adherence to a political decision already made; or [6] the potentiality of embarrassment from multifarious pronouncements by various departments on one question. 21 369 U.S. at 217. “Implicating any one of these factors renders a question ‘political’ and 22 thus nonjusticiable.” United States v. Mandel, 914 F.2d 1215, 1222 (9th Cir. 1990). 23 24 25 26 Arizona’s Invasion Clause claim implicates several of these formulations and thus, as the Ninth Circuit held in California, is squarely barred by the political question doctrine. The regulation of immigration and control over the borders are matters firmly entrusted to the political branches, see Mathews v. Diaz, 426 U.S. 67, 81-86 (1976), 27 28 thereby implicating the first and fourth formulations discussed above. Similarly, 9 1 protection of the United States from “invasion” implicates matters of foreign policy and 2 defense which likewise are vested exclusively with the political branches. See, e.g., 3 Barclays Bank PLC v. Franchise Tax Bd. of Cal., 512 U.S. 298, 325-327 (1994); Chicago 4 & Southern Air Lines, Inc. v. Waterman SS. Corp., 333 U.S. 103, 111 (1948). 5 6 7 8 9 10 11 12 13 Moreover, the second and third Baker formulations apply because the Constitution does not provide any standards for adjudicating Arizona’s claim – i.e., when a state has been “invaded” and what judicial remedy might be appropriately ordered to cure an “invasion.” Even if a peacetime influx of immigrants could be considered an “invasion,” (which, as discussed infra, it cannot), the Constitution provides no standard that would allow a federal court to determine either (i) when the influx should be deemed an invasion or (ii) the adequacy of the federal government’s response to such an invasion. Accordingly, just as the Ninth Circuit decided in California, the political question 14 doctrine precludes adjudication of Arizona’s claim. California, 104 F.3d at 1091; see 15 also Colorado v. Gonzales, 558 F. Supp. 2d 1158, 1162 (D. Colo. 2007). 4 16 17 18 19 20 21 22 23 24 25 26 27 28 4 Arizona’s Article IV claim also refers to the Constitution’s provision on protecting states from “domestic violence.” See Counterclaim ¶ 163. As with the other provisions of Article IV, Section 4, see, e.g., O’Hair v. White, 675 F.2d 680, 684 n.5 (5th Cir. 1982); see also California, 104 F.3d at 1091, the “Domestic Violence” claim presents a nonjusticiable political question. The same considerations underlying the Ninth Circuit’s political-question analysis for the Invasion Clause likewise require dismissal of claims under the Domestic Violence Clause, which (among other failings) “lack[] judicially discoverable and manageable standards.” See supra at 9-10; Baker, 369 U.S. at 217. Even if such standards existed, they would not apply here: “when that Clause speaks of ‘domestic Violence’ it means insurrection, riots, and other forms of civil disorder,” United States v. Smith, 171 F.3d 617, 626 (8th Cir. 1999), of a type that has not even been alleged in this case. Indeed, Arizona does not offer any allegations in support of its “domestic violence” claim other than those same allegations offered in support of its “invasion” claim. Accordingly, this claim should be dismissed both as repetitive of the “invasion” claim and as lacking sufficient specificity. See infra at 16 (citing Ashcroft v. Iqbal, 129 S.Ct. 1937 (2009)). Finally, as discussed above, this claim would be barred by res judicata. See supra note 2. 10 1 In an effort to escape the unequivocal precedent rejecting Invasion Clause claims, 2 Arizona suggests that “the concept of ‘invasion’ has changed since the drafting of the 3 Constitution.” Counterclaim ¶ 167. But regardless of whether the term “invasion” could 4 properly be expanded to cover non-military intrusions, as Arizona now contends, this 5 Court is precluded from entertaining the broader question in the first instance – the Ninth 6 7 8 9 10 11 12 13 Circuit determined that the political question doctrine bars the judicial branch from considering whether an invasion has actually occurred (regardless of what the abstract definition of invasion might be). See California, 104 F.3d at 1091. In addition, even if Article IV were subject to Arizona’s proposed dynamic construction, the Ninth Circuit has also made clear its view that “invasion” as used in Article IV is meant to afford protection to states “in situations wherein a state is exposed to armed hostility from another political entity[;] from ‘foreign hostility’ and ‘ambitious or vindictive enterprises’ 14 on the part of other states or foreign nations.” Id. at 1091 (quoting The Federalist, No. 15 43). Thus, even if Arizona’s Invasion Clause claims were otherwise justiciable, Arizona 16 has failed to state a cognizable claim for “invasion” under this Circuit’s precedent. 5 17 C. 18 Arizona’s Tenth Amendment Allegations (Count V) Must be Dismissed For Failure to State a Claim Upon Which Relief Can be Granted. Arizona’s Tenth Amendment claim likewise suffers the same deficiencies that it 19 20 did in Arizona I. Arizona claims that the federal government’s immigration policies have 21 indirectly resulted in a variety of expenditures for Arizona, in violation of the Tenth 22 Amendment. Counterclaim ¶¶ 202, 203. Specifically, Arizona alleges that federal 23 enforcement of the immigration laws “compel[s] Arizona to accommodate and provide 24 education, medical care, and other benefits to illegal aliens within its borders.” 25 Counterclaim ¶ 202. But these expenditures are not incurred as a result of any command 26 set forth in the federal government’s immigration policies. Rather, as the Ninth Circuit 27 5 28 Moreover, Arizona’s contention that the concept of “invasion” has changed cannot seriously be applied in light of the Ninth Circuit’s decision in California – it is difficult to comprehend how this constitutional concept has materially changed since 1997. 11 1 explained in California, the Tenth Amendment is not implicated where alleged state costs 2 arise due to state activities and “independent constitutional obligation[s]” and where “no 3 federal mandate requires [Arizona] to pursue a . . . policy resulting in these costs.” 4 California, 104 F.3d at 1093. 5 6 7 8 9 10 11 12 13 14 15 16 17 18 Arizona alleged nearly identical injuries in 1994, claiming that the United States violated the Tenth Amendment by enacting an immigration policy that resulted in a variety of costs for the State, including those related to incarceration. California, 104 F.3d at 1092-93; see Arizona I, Amended Complaint ¶¶ 63-67. The Ninth Circuit rejected Arizona’s Tenth Amendment claims (which were similar to those brought by California), because the various cited costs were incurred as part of state, and not federal, programs: California also contends . . . that the United States has violated the Tenth Amendment because federal immigration policy causes the State to incur the costs of incarcerating those illegal aliens who commit crimes within the State. California reasons that because the United States has failed to effectively enforce its immigration policies, the Federal Government has essentially “commandeered” the State’s legislative process by forcing California to allocate money and human resources to both incarcerate illegal alien felons and supervise their parole. 