Union Benefica Mexicana v. Indiana State of et al

Filing 90

OPINION AND ORDER: Court GRANTS 68 , 71 , 75 Defendants' Motion to Dismiss. This action is DISMISSED WITHOUT PREJUDICE to refiling with an adequate complaint suing proper parties. Due to the termination of the case, the remaining pending motions 74 , 64 are DISMISSED AS MOOT. Signed by Judge Jon E DeGuilio on 8/13/2013. (tc)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
UNION BENEFICA MEXICANA,
Plaintiff,
v.
STATE OF INDIANA, et alia,
Defendants.

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CAUSE NO. 2:11-CV-482 JD

OPINION AND ORDER
Plaintiff Union Benefica Mexicana sued various state officials following the passage of
“Senate Bill 590,” a piece of legislation designed to regulate some aspects of the employment of
illegal aliens in Indiana. The named defendants responded separately. A group consisting of the
State of Indiana itself and several high-ranking officials moved to dismiss the complaint on
justiciability and merits grounds, and, in two additional motions, three county sheriffs moved to
dismiss on standing and/or ripeness grounds. Additional live motions include the plaintiff’s motion
for a preliminary injunction (stayed by agreement of the parties pending resolution of the motions
to dismiss), and the defendants’ motion to strike certain exhibits attached to that filing. This order
resolves the three outstanding motions to dismiss. [DE 68; DE 71; DE 75]. Each is granted, with the
end result that the case is dismissed without prejudice.
BACKGROUND1
On April 29, 2011, the Indiana Legislature enacted Senate Bill No. 590 (“SB 590”), a

1

The record is cited in the following format: [“Docket Entry Number” at “page or paragraph number within docket
entry”].

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comprehensive piece of legislation establishing state laws covering the enforcement of federal
immigration regulations, the determination of the citizenship or immigration status of individuals,
and related criminal matters. See S.B. 590, First Regular Session 117th Gen. Ass. (2011) (digest of
introduced bill). SB 590 went into effect on July 1, 2011. At issue in this case are only two
provisions of the bill, codified at IND. CODE §§ 22-4-39.5 (titled “reimbursements by employers of
unauthorized aliens”) and 22-5-6 (titled “completion of federal attestation”). The plaintiff, Union
Benefica Mexicana (“UBM”), believes §§22-4-39.5 and 22-5-6 are unconstitutional under the Fourth
and Fourteenth Amendments, as well as the Supremacy Clause and Contracts Clause of the United
States Constitution. [DE 1 ¶ 4].
UBM is a non-profit membership organization based in East Chicago, Indiana, whose
mission is to provide cultural, educational, and health programs to the Hispanic community and
others in Northwest Indiana. [DE 1 ¶ 9]. The members of UBM include American citizens, legal
permanent residents, and undocumented individuals, as well as business owners and employees. [DE
1 ¶ 12]. On December 20, 2011, UBM sued the State of Indiana, as well as then-Governor Mitch
Daniels; Indiana Attorney General Greg Zoeller; Lake County Prosecutor Bernard Carter; Porter
County Prosecutor Brian Gensel; LaPorte County Prosecutor Bob Szilagyi; Lake County Sheriff
John Buncich; Porter County Sheriff David Lain; and LaPorte County Sheriff Michael Mollenhaur.
Each of the individual defendants is sued in their official capacity. On June 6, 2012, Magistrate
Judge Rodovich entered an order staying all proceedings in this case pending the resolution of
Arizona v. United States, 132 S.Ct. 2492 (2012), a Supreme Court case deciding potentially related
constitutional challenges to an Arizona immigration law. The stay was lifted [DE 66] on August 14,
2012, by which time UBM had moved for a preliminary injunction. [DE 64].

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On August 30, 2012, defendant Lain moved to dismiss the complaint against him. [DE 68].
On August 31, 2012, defendants the State of Indiana, Daniels, Zoeller, Carter, Gensel, and Szilagyi
(the “State Defendants”) filed a separate motion to dismiss. [DE 71]. The State Defendants also
moved to strike certain evidence in support of UBM’s motion for a preliminary injunction. [DE 74].
Finally, and also on August 31, 2012, defendants Buncich and Mollenhaur (in conjunction with
defendant Lain, the “County Sheriffs”) moved to dismiss the complaint. [DE 75]. Each motion was
briefed in full, and on October 4, 2012, this court conferred with counsel via telephonic conference.
All parties agreed that the court would first rule on the pending motions to dismiss before addressing
the motion for preliminary injunction. [DE 83]. This order resolves the motions to dismiss.
DISCUSSION
The issues raised by the defendants fall into two general categories. First, a variety of
challenges have been levied to the justiciability of this case, or to the court’s ability to hear it as a
case or controversy within its Article III jurisdiction. Second, a challenge has been made to the basic
sufficiency of the complaint under the federal pleading standard laid down in Ashcroft v. Iqbal. As
it must, the court begins with the justiciability issues before turning to an assessment of whether the
complaint adequately states a claim.
With respect to justiciability, the State Defendants have attacked the complaint as: (1) failing
to sufficiently plead the applicability of an exception to the Eleventh Amendment bar on suits
against states, state officials, or state agencies; (2) barred by the Tax Injunction Act, to the extent
that the suit challenges IND. CODE § 22-4-39.5 (governing reimbursements of workmen’s
compensation funds to the State of Indiana by employers who disburse those funds to unauthorized
aliens); and (3) failing to sufficiently plead Article III standing to sue. [DE 71]. The County Sheriffs

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attack the portion of the complaint directed against them as failing to plead Article III standing to
sue, and in a related vein, as stating an unripe cause of action. [DE 68; DE 75].
In summary, the Court finds that UBM has indeed failed to sufficiently plead applicability
of the Ex Parte Young exception to the Eleventh Amendment doctrine of sovereign immunity with
respect to any defendant for that portion of its complaint addressing § 22-4-39.5. It has, however,
pleaded its way into the exception with respect to the County Sheriffs and the enforcement of § 225-6. Of its three claims concerning that section – based on Supremacy Clause preemption,
Fourteenth Amendment void-for-vagueness doctrine, and the Fourth Amendment bar on
unreasonable searches and seizures – UBM has not sufficiently pled standing to pursue any of them
at this time. Since these conclusions dispose of the case in its entirety and warrant a dismissal
without prejudice, there is no need for the Court to address the remaining issues. The following
discussion sections contain the rationale underlying the court’s conclusions.
I.

