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Judicial Watch • File Stamped Fifth Circuit Amicus – State of Texas, et al., v. United States of America, et al.

File Stamped Fifth Circuit Amicus – State of Texas, et al., v. United States of America, et al.

File Stamped Fifth Circuit Amicus – State of Texas, et al., v. United States of America, et al.

Page 1: File Stamped Fifth Circuit Amicus – State of Texas, et al., v. United States of America, et al...

Category:Legal Document

Number of Pages:21

Date Created:March 24, 2015

Date Uploaded to the Library:March 25, 2015

Tags:Amicus Brief, Fifth Circuit Court of Appeals, Amnesty, Illegal Immigration, DHS, Supreme Court


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Case: 15-40238
Document: 00512980287
Date Filed: 03/24/2015 THE UNITED STATES COURT APPEALS
FOR THE FIFTH CIRCUIT
STATE TEXAS, al.,
Plaintiffs-Appellees,
UNITED STATES
AMERICA, al.,
Defendants-Appellants.
Case Number: 15-40238
MOTION FOR LEAVE FILE AMICUS CURIAE BRIEF JUDICIAL WATCH, INC. SUPPORT APPELLEES
OPPOSITION APPELLANTS EMERGENCY MOTION
FOR STAY PENDING APPEAL
Pursuant Rule 29(b) the Federal Rules Appellate Procedure, Judicial
Watch, Inc., counsel, respectfully moves for leave file amicus curiae brief support Appellees Opposition Appellants Emergency Motion for Stay
Pending Appeal. support thereof, Judicial Watch states follows:
MEMORANDUM LAW
Judicial Watch, Inc. Judicial Watch not-for-profit, educational
organization that seeks promote transparency, integrity, and accountability
government and fidelity the rule law. Judicial Watch regularly monitors
significant developments the courts and the law, pursues public interest
litigation, and files amicus curiae briefs issues public concern. Judicial
Case: 15-40238
Document: 00512980287
Date Filed: 03/24/2015
Watch regularly files amicus curiae briefs means advance its public interest
mission. this instance, Judicial Watch believes Appellants emergency
motion raises important public policy questions that directly impact the rule law.
First, Appellants seek relief from this Court without waiting for the District Court rule the motion stay Appellants filed that court. Second, and more
importantly, Appellants fail demonstrate why destroying years status quo
and undermining duly enacted laws necessary this immediate date.
The relief Appellants seek would destroy the status quo and,
doing, undermine the rule law. The District Court has already found that
preserving the status quo important. This Court should not overturn that ruling this time.
U.S. Supreme Court Justices Clarence Thomas and Antonin Scalia
recently emphasized the importance preserving the status quo important
constitutional cases such this lawsuit when they objected the denial
motion stay pending appeal same sex marriage case.
Judicial Watch proposed amicus curiae brief highlights Justices
Thomas and Scalia admonition and demonstrates how their concerns are directly
applicable here. The proposed brief also demonstrates how Appellants have failed comply with Rule the Federal Rules Appellate Procedure.
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Case: 15-40238
Document: 00512980287
Date Filed: 03/24/2015
Judicial Watch motion timely because Judicial Watch seeking file its proposed amicus curiae brief within the time period permitted the
Court for Appellees file their opposition. The proposed brief attached
Exhibit
WHEREFORE, Judicial Watch respectfully requests that the Court grant its
motion for leave file amicus curiae brief and accept for filing the amicus
curiae brief attached Exhibit
Dated: March 24, 2015
Respectfully Submitted,
/s/ Paul Orfanedes
Paul Orfanedes
JUDICIAL WATCH, INC.
425 Third Street, S.W., Suite 800
Washington, 20024
(202) 646-5172
Counsel for Judicial Watch, Inc.
-33
Case: 15-40238
Document: 00512980287
Date Filed: 03/24/2015
CERTIFICATE SERVICE hereby certify that this 24th day March 2015, filed the foregoing via
the CM/ECF system and served the foregoing via the CM/ECF system all
counsel who are registered CM/ECF users.
/s/ Paul Orfanedes
-44
Case: 15-40238
Document: 00512980288
Date Filed: 03/24/2015
Exhibit
Case: 15-40238
Document: 00512980288
Date Filed: 03/24/2015
APPEAL NO. 15-40238 THE
UNITED STATES COURT APPEALS
FOR THE FIFTH CIRCUIT
____________
STATE TEXAS, al.,
Plaintiffs-Appellees,
UNITED STATES, al.,
Defendants-Appellants.
____________
AMICUS CURIAE BRIEF JUDICIAL WATCH, INC. SUPPORT APPELLEES OPPOSITION APPELLANTS
EMERGENCY MOTION FOR STAY PENDING APPEAL
____________ APPEAL FROM THE U.S. DISTRICT COURT
FOR THE SOUTHERN DISTRICT TEXAS
BROWNSVILLE DIVISION
____________
Paul Orfanedes
JUDICIAL WATCH, INC.
425 Third Street, S.W., Suite 800
Washington, D.C. 20024
(202) 646-5172
porfanedes@judicialwatch.org
Counsel for Amicus Curiae
Case: 15-40238
Document: 00512980288
Date Filed: 03/24/2015 THE UNITED STATES COURT APPEALS
FOR THE FIFTH CIRCUIT
STATE TEXAS, al.,
Plaintiffs-Appellees,
UNITED STATES
AMERICA, al.,
Defendants-Appellants.
Case Number: 15-40238
SUPPLEMENTAL CERTIFICATE INTERESTED PERSONS
The undersigned counsel record certifies that the following listed persons
and entities described the fourth sentence Rule 28.2.1 have interest