20 The Court concludes that California has failed to allege a Tenth Amendment violation because no federal mandate requires California to pursue a penal policy resulting in these costs. 21 Id. at 1092-93. The Ninth Circuit held that the same analysis applies for all other costs 19 22 23 24 25 26 27 28 that the State claimed were incurred as a result of federal immigration policy: Finally, California argues that the Federal Government has violated the Tenth Amendment because the State must allocate funds to pay for the public education of alien children. We note that this argument is merely a variation of California's claim that the Tenth Amendment is violated when it expends funds to incarcerate illegal aliens. Again, California contends that the costs of educating alien children stems from the Federal Government’s ineffective policing of national borders. We find California’s argument unpersuasive. Because the State’s obligation to 12 provide this education derives from an independent constitutional obligation and not federal immigration policy, see Plyler v. Doe, 457 U.S. 202, 230 (1982), the Tenth Amendment is not implicated. 1 2 3 4 5 6 Id. at 1093. The Tenth Amendment analysis from California is binding as well as plainly correct. The Tenth Amendment precludes the federal government from “simply commandee[ring] the legislative processes of the States by directly compelling them to 7 enact and enforce a federal regulatory program.” New York v. United States, 505 U.S. 8 144, 161 (1992) (internal citation omitted); Printz v. United States, 521 U.S. 898, 935 9 (1997). No such commandeering can plausibly be claimed here. The federal 10 immigration policies cited by Arizona are administered by federal agencies; their 11 implementation does not direct Arizona to do anything. Arizona nonetheless maintains 12 that the Tenth Amendment is violated by the State’s expenditure of funds that, Arizona 13 claims, results from the unlawful presence of aliens which, in turn, allegedly results from 14 federal immigration policy. Counterclaim ¶ 202. But Arizona expenditures made 15 pursuant to a set of Arizona programs do not raise Tenth Amendment concerns, even if 16 those expenditures were allegedly affected by federal activity. Costs incurred as a result 17 of Arizona’s enforcement of its criminal laws against unlawfully present immigrants do 18 19 20 21 not raise Tenth Amendment concerns “because no federal mandate requires [Arizona] to pursue a . . . policy resulting in these costs.” California, 104 F.3d at 1093; see also Arizona I, April 18, 1995 Order at 9 (“The cost of incarcerating illegal aliens results not from federal law but from Arizona’s own decision to prosecute illegal aliens for criminal 22 23 24 25 26 27 28 offenses defined by Arizona law. The Government did not command Arizona to enact and enforce a criminal code.”). Accordingly, Arizona’s Tenth Amendment claim raises the same deficient arguments as it did in Arizona I, necessitating dismissal under Rule 12(b)(6). 6 6 Arizona also puzzlingly suggests that the United States has violated the Tenth Amendment by bringing suit challenging the constitutionality of S.B. 1070 (i.e., the original set of claims in this action) and preventing Arizona’s implementation of S.B. 13 1 2 3 D. Arizona Lacks Standing to Raise Counts II, III, or V Against the Federal Government. Even if Counts II, III and V of Arizona’s Counterclaim are otherwise justiciable, 4 the claims must nonetheless be dismissed if Arizona lacks standing to bring them – an 5 inquiry that requires Arizona to demonstrate that it has suffered a legal injury in fact, that 6 a causal connection to the purported illegal actions of the counterefendants exists, and 7 that the relief sought will likely redress the injury. Lujan v. Defenders of Wildlife, 504 8 U.S. 555, 560 (1992). Here, Arizona cannot show that the federal government has caused 9 10 11 the alleged injuries, i.e., the costs associated with unlawfully present aliens entering and residing in the State. To establish the causation element of standing, a claimant must show that the alleged injury “fairly can be traced to the challenged action of the 12 13 14 15 16 defendant, and not injury that results from the independent action of some third party not before the court.” Simon v. E. Kentucky Welfare Rights Org., 426 U.S. 26, 41-42 (1976). Arizona’s claimed injuries have not been caused by the United States; rather, the causes of migration into the United States, whether legal or illegal, are as many and varied as the 17 persons who come to this country. And for those immigrants who unlawfully enter or 18 reside here, that process includes the deliberate decision to evade federal law. While the 19 United States in no way condones the criminal conduct and the various costs associated 20 with those who unlawfully enter or remain in the country – and continues to expend a 21 great deal of resources to enforce the immigration laws and remove unlawfully present 22 23 24 25 26 27 28 1070. Counterclaim ¶¶ 199, 212. There simply is no basis to suggest that the Tenth Amendment is implicated by the United States’ decision to bring a lawsuit to enforce the Supremacy Clause of the Constitution. Arizona’s argument is self-contradictory, and is simply another way of arguing that S.B. 1070 is not preempted. This Court has, of course, already held that portions of the United States’ preemption claims were likely to succeed on the merits (a decision recently affirmed by the Ninth Circuit), and has otherwise refused to dismiss the United States’ lawsuit. Plainly, the Tenth Amendment is not violated by the enforcement of the Supremacy Clause – enforcing the latter ensures that the states have not exceeded the authority retained under the former. 14 1 aliens – the conduct of these individuals is attributable to them and not to the United 2 States. 3 4 ARIZONA’S STATUTORY CLAIMS MUST BE DISMISSED AS UNREVIEWABLE. 5 In addition to its constitutional claims, Arizona alleges that DHS and DOJ have 6 failed to comply with various federal statutes relating to immigration enforcement and 7 border control, and requests the extraordinary relief of mandamus to force these agencies 8 to take certain actions. See Counterclaim, Counts I, III, and IV. These claims are 9 untenable. 10 II. Here, the Administrative Procedure Act (“APA”), 5 U.S.C. § 701 et seq, provides 11 the only potential basis for review of counterclaimants’ statutory claims. The APA 12 generally allows for judicial review of “final agency action for which there is no other 13 adequate remedy in a court,” 5 U.S.C. § 704, and permits a reviewing court to “compel 14 agency action unlawfully withheld or unreasonably delayed,” id. § 706(1). See 15 Counterclaim ¶ 18. However, review of agency inaction “can proceed only where a 16 [claimant] asserts that an agency failed to take a discrete agency action that it is required 17 to take.” Norton v. Southern Utah Wilderness Alliance (“SUWA”), 542 U.S. 55, 64 18 (2004) (emphasis in original). Further, under the APA, judicial review is precluded over 19 matters which are “committed to agency discretion by law.” 5 U.S.C. § 701(a); see 20 Heckler v. Chaney, 470 U.S. 821, 828 (1985) (“The APA’s comprehensive provisions for 21 22 23 judicial review of ‘agency actions,’ are contained in 5 U.S.C. §§ 701-706 . . . [b]ut before any review at all may be had, a party must first clear the hurdle of § 701(a).”). Under these prerequisites, none of Arizona’s statutory claims withstands scrutiny. 