The Eleventh Amendment
The State Defendants (the State of Indiana, the Governor, the Attorney General, and the

County Prosecutors) ask that the court dismiss them from the case pursuant to the Eleventh
Amendment. The Eleventh Amendment to the United States Constitution forbids suits by private
parties against a State or its agencies without the State’s consent. See Pennhurst State Sch. &
Hospital v. Halderman, 465 U.S. 89, 100 (1984); Missouri v. Fiske, 290 U.S. 18, 27 (1933)
(“[e]xpressly applying to suits in equity as well as at law, the [Eleventh] Amendment necessarily
embraces demands for the enforcement of equitable rights and the prosecution of equitable remedies
when these are asserted and prosecuted by an individual against a State”); see also Alabama v. Pugh,
438 U.S. 781, 782 (1978). The text of the amendment reads:

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The Judicial power of the United States shall not be construed to extend to any suit
in law or equity, commenced or prosecuted against one of the United States by
Citizens of another State, or by Citizens or Subjects of any Foreign State.
Although any such prohibition is absent from the terms of the amendment, the immunity concept
has been extended to bar suits brought against a state by its own citizens, as well. See Hans v.
Louisiana, 134 U.S. 1 (1890). “If properly raised, the amendment bars actions in federal court
against a state, state agencies, or state officials acting in their official capacities.” Indiana Prot. and
Advocacy Servs. v. Indiana Fam. and Soc. Servs. Admin., 603 F.3d 365, 370 (7th Cir. 2010) (citing
Edelman v. Jordan, 415 U.S. 651, 663 (1974)).
The Supreme Court created a limited exception to the Eleventh Amendment in Ex Parte
Young, 209 U.S. 123, 159–60 (1908). That exception allows state officials to be sued for injunctive
relief for violations of federal law. See Va. Office for Prot. & Advocacy v. Stewart, ___ U.S. ___,
131 S.Ct. 1632, 1639, 179 L.Ed.2d 675 (2011); Council 31 of the Am. Fed'n of State, Cnty., and
Mun. Emps., AFL–CIO v. Quinn, 680 F.3d 875, 882 (7th Cir. 2012). The justification is that when
a state official violates the federal Constitution the official acts outside the scope of his or her
authority and is no longer entitled to the state’s immunity from suit. Ex Parte Young, 209 U.S. at
155-56. All of the named defendants in this case are “a state, state agencies, or state officials acting
in their official capacities[,]” 603 F.3d at 370, so the question with respect to the Eleventh
Amendment is whether UBM has successfully pled the applicability of the Ex Parte Young
exception.
A.

Standard of Review

The court notes that although the State Defendants filed their motion to dismiss pursuant to
both Fed. R. Civ. P. 12(b)(1) (governing challenges to subject matter jurisdiction) and 12(b)(6)

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(governing challenges to the legal sufficiency of the complaint), it appears that Rule 12(b)(6) is the
more technically appropriate pathway to resolution of questions of sovereign immunity:
Notwithstanding some earlier statements to the contrary by many courts, it is now
reasonably clear that the Eleventh Amendment does not actually defeat subject
matter jurisdiction in the federal courts. The Supreme Court has denied having
reached a firm conclusion on the subject, see Wisconsin Department of Corrections
v. Schacht, 524 U.S. 381, 391 (1998) (“a question we have not decided”), but the
Court has treated the defense as one that may be waived by, for example, removing
a case from state court to federal court. Lapides v. Board of Regents of University
System of Georgia, 535 U.S. 613, 619-20 (2002); see also Higgins v. Mississippi, 217
F.3d 951, 953-54 (7th Cir. 2000) (State's failure to raise Eleventh Amendment could
be treated as waiver, though court could raise issue on its own). Thus, the Eleventh
Amendment may support dismissal on the merits for failure to state a claim upon
which relief can be granted. E.g., Berry v. Ivy Tech State College, 2003 WL
1563862, at *2 (S.D.Ind. Jan. 15, 2003).
Turner v. State of Indiana Teachers’ Ret. Fund, No. 1L07-CV-1637, 2008 WL 2324114 at *1
(S.D.Ind. June 5, 2008); see also Indiana Protection and Advocacy Servs., 603 F.3d at 370 (“The
Eleventh Amendment is unusual in that it does not strictly involve subject matter jurisdiction and
is thus waivable”). Functionally, it makes little difference, as the same deferential standards apply.
See Martin v. Indiana, No. 1:12-CV-69, 2013 WL 1332165 (N.D.Ind. Mar. 29, 2013) (“as to both
the Rule 12(b)(1) and Rule 12(b)(6) arguments defendants make, the court applies the same
standard, accepting the facts alleged by [the plaintiff] in his complaint as true and drawing all
reasonable inferences therefrom in his favor”) (citing Apex Digital, Inc. v. Sears, Roebuck & Co.,
572 F.3d 440, 444 (7th Cir. 2009); Palay v. United States, 349 F.3d 418, 424 (7th Cir. 2003)).
B.

