1 Stephen P. Berzon (SBN 46540) Scott A. Kronland (SBN 171693)
2 Jonathan Weissglass (SBN 185008) Linda Lye (SBN 215584)
3 Danielle E. Leonard (SBN 218201) ALTSHULER BERZON LLP
4 177 Post Street, Suite 300 San Francisco, CA 94108
5 Telephone: (415) 421-7151 Facsimile: (415) 362-8064
6 Email: skronland@altshulerberzon.com" Email: llye@altshulerberzon.com
7 Email: dleonard@altshulerberzon.com

8 Attorneys for Plaintiffs

9 Jonathan P. Hiatt (SBN 63533) James B. Coppess (Pro Hac Vice Application forthcoming)
10 Ana L. Avendafio (SBN 160676) AFL-CIO
11 815 Sixteenth Street, N.W. Washington, D.C. 20006
12 Telephone: (202) 637-5053 Facsimile: (202) 637-5323
13 Email: aavendan@aflcio.org

14 Attorneys for PlaintiffAFL-CIO

15 (Counsel list continued on next page)

16

UNITED STATES DISTRICT COURT

17

NORTHERN DISTRICT OF CALIFORNIA

18 AMERICAN FEDERATION OF LABOR AND

) Case No.

CONGRESS OF INDUSTRIAL ORGANIZATIONS;)

------

19 SAN FRANCISCO LABOR COUNCIL; SAN

)

FRANCISCO BUILDING AND CONSTRUCTION

) COMPLAINT FOR

20 TRADES COUNCIL; and CENTRAL LABOR COUNCIL) DECLARATORY AND

OF ALAMEDA COUNTY,

) INJUNCTIVE RELIEF

21

)

Plaintiffs,

)

22

)

v.

)

23

)

MICHAEL CHERTOFF, Secretary of Homeland Security; )

24 DEPARTMENT OF HOMELAND SECURITY;

)

JULIE MYERS, Assistant Secretary ofHomeland

)

25 Security; U.S. IMMIGRATION AND CUSTOMS

)

ENFORCEMENT; MICHAEL ASTRUE, Commissioner )

26 of Social Security; and SOCIAL SECURITY

)

ADMINISTRATION,

)

27

)

Defendants.

)

28

)

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF, Case No. _ _ _ _ _ _ __

1 (Counsel list continued from first page)

2 Linton Joaquin (SBN 73547) Marie1ena Hincapie (SBN 188199)
3 Monica T. Guizar (SBN 202480) NATIONAL IMMIGRATION LAW CENTER
4 3435 Wilshire Blvd., Suite 2850 Los Angeles, CA 90010
5 Telephone: (213) 674-2850 Facsimile: (213) 639-3911
6 Email: guizar@ni1c.org

7 Lucas Guttentag (SBN 90208)

Jennifer C. Chang (SBN 233033)

8 Monica M. Ramirez (SBN 234893)

AMERICAN CIVIL LIBERTIES UNION FOUNDATION

9 Immigrants' Rights Project

.

39 Drumm Street

10 San Francisco, CA 94111

Telephone: (415) 343-0770

11 Facsimile: (415) 395-0950

E-mail: jchang@ac1u.org

12

Omar C. Jadwat (Pro Hac Vice Application forthcoming)

13 AMERICAN CIVIL LIBERTIES UNION FOUNDATION

Immigrants' Rights Project

14 125 Broad Street, 18th Floor

New York, NY 10004

15 Telephone: (212) 549-2620

Facsimile: (212)-549-2654

16 Email: ojadwat@ac1u.org

17 Alan L. Schlosser (SBN 49957) Julia Harumi Mass (SBN 189649)
18 ACLU FOUNDATION OF NORTHERN CALIFORNIA 39 Drumm Street
19 San Francisco, CA 94111 Telephone:.(415) 621-2493
20 Facsimile: (415) 255-1478 E-mail: aschlosser@ac1u.org
21 Attorneys for PlaintiffCentral Labor Council ofAlameda County
22 David A. Rosenfeld (SBN 58163)
23 Manjari Chawla (SBN 218556) WEINBERG, ROGER & ROSENFELD
24 A Professional Corporation 1001 Marina Village Parkway, Suite 200
25 Alameda, California 94501-1091 Telephone: (510) 337-1001
26 Facsimile: (510) 337-1023 Email: drosenfeld@unioncounsel.net
27 Attorneys for Plaintiffs San Francisco Labor Council,
28 San'Francisco Building and Construction Trades Council, and Alameda County Central Labor Council

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF, Case No. _ _ _ _ _ _ __

1 Plaintiffs allege as follows:

2

INTRODUCTION

3

1. This action challenges a new Department of Homeland Security (''DHS'') rule that

4 would commandeer the Social Security tax system for immigration-enforcement purposes. The new

5 rule would place in jeopardy thejobs of U.S. citizens and non-citizens legally authorized to work

6 simply because of discrepancies in the government's error-prone Social Security earnings database.

7 The rule also would provide a further incentive for unauthorized workto take place off-the-books,

8 causing the government to lose Social Security taxes now paid on those wages.

9

2. The new rule, "Safe Harbor Procedures for Employers That Receive a No Match

10 Letter," 72 Fed. Reg. 45611 (Aug. 15,2007), would threaten employers with liability for illegally

11 employing unauthorized workers if the employer receives a "no-match" letter from the Social

12 Security Administration ("SSA"), unless the employer complies with specified "safe harbor"

13 procedures. Those procedures include terminating employees who cannot resolve data

14 discrepancies within 90 days. But the SSA's no-match letters, which SSA sends to employers when

15 an employee name and Social Security number on a W-2 form do not match the SSA database, have

16 nothing to do with a worker's immigrat~on status. The new rule greatly expands liability in a

17 manner contrary to the governing statute adopted by Congress.

18

3. This action also alleges that the Defendants' plan to implement the new rule exceeds

19 the authority that Congress granted to DHS and SSA. Congress carefully balanced many policies in

20 adopting and amending the nation's immigration laws and tax laws. Whether to now begin using
,
21 SSA's confidential earnings database for immigration-enforcement purposes is a decision only

22 Congress can make.

23

4. Plaintiffs seek a temporary restraining order, preliminary injunction, and permanent

24 injunction to prohibit Defendants from implementing the new rule and a declaratory judgment that

25 the new rule is invalid.

26

JURISDICTION

27

5. This Court has jurisdiction over the claims alleged in this Complaint pursuant to

28 28 U.S.c. §1331 (federal question), 28 U.S.C. §2201 (declaratory relief), and 5 U.S.c. §§701-706

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF, Case No. _ _ _ _ _ _ _ __

1

II

1 (Administrative Procedures Act).

2

VENUE AND INTRA-DISTRICT ASSIGNMENT

3

6. Venue is proper in this Court pursuant to 28 U.S.C. §1391(e) because Plaintiffs San

4 Francisco Labor Council, San Francisco Building and Construction Trades Council, and Central

5 Labor Council of Alameda County reside in this judicial ~istrict.

6

7. Pursuant to Local Rule 3-2(d), an intra-district assignment to the San Francisco or

7 Oakland Division is proper because a substantial part of the events giving rise to the claims in this

8 action will occur in the County of San Francisco. Plaintiffs San Francisco Labor Council and San

9 Francisco Building and Construction Trades Council reside in the City and County of San

10 Francisco, Defendant Social Security Administration maintains a Regional Office in San Francisco,

11 and Plaintiff American Federation of Labor and Congress of Industrial Organizations' affiliated

12 unions have members employed in San Francisco who would be subject to the challenged

13 government action.

14

PARTIES

15

8. Plaintiff American Federation of Labor and Congress of Industrial Organizations

16 ("AFL-CIO") is a labor federation comprised of 55 national and international labor unions that

17 collectively represent more than ten million working men and women throughout the United States,

18 in virtually every type ofjob and industry. The mission of the AFL-CIO is to serve as an advocate

19 for workers, to improve the lives of working families, and to bring fairness and dignity to the

20 workplace.

21

9. In the past, workers represented by AFL-CIO's affiliated unions who are U.S.

22 citizens or non-citizens lawfully working in the United States have been the subject of "no-match"

23 letters sent by the SSA to their employers. The Government Accountability Office reports that

24 about four percent of all Forms W-2 submitted by employers report earnings that cannot be matched

25 with SSA records and that are therefore placed in SSA's Earnings Suspense File. On information

26 and belief, the AFL-CIO's affiliated unions would represent tens of thousands or hundreds of

27 thousands ofworkers who are lawfully working in the United States but have earnings in the

28 Earnings Suspense File.

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF, Case No. _ _ _ _ _ _ _ __

2

II

1

10. Plaintiff San Francisco Labor Council is a labor federation comprised of about i 50

2 affiliated member unions that collectively represent more than 150,000 men and women working in

3 San Francisco. The mission of San Francisco Labor Council is to improve the lives of workers,

4 their families, and others by bringing economic justice to the workplace and social justice to the

5 community. In the past, workers represented by the San Francisco Labor Council's affiliates have

6 been the subject of no-match letters issued by the SSA.

7

11. Plaintiff San Francisco Building and Construction Trades Council is a labor

8 organization consisting of28 affiliates who collectively represent approximately 10,000 building

9 and construction trade workers in San Francisco. San Francisco Building and Construction Trades

10 Council is dedicated to representing and protecting the interests of San Francisco's building and

11 construction trades workers.

12

12. . Plaintiff Central Labor Council of Alameda County ("Alameda County CLC"), a

13 chartered affiliate of the AFL-CIO, is a local labor federation whose affiliates are 130 labor unions

14 that collectively represent more than 76,000 diverse workers working in Alameda County in private

15 industry and public institutions. These workers together speak nearly 100 languages and hail from

16 scores of countries. The Alameda County CLC advocates for workers so that they can earn a better

17 living and is committed to fighting workplace discrimination. It has also led campaigns to pass

18 living wage ordinances to improve conditions for non-members, with which the Alameda County

19 CLC often works on a variety of public interest causes related to minimum wage laws, healthcare,

20 quality schools and affordable housing.

21

13. Members of the Alameda County CLC's affiliated unions who are U.S. citizens or

22 non-citizens authorized to work have b~en the subject of SSA "no-match" letters in the past. These

23 letters have significantly impacted low-income workers of Latin American and Asian descent who

24 use compound last names or inconsistently transliterate their names, which may result in inadvertent

25 errors or discrepancies in their SSA records. Employers have harassed and intimidated many of

26 these workers, especially those who work in construction, manufacturing, healthcare and the

27 expanding service and janitorial sector, because of "no-match" letters. The Alameda County CLC is

28 less able to organize and advocate for workers effectively when workers fear "no-match" abuse by

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF, Case No. _ _ _ _ _ _ _ __

3

1 employers.

2

14. Plaintiffs AFL-CIO, San·Francisco Labor Council, San Francisco Building and

3 Construction Trades Council, and Central Labor Council of Alameda County are also employers

4 subject to the Immigration Reform and Control Act of 1986 ("IRCA"), 8 U.S.C. §1324a-§1324b.

5

15. Defendant Michael Chertoffis the Secretary of the Department of Homeland

6 Security and is responsible for all functions ofDHS and its component organizations. He is sued in

7 his official capacity.

8

16. Defendant Department of Homeland Security is a federal agency charged with, inter

9 alia, the administration and enforcement of federal immigration laws. DHS promulgated the rule

10 entitled "Safe Harbor Procedures for Employers That Receive a No Match Letter," 72 Fed. Reg.

11 45611 (Aug. 15, 2007), that is challenged in this litigation.

12

17. Defendant U.S. Immigration and Customs Enforcement ("ICE") is a federal agency

13 within DHS responsible for investigating and enforcing immigration laws, including 8 U.S.c.

14 §1324a. DHS and ICE created the Guidance Letter regarding the DHS Final Rule that the SSA

15 intends to send to employers along with its "no-match" letters.

16

18. Defendant Julie Myers is· the Assistant Secretary of Homeland Security for ICE and

17 is responsible for all functions of ICE and its component organizations. She is sued in her official

18 capacity.

19

19. Defendant Social Security Administration is a federal agency charged with

20 administration of the Social Security Act, and with processing tax information for the purpose of

21 administering the Social Security program. Defendant SSA maintains databases of tax information

22 and periodically generates "no-match" letters to employers that submit Forms W-2 to report

23 employee earnings if employee names and Social Security Numbers do not match SSA records. See

24 42 U.S.C. §432; 20 C.F.R. §422.120. Beginning on September 4,2007, defendant SSA intends to

25 send the DHSIICE Guidance Letter to employers along with its "no-match" letters.

26

20. Defendant Michael Astrue is the Commissioner of Social Security and is responsible

27 for all programs administered by the SSA. He is sued in his official capacity.

28

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF, Case No. _ _ _ _ _ _ _ __

4

1

BACKGROUND

2

Social Security Administration "No Match" Letters

3

21. The Social Security Act of 1935 authorizes the SSA to establish a record-keeping

4 system to manage the Social Security program. Congress also granted SSA authority to process tax

5 information for purposes of administering the Social Security program, as a specific exception to the

6 exclusive tax authority ofthe Internal Revenue Service ("IRS"). See 26 U.S.c. §6103 (1)(5); 42

7 U.S.c. §432. Pursuant to that delegation of authority, the IRS and SSA created a joint system for

8 the processing of Forms W-2 called the Combined Annual Wage Reporting System ("CAWR"). 43

9 Fed. Reg. 60158 (Dec. 26, 1978) (codified at 26 C.F.R. §31.6051).

10

22. Under the CAWR, employers annually report employee earnings using Forms W-2,

11 and SSA posts those earnings to individual workers' Social Security records so workers will receive

12 credit for those earnings when they apply for Social Security. The SSA then forwards the Forms W-

13 2 to the IRS.

14

23. lithe SSA cannot match.the name and Social Security Number ("SSN") on a Form

15 W-2 with SSA's records, the SSA places the earnings report in its Earnings Suspense File. See

16 20 C.F.R §422.120. The earnings remain in the Earnings Suspense File until SSA can link them to

17 a name and SSN.

18

24. Every year, the SSA receives millions of earnings reports that the SSA cannot match

19 with its records. The Earnings Suspense File is a huge database that contains more than 255 million

20 unmatched earnings records and that is growing at the rate of 8 to 11 million unmatched records per

21 year. About four percent of annual Form W-2 earnings reports are placed in the SSA's Earnings

22 Suspense File.

23

25. Although some mismatched SSA records result from employees without work

24 authorization using false SSNs, there also are many reasons unrelated to immigration status for

25 mismatched records. These include a) clerical errors by either an employer or the SSA in spelling

26 an employee's name or recording the SSN; b) the SSA's issuance of duplicate SSNs or reissuance of

27 SSNs of deceased individuals; c) employee name changes after marriage or divorce; d) employees

28 that use a less "foreign" sounding first name for work purposes; and e) different naming conventions

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF, Case No. _ _ _ _ _ _ _ __

5

1 (such as the use of multiple surnames) that are commonplace in many parts of the world,

2 particularly in some Latin American and Asian countries.

3

26. The most recent Gove111Ip.ent Accountability Office ("GAO") report on the SSA's

4 Earnings Suspense Pile concluded that the file "[c]ontains information about many US. citizens as

5 well as non-citizens" and that "the overall percentage of unauthorized workers is unknown." GAO-

6 06-814R, at 8 (emphasis added). When the SSA ultimately has been able to resolve data

7 discrepancies, "most ... belong to US.-born citizens, not to unauthorized workers," which GAO

8 concluded "is an indication that a significant number of earnings reports in the [Earnings Suspense

9 Pile] belong to U.S. Citizens and work-authorized noncitizens." Id.

10

27. As part of its administration of the Social Security program, SSA periodically sends

11 out letters, commonly known as "no-match" letters, informing employers that SSNs and employee

12 names reported on Porms W-2 did not match SSA's records. See 20 c.P.R. § 422.120.

13

28. SSA no-match letters are purely advisory. SSA has no authority to sanction

14 employers that fail to respond to no-match letters.

15

29. Pursuant to its regulations, SSA notifies the IRS of incomplete or inaccurate

16 earnings reports. 20 c.P.R. §422.120. In 1986, Congress authorized IRS to impose sanctions on

17 employers that submit false or inaccurate tax information. 26 US.c. §6721; see also 26 C.P.R.

18 §301.6721-1. Under IRS regulations, an employer is not subject to sanction if the employer

19 accurately and in good faith transmits the name and SSN provided by an employee. 26 US.C.

20 §6724(a); 26 C.P.R. §301.6724-1. Insofar as the Internal Revenue Code is concerned, a reasonable

21 employer response to a no-match letter is to confirm that the employer is accurately transmitting the

22 name and SSN provided by the employee and to advise the employee that SSA is reporting a no-

23 match. !d.

24

30. SSA is not an immigration agency and does not know whether a particular SSN listed

25 in a no-match letter relates to unauthorized work. SSA also is prohibited by tax privacy statutes

26 from sharing the information in the Earnings Suspense Pile with the DRS. Until now, SSA's no-

27 match letters explained to employers: "This letter does not imply that you or your employee

28 intentionally gave the government wrong information" and "makes no statement regarding an

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF, Case No. _ _ _ _ _ _ _ __

6

1 employee's immigration status." Until now, the SSA has never included information from an

2 immigration-enforcement agency with its no-match letters.

3

Employer Verification of Work Authorization and Employer Sanctions

4

31. The Immigration Reform and Control Act of 1986 ("IRCA") made it unlawful for

5 employers to "to hire ... for employment in the United States an alien knowing the alien is an

6 unauthorized alien." 8 U.S.C. §1324a(a)(1)(A) (emphasis added).

7

32. IRCA also separately made it unlawful for employers to hire without complying with

8 an initial verification process established by Congress. 8 U.S.C. §1324a(a)(1)(B). That verification

9 process requires the employee to present the employer with documents to show proof of identity and

10 work authorization and requires the employer and employee to complete an 1-9 verification form.

11 8 U.S.C. §1324a(b); 8 C.F.R. §274a.2..

12

33. IRCA also makes it unlawful for an employer "to continue to employ an alien ...

13 knowing the alien is (or has become) an unauthorized alien with respect to such employment." 8

14 U.S.C. §1324a(a)(2) (emphasis added).

15

34. IRCA specifically exempted workers hired before IRCA's enactment on November

16 6, 1986, from the hiring prohibition and the verification process. Pub. L. No. 99-603 § 101(a)(3),

17 100 Stat. 3359 (1986) (codified at 8 U.S.C. § 1324a note).

18

35. Employers that violate IRCA are subject to civil and criminal liability. 8 U.S.C.

19 §1324a(e)(4)-(5), (t).

20

36. At the same time that Congress imposed employer sanctions, Congress also wanted

21 to prevent employer discrimination based on national origin or citizenship status. IRCA therefore

22 makes it illegal for employers to discriminate based on national origin or citizenship status,

23 including by requesting "more or different documents than are required" for the initial 1-9

24 verification or "refusing to honor documents ... that on their face reasonably appear to be genuine."

25 8 U.S.c. §1324b(a)(1),(6).

26

37. Congress intentionally did not impose in IRCA any employment authorization

27 verification for existing employees. Congress also chose not to impose ongoing re-verification

28 requirements after the initial hire.

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF, Case No. -------------------

7

1·

New Department of Homeland Security Rule

2

38. Until now, neither DHS nor its predecessor immigration-enforcement agencies had

3 taken the position that an employer's failure to inquire into the work-authorization status of an

4 employee subject to an SSA no-match letter meant that the employer had knowledge that it was

5 employing an unauthorized worker. The Immigration and Naturalization Service had recognized

6 that no-match discrepancies occur for many innocent reasons and therefore consistently advised

7 employers in opinion letters that "[w]e would not consider notice of this discrepancy from SSA to

8 an employer by itselfto put the employer on notice that the employee is unauthorized to work."

9

39. On June 14,2006, DHS gave notice of a proposed rule that would address the

10 responsibilities of employers that receive SSA no-match letters. More than 5,000 comments were

11 received by DHS during the 60-day comment period, including comments that disputed DHS'

12 authority to adopt the rule. Plaintiff AFL-CIO was among those who submitted comments objecting

13 to the rule. After the comment period closed on August 14,2006, the proposed rule lay dormant for

14 a year.

15

40. Shortly after Congress left for recess without enacting immigration reform

16 legislation urged by DHS, the agency issued a final rule on August 15, 2007 (hereinafter, the "DHS

17 Final Rule"). The DHS Final Rule is entitled "Safe-Harbor Procedures for Employers Who

18 Receive a No-Match Letter" and published at 72 Fed. Reg. 45611. The DHS Final Rule will

19 become legally effective on September 14, 2007.

20

41. The DHS Final Rule will amend the definition of "knowing" in 8 C.F.R.

21 §274a.l(l)(I), the regulatory subsection that defines the term "knowing" for purposes ofIRCA.

22 The amended regulation will list, as an example of an employer that has "constructive knowledge"

23 that an employee is an "unauthorized alien," an employer that receives a SSA no-match letter and

24 then "fails to take reasonable steps." The first part ofthe amended regulation will provide:

25

(1)(1) The term knowing includes having actual or constructive knowledge....

26

Examples of situations where the employer may, depending upon the totality of~he

27

relevant circumstances, have constructive knowledge that an employee is an

28

unauthorized alien include, but are not limited to, situations where the employer:

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF, Case No. _ _ _ _ _ _ _ __

8

1

2

(iii) Fails to take reasonable steps after receiving information indicating that the

3

employee may be an alien who is not employment authorized, such as -

4

5

(B) Written notice to the employer from the Social Security Administration

6

reporting earnings on a Form W-2 that employees' names and corresponding social

7

security account numbers fail to match Social Security Administration records ....

8

42. Having created a threat ofIRCA liability for employers receiving SSA no-match

9 letters, the DHS Final Rule then offers employers a "safe harbor." An employer receiving a SSA

10 no-match letter "will be considered by the Department ofHomeland Security to have taken

11 reasonable steps - and receipt ofthe written notice will therefore not be used as evidence of

12 constructive knowledge - ifthe employer" takes the actions specified by DHS. These are "the only

13 combination of steps that will guarantee that DHS will not use the employer's receipt of the notices

14 from SSA ... as evidence of constructive knowledge that an employee is an unauthorized alien."

15 72 Fed. Reg. at 45618.

16

43. To qualify for the DHS "safe harbor," an employer that determines the SSA no-

17 match was not the result of its own clerical error must instruct an employee who claims the name

18 and SSN are correct to resolve the discrepancy with SSA within 90 days after receipt of the no-

19 match letter. If the employee is unable to resolve the discrepancy with SSA within 90 days, the

20 employer cannot continue to employ the worker unless the worker can complete within three days a

21 new immigration verification, on a new 1-9 form, using only documents that contain photo

22 identification and no documents that contain the disputed SSN, even ifthe employee still insists the

23 SSN is correct. If employees insist their names and SSNs on their identification documents are

24 correct but have not resolved the discrepancy with SSA by the deadline, or cannot produce the

25 required additional photo identification, the employer would have to fire them.

26

Implementation of the DBS Final Rule by DBS and SSA

27

44. On September 4,2007, DHS and SSA intend to begin sending employers no-match

28 letters that will be accompanied by a letter from DHS and ICE (hereinafter the "DHSIICE Guidance

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF, Case No. _ _ _ _ _ _ _ __

9

1 Lytter"). The DHSIICE Guidance Letter states that it will "provide guidance on how to respond to

2 the enclosed letter from the Social Security Administration (SSA) ... in a manner that is consistent

3 with your obligations under United States Immigration Laws."

4

45. The DHSIICE Guidance Letter contains questions and answers, which begin with the

5 following:

6

Q: Can I simply disregard the letter from SSA?

7

A: No. You have received official notification of a problem that may have

significant legal consequences for your employees. If you elect to disregard the

8

notice you have received and it is determined that some employees listed in the

enclosed letter were not authorized to work, the Department of Homeland Security

9

(DRS) could determine that you have violated the law by knowingly continuing to

employ unauthorized persons. This could lead to civil and criminal sanctions.

10

11

46. After threatening employers with civil and criminal liability, the DHSIICE Guidance

12 Letter then asks: "Q: What should I do?" and responds that "You should" follow the steps set out

13 in the DHS Final Rule.

14

47. The DHS/ICEGuidance Letter assures employers that, if they follow those

15 procedures for every no-match, they will not be liable for discrimination if they terminate

16 employees:

17

Q: Will I be liable for discrimination charges brought by the United States

if I terminate the employee after I follow the steps outlined above?

18

A: No....."

19

20

48. SSA has revised its no-match letters so that they direct employers to follow the

21 instructions in the accompanying DHSIICE Guidance Letter.

22

49. SSA and DHS intend to commence sending the revised no-match letters and the

23 DHSIICE Guidance Letter to employers on September 4, 2007. Between September 4, 2007 and

24 November 9, 2007, the SSA expects to mail no-match letters to approximately 140,000 employers

25 around the country. Each letter will list at least 10 mismatched SSNs and some letters will list 500

26 or more. Approximately 8.7 million employees will be affected by this initial wave of mailings.

27

50. SSA will continue to mail additional batches of no-match letters after November 9,

28 2007, to hundreds of thousands of other employers.

COMPLAINT FOR DECLARATORY AND INJUNCTNE RELIEF, Case No. _ _ _ _ _ _ _ __

10

1

Effect of Implementation of the New DBS Final Rule

2

51. Adoption of the DRS Final Rule on September 14, 2007 will immediately impose

3 new obligations in violation of law on every employer governed by IRCA. The imminent SSA

4 mailing on September 4, 2007 will immediately impose substantial administrative costs on at least

5 140,000 employers, and additional employers will be affected as SSA continues in the future to send

6 out no-match letters accompanied by the DRSIICE Guidance Letter.

7

52. The receipt of the SSA no-match letter and DRSlICE Guidance Letter will lead some

8 employers to immediately fire workers with SSN no-matches, even though they are lawfully entitled

9 to work, because the worker's "foreign'; appearance or accent causes the employer to fear IRCA

10 liability. Such firings have occurred in the past after no-match letters were issued, and the DRS

11 Final Rule will exacerbate this problem.

12

53. A substantial portion of the several million no-match SSNs that are listed in the

13 initial round of SSA no-match letters will relate to U.S. citizens or non-citizens lawfully entitled to

14 work. On information and belief, a substantial number of these workers are members of unions

15 affiliated with Plaintiffs.

16

54. As a result of implementation of the DRS Final Rule, including the DRSIICE

17 Guidance Letter, lawfully employed workers will immediately be forced to expend time and effort

18 to resolve SSA data discrepancies, including taking time offwork without pay to visit SSA field

19 offices that are open only during business hours and that will be overwhelmed with similar requests

20 from other workers.

21

55. Many lawfully employed workers will be unable to resolve data discrepancies with

22 the SSA bureaucracy within the 90-day deadline set out in the DRS Final Rule and will for that

23 reason be terminated from their jobs. SSA already has told DRS that in "difficult cases," SSA may

24 be unable to resolve discrepancies within the 90-day timeframe.

25

FIRST CLAIM FOR RELIEF

26

(Violation by DBS of 8 U.S.C. §1324a and 5 U.S.C. §706(2)(A»

27

56. Plaintiffs incorporate by ~eference all preceding paragraphs as if fully set forth

28 herein.

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF, Case No. _ _ _ _ _ _ _ __

11

1

57. The DRS Final Rule is inconsistent with the governing statute, 8 U.S.c. §1324a,

2 because it expands civil and criminal liability for employers based on a definition of "knowing" that

3 is not what Congress meant by the term "knowing" in IRCA. The DRS Final Rule is also

4 inconsistent with the governing statute because it establishes a system for reverification of the work

5 authorization status of continuing employees that is not consistent with Congress' intent to establish

6 a system of verification of work-authorization status only upon initial hire. The DRS Final Rule is

7 agency action "not in accordance with law" and violates 5 U.S.C. §706(2)(A).

8

SECOND CLAIM FOR RELIEF

9

(Violation by DHS of 5 U.S.c. §706(2)(A))

10

58. Plaintiffs incorporate by reference all preceding paragraphs as if fully set forth

11 herein.

12

59. The DRS Final Rule is "arbitrary" and "capricious" agency action in violation of

13 5 U.S.C. §706(2)(A) because it treats the receipt of an SSA no-match letter as indicating a high

14 probability that a mismatched SSN relates to unauthorized work when DRS does not have access to

15 the Earnings Suspense File and does not know the probability that an SSN relates to unauthorized

16 work.

17

THIRD CLAIM FOR RELIEF

18

(Violation by DHS of 5 U.S.c. §706(2)(C))

19

60. Plaintiffs incorporate by reference all preceding paragraphs as if fully set forth

20 herein.

21

61. The DRS Final Rule exceeds DRS' statutory authority, in violation of5 U.S.C.

22 §706(2)(C), by seeking to impose immigration-law obligations on employers and employees in

23 responding to an SSA no-match letter.

24

FOURTH CLAIM FOR RELIEF

25

(Violation by DHS, ICE and SSA of 5 U.S.c. §706(2)(B) and Due Process Clause)

26

62. Plaintiffs incorporate by reference all preceding paragraphs as if fully set forth

27 herein.

28

CO:MPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF,Case No. _ _ _ _ _ _ _ __

12

1

63. The DRS Final Rule and-DRSIICE Guidance Letter, and SSA's distribution of that

2 letter with its no-match letters, will impose unreasonable deadlines on employers and employees

3 and will cause some lawfully employed workers to be fired from their jobs without due process

4 because of erroneous government data bases, and because SSA is not able to resolve a data

5 discrepancy by an arbitrary deadline. As such, Defendants' actions violate 5 U.S.c. §706(C) and

6 the Due Process Clause of the U.S. Constitution.

7

FIFTH CLAIM FOR RELIEF

8

(Ultra Vires Agency Action by DHS and ICE)

9

64. Plaintiffs incorporate by reference all preceding paragraphs as if fully set forth

10 herein.

11

65. The DRS' Rule and DRSIICE Guidance Letter are ultra vires actions in excess of

12 statutory authority granted to DRS, ICE, and SSA by Congress.

13

SIXTH CLAIM FOR RELIEF

14

(Violation by DDS, ICE and SSA of 5 U.S.c. §706(2)(C))

15

66. Plaintiffs incorporate by reference all preceding paragraphs as if fully set forth

16 herein.

17

67. DRS, ICE, and SSA have no statutory authority to use the SSA tax information

18 processing system in general, and the SSA no-match letters in particular, as tools for the

19 enforcement of immigration laws.

20

68. The plan by DRS, ICE, and SSA to include the DRSlICE Guidance Letter to

21 employers along with SSA no-match letters is agency action in excess of the statutory authority of

22 DRS, ICE, and SSA, and therefore violates 5 U.S.c. §706(2)(C).

23

SEVENTH CLAIM FOR RELIEF

24

(Ultra Vires Agency Action by SSA, DHS, and ICE)

25

69. Plaintiffs incorporate by reference all preceding paragraphs as if fully set forth

26 herein.

27

28

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF, Case No. _ _ _ _ _ _ _ __

13

1

70. DHS, ICE, and SSA have no statutory authority to use the SSA tax infonnation

2 processing system in general, and the SSA no-match letters in particular, as tools for the

3 enforcement of immigration laws.

4

71. The plan by DHS, ICE, and SSA to include the DHSIICE Guidance Letter to

5 employers along with SSA no-match letters exceeds the statutory authority ofDHS, ICE, and SSA,

6 and therefore each agency is acting ultra vires and in violation of the statutes delegating authority to

7 those agencies.

8

9

PRAYER FOR RELIEF

10

WHEREFORE, Plaintiffs pray that the Court:

11

1. Enter a temporary restraining order and a preliminary injunction, pending a decision

12 on the merits, that enjoins Defendants from implementing the Department of Homeland Security

13 rule entitled "Safe Harbor Procedures for Employers That Receive a No Match Letter," 72 Fed. Reg.

14 45611 (Aug.15, 2007), including by commencing the mailing of new SSA "no-match" letter packets

15 that include the DHSIICE Guidance Letter concerning the DHS Final Rule.

16

2. Upon hearing the merits, enter a declaratory judgment that the DHS Final Rule is

17 invalid and a pennanent injunction to prohibit Defendants from implementing or otherwise giving

18 effect to the DHS Final Rule.

19

3. Award Plaintiffs their costs and expenses, including reasonable attorney's fees and

20 expert witness fees; and

21

4. Award such further and additional relief as is just and proper.

22 Dated: August 28, 2007 23 24 25 26 27

St~phen P. Berzon Scott A. Kronland Jonathan Weissglass Linda Lye Danielle E. Leonard ALTSHULER BERZON LLP
Jonathan P. Hiatt James B. Coppess Ana Avendafio AFL-CIO

28

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF, Case No. _ _ _ _ _ _ _ __

14

1

Linton Joaquin

Marielena Hincapie

2

M<mica T. Guizar

NATIONAL IMMIGRATION LAW CENTER

3

Lucas Guttentag

4

Jennifer C. Chang

Monica M. Ramirez

5

AMERICAN CIVIL LIBERTIES UNION FOUNDATION

6

Omar C. Jadwat

AMERICAN CIVIL LIBERTIES UNION FOUNDATION

7 Alan L. Schlosser

8

Julia Harumi Mass

ACLU FOUNDATION OF NORTHERN CALIFORNIA

9

David A. Rosenfeld

10

Manjari Chawla

WElNBERG, ROGER & ROSENFELD

11

12

bY:~~

13

Scott A. Kronland

14

Attorneys for Plaintiffs

15

16

17

18

19

20

21

22

23

24

25

26

27

28

COMPLAINT FOR DECLARATORY AND ~JUNCTIVE RELIEF, Case No. _ _ _ _ _ _ __

15

 
 1 Stephen P. Berzon (SBN 46540) Scott A. Kronland (SBN 171693)
2 Jonathan Weissglass (SBN 185008) Linda Lye (SBN 215584)
3 Danielle E. Leonard (SBN 218201) ALTSHULER BERZON LLP
4 177 Post Street, Suite 300 San Francisco, CA 94108
5 Telephone: (415) 421-7151 Facsimile: (415) 362-8064
6 Email: skronland@altshulerberzon.com Email: llye@altshulerberzon.com
7 Email: dleonard@altshulerberzon.com

8 Attorneys for Plaintiffs

9 Jonathan P. Hiatt (SBN 63533) James B. Coppess (Pro Hac Vice Application forthcoming)
10 Ana L. Avendano (SBN 160676) AFL-CIO
11 815 Sixteenth Street, N.W. Washington, D.C. 20006
12 Telephone: (202) 637-5053 Facsimile: (202) 637-5323
13 Email: aavendan@aflcio.org

14 Attorneys for PlaintiffAFL-CIO

15 (Counsel list continued on next page)

16

UNITED STATES DISTRICT COURT

17

NORTHERN DISTRICT OF CALIFORNIA

18 AMERICAN FEDERATION OF LABOR AND

) Case No. _____________

CONGRESS OF INDUSTRIAL ORGANIZATIONS; )

19 SAN FRANCISCO LABOR COUNCIL; SAN

)

FRANCISCO BUILDING AND CONSTRUCTION

) MEMORANDUM IN SUPPORT

20 TRADES COUNCIL; and CENTRAL LABOR

) OF MOTION FOR TEMPORARY

COUNCIL OF ALAMEDA COUNTY,

) RESTRAINING ORDER AND

21

) PRELIMINARY INJUNCTION

Plaintiffs,

)

22

)

v.

)

23

)

MICHAEL CHERTOFF, Secretary of Homeland Security; )

24 DEPARTMENT OF HOMELAND SECURITY;

)

JULIE MYERS, Assistant Secretary of Homeland

)

25 Security; U.S. IMMIGRATION AND CUSTOMS

)

ENFORCEMENT; MICHAEL ASTRUE, Commissioner )

26 of Social Security; and SOCIAL SECURITY

)

ADMINISTRATION,

)

27

)

Defendants.

)

28 ---------------------------------)

MEMORANDUM ISO MOTION FOR TRO & PRELIMINARY INJUNCTION, Case No. __________

1 (Counsel list continued from first page)
2 Linton Joaquin (SBN 73547) Marielena Hincapie (SBN 188199)
3 Monica T. Guizar (SBN 202480) NATIONAL IMMIGRATION LAW CENTER
4 3435 Wilshire Blvd., Suite 2850 Los Angeles, CA 90010
5 Telephone: (213) 674-2850 Facsimile: (213) 639-3911
6 Email: guizar@ni1c.org
7 Lucas Guttentag (SBN 90208) Jennifer C. Chang (SBN 233033)
8 Monica M. Ramirez (SBN 234893) AMERICAN CIVIL LIBERTIES UNION FOUNDATION
9 Immigrants' Rights Project 39 Drumm Street
10 San Francisco, CA 94111 Telephone: (415) 343-0770
11 Facsimile: (415) 395-0950 E-mail: jchang@aclu.org
12 Omar C. Jadwat (Pro Hac Vice Application forthcoming)
13 AMERICAN CIVIL LIBERTIES UNION FOUNDATION Immigrants' Rights Project
14 125 Broad Street, 18th Floor New York, NY 10004
15 Telephone: (212) 549-2620 Facsimile: (212)-549-2654
16 Email: ojadwat@aclu.org
17 Alan L. Schlosser (SBN 49957) Julia Harumi Mass (SBN 189649)
18 ACLU FOUNDATION OF NORTHERN CALIFORNIA 39 Drumm Street
19 San Francisco, CA 94111 Telephone: (415) 621-2493
20 Facsimile: (415) 255-1478 E-mail: aschlosser@aclu.org
21 Attorneys for PlaintiffCentral Labor Council ofAlameda County
22 David A. Rosenfeld (SBN 58163)
23 Manjari Chawla (SBN 218556) WEINBERG, ROGER & ROSENFELD
24 A Professional Corporation 1001 Marina Village Parkway, Suite 200
25 Alameda, California 94501-1091 Telephone: (510) 337-1001
26 Facsimile: (510) 337-1023 Email: drosenfeld@unioncounsel.net
27 Attorneys for Plaintiffs San Francisco Labor Council,
28 San Francisco Building and Construction Trades Counr:il, and Central Labor Council ofAlameda County
MEMORANDUM ISO MOTION FOR TRO & PRELIMINARY INJUNCTION, Case No. _ _ _ _ __

1

TABLE OF CONTENTS

2

TABLE OF AUTHORITIES ...................................................... 111

3 IN"TRODUCTION .-. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 1

4

BACKGROUND ................................................................ 4

5 A. Social Security Administration No-Match Letters ........................... 4

6 B. Employer Verification of Work Authorization and Sanctions . . . . . . . . . . . . . . . . . . 6

7 C. The New Department of Homeland Security Rule .......................... 8

8 D. Implementation of the New Rule ....................................... 11

9 ARGUMENT .................................................................. 12

10

I.

The DHS Rule and Guidance Letter are Contrary to the Governing Statute ...... 13

11 A. The DHS Rule and Guidance Letter are Premised on an Interpretation

12

of the Statutory Term "Knowing" that is Not What Congress Meant ..... 14

13

B. The DHS Rule Also Upsets the Balance that Congress

Struck in Establishing System of Initial Verification of

14

Work-Authorization Status ..................................... 18

15

C. The DHS Rule is Also Contrary to Statute by Requiring Verification

of Employees Who Were Exempted by IRCA's "Grandfather"

16

Provision ................................................... 23

17

II. Neither SSA Nor DHS Have Statutory Authority to Use the SSA Earnings

Suspense File and the ''No Match" Letter as a Tool for Enforcing the

18

Immigration Laws .................................................. 23

19

A. The SSA Cannot Use Its Power to Process Tax Data for Purposes of

the Social Security Program to Instead Help DHS Enforce

20

Immigration Laws ............................................ 24

21

B. The DHS Final Rule Commandeers Authority That Congress Has

Delegated Only to the IRS and the SSA ........................... 27

22

C. DHS Cannot Commandeer DO] Authority to Interpret the IRCA

23

Discrimination Provisions ...................................... 28

24

III. The Balance of Hardships Overwhelmingly Favors a Stay Until this Action

Can be Heard on the Merits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

25

A. Plaintiffs Will Suffer Immediate, Irreparable Harm Absent a Stay . . . . . . . 29

26

B. Preserving the Status Quo Will Not Cause any Real Harm to

27

the Defendants .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

28 CONCLUSION ................................................................. 32

MEMORANDUM ISO MOTION FOR TRO & PRELIMINARY INJUNCTION, Case No. _ _ _ _ _ __

1 APPENDIX .................................................................... 34
2
3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19
20
21
22
23
24
25
26
27 28
MEMORANDUM ISO MOTION FOR TRO & PRELIMINARY INJUNCTION, Case No. _ _ _ _ __ 11

1

TABLE OF AUTHORITIES

2

CASES

3 American Corn Growers Assn. v. EPA, 291 F.3d 1 (D.C. Cir. 2002) ................................................. 13
4 American Fin. Servs. Ass 'n v. FTC,
5 767 F.2d 957 (D.c. Cir. 1985) ............................................... 24

6 Barrick Goldstrike Mines Inc. v. Browner, 215 F.3d 45 (D.C. Cir. 2000) ................................................ 22
7 Bowen v. Michigan Academy ofFamily Physicians,
8 476 U.S. 667 (1986) ....................................................... 25

9 Cement Kiln Recycling Coalition v. EPA, _F.3d._, 2007 WL 2011748 (D.C. Cir. July 13, 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 21
10 Chamber ofCommerce of us. v. Reich,
11 74 F.3d 1322 (D.C. Cir. 1996) ............................................... 25

12 Chevron, US.A., Inc. v. NRDC,

467 U.S. 837 (1984) .................................................... passim

13

Clarke v. Ofc. ofFed. Housing Enterp. Oversight,

.

14 355 F. Supp.2d 56 (D.D.C. 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 32

15 Collins Foods Int'l v. INS, 948 F.2d 549 (9th Cir. 1991) ............................................. passim
16 Dart v. United States,
17 848 F.2d 217 (D.C. Cir. 1988) ............................................... 23

18 Federal Maritime Comm. v. Seatrain Lines, Inc., 411 U.S. 726 (1973) ....................................................... 22
19 Garrett v. Escondido,
20 465 F.Supp.2d 1043 (S.D. Cal. 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 30

21 General Electric Co. v. EPA,

290 F.3d 377 (D.C. Cir. 2002) ............................................... 21

22

Gonzales v. Oregon,

23 546 U.S. 243, 126 S.Ct. 904 (2006)

13,22

24 Gorbach v. Reno, 219 F.3d 1087 (9th Cir. 2000) ............................................ 24,25
25 Hoffman Plastic Compounds, Inc. v. NLRB,
26 535 U.S. 137 (2002) ....................................................... 19

27 Jorgensen v. Cassiday, 320 F.3d 906 (9th Cir. 1996) ................................................ 32
28

MEMORANDUM ISO MOTION FOR TRO & PRELIMINARY INJUNCTION, Case No. _ _ _ _ __ 111

1 Land Council v. McNair, _ F.3d _,2007 WL 1880990 (9th Cir., July 02,2007) .......................... 13
2 Louisiana Pub. Servo Comm 'n V. FCC, .
3 476 U.S. 355 (1986) ....................................................... 26
4 Lozano V. City ofHazleton, 459 F.Supp.2d 332 (M.D. Pa. 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 30
5 MCI Tele. Corp. v. American Tel. & Telegraph Co.,
6 512 U.S. 218 (1994) .................................................... 14,23
7 Mester Manufacturing Co. v. INS, 879 F.2d 561 (9th Cir. 1989) ................................................ 15
8 Michigan v. E.P.A.,
9 268 F.3d 1075 (D.C. Cir. 2001) .............................................. 24
10 National Treasury Employees Union v. Chertoff, 452 F.3d 839 (D.C. Cir. 2006) ......................................... 14,24, 27
11 National Treasury Employees Union v. US. Dept. ofTreasury,
12 838 F.Supp. 631 (D. D.C. 1993) .............................................. 32
13 New EI Rey Sausage Co. v. INS, 925 F.2d 1153 (9th Cir. 1991) ............................................ passim
14 Patagonia Corp. v. Bd. ofGovs. ofFed. Res. System,
15 517 F.2d 803 (9th Cir. 1975) ................................................ 23
16 Romero v. INS, 39 F.3d 977 (9th Cir. 1994) .................................................. 22
17 Ry. Labor Executives' Ass 'n v. Nat 'I Mediation Bd.,
18 29 F.3d 655 (D.C. Cir. 1994) ................................................ 24
19 Scherr v. Volpe, 466 F.2d 1027 (7th Cir. 1972) ............................................... 32
20 Securities and Exchange Commission v. Sloan,
21 436 U.S. 103 (1978) . . . . . . . . . . . . " . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
22 Shays v. FEC, 414 F.3d 76 (D.C. Cir. 2005) ................................................ 13
23 Stark v. Wickard,
24 321 U.S. 288 (1944) ....................................................... 25
25 Sutton v. United Air Lines Inc., 527 U.S. 471 (1999) ............ "........................................... 24
26 Temple Univ. v. White,
27 941 F.2d 201 (3d Cir. 1991) ................................................. 32
28
MEMORANDUM ISO MOTION FOR TRO & PRELIMINARY INJUNCTION, Case No. _ _ _ _ __ IV

1 United States v. Heredia,

483 F.3d 913 (9th Cir. 2007)

15, 17

2

United States v. Jewell,

3

532 F.2d. 697 (9th Cir. 1976) ........................................ 2, 14, 15, 17

4 Zheng v. Ashcroft, 332 F.3d 1186 (9th Cir. 2003) ............................................... 14
5 STATUTES AND REGULATIONS
6 8C.F.R.
7 §274 ................................................................ 7,9,21

8 20 C.F.R. §422.120 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 4, 5, 26

9

,26 C.F.R.

10 §301.6721-1 .................. '. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 6

§301.6724-1 ........................................................... 6,29

11

§31.6051-1 .............................................................. 26

§31.6051-2 .............................................................. 26

12

5 U.S.C.

13

§551(13) ................................................................ 13

§701(b)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 13

14

§706(2) ........................................................... 13,25,30

15 6 U.S.C.

§112(a)(3) ..... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 28

16

§542 ................................................................... 28

17 8 U.S.C.

§1103 ............................................................... 28,30

18

§1324a ............................................................... passim

§1324b. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 7,20,29,30

19

§1360(c)(2) ................... .' .......................................... 28

20 26 U.S.c.

§6103 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 6,25,27

21

§6721 .................................................................... 6

§6724 ................................................................. 6,29

22

42 U.S.c. §432

4,25

23

OTHER AUTHORITIES

24

Pub. L. No. 99-603, 100 Stat. 3359 (1986), codified at 8 U.S.C. §1324a

25

Historical and Statutory Notes ............................................. 7, 23

26 Pub. L. 104-208, Div. C, title IV, Substitle A, §§401-02 (1996), 110 Stat. 3009-655, codified at 8 U.S.c. §1324a Historical and Statutory Notes ........ 20
27 Pub. L. 107-128, 115 Stat. 2407 (2002) ........................................... 20
28

MEMORANDUM ISO MOTION FOR TRO & PRELIMINARY INJUNCTION, Case No. _ _.,--_ __ v

1 Pub. L. No. 108-156, 117 Stat. 1944 (2003) ....................................... 20 2 H.R. 138, 1l0th Cong., §3 (2007) ............................................... 27 3 H.R. 2954, 110th Cong., §313 (2007) ............................................ 27 4 H.R. 3333, 109th Cong., §224(a) (2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 27 5 H.R. 4437, 109th Cong., §701(a) (2005) .......................................... 27 6 H.R. 5507, 109th Cong., §2 (2006) .............................................. 27 7 S. 1639, 110th Cong., §308 (2007) .............................................. 27 8 S. 1984, 110th Cong., §256 (2007) .............................................. 27 9 S. 2611, 109th Congo §301(d) (2006) ............................................ 27 10 S. 2611, 109th Congo §301(e) (2006) ............................................ 27 11 H. Rep. 99-682, pt. 1(1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 6, 7, 19,20 12 H. Rep. 99-682, pt. II (1986) ................................................. 4, 17 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
MEMORANDUM ISO MOTION FOR TRO & PRELIMINARY INJUNCTION, Case No. _ _ _ _ __ VI

1

INTRODUCTION

2

On August 15, 2007, the Department of Homeland Security ("DHS") published a Final Rule

3 that would commandeer the Social Security tax system for immigration-enforcement purposes. The

4 rule would place millions of U.S. citizens and non-citizens with work authorization at risk oflosing

5 their jobs because of discrepancies in a Social Security Administration ("SSA") database. The rule

6 becomes effective on September 14,2007, but DHS and SSA plan to jump the gun. Beginning on

7 September 4, 2007, they plan to mail SSA "no-match" letter packets to employers that will include a

8 separate DHS guidance letter about compliance with the Final Rule.

9

The SSA generates these no-match letters to employers when names and Social Security

10 numbers submitted by employers on Forms W-2 do not match SSA's records. The accompanying

11 DHS guidance letter will inform employers, pursuant to the Final Rule, that they face civil and

12 criminal liability under the immigration laws for "knowing[ly]" employing unauthoriz'ed workers

13 unless the no-match is resolved - and that employers should fire workers who cannot resolve a no-

14 match with SSA within 90 days.

15

The unprecedented, joint SSAlDHS mailing to employers is set to run from September 4 to

16 November 9,2007. This round ofletters would reach about 140,000 employers and affect about

17 8 million employees. It would be the first time that the SSA's Earnings Suspense File, a

18 confidential tax records database that Congress prohibited SSA from sharing with DHS, has been

19 used as an immigration-enforcement tool.

20

The DHS rule would place in jeopardy the jobs of employees who are legally working

21 because there are many reasons for SSA no-matches that are entirely unrelated to unauthorized

22 work. The SSA receives about 8 to 11 million earnings reports per year that fail to match SSA

23 records, and the Earnings Suspense File contains about 255 million unmatched records. No-matches

24 occur because of clerical errors by employers or SSA, employee name changes after marriage or

25 divorce, foreign-born employees who u~e a less "foreign" name in the workplace, different naming

26 conventions, such as mUltiple surnames, common in many parts of the world, and many other

27 reasons. When the SSA has been able to reconcile no-matches, most involved U.S. citizens. The

28 SSA itself is not an immigration agency and does not know whether a particular no-match letter, or

MEMORANDUM ISO MOTION FOR TRO &. PRELIMINARY INJUNCTION, Case No. _ _ _ _ _ __ 1

1 what proportion of all no-match letters, relate to unauthorized work.

2

We demonstrate below that we have a very strong likelihood of success on our legal

3 challenge to the DRS Final Rule and to the DRS/SSA scheme to implement that rule.

4

As an initial matter, the new rule is contrary to the governing statute because it would

5 expand civil and criminal liability under the immigration laws far beyond what Congress intended.

6 Congress provided for liability when an employer continues to employ a worker "knowing" the

7 worker is an "unauthorized alien." 8 U.S.C. §1324a(a)(2) (emphasis added). The word "knowing"

8 is "a familiar term of art" that describes a state of mind necessary for civil or criminal liability; it has

9 a meaning that "Congress is presumed to have known and adopted." United States v. Jewell, 532

10 F2d. 697, 703 (9th Cir. 1976) (en banc). The DRS rule would change the agency's definition of

11 "knowing" to provide that an employer receiving a no-match letter and failing to take action has

12 "constructive knowledge" the worker is an "unauthorized alien." Given the many reasons for

13 no-matches that have nothing to do with unauthorized work, and that neither SSA nor DRS knows

14 what proportion of no-matches relate to.unauthorized work, the DRS rule is premised on a

15 definition of "knowing" that the term will not bear.

16

The Ninth Circuit already has explained that "[t]o preserve Congress' intent in passing the

17 employer sanctions provisions of [the immigration laws] ... the doctrine of constructive knowledge

18 must be sparingly applied," Collins Foods Int'/ v. INS, 948 F2d 549, 555 (9th Cir. 1991), and that

19 "the INS [now DRS] cannot make generalized accusations for the purpose of forcing employers to

20 reverify the authorization of their employees." New E/ Rey Sausage Co. v. INS, 925 F.2d 1153,

21 1158 (9th Cir. 1991). Yet that is essentially what the DRS rule seeks to accomplish. The nile

22 impermissibly redefines "knowing" as a lesser state of mind, so as to turn all no-match letters into

23 "generalized accusations" about work-authorization status, so as to force employers to reverify the

24 work-authorization status of millions of employees each year.

25

The rule also is contrary to the goveriring statute because it disturbs the careful balance that

26 Congress struck in establishing the details of a system for verification of work-authorization status

27 upon the initial hire. Congress was concerned that continuing verification would place undue

28 burdens on employers and employees aIJ.d also lead employers to discriminate against all employees

MEMORANDUM ISO MOTION FOR TRO & PRELIMINARY INJUNCTION, Case No. _ _ _ _ _ __ 2

1 with "foreign" appearances because of fears about immigration-law liabilities. The DRS rule

2 creates exactly the same problems Congress intentionally sought to avoid because it effectively

3 establishes a system of continuing veri~cation for the millions of employees each year who are

4 covered by SSA no-match letters.

5

Finally, the joint DRS/SSA plan to implement the Final Rule is beyond the statutory

6 authority of these agencies. SSA is authorized to use tax reports solely for purposes of managing

7 the Social Security program. Only Congress can decide whether to authorize the use of tax reports

8 for immigration-enforcement purposes.. Bills to accomplish this have been introduced in Congress

9 but have not been adopted. Such legislation raises serious policy issues because the use of tax

10 reports for immigration enforcement would encourage "off-the-books" work and thereby lose the

11 taxes presently paid on those wages. For its part, DRS lacks the authority to dictate how employers

12 respond to SSA no-match letters, which are part ofthe tax reporting system. Only the Internal

13 Revenue Service has authority to regulate responsibilities for correcting tax reports.

14

We also demonstrate below that the balance of hardships overwhelmingly favors a stay to

15 preserve the status quo until this action is heard on the merits.

16

The DRS rule is a major change in existing policy, and the proposed rule lay dormant for an

17 entire year until DRS published it as a F:inal Rule after Congress recessed without adopting

18 immigration legislation that DRS had supported. No law or emergency requires that the rule be

19 implemented immediately, without judicial review. There certainly is no emergency that requires

20 the DRS/SSA mailings to commence on September 4, 2007 - 10 days before the Final Rule

21 becomes effective.

22

On the other hand, once the mailings commence, employees who are U.S. citizens or

23 non-citizens with legal work authorization, many of whom will be workers represented by the

24 Plaintifflabor federations, will face the loss of their jobs unless they can resolve an SSA data

25 discrepancy within a 90-day deadline. These employees will have to take offwork - in all

26 likelihood without pay - to visit SSA field offices that will be inundated with similar requests for

27 no-match corrections. Some workers will lack birth certificates or other necessary identification

28 documents. SSA already has informed DRS that in "difficult cases" no-match issues will not be

MEMORANDUM ISO MOTION FOR TRO & PRELIMINARY INJUNCTION, Case No. _ _ _ _ _ __ 3

1 resolved by the deadline. Those workers will be fired. Additionally, some employers receiving the

2 SSAJDHS mailing will terminate workers precipitously because they fear liability, particularly when

3 the workers have a "foreign" appearance or accent. It will be impossible to completely undo the

4 harm later.

5

All that being so, the Court should enjoin the Final Rule, and any actions to implement the

6 Final Rule, until this action can be hear~ on the merits.

7

BACKGROUND

8 A. Social Security Administration No-Match Letters.

9

The Social Security Act of 1935 authorizes the SSA to establish a recordkeeping system for

10 the Social Security program. See 42 U.S.C. §432. Employers annually report employee wages

11 using Forms W-2, and SSA posts those -earnings to its Master Earnings File, so workers will receive

12 credit for them when they apply for Social Security benefits. When SSA is unable to match a

13 worker's name and Social Security Number ("SSN") with its records, those earnings are posted to

14 SSA's Earnings Suspense File, remaining there until they can be matched with SSA records. See 20

15 C.F.R. §422.120.

16

SSA collects wage report information to make benefits eligibility determinations and

17 calculations. The wage report information collected by SSA, including the information posted to

18 the Earnings Suspense File, does not contain information about an employee's work authorization

19 status. As former Social Security Commissioner Kenneth S. Apfel explains, SSA does not know the

20 percentage of earnings reports in the Earnings Suspense File that reflect unauthorized work. Nor

21 does SSA know whether a particular earnings report in the Earnings Suspense File reflects

22 unauthorized work. Apfel Decl. at '8.1

23

The most recent Government Accountability Office ("GAO") report on the Earnings

24 Suspense File concluded that it "[c]ontains information about many u.s. citizens as well as non-

25

26

1 See generally GAO Report 06-814R, Immigration Enforcement: Benefits and Limitations

to Using Earnings Data to Identify Unauthorized Work (July 11, 2006); GAO Report 06-458T, 27 Social Security Numbers: Coordinated Approach to SSN Data Could Help Reduce Unauthorized

28 Work (Feb. 16,2006). These Reports are attached as Exhibits Q and 0 to Plaintiffs' Request for Judicial Notice ("RJN").

MEMORANDUM ISO MOTION FOR TRO & PRELIMINARY INJUNCTION, Case No. _ _ _ _ _ __ 4

1 citizens" and that "the overall percentage of unauthorized workers is unknown." RJN, Exh. Qat 8

2 (emphasis added). When SSA ultimately has been able to resolve data discrepancies, "most ...

3 belong to U.S.-born citizens, not to unauthorized workers," which GAO concluded "is an indication

4 that a significant number ofearnings reports in the {Earnings Suspense File] belong to Us. 5 Citizens and work-authorized noncitize~s." !d. (emphasis added).2

6

The ESF contains more than 255 million mismatched earnings records and is growing at the

7 rate of 8 million to 11 million records per year. !d. at 8. About 4 percent of annual Form W-2

8 earnings reports wind up in the Earnings Suspense File. RJN, Exh. 0 at 8.

9

There are many reasons umelated to an employee's work authorization status why earnings

10 reports might not match SSA records. These include: 1) administrative errors at SSA (for example,

11 an erroneous assignment of a SSN that SSA has previously assigned to another individual);

12 2) transcription errors in spelling an employee's name or recording the SSN, 3) employee name

13 changes after marriage or divorce, 4) employees that use a less "foreign" sounding first name for

14 work purposes; and 5) different naming-conventions (such as the use of multiple surnames) that are

15 commonplace in many parts of the world, particularly some Latin American and Asian countries. It

16 is more common for foreign-born and female workers to be the subject of a discrepancy. Apfel

17 Decl. at ~7; Theodore Decl. at ~11.

18

As part of its effort to credit earnings properly, SSA periodically sends out "no-match"

19 letters to employers. Apfel Decl. at ~11; 20 C.F.R. §422.120. A no-match letter indicates that

20 Forms W-2 filed by the employer show a name and SSN combination that does not agree with SSA

21 records. The no-match letter is merely a voluntary request by SSA to employers for assistance in

22 resolving mismatches, so that earnings reports can be properly credited to the wage earner for

23 retirement, disability, and social security benefits. Apfel Decl. at ~1 O.

24

25 2SSA's huge databases generally are rife with inaccuracies. When SSA assigns an SSN to
26 an individual, it creates a Master Earnings File for each person in its "Numident" file. Apfel Decl.
at ~5. A recent report by the SSA's Inspector General determined that there were approximately 27 17.8 million discrepancies out of the 435 million records in the Numident file. Of those 17.8
28 million discrepancies, 12.7 million - or 71.3% - concerned native-born l!.S. citizens' records. Id. at ~13.

MEMORANDUM ISO MOTION FOR TRO & PRELIMINARY INJUNCTION, Case No. _ _ _ _ _ __ 5

1

The Internal Revenue Service ("IRS") can sanction employers for submitting false tax

2 information, but an employer's obligations under the tax code are satisfied by accurately

3 transmitting the name and SSN obtained from the employee on Form W-4. See 26 U.S.c. §§6721,

4 6724; 26 C.F.R. §§301.6721-1, 301.6724-1; see also RJN, Exh. Mat 4. The IRS does not impose

5 penalties on employers based on an SSA no-match letter. The IRS imposes penalties only if the

6 IRS has sent a penalty notice. See RJN, Exh. Rat 10. Insofar as the tax code is concerned, the IRS

7 already has issued guidance on the steps to take if notified by IRS of a discrepancy. Id.

8

SSA is not an immigration agency, and SSA does not know whether a particular no-match

9 relates to unauthorized work. Until now, SSA's no-match letters explained to employers: "This

10 letter does not imply that you or your employee intentionally gave the government wrong

11 information .... [n]or does it make any statement about an employee's immigration status." RJN,

12 Exh. D. Until now, SSA no-match lett~rs have never been accompanied by any letter to the

13 employer from DRS or any of its predecessor agencies with authority over immigration.