24 25 26 27 28 A. Count III Must be Dismissed Because the Federal Government’s Enforcement of Immigration Laws is Committed to Agency Discretion by Law. In Count III, Arizona makes vague and generalized claims as to the federal government’s alleged failure to adequately enforce federal immigration statutes. See 15 1 Counterclaim ¶¶ 180-182. This Count should be dismissed outright because it does not 2 satisfy the bare minimal pleading requirements under Rule 8. In this Count, Arizona 3 simply alleges that the federal government has failed to “enforce certain provisions of the 4 federal immigration laws,” without citing to the federal statutes that have allegedly been 5 violated or explaining what these statutes specifically require of the federal government. 6 7 8 Arizona’s claim amounts to nothing more than an “unadorned, the-defendant-unlawfullyharmed-me accusation,” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009), which cannot survive a motion to dismiss. 7 9 Even if this claim met the pleading requirements, judicial review of this claim 10 11 12 13 would be precluded because, as the Ninth Circuit has explicitly held, immigration enforcement decisions are wholly committed to agency discretion and are therefore unreviewable. In California, the State “alleg[ed] that the Attorney General has failed to 14 adequately fulfill her obligation to enforce the country’s immigration laws.” 104 F.3d at 15 1094. The Ninth Circuit affirmed the dismissal of California’s claim, because the 16 Attorney General’s immigration enforcement decisions are committed to agency 17 prosecutorial discretion as a matter of law: 18 [T]he Court cannot, with propriety, address the issues raised. In Heckler v. Chaney, 470 U.S. 821, 838 (1985) the Supreme Court held that “agency refusals to institute investigative or enforcement proceedings” fall within the “exception to reviewability provided by [5 U.S.C.] § 701(a)(2) for action ‘committed to agency discretion.’” Each of the claims asserted by California under these statutes implicates the institution of enforcement 19 20 21 22 7 23 24 25 26 27 28 Among the general allegations made in Count III, Arizona claims that “ICE may choose not to respond to inquiries from Arizona regarding individuals’ immigration status,” Counterclaim ¶ 181 (emphasis added) and thus requests “an order requiring DHS to respond to inquiries made by Arizona law enforcement personnel or agencies seeking to verify or ascertain the citizenship or immigration status of any individual under the jurisdiction of the law enforcement agency,” Counterclaim ¶ 184. Aside from its other failings, Arizona lacks standing to pursue this claim. At no point has Arizona alleged that DHS has not responded to Arizona’s inquiries, thus it has not been injured by the administration of 8 U.S.C. § 1373. 16 1 2 3 4 actions of the variety contemplated in Heckler. As the Court noted in Heckler, “an agency’s decision not to prosecute or enforce, whether through civil or criminal process, is a decision generally committed to an agency’s absolute discretion.” . . . 470 U.S. at 831. Accordingly, these issues, having been committed to agency discretion, are not subject to judicial review. 5 Id. California recognized that the Supreme Court’s decision in Heckler established a 6 clear rule that a federal agency’s decision not to take an enforcement action is committed 7 to agency discretion by law, 5 U.S.C. § 701(a)(2), and thus not subject to judicial review 8 under the APA. Heckler, which governs the instant counterclaim, involved a statute that 9 “state[d] baldly that any person who violates the Act’s substantive prohibitions ‘shall be 10 11 12 13 14 imprisoned . . . or fined.’” 470 U.S. at 835. Although this “bald” language was unambiguous as to the need for a fine or imprisonment, the Supreme Court nevertheless concluded that the Secretary of Health and Human Services had unreviewable discretion to decline to take action with regard to any given violation. The Court noted that even mandatory statutory language does not require an enforcement action and, just as 15 16 17 18 importantly, does not allow a court to review the prosecutor’s exercise of discretion. Id. Although Arizona seeks judicial review of the federal government’s “refus[al] to enforce certain provisions of the federal immigration laws” (Counterclaim ¶ 182), 19 Heckler and California make clear that Arizona cannot challenge the federal 20 government’s exercise of prosecutorial discretion in the enforcement of the federal 21 immigration laws. Accordingly, this claim must be dismissed. 22 Nor can Plaintiffs claim that the United States has “abdicat[ed its] statutory 23 responsibilities” under the immigration laws. Counterclaim ¶ 180. Although the Ninth 24 Circuit has recognized a limited exception to the general rule of nonreviewable 25 prosecutorial discretion in certain instances in which an agency “has consciously and 26 expressly adopted a general policy that is so extreme as to amount to an abdication of its 27 statutory responsibilities,” Montana Air Chapter No. 29 v. FLRA, 898 F.2d 753, 756 (9th 28 Cir. 1990) (internal citations omitted)), that exception is plainly inapplicable here. The 17 1 United States has, of course, adopted no policy abandoning its enforcement 2 responsibilities (nor has Arizona’s counterclaim specifically identified any policy of 3 abdication). Indeed, Arizona’s argument is defeated by its own allegations. Arizona 4 does not allege that the United States has failed to enforce immigration laws altogether, 5 but merely alleges that the United States has chosen to enforce the immigration laws in a 6 7 8 9 10 11 12 manner that Arizona believes is not what Congress intended. See Counterclaim at 32; id. ¶ 181 (claiming that “enforcement of the federal immigration laws . . . ha[s] provided greater protection to other states than to Arizona”). Even accepting Arizona’s own allegations as true, then, the United States’ enforcement of the federal immigration laws is a legitimate exercise of discretion to allocate law enforcement resources and determine priorities. See Heckler, 470 U.S. at 831. Arizona’s counterclaim thus suffers the same failings as the claim previously 13 14 brought by California: Arizona seeks judicial review of enforcement decisions that are 15 committed to agency discretion by law and are therefore unreviewable under the APA. 8 16 B. 17 18 19 Count I Must be Dismissed Because The Manner in Which DHS Works to Achieve “Operational Control” of the U.S. Border is Committed to Agency Discretion by Law and is Therefore Unreviewable. Even if Arizona had standing to assert a claim under IIRIRA § 102 (as amended 20 by the Secure Fence Act and Consolidated Appropriations Act, 2008), 9 its claims 21 8 22 23 Once again, Arizona suggests that the United States has violated federal law by bringing suit to enjoin the implementation of S.B. 1070. See Counterclaim ¶ 181(b). As discussed above, see supra note 6, there is no basis for claiming that federal law has been violated by the filing of a lawsuit claiming a violation of the Supremacy Clause. 