The State of Indiana

The State Defendants argue, first, that the State of Indiana itself must be dismissed from the
case as a defendant, pursuant to the Eleventh Amendment. [DE 72 at 4]. UBM has not even tried to
argue otherwise. To the contrary, UBM acknowledged that it “plan[ned] to amend [its] complaint

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to drop the State of Indiana and Governor Daniels as parties.” [DE 79 at 6]. That has not yet
occurred, but the failure to defend is dispositive. See Alioto v. Town of Lisbon, 651 F.3d 715, 719
n.1, 721 (7th Cir. 2011) (forfeiture of claim occurs where the “litigant effectively abandons the
litigation by not responding to the alleged deficiencies in a motion to dismiss”); Bonte v. U.S. Bank,
624 F.3d 461, 466 (7th Cir. 2010) (finding arguments to be waived because the plaintiff “largely
failed to grapple with the defendant’s arguments); Walsh v. Arrow Fin. Servs., 2012 WL 255802,
at *3 (N.D. Ill. Jan. 27, 2012) (dismissing plaintiff’s claim with prejudice after she failed to respond
to motion to dismiss). Even if it were not, the Court agrees with the Defendants as a matter of law.
UBM cannot sue the State of Indiana itself under any circumstances without its consent, and the
State is therefore dismissed from this case.
C.

The Remaining State Defendants

The State Defendants also argue the Eleventh Amendment impropriety of a suit against the
Governor, the Attorney General, or the County Prosecutor defendants on the facts as pleaded in the
complaint. [DE 72 at 4-5]. They note that the only factual allegation made against the Governor is
that he signed the bill into law; that no factual allegations are made at all concerning the Attorney
General; and that, since it is the Department of Workforce Development which is actually entrusted
with enforcement power under Indiana Code §§ 22-4-39.5, it is improper to bring a challenge to that
particular section against the remaining named State Defendants, who are not. [DE 72 at 4-5]. In
response, UBM argues in general terms that it need only show “some connection” between an
official and the challenged action in order to abrogate sovereign immunity and proceed against a
state official within the Ex Parte Young exception. [DE 79 at 4, 6-7]. The court notes that UBM is
technically correct about the legal standard. See Entertainment Software Ass’n v. Blagojevich, 469

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F.3d 641, 645 (7th Cir. 2006) (citing In re Dairy Mart Convenience Stores, Inc., 411 F.3d 367, 373
(2d Cir. 2005) (“Under Ex parte Young, the state officer against whom a suit is brought must have
some connection with the enforcement of the act . . . [i]t is not necessary that the officer's
enforcement duties be noted in the act.”) (internal quotation marks and citation omitted); Planned
Parenthood of Idaho, Inc. v. Wasden, 376 F.3d 908, 919–20 (9th Cir. 2004); Citizens for Equal
Protection v. Bruning, 455 F.3d 859, 864 (8th Cir. 2006)). But a plaintiff must still show “some
connection” to the particular law being challenged, not just to “laws,” or to the enforcement thereof,
in general.
Moreover, this issue involves considerable conceptual overlap with the inquiry into UBM's
standing to sue the State Defendants, due to the similarity between the “some connection” test and
the traceability inquiry essential to a determination of standing. The parties’ briefs shift from one
doctrine to the other. In the past, this district has simplified the inquiry as follows. First, the court
observes that UBM’s complaint clearly seeks only declaratory and injunctive relief. That means, at
least in theory, that UBM does have access to the Ex Parte Young exception, which holds that a “
private party can sue a state officer in his or her official capacity to enjoin prospective action that
would violate federal law.” Ameritech Corp. v. McCann, 297 F.3d 582, 585–86 (7th Cir. 2002)
(quoting Ex Parte Young, 209 U.S. at 123). “The question then becomes who is the right state
official to name as a defendant, and do we need more than one to restrain the State of Indiana from
doing whatever this court determines would violate the federal constitution (if anything)?” Sweeney
v. Daniels, No. 2:12-CV-81, 2013 WL 209047 at *2 (N.D. Ind. Jan. 17, 2013). “Under Ex Parte
Young, plaintiffs should name a state official who bears ‘legal responsibility for the flaws they
perceive in the system’ and not one from whom they ‘could not ask anything . . . that could

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conceivably help their cause.’” Id. at *3 (quoting Hearne v. Bd. of Educ., 185 F.3d 770, 777 (7th Cir.
1999)). These are the standards the court looks to apply.
1.

The Governor

In both Hearne and Sweeney, the Governor was not a proper defendant because he had no
role in the enforcement of the challenged statutes and no power to nullify the enacted legislation.
2013 WL 209047 at *3. That is also the case here, and a suit against the Governor is legally
inappropriate. UBM admits as much [DE 79 at 6], and the suit against the Governor is accordingly
dismissed. See, e.g., Shell Oil Co. v. Noel, 608 F.2d 208, 211 (1st Cir. 1979) (“[t]he mere fact that
a governor is under a general duty to enforce state law does not make him a proper defendant in
every action attacking the constitutionality of a state statute.”). The remaining State Defendants
consist of the Attorney General and the LaPorte, Porter, and Lake County Prosecutors.
2.

The Attorney General

Relying on Indiana Code § 4-6-2-1,2 UBM argues that the requisite connection exists
between the Attorney General and the challenged law based on the general duties attendant to the
office. [DE 79 at 4]. The problem with this argument is that the facts supporting it appear nowhere
in the complaint. In fact, aside from naming the Attorney General as a party, neither the office nor
the individual then holding it is mentioned anywhere in the body of the complaint at all. “Where a
complaint alleges no specific act or conduct on the part of the defendant and the complaint is silent
as to the defendant except for his name appearing in the caption, the complaint is properly

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Section 4-6-2-1 reads, in relevant part, “The attorney general shall prosecute and defend all suits instituted by or
against the state of Indiana . . . and he shall be required to attend to the interests of the state in all suits, actions or claims
in which the state is or may become interested in the Supreme Court of this state.”