the outcome this case. These representations are made order that the judges this court may evaluate possible disqualifications recusal.
Judicial Watch, Inc., Amicus Curiae
Paul Orfanedes, Counsel for Amicus Curiae Judicial Watch, Inc.
/s/ Paul Orfanedes
Case: 15-40238
Document: 00512980288
Date Filed: 03/24/2015
CORPORATE DISCLOSURE STATEMENT
Judicial Watch, Inc. not-for-profit, educational organization that has
parent company, and publicly held corporation has 10% greater ownership
interest Judicial Watch, Inc.
/s/ Paul Orfanedes
Case: 15-40238
Document: 00512980288
Date Filed: 03/24/2015
TABLE CONTENTS
TABLE CONTENTS ............................................................................................i
TABLE AUTHORITIES ....................................................................................
INTEREST JUDICIAL WATCH, INC. ..............................................................
ARGUMENT .............................................................................................................
Appellants Did Not Provide the District
Court with the Opportunity Rule .....................................................
II.
Preservation the Status Quo Great
Importance When Benefits and Services
Are At-Issue ..........................................................................................
III.
Appellants Argument
Unsupported Facts ............................................................................
CONCLUSION ..........................................................................................................
CERTIFICATE COMPLIANCE .........................................................................
Case: 15-40238
Document: 00512980288
Date Filed: 03/24/2015
TABLE AUTHORITIES
Cases
Dayton Board Education Brinkman, 439 U.S. 1358 (1978)..............................
Hirschfeld Board Elections, 984 F.2d (2d Cir. 1993)...................................
Houchins KQED, Inc., 429 U.S. 1341 (1977)........................................................
Nken Holder, 556 U.S. 418 (2009) ....................................................................
Ruiz Estelle, 650 F.2d 555 (5th Cir. 1981).............................................................
Securities and Exchange Commission Dunlap,
253 F.3d 768 (4th Cir. 2001) ...........................................................................
Strange Searcy, 574 U.S. __, 2015 U.S. LEXIS 912 (Feb. 2015).................
Texas United States, 2015 U.S. Dist. LEXIS 18551,
(S.D. Tx. Feb. 16, 2015) ..............................................................................
Veasey Perry, 769 F.3d 890 (5th Cir. 2014) ..........................................................
Rules
Fed. App. 8(a)(2)(A)(ii) ....................................................................................
Fed. App. 29(b) .................................................................................................
Fed. App. 29(c) .................................................................................................
Miscellaneous
Michael Shear and Julia Peterson, Administration Try Block Ruling That Postpones
Immigration Actions, The New York Times (Feb. 20, 2015) .........................
Case: 15-40238
Document: 00512980288
Date Filed: 03/24/2015
Press Release, Documents Reveal DHS Abandoned
Illegal Alien Background Checks Meet
Amnesty Requests Following Obama
DACA, Judicial Watch, Inc. (June 11, 2013) ...................................................
Stephen Dinan, Dreamers from Obama
amnesty snared criminal dragnet,
The Washington Times (Mar. 19, 2015) ....................................................
iii
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Date Filed: 03/24/2015
INTEREST JUDICIAL WATCH, INC.
Judicial Watch, Inc. Judicial Watch not-for-profit, educational
organization that seeks promote transparency, integrity, and accountability
government and fidelity the rule law. Judicial Watch regularly monitors
significant developments the courts and the law, pursues public interest
litigation, and files amicus curiae briefs issues public concern. Judicial
Watch regularly files amicus curiae briefs means advance its public interest
mission. this instance, Judicial Watch believes Appellants emergency motion for
stay pending appeal raises important public policy questions that directly impact
the rule law. filing their motion, Appellants disregard fundamental, wellestablished norms appellate procedure, apparently try score political points.
See Michael Shear and Julia Peterson, Administration Try Block Ruling
That Postpones Immigration Actions, The New York Times (Feb. 20, 2015) The
government sending message immigration advocates, many whom
have been frustrated the Justice Department [actions]. First, Appellants
seek relief from this Court without waiting for the District Court rule the
motion stay Appellants filed that court. Second, and more importantly,
Appellants fail demonstrate why destroying years status quo and
undermining duly enacted laws necessary this immediate date.
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Judicial Watch files this amicus curiae brief pursuant Rule 29(b) the
Federal Rules Appellate Procedure. addition, pursuant Rule 29(c) the