24 9 25 26 27 28 Although it is Arizona’s burden to do so, Arizona has not identified either a basis for standing or a right of action which would enable Arizona to bring this specific challenge to the enforcement of IIRIRA § 102. See generally Suter v. Artist M., 503 U.S. 347, 363 (1992) (plaintiff bears burden of demonstrating existence of private right of action); San Diego County Gun Rights Comm. v. Reno, 98 F.3d 1121 (9th Cir. 1996) (“As the parties invoking federal jurisdiction, plaintiffs bear the burden of establishing their standing to sue.”). 18 1 improperly seek to compel agency action which is either not required or is committed to 2 the sole discretion and expertise of the agency. 3 First, the counterclaimants seek some sort of broad mandamus relief requiring the 4 Secretary of DHS to achieve and maintain “‘operational control’ of the Arizona-Mexico 5 border” in compliance Section 2 of with the Secure Fence Act. Counterclaim ¶ 157a, 6 158. However, the APA does not provide for review of DHS’s alleged failure to obtain 7 “operational control” of the border under Section 2 of the Secure Fence Act. Although 8 the APA allows reviewing courts to “compel agency action unlawfully withheld or 9 unreasonably delayed,” 5 U.S.C. § 706(1), the Supreme Court has unanimously held that 10 a plaintiff cannot maintain a claim under Section 706(1) absent a mandatory statutory 11 obligation that an agency take the specific, discrete action that the plaintiff wants it to 12 take. SUWA, 542 U.S. 64. 13 In SUWA, the plaintiffs claimed that a statute directing the Bureau of Land 14 Management to “continue to manage [wilderness areas] in a manner so as not to impair 15 the suitability of such areas for preservation as wilderness,” required the agency to ban 16 off-road vehicles in certain wilderness areas. Id. at 65. The Supreme Court dismissed the 17 plaintiffs’ “failure to act” claim, because the statute at issue simply directed the agency to 18 preserve the character of wilderness areas. Id. at 65-67. The Court explained that a 19 “failure to act” under the APA is “properly understood to be limited, as are the other 20 items in § 551(13), to a discrete action.” Id. at 62-63 (emphasis in original). Therefore, 21 “a claim under § 706(1) can proceed only where a plaintiff asserts that an agency failed to 22 take a discrete agency action that it is required to take.” Id. at 64; Hells Canyon 23 Preservation Council v. U.S. Forest Serv., 593 F.3d 923, 932-33 (9th Cir. 2010) 24 (rejecting plaintiff’s effort to compel Forest Service to designate specific trail as a non- 25 motorized “wilderness area,” because the APA “does not give us license to ‘compel 26 agency action’ whenever the agency is withholding or delaying an action we think it 27 should take[;] [i]nstead, our ability to ‘compel agency action’ is carefully circumscribed 28 to situations where an agency has ignored a specific legislative command.”). 19 1 Just as the plaintiffs in SUWA, Arizona alleges here that DHS has failed to 2 comply with a broad statutory directive. Quoting the statute, Arizona contends that the 3 Secretary has not taken “all actions the Secretary determines necessary and appropriate to 4 achieve and maintain operational control over the entire international land and maritime 5 borders,” language which clearly contemplates broad Secretarial discretion and an 6 absence of specifically mandated “discrete” actions. See Secure Fence Act, Pub. L. No. 7 109-367, § 2 (2006), codified at 8 U.S.C. § 1701 note (defining “operational control” as 8 “the prevention of all unlawful entries into the United States, including entries by 9 terrorists, other unlawful aliens, instruments of terrorism, narcotics, and other 10 contraband”). Like the statute at issue in SUWA, which required the agency to manage 11 lands in a particular manner, the “operational control” directive contained in the Secure 12 Fence Act may be “mandatory as to the object to be achieved, but it leaves [DHS] a great 13 deal of discretion in deciding how to achieve it.” 542 U.S. at 66. Indeed, the Act 14 explicitly entrusts the Secretary to take actions that she “determines necessary and 15 appropriate” to achieve operational control over the border. The “operational control” 16 mandate is not a specific, discrete action of the sort that the courts have the ability to 17 compel under the APA. And it is telling that Arizona does not request a discrete action in 18 its “operational control” claim, 10 and instead asks this Court to direct DHS to comply 19 with the “operational control” mandate; to order DHS to “deploy such temporary 20 measures as are necessary and appropriate to protect Arizona . . . until the Secretary has 21 achieved ‘operational control’ of the Arizona-Mexico border”; and to hold a hearing “to 22 address any other general or specific relief that may be necessary or appropriate under the 23 circumstances.” Counterclaim ¶¶ 158a-b. In so doing, Arizona requests a remedy that 24 the Supreme Court has expressly forbidden: a “wholesale improvement of [a] program 25 by court decree, rather than in the offices of the Department or the halls of Congress.” 26 27 28 10 Arizona’s specific request concerning the construction of the 700 mile fence will be addressed below, although it too is subject to the same flaws. 20 1 SUWA, 542 U.S. at 64, 66-67 (explaining that the APA does not contemplate relief that 2 would require the “supervising court, rather than the agency, to work out compliance 3 with the broad statutory mandate, injecting the judge into day-to-day agency 4 management”). 