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dismissed.” Potter v. Clark, 497 F.2d 1206, 1207 (7th Cir. 1974). The State Defendants have
challenged the sufficiency of the complaint through a motion to dismiss, and, with respect to the
Attorney General, the complaint is facially insufficient. It is therefore dismissed, in relevant part.
3.

The County Prosecutors and County Sheriffs

That leaves the County Prosecutors and County Sheriffs. As mentioned, “[P]laintiffs should
name a state official who bears ‘legal responsibility for the flaws they perceive in the system’ and
not one from whom they ‘could not ask anything . . . that could conceivably help their cause.’”
Sweeney, 2013 WL 209047 at *3 (quoting Hearne, 185 F.3d at 777). In its complaint, UBM alleged
that the County Prosecutors, by virtue of their positions, are “responsible for the enforcement of SB
590 within [their] county.” DE 1 ¶¶ 16, 18, 20]. Unfortunately, they don’t explain how. True, at this
stage the court is bound to “construe [the complaint] in the light most favorable to the nonmoving
party, accept well-pleaded facts as true, and draw all inferences in her favor.” Reynolds v. CB Sports
Bar, Inc., 623 F.3d 1143, 1146 (7th Cir. 2010) (citing Reger Dev. LLC v. Nat'l City Bank, 592 F.3d
759, 763 (7th Cir. 2010) (internal quotation marks omitted)). But the court also begins its analysis
“by identifying pleadings that, because they are no more than conclusions, are not entitled to the
assumption of truth.” Ashcroft v. Iqbal, 556 U.S. 662, 679-80 (2009) (citing Bell Atl. Corp. v.
Twombly, 550 U.S. 544 (2007)) (emphasis added). This includes legal conclusions couched as
factual allegations, see Bonte, 624 F.3d at 465, as well as “threadbare recitals of a cause of action’s
elements, supported by mere conclusory statements[.]” Iqbal, 556 U.S. at 663 (citing Twombly, 550
U.S. at 555).
UBM’s assertion that the County Prosecutors are responsible for the enforcement of SB 590
is not entitled to the assumption of truth because it is not a “well-pleaded” factual allegation. To the

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contrary, it is “merely conclusory.” Moreover, it is essentially a legal conclusion, and it does not
point to any foundation in the actual law at issue. In the Eleventh Amendment context, it is not
enough to plead a mere general obligation to enforce the law. See Ex Parte Young, 209 U.S. at 157.
Consistent with that foundational case, a suit cannot be brought against state officers to test the
constitutionality of a statute merely “because they were law officers of the state” who were “in a
general sense, charged with the execution of all its laws” or “might represent the state in litigation
involving the enforcement of its statutes[;] the court should look instead for a “special relation to
the particular statute alleged to be unconstitutional.” Again, the complaint describes none.
Moreover, based on the terms of the law itself, it does not appear that the County Prosecutors
play any role in enforcing the challenged provisions of SB 590. The Department of Workforce
Development is explicitly tasked with enforcing IND. CODE § 22-4-39.5 ,3 and that provision affords
no role to the County Prosecutors. Section 22-5-6, on the other hand, contains no “enforcement”
mechanism, in the usual sense, at all. The “enforcement” provision simply instructs a “law
enforcement officer” or “any other entity authorized to enforce the employment laws of Indiana”
to notify the proper federal authorities when they have probable cause to believe a violation has
occurred. IND. CODE § 22-5-6-4. UBM has made no attempt to explain how either provision
implicates the County Prosecutors. See Bonte, 624 F.3d at 466 (finding arguments to be waived
because the plaintiff “largely failed to grapple with the defendant’s arguments”).
So, there appears to be no penalty feature in either of the challenged code sections which
could support a prosecution or other enforcement action within the power or discretion of the County

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See IND. CODE §§ 22-4-39.5-3(a) (“The department [of workforce development] may file a civil action to obtain
reimbursement . . .” (emphasis added)); 22-4-39.5-5 (“The department has the power to . . .” (emphasis added)).

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Prosecutors. The County Prosecutors therefore are not proper parties to this action, because relief
against them would be meaningless; an injunction against enforcement by a state officer with no
authority to enforce is not helpful to the plaintiff’s cause. See Sweeney, 2013 WL 209047 at *3. For
that matter, UBM does not appear to have satisfied even the relatively undemanding “some
connection” test with respect to these defendants, because it has not properly pleaded (or argued)
some connection to these laws, as opposed to other generic laws of the state. See Ex Parte Young,
209 U.S. at 157; Entertainment Software Ass’n, 469 F.3d at 645. The County Prosecutors must
therefore be dismissed.
In summary, whether one considers it a decision on immunity grounds or under the
traceability prong of the standing analysis, the identities of the “right state official[s] to name as
defendant[s]” in this case are clear, because the challenged statutory sections explicitly set out who
is endowed with enforcement authority. Sweeney, 2013 WL 209047 at *2. A challenge to IND. CODE
§ 22-4-39.5 might be directed against the appropriate state official with enforcement authority at the
Department of Workforce Development, and a challenge to IND. CODE § 22-5-6 might be directed
against a “law enforcement officer,” as defined by the statute, or at an agency with authority to
enforce the employment laws of the state, such as the Department of Labor or the Department of
Workforce Development. As the enforcers of the challenged provisions, these may be the persons
or agencies bearing “legal responsibility” for the anticipated wrongs of which UBM complains.
Sweeney, 2013 WL 209047 at *3. UBM did name three County Sheriffs (who do qualify as “law
enforcement officers”) in the complaint in conjunction with its attack on IND. CODE § 22-5-6, and
those defendants have not raised an Eleventh Amendment argument. But UBM did not name any
other individual with enforcement authority, and the remaining defendants must be dismissed either

