State of Texas et al v. United States of America et al

Filing 64

REPLY in Support of 5 Opposed MOTION for Preliminary Injunction, filed by Phil Bryant, Paul R. LePage, Patrick L. McCrory, C.L. "Butch" Otter, Bill Schuette, State of Louisiana, State of Alabama, State of Arizona, State of Arkansas, State of Florida, State of Georgia, State of Idaho, State of Indiana, State of Kansas, State of Montana, State of Nebraska, State of North Dakota, State of Ohio, State of Oklahoma, State of South Carolina, State of South Dakota, State of Texas, State of Utah, State of West Virginia, State of Wisconsin. (Attachments: # 1 Exhibit Ex 1, # 2 Exhibit Ex. 2, # 3 Exhibit Ex. 3, # 4 Exhibit Ex. 4, # 5 Exhibit Ex. 5, # 6 Exhibit Ex. 6, # 7 Exhibit Ex. 7, # 8 Exhibit Ex. 8, # 9 Exhibit Ex. 9.a, # 10 Exhibit Ex. 9.b, # 11 Exhibit Ex. 10.a, # 12 Exhibit Ex. 10.b, # 13 Exhibit Ex. 10.c, # 14 Exhibit Ex. 10.d, # 15 Exhibit Ex. 10.e, # 16 Exhibit Ex. 10.f, # 17 Exhibit Ex. 10.g, # 18 Exhibit Ex. 10.h, # 19 Exhibit Ex. 10.i, # 20 Exhibit Ex. 10.j, # 21 Exhibit Ex. 10.k, # 22 Exhibit Ex. 10.l, # 23 Exhibit Ex. 10.m, # 24 Exhibit Ex. 10.n, # 25 Exhibit Ex. 10.0, # 26 Exhibit Ex. 10.p, # 27 Exhibit Ex. 10.q, # 28 Exhibit Ex. 10.r, # 29 Exhibit Ex. 10.s, # 30 Exhibit Ex. 11, # 31 Exhibit Ex. 12, # 32 Exhibit Ex. 13, # 33 Exhibit Ex. 14, # 34 Exhibit Ex. 15, # 35 Exhibit Ex. 16, # 36 Exhibit Ex. 17, # 37 Exhibit Ex. 18, # 38 Exhibit Ex. 19, # 39 Exhibit Ex. 20, # 40 Exhibit Ex. 21, # 41 Exhibit Ex. 22, # 42 Exhibit Ex. 23, # 43 Exhibit Ex. 24, # 44 Exhibit Ex. 25, # 45 Exhibit Ex. 26, # 46 Exhibit Ex. 27, # 47 Exhibit Ex. 28, # 48 Exhibit Ex. 29, # 49 Exhibit Ex. 30, # 50 Exhibit Ex. 31, # 51 Exhibit Ex. 32, # 52 Exhibit Ex. 33, # 53 Exhibit Ex. 34, # 54 Exhibit Ex. 35)(Oldham, Andrew)

EXHIBIT 15

App. 0791

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
BROWNSVILLE DIVISION

STATE OF TEXAS, et al.,
Plaintiffs,

v.

Case No. 1:14-cv-00254

UNITED STATES OF AMERICA, et al.,
Defendants.

DECLARATION OF PATRICK A. FERNAN
STATE OF WISCONSIN

)
) SS.

COUNTY OF DANE

)

I, Patrick A. Fernan, have personal knowledge of .the following facts
and declare:
1.

I am the Administrator of the Wisconsin Department of

Transportation («WisDOT"), Division of Motor Vehicles ("DMV'). WisDOT is
an administrative agency within the executive branch of the State of
Wisconsin

government

responsible

for

providing a

broad array of

transportation services. The DMV is one of five divisions within WisDOT and
is responsible for, among other things, instituting a classified driver license
system that meets all federal standards under 49 U.S.C. §§ 30304(e) and

1

App. 0792

31301 to 31317 and 49 C.F.R. pts. 383 and 384, issuing operator's licenses to
Wisconsin residents in accordance with federal and state laws, and issuing
identification cards to Wisconsin residents in accordance with state laws.
2.

I have held the DMV Administrator position since July 2013.

The DMV Administrator position is an appointed position that provides
leadership

for

approximately

770

DMV

employees

approximately 92 locations throughout Wisconsin.

who

work

at

DMV offers in-person,

telephone, mail, internet, and third-party services relating to driver licensing,
identification cards, vehicle title and registration, emissions testing,
consumer protection, fraud prevention, and other related activities.

The

DMV Administrator directly supervises one Deputy Adminis,trator and three
Bureau Directors, along with other staff.
3.

Before assuming my role as the DMV Administrator in July 2013,

I held the DMV Deputy Administrator position since June 2007.

In this

position, I was responsible for administering, directing, planning, and
coordinating the programs, policies, laws, rules, and activities of the DMV. I
assumed the responsibilities and full authority of the then-serving the DMV
Administrator in the DMV Administrator's absence.
4.

I have held other positions in the DMV since February 2005.

2

App. 0793

5.

In Wisconsin, operator's licenses and identification cards are

available to all individuals who meet certain eligibility requirements. These
requirements vary by product and are available at www.wisconsindmv.gov.
6.