11 5 Second, Arizona seeks mandamus relief ordering the Secretary to complete “at 6 least 700 miles of fencing” along with additional infrastructure listed in the Consolidated 7 Appropriations Act amendments to IIRIRA § 102. Counterclaim ¶ 157b. This claim also 8 fails under the APA, because the actions at issue are committed to the agency’s discretion 9 under the applicable statutes, and are therefore not reviewable by this Court. See 5 10 U.S.C. § 701. An agency decision is deemed to be “committed to agency discretion” “if 11 no judicially manageable standards are available for judging how and when an agency 12 should exercise its discretion.” Heckler, 470 U.S. at 830; Diaz-Covarrubias v. Mukasey, 13 11 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Although Arizona does not request any specific injunctive relief relating to congressional reporting requirements, see Counterclaim ¶ 157, it alleges that DHS has not complied with the Secure Fence Act’s requirement that DHS “submit to Congress a report on the progress made toward achieving and maintaining operational control over the [border],” apparently quarreling with the content of DHS’s reports and statements to Congress, see Counterclaim ¶¶ 92-95. However, courts, including the Ninth Circuit, have made clear that when Congress has requested an explanation of some matter from the Executive Branch, the determination of whether Congress should be satisfied with the proffered explanation should be left to Congress. A report to Congress is “not agency action of the sort that is typically subject to judicial review. . . . Because it triggers no legal consequences and determines no rights or obligations, no check on the substance of the report is necessary. Having requested the report, Congress, not the judiciary, is in the best position to decide whether it’s gotten what it wants.” Guerrero v. Clinton, 157 F.3d 1190, 1196 (9th Cir. 1998) (holding that Hawaii did not have standing and did not present a reviewable claim, where it alleged that the Interior Department failed to meet congressional reporting requirements concerning the impact of a federal-state compact, even where the reports were to include the views of Hawaii); see also Nat. Res. Def. Council, Inc. v. Hodel, 865 F.2d 288, 318-19 (D.C. Cir. 1988) (holding that a congressional reporting provision “embodies a requirement that by its nature seems singularly committed to congressional discretion in measuring the fidelity of the Executive Branch actor”); College Sports Council v. GAO, 421 F. Supp. 2d 59, 67 (D.D.C. 2006) (similar). The absence of a meaningful standard, in combination with the very nature of a congressional reporting requirement, demonstrates that it is for Congress alone to decide whether it wants to receive more information from DHS. 21 1 551 F.3d 1114, 1118 (9th Cir. 2009). Thus, when a statute directs the Secretary to make 2 certain decisions but then offers no “relevant statutory reference point for the court” to 3 evaluate those decisions, “other than the decisionmaker’s own views of what is [ ] 4 appropriate,” the decision is unreviewable under the APA. Milk Train, Inc. v. Veneman, 5 310 F.3d 747, 751 (D.C. Cir. 2003) (internal quotation marks omitted) (holding that the 6 Secretary of Agriculture’s determination of the manner in which to provide dairy 7 subsidies was committed to agency discretion where the statute provided that the funds 8 be disbursed “in a manner determined appropriate by the Secretary”). 9 Section 102 of the IIRIRA (as amended) vests in the Secretary complete discretion 10 for determining how to gain operational control of the border and where fencing and 11 additional measures should be utilized in that effort, directing the Secretary to construct 12 reinforced fencing along the southwest border “where fencing would be most practical 13 and effective,” IIRIRA § 102(b)(1)(A), specifying that: 14 15 16 17 18 [N]othing in this paragraph shall require the Secretary of [DHS] to install fencing, physical barriers, roads, lighting, cameras, and sensors in a particular location along an international border of the United States, if the Secretary determines that the use or placement of such resources is not the most appropriate means to achieve and maintain operational control over the international border at such location. 19 IIRIRA § 102(b)(1)(D) (emphases added). Further, the Act prescribes no deadline for 20 completing the construction of 700 miles of fencing or installing additional physical 21 barriers, roads, lighting, cameras, and sensors along the southwest border, despite the fact 22 that the Act prescribed deadlines in other instances. Compare IIRIRA 23 § 102(b)(1)(B), with id. § 102(b)(1)(A). Thus, by its use of deferential language and 24 terms, IIRIRA § 102 (as amended) explicitly entrusts the Secretary with the ultimate 25 discretion to determine whether fencing or other measures should be installed in any 26 “particular location,” and whether “the use or placement of such resources” is the most 27 appropriate means of achieving operational control over the border. IIRIRA 28 § 102(b)(1)(D); see Webster v. Doe, 486 U.S. 592, 603-04 (1988) (holding that a 22 1 provision allowing termination of a CIA employee whenever the Director “shall deem 2 such termination necessary or advisable in the interests of the United States” precluded 3 judicial review of APA claim) (emphasis added); Drake v. FAA, 291 F.3d 59, 72 (D.C. 4 Cir. 2002) (noting that a statutory provision that allows the agency head to act when 5 “[she] ‘is of the opinion that the complaint does not state facts that warrant an 6 investigation,’” gives the agency “virtually unbridled discretion over such decisions”) 7 (emphasis added). Section 102 of IIRIRA does not provide any further guidance 8 regarding the manner of construction and placement of fencing and other measures. And 9 while much fence construction has already taken place along the border in Arizona, see 10 supra at 4, the language of the applicable statutes provides no meaningful standards by 11 which to review the Secretary’s decisions in this regard. 12 12 In addition, even if IIRIRA § 102 were construed to provide Arizona with some 13 enforceable interest with respect to the construction of fencing, there remains no 14 meaningful standard by which this Court can review the agency’s allocation and 15 prioritization of resources concerning border control measures. DHS is an agency with 16 limited resources and enormous responsibility, which includes nothing short of ensuring 17 the security of the entire American public, including the citizens of Arizona. See 6 18 U.S.C. § 111. Through both the Secure Fence Act and IIRIRA § 102, DHS has been 19 tasked with multiple mandates and objectives, such as taking all actions deemed 20 necessary to achieve and maintain operational control over the border, which may include 21 22 23 using personnel and technology such as unmanned aerial vehicles, satellites, radar coverage, and ground-base sensors to systematically survey the entire international land and maritime border, see Pub. L. No. 109-367, § 2; constructing fencing along the 24 25 26 27 28 12 To the extent that Arizona is not seeking an order requiring the Secretary to construct more fencing along Arizona’s border, its claim would be barred for lack of standing – the requested relief would not redress the alleged injury, in that the construction of fencing outside of Arizona would not affect injuries that Arizona claims are sustained due to issues arising from DHS’s management of the “Arizona-Mexico border.” See Lujan, 504 U.S. at 560-61. 