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as inadequately pleaded (the Attorney General) or improperly named (the State, the Governor, and
the County Prosecutors). The State Defendants’ motion to dismiss [DE 71] is therefore granted.
Finally, the court notes that UBM cannot sue the County Sheriffs to test the constitutionality
of IND. CODE § 22-4-39.5 (the section governing reimbursement of employer contributions) for the
same reason it cannot sue the State Defendants – it has not properly pleaded that the County Sheriffs
have any connection to its enactment or enforcement, which is in reality carried out by the
Department of Workforce Development. Even if it had properly pleaded a connection, this court
could not credit any such allegation in light of the fact that the law itself says otherwise. A lawsuit
still remains, however, pitting UBM against the County Sheriffs over the constitutionality of IND.
CODE § 22-5-6 (the section instructing law enforcement officers to file a report with federal
authorities when they have probable cause to believe an individual is working as a day laborer
without completing the required attestation). As mentioned, the County Sheriffs do qualify as law
enforcement officers within the meaning of the statute. But another hurdle still remains: the County
Sheriffs have challenged UBM’s Article III standing to bring its claims before the court. [DE 68;
DE 75].
II.

Article III Standing
Standing is “the ‘irreducible constitutional minimum’ required to bring a case in federal

court.” Johnson v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 719 F.3d 601, 606 (7th Cir. 2013)
(quoting Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 102 (1998) (in turn quoting Lujan v.
Defenders of Wildlife, 504 U.S. 555, 560 (1992))). Standing arises under the “case or controversy”
requirement, found in U.S. CONST. art. III, § 2, and serves to identify those disputes which are
appropriately resolved through the judicial process. Id. (internal citations and quotation marks

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omitted). The plaintiff, as the party invoking federal jurisdiction, bears the burden of establishing
the required elements of standing. Lee v. City of Chicago, 330 F.3d 456, 468 (7th Cir. 2003) (citing
Defenders of Wildlife, 504 U.S. at 561). Those elements are (i) an injury in fact, which is an invasion
of a legally protected interest that is concrete and particularized and, thus, actual or imminent, not
conjectural or hypothetical; (ii) a causal relationship between the injury and the challenged conduct,
such that the injury can be fairly traced to the challenged action of the defendant; and (iii) a
likelihood that the injury will be redressed by a favorable decision. Id.
A.

Standard of Review

If standing is challenged as a factual matter, the plaintiff must come forward with “competent
proof” that standing exists. Lee, 330 F.3d at 468. Furthermore, “[a] plaintiff ‘must demonstrate
standing separately for each form of relief sought.’” Schirmer v. Nagode, 621 F.3d 581, 585 (7th Cir.
2010) (quoting Friends of the Earth, Inc. v. Laidlaw Environmental Servs., 528 U.S. 167, 185
(2000)). Still, this case is only at the pleading stage. As in other contexts, when ruling on a motion
to dismiss for want of standing, the district court must accept as true all well-pleaded factual
allegations of the complaint, drawing all reasonable inferences therefrom in the plaintiff's favor. Id.
(citing Retired Chicago Police Assoc. v. City of Chicago, 76 F.3d 856, 862 (7th Cir. 1996)); see also
Defenders of Wildlife, 504 U.S. at 561 (“At the pleading stage, general factual allegations of injury
resulting from the defendant's conduct may suffice, for on a motion to dismiss we ‘presum[e] that
general allegations embrace those specific facts that are necessary to support the claim.’” (quoting
Lujan v. National Wildlife Federation, 497 U.S. 871, 889 (1990))).
UBM claims standing based on three injuries: (1) that SB 590 has “forced UBM to divert
scarce resources from critical programs in order to educate and assist individuals affected by SB

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590, and will continue to do so in the future” [DE 1 ¶ 13]; (2) that UBM’s “mission and
organizational goals will . . . be negatively impacted by SB 590 because the organization will have
a more difficult time encouraging members to partake in UBM’s various activities” [DE 1 ¶ 14]; and
(3) that “UBM also fears that its current and prospective members will be deterred from seeking
immigration relief because local law enforcement will continue to stop and detain them,
notwithstanding their application for relief.” [DE 1 ¶ 14].4 The first two potential injuries pleaded
are effects of the Act on UBM itself, and thus represent attempts by UBM to bring suit in its own
right. The third is an attempt to claim organizational, or associational, standing as a result of the
effects of the Act on the members of UBM. These two forms of injury are subject to different tests.
B.

UBM’s Attempt to Plead Standing in its Own Right

UBM first attempts to plead standing in its own right, based on the two alleged direct injuries
not dependent on the effect of the law on UBM’s members. “To bring suit in its own right, an
organization must itself satisfy the requirements of standing.” Milwaukee Police Ass’n v. Bd. of Fire
& Police Com’rs of City of Milwaukee, 708 F.3d 921, 926 (7th Cir. 2013) (citing Havens Realty
Corp. v. Coleman, 455 U.S. 363, 378–79 (1982); Disability Rights Wis., Inc. v. Walworth Cnty. Bd.
of Supervisors, 522 F.3d 796, 800 (7th Cir. 2008)). UBM has failed to do so with respect to its
Supremacy Clause and Fourteenth Amendment claims against § 22-5-6.
1.

Injury in Fact

The first requirement for standing is that the plaintiff demonstrate an injury in fact, which
is an invasion of a legally protected interest that is concrete and particularized and, thus, actual or

4

UBM does not claim that it employs undocumented workers and will therefore be subject to penalties or an
interruption in its workforce.