14

The only source ofSSA's information about a taxpayer's earnings is the tax return

15 information on Forms W-2, which SSA processes as an agent of the IRS. SSA is prohibited by

16 statute from sharing information with other federal agencies, including DRS. 26 U.S.C. §6103.

17 The use of tax returns to enforce the immigration laws presents a significant policy issue, because it

18 would encourage more "off-the-books" employment, and "off-the-books" employment deprives the

19 Social Security program of the taxes that otherwise would be paid on those earnings.

20 B. Employer Verification of Work Authorization and Sanctions.

21

Prior to the adoption of the Immigration Reform and Control Act ("IRCA") in 1986, no

22 sanctions were imposed on employers for hiring unauthorized workers. The imposition of employer

23 sanctions was very controversial, and Congress carefully crafted IRCA's employer-sanctions

24 provisions to meet competing policy goals and political pressures. Congress wanted to discourage

25 illegal immigration, but Congress also was concerned about disrupting the existing workforce and

26 imposing undue burdens on employers ~nd lawful workers. R. Rep. 99-682(1), at 56, 60, 90 (1986),

27 1986 USCCAN 5649,5660,5664,5694. Congress also was concerned that IRCA would lead

28

MEMORANDUM ISO MOTION FOR TRO & PRELIMINARY INJUNCTION, Case No. _ _ _ _ _ __ 6

1 employers fearing IRCA liability to shun all workers with a "foreign" appearance or accent. H. Rep.

2 99-682(1), at 68, H. Rep. 99-682(II), at 12 (1986), 1986 USCCAN at 5672,5761.

3

IRCA made it unlawful for the first time for employers to "to hire ... for employment in the

4 United States an alien knowing the alien is an unauthorized alien." 8 US.C. §1324a(a)(1)(A)

5 (emphasis added). IRCA also separately made it unlawful for employers to hire without complying

6 with an initial employment eligibility verification process established by Congress. 8 US.c.

7 §1324a(a)(1)(B). That process requires the employee to present the employer with documents to

8 show proof of identity and work authorization and requires the employer and employee to complete

9 and employment verification form (Form 1-9). 8 US.c. §1324a(b); 8 C.F.R. §274a.2. Congress has

10 paid careful attention to this initial verification process; federal immigration law prohibits the

11 Executive Branch from making any changes to that verification process without advance notice to

12 Congress. 8 US.c. §1324a(b)(2)(3).

13

When Congress adopted IRCA, it included a "grandfather" clause for current employees.

14 Neither the initial-hire or continuing-to-employ provisions apply to anyone hired before the

15 enactment ofthe statute in 1986. Pub.~. No. 99-603, §101(a)(3), 100 Stat. 3359, codified at 8

16 US.c. §1324a Historical and Statutory Notes. For employees hired after the effective date of the

17 statute, Congress chose not to impose any continuing verification requirement. See H.R. Rep.

18 99-682(1), at 57, 1986 USCCAN at 5661 ("The Committee does not intend to impose a continuing

19 verification requirement on employers."). IRCA only makes it unlawful for an employer "to

20 continue to employ an alien ... knowing the alien is (or has become) an unauthorized alien with

21 respect to such employment." 8 US.C. §1324a(a)(2) (emphasis added). Employers that violate

22 IRCA are subject to civil and criminal liability. 8 US.c. §1324a(e)(4)-(5), (t).

23

At the same time Congress imposed employer sanctions, Congress also wanted to prevent

24 employer discrimination based on national origin or citizenship status. To that end, the immigration

25 laws make it illegal for employers to discriminate based on national origin or citizenship status by

26 requesting "more or different documents than are required" for the initial 1-9 verification or

27 "refusing to honor documents ... that on their face reasonably appear to be genuine." 8 US.C.

28 §1324b(a)(1), (6).

MEMORANDUM ISO MOTION FOR TRO & PRELIMINARY INJUNCTION, Case No. _ _ _ _ _ __ 7

1

Congress' concerns that employer sanctions would lead to discrimination based on national

2 origin tUrned out to be well founded. IRCA required GAO to report to Congress on this issue, and

3 the GAO reported that employer sanctions were responsible for "a widespread pattern of

4 discrimination." RJN, Exh. L at 6 (GAO, Immigration Reform: Employer Sanctions and the

5 Question of Discrimination (March 30, 1990)). GAO estimated that "227,000 employers ... began

6 a practice, as a result ofIRCA, not to hire job applications whose foreign appearance or accent led

7 them to suspect they might be unauthorized aliens .... [and] an estimated 346,000 employers ...

8 applied IRCA's verification system only to persons who had a 'foreign' appearance or accent." Id.

9 at 5. GAO also estimated that "an additional 430,000 employers ... began hiring only persons born

10 in the United States or not hiring persons with temporary work eligibility documents. These

11 practices are illegal and can harm people, particularly those ofRispanic or Asian origin." !d. at 7.

12

Evidence that employer sanctions led to "a widespread pattern of discrimination" based on

13 "foreign" appearance or accent became an important consideration in subsequent debates about

14 employer sanctions.
15 C. The New Department of Homeland Security Rule.

16

As previously stated, IRCA makes it unlawful to "knowingly" employ an "unauthorized

17 alien." Until now, the enforcing agencies have recognized that no-matches occur for many reasons

18 and therefore have consistently interpre~ed the statute to mean that receipt of an SSA no-match letter

19 does not constitute "constructive knowledge" that a worker is unauthorized. See RJN Ex. G (April

20 12, 1999 opinion letter from INS General Counsel) ("Notice from [SSA]to an employer notifying it

21 of a discrepancy between wage reporting information and SSA records with respect to an employee

22 does not, by itself, put an employer on notice that the employee is not authorized to work."); accord

23 RJN Exhs. R-J (opinion letters from INS General Counsel); Exh. F (August 9, 2004 letter from

24 DRS to Congressman); Exh. K (April 1, 2004 OSC letter). As DRS itself-explained in the past:

25

Discrepancies between SSA records and information submitted to SSA by the employer may

be due to a variety ofreasons ... The letter does not indicate, and SSA is unable to

26

determine, the reason(s) for the cited mismatches ... without more information than that

contained in the "No Match" letter, we have not concluded that the letter alone is sufficient

27

to impart knowledge to the employer of unauthorized employment.

28 RJN Ex. F (emphasis added).

MEMORANDUM ISO MOTION FOR TRO & PRELIMINARY INJUNCTION, Case No. _ _ _ _ _ __ 8

1

Then, on June 14,2006, DHS sought to abandon that consistent interpretation and gave

2 notice of a proposed rule that would effectively presume constructive knowledge when an employer

3 receives an SSA no-match letter, unless the employer reverifies the employee's work authorization.

4 RJN, Exh. A (Proposed Rule). More than 5,000 comments were received during the 60-day

5 comment period, including comments that disputed Homeland Security's authority to adopt the rule

6 absent a change in statute. See RJN, Exh. B, at 45611 (Final Rule) (also attached hereto as

7 Appendix A). After the comment period closed on August 14,2006, the proposed rule lay dormant

8 for a year. On August 15,2007, shortly after Congress left for recess with~ut enacting immigration

9 reform legislation that DHS urged, the agency issued a final rule. Id. The rule will become effective

10 on September 14, 2007. Id.

11

The new DHS rule amends the definition of "knowing" in 8 C.F.R. §274a.l(1)(1), and

12 therefore how DHS interprets the term '~knowing" in IRCA. The new definition of"knowing" lists,

13 as an example of an employer who has "constructive knowledge" that an employee is an

14 unauthorized alien, an employer that "fails to take reasonable steps" after receiving an SSA no-

15 match letter. The first part of the amended regulation provides:

16

(1)(1) The term knOWing includes having actual or constructive knowledge....

Examples of situations where the employer may, depending upon the totality of the

17

relevant circumstances, have constructive knowledge that an employee is an

unauthorized alien include, but are not limited to, situations where the employer:

18

(iii) Fails to take reasonable steps after receiving information indicating that the

19

employee may be an alien who is not employment authorized, such as -

20

(B) Written notice to the employer from the Social Security Administration

reporting earnings on a Form W-2 that employees' names and corresponding social

21

security account numbers fail to .match Social Security Administration records ....

22

Having created a threat of employer sanctions liability for employers receiving SSA no-

23 match letters, the amended regulation then offers employers a "safe harbor." Under the amended

24 regulation, an employer receiving a no-match letter "will be considered by the Department of

25 Homeland Security to have taken reasonable steps - and receipt ofthe written notice will therefore

26 not be used as evidence of constructive knowledge - if the employer" takes the actions specified by

27 DHS.!d. at 45624. These are "the only combination of steps that will guarantee that DHS will not

28 use the employer's receipt of the notices from SSA ... as evidence of Co?structive knowledge that

MEMORANDUM ISO MOTION FOR TRO & PRELIMINARY INJUNCTION, Case No. _ _ _ _ _ __ 9

1 an employee is an unauthorized alien." Id. at 45618.

2

To qualify for the DHS "safe harbor," an employer that determines the SSA no-match was

3 not the result of its own clerical error must instruct an employee who claims the name and SSN are

4 correct to resolve the discrepancy with SSA within 90 days after receipt of the no-match letter. Id.

5 at 45624. If the employee is unable to resolve the discrepancy with SSA within 90 days, the

6 employer cannot continue to employ the worker unless the employer can complete within three days

7 a new employment eligibility verification, on a new 1-9 form, as if the employee never had been

8 hired and verified in the first place. Id. The new verification cannot involve any document that

9 contains the disputed SSN, even if the employee still insists the SSN is correct. Id. If employees

10 insist their names and SSNs on their identification documents are correct but have not resolved the

11 discrepancy with SSA by the deadline, the employer would have to fire them.

12

To ensure that employers understand that SSA no-match letters now carry immigration law

13 obligations, DHS intends to include a letter to the employer from Homeland Security with each SSA

14 no-match letter. See RJN, Exh. C (DHS/ICE Guidance Letter) (also attached hereto as

15 Appendix B). The letter is to "provide guidance on how to respond to the enclosed letter from the

16 Social Security Administration (SSA) ... in a manner that is consistent with your obligations under

17 United States Immigration Laws." !d.

18

The Homeland Security guidance letter contains questions and answers, which begin with

19 the following:

20

Q: Can I simply disregard the letter from SSA?

21

A: No. You have received official notification of a problem that may have

significant legal consequences for your employees. If you elect to disregard the

22

notice you have received and it is determined that some employees listed in the

enclosed letter were not authorized to work,.the Department of Homeland Security

23

(DHS) could determine that you have violated the law by knowingly continuing to

employ unauthorized persons. This could lead to civil and criminal sanctions.

24

25 !d. (boldface in original).

26

After threatening employers with "civil and criminal sanctions," the DHS letter then answers

27 the question "Q: What should I do?" by explaining that "You should" follow Homeland Security's

28 new "safe harbor" procedures. !d. (boldface in original). The letter assures employers that, if they

MEMORANDUM ISO MOTION FOR TRO & PRELIMINARY INJUNCTION, Case No. _ _ _ _ _ __ 10

1 follow those procedures for every no-match, they will not be liable for discrimination ifthey

2 terminate employees: "Q: Will I be liable for discrimination charges brought by the United

3 States if I terminate the employee after I follow the steps outlined above? A: No....." Id.

4 (boldface in original).

5 D. Implementation of the New Rule.

6

DRS initially announced that SSA would not begin sending out new no-match letter packets

7 until after the new rule becomes legally effective on September 14, 2007. Avendafio Decl. at ~3.

8 Plaintiffs subsequently learned that SSA will actually start mailing revised no-match letter packets

9 and the DRS/ICE Guidance letter on September 4,2007 (i.e., 10 days before the rule even becomes

10 effective). Id. at ~~4-5. Between September 4 and November 9, SSA intends to mail no-match

11 letters to 140,000 employers around the country, affecting about eight million employees. Id. at ~5;

12 Moran Decl. at ~14.

13

In its Notice of Final Rule, DRS does not even offer an estimate of what proportion of

14 records in the SSA's Earnings Suspense File relate to unauthorized work, conceding that "there are

15 many causes for a no-match, including clerical error and name change" (Appendix A at 45616), and

16 that "studies from the Governmental Accountability Office and other sources describe challenges

17 that must be addressed." Id. at 45622.

18

If the new no-match letters are sent, employers would immediately face the administrative

19 burdens and expense of compliance. As Nik Theodore, Professor of Urban Planning and Policy at

20 the University of Illinois at Chicago has documented through empirical research, SSA no-match

21 letters have the resulted in the mass and precipitous firing of work-authorized employees, a swelling

22 in "off-the books" employment, and "major disruptions in workflow," "potentially leading to

23 significant economy-wide job losses and higher prices." Theodore Decl. at ~~10-14. These effects

24· occurred even though SSA no-match letters previously expressly cautioned employers "not use this

25 letter to take any adverse action against an employee." Id. at ~~12, 17.

26

Because the DRS Rule expressly instructs employers to take action in response to the no:-

27 match letter, the DRS Rule is likely to rp.agnify these demonstrated effects of SSA no-match letters.

28 Id. at ~17. Based on past experience with no-match letters and employer sanctions, some employers

MEMORANDUM ISO MOTION FOR TRO & PRELIMINARY INJUNCTION, Case No. _ _ _ _ _ __ 11

1 will jump to the erroneous conclusion that all employees with no-matches and a "foreign"

2 appearance or accent lack lawful work authorization and will terminate or choose not to hire such

3 employees, including U.S. citizens and authorized workers. !d. at ~~19-25.

4

Other employees, though lawfully working in the United States, suddenly will face a 90-day

5 deadline for resolving an SSA database discrepancy. SSA field offices generally are open only

6 during business hours, when many employees are working, and the offices are likely to face in

7 influx of employees with similar no-match problems. Mismatched records for lawfully immigrants

8 have taken many months to resolve with SSA. See Moran Dec!. at ~6-9 (lawful immigrant from

9 Honduras took four months to resolve no-match). Some workers will be required to travel to

10 remedy the situation. !d. at ~12 (typographical error on Social Security card issued many years ago

11 could not be resolved locally). According to former Social Security Commissioner Apfel, "it may

12 take considerably in excess of90 days to resolve any given mismatched earnings report, even if the

13 worker makes prompt efforts to resolve the discrepancy." Apfel Dec!. at ~16. Commissioner Apfel

14 is "very concerned that there will be many legally authorized workers who cannot resolve a

15 mismatched earnings report by any arbitrary deadline." !d. at ~17. DHS acknowledges that in

16 "difficult cases," SSA may be unable to resolve discrepancies within the 90-day timeframe.

17 Appendix A at 45617. The new rule does not provide for that contingency.

18

By expressly recasting SSA no-match letters as immigration-enforcement documents, the

19 DHS Rule is also likely to exacerbate the rise in off-the-books employment and disruptions in the

20 workplace, "including disruptions in workflow, job losses (especially in labor-intensive industries),

21 and higher consumer prices," created by SSA no-match letters. Theodore Dec!. at ~~26-27.

22

ARGUMENT

23

"A preliminary injunction should issue when the plaintiff shows either: (1) a likelihood of

24 success on the merits and the possibility of irreparable injury; or (2) that serious questions going to

25 the merits were raised and the balance of hardships tips sharply in the plaintiffs favor. These two

26 alternatives are extremes of a single continuum in which the greater the relative hardship to the

27 party seeking the preliminary injunction, the less probability of success must be shown." Land

28 Council v. McNair, _ F.3d _,_2007 WL 1880990, at *2. (9th Cir., July 02,2007) (internal

MEMORANDUM ISO MOTION FOR TRO & PRELIMINARY INJUNCTION, Case No. _ _ _ _ _ __ 12

1 citations, quotations and brackets omitted).

2 I. The DRS Rule and Guidance Letter are Contrary to the Governing Statute.

3

IRCA makes it unlawful "to hire ... for employment in the United States an alien knowing

4 the alien is an unauthorized alien." 8 U.S.c. §1324a(a)(1)(A) (emphasis added). IRCA also makes

5 it unlawful for an employer "to continue to employ an alien ... knowing the alien is (or has become)

6 an unauthorized alien with respect to such employment." 8 U.S.c. §1324a(a)(2) (emphasis added).

7 The DRS Final Rule would amend the agency's definition of "knowing."

8

An agency's interpretation of a statute is reviewed under the familiar two-part test set out in

9 Chevron, US.A., Inc. v. NRDC, 467 U.S. 837 (1984). The first step in that inquiry requires the

10 court to determine what Congress intended. Id. at 842. "[T]he court, as well as the agency, must

11 give effect to the unambiguously expressed intent of Congress." Id. at 842-43. In ascertaining

12 Congress' intent, courts look to the text, to the legislative purpose and history, and to the overall

13 structure of the act. Gonzales v. Oregon, 546 U.S. 243, 126 S.Ct. 904, 920, 921 (2006) (declining to

14 defer to Attorney General's interpretation because it was "inconsistent with the design ofthe

15 statute," "beyond his expertise and incongruous with the statutory purposes"). "If the intent of

16 Congress is clear, that is the end of the matter." Chevron, 467 U.S. at 842. If the statute is

17 ambiguous, a court proceeds to the second step of the Chevron inquiry, and will defer to an agency's

18 interpretation of the statute if it is "reasonable." Id. at 845. But a court must still reject an agency's

19 interpretation if "it appears from the statute or its legislative history that the accommodation [of

20 conflicting policies] is not one that Congress would have sanctioned." Jd.3

21

In this case, the DRS Final Rule is contrary to the statute for three reasons. First, it expands

22 IRCA civil and criminal1iability beyond what Congress intended, by re-defining the unambiguous

23
3 Because the Final Rule is reviewable agency action, 5 U.S.C. §§551(13), 701(b)(2), 702,
24 the Administrative Procedure Act ("APA") requires the court to "hold unlawful and set aside" the
25 Final Rule if it is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law," or "in excess of statutory ... authority." 5 U.S.c. §706(2)(A), (C). Agency action that is
26 "contrary to the text, structure and history" of the statute must be set aside. American Corn Growers Assn. v. EPA, 291 F.3d 1, 5, 8-9 (D.C. Cir. 2002). A court may "invalid[ate agency action]
27 on APA grounds without reaching Chevron step two." Shays v. FEC, 414 F.3d 76,96 (D.C. Cir.
28 2005). If the court reaches Chevron step two, however, the analysis :'ovedaps with the arbitrary and capricious standard." Id.

MEMORANDUM ISO MOTION FOR TRO & PRELIMINARY INJUNCTION, Case No. _ _ _ _ _ __ 13

1 statutory term "knowing." Second, it effectively establishes a new requirement of continuing

2 verification for existing employees, which upsets the delicate policy balance struck by Congress

3 when it chose to create a detailed and specific employment verification system limited to new hires.

4 Third, it would require verification of employees hired before 1987 even though Congress exempted

5 them from IRCA through a "grandfather" provision.

6

A. The DHS Rule and Guidance Letter are Premised on an Interpretation of the

7

Statutory Term "Knowing" that is Not What Congress Meant.

8

An agency is owed no deference when it seeks to give a statutory term.a meaning it cannot

9 bear. See, e.g., MCI Tele. Corp. v. American Tel. & Telegraph Co., 512 U.S. 218, 231 (1994)

10 (rejecting agency's interpretation of statutory term "modify"); National Treasury Employees Union

11 v. Chertoff, 452 F.3d 839, 864 (D.C. Cir. 2006) (invalidating DRS's final rule that failed to give

12 meaning to "collective bargaining" rights granted by statute); Zheng v. Ashcroft, 332 F.3d 1186,

13 1194 (9th Cir. 2003) (rejecting INS definition of "acquiescence" as contrary to unambiguous

14 Congressional use of term). The term "knowing" is "a familiar term of art" that describes a state of

15 mind necessary for civil or criminal liability; it has a meaning that "Congress is presumed to have

16 known and adopted." United States v. Jewell, 532 F.2d. 697, 703 (9th Cir. 1976) (en banc)

17 (construing "knowingly" in case involving transportation of drugs). Because "knowing" is "a term

18 of art, ... DRS was not free to treat it as an empty linguistic vessel." Chertoff, 452 F.3d at 860; id.

19 at 864 ("we owe no deference to DRS's interpretation" of statutory term "collective bargaining").

20

The term "knowing" encompasses both "positive knowledge" and the state of mind often

21 called willful blindness or constructive knowledge, i.e. "a mental state in which the defendant is

22 aware that the fact in question is highly probable but consciously avoids enlightenment." Jewell,

23 532 F.2d at 704. But this "state of mind differs from positive knowledge only so far as necessary to

24 encompass a calCulated effort to avoid the sanctions of the statute while violating its substance. A

25 court can properly find willful blindness only where it can almost be said that the defendant actually

26 knew." ld. (citations, internal quotation marks omitted). The Ninth Circuit reaffirmed Jewell as a

27 "rather straightforward matter of statutory interpretation" in another en banc decision 30 years later,

28 United States v. Heredia, 483 F.3d 913,918 (9th Cir. 2007) (en banc). The Court explained that

MEMORANDUM ISO MOTION FOR TRO & PRELIMINARY INJUNCTION, Case No. _ _ _ _ _ __ 14

1 "willful blindness ... is categorically differentfrom negligence or recklessness." ld. at 918 n.4

2 (emphasis added). "A willfully blind defendant is one who took deliberate actions to avoid

3 confmning criminality. A reckless defendant is one who merely knew of a substantial and

4 unjustifiable risk that his conduct was criminal; a negligent defendant is one who should have had

5 similar suspicions but, in fact, did not." ld. at 918 n.4 (emphasis in original).

6

Not surprisingly, in its first decision addressing IRCA's employer sanctions provision,

7 Mester Manufacturing Co. v. INS, 879 F.2d 561,567 (9th Cir. 1989), the Ninth Circuit relied on

8 Jewell to establish the meaning of the term "knowing" in IRCA. In Mester, the INS notified the

9 employer that certain of its employees were suspected unlawful aliens and that, if their green cards

10 matched numbers listed in the INS' letter to the employer, the green cards were fraudulent. The

11 employer continued to employ the workers. The Ninth Circuit held that those facts provided

12 sufficient evidence to find that the employer had at least "constructive knowledge" the employees

13 lacked- work authorization.

14

The Ninth Circuit also applied the Jewell definition of "knowing" in New El Rey Sausage

15 Co. v. INS, 925 F.2d 1153 (9th Cir. 1991), another IRCA case that involved essentially the same

16 situation as in Mester. The INS delivered a letter to the employer stating: "Unless these individuals

17 can provide valid employment authorization ... they are to be considered unauthorized aliens ...."

18 ld. at 1155. The Ninth Circuit held that the employer's failure to seek employment authorization

19 documents from these employees after receiving "specific, detailed information" from the INS as to

20 "whom it considered unauthorized and why" provided sufficient evidence that the employer had at

21 least constructive knowledge the employees lacked work authorization. ld. at 1158.

22

The Ninth Circuit also noted in New El Rey, however, that Congress decided not to impose a

23 continuing verification requirement in IRCA (id. at 1158 n.8), and the Ninth Circuit cautioned that

24 "the INS cannot make generalized accusations for the purpose offorcing employers to reverifY the

25 authorization oftheir employees." ld. at 1158 (emphasis added).

26

Finally, in Collins Foods lnt'l v. INS, 948 F.2d 549 (9th Cir. 1991), the Ninth Circuit

27 reiterated that the "constructive knowedge" necessary to establish a violation ofIRCA is drawn

- 28 from Jewell, and means "'a mental state in which the defendant is aware that the fact in question is

MEMORANDUM ISO MOTION FOR TRO & PRELIMINARY INJUNCTION, Case No. _ _ _ _ _ __ 15

1 highly probable but consciously avoids enlightenment.'" Id. at 555 n.17 (quoting Jewell, 532 F.2d

2 697) (emphasis added). In Collins Foods, the Ninth Circuit held that an employer could not be

3 charged with the knowledge necessary for an IRCA violation simply because the employer could

4 have discovered a Social Security card was fraudulent by comparing it to an example in the INS

5 manual. The Ninth Circuit also explained that:

6

IRCA is ... delicately balanced to serve the goal of preventing

unauthorized alien employment while avoiding discrimination against

7

citizens and authorized aliens. The doctrine of constructive

knowledge has great potential to upset that balance, and it should not

8

be expansively applied. The statute prohibits the hiring of an alien

"knowing the alien is an unauthorized alien ... with respect to such

9

employment. 8 U.S.C. 1324a(a)(I)(A) (emphasis added). Insofar as

that prohibition refers to .actual knowledge, as it appears on its face,

10

any employer can avoid the prohibited conduct with reasonable ease.

When the scope of liability is expanded by doctrine of constructive

11

knowledge, the employer is subject to penalties for a range of

undefined acts that may result in knowledge being imputed to him.

12

To guard against unknowing violations, the employer may ... avoid

hiring anyone with an appearance of alienage. To preserve Congress'

13

intent in passing the employer sanctions provisions ofIRCA, then, the

doctrine ofconstructive knowledge must be sparingly applied.

14

15 948 F.2d at 554-55 (emphasis added).

16

The DRS Final Rule is contrary to the statute because it seeks to re-define a familiar

17 statutory term of art, "knowing," and thereby to impose civil and criminal liability on employers

18 under circumstances Congress never intended.

19

Unlike the information received-by the employers from the INS in Mester and New El Rey, a

20 no-match letter comes from a database of tax information maintained by the SSA that was never

21 designed to collect information on immigration status. Apfel Decl. at ~8; Theodore Decl. at ~6. No

22 studies support the conclusion that a mismatched SSA record is a reliable indicator that an employee

23 lacks work authorization. Apfel Decl. at ~12; Theodore Decl. at ~9. The SSA itself has never used

24 no-match letters as an immigration enforcement tool. Apfel Decl. at ~12. The SSA does not know

25 whether any employee identified in a no-match letter is unauthorized to work. Id. There are many

26 reasons for SSA no-matches that are unrelated to work authorization status, including clerical errors,

27 name changes, and different naming conventions throughout the world. !d. at ~7; Theodore Decl. at

28 ~8.

MEMORANDUM ISO MOTION FOR TRO & PRELIMINARY INJUNCTION, Case No. _ _ _ _ _ __ 16

1

Because there is no basis for concluding that a no-match letter is a reliable indicator that an

2 employee is unauthorized to work, an employer receiving such a letter does not become "aware that

3 the fact in question [i.e., that a worker lacks authorization] is highly probable." Collins Foods, 948

4 F.2d at 555 n.17 (quoting Jewell, 532 F.2d 697) (emphasis added). DRS does not have access to

5 SSA's Earnings Suspense File, and no one knows what percentage of the 255 million-plus

6 unmatched records relate to unauthorized work. The most recent GAO study reports that this figure 7 is unknown. RJN, Exh. Qat 8. DRS' Notice of Final Rule does not even offer an estimate.4

8

Equally to the point, an employer that simply handles a no-match letter consistently with the

9 tax code, by making sure the employer correctly transmitted the name and SSN provided by the

10 employee and telling the employee about the no-match, is not an employer "who took deliberate

11 actions to avoid confirming criminality," Heredia, 483 F.3d 913 at 918 nA (emphasis in original), or

12 "consciously avoid[ed] enlightenment.'" Collins Foods, 948 F.2d at 555 n.l7 (quoting Jewell, 532

13 F.2d 697). SSA is not an immigration-enforcement agency. Apfel Decl. at ~12. And the employer

14 has no duty to re-verify the immigration-status of employees whose immigration status already was

15 verified on the initial hire. The employer who does not do so in response to a no-match letter is not

16 "consciously av~iding" anything. To be sure, Congress could have made employers liable for

17 recklessness or negligence in employing unauthorized workers, but Congress chose not to do so.

18 (Given the unreliability of a no-match letter as an indicia of work-authorization status, and the

19 number of inaccuracies in SSA's database, continuing to employ a worker after receiving a no-

20 match lack would be unlikely to qualify-as recklessness or negligence in any event.)

21

DRS essentially seeks to manufacture deliberate indifference through bootstrapping: DRS

22 tells the employer it has a non-existent duty to follow-up on the immigration status of employees

23 who are subject to no-match letters. See Appendix B ("Q: Can 1 simply disregard the letter from

24 SSA? A: No."). DRS then construes the employer's failure to act as "constructive knowledge" of

25 illegality. That is exactly what the Ninth Circuit already stated that the agency could not do in New

26
4 It bears emphasis that workers who are the subject of a no-match letter already would 27 have gone through an initial 1-9 verification process when they were hired. Until now, no-match 28 letters correctly advised that they "make[] no statement regarding ~ employee's immigration
status." RJN, Exh. D. There have been no changes in how no-match letters are generated.

MEMORANDUM ISO MOTION FOR TRO & PRELIMINARY INJUNCTION, Case No. _ _ _ _ _ __ 17

1 El Rey: "make generalized accusations for the purpose of forcing employers to reverify the

2 authorization of their employees." 925 F.2d at 1158.

3

The DHS rule cannot be sustained as merely providing a "safe harbor" for employers. The

4 threshold legal problem with the rule is that it attempts to lower the state ofmind necessary to

5 violate IRCA, so as to create the need for a "safe harbor" in the first place. DHS itself interprets its

6 new rule as establishing an immigration-law duty for employers to deal with no-match letters. DRS

7 would tell employers unequivocally in the Homeland Security guidance letter: "Q: Can I simply

8 disregard the letter from SSA? A. No." See Appendix B (boldface in original). Only after telling

9 employers they have an IRCA duty to address no-match letters or face "civil and criminal sanctions"

10 can DHS offer its safe-harbor to employers, i.e. its response to the question "What should I do?"

11 Id. (boldface in original).

12

In sum, the DHS rule cannot stand because it impermissibly changes the meaning of the

13 statutory term "knowing," and thereby expands civil and criminal liability for employing a worker

14 who turns out to be unauthorized. Even if the Court were to get to step two in the Chevron analysis,

15 moreover, the rule still would be invalid because it upsets Congress' "delicately balanced" policy

16 goals and expands employer liability "beyond that outlined in the narrowly-drawn statute." Collins,

17 948 F.2d at 554. DHS' effort to re-prioritize these policy considerations "is not one that Congress

18 would have sanctioned." Chevron, 467 U.S. at 845.

19

B. The DHS Rule Also Upsets the Balance that Congress Struck in Establishing

20

System of Initial Verification of Work-Authorization Status.

21

The new rule also is contrary to statute because it effectively establishes a continuing work-

22 authorization re-verification system for millions of workers. That system would upset the balance

23 struck by Congress when it adopted IRCA's controversial employer sanctions provisions. Congress

24 sought to create a mechanism that would discourage illegal immigration while at the same time

25 minimizing both administrative burdens on employers and national-origin discrimination against

26 employees. To that end, Congress crafted a system of initial verification of work authorization at

27 the time of hire for employees hired after November 6, 1986. DHS's rule, by contrast, establishes a

28 reverification system as "the only combination of steps that will guarantee that DHS will not use the

MEMORANDUM ISO MOTION FOR TRO & PRELIMINARY INJUNCTION, Case No. _ _ _ _ _ __ 18

1 employer's receipt of the notices from SSA ... as evidence of constructive knowledge that an

2 employee is an unauthorized alien." 72 Fed.Reg. at 45618. In doing so, the DHS rule imposes

3 additional burdens on employers and creates increased potential for national-origin discrimination

4 against employees~ thereby undermining Congress's decision to limit verification obligations.

5

1. IRCA represented a sea change in immigration legislation because Congress for the

6 first time imposed sanctions against employers that knowingly employ "unauthorized aliens." 8

7 U.S.c. §1324a(a). In addition to adopting civil and criminal penalties for knowingly employing

8 undocumented workers (8 U.S.c. §§1324a(e)(4)(A), 1324a(f)(1)), IRCA also "establish[ed] an

9 extensive 'employment verification system,'" "mandat[ing] that employers verify the identify and

10 eligibility of all new hires by examining specified documents before they begin work." Hoffman

11 Plastic Compounds, Inc. v. NLRB, 535 U.S. 137, 147-48 (2002). IRCA thus required that, after

12 November 6, 1986, employers must follow detailed procedures in verifying employment at the time

13 of initial hire. 8 U.S.c. §1324a(b)). "This verification system is critical to the IRCA regime."

14 Hoffman, 535 U.S. at 147-48.

15

The issues of employer sanctions and work-authorization verification procedures garnered

16 substantial Congressional attention. Sensitive to the concern that IRCA "plac[ed] an undue burden

17 on employers in requiring them to do the paperwork and keep records on employees," H. Rep. 99-

18 682(1) at 90, 1986 USCCAN at 5694, Congress sought "to minimize the burden and the risk placed

19 on the employer in the verification process." Collins, 948 F.2d at 554. At the same time, Congress

20 also was of the view that "the imposition of employer sanctions will give rise to employment

21 discrimination against Hispanic Americans and other minority members." H. Rep. 99-682(11) at 12,

22 1986 USCCAN at 5761. It "believe[d] that every effort must be taken to minimize the potentiality

23 of discrimination and that a mechanism to remedy any discrimination that does occur must be a part

24 of this legislation." H. Rep. 99-682(1) at 90, 1986 USCCAN at 5694.

25

Congress therefore took pains to consider these concerns - minimizing burdens on

26 employers and discrimination against employees - in crafting a detailed, but limited, system for

27 employer verification of work authorization status at the time an employee initially is hired.

28 H. Rep. 99-682(1) at 56, 1986 USCCAN at 5660 (adopting approach that ''would be the least

MEMORANDUM ISO MOTION FOR TRO & PRELIMINARY INJUNCTION, Case N9. _ _ _ _ _ __ 19

1 disruptive to the American businessman and would also minimize the possibility of employment

2 discrimination"). Congress prescribed all the details for the initial verification procedure, 8 U.S.C.

3 §1324a(b), but said nothing about a system for reverifying work authorization because Congress did

4 "not intend to impose a continuing verification obligation on employers." H. Rep. 99-682(D at 57,

5 ·1986 USCCAN at 5661. Congress also made clear that employers should not go beyond statutorily-

6 required verification procedures. H. Rep. 99-682(1) at 62, 1986 USCCAN at 5666 ("if the

7 verification procedure is followed, the language is intended to make clear that there is no

8 requirement that an employer request additional documentation or that an employee produce

9 additional documentation"); 8 U.S.c. §1324b.5

l O I n short, Congress made the considered judgment that the most effective means for enforcing

11 employer sanctions, while minimizing burdens on employers and discrimination against employees,

12 would be a circumscribed system of employer verification at the time of initial hire. And while

13 Congress over the last twenty years has enacted detailed, but limited, provisions regarding 14 verification upon initial hire, it has never created a continuing reverification requirement.6

15

16

5 On numerous instances since IRCA, Congress has revisited the issue of employer 17 verification and created pilot programs for electronic employment eligibility verification of new

18

hires. Consistent with Congress' expressed desire in IRCA to minimize burdens on employers, it made participation in these programs entirely voluntary. See Illegal Immigration and Immigrant

19 Responsibility Act of 1996 ("IIRAIRA"), Pub. L. 104-208, Div. C, title IV, Substitle A, §§401-02,

Sept. 30, 1996, 110 Stat. 3009-655, 8 U.S.C. §1324a Historical and Statutory Notes (creating 4-year 20 "3 pilot programs of employment eligibility confirmation" and prohibiting DHS from requiring

21 entities other than federal agencies to participate); Pub. L. 107-128, §2, Jan. 16, 2002, 115 Stat. 2407 (extending pilot program to 6 years); Pub. L. 108-156, §2, Dec. 3, 2003, 117 Stat. 1944

22 (extending pilot program to 11 years).

23

6An existing regulation requires reverification "[i]f an individual's employment

authorization expires." 8 CFR §374a.2(b)(vii). The obligation to reverify under these limited 24 circumstances is consistent with the statutory prohibition against continuing to employ an alien

25 "knowing the alien is (or has become) an unauthorized alien with respect to such employment." 8 U.S.c. §1324a(a)(2) (emphasis added). When there is a change in work-authorization status known

26 to the employer based on the face of the information provided at initial verification, reverification is

consistent with Congress' intent because the employer otherwise would "know[]" from the initial 27 verification, that "the alien ... has becoJlle ... an unauthorized alien." The obligation for

28 continuing verification under these limited circumstances is very different from a system of continuing verification for millions of employees subject to SSA no-match letters.

MEMORANDUM ISO MOTION FOR TRO & PRELIMINARY INJUNCTION, Case No. _ _ _ _ _ _ _ 20

1

2. The DRS rule contravenes Congress's intent and is entitled to no Chevron deference.

2 The Ninth Circuit in Collins recognized that IRCA is "delicately balanced," and rejected an

3 expansive definition of "constructive ~owledge" because it would "upset that balance." 948 F.2d

4 at 554-55. Similarly, DRS's new rule would upset the balance struck by Congress by effectively

5 imposing a continuing reverification process for millions of existing employees whose SSNs are the

6 subject of SSA no-match letters. The rule would result in additional administrative burdens for

7 employers and would cause the termination of existing workers who cannot rectify erroneous no-

8 matches within 90 days. It also would increase the potential for discrimination against lawfully

9 authorized workers based on national origin. Theodore Dec!. at ~~17, 19-25. These are dangers

10 Congress was concerned about when it enacted IRCA.

11

DRS may argue that its rule does not require employers to reverify work authorization,

12 merely offering them a safe harbor if they do so. But courts construe agency action as "binding as a

13 practical matter" "if the language of the document is such that private parties can rely on it as a

14 norm or safe harbor by which to shape their actions." General Electric Co. v. EPA, 290 F.3d 377,

15 383 (D.C. Cir. 2002) (internal quotation marks, citation omitted); see also Cement Kiln Recycling

16 Coalition v. EPA, _F.3d._, 2007 WL 2011748, *18 (D.C. Cir. July 13, 2007) ("an agency's

17 pronouncement that a document is non-binding will not make it so"). Moreover, DRS' own

18 guidance letter makes clear that DRS interprets its rule to mean that employers cannot simply ignore

19 the no-match letter and must have some system for continuing verification of no-match employees

20 that is uniformly applied to avoid conflicting with anti-discrimination provisions. DRS' safe harbor

21 is "the only combination of steps that will guarantee that DRS will not use the employer's receipt of

22 the notices from SSA ... as evidence of constructive knowledge that an employee is an

23 unauthorized alien." Appendix A at 45618. Cf Barrick Goldstrike Mines Inc. v. Browner, 215 F.3d

24 45, 48-49 (D.C. Cir. 2000) ("a preamble plus a guidance plus an enforcement letter from EPA could

25 crystallize an agency position").

26

Congress intended only a system of initial verification, not a system of continuing

27 verification for millions of employees every year. See New El Rey, 925 F.2d at 1158 n.8. Such a

28 system would disturb the delicate balance between, on one hand, discouraging illegal immigration

MEMORANDUM ISO MOTION FOR TRO & PRELIMINARY INJUNCTION, Case No. _ _ _ _ _ _ _ 21

1 and, on the other, imposing administrative burdens on employers and fomenting national-origin

2 discrimination. Where an agency's interpretation would bring about "the very thing which Congress

3 intended to prevent," the Supreme Court has not hesitated to reject the agency's interpretation.

4 Federal Maritime Comm. v. Seatrain Lines, Inc., 411 U.S. 726, 739 (1973) (rejecting agency's

5 assertion of authority to shield certain merger agreements from antitrust liability where Congress

6 sought to avoid "decrease in competition through ... mergers").

7

Further, "[i]t would be anomalous for Congress to have so painstakingly described" a system

8 for employment verification at the time of initial hire, including the type of documents that must be

9 presented and the employer's obligations in reviewing them, "but to have given [DRS], just by

10 implication, authority to" create from whole cloth its own process for reverification. Gonzales v.

11 Oregon, 546 U.S. 243, 126 S.Ct. 904, 918, 920 (2006) (refusing to apply Chevron deference to

12 Attorney General's interpretive rule because "[t]he authority desired by the Government is

13 inconsistent with the design of the statute in ... fundamental respects"); Romero v. INS, 39 F.3d

14 977,980 (9th Cir. 1994) (where "comprehensive scheme" for deporting immigrants who make

15 "material misrepresentations" reflected Congressional intent not to deport for nonmaterial

16 mispresentations, statutory authority to deport immigrants for failure to "comply with the conditions

17 of any [immigration] status" did not authorize INS to deport immigrants for nonmaterial

18 misrepresentations).

19

"[W]hat we have here ... is effectively the introduction of a whole new regime of

20 regulation" in the form of employer reverification. MCI, 512 U.S. at 231. This new regime is "not

21 the one that Congress established." Id. (agency's authority to "modify" statute's requirements did

22 not authorize it to exempt regulated entities from statutory requirements). DRS cannot parlay

23 Congress' creation of a regime of initial verification into a system of continuing verification lasting

24 an indefinite duration. See Securities and Exchange Commission v. Sloan, 436 U.S. 103, 111-12

25 (1978) (statutory authority of Securities and Exchange Commission to issue order suspending

26 trading in a security for initial 1O-day period did not authorize agency to issue series of consecutive

27 orders and thus suspend trading indefinitely). "If extension ofthe [verification system] is desirable,

28 the proper source of that power is Congress." Id. at 117.

MEMORANDUM ISO MOTION FOR TRO & PRELIMINARY INJUNCTION, Case No. ---,-_ _ _ _ _ _ 22

1

C. The DHS Rule is Also Contrary to Statute by Requiring Verification of

Employees Who Were Exempted by IRCA's "Grandfather" Provision.

2

Finally, the DHS rule is contrary to statute because it fails to exclude employees who were

3

hired before IRCA was adopted on November 6, 1986. Congress exempted these employees from

4

both the initial-hire and continuing-to-employ prohibitions in IRCA. See Pub. L. No. 99-603 §

5

101(a)(3), 100 Stat. 3359 (1986), codifi?d at 8 U.S.C. § 1324a Historical and Statutory Notes ("(3)

6

GRANDFATHER FOR CURRENT EMPLOYEES. -- (A) Section 274A(a)(1) of the Immigration

7

and Nationality Act shall not apply to the hiring, or recruiting or referring of an individual for

8

employment which has occurred before the date of the enactment of this Act [Nov. 6, 1986]; (B)

9

Section 274A(a)(2) of the Immigration and Nationality Act shall not apply to continuing

10

employment of an alien who was hired before the date of the enactment of this Act [Nov. 6,

11

1986]."). The new DHS rule, by contrast, would dictate that employers must discharge such

12

employees if they are the subject of a no-match letter and their work-authorization cannot be

13

verified.

14

II. Neither SSA Nor DHS Have Statutory Authority to Use the SSA Earnings Suspense

15

File and the "No Match" Letter as a Tool for Enforcing the Immigration Laws.

16

The DHS/SSA plan to use SSA no-match letters as an immigration enforcement tool- by

17 imposing immigration-law obligations on employers that receive them - is also invalid because it

18 exceeds the authority Congress granted to those agencies.

19

Federal agencies are purely "creature[s] of statute," and have no authority beyond that

20 conferred by Congress. Michigan v. E.P.A. 268 F.3d 1075, 1081 (D.C. Cir. 2001); see also 21 Louisiana Pub. Servo Comm 'n V. FCC, 476 U.S. 355, 374 (1986) ("an agency literally h~~ no power

22 to act ... unless and until Congress confers power upon it"); Gorbach V. Reno, 219 F.3d 1087, 1093

23 (9th Cir. 2000) ("An agency may not confer power upon itself'). Agency authority cannot be

24 presumed from Congress' failure to wi~hhold that authority. See Ry. Labor Executives' Ass 'n V.

25 Nat 'I Mediation Bd., 29 F.3d 655,671 (D.C. Cir. 1994) (en banc) ("Were courts to presume a

26 delegation of power absent an express withholding of such power, agencies would enjoy virtually

27 limitless hegemony"). And, where Congress carefully divided statutory authority to regulate an area

28 among agencies, one agency cannot intrude on the authority granted to another agency. See, e.g.,

MEMORANDUM ISO MOTION FOR TRO & PRELIMINARY INJUNCTION, Case No. _ _ _ _ _ __ 23

1 Chertoff, 452 F.3d at 865 (Congress' delegation of authority to DRS to create a human resource

2 system did not include power to encroach upon authority granted to Federal Labor Relations

3 Authority); cf Sutton v. United Air Lines Inc., 527 U.S. 471, 480 (1999) (where Congress divided

4 authority to enforce a statute among three administrative agencies, none had authority to interpret

5 the generally applicable provisions ofthat act).

6

An agency's "actions in excess of statutory jurisdiction [and] authority" violate the

7 Administrative Procedures Act. See 5 U.S.C. § 706(2); Gorbach, 219 F.3d at 1099. Such actions
us. 8 will be enjoined as ultra vires. See Chamber ofCommerce of v. Reich, 74 F.3d 1322, 1328

9 (D.C. Cir. 1996); Dart v. United States, 848 F.2d 217,224 (D.C. Cir. 1988)); see also Bowen v.

10 Michigan Academy ofFamily Physicians, 476 U.S. 667,681 (1986); Stark v. Wickard, 321 U.S.

11 288,310(1944).

12

A. The SSA Cannot Use Its Power to Process Tax Data for Purposes of the Social

Security Program to Instead Help DHS Enforce Immigration Laws.

13

Congress granted to SSA the authority to collect and process tax reports for the sale purpose

14

of administering social security benefits·. SSA's authority to process tax information is a specific

15

exception to the exclusive authority over taxation otherwise granted to the Internal Revenue Service

16

and to the general rule - intended to protect privacy and encourage compliance with the tax laws -

17

that tax reports are confidential information that cannot be shared with other agencies. See 26

18

U.S.c. §6103, §61 03(1)(5) ("[u]pon written request by the Commissioner of Social Security, the

19

Secretary [of the Treasury] may disclose information returns ... for the purpose of- (A) carrying

20

out, in accordance with an agreement entered into pursuant to section 232 of the Social Security Act

21

[i.e. 42 U.S.C. §432], an effective return processing program." (emphasis added); 42 U.S.C. §432

22

("The Secretary of the Treasury shall make available information returns ... to the Commissioner of

23

Social Securityfor the purposes ofthis subchapter and subchapter XI ofthis chapter. The

24

Commissioner of Social Security and the Secretary of the Treasury are authorized to enter into an

25

26

27

28

MEMORANDUM ISO MOTION FOR TRO & PRELIMINARY INruNCTION, Case No. _ _ _ _ _ _ _ 24

1 agreement for the processing by the Commissioner of Social Security of information contained in

2 returns.").?

3

In 1978, the IRS and SSA entered into the agreement for tax information processing

4 referenced in these authorizing statutes 43 Fed. Reg. 60158 (Dec. 26, 1978) (codified at 26 C.F.R.

5 §31.6051). Since then, employers have-reported the amount of wages paid, the amount of

6 withholdings and other tax information for each of their employees by filing Forms W-2 with SSA.

7 See 26 C.F.R. §§31.6051-1, 31.6051-2. SSA processes the forms, records the wage information on

8 each employee's earnings record, and then forwards the forms to IRS. Id. As discussed above, if

9 the employee's name and SSN do not match with SSA's database, the earnings are placed in the

10 Earnings Suspense File. 20 C.F.R. §422.120(a).

11

SSA regulations set out the process by which SSA attempts to resolve discrepancies between

12 employer-reported W-2 information and its earnings databases, pursuant to its authority to

13 administer social security benefits. Those regulations provide for SSA to send "no match" letters to

14 employees and employers "request[ingJ:' assistance in resolving the discrepancy. 20 C.F.R.

15 §422.120. SSA has no authority to sanction employees or employers that fail to respond.

16

Until now, SSA has understood that its only statutory authority is to administer the Social

17 Security program and that the only purpose of "no match" letters is to assist in that process. Now,

18 however, SSA is trying to turn the no-match letter into an immigration-enforcement tool, by

19 revising its own no-match letter to provide: "You should follow the instructions contained in ... the

20 attached letter from the Department of Homeland Security," and "You should not ignore this letter

21 and do nothing. That could ... as the Department of Homeland Security has advised us, expose you

22 to liability under immigration law." RJN, Exh. E (model 2007 no match letter) (also attached hereto

23 as Appendix C). SSA also will include the DHSIICE Guidance Letter with every SSA no-match

24 letter. The DHS letter has nothing to do with the Social Security program that Congress authorized

25 SSA to administer, but concerns "your obligations under United States immigration laws."

26 Appendix B.

27

28

? The statutory "subchapters" referred to in 42 U.S.C. §432 are the subchapters regarding

social security b e n e f i t s . ·

-

MEMORANDUM ISO MOTION FOR TRO & PRELIMINARY INJUNCTION, Case No. _ _ _ _ _ _ _ 25

1

Nothing in the statutory authority Congress granted to the SSA comes remotely close to

2 authorizing SSA to use its power to collect tax information for the purpose ofthe Social Security

3 program for the very different purpose of enforcing the immigration laws. Indeed, Congress has

4 considered, but ultimately declined, on multiple occasions to involve SSA with immigration

5 enforcement in a similar manner to what SSA and DHS wish to accomplish here.8 Because SSA's

6 use of no-match letters to assist DHS in the enforcement of immigration laws exceeds SSA's

7 statutory authority, it must be enjoined under 5 U.S.C. §706(2)(C).

8

9

10

11
8 The Administration-backed S.2611 "Comprehensive Immigration Reform Act of 2006," 12 which passed the Senate on May 25, 2006, but was not enacted, would have amended the Social
13 Security Act to require SSA to "establish a reliable, secure method" to match an employee's name and social security number to information in SSA's records for the purpose of verifying work
14 authorization, see S.2611, 109th Congo §301(d) (2006) (amending 42 U.S.C. §405(c)(2), and would also have amended the Internal Revenuy Code to authorize SSA to disclose no-matches to DHS
15 upon request, see S.2611, §301(e) (amending Section 6103(1) of the Internal Revenue Code of 16 1986). See also, e.g., H.R. 4437, 109th Cong., §701(a) (passed House Dec. 12,2005) (requiring
DHS to establish telephone or other electronic verification system and requiring SSA to "establish a 17 reliable, secure method, which ... compares the name and social security account number provided
in an inquiry against such information maintained by the Commissioner"); H.R. 3333, 109th Cong., 18 §224(a) (referred to House subcommittee Aug. 23, 2005) (requiring SSA to send no-match letters 19 every year to each employer with 10 or more no-matches and to instruct such employers to notify
employees that they must "correct the mismatch with the Social Security Administration or the 20 employer will be required to terminate their employment"); H.R. 5507, 109th Cong., §2 (referred to
House subcommittee May 25,2006) (amending 42 U.S.C. 405(c)(2) to require SSA to share no21 match letters with DHS and to inform employers that SSA is providing a copy of such letter to DRS 22 to assist DRS "in the enforcement of applicable Federal immigration laws"). Additionallegislative
proposals pending in the current Congress that would accomplish the same ends as the DRS rule 23 include H.R. 138, 110th Cong., §3 (introduced Jan. 4,2007) (requiring employers receiving no-
match letters to reverify employee's work authorization); S. 1639, 110th Cong., §308 (returned to 24 Senate Calendar June 28,2007) (amending 42 U.S.c. §405(c)(2) to require SSA to "establish a
25 reliable, secure method" to compare name and social security information provided by employee to SSA records for purpose of establishing work authorization); R.R. 2954, 110th Cong., §313
26 (referred to House subcommittee July 19, 2007) (requiring employers receiving SSA no-match
letters to reverify employee's work authorization); S. 1984, 110th Cong., §256 (referred to Senate 27 Committee Aug. 2,2007) (amending 42 U.S.C. §405(c)(2) to require SSA to "establish a reliable, 28 secure method" to compare name an4 social security information provided by employee to SSA
records for purpose of establishing work authorization).

MEMORANDUM ISO MOTION FOR TRO & PRELIMINARY INruNCTION, Case No. _ _ _ _ _ _ _ 26

1

B. The DHS Final Rule Commandeers Authority That Congress Has Delegated

Only to the IRS and the SSA.

2

Just as SSA's authorizing statutes do not authorize SSA to use its authority to send out no-

3

match letters for immigration-enforcement purposes, DHS' authorizing statutes do not authorize

4

DHS to dictate how employers respond to SSA no-match letters.

5

Congress established the Department of Homeland Security by merging 22 existing agencies

6

into one new cabinet-level agency. Chertoff, 452 F.3d at 845; see also Pub. L. No. 107-296, 116

7

Stat. 2135 (2002) (the "Homeland Security Act"). Prior to creation ofDHS, the Department of

8

Justice ("DOJ") and the Attorney General were responsible for oversight of INS, and the

9

enforcement of immigration laws. The Homeland Security Act eliminated INS, and created a new

10

agency within DHS to enforce the immigration laws, called Immigration and Customs Enforcement

11

("ICE,,).9 The Homeland Security Act also required that some provisions of immigration laws

12

remained within the enforcement authority of the Attorney General and DOl 8 U.S.C. §1103. The

13

authority ofDHS is therefore bounded 1?y the limits of authority granted to other agencies:

14

The Secretary of Homeland Security shall be charged with the administration and

15

enforcement of this chapter and all other laws relating to the immigration and

naturalization of aliens, except insofar as this chapter or such laws relate to the

16

powers, functions, and duties conferred upon the President, Attorney General, the

Secretary of State, the officers of the Department of State, or diplomatic or consular

17

officers: Provided, however, That determination and ruling by the Attorney General

with respect to all questions of law shall be controlling.

18

8 U.S.c. §1103(a)(1). The Secretary ofDHS is also generally granted authority over the functions

19

of all ofthe component agencies within the agency. 6 U.S.C. §112(a)(3).

20

Nothing in these general grants of authority to enforce immigration laws authorizes DHS to

21

regulate employer responses to notices of mismatches between their Forms W-2 and the SSA

22

database. The Form W-2 is a tax report, not an immigration or work-authorization document; the

23

Earnings Suspense File is maintained to manage the Social Security program, not the immigration

24

25

26

27

9 See Pub. L. No. 107-296 §471 (abolishing INS), §442 (establishing Bureau of Border

28 Security); §1502 (requiring reorganization plan); 6 U.S.C. §542 (replacing Bureau of Border

Security with ICE).

.

MEMORANDUM ISO MOTION FOR TRO & PRELIMINARY INJUNCTION, Case No. _ _ _ _ _ _ _ 27

1 laws; and DHS is not even permitted access to the data in the Earnings Suspense File. 10

2

Moreover, the Internal Revenue Service - not DHS - has authority to sanction employers

3 that submit incorrect tax reports and, therefore, authority to prescribe their obligations in submitting

4 and correcting Forms W-2. Very detailed IRS regulations already provide that there is no penalty

5 for submitting an incorrect tax information statement if the filer has "reasonable cause," which

6 includes "events beyond the filer's control" such as "actions of the payee or any other person

7 providing necessary information with respect to the return or payee statement." 26 C.F.R.

8 §301.6724-1(a)(2)(i), (c)(6); see also 26 U.S.C. §6724(a). Under the IRS regulations, the filer is not

9 responsible for "incorrect information provided by the payee (or any other person) upon which

10 information the filer relied in good faith." 26 C.F.R. §301.6724-1(c)(6)(ii). The upshot of the IRS

11 regulations is that employers can rely, in submitting their Forms W-2, upon the name and SSN

12 provided by the employee on the Form W-4. Absent action by Congress, any expansion in

13 employers' duties in addressing tax reporting errors must come from the Internal Revenue Service-

14 not Homeland Security.

15

c. DHS Cannot Commandeer DOJ Authority to Interpret the IRCA

Discrimination Provisions.

16

Finally, DHS also has no authority to interpret IRCA's anti-discrimination provisions, which

17

DHS's rule and guidance letter purport to do, because Congress gave that authority to the DOl

18

The guidance letter informs employers that the "safe-harbor" procedure set out by DHS will

19

immunize the employer from charges of national-origin discrimination: "Q. Will I be liable for

20

discrimination charges brought by the United States if I terminate the employee after

21

following the steps outlined above? A. No ...." See Appendix B. Likewise the rule provides

22

that, although DHS regulations do not otherwise "permit[] an employer to request more or different

23

24

25

10 By contrast, when Congress decided to allow DHS access to information collected by

SSA, it expressly granted narrow access. See 8 U.S.c. §1360(c)(2) (directing SSA to provide DHS

26 with the ''Nonwork Alien File," which contains the records of earnings reported on Forms W-2

27

using a specific series of SSNs issued t6 aliens who lack work authorization). Congress declined to allow SSA to similarly disclose information from the Earning Suspense File, which contains

28 information about U.S. citizens and non-citizens authorized to work.

MEMORANDUM ISO MOTION FOR TRO & PRELIMINARY INJUNCTION, Case No. _ _ _ _ _ _ _ 28

1 documents than are required under [IRCA's employment verification provision] or that on their face

2 reasonably appear to be genuine," there is an exception for employers following the DRS safe-

3 harbor after a no-match letter. Appendi?C A at 45612; id. at 45613-14 ("The final rule clarifies that...

4 employers who follow the safe harbor procedures set forth in this rule uniformly and without regard

5 to perceived national origin or citizenship status as required by the provisions of [8 U.S.C.

6 §1324b(a)(6)] will not be found to have engaged in unlawful discrimination.").

7

DRS has no authority to interpret the IRCA anti-discrimination provisions. IRCA created

8 within the DO] the Office of the Special Counsel for Immigration-Related Unfair Employment

9 Practices, and charged that office - not the INS - with enforcing the statute's anti-discrimination

10 provisions. 8 U.S.c. §1324b(c). As part of the reorganization of agencies to create DRS, Congress

11 provided that responsibility for enforcing certain provisions of the immigration laws, including the

12 anti-discrimination provisions, would remain with DOJ, and that the Attorney General's

13 interpretation would be binding. 8 U.S.c. §11 03. Again, the DRS Final Rule exceeds statutory

14 authority and violates 5 U.S.C. §706(2)(C).

15

III. The Balance of Hardships Overwhelmingly Favors a Stay Until this Action Can be

16

Heard on the Merits.

17

A. Plaintiffs Will Suffer I~mediate, Irreparable Harm Absent a Stay.

18

Implementation of the DRS Final Rule will cause irreparable harm to both employers and

19 employees. Cf Garrett v. Escondido, 465 F.Supp.2d 1043 (S.D. Cal. 2006) (issuing preliminary

20 injunction against ordinance that prohibited landlords from renting to undocumented aliens;

21 landlords and employees established irreparable harm); Lozano v. City o/Hazleton, 459 F.Supp.2d

22 332 (M.D. Pa. 2006) (issuing TRO against ordinances that required tenants to obtain proof oflegal

23 citizenship or residence and prohibiting employers from employing undocumented aliens; tenants

24 and business owners established irreparable injury). The initial round ofrevised SSA no-match

25 mailings that include the DRS guidance letter implementing the new rule is scheduled to run from

26 September 4,2007 to November 9,2007, reach about 140,000 employers, and will impact

27 approximately eight million employees. Moran Decl. at ~14.

28

MEMORANDUM ISO MOTION FOR TRO & PRELIMINARY INJUNCTION, Case No. _ _ _ _ _ _ _ 29

1

Employers, faced with a letter from DRS explicitly instructing them that they may not

2 disregard the SSA no-match letter lest they risk civil and criminal liability, will be compelled to take

3 action. The administrative costs of complying with the new "safe harbor" procedures could not be

4 recovered after the fact. Employers alsQ will face massive business disruption in the face of

5 uncertainty over employee's status as employees attempt to resolve discrepancies with the SSA.

6 Theodore Decl. at ~27; ReiffDecl. at ~3 & Exh. A.

7

The approximately eight million employees covered by the initial wave of SSA no-match

8 letters will include many employees who are U.S. citizens or non-citizens lawfully working but

9 whose SSNs - for a host of reasons, such as clerical errors, name changes, different naming

10 conventions in other countries, etc. - simply did not match with SSA records. That subset of

11 workers would include many workers represented by affiliates of the plaintiff AFL-CIO, which

12 collectively represent about 10 million working men and women. Chavez-Thompson Decl. at ~2;

13 Theodore Decl. ~28. These workers would then face a 90-day deadline to resolve a data mismatch

14 with the SSA bureaucracy. As with most government agencies, SSA field offices generally are

15 open only during normal business hours, so many employees would have to take time off- without

16 pay - to bring their identification to the field offices to attempt to clear up the data problem. See

17 Moran Decl. at ~12 (describing mismatch problem that could not be solved locally); ~~6- 9

18 (describing worker's four-month effort to resolve mismatch). That loss of pay could not be

19 remedied after the fact.