23 1 southwest border, see IIRIRA § 102(b); installing additional physical barriers, roads, 2 lighting, and cameras along the southwest border, id.; and conducting a study regarding 3 security measures on the northern border, see Pub. L. No. 109-367, § 4. Congress has not 4 earmarked particular funds for any one of these border related projects. Instead, 5 Congress has allocated a lump sum appropriation for “customs and border protection 6 fencing, infrastructure, and technology,” which includes the cost associated with all of 7 the mandates and objectives set forth in the applicable statutes. See Dep’t of Homeland 8 Sec. Appropriations Act, 2010, Pub. L. No. 111-83 (October 28, 2009) (2010 9 appropriations for border security fencing, infrastructure, and technology). As a result, 10 Arizona’s demand for the allocation of funds from within DHS’s lump sum border 11 control appropriations is a challenge to decisions that are committed to agency discretion 12 by law and therefore unreviewable. See Lincoln v. Vigil, 508 U.S. 182, 193 (1993). 13 The Secretary must determine how to allocate appropriated funds in order to 14 achieve the ultimate mandate of operational control over the border. And, as is 15 acknowledged in IIRIRA § 102 itself, multiple factors are involved in the construction of 16 fencing alone, including determining where fencing would be most practical and 17 effective; minimizing environmental, cultural, commercial, and community impact; 18 ensuring that the fencing has adequate safety features; as well as the costs and time 19 involved in acquiring the necessary property interests. See IIRIRA § 102(b) & (c). 20 Under such a scheme, the Secretary’s allocation of appropriated funds to either fencing or 21 22 23 24 25 26 27 28 some other specified border control measure clearly “requires a complicated balancing of a number of factors which are peculiarly within its expertise” including “whether its resources are best spent on one program or another,” and “whether it is likely to succeed in fulfilling its statutory mandate.” See Serrato v. Clark, 486 F.3d 560, 567-70 (9th Cir. 2007) (quoting Lincoln, 508 U.S. at 193) (finding that termination of a Bureau of Prisons program was unreviewable where decision involved agency’s allocation of lump sum appropriation). Accordingly, the limited appropriations allocated for border control measures and the inherent expertise necessary for prioritizing the allocations, precludes 24 1 the Court from second-guessing the Secretary’s determinations as to how, when, and 2 where fencing and other border-control measures will be undertaken. See Lincoln, 508 3 U.S. at 192 (“[T]he very point of a lump-sum appropriation is to give an agency the 4 capacity to adapt to changing circumstances and meet its statutory responsibilities in what 5 it sees as the most effective or desirable way.”); Swift v. United States, 318 F.3d 250, 253 6 (D.C. Cir. 2003) (stating that judicial review is unavailable because the statute “neither 7 sets substantive priorities nor circumscribes the government’s power to discriminate 8 among issues or cases it will pursue” (internal citations omitted)). Therefore, because 9 this Court is without manageable standards to compel the Secretary to take any specific 10 action relating to the completion of the 700 mile fence or installation of any additional 11 infrastructure along the Arizona border, this matter is committed to the agency’s 12 discretion and is therefore precluded from judicial review. 13 13 C. 14 15 Count IV Must be Dismissed Because Reimbursement Rates Under the SCAAP Program are Committed to the Attorney General’s Discretion by Law. Count IV of the Counterclaim – which alleges that the United States has failed to 16 17 adequately reimburse Arizona for incarceration expenses under the SCAAP program – 18 similarly should be dismissed because Arizona has challenged a determination that is 19 committed to agency discretion by law. The SCAAP program allows for the reimbursement of certain expenses related to 20 21 the incarceration of unlawfully present aliens. See 8 U.S.C. § 1231(i) (INA § 241(i)). 22 The program is subject to two funding limits: A set of maximum “authorized” 23 appropriation amounts listed in INA Section 241(i)(5) and a (historically smaller) set of 24 13 25 26 27 28 As previously explained, DHS has already made substantial progress under IIRIRA § 102 (as amended), see supra at 3-4. Under these circumstances, Arizona cannot state a cognizable claim of “unreasonable delay.” See, e.g., SUWA, 542 U.S. at 64 & n.1 (holding that the APA “empowers a court only to compel an agency to perform a ministerial or non-discretionary act”; “a delay cannot be unreasonable with respect to action that is not required”). 25 1 actual appropriations. 14 In every year of the SCAAP program’s existence, the Attorney 2 General has disbursed the entire amount of money allocated to the program to 3 jurisdictions requesting reimbursement for incarceration costs. See U.S. Dep’t of Justice, 4 Office of the Inspector General, Audit Division, “Cooperation of SCAAP Recipients in 5 the Removal of Criminal Aliens from the United States,” Audit Report 07-07 at iii, 2, 4 6 7 8 9 (January 2007), available at http://www.justice.gov/oig/reports/OJP/a0707/final.pdf. Because state and local incarceration costs exceed the amount of funding actually allocated by Congress to support the SCAAP program, the Attorney General has provided states and localities with a pro rata share of their incarceration costs, which is 10 11 12 13 calculated based on those portions of state correctional officer salaries that are attributable to incarceration of unlawfully present aliens. Id.; see also U.S. Dep’t of Justice, Office of Justice Programs, Bureau of Justice Assistance, “State Criminal Alien 14 Assistance Program: FY 2006 Guidelines” at 12, available at 15 http://www.ojp.usdoj.gov/BJA/grant/2006_SCAAP_Guidelines.pdf (“The value of each 16 applicant’s correctional officer salary costs . . . are then totaled. . . . A percentage factor is 17 then used to reflect the relationship between the maximum reimbursable salary costs and 18 the program’s annual appropriation.”). Thus, because the SCAAP appropriation does not 19 14 20 21 22 23 24 25 26 27 28 Compare 8 U.S.C. § 1231(i)(5)(A)-(C) (capping SCAAP appropriations at $750 million for fiscal year 2006, $850 million for fiscal year 2007, and $950 million for fiscal years 2008-2011), with Science, State, Justice, Commerce, And Related Agencies Appropriations Act, 2006, Pub. L. No. 109-108, 119 Stat. 2290, 2230 (2005) (appropriating $405 million for SCAAP program for fiscal year 2006), Revised Continuing Appropriations Resolution, 2007, Pub. L. No. 110-5, H.J. Res. 20 § 20901, 121 Stat. 8, 42 (2007) (appropriating approximately $238 million for SCAAP program for fiscal year 2007), Consolidated Appropriations Act, 2006, Pub. L. No. 110-161, 121 Stat. 1844, 1908 (2007) (appropriating approximately $410 million for SCAAP program for fiscal year 2008), Omnibus Appropriations Act, 2009, Pub. L. No. 111-8, 123 Stat. 524, 580 (2009) (appropriating $400 million for SCAAP program for fiscal year 2009); see also U.S. Dep’t of Justice, Office of the Inspector General, Audit Division, “Cooperation of SCAAP Recipients in the Removal of Criminal Aliens from the United States,” Audit Report 07-07 at iii (January 2007), available at http://www.justice.gov/oig/reports/OJP/a0707/final.pdf. 26 1 actually allow for the reimbursement of 100% of state incarceration costs, the Attorney 2 General reimburses all states and localities for the same percentage of the