Federal Rules Appellate Procedure, Judicial Watch, Inc. states that counsel
for party authored this brief whole part, and counsel party made
monetary contribution intended fund the preparation submission this brief.
Nor did any person other than Judicial Watch, Inc. its counsel make monetary
contribution its preparation submission.
ARGUMENT
Appellants Did Not Provide the District Court With the
Opportunity Rule.
Noticeably absent from Appellants emergency motion why Appellants
believe this Court should rule its motion this time. February 23, 2015,
Appellants moved for stay pending appeal the District Court. Appellees
responded, and March 2015, the District Court issued order indicating
would rule the motion after March 19, 2015 hearing. Nothing the record
suggests the District Court will not rule shortly.
Rule 8(a)(2)(A)(ii) the Federal Rules Appellate Procedure, which
Appellants rely, requires that motion for stay pending appeal filed the
appellate court must state that, motion having been made, the district court
denied the motion failed afford the relief requested and state any reasons
given the district court for its action. Fed. App. 8(a)(2)(A)(ii). The
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District Court has not denied Appellants motion. Nor has the District Court failed afford the relief requested. simply has not yet had the opportunity rule
the motion. Based the plain language the rule, Appellants motion should
denied for this reason alone.
Similarly, this Court has held explicitly, [T]he district court should have the
opportunity rule the reasons and evidence presented support stay,
unless clearly appears that further arguments support the stay would
pointless the district court. Ruiz Estelle, 650 F.2d 555, 567 (5th Cir. 1981).
Other circuits impose the same requirement. See Hirschfeld Board Elections,
984 F.2d 35, (2d Cir. 1993) (The movants papers give explanation why the
instant motion for stay pending appeal was made the first instance this
Court. showing impracticability bringing such motion the district
court was offered briefs oral argument. The [movant] clearly made effort follow proper appellate procedure their motion for stay. see also
Securities and Exchange Commission Dunlap, 253 F.3d 768, 774 (4th Cir.
2001). The requirement makes sense because stay intrusion into the
ordinary processes administration and judicial review and not matter
right. Nken Holder, 556 U.S. 418, 427 (2009) (internal citations omitted).
Appellants sole argument for seeking relief from this Court before the
District Court has ruled their view the urgency obtaining stay the
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Date Filed: 03/24/2015
preliminary injunction. Appellants Emergency Motion for Stay Pending Appeal demonstrated below, Appellants fails show why destroying years
status quo and undermining duly enacted laws necessary this immediate date.
Because Appellants failed wait for the District Court rule the motion stay
pending appeal they filed that court, Appellants not satisfy the basic
requirements Rule and their emergency motion must denied.
II.
Preservation the Status Quo Great Importance When
Benefits and Services Are At-Issue. its February 16, 2015 decision preliminarily enjoining implementation
the Deferred Action for Parents American and Lawful Permanent Residents DAPA program, the District Court found was important preserve the status
quo. Texas U.S., 2015 U.S. Dist. LEXIS 18551, **205-210 (S.D. Tx. Feb. 16,
2015). First, the court concluded that, even with preliminary injunction place,
DHS may continue prosecute not prosecute illegally-present individuals, current laws dictate. This has been the status quo for least the last five years.
Id. Second, the court found, the preliminary injunction denied, Plaintiffs will
bear the costs issuing licenses and other benefits once DAPA beneficiaries
armed with Social Security cards and employment authorization documents seek
those benefits. Id. Third, the court noted that, once DAPA beneficiaries received
benefits and services from the states, there effective way put[] the
toothpaste back the tube should Appellees ultimately prevail the merits
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their lawsuit. Id. short, the District Court found that preserving the status quo
important. This Court should not overturn that ruling this time. this District Court found, DAPA beneficiary not only receives
promise that she will not deported, but also receives the opportunity
apply for numerous government benefits and services, such the authority
work and driver license. Because granting Appellants motion would allow
millions individuals begin applying for benefits and services they otherwise
would not eligible receive, the recent admonition U.S. Supreme Court
Justices Thomas and Scalia about failing preserve the status quo pending appeal pertinent. Strange Searcy, the Supreme Court declined stay
injunction preventing the Attorney General Alabama from enforcing several
provisions Alabama law defining marriage legal union one man and one
woman pending appeal the injunction. Consequently, Alabama was required begin issuing marriage licenses same-sex couples. result, individuals
