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Judicial Watch • WashTech v. DHS 529 Brief

WashTech v. DHS 529 Brief

WashTech v. DHS 529 Brief

Page 1: WashTech v. DHS 529 Brief

Category:Legal Document

Number of Pages:8

Date Created:April 15, 2015

Date Uploaded to the Library:April 15, 2015

Tags:Washtech, abdication, statute, standing, Ultra, Refugee, Adams, Amicus, Congress, government, DHS, texas, states, court, EPA

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Plaintiff, Case No. 1:14-cv-529-ESH
Amicus Judicial Watch, Inc. Judicial Watch believes that fidelity the rule law
requires this Court find that plaintiff Washington Alliance Technology Workers WashTech has standing challenge the illegal regulations the Department Homeland
Security DHS issue this lawsuit. The regulations flatly contradict the relevant statute.
DHS issuance these regulations amounts ultra vires action, well abdication its duty enforce the immigration laws, and this turn expands the relevant zone interest test for
prudential standing. WashTech therefore has standing the present case way the plaintiffs Programmers Guild, Inc. Chertoff did not. 338 Fed. Appx. 239, 243 (3rd Cir. 2003)
(unpublished) [T]he plaintiffs never argue precisely why this injury arguably falls within the
zone interests The Court should find, and should otherwise grant plaintiff CrossMotion for Summary Judgment. ECF No. 25.
Interests the Amicus articulated the accompanying Motion for Leave, amicus Judicial Watch
concerned that DHS unlawful action poses special threat the rule law, and concerned
about the corrosive effect that violation American society. DHS broad, unauthorized
regulatory-rewrite the Immigration and Nationalization Act INA statute question
especially harmful because oversteps the agency authority and usurps the powers reserved
Congress. addition, DHS violation the INA turns blind eye primary purpose the
INA namely, ensure that the right participate the market for U.S.-based jobs fairly
extended American citizens and residents deemed lawful Congress.
Congress allows DHS issue student visas that foreign nationals may stay the U.S.
temporarily pursue academic studies. U.S.C. 1101(a)(15)(F)(i). DHS has issued
regulations which rewrite this statute allow students work full time jobs after completing
their education for over two years, that they remain the U.S. their student visas without
receiving work visas. C.F.R. 214.2(f)(10); C.F.R. 214.2(f)(10)(ii)(C); see ECF No. 17,
Memorandum Opinion, pp. 1-3. avoid burdening this Court with repetitive arguments that have already been well
made, amicus Judicial Watch files this brief only highlight one narrow issue prudential
standing raised this case. Specifically, this case illustrates the purpose the doctrine
prudential standing based illegal government acts commission omission ultra vires
actions and abdication duty. The doctrines exist allow the judicial branch address naked
illegality the other branches. consideration this doctrine shows that standing has been
effectively argued here, unlike Programmers Guild, 338 Fed. Appx. 243 (plaintiffs did not
argue precisely why zone interest applied). Amicus urges the Court acknowledge that
plaintiff claims this case fall within the zone interests protected regulated the
statute question. Ass Data Processing Serv. Org Camp, 397 U.S. 150, 153
(1970). Amicus Judicial Watch otherwise joins those arguments that support grant summary
judgment favor WashTech. See ECF No. 25, Pltfs. Cross-Motion for Summary Judgment.
Amicus holds that illegal government actions (such that exemplified this case)
expands the applicable zone interest courts must consider determining whether plaintiff
satisfies prudential standing considerations. This not tantamount arguing that party
satisfaction prudential standing depends the merits case, but rather merely requires
consideration plaintiff merits claims during the standing inquiry. City Waukesha EPA,
320 F.3d 228, 235 (D.C. Cir. 2003). Amicus argues that the best reading precedent shows
rule that the zone interest prudential standing test essentially broadened when illegal
government actions are issue. While statute zone interest may ordinarily give rise
standing for only specific class potential litigants, cases illegal government conduct
expand the zone interests due the inherently offensive nature government actions
which exceed statutory limits. Catholic Social Serv. Shalala, F.3d 1123, 1126 (DC Cir.
DHS Ultra Vires Actions Give Rise Standing
Ultra vires actions lower the bar for satisfying the zone interest test, beyond its already
undemanding standard. See Clarke Securities Industry Ass 479 U.S. 388, 399 (1987).
the analogous context evaluating jurisdiction, courts have noted the presumptions that
Congress rarely intends foreclose review action exceeding agency authority and that
judicial review allegedly ultra vires agency action favored. Amgen Inc. Smith, 357
F.3d 103, 112, 113 (D.C. Cir. 2004). The same holds evaluating standing.
The strongest formulation this rule holds that plaintiffs need not even demonstrate that
they fall within the zone interest statute when ultra vires agency action issue:
Appellants need not, however, show that their interests fall within the zones
interests the constitutional and statutory powers invoked the President
order establish their standing challenge the interdiction program ultra
vires. Otherwise, meritorious litigant, injured ultra vires action, would
seldom have standing sue since the litigants interest normally will not fall
within the zone interests the very statutory constitutional provision that
claims does not authorize action concerning that interest.
Haitian Refugee Ctr. Gracey, 809 F.2d 794, 812 n.14 (D.C. Cir. 1987). Here, the Haitian
Refugee court was making the important point that Congress writes statutes which confer limited
powers and grant narrow rights only partly for the benefit those receiving the rights and
powers. But when agency acts illegally, the illegal action will impact persons beyond the
intended class protected the statute precisely because the agency now acting outside the
statute, affecting persons and interests Congress never intended the statute affect. this