eligible costs 3 they incurred for incarcerating unlawfully present aliens. Id. 15 4 5 6 7 8 9 10 11 12 13 Here, although limited congressional appropriations necessarily result in all states receiving SCAAP reimbursements of less than 100% of their incarceration costs, Arizona claims that the Attorney General has violated the INA by failing to reimburse Arizona for the entirety of its claimed costs. Counterclaim ¶¶ 190, 192. Arizona seeks to compel the Attorney General to (i) to distribute funds beyond the SCAAP program’s specific appropriation and out of appropriations made for other DOJ programs, and (ii) calculate incarceration costs on some basis that disproportionately favors Arizona. Counterclaim ¶ 192(e). This claim is unreviewable, because the INA specifically commits to the Attorney General the discretion to determine how to reimburse states and how to 14 calculate the average incarceration costs to be reimbursed. These decisions are therefore 15 not subject to judicial review, and Arizona’s further suggestion that the Attorney General 16 distribute funds in excess of the congressional appropriation is simply untenable (if not 17 unlawful, see 31 U.S.C. § 1301(a)). First, it is beyond this Court’s jurisdiction to, as Arizona suggests, compel the 18 19 Attorney General to use other monies generally appropriated to the DOJ to reimburse the 20 State. Indeed, similar challenges to the Attorney General’s methodology for reimbursing 21 states for the cost of incarcerating unlawfully present aliens have likewise been 22 dismissed. For example, both the Ninth and Third Circuits have rejected state demands 23 for the Attorney General to expend DOJ’s lump sum appropriation on incarceration costs, 24 because – in the absence of a specific Congressional appropriation in support of the 25 reimbursement program – reimbursement decisions are committed to agency discretion 26 15 27 28 As a result, for example, if a given state was determined to have incurred 10% of the total eligible incarceration costs borne by jurisdictions participating in the SCAAP program, that state would receive 10% of the funding available for SCAAP reimbursements. 27 1 by law. See California, 104 F.3d at 1093-94 (“[T]he Attorney General’s decision to 2 allocate monies generally appropriated to her in a lump-sum for the administration of 3 immigration laws for the specific purpose of reimbursing a State for the costs of 4 incarcerating illegal aliens . . . is ‘committed to agency discretion by law’ and is not 5 subject to judicial review under the Administrative Procedure Act.”); New Jersey v. 6 7 8 United States, 91 F.3d at 471. As these cases make clear, Arizona’s demand for funding beyond the amount that Congress appropriated for the SCAAP program seeks to invade the Attorney General’s discretion in a manner that is strictly foreclosed under the APA. 16 9 Arizona appears to claim that the Attorney General violates SCAAP by refusing to 10 11 12 13 exceed the amount appropriated for the program. Counterclaim ¶¶ 190, 192, 106. Arizona’s argument is plainly foreclosed by law. As with any federal program, the United States can only provide reimbursement under the SCAAP program according to 14 the funding that has been actually allocated to the program. See Anti-Deficiency Act, 31 15 U.S.C. §§ 1341(a)(1)(A), 1532 (“An amount available under law may be withdrawn from 16 one appropriation account and credited to another or to a working fund only when 17 authorized by law.”); Babbitt v. Oglala Sioux Tribal Pub. Safety Dep’t, 194 F.3d 1374, 18 1378 (Fed. Cir. 1999) (“[I]n the face of congressional under-funding, an agency can only 19 16 20 21 22 23 24 25 26 27 28 Nor can Arizona claim that the grants received fail to satisfy the statutory requirement to enter into “contracts.” Counterclaim ¶ 190. The D.C. Circuit has made clear that the process of applying for and accepting funding under SCAAP equates to a contractual arrangement. See California v. DOJ, 114 F.3d 1222, 1226 (D.C. Cir. 1997) (“California’s objection to the Attorney General’s use of the grant mechanism is also without merit because the grant mechanism the Attorney General has established does involve a ‘contractual arrangement,’ specifically a unilateral contract. Here the offer is the Attorney General’s promise to distribute to each qualified State that applies a share of the funds appropriated to implement [SCAAP]; the act requested in return is the fulfillment of the requirements set forth in the application kit. When a State fulfills those requirements and submits its application to the Attorney General, its performance will constitute both consideration for the Attorney General’s promise and a manifestation of its assent; a binding contract will have been created. Therefore, California has no cause to complain about the procedure that the Attorney General has adopted.” (internal citation omitted)). 28 1 spend as much money as has been appropriated for a particular program.”); Highland 2 Falls-Fort Montgomery Cent. Sch. Dist. v. United States, 48 F.3d 1166, 1171 (Fed. Cir. 3 1995) (holding that where Congress has not appropriated enough money for the 4 Department of Energy to fund a particular entitlement to the maximum extent authorized 5 by laws, it would be unlawful “for DOE to use money appropriated by Congress for 6 7 8 9 10 11 12 13 entitlements under other sections of the Act”). The Attorney General therefore cannot distribute funds to Arizona under the SCAAP program where such funds have been appropriated for other purposes. Arizona may, once again, take its complaint to the political branches of the federal government, see New Jersey, 91 F.3d at 471 (“Congress knows how to make an appropriation [for reimbursement of incarceration expenses] if it wants to.”), but this Court is not the appropriate forum for such a challenge. Second, by its plain terms, INA § 241 plainly entrusts the Attorney General with 14 the discretion to determine how to calculate the States’ average costs of incarceration for 15 reimbursement purposes. The INA provides that, upon a written request by a State, “the 16 Attorney General shall, as determined by the Attorney General . . . enter into a 17 contractual arrangement which provides for compensation to the State . . . with respect to 18 the incarceration of the undocumented criminal alien,” and the “compensation” “shall be 19 the average cost of incarceration of a prisoner in the relevant State as determined by the 20 Attorney General.” 8 U.S.C. § 1231(i) (emphasis added). Thus, the language of the 21 statute commits to the Attorney General the discretion to determine the “average cost of 22 incarceration” – especially where an exercise of such discretion is necessary due to the 23 limited funding appropriated for SCAAP reimbursements. See, e.g., Claybrook v. Slater, 24 111 F.3d 904, 908-09 (D.C. Cir. 1997) (decision of agency representative to adjourn a 25 26 27 28 meeting whenever “he determines it to be in the public interest” was committed to agency discretion by law); Veterans for Common Sense v. Peake, 563 F. Supp. 2d 1049, 1055 (N.D. Cal. 2008) (“8 U.S.C. § 1710(a)(1) provides that the medical care veterans receive is to be determined by the Secretary, and under the [APA] judicial review is prohibited 29 1 where actions are ‘committed to agency discretion by law.’”). And the statute provides 2 no manageable standards for the Court to review the Attorney General’s determination 3 regarding how to calculate the average cost of incarceration – the statute leaves the issue 4 of costs to the Attorney General and is otherwise silent. 