undoubtedly have begun receiving marriage licenses and resulting government
benefits and services they otherwise would not eligible receive. Alabama
succeeds the merits, will required void same-sex marriage licenses and
retract all benefits and services issued during the pendency the appeal.
objecting the denial the stay, Justices Thomas and Scalia wrote:
The [Supreme] Court look[ed] the other way yet another Federal
District Judge casts aside state laws without making any effort
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preserve the status quo pending the Court resolution
constitutional question This acquiescence may well seen
signal the Court intended resolution that question. This not
the proper way discharge our Article III responsibilities. And,
indecorous for this Court pretend that is.
574 U.S. __, 2015 U.S. LEXIS 912, **3-4 (Feb. 2015) (Thomas, J., dissenting).
This Court should affirm the importance preserving the status quo until
final resolution reached the merits. See Veasey Perry, 769 F.3d 890, 892
(5th Cir. 2014) stay pending appeal simply suspends judicial alteration the
status quo. (quoting Nken Holder, 556 U.S. 429); see also Dayton Board
Education Brinkman, 439 U.S. 1358, 1359 (1978) [T]he maintenance the
status quo important consideration granting stay. Houchins KQED,
Inc., 429 U.S. 1341, 1346 (1977) [T]he preservation that status quo
important factor favoring stay. this Court were grant Appellants motion, would cast aside decades-old immigration laws passed Congress and signed the President. These laws have been place for almost years. seeking
stay pending appeal, Appellants fail demonstrate why destroying years
status quo and undermining duly enacted laws necessary this immediate date.
None the reasons cited Appellants their motion answer the question: why
today? This Court should not discharge its Article III responsibilities
acquiescing Appellants unsubstantiated pleas. should deny the motion.
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III.
Document: 00512980288
Date Filed: 03/24/2015
Appellants Argument Unsupported Facts.
Appellants motion also should denied because unsupported facts.
Appellants argue:
The injunction also irreparably interferes with [Department
Homeland Security DHS ability protect the Homeland and
secure our borders. Deferred action helps immigration officials
distinguish criminals and other high priority aliens from aliens who
are not priorities for removal and whose cases may additionally
burden backlogged immigration courts. Rather than wasting
resources determining whether encountered individuals are
enforcement priorities, DHS would able rely proof
deferred action quickly confirm that they are not.
Appellants Emergency Motion for Stay Pending Appeal (internal citations
omitted). Through Freedom Information Act request, Judicial Watch obtained
records showing that DHS failing conduct required, comprehensive
background checks aliens who apply for Appellants original deferred action
program, known Deferred Action for Childhood Arrivals DACA order
accelerate the processing applications. See Press Release, Documents Reveal
DHS Abandoned Illegal Alien Background Checks Meet Amnesty Requests
Following Obama DACA, Judicial Watch, Inc. (June 11, 2013). Specifically, the
records reveal that DHS abandoned rigorous checks DACA applicants
backgrounds for minimal, lean and lite background checks. Id. early March
2015, was reported that DACA beneficiaries were picked nationwide
sweep criminal aliens, which are current DACA recipients. See Stephen
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Dinan, Dreamers from Obama amnesty snared criminal dragnet, The
Washington Times (Mar. 19, 2015), available http://www.washingtontimes.com/
new/2015/mar/19/23-dreamers-obama-amnesty-snared-criminal-dragnet. Because
there evidence suggest that comprehensive backgrounds checks are not being
performed, allowing the DAPA program take effect pending Appellants appeal the District Court preliminary injunction unlikely assist DHS
distinguishing criminal and other high priority aliens from non-criminal aliens.
CONCLUSION
For these reasons, Appellants motion for stay should denied.
Dated: March 24, 2015
Respectfully Submitted,
/s/ Paul Orfanedes
Paul Orfanedes
JUDICIAL WATCH, INC.
425 Third Street, S.W., Suite 800
Washington, 20024
(202) 646-5172
Counsel for Judicial Watch, Inc.
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CERTIFICATE COMPLIANCE
This brief complies with the type-volume limitation Fed. App.
32(a)(7)(B) because this brief contains 1,812 words, excluding the parts the
brief exempted Fed. App. 32(a)(7)(B)(iii).
This brief complies with the typeface requirements Fed. App.
32(a)(5) and the type style requirements Fed. App. 32(a)(6) because this
brief has been prepared proportionally spaced typeface using Microsoft Word
2010 proportional Times New Roman, 14-point font.
/s/ Paul Orfanedes
-920
Case: 15-40238
Document: 00512980288
Date Filed: 03/24/2015
CERTIFICATE SERVICE hereby certify that this 24th day March 2015, filed the foregoing via
the CM/ECF system and served the foregoing via the CM/ECF system all
counsel who are registered CM/ECF users.
/s/ Paul Orfanedes