regard, the narrowness statute grant always serves the interest all others not receiving
the benefit the statute. This because statute limits ensures that the award benefit
one party does not harm another party more than intended. the present case, while the primary
parties within the zone interest U.S.C. 1101(a)(15)(F)(i) may foreign students,
when the government begins ignore the text that statute grant even more benefits
foreign students than Congress intended, the zone interests shifts towards those who are
harmed that unlawful expansion the statute.
The Haitian Refugee court continues: may that particular constitutional statutory provision was intended
protect persons like the litigant limiting the authority conferred. so, the
litigants interest may said fall within the zone protected the limitation.
Haitian Refugee Ctr. Gracey, 809 F.2d 794, 812 n.14 (D.C. Cir. 1987) (bold added). This
statement the rule applicable the present case. Congress intended limit DHS authority
under Section 1101 grants visas for education. When DHS uses this statute grant work
visas, the zone interest effect expanded workers like those represented plaintiff
WashTech. another formulation, the zone interests broadened ultra vires action because
most plaintiffs have cognizable interest the rule law when its absence injures them:
Appellants argue that the principle administrative law for which they contend
necessarily assumes they fall within the zone interests vindicated. If,
appellants argue, rule that retroactive specific application ultra vires and
void initio, can only because administrative law, drawn from the APA and
judicial decisions, views any such rule inherently offensive and that its
offensiveness taints the entire existence the rule and any application it.
Catholic Social Serv. Shalala, F.3d 1123, 1126 (D.C. Cir. 1994). Under either formulation,
plaintiff WashTech members satisfy prudential standing. This explanation how DHS ultra
vires action expands the zone interests demonstrates precisely why [WashTech injury
falls within the zone interests, and therefore provides what was lacking Programmers
Guild, 338 Fed. Appx. 243.
II. DHS Abdication Duty Gives Rise Standing
The power regulate immigration unquestionably... federal power. Chamber
Commerce Whiting, 131 Ct. 1968, 1974 (2011). such, the federal government has high
standard responsibility and fundamental obligation ensure that the immigration laws are
appropriately applied Congress intended and enforced required statute. Failure
amounts abdication duty. See e.g. Adams Richardson, 480 F.2d 1159, 1162 (D.C. Cir.
1973) (finding federal abdication duty enforce the civil rights laws). ultra vires
actions, government abdication similarly broadens the relevant zone interest, because
nonenforcement statute necessarily affects broader class interests than Congress had
mind when instructed enforcement.
The principle abdication standing was illustrated the recent decision Texas
United States, 2015 U.S. Dist. Lexis 18551, *114 (S.D. 2015) Assuming that the concept abdication standing will recognized this Circuit, this Court finds that this textbook
example. that case, the court found that the federal government total preemption the
area immigration, combined with the failure DHS fulfill its responsibility remove
unlawfully present aliens, established basis for abdication standing. Texas, 2015 U.S. Dist.
Lexis *98 [T]he [federal] Government claims total preemption this area the law. Thus,
the first element abdication claim established.
The district court Texas held that the plaintiffs had abdication standing because
was indisputable that DHS was abandoning its duty enforce the law given its written
pronouncements non-enforcement:
Because this announced policy nonenforcement, the Plaintiffs claims are
completely different from those based mere ineffective enforcement. This
abdication any meaningful measure.
Texas, 2015 U.S. Dist. Lexis *100, 45. Accordingly, the plaintiffs easily satisfied the
second element necessary for abdication standing [showing that] the Government has
abandoned its duty enforce the law. Id. *101. Amicus avers the DHS regulations issue this case amount announced policy non-enforcement the terms Section 1101
the INA, and are similarly tantamount abdication.
Furthermore, the Texas holding not limited abdication standing for States opposed citizens fact, quite the opposite. Id. *136 The States and their residents are
entitled nothing less [than the enforcement immigration laws]. *115, [I]mmigration laws that are designed... protect the States and their citizens. *132 The Court finds that the acts Congress deeming these individuals removable were passed
part protect the States and their residents. (bold added). further support for the concept abdication standing for citizens, Adams Richardson illustrative. 480 F.2d 1159 (D.C. Cir.
1973). Adams, the plaintiffs asserting claims were black students, citizens, and taxpayers.
Adams, 480 F.2d 1161. The plaintiffs Adams alleged that the Department Health,
Education, and Welfare had adopted policies which essentially refused enforce Title
Civil Rights Act 1964. Id. The Court Appeals rejected the government argument that
the means enforcement matter absolute agency discretion... Id. 1162. The Adams
court noted that the agency had consciously and expressly adopted general policy which
effect abdication its statutory duty, and therefore sided with the plaintiffs. Id.
Accordingly, Adams illustrates that not only States which may satisfy the expanded zone
interest test via abdication standing, but also citizens who suffer direct injury well the
present case. Accordingly, this case distinguishable from the Third Circuit decision
Programmers Guild, which never considered how abdication expands the relelvant zone
interests for standing. 338 Fed. Appx. 239.
WashTech claims satisfy the requirements prudential standing. Amicus respectfully
requests that this Court find and otherwise grant plaintiff Cross-Motion for Summary
Dated: April 2015
Respectfully submitted, Chris Fedeli
Chris Fedeli (DC Bar 472919)
Lauren Burke (MA Bar 670840)
425 Third Street, SW, Ste. 800
Washington, 20024
202-646-5172 office
202-646-5199 facsimile
Attorneys for Amicus Curiae Judicial Watch