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imminent, not conjectural or hypothetical. Lee, 330 F.3d at 468. Of course, “[o]ne does not have to
await the consummation of threatened injury to obtain preventive relief. If the injury is certainly
impending, that is enough.” Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289 (1979)
(quoting Pennsylvania v. West Virginia, 262 U.S. 553, 593 (1923)); see also Regional Rail
Reorganization Act Cases, 419 U.S. 102, 143 (1974); Pierce v. Society of Sisters, 268 U.S. 510, 526
(1925). But “a plaintiff's complaint must establish that he has a ‘personal stake’ in the alleged
dispute, and that the alleged injury suffered is particularized as to him.” Raines v. Byrd, 521 U.S.
811, 819 (1997); see also Defenders of Wildlife, 504 U.S. at 560-61 (to have standing, the plaintiff
must have suffered a “particularized” injury, which means that “the injury must affect the plaintiff
in a personal and individual way”). Additionally, the alleged injury must be “legally and judicially
cognizable.” Id. “This requires, among other things . . . that the dispute is ‘traditionally thought to
be capable of resolution through the judicial process[.]’” Id. (quoting Defenders of Wildlife, 504 U.S.
at 560; Flast v. Cohen, 392 U.S. 83, 97 (1968)).
The two direct injuries pleaded by UBM are (1) that SB 590 has “forced UBM to divert
scarce resources from critical programs in order to educate and assist individuals affected by SB
590, and will continue to do so in the future” [DE 1 ¶ 13]; and (2) that UBM’s “mission and
organizational goals will . . . be negatively impacted by SB 590 because the organization will have
a more difficult time encouraging members to partake in UBM’s various activities[.]” [DE 1 ¶ 14].
The harms alleged by UBM are a result of the mere enactment, or existence, of SB 590, and not of
its actual or anticipated enforcement against UBM as a violator of the statute. UBM seeks a
declaratory judgment that IND. CODE § 22-5-6 is unconstitutional and an injunction against future
potential enforcement of the Act. “Declaratory judgments [and other types of prospective relief] are

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typically sought before a completed ‘injury-in-fact’ has occurred . . . but [they still] must be limited
to the resolution of an ‘actual controversy.’” Nat’l Rifle Ass’n of America v. Magaw, 132 F.3d 272,
279 (6th Cir. 1997) (citing Pic–A–State Pa., Inc. v. Reno, 76 F.3d 1294, 1298 (3rd Cir.), cert. denied,
517 U.S. 1246 (1996); Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 239–40 (1937)). Therefore,
“[w]hen seeking declaratory and injunctive relief, a plaintiff must show actual present harm or a
significant possibility of future harm in order to demonstrate the need for pre-enforcement review.”
Id. (citing Bras v. California Pub. Utilities Comm'n, 59 F.3d 869, 873 (9th Cir. 1995), cert. denied,
516 U.S. 1084 (1996)).
Plaintiffs seeking pre-enforcement review often successfully establish standing based on
“cost of compliance” injuries, see 520 Michigan Ave. Assocs., Ltd. v. Devine, 433 F.3d 961, 963 (7th
Cir. 2006) (collecting cases), in that “pre-enforcement review is usually granted under the
Declaratory Judgment Act when a statute ‘imposes costly, self-executing compliance burdens or if
it chills protected First Amendment activity.’” Magaw, 132 F.3d at 279 (citing Minnesota Citizens
Concerned for Life v. FEC, 113 F.3d 129, 132 (8th Cir. 1997)). UBM’s claimed injuries do not
match up perfectly with the “costs of compliance” concept, since no portion of the challenged statute
seems to require any sort of “compliance” from UBM at all. Nor do they show that SB 590 chills
protected First Amendment activity. But the Seventh Circuit has previously found sufficient injuryin-fact to support a pre-enforcement suit based on a loosely associated “diversion of resources”
claim similar to the one made by UBM. See Crawford v. Marion Cnty. Election Bd., 472 F.3d 949,
951 (7th Cir. 2007) (finding a sufficient injury was pleaded when a “new law injure[d] the
Democratic Party by compelling the party to devote resources to getting to the polls those of its
supporters who would otherwise be discouraged by the new law from bothering to vote.”). For that

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matter, so has the Supreme Court. In Coleman, 455 U.S. at 379, the plaintiff claimed as an injury
that it “ha[d] been frustrated by defendants’ racial steering practices in its efforts to assist equal
access to housing through counseling and other referral services,” and that it “had to devote
significant resources to identify and counteract the defendant[s’] racially discriminatory steering
practices.” 455 U.S. at 1124. The Court held that “[s]uch concrete and demonstrable injury to the
organization’s activities – with the consequent drain on the organization’s resources – constitutes
far more than simply a setback to the organization’s abstract social interests,” 455 U.S. at 1124
(citing Sierra Club v. Morton, 405 U.S. 727, 739 (1972)) and concluded that a sufficient injury had
been pleaded.
Given the precedents, this court is satisfied that – if true – UBM’s claims regarding the
diversion of valuable resources and the impairment of its performance of its mission as a result of
the passage of SB 590 make out a sufficient injury-in-fact to satisfy the first prong of the standing
test. The diversion, or depletion, of resources is a real economic harm, and “[t]he fact that the added
cost has not been estimated and may be slight does not affect standing, which requires only a
minimal showing of injury.” Crawford, 472 F.3d at 951 (citing Laidlaw, 528 U.S. at 180–84; United
States v. Students Challenging Regulatory Agency Procedures (SCRAP), 412 U.S. 669, 690 n. 14
(1973); Devine, 433 F.3d at 962–63; Baur v. Veneman, 352 F.3d 625, 633–34 (2d Cir. 2003)).
Moreover, at this stage, UBM need not prove that its claims are true. The well-pleaded allegations
of the complaint are to be taken at face value. Lee, 330 F.3d at 468. The remaining questions before
the court are causation – also called traceability – and redressability.
2.

Traceability

The second requirement of standing is a causal relationship between the alleged injury and

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the challenged conduct, such that the injury can be fairly traced to the challenged action of the
defendant. Lee, 330 F.3d at 468. As with the other elements of standing, UBM, as the plaintiff, bears
the burden of establishing that causation exists. Lee, 330 F.3d at 468. Notably, for the causation
requirement to be met, the injury must not be “th[e] result [of] the independent action of some third
party not before the court.” Lujan, 504 U.S. at 560 (quoting Simon v. Eastern Ky. Welfare Rights
Organization, 426 U.S. 26, 41-42 (1976)).
That rule presents a problem for UBM. At this point, the case has been narrowed down to
a suit between UBM and the County Sheriffs over the constitutionality of IND. CODE § 22-5-6.
Accordingly, the question is whether the direct injury successfully pleaded by UBM – specifically,
the diversion of resources towards educating its members about the effects of the Act – can be traced
to the County Sheriff’s discharge of their duties under that section of the Act. UBM does very little
to draw any such connection; the only applicable portion of the complaint is Paragraph 47, wherein
UBM claims “Defendants are obligated to enforce SB 590 unless it is found to be illegal.” [DE 1].
But the use of the term “enforce” in this case, to describe the County Sheriffs’ duty, is misleading.
The only duty the County Sheriffs have under IND. CODE § 22-5-6 is to file a report with federal
authorities when they have probable cause to believe a violation occurs; there is no grant of arrest
authority, of independent investigative powers, or of any other authority or discretion to take action
actually impacting the rights or liberties of the individuals whom they suspect of working illegally.
See § 22-5-6-4. The question of whether to “enforce” the registration requirement is therefore
entirely within the discretion of federal immigration authorities; if the federal authorities choose not
to pursue any “leads” submitted by local law enforcement, then no “enforcement” ever occurs at all.
That reality appears to be undisputed, and in any case it is indisputable; it is apparent from the face

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of the statutory text. This seems to be a perfect example of a situation in which the action (or
inaction) of an “independent third party” breaks the chain of causation between injury and
challenged actor.
To be sure, the presence of an independent third party does not automatically defeat
causation for standing purposes. But it does elevate the burden on UBM. “When causation hinges
on independent third parties, the plaintiff has the burden of showing that the third parties’ choices
‘have been or will be made in such a manner as to produce causation and permit redressability of
injury.’” ACLU v. Nat’l Sec. Agency, 493 F.3d 644, 666-67 (6th Cir. 2007) (quoting Lujan, 504 U.S.
at 561); see also Warth v. Seldin, 422 U.S. 490, 504-05 (1975) (fact that an injury is indirect does
not necessarily defeat standing, “[b]ut it may make it substantially more difficult . . . to establish
that, in fact, the asserted injury was the consequence of the defendants’ actions.”). There is no
allegation, anywhere in the complaint, asserting that federal immigration authorities will follow
through on Indiana law enforcement officers’ reports in a way that will have any impact on UBM’s
members. True, “[a]t the pleading stage, general factual allegations of injury resulting from the
defendant's conduct may suffice, for on a motion to dismiss we ‘presum[e] that general allegations
embrace those specific facts that are necessary to support the claim.’” Lujan, 504 U.S. at 561
(quoting Nat’l Wildlife Fed’n, 497 U.S. at 889). But this is not a situation where a general allegation
exists from which this court can draw the necessary specific inferences. This is a situation where a
necessary general allegation – one alleging that the obviously impactful independent third party
which is the federal government will enforce the law in the way seemingly anticipated by UBM –
is entirely absent. The court cannot draw specific inferences from a void. See Habecker v. Town of
Estes Park, Colo., 518 F.3d 1217, 1225 (10th Cir. 2008) (“If ‘speculative inferences are necessary

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to connect [a plaintiff’s] injury to the challenged action,’ [the plaintiff’s] burden has not been met.”
(quoting Nova Health Sys. v. Gandy, 416 F.3d 1149, 1156 (10th Cir. 2005))).
In light of the foregoing, UBM has not adequately pled standing to sue the County Sheriffs
over its diversion of resources and “impairment of mission” injuries. The complaint simply does not
adequately allege a causal link between those injuries and the extremely limited “enforcement” –
if one can call it that – role played by the County Sheriffs under the statutory scheme. Federal
immigration authorities are undeniably an “independent third party” whose decisions dictate whether
or not the County Sheriffs’ background activity will actually have any consequences which UBM’s
members will feel, or about which they could possibly need to be educated. That does not
categorically, or instantly, defeat standing, but it does mean that UBM had a burden to show that the
actions of federal immigration authorities will occur in such a way as to allow traceability, and UBM
did not even attempt to do so. Without traceability, there is no need to address redressability.
Standing is lacking, and UBM’s direct injury claims must be dismissed.
C.

Injury to Members as Basis for Associational Standing

As previously mentioned, UBM’s complaint made three claims with respect to § 22-5-6 : (1)
that it is preempted under the Supremacy Clause; (2) that it is void for vagueness under the Due
Process Clause; and (3) that the enforcement of the section will violate the Fourth Amendment right
of UBM’s members to be free from unreasonable searches and seizures. The first two claims were
founded on UBM’s standing to sue in its own right, because they logically correlated to the direct
injuries pled. Those claims have been dismissed due to UBM’s failure to adequately plead standing
to sue the County Sheriffs. UBM’s Fourth Amendment claim, however, depends entirely on its
assertion that its members will necessarily be unreasonably detained as a “side effect” of the

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section’s enforcement, and it therefore is a separate attempt to claim organizational or associational
standing and requires a separate analysis.
UBM has attempted to plead associational standing to sue on behalf of its members in that
“UBM . . . fears that its current and prospective members will be deterred from seeking immigration
relief because local law enforcement will continue to stop and detain them, notwithstanding their
application for relief.” [DE 1 ¶ 14]. An organization has associational standing and may bring suit
on behalf of its members when (1) its members would otherwise have standing to sue in their own
right, (2) the interests it seeks to protect are germane to the organization’s purpose, and (3) neither
the claims asserted, nor the relief requested, requires the participation of individual members in the
lawsuit. Sierra Club v. Franklin Cnty. Power of Illinois, LLC, 546 F.3d 918 (7th Cir. 2008); Hunt
v. Wash. State Apple Adver. Comm'n, 432 U.S. 333, 343 (1977). The third requirement does not
derive from the Constitution. Instead, it is a judicially imposed limitation, United Food and
Commercial Workers Union Local 751 v. Brown Group, Inc., 517 U.S. 544, 556–57 (1996), which
may be overridden by Congress. Disability Rights Wisconsin, Inc. v. Walworth Cnty. Bd. Of
Supervisors, 522 F.3d 796, 801-02 (7th Cir. 2008); Family & Children's Ctr., Inc. v. School City of
Mishawaka, 13 F.3d 1052, 1059 (7th Cir. 1994).
UBM has no standing to pursue its Fourth Amendment claim because its members
themselves would have no standing to do so at this juncture. To support standing, a plaintiff must
plead an injury which is concrete and particularized; actual or imminent, not conjectural or
hypothetical. Lee, 330 F.3d at 468. Three paragraphs of UBM’s complaint explain the basis for their
Fourth Amendment claim:
69.

Indiana Code § 22-5-6 provides that law enforcement officers shall file
complaints with U.S. Immigration and Customs Enforcement if they have
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probable cause to believe that an individual has violated this section of the
law by working without proper authorization.
70.

While this section does not specifically state that law enforcement officers
can detain a day laborer, that will necessarily be the effect since there is no
other manner in which an officer will be able to obtain the information
needed to file a complaint against an individual.

71.

Such a detention would be premised on the officer having probable cause of
[sic] conduct that is not criminal in nature, in violation of the Fourth
Amendment.

[DE 1 ¶¶ 69-71]. The claimed injury is entirely conjectural. It is unknown (and unknowable) when
it will occur; to whom it will occur; or if it will ever even occur at all. More specifically, UBM’s
allegation that detention of day laborers “will necessarily be the effect since there is no other manner
in which an officer will be able to obtain the information needed to file a complaint against an
individual” is a “mere conclusory statement[,]” see Iqbal, 556 U.S. at 663, and it is foundationless
and inaccurate. This seems especially so, as acknowledged by UBM, where the Sheriffs have no
legal authority to detain day laborers for purposes of this law. UBM presumes, without more, that
Sheriffs would engage in unauthorized and illegal detentions. Moreover, there are in fact many ways
a law enforcement officer might acquire probable cause to believe an individual is working without
completing an attestation. For example, a tip might come in, or the officer might acquire such
information as part of an unrelated criminal investigation. Most importantly, the court cannot say
which of these, if any, may occur, because nothing has occurred yet. This is altogether too
speculative a foundation for an Article III “case or controversy.”
Of course, UBM is right to note that a plaintiff need not necessarily wait for an imminent
constitutional injury to be consummated before bringing suit. But, in every case, “a plaintiff must
show actual present harm or a significant possibility of future harm” in order to obtain review.

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Magaw, 132 F.3d at 279. UBM has failed to properly allege a “substantial likelihood,” instead
basing its complaint on pure speculation. “The purpose of the imminence requirement is ‘to ensure
that the alleged injury is not too speculative . . . [and] that the injury is certainly impending.’” United
States v. Met. St. Louis Sewer Dist., 569 F.3d 829, 834 (8th Cir. 2009) (quoting Lujan, 504 U.S. at
564 n. 2). The alleged injury to UBM’s members is not “certainly impending.” To the contrary, it
may well never happen at all. UBM’s Fourth Amendment attack on § 22-5-6 must be dismissed.
CONCLUSION
Consistent with the foregoing, UBM’s complaint must be dismissed in full, and the
defendants’ motions to dismiss [DE 68; DE 71; DE 75] are GRANTED. The State of Indiana, the
Governor, the Attorney General, and the three County Prosecutors are dismissed from the lawsuit
as improperly sued, and UBM has not adequately pleaded standing – either direct or associational
– to sue the County Sheriffs. This dismissal is the result of technical deficiencies in UBM’s
complaint, combined with UBM’s failure to identify a proper State defendant. Those deficiencies
and failures make it impossible for this court to adjudicate the case on the merits. “[W]hen a suit is
dismissed . . . because the court has no power to resolve the case on the merits even if the parties are
content to have it do so, it is error to make the dismissal with prejudice.” T.W. by Enk v. Brophy, 124
F.3d 893, 898 (7th Cir. 1997) (citing Costello v. United States, 365 U.S. 265, 285 (1961); Bunker
Ramo Corp. v. United Business Forms, Inc., 713 F.2d 1272, 1277 (7th Cir. 1983); Robinson v.
Overseas Military Sales Corp., 21 F.3d 502, 507 n. 4 (2d Cir. 1994)). Accordingly, this action is
DISMISSED WITHOUT PREJUDICE to refiling with an adequate complaint suing proper

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parties, and the Clerk is INSTRUCTED to terminate the case. Due to the termination of the case,
the remaining pending motions [DE 74; DE 64] are DISMISSED as moot.
SO ORDERED.
ENTERED: August 13, 2013

/s/ JON E. DEGUILIO
Judge
United States District Court

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