20

SSA field offices, moreover, are likely to be busy with similar mismatch issues raised by

21 millions of other workers. Commissioner Apfel expressed "concern about the ability of SSA field

22 office to deal with an influx of workers and employers seeking to correct mismatched records by a 23 deadline." Apfel Decl. ~17. Some workers do not maintain copies of official documents, such as

24 birth certificates, that may be necessary to correct the errors. Indeed, SSA already has advised DRS

25 that there will be "difficult cases" in which the deadline cannot be met. See also Moran Decl. at ~1 O.

26 Those "difficult cases" will involve lawful employees who lose their jobs because of a data

27 discrepancy beyond their control; the harm they suffer could not be remedied after the fact.

28

MEMORANDUM ISO MOTION FOR TRO & PRELIMINARY INJUNCTION, Case No. - - - - - - - 30

1

Based on past experience with no-match letters, moreover, some of the 140,000 employers

2 covered by the initial SSA mailing would react to the no-match packets and DRS guidance by

3 immediately terminating affected workers with a "foreign" appearance or accent because of fear of

4 IRCA liability, including U.S. citizens and non-citizens legally authorized to work. Theodore Decl.

5 at ~~17, 19-25; Moran Decl. at ~11. The disruption to those workers' lives could not be undone

6 after the fact.

7

B. Preserving the Status Quo Will Not Cause any Real Harm to the Defendants.

8

By contrast to the irreparable harm that would flow to Plaintiffs if the regulation is

9 implemented, a stay ofthe DRS Final Rule would not cause any real harm to the Defendants. DRS

10 would not be precluded from continuing to enforce IRCA. Any argument that a stay of the rule

11 would interfere with DRS's functions is belied by the fact that neither DRS nor its predecessor

12 agency saw any need to promUlgate this regulation for the past 20 years since the adoption of IRCA.

.13 (Indeed, INS opinion letters, taking precisely the opposite position from the new regulation, asserted

14 that the agency would not view mere receipt of an SSA no-match letter as constructive knowledge

15 that an employee lacked work authorization). The DRS rule itself, moreover, lay dormant for an

16 .entire year before DRS ultimately adopted it after the Congressional recess. See National Treasury

17 Employees Union v. Us. Dept. ofTreasury, 838 F.Supp. 631, 640 (D.D.C. 1993) ("threat of harm to

18 the government is negligible" where "Customs service continues to function without" information,

19 gathering of which plaintiff sought to enjoin, and agency "waited nearly a year to gather these

20 questionnaires").

21

For its part, SSA could continue to send out no-match letters that advise employers of data

22 discrepancies. SSA is not an agency that enforces the immigration laws, and SSA would not be

23 prevented from performing its own statutory functions if it does not include a DRS guidance letter

24 implementing the new DRS rule in the J?o-match packets sent to employers.

25

Moreover, the public interest weighs strongly in favor of a stay where, as here, the regulation

26 sought to be enjoined is contrary to a statute adopted by Congress and in excess of the agencies'

27 statutory authority. Id. ("The preservation of ... the legality of the process by which government

28 agencies function certainly weighs heavily in the public interest."); see also Clarke v. Ofe. ofFed.

MEMORANDUM ISO MOTION FOR TRO & PRELIMINARY INJUNCTION, Case No. _ _ _ _ _ _ _ 31

1 Housing Enterp. Oversight, 355 F. Supp.2d 56, 66 (D. D.C. 2004) ("there is a substantial public

2 interest in ensuring that [the agency] acts within the limits of its authority").!!

3

CONCLUSION

4

For the foregoing reasons, the Court should stay the DHS Final Rule, which will become

5 legally effective on September 14,2007, until this action can be heard on the merits. The Court also

6 should stay the SSA's mailing of revised no-match packets to implement the DHS Final Rule,

7 which is scheduled to begin on September 4, 2007.

8 Dated: August 29,2007

Respectfully submitted

9

Stephen P. Berzon

Scott A. Kronland

10

Jonathan Weissglass

Linda Lye

11

Danielle E. Leonard

ALTSHULER BERZON LLP

12

Jdnathan P. Hiatt

13

James B. Coppess

Ana Avenda-fio

14

AFL-CIO

15

Linton Joaquin

Marielena Hincapie

16

Monica T. Guizar

NATIONAL IMMIGRATION LAW CENTER

17

Lucas Guttentag

18

Jennifer C. Chang

Monica M. Ramirez

19

AMERICAN CIVIL LIBERTIES UNION FOUNDATION

20

Omar C. Jadwat

AMERICAN CIVIL LIBERTIES UNION FOUNDATION

21

Alan L. Schlosser

22

Julia Harumi Mass

ACLU FOUNDATION OF NORTHERN CALIFORNIA

23

24

25

\1 No bond is necessary in this case for each of the following separate and independent

reasons. First, Plaintiffs have a strong likelihood of success on the merits. Scherr v. Volpe, 466

26 F.2d 1027, 1035 (7th Cir. 1972). Secol1d, there is no realistic likelihood of harm to defendants from

enjoining their conduct. Jorgensen v. Cassiday, 320 F.3d 906,919 (9th Cir. 1996). And third, the 27 "equities of potential hardships to the parties" weigh in favor of plaintiffs. Temple Univ. v. White,

28 941 F.2d 201,220 C3.d Cir. 1991). In any event, there is no risk of monetary loss to defendants from enjoining the conduct at issue.

MEMORANDUM ISO MOTION FOR TRO & PRELIMINARY INJUNCTION, Case No. _ _ _ _ _ _ _ 32

1

David A. Rosenfeld

Manjari Chawla

2

WEINBERG, ROGER & ROSENFELD

3

4

by:_-:::-_--:-~____:-:;__---­

5

Scott A. Kronland

6

Attorneys for Plaintiffs

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

MEMORANDUM ISO MOTION FOR TRO & PRELIMINARY INJUNCTION, Case No. _ _ _ _ _ _ 33

1 2 3 4 Exhibit A: 5
ExhibitB: 6 7
Exhibit C: 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

APPENDIX
Index to Appendix Department of Homeland Security, Final Rule: "Safe Harbor Procedures for Employers Who Receive a No Match Letter," 72 Fed. Reg. 45611 (August 15,2007) Department of Homeland Security, U.S. Immigration and Customs, Guidance Letter regarding Final Rule "Safe Harbor Procedures for Employers Who Receive a No Match Letter" Social Security model 2007 "no-match" letter for Tax Year 2006

MEMORANDUM ISO MOTION FOR TRO & PRELIMINARY INJUNCTION, Case No. _ _ _ _ __

 
 Case 3:07-cv-04472-CRB Document 21 Filed 08/31/2007 Page 1 of 4

1 2 3 4 5 6 7
l XD 9
11 12 13

Stephen P. Berzon (SBN 46540) Scott A. Kronland (SBN 171693) Jonathan Weissglass (SBN 185008) Linda Lye (SBN 215584) Danielle E. Leonard (SBN 218201) ALTSHULER BERZON LLP 177 Post Street, Suite 300 San Francisco, CA 94108 Telephone: (415) 421-7151 Facsimile: (415) 362-8064 Email: skronland@altshulerberzon.com Email: llye@altshulerberzon.com Email: dleonard@altshulerberzon.com
Attorneys for Plaintiffs
Jonathan P. Hiatt (SBN 63533) James B. Coppess (Pro Hac Vice Application forthcoming) Ana L. Avendafio (SBN 160676) AFL-CIO 815 Sixteenth Street, N.W. Washington, D.C. 20006 Telephone: (202) 637-5053 Facsimile: (202) 637-5323 Email: aavendan@aflcio.org

14 Attorneys for PlaintiffAFL-CIO

15 (Counsel list continued on next page)

16

UNITED STATES DISTRICT COURT

17

NORTHERN DISTRICTe CAIf}>RfA

C1(lJ
4 4 72'

18 AMERICAN FEDERATION OF LABOR AND

) Case No. _________

CONGRESS OF INDUSTRIAL ORGANIZATIONS; )

19 SAN FRANCISCO LABOR COUNCIL; SAN

)

FRANCISCO BUILDING AND CONSTRUCTION

) [PR6F08ISD] TEMPORARY

20 TRADESCOUNCIL;andCENTRALLABOR

) RESTRAINING ORDER AND

COUNCIL OF ALAMEDA COUNTY,

) ORDER TO SHOW CAUSE RE:

21

) PRELIMINARY INJUNCTION

Plaintiffs,

)

22

)

v.

)

23

)

MICHAEL CHERTOFF, Secretary ofHomeland Security;)

24 DEPARTMENT OF HOMELAND SECURITY;

)

JULIE MYERS, Assistant Secretary of Homeland

)

25 Security; U.S. IMMIGRATION AND CUSTOMS

)

ENFORCEMENT; MICHAEL ASTRUE, Commissioner )

26 of Social Security; and SOCIAL SECURITY

)

ADMINISTRATION,

)

27

)

Defendants.

)

28 ------.----------------------~-----)

[pROPOSED] TRO AND ORDER TO SHOW CAUSE RE: PI, Case No. ______________

Case 3:07-cv-04472-CRB Document 21 Filed 08/31/2007 Page 2 of 4
(Counsel list continued from first page)
2 Linton Joaquin (SBN 73547) Marielena Hincapie (SBN 188199)
3 Monica T. Guizar (SBN 202480) NATIONAL IMMIGRATION LAW CENTER
4 3435 Wilshire Blvd., Suite 2850 Los Angeles, CA 90010
5 Telephone: (213) 674-2850 Facsimile: (213) 639-3911
6 Email: guizar@nilc.org
7 Lucas Guttentag (SBN 90208) Jennifer C. Chang (SBN 233033)
8 Monica M. Ramirez (SBN 234893) AMERICAN CIVIL LIBERTIES UNION FOUNDATION
9 Immigrants' Rights Project 39 Drumm Street
10 San Francisco, CA 94111 Telephone: (415) 343-0770
11 Facsimile: (415) 395-0950 E-mail: jchang@aclu.org
12 Omar C. Jadwat (Pro Hac Vice Application forthcoming)
13 AMERICAN CIVIL LIBERTIES UNION FOUNDATION Immigrants' Rights Project
14 125 Broad Street, 18th Floor New York, NY 10004
15 Telephone: (212) 549-2620 Facsimile: (212)-549-2654
16 Email: oj adwat@aclu.org
17 Alan L. Schlosser (SBN 49957) Julia Harumi Mass (SBN 189649)
18 ACLU FOUNDATION OF NORTHERN CALIFORNIA 39 Drumm Street
19 San Francisco, CA 94111 Telephone: (415) 621-2493
20 Facsimile: (415) 255-1478 E-mail: aschlosser@aclu.org
21 Attorneys for PlaintiffCentral Labor Council ofAlameda County
22 David A. Rosenfeld (SBN 58163)
23 Manjari Chawla (SBN 218556) WEINBERG, ROGER & ROSENFELD
24 A Professional Corporation 1001 Marina Village Parkway, Suite 200
25 Alameda, California 94501-1091 Telephone: (510) 337-1001
26 Facsimile: (510) 337-1023 Email: drosenfeld@unioncounsel.net
27 Attorneysfor Plaintiffs San Francisco Labor Council,
28 San Francisco Building and Construction Trades Council, and Central Labor Council ofAlameda County
[PROPOSED] TRO AND ORDER TO SHOW CAUSE RE: PI, Case No. _ _ _ _ _._.

Case 3:07-cv-04472-CRB Document 21 Filed 08/31/2007 Page 3 of 4

1

Plaintiffs' application for (i) a Temporary Restraining Order, and (ii) an Order to Show

2 Cause why a preliminary injunction should not issue came before this Court for consideration on
3 August -.aL, 2007. Upon consideration ofthe application, and for good cause shown,

4

IT IS HEREBY ORDERED as follows:

5

Temporar(y aRe\stsra~inin~eg.O.(r'd(e(r),~ ,\UE..\.\;<::.'»'\q. i.$. ~ W"'-~(

The Court finds that Plaintiffs have eElfft6ftstf8tt~1i a lilrelilieee ef St:1eeess eft tlie merits ef

7 lBeir .laoims lBati the new Department of Homeland Security rule is inconsistent with statute and

8 beyond the statutory authority of the Department of Homeland Security and the Social Security

9 Administration. The Court also finds that Plaintiffs have demonstrated that the balance of harms

ha~a",

~ $~Cu.M.~ -thA.~~

...Uf..",,£'· s sharply in favor of a stay""8eefttlBQo,.Plaintiffs ~a "tlieir members would suffer irreparable harm if

~I~ ~~1~};~~ay e rule is implemented while Defendants would suffer

in the

12 implementation of the rule pending consideration of Plaintiffs' claims.

13

Accordingly, IT IS HEREBY ORDERED that, pending a hearing in whether a preliminary

14 injunction should issue, Defendants MICHAEL CHERTOFF, Secretary of Homeland Security;

15 DEPARTMENT OF HOMELAND SECURITY; JULIE MYERS, Assistant Secretary of Homeland

16 Security; U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT; MICHAEL ASTRUE,

17 Commissioner of Social Security; and SOCIAL SECURITY ADMINISTRATION, and their

18 officers, agents, servants, employees, and attorneys, and upon those persons in active concert or

19 participation with them, are HEREBY ENJOINED AND RESTRAINED from giving any effect to

20 or otherwise taking any action to implement the Final Rule adopted by the Department of Homeland

21 Security entitled "Safe-Harbor Procedures for Employers Who Receive a No-Match Letter" that was

22 published at 77 Fed. Reg. 45611 (Aug. 15,2007), including by mailing or otherwise causing to be

23 sent to employers the Social Security Administration no-match letter packets that include the

24 Department of Homeland Security guidance letter concerning the Final Rule.

25

Order to Show Cause

26

Defendants are ordered to show cause before this Court why a preliminary injunction should

27 not issue enjoining Defendants from giving effect to or otherwise taking any action to enforce or

28 implement the Final Rule adopted by the Department of Homeland Security entitled "Safe-Harbor

[PROPOSED] TRO AND ORDER TO SHOW CAUSE RE: PI, Case No. _ _ _ _ _ __

1

Case 3:07-cv-04472-CRB Document 21 Filed 08/31/2007 Page 4 of 4

1 Procedures for Employers Who Receive a No-Match Letter" that was published at 77 Fed. Reg.

2 45611 (Aug. 15,2007).

3

The hearing on the~rder to show cause will be held on Oc.tab~( 1 ,2007, at A :~oL""

?\a\f\o\;~~s. ~~()iA.. ~ Qte.X\1IAA~(h·"l \~~u.L'\c.:~';oV\~\'I~\\\Qe ldlitit.Q.Ned'4~ ~ ~UI ~l.

Defendants' opposition papers shall be filed and served on~t.~~~e., l8 2007, and Plaintiffs'

.a' , 5 reply papers shall be filed and served on Se.~\t.( 2007.

6

SO ORDERED.

7 8 Dated: 9

/3'Q 1 (~7

U{.

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

[PROPOSED] TRO AND ORDER TO SHOW CAUSE RE: PI, Case No. _ _ _ _~_ _ _ _ __

2

 
 Case 3:07-cv-04472-CRB Document 135 Filed 10/10/2007 Page 1 of 22

United States District Court For the Northern District of California

1

2

3

4

5

6

7

8

IN THE UNITED STATES DISTRICT COURT

9

FOR THE NORTHERN DISTRICT OF CALIFORNIA

10

11 AMERICAN FEDERATION OF LABOR, et 12 al.,

13

Plaintiffs,

14 v.

15 MICHAEL CHERTOFF, et al.,

Defendants.

16

/

No. C 07-04472 CRB ORDER GRANTING MOTION FOR PRELIMINARY INJUNCTION

17 On August 15, 2007, the Department of Homeland Security (DHS) promulgated a
18 final rule entitled “Safe-Harbor Procedures for Employers Who Receive a No-Match Letter.”
19 See 72 Fed. Reg. 45611 (Aug. 15, 2007). Plaintiffs, a consortium of unions and business
20 groups, filed a motion for preliminary injunction, arguing that injunctive relief is appropriate
21 because they have demonstrated a high probability of success on four theories: that the rule
22 (1) contravenes the governing statute; (2) is arbitrary and capricious under the Administrative
23 Procedure Act; (3) is an exercise of ultra vires authority by DHS and the Social Security
24 Administration (SSA); and (4) was promulgated in violation of the Regulatory Flexibility
25 Act. The balance of hardships tips sharply in plaintiffs’ favor and plaintiffs have raised
26 serious questions going to the merits. Accordingly, the motion for a preliminary injunction is
27 GRANTED.
28

Case 3:07-cv-04472-CRB Document 135 Filed 10/10/2007 Page 2 of 22

United States District Court For the Northern District of California

1

BACKGROUND

2

A. The SSA No-Match Program

3

The SSA maintains earnings information on workers for the purpose of determining

4 eligibility for Social Security benefits for which the worker and his dependents may be

5 entitled. See 42 U.S.C. § 405(c)(2)(A). Each year, employers submit employee wages to the

6 SSA on Forms W-2 – Wage and Tax Statements – and SSA posts those earnings to its Master

7 Earnings File so that workers receive credit for Social Security benefits. When SSA is

8 unable to match a worker’s name and Social Security Number (SSN) from the Form W-2

9 with its own records, that worker’s earnings are posted to SSA’s Earnings Suspense File until

10 they can be matched with SSA records. See 20 C.F.R. § 422.120(a).

11

The Earnings Suspense File contains more than 255 million mismatched earnings

12 records and is growing at the rate of 8 million to 11 million records per year. Request for

13 Judicial Notice in Support of Motion for Temporary Restraining Order and Preliminary

14 Injunction (RJN) Exh. Q at 8. Although the portion of these earnings that represent

15 unauthorized work is unknown, the United States Government Accountability Office has

16 concluded that the Earnings Suspense File “[c]ontains information about many U.S. citizens

17 as well as noncitizens.” See id.

18

Since 1994, SSA has attempted to correct mismatched records by sending so-called

19 “no-match” letters to employers requesting corrected information. See 20 C.F.R. §

20 422.120(a). In previous years, these no-match letters have downplayed the immigration

21 implications of a mismatched SSN. For example, SSA’s model 2006 no-match letter for Tax

22 Year 2005 emphasized that receipt of the letter “does not imply that you or your employee

23 intentionally gave the government wrong information about the employee’s name or Social

24 Security number. Nor does it make any statement about an employee’s immigration status.”

25 RJN Exh. D.1

26

27

1 SSA’s model 2006 letter reassured employers that there are three common reasons why

reported information might mismatch SSA’s own records, all unrelated to immigration fraud:

28 (1) typographical errors made in spelling an employee’s name or listing the SSN; (2) failure of

the employee to report a name change; and (3) submission of a blank or incomplete Form W-2.

2

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1

B. The Immigration Reform and Control Act of 1986

2

In 1986, Congress passed the Immigration Reform and Control Act (IRCA), Pub. L.

3 No. 99-603, 100 Stat. 3359 (1986), which subjects employers to criminal and civil liability

4 for knowingly hiring unauthorized aliens, see 8 U.S.C. § 1324a(a)(1)(A), and for

5 “continu[ing] to employ the alien in the United States knowing the alien is (or has become)

6 an unauthorized alien with respect to such employment,” id. § 1324a(a)(2). IRCA also made

7 it unlawful for employers to hire new employees without complying with an eligibility

8 verification process established by Congress. See id. § 1324a(a)(1)(B). That process

9 requires the employer to fill out a Form I-9 (Employment Eligibility Verification), based on

10 documents presented by the employee that prove identity and work authorization. Id. §

11 1324a(b).

12

In passing IRCA, Congress also sought to prevent employers from responding to their

13 new obligations by terminating employees solely on the basis of national origin. “Concern

14 with protecting [lawful workers whose work authorization has been questioned or who lack

15 adequate documentation] from discrimination based on national origin engendered by

16 IRCA’s employer sanctions was repeatedly expressed by members of Congress.” Incalza v.

17 Fendi N. Am., Inc., 479 F.3d 1005, 1011 (9th Cir. 2007). Accordingly, Congress made it an

18 unfair immigration-related employment practice for an employer “to discriminate against any

19 individual (other than an unauthorized alien, as defined in section 1324a(h)(3) of this title)

20 with respect to the hiring, or recruitment or referral for a fee, of the individual for

21 employment or the discharging of the individual from employment . . . because of such

22 individual’s national origin.” 8 U.S.C. § 1324b(a)(1)(A).

23

To enforce IRCA’s anti-discrimination provision, Congress created a Special Counsel

24 for Immigration-Related Unfair Employment Practices, based within the Department of

25 Justice. See id. § 1324b(c)(1). Congress delegated to the Special Counsel the power to

26 investigate charges of discrimination based on national origin, and to issue complaints. See

27 id. § 1324b(c)(2).

28 See RJN Ex. D.

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1

C. DHS’s “Safe Harbor” Rule

2

On June 14, 2006, DHS proposed to amend 8 C.F.R. § 274a.1, a regulation that sets

3 forth DHS interpretations of terms including “knowing.” In short, DHS proposed to add

4 receipt of a no-match letter to a list of examples “that may lead to a finding that an employer

5 had . . . constructive knowledge” of an employee’s unauthorized status. Safe-Harbor

6 Procedures for Employers Who Receive a No-Match Letter, 71 Fed. Reg. 34281-01, 34281

7 (June 14, 2006). In addition, DHS proposed to create “‘safe-harbor’ procedures that the

8 employer can follow in response to [a no-match] letter and thereby be certain that DHS will

9 not find that the employer had constructive knowledge that the employee referred to in the

10 letter was an alien not authorized to work in the United States.” Id.

11

Before the sixty day comment period ended on August 14, 2006, a variety of sources –

12 including labor unions, industry trade groups and businesses – submitted approximately

13 5,000 comments. 72 Fed. Reg. at 45611. The rule then lay dormant for over a year while

14 Congress debated immigration reform legislation. On August 15, 2007, the agency issued a

15 final rule, with an effective date of September 14, 2007. See id.

16

The new rule redefines DHS’s definition of “knowing”, to provide that:

17

The term knowing includes having actual or constructive knowledge.

Constructive knowledge is knowledge that may fairly be inferred through

18

notice of certain facts and circumstances that would lead a person, through the

exercise of reasonable care, to know about a certain condition. Examples of

19

situations where the employer may, depending on the totality of relevant

circumstances, have constructive knowledge that an employee is an

20

unauthorized alien include, but are not limited to, situations where the

employer . . . [f]ails to take reasonable steps after receiving information

21

indicating that the employee may be an alien who is not employment

authorized, such as . . . [w]ritten notice to the employer from the Social

22

Security Administration reporting earnings on a Form W-2 that employees’

names and corresponding social security account numbers fail to match Social

23

Security Administration records.

24 Id. at 45623-24; see also, 8 C.F.R. § 274a.1(l)(1)(iii)(B) (emphasis added).

25

The rule’s“safe harbor” provision precludes DHS from using receipt of a no-match

26 letter as evidence of constructive knowledge if the employer takes certain actions set forth in

27 the rule. See id. at 45624. Specifically, an employer must check its records for the source of

28 the mismatch within 30 days. See 8 C.F.R. § 274a.1(l)(2)(i)(A). If the discrepancy is not

4

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1 due to error in the employer’s records, then the employer must request that the employee

2 confirm his information, and advise the employee to resolve the discrepancy with the SSA

3 within 90 days of the date the employer received the no-match letter. See id. §

4 274a.1(l)(2)(i)(B). If the employer cannot resolve the discrepancy within 90 days, it must

5 complete a new Form I-9 for the employee. See id. § 274a.1(l)(2)(iii). The employer may

6 not accept any document that contains a disputed social security number; thus, an employee

7 cannot maintain his eligibility and attempt to retain his employment based on a SSN found to

8 not match SSA records, even if the SSN is accurate and the discrepancy is due to SSA error.

9 See id. § 274a.1(l)(2)(iii)(2).

10

D. The New SSA “No-Match” Letter & DHS Insert

11

In an apparent effort to coordinate efforts with DHS, SSA has revised its no-match

12 letter in three ways to bring it into accord with the new safe harbor rule. First, SSA’s model

13 2007 no-match letter for Tax Year 2006 includes a new “common reason” why information

14 reported to SSA does not match the agency’s records: “[t]he name or Social Security number

15 reported is false, or the number was assigned to someone else.” RJN Exh. E. Second, the

16 no-match letter’s assurance of immigration implications is now less reassuring for employers.

17 The new letter informs employers that a no-match letter “does not, by itself, make any

18 statement about an employee’s immigration status.” (Amendment in emphasis). Third, the

19 letter instructs employers to follow the instructions contained in a DHS letter inserted into

20 the no-match mailing.

21

In turn, DHS’s insert purports to “provide you with additional guidance on how to

22 respond to the [no-match] letter from the Social Security Administration in a manner that is

23 consistent with your obligations under United States immigration laws.” RJN Exh. C.

24 Organized in a question-and-answer format, the insert asks: “Can I simply disregard the letter

25 from SSA?” (Emphasis in original). DHS answers:

26

No. You have received official notification of a problem that may have

significant legal consequences for you and your employees. If you elect to

27

disregard the notice you have received and if it is determined that some

employees listed in the enclosed letter were not authorized to work, the

28

Department of Homeland Security could determine that you have violated the

5

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1

law by knowingly continuing to employ unauthorized persons. This could lead

to civil and criminal sanctions.

2

Id. (Emphasis in original).

3

In response to the question, “What should I do?,” DHS answers that employers should

4

follow the steps set forth in the safe harbor provision of the new rule. See id. Finally, DHS

5

provides employers with advice on the nexus between the new rule and IRCA’s anti-

6

discrimination provision. The insert asks, “Will I be liable for discrimination charges

7

brought by the United States if I terminate the employee after following the steps outlined

8

above?” The answer:

9

No. . . . [I]f an employer that follows all of the procedures outlined by DHS in

10

this letter cannot determine that an employee is authorized to work in the

United States and therefore terminates that employee, and if that employer

11

applied the same procedures to all employees referenced in the mismatch letter,

then that employer will not be subject to suit by the United States under the

12

Immigration and Nationality Act’s anti-discrimination provision.

13 Id.

14

The government acknowledged at oral argument that if a preliminary injunction is not

15 granted, SSA plans to mail approximately 140,000 no-match letters to employers, pertaining

16 to approximately 8 million employees.

17

E. Procedural History

18

On August 29, 2007, plaintiffs moved for a temporary restraining order, seeking to

19 prevent DHS from taking any action to implement the new rule. Two days later, another

20 judge of the court granted the motion, concluding that the plaintiffs had “raised serious

21 questions as to whether the new Department of Homeland Security rule is inconsistent with

22 statute and beyond the statutory authority of the Department of Homeland Security and the

23 Social Security Administration.” The Court also found that the plaintiffs had “demonstrated

24 that the balance of harms tips sharply in favor of a stay based on Plaintiffs’ showing that they

25 and their members would suffer irreparable harm if the rule is implemented while Defendants

26 would suffer significantly less harm from a delay in implementation of the rule pending

27 consideration of Plaintiffs’ claims.”

28

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1

Since the imposition of a TRO, the parties have submitted substantial briefing and this

2 Court conducted a two-hour hearing to consider the propriety of a preliminary injunction.

3

SUMMARY

4

At the outset, it should be noted that in the context of a request for preliminary

5 injunction, it is not the court’s role to provide a final adjudication of the merits of the claims.

6 Rather, at this stage the court must only determine whether the plaintiffs’ claims raise serious

7 issues and if so, whether preliminary relief is warranted to prevent irreparable harm. As

8 demonstrated by plaintiffs, the government’s proposal to disseminate no-match letters

9 affecting more than eight million workers will, under the mandated time line, result in the

10 termination of employment to lawfully employed workers. This is so because, as the

11 government recognizes, the no-match letters are based on SSA records that include numerous

12 errors. Moreover, the threat of criminal prosecution (under the guise of a safe-harbor

13 provision), reinforced by a directive that the employer who receives a no-match letter must

14 follow the safe harbor procedures or expose themselves to criminal and civil liability, reflects

15 a major change in DHS policy. In fact, previous DHS (and INS) guidance recognized that

16 receipt of a no-match letter could not impart criminal liability by itself. No such comfort is

17 afforded in the newly proposed letter. Indeed, the opposite is suggested. While a change in

18 agency policy is not the concern of courts, when there is such a change it must be done in

19 compliance with procedures set forth in the Administrative Procedures Act as well as other

20 Congressional dictates. It is the Court’s view, as set forth below, that DHS has failed to

21 comply with these mandated requirements and, if allowed to proceed, the mailing of no-

22 match letters, accompanied by DHS’s guidance letter, would result in irreparable harm to

23 innocent workers and employers.

24

STANDARD OF REVIEW

25

The standard for evaluating a motion for a preliminary injunction requires this Court

26 to balance the likelihood of success against the hardships to the parties. A preliminary

27 injunction is appropriate when a plaintiff demonstrates either: (1) a likelihood of success on

28 the merits and the possibility of irreparable injury; or (2) that serious questions going to the

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1 merits were raised and the balance of hardships tips sharply in the plaintiff’s favor. See

2 Lands Council v. Martin, 479 F.3d 636, 639 (9th Cir. 2007). These two formulations are not

3 different tests, but merely extremes on a single continuum: “the less certain the district court

4 is of the likelihood of success on the merits, the more plaintiffs must convince the district

5 court that the public interest and balance of hardships tip in their favor.” Sw. Voter

6 Registration Educ. Project v. Shelley, 344 F.3d 914, 918 (9th Cir. 2003) (en banc) (per

7 curiam).

8

Alternatively, the Ninth Circuit has stated the traditional test as requiring a plaintiff to

9 establish “(1) a strong likelihood of success on the merits, (2) the possibility of irreparable

10 injury to plaintiff if preliminary relief is not granted, (3) a balance of hardships favoring the

11 plaintiff, and (4) advancement of the public interest (in certain cases).” Taylor v. Westly,

12 488 F.3d 1197, 1200 (9th Cir. 2007).

13

DISCUSSION

14

Contrary to the government’s argument, this case is justiciable because the plaintiffs

15 have standing and the issues are ripe for review. The plaintiffs have demonstrated that they

16 will be irreparably harmed if DHS is permitted to enforce the new rule. On the other side of

17 the scale, the government would suffer significantly less harm as a result of a delay in the

18 rule’s implementation. Because the balance of harms tips sharply in favor of the plaintiffs, a

19 preliminary injunction is appropriate if the plaintiffs have raised serious questions going to

20 the merits. In this Court’s opinion, granting plaintiffs’ motion is appropriate because they

21 have raised serious questions whether: (1) the rule is arbitrary and capricious because DHS

22 failed to supply a reasoned analysis for the agency’s new position that a no-match letter is

23 sufficient, by itself, to put an employer on notice of an employee’s unauthorized status; (2)

24 DHS exceeded its authority by interpreting IRCA’s anti-discrimination provision; and (3)

25 DHS violated the Regulatory Flexibility Act by not conducting a final flexibility analysis.

26

A. Balance of Hardships

27

The plaintiffs convincingly argue that the balance of hardships tips sharply in their

28 favor because altering the status quo would subject employers to greater compliance costs

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1 and employees to an increased risk of termination, while imposing significantly less burdens

2 on the government.

3

The magnitude of DHS’s safe harbor rule is staggering. If enacted, DHS and SSA

4 will immediately mail no-match packets to 140,000 employers, identifying no-matches for

5 approximately 8 million employees. There can be no doubt that the effects of the rule’s

6 implementation will be severe.

7

Thousands of employers would bear the “significant” expense of complying with the

8 rule’s new 90-day timeframe. See Dickson Decl. ¶ 4. Because there has not been an official

9 timeframe for resolving no-match letters in the past, employers have generally resolved

10 mismatch problems “at their leisure.” See id. ¶ 7. Therefore, many employers who want to

11 take advantage of the safe harbor provision will have to develop costly human resources

12 systems capable of resolving problems within the new time frame. See id. (“[H]uman

13 resources departments will have to put systems into place designed to resolve mismatches

14 with the employee’s cooperation with in the ninety-day window,” which “will take time and

15 money to develop and implement.”).

16

The union plaintiffs have also identified ways in which employees will be irreparably

17 harmed. Kenneth Apfel, ex-Commissioner of the SSA, believes – based on his prior

18 experience at the agency – that “there will be many legally authorized workers who cannot

19 resolve a mismatched earnings report” by the deadline imposed by the new rule. See Apfel

20 Decl. ¶ 17. Because empirical research suggests that mass layoffs often follow receipt of a

21 no-match letter, see Theodore Decl. ¶ 11, there is a strong likelihood that employers may

22 simply fire employees who are unable to resolve the discrepancy within 90 days, even if the

23 employees are actually authorized to work.

24

On the other side of the scale, a preliminary injunction would cause significantly less

25 harm to the government. The government argues that a preliminary injunction would

26 preclude SSA from sending out no-match letters for the 2006 tax year, “and so frustrate the

27 purpose of providing notice to employers that their employees’ social security earnings are

28 not being credited to their accounts.” See Opposition at 54. But the plaintiffs have not

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1 requested a preliminary injunction precluding SSA from sending out its traditional no-match

2 letters for tax purposes, as the agency has for over a decade.

3

The government also asserts that a preliminary injunction would be harmful because

4 any delay in sending out no-match letters might push SSA’s responsibilities over into the

5 agency’s period of peak workload during the months of January-March. See Rust Decl. ¶ 14.

6 However, the SSA has acknowledged that it could remove the DHS insert and related

7 language from its mailing in 30 days. See id. ¶ 8. Thus, even if a preliminary injunction is

8 granted, SSA should be able to coordinate a mailing well before the peak workload season.

9

DHS waited for an entire year after the notice and comment period was closed to

10 promulgate a final rule. While this Court does not doubt the importance of this rule to DHS,

11 the agency’s delay does undercut the assertion that it will be irreparably harmed if the Court

12 maintains the status quo pending a trial on the merits. Because the balance of hardships tips

13 sharply in favor of plaintiffs, the Court reviews plaintiffs’ arguments on the merits with an

14 eye towards whether serious questions are raised.

15

B. Whether the Safe Harbor Rule Contravenes the Governing Statute

16

Plaintiffs argue that the new rule must be invalidated because it is inconsistent with its

17 governing statute, 8 U.S.C. § 1324a. The Administrative Procedure Act authorizes courts to

18 set aside agency actions that are “not in accordance with the law,” or “ in excess of statutory

19 jurisdiction, authority, or limitations, or short of statutory right.” 5 U.S.C. § 7062(A), (C);

20 see also Oregon v. Ashcroft, 368 F.3d 1118, 1129 (9th Cir. 2004) (holding that agency

21 determinations that squarely conflict with governing statutes are not entitled to deference and

22 must be set aside). Plaintiffs argue that DHS’s rule is contrary to § 1324a in three respects:

23 (1) it changes the definition meaning of “knowing” as used in the statute; (2) it is inconsistent

24 with the administrative structure that Congress enacted into law; and (3) it fails to respect the

25 statute’s grandfather clause. For the following reasons, plaintiffs have not raised a serious

26 question whether the safe harbor rule is inconsistent with § 1324a.

27

28

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1

1. Meaning of “Knowing”

2

Section 1324a(a)(2) prohibits an employer from continuing “to employ an alien . . .

3 knowing the alien is (or has become) an unauthorized alien with respect to such

4 employment.” (Emphasis added). In 1989, the Ninth Circuit held that § 1324a(a)(2) is

5 violated when the employer acts either with actual or constructive knowledge. See Mester

6 Mfg. Co. v. INS, 879 F.2d 561 (9th Cir. 1989). The Ninth Circuit rejected the employer’s

7 argument that it did not knowingly continue to employ an illegal alien merely because the

8 employer did not receive positive notice that his employees used false green cards. Id. at

9 566. The court held that it was sufficient for the INS to notify the employer that three

10 employees were suspected of green card fraud and instruct the employer to confirm that

11 suspicion. The court explained that section 1324a’s knowledge requirement is satisfied even

12 where the employer has no “actual specific knowledge of the employee’s unauthorized

13 status” so long as the employer receives “specific information” that the employee “[is] likely

14 to be unauthorized,” and the employer makes no further inquiry. Id. at 567.

15

In New El Rey Sausage Co. v. INS, 925 F.2d 1153 (9th Cir. 1991), the Ninth Circuit

16 again held that a constructive knowledge standard is authorized by § 1324a. See id. at 1157.

17 In New El Rey, the INS had warned an employer that his Forms I-9, or Employer Eligibility

18 Verification forms, contained paperwork deficiencies. See id. at 1154. After identifying

19 particular employees with paperwork problems, the INS sued the employer for continuing to

20 employ the allegedly unauthorized workers. The court held that the employer was on

21 constructive notice because he had been “provided with specific, detailed information”

22 explaining “whom [the INS] considered unauthorized and why,” but failed to acquire some

23 additionally independent corroboration of authorization other than the employees’ self-

24 serving representations. Id. at 1158.

25

Plaintiffs argue that the rule impermissibly alters the meaning of “knowing,” because

26 receipt of a no-match letter does not reasonably inform the employer that the identified

27 employee “[is] likely to be unauthorized.” Mester, 879 F.2d at 567. Accordingly, the

28 employer cannot be said to have been properly put on notice of illegality.

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1

The flaw in plaintiffs’ argument is their assumption that receipt of a no-match letter

2 triggers a finding of constructive knowledge in every instance. In fact, the regulation is

3 written such that whether an employer has constructive knowledge depends “on the totality

4 of relevant circumstances.” See 8 C.F.R. 274a.1(l)(1). Depending on the circumstances, a

5 court may agree with plaintiffs that receipt of a no-match letter has not put an employer on

6 notice that his employee is likely to be unauthorized. But this Court cannot agree with

7 plaintiffs’ fundamental premise that a no-match letter can never trigger constructive

8 knowledge, regardless of the circumstances. Accordingly, there is no serious question

9 whether DHS’s rule improperly alters the meaning of “knowing” as used in § 1324a.

10

2. Conflict with Structure of Verification Process

11

Plaintiffs also believe that the rule is contrary to statute because it sets up a work-

12 authorization reverification system. According to plaintiffs, the rule contravenes the innate

13 structure created by Congress, which limits work eligibility verification to the initial hiring

14 process. See ETSI Pipeline Project v. Missouri, 484 U.S. 495, 517 (1988) (“[T]he Executive

15 Branch is not permitted to administer [a statute] in a manner that is inconsistent with the

16 administrative structure that Congress enacted into law.”).

17

The Ninth Circuit has already rejected the notion that after an employee is hired, “the

18 government has the entire burden of proving or disproving that a person is unauthorized to

19 work.” New El Rey, 925 F.2d at 1158. “IRCA clearly placed part of that burden on

20 employers,” by requiring them to reverify the authorization of their employees when the

21 government provides employers with “specific, detailed information” about the allegedly

22 unauthorized employee. Id. Nothing in DHS’s rule would alter the fundamental structure

23 that Congress approved when it enacted IRCA.

24

3. Grandfather Clause

25

Plaintiffs maintain that the new rule must be set aside because it does not expressly

26 abide by IRCA’s grandfather clause, which precludes application of § 1324a(a)(2) to

27 employees hired before the statute’s enactment. The government concedes that the new rule

28 could not apply to grandfathered employees. See Opposition at 29 n.12. Although DHS

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1 would be wise to demarcate the rule’s temporal boundaries in its guidance letter, plaintiffs

2 have cited to no case law suggesting that the rule is invalid because it does not expressly

3 include a grandfather provision; the rule’s consistency with § 1324a’s grandfather clause is

4 assumed and implicit.

5

C. Whether the Safe Harbor Rule is Arbitrary and Capricious

6

Although the safe harbor rule represents a change in DHS’s historical position that no-

7 match letters cannot, by themselves, put an employer on notice, DHS did not supply a

8 reasoned analysis for the change. Accordingly, plaintiffs have raised a serious question

9 whether the rule is arbitrary and capricious and therefore a violation of the Administrative

10 Procedures Act, 5 U.S.C. § 706(2)(A).

11

1. Change in Position

12

When an agency adopts a rule that changes the agency’s prior position, the agency “is

13 obligated to supply a reasoned analysis for the change.” Motor Vehicle Mfgs. Ass’n v. State

14 Farm Mutual Auto. Ins. Co., 463 U.S. 29, 42 (1983). This Court’s “review under the APA is

15 highly deferential, but agency action is arbitrary and capricious if it departs from agency

16 precedent without explanation. Agencies are free to change course as their expertise and

17 experience may suggest or require, but when they do so they must provide a reasoned

18 analysis indicating that prior policies and standards are being deliberately changed, not

19 casually ignored.” Ramaprakash v. FAA, 346 F.3d 1121, 1124-25 (D.C. Cir. 2003) (internal

20 quotation and citation omitted).

21

From at least 1997 onward, DHS’s predecessor took the position in guidance letters

22 that “notice from the Social Security Administration to an employer notifying it of a

23 discrepancy between wage reporting information and SSA records with respect to an

24 employee does not, by itself, put an employer on notice that the employee is not authorized to

25 work.” RJN Ex. H; see also id. Exh. I (“We would not consider notice of this discrepancy

26 from SSA to an employer by itself to put the employer on notice that the employee is

27 unauthorized to work, or to require reverification of documents or further inquiry as to the

28 employee’s work authorization.”); id. Exh. J (“[T]he receipt of this SSA [no-match] letter by

13

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1 an employer, without more, would not be sufficient to establish constructive knowledge on

2 the part of the employer regarding the employment eligibility of the named employee.”).

3 That position even made its way into the preamble of DHS’s safe harbor rule, wherein DHS

4 assured employers that “an SSA no-match letter by itself does not impart knowledge that the

5 identified employees are unauthorized aliens.” 72 Fed. Reg. 45616.

6

However, at some point in the six pages separating the preamble and the text of the

7 final rule, DHS decided to change course. The final rule provides that constructive

8 knowledge may be inferred if an employer fails to take reasonable steps after receiving

9 nothing more than a no-match letter. See id. at 45623. At oral argument, the government

10 confirmed that under the new rule, receipt of a no-match letter by itself can be sufficient to

11 impart knowledge that the identified employees are unauthorized. The change in position is

12 further reinforced in DHS’s insert, which tells employers that disregarding the no-match

13 letter can lead to civil and criminal sanctions. Nothing in the insert suggests that any

14 evidence of illegality other than receipt of a no-match letter is necessary for liability to be

15 imposed.

16

It is clear to this Court that DHS has changed course. Under the prior regime, receipt

17 of a no-match letter was not, by itself, sufficient to trigger IRCA’s liability under

18 § 1324a(a)(2). DHS’s new position is that an employer who receives a no-match letter can,

19 without any other evidence of illegality, be held liable under the continuing employment

20 provision. Needless to say, this change in position will have massive ramifications for how

21 employers treat the receipt of no-match letters. DHS may well have the authority to change

22 its position, but because DHS did so without a reasoned analysis, there is at least a serious

23 question whether the agency has “casually ignored” prior precedent in violation of the APA.

24

2. Rational Connection

25

An agency action is also arbitrary and capricious if the agency fails to examine the

26 relevant data and articulate a satisfactory explanation for its action including a “rational

27 connection between the facts found and the choice made.” Motor Vehicle Mfgs. Ass’n, 463

28

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1 U.S. at 43. But this Court must “uphold a decision of less than ideal clarity if the agency’s

2 path may reasonably be discerned.” Id. (citation omitted).

3

According to plaintiffs, DHS has failed to articulate a rational connection between the

4 use of no-match letters for immigration purposes and any evidence that no-match letters are

5 reliable indicators of illegality. To be sure, plaintiffs are correct that there are numerous

6 reasons unrelated to illegality that a mismatch might exist, including name change or

7 typographical error. Nonetheless, the agency’s path is reasonably discernable to this Court.

8 As the rule’s preamble explains, “[o]ne potential cause” for an earnings report where the

9 employee name and social security number does not match SSA records “may be the

10 submission of information for an alien who is not authorized to work in the United States and

11 who may be using a false SSN or a SSN assigned to someone else.” See 72 Fed. Reg. at

12 45612. A discrepancy in the SSA database is not a tell-tale sign of ineligibility, but because

13 ineligibility is one reason why discrepancies occur, it is rational for DHS to use no-match

14 letters as an “indicator[] of a potential problem.” See id. at 45622. Accordingly, DHS has

15 sufficiently articulated a rational connection between the facts found and the choice made.

16

D. Ultra Vires Action

17

“It is axiomatic that an administrative agency’s power to promulgate legislative

18 regulations is limited to the authority delegated by Congress.” Bowen v. Georgetown Univ.

19 Hosp., 488 U.S. 204, 208 (1988). Plaintiffs have raised a serious question whether DHS

20 exceeded its authority by interpreting the anti-discrimination provisions of the IRCA.

21

1. DHS’s Interpretation of IRCA’s Anti-Discrimination Provision

22

Concerned that § 1324a’s prohibition on the employment of unauthorized aliens

23 would result in employers discriminating against applicants on the basis of nationality,

24 Congress enacted an anti-discrimination provision that prohibits employers from

25 discriminating against any person “with respect to the hiring, or recruitment or referral for a

26 fee, of the individual for employment or the discharging of the individual from

27 employment--(A) because of such individual’s national origin, or (B) in the case of a

28

15

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1 protected individual . . . because of such individual’s citizenship status.” 8 U.S.C. §

2 1324b(a)(1).

3

The DHS insert provides employers with the reassurance that if they follow the safe

4 harbor provision as set forth in the new rule before terminating an employee, and apply the

5 same procedure to all employees referenced in the mismatch letter, “then that employer will

6 not be subject to suit by the United States under the [IRCA’s] anti-discrimination provision.”

7 Similarly, the final rule states that “employers who follow the safe harbor procedures set

8 forth in this rule uniformly and without regard to perceived national origin or citizenship

9 status as required by the provisions of 274B(a)(6) of the INA will not be found to have

10 engaged in unlawful discrimination.” 72 Fed. Reg. at 45613-14.

11

But Congress delegated to DOJ – through its Office of Special Counsel for

12 Immigration-Related Unfair Employment Practices (Special Counsel) – the responsibility of

13 enforcing the anti-discrimination provisions of § 1324b. See 72 Fed. Reg. at 45614; see also

14 8 U.S.C. § 1324b(c). The government has failed to cite to any authority that enables DHS to

15 make the determination whether to sue an employer for violating IRCA’s anti-discrimination

16 provision. There is therefore a serious question whether DHS has impermissibly exceeded

17 its authority – and encroached on the authority of the Special Counsel – by interpreting

18 IRCA’s anti-discrimination provisions to preclude enforcement where employers follow the

19 safe-harbor framework. See Nat’l Treasury Employees Union v. Chertoff, 452 F.3d 839, 865

20 (D.C. Cir. 2006) (invalidating provision of DHS rule that infringed on another agency’s

21 statutory authority).

22

2. DHS Authority to Prescribe Tax Reporting Obligations

23

Plaintiffs argue that DHS cannot dictate how employers respond to no-match letters

24 because that authority rests with the IRS. To be certain, the IRS has the exclusive authority

25 to sanction employers for failing to comply with the tax code by submitting inaccurate or

26 incomplete tax forms. See 26 U.S.C. § 6721. It does not follow, however, that DHS is

27 precluded from relying on no-match letters as one indicator of possible non-compliance with

28 immigration law. If DHS were attempting to levy sanctions for violations of the tax code,

16

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1 plaintiffs’ argument would have merit. But DHS is authorized to and may punish employers

2 for violating immigration law by knowingly continuing to employ unauthorized employees.

3

3. SSA Authority to Enforce Immigration Law

4

Plaintiffs’ assertion that SSA is exceeding its authority by enforcing immigration laws

5 is also unpersuasive. Although the proposed SSA no-match letter would notify employers

6 that they should follow the instructions contained in DHS’s insert, that reference hardly

7 renders SSA an enforcer of immigration law. Put simply, the SSA does not exceed the

8 bounds of its enabling statute by referring employers to a document produced by another

9 agency.

10

E. Regulatory Flexibility Act

11

The business plaintiffs argue that the safe harbor rule was promulgated in violation of

12 the Regulatory Flexibility Act (RFA) because DHS failed to conduct a final flexibility

13 analysis even though the rule will have a significant impact on small businesses.

14

The RFA requires agencies, when promulgating a final rule, to prepare a regulatory

15 flexibility analysis that describes, among other things, “a summary of the significant issues

16 raised by the public comments in response to the initial regulatory flexibility analysis, a

17 summary of the assessment of the agency of such issues,” and “the steps the agency has

18 taken to minimize the significant economic impact on small entities.” 5 U.S.C. § 604(a).

19

The RFA has an exception, however, that relieves an agency from its obligation to

20 conduct a flexibility analysis if the agency “certifies that the rule will not, if promulgated,

21 have a significant economic impact on a substantial number of small entities.” Id. § 605(b).

22 The certification must include “a statement providing the factual basis for” the agency’s

23 determination that the rule will not significantly impact small entities. See id.

24

When DHS promulgated the rule, it explained that a final regulatory flexibility

25 analysis was not necessary because “[t]he rule does not mandate any new burdens on the

26 employer and does not impose any new or additional costs on the employer, but merely adds

27 specific examples and a description of a ‘safe harbor’ procedure to an existing DHS

28

17

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1 regulation for purposes of enforcing the immigration laws and providing guidance to

2 employers.” 72 Fed. Reg. at 45623.

3

In its briefing to this Court, DHS offered for the first time a new justification for not

4 conducting an RFA analysis: the safe harbor rule is interpretive and therefore the

5 requirements of the RFA do not apply. See Central Texas Telephone Co-op., Inc. v. FCC,

6 402 F.3d 205, 214 (D.C. Cir. 2005) (holding that RFA does not apply to interpretive rules).

7 But “[a]gency decisions must generally be affirmed on the grounds stated in them.” Ass’n of

8 Civilian Technicians v. Fed. Labor Relations Auth., 269 F.3d 1112, 1117 (D.C. Cir. 2001)

9 (citation omitted). “The rule barring consideration of post hoc agency rationalizations

10 operates where an agency has provided a particular justification for a determination at the

11 time the determination is made, but provides a different justification for that same

12 determination when it is later reviewed by another body.” Independence Mining Co., Inc. v.

13 Babbitt, 105 F.3d 502, 511 (9th Cir. 1997) (citation omitted). Here, DHS provided one

14 reason for not conducting a RFA analysis in the rule, and now offers another justification for

15 purposes of litigation. Because post hoc rationalizations provide an inadequate basis for

16 review, it is unlikely that this Court will even be able to consider DHS’s most recent

17 rationale. See Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 419 (1971).2

18

The government must, therefore, defend its decision to not conduct a flexibility

19 analysis on the justification provided in the rule, i.e., because the rule will not have a

20 significant effect on small businesses. Plaintiffs have raised serious doubts about the

21

22

2 If the government’s new rationalization can be considered, then this Court will have to

determine whether the new rule is interpretive and therefore not subject to the RFA’s

23 requirements. It appears at first blush that the government’s position has merit because the safe-

harbor rule does not bear any of the three hallmarks of a legislative rule. See Hemp Industries

24 Ass’n v. Drug Enforcement Admin., 333 F.3d 1082, 1087 (9th Cir. 2003) (identifying three

circumstances in which a rule has the “force of law” and is therefore legislative). First, even

25 absent the safe harbor rule, the Attorney General could bring an enforcement action for

violations of IRCA’s continuing employment provision, see 8 U.S.C. § 1324a(e)(9), on the

26 theory that receipt of a no-match letter constitutes constructive knowledge under a totality of the

circumstances test, see 8 C.F.R. § 274a.1(l)(1). Second, DHS did not expressly invoke its

27 legislative authority. Third, although the safe harbor rule contradicts INS guidance letters on

the effect of receiving no-match letters, the rule “is not inconsistent with any legislative rule.”

28 Oregon v. Ashcroft, 368 F.3d 1118, 1134 (9th Cir. 2004) (emphasis in original).

18

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1 veracity of DHS’s prediction that the safe harbor rule will “not impose any new or additional

2 costs” on employers. Plaintiffs’ declarations establish that small businesses can expect to

3 incur significant costs associated complying with the safe harbor rule. These costs include

4 dedicating human resources staff to track and resolve mismatches within the 90-day

5 timeframe, see Dolibois Decl. ¶ 4, hiring “legal and consultancy services” to help employers

6 comply, see Silvertooth Decl. ¶ 9, and paying for the training of in-house counsel and human

7 resources staff, see id.; Dickson Decl. ¶ 7.

8

DHS’s response that the safe harbor rule will impose no costs because compliance is

9 “voluntary” is wholly unavailing. It is true that the safe harbor rule does not mandate

10 compliance. This Court’s “concern, however, is with the practical effect . . . of the rule, not

11 its formal characteristics.” Chamber of Commerce v. Dep’t of Labor, 174 F.3d 206, 209

12 (D.C. Cir. 1999). Because failure to comply subjects employers to the threat of civil and

13 criminal liability, the regulation is “the practical equivalent of a rule that obliges an employer

14 to comply or to suffer the consequences; the voluntary form of the rule is but a veil for the

15 threat it obscures.” Id. at 210. The rule as good as mandates costly compliance with a new

16 90-day timeframe for resolving mismatches. Accordingly, there are serious questions

17 whether DHS violated the RFA by refusing to conduct a final flexibility analysis.

18

F. Justiciability

19

The government argues that plaintiffs’ motion must be denied because they lack

20 standing to challenge the DHS rule and because plaintiffs’ claims are not ripe. Although

21 justiciability is a threshold matter, this Court finds it helpful to address the issue last because

22 the preceding analysis of the merits demonstrates how the change in policy proposed by DHS

23 would cause immediate injury to employers and employees alike if implemented.

24

1. Standing

25

“An organization may bring an action on behalf of its members if: (1) the individual

26 members would have standing to sue; (2) the organization’s purpose relates to the interests

27 being vindicated; and (3) the claims asserted do not require the participation of individual

28 members.” Save Our Sonoran, Inc. v. Flowers, 408 F.3d 1113, 1119 (9th Cir. 2005).

19

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1 Individual members have standing to sue if they can demonstrate that “that an actual or

2 threatened injury exists, which is fairly traceable to the challenged action, and that such

3 injury is likely to be redressed by a favorable decision.” Id.

4

In order to have standing to seek injunctive relief, a plaintiff must demonstrate a

5 likelihood of repeated injury or future harm to the plaintiff in the absence of the injunction.

6 See City of Los Angeles v. Lyons, 461 U.S. 95, 103 (1982) (describing the standing

7 requirement for injunctive relief as requiring that the “threat to the plaintiffs” of future injury

8 be “sufficiently real and immediate”). The government’s argument that the organizational

9 plaintiffs here have not alleged sufficient facts to demonstrate that any of their members have

10 suffered an actual injury or face an imminent future injury is unpersuasive.

11

The new rule presents employers with the Hobson’s choice of complying with DHS’s

12 “safe harbor” procedures or confronting liability for knowingly employing unauthorized

13 workers. Presented with that choice, it is certain that many employers represented by the

14 organizational plaintiffs will be forced to develop systems for resolving no-match letters

15 within the new 90-day timeframe. Indeed, plaintiffs have submitted declarations

16 demonstrating that some businesses, such as the Chamber of Commerce of the United States

17 of America, already have begun to develop costly programs and systems for ensuring

18 compliance with the safe harbor framework. See Dickson Decl. ¶ 7. Thus, the business

19 plaintiffs have established not only imminent, but actual injury.

20

The union plaintiffs have also demonstrated a likelihood of immediate future harm.

21 Plaintiffs have submitted uncontroverted evidence that DHS’s planned no-match mailing will

22 identify approximately 600,000 members of the AFL-CIO as employees with mismatched

23 names and SSNs. See Reich Decl. ¶ 4. As the SSA itself concedes, the agency will not be

24 able to resolve all mismatches – even if the mismatch is the result of SSA error – within the

25 safe harbor’s 90-day window. See 72 Fed. Reg. at 45617 (acknowledging that the 90-day

26 timeframe may not be sufficient for “difficult” cases). Accordingly, there can be no doubt

27 that at least some of the 600,000 AFL-CIO members who are identified in no-match letters,

28 though authorized, will be fired pursuant to the safe harbor provision because they cannot

20

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United States District Court For the Northern District of California

1 resolve the discrepancy within 90 days. Loss of a job is an economic injury that constitutes

2 injury in fact for standing. See San Diego County Gun Rights Comm. v. Reno, 98 F.3d

3 1121, 1130 (9th Cir. 1996).3

4

The government also argues that the plaintiffs lack standing because they seek a

5 remedy that will not provide them with any effective relief. The government’s argument is

6 based on the fundamental misconception that the business plaintiffs seek relief from the cost

7 of resolving no-match letters under the current regime. To the contrary, the business

8 plaintiffs complain of the costs associated with developing new systems and programs

9 necessary for resolving no-match letters under the safe-harbor rule’s 90-day timeframe. The

10 business plaintiffs have demonstrated redressability because the costs of complying with the

11 DHS rule would disappear if the rule were not implemented.

12

Similarly, the union plaintiffs complain of the economic injury that will result from

13 the new rule’s 90-day timeframe and the rule’s elevation of a no-match letter to a piece of

14 evidence that can, by itself, impute constructive knowledge. If the rule is not implemented,

15 the injuries of which the union plaintiffs complain will also be redressed. Accordingly, the

16 plaintiffs have standing to challenge the safe-harbor rule.

17

2. Ripeness

18

A challenge to an administrative action is ripe when the issues are fit for judicial

19 determination – i.e., because the issues do not require further factual development – and there

20 is a “direct and immediate” risk of hardship to the plaintiff. See Abbott Labs. v. Gardner,

21 387 U.S. 136, 153 (1967). Pursuant to Abbott, the test for ripeness is not whether the

22 agency’s rule has actually been adopted and is seriously meant to be enforced, but whether

23 the threat of its enforcement reasonably affects conduct. See id. (“[W]here a regulation

24 requires an immediate and significant change in the plaintiffs’ conduct of their affairs with

25 serious penalties attached to noncompliance, access to the courts . . . must be permitted,

26 absent a statutory bar or some other unusual circumstance.”).

27
3 The government argues that the threat of termination is too speculative to constitute an 28 injury in fact. Because of the magnitude of the planned no-match mailing – affecting 8 million
workers – the threat of termination is not speculative, but certain.

21

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United States District Court For the Northern District of California

1

Here, the issues are fit for judicial determination because the central questions are

2 primarily legal: whether the DHS rule conflicts with statute, whether the rule is arbitrary and

3 capricious, whether DHS and SSA exceeded their statutory authority, and whether DHS

4 violated the Regulatory Flexibility Act. Moreover, the regulation, if enforced, would require

5 an immediate and significant change in the plaintiffs’ conduct. As noted above, some

6 employers have already begun to change their conduct – by creating new programs to

7 properly implement the safe harbor framework within 90 days – in response to the threat of

8 enforcement. Accordingly, access to the courts must be permitted.

9

CONCLUSION

10

Because the balance of harms tips sharply in favor of plaintiffs and plaintiffs have

11 raised serious questions going to the merits, the motion for a preliminary injunction is

12 GRANTED. The parties shall meet and confer on the form of the injunction, and submit a

13 proposed order by October 12, 2007.

14

IT IS SO ORDERED.

15

16

17 Dated: October 10, 2007 18

CHARLES R. BREYER UNITED STATES DISTRICT JUDGE

19

20

21

22

23

24

25

26

27

28

22

 
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1 Robert P. Charrow (CA SBN 44962)

Laura M. Klaus (DC SBN 294272 (Appearing Pro Hac Vice)

2 Laura Foote Reiff (DC SBN 424579 (Appearing Pro Hac Vice)

GREENBERG TRAURIG, LLP

3 800 Connecticut Avenue, N.W., Ste. 500

Washington, D.C. 20006

4 Telephone: (202) 533-2396

Facsimile: (202) 261-0164

5 Email: charrowr@gtlaw.com

Email: klausl@gtlaw.com

6

William J. Goines (SBN 61290)

7 Karen Rosenthal (SBN 209419)

Cindy Hamilton (SBN 217951)

8 GREENBERG TRAURIG, LLP

1900 University Avenue, Fifth Floor

9 East Palo Alto, CA 94303

Telephone: (650) 328-8500

10 Facsimile: (650) 328-8508

Email: goinesw@gtlaw.com

11

rosenthalk@gtlaw.com

12 Attorneys for Plaintiff-Intervenors

13 UNITED STATES DISTRICT COURT
14 NORTHERN DISTRICT OF CALIFORNIA
15

16 AMERICAN FEDERATION OF LABOR AND CONGRESS OF INDUSTRIAL

Case No. C07-04472 CRB

17 ORGANIZATIONS; SAN FRANCISCO LABOR

COUNCIL; SAN FRANCISCO BUILDING AND

18 CONSTRUCTION TRADES COUNCIL; and

CENTRAL LABOR COUNCIL OF ALAMEDA

19 COUNTY,

FIRST AMENDED COMPLAINT IN

20

Plaintiffs,

INTERVENTION OF PLAINTIFFINTERVENORS SAN FRANCISCO

21 and
22

CHAMBER OF COMMERCE, CHAMBER OF COMMERCE OF THE UNITED STATES OF AMERICA , GOLDEN GATE RESTAURANT

23

ASSOCIATION, NATIONAL ROOFING CONTRACTORS ASSOCIATION,

24

AMERICAN NURSERY & LANDSCAPE ASSOCIATION, INTERNATIONAL

25

FRANCHISE ASSOCIATION, UNITED FRESH PRODUCE ASSOCIATION, AND

26

CALIFORNIA LANDSCAPE CONTRACTORS ASSOCIATION, INC.

