Case 2:13-cv-00079-WKW-CSC Document 1 Filed 02/07/13 Page 1 of 19

IN THE UNITED STATES DISTRICT CJURT MIDDLE DISTRICT NORTHERN DIVION

JANE DOE #1; JANE DOE 2; JOHN DOE #1; and JOHN DOE #2, on behalf of themselves and all others similarly situated,

Plaintiffs,
V.

RICH HOBSON, in his official capacity as Administrative Director of Courts; and
SPENCER COLLIER, in his official capacity as Director of the Alabama Department of Homeland Security,

Civil No. c2 ' I 3cv iq- PA
COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
CLASS ACTION

Defendants.

NATURE OF THE ACTION 1. In May 2012, the State of Alabama enacted House Bill ("HB") 658. In addition to amending several provisions of the state's immigration law—typically referred to as "HB 56"–HB 658 added several new provisions. One of those new provisions Section 5 of HB 658 (codified as Ala. Code § 31-13-32), requires the Administrative Office of the Courts ("AOC") to compile, and the Alabama Department of Homeland Security ("ADHS") to post on its public website, the names and other identifying information of "unlawfully present alien[s]" who are detained for any violation of state law and who then appear in a state court. 2. Section 5 creates a publicly available registry of individuals whom AOC classifies as "unlawfully present alien[s]," but provides no mechanism for persons so classified and registered to contest this stigmatizing label, even if they are present with the permission of the
1 A copy of the enrolled Bill is attached as Exhibit 1.

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federal government or even if they are U.S. citizens. Section 5 contains no requirements that the state so much as notify individuals that they will be publicly identified as "unlawfully present alien[s]," much less give them an opportunity to avoid (or remove) that label.
3. The permanent, inalterable, and public registry established by Section 5 will amplify the effects of other provisions of HB 56. Being publicly listed as an "unlawfully present alien" triggers a host of consequences such as the denial of bail, denial of employment opportunities, and a significant loss of privacy.
4. Section 5 also undermines the confidentiality of the federal immigration registration system, allowing information that the federal government intends to be disclosed only to authorized law enforcement entities for approved law enforcement purposes to be publicly disseminated for use by non-approved agencies, and private individuals and entities.
5. Section 5 facilitates and exacerbates private discrimination against immigrants and Latinos, which has been a serious problem since HB 56's enactment. Individuals targeting immigrants—especially those perceived to be here without lawful status—for harassment, discrimination, or even violence will be able to refer to a publicly available list of names furnished by the State of Alabama, organized by each of the State's sixty-seven counties and searchable by presiding state court judge.
6. This action challenges Section 5 under the Supremacy Clause and the Due Process Clause of the U.S. Constitution. Section 5 unconstitutionally creates a state immigration classification; intrudes into fields reserved exclusively to the federal government; and deprives individuals of a protected liberty interest without any process for them to contest that deprivation.
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JURISDICTION AND VENUE 7. This Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1331 because this case arises under the U.S. Constitution and laws of the United States; and pursuant to 28 U.S.C. § 1343 because this action seeks to redress the deprivation, under color of state law, of Plaintiffs' civil rights, and to secure equitable or other relief for the violation of those rights. 8. This Court has jurisdiction to grant declaratory relief pursuant to 28 U.S.C. §S 2201 and 2202 and Rule 57 of the Federal Rules of Civil Procedure. 9. Venue is proper in this District and Division pursuant to 28 U.S.C. § 1391(b). Defendants Collier and Hobson, who are sued in their official capacities, reside in this State and are employed as State officials in Montgomery, Alabama, within this District and Division. A substantial part of the events and omissions giving rise to Plaintiffs' claims have occurred and/or will occur in this District and Division.
PARTIES Plaintiffs 10. Plaintiff Jane Doe #1 resides in Montgomery, Alabama with her daughter, Plaintiff Jane Doe #2, and her son-in-law, Plaintiff John Doe #1. Plaintiff Jane Doe #1 is originally from Mexico and came to the United States approximately ten years ago. She was arrested for an alleged violation of a state law prohibiting fishing without a license. She is scheduled to appear in an Alabama state court in mid-February 2013. 11. Plaintiff Jane Doe #2 resides in Montgomery, Alabama with her mother, Plaintiff Jane Doe #1, and her husband, Plaintiff John Doe #1. Plaintiff Jane Doe #1 was born in Mexico and came to the United States with her mother approximately ten years ago, when she was
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fifteen years old. She was arrested for an alleged violation of a state law prohibiting fishing without a license. She is scheduled to appear in an Alabama state court in mid-February 2013.
12. Plaintiff John Doe #1 resides in Montgomery, Alabama with his wife, Plaintiff Jane Doe 42, and his mother-in-law, Plaintiff Jane Doe 41. He came to the United States from Mexico approximately eight years ago. Plaintiff John Doe 41 was arrested for an alleged violation of a state law prohibiting fishing without a license. He is scheduled to appear in an Alabama state court in mid-February 2013.
13. Plaintiff John Doe #2 resides in Montgomery, Alabama. He came to the United States from Mexico approximately six years ago. He resides near Plaintiffs Jane Doe #1, his aunt; Jane Doe #2, his cousin; and John Doe #1. Plaintiff John Doe #2 was arrested for an alleged violation of a state law prohibiting fishing without a license. He is scheduled to appear in an Alabama state court in mid-February 2013.
Defendants 14. Defendant Rich Hobson is Administrative Director of Courts, which is the chief administrative officer of Alabama's Administrative Office of the Courts ("AOC"). The Administrative Director of Courts is responsible for carrying out the duties of the AOC, which includes preparing and submitting "a quarterly report, organized by county, to the Alabama Department of Homeland Security," that lists, inter alia, the names of all "unlawfully present alien[s]" who were "detained by law enforcement and appeared in court for any violation of state law." Ala. Code § 31-13-32(a). He is sued in his official capacity. 15. Defendant Spencer Collier is the Director of the Alabama Department of Homeland Security ("ADHS" or "the Department"). As the head of the ADHS, he is charged with carrying out the duties of the Department, which include "publish[ing] on the ADHS 's]