Currently,

approximately

4,000,000

individuals

hold

an

unexpired operator's license, and approximately 400,000 individuals hold an
unexpired identification card. Most products the DMV issues are valid for
eight years, and, as such, the DMV issues approximately 550,000 renewal
products each year.

The DMV issues approximately a total of 1,000,000

original and duplicate operator's licenses and identification cards annually,
including instruction permits, probationary licenses, original Wisconsin
licenses, duplicates and other products in addition to the renewal products.
7.

Pursuant to Wis. Stat. § 343.14(2)(intro.), every application for an

operator's license or an identification card must contain documentary proof
establishing that the applicant is legally present in the United States.
8.

Pursuant to Wis. Stat. § 343.14(2)(es)6., an applicant is

authorized to submit, and the DMV is authorized to accept, documentary
proof that the applicant has approved deferred action status to establish that
the applicant is legally present in the United States.
9.

On June 15, 2012, the Secretary of the United States Department

of Homeland

Security

issued

a

memorandum

entitled

"Exercising

Prosecutorial Discretion with Respect to Individuals Who Came to the United
3

App. 0794

States as Children" to the United States Customs and Border Protection, the
United States Citizenship and Immigration Services, and the United States
Immigration and Customs Enforcement. This memorandum is available at
www. uscis.g·ov/childhoodar1·ivals.
10.

This memorandum announced a policy known as "Deferred

Action for Childhood Arrivals" ("DACA"), which sets forth a number of
criteria the memorandum's recipients should consider when deciding whether
to exercise prosecutorial discretion to defer removal action against a certain
class of individuals who are unlawfully present in the United States.
11.

This class comprises individuals who have: (1) arrived in the

United States before age sixteen; (2) continuously resided in the United
States for at least five years prior to June 15, 2012; (3) are current students,
high school graduates, or recipients of a general education development
certificate; (4) have not been convicted of a felony, significant misdemeanor,
multiple misdemeanors, or otherwise pose a threat to national security or
public safety; and (5) are not above age 30.
12.

On October 4, 2012, in response to WisDOT's request, the

Attorney General of Wisconsin issued a formal opinion to WisDOT concluding
that a notice of deferred action status issued pursuant to the DACA policy
constitutes satisfactory proof of legal presence under the predecessor to Wis.
Stat. § 343.14(2)(es)6.

The formal opinion further concluded that any
4

App. 0795

operator's license or identification card obtained with a notice of deferred
action status issued pursuant to the DACA policy would expire two years
from the date when the notice was issued, even if the product would
otherwise last for a longer time period.
13.

On January 15, 2013, in response to the formal opinion, the DMV

created a unique code for operator's licenses and identification cards obtained
with a notice of deferred action status issued pursuant to the DACA policy.
The DMV determines whether an applicant is legally present in the United
States when that applicant indicates on his or her application that they are
not a United States citizen but rather a permanent or conditional resident.
For all non-United States citizens, the Dl\W verifies legal presence status
with the United States government using the Systematic Alien Verification of
Entitlements ("SAVE") system.

Each SAVE verification costs the State of

Wisconsin $0.50. If the applicant's legal presence status is verified, SAVE
provides a match code. There are match codes associated with a variety of
legal presence statuses, including the DACA policy.
14.

Between January 15, 2013, when the DMV created the unique

DACA policy code, and December 12, 2014 (the "Relevant Period"), the DMV
issued 5,053 customers providing a notice of deferred action status issued
pursuant to the DACA policy a total of 11,860 operator's licenses and

5

App. 0796

identification cards. During the Relevant Period, the DMV issued a total of
approximately 2,032,000 operator's licenses and identification cards.
15.

Thus, customers obtaining an operator's license or identification

card with a notice of deferred action status issued pursuant to the DACA
policy account for approximately 0.58% of all customers obtaining an
operator's license or identification card during the Relevant Period ("0.58%
DACA Percentage").
16.

I am aware of President Obama's recent executive action

authorizing the lawful presence of certain undocumented immigrants
currently in the United States as an expansion of the existing DACA policy
("Expanded DACA Policy"). My understanding is that the Expanded DACA
Policy may extend to more than four (4) million people throughout the United
States. Based on these estimates, DMV anticipates an increase in operation
and administrative costs to support the implementation of the Expanded
DACA Policy. DMV's revenues and costs generated pursuant to the current
DACA policy are described in greater detail below; however, the revenues and
costs discussed below do not include any forecast or other estimated amount
that would account for additional revenues and costs incurred pursuant to
the Expanded DACA Policy.
17.

The DMV's total revenue for issuance of operator's licenses and

identification cards in fiscal year 2014 is approximately $27,900,000.
6

App. 0797

18.

The amount of annual revenue for issuance of operator's licenses

and identification cards issued to customers providing a notice of deferred
action status issued pursuant to the current DACA policy is approximately
$161,820.00. DMV derived this amount by multiplying the total amount of
annual revenue for issuance of operator's licenses and identification cards
($27,900,000) by the 0.58% DACA Percentage.
19.

The DMV's expenditures on operator's license and identification

card programs are projected for fiscal year 2015 to be approximately

$33,500,000 ("Annual Expenditures").
20.

The t_ tal Annual Expenditures for services rendered to
o

customers providing a notice of deferred action status issued pursuant to the
current DACA policy is approximately $194,300.00. The DMV derived this
amount by multiplying the total amount of DMV Annual Expenditures
($33,500,000) by the 0.58% DACA Percentage.

21.

The net annual loss for fiscal year 2015 for operator's license and

identification card programs is projected to be approximately $5,600,000.00
("Net Annual Loss"). The DMV derived this amount by subtracting the total
amount of Annual Expenditures ($33,500,000) from the total amount of
revenues ($27,900,000).
22.

The anticipated amount of Net Annual Loss attributable to the

number of operator's licenses and identification ca1·ds issued to customers
7

App. 0798

providing a notice of deferred action status issued pursuant to the current
DACA policy is approximately $32,480.00. The DMV derived this number by
multiplying the total amount of Net Annual Loss ($5,600,000.00) for fiscal
year 2015 by the 0.58% DACA Percentage.
23.

In addition to the Annual Expenditures cited above, additional

costs associated with the DMV's operator's license and identification card
programs include services and support from the four (4) other WisDOT
Divisions and the Executive Offices: (1) Division of Transportation System
Development; (2) Division of Transportation Investment Management; (3)
Division of State Patrol; (4) Division of Business Management; and (5) the
Executive Offices, which include the Secretary's Office, Office of Policy,
Finance and Information, Office of General Counsel, Office of Public Affairs
(collectively, the "Divisions"). These costs include, but are not limited to: (1)
salary and fringe benefits of certain full-time WisDOT employees working
exclusively on DMV operations; (2) salary and fringe benefits of certain fulltime WisDOT employees working on DMV operations as a part of their work
duties; (3) warehouse and other storage costs; and (4) freight costs. These
costs are collectively referred to herein as "Identifiable Division Costs".
24.

The Identifiable Division Costs attributable to the operator's

license and identification card programs totaled approximately $3,410,516.00
for the fiscal year 2014.
8

App. 0799

25.

The Identifiable Division

Costs attributable to customers

providing a notice of deferred action status issued pursuant to the current
DACA policy is approximately $9,890.00. The DMV derived this number by
multiplying the total amount of Identifiable Division Costs by the .58%
DACA Percentage.
26.

WisDOT annually spends approximately $2, 718,939.00 for the

operation of its approximately 92 service centers throughout Wisconsin and
central office operations in costs attributable to operator's license and
identification card programs ("Facility Costs"). The Facility Costs include
costs for rent, maintenance, telephone and cable services.
27.

The Facility Costs attributable to servicing customers that

provide a notice of deferred action status issued pursuant to the current
DACA policy is approximately $15, 770.00. The DMV derived this number by
multiplying the total amount of Facility Costs by the .58% DACA Percentage.
28.

WisDOT annually spends an indeterminate amount on additional

DMV operational costs attributable to operator's license and identification
card programs, including, but not limited to: (1) human resource services; (2)
training of DMV staff in general programming; (3) training of DMV staff in
specialized areas (such as a new process for the Expanded DACA Policy or
emergency

medical

training);

(4)

employee

assistance

program;

(5)

affirmative action/equal opportunity employment programs; (6) payroll and
9

App. 0800

benefit coordination; (7) worker's compensation and risk management; (8)
fiscal services; (9) procurement services and support; forms and publication
costs; (10) office space costs for other DMV staff and administrators within
WisDOT' s central office located in Madison, Wisconsin; (11) IT operation
costs and equipment costs that support all of DMV's functions, programs and
services, including those at its approximately 92· service centers and online;
(12) supply costs, such as office supplies, janitorial supplies, furniture and
other fixtures; and (13) all other costs incurred by WisDOT relating to the
operation and administration of the DMV within WisDOT that are not
Identifiable Division Costs and not otherwise reflected herein.
29.

In sum, total annual net loss to the DMV attributable to

operator's license and identification card programs, and that is attributable
to customers providing a notice of deferred action status issued pursuant to
the current DACA policy is approximately $58, 140.00 ("Annual Total Loss
Amount").
30.

The DMV derived the Annual Total Loss Amount by adding: (1)

the Annual Net Loss attributable to the DACA policy; (2) Identifiable
Division Costs attributable to the DACA Policy; and (3) the Facility Costs
attributable to the DACA policy.
31.

The

Annual

Total

Loss

Amount

does

not

include

the

indeterminate costs set forth in Paragraph 28 above.
10

App. 0801

32.

The Annual Total Loss Amount does not include any anticipated,

additional costs resulting from the Expanded DACA Policy. Any additional
costs resulting from an Expanded DACA Policy are indeterminable at this
time; however, upon any Dl\IIV or WisDOT action pursuant to the Expanded
DACA Policy, WisDOT will incur an additional loss given that the current
DACA policy already results in a loss to WisDOT.
I declare under penalty of perjury that the foregoing is true and correct.

Executed on December~' 2014.

=~td~
~
Patrick A. Fernan

11

App. 0802