27

28

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1
SAN FRANCISCO CHAMBER OF 2 COMMERCE, CHAMBER OF COMMERCE OF
THE UNITED STATES OF AMERICA , 3 GOLDEN GATE RESTAURANT
ASSOCIATION, NATIONAL ROOFING 4 CONTRACTORS ASSOCIATION, AMERICAN
NURSERY & LANDSCAPE ASSOCIATION, 5 INTERNATIONAL FRANCHISE
ASSOCIATION, UNITED FRESH PRODUCE 6 ASSOCIATION, and CALIFORNIA
LANDSCAPE CONTRACTORS 7 ASSOCIATION, INC.

8

Plaintiff-Intervenors,

9

and

10

UNITED FOOD AND COMMERCIAL WORKERS INTERNATIONAL UNION, et al.

11

Plaintiff-Iintervenors,

12

v.

13 MICHAEL CHERTOFF, Secretary of Homeland

14

Security; DEPARTMENT OF HOMELAND SECURITY;

15

JULIE MYERS, Assistant Secretary of Homeland Security; U.S. IMMIGRATION AND CUSTOMS

16

ENFORCEMENT; MICHAEL ASTRUE, Commissioner of Social Security; and SOCIAL

17 SECURITY ADMINISTRATION,

18

Defendants.

19

20

I. PRELIMINARY STATEMENT

21

1. On August 15, 2007, the Secretary of Homeland Security issued a Final Rule that

22 sought to change the nation’s human resource practices for all American businesses large and small.

23 The Final Rule, which was to become effective on September 14, 2007, would require businesses to

24 resolve so-called “no-match” letters from the Social Security Administration in 30 days, and if unable

25 to do so, then employees are given an additional 63 days to do so or risk termination. The Secretary

26 had announced that starting on September 4, “no-match” letters identifying approximately 8,000,000

27 employees would be sent by the Social Security Administration to 140,000 employers nation-wide.

28 A “no-match” occurs whenever there is a discrepancy between an employee’s name and Social

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1 Security Number (“SSN”) in the Social Security Administration (“SSA”) database. SSA, though, has

2 acknowledged that its database contains more than 17 million so-called no-matches. Many are due to

3 benign causes such as a change of name following marriage, a clerical error by the employee,

4 employer or SSA, use of multiple surnames, varied naming conventions or other reasons having

5 nothing to do with an employee’s immigration status. Given that the correlation between an

6 employee’s immigration status and an employer’s receipt of a no-match letter for that employee is

7 unknown or low, using the no-match letter as a tool to enforce immigration laws is wasteful, costly to

8 the business community, and an awkward attempt by the Department of Homeland Security (“DHS”)

9 to commandeer the Social Security retirement and disability systems to enforce the nation’s

10 immigration laws, all at the expense of innocent employers and employees.

11

2. The Secretary certified that this regulation, affecting virtually every business in the

12 United States, “would not have a significant economic impact on a substantial number of small

13 entities,” including the nation’s 5,300 hospitals, more than 2,000 colleges and universities, and nearly

14 900,000 small business restaurants employing more than 11 million workers. 72 Fed. Reg. 45611,

15 45623 (Aug. 15, 2007). Accordingly, the Secretary refused to conduct a regulatory flexibility

16 analysis, as required by the Regulatory Flexibility Act. See 5 U.S.C. § 601 et seq. This lawsuit seeks

17 an order declaring that the Final Rule is invalid (i) for want of a regulatory flexibility analysis, (ii) for

18 want of statutory authorization, (iii) for want of evidence in the preamble to the proposed or final rule

19 that a no-match letter reliably indicates an employee’s immigration status, and vacating the Final

20 Rule and enjoining its enforcement as detailed below.

21

II. JURISDICTION AND VENUE

22

3. This court has subject matter jurisdiction over this action pursuant to:

23

a. 28 U.S.C. § 1331, which confers original jurisdiction over all civil suits arising

24 under the Constitution and the laws of the United States, and 28 U.S.C. § 2201 (authorizing

25 declaratory relief), 5 U.S.C. § 601 et seq. (Regulatory Flexibility Act), and 5 U.S.C. § 701 et seq.

26 (judicial review provisions of the Administrative Procedure Act).

27

b. Venue is proper pursuant to 28 U.S.C. § 1391(e).

28 //

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1

III. VENUE AND INTRA-DISTRICT ASSIGNMENT

2

4. Venue is proper in this Court pursuant to 28 U.S.C. §1391(e) because Plaintiff-

3 Intervenors San Francisco Chamber of Commerce and Golden Gate Restaurant Association reside in

4 this judicial district.

5

5. Pursuant to Local Rule 3-2(d), an intra-district assignment to the San Francisco or

6 Oakland Division is proper because a substantial part of the events giving rise to the claims in this

7 action will occur in the County of San Francisco. Plaintiff-Intervenors San Francisco Chamber of

8 Commerce and Golden Gate Restaurant Association reside in the City and County of San Francisco,

9 and Defendant Social Security Administration maintains a Regional Office in San Francisco.

10

IV. PARTIES

11 A. Plaintiff-Intervenors

12

6. Plaintiff-Intervenor San Francisco Chamber of Commerce (“San Francisco Chamber”)

13 is a not-for-profit membership corporation organized under the laws of the State of California and

14 headquartered in San Francisco. The San Francisco Chamber is a small entity within the meaning of

15 the Regulatory Flexibility Act and is both an employer and a membership organization. The San

16 Francisco Chamber has approximately 2,000 members, more than 80% of which are small businesses

17 within the meaning of section 3 of the Small Business Act, most of which are headquartered in the

18 Northern District of California. Many of the small businesses would receive no-match letters from

19 SSA in the event that the Final Rule at issue in this case was to become effective. Indeed, for many

20 of its small business members, the likelihood of receiving such letter exceeds 90%. The San

21 Francisco Chamber understands that the financial costs associated with resolving no-match letters are

22 substantial and not necessarily linear. Those costs involve overtime for those in human resources,

23 lost productivity for those employees named in such letters, and increased unemployment insurance

24 premiums in the event that the employees who are unable to resolve a no-match within the requisite

25 period are terminated. Based on the San Francisco Chamber’s experience, it is highly unlikely that

26 SSA would be able to resolve the more than 8 million no-matches within the time contemplated by

27 the Final Rule. The San Francisco Chamber and its members will be imminently and irreparably

28 harmed if the Final Rule was to go into effect. The San Francisco Chamber is bringing this suit both

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1 on its behalf as a small entity employer and on behalf of its members many of which will also receive

2 such letters.

3

7. Plaintiff-Intervenor Chamber of Commerce of the United States of America

4 (“Chamber of Commerce”) is a not-for-profit membership corporation headquartered in Washington,

5 D.C. and employing more than 500 individuals. The Chamber of Commerce is the world’s largest

6 business federation with an underlying membership of more than 3 million businesses of all sizes,

7 sectors, and regions. The Chamber of Commerce is a small organization within the meaning of the

8 Regulatory Flexibility Act and more than 96% of its members are small businesses as that term is

9 defined in section three of the Small Business Act. Based on the Chamber’s experience as an

10 employer it is highly unlikely that SSA would be able to resolve the more than 8 million no-matches

11 within the time contemplated by the Final Rule. The Chamber and its members will be imminently

12 and irreparably harmed if the Final Rule was to go into effect. The Chamber is bringing this suit both

13 on behalf of itself as a small entity employer which is apt to receive a no-match letter and on behalf

14 of its members many of which will also receive such letters.

15

8. Plaintiff-Intervenor Golden Gate Restaurant Association (“GGRA”) is a not-for-profit

16 membership corporation headquartered in San Francisco. GGRA has more than 800 restaurant

17 members throughout the Northern District of California; many of those members have received no-

18 match letters in the past and fully expect to receive them in the future. GGRA is a small organization

19 within the meaning of the Regulatory Flexibility Act and most of its members are small businesses

20 within the meaning of section 3 of the Small Business Act. Based on GGRA’s experience as an

21 employer, it is highly unlikely that SSA would be able to resolve the more than 8 million no-matches

22 within the time contemplated by the Final Rule. GGRA and its members will be imminently and

23 irreparably harmed if the Final Rule was to go into effect. GGRA is bringing this suit both on its

24 behalf as a small entity employer and on behalf of its members many of which will receive no-match

25 letters.

26

9. Plaintiff-Intervenor National Roofing Contractors Association (“NRCA”) is a not-for-

27 profit membership organization headquartered in Rosemont, Illinois and employing more than 70

28 individuals. The NRCA is a small organization within the meaning of the Regulatory Flexibility Act

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1 and more than 95% of its 4,200 members are small businesses within the meaning of section 3 of the

2 Small Business Act. More than 30 of its small business members are headquartered in this District.

3 The financial costs for NRCA and its members to resolve no-match letters are substantial and not

4 necessarily linear. Those costs involve overtime for those in human resources, lost productivity for

5 those employees named in such letters, increased unemployment insurance premiums in the event

6 that the employees who are unable to resolve a no-match letter within the requisite period and are

7 terminated. Based on NRCA’s experience as an employer, it is highly unlikely that SSA would be

8 able to resolve the more than 8 million no-matches within the time contemplated by the Final Rule.

9 NCRA and its members will be imminently and irreparably harmed if the Final Rule was to go into

10 effect. NRCA is bringing this suit both on behalf of itself as a small entity employer which is apt to

11 receive a no-match letter and on behalf of its members, many of which will also receive such letters.

12

10. Plaintiff-Intervenor United Fresh Produce Association (“United Fresh ”) is a not-for-

13 profit membership organization headquartered in Washington, D.C. United Fresh has more than 290

14 small business members; many of those members have received no-match letters in the past and fully

15 expect to receive them in the future. United Fresh is a small organization within the meaning of the

16 Regulatory Flexibility Act and most of its business members are small businesses within the meaning

17 of section 3 of the Small Business Act. Based on United Fresh’s experience as an employer, it is

18 highly unlikely that SSA would be able to resolve the more than 8 million no-matches within the time

19 contemplated by the Final Rule. United Fresh and its members will be imminently and irreparably

20 harmed if the Final Rule was to go into effect. United Fresh is bringing this suit both on its behalf as

21 a small entity employer and on behalf of its members many of which will receive no-match letters.

22

11. Plaintiff-Intervenor American Nursery & Landscape Association (“ANLA”) is a not-

23 for-profit membership corporation headquartered in Washington, D.C. ANLA has more than 2,000

24 members, 98% of which are small businesses; many of those members have received no-match letters

25 in the past and fully expect to receive them in the future. ANLA is a small organization within the

26 meaning of the Regulatory Flexibility Act and most of its members are small businesses within the

27 meaning of section 3 of the Small Business Act. Based on ANLA’s experience as an employer, it is

28 highly unlikely that SSA would be able to resolve the more than 8 million no-matches within the time

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1 contemplated by the Final Rule. ANLA and its members will be imminently and irreparably harmed

2 if the Final Rule was to go into effect. ANLA is bringing this suit both on its behalf as a small entity

3 employer and on behalf of its members many of which will receive no-match letters.

4

12. Plaintiff-Intervenor International Franchise Association (“IFA”) is a not-for-profit

5 membership corporation headquartered in Washington, D.C. IFA has more than 11,000 members,

6 including 1,200 franchisor members, 10,000 franchisee members and 400 supplier members.

7 Approximately half of IFA’s franchisor members and virtually all of its franchisee members are small

8 businesses; many of those members have received no-match letters in the past and fully expect to

9 receive them in the future. IFA is a small organization within the meaning of the Regulatory

10 Flexibility Act and many of its members are small businesses within the meaning of section 3 of the

11 Small Business Act. Based on IFA’s experience as an employer, it is highly unlikely that SSA would

12 be able to resolve the more than 8 million no-matches within the time contemplated by the Final

13 Rule. IFA and its members will be imminently and irreparably harmed if the Final Rule was to go

14 into effect. IFA is bringing this suit both on its behalf as a small entity employer and on behalf of its

15 members many of which will receive no-match letters.

16

13. Plaintiff-Intervenor California Landscape Contractors Association, Inc. (“CLCA”) is a

17 not-for-profit membership corporation organized under the laws of the State of California with

18 chapters located in this District. CLCA is a small entity within the meaning of the Regulatory

19 Flexibility Act and is both an employer and a membership organization. CLCA has approximately

20 2,800 companies in its membership, including 2150 state-licensed landscape contractors and 400

21 companies that provide supplies to these contractors. The overwhelming majority of CLCA’s

22 members are small businesses within the meaning of section 3 of the Small Business Act. They are

23 headquartered throughout the state of California, including the Northern District of California. Many

24 of these small businesses have received and will receive no-match letters from SSA in the event that

25 the Final Rule at issue in this case were to become effective. CLCA understands that the financial

26 costs associated with resolving no-match letters are substantial and not necessarily linear. Those

27 costs involve overtime for those in human resources, lost productivity for those employees named in

28 such letters, and increased unemployment insurance premiums in the event that the employees who

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1 are unable to resolve a no-match within the requisite period are terminated. Based on CLCA’s

2 experience, it is highly unlikely that SSA would be able to resolve the more than 8 million no-

3 matches within the time contemplated by the Final Rule. CLCA and its members will be imminently

4 and irreparably harmed if the Final Rule were to go into effect. CLCA is bringing this suit on behalf

5 of itself as a small entity employer and on behalf of its members, many of which have received and

6 will receive such letters.

7 B. Defendants

8

14. Defendant Department of Homeland Security is the federal agency charged with, inter

9 alia, the administration and enforcement of federal immigration laws. DHS promulgated the rule

10 entitled “Safe Harbor Procedures for Employers That Receive a No Match Letter,” 72 Fed. Reg.

11 45611 (Aug. 15, 2007), that is challenged in this litigation.

12

15. Defendant U.S. Immigration and Customs Enforcement (“ICE”) is a federal agency

13 within DHS responsible for investigating and enforcing immigration laws, including 8 U.S.C. §

14 1324a. DHS and ICE created the Guidance Letter regarding the DHS Final Rule that SSA intends to

15 send to employers along with its “no-match” letters.

16

16. Defendant Michael Chertoff is the Secretary of Homeland Security (“Secretary”), the

17 agency responsible for having issuing the regulation at issue and the agency that will implement the

18 regulation at issue. Defendant Chertoff is being sued in his official capacity only.

19

17. Defendant Julie Myers is the Assistant Secretary of Homeland Security for ICE, the

20 agency within the Department of Homeland Security (“DHS”) directly responsible for implementing,

21 investigating and enforcing immigration laws, including the no-match letters and Final Rule.

22 Defendant Myers is being sued in her official capacity only.

23

18. Defendant Social Security Administration is a federal agency charged with

24 administration of the Social Security Act, and with processing information to administer Social

25 Security programs. Defendant SSA maintains databases of employee information and periodically

26 generates “no-match” letters to employers that submit Forms W-2 to report employee earnings if

27 employee names and SSNs do not match SSA records. See Social Security Act § 232, 42 U.S.C. §

28

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1 432; 20 C.F.R. § 422.120. Beginning on September 4, 2007, Defendant SSA intended to send the

2 DHS/ICE Guidance Letter to employers along with its “no-match” letters.

3

19. Defendant Michael Astrue is the Commissioner of Social Security and is responsible

4 for all programs administered by SSA. He is sued in his official capacity.

5

V. BACKGROUND

6 A. Social Security Administration “No Match” Letters

7

20. The Social Security Act of 1935 authorizes SSA to establish a record-keeping system

8 to manage the Social Security program. Congress also granted SSA authority to process tax

9 information for purposes of administering the Social Security program, as a specific exception to the

10 exclusive tax authority of the Internal Revenue Service (“IRS”). See 26 U.S.C. § 6103(l)(5); SSA §

11 232, 42 U.S.C. § 432. Pursuant to that delegation of authority, the IRS and SSA created a joint

12 system for the processing of Forms W-2 called the Combined Annual Wage Reporting System

13 (“CAWR”). See 43 Fed. Reg. 60158 (Dec. 26, 1978) (codified at 26 C.F.R. § 31.6051).

14

21. Under the CAWR, employers annually report employee earnings using Forms W-2,

15 and SSA posts those earnings to individual employees’ Social Security records so employees will

16 receive credit for those earnings when they apply for Social Security benefits--either retirement or

17 disability. SSA then forwards the Forms W-2 to the IRS.

18

22. If SSA cannot match the name and Social Security Number (“SSN”) on a Form W-2

19 with SSA’s records, SSA places the earnings report in its Earnings Suspense File. See 20 C.F.R §

20 422.120. The earnings remain in the Earnings Suspense File until SSA can link them to a name and

21 SSN.

22

23. Every year, SSA receives millions of earnings reports that the SSA cannot match with

23 its records. The Earnings Suspense File is a huge database that contains more than 255 million

24 unmatched earnings records and that is growing at the rate of 8 to 11 million unmatched records per

25 year. About four percent of annual Form W-2 earnings reports are placed in the SSA’s Earnings

26 Suspense File.

27

24. SSA records are mismatched for many unrelated to immigration status including: (a)

28 clerical errors by either an employer or SSA in spelling an employee’s name or recording the SSN,

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1 (b) SSA’s issuance of duplicate SSNs or re-issuance of SSNs of deceased individuals, (c) employee

2 name changes after marriage or divorce, (d) employees that use a less “foreign” sounding first name

3 for work purposes, and (e) different naming conventions (such as the use of multiple surnames) that

4 are commonplace in many parts of the world, particularly in some Latin American and Asian

5 countries.

6

25. The most recent Government Accountability Office (“GAO”) report on the SSA’s

7 Earnings Suspense File concluded that the file “[c]ontains information about many U.S. citizens as

8 well as non-citizens” and that “the overall percentage of unauthorized workers is unknown.” GAO-

9 06-814R, at 8 (emphasis added). When SSA ultimately has been able to resolve data discrepancies,

10 “most . . . belong to U.S.-born citizens, not to unauthorized workers,” which GAO concluded “is an

11 indication that a significant number of earnings reports in the [Earnings Suspense File] belong to U.S.

12 Citizens and work-authorized noncitizens.” Id.

13

26. As part of its administration of the Social Security program, SSA periodically sends

14 out letters, commonly known as “no-match” letters, informing employers that SSNs and employee

15 names reported on Forms W-2 did not match SSA’s records. See 20 C.F.R. § 422.120.

16

27. SSA no-match letters are purely advisory. SSA has no authority to sanction

17 employers that fail to respond to no-match letters.

18

28. Pursuant to its regulations, SSA notifies the IRS of incomplete or inaccurate earnings

19 reports. See 20 C.F.R. § 422.120. In 1986, Congress authorized IRS to impose sanctions on

20 employers that submit false or inaccurate tax information. See 26 U.S.C. § 6721; see also 26 C.F.R.

21 § 301.6721-1. Under IRS regulations, an employer is not subject to sanction if the employer

22 accurately and in good faith transmits the name and SSN provided by an employee. See 26 U.S.C. §

23 6724(a); 26 C.F.R. § 301.6724-1. Insofar as the Internal Revenue Code is concerned, a reasonable

24 employer’s response to a no-match letter is to confirm that the employer is accurately transmitting the

25 name and SSN provided by the employee and to advise the employee that SSA is reporting a no-

26 match. Id.

27

29. SSA is not an immigration agency and does not know whether a particular SSN listed

28 in a no-match letter relates to unauthorized work. SSA also is prohibited by tax privacy statutes

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1 from sharing the information in the Earnings Suspense File with the DHS. Until now, SSA’s no-

2 match letters explained to employers: “This letter does not imply that you or your employee

3 intentionally gave the government wrong information” and “makes no statement regarding an

4 employee’s immigration status.” Until now, the SSA has never included information from an

5 immigration-enforcement agency with its no-match letters.

6 B. Employer Verification of Work Authorization and Employer Sanctions

7

30. The Immigration Reform and Control Act of 1986 (“IRCA”) made it unlawful for

8 employers to “to hire . . . for employment in the United States an alien knowing the alien is an

9 unauthorized alien.” 8 U.S.C. § 1324a(a)(1)(A) (emphasis added).

10

31. IRCA also separately made it unlawful for employers to hire without complying with

11 an initial verification process established by Congress. See 8 U.S.C. § 1324a(a)(1)(B). That

12 verification process requires the employee to present the employer with documents to show proof of

13 identity and work authorization and requires the employer and employee to complete an I-9

14 verification form. See 8 U.S.C. § 1324a(b); 8 C.F.R. § 274a.2. To satisfy the I-9 requirements,

15 Plaintiffs require all prospective employees to provide documentation proving identity and

16 demonstrating that the employee is authorized to work in the United States. Thus, prospective

17 employees provide various documents including United States passports, alien registration cards (i.e.,

18 Green Card), and Employee Authorization Documents issued by the DHS permitting the individual to

19 work in the United States.

20

32. IRCA also makes it unlawful for an employer “to continue to employ an alien . . .

21 knowing the alien is (or has become) an unauthorized alien with respect to such employment.” 8

22 U.S.C. § 1324a(a)(2) (emphasis added).

23

33. IRCA specifically exempted employees hired before IRCA’s enactment on November

24 6, 1986, from the hiring prohibition and the verification process. Pub. L. No. 99-603 § 101(a)(3), 100

25 Stat. 3359 (1986) (codified at 8 U.S.C. § 1324a note).

26

34. Employers that violate IRCA are subject to civil and criminal liability. See 8 U.S.C. §

27 1324a(e)(4)-(5), (f).

28

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1

35. At the same time that Congress imposed employer sanctions, Congress also wanted to

2 prevent employer discrimination based on national origin or citizenship status. IRCA therefore

3 makes it illegal for employers to discriminate based on national origin or citizenship status, including

4 by requesting “more or different documents than are required” for the initial I-9 verification or

5 “refusing to honor documents . . . that on their face reasonably appear to be genuine.” 8 U.S.C. §

6 1324b(a)(1), (6).

7

36. Congress intentionally did not impose in IRCA any employment authorization

8 verification for existing employees. Congress also chose not to impose ongoing re-verification

9 requirements after the initial hire unless documents evidencing temporary work authorization are

10 time limited.

11 C. New Department of Homeland Security Rule

12

37. Until now, neither DHS nor its predecessor immigration-enforcement agencies had

13 taken the position that an employer’s failure to make further inquiries into the work-authorization

14 status of an employee subject to an SSA no-match letter meant that the employer had actual

15 knowledge that it was employing an unauthorized worker. The Immigration and Naturalization

16 Service had recognized that no-match discrepancies occur for many innocent reasons and therefore

17 consistently advised employers in opinion letters that “[w]e would not consider notice of this

18 discrepancy from SSA to an employer by itself to put the employer on notice that the employee is

19 unauthorized to work.” The most recent SSA letter on the materiality of a no-match letter states as

20 follows: “This notice also specifically cautions employers that these letters . . . do not make any

21 statement about an employee's immigration status[.]”

22 <http://www.ssa.gov/legislation/nomatch2.htm> (last viewed Sept. 6, 2007).

23

38. On June 14, 2006, Defendant Chertoff issued a notice of proposed rulemaking

24 soliciting public comments on his proposal to use the Social Security database, and, in particular,

25 SSA no-match letters as vehicle for enforcing the immigration laws. See 71 Fed. Reg. 34281 (June

26 14, 2006). The preamble concluded, in part, as follows:

27 //

28 //

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1

The Secretary of Homeland Security, in accordance with the Regulatory Flexibility

Act, 5 U.S.C. 605(b), has reviewed this regulation and, by approving it, certifies that

2

this rule would not have a significant economic impact on a substantial number of

3

small entities. This rule would not affect small entities as that term is defined in 5 U.S.C. 601(6). Id. at 34284.

4

5

39. As result, the Secretary did not conduct a Regulatory Flexibility Act analysis.

6

40. More than 5,000 comments were received by DHS during the 60-day comment period,

7 including comments that disputed DHS’ authority to adopt the rule, and DHS’ assertion that the rule

8 “would not affect small entities.” Plaintiff-Intervenors or coalitions of which they are members were

9 among those that submitted comments objecting to the rule. The comment period closed on

10 August 14, 2006.

11

41. Shortly after Congress left for recess without enacting immigration reform legislation

12 urged by DHS, the agency issued its final rule on August 15, 2007 (hereinafter, the “DHS Final

13 Rule”). See 72 Fed. Reg. 45611 (Aug. 15, 2007). The DHS Final Rule is entitled “Safe-Harbor

14 Procedures for Employers Who Receive a No-Match Letter.” The DHS Final Rule was to become

15 legally effective on September 14, 2007.

16

42. The DHS Final Rule will amend the definition of “knowing” in 8 C.F.R. §

17 274a.1(l)(1), the regulatory subsection that defines the term “knowing” for purposes of IRCA. The

18 amended regulation will list, as an example of an employer that has “constructive knowledge” that an

19 employee is an “unauthorized alien,” an employer that receives a SSA no-match letter and then “fails

20 to take reasonable steps.” The first part of the amended regulation will provide:

21

(1)(1) The term knowing includes having actual or constructive knowledge. . . .

Examples of situations where the employer may, depending upon the totality

22

of the relevant circumstances, have constructive knowledge that an employee

is an unauthorized alien include, but are not limited to, situations where the

23

employer:

. . . .

24

(iii) Fails to take reasonable steps after receiving information

indicating that the employee may be an alien who is not employment

25

authorized, such as –

. . . .

26

(B) Written notice to the employer from the Social Security

Administration reporting earnings on a Form W-2 that employees’

27

names and corresponding social security account numbers fail to match

Social Security Administration records . . . .

28

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1

43. Having created a threat of IRCA liability for employers receiving SSA no-match

2 letters, the DHS Final Rule then offers employers a “safe harbor.” An employer receiving a SSA no-

3 match letter “will be considered by the Department of Homeland Security to have taken reasonable

4 steps – and receipt of the written notice will therefore not be used as evidence of constructive

5 knowledge – if the employer” takes the actions specified by DHS. These are “the only combination

6 of steps that will guarantee that DHS will not use the employer’s receipt of the notices from SSA . . .

7 as evidence of constructive knowledge that an employee is an unauthorized alien.” 72 Fed. Reg. at

8 45618.

9

44. To qualify for the DHS “safe harbor,” an employer that determines the SSA no-match

10 was not the result of its own clerical error (which must be done in 30 days) must instruct the

11 employee who claims that the name and SSN are correct to resolve the discrepancy with SSA within

12 90 days of receipt of the no-match letter. If the employee is unable to resolve the discrepancy with

13 SSA within 90 days, the employer cannot continue to employ the individual unless the individual can

14 complete within three days a new employment eligibility verification, on a new I-9 form, using only

15 documents that contain photo identification and no documents that contain the disputed SSN, even if

16 the employee still insists the SSN is correct. If employees insist that their names and SSNs on their

17 identification documents are correct but have not resolved the discrepancy with SSA by the deadline,

18 or cannot produce the required additional photo identification, the employer would have to fire them

19 in order to be afforded the “safe harbor.”

20 D. Implementation of the DHS Final Rule by DHS and SSA

21

45. On September 4, 2007, DHS and SSA intended to begin sending employers no-match

22 letters that will be accompanied by a letter from DHS and ICE (hereinafter the “DHS/ICE Guidance

23 Letter”). This Court’s Temporary Restraining Order of August 31, 2007, temporarily precluded the

24 issuance of those letters. The DHS/ICE Guidance Letter states that it will “provide guidance on how

25 to respond to the enclosed letter from the Social Security Administration (SSA) . . . in a manner that

26 is consistent with your obligations under United States Immigration Laws.”

27

46. The DHS/ICE Guidance Letter contains questions and answers, which begin with the

28 following:

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1

Q: Can I simply disregard the letter from SSA?

A: No. You have received official notification of a problem that may have

2

significant legal consequences for your employees. If you elect to disregard the notice

you have received and it is determined that some employees listed in the enclosed

3

letter were not authorized to work, the Department of Homeland Security (DHS) could

determine that you have violated the law by knowingly continuing to employ

4

unauthorized persons. This could lead to civil and criminal sanctions.

5

47. After threatening employers with civil and criminal liability, the DHS/ICE Guidance

6 Letter then asks: “Q: What should I do?” and responds that “You should” follow the steps set out

7 in the DHS Final Rule.

8

48. The DHS/ICE Guidance Letter assures employers that, if they follow those procedures

9 for every no-match, they will not be liable for discrimination if they terminate employees:

10

Q: Will I be liable for discrimination charges brought by the United States if

I terminate the employee after I follow the steps outlined above?

11

A: No. . . . .”

12

13

49. The DHS/ICE Guidance Letter conveniently ignores those Civil Rights laws

14 administered by other federal agencies, by the States, or by private interests, such as Title VII of the

15 Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., Ku Klux Klan Act of 1867, 42 U.S.C. §§ 1981,

16 1988, California Anti-Discrimination Laws, all of which would be potentially implicated were an

17 employer to terminate employees solely because of the Final Rule or because of the Final Rule as

18 implemented by the Guidance Letter.

19

50. SSA has revised its no-match letters so that they direct employers to follow the

20 instructions in the accompanying DHS/ICE Guidance Letter.

21

51. SSA and DHS intended to commence sending the revised no-match letters and the

22 DHS/ICE Guidance Letter to employers on September 4, 2007. Between September 4, 2007 and

23 November 9, 2007, the SSA expected to mail no-match letters to approximately 140,000 employers

24 around the country. Each letter will list at least 10 mismatched SSNs and some letters will list 500 or

25 more. Approximately 8.7 million employees will be affected by this initial wave of mailings.

26

52. SSA will continue to mail additional batches of no-match letters after November 9,

27 2007, to hundreds of thousands of other employers.

28 //

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1 E. Effect of Implementation of the New DHS Final Rule

2

53. Implementation of the DHS Final Rule following the expiration of this Court’s TRO

3 will immediately impose new obligations in violation of law on every employer governed by IRCA.

4

54. The imminent SSA mailing will immediately impose substantial administrative costs

5 on at least 140,000 employers, including Plaintiff-Intervenors and their members, and additional

6 employers will be affected as SSA continues in the future to send out no-match letters accompanied

7 by the DHS/ICE Guidance Letter. Given that the initial DHS/SSA mailing would cover

8 approximately 8.7 million SSNs, the cost to resolve those will easily exceed $100 million and there is

9 no assurance that they could be resolved within the regulatory period. Indeed, there is no evidence

10 whatsoever in the administrative record to suggest that the so-called “safe harbor” window can be

11 achieved, especially when SSA will be flooded with such requests.

12

55. A substantial portion of the several million no-match SSNs that are listed in the initial

13 round of SSA no-match letters will relate to U.S. citizens or non-citizens lawfully entitled to work. A

14 substantial number of these United States citizen no-matches are employed by Plaintiff-Intervenors

15 and their small business members.

16

56. As a result of implementation of the DHS Final Rule, including the DHS/ICE

17 Guidance Letter, Plaintiff-Intervenors and their members will immediately be forced to spend time

18 and effort to resolve SSA data discrepancies, including taking time to visit SSA field offices that are

19 open only during business hours and that will be overwhelmed with similar requests from other

20 employers and employees.

21

57. Many individuals lawfully employed by the Plaintiff-Intervenors and their small

22 business members will be unable to resolve data discrepancies with the SSA bureaucracy within the

23 90-day deadline set out in the DHS Final Rule; those employees risk termination even though they

24 are United States Citizens or lawful immigrants. SSA already has told DHS that in “difficult cases,”

25 SSA may be unable to resolve discrepancies within the 90-day timeframe. Despite all these costs, the

26 majority of which will be borne by “small entities,” as that term is defined in the Regulatory

27 Flexibility Act, the Secretary, in issuing the Final Rule, certified, without any factual basis, that the

28 Final Rule “would not have a significant economic impact on a substantial number of small entities.”

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1 72 Fed. Reg. 45611, 45623 (Aug. 15, 2007). Accordingly, the Secretary did not conduct an initial

2 regulatory flexibility analysis or a final regulatory flexibility analysis or comply with any other

3 requirement of the Regulatory Flexibility Act.

4

VI. CLAIMS

5

FIRST CAUSE OF ACTION

Failure to Perform a Regulatory Flexibility Analysis

6

(5 U.S.C. § 601 et seq.)

7

58. Plaintiffs incorporate by reference the allegations set forth in ¶¶ 1 –56, above.

8

59. The Final Rule will have a significant economic impact on a substantial number of

9 small entities, including Plaintiff-Intervenors and their small business members. Most small business

10 employers will have to devote substantial additional resources toward complying with the Final Rule,

11 and some will lose employees who are otherwise qualified and lawful residents of the United States

12 merely because SSA is unable to resolve discrepancies in their database within the requisite timer

13 period. The loss of otherwise qualified and lawful employees will impede productivity and

14 profitability and interfere with normal and lawful business operations. On information and belief, the

15 economic impact on small entities will easily exceed $100 million per annum.

16

60. Despite the Final Rule’s significant economic impact on small entities, the Secretary

17 failed to undertake a regulatory flexibility analysis, as required by law. Instead, the Secretary

18 certified, without providing a factual basis as required by the Regulatory Flexibility Act, that the

19 Final Rule would have no significant economic impact on a substantial number of small entities.

20

61. The Secretary’s certification that there would be no significant economic impact is

21 wrong and is not supported by the record or the sound factual basis required by the Regulatory

22 Flexibility Act. In short, the Secretary violated the RFA.

23

62. As a result of the aforesaid violation, Plaintiff-Intervenors and their small entity

24 members will suffer imminent and irreparable injury if the Final Rule were to go into effect.

25

SECOND CAUSE OF ACTION Excess of Statutory Authority

26

(8 U.S.C. § 1324a & 5 U.S.C. §§ 706(2)(A), (C))

27

63. Plaintiffs incorporate by reference all preceding paragraphs as if fully set forth herein.

28

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1

64. The DHS Final Rule is inconsistent with the governing statute, 8 U.S.C. § 1324a,

2 because the Final Rule expands civil and criminal liability for employers based on a definition of

3 “knowing” that is not what Congress meant by the term “knowing” in the IRCA. The DHS Final

4 Rule is also inconsistent with the governing statute because it establishes a system for re-verification

5 of the work authorization status of continuing employees that is not consistent with Congress’ intent

6 to establish a system of verification of work-authorization status only upon initial hire. The DHS

7 Final Rule is agency action “not in accordance with law” and therefore, violates 5 U.S.C. §

8 706(2)(A). It is also in excess of the agency’s “statutory jurisdiction, authority” or “statutory right,”

9 within the meaning of 5 U.S.C. § 706(2)(C).

10

THIRD CAUSE OF ACTION

11

Arbitrary and Capricious (5 U.S.C. § 706(2)(A))

12

65. Plaintiffs incorporate by reference all preceding paragraphs as if fully set forth herein.

13

66. The DHS Final Rule is “arbitrary” or “capricious” agency action in violation of 5

14 U.S.C. § 706(2)(A) because it presumes a mis-matched SSN is indicative of an employee’s

15 immigration status when DHS does not have access to the Earnings Suspense File, does not know the

16 probability that an SSN and name mismatch is associated with an undocumented employee, and when

17 the Government Accountability Office has expressly stated that the vast majority of SSN and name

18 mismatches in the SSA database involve United States citizens.

19

WHEREFORE, Plaintiffs pray that the Court:

20

1. Enter a preliminary injunction, pending a decision on the merits, enjoining the

21 Defendants from (i) implementing the Final Rule entitled “Safe Harbor Procedures for Employers

22 That Receive a No Match Letter,” 72 Fed. Reg. 45611 (Aug. 15, 2007), and (ii) mailing new SSA

23 “no-match” letters in an envelope that includes the DHS/ICE Guidance Letter concerning the DHS

24 Final Rule.

25

2. Enter a declaratory judgment as to Counts II and III that the DHS Final Rule is invalid

26 and a permanent injunction to prohibit Defendants from implementing it or otherwise giving effect to

27 the Final Rule.

28

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1

3. Enter a declaratory judgment as to Count I that DHS failed to undertake the required

2 Regulatory Flexibility Act analysis and a permanent injunction to prohibit Defendants from

3 implementing its Final Rule or otherwise giving effect to the Final Rule until such time as Defendant

4 Chertoff discharges his responsibilities under the Regulatory Flexibility Act to the satisfaction of the

5 Court, and retain jurisdiction of this case to ensure compliance with the Regulatory Flexibility Act.

6

4. Award Plaintiff-Intervenors their costs and expenses, including reasonable attorney’s

7 fees whether under the Equal Access to Justice Act or otherwise, and expert witness fees; and

8

5. Award such further and additional relief as is just and proper.

9

10 Dated: October 19, 2007

GREENBERG TRAURIG, LLP

11

12

By: /s/ Robert P. Charrow

Robert P. Charrow

13

William J. Goines

Karen Rosenthal

14

Cindy Hamilton

15

Of Counsel:

16

Robin S. Conrad (DC SBN 342774)

(Appearing Pro Hac Vice)

17

Shane Brennan (DC SBN 456402)

(Appearing Pro Hac Vice)

18

National Chamber

Litigation Center, Inc.

19

1615 H Street, N.W.

Washington, D.C. 20062

20

Telephone: (202) 463-5337

Facsimile: (202) 463-5346

21

Email: RConrad@uschamber.com

22

Attorneys for Plaintiff-Intervenors

23

24

25

26

27

28

SV 346229299v1

- 19 -

FIRST AMENDED COMPLAINT IN INTERVENTION
C07-04472 CRB

Case3:07-cv-04472-CRB Document138 Filed10/19/07 Page20 of 21

1

ATTESTATION CLAUSE

2

I, William J. Goines, am the ECF User whose ID and password are being used to file this

3 COMPLAINT IN INTERVENTION.

4

In compliance with General Order 45, X.B., I hereby attest that Robert P. Charrow has

5 concurred in this filing.

6

7 Date: October 19, 2007

GREENBERG TRAURIG LLP

8

9

By: /s/ William J. Goines

10

William J. Goines

11 //
12 //
13 //
14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

SV 346229299v1

- 20 -

FIRST AMENDED COMPLAINT IN INTERVENTION
C07-04472 CRB

Case3:07-cv-04472-CRB Document138 Filed10/19/07 Page21 of 21

1

CERTIFICATE OF SERVICE

2 I hereby certify that on October 19, 2007, I electronically filed the foregoing FIRST
3 AMENDED COMPLAINT IN INTERVENTION with the Clerk of the Court using the CM/ECF
4 system which will send notification of such filing to the e-mail addresses denoted below:
5

6 Ana L. Avendano AFL-CIO
7 aavendan@aflcio.org

Danielle Evelyn Leonard Altshuler Berzon LLP dleonard@altshulerberzon.com

8

James B. Coppess AFL-CIO

9 jcoppell@aflcio.org

Jonathan David Weissglass Altshuler Berzon, LLP jweissglass@altshulerberzon.com

10

Linda Lye Altshuler Berzon LLP

11 llye@altshulerberzon.com

Scott Alan Kronland Altshuler Berzon LLP skronland@altshulerberzon.com

12

Stephen P. Berzon Altshuler Berzon LLP

13 sberzon@altshulerberzon.com

14 Alan Lawrence Schlosser 15 ACLU Foundation of Northern California
aschlosser@aclunc.org 16 Julia Harumi Mass, Esq. 17 American Civil Liberties Union of
Northern California 18 jmass@aclunc.org

David Albert Rosenfeld Manjari Chawla Weinberg Roger & rosenfeld courtnotices@unioncounsel.net
Jennifer C. Chang ACLU Immigrants’ Rights Project jchang@aclu.org
Linton Joaquin National Immigration law Center joaquin@nilc.org

19 Lucas Guttentag ACLU Immigrants’ Rights Project
20 lguttentag@aclu.org

Marielena Hincapie National Immigration Law Center hincapie@nilc.org

21

Monica Teresa Guizar National Immigration Law Center

22 guizar@nilc.org

Monica Maria Ramirez ACLU Immigrants RightsProject mramirez@aclu.org

23

Omar C. Jadwat ACLU Immigrants Rights Project

24 ojadwat@aclu.org

25

Jonathan Unruh Lee U.S. Attorneys Office

26 jonathan.lee@usdoj.gov

Daniel Bensing U.S. Dept. of Justice Daniel.Bensing@USDOJ.gov Leon Dayan Bredhoff & Kaiser ldayan@bredhoff.com

27 By: /s/ William J. Goines

28

William J. Goines

SV 346229299v1

- 21 -

FIRST AMENDED COMPLAINT IN INTERVENTION
C07-04472 CRB

 
 Case3:07-cv-04472-CRB Document142 Filed11/23/07 Page1 of 4

1 JEFFREY S. BUCHOLTZ
Acting Assistant Attorney General 2
THOMAS H. DUPREE JR.
3 Deputy Assistant Attorney General SCOTT N. SCHOOLS
4 United States Attorney
SANDRA SCHRAIBMAN (D.C. Bar No. 188599) 5 DANIEL E. BENSING (D.C. Bar No. 334268)
6 Attorneys, U.S. Department of Justice Civil Division, Federal Programs Branch
7 20 Massachusetts Ave., N.W., Room 6114
Washington, D.C. 20001 8 Telephone: (202) 305-0693
9 Facsimile: (202) 616-8460 Email: Daniel.Bensing@usdoj.gov
10
UNITED STATES DISTRICT COURT 11

12

NORTHERN DISTRICT OF CALIFORNIA

13

AMERICAN FEDERATION OF LABOR AND )

14 CONGRESS OF INDUSTRIAL

) Case No. 07-4472 CRB

15 ORGANIZATIONS, et al.,

)

)

16

Plaintiffs,

)

)

17 SAN FRANCISCO CHAMBER

)

OF COMMERCE, et al.,

)

18

)

19

Plaintiffs-Intervenors,

)

20

and

) MOTION TO STAY ) PROCEEDINGS PENDING

21 UNITED FOOD AND COMMERCIAL

) NEW RULEMAKING )

22 WORKERS INTERNATIONAL UNION, et al., ) )

23

Plaintiffs-Intervenors,

)

)

24

v.

)

25

)

MICHAEL CHERTOFF, Secretary of Homeland )

Date: December 28, 2007 Time: 10:00 a.m. Place: Courtroom 8, 19th Floor
Hon. Charles Breyer

26 Security, et al.,

)

)

27

Defendants.

)

28 __________________________________________)

Motion to Stay Proceedings Pending New Rulemaking

Case3:07-cv-04472-CRB Document142 Filed11/23/07 Page2 of 4

1

MOTION TO STAY PROCEEDINGS PENDING NEW RULEMAKING

2 Defendants respectfully move the Court to stay proceedings in this action while the
3 Department of Homeland Security (DHS) conducts additional rulemaking proceedings on the Safe
4
Harbor rule, 72 Fed. Reg. 45611 (August 15, 2007). Counsel for Plaintiffs have been contacted and 5

6 state that Plaintiffs do not consent to this motion, however the parties continue to discuss this matter.

7 A proposed order has also been filed.

8

1. On October 10, 2007, this Court entered a preliminary injunction barring Defendants from

9 implementing or enforcing the Safe Harbor rule. The Court found that Plaintiffs had raised “serious
10
questions on the merits” as to several aspects of the rule. 11

12

2. DHS intends to conduct additional rulemaking proceedings to address the issues raised by

13 the Court. This will include preparing a Regulatory Flexibility Act analysis. Defendants hope and

14 anticipate that the amended rule will fully address the Court’s concerns. When an amended final rule
15 is issued, Defendants intend to move this Court to vacate the preliminary injunction.
16 3. DHS expects it will be able to complete the contemplated rulemaking proceedings by
17 March of 2008. Accordingly, Defendants request that this Court stay proceedings until March 24,
18
19 2008 or until an amended final rule is issued, whichever occurs first. Defendants will provide

20 Plaintiffs and the Court with monthly status reports.
21 4. A stay will prevent the waste of judicial resources in litigating over a rule that is in the
22 process of being revised. “The District Court has broad discretion to stay proceedings as an incident
23 to its power to control its own docket.” Clinton v. Jones, 520 U.S. 680, 706 (1997). In particular,
24
25 district courts have authority under Federal Rule of Civil Procedure 16(a)(3) to schedule proceedings

26 in a case to “discourag[e] wasteful pretrial activities.” As the Ninth Circuit has noted, “[a] trial court

27 may, with propriety, find it is efficient for its own docket and the fairest course for the parties to enter 28

Motion to Stay Proceedings Pending New Rulemaking

2

Case3:07-cv-04472-CRB Document142 Filed11/23/07 Page3 of 4

1 a stay of an action before it, pending resolution of independent proceedings which bear upon the
2 case,” including proceedings in an administrative forum. Lockyer v. Mirant Corp., 398 F.3d 1098,
3 1111 (9th Cir. 2005), quoting Leyva v. Certified Grocers of Calif., 593 F.2d 857, 863-64 (9th Cir.
4 1997). See also Ethicon, Inc. v. Quigg, 849 F.2d 1422, 1426-27 (Fed. Cir. 1988) (reasonable to stay
5
6 proceedings pending a Patent and Trademark Office reexamination of a patent).

7

5. Plaintiffs will not be harmed by a stay, as the preliminary injunction barring implementation

8 or enforcement of the Safe Harbor rule will remain in effect. 9

10

11

12 DATED: November 23, 2007
13

Respectfully submitted,

14

JEFFREY S. BUCHOLTZ

15

Acting Assistant Attorney General

THOMAS H. DUPREE JR. (D.C. Bar No. 467195)

16

Deputy Assistant Attorney General

17 SCOTT N. SCHOOLS
18 United States Attorney
19

20

_________/s/___________________ 21
SANDRA SCHRAIBMAN (D.C. Bar No. 188599)

22

DANIEL E. BENSING (D.C. Bar No. 334268)

Attorneys, U.S. Department of Justice

23

Civil Division, Federal Programs Branch

20 Massachusetts Ave., N.W., Room 6114

24

Washington, D.C. 20001

25

Telephone: (202) 305-0693

Facsimile: (202) 616-8460

26

E-mail: Daniel.Bensing@USDOJ.gov

27

28

Motion to Stay Proceedings Pending New Rulemaking

3

Case3:07-cv-04472-CRB Document142 Filed11/23/07 Page4 of 4

1

Certificate of Service

2

3

I hereby certify that on November 23, 2007, I electronically filed the forgoing with the Clerk

of the Court using the CM/ECF system which will send notification of such filing to the e-mail

4 addresses denoted below:

5 Scott A. Kronland 6 Altshuler Berzon LLP
skronland@altshulerberzon.com 7
Ana L. Avendano 8 AFL-CIO 9 aavendan@aflcio.org
10 James B. Coppess AFL-CIO
11 jcoppell@aflcio.org
12 Linda Claxton
13 Ogletree, Deakins, Nash, Smoak & Stewart P.C.
14 linda.claxton@ogletreedeakins.com

Robert Charrow Greenberg Traurig, LLP charrowr@gtlaw.com
David Albert Rosenfeld Manjari Chawla Weinberg Roger & Rosenfeld courtnotices@unioncounsel.net
Jennifer C. Chang ACLU Immigrants’ Rights Project jchang@aclu.org
Linton Joaquin National Immigration Law Center joaquin@nilc.org

15 Alan Lawrence Schlosser
16 ACLU Foundation of Northern California aschlosser@aclunc.org
17
Julia Harumi Mass, Esq. 18
American Civil Liberties Union of 19 Northern California
jmass@aclunc.org 20
Lucas Guttentag 21
ACLU Immigrants’ Rights Project 22 lguttentag@aclu.org

Marielena Hincapie National Immigration Law Center hincapie@nilc.org
Monica Maria Ramirez ACLU Immigrants Right Project mramirez@aclu.org
Leon Dayan Bredhoff & Kaiser LDayan@Bredhoff.com

23 Monica Teresa Guizar National Immigration Law Center
24 guizar@nilc.org
25

Omar C. Jadwat ACLU Immigrants Rights Project ojadwat@aclu.org

26

/s/

____________________________________________

27

Daniel Bensing

28

Motion to Stay Proceedings Pending New Rulemaking

4

 
 Case3:07-cv-04472-CRB Document160 Filed10/23/08 Page1 of 4

1 GREGORY G. KATSAS

2

Assistant Attorney General THOMAS H. DUPREE JR.

3 Deputy Assistant Attorney General JOSEPH P. RUSSONIELLO
4 United States Attorney

5

SANDRA SCHRAIBMAN (D.C. Bar No. 188599) DANIEL E. BENSING (D.C. Bar No. 334268)

6 Attorneys, U.S. Department of Justice Civil Division, Federal Programs Branch

7 20 Massachusetts Ave., N.W., Room 6114

Washington, D.C. 20001 8 Telephone: (202) 305-0693

9 Facsimile: (202) 616-8460 Email: Daniel.Bensing@USDOJ.gov

10

UNITED STATES DISTRICT COURT

11

NORTHERN DISTRICT OF CALIFORNIA

12

13 AMERICAN FEDERATION OF LABOR AND )

CONGRESS OF INDUSTRIAL 14 ORGANIZATIONS, et al.,

) Case No. 07-4472 CRB )

15

)

MOTION

Plaintiffs,

)

TO VACATE STATUS

16

)

CONFERENCE

SAN FRANCISCO CHAMBER

)

17 OF COMMERCE, et al.,

)

18

)

Plaintiffs-Intervenors,

)

19

)

and

)

20

)

21

UNITED FOOD AND COMMERCIAL WORKERS INTERNATIONAL UNION, et al.,

) )

22

)

Plaintiffs-Intervenors

)

23

)

24

v.

) )

25 MICHAEL CHERTOFF, Secretary of Homeland )

Security, et al.,

)

26

)

27

Defendants.

)

__________________________________________)

28

MOTION TO VACATE STATUS CONFERENCE, Case No. 07-4472 CRB

Case3:07-cv-04472-CRB Document160 Filed10/23/08 Page2 of 4

1

1. On October 15, 2007, this Court entered a Preliminary Injunction against Defendants.

2 Doc. #137. On November 23, 2007, Defendants filed a Motion to Stay Proceedings Pending
3 New Rulemaking in light of its decision “to conduct additional rulemaking proceedings to
4
5 address the issues raised by the Court.” Doc. #142. Plaintiffs did not oppose the motion. Doc.

6 #144 (Nov. 27, 2007). On December 14, 2007, this Court granted Defendants’ Motion to Stay

7 Proceedings Pending New Rulemaking (Doc. # 149) and the Court has continued that stay and

8 vacated scheduled Status Conferences four times since then, permitting rulemaking proceedings
9 to continue. Currently, there is a Status Conference Scheduled for October 31, 2008.
10 2. On October 23, 2008, Michael Chertoff, Secretary of the Department of Homeland
11
12 Security, announced the completion of the additional rulemaking proceedings on the Safe Harbor

13 Rule, with the adoption of a Supplemental Final Rule. The Secretary has elected to reaffirm the

14 Safe Harbor Rule, but, in the preamble accompanying the Supplemental Final Rule, the Secretary
15 has addressed the three concerns identified by this Court in its Preliminary Injunction ruling.
16 First, the Secretary has provided a detailed rationale for what the Court perceived as a change in
17 18 policy as to the relevance of no-match letters to immigration law compliance. Second, the

19 Supplemental Final Rule removes any statements purporting to interpret the anti-discrimination

20 provisions of the immigration laws, the enforcement of which is delegated to the Department of

21 Justice. Third, the Secretary has published a detailed Regulatory Flexibility Analysis, which was

22 subject to public comment, discussing potential costs of the rule to small entities.
23

24

3. After the Supplemental Final Rule has been published in the Federal Register (within

25 approximately two weeks), defendants intend to file the Administrative Record of these

26 supplemental rulemaking proceedings and then move the Court to vacate the injunction and

27 simultaneously to move for summary judgment. Consequently, defendants submit that the status 28

MOTION TO VACATE STATUS CONFERENCE, Case No. 07-4472 CRB

2

Case3:07-cv-04472-CRB Document160 Filed10/23/08 Page3 of 4

1 conference scheduled for October 31, 2008 should be vacated.1/ 2

3 DATED: October 23, 2008
4 5 6 7 8 9 10 11 12 13 14 15

Respectfully submitted,
GREGORY G. KATSAS Assistant Attorney General THOMAS H. DUPREE JR. Deputy Assistant Attorney General
JOSEPH P. RUSSONIELLO United States Attorney
/s/ Daniel Bensing SANDRA SCHRAIBMAN DANIEL E. BENSING (D.C. Bar No. 334268) Attorneys, U.S. Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Ave., N.W., Room 6114 Washington, D.C. 20001 Telephone: (202) 305-0693 Facsimile: (202) 616-8460 E-mail: Daniel.Bensing@USDOJ.gov

16

17

18

19

20

21

22

23

24

25 1/ Defendants have conferred with counsel for the AFL-CIO plaintiffs and the Chamber

26

plaintiffs on this motion. These parties do not oppose vacating the status hearing set for October 31, 2008, but believe that the status hearing should be rescheduled for a date in November. For

27 scheduling purposes, these plaintiffs and the government agreed on November 12th or 21st as acceptable dates for a status conference, if the Court concludes that a status conference is necessary.
28 Defendants were unable to contact counsel for the UNITE HERE plaintiffs.

MOTION TO VACATE STATUS CONFERENCE, Case No. 07-4472 CRB

3

Case3:07-cv-04472-CRB Document160 Filed10/23/08 Page4 of 4

1

Certificate of Service

2

I hereby certify that on this 23rd day of October 2008, I caused to be served by the electronic

3 case filing system a copy of Defendants’ Unopposed Motion to Vacate Status Conference upon the following counsel:
4

5

Scott A. Kronland Altshuler Berzon LLP

6

177 Post St.

San Francisco, California 94108

7

skronland@altshulerberzon.com

8

Counsel for AFL-CIO, et al.

9

10

Robert Charrow

Greenberg Traurig, LLP

11

800 Connecticut Avenue, N.W. Ste. 500

12

Washington D.C. 20006

charrowr@gtlaw.com

13

Counsel for San Francisco Chamber of Commerce, et al. 14

15 Leon Dayan

16

Bredhoff & Kaiser

805 Fifteenth St., N.W. Tenth Floor

17

Washington, D.C. 20008

18

LDayan@Bredhoff.com

19

Counsel for UNITE HERE, et al.

20

21

/s/ Daniel Bensing Daniel Bensing

22

23

24

25

26

27

28

MOTION TO VACATE STATUS CONFERENCE, Case No. 07-4472 CRB

4

Case3:07-cv-04472-CRB Document160-1 Filed10/23/08 Page1 of 2

1 GREGORY G. KATSAS

2

Assistant Attorney General THOMAS H. DUPREE JR.

3 Deputy Assistant Attorney General JOSEPH P. RUSSONIELLO
4 United States Attorney

5

SANDRA SCHRAIBMAN (D.C. Bar No. 188599) DANIEL E. BENSING (D.C. Bar No. 334268)

6 Attorneys, U.S. Department of Justice Civil Division, Federal Programs Branch

7 20 Massachusetts Ave., N.W., Room 6114

Washington, D.C. 20001 8 Telephone: (202) 305-0693

9 Facsimile: (202) 616-8460 Email: Daniel.Bensing@USDOJ.gov

10

UNITED STATES DISTRICT COURT

11

NORTHERN DISTRICT OF CALIFORNIA

12 AMERICAN FEDERATION OF LABOR AND )

13 CONGRESS OF INDUSTRIAL

) Case No. 07-4472 CRB

ORGANIZATIONS, et al., 14

)

)

[PROPOSED] ORDER

15

Plaintiffs,

)

GRANTING DEFENDANTS’

)

MOTION TO

16 SAN FRANCISCO CHAMBER

)

VACATE STATUS

OF COMMERCE, et al., 17

)

CONFERENCE

)

18

Plaintiffs-Intervenors,

)

)

19

and

)

)

20 UNITED FOOD AND COMMERCIAL

)

21

WORKERS INTERNATIONAL UNION, et al., ) )

22

23

v.

Plaintiffs-Intervenors,

)

)

)

24 MICHAEL CHERTOFF, Secretary of Homeland

) )

25 Security, et al.,

)

)

26

Defendants.

)

27 __________________________________________)

28

Proposed Order Granting Defendants’ Motion to Vacate Status Conference, Case No. 07-4472 CRB

Case3:07-cv-04472-CRB Document160-1 Filed10/23/08 Page2 of 2

1

[PROPOSED] ORDER GRANTING DEFENDANTS’

2

UNOPPOSED MOTION TO VACATE STATUS CONFERENCE

3

UPON CONSIDERATION of Defendants’ Motion to Vacate Status Conference, and for

4 good cause shown, it is

5

HEREBY ORDERED that Defendants’ Motion to Vacate Status Conference is GRANTED;

6 and it is
7

FURTHER ORDERED that the Status Conference scheduled for October 31, 2008 at 8:30 8

9 a.m. is hereby vacated.

10

11 DATED: ________________ 12

_________________________________ UNITED STATES DISTRICT JUDGE

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Proposed Order Granting Defendants’ Motion to Vacate Status Conference, Case No. 07-4472 CRB

2

 
 Case3:07-cv-04472-CRB Document200 Filed07/17/09 Page1 of 4

1 TONY WEST
Assistant Attorney General 2
JOSEPH P. RUSSONIELLO
3 United States Attorney SANDRA SCHRAIBMAN (D.C. Bar No. 188599)
4 DANIEL E. BENSING (D.C. Bar No. 334268)
Attorneys, U.S. Department of Justice 5 Civil Division, Federal Programs Branch
6 20 Massachusetts Ave., N.W., Room 6114 Washington, D.C. 20001
7 Telephone: (202) 305-0693
Facsimile: (202) 616-8460 8 Email: Daniel.Bensing@USDOJ.gov

9 UNITED STATES DISTRICT COURT

10

NORTHERN DISTRICT OF CALIFORNIA

11

12 AMERICAN FEDERATION OF LABOR AND )

CONGRESS OF INDUSTRIAL

)

13 ORGANIZATIONS, et al.,

)

)

14

Plaintiffs,

)

15

)

SAN FRANCISCO CHAMBER

)

16 OF COMMERCE, et al.,

)

)

17

)

18

Plaintiffs-Intervenors,

)

)

19

and

)

)

20 UNITED FOOD AND COMMERCIAL

)

21 WORKERS INTERNATIONAL UNION, et al., ) )

22

23

v.

Plaintiffs-Intervenors,

)

)

)

) 24
JANET NAPOLITANO, Secretary of Homeland )

25 Security, et al.,

)

)

26

Defendants.