8 U.S.C.A. § 1231(i)(2). 5 Accordingly, because this cost calculation is committed to the discretion of the Attorney 6 7 8 9 10 11 12 13 General, there can be no judicial review here. See Heckler, 470 U.S. at 830. In addition, the Attorney General’s discretion in this regard is heightened because, as Congress has not funded the SCAAP program to the maximum extent authorized, the Attorney General must not only determine how to calculate the “average cost of incarceration,” but must also decide how to allocate SCAAP funds among States in a context where, due to the limited congressional appropriations, no possible formula will result in every State receiving 100% reimbursement. In this situation, it is a fundamental 14 principle of administrative law that agencies have discretion to decide how to compensate 15 every eligible recipient by giving less. The federal courts have consistently recognized 16 that an agency’s decision as to how to allocate scarce funding resources is “committed to 17 agency discretion by law” and therefore unreviewable under the APA so long as the 18 allocated funding is spent on permissible statutory objectives. See, e.g., Collins v. United 19 States, 564 F.3d 833, 839 (7th Cir. 2009) (“The prioritization of demands for government 20 money is quintessentially a discretionary function.”); St. Tammany Parish v. FEMA, 556 21 F.3d 307, 325 (5th Cir. 2009) (“Eligibility determinations, the distribution of limited 22 funds, and other decisions regarding the funding of eligible projects are inherently 23 discretionary and the exact types of policy decisions that are best left to the agencies 24 without court interference.”); Board of County Comm’rs v. Isaac, 18 F.3d 1492, 1498 25 26 27 28 (10th Cir. 1994). Thus, this Court may not review the Attorney General’s discretionary decision on how to distribute the limited SCAAP funding. See Lincoln, 508 U.S. at 193 (courts have “no leave to intrude” on the agency’s allocation of a lump-sum appropriation, as long as the agency acts “to meet permissible statutory objectives”); 30 1 International Union, United Autoworkers v. Donovan, 746 F.2d 855, 861 (D.C. Cir. 2 1984) (“A lump-sum appropriation leaves it to the recipient agency (as a matter of law, at 3 least) to distribute the funds among some or all of the permissible objects as it sees fit.”); 4 Kuhl v. Hampton, 451 F.2d 340, 342 (8th Cir. 1971) (“The federal courts . . . were not 5 established to operate the administrative agencies of government.”). 6 7 8 9 10 11 12 In any event, the federal courts have recognized that an agency acts within its discretion by distributing limited appropriated funds on a pro rata basis between otherwise eligible recipients – just as the Attorney General has done here. 17 See, e.g., Ramah Navajo Sch. Bd. v. Babbitt, 87 F.3d 1338, 1349 (D.C. Cir. 1996) (“Congress, aware that it had appropriated an insufficient amount for full . . . funding, intended for the agency to deal with the shortfall through a pro rata reduction.”). 18 17 18 “In considering the effect of appropriations language . . . the Supreme Court . . . [has] recognized that the General Accounting Office’s [now the Government Accountability Office (“GAO”)] publication, Principles of Federal Appropriations Law provides significant guidance.” Star-Glo Assocs. v. United States, 414 F.3d 1349, 1354 (Fed. Cir. 2005). In turn, the GAO has explained that “There is no apparent reason why prorating should not be one of the discretionary options available to the agency” for administering a program where eligible claims exceed available appropriations. U.S. General Accounting Office, Principles of Federal Appropriations Law, Vol. 1 at 3-52 (3d ed. Jan. 2004). 19 18 13 14 15 16 17 20 21 22 23 24 25 26 27 28 Arizona also contends (Counterclaim ¶ 192(f)) that the Attorney General’s SCAAP reimbursement decisions have not complied with the statutory provision asking “the Attorney General [to] give priority to the Federal incarceration of undocumented criminal aliens who have committed aggravated felonies.” 8 U.S.C. § 1231(i)(4)(A). Although the INA generally calls upon the Attorney General to “priorit[ize]” the “federal incarceration” of certain criminal aliens, this subsection has no bearing on how the Attorney General should calculate the average costs of incarceration incurred by the States. Id. Indeed, this Section provides that the Attorney General should prioritize criminal aliens “[i]n carrying out paragraph (1)” of INA § 241(i), not in determining the actual reimbursement costs as directed in paragraph (2) of the INA. See id. In addition, Arizona’s extraordinary request that this Court should order the Attorney General to take some greater number of aggravated felons into federal custody is plainly a remedy that is not available through litigation. This request is beyond Arizona’s reach for the same reasons that Arizona cannot use the judiciary to compel federal prosecutions or compel the federal government to enforce immigration laws in the manner the State desires. See 31 CONCLUSION 1 2 3 For the foregoing reasons, the Court should grant the United States’ Motion to Dismiss the Counterclaims. 4 5 DATED: April 11, 2011 6 Respectfully submitted, 7 Tony West Assistant Attorney General 8 9 10 11 12 13 14 15 16 17 18 Dennis K. Burke United States Attorney Arthur R. Goldberg Assistant Branch Director /s/ Varu Chilakamarri Varu Chilakamarri (NY Bar #4324299) Joshua Wilkenfeld (NY Bar #4440681) U.S. Department of Justice, Civil Division, Federal Programs Branch 20 Massachusetts Avenue, N.W. Washington, D.C. 20530 Tel: (202) 616-8489/Fax (202) 616-8470 varudhini.chilakamarri@usdoj.gov 19 20 Attorneys for the United States 21 22 23 24 25 26 27 28 supra. Even if the “priorit[ization]” provision could be interpreted as an enforceable mandate, the statute provides no meaningful standards as to how such “prioritization” should be accomplished, and therefore is committed to agency discretion. See, e.g., Legal Servs. of N. Cal. v. Arnett, 114 F.3d 135, 140 (9th Cir. 1997) (holding that statute requiring provision of legal services to senior citizens “to the maximum extent feasible” left the court “ill-equipped” to determine how that could be accomplished). 32 1 2 CERTIFICATE OF SERVICE 3 I hereby certify that on April 11, 2011, I electronically transmitted the attached 4 document to the Clerk’s Office using the CM/ECF System for filing and transmittal of 5 Notice of Electronic Filing to the CM/ECF registrants on record in this matter. 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 /s/ Varu Chilakamarri Varu Chilakamarri

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