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public website in a convenient and prominent location, the information provided in the quarterly report from the Administrative Office of the Courts," and ensuring that this information is "searchable by county and presiding judge." Ala. Code § 31-13-32(b). He is sued in his official capacity.
FACTUAL ALLEGATIONS Alabama's Original Immigration Law 16. in June 2011, the State of Alabama enacted the "Beason-Hammon Alabama Taxpayer and Citizen Protection Act" (also known as "HB 56"), the most comprehensive immigration law any state has passed to date. As explained by one of the law's principal sponsors, Representative Mickey Hammon, Alabama's immigration law "attacks every aspect of an illegal immigrant's life" so that "[t]hey will not stay in Alabama." The other principal sponsor, Senator Scott Beason, similarly stated that Alabama's immigration law was designed to drive certain immigrants out of the State. 17. HB 56, as amended by HB 658, imposes various penalties—including the possibility of criminal prosecution—on individuals the State considers "unlawfully present aliens." 18. As discussed below, some aspects of Alabama's immigration law have been preliminarily enjoined, but various other provisions remain in effect, including those that: a. prohibit any "business entity, employer, or public employer" from "knowingly employing], hir[ing] for employment, or continu[ing] to employ an unauthorized alien to perform work within the State of Alabama," Ala. Code § 3 1-13-15(a);
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b. prohibit, with a few exceptions, "[a]n alien who is not lawfully present in the United States" from "receiv[ing] any state or local public benefits," id. § 3113-7(b);
c. disqualify "an alien unlawfully present in the United States" from being released on bail, id. § 31-13-18(b), or from being released from custody upon completing his or her criminal sentence, id. § 31-13-19;
d. require law enforcement officers, whenever they have "reasonable suspicion" that an individual "is an alien who is unlawfully present in the United States," to verify the immigration status of that individual, id. § 31-13-12(a); and
e. make it a felony for "[a]n alien not lawfully present in the United States" to apply for or renew a motor vehicle license plate, driver's license, nondriver identification card, business license, commercial license, or professional license, id. § 31-13-29.
19. Several parts of HB 56, as amended by HB 658, have been preliminarily enjoined, including provisions that:
a. make it a crime for "unauthorized aliens" to solicit or perform work, Ala. Code § 31-13-1 1(a);
b. make it a crime to harbor or transport certain immigrants, id. § 31-13-13; c. make it a crime to fail to carry federal immigration registration documents, id.
§ 31-13-10; d. require public primary and secondary schools to check the immigration status
of enrolling students and their parents, id. § 31-13-27;

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e. prohibit state courts from enforcing certain contracts between "an alien unlawfully present in the United States" and another party, id. § 31-13-26;
f. prohibit individuals from "entering into a rental agreement.. . with an alien to provide accommodations, if the person knows or recklessly disregards the fact that the alien is unlawfully present in the United States," id. § 31-13-33; and
g. create a private right of action for the "discriminatory business practice" of failing to hire a U.S. citizen or immigrant authorized to work in the United States while knowingly hiring or retaining an "unauthorized alien," id. § 3113-17.
20. Section 6 of HB 56, moreover, mandates that "[a]il state officials, agencies, and personnel, including, but not limited to, an officer of a court of this state, . . . fully comply with and . . . support the enforcement of' Alabama's immigration laws. Ala. Code § 31-13-6(b). Violations of Section 6 are punishable by a civil penalty of not less than $1,000 per day, with a maximum fine of S5,000 per day. Id. § 31-13-6(d).
Amending Alabama's Immigration Law: Passage of HB 658 21. Starting in February 2