)

__________________________________________) 27

Case No. 07-4472 CRB
DEFENDANTS’ UNOPPOSED MOTION TO STAY THIS ACTION PENDING THE COMPLETION OF RULEMAKING PROCEEDINGS ON THE SAFE HARBOR RULE
Date: August 28, 2009 Time: 8:30 a.m. Place Courtroom 8, 19th Floor
Hon. Charles Breyer

28

DEFENDANTS’ MOTION TO STAY, Case No. 07-4472 CRB

Case3:07-cv-04472-CRB Document200 Filed07/17/09 Page2 of 4

1

On July 9, 2009 the Department of Homeland Security (DHS) announced its intention to

2 initiate rulemaking proceedings to rescind the Safe Harbor Rule that is the subject of this
3 litigation. (A copy of the DHS press release making that announcement is attached.) On July 10,
4
2009, a proposed rule was submitted by DHS to the Office of Management and Budget (OMB) 5

6 for review. Provided the proposed rule is cleared by OMB, it will be published in the Federal

7 Register as a Notice of Proposed Rulemaking.

8

Because recision of the Safe Harbor Rule would moot this litigation, the parties are in

9 agreement that Court should stay all further proceedings in this action until the completion of
10
these new rulemaking proceedings. Therefore, defendants request that the Court enter the 11

12 attached Order staying all proceedings in this action for an initial six month period, to and until

13 February 1, 2010. Defendants obviously cannot predict when rulemaking proceedings will be

14 completed, and may need to request that the stay be extended. Therefore, defendants propose to
15 report to the Court on the status of rulemaking proceedings, and, if necessary, seek an extension
16 of the stay, on or before December 24, 2009.
17 Wherefore, defendants move that the Court stay all further proceedings in this action until
18
19 February 1, 2010 to permit DHS to complete proceedings on a rulemaking to rescind the Safe

20 Harbor Rule. 21

22

23

24

25

26

27

28

DEFENDANTS’ MOTION TO STAY, Case No. 07-4472 CRB

2

Case3:07-cv-04472-CRB Document200 Filed07/17/09 Page3 of 4

1

2 Counsel for all three groups of plaintiffs have authorized defendants to inform the Court
3 that no plaintiff opposes this motion.
4

5

6

7 DATED: July 17, 2009

Respectfully submitted,

8

TONY WEST

9

Assistant Attorney General

10

JOSEPH P. RUSSONIELLO

United States Attorney 11

12

/S/ Daniel Bensing

SANDRA SCHRAIBMAN

13

DANIEL E. BENSING (D.C. Bar No. 342268)

Attorneys, U.S. Department of Justice

14

Civil Division, Federal Programs Branch

15

20 Massachusetts Ave., N.W., Room 6114

Washington, D.C. 20001

16

Telephone: (202) 305-0693

Facsimile: (202) 616-8470

17

E-mail: Daniel.Bensing@USDOJ.gov

18

19

20

21

22

23

24

25

26

27

28

DEFENDANTS’ MOTION TO STAY, Case No. 07-4472 CRB

3

Case3:07-cv-04472-CRB Document200 Filed07/17/09 Page4 of 4

1 Certificate of Service
2

3

I hereby certify that on this 17th day of July 2009, I caused to be served by the electronic case

filing system a copy of Defendants’ Motion to Stay upon the following counsel:

4

Scott A. Kronland 5
Altshuler Berzon LLP

6

177 Post St.

San Francisco, California 94108

7

skronland@altshulerberzon.com

8

Counsel for AFL-CIO, et al.

9

10

Robert Charrow

Greenberg Traurig, LLP

11

800 Connecticut Avenue, N.W. Ste. 500

12

Washington D.C. 20006

charrowr@gtlaw.com

13

Counsel for San Francisco Chamber of Commerce, et al. 14

15 Leon Dayan

16

Bredhoff & Kaiser

805 Fifteenth St., N.W. Tenth Floor

17

Washington, D.C. 20008

LDayan@Bredhoff.com 18

19

Counsel for UNITE HERE, et al.

20 /s/ Daniel Bensing
21 Daniel Bensing
22

23

24

25

26

27

28

DEFENDANTS’ MOTION TO STAY, Case No. 07-4472 CRB

4

 
 1 Stephen P. Berzon (SBN 46540) Scott A. Kronland (SBN 171693)
2 Danielle E. Leonard (SBN 218201) ALTSHULER BERZON LLP
3 177 Post Street, Suite 300 San Francisco, CA 94108
4 Telephone: (415) 421-7151; Facsimile: (415) 362-8064 skronland@altshulerberzon.com
5 Attorneys for Plaintiffs AFL-CIO et al.
6 Robert P. Charrow (CA SBN 44962)
7 Laura M. Klaus (admitted pro hac vice) Laura Foote Rieff (admitted pro hac vice)
8 GREENBERG TRAURIG LLP 2101 L Street, N.W., Suite 1000
9 Washington, DC 20037 Telephone: (202) 533-2396; Facsimile: (202) 261-0164
10 charrowr@gtlaw.com

11 Attorneys for Plaintiff-Intervenors San Francisco Chamber of Commerce, et al.
12 Matthew Ross (SBN 084703)
13 Philip Monrad (SBN 151073) LEONARD, CARDER, LLP
14 1330 Broadway, Suite 1430 Oakland, CA 94612
15 Telephone: (510) 272-0169; Facsimile: (510) 272-0174 PMonrad@leonardcarder.com
16 Attorneys for Plaintiff-Intervenors UFCW et al.
17

18 UNITED STATES DISTRICT COURT
19 NORTHERN DISTRICT OF CALIFORNIA
20

21 AMERICAN FEDERATION OF LABOR AND

) Case No. C07-4472 CRB

CONGRESS OF INDUSTRIAL ORGANIZATIONS, et )

22 al.

)

) STIPULATION AND

23

Plaintiffs,

) [PROPOSED] ORDER

) DISMISSING ACTION AS MOOT

24

v.

)

)

25 MICHAEL CHERTOFF, et al.

) Place: Courtroom 8, 19th Floor

)

The Hon. Charles R. Breyer

26

Defendants.

)

_______________________________________________ )

27

28

STIPULATION AND ORDER DISMISSING ACTION AS MOOT, Case No. C07-4472 CRB

1

WHEREAS, this action challenged the legality of the Final Rule issued by the Department of

2 Homeland Security entitled “Safe-Harbor Procedures for Employers who Receive a No-Match

3 Letter,” 77 Fed. Reg. 45611 (Aug. 15, 2007) (“Safe Harbor Rule”);

4

WHEREAS, the Safe Harbor Rule was rescinded during the pendency of this action and all

5 parties agree that the action is now moot;

6

IT IS HEREBY STIPULATED by all parties that the Preliminary Injunction issued on

7 October 15, 2007 should be vacated and that this action should be dismissed as moot.

8

9 Dated: November 17, 2009
10

ALTSHULER BERZON LLP

11

by: /s/Scott A. Kronland

Scott A. Kronland

12

Attorneys for Plaintiffs AFL-CIO et al.

13

14 Dated: November 17, 2009

GREENBERG TRAURIG, LLP

15

by: /s/Robert P. Charrow

16

Robert P. Charrow

17

Attorneys for Plaintiffs-Intervenors San Francisco Chamber of

Commerce et al.

18

19 Dated: November 17, 2009

LEONARD, CARDER, LLP

20

by: /s/Philip Monrad

21

Philip Monrad

22

Attorneys for Plaintiff-Intervenors UFCW et al.

23 Dated: November 17, 2009
24
25
26
27
28

TONY WEST Assistant Attorney General JOSEPH P. RUSSONIELLO United States Attorney SANDRA SCHRAIBMAN (D.C. Bar No. 188599) DANIEL E. BENSING (D.C. Bar No. 334268) Attorneys, U.S. Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Ave., N.W., Room 6114 Washington, D.C. 20001

STIPULATION AND ORDER DISMISSING ACTION AS MOOT, Case No. C07-4472 CRB

1

1

Telephone: (202) 305-0693

Facsimile: (202) 616-8460

2

Email: Daniel.Bensing@USDOJ.gov

3

by: /s/Daniel Bensing

Daniel Bensing

4

Attorneys for Defendants

5

6

[PROPOSED] ORDER

7

Good cause shown and pursuant to the parties’ stipulation, the Preliminary Injunction issued

8

on October 15, 2007 is hereby vacated and this action is hereby dismissed as moot.

9

SO ORDERED.

10 11 Dated: __N__o_v_em__b_e_r_1_8_,_2_0_0_9___________

TATES DISTRICT C

UNITED S ALIFORNIA

OURT NORTH

12

_______________________________

13

UNITED

STATES
IT

IDSISSTORIOCTRDJUEDRGEED

14

15

Judge Charles R. Breyer

16

17

ERN DISTRICT OF C

18

19

20

21

22

23

24

25

26

27

28

STIPULATION AND ORDER DISMISSING ACTION AS MOOT, Case No. C07-4472 CRB

2

 
 Case 3:07-cv-04472-CRB Document 45 Filed 09/11/2007 Page 1 of 21

1 Robert P. Charrow (CA SBN 44962) Laura M. Klaus (DC SBN 294272) (Pro Hac to be Filed)
2 GREENBERG TRAURIG, LLP 800 Connecticut Avenue, N.W., Ste. 500
3 Washington, D.C. 20006 Telephone: (202) 533-2396
4 Facsimile: (202) 261-0164 Email: charrowr@gtlaw.com
5 Email: klausl@gtlaw.com

6 William J. Goines (SBN 61290) Karen Rosenthal (SBN 209419)
7 Cindy Hamilton (SBN 217951) GREENBERG TRAURIG, LLP
8 1900 University Avenue, Fifth Floor East Palo Alto, CA 94303
9 Telephone: (650) 328-8500 Facsimile: (650) 328-8508
10 Email: goinesw@gtlaw.com rosenthalk@gtlaw.com
11 Attorneys for Plaintiff-Intervenors
12

13

UNITED STATES DISTRICT COURT

14 NORTHERN DISTRICT OF CALIFORNIA
15

16 AMERICAN FEDERATION OF LABOR AND CONGRESS OF INDUSTRIAL

Case No. C07-04472 CRB

17 ORGANIZATIONS; SAN FRANCISCO LABOR

COUNCIL; SAN FRANCISCO BUILDING AND

18 CONSTRUCTION TRADES COUNCIL; and

CENTRAL LABOR COUNCIL OF ALAMEDA

19 COUNTY,

COMPLAINT IN INTERVENTION

20

Plaintiffs,

21

v.

22 MICHAEL CHERTOFF, Secretary of Homeland Security; DEPARTMENT OF HOMELAND

23

SECURITY; JULIE MYERS, Assistant Secretary of Homeland Security; U.S. IMMIGRATION

24

AND CUSTOMS ENFORCEMENT; MICHAEL ASTRUE, Commissioner of Social Security; and

25 SOCIAL SECURITY ADMINISTRATION,

26

Defendant(s).

27

28

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1
SAN FRANCISCO CHAMBER OF 2 COMMERCE,
CHAMBER OF COMMERCE OF THE UNITED 3 STATES OF AMERICA , GOLDEN GATE
RESTAURANT ASSOCIATION, 4 NATIONAL ROOFING CONTRACTORS
ASSOCIATION, AMERICAN NURSERY & 5 LANDSCAPE ASSOCIATION,
INTERNATIONAL FRANCHISE 6 ASSOCIATION, and UNITED FRESH
PRODUCE ASSOCIATION,

7 Plaintiff-Intervenors

8 v.

9 MICHAEL CHERTOFF, Secretary of Homeland

10

Security; DEPARTMENT OF HOMELAND SECURITY;

11

JULIE MYERS, Assistant Secretary of Homeland Security; U.S. IMMIGRATION AND CUSTOMS

12

ENFORCEMENT; MICHAEL ASTRUE, Commissioner of Social Security; and SOCIAL

13 SECURITY ADMINISTRATION,

14

Defendants.

15

16

I. PRELIMINARY STATEMENT

17

1. On August 15, 2007, the Secretary of Homeland Security issued a Final Rule that

18 sought to change the nation’s human resource practices for all American businesses large and small.

19 The Final Rule, which was to become effective on September 14, 2007, would require businesses to

20 resolve so-called “no-match” letters from the Social Security Administration in 30 days, and if unable

21 to do so, then employees are given an additional 63 days to do so or risk termination. The Secretary

22 had announced that starting on September 4, “no-match” letters identifying approximately 8,000,000

23 employees would be sent by the Social Security Administration to 140,000 employers nation-wide.

24 A “no-match” occurs whenever there is a discrepancy between an employee’s name and Social

25 Security Number (“SSN”) in the Social Security Administration (“SSA”) database. SSA, though, has

26 acknowledged that its database contains more than 17 million so-called no-matches. Many are due to

27 benign causes such as a change of name following marriage, a clerical error by the employee,

28 employer or SSA, use of multiple surnames, varied naming conventions or other reasons having

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1 nothing to do with an employee’s immigration status. Given that the correlation between an

2 employee’s immigration status and an employer’s receipt of a no-match letter for that employee is

3 unknown or low, using the no-match letter as a tool to enforce immigration laws is wasteful, costly to

4 the business community, and an awkward attempt by the Department of Homeland Security (“DHS”)

5 to commandeer the Social Security retirement and disability systems to enforce the nation’s

6 immigration laws, all at the expense of innocent employers and employees.

7

2. The Secretary certified that this regulation, affecting virtually every business in the

8 United States, “would not have a significant economic impact on a substantial number of small

9 entities,” including the nation’s 5,300 hospitals, more than 2,000 colleges and universities, and nearly

10 900,000 small business restaurants employing more than 11 million workers. 72 Fed. Reg. 45611,

11 45623 (Aug. 15, 2007). Accordingly, the Secretary refused to conduct a regulatory flexibility

12 analysis, as required by the Regulatory Flexibility Act. See 5 U.S.C. § 601 et seq. This lawsuit seeks

13 an order declaring that the Final Rule is invalid (i) for want of a regulatory flexibility analysis, (ii) for

14 want of statutory authorization, (iii) for want of evidence in the preamble to the proposed or final rule

15 that a no-match letter reliably indicates an employee’s immigration status, and vacating the Final

16 Rule and enjoining its enforcement as detailed below.

17

II. JURISDICTION AND VENUE

18

3. This court has subject matter jurisdiction over this action pursuant to:

19

a. 28 U.S.C. § 1331, which confers original jurisdiction over all civil suits arising

20 under the Constitution and the laws of the United States, and 28 U.S.C. § 2201 (authorizing

21 declaratory relief), 5 U.S.C. § 601 et seq. (Regulatory Flexibility Act), and 5 U.S.C. § 701 et seq.

22 (judicial review provisions of the Administrative Procedure Act).

23

b. Venue is proper pursuant to 28 U.S.C. § 1391(e).

24

III. VENUE AND INTRA-DISTRICT ASSIGNMENT

25

4. Venue is proper in this Court pursuant to 28 U.S.C. §1391(e) because Plaintiff-

26 Intervenors San Francisco Chamber of Commerce and Golden Gate Restaurant Association reside in

27 this judicial district.

28

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1

5. Pursuant to Local Rule 3-2(d), an intra-district assignment to the San Francisco or

2 Oakland Division is proper because a substantial part of the events giving rise to the claims in this

3 action will occur in the County of San Francisco. Plaintiff-Intervenors San Francisco Chamber of

4 Commerce and Golden Gate Restaurant Association reside in the City and County of San Francisco,

5 and Defendant Social Security Administration maintains a Regional Office in San Francisco.

6

IV. PARTIES

7 A. Plaintiff-Intervenors

8

6. Plaintiff-Intervenor San Francisco Chamber of Commerce (“San Francisco Chamber”)

9 is a not-for-profit membership corporation organized under the laws of the State of California and

10 headquartered in San Francisco. The San Francisco Chamber is a small entity within the meaning of

11 the Regulatory Flexibility Act and is both an employer and a membership organization. The San

12 Francisco Chamber has approximately 2,000 members, more than 80% of which are small businesses

13 within the meaning of section 3 of the Small Business Act, most of which are headquartered in the

14 Northern District of California. Many of the small businesses would receive no-match letters from

15 SSA in the event that the Final Rule at issue in this case was to become effective. Indeed, for many

16 of its small business members, the likelihood of receiving such letter exceeds 90%. The San

17 Francisco Chamber understands that the financial costs associated with resolving no-match letters are

18 substantial and not necessarily linear. Those costs involve overtime for those in human resources,

19 lost productivity for those employees named in such letters, and increased unemployment insurance

20 premiums in the event that the employees who are unable to resolve a no-match within the requisite

21 period are terminated. Based on the San Francisco Chamber’s experience, it is highly unlikely that

22 SSA would be able to resolve the more than 8 million no-matches within the time contemplated by

23 the Final Rule. The San Francisco Chamber and its members will be imminently and irreparably

24 harmed if the Final Rule was to go into effect. The San Francisco Chamber is bringing this suit both

25 on its behalf as a small entity employer and on behalf of its members many of which will also receive

26 such letters.

27

7. Plaintiff-Intervenor Chamber of Commerce of the United States of America

28 (“Chamber of Commerce”) is a not-for-profit membership corporation headquartered in Washington,

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1 D.C. and employing more than 500 individuals. The Chamber of Commerce is the world’s largest

2 business federation with an underlying membership of more than 3 million businesses of all sizes,

3 sectors, and regions. The Chamber of Commerce is a small organization within the meaning of the

4 Regulatory Flexibility Act and more than 96% of its members are small businesses as that term is

5 defined in section three of the Small Business Act. Based on the Chamber’s experience as an

6 employer it is highly unlikely that SSA would be able to resolve the more than 8 million no-matches

7 within the time contemplated by the Final Rule. The Chamber and its members will be imminently

8 and irreparably harmed if the Final Rule was to go into effect. The Chamber is bringing this suit both

9 on behalf of itself as a small entity employer which is apt to receive a no-match letter and on behalf

10 of its members many of which will also receive such letters.

11

8. Plaintiff-Intervenor Golden Gate Restaurant Association (“GGRA”) is a not-for-profit

12 membership corporation headquartered in San Francisco. GGRA has more than 800 restaurant

13 members throughout the Northern District of California; many of those members have received no-

14 match letters in the past and fully expect to receive them in the future. GGRA is a small organization

15 within the meaning of the Regulatory Flexibility Act and most of its members are small businesses

16 within the meaning of section 3 of the Small Business Act. Based on GGRA’s experience as an

17 employer, it is highly unlikely that SSA would be able to resolve the more than 8 million no-matches

18 within the time contemplated by the Final Rule. GGRA and its members will be imminently and

19 irreparably harmed if the Final Rule was to go into effect. GGRA is bringing this suit both on its

20 behalf as a small entity employer and on behalf of its members many of which will receive no-match

21 letters.

22

9. Plaintiff-Intervenor National Roofing Contractors Association (“NRCA”) is a not-for-

23 profit membership organization headquartered in Rosemont, Illinois and employing more than 70

24 individuals. The NRCA is a small organization within the meaning of the Regulatory Flexibility Act

25 and more than 95% of its 4,200 members are small businesses within the meaning of section 3 of the

26 Small Business Act. More than 30 of its small business members are headquartered in this District.

27 The financial costs for NRCA and its members to resolve no-match letters are substantial and not

28 necessarily linear. Those costs involve overtime for those in human resources, lost productivity for

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1 those employees named in such letters, increased unemployment insurance premiums in the event

2 that the employees who are unable to resolve a no-match letter within the requisite period and are

3 terminated. Based on NRCA’s experience as an employer, it is highly unlikely that SSA would be

4 able to resolve the more than 8 million no-matches within the time contemplated by the Final Rule.

5 NCRA and its members will be imminently and irreparably harmed if the Final Rule was to go into

6 effect. NRCA is bringing this suit both on behalf of itself as a small entity employer which is apt to

7 receive a no-match letter and on behalf of its members, many of which will also receive such letters.

8

10. Plaintiff-Intervenor United Fresh Produce Association (“United Fresh ”) is a not-for-

9 profit membership organization headquartered in Washington, D.C. United Fresh has more than 290

10 small business members; many of those members have received no-match letters in the past and fully

11 expect to receive them in the future. United Fresh is a small organization within the meaning of the

12 Regulatory Flexibility Act and most of its business members are small businesses within the meaning

13 of section 3 of the Small Business Act. Based on United Fresh’s experience as an employer, it is

14 highly unlikely that SSA would be able to resolve the more than 8 million no-matches within the time

15 contemplated by the Final Rule. United Fresh and its members will be imminently and irreparably

16 harmed if the Final Rule was to go into effect. United Fresh is bringing this suit both on its behalf as

17 a small entity employer and on behalf of its members many of which will receive no-match letters.

18

11. Plaintiff-Intervenor American Nursery & Landscape Association (“ANLA”) is a not-

19 for-profit membership corporation headquartered in Washington, D.C. ANLA has more than 2,000

20 members, 98% of which are small businesses; many of those members have received no-match letters

21 in the past and fully expect to receive them in the future. ANLA is a small organization within the

22 meaning of the Regulatory Flexibility Act and most of its members are small businesses within the

23 meaning of section 3 of the Small Business Act. Based on ANLA’s experience as an employer, it is

24 highly unlikely that SSA would be able to resolve the more than 8 million no-matches within the time

25 contemplated by the Final Rule. ANLA and its members will be imminently and irreparably harmed

26 if the Final Rule was to go into effect. ANLA is bringing this suit both on its behalf as a small entity

27 employer and on behalf of its members many of which will receive no-match letters.

28

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1

12. Plaintiff-Intervenor International Franchise Association (“IFA”) is a not-for-profit

2 membership corporation headquartered in Washington, D.C. IFA has more than 11,000 members,

3 including 1,200 franchisor members, 10,000 franchisee members and 400 supplier members.

4 Approximately half of IFA’s franchisor members and virtually all of its franchisee members are small

5 businesses; many of those members have received no-match letters in the past and fully expect to

6 receive them in the future. IFA is a small organization within the meaning of the Regulatory

7 Flexibility Act and many of its members are small businesses within the meaning of section 3 of the

8 Small Business Act. Based on IFA’s experience as an employer, it is highly unlikely that SSA would

9 be able to resolve the more than 8 million no-matches within the time contemplated by the Final

10 Rule. IFA and its members will be imminently and irreparably harmed if the Final Rule was to go

11 into effect. IFA is bringing this suit both on its behalf as a small entity employer and on behalf of its

12 members many of which will receive no-match letters.

13 B. Defendants

14

13. Defendant Department of Homeland Security is the federal agency charged with, inter

15 alia, the administration and enforcement of federal immigration laws. DHS promulgated the rule

16 entitled “Safe Harbor Procedures for Employers That Receive a No Match Letter,” 72 Fed. Reg.

17 45611 (Aug. 15, 2007), that is challenged in this litigation.

18

14. Defendant U.S. Immigration and Customs Enforcement (“ICE”) is a federal agency

19 within DHS responsible for investigating and enforcing immigration laws, including 8 U.S.C. §

20 1324a. DHS and ICE created the Guidance Letter regarding the DHS Final Rule that SSA intends to

21 send to employers along with its “no-match” letters.

22

15. Defendant Michael Chertoff is the Secretary of Homeland Security (“Secretary”), the

23 agency responsible for having issuing the regulation at issue and the agency that will implement the

24 regulation at issue. Defendant Chertoff is being sued in his official capacity only.

25

16. Defendant Julie Myers is the Assistant Secretary of Homeland Security for ICE, the

26 agency within the Department of Homeland Security (“DHS”) directly responsible for implementing,

27 investigating and enforcing immigration laws, including the no-match letters and Final Rule.

28 Defendant Myers is being sued in her official capacity only.

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1

17. Defendant Social Security Administration is a federal agency charged with

2 administration of the Social Security Act, and with processing information to administer Social

3 Security programs. Defendant SSA maintains databases of employee information and periodically

4 generates “no-match” letters to employers that submit Forms W-2 to report employee earnings if

5 employee names and SSNs do not match SSA records. See Social Security Act § 232, 42 U.S.C. §

6 432; 20 C.F.R. § 422.120. Beginning on September 4, 2007, Defendant SSA intended to send the

7 DHS/ICE Guidance Letter to employers along with its “no-match” letters.

8

18. Defendant Michael Astrue is the Commissioner of Social Security and is responsible

9 for all programs administered by SSA. He is sued in his official capacity.

10

V. BACKGROUND

11 A. Social Security Administration “No Match” Letters

12

19. The Social Security Act of 1935 authorizes SSA to establish a record-keeping system

13 to manage the Social Security program. Congress also granted SSA authority to process tax

14 information for purposes of administering the Social Security program, as a specific exception to the

15 exclusive tax authority of the Internal Revenue Service (“IRS”). See 26 U.S.C. § 6103(l)(5); SSA §

16 232, 42 U.S.C. § 432. Pursuant to that delegation of authority, the IRS and SSA created a joint

17 system for the processing of Forms W-2 called the Combined Annual Wage Reporting System

18 (“CAWR”). See 43 Fed. Reg. 60158 (Dec. 26, 1978) (codified at 26 C.F.R. § 31.6051).

19

20. Under the CAWR, employers annually report employee earnings using Forms W-2,

20 and SSA posts those earnings to individual employees’ Social Security records so employees will

21 receive credit for those earnings when they apply for Social Security benefits--either retirement or

22 disability. SSA then forwards the Forms W-2 to the IRS.

23

21. If SSA cannot match the name and Social Security Number (“SSN”) on a Form W-2

24 with SSA’s records, SSA places the earnings report in its Earnings Suspense File. See 20 C.F.R §

25 422.120. The earnings remain in the Earnings Suspense File until SSA can link them to a name and

26 SSN.

27

22. Every year, SSA receives millions of earnings reports that the SSA cannot match with

28 its records. The Earnings Suspense File is a huge database that contains more than 255 million

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1 unmatched earnings records and that is growing at the rate of 8 to 11 million unmatched records per

2 year. About four percent of annual Form W-2 earnings reports are placed in the SSA’s Earnings

3 Suspense File.

4

23. SSA records are mismatched for many unrelated to immigration status including: (a)

5 clerical errors by either an employer or SSA in spelling an employee’s name or recording the SSN,

6 (b) SSA’s issuance of duplicate SSNs or re-issuance of SSNs of deceased individuals, (c) employee

7 name changes after marriage or divorce, (d) employees that use a less “foreign” sounding first name

8 for work purposes, and (e) different naming conventions (such as the use of multiple surnames) that

9 are commonplace in many parts of the world, particularly in some Latin American and Asian

10 countries.

11

24. The most recent Government Accountability Office (“GAO”) report on the SSA’s

12 Earnings Suspense File concluded that the file “[c]ontains information about many U.S. citizens as

13 well as non-citizens” and that “the overall percentage of unauthorized workers is unknown.” GAO-

14 06-814R, at 8 (emphasis added). When SSA ultimately has been able to resolve data discrepancies,

15 “most . . . belong to U.S.-born citizens, not to unauthorized workers,” which GAO concluded “is an

16 indication that a significant number of earnings reports in the [Earnings Suspense File] belong to U.S.

17 Citizens and work-authorized noncitizens.” Id.

18

25. As part of its administration of the Social Security program, SSA periodically sends

19 out letters, commonly known as “no-match” letters, informing employers that SSNs and employee

20 names reported on Forms W-2 did not match SSA’s records. See 20 C.F.R. § 422.120.

21

26. SSA no-match letters are purely advisory. SSA has no authority to sanction

22 employers that fail to respond to no-match letters.

23

27. Pursuant to its regulations, SSA notifies the IRS of incomplete or inaccurate earnings

24 reports. See 20 C.F.R. § 422.120. In 1986, Congress authorized IRS to impose sanctions on

25 employers that submit false or inaccurate tax information. See 26 U.S.C. § 6721; see also 26 C.F.R.

26 § 301.6721-1. Under IRS regulations, an employer is not subject to sanction if the employer

27 accurately and in good faith transmits the name and SSN provided by an employee. See 26 U.S.C. §

28 6724(a); 26 C.F.R. § 301.6724-1. Insofar as the Internal Revenue Code is concerned, a reasonable

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1 employer’s response to a no-match letter is to confirm that the employer is accurately transmitting the

2 name and SSN provided by the employee and to advise the employee that SSA is reporting a no-

3 match. Id.

4

28. SSA is not an immigration agency and does not know whether a particular SSN listed

5 in a no-match letter relates to unauthorized work. SSA also is prohibited by tax privacy statutes

6 from sharing the information in the Earnings Suspense File with the DHS. Until now, SSA’s no-

7 match letters explained to employers: “This letter does not imply that you or your employee

8 intentionally gave the government wrong information” and “makes no statement regarding an

9 employee’s immigration status.” Until now, the SSA has never included information from an

10 immigration-enforcement agency with its no-match letters.

11 B. Employer Verification of Work Authorization and Employer Sanctions

12

29. The Immigration Reform and Control Act of 1986 (“IRCA”) made it unlawful for

13 employers to “to hire . . . for employment in the United States an alien knowing the alien is an

14 unauthorized alien.” 8 U.S.C. § 1324a(a)(1)(A) (emphasis added).

15

30. IRCA also separately made it unlawful for employers to hire without complying with

16 an initial verification process established by Congress. See 8 U.S.C. § 1324a(a)(1)(B). That

17 verification process requires the employee to present the employer with documents to show proof of

18 identity and work authorization and requires the employer and employee to complete an I-9

19 verification form. See 8 U.S.C. § 1324a(b); 8 C.F.R. § 274a.2. To satisfy the I-9 requirements,

20 Plaintiffs require all prospective employees to provide documentation proving identity and

21 demonstrating that the employee is authorized to work in the United States. Thus, prospective

22 employees provide various documents including United States passports, alien registration cards (i.e.,

23 Green Card), and Employee Authorization Documents issued by the DHS permitting the individual to

24 work in the United States.

25

31. IRCA also makes it unlawful for an employer “to continue to employ an alien . . .

26 knowing the alien is (or has become) an unauthorized alien with respect to such employment.” 8

27 U.S.C. § 1324a(a)(2) (emphasis added).

28

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1

32. IRCA specifically exempted employees hired before IRCA’s enactment on November

2 6, 1986, from the hiring prohibition and the verification process. Pub. L. No. 99-603 § 101(a)(3), 100

3 Stat. 3359 (1986) (codified at 8 U.S.C. § 1324a note).

4

33. Employers that violate IRCA are subject to civil and criminal liability. See 8 U.S.C. §

5 1324a(e)(4)-(5), (f).

6

34. At the same time that Congress imposed employer sanctions, Congress also wanted to

7 prevent employer discrimination based on national origin or citizenship status. IRCA therefore

8 makes it illegal for employers to discriminate based on national origin or citizenship status, including

9 by requesting “more or different documents than are required” for the initial I-9 verification or

10 “refusing to honor documents . . . that on their face reasonably appear to be genuine.” 8 U.S.C. §

11 1324b(a)(1), (6).

12

35. Congress intentionally did not impose in IRCA any employment authorization

13 verification for existing employees. Congress also chose not to impose ongoing re-verification

14 requirements after the initial hire unless documents evidencing temporary work authorization are

15 time limited.

16 C. New Department of Homeland Security Rule

17

36. Until now, neither DHS nor its predecessor immigration-enforcement agencies had

18 taken the position that an employer’s failure to make further inquiries into the work-authorization

19 status of an employee subject to an SSA no-match letter meant that the employer had actual

20 knowledge that it was employing an unauthorized worker. The Immigration and Naturalization

21 Service had recognized that no-match discrepancies occur for many innocent reasons and therefore

22 consistently advised employers in opinion letters that “[w]e would not consider notice of this

23 discrepancy from SSA to an employer by itself to put the employer on notice that the employee is

24 unauthorized to work.” The most recent SSA letter on the materiality of a no-match letter states as

25 follows: “This notice also specifically cautions employers that these letters . . . do not make any

26 statement about an employee's immigration status[.]”

27 <http://www.ssa.gov/legislation/nomatch2.htm> (last viewed Sept. 6, 2007).

28

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1

37. On June 14, 2006, Defendant Chertoff issued a notice of proposed rulemaking

2 soliciting public comments on his proposal to use the Social Security database, and, in particular,

3 SSA no-match letters as vehicle for enforcing the immigration laws. See 71 Fed. Reg. 34281 (June

4 14, 2006). The preamble concluded, in part, as follows: The Secretary of Homeland Security, in accordance with the Regulatory Flexibility

5

Act, 5 U.S.C. 605(b), has reviewed this regulation and, by approving it, certifies that

this rule would not have a significant economic impact on a substantial number of

6

small entities. This rule would not affect small entities as that term is defined in 5

7

U.S.C. 601(6). Id. at 34284.

8

38. As result, the Secretary did not conduct a Regulatory Flexibility Act analysis.

9

39. More than 5,000 comments were received by DHS during the 60-day comment period,

10 including comments that disputed DHS’ authority to adopt the rule, and DHS’ assertion that the rule

11 “would not affect small entities.” Plaintiff-Intervenors or coalitions of which they are members were

12 among those that submitted comments objecting to the rule. The comment period closed on

13 August 14, 2006.

14

40. Shortly after Congress left for recess without enacting immigration reform legislation

15 urged by DHS, the agency issued its final rule on August 15, 2007 (hereinafter, the “DHS Final

16 Rule”). See 72 Fed. Reg. 45611 (Aug. 15, 2007). The DHS Final Rule is entitled “Safe-Harbor

17 Procedures for Employers Who Receive a No-Match Letter.” The DHS Final Rule was to become

18 legally effective on September 14, 2007.

19

41. The DHS Final Rule will amend the definition of “knowing” in 8 C.F.R. §

20 274a.1(l)(1), the regulatory subsection that defines the term “knowing” for purposes of IRCA. The

21 amended regulation will list, as an example of an employer that has “constructive knowledge” that an

22 employee is an “unauthorized alien,” an employer that receives a SSA no-match letter and then “fails

23 to take reasonable steps.” The first part of the amended regulation will provide:

24

(1)(1) The term knowing includes having actual or constructive knowledge. . . .

25

Examples of situations where the employer may, depending upon the totality of the relevant circumstances, have constructive knowledge that an employee

26

is an unauthorized alien include, but are not limited to, situations where the employer:

27

. . . . (iii) Fails to take reasonable steps after receiving information

28

indicating that the employee may be an alien who is not employment authorized, such as –

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1

. . . .

(B) Written notice to the employer from the Social Security

2

Administration reporting earnings on a Form W-2 that employees’

names and corresponding social security account numbers fail to match

3

Social Security Administration records . . . .

4

42. Having created a threat of IRCA liability for employers receiving SSA no-match

5 letters, the DHS Final Rule then offers employers a “safe harbor.” An employer receiving a SSA no-

6 match letter “will be considered by the Department of Homeland Security to have taken reasonable

7 steps – and receipt of the written notice will therefore not be used as evidence of constructive

8 knowledge – if the employer” takes the actions specified by DHS. These are “the only combination

9 of steps that will guarantee that DHS will not use the employer’s receipt of the notices from SSA . . .

10 as evidence of constructive knowledge that an employee is an unauthorized alien.” 72 Fed. Reg. at

11 45618.

12

43. To qualify for the DHS “safe harbor,” an employer that determines the SSA no-match

13 was not the result of its own clerical error (which must be done in 30 days) must instruct the

14 employee who claims that the name and SSN are correct to resolve the discrepancy with SSA within

15 90 days of receipt of the no-match letter. If the employee is unable to resolve the discrepancy with

16 SSA within 90 days, the employer cannot continue to employ the individual unless the individual can

17 complete within three days a new employment eligibility verification, on a new I-9 form, using only

18 documents that contain photo identification and no documents that contain the disputed SSN, even if

19 the employee still insists the SSN is correct. If employees insist that their names and SSNs on their

20 identification documents are correct but have not resolved the discrepancy with SSA by the deadline,

21 or cannot produce the required additional photo identification, the employer would have to fire them

22 in order to be afforded the “safe harbor.”

23 D. Implementation of the DHS Final Rule by DHS and SSA

24

44. On September 4, 2007, DHS and SSA intended to begin sending employers no-match

25 letters that will be accompanied by a letter from DHS and ICE (hereinafter the “DHS/ICE Guidance

26 Letter”). This Court’s Temporary Restraining Order of August 31, 2007, temporarily precluded the

27 issuance of those letters. The DHS/ICE Guidance Letter states that it will “provide guidance on how

28

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1 to respond to the enclosed letter from the Social Security Administration (SSA) . . . in a manner that

2 is consistent with your obligations under United States Immigration Laws.”

3

45. The DHS/ICE Guidance Letter contains questions and answers, which begin with the

4 following:

5

Q: Can I simply disregard the letter from SSA?

A: No. You have received official notification of a problem that may have

6

significant legal consequences for your employees. If you elect to disregard the notice

you have received and it is determined that some employees listed in the enclosed

7

letter were not authorized to work, the Department of Homeland Security (DHS) could

determine that you have violated the law by knowingly continuing to employ

8

unauthorized persons. This could lead to civil and criminal sanctions.

9

46. After threatening employers with civil and criminal liability, the DHS/ICE Guidance

10 Letter then asks: “Q: What should I do?” and responds that “You should” follow the steps set out

11 in the DHS Final Rule.

12

47. The DHS/ICE Guidance Letter assures employers that, if they follow those procedures

13 for every no-match, they will not be liable for discrimination if they terminate employees:

14

Q: Will I be liable for discrimination charges brought by the United States if

I terminate the employee after I follow the steps outlined above?

15

A: No. . . . .”

16

17

48. The DHS/ICE Guidance Letter conveniently ignores those Civil Rights laws

18 administered by other federal agencies, by the States, or by private interests, such as Title VII of the

19 Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., Ku Klux Klan Act of 1867, 42 U.S.C. §§ 1981,

20 1988, California Anti-Discrimination Laws, all of which would be potentially implicated were an

21 employer to terminate employees solely because of the Final Rule or because of the Final Rule as

22 implemented by the Guidance Letter.

23

49. SSA has revised its no-match letters so that they direct employers to follow the

24 instructions in the accompanying DHS/ICE Guidance Letter.

25

50. SSA and DHS intended to commence sending the revised no-match letters and the

26 DHS/ICE Guidance Letter to employers on September 4, 2007. Between September 4, 2007 and

27 November 9, 2007, the SSA expected to mail no-match letters to approximately 140,000 employers

28

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1 around the country. Each letter will list at least 10 mismatched SSNs and some letters will list 500 or

2 more. Approximately 8.7 million employees will be affected by this initial wave of mailings.

3

51. SSA will continue to mail additional batches of no-match letters after November 9,

4 2007, to hundreds of thousands of other employers.

5 E. Effect of Implementation of the New DHS Final Rule

6

52. Implementation of the DHS Final Rule following the expiration of this Court’s TRO

7 will immediately impose new obligations in violation of law on every employer governed by IRCA.

8

53. The imminent SSA mailing will immediately impose substantial administrative costs

9 on at least 140,000 employers, including Plaintiff-Intervenors and their members, and additional

10 employers will be affected as SSA continues in the future to send out no-match letters accompanied

11 by the DHS/ICE Guidance Letter. Given that the initial DHS/SSA mailing would cover

12 approximately 8.7 million SSNs, the cost to resolve those will easily exceed $100 million and there is

13 no assurance that they could be resolved within the regulatory period. Indeed, there is no evidence

14 whatsoever in the administrative record to suggest that the so-called “safe harbor” window can be

15 achieved, especially when SSA will be flooded with such requests.

16

54. A substantial portion of the several million no-match SSNs that are listed in the initial

17 round of SSA no-match letters will relate to U.S. citizens or non-citizens lawfully entitled to work. A

18 substantial number of these United States citizen no-matches are employed by Plaintiff-Intervenors

19 and their small business members.

20

55. As a result of implementation of the DHS Final Rule, including the DHS/ICE

21 Guidance Letter, Plaintiff-Intervenors and their members will immediately be forced to spend time

22 and effort to resolve SSA data discrepancies, including taking time to visit SSA field offices that are

23 open only during business hours and that will be overwhelmed with similar requests from other

24 employers and employees.

25

56. Many individuals lawfully employed by the Plaintiff-Intervenors and their small

26 business members will be unable to resolve data discrepancies with the SSA bureaucracy within the

27 90-day deadline set out in the DHS Final Rule; those employees risk termination even though they

28 are United States Citizens or lawful immigrants. SSA already has told DHS that in “difficult cases,”

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1 SSA may be unable to resolve discrepancies within the 90-day timeframe. Despite all these costs, the

2 majority of which will be borne by “small entities,” as that term is defined in the Regulatory

3 Flexibility Act, the Secretary, in issuing the Final Rule, certified, without any factual basis, that the

4 Final Rule “would not have a significant economic impact on a substantial number of small entities.”

5 72 Fed. Reg. 45611, 45623 (Aug. 15, 2007). Accordingly, the Secretary did not conduct an initial

6 regulatory flexibility analysis or a final regulatory flexibility analysis or comply with any other

7 requirement of the Regulatory Flexibility Act.

8

VI. CLAIMS

9

FIRST CAUSE OF ACTION

Failure to Perform a Regulatory Flexibility Analysis

10

(5 U.S.C. § 601 et seq.)

11

57. Plaintiffs incorporate by reference the allegations set forth in ¶¶ 1 –56, above.

12

58. The Final Rule will have a significant economic impact on a substantial number of

13 small entities, including Plaintiff-Intervenors and their small business members. Most small business

14 employers will have to devote substantial additional resources toward complying with the Final Rule,

15 and some will lose employees who are otherwise qualified and lawful residents of the United States

16 merely because SSA is unable to resolve discrepancies in their database within the requisite timer

17 period. The loss of otherwise qualified and lawful employees will impede productivity and

18 profitability and interfere with normal and lawful business operations. On information and belief, the

19 economic impact on small entities will easily exceed $100 million per annum.

20

59. Despite the Final Rule’s significant economic impact on small entities, the Secretary

21 failed to undertake a regulatory flexibility analysis, as required by law. Instead, the Secretary

22 certified, without providing a factual basis as required by the Regulatory Flexibility Act, that the

23 Final Rule would have no significant economic impact on a substantial number of small entities.

24

60. The Secretary’s certification that there would be no significant economic impact is

25 wrong and is not supported by the record or the sound factual basis required by the Regulatory

26 Flexibility Act. In short, the Secretary violated the RFA.

27

61. As a result of the aforesaid violation, Plaintiff-Intervenors and their small entity

28 members will suffer imminent and irreparable injury if the Final Rule were to go into effect.

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1

SECOND CAUSE OF ACTION

Excess of Statutory Authority

2

(8 U.S.C. § 1324a & 5 U.S.C. §§ 706(2)(A), (C))

3 62. Plaintiffs incorporate by reference all preceding paragraphs as if fully set forth herein.
4 63. The DHS Final Rule is inconsistent with the governing statute, 8 U.S.C. § 1324a,
5 because the Final Rule expands civil and criminal liability for employers based on a definition of
6 “knowing” that is not what Congress meant by the term “knowing” in the IRCA. The DHS Final
7 Rule is also inconsistent with the governing statute because it establishes a system for re-verification
8 of the work authorization status of continuing employees that is not consistent with Congress’ intent
9 to establish a system of verification of work-authorization status only upon initial hire. The DHS
10 Final Rule is agency action “not in accordance with law” and therefore, violates 5 U.S.C. §
11 706(2)(A). It is also in excess of the agency’s “statutory jurisdiction, authority” or “statutory right,”
12 within the meaning of 5 U.S.C. § 706(2)(C).
13

THIRD CAUSE OF ACTION

14

Arbitrary and Capricious

15

(5 U.S.C. § 706(2)(A))

64. Plaintiffs incorporate by reference all preceding paragraphs as if fully set forth herein. 16

65. The DHS Final Rule is “arbitrary” or “capricious” agency action in violation of 5 17

U.S.C. § 706(2)(A) because it presumes a mis-matched SSN is indicative of an employee’s 18

immigration status when DHS does not have access to the Earnings Suspense File, does not know the 19

probability that an SSN and name mismatch is associated with an undocumented employee, and when 20

the Government Accountability Office has expressly stated that the vast majority of SSN and name 21

mismatches in the SSA database involve United States citizens. 22

WHEREFORE, Plaintiffs pray that the Court: 23

1. Enter a preliminary injunction, pending a decision on the merits, enjoining the 24

Defendants from (i) implementing the Final Rule entitled “Safe Harbor Procedures for Employers 25

That Receive a No Match Letter,” 72 Fed. Reg. 45611 (Aug. 15, 2007), and (ii) mailing new SSA 26

“no-match” letters in an envelope that includes the DHS/ICE Guidance Letter concerning the DHS 27

Final Rule. 28

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1

2. Enter a declaratory judgment as to Counts II and III that the DHS Final Rule is invalid

2 and a permanent injunction to prohibit Defendants from implementing it or otherwise giving effect to

3 the Final Rule.

4

3. Enter a declaratory judgment as to Count I that DHS failed to undertake the required

5 Regulatory Flexibility Act analysis and a permanent injunction to prohibit Defendants from

6 implementing its Final Rule or otherwise giving effect to the Final Rule until such time as Defendant

7 Chertoff discharges his responsibilities under the Regulatory Flexibility Act to the satisfaction of the

8 Court, and retain jurisdiction of this case to ensure compliance with the Regulatory Flexibility Act.

9

4. Award Plaintiff-Intervenors their costs and expenses, including reasonable attorney’s

10 fees whether under the Equal Access to Justice Act or otherwise, and expert witness fees; and

11

5. Award such further and additional relief as is just and proper.

12

13 Dated: September 11, 2007

GREENBERG TRAURIG, LLP

14

15

By: /s/ Robert P. Charrow

Robert P. Charrow

16

William J. Goines

Karen Rosenthal

17

Cindy Hamilton

18

Of Counsel:

19

Robin S. Conrad (DC SBN 342774)

Shane Brennan (DC SBN 456402)

20

National Chamber

Litigation Center, Inc.

21

1615 H Street, N.W.

Washington, D.C. 20062

22

Telephone: (202) 463-5337

Facsimile: (202) 463-5346

23

Email: RConrad@uschamber.com

24

Attorneys for Plaintiff-Intervenors

25

26

27

28

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1

ATTESTATION CLAUSE

2

I, Karen Rosenthal, am the ECF User whose ID and password are being used to file this

3 COMPLAINT IN INTERVENTION.

4

In compliance with General Order 45, X.B., I hereby attest that Robert P. Charrow has

5 concurred in this filing.

6

7 Date: September 11, 2007

GREENBERG TRAURIG LLP

8

9
10
11 //
12 //
13 //
14

By: /s/ Karen Rosenthal Karen Rosenthal

15

16

17

18

19

20

21

22

23

24

25

26

27

28

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1

CERTIFICATE OF SERVICE

2 I hereby certify that on September 11, 2007, I electronically filed the foregoing COMPLAINT

3 IN INTERVENTION with the Clerk of the Court using the CM/ECF system which will send

4 notification of such filing to the e-mail addresses denoted below:

5 Ana L. Avendano
6 AFL-CIO aavendan@aflcio.org
7 James B. Coppess
8 AFL-CIO jcoppell@aflcio.org
9 Linda Lye
10 Altshuler Berzon LLP llye@altshulerberzon.com
11 Stephen P. Berzon
12 Altshuler Berzon LLP sberzon@altshulerberzon.com
13

Danielle Evelyn Leonard Altshuler Berzon LLP dleonard@altshulerberzon.com
Jonathan David Weissglass Altshuler Berzon, LLP jweissglass@altshulerberzon.com
Scott Alan Kronland Altshuler Berzon LLP skronland@altshulerberzon.com
David Albert Rosenfeld Manjari Chawla Weinberg Roger & rosenfeld courtnotices@unioncounsel.net

14 Alan Lawrence Schlosser ACLU Foundation of Northern California
15 aschlosser@aclunc.org

Jennifer C. Chang ACLU Immigrants’ Rights Project jchang@aclu.org

16 Julia Harumi Mass, Esq. American Civil Liberties Union of
17 Northern California jmass@aclunc.org
18 Lucas Guttentag
19 ACLU Immigrants’ Rights Project lguttentag@aclu.org
20 Monica Teresa Guizar
21 National Immigration Law Center guizar@nilc.org
22 Omar C. jadwat
23 ACLu Immigrants Rights Project ojadwat@aclu.org
24

Linton Joaquin National Immigration law Center joaquin@nilc.org
Marielena Hincapie National Immigration Law Center hincapie@nilc.org
Monica Maria Ramirez ACLU Immigrants RightsProject mramirez@aclu.org
Daniel Benzing U.S. Dept. of Justice Daniel.Bensing@USDOJ.gov

25

26

27

28

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1 Jonathan Unruh Lee U.S. Attorneys Office
2 jonathan.lee@usdoj.gov 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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By: /s/ Karen Rosenthal Karen Rosenthal

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 Case 3:07-cv-04472-CRB Document 70 Filed 09/14/2007 Page 1 of 24

1 Matthew Ross (SBN 084703)

Philip Monrad (SBN 151073)

2 LEONARD, CARDER, LLP

1330 Broadway, Suite 1430

3 Oakland, CA 94612

Telephone: (510) 272-0169

4 Facsimile: (510) 272-0174

Email:

MRoss@leonardcarder.com; PMonrad@leonardcarder.com

5

Robert M. Weinberg (pro hac vice application forthcoming)

6 Leon Dayan

(pro hac vice application forthcoming)

Jennifer L. Hunter (pro hac vice application forthcoming)

7 BREDHOFF & KAISER, PLLC

805 Fifteenth Street, NW, Tenth Floor

8 Washington, D.C. 20008

Telephone: (202) 842-2600

9 Facsimile: (202) 842-1888

Email:

LDayan@bredhoff.com; JHunter@bredhoff.com

10

Attorneys for Plaintiff-Intervenors

11

UNITED STATES DISTRICT COURT

12 NORTHERN DISTRICT OF CALIFORNIA

13 AMERICAN FEDERATION OF LABOR

14

AND CONGRESS OF INDUSTRIAL ORGANIZATIONS; SAN FRANCISCO

LABOR COUNCIL; SAN FRANCISCO

15 BUILDING AND CONSTRUCTION

TRADES COUNCIL; and CENTRAL

16 LABOR COUNCIL OF ALAMEDA COUNTY,

) ) Case No.: 07-04472(CRB) ) ) ) ) COMPLAINT IN INTERVENTION OF ) UNITED FOOD AND COMMERCIAL

17

Plaintiffs,

) WORKERS INTERNATIONAL UNION, ) UNITED FOOD AND COMMERCIAL

18

v.

) WORKERS LOCAL 5, UNITE HERE, and ) UNITE HERE LOCAL 2

19 MICHAEL CHERTOFF, Secretary of Homeland Security; DEPARTMENT OF

) (Administrative Procedures Act Case) )

20 21

HOMELAND SECURITY; JULIE MYERS, )

Assistant Secretary of Homeland Security; U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT; MICHAEL ASTRUE,

) )

Commissioner of Social Security; and

)

22 SOCIAL SECURITY ADMINISTRATION, )

)

23

Defendants.

)

)

24 Complaint in Intervention Case No. 3:07-cv-04472(CRB)

Case 3:07-cv-04472-CRB Document 70 Filed 09/14/2007 Page 2 of 24

1 SAN FRANCISCO CHAMBER OF

)

COMMERCE,

)

2 3

CUGNHAANATTITEIMEORDBNEEASSRTLTAOARTFOUECORSOAFOIMNNFTMGAAECMSROESCNORETICCORIAAFATCT, IGHTOOOENRL, DS EN)))

ASSOCIATION, AMERICAN NURSERY & )

4 LANDSCAPE ASSOCIATION,

)

INTERNATIONAL FRANCHISE

)

5

ASSOCIATION, and UNITED FRESH PRODUCE ASSOCIATION,

) )

6

Plaintiff-Intervenors,

)

)

7

v.

)

)

8

MICHAEL CHERTOFF, Secretary of Homeland Security; DEPARTMENT OF

HOMELAND SECURITY;

) )

9 JULIE MYERS, Assistant Secretary of

)

Homeland Security; U.S. IMMIGRATION )

10 AND CUSTOMS ENFORCEMENT;

)

MICHAEL ASTRUE, Commissioner of Social)

11

Security; and SOCIAL SECURITY ADMINISTRATION,

) )

12

Defendants.

)

___________________________________ )

13

)

14

UNITED FOOD AND COMMERCIAL WORKERS INTERNATIONAL UNION;

) )

UNITED FOOD AND COMMERCIAL

)

15 WORKERS LOCAL 5; UNITE HERE; and )

UNITE HERE LOCAL 2,

)

16

)

Plaintiff-Intervenors,

)

17

v.

)

)

18 MICHAEL CHERTOFF, Secretary of

)

Homeland Security; DEPARTMENT OF )

19 HOMELAND SECURITY; JULIE MYERS, )

Assistant Secretary of Homeland Security;

20

U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT; MICHAEL ASTRUE,

) )

Commissioner of Social Security; and

)

21 SOCIAL SECURITY ADMINISTRATION, )

)

22

Defendants.

)

23

24 Complaint in Intervention Case No. 3:07-cv-04472(CRB)

Case 3:07-cv-04472-CRB Document 70 Filed 09/14/2007 Page 3 of 24

1 Plaintiff-Intervenors (hereinafter “Plaintiffs”) allege as follows:

2

OVERVIEW

3

1. The Immigration Reform and Control Act of 1986 (IRCA or “Act”), 8 U.S.C. §

4 1324a et seq., imposes civil and criminal sanctions against employers who hire a person

5 “knowing” that the person is an alien unauthorized to work in the United States, or who continue

6 to employ a person “knowing” that the person is an unauthorized alien. This action challenges

7 the validity of a final rule adopted by the Department of Homeland Security on August 15, 2007,

8 entitled “Safe Harbor Procedures for Employers That Receive a No Match Letter.” 72 Fed. Reg.

9 45611 (Aug. 15, 2007) (“DHS Final Rule” or “Rule”).

10

2. The DHS Final Rule has two components: First, it creates a legal fiction by

11 deeming the bare receipt by an employer of a “no-match” letter from the Social Security

12 Administration (SSA)—a letter stating that a social security number (SSN) reported by the

13 employer with respect to a particular employee does not match the SSN in the SSA’s (error-

14 prone) database—to constitute evidence that the employer “know[s]” that the employee in

15 question is an alien not authorized to work in the United States. Second, the Rule requires

16 employers in receipt of a no-match letter to conduct a prescribed investigation and follow other

17 specified procedures for a period running 93 days, in order to determine whether the listed

18 person is likely to be an unauthorized alien. The employer may use the first 30 days to examine

19 its own records, and need allow the employee only the remaining 63 days to resolve the

20 discrepancy by working through the Social Security Administration bureaucracy or otherwise.

21 If, at the end of the 93-day period, the mismatch has not been resolved in a manner favorable to

22 the employee, the Rule provides that the employer, while insulated from liability for that period,

23 becomes exposed to liability for a “knowing” IRCA violation immediately thereafter unless it

24 terminates the employee at once.

Complaint in Intervention Case No. 3:07-cv-04772(CRB)

3

Case 3:07-cv-04472-CRB Document 70 Filed 09/14/2007 Page 4 of 24

1

3. In adopting the Rule, the DHS has imposed on employers a duty to investigate

2 and reverify the immigration status of already-hired workers upon learning information that

3 neither establishes that the workers in question are in fact unauthorized aliens or that they are

4 even highly likely to be unauthorized aliens. Imposition of such a duty is inconsistent with

5 Congress’ deliberate choice to make “knowledge” the standard of scienter for such IRCA

6 violations, and with Congress’ concomitant choice to reject a negligence standard or any other

7 standard that could be plausibly construed to encompass such a duty.

8

4. Imposition of this duty on employers will have a direct, adverse impact on U.S.

9 citizen employees and other employees authorized to work in the United States, because under

10 the DHS Final Rule, authorized employees listed on a no-match letter will be compelled in many

11 instances to go to SSA offices during working hours and to convince the SSA bureaucracy to

12 correct its records in a period of as little as sixty days—a period that even the Rule’s preamble

13 acknowledges will be insufficient in the most difficult cases, and that, in truth, will all but

14 certainly be insufficient in many other cases as well.

15

5. Plaintiffs each act in two separate capacities. Each plaintiff is a labor

16 organization that represents employees of other employers, and each is also an employer of its

17 own staff employees. Plaintiffs challenge the DHS Final Rule both (a) in their representative

18 capacity on behalf of the workers in the bargaining units that they or their local unions represent,

19 in order to prevent harm to employees and labor organizations that the Rule will cause, and (b) in

20 their separate capacity as employers, to prevent the harms to their interest as employers which

21 would result from their being threatened with civil and criminal sanctions for conduct that

22 Congress did not intend to penalize, and their interest in not being compelled to expend scarce

23

24

Complaint in Intervention Case No. 3:07-cv-04772(CRB)

4

Case 3:07-cv-04472-CRB Document 70 Filed 09/14/2007 Page 5 of 24

1 resources conducting investigations and inquiries that Congress did not intend for them to have

2 to conduct.

3

JURISDICTION

4

6. This Court has jurisdiction over the claims alleged in this Complaint pursuant to

5 28 U.S.C. § 1331 (federal question), 28 U.S.C. § 2201 (declaratory relief), and 5 U.S.C. §§ 701-

6 706 (Administrative Procedures Act).

7

VENUE AND INTRA-DISTRICT ASSIGNMENT

8

7. Venue is proper in this Court pursuant to 28 U.S.C. § 1391(e), because the venue

9 here was properly laid in the original complaint that initiated this action. Even viewing the

10 instant complaint-in-intervention independently from the original complaint, venue would lie,

11 because plaintiffs UNITE HERE Local 2 and United Food and Commercial Workers (UFCW)

12 Local 5 reside in this judicial district. For the same reasons, intradistrict assignment to the San

13 Francisco and Oakland divisions is proper.

14

PARTIES

15

8. Plaintiff United Food and Commercial Workers International Union (UFCW) is

16 an international union representing 1.3 million working grocery, food processing, retail,

17 manufacturing, and other workers throughout the United States. UFCW is one of the largest

18 unions that has a substantial proportion of immigrant members. UFCW was one of the labor

19 organizations which submitted comments objecting to the DHS Final Rule. UFCW is also an

20 employer. UFCW’s headquarters is located at 1775 K Street NW, Washington, District of

21 Columbia, 20006.

22

9. Plaintiff UFCW Local 5 is a labor organization that represents approximately

23 25,000 employees, including employees lawfully working in the United States in the food, retail,

24

Complaint in Intervention Case No. 3:07-cv-04772(CRB)

5

Case 3:07-cv-04472-CRB Document 70 Filed 09/14/2007 Page 6 of 24

1 and agriculture industries who have been the subject of SSA no-match letters sent to their

2 employers. An important part of Local 5’s mission is to advocate on behalf of workers so that

3 their rights in the workplace are protected and so that they are not victims of unlawful

4 discrimination. Local 5 represents many members of Latin American and Asian descent who

5 use compound last names or inconsistently transliterate their names, which may result in

6 inadvertent errors or discrepancies in their SSA records. UFCW Local 5 was formed from a

7 merger of smaller local unions, and is the successor in interest to the merged unions; therefore

8 references to UFCW Local 5 in this Complaint refer as well to the predecessor entities whose

9 interests it succeeds. UFCW Local 5 is an employer with respect to its own staff employees,

10 and, in its capacity as an employer, UFCW Local 5 has in the past received an SSA no-match

11 letter and there is a substantial possibility that it could receive another such letter in the future.

12 The headquarters of UFCW Local 5 are located at 240 South Market Street San Jose, 95113.

13 Local 5 also has sub-offices in Alameda and Contra Costa counties, among others.

14

10. Plaintiff UNITE HERE is an international union representing a diverse

15 membership of more than 450,000 in the apparel and textiles, hotel, casino, food service, and

16 restaurant industries. A substantial proportion of UNITE HERE’s membership is composed of

17 immigrants. UNITE HERE was one of the labor organizations which submitted comments

18 objecting to the DHS Final Rule. UNITE HERE is also an employer. UNITE HERE’s

19 headquarters is located at 275 7th Avenue, New York, New York, 10001.

20

11. Plaintiff UNITE HERE Local 2 is a labor organization that represents

21 approximately 12,000 employees, including employees lawfully working in the United States

22 who have been the subject of SSA no-match letters sent to their employers. UNITE HERE Local

23 2 has in the past successfully represented, including in cases litigated before arbitrators,

24

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1 employees unjustly discharged in response to no-match letters. A substantial portion of Local

2 2’s members work in the hospitality industry. An important part of Local 2’s mission is to

3 advocate on behalf of workers so that their rights in the workplace are protected and so that they

4 are not victims of unlawful discrimination. Local 2 represents many members of Latin

5 American and Asian descent who use compound last names or inconsistently transliterate their

6 names, which may result in inadvertent errors or discrepancies in their SSA records. Local 2 is

7 also an employer. The principal office of UNITE HERE Local 2 is located at 209 Golden Gate

8 Avenue, San Francisco, California 94102.

9

12. In the past, workers represented by, and members of, the plaintiff labor

10 organizations have been the subject of no-match letters sent by the SSA to their employers. The

11 U.S. Government Accountability Office (GAO) reports that about four percent of all Forms W-2

12 submitted by employers report earnings that cannot be matched with SSA records and that are

13 therefore placed in SSA’s Earnings Suspense File. On information and belief, Plaintiffs

14 represent thousands of workers who are lawfully working in the United States but have earnings

15 in the Earnings Suspense File, and who therefore are likely to be the subject of SSA no-match

16 letters issued in the future.

17

13. Defendant Michael Chertoff is the Secretary of the Department of Homeland

18 Security and is responsible for all functions of DHS and its component organizations. He is sued

19 in his official capacity.

20

14. Defendant Department of Homeland Security is a federal agency charged with, inter

21 alia, the administration and enforcement of federal immigration laws. DHS promulgated the rule

22 entitled “Safe Harbor Procedures for Employers That Receive a No Match Letter,” 72 Fed. Reg.

23 45611 (Aug. 15,2007), that is challenged in this litigation. Defendant U.S. Immigration and

24

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1 Customs Enforcement (“ICE”) is a federal agency within DHS responsible for investigating and

2 enforcing immigration laws, including 8 U.S.C. § 1324a. DHS and ICE created the DHS/ICE

3 Guidance Letter regarding the DHS Final Rule that the SSA intends to send to employers along

4 with its “no-match” letters.

5

15. Defendant Julie Myers is the Assistant Secretary of Homeland Security for ICE

6 and is responsible for all functions of ICE and its component organizations. She is sued in her

7 official capacity.

8

16. Defendant Social Security Administration is a federal agency charged with

9 administration of the Social Security Act, and with processing tax information for the purpose of

10 administering the Social Security program. Defendant SSA maintains databases of tax

11 information and periodically generates “no-match” letters to employers that submit Forms W-2

12 to report employee earnings if employee names and Social Security Numbers do not match SSA

13 records. See 42 U.S.C. §432; 20 C.F.R. §422.120.

14

17. Defendant Michael Astrue is the Commissioner of Social Security and is

15 responsible for all programs administered by the SSA. He is sued in his official capacity.

16

FACTS

17

18. The Social Security Act of 1935 authorizes the SSA to establish a record-keeping

18 system to manage the Social Security program. Congress also granted SSA authority to process

19 tax information for purposes of administering the Social Security program, as a specific exception

20 to the exclusive tax authority of the Internal Revenue Service (IRS). See 26 U.S.C. §6103 (1)(5);

21 42 U.S.C. §432. Pursuant to that delegation of authority, the IRS and SSA created a joint system

22 for the processing of Forms W-2 called the Combined Annual Wage Reporting System (CAWR).

23 43 Fed. Reg. 60158 (Dec. 26, 1978) (codified at 26 C.F.R. §31.6051).

24

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1

19. Under the CAWR, employers annually report employee earnings using Forms W-

2 2, and SSA posts those earnings to individual workers' Social Security records so workers will

3 receive credit for those earnings when they apply for Social Security. The SSA then forwards the

4 Forms W-2 to the IRS.

5

20. If the SSA cannot match the name and Social Security Number (SSN) on a Form

6 W-2 with SSA's records, the SSA places the earnings report in its Earnings Suspense File. See 20

7 C.F.R §422.120. The earnings remain in the Earnings Suspense File until SSA can link them to a

8 name and SSN. Every year, the SSA receives millions of earnings reports that the SSA cannot

9 match with its records. On information and belief, the Earnings Suspense File is a huge database

10 that contains more than 255 million unmatched earnings records and that is growing at the rate of

11 8 to 11 million unmatched records per year. About four percent of annual Form W-2 earnings

12 reports are placed in the SSA's Earnings Suspense File. Although some mismatched SSA records

13 result from employees without work authorization using false SSNs, there also are many reasons

14 unrelated to immigration status for mismatched records. These include a) clerical errors by either

15 an employer or the SSA in spelling an employee's name or recording the SSN; b) the SSA's

16 issuance of duplicate SSNs or reissuance of SSNs of deceased individuals; c) employee name

17 changes after marriage or divorce; d) employees that use a less “foreign” sounding first name for

18 work purposes; and e) different naming conventions (such as the use of multiple surnames) that

19 are commonplace in many parts of the world, particularly in some Latin American and Asian

20 countries.

21

21. The most recent Government Accountability Office (GAO) report on the SSA's

22 Earnings Suspense File concluded that the file “[c]ontains information about many U.S. citizens

23 as well as non-citizens” and that “the overall percentage of unauthorized workers is unknown.”

24

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1 GAO-06-814R, at 8 (emphasis added). When the SSA ultimately has been able to resolve data

2 discrepancies, “most... belong to U.S.-born citizens, not to unauthorized workers,” which GAO

3 concluded “is an indication that a significant number of earnings reports in the [Earnings

4 Suspense File] belong to U.S. Citizens and work-authorized noncitizens.” Id.

5

22. As part of its administration of the Social Security program, SSA periodically

6 sends out letters, commonly known as “no-match” letters, informing employers that SSNs and

7 employee names reported on Forms W-2 did not match SSA's records. See 20 C.F.R. § 422.120.

8

23. SSA no-match letters are purely advisory. SSA has no authority to sanction

9 employers that fail to respond to no-match letters.

10

24. Pursuant to its regulations, SSA notifies the IRS of incomplete or inaccurate

11 earnings reports. 20 C.F.R. §422.120. In 1986, Congress authorized IRS to impose sanctions on

12 employers that submit false or inaccurate tax information. 26 U.S.C. §6721; see also 26 C.F.R.

13 §301.6721-1. Under IRS regulations, an employer is not subject to sanction if the employer

14 accurately and in good faith transmits the name and SSN provided by an employee. 26 U.S.C.

15 §6724(a); 26 C.F.R. §301.6724-1.

16

25. Insofar as the Internal Revenue Code is concerned, a reasonable employer

17 response to a no-match letter is to confirm that the employer is accurately transmitting the name and

18 SSN provided by the employee and to advise the employee that SSA is reporting a no-match. Id.

19

26. SSA is not an immigration agency and does not know whether a particular SSN

20 listed in a no-match letter relates to unauthorized work. SSA also is prohibited by tax privacy

21 statutes from sharing the information in the Earnings Suspense File with the DHS. Until now,

22 SSA's no-match letters explained to employers: “This letter does not imply that you or your

23

24

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1 employee intentionally gave the government wrong information” and “makes no statement

2 regarding an employee's immigration status.”

3

27. Until now, the SSA has never included information from an immigration-

4 enforcement agency with its no-match letters. The Immigration Reform and Control Act of 1986

5 (“IRCA”) made it unlawful for employers to “to hire ... for employment in the United States an

6 alien knowing the alien is an unauthorized alien.” 8 U.S.C. §1324a(a)(l)(A).

7

28. IRCA also separately made it unlawful for employers to hire without complying with

8 an initial verification process established by Congress. 8 U.S.C. §1324a(a)(l)(B). That

9 verification process requires the employee to present the employer with documents to show proof

10 of identity and work authorization and requires the employer and employee to complete an 1-9

11 verification form. 8 U.S.C. §1324a(b); 8 C.F.R. §274a.2.

12

29. IRCA also makes it unlawful for an employer “to continue to employ an alien ...

13 knowing the alien is (or has become) an unauthorized alien with respect to such employment.” 8

14 U.S.C. §1324a(a)(2).

15

30. IRCA specifically exempted workers hired before IRCA's enactment on November

16 6, 1986, from the hiring prohibition and the verification process. Pub. L. No. 99-603 § 101(a)(3),

17 100 Stat. 3359 (1986) (codified at 8 U.S.C. § 1324a note).

18

31. Employers that violate IRCA are subject to civil and criminal liability. 8 U.S.C.

19 §1324a(e)(4)-(5),(f).

20

32. At the same time that Congress imposed employer sanctions, Congress also

21 wanted to prevent employer discrimination based on national origin or citizenship status. IRCA

22 therefore makes it illegal for employers to discriminate based on national origin or citizenship

23 status, including by requesting “more or different documents than are required” for the initial 1-9

24

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1 verification or “refusing to honor documents ... that on their face reasonably appear to be genuine,

2 for the purpose of discriminating on the basis of national origin or citizenship.” 8 U.S.C.

3 §1324b(a)(l),(6).

4

33. Congress deliberately chose not to impose ongoing re-verification requirements

5 after the initial hire, recognizing that the imposition of added expenses and duties on employers

6 beyond that involved in a prohibition against the “knowing” hiring or retention of unauthorized

7 workers might tempt more employers to avoid hiring noncitizens or persons of foreign national

8 origin in the first instance—a prospect Congress sought to avoid—and might also endanger the

9 support of the employer community, which has long opposed regulations making the hiring and

10 retention of employees more costly.

11

34. Until now, neither DHS nor its predecessor immigration-enforcement agencies had

12 taken the position that an employer's failure to inquire into the work-authorization status of an

13 employee subject to an SSA no-match letter meant that the employer had knowledge that it was

14 employing an unauthorized worker. The Immigration and Naturalization Service had recognized

15 that no-match discrepancies occur for many innocent reasons and therefore consistently advised

16 employers in opinion letters that “[w]e would not consider notice of this discrepancy from SSA to

17 an employer by itself to put the employer on notice that the employee is unauthorized to work.”

18

35. On June 14, 2006, DHS gave notice of a proposed rule that would address the

19 responsibilities of employers that receive SSA no-match letters. More than 5,000 comments were

20 received by DHS during the 60-day comment period, including comments that disputed DHS’

21 authority to adopt the rule. Plaintiffs UNITE HERE and ______ were among those who submitted

22 comments objecting to the rule. The comment period closed on August 14, 2006.

23

24

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1

36. DHS issued a final rule on August 15, 2007 (hereinafter, the “DHS Final Rule”).

2 The DHS Final Rule is entitled “Safe-Harbor Procedures for Employers Who Receive a No-Match

3 Letter,” and is published at 72 Fed. Reg. 45611.

4

37. The DHS Final Rule will amend the definition of “knowing” in 8 C.F.R.

5 §274a.l(l)(l), the regulatory subsection that purports to define the term “knowing” for purposes

6 of IRCA. The amended regulation will list, as an example of an employer that has “constructive

7 knowledge” that an employee is an “unauthorized alien,” an employer that receives a SSA no-match

8 letter and then “fails to take reasonable steps.” The first part of the amended regulation will

9 provide:

10

(1)(1) The term knowing includes having actual or constructive knowledge....

11

Examples of situations where the employer may, depending upon the totality of

12

the relevant circumstances, have constructive knowledge that an employee is an

13

unauthorized alien include, but are not limited to, situations where the employer:

14

…

15

(iii) Fails to take reasonable steps after receiving information indicating that the

16

employee may be an alien who is not employment authorized, such as –

17 (B) Written notice to the employer from the Social Security Administration
18 reporting earnings on a Form W-2 that employees' names and corresponding
19 social security account numbers fail to match Social Security Administration
20 records ....
21

22

38. Having created a threat of IRCA liability for employers receiving SSA no-match

23 letters by deeming receipt of a no-match letter to be evidence that the employer “know[s]” that

24 listed persons are unauthorized aliens, the DHS Final Rule then offers employers what it terms a

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1 “safe harbor.” An employer receiving a SSA no-match letter “will be considered by the

2 Department of Homeland Security to have taken reasonable steps - and receipt of the written

3 notice will therefore not be used as evidence of constructive knowledge - if the employer” takes

4 the actions specified by DHS. These are “the only combination of steps that will guarantee that

5 DHS will not use the employer's receipt of the notices from SSA ... as evidence of constructive

6 knowledge that an employee is an unauthorized alien.” 72 Fed. Reg. at 45618.

7

39. To qualify for the DHS “safe harbor,” an employer must check its own records

8 within 30 days of receipt of an SSA no-match letter to determine if the no-match was the result

9 of its own clerical error. If the employer determines the no-match was not the result of its own

10 clerical error, it must instruct instruct an employee who claims the name and SSN are correct to

11 resolve the discrepancy with SSA within 90 days after the employer’s receipt of the no-match

12 letter. If the employee is unable to resolve the discrepancy with SSA within that 90-day period,

13 the employer is prohibited from continuing to employ the worker unless the worker can complete

14 within three days a new immigration verification, on a new Form I-9, using only documents that

15 contain photo identification and no documents that contain the disputed SSN, even if the employee

16 still insists the SSN is correct. The DHS “safe harbor” is thus structured so that employees are

17 guaranteed only 60 days to resolve the discrepancy with SSA, because the DHS rule gives the

18 employer 30 days to check its own records without notifying the employee, and only after this

19 initial step is complete need it advise the employee of the no-match. (Indeed, because the

20 employer need not advise the employee immediately, but only reasonably promptly, at the end of

21 the 30-day period, employees will often have fewer than 60 days.) If employees insist their

22 names and SSNs on their identification documents are correct but have not resolved the

23

24

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1 discrepancy with SSA by the deadline, or cannot produce the required additional photo

2 identification, the employer would have to terminate them.

3

40. DHS and SSA intend to send employers no-match letters that will be accompanied

4 by a letter from DHS and ICE (hereinafter the “DHS/ICE Guidance Letter”). The DHS/ICE

5 Guidance Letter states that it will “provide guidance on how to respond to the enclosed letter

6 from the Social Security Administration (SSA). . . in a manner that is consistent with your

7 obligations under United States Immigration Laws.”

8

41. The DHS/ICE Guidance Letter contains questions and answers, which begin with

9 the following:

10

Q: Can I simply disregard the letter from SSA?

11

A: No. You have received official notification of a problem that may have significant

12

legal consequences for your employees. If you elect to disregard the notice you have

13

received and it is determined that some employees listed in the enclosed letter were not

14

authorized to work, the Department of Homeland Security (DHS) could determine that you

15

have violated the law by knowingly continuing to employ unauthorized persons. This could

16

lead to civil and criminal sanctions.

17

42. After threatening employers with civil and criminal liability, the DHS/ICE Guidance

18 Letter then asks: “Q: What should I do?” and responds that “You should” follow the steps set

19 out in the DHS Final Rule.

20

43. The DHS/ICE Guidance Letter assures employers that, if they follow those

21 procedures for every no-match, they will not be liable for discrimination if they terminate

22 employees:

23

24

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1

Q: Will I be liable for discrimination charges brought by the United States if I

2

terminate the employee after I follow the steps outlined above?

3

A: No

4

44. SSA has revised its no-match letters so that they direct employers to follow the

5 instructions in the accompanying DHS/ICE Guidance Letter.

6

45. SSA and DHS intend to commence sending the revised no-match letters and the

7 DHS/ICE Guidance Letter to employers imminently. Prior to the TRO entered in this case, the

8 SSA expected by November 9, 2007 to mail no-match letters to approximately 140,000

9 employers around the country. Several million employees will be affected by this mailing.

10

46. SSA will continue to mail additional batches of no-match letters after November

11 9, 2007, to numerous other employers.

12

47. The DHS, by promulgating its Rule, intended to cause, and will cause, most of the

13 140,000 employers who receive no-match letters accompanied by the DHS/ICE Guidance Letter

14 to alter their conduct so as to avoid civil or criminal penalty proceedings initiated by DHS, ICE,

15 or the U.S. Department of Justice. The investigation that recipient employers will be compelled

16 to immediately perform will impose substantial administrative costs on employment.

17

48. A substantial portion of the several million no-match SSNs that are listed in the

18 initial round of SSA no-match letters will relate to U.S. citizens or non-citizens lawfully entitled

19 to work. On information and belief, a substantial number of these workers are represented by the

20 plaintiffs in this case, such as plaintiffs UNITE HERE Local 2 and UFCW Local 5.

21

49. As a result of implementation of the DHS Final Rule, including the DHS/ICE

22 Guidance Letter, lawfully employed workers will immediately be forced to expend time and

23 effort to resolve SSA data discrepancies, including taking time off work without pay to visit SSA

24

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1 field offices that are open only during business hours and that will be overwhelmed with similar

2 requests from other workers as well as the other business of the SSA.

3

50. Many lawfully employed workers, including those employed by plaintiffs or their

4 local unions, will be unable to resolve data discrepancies with the SSA bureaucracy within the

5 60-day period provided for in the DHS Final Rule and will for that reason be terminated from

6 their jobs. SSA already has told DHS that in “difficult cases,” SSA may be unable to resolve

7 discrepancies within the timeframe established by the Rule.

8

51. Because plaintiffs have, in the past, devoted resources to representing lawfully

9 authorized employees wrongly discharged or threatened with discharge by reason of an

10 employer’s receipt of a no-match letter, and because the DHS Final Rule is designed to induce,

11 and can be expected to induce, far more employers to use no-match letters as grounds for

12 terminating or threatening the termination of employees, the plaintiffs expect that if the Rule

13 goes into effect, plaintiffs will be required to expend more scarce resources on no-match issues

14 instead of on matters that would further their other legitimate objectives as representatives of

15 employees.

16

FIRST CLAIM FOR RELIEF

17

(Violation by DHS of 8 U.S.C. §1324a and 5 U.S.C. §706(2)(A))

18

52. Plaintiffs incorporate by reference all preceding paragraphs as if fully set forth

19 herein.

20

53. The DHS Final Rule, on its face and as proposed to be implemented through the

21 DHS/ICE Guidance Letter, is inconsistent with the governing statute, 8 U.S.C. §1324a, because

22 it expands civil and criminal liability for employers based on a definition of “knowing” that is

23 inconsistent with that word’s plain meaning and inconsistent with Congress’ intent in IRCA in

24

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Case 3:07-cv-04472-CRB Document 70 Filed 09/14/2007 Page 18 of 24

1 limiting employer liability to “knowing” violations. The DHS Final Rule, on its face and as

2 proposed to be implemented through the DHS/ICE Guidance Letter, is also inconsistent with the

3 governing statute because it establishes a duty to reverify the work authorization status of

4 continuing employees that is not consistent with Congress’ intent to establish a system of

5 verification of work-authorization status only upon initial hire with no continuing duty to

6 investigate. The DHS Final Rule is agency action “not in accordance with law” and violates 5

7 U.S.C. §706(2)(A).

8

SECOND CLAIM FOR RELIEF

(Violation by DHS of 5 U.S.C. §706(2)(A))

9 54. Plaintiffs incorporate by reference all preceding paragraphs as if fully set forth

10 herein.

11 55. The DHS Final Rule, on its face and as proposed to be implemented through the

12 DHS/ICE Guidance Letter, is “arbitrary” and “capricious” agency action in violation of 5 U.S.C.

13 §706(2)(A), because it is predicated on a fiction to the effect that bare receipt of a no-match letter

14 by an employer constitutes evidence that each employee listed in such a letter is known by the

15 employer to be an unauthorized alien, and because it treats the receipt of an SSA no-match letter

16 as indicating a high probability that a mismatched SSN relates to unauthorized work when in fact

17 DHS does not know the probability that such an SSN relates to unauthorized work and did not

18 identify or rely on any evidence in the administrative record establishing that probability.

19 56. The DHS Final Rule is also arbitrary and capricious because DHS failed to

20 engage in reasoned decision-making, inasmuch as the Rule lacks any rational connection

21 between facts relied upon and the choices made by the agency, and the agency—which for over a

22 decade had said, through its predecessor agencies, that an employee’s appearance on a no-match

23 letter did not establish constructive knowledge that the listed employee was unauthorized—

24

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Case 3:07-cv-04472-CRB Document 70 Filed 09/14/2007 Page 19 of 24

1 reversed course in interpreting and applying 8 U.S.C. § 1324a without providing a sufficient

2 explanation for the reversal.

3

THIRD CLAIM FOR RELIEF

(Violation by DHS of 5 U.S.C. §706(2)(C))

4 57. Plaintiffs incorporate by reference all preceding paragraphs as if fully set forth

5 herein.

6 58. The DHS Final Rule, on its face and as proposed to be implemented through the

7 DHS/ICE Guidance Letter, exceeds DHS’ statutory authority, in violation of 5 U.S.C.

8 §706(2)(C), by seeking to impose immigration-law obligations on employers and employees in

9 responding to an SSA no-match letter.

10 FOURTH CLAIM FOR RELIEF

11

(Violation by DHS, ICE and SSA of 5 U.S.C. §706(2)(B) and Due Process Clause)

12

59. Plaintiffs incorporate by reference all preceding paragraphs as if fully set forth

13 herein.

14

60. The DHS Final Rule and DHS/ICE Guidance Letter, and SSA’s distribution of that

15 letter with its no-match letters, will impose unreasonable deadlines on employers and employees

16 and will cause some lawfully employed workers to be fired from their jobs without due process

17 because of erroneous government databases, and because SSA is not able to resolve a data

18 discrepancy by an arbitrary deadline. As such, Defendants' actions violate 5 U.S.C. §706(C) and

19 the Due Process Clause of the U.S. Constitution.

20
21 61.
22 herein.
23

FIFTH CLAIM FOR RELIEF (Ultra Vires Agency Action by DHS and ICE)
Plaintiffs incorporate by reference all preceding paragraphs as if fully set forth

24

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Case 3:07-cv-04472-CRB Document 70 Filed 09/14/2007 Page 20 of 24

1

62. The DHS' Rule and DHS/ICE Guidance Letter are ultra vires actions in excess of

2 statutory authority granted to DHS, ICE, and SSA by Congress.

3

SIXTH CLAIM FOR RELIEF

(Violation by DHS, ICE and SSA of 5 U.S.C. §706(2)(C))

4 63. Plaintiffs incorporate by reference all preceding paragraphs as if fully set forth

5 herein.

6 64. DHS, ICE, and SSA have no statutory authority to use the SSA tax information

7 processing system in general, and the SSA no-match letters in particular, as tools for the

8 enforcement of immigration laws.

9 65. The plan by DHS, ICE, and SSA to include the DHS/ICE Guidance Letter to

10 employers along with SSA no-match letters is agency action in excess of the statutory authority

11 of DHS, ICE, and SSA, and therefore violates 5 U.S.C. §706(2)(C).

12

13

SEVENTH CLAIM FOR RELIEF

14

(Ultra Vires Agency Action by SSA, DHS, and ICE)

15

66. Plaintiffs incorporate by reference all preceding paragraphs as if fully set forth

16 herein.

17

67. DHS, ICE, and SSA have no statutory authority to use the SSA tax information

18 processing system in general, and the SSA no-match letters in particular, as tools for the

19 enforcement of immigration laws.

20

68. The plan by DHS, ICE, and SSA to include the DHS/ICE Guidance Letter to

21 employers along with SSA no-match letters exceeds the statutory authority of DHS, ICE, and

22 SSA, and therefore each agency is acting ultra vires and in violation of the statutes delegating

23 authority to those agencies.

24

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Case 3:07-cv-04472-CRB Document 70 Filed 09/14/2007 Page 21 of 24

1

PRAYER FOR RELIEF

2 WHEREFORE, Plaintiffs pray that the Court:

3

1. Enter a preliminary injunction, pending a decision on the merits, that enjoins

4 Defendants from implementing the Department of Homeland Security rule entitled “Safe Harbor

5 Procedures for Employers That Receive a No Match Letter,” 72 Fed. Reg. 45611 (Aug.15, 2007),

6 including by commencing the mailing of new SSA “no-match” letter packets that include the

7 DHS/ICE Guidance Letter concerning the DHS Final Rule.

8

2. Upon hearing the merits, enter a declaratory judgment that the DHS Final Rule is

9 invalid and a permanent injunction to prohibit Defendants from implementing or otherwise

10 giving effect to the DHS Final Rule.

11

3. Award Plaintiffs their costs and expenses, including reasonable attorney's fees and

12 expert witness fees; and

13

4. Award such further and additional relief as is just and proper.

14

15

Respectfully submitted,

16

_______/s/_________________

Matthew Ross (SBN 084703)

17

Philip Monrad (SBN 151073)

LEONARD, CARDER, LLP

18

1330 Broadway, Suite 1430

Oakland, CA 94612

19

Telephone: (510) 272-0169

Facsimile: (510) 272-0174

20

Email:

MRoss@leonardcarder.com;

PMonrad@leonardcarder.com

21 Robert M. Weinberg

22

Leon Dayan

Jennifer L. Hunter

23

BREDHOFF & KAISER, PLLC

805 Fifteenth Street, NW, Tenth Floor

24

Washington, D.C. 20008

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1 2 3 4 5 Dated: September 14, 2007

Telephone: Facsimile: Email:

(202) 842-2600 (202) 842-1888 LDayan@bredhoff.com; JHunter@bredhoff.com

Attorneys for Plaintiff-Intervenors UFCW et al.

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1

CERTIFICATE OF SERVICE

2

I hereby certify that on September 14, 2007, I electronically filed the foregoing 3
COMPLAINT IN INTERVENTION OF UNITED FOOD AND COMMERCIAL 4 WORKERS INTERNATIONAL UNION, UNITED FOOD AND COMMERCIAL
WORKERS LOCAL 5, UNITE HERE, and UNITE HERE LOCAL 2 5
with the Clerk of the Court using the CM/ECF system which will send notification of 6
such filing to the e-mail addresses denoted below:

7 Ana L. Avendano AFL-CIO
8 aavendan@aflcio.org

Danielle Evelyn Leonard Altshuler Berzon LLP dleonard@altshulerberzon.com

9 James B. Coppess AFL-CIO
10 jcoppell@aflcio.org

Jonathan David Weissglass Altshuler Berzon LLP jweissglass@altshulerberzon.com

11 Linda Lye Altshuler Berzon LLP
12 llye@altshulerberzon.com

Scott Alan Kronland Altshuler Berzon LLP skronland@altshulerberzon.com

13 Stephen P. Berzon Altshuler Berzon LLP
14 sberzon@altshulerberzon.com
15 Alan Lawrence Schlosser
16 ACLU Foundation of Northern California aschlosser@aclunc.org
17 Julia Harumi Mass, Esq.
18 American Civil Liberties Union of Northern California
19 jmass@aclunc.org

David Albert Rosenfeld Manjari Chawla Weinberg Roger & Rosenfeld courtnotices@unioncounsel.net
Jennifer C. Chang ACLU Immigrants’ Rights Project jchang@aclu.org
Linton Joaquin National Immigration Law Center Joaquin@nilc.org

20 Lucas Guttentag ACLU Immigrants’ Rights Project
21 lguttentag@aclu.org

Marielena Hincapie National Immigration Law Center mhincapie@nilc.org

22

23

24

Complaint in Intervention Case No. 3:07-cv-04772(CRB)

23

Case 3:07-cv-04472-CRB Document 70 Filed 09/14/2007 Page 24 of 24

1 Monica Teresa Guizar National Immigration Law Center
2 guizar@nilc.org

Monica Maria Ramirez ACLU Immigrants’ Rights Project mramirez@aclu.org

3 Omar C. Jadwat ACLU Immigrants’ Rights Project
4 ojadwat@aclu.org

Daniel Benzing U.S. Dept. of Justice Daniel.Bensing@USDOJ.gov

5 Jonathan Unruh Lee U.S. Attorneys Office
6 Jonathan.lee@usdoj.gov

Robert P. Charrow Greenberg Traurig LLP charrowr@gtlaw.com

7 Laura M. Klaus Greenberg Traurig, LLP
8 klausl@gtlaw.com

William J. Goines Greenberg Traurig, LLP goinesw@gtlaw.com

9 Karen Rosenthal Greenberg Traurig, LLP
10 rosenthalk@gtlaw.com

Cindy Hamilton Greenberg Traurig, LLP hamiltonc@gtlaw.com

11 I declare under penalty of perjury under the laws of the State of California that the
12 foregoing is true and correct.

13

Executed at Oakland, California, on September 14, 2007.

14

15

/s/ Kris Paschall

16

Kris Paschall

Legal Secretary

17

18

19

20

21

22

23

24

Complaint in Intervention Case No. 3:07-cv-04772(CRB)

24

 
 Case 3:07-cv-04472-CRB Document 121 Filed 09/26/2007 Page 1 of 23

1 Matthew Ross (SBN 084703)

Philip Monrad (SBN 151073)

2 LEONARD, CARDER, LLP

1330 Broadway, Suite 1430

3 Oakland, CA 94612

Telephone: (510) 272-0169

4 Facsimile: (510) 272-0174

Email:

MRoss@leonardcarder.com; PMonrad@leonardcarder.com

5

Robert M. Weinberg (pro hac vice application forthcoming)

6 Leon Dayan

(pro hac vice application forthcoming)

Jennifer L. Hunter (pro hac vice application forthcoming)

7 BREDHOFF & KAISER, PLLC

805 Fifteenth Street, NW, Tenth Floor

8 Washington, D.C. 20008

Telephone: (202) 842-2600

9 Facsimile: (202) 842-1888

Email:

LDayan@bredhoff.com; JHunter@bredhoff.com

10

Attorneys for Plaintiff-Intervenors

11

UNITED STATES DISTRICT COURT

12 NORTHERN DISTRICT OF CALIFORNIA

13 AMERICAN FEDERATION OF LABOR

14

AND CONGRESS OF INDUSTRIAL ORGANIZATIONS; SAN FRANCISCO

LABOR COUNCIL; SAN FRANCISCO

15 BUILDING AND CONSTRUCTION

TRADES COUNCIL; and CENTRAL

16 LABOR COUNCIL OF ALAMEDA COUNTY,

) ) Case No.: 07-04472(CRB) ) ) ) ) AMENDED COMPLAINT IN ) INTERVENTION OF UNITED FOOD

17

Plaintiffs,

) AND COMMERCIAL WORKERS ) INTERNATIONAL UNION, UNITED

18

v.

) FOOD AND COMMERCIAL WORKERS ) LOCAL 5, UNITE HERE, UNITE HERE

19 MICHAEL CHERTOFF, Secretary of Homeland Security; DEPARTMENT OF

) LOCAL 2, and CHANGE TO WIN ) (Administrative Procedures Act Case)

20 21

HOMELAND SECURITY; JULIE MYERS, )

Assistant Secretary of Homeland Security; U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT; MICHAEL ASTRUE,

) )

Commissioner of Social Security; and

)

22 SOCIAL SECURITY ADMINISTRATION, )

)

23

Defendants.

)

)

24 Amended Complaint in Intervention Case No. 3:07-cv-04472(CRB)

Case 3:07-cv-04472-CRB Document 121 Filed 09/26/2007 Page 2 of 23

1 SAN FRANCISCO CHAMBER OF

)

COMMERCE,

)

2 3

CUGNHANAATITTEIMEORDBNEEASSRTLTAOARTFOUECORSOAFOIMNNFTMGAAECMSROESCNORETICCORIAAFATCT, IGHTOOOENRL, DS EN)))

ASSOCIATION, AMERICAN NURSERY & )

4 LANDSCAPE ASSOCIATION,

)

INTERNATIONAL FRANCHISE

)

5

ASSOCIATION, and UNITED FRESH PRODUCE ASSOCIATION,

) )

6

Plaintiff-Intervenors,

)

)

7

v.

)

)

8

MICHAEL CHERTOFF, Secretary of Homeland Security; DEPARTMENT OF

HOMELAND SECURITY;

) )

9 JULIE MYERS, Assistant Secretary of

)

Homeland Security; U.S. IMMIGRATION )

10 AND CUSTOMS ENFORCEMENT;

)

MICHAEL ASTRUE, Commissioner of Social)

11

Security; and SOCIAL SECURITY ADMINISTRATION,

) )

12

Defendants.

)

___________________________________ )

13

)

14

UNITED FOOD AND COMMERCIAL WORKERS INTERNATIONAL UNION;

) )

UNITED FOOD AND COMMERCIAL

)

15 WORKERS LOCAL 5; UNITE HERE;

)

UNITE HERE LOCAL 2; and CHANGE TO )

16 WIN,

)

17

Plaintiff-Intervenors,

) )

v.

)

18

)

MICHAEL CHERTOFF, Secretary of

)

19 Homeland Security; DEPARTMENT OF )

20

HOMELAND SECURITY; JULIE MYERS, Assistant Secretary of Homeland Security; U.S. IMMIGRATION AND CUSTOMS

) )

ENFORCEMENT; MICHAEL ASTRUE, )

21 Commissioner of Social Security; and

)

SOCIAL SECURITY ADMINISTRATION, )

22

)

Defendants.

23

24 Amended Complaint in Intervention Case No. 3:07-cv-04472(CRB)

Case 3:07-cv-04472-CRB Document 121 Filed 09/26/2007 Page 3 of 23

1 Plaintiff-Intervenors (hereinafter “Plaintiffs”) allege as follows:

2

OVERVIEW

3

1. The Immigration Reform and Control Act of 1986 (IRCA or “Act”), 8 U.S.C. §

4 1324a et seq., imposes civil and criminal sanctions against employers who hire a person

5 “knowing” that the person is an alien unauthorized to work in the United States, or who continue

6 to employ a person “knowing” that the person is an unauthorized alien. This action challenges

7 the validity of a final rule adopted by the Department of Homeland Security on August 15, 2007,

8 entitled “Safe Harbor Procedures for Employers That Receive a No Match Letter.” 72 Fed. Reg.

9 45611 (Aug. 15, 2007) (“DHS Final Rule” or “Rule”).

10

2. The DHS Final Rule has two components: First, it creates a legal fiction by

11 deeming the bare receipt by an employer of a “no-match” letter from the Social Security

12 Administration (SSA)—a letter stating that a social security number (SSN) reported by the

13 employer with respect to a particular employee does not match the SSN in the SSA’s (error-

14 prone) database—to constitute evidence that the employer “know[s]” that the employee in

15 question is an alien not authorized to work in the United States. Second, the Rule requires

16 employers in receipt of a no-match letter to conduct a prescribed investigation and follow other

17 specified procedures for a period running 93 days, in order to determine whether the listed

18 person is likely to be an unauthorized alien. The employer may use the first 30 days to examine

19 its own records, and need allow the employee only the remaining 63 days to resolve the

20 discrepancy by working through the Social Security Administration bureaucracy or otherwise.

21 If, at the end of the 93-day period, the mismatch has not been resolved in a manner favorable to

22 the employee, the Rule provides that the employer, while insulated from liability for that period,

23 becomes exposed to liability for a “knowing” IRCA violation immediately thereafter unless it

24 terminates the employee at once.

Amended Complaint in Intervention Case No. 3:07-cv-04772(CRB)

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Case 3:07-cv-04472-CRB Document 121 Filed 09/26/2007 Page 4 of 23

1

3. In adopting the Rule, the DHS has imposed on employers a duty to investigate

2 and reverify the immigration status of already-hired workers upon learning information that

3 neither establishes that the workers in question are in fact unauthorized aliens or that they are

4 even highly likely to be unauthorized aliens. Imposition of such a duty is inconsistent with

5 Congress’ deliberate choice to make “knowledge” the standard of scienter for such IRCA

6 violations, and with Congress’ concomitant choice to reject a negligence standard or any other

7 standard that could be plausibly construed to encompass such a duty.

8

4. Imposition of this duty on employers will have a direct, adverse impact on U.S.

9 citizen employees and other employees authorized to work in the United States, because under

10 the DHS Final Rule, authorized employees listed on a no-match letter will be compelled in many

11 instances to go to SSA offices during working hours and to convince the SSA bureaucracy to

12 correct its records in a period of as little as sixty days—a period that even the Rule’s preamble

13 acknowledges will be insufficient in the most difficult cases, and that, in truth, will all but

14 certainly be insufficient in many other cases as well.

15

5. Plaintiffs each act in two separate capacities. Each plaintiff is a labor

16 organization that represents employees of other employers, and each is also an employer of its

17 own staff employees. Plaintiffs challenge the DHS Final Rule both (a) in their representative

18 capacity on behalf of the workers in the bargaining units that they or their local unions represent,

19 in order to prevent harm to employees and labor organizations that the Rule will cause, and (b) in

20 their separate capacity as employers, to prevent the harms to their interest as employers which

21 would result from their being threatened with civil and criminal sanctions for conduct that

22 Congress did not intend to penalize, and their interest in not being compelled to expend scarce

23

24

Amended Complaint in Intervention Case No. 3:07-cv-04772(CRB)

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Case 3:07-cv-04472-CRB Document 121 Filed 09/26/2007 Page 5 of 23

1 resources conducting investigations and inquiries that Congress did not intend for them to have

2 to conduct.

3

JURISDICTION

4

6. This Court has jurisdiction over the claims alleged in this Complaint pursuant to

5 28 U.S.C. § 1331 (federal question), 28 U.S.C. § 2201 (declaratory relief), and 5 U.S.C. §§ 701-

6 706 (Administrative Procedures Act).

7

VENUE AND INTRA-DISTRICT ASSIGNMENT

8

7. Venue is proper in this Court pursuant to 28 U.S.C. § 1391(e), because the venue

9 here was properly laid in the original complaint that initiated this action. Even viewing the

10 instant complaint-in-intervention independently from the original complaint, venue would lie,

11 because plaintiffs UNITE HERE Local 2 and United Food and Commercial Workers (UFCW)

12 Local 5 reside in this judicial district. For the same reasons, intradistrict assignment to the San

13 Francisco and Oakland divisions is proper.

14

PARTIES

15

8. Plaintiff United Food and Commercial Workers International Union (UFCW) is

16 an international union representing 1.3 million working grocery, food processing, retail,

17 manufacturing, and other workers throughout the United States. UFCW is one of the largest

18 unions that has a substantial proportion of immigrant members. UFCW was one of the labor

19 organizations which submitted comments objecting to the DHS Final Rule. UFCW is also an

20 employer. UFCW’s headquarters is located at 1775 K Street NW, Washington, District of

21 Columbia, 20006.

22

9. Plaintiff UFCW Local 5 is a labor organization that represents approximately

23 25,000 employees, including employees lawfully working in the United States in the food, retail,

24

Amended Complaint in Intervention Case No. 3:07-cv-04772(CRB)

5

Case 3:07-cv-04472-CRB Document 121 Filed 09/26/2007 Page 6 of 23

1 and agriculture industries who have been the subject of SSA no-match letters sent to their

2 employers. An important part of Local 5’s mission is to advocate on behalf of workers so that

3 their rights in the workplace are protected and so that they are not victims of unlawful

4 discrimination. Local 5 represents many members of Latin American and Asian descent who

5 use compound last names or inconsistently transliterate their names, which may result in

6 inadvertent errors or discrepancies in their SSA records. UFCW Local 5 was formed from a

7 merger of smaller local unions, and is the successor in interest to the merged unions; therefore

8 references to UFCW Local 5 in this Complaint refer as well to the predecessor entities whose

9 interests it succeeds. UFCW Local 5 is an employer with respect to its own staff employees,

10 and, in its capacity as an employer, UFCW Local 5 has in the past received an SSA no-match

11 letter and there is a substantial possibility that it could receive another such letter in the future.

12 The headquarters of UFCW Local 5 are located at 240 South Market Street San Jose, 95113.

13 Local 5 also has sub-offices in Alameda and Contra Costa counties, among others.

14

10. Plaintiff UNITE HERE is an international union representing a diverse

15 membership of more than 450,000 in the apparel and textiles, hotel, casino, food service, and

16 restaurant industries. A substantial proportion of UNITE HERE’s membership is composed of

17 immigrants. UNITE HERE was one of the labor organizations which submitted comments

18 objecting to the DHS Final Rule. UNITE HERE is also an employer. UNITE HERE’s

19 headquarters is located at 275 7th Avenue, New York, New York, 10001.

20

11. Plaintiff UNITE HERE Local 2 is a labor organization that represents

21 approximately 12,000 employees, including employees lawfully working in the United States

22 who have been the subject of SSA no-match letters sent to their employers. UNITE HERE Local

23 2 has in the past successfully represented, including in cases litigated before arbitrators,

24

Amended Complaint in Intervention Case No. 3:07-cv-04772(CRB)

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Case 3:07-cv-04472-CRB Document 121 Filed 09/26/2007 Page 7 of 23

1 employees unjustly discharged in response to no-match letters. A substantial portion of Local

2 2’s members work in the hospitality industry. An important part of Local 2’s mission is to

3 advocate on behalf of workers so that their rights in the workplace are protected and so that they

4 are not victims of unlawful discrimination. Local 2 represents many members of Latin

5 American and Asian descent who use compound last names or inconsistently transliterate their

6 names, which may result in inadvertent errors or discrepancies in their SSA records. Local 2 is

7 also an employer. Local 2 is a party to collective bargaining agreements that contain a provision

8 setting forth a procedure that the employer signatory must follow in response to a no-match

9 letter. That procedure is more protective of employees than is the “safe harbor” procedure set

10 forth in the Final Rule. The Final Rule, if allowed to take effect, would jeopardize those

11 provisions by inducing employers to deviate from the contract and follow the “safe harbor”

12 procedure. Within two weeks of the adoption of the Final Rule, fifteen hotel employers that are

13 parties to Local 2 collective bargaining agreements announced their intent to follow the “safe

14 harbor” procedure in lieu of the contract procedure, causing a direct injury to Local 2’s interest

15 in the integrity of the contract provisions for which it bargains. The Final Rule will also injure

16 Local 2 by, inter alia, limiting its ability in the future to negotiate a procedure for responding to

17 “no match” letters that is more favorable to employees than the “safe harbor” procedure in the

18 Final Rule. The principal office of UNITE HERE Local 2 is located at 209 Golden Gate

19 Avenue, San Francisco, California 94102.

20

12. Plaintiff Change to Win is a labor federation comprised of 7 national and

21 international labor unions, including plaintiffs UFCW and UNITE HERE, that collectively

22 represent approximately six million working men and women throughout the United States.

23 Change to Win’s headquarters is located at 1900 L Street, NW, Washington, D.C. 20036. As set

24

Amended Complaint in Intervention Case No. 3:07-cv-04772(CRB)

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Case 3:07-cv-04472-CRB Document 121 Filed 09/26/2007 Page 8 of 23

1 forth in Change to Win’s constitution, among the objects and purposes of the organization are:

2 to promote “fairness at work”; to “ensure equal opportunity and rights for all women and men of

3 every race, religion, ethnicity, age, sexual orientation, ability, gender identity and expression,

4 national origin and immigration status”; and to “fight for fair treatment and legal protection for

5 immigrant workers in this country.” Several Change to Win affiliates were among those who

6 submitted comments objecting to the DHS Final Rule.

7

13. In the past, workers represented by, and members of, the plaintiff labor

8 organizations have been the subject of no-match letters sent by the SSA to their employers. The

9 U.S. Government Accountability Office (GAO) reports that about four percent of all Forms W-2

10 submitted by employers report earnings that cannot be matched with SSA records and that are

11 therefore placed in SSA’s Earnings Suspense File. On information and belief, Plaintiffs

12 represent thousands of workers who are lawfully working in the United States but have earnings

13 in the Earnings Suspense File, and who therefore are likely to be the subject of SSA no-match

14 letters issued in the future.

15

14. Defendant Michael Chertoff is the Secretary of the Department of Homeland

16 Security and is responsible for all functions of DHS and its component organizations. He is sued

17 in his official capacity.

18

15. Defendant Department of Homeland Security is a federal agency charged with, inter

19 alia, the administration and enforcement of federal immigration laws. DHS promulgated the rule

20 entitled “Safe Harbor Procedures for Employers That Receive a No Match Letter,” 72 Fed. Reg.

21 45611 (Aug. 15,2007), that is challenged in this litigation. Defendant U.S. Immigration and

22 Customs Enforcement (“ICE”) is a federal agency within DHS responsible for investigating and

23 enforcing immigration laws, including 8 U.S.C. § 1324a. DHS and ICE created the DHS/ICE

24

Amended Complaint in Intervention Case No. 3:07-cv-04772(CRB)

8

Case 3:07-cv-04472-CRB Document 121 Filed 09/26/2007 Page 9 of 23

1 Guidance Letter regarding the DHS Final Rule that the SSA intends to send to employers along

2 with its “no-match” letters.

3

16. Defendant Julie Myers is the Assistant Secretary of Homeland Security for ICE

4 and is responsible for all functions of ICE and its component organizations. She is sued in her

5 official capacity.

6

17. Defendant Social Security Administration is a federal agency charged with

7 administration of the Social Security Act, and with processing tax information for the purpose of

8 administering the Social Security program. Defendant SSA maintains databases of tax

9 information and periodically generates “no-match” letters to employers that submit Forms W-2

10 to report employee earnings if employee names and Social Security Numbers do not match SSA

11 records. See 42 U.S.C. §432; 20 C.F.R. §422.120.

12

18. Defendant Michael Astrue is the Commissioner of Social Security and is

13 responsible for all programs administered by the SSA. He is sued in his official capacity.

14

FACTS

15

19. The Social Security Act of 1935 authorizes the SSA to establish a record-keeping

16 system to manage the Social Security program. Congress also granted SSA authority to process

17 tax information for purposes of administering the Social Security program, as a specific exception

18 to the exclusive tax authority of the Internal Revenue Service (IRS). See 26 U.S.C. §6103 (1)(5);

19 42 U.S.C. §432. Pursuant to that delegation of authority, the IRS and SSA created a joint system

20 for the processing of Forms W-2 called the Combined Annual Wage Reporting System (CAWR).

21 43 Fed. Reg. 60158 (Dec. 26, 1978) (codified at 26 C.F.R. §31.6051).

22

20. Under the CAWR, employers annually report employee earnings using Forms W-

23 2, and SSA posts those earnings to individual workers' Social Security records so workers will

24

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9

Case 3:07-cv-04472-CRB Document 121 Filed 09/26/2007 Page 10 of 23

1 receive credit for those earnings when they apply for Social Security. The SSA then forwards the

2 Forms W-2 to the IRS.

3

21. If the SSA cannot match the name and Social Security Number (SSN) on a Form

4 W-2 with SSA's records, the SSA places the earnings report in its Earnings Suspense File. See 20

5 C.F.R §422.120. The earnings remain in the Earnings Suspense File until SSA can link them to a

6 name and SSN. Every year, the SSA receives millions of earnings reports that the SSA cannot

7 match with its records. On information and belief, the Earnings Suspense File is a huge database

8 that contains more than 255 million unmatched earnings records and that is growing at the rate of

9 8 to 11 million unmatched records per year. About four percent of annual Form W-2 earnings

10 reports are placed in the SSA's Earnings Suspense File. Although some mismatched SSA records

11 result from employees without work authorization using false SSNs, there also are many reasons

12 unrelated to immigration status for mismatched records. These include a) clerical errors by either

13 an employer or the SSA in spelling an employee's name or recording the SSN; b) the SSA's

14 issuance of duplicate SSNs or reissuance of SSNs of deceased individuals; c) employee name

15 changes after marriage or divorce; d) employees that use a less “foreign” sounding first name for

16 work purposes; and e) different naming conventions (such as the use of multiple surnames) that

17 are commonplace in many parts of the world, particularly in some Latin American and Asian

18 countries.

19

22. The most recent Government Accountability Office (GAO) report on the SSA's

20 Earnings Suspense File concluded that the file “[c]ontains information about many U.S. citizens

21 as well as non-citizens” and that “the overall percentage of unauthorized workers is unknown.”

22 GAO-06-814R, at 8 (emphasis added). When the SSA ultimately has been able to resolve data

23 discrepancies, “most... belong to U.S.-born citizens, not to unauthorized workers,” which GAO

24

Amended Complaint in Intervention Case No. 3:07-cv-04772(CRB)

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Case 3:07-cv-04472-CRB Document 121 Filed 09/26/2007 Page 11 of 23

1 concluded “is an indication that a significant number of earnings reports in the [Earnings

2 Suspense File] belong to U.S. Citizens and work-authorized noncitizens.” Id.

3

23. As part of its administration of the Social Security program, SSA periodically

4 sends out letters, commonly known as “no-match” letters, informing employers that SSNs and

5 employee names reported on Forms W-2 did not match SSA's records. See 20 C.F.R. § 422.120.

6

24. SSA no-match letters are purely advisory. SSA has no authority to sanction

7 employers that fail to respond to no-match letters.

8

25. Pursuant to its regulations, SSA notifies the IRS of incomplete or inaccurate

9 earnings reports. 20 C.F.R. §422.120. In 1986, Congress authorized IRS to impose sanctions on

10 employers that submit false or inaccurate tax information. 26 U.S.C. §6721; see also 26 C.F.R.

11 §301.6721-1. Under IRS regulations, an employer is not subject to sanction if the employer

12 accurately and in good faith transmits the name and SSN provided by an employee. 26 U.S.C.

13 §6724(a); 26 C.F.R. §301.6724-1.

14

26. Insofar as the Internal Revenue Code is concerned, a reasonable employer

15 response to a no-match letter is to confirm that the employer is accurately transmitting the name and

16 SSN provided by the employee and to advise the employee that SSA is reporting a no-match. Id.

17

27. SSA is not an immigration agency and does not know whether a particular SSN

18 listed in a no-match letter relates to unauthorized work. SSA also is prohibited by tax privacy

19 statutes from sharing the information in the Earnings Suspense File with the DHS. Until now,

20 SSA's no-match letters explained to employers: “This letter does not imply that you or your

21 employee intentionally gave the government wrong information” and “makes no statement

22 regarding an employee's immigration status.”

23

24

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Case 3:07-cv-04472-CRB Document 121 Filed 09/26/2007 Page 12 of 23

1

28. Until now, the SSA has never included information from an immigration-

2 enforcement agency with its no-match letters. The Immigration Reform and Control Act of 1986

3 (“IRCA”) made it unlawful for employers to “to hire ... for employment in the United States an

4 alien knowing the alien is an unauthorized alien.” 8 U.S.C. §1324a(a)(l)(A).

5

29. IRCA also separately made it unlawful for employers to hire without complying with

6 an initial verification process established by Congress. 8 U.S.C. §1324a(a)(l)(B). That

7 verification process requires the employee to present the employer with documents to show proof

8 of identity and work authorization and requires the employer and employee to complete an 1-9

9 verification form. 8 U.S.C. §1324a(b); 8 C.F.R. §274a.2.

10

30. IRCA also makes it unlawful for an employer “to continue to employ an alien ...

11 knowing the alien is (or has become) an unauthorized alien with respect to such employment.” 8

12 U.S.C. §1324a(a)(2).

13

31. IRCA specifically exempted workers hired before IRCA's enactment on November

14 6, 1986, from the hiring prohibition and the verification process. Pub. L. No. 99-603 § 101(a)(3),

15 100 Stat. 3359 (1986) (codified at 8 U.S.C. § 1324a note).

16

32. Employers that violate IRCA are subject to civil and criminal liability. 8 U.S.C.

17 §1324a(e)(4)-(5),(f).

18

33. At the same time that Congress imposed employer sanctions, Congress also

19 wanted to prevent employer discrimination based on national origin or citizenship status. IRCA

20 therefore makes it illegal for employers to discriminate based on national origin or citizenship

21 status, including by requesting “more or different documents than are required” for the initial 1-9

22 verification or “refusing to honor documents ... that on their face reasonably appear to be genuine,

23

24

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Case 3:07-cv-04472-CRB Document 121 Filed 09/26/2007 Page 13 of 23

1 for the purpose of discriminating on the basis of national origin or citizenship.” 8 U.S.C.

2 §1324b(a)(l),(6).

3

34. Congress deliberately chose not to impose ongoing re-verification requirements

4 after the initial hire, recognizing that the imposition of added expenses and duties on employers

5 beyond that involved in a prohibition against the “knowing” hiring or retention of unauthorized

6 workers might tempt more employers to avoid hiring noncitizens or persons of foreign national

7 origin in the first instance—a prospect Congress sought to avoid—and might also endanger the

8 support of the employer community, which has long opposed regulations making the hiring and

9 retention of employees more costly.

10

35. Until now, neither DHS nor its predecessor immigration-enforcement agencies had

11 taken the position that an employer's failure to inquire into the work-authorization status of an

12 employee subject to an SSA no-match letter meant that the employer had knowledge that it was

13 employing an unauthorized worker. The Immigration and Naturalization Service had recognized

14 that no-match discrepancies occur for many innocent reasons and therefore consistently advised

15 employers in opinion letters that “[w]e would not consider notice of this discrepancy from SSA to

16 an employer by itself to put the employer on notice that the employee is unauthorized to work.”

17

36. On June 14, 2006, DHS gave notice of a proposed rule that would address the

18 responsibilities of employers that receive SSA no-match letters. More than 5,000 comments were

19 received by DHS during the 60-day comment period, including comments that disputed DHS’

20 authority to adopt the rule. Plaintiffs UNITE HERE and UFCW were among those who submitted

21 comments objecting to the rule. The comment period closed on August 14, 2006.

22

23

24

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Case 3:07-cv-04472-CRB Document 121 Filed 09/26/2007 Page 14 of 23

1

37. DHS issued a final rule on August 15, 2007 (hereinafter, the “DHS Final Rule”).

2 The DHS Final Rule is entitled “Safe-Harbor Procedures for Employers Who Receive a No-Match

3 Letter,” and is published at 72 Fed. Reg. 45611.

4

38. The DHS Final Rule will amend the definition of “knowing” in 8 C.F.R.

5 §274a.l(l)(l), the regulatory subsection that purports to define the term “knowing” for purposes

6 of IRCA. The amended regulation will list, as an example of an employer that has “constructive

7 knowledge” that an employee is an “unauthorized alien,” an employer that receives a SSA no-match

8 letter and then “fails to take reasonable steps.” The first part of the amended regulation will

9 provide:

10

(1)(1) The term knowing includes having actual or constructive knowledge....

11

Examples of situations where the employer may, depending upon the totality of

12

the relevant circumstances, have constructive knowledge that an employee is an

13

unauthorized alien include, but are not limited to, situations where the employer:

14

…

15

(iii) Fails to take reasonable steps after receiving information indicating that the

16

employee may be an alien who is not employment authorized, such as –

17 (B) Written notice to the employer from the Social Security Administration
18 reporting earnings on a Form W-2 that employees' names and corresponding
19 social security account numbers fail to match Social Security Administration
20 records ....
21

22

39. Having created a threat of IRCA liability for employers receiving SSA no-match

23 letters by deeming receipt of a no-match letter to be evidence that the employer “know[s]” that

24 listed persons are unauthorized aliens, the DHS Final Rule then offers employers what it terms a

Amended Complaint in Intervention Case No. 3:07-cv-04772(CRB)

14

Case 3:07-cv-04472-CRB Document 121 Filed 09/26/2007 Page 15 of 23

1 “safe harbor.” An employer receiving a SSA no-match letter “will be considered by the

2 Department of Homeland Security to have taken reasonable steps - and receipt of the written

3 notice will therefore not be used as evidence of constructive knowledge - if the employer” takes

4 the actions specified by DHS. These are “the only combination of steps that will guarantee that

5 DHS will not use the employer's receipt of the notices from SSA ... as evidence of constructive

6 knowledge that an employee is an unauthorized alien.” 72 Fed. Reg. at 45618.

7

40. To qualify for the DHS “safe harbor,” an employer must check its own records

8 within 30 days of receipt of an SSA no-match letter to determine if the no-match was the result

9 of its own clerical error. If the employer determines the no-match was not the result of its own

10 clerical error, it must instruct instruct an employee who claims the name and SSN are correct to

11 resolve the discrepancy with SSA within 90 days after the employer’s receipt of the no-match

12 letter. If the employee is unable to resolve the discrepancy with SSA within that 90-day period,

13 the employer is prohibited from continuing to employ the worker unless the worker can complete

14 within three days a new immigration verification, on a new Form I-9, using only documents that

15 contain photo identification and no documents that contain the disputed SSN, even if the employee

16 still insists the SSN is correct. The DHS “safe harbor” is thus structured so that employees are

17 guaranteed only 60 days to resolve the discrepancy with SSA, because the DHS rule gives the

18 employer 30 days to check its own records without notifying the employee, and only after this

19 initial step is complete need it advise the employee of the no-match. (Indeed, because the

20 employer need not advise the employee immediately, but only reasonably promptly, at the end of

21 the 30-day period, employees will often have fewer than 60 days.) If employees insist their

22 names and SSNs on their identification documents are correct but have not resolved the

23

24

Amended Complaint in Intervention Case No. 3:07-cv-04772(CRB)

15

Case 3:07-cv-04472-CRB Document 121 Filed 09/26/2007 Page 16 of 23

1 discrepancy with SSA by the deadline, or cannot produce the required additional photo

2 identification, the employer would have to terminate them.

3

41. DHS and SSA intend to send employers no-match letters that will be accompanied

4 by a letter from DHS and ICE (hereinafter the “DHS/ICE Guidance Letter”). The DHS/ICE

5 Guidance Letter states that it will “provide guidance on how to respond to the enclosed letter

6 from the Social Security Administration (SSA). . . in a manner that is consistent with your

7 obligations under United States Immigration Laws.”

8

42. The DHS/ICE Guidance Letter contains questions and answers, which begin with

9 the following:

10

Q: Can I simply disregard the letter from SSA?

11

A: No. You have received official notification of a problem that may have significant

12

legal consequences for your employees. If you elect to disregard the notice you have

13

received and it is determined that some employees listed in the enclosed letter were not

14

authorized to work, the Department of Homeland Security (DHS) could determine that you

15

have violated the law by knowingly continuing to employ unauthorized persons. This could

16

lead to civil and criminal sanctions.

17

43. After threatening employers with civil and criminal liability, the DHS/ICE Guidance

18 Letter then asks: “Q: What should I do?” and responds that “You should” follow the steps set

19 out in the DHS Final Rule.

20

44. The DHS/ICE Guidance Letter assures employers that, if they follow those

21 procedures for every no-match, they will not be liable for discrimination if they terminate

22 employees:

23

24

Amended Complaint in Intervention Case No. 3:07-cv-04772(CRB)

16

Case 3:07-cv-04472-CRB Document 121 Filed 09/26/2007 Page 17 of 23

1

Q: Will I be liable for discrimination charges brought by the United States if I

2

terminate the employee after I follow the steps outlined above?

3

A: No

4

45. SSA has revised its no-match letters so that they direct employers to follow the

5 instructions in the accompanying DHS/ICE Guidance Letter.

6

46. SSA and DHS intend to commence sending the revised no-match letters and the

7 DHS/ICE Guidance Letter to employers imminently. Prior to the TRO entered in this case, the

8 SSA expected by November 9, 2007 to mail no-match letters to approximately 140,000

9 employers around the country. Several million employees will be affected by this mailing.

10

47. SSA will continue to mail additional batches of no-match letters after November

11 9, 2007, to numerous other employers.

12

48. The DHS, by promulgating its Rule, intended to cause, and will cause, most of the

13 140,000 employers who receive no-match letters accompanied by the DHS/ICE Guidance Letter

14 to alter their conduct so as to avoid civil or criminal penalty proceedings initiated by DHS, ICE,

15 or the U.S. Department of Justice. The investigation that recipient employers will be compelled

16 to immediately perform will impose substantial administrative costs on employment.

17

49. A substantial portion of the several million no-match SSNs that are listed in the

18 initial round of SSA no-match letters will relate to U.S. citizens or non-citizens lawfully entitled

19 to work. On information and belief, a substantial number of these workers are represented by the

20 plaintiffs in this case, such as plaintiffs UNITE HERE Local 2 and UFCW Local 5.

21

50. As a result of implementation of the DHS Final Rule, including the DHS/ICE

22 Guidance Letter, lawfully employed workers will immediately be forced to expend time and

23 effort to resolve SSA data discrepancies, including taking time off work without pay to visit SSA

24

Amended Complaint in Intervention Case No. 3:07-cv-04772(CRB)

17

Case 3:07-cv-04472-CRB Document 121 Filed 09/26/2007 Page 18 of 23

1 field offices that are open only during business hours and that will be overwhelmed with similar

2 requests from other workers as well as the other business of the SSA.

3

51. Many lawfully employed workers, including those employed by plaintiffs or their

4 local unions, will be unable to resolve data discrepancies with the SSA bureaucracy within the

5 60-day period provided for in the DHS Final Rule and will for that reason be terminated from

6 their jobs. SSA already has told DHS that in “difficult cases,” SSA may be unable to resolve

7 discrepancies within the timeframe established by the Rule.

8

52. Because plaintiffs have, in the past, devoted resources to representing lawfully

9 authorized employees wrongly discharged or threatened with discharge by reason of an

10 employer’s receipt of a no-match letter, and because the DHS Final Rule is designed to induce,

11 and can be expected to induce, far more employers to use no-match letters as grounds for

12 terminating or threatening the termination of employees, the plaintiffs expect that if the Rule

13 goes into effect, plaintiffs will be required to expend more scarce resources on no-match issues

14 instead of on matters that would further their other legitimate objectives as representatives of

15 employees.

16

FIRST CLAIM FOR RELIEF

17

(Violation by DHS of 8 U.S.C. §1324a and 5 U.S.C. §706(2)(A))

18

53. Plaintiffs incorporate by reference all preceding paragraphs as if fully set forth

19 herein.

20

54. The DHS Final Rule, on its face and as proposed to be implemented through the

21 DHS/ICE Guidance Letter, is inconsistent with the governing statute, 8 U.S.C. §1324a, because

22 it expands civil and criminal liability for employers based on a definition of “knowing” that is

23 inconsistent with that word’s plain meaning and inconsistent with Congress’ intent in IRCA in

24

Amended Complaint in Intervention Case No. 3:07-cv-04772(CRB)

18

Case 3:07-cv-04472-CRB Document 121 Filed 09/26/2007 Page 19 of 23

1 limiting employer liability to “knowing” violations. The DHS Final Rule, on its face and as

2 proposed to be implemented through the DHS/ICE Guidance Letter, is also inconsistent with the

3 governing statute because it establishes a duty to reverify the work authorization status of

4 continuing employees that is not consistent with Congress’ intent to establish a system of

5 verification of work-authorization status only upon initial hire with no continuing duty to

6 investigate. The DHS Final Rule is agency action “not in accordance with law” and violates 5

7 U.S.C. §706(2)(A).

8

SECOND CLAIM FOR RELIEF

(Violation by DHS of 5 U.S.C. §706(2)(A))

9 55. Plaintiffs incorporate by reference all preceding paragraphs as if fully set forth

10 herein.

11 56. The DHS Final Rule, on its face and as proposed to be implemented through the

12 DHS/ICE Guidance Letter, is “arbitrary” and “capricious” agency action in violation of 5 U.S.C.

13 §706(2)(A), because it is predicated on a fiction to the effect that bare receipt of a no-match letter

14 by an employer constitutes evidence that each employee listed in such a letter is known by the

15 employer to be an unauthorized alien, and because it treats the receipt of an SSA no-match letter

16 as indicating a high probability that a mismatched SSN relates to unauthorized work when in fact

17 DHS does not know the probability that such an SSN relates to unauthorized work and did not

18 identify or rely on any evidence in the administrative record establishing that probability.

19 57. The DHS Final Rule is also arbitrary and capricious because DHS failed to

20 engage in reasoned decision-making, inasmuch as the Rule lacks any rational connection

21 between facts relied upon and the choices made by the agency, and the agency—which for over a

22 decade had said, through its predecessor agencies, that an employee’s appearance on a no-match

23 letter did not establish constructive knowledge that the listed employee was unauthorized—

24

Amended Complaint in Intervention Case No. 3:07-cv-04772(CRB)

19

Case 3:07-cv-04472-CRB Document 121 Filed 09/26/2007 Page 20 of 23

1 reversed course in interpreting and applying 8 U.S.C. § 1324a without providing a sufficient

2 explanation for the reversal.

3

THIRD CLAIM FOR RELIEF

(Violation by DHS of 5 U.S.C. §706(2)(C))

4 58. Plaintiffs incorporate by reference all preceding paragraphs as if fully set forth

5 herein.

6 59. The DHS Final Rule, on its face and as proposed to be implemented through the

7 DHS/ICE Guidance Letter, exceeds DHS’ statutory authority, in violation of 5 U.S.C.

8 §706(2)(C), by seeking to impose immigration-law obligations on employers and employees in

9 responding to an SSA no-match letter.

10 FOURTH CLAIM FOR RELIEF

11

(Violation by DHS, ICE and SSA of 5 U.S.C. §706(2)(B) and Due Process Clause)

12

60. Plaintiffs incorporate by reference all preceding paragraphs as if fully set forth

13 herein.

14

61. The DHS Final Rule and DHS/ICE Guidance Letter, and SSA’s distribution of that

15 letter with its no-match letters, will impose unreasonable deadlines on employers and employees

16 and will cause some lawfully employed workers to be fired from their jobs without due process

17 because of erroneous government databases, and because SSA is not able to resolve a data

18 discrepancy by an arbitrary deadline. As such, Defendants' actions violate 5 U.S.C. §706(C) and

19 the Due Process Clause of the U.S. Constitution.

20
21 62.
22 herein.
23

FIFTH CLAIM FOR RELIEF (Ultra Vires Agency Action by DHS and ICE)
Plaintiffs incorporate by reference all preceding paragraphs as if fully set forth

24

Amended Complaint in Intervention Case No. 3:07-cv-04772(CRB)

20

Case 3:07-cv-04472-CRB Document 121 Filed 09/26/2007 Page 21 of 23

1

63. The DHS' Rule and DHS/ICE Guidance Letter are ultra vires actions in excess of

2 statutory authority granted to DHS, ICE, and SSA by Congress.

3

SIXTH CLAIM FOR RELIEF

(Violation by DHS, ICE and SSA of 5 U.S.C. §706(2)(C))

4 64. Plaintiffs incorporate by reference all preceding paragraphs as if fully set forth

5 herein.

6 65. DHS, ICE, and SSA have no statutory authority to use the SSA tax information

7 processing system in general, and the SSA no-match letters in particular, as tools for the

8 enforcement of immigration laws.

9 66. The plan by DHS, ICE, and SSA to include the DHS/ICE Guidance Letter to

10 employers along with SSA no-match letters is agency action in excess of the statutory authority

11 of DHS, ICE, and SSA, and therefore violates 5 U.S.C. §706(2)(C).

12

13

SEVENTH CLAIM FOR RELIEF

14

(Ultra Vires Agency Action by SSA, DHS, and ICE)

15

67. Plaintiffs incorporate by reference all preceding paragraphs as if fully set forth

16 herein.

17

68. DHS, ICE, and SSA have no statutory authority to use the SSA tax information

18 processing system in general, and the SSA no-match letters in particular, as tools for the

19 enforcement of immigration laws.

20

69. The plan by DHS, ICE, and SSA to include the DHS/ICE Guidance Letter to

21 employers along with SSA no-match letters exceeds the statutory authority of DHS, ICE, and

22 SSA, and therefore each agency is acting ultra vires and in violation of the statutes delegating

23 authority to those agencies.

24

Amended Complaint in Intervention Case No. 3:07-cv-04772(CRB)

21

Case 3:07-cv-04472-CRB Document 121 Filed 09/26/2007 Page 22 of 23

1

PRAYER FOR RELIEF

2 WHEREFORE, Plaintiffs pray that the Court:

3

1. Enter a preliminary injunction, pending a decision on the merits, that enjoins

4 Defendants from implementing the Department of Homeland Security rule entitled “Safe Harbor

5 Procedures for Employers That Receive a No Match Letter,” 72 Fed. Reg. 45611 (Aug.15, 2007),

6 including by commencing the mailing of new SSA “no-match” letter packets that include the

7 DHS/ICE Guidance Letter concerning the DHS Final Rule.

8

2. Upon hearing the merits, enter a declaratory judgment that the DHS Final Rule is

9 invalid and a permanent injunction to prohibit Defendants from implementing or otherwise

10 giving effect to the DHS Final Rule.

11

3. Award Plaintiffs their costs and expenses, including reasonable attorney's fees and

12 expert witness fees; and

13

4. Award such further and additional relief as is just and proper.

14

15

Respectfully submitted,

16

_______/s/_________________

Matthew Ross (SBN 084703)

17

Philip Monrad (SBN 151073)

LEONARD, CARDER, LLP

18

1330 Broadway, Suite 1430

Oakland, CA 94612

19

Telephone: (510) 272-0169

Facsimile: (510) 272-0174

20

Email:

MRoss@leonardcarder.com;

PMonrad@leonardcarder.com

21 Robert M. Weinberg

22

Leon Dayan

Jennifer L. Hunter

23

BREDHOFF & KAISER, PLLC

805 Fifteenth Street, NW, Tenth Floor

24

Washington, D.C. 20008

Amended Complaint in Intervention Case No. 3:07-cv-04772(CRB)

22

Case 3:07-cv-04472-CRB Document 121 Filed 09/26/2007 Page 23 of 23

1 2 3 4 5 Dated: September 26, 2007

Telephone: Facsimile: Email:

(202) 842-2600 (202) 842-1888 LDayan@bredhoff.com; JHunter@bredhoff.com

Attorneys for Plaintiff-Intervenors UFCW et al.

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

Amended Complaint in Intervention Case No. 3:07-cv-04772(CRB)

23

 
 Case 3:07-cv-04472-CRB Document 137 Filed 10/15/2007 Page 1 of 2

1

2

3

4

5

6

7

8

UNITED STATES DISTRICT COURT

9

NORTHERN DISTRICT OF CALIFORNIA

10

11 AMERICAN FEDERATION OF LABOR AND

) Case No. C07-4472 CRB

CONGRESS OF INDUSTRIAL ORGANIZATIONS, )

12 CHAMBER OF COMMERCE OF THE UNITED

)

STATES OF AMERICA, et al.,

) PRELIMINARY INJUNCTION

13

)

Plaintiffs,

)

14

)

v.

)

15

)

MICHAEL CHERTOFF, et al.,

)

16

)

Defendants.

)

17 _______________________________________________

18 On October 10, 2007, the Court issued an Order Granting Motion for Preliminary Injunction
19 (Docket No. 135). For the reasons stated in that Order, IT IS HEREBY ORDERED that, pending a
20 final judgment on the merits of this action, or further order of this Court, Defendants MICHAEL
21 CHERTOFF, Secretary of Homeland Security; DEPARTMENT OF HOMELAND SECURITY;
22 JULIE MYERS, Assistant Secretary of Homeland Security; U.S. IMMIGRATION AND
23 CUSTOMS ENFORCEMENT; MICHAEL ASTRUE, Commissioner of Social Security; and
24 SOCIAL SECURITY ADMINISTRATION, and their officers, agents, servants, employees, and
25 attorneys, and those persons in active concert or participation with them, are HEREBY ENJOINED
26 AND RESTRAINED from giving any effect to or otherwise taking any action to implement or
27 enforce the Final Rule adopted by the Department of Homeland Security entitled “Safe-Harbor
28

PRELIMINARY INJUNCTION, Case No. C07-4472 CRB

1

Case 3:07-cv-04472-CRB Document 137 Filed 10/15/2007 Page 2 of 2

1 Procedures for Employers Who Receive a No-Match Letter,” 77 Fed. Reg. 45611 (Aug. 15, 2007),

2 including by mailing or otherwise causing to be sent to employers Social Security Administration

3 no-match letter packets that include or reference the Department of Homeland Security guidance

4 letter concerning the Final Rule.

5

SO ORDERED.

6 Dated: October 15, 2007
7

_______________________________ UNITED STATES DISTRICT JUDGE

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

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28

PRELIMINARY INJUNCTION, Case No. C07-4472 CRB

2

 
 American Civil Liberties Union : AFL-CIO, ACLU and National Immigration Law Center Chall... Page 1 of 3

URL: http://www.aclu.org/immigrants/workplace/31494prs20070829.html
AFL-CIO, ACLU and National Immigration Law Center Challenge New Homeland Security Rule (8/29/2007)
Groups File Lawsuit Charging DHS Rule Would Cause Widespread Discrimination and Harm U.S. Citizens and Other Authorized Workers
FOR IMMEDIATE RELEASE CONTACT: media@aclu.org
SAN FRANCISCO - The American Federation of Labor and Congress of Industrial Organizations (AFL-CIO), the American Civil Liberties Union, the National Immigration Law Center (NILC) and the Central Labor Council of Alameda County along with other local labor movements today filed a lawsuit charging that a new Department of Homeland Security (DHS) rule will threaten jobs of U.S. citizens and other legally authorized workers simply because of errors in the government's inaccurate social security earnings databases. The rule violates workers' rights and imposes burdensome obligations on employers who receive Social Security Administration (SSA) "no-match" letters that inform an employer of alleged discrepancies between employee records and the SSA database.
Under the new rule, many U.S. citizens and legally authorized workers could be required to be terminated if their erroneous SSA records are not fixed within 90 days of an SSA "no-match" letter being sent to an employer. The rule is scheduled to go into effect on September 14. SSA intends to send out notices to employers enforcing the new rule beginning next Tuesday, September 4. The new notices will be sent to approximately 140,000 employers, affecting about eight million employees.
"This rule is a new tool to repress workers' rights in the name of phony immigration enforcement," said John Sweeney, President of the AFL-CIO. "Employers have used SSA "no-match" letters to fire workers when workers try to organize, when they report a wage claim or workplace hazard, or when they get injured. The new rule gives employers a stronger pretext for engaging in such unlawful conduct."
Currently, under the Immigration and Nationality Act (INA), employers must verify the immigration status of employees upon initial hire, using a process carefully crafted by Congress. The new rule would upset the careful balance struck by Congress that does not impose continuing verification obligations or seek to hold employers liable based on SSA records.
The new DHS rule imposes liability based on failure to respond to an SSA "no-match" letter, even though SSA errors are caused by many innocent factors such as typographical errors and name changes due to marriage or divorce, and the use of multiple surnames, which is common in many parts of the world. According to the Office of the Inspector General in SSA, 12.7 million of the 17.8 million discrepancies in SSA's database – more than 70% – belong to native-born U.S. citizens.
"The new rule turns the law on its head by using the notoriously incomplete and inaccurate social security databases to decide who is authorized to work. This will wreak havoc with workers and businesses and will cause massive discrimination against anyone who looks or sounds 'foreign,'" said Lucas Guttentag, Director of

http://www.aclu.org/immigrants/workplace/31494prs20070829.html

9/7/2007

American Civil Liberties Union : AFL-CIO, ACLU and National Immigration Law Center Chall... Page 2 of 3

the ACLU's Immigrants' Rights Project. "DHS is trying to hijack the social security system for improper immigration enforcement."
Under the current system, employers submit records of employee earnings to SSA so that workers can receive credit for their earnings. Sometimes an employee's name and social security number do not match the information in SSA's enormous and error-prone database. In that case, a report is placed in SSA's Earning Suspense File, which is protected by tax privacy laws. The database currently contains more than 250 million unmatched records, a substantial portion of which belongs to U.S. citizens and lawfully working non-citizens.
When a database discrepancy occurs, SSA sends "no-match" letters to certain employers advising them of such. In the past, the letters have been purely advisory, and clearly state that they do not "make any statement about an employee's immigration status." Indeed, SSA has recognized in the past that the issuance of a "no-match" letter does not indicate that an employee is not authorized to work, and when SSA has been able to resolve mismatches, most turned out to involve U.S. citizens.
Under the new DHS rule, however, an employer who receives a "no-match" letter is required to give the employee 90 days to resolve the data discrepancy with the huge SSA bureaucracy, a formidable challenge. If the employee is unable to do so, the employee must complete a new employment verification form, using identification documents with a different social security number. If the worker insists the original number submitted is correct but can't resolve the discrepancy by the deadline, DHS requires the employer to take "reasonable steps" that might include firing the employee.
Rather than go through this burdensome process, some employers are likely to simply fire workers whose names appear on the letters — including U.S. citizens and other authorized workers — without giving employees a chance to correct the information, said the groups that filed the lawsuit. Unscrupulous employers will simply ignore the letter and continue to employ undocumented workers.
"It is truly ironic that the DHS calls this rule a 'safe harbor,'" said Marielena Hincapié, Staff Attorney and Director of Programs at NILC. "Its real effect would be to create a devastating 'storm' of bureaucratic challenges, increased discrimination, potential financial ruin for workers, and improper and burdensome obligations upon employers. And we know from years of experience in dealing with'no-match'letters that unscrupulous employers will use the new rule to legitimize their adverse employment actions against workers exercising their labor rights."
The lawsuit requests a court order preventing DHS and SSA from implementing the new DHS rule, including the initial mailing of 'no-match' letter packets scheduled to go out to employers on September 4, until a decision on the rule's legality can be reached. The lawsuit also requests a finding that the rule is invalid.
The lawsuit was filed today in the United States District Court for the Northern District of California.
In addition to the AFL-CIO, which is represented by the law firm of Altshuler Berzon, LLP, other parties bringing the lawsuit include the Central Labor Council of Alameda County, represented by the ACLU, the ACLU of Northern California, and NILC, as well as the San Francisco Labor Council and the San Francisco Building and Construction Trades Council, represented by Weinberg, Roger and Rosenfeld.
In addition to Guttentag and Hincapié, lawyers on the case include Stephen Berzon, Scott Kronland, Jonathan Weissglass, Linda Lye and Danielle Leonard of Altshuler, Berzon; Jonathan Hiatt, James Copess and Ana Avendaño of the AFL-CIO; Jennifer Chang, Mόnica M. Ramírez, and Omar Jadwat of the ACLU Immigrants' Rights Project; Alan Schlosser and Julia Mass of the ACLU of Northern California; Linton Joaquin and Monica Guizar of NILC; and David Rosenfeld and Manjari Chawla of Weinberg, Roger and Rosenfeld.

http://www.aclu.org/immigrants/workplace/31494prs20070829.html

9/7/2007

American Civil Liberties Union : AFL-CIO, ACLU and National Immigration Law Center Chall... Page 3 of 3
The complaint can be found at: www.aclu.org/immigrants/workplace/31491lgl20070829.html
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9/7/2007

 
 Case: 3:07-cv-4472 As of: 02/14/2013 06:26 AM PST 1 of 33
ADRMOP,CLOSED,E−Filing,STAYED
U.S. District Court California Northern District (San Francisco) CIVIL DOCKET FOR CASE #: 3:07−cv−04472−CRB

American Federation of Labor and Congress of Industrial Organizations et al v. Chertoff et al Assigned to: Hon. Charles R. Breyer Cause: 28:2201 Declaratory Judgement
Plaintiff

Date Filed: 08/29/2007 Date Terminated: 11/18/2009 Jury Demand: None Nature of Suit: 890 Other Statutory Actions Jurisdiction: U.S. Government Defendant

American Federation of Labor and Congress of Industrial Organizations

represented by Ana L. Avendano AFL−CIO 815 Sixteenth Street, N.W. Washington, DC 20006 202−637−5053 Fax: 202−637−5323 TERMINATED: 02/05/2008 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Danielle Evelyn Leonard Altshuler Berzon LLP 177 Post Street Suite 300 San Francisco, CA 94108 415−421−7151 Fax: 415−362−8064 Email: dleonard@altshulerberzon.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

James B. Coppess , 815 16th St., NW Washington, DC 20006

202−637−5337 Fax: Email: jcoppess@aflcio.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jonathan Paul Hiatt AFL−CIO 815 16th St NW #809 Washington, DC 20006 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jonathan David Weissglass ALTSHULER BERZON LLP 177 Post Street, Suite 300 San Francisco, CA 94108 415−421−7151 Email: jweissglass@altshulerberzon.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Linda Lye ACLU Foundation of Northern California, Inc.

Case: 3:07-cv-4472 As of: 02/14/2013 06:26 AM PST 2 of 33

39 Drumm Street San Francisco, CA 94111 (415) 621−2493 Fax: (415) 255−8437 Email: llye@aclunc.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Scott Alan Kronland Altshuler Berzon LLP 177 Post Street, Suite 300 San Francisco, CA 94108 415−421−7151 Fax: 415−362−8064 Email: skronland@altshulerberzon.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Stephen P. Berzon Altshuler Berzon LLP 177 Post Street Suite 300 San Francisco, CA 94108 415−421−7151 Fax: 415−362−8064 Email: sberzon@altshulerberzon.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Monica Marie Ramirez American Civil Liberties Union Immigrants Rights Project 39 Drumm Street San Francisco, CA 94111 415−343−0778 Fax: 415−395−0950 Email: mramirez@aclu.org TERMINATED: 07/10/2009 ATTORNEY TO BE NOTICED

Plaintiff San Francisco Labor Council

represented by David Albert Rosenfeld Weinberg Roger &Rosenfeld A Professional Corporation 1001 Marina Village Parkway Suite 200 Alameda, CA 94501−1091 510 337 1001 Fax: 510 337 1023 Email: courtnotices@unioncounsel.net LEAD ATTORNEY ATTORNEY TO BE NOTICED

Manjari Chawla Weinberg, Roger &Rosenfeld 1001 Marina Village Parkway, Suite 200 Alameda, CA 94501−1091 510−337−1001 Fax: 510−337−1023 Email: courtnotices@unioncounsel.net LEAD ATTORNEY ATTORNEY TO BE NOTICED

Scott Alan Kronland

Case: 3:07-cv-4472 As of: 02/14/2013 06:26 AM PST 3 of 33

(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Danielle Evelyn Leonard (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
San Francisco Building and Construction Trades Council

represented by David Albert Rosenfeld (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Manjari Chawla (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Scott Alan Kronland (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Danielle Evelyn Leonard (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Central Labor Council of Alameda County

represented by Alan Lawrence Schlosser ACLU Foundation of Northern California, Inc. 39 Drumm Street San Francisco, CA 94111 415−621−2493 Fax: 415−255−8437 Email: aschlosser@aclunc.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

David Albert Rosenfeld (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jennifer C. Newell ACLU Immigrants' Rights Project 39 Drumm Street San Francisco, CA 94111 415.343.0774 Fax: 415.395.0950 Email: jchang@aclu.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Julia Harumi Mass , Esq. American Civil Liberties Union of Northern California, Inc. 39 Drumm Street San Francisco, CA 94111 415−621−2493 Fax: 415−255−8437 Email: jmass@aclunc.org LEAD ATTORNEY

Case: 3:07-cv-4472 As of: 02/14/2013 06:26 AM PST 4 of 33
ATTORNEY TO BE NOTICED
Linton Joaquin National Immigration Law Center 3435 Wilshire Blvd. Ste. 2850 Los Angeles, CA 90010 (213) 639−3900 Fax: (213) 639−3911 Email: joaquin@nilc.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lucas Guttentag American Civil Liberties Union Immigrants' Rights Project 39 Drumm Street San Francisco, CA 94111 (415) 343−0773 Fax: (415) 395−0950 Email: lguttentag@aclu.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Manjari Chawla (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Marielena Hincapie , National Immigration Law Center 3435 Wilshire Blvd., Suite 2850 Los Angeles, CA 90010
213−674−2812 Fax: 213−639−3900 Email: hincapie@nilc.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Monica Teresa Guizar National Immigration Law Center 3435 Wilshire Blvd Suite 2850 Los Angeles, CA 90010 213−674−2850 Fax: 213−639−3911 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Monica Marie Ramirez , American Civil Liberties Union Immigrants Rights Project 39 Drumm Street San Francisco, CA 94111 415−343−0778 Fax: 415−395−0950 Email: mramirez@aclu.org TERMINATED: 07/10/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Nora Adriana Preciado National Immigration Law Center 3435 Wilshire Blvd Suite 2850

Case: 3:07-cv-4472 As of: 02/14/2013 06:26 AM PST 5 of 33
Los Angeles, CA 90010 213−674−2823 Fax: 213−639−3911 Email: preciado@nilc.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Omar C. Jadwat American Civil Liberties Union Foundation Immigrants' Rights Project 125 Broad St., 18th Floor New York, NY 10004 212−549−2620 Fax: 212−549−2654 Email: ojadwat@aclu.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Scott Alan Kronland (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Danielle Evelyn Leonard (See above for address) ATTORNEY TO BE NOTICED

V. Intervenor Pla San Francisco Chamber of Commerce

represented by Karen Rosenthal Greenberg Traurig LLP 1900 University Avenue 5th Floor East Palo Alto, CA 94303 650−328−8500 Fax: 650−328−8508 Email: rosenthalk@gtlaw.com ATTORNEY TO BE NOTICED
Laura Metcoff Klaus , Greenberg Traurig, LLP 2101 L Street, NW Suite 1000 Washington, DC 20037 202−533−2362 Fax: 202−261−0137 Email: Klausl@gtlaw.com ATTORNEY TO BE NOTICED
Laura Foote Reiff Greenberg Traurig, LLP 800 Connecticut Avenue, N.W., Ste 500 Washington, DC 20006 202−533−2396 Fax: 202−533−2396 ATTORNEY TO BE NOTICED
Robert Phillip Charrow , Greenberg Traurig, LLP 2101 L Street NW Suite 1000 Washington, DC 20037

Case: 3:07-cv-4472 As of: 02/14/2013 06:26 AM PST 6 of 33

(202) 533−2396 Fax: 202−261−0164 Email: charrowr@gtlaw.com ATTORNEY TO BE NOTICED

Robin S. Conrad National Chamber Litigation Center, Inc. 1615 H Street, N.W. Washington, DC 20062 202−463−5337 ATTORNEY TO BE NOTICED

Shane Brennan National Chamber Litigation Center, Inc. 1615 H Street, N.W. Washington, DC 20062 202−463−5337 ATTORNEY TO BE NOTICED

William J. Goines Greenberg Traurig, LLP 1900 University Avenue 5th Floor East Palo Alto, CA 94303 650−328−−8500 Fax: 650−328−8508 Email: goinesw@gtlaw.com ATTORNEY TO BE NOTICED

Intervenor Pla
National Roofing Contractors Association

represented by Karen Rosenthal (See above for address) ATTORNEY TO BE NOTICED

Laura Metcoff Klaus , (See above for address) ATTORNEY TO BE NOTICED

Laura Foote Reiff (See above for address) ATTORNEY TO BE NOTICED

Robert Phillip Charrow , (See above for address) ATTORNEY TO BE NOTICED

Robin S. Conrad (See above for address) ATTORNEY TO BE NOTICED

Shane Brennan (See above for address) ATTORNEY TO BE NOTICED

William J. Goines (See above for address) ATTORNEY TO BE NOTICED

Intervenor Pla Golden Gate Restaurant Association

represented by Karen Rosenthal (See above for address) ATTORNEY TO BE NOTICED

Laura Metcoff Klaus ,

Case: 3:07-cv-4472 As of: 02/14/2013 06:26 AM PST 7 of 33

(See above for address) ATTORNEY TO BE NOTICED

Laura Foote Reiff (See above for address) ATTORNEY TO BE NOTICED

Robert Phillip Charrow , (See above for address) ATTORNEY TO BE NOTICED

Robin S. Conrad (See above for address) ATTORNEY TO BE NOTICED

Shane Brennan (See above for address) ATTORNEY TO BE NOTICED

William J. Goines (See above for address) ATTORNEY TO BE NOTICED

Intervenor Pla
Chamber of Commerce of the United States of America

represented by Karen Rosenthal (See above for address) ATTORNEY TO BE NOTICED

Laura Metcoff Klaus , (See above for address) ATTORNEY TO BE NOTICED

Laura Foote Reiff (See above for address) ATTORNEY TO BE NOTICED

Robert Phillip Charrow , (See above for address) ATTORNEY TO BE NOTICED

Robin S. Conrad (See above for address) ATTORNEY TO BE NOTICED

Shane Brennan (See above for address) ATTORNEY TO BE NOTICED

William J. Goines (See above for address) ATTORNEY TO BE NOTICED

Intervenor Pla
American Nursery &Landscape Association

represented by Karen Rosenthal (See above for address) ATTORNEY TO BE NOTICED

Laura Metcoff Klaus , (See above for address) ATTORNEY TO BE NOTICED

Laura Foote Reiff (See above for address) ATTORNEY TO BE NOTICED

Case: 3:07-cv-4472 As of: 02/14/2013 06:26 AM PST 8 of 33

Intervenor Pla International Franchise Association
Intervenor Pla United Fresh Produce Association

Robert Phillip Charrow , (See above for address) ATTORNEY TO BE NOTICED
Robin S. Conrad (See above for address) ATTORNEY TO BE NOTICED
Shane Brennan (See above for address) ATTORNEY TO BE NOTICED
William J. Goines (See above for address) ATTORNEY TO BE NOTICED
represented by Karen Rosenthal (See above for address) ATTORNEY TO BE NOTICED
Laura Metcoff Klaus , (See above for address) ATTORNEY TO BE NOTICED
Laura Foote Reiff (See above for address) ATTORNEY TO BE NOTICED
Robert Phillip Charrow , (See above for address) ATTORNEY TO BE NOTICED
Robin S. Conrad (See above for address) ATTORNEY TO BE NOTICED
Shane Brennan (See above for address) ATTORNEY TO BE NOTICED
William J. Goines (See above for address) ATTORNEY TO BE NOTICED
represented by Karen Rosenthal (See above for address) ATTORNEY TO BE NOTICED
Laura Metcoff Klaus , (See above for address) ATTORNEY TO BE NOTICED
Laura Foote Reiff (See above for address) ATTORNEY TO BE NOTICED
Robert Phillip Charrow , (See above for address) ATTORNEY TO BE NOTICED
Robin S. Conrad

Case: 3:07-cv-4472 As of: 02/14/2013 06:26 AM PST 9 of 33

(See above for address) ATTORNEY TO BE NOTICED

Shane Brennan (See above for address) ATTORNEY TO BE NOTICED

William J. Goines (See above for address) ATTORNEY TO BE NOTICED

Intervenor Pla Change to Win

represented by Philip Carl Monrad Leonard Carder LLP 1330 Broadway Suite 1401 Oakland, CA 94612 510−272−0169 Fax: 510−272−0174 Email: pmonrad@leonardcarder.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jennifer Lynn Hunter Bredhoff &Kaiser PLLC 805 15th Street NW Ste 1000 Washington, DC 20005 202−842−2600 Email: jhunter@bredhoff.com ATTORNEY TO BE NOTICED

Leon O. Dayan Bredhoff &Kaiser PLLC 805 15th Street NW Ste 1000 Washington, DC 20005 202−842−2600 Email: ldayan@bredhoff.com ATTORNEY TO BE NOTICED

Matthew D. Ross Leonard, Carder, Nathan, Zuckerman, Ross 1330 Broadway, Suite 1450 Oakland, CA 94612 (510) 272−0169 Email: mross@leonardcarder.com ATTORNEY TO BE NOTICED

Intervenor Pla
California Landscape Contractors Association, Inc.

represented by Karen Rosenthal (See above for address) ATTORNEY TO BE NOTICED

Laura Metcoff Klaus , (See above for address) ATTORNEY TO BE NOTICED

Laura Foote Reiff (See above for address) ATTORNEY TO BE NOTICED

Robin S. Conrad (See above for address)

Case: 3:07-cv-4472 As of: 02/14/2013 06:26 AM PST 10 of 33
ATTORNEY TO BE NOTICED
Shane Brennan (See above for address) ATTORNEY TO BE NOTICED
William J. Goines (See above for address) ATTORNEY TO BE NOTICED

V. Defendant Michael Chertoff Secretary of Homeland Security
Defendant Department of Homeland Security

represented by Daniel Bensing U.S. Dept. of Justice 20 Massachusetts Ave., N.W. Rm 6114 Washington, DC 20530 202−305−0693 Fax: 202−616−8460 Email: Daniel.Bensing@USDOJ.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jonathan Unruh Lee United States Attorneys Office Northern District of California 450 Golden Gate Avenue 9th Floor San Francisco, CA 94102−3495 415−436−6909 Fax: 415−436−6748 Email: jonathan.lee@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Eric Joseph Beane U.S. Department of Justice 20 Massachusetts Ave., NW Washington, DC 20530 202−616−2035 Fax: 202−616−8470 Email: eric.beane@usdoj.gov ATTORNEY TO BE NOTICED
Thomas H. Dupree , Jr. U.S. Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Ave., N.W., Room 6114 Washington, DC 20001 202−305−0693 Fax: 202−616−8460 TERMINATED: 01/15/2009 ATTORNEY TO BE NOTICED
represented by Daniel Bensing (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Eric Joseph Beane U.S. Department of Justice

Case: 3:07-cv-4472 As of: 02/14/2013 06:26 AM PST 11 of 33

Civil Division, Federal Programs Branch 20 Massachusetts Ave., NW Washington, DC 20530 202−616−2035 Fax: 202−616−8470 Email: eric.beane@usdoj.gov ATTORNEY TO BE NOTICED

Thomas H. Dupree , Jr. (See above for address) TERMINATED: 01/15/2009 ATTORNEY TO BE NOTICED

Defendant
Julie Myers Assistant Secretary of Homeland Security

represented by Daniel Bensing (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Eric Joseph Beane (See above for address) ATTORNEY TO BE NOTICED

Thomas H. Dupree , Jr. (See above for address) TERMINATED: 01/15/2009 ATTORNEY TO BE NOTICED

Defendant
U.S. Immigration and Customs Enforcement

represented by Daniel Bensing (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Eric Joseph Beane (See above for address) ATTORNEY TO BE NOTICED

Thomas H. Dupree , Jr. (See above for address) TERMINATED: 01/15/2009 ATTORNEY TO BE NOTICED

Defendant
Michael Astrue Commissioner of Social Security

represented by Daniel Bensing (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Eric Joseph Beane (See above for address) ATTORNEY TO BE NOTICED

Thomas H. Dupree , Jr. (See above for address) TERMINATED: 01/15/2009 ATTORNEY TO BE NOTICED

Defendant Social Security Administration

represented by Daniel Bensing (See above for address) LEAD ATTORNEY

Case: 3:07-cv-4472 As of: 02/14/2013 06:26 AM PST 12 of 33

ATTORNEY TO BE NOTICED

Eric Joseph Beane (See above for address) ATTORNEY TO BE NOTICED

Thomas H. Dupree , Jr. (See above for address) TERMINATED: 01/15/2009 ATTORNEY TO BE NOTICED

Amicus
The National Federation of Independent Business Legal Foundation

represented by Linda Claxton Ogletree, Deakins, Nash, Smoak &Stewart, P.C. 633 West Fifth Street Suite 5300 Los Angeles, Ca 90071 213 438−5841 Fax: 213 239−9045 Email: linda.claxton@ogletreedeakins.com ATTORNEY TO BE NOTICED

Amicus California Rural Legal Assistance, Inc.

represented by Cynthia Louise Rice California Rural Legal Assistance 631 Howard Street Suite 300 San Francisco, CA 94105 415/777−2752 Fax: 415/543−2752 Email: crice@crla.org ATTORNEY TO BE NOTICED

V.
Intervenor
United Food and Commercial Workers Local 5

represented by Philip Carl Monrad (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jennifer Lynn Hunter (See above for address) ATTORNEY TO BE NOTICED
Leon O. Dayan (See above for address) ATTORNEY TO BE NOTICED
Matthew D. Ross (See above for address) ATTORNEY TO BE NOTICED
Robert M. Weinberg Bredhoff &Kaiser PLLC 805 Fifteenth Street NW Suite 1000 Washington, DC 20005 202−842−2600 Fax: Email: rweinberg@bredhoff.com

Case: 3:07-cv-4472 As of: 02/14/2013 06:26 AM PST 13 of 33

ATTORNEY TO BE NOTICED

Intervenor UNITE HERE

represented by Philip Carl Monrad (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jennifer Lynn Hunter (See above for address) ATTORNEY TO BE NOTICED

Leon O. Dayan (See above for address) ATTORNEY TO BE NOTICED

Matthew D. Ross (See above for address) ATTORNEY TO BE NOTICED

Robert M. Weinberg (See above for address) ATTORNEY TO BE NOTICED

Intervenor Unite Here Local 2

represented by Philip Carl Monrad (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jennifer Lynn Hunter (See above for address) TERMINATED: 08/31/2009 ATTORNEY TO BE NOTICED

Leon O. Dayan (See above for address) TERMINATED: 08/31/2009 ATTORNEY TO BE NOTICED

Matthew D. Ross (See above for address) ATTORNEY TO BE NOTICED

Robert M. Weinberg (See above for address) TERMINATED: 08/31/2009 ATTORNEY TO BE NOTICED

Intervenor
United Food and Commercial Workers International Union

represented by Philip Carl Monrad (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jennifer Lynn Hunter (See above for address) ATTORNEY TO BE NOTICED

Leon O. Dayan (See above for address) ATTORNEY TO BE NOTICED

Case: 3:07-cv-4472 As of: 02/14/2013 06:26 AM PST 14 of 33
Matthew D. Ross (See above for address) ATTORNEY TO BE NOTICED
Robert M. Weinberg (See above for address) ATTORNEY TO BE NOTICED

Date Filed 08/29/2007
08/29/2007 08/29/2007 08/29/2007 08/29/2007 08/29/2007
08/29/2007 08/29/2007

# Docket Text
1 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF /issued summons against Michael Chertoff, Department of Homeland Security, Julie Myers, U.S. Immigration and Customs Enforcement, Michael Astrue, Social Security Administration ( Filing fee $ 350, receipt number 34611009892.). Filed bySan Francisco Labor Council, San Francisco Building and Construction Trades Council, Central Labor Council of Alameda County, American Federation of Labor and Congress of Industrial Organizations. (ga, COURT STAFF) (Filed on 8/29/2007) Additional attachment(s) added on 8/31/2007 (sv, COURT STAFF). (Entered: 08/29/2007)
2 ORDER REASSIGNING CASE to Judge Charles R. Breyer for all further proceedings and, Magistrate Maria−Elena James is no longer assigned to the case.. Signed by Judge Executive Committee on 8/29/07. (ga, COURT STAFF) (Filed on 8/29/2007) (Entered: 08/29/2007)
3 ADR SCHEDULING ORDER: Case Management Statement due by 11/30/2007. Case Management Conference set for 12/7/2007 08:30 AM.. Signed by Judge Charles R. Breyer on 8/29/07. (Attachments: # 1 Court Standing Order# 2 Judge Standing Order)(ga, COURT STAFF) (Filed on 8/29/2007) (Entered: 08/29/2007)
4 Certificate of Interested Entities by San Francisco Labor Council, San Francisco Building and Construction Trades Council, Central Labor Council of Alameda County, American Federation of Labor and Congress of Industrial Organizations (ga, COURT STAFF) (Filed on 8/29/2007) Additional attachment(s) added on 8/31/2007 (sv, COURT STAFF). (Entered: 08/29/2007)
5 EX PARTE APPLICATION for OSC Why Preliminary Injunction Should Not Issue, MOTION for Temporary Restraining Order filed by San Francisco Labor Council, San Francisco Building and Construction Trades Council, Central Labor Council of Alameda County, American Federation of Labor and Congress of Industrial Organizations. (ga, COURT STAFF) (Filed on 8/29/2007) Additional attachment(s) added on 8/31/2007 (sv, COURT STAFF). (Entered: 08/29/2007)
6 MEMORANDUM in Support re 5 MOTION for Preliminary Injunction MOTION for Temporary Restraining Order filed bySan Francisco Labor Council, San Francisco Building and Construction Trades Council, Central Labor Council of Alameda County, American Federation of Labor and Congress of Industrial Organizations. (ga, COURT STAFF) (Filed on 8/29/2007) Additional attachment(s) added on 8/31/2007 (sv, COURT STAFF). Additional attachment(s) added on 9/19/2007 (mcl, COURT STAFF). (Entered: 08/29/2007)
7 Request for Judicial Notice re 5 MOTION for Preliminary Injunction MOTION for Temporary Restraining Order filed bySan Francisco Labor Council, San Francisco Building and Construction Trades Council, Central Labor Council of Alameda County, American Federation of Labor and Congress of Industrial Organizations. (ga, COURT STAFF) (Filed on 8/29/2007) Additional attachment(s) added on 9/19/2007 (mcl, COURT STAFF). (Entered: 08/29/2007)
8 Declaration of Scott A. Kronland in Support of 4 Certificate of Interested Entities, filed bySan Francisco Labor Council, San Francisco Building and Construction Trades Council, Central Labor Council of Alameda County, American Federation of Labor and Congress of Industrial Organizations. (ga, COURT STAFF) (Filed on 8/29/2007) Additional attachment(s) added on 8/31/2007 (sv, COURT STAFF). (Entered: 08/29/2007)

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08/29/2007 08/29/2007 08/29/2007 08/29/2007 08/29/2007 08/29/2007 08/29/2007 08/29/2007 08/29/2007 08/29/2007 08/31/2007

9 Declaration of Tyler Moran in Support of 5 MOTION for Preliminary Injunction MOTION for Temporary Restraining Order filed bySan Francisco Labor Council, San Francisco Building and Construction Trades Council, Central Labor Council of Alameda County, American Federation of Labor and Congress of Industrial Organizations. (ga, COURT STAFF) (Filed on 8/29/2007) Additional attachment(s) added on 8/31/2007 (sv, COURT STAFF). (Entered: 08/29/2007)
10 Declaration of Laura Foote in Support of 5 MOTION for Preliminary Injunction MOTION for Temporary Restraining Order filed bySan Francisco Labor Council, San Francisco Building and Construction Trades Council, Central Labor Council of Alameda County, American Federation of Labor and Congress of Industrial Organizations. (ga, COURT STAFF) (Filed on 8/29/2007) Additional attachment(s) added on 8/31/2007 (sv, COURT STAFF). (Entered: 08/29/2007)
11 Declaration of Linda Chavez−Thompson in Support of 5 MOTION for Preliminary Injunction MOTION for Temporary Restraining Order filed bySan Francisco Labor Council, San Francisco Building and Construction Trades Council, Central Labor Council of Alameda County, American Federation of Labor and Congress of Industrial Organizations. (ga, COURT STAFF) (Filed on 8/29/2007) Additional attachment(s) added on 8/31/2007 (sv, COURT STAFF). (Entered: 08/29/2007)
12 Declaration of Kenneth S. Apfel in Support of 5 MOTION for Preliminary Injunction MOTION for Temporary Restraining Order filed bySan Francisco Labor Council, San Francisco Building and Construction Trades Council, Central Labor Council of Alameda County, American Federation of Labor and Congress of Industrial Organizations. (ga, COURT STAFF) (Filed on 8/29/2007) Additional attachment(s) added on 8/31/2007 (sv, COURT STAFF). (Entered: 08/29/2007)
13 Declaration of Ana Avendano in Support of 5 MOTION for Preliminary Injunction MOTION for Temporary Restraining Order filed bySan Francisco Labor Council, San Francisco Building and Construction Trades Council, Central Labor Council of Alameda County, American Federation of Labor and Congress of Industrial Organizations. (ga, COURT STAFF) (Filed on 8/29/2007) Additional attachment(s) added on 8/31/2007 (sv, COURT STAFF). (Entered: 08/29/2007)
14 Declaration of Nik Theodore in Support of 5 MOTION for Preliminary Injunction MOTION for Temporary Restraining Order filed bySan Francisco Labor Council, San Francisco Building and Construction Trades Council, Central Labor Council of Alameda County, American Federation of Labor and Congress of Industrial Organizations. (ga, COURT STAFF) (Filed on 8/29/2007) Additional attachment(s) added on 8/31/2007 (sv, COURT STAFF). (Entered: 08/29/2007)
15 MOTION for Leave to Exceed Page Limitations filed by San Francisco Labor Council, San Francisco Building and Construction Trades Council, Central Labor Council of Alameda County, American Federation of Labor and Congress of Industrial Organizations. (ga, COURT STAFF) (Filed on 8/29/2007) Additional attachment(s) added on 8/31/2007 (sv, COURT STAFF). (Entered: 08/29/2007)
16 Declaration of Linda Yle in Support of 5 MOTION for Preliminary Injunction MOTION for Temporary Restraining Order filed bySan Francisco Labor Council, San Francisco Building and Construction Trades Council, Central Labor Council of Alameda County, American Federation of Labor and Congress of Industrial Organizations. (ga, COURT STAFF) (Filed on 8/29/2007) Additional attachment(s) added on 8/31/2007 (sv, COURT STAFF). (Entered: 08/29/2007)
Received Proposed Order re 15 MOTION for Leave to File Excess Pages by San Francisco Labor Council, San Francisco Building and Construction Trades Council, Central Labor Council of Alameda County, American Federation of Labor and Congress of Industrial Organizations. (ga, COURT STAFF) (Filed on 8/29/2007) (Entered: 08/29/2007)
CASE DESIGNATED for Electronic Filing. (mcl, COURT STAFF) (Entered: 09/12/2007)
17 MOTION UNOPPOSED MOTION FOR PERMISSION TO APPEAR AT HEARING TELEPHONICALLY, PER STIPULATION OF THE PARTIES; PROPOSED ORDER filed by Michael Chertoff. Motion Hearing set for 8/31/2007 03:00 PM in Courtroom 7, 19th Floor, San Francisco. (Lee, Jonathan) (Filed on

Case: 3:07-cv-4472 As of: 02/14/2013 06:26 AM PST 16 of 33

08/31/2007 08/31/2007 08/31/2007 08/31/2007 08/31/2007 08/31/2007 09/04/2007 09/05/2007
09/05/2007
09/05/2007
09/05/2007 09/06/2007

8/31/2007) (Entered: 08/31/2007)
18 Memorandum in Opposition re 5 MOTION for Preliminary Injunction MOTION for Temporary Restraining Order filed byMichael Chertoff, Department of Homeland Security, Julie Myers, U.S. Immigration and Customs Enforcement, Michael Astrue, Social Security Administration. (Attachments: # 1 Affidavit James Spero)(Bensing, Daniel) (Filed on 8/31/2007) (Entered: 08/31/2007)
19 Reply Memorandum re 5 MOTION for Preliminary Injunction MOTION for Temporary Restraining Order filed bySan Francisco Labor Council, San Francisco Building and Construction Trades Council, Central Labor Council of Alameda County, American Federation of Labor and Congress of Industrial Organizations. (Kronland, Scott) (Filed on 8/31/2007) (Entered: 08/31/2007)
20 Minute Entry: Temporary Restraining Order Hearing held on 8/31/2007 before Maxine M. Chesney (Date Filed: 8/31/2007). Responses due by 9/18/2007. Replies due by 9/25/2007. Motion Hearing set for 10/1/2007 02:30 PM in Courtroom 8, 19th Floor, San Francisco. (Court Reporter Lydia Zinn.) (be, COURT STAFF) (Date Filed: 8/31/2007) (Entered: 08/31/2007)
Set/Reset Deadlines: Preliminary Injuction Motion due by 9/11/2007. (be, COURT STAFF) (Filed on 8/31/2007) (Entered: 08/31/2007)
21 ORDER by Judge Maxine M. Chesney re 5 Motion for TRO and Order to Show Cause (be, COURT STAFF) (Filed on 8/31/2007) (Entered: 08/31/2007)
Set Deadlines/Hearings 21 Order to Show Cause Hearing set for 10/1/2007 02:30 PM. (sv, COURT STAFF) (Filed on 8/31/2007) (Entered: 09/04/2007)
22 TRANSCRIPT of Proceedings held on 8/31/07 before Judge Maxine C. Chesney. Court Reporter: Lydia Zinn.. (sv, COURT STAFF) (Filed on 9/4/2007) (Entered: 09/04/2007)
23 MOTION for leave to appear in Pro Hac Vice for Jonathan P. Hiatt ( Filing fee $ 210, receipt number 34611010064) filed by San Francisco Labor Council, San Francisco Building and Construction Trades Council, Central Labor Council of Alameda County, American Federation of Labor and Congress of Industrial Organizations. (sv, COURT STAFF) (Filed on 9/5/2007) Additional attachment(s) added on 9/6/2007 (sv, COURT STAFF). (Entered: 09/05/2007)
26 Proposed Order re 23 MOTION for leave to appear in Pro Hac Vice for Jonathan P. Hiatt ( Filing fee $ 210, receipt number 34611010064) MOTION for leave to appear in Pro Hac Vice ( Filing fee $ 210, receipt number 3461101006.) by San Francisco Labor Council, San Francisco Building and Construction Trades Council, Central Labor Council of Alameda County, American Federation of Labor and Congress of Industrial Organizations. (sv, COURT STAFF) (Filed on 9/5/2007) Additional attachment(s) added on 9/6/2007 (sv, COURT STAFF). (Entered: 09/05/2007)
24 CERTIFICATE OF SERVICE by San Francisco Labor Council, San Francisco Building and Construction Trades Council, Central Labor Council of Alameda County, American Federation of Labor and Congress of Industrial Organizations re 23 MOTION for leave to appear in Pro Hac Vice ( Filing fee $ 210, receipt number 3461101006.) MOTION for leave to appear in Pro Hac Vice ( Filing fee $ 210, receipt number 3461101006.), Proposed Order, (sv, COURT STAFF) (Filed on 9/5/2007) Additional attachment(s) added on 9/6/2007 (sv, COURT STAFF). (Entered: 09/05/2007)
25 MOTION for Leave to File Motion to Modify Briefing Schedule filed by Michael Chertoff, Department of Homeland Security, Julie Myers, U.S. Immigration and Customs Enforcement, Michael Astrue, Social Security Administration. (Attachments: # 1 # 2 # 3)(Bensing, Daniel) (Filed on 9/5/2007) (Entered: 09/05/2007)
27 Memorandum in Opposition re 25 MOTION for Leave to File Motion to Modify Briefing Schedule Plaintiffs Opposition to Motion for Reconsideration of the Order Setting a Briefing Schedule on Plaintiffs' Motion for a Preliminary Injunction filed bySan Francisco Labor Council, San Francisco Building and Construction Trades

Case: 3:07-cv-4472 As of: 02/14/2013 06:26 AM PST 17 of 33

09/06/2007 09/06/2007 09/06/2007
09/06/2007 09/07/2007
09/07/2007 09/07/2007
09/07/2007 09/07/2007 09/07/2007

Council, Central Labor Council of Alameda County, American Federation of Labor and Congress of Industrial Organizations. (Kronland, Scott) (Filed on 9/6/2007) (Entered: 09/06/2007)
28 Declaration of Scott A. Kronland in Support of 27 Memorandum in Opposition, filed bySan Francisco Labor Council, San Francisco Building and Construction Trades Council, Central Labor Council of Alameda County, American Federation of Labor and Congress of Industrial Organizations. (Related document(s) 27 ) (Kronland, Scott) (Filed on 9/6/2007) (Entered: 09/06/2007)
29 Declaration of Lucas Guttentag in Support of 27 Memorandum in Opposition, filed bySan Francisco Labor Council, San Francisco Building and Construction Trades Council, Central Labor Council of Alameda County, American Federation of Labor and Congress of Industrial Organizations. (Related document(s) 27 ) (Kronland, Scott) (Filed on 9/6/2007) (Entered: 09/06/2007)
30 Proposed Order re 25 MOTION for Leave to File Motion to Modify Briefing Schedule [PROPOSED] ORDER DENYING DEFENDANTS' MOTION FOR RECONSIDERATION OF ORDER SETTING BRIEFING SCHEDULE AND HEARING DATE FOR PLAINTIFFS' MOTION FOR A PRELIMINARY INJUNCTION by San Francisco Labor Council, San Francisco Building and Construction Trades Council, Central Labor Council of Alameda County, American Federation of Labor and Congress of Industrial Organizations. (Kronland, Scott) (Filed on 9/6/2007) (Entered: 09/06/2007)
31 ORDER by Judge Maxine M. Chesney denying 25 Motion to Modify the Briefing Schedule on Plaintiff's Motion for a Preliminary Injunction. (crblc2, COURT STAFF) (Filed on 9/6/2007) (Entered: 09/06/2007)
32 *** FILED IN ERROR. PLEASE SEE DOCKET # 34 . *** MOTION to Intervene filed by San Francisco Chamber of Commerce, Chamber of Commerce of the United States of America, Golden Gate Restaurant Association, National Roofing Contractors Association, American Nursery &Landscape Association, International Franchise Association, United Fresh Produce Association. Motion Hearing set for 9/14/2007 10:00 AM in Courtroom 8, 19th Floor, San Francisco. (Attachments: # 1 Exhibit A (Proposed Complaint in Intervention))(Rosenthal, Karen) (Filed on 9/7/2007) Modified on 9/12/2007 (ewn, COURT STAFF). (Entered: 09/07/2007)
33 Certificate of Interested Entities by Karen Rosenthal (Rosenthal, Karen) (Filed on 9/7/2007) (Entered: 09/07/2007)
34 MOTION to Intervene CORRECTION OF DOCKET #32 filed by San Francisco Chamber of Commerce, National Roofing Contractors Association, Golden Gate Restaurant Association, Chamber of Commerce of the United States of America, American Nursery &Landscape Association, International Franchise Association, United Fresh Produce Association. Motion Hearing set for 9/14/2007 10:00 AM in Courtroom 8, 19th Floor, San Francisco. (Attachments: # 1 Exhibit A (Proposed) Complaint in Intervention)(Rosenthal, Karen) (Filed on 9/7/2007) (Entered: 09/07/2007)
35 Proposed Order re 34 MOTION to Intervene CORRECTION OF DOCKET #32 by San Francisco Chamber of Commerce, National Roofing Contractors Association, Golden Gate Restaurant Association, Chamber of Commerce of the United States of America, American Nursery &Landscape Association, International Franchise Association, United Fresh Produce Association. (Rosenthal, Karen) (Filed on 9/7/2007) (Entered: 09/07/2007)
36 MOTION to Shorten Time for Hearing on Proposed Plaintiff Intervenor's Motion to Intervene; Memorandum of Points and Authorities; and Declaration of Cindy Hamilton filed by United Fresh Produce Association. Motion Hearing set for 9/14/2007 10:00 AM in Courtroom 10, 19th Floor, San Francisco. (Rosenthal, Karen) (Filed on 9/7/2007) Modified on 9/10/2007 (wv, COURT STAFF). (Entered: 09/07/2007)
37 *** FILED IN ERROR. DUPLICATE OF DOCKET # 35 . *** Proposed Order re 36 MOTION to Shorten Time for Hearing on Proposed Plaintiff

Case: 3:07-cv-4472 As of: 02/14/2013 06:26 AM PST 18 of 33

09/07/2007
09/10/2007
09/10/2007 09/10/2007 09/11/2007 09/11/2007 09/11/2007 09/11/2007 09/11/2007 09/11/2007

Intervenor's Motion to Intervene; Memorandum of Points and Authorities; and Declaration of Cindy Hamilton by San Francisco Chamber of Commerce, National Roofing Contractors Association, Golden Gate Restaurant Association, Chamber of Commerce of the United States of America, American Nursery &Landscape Association, International Franchise Association, United Fresh Produce Association. (Rosenthal, Karen) (Filed on 9/7/2007) Modified on 9/12/2007 (ewn, COURT STAFF). (Entered: 09/07/2007)
38 Proposed Order re 36 MOTION to Shorten Time for Hearing on Proposed Plaintiff Intervenor's Motion to Intervene; Memorandum of Points and Authorities; and Declaration of Cindy Hamilton by San Francisco Chamber of Commerce, National Roofing Contractors Association, Golden Gate Restaurant Association, Chamber of Commerce of the United States of America, American Nursery &Landscape Association, International Franchise Association, United Fresh Produce Association. (Rosenthal, Karen) (Filed on 9/7/2007) (Entered: 09/07/2007)
39 Declaration of Robert P. Charrow in Support of 34 MOTION to Intervene CORRECTION OF DOCKET #32 filed bySan Francisco Chamber of Commerce, National Roofing Contractors Association, Golden Gate Restaurant Association, Chamber of Commerce of the United States of America, American Nursery &Landscape Association, International Franchise Association, United Fresh Produce Association. (Attachments: # 1 Exhibit A, B and C)(Related document(s) 34 ) (Rosenthal, Karen) (Filed on 9/10/2007) (Entered: 09/10/2007)
40 ORDER by Judge Illston granting 36 Motion to Shorten Time ; Motion to Intervene set in Courtroom #10, 19th Floor on September 14, 2007, at 10:00 a.m. (ts, COURT STAFF) (Filed on 9/10/2007) (Entered: 09/10/2007)
41 Statement of Non−Opposition re 34 MOTION to Intervene CORRECTION OF DOCKET #32 filed bySan Francisco Labor Council, San Francisco Building and Construction Trades Council, Central Labor Council of Alameda County, American Federation of Labor and Congress of Industrial Organizations. (Related document(s) 34 ) (Kronland, Scott) (Filed on 9/10/2007) (Entered: 09/10/2007)
42 RESPONSE in Support re 34 MOTION to Intervene CORRECTION OF DOCKET #32 filed byMichael Chertoff, Department of Homeland Security, Julie Myers, U.S. Immigration and Customs Enforcement, Michael Astrue, Social Security Administration. (Bensing, Daniel) (Filed on 9/11/2007) (Entered: 09/11/2007)
43 MOTION/Application for leave to appear in Pro Hac Vice for Omar C. Jadwat ( Filing fee $ 210, receipt number 34611010121) filed by Central Labor Council of Alameda County. (sv, COURT STAFF) (Filed on 9/11/2007) (Entered: 09/11/2007)
Proposed Order re 43 MOTION for leave to appear in Pro Hac Vice for Oamr C. Jadwat ( Filing fee $ 210, receipt number 34611010121) by Central Labor Council of Alameda County. (sv, COURT STAFF) (Filed on 9/11/2007) (Entered: 09/11/2007)
44 ORDER by Judge Illston granting 34 Motion to Intervene; vacating 9/14/07 hearing (ts, COURT STAFF) (Filed on 9/11/2007) (Entered: 09/11/2007)
45 Intervenor COMPLAINT. Filed byChamber of Commerce of the United States of America, San Francisco Chamber of Commerce, National Roofing Contractors Association, Golden Gate Restaurant Association, American Nursery &Landscape Association, International Franchise Association, United Fresh Produce Association. (Rosenthal, Karen) (Filed on 9/11/2007) (Entered: 09/11/2007)
46 MOTION for Preliminary Injunction filed by San Francisco Chamber of Commerce, National Roofing Contractors Association, Golden Gate Restaurant Association, Chamber of Commerce of the United States of America, American Nursery &Landscape Association, International Franchise Association, United Fresh Produce Association. Motion Hearing set for 10/1/2007 02:30 PM in Courtroom 8, 19th Floor, San Francisco. (Rosenthal, Karen) (Filed on 9/11/2007) (Entered: 09/11/2007)

Case: 3:07-cv-4472 As of: 02/14/2013 06:26 AM PST 19 of 33

09/11/2007 09/11/2007 09/11/2007 09/11/2007 09/11/2007 09/11/2007
09/11/2007 09/11/2007

47 MEMORANDUM in Support re 46 MOTION for Preliminary Injunction filed bySan Francisco Chamber of Commerce, National Roofing Contractors Association, Golden Gate Restaurant Association, Chamber of Commerce of the United States of America, American Nursery &Landscape Association, International Franchise Association, United Fresh Produce Association. (Attachments: # 1 Appendix Declaration of Elizabeth Dickson# 2 Appendix Declaration of Robert J. Dolibois# 3 Appendix Declaration of Robert Craig Silvertooth# 4 Appendix Attestation Clause and Proof of Service)(Related document(s) 46 ) (Rosenthal, Karen) (Filed on 9/11/2007) (Entered: 09/11/2007)
48 Proposed Order re 46 MOTION for Preliminary Injunction by San Francisco Chamber of Commerce, National Roofing Contractors Association, Golden Gate Restaurant Association, Chamber of Commerce of the United States of America, American Nursery &Landscape Association, International Franchise Association, United Fresh Produce Association. (Rosenthal, Karen) (Filed on 9/11/2007) (Entered: 09/11/2007)
49 MOTION for Leave to File Excess Pages re Memo of Points and Authorities in Support of Motion for Preliminary Injunction filed by San Francisco Chamber of Commerce, National Roofing Contractors Association, Golden Gate Restaurant Association, American Nursery &Landscape Association, International Franchise Association, United Fresh Produce Association, Chamber of Commerce of the United States of America. (Rosenthal, Karen) (Filed on 9/11/2007) (Entered: 09/11/2007)
50 Proposed Order re 49 MOTION for Leave to File Excess Pages re Memo of Points and Authorities in Support of Motion for Preliminary Injunction by San Francisco Chamber of Commerce, National Roofing Contractors Association, Golden Gate Restaurant Association, American Nursery &Landscape Association, International Franchise Association, United Fresh Produce Association, Chamber of Commerce of the United States of America. (Rosenthal, Karen) (Filed on 9/11/2007) (Entered: 09/11/2007)
51 MOTION for Preliminary Injunction Notice of Motion and Motion for a Preliminary Injunction; Memorandum of Points and Authorities; Appendices A−C filed by San Francisco Labor Council, San Francisco Building and Construction Trades Council, Central Labor Council of Alameda County, American Federation of Labor and Congress of Industrial Organizations. Motion Hearing set for 10/1/2007 02:30 PM in Courtroom 8, 19th Floor, San Francisco. (Attachments: # 1 Appendix A# 2 Appendix B# 3 Appendix C)(Kronland, Scott) (Filed on 9/11/2007) (Entered: 09/11/2007)
52 Declarations in Support of Preliminary Injunction in Support of 51 MOTION for Preliminary Injunction Notice of Motion and Motion for a Preliminary Injunction; Memorandum of Points and Authorities; Appendices A−C filed bySan Francisco Labor Council, San Francisco Building and Construction Trades Council, Central Labor Council of Alameda County, American Federation of Labor and Congress of Industrial Organizations. (Attachments: # 1 Exhibit A − Decl. of Kenneth S. Apfel# 2 Errata B − Decl. of Ana Avendano# 3 Exhibit C − Decl. of Linda Chavez−Thompson# 4 Exhibit D − Decl. of Sharon Cornu# 5 Exhibit E − Decl. of Tyler Moran# 6 Exhibit F − Decl. of Tim Paulson# 7 Exhibit G − Decl. of Michael Reich# 8 Exhibit H − Decl. of Laura Foote Reiff# 9 Exhibit I − Decl. of Nik Theodore# 10 Exhibit J − Decl. of Michael Theriault)(Related document(s) 51 ) (Kronland, Scott) (Filed on 9/11/2007) Modified on 9/13/2007 (mcl, COURT STAFF). (Entered: 09/11/2007)
53 Proposed Order re 51 MOTION for Preliminary Injunction Notice of Motion and Motion for a Preliminary Injunction; Memorandum of Points and Authorities; Appendices A−C by San Francisco Labor Council, San Francisco Building and Construction Trades Council, Central Labor Council of Alameda County, American Federation of Labor and Congress of Industrial Organizations. (Kronland, Scott) (Filed on 9/11/2007) (Entered: 09/11/2007)
54 AMENDED COMPLAINT First Amended Complaint for Injunctive and Declaratory Relief against Michael Chertoff, Department of Homeland Security, Julie Myers, U.S. Immigration and Customs Enforcement, Michael Astrue, Social Security Administration. Filed bySan Francisco Labor Council, San Francisco

Case: 3:07-cv-4472 As of: 02/14/2013 06:26 AM PST 20 of 33

09/11/2007
09/11/2007
09/11/2007
09/12/2007 09/12/2007
09/12/2007 09/12/2007
09/12/2007
09/12/2007 09/12/2007 09/12/2007 09/12/2007 09/12/2007 09/12/2007 09/13/2007

Building and Construction Trades Council, Central Labor Council of Alameda County, American Federation of Labor and Congress of Industrial Organizations. (Kronland, Scott) (Filed on 9/11/2007) (Entered: 09/11/2007)
55 MOTION for Leave to File Excess Pages filed by San Francisco Labor Council, San Francisco Building and Construction Trades Council, Central Labor Council of Alameda County, American Federation of Labor and Congress of Industrial Organizations. Motion Hearing set for 10/1/2007 02:30 PM in Courtroom 8, 19th Floor, San Francisco. (Kronland, Scott) (Filed on 9/11/2007) (Entered: 09/11/2007)
56 Declaration of Scott A. Kronland in Support of 55 MOTION for Leave to File Excess Pages filed bySan Francisco Labor Council, San Francisco Building and Construction Trades Council, Central Labor Council of Alameda County, American Federation of Labor and Congress of Industrial Organizations. (Related document(s) 55 ) (Kronland, Scott) (Filed on 9/11/2007) (Entered: 09/11/2007)
57 Proposed Order re 55 MOTION for Leave to File Excess Pages by San Francisco Labor Council, San Francisco Building and Construction Trades Council, Central Labor Council of Alameda County, American Federation of Labor and Congress of Industrial Organizations. (Kronland, Scott) (Filed on 9/11/2007) (Entered: 09/11/2007)
58 Certificate of Interested Entities by Philip Carl Monrad (Monrad, Philip) (Filed on 9/12/2007) (Entered: 09/12/2007)
59 MOTION to Intervene filed by United Food and Commercial Workers Local 5, UNITE HERE, Unite Here Local 2, United Food and Commercial Workers International Union. Motion Hearing set for 9/14/2007 10:00 AM in Courtroom 8, 19th Floor, San Francisco. (Attachments: # 1 Exhibit 1)(Monrad, Philip) (Filed on 9/12/2007) (Entered: 09/12/2007)
60 Proposed Order re 59 MOTION to Intervene by United Food and Commercial Workers Local 5, UNITE HERE, Unite Here Local 2, United Food and Commercial Workers International Union. (Monrad, Philip) (Filed on 9/12/2007) (Entered: 09/12/2007)
61 STIPULATION REQUESTING ORDER SHORTENING TIME FOR HEARING ON UNOPPOSED MOTION FOR LEAVE TO INTERVENE by United Food and Commercial Workers Local 5, UNITE HERE, Unite Here Local 2, United Food and Commercial Workers International Union. (Attachments: # 1 Declaration)(Monrad, Philip) (Filed on 9/12/2007) (Entered: 09/12/2007)
62 Proposed Order re 61 Stipulation, Requesting Order Shortening Time for Hearing on Unopposed Motion for Leave to Intervene by United Food and Commercial Workers Local 5, UNITE HERE, Unite Here Local 2, United Food and Commercial Workers International Union. (Monrad, Philip) (Filed on 9/12/2007) (Entered: 09/12/2007)
Intervenor Complaint Summons Issued as to Michael Chertoff. (mcl, COURT STAFF) (Entered: 09/13/2007)
Intervenor Complaint Summons Issued as to Department of Homeland Security. (mcl, COURT STAFF) (Entered: 09/13/2007)
Intervenor Complaint Summons Issued as to U.S. Immigration and Customs Enforcement. (mcl, COURT STAFF) (Entered: 09/13/2007)
Intervenor Complaint Summons Issued as to Julie Myers. (mcl, COURT STAFF) (Entered: 09/13/2007)
Intervenor Complaint Summons Issued as to Social Security Administration. (mcl, COURT STAFF) (Entered: 09/13/2007)
Intervenor Complaint Summons Issued as to Michael Astrue. (mcl, COURT STAFF) (Entered: 09/13/2007)
63 ORDER by Judge Charles R. Breyer granting 49 Motion for Leave to File Excess Pages (be, COURT STAFF) (Filed on 9/13/2007) (Entered: 09/13/2007)

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09/13/2007 09/13/2007 09/13/2007 09/13/2007
09/13/2007
09/13/2007
09/14/2007 09/14/2007 09/14/2007 09/14/2007 09/14/2007
09/17/2007 09/17/2007

64 ORDER by Judge Charles R. Breyer granting 55 Motion for Leave to File Excess Pages (be, COURT STAFF) (Filed on 9/13/2007) (Entered: 09/13/2007)
65 ORDER by Judge Charles R. Breyer granting Jonathan P. Hiatt 23 Motion for Pro Hac Vice (be, COURT STAFF) (Filed on 9/13/2007) (Entered: 09/13/2007)
66 ORDER by Judge Illston granting 59 Motion to Intervene; denying as moot request for order shortening time. (ts, COURT STAFF) (Filed on 9/13/2007) (Entered: 09/13/2007)
67 MOTION for leave to appear in Pro Hac Vice for Laura Foote ( Filing fee $ 210, receipt number 34611010497.) filed by San Francisco Chamber of Commerce, National Roofing Contractors Association, Golden Gate Restaurant Association, American Nursery &Landscape Association, International Franchise Association, United Fresh Produce Association, Chamber of Commerce of the United States of America. (mcl, COURT STAFF) (Filed on 9/13/2007) (Entered: 09/14/2007)
68 MOTION for leave to appear in Pro Hac Vice for Laura Klaus ( Filing fee $ 210, receipt number 34611010497.) filed by San Francisco Chamber of Commerce, National Roofing Contractors Association, Golden Gate Restaurant Association, American Nursery &Landscape Association, International Franchise Association, United Fresh Produce Association, Chamber of Commerce of the United States of America. (mcl, COURT STAFF) (Filed on 9/13/2007) (Entered: 09/14/2007)
69 MOTION for leave to appear in Pro Hac Vice for Shane Brennan ( Filing fee $ 210, receipt number 34611010496.) filed by San Francisco Chamber of Commerce, National Roofing Contractors Association, Golden Gate Restaurant Association, American Nursery &Landscape Association, International Franchise Association, United Fresh Produce Association, Chamber of Commerce of the United States of America. (mcl, COURT STAFF) (Filed on 9/13/2007) (Entered: 09/14/2007)
70 Intervenor COMPLAINT. Filed byUnited Food and Commercial Workers Local 5, UNITE HERE, Unite Here Local 2, United Food and Commercial Workers International Union. (Monrad, Philip) (Filed on 9/14/2007) (Entered: 09/14/2007)
71 MOTION for Preliminary Injunction filed by United Food and Commercial Workers Local 5, UNITE HERE, Unite Here Local 2, United Food and Commercial Workers International Union. Motion Hearing set for 10/1/2007 10:00 AM. (Monrad, Philip) (Filed on 9/14/2007) (Entered: 09/14/2007)
72 Proposed Order re 71 MOTION for Preliminary Injunction by United Food and Commercial Workers Local 5, UNITE HERE, Unite Here Local 2, United Food and Commercial Workers International Union. (Monrad, Philip) (Filed on 9/14/2007) (Entered: 09/14/2007)
73 Amended MOTION for Preliminary Injunction filed by United Food and Commercial Workers Local 5, UNITE HERE, Unite Here Local 2, United Food and Commercial Workers International Union. Motion Hearing set for 10/1/2007 02:30 PM in Courtroom 8, 19th Floor, San Francisco. (Monrad, Philip) (Filed on 9/14/2007) (Entered: 09/14/2007)
75 MOTION for leave to appear in Pro Hac Vice (Robin S. Conrad) ( Filing fee $ 210, receipt number 34611010545.) filed by San Francisco Chamber of Commerce, National Roofing Contractors Association, Golden Gate Restaurant Association, American Nursery &Landscape Association, International Franchise Association, United Fresh Produce Association, Chamber of Commerce of the United States of America. (mcl, COURT STAFF) (Filed on 9/14/2007) (Entered: 09/17/2007)
74 ORDER by Judge Charles R. Breyer granting 43 Motion for Pro Hac Vice (be, COURT STAFF) (Filed on 9/17/2007) (Entered: 09/17/2007)
76 SUMMONS Returned Executed by San Francisco Chamber of Commerce, National Roofing Contractors Association, Golden Gate Restaurant Association, Chamber of Commerce of the United States of America, American Nursery &Landscape Association, International Franchise Association, United Fresh Produce Association. Michael Astrue served on 9/17/2007, answer due 10/9/2007. (Rosenthal, Karen) (Filed on 9/17/2007) (Entered: 09/17/2007)

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09/17/2007 09/17/2007 09/17/2007 09/17/2007 09/17/2007 09/17/2007 09/17/2007 09/17/2007 09/17/2007 09/17/2007

77 SUMMONS Returned Executed by San Francisco Chamber of Commerce, National Roofing Contractors Association, Golden Gate Restaurant Association, Chamber of Commerce of the United States of America, American Nursery &Landscape Association, International Franchise Association, United Fresh Produce Association. Michael Chertoff served on 9/17/2007, answer due 10/9/2007. (Rosenthal, Karen) (Filed on 9/17/2007) (Entered: 09/17/2007)
78 SUMMONS Returned Executed by San Francisco Chamber of Commerce, National Roofing Contractors Association, Golden Gate Restaurant Association, Chamber of Commerce of the United States of America, American Nursery &Landscape Association, International Franchise Association, United Fresh Produce Association. Department of Homeland Security served on 9/17/2007, answer due 10/9/2007. (Rosenthal, Karen) (Filed on 9/17/2007) (Entered: 09/17/2007)
79 SUMMONS Returned Executed by San Francisco Chamber of Commerce, National Roofing Contractors Association, Golden Gate Restaurant Association, Chamber of Commerce of the United States of America, American Nursery &Landscape Association, International Franchise Association, United Fresh Produce Association. Social Security Administration served on 9/17/2007, answer due 10/9/2007. (Rosenthal, Karen) (Filed on 9/17/2007) (Entered: 09/17/2007)
80 SUMMONS Returned Executed by San Francisco Chamber of Commerce, National Roofing Contractors Association, Golden Gate Restaurant Association, Chamber of Commerce of the United States of America, American Nursery &Landscape Association, International Franchise Association, United Fresh Produce Association. U.S. Immigration and Customs Enforcement served on 9/17/2007, answer due 10/9/2007. (Rosenthal, Karen) (Filed on 9/17/2007) (Entered: 09/17/2007)
81 SUMMONS Returned Executed by San Francisco Chamber of Commerce, National Roofing Contractors Association, Golden Gate Restaurant Association, Chamber of Commerce of the United States of America, American Nursery &Landscape Association, International Franchise Association, United Fresh Produce Association. Julie Myers served on 9/17/2007, answer due 10/9/2007. (Rosenthal, Karen) (Filed on 9/17/2007) (Entered: 09/17/2007)
82 MOTION for leave to appear in Pro Hac Vice (Leon Dayan) ( Filing fee $ 210, receipt number 34611010574.) filed by United Food and Commercial Workers Local 5, UNITE HERE, Unite Here Local 2, United Food and Commercial Workers International Union. (mcl, COURT STAFF) (Filed on 9/17/2007) (Entered: 09/18/2007)
Received Order re 82 MOTION for leave to appear in Pro Hac Vice (Leon Dayan) ( Filing fee $ 210, receipt number 3461101057.) MOTION for leave to appear in Pro Hac Vice ( Filing fee $ 210, receipt number 3461101057.) by United Food and Commercial Workers Local 5, UNITE HERE, Unite Here Local 2, United Food and Commercial Workers International Union. (mcl, COURT STAFF) (Entered: 09/18/2007)
83 MOTION for leave to appear in Pro Hac Vice (Robert M. Weinberg) ( Filing fee $ 210, receipt number 34611010574.) filed by United Food and Commercial Workers Local 5, UNITE HERE, Unite Here Local 2, United Food and Commercial Workers International Union. (mcl, COURT STAFF) (Filed on 9/17/2007) (Entered: 09/18/2007)
Received Order re 83 MOTION for leave to appear in Pro Hac Vice (Robert M. Weinberg) ( Filing fee $ 210, receipt number 3461101057.) MOTION for leave to appear in Pro Hac Vice ( Filing fee $ 210, receipt number 3461101057.) by United Food and Commercial Workers Local 5, UNITE HERE, Unite Here Local 2, United Food and Commercial Workers International Union. (mcl, COURT STAFF) (Entered: 09/18/2007)
84 MOTION for leave to appear in Pro Hac Vice (Jennifer L. Hunter) ( Filing fee $ 210, receipt number 34611010574.) filed by United Food and Commercial Workers Local 5, UNITE HERE, Unite Here Local 2, United Food and Commercial Workers International Union. (mcl, COURT STAFF) (Filed on

Case: 3:07-cv-4472 As of: 02/14/2013 06:26 AM PST 23 of 33

09/17/2007 09/18/2007 09/18/2007 09/18/2007 09/18/2007 09/18/2007
09/18/2007 09/18/2007 09/18/2007
09/18/2007 09/18/2007

9/17/2007) (Entered: 09/18/2007)
Received Order re 84 MOTION for leave to appear in Pro Hac Vice (Jennifer L. Hunter) ( Filing fee $ 210, receipt number 3461101057.) MOTION for leave to appear in Pro Hac Vice ( Filing fee $ 210, receipt number 3461101057.) by United Food and Commercial Workers Local 5, UNITE HERE, Unite Here Local 2, United Food and Commercial Workers International Union. (mcl, COURT STAFF) (Entered: 09/18/2007)
85 CERTIFICATE OF SERVICE by San Francisco Labor Council, San Francisco Building and Construction Trades Council, Central Labor Council of Alameda County, American Federation of Labor and Congress of Industrial Organizations of Summons, Complaint, and all initial documents on all defendants (Kronland, Scott) (Filed on 9/18/2007) (Entered: 09/18/2007)
86 MOTION for Leave to File Excess Pages filed by Michael Chertoff, Department of Homeland Security, Julie Myers, U.S. Immigration and Customs Enforcement, Michael Astrue, Social Security Administration. (Bensing, Daniel) (Filed on 9/18/2007) (Entered: 09/18/2007)
87 Proposed Order re 86 MOTION for Leave to File Excess Pages by Michael Chertoff, Department of Homeland Security, Julie Myers, U.S. Immigration and Customs Enforcement, Michael Astrue, Social Security Administration. (Bensing, Daniel) (Filed on 9/18/2007) (Entered: 09/18/2007)
88 Declaration of Daniel Bensing in Support of 86 MOTION for Leave to File Excess Pages filed byMichael Chertoff, Department of Homeland Security, Julie Myers, U.S. Immigration and Customs Enforcement, Michael Astrue, Social Security Administration. (Related document(s) 86 ) (Bensing, Daniel) (Filed on 9/18/2007) (Entered: 09/18/2007)
89 Memorandum in Opposition re 51 MOTION for Preliminary Injunction Notice of Motion and Motion for a Preliminary Injunction; Memorandum of Points and Authorities; Appendices A−C, 46 MOTION for Preliminary Injunction, 73 Amended MOTION for Preliminary Injunction filed byMichael Chertoff, Department of Homeland Security, Julie Myers, U.S. Immigration and Customs Enforcement, Michael Astrue, Social Security Administration. (Bensing, Daniel) (Filed on 9/18/2007) (Entered: 09/18/2007)
90 Declaration of John Simermeyer in Support of 89 Memorandum in Opposition, filed byMichael Chertoff, Department of Homeland Security, Julie Myers, U.S. Immigration and Customs Enforcement, Michael Astrue, Social Security Administration. (Related document(s) 89 ) (Bensing, Daniel) (Filed on 9/18/2007) Modified on 9/19/2007 (mcl, COURT STAFF). (Entered: 09/18/2007)
91 Declaration of James C. Spero in Support of 89 Memorandum in Opposition, filed byMichael Chertoff, Department of Homeland Security, Julie Myers, U.S. Immigration and Customs Enforcement, Michael Astrue, Social Security Administration. (Related document(s) 89 ) (Bensing, Daniel) (Filed on 9/18/2007) (Entered: 09/18/2007)
92 Ex Parte Application of National Federation of Independent Business Legal Foundation to Participate as an Amicus Curiae and Submit its proposed Memorandum of Points and Authorities in Support of Plaintiff−Intervenors' Regulatory Flexibility Act Cause of Action filed by The National Federation of Independent Business Legal Foundation. Motion Hearing set for 10/1/2007 10:00 AM in Courtroom 8, 19th Floor, San Francisco. (Attachments: # 1 Exhibit A)(Claxton, Linda) (Filed on 9/18/2007) (Entered: 09/18/2007)
93 Request for Judicial Notice re 89 Memorandum in Opposition, filed byMichael Chertoff, Department of Homeland Security, Julie Myers, U.S. Immigration and Customs Enforcement, Michael Astrue, Social Security Administration. (Related document(s) 89 ) (Bensing, Daniel) (Filed on 9/18/2007) (Entered: 09/18/2007)
94 MOTION to File Amicus Curiae Brief Memorandum of Points and Authorities of Proposed Amicus Curiae National Federation of Independent Business Legal Foundation in Support of Plaintiff Intervenors' Regulatory Flexibility Act Cause of

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09/18/2007 09/19/2007 09/19/2007 09/19/2007 09/19/2007 09/19/2007 09/19/2007

Action filed by The National Federation of Independent Business Legal Foundation. Motion Hearing set for 10/1/2007 10:00 AM in Courtroom 8, 19th Floor, San Francisco. (Claxton, Linda) (Filed on 9/18/2007) (Entered: 09/18/2007)
95 Proposed Order re 94 MOTION to File Amicus Curiae Brief Memorandum of Points and Authorities of Proposed Amicus Curiae National Federation of Independent Business Legal Foundation in Support of Plaintiff Intervenors' Regulatory Flexibility Act Cause of Action by The National Federation of Independent Business Legal Foundation. (Claxton, Linda) (Filed on 9/18/2007) (Entered: 09/18/2007)
96 Proposed Order re 67 MOTION for leave to appear in Pro Hac Vice ( Filing fee $ 210, receipt number 3461101049.) MOTION for leave to appear in Pro Hac Vice ( Filing fee $ 210, receipt number 3461101049.) Proposed Order Granting Application for Admission of Attorney Laura Foote Reiff Pro Hac Vice by San Francisco Chamber of Commerce, National Roofing Contractors Association, Golden Gate Restaurant Association, Chamber of Commerce of the United States of America, American Nursery &Landscape Association, International Franchise Association, United Fresh Produce Association. (Goines, William) (Filed on 9/19/2007) (Entered: 09/19/2007)
97 Proposed Order re 68 MOTION for leave to appear in Pro Hac Vice ( Filing fee $ 210, receipt number 3461101049.) MOTION for leave to appear in Pro Hac Vice ( Filing fee $ 210, receipt number 3461101049.) Proposed Order Granting Application for Admission of Attorney Laura Klaus Pro Hac Vice by San Francisco Chamber of Commerce, National Roofing Contractors Association, Golden Gate Restaurant Association, Chamber of Commerce of the United States of America, American Nursery &Landscape Association, International Franchise Association, United Fresh Produce Association. (Goines, William) (Filed on 9/19/2007) (Entered: 09/19/2007)
98 Proposed Order re 69 MOTION for leave to appear in Pro Hac Vice ( Filing fee $ 210, receipt number 3461101049.) MOTION for leave to appear in Pro Hac Vice ( Filing fee $ 210, receipt number 3461101049.) Proposed Order Granting Application for Admission of Attorney Shane Brennan Pro Hac Vice by San Francisco Chamber of Commerce, National Roofing Contractors Association, Golden Gate Restaurant Association, Chamber of Commerce of the United States of America, American Nursery &Landscape Association, International Franchise Association, United Fresh Produce Association. (Goines, William) (Filed on 9/19/2007) (Entered: 09/19/2007)
99 Proposed Order re 75 MOTION for leave to appear in Pro Hac Vice ( Filing fee $ 210, receipt number 3461101054.) MOTION for leave to appear in Pro Hac Vice ( Filing fee $ 210, receipt number 3461101054.) Proposed Order Granting Application for Admission of Attorney Robin S. Conrad Pro Hac Vice by San Francisco Chamber of Commerce, National Roofing Contractors Association, Golden Gate Restaurant Association, Chamber of Commerce of the United States of America, American Nursery &Landscape Association, International Franchise Association, United Fresh Produce Association. (Goines, William) (Filed on 9/19/2007) (Entered: 09/19/2007)
Summons re Intervenor's Complaint (#70) Issued as to Michael Chertoff, Department of Homeland Security, Julie Myers, U.S. Immigration and Customs Enforcement, Michael Astrue, Social Security Administration. (mcl, COURT STAFF) (Entered: 09/19/2007)
100 SUMMONS Returned Executed re 70 Intervenors' Complaint by United Food and Commercial Workers Local 5, UNITE HERE, Unite Here Local 2, United Food and Commercial Workers International Union. Michael Chertoff served on 9/19/2007, answer due 11/19/2007; Department of Homeland Security served on 9/19/2007, answer due 11/19/2007; Julie Myers served on 9/19/2007, answer due 11/19/2007; U.S. Immigration and Customs Enforcement served on 9/19/2007, answer due 11/19/2007; Michael Astrue served on 9/19/2007, answer due 11/19/2007; Social Security Administration served on 9/19/2007, answer due 11/19/2007. (Monrad, Philip) (Filed on 9/19/2007) Modified on 9/21/2007 (mcl, COURT STAFF). (Entered: 09/19/2007)

Case: 3:07-cv-4472 As of: 02/14/2013 06:26 AM PST 25 of 33

09/20/2007 09/20/2007 09/20/2007 09/20/2007 09/20/2007 09/20/2007 09/20/2007 09/20/2007 09/25/2007
09/25/2007
09/25/2007
09/25/2007 09/25/2007 09/25/2007 09/25/2007 09/25/2007

101 Proposed Order re 89 Memorandum in Opposition, by Michael Chertoff, Department of Homeland Security, Julie Myers, U.S. Immigration and Customs Enforcement, Michael Astrue, Social Security Administration. (Bensing, Daniel) (Filed on 9/20/2007) (Entered: 09/20/2007)
102 ORDER by Judge Charles R. Breyer granting 86 Motion for Leave to File Excess Pages (be, COURT STAFF) (Filed on 9/20/2007) (Entered: 09/20/2007)
103 ORDER GRANTING LEAVE TO FILE AMICUS BRIEF. Signed by Judge Charles R. Breyer on 9/19/07. (be, COURT STAFF) (Filed on 9/20/2007) (Entered: 09/20/2007)
104 ORDER by Judge Charles R. Breyer granting Leon Dayan 82 Motion for Pro Hac Vice (be, COURT STAFF) (Filed on 9/20/2007) (Entered: 09/20/2007)
105 ORDER by Judge Charles R. Breyer granting Jennifer Hunter 84 Motion for Pro Hac Vice (be, COURT STAFF) (Filed on 9/20/2007) (Entered: 09/20/2007)
106 ORDER by Judge Charles R. Breyer granting 83 Motion for Pro Hac Vice (be, COURT STAFF) (Filed on 9/20/2007) (Entered: 09/20/2007)
107 Amended MOTION to Amend/Correct Amicus Memo filed by The National Federation of Independent Business Legal Foundation. Motion Hearing set for 10/1/2007 10:00 AM in Courtroom 8, 19th Floor, San Francisco. (Claxton, Linda) (Filed on 9/20/2007) (Entered: 09/20/2007)
108 Declaration of Linda Claxton in Support of 107 Amended MOTION to Amend/Correct Amicus Memo Filing of Corrected Amicus Brief filed byThe National Federation of Independent Business Legal Foundation. (Related document(s) 107 ) (Claxton, Linda) (Filed on 9/20/2007) (Entered: 09/20/2007)
109 Ex Parte Application re 6 Memorandum in Support, filed by California Rural Legal Assistance, Inc.. Motion Hearing set for 10/1/2007 10:00 AM in Courtroom 8, 19th Floor, San Francisco. (Attachments: # 1 Memorandum of Points and Authorities by Amicus Curiae California Rural Legal Assistance Inc. in Support of Plaintiffs/Intervenors' Motion for Preliminary Injunction# 2 Proposed Order Proposed Order Granting California Rural Legal Assistanc, Inc. Leave to Submit Amicus Curiae Memorandum in Support of Plaintiffs/Intervenors' Motion for Preliminary Injunction)(Rice, Cynthia) (Filed on 9/25/2007) (Entered: 09/25/2007)
110 Reply to Opposition : Reply to Defendants' Opposition to 46 , 51 , 73 Plaintiff's Motions for Preliminary Injunction filed bySan Francisco Chamber of Commerce, National Roofing Contractors Association, Golden Gate Restaurant Association, Chamber of Commerce of the United States of America, American Nursery &Landscape Association, International Franchise Association, United Fresh Produce Association. (Goines, William) (Filed on 9/25/2007) Modified on 9/27/2007 (mcl, COURT STAFF). (Entered: 09/25/2007)
111 Reply to Opposition re 73 Amended MOTION for Preliminary Injunction filed byUnited Food and Commercial Workers Local 5, UNITE HERE, Unite Here Local 2, United Food and Commercial Workers International Union. (Attachments: # 1 Declaration# 2 Proof of Service)(Monrad, Philip) (Filed on 9/25/2007) (Entered: 09/25/2007)
112 ORDER by Judge Charles R. Breyer granting 75 Motion for Pro Hac Vice of Robin S. Conrad. (rbe, COURT STAFF) (Filed on 9/25/2007) (Entered: 09/25/2007)
113 ORDER by Judge Charles R. Breyer granting 69 Motion for Pro Hac Vice of Shane Brennan. (rbe, COURT STAFF) (Filed on 9/25/2007) (Entered: 09/25/2007)
114 ORDER by Judge Charles R. Breyer granting 68 Motion for Pro Hac Vice of Laura Klaus. (rbe, COURT STAFF) (Filed on 9/25/2007) (Entered: 09/25/2007)
115 ORDER by Judge Charles R. Breyer granting 67 Motion for Pro Hac Vice of Laura Foote Reiff. (rbe, COURT STAFF) (Filed on 9/25/2007) (Entered: 09/25/2007)
116 Reply Memorandum re 51 MOTION for Preliminary Injunction Notice of Motion and Motion for a Preliminary Injunction; Memorandum of Points and Authorities;

Case: 3:07-cv-4472 As of: 02/14/2013 06:26 AM PST 26 of 33

09/25/2007 09/25/2007
09/25/2007 09/25/2007
09/26/2007 09/27/2007 09/27/2007 09/28/2007 09/28/2007
09/28/2007 09/28/2007

Appendices A−C filed bySan Francisco Labor Council, San Francisco Building and Construction Trades Council, Central Labor Council of Alameda County, American Federation of Labor and Congress of Industrial Organizations. (Kronland, Scott) (Filed on 9/25/2007) (Entered: 09/25/2007)
117 MOTION for Leave to File Excess Pages re Reply in Support of Preliminary Injunction filed by San Francisco Labor Council, San Francisco Building and Construction Trades Council, Central Labor Council of Alameda County, American Federation of Labor and Congress of Industrial Organizations. (Kronland, Scott) (Filed on 9/25/2007) (Entered: 09/25/2007)
118 Declaration of Scott A. Kronland in Support of 117 MOTION for Leave to File Excess Pages re Reply in Support of Preliminary Injunction filed bySan Francisco Labor Council, San Francisco Building and Construction Trades Council, Central Labor Council of Alameda County, American Federation of Labor and Congress of Industrial Organizations. (Related document(s) 117 ) (Kronland, Scott) (Filed on 9/25/2007) (Entered: 09/25/2007)
119 Proposed Order re 117 MOTION for Leave to File Excess Pages re Reply in Support of Preliminary Injunction by San Francisco Labor Council, San Francisco Building and Construction Trades Council, Central Labor Council of Alameda County, American Federation of Labor and Congress of Industrial Organizations. (Kronland, Scott) (Filed on 9/25/2007) (Entered: 09/25/2007)
120 Request for Judicial Notice re 116 Reply Memorandum, filed bySan Francisco Labor Council, San Francisco Building and Construction Trades Council, Central Labor Council of Alameda County, American Federation of Labor and Congress of Industrial Organizations. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C# 4 Exhibit D)(Related document(s) 116 ) (Kronland, Scott) (Filed on 9/25/2007) (Entered: 09/25/2007)
121 Amended Intervenor COMPLAINT. Filed byUnited Food and Commercial Workers Local 5, UNITE HERE, Unite Here Local 2, United Food and Commercial Workers International Union. (Hunter, Jennifer) (Filed on 9/26/2007) (Entered: 09/26/2007)
122 Declaration of Michael Casey in Support of 111 Reply to Opposition, Declaration of Michael Casey in Support of Plaintiffs' Motion for Preliminary Injunction filed byUnited Food and Commercial Workers International Union. (Related document(s) 111 ) (Monrad, Philip) (Filed on 9/27/2007) (Entered: 09/27/2007)
123 NOTICE of Appearance of Thomas H. Dupree, Jr. by Federal defendants.(Bensing, Daniel) (Filed on 9/27/2007) Modified on 9/28/2007 (mcl, COURT STAFF). (Entered: 09/27/2007)
124 MOTION for Leave to File Notice of Supplemental Authority filed by Michael Chertoff, Department of Homeland Security, Julie Myers, U.S. Immigration and Customs Enforcement, Michael Astrue, Social Security Administration. (Attachments: # 1)(Bensing, Daniel) (Filed on 9/28/2007) (Entered: 09/28/2007)
125 Memorandum in Opposition re 124 MOTION for Leave to File Notice of Supplemental Authority Response to Defendants' Notice of Supplemental Authority filed bySan Francisco Labor Council, San Francisco Building and Construction Trades Council, Central Labor Council of Alameda County, American Federation of Labor and Congress of Industrial Organizations. (Kronland, Scott) (Filed on 9/28/2007) (Entered: 09/28/2007)
126 Memorandum in Opposition re 124 MOTION for Leave to File Notice of Supplemental Authority filed byUnited Food and Commercial Workers Local 5, UNITE HERE, Unite Here Local 2, United Food and Commercial Workers International Union. (Monrad, Philip) (Filed on 9/28/2007) (Entered: 09/28/2007)
127 RESPONSE to : Plaintiff−Intervenors' Response to 124 Defendants' Notice of Supplemental Authority by San Francisco Chamber of Commerce, National Roofing Contractors Association, Golden Gate Restaurant Association, Chamber of Commerce of the United States of America, American Nursery &Landscape Association, International Franchise Association, United Fresh Produce

Case: 3:07-cv-4472 As of: 02/14/2013 06:26 AM PST 27 of 33

10/01/2007 10/01/2007 10/01/2007 10/01/2007 10/01/2007
10/02/2007 10/02/2007 10/10/2007 10/12/2007
10/15/2007 10/19/2007
10/29/2007

Association. (Goines, William) (Filed on 9/28/2007) Modified on 10/1/2007 (mcl, COURT STAFF). (Entered: 09/28/2007)
128 NOTICE by Michael Chertoff, Department of Homeland Security, Julie Myers, U.S. Immigration and Customs Enforcement, Michael Astrue, Social Security Administration of Filing of Administrative Record (Attachments: # 1 # 2 # 3 # 4 # 5 # 6 # 7 # 8)(Bensing, Daniel) (Filed on 10/1/2007) (Entered: 10/01/2007)
129 NOTICE by Michael Chertoff, Department of Homeland Security, Julie Myers, U.S. Immigration and Customs Enforcement, Michael Astrue, Social Security Administration of Filing of Administrative Record (Attachments: # 1 # 2 # 3 # 4 # 5 # 6 # 7 # 8 # 9)(Bensing, Daniel) (Filed on 10/1/2007) (Entered: 10/01/2007)
130 ORDER by Judge Charles R. Breyer granting 109 Ex Parte Application (be, COURT STAFF) (Filed on 10/1/2007) (Entered: 10/01/2007)
131 ORDER by Judge Charles R. Breyer granting 117 Motion for Leave to File Excess Pages (be, COURT STAFF) (Filed on 10/1/2007) (Entered: 10/01/2007)
132 Minute Entry: Motion Hearing held on 10/1/2007 before Charles R. Breyer (Date Filed: 10/1/2007) re 71 MOTION for Preliminary Injunction filed by United Food and Commercial Workers Local 5, UNITE HERE, Unite Here Local 2, United Food and Commercial Workers International Union, 51 MOTION for Preliminary Injunction Notice of Motion and Motion for a Preliminary Injunction; Memorandum of Points and Authorities; Appendices A−C filed by Central Labor Council of Alameda County, American Federation of Labor and Congress of Industrial Organizations, San Francisco Labor Council, San Francisco Building and Construction Trades Council, 73 Amended MOTION for Preliminary Injunction filed by United Food and Commercial Workers Local 5, UNITE HERE, Unite Here Local 2, United Food and Commercial Workers International Union. (Court Reporter Sahar McVickar.) (be, COURT STAFF) (Date Filed: 10/1/2007) (Entered: 10/02/2007)
133 ORDER by Judge Charles R. Breyer granting 124 Motion for Leave to File (be, COURT STAFF) (Filed on 10/2/2007) (Entered: 10/02/2007)
134 NOTICE OF SUPPLEMENTAL AUTHORITY by U.S. DOJ(be, COURT STAFF) (Filed on 10/2/2007) (Entered: 10/02/2007)
135 ORDER by Judge Breyer granting 46 Motion for Preliminary Injunction; granting 51 Motion for Preliminary Injunction; granting 73 Motion for Preliminary Injunction (crblc2, COURT STAFF) (Filed on 10/10/2007) (Entered: 10/10/2007)
136 NOTICE by San Francisco Labor Council, San Francisco Building and Construction Trades Council, Central Labor Council of Alameda County, American Federation of Labor and Congress of Industrial Organizations re 135 Order on Motion for Preliminary Injunction,, Notice of Submission of Proposed Preliminary Injunction (Attachments: # 1 Exhibit A − Proposed Preliminary Injunction)(Kronland, Scott) (Filed on 10/12/2007) (Entered: 10/12/2007)
137 PRELIMINARY INJUNCTION. Signed by Judge Breyer on 10/15/2007. (crblc2, COURT STAFF) (Filed on 10/15/2007) (Entered: 10/15/2007)
138 AMENDED COMPLAINT (adding additional Plaintiff−Intervenor, California Landscape Contractors Association, Inc.) against Michael Chertoff, Department of Homeland Security, Julie Myers, U.S. Immigration and Customs Enforcement, Michael Astrue, Social Security Administration. Filed byCalifornia Landscape Contractors Association, Inc., San Francisco Chamber of Commerce, National Roofing Contractors Association, Golden Gate Restaurant Association, Chamber of Commerce of the United States of America, American Nursery &Landscape Association, International Franchise Association, United Fresh Produce Association. (Goines, William) (Filed on 10/19/2007) (Entered: 10/19/2007)
139 ANSWER to 54 Amended Complaint by Michael Chertoff, Department of Homeland Security, Julie Myers, U.S. Immigration and Customs Enforcement, Michael Astrue, Social Security Administration. (Bensing, Daniel) (Filed on 10/29/2007) Modified on 11/1/2007 (mcl, COURT STAFF). (Entered: 10/29/2007)

Case: 3:07-cv-4472 As of: 02/14/2013 06:26 AM PST 28 of 33

11/13/2007 11/13/2007 11/23/2007 11/23/2007 11/27/2007
11/28/2007 12/04/2007
12/04/2007 12/04/2007 12/05/2007 12/05/2007 12/14/2007 12/14/2007

140 ANSWER to 138 Amended Complaint byMichael Chertoff, Department of Homeland Security, Julie Myers, U.S. Immigration and Customs Enforcement, Michael Astrue, Social Security Administration. (Bensing, Daniel) (Filed on 11/13/2007) Modified on 11/14/2007 (mcl, COURT STAFF). (Entered: 11/13/2007)
141 ANSWER to 121 Intervenor Complaint by Michael Chertoff, Department of Homeland Security, Julie Myers, U.S. Immigration and Customs Enforcement, Michael Astrue, Social Security Administration. (Bensing, Daniel) (Filed on 11/13/2007) Modified on 11/14/2007 (mcl, COURT STAFF). (Entered: 11/13/2007)
142 MOTION to Stay Proceedings Pending New Rulemaking filed by Michael Chertoff, Department of Homeland Security, Julie Myers, U.S. Immigration and Customs Enforcement, Michael Astrue, Social Security Administration. Motion Hearing set for 12/28/2007 10:00 AM in Courtroom 8, 19th Floor, San Francisco. (Bensing, Daniel) (Filed on 11/23/2007) (Entered: 11/23/2007)
143 Proposed Order re 142 Motion to Stay by Michael Chertoff, Department of Homeland Security, Julie Myers, U.S. Immigration and Customs Enforcement, Michael Astrue, Social Security Administration. (Bensing, Daniel) (Filed on 11/23/2007) Modified on 11/27/2007 (mcl, COURT STAFF). (Entered: 11/23/2007)
144 Statement of Non−Opposition re 142 MOTION to Stay Proceedings Pending New Rulemaking Jointly filed by Plaintiffs, Plaintiff−Intervenors UCFW, et al., and filed bySan Francisco Chamber of Commerce, National Roofing Contractors Association, Golden Gate Restaurant Association, Chamber of Commerce of the United States of America, American Nursery &Landscape Association, International Franchise Association, United Fresh Produce Association, California Landscape Contractors Association, Inc.. (Related document(s) 142 ) (Goines, William) (Filed on 11/27/2007) (Entered: 11/27/2007)
145 SCHEDULING ORDER:. Signed by Judge Breyer on 11/28/2007. (crblc2, COURT STAFF) (Filed on 11/28/2007) (Entered: 11/28/2007)
146 NOTICE of Filing of Amended Index to Administrative Record 128 , 129 by Michael Chertoff, Department of Homeland Security, Julie Myers, U.S. Immigration and Customs Enforcement, Michael Astrue, Social Security Administration. (Attachments: # 1 Errata Index to Administrative Record)(Bensing, Daniel) (Filed on 12/4/2007) Modified on 12/5/2007 (mcl, COURT STAFF). (Entered: 12/04/2007)
147 NOTICE OF APPEAL re 135 Order, 137 Preliminary Injunction by Michael Chertoff, Department of Homeland Security, Julie Myers, U.S. Immigration and Customs Enforcement, Michael Astrue, Social Security Administration (Bensing, Daniel) (Filed on 12/4/2007) Modified on 12/5/2007 (mcl, COURT STAFF). (Entered: 12/04/2007)
148 Letter from Thomas H. Dupree, Jr.. (Bensing, Daniel) (Filed on 12/4/2007) (Entered: 12/04/2007)
Transmission of Notice of Appeal and Docket Sheet to US Court of Appeals re 147 appeal. (mcl, COURT STAFF) (Entered: 12/05/2007)
Copy of Notice of Appeal and Docket sheet mailed to all counsel re 147 appeal. (mcl, COURT STAFF) (Entered: 12/05/2007)
149 Minute Entry: Motion Hearing held on 12/14/2007 before Charles R. Breyer. D's Motion to Stay Proceeding Pending New Rule Making GRANTED. Status Conference set for 3/28/2008 08:30 AM in Courtroom 8, 19th Floor, San Francisco. (Court Reporter Joan Columbini.) (fj, COURT STAFF) (Date Filed: 12/14/2007) (Entered: 12/14/2007)
USCA Case Number 07−17241 re 147 appeal. (mcl, COURT STAFF) ) (Entered: 12/17/2007)

Case: 3:07-cv-4472 As of: 02/14/2013 06:26 AM PST 29 of 33

02/05/2008 03/21/2008 03/25/2008 03/26/2008 03/26/2008 06/12/2008 06/13/2008 06/13/2008 07/23/2008 07/31/2008 07/31/2008 09/10/2008
09/11/2008 09/11/2008 10/23/2008
10/24/2008
10/24/2008 10/24/2008

150 NOTICE of Change In Counsel by Scott Alan Kronland (Kronland, Scott) (Filed on 2/5/2008) (Entered: 02/05/2008)
151 NOTICE of Appearance by Eric Joseph Beane (Beane, Eric) (Filed on 3/21/2008) (Entered: 03/21/2008)
152 MOTION to Vacate UNOPPOSED MOTION TO VACATE STATUS CONFERENCE filed by Michael Chertoff. (Attachments: # 1 Exhibit 1, # 2 Proposed Order)(Beane, Eric) (Filed on 3/25/2008) (Entered: 03/25/2008)
153 ORDER by Judge Charles R. Breyer granting 152 Motion to Vacate (be, COURT STAFF) (Filed on 3/26/2008) (Entered: 03/26/2008)
Set/Reset Hearings: Status Conference set for 6/20/2008 08:30 AM in Courtroom 8, 19th Floor, San Francisco. (be, COURT STAFF) (Filed on 3/26/2008) (Entered: 03/26/2008)
154 Consent MOTION to Vacate Status Conference filed by Michael Chertoff. (Attachments: # 1 Proposed Order)(Beane, Eric) (Filed on 6/12/2008) (Entered: 06/12/2008)
155 ORDER by Judge Breyer granting 154 Motion to Vacate (crblc2, COURT STAFF) (Filed on 6/13/2008) (Entered: 06/13/2008)
Set/Reset Hearings: Status Conference reset for 8/1/2008 08:30 AM in Courtroom 8, 19th Floor, San Francisco. (be, COURT STAFF) (Filed on 6/13/2008) (Entered: 06/16/2008)
156 Consent MOTION to Vacate Motion to Vacate Status Conference filed by Michael Chertoff. (Attachments: # 1 Proposed Order)(Beane, Eric) (Filed on 7/23/2008) (Entered: 07/23/2008)
157 ORDER by Judge Charles R. Breyer granting 156 Motion to Vacate Status Conference (be, COURT STAFF) (Filed on 7/31/2008) (Entered: 07/31/2008)
Set/Reset Hearings: Status Conference set for 9/12/2008 08:30 AM in Courtroom 8, 19th Floor, San Francisco. (be, COURT STAFF) (Filed on 7/31/2008) (Entered: 07/31/2008)
158 MOTION to Vacate Status Conference filed by Michael Chertoff, Department of Homeland Security, Julie Myers, U.S. Immigration and Customs Enforcement, Michael Astrue, Social Security Administration. (Attachments: # 1 Proposed Order)(Beane, Eric) (Filed on 9/10/2008) (Entered: 09/10/2008)
159 ORDER by Judge Charles R. Breyer granting 158 Motion to Vacate status conference (be, COURT STAFF) (Filed on 9/11/2008) (Entered: 09/11/2008)
Set/Reset Hearings: Status Conference set for 10/31/2008 08:30 AM in Courtroom 8, 19th Floor, San Francisco. (be, COURT STAFF) (Filed on 9/11/2008) (Entered: 09/11/2008)
160 MOTION to Vacate Status Conference filed by Michael Chertoff, Department of Homeland Security, Julie Myers, U.S. Immigration and Customs Enforcement, Michael Astrue, Social Security Administration. (Attachments: # 1 Proposed Order Vacate Status Conference)(Bensing, Daniel) (Filed on 10/23/2008) (Entered: 10/23/2008)
161 Reply Memorandum re 160 MOTION to Vacate Status Conference filed bySan Francisco Labor Council, San Francisco Building and Construction Trades Council, Central Labor Council of Alameda County, American Federation of Labor and Congress of Industrial Organizations. (Leonard, Danielle) (Filed on 10/24/2008) (Entered: 10/24/2008)
162 ORDER by Judge Charles R. Breyer granting 160 Motion to Vacate (be, COURT STAFF) (Filed on 10/24/2008) (Entered: 10/24/2008)
Set/Reset Hearings: Further Case Management Conference set for 11/21/2008 08:30 AM. (be, COURT STAFF) (Filed on 10/24/2008) (Entered: 10/24/2008)

Case: 3:07-cv-4472 As of: 02/14/2013 06:26 AM PST 30 of 33

10/24/2008 11/06/2008 11/06/2008 11/10/2008 11/10/2008
11/10/2008 11/10/2008 11/10/2008 11/10/2008 11/11/2008
11/11/2008

163 NOTICE of Appearance by Nora Adriana Preciado (Preciado, Nora) (Filed on 10/24/2008) (Entered: 10/24/2008)
164 MOTION to Vacate Preliminary Injunction filed by Michael Chertoff, Department of Homeland Security, Julie Myers, U.S. Immigration and Customs Enforcement, Michael Astrue, Social Security Administration. Motion Hearing set for 12/12/2008 08:30 AM in Courtroom 8, 19th Floor, San Francisco. (Attachments: # 1 Legal Memorandum, # 2 Exhibit Rule, # 3 Exhibit Letter, # 4 Proposed Order)(Bensing, Daniel) (Filed on 11/6/2008) (Entered: 11/06/2008)
165 MOTION for Summary Judgment filed by Michael Chertoff, Department of Homeland Security, Julie Myers, U.S. Immigration and Customs Enforcement, Michael Astrue, Social Security Administration. Motion Hearing set for 12/12/2008 08:30 AM in Courtroom 8, 19th Floor, San Francisco. (Attachments: # 1 Brief, # 2 Exhibit Rule, # 3 Exhibit Letter, # 4 Proposed Order)(Bensing, Daniel) (Filed on 11/6/2008) (Entered: 11/06/2008)
166 ORDER re: scheduling (crblc2, COURT STAFF) (Filed on 11/10/2008) (Entered: 11/10/2008)
167 NOTICE of Supplemental Administrative Record (Parts 1A, 1B, 1C, 1D, 1E, 1F, 1G) by Michael Chertoff, Department of Homeland Security, Julie Myers, U.S. Immigration and Customs Enforcement, Michael Astrue, Social Security Administration (Attachments: # 1 Exhibit Index, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit, # 8 Exhibit)(Bensing, Daniel) (Filed on 11/10/2008) Modified on 11/12/2008 (mcl, COURT STAFF). (Entered: 11/10/2008)
168 NOTICE of Supplemental Administrative Record (Parts 2 through 5) by Michael Chertoff, Department of Homeland Security, Julie Myers, U.S. Immigration and Customs Enforcement, Michael Astrue, Social Security Administration (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit)(Bensing, Daniel) (Filed on 11/10/2008) Modified on 11/12/2008 (mcl, COURT STAFF). (Entered: 11/10/2008)
169 NOTICE of Supplemental Administrative Record (Parts 6 through 10) by Michael Chertoff, Department of Homeland Security, Julie Myers, U.S. Immigration and Customs Enforcement, Michael Astrue, Social Security Administration (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit)(Bensing, Daniel) (Filed on 11/10/2008) Modified on 11/12/2008 (mcl, COURT STAFF). (Entered: 11/10/2008)
170 NOTICE of Supplemental Administrative Record (Parts 11 through 15) by Michael Chertoff, Department of Homeland Security, Julie Myers, U.S. Immigration and Customs Enforcement, Michael Astrue, Social Security Administration (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit)(Bensing, Daniel) (Filed on 11/10/2008) Modified on 11/12/2008 (mcl, COURT STAFF). (Entered: 11/10/2008)
171 NOTICE of Supplemental Administrative Record (Parts 16 through 20) by Michael Chertoff, Department of Homeland Security, Julie Myers, U.S. Immigration and Customs Enforcement, Michael Astrue, Social Security Administration (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit)(Bensing, Daniel) (Filed on 11/10/2008) Modified on 11/12/2008 (mcl, COURT STAFF). (Entered: 11/10/2008)
172 Ex Parte Application re 165 MOTION for Summary Judgment, 164 MOTION to Vacate Preliminary Injunction Plaintiffs' and Plaintiff−Intervenors' Joint Ex Parte Motion to Take Defendants' Motions Off Calendar Pending Status Conference filed by San Francisco Labor Council, San Francisco Building and Construction Trades Council, Central Labor Council of Alameda County, American Federation of Labor and Congress of Industrial Organizations. (Kronland, Scott) (Filed on 11/11/2008) (Entered: 11/11/2008)
173 Proposed Order re 172 Ex Parte Application re 165 MOTION for Summary Judgment, 164 MOTION to Vacate Preliminary Injunction Plaintiffs' and Plaintiff−Intervenors' Joint Ex Parte Motion to Take Defendants' Motions Off Calendar Pending Status Conf by San Francisco Labor Council, San Francisco

Case: 3:07-cv-4472 As of: 02/14/2013 06:26 AM PST 31 of 33

11/12/2008 11/14/2008 11/14/2008 12/01/2008 12/05/2008 01/09/2009 01/09/2009
01/09/2009
01/09/2009 01/09/2009

Building and Construction Trades Council, Central Labor Council of Alameda County, American Federation of Labor and Congress of Industrial Organizations. (Kronland, Scott) (Filed on 11/11/2008) Modified on 11/12/2008 (mcl, COURT STAFF). (Entered: 11/11/2008)
174 ORDER by Judge Breyer granting 172 Ex Parte Application (crblc2, COURT STAFF) (Filed on 11/12/2008) (Entered: 11/12/2008)
175 USCA ORDER re 147 Notice of Appeal filed by U.S. Immigration and Customs Enforcement, Michael Chertoff, Department of Homeland Security, Julie Myers, Social Security Administration, Michael Astrue. Appellants' motion to dismiss this appeal is granted. (mcl, COURT STAFF) (Filed on 11/14/2008) (Entered: 11/14/2008)
176 CLERKS Letter Spreading Mandate to Counsel re 175 . (mcl, COURT STAFF) (Filed on 11/14/2008) (Entered: 11/14/2008)
177 STATUS REPORT Joint Status Conference Statement [by all parties] by San Francisco Labor Council, San Francisco Building and Construction Trades Council, Central Labor Council of Alameda County, American Federation of Labor and Congress of Industrial Organizations. (Kronland, Scott) (Filed on 12/1/2008) (Entered: 12/01/2008)
178 Minute Entry: Status Conference (Date Filed: 12/5/2008). Motions due by 1/9/2009. Responses due by 2/9/2009. Replies due by 2/24/2009. (Court Reporter − Not Reported.) (be, COURT STAFF) (Date Filed: 12/5/2008) (Entered: 12/05/2008)
179 MOTION for Summary Judgment filed by San Francisco Chamber of Commerce, National Roofing Contractors Association, Golden Gate Restaurant Association, Chamber of Commerce of the United States of America, American Nursery &Landscape Association, International Franchise Association, United Fresh Produce Association, California Landscape Contractors Association, Inc.. (Klaus, Laura) (Filed on 1/9/2009) (Entered: 01/09/2009)
180 MEMORANDUM in Opposition to 165 Motion for Summary Judgment and 164 Motion to Vacate Preliminary Injunction and in Support of 179 Plaintiffs' Motion for Summary Judgment filed bySan Francisco Chamber of Commerce, National Roofing Contractors Association, Golden Gate Restaurant Association, Chamber of Commerce of the United States of America, American Nursery &Landscape Association, International Franchise Association, United Fresh Produce Association, California Landscape Contractors Association, Inc.. (Related document(s) 179 ) (Klaus, Laura) (Filed on 1/9/2009) Modified on 1/12/2009 (mcl, COURT STAFF). (Entered: 01/09/2009)
181 (Proposed Order) re 164 , 165 , 179 filed by San Francisco Chamber of Commerce, National Roofing Contractors Association, Golden Gate Restaurant Association, Chamber of Commerce of the United States of America, American Nursery &Landscape Association, International Franchise Association, United Fresh Produce Association, California Landscape Contractors Association, Inc. (Klaus, Laura) (Filed on 1/9/2009) Modified on 1/12/2009 (mcl, COURT STAFF). (Entered: 01/09/2009)
182 MOTION for Summary Judgment filed by San Francisco Labor Council, San Francisco Building and Construction Trades Council, Central Labor Council of Alameda County, United Food and Commercial Workers Local 5, UNITE HERE, Unite Here Local 2, United Food and Commercial Workers International Union, American Federation of Labor and Congress of Industrial Organizations, Change to Win. (Kronland, Scott) (Filed on 1/9/2009) (Entered: 01/09/2009)
183 Brief re 165 MOTION for Summary Judgment, 182 MOTION for Summary Judgment Consolidated Memorandum of Points and Authorities in Support of Plaintiffs' and Plaintiff−Intervenors' Motion for Summary Judgment and Opposition to Defendants' Motions for Summary Judgment and To Vacate Preliminary Injunction filed bySan Francisco Labor Council, San Francisco Building and Construction Trades Council, Central Labor Council of Alameda County, United Food and Commercial Workers Local 5, UNITE HERE, Unite

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01/09/2009
01/09/2009
01/12/2009 01/15/2009 01/29/2009 01/29/2009 02/03/2009 04/07/2009 04/07/2009 04/09/2009 06/10/2009 06/10/2009

Here Local 2, United Food and Commercial Workers International Union, American Federation of Labor and Congress of Industrial Organizations, Change to Win. (Related document(s) 165 , 182 ) (Kronland, Scott) (Filed on 1/9/2009) (Entered: 01/09/2009)
184 MOTION for Leave to File Excess Pages Plaintiffs and Plaintiff−Intervenors Unopposed Motion to Enlarge Page Limits for Memoranda Re: Motions for Summary Judgment filed by San Francisco Labor Council, San Francisco Building and Construction Trades Council, Central Labor Council of Alameda County, United Food and Commercial Workers Local 5, UNITE HERE, Unite Here Local 2, United Food and Commercial Workers International Union, American Federation of Labor and Congress of Industrial Organizations, Change to Win. (Kronland, Scott) (Filed on 1/9/2009) (Entered: 01/09/2009)
185 Proposed Order re 184 MOTION for Leave to File Excess Pages Plaintiffs and Plaintiff−Intervenors Unopposed Motion to Enlarge Page Limits for Memoranda Re: Motions for Summary Judgment by San Francisco Labor Council, San Francisco Building and Construction Trades Council, Central Labor Council of Alameda County, United Food and Commercial Workers Local 5, UNITE HERE, Unite Here Local 2, United Food and Commercial Workers International Union, American Federation of Labor and Congress of Industrial Organizations, Change to Win. (Kronland, Scott) (Filed on 1/9/2009) (Entered: 01/09/2009)
186 ORDER by Judge Charles R. Breyer granting 184 Motion for Leave to File Excess Pages (be, COURT STAFF) (Filed on 1/12/2009) (Entered: 01/12/2009)
187 NOTICE of Change In Counsel by Daniel Bensing (Bensing, Daniel) (Filed on 1/15/2009) (Entered: 01/15/2009)
188 Consent MOTION for Extension of Time to File Response/Reply filed by Michael Chertoff, Department of Homeland Security, Julie Myers, U.S. Immigration and Customs Enforcement, Michael Astrue, Social Security Administration. (Bensing, Daniel) (Filed on 1/29/2009) (Entered: 01/29/2009)
189 Proposed Order re 188 Consent MOTION for Extension of Time to File Response/Reply by Michael Chertoff, Department of Homeland Security, Julie Myers, U.S. Immigration and Customs Enforcement, Michael Astrue, Social Security Administration. (Bensing, Daniel) (Filed on 1/29/2009) (Entered: 01/29/2009)
190 ORDER by Judge Charles R. Breyer granting 188 Motion for Extension of Time to File Response/Reply re 165 MOTION for Summary Judgment, 179 MOTION for Summary Judgment Replies due by 4/10/2009. Responses due by 4/10/2009. (be, COURT STAFF) (Filed on 2/3/2009) (Entered: 02/03/2009)
191 Consent MOTION for Extension of Time to File Response/Reply filed by Michael Chertoff, Department of Homeland Security, Julie Myers, U.S. Immigration and Customs Enforcement, Michael Astrue, Social Security Administration. (Bensing, Daniel) (Filed on 4/7/2009) (Entered: 04/07/2009)
192 Proposed Order re 191 by Michael Chertoff, Department of Homeland Security, Julie Myers, U.S. Immigration and Customs Enforcement, Michael Astrue, Social Security Administration. (Bensing, Daniel) (Filed on 4/7/2009) Modified on 4/8/2009 (mcl, COURT STAFF). (Entered: 04/07/2009)
193 ORDER by Judge Charles R. Breyer granting 191 Motion for Extension of Time to File Response/Reply re 165 MOTION for Summary Judgment, 182 MOTION for Summary Judgment, 179 MOTION for Summary Judgment, 164 MOTION to Vacate Preliminary Injunction Responses due by 4/10/2009. Replies due by 4/10/2009. (be, COURT STAFF) (Filed on 4/9/2009) (Entered: 04/09/2009)
194 Consent MOTION for Extension of Time to File Response/Reply filed by Michael Astrue, Michael Chertoff, Department of Homeland Security, Julie Myers, Social Security Administration, U.S. Immigration and Customs Enforcement. (Bensing, Daniel) (Filed on 6/10/2009) (Entered: 06/10/2009)
195 Proposed Order on Consent Motion by Michael Astrue, Michael Chertoff, Department of Homeland Security, Julie Myers, Social Security Administration,

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06/15/2009 07/08/2009 07/09/2009 07/10/2009 07/17/2009 07/17/2009 08/13/2009 08/24/2009 08/31/2009 11/17/2009 11/18/2009

U.S. Immigration and Customs Enforcement. (Bensing, Daniel) (Filed on 6/10/2009) (Entered: 06/10/2009)
196 ORDER by Judge Charles R. Breyer granting 194 Motion for Extension of Time to File Response/Reply re Replies due by 7/10/2009: 164 MOTION to Vacate Preliminary Injunction 165 MOTION for Summary Judgment, Responses due by 7/10/2009[ 182] MOTION for Summary Judgment, 179 MOTION for Summary Judgment. (be, COURT STAFF) (Filed on 6/15/2009) (Entered: 06/15/2009)
197 NOTICE by American Federation of Labor and Congress of Industrial Organizations, Central Labor Council of Alameda County of Withdrawal of Counsel Monica Ramirez (Attachments: # 1 Proposed Order re: Notice of Withdrawal of Counsel)(Ramirez, Monica) (Filed on 7/8/2009) (Entered: 07/08/2009)
198 STIPULATION to Withdraw Pending Motions by Michael Astrue, Michael Chertoff, Department of Homeland Security, Julie Myers, Social Security Administration, U.S. Immigration and Customs Enforcement. (Attachments: # 1 Exhibit)(Bensing, Daniel) (Filed on 7/9/2009) (Entered: 07/09/2009)
199 ORDER re 197 Notice (Other), Notice (Other) filed by Central Labor Council of Alameda County, Attorney Monica Marie Ramirez terminated.. Signed by Judge Charles R. Breyer on 7/9/09. (be, COURT STAFF) (Filed on 7/10/2009) (Entered: 07/10/2009)
200 Consent MOTION to Stay filed by Michael Astrue, Michael Chertoff, Department of Homeland Security, Julie Myers, Social Security Administration, U.S. Immigration and Customs Enforcement. Motion Hearing set for 8/28/2009 08:30 AM in Courtroom 8, 19th Floor, San Francisco. (Bensing, Daniel) (Filed on 7/17/2009) (Entered: 07/17/2009)
201 Proposed Order re 200 Motion to Stay by Michael Astrue, Michael Chertoff, Department of Homeland Security, Julie Myers, Social Security Administration, U.S. Immigration and Customs Enforcement. (Bensing, Daniel) (Filed on 7/17/2009) Modified on 7/20/2009 (mcl, COURT STAFF). (Entered: 07/17/2009)
202 NOTICE by Unite Here Local 2 Notice of Withdrawal of Counsel (Attachments: # 1 Proposed Order)(Dayan, Leon) (Filed on 8/13/2009) (Entered: 08/13/2009)
203 ORDER by Judge Charles R. Breyer granting 200 Motion to Stay until 2/01/2010, defendant shall file a Repor to the Court on or before 12/24/09 describing progress on rulemaking proceedings to rescind the Safe Harbor Rule. (be, COURT STAFF) (Filed on 8/24/2009) (Entered: 08/24/2009)
204 ORDER of withdrawal of counsel re 202 Notice (Other) filed by Unite Here Local 2, Attorney Robert M. Weinberg; Leon O. Dayan and Jennifer Lynn Hunter terminated.. Signed by Judge Charles R. Breyer on 8/28/09. (be, COURT STAFF) (Filed on 8/31/2009) (Entered: 08/31/2009)
205 STIPULATION And [Proposed] Order Dismissing Action as Moot by American Federation of Labor and Congress of Industrial Organizations, Central Labor Council of Alameda County, San Francisco Building and Construction Trades Council, San Francisco Labor Council. (Kronland, Scott) (Filed on 11/17/2009) (Entered: 11/17/2009)
206 ORDER DISMISSING CASE as moot. Preliminary Injunction issued 10/15/2007 is vacated. Signed by Judge Charles R. Breyer on 11/18/09. (be, COURT STAFF) (Filed on 11/18/2009) (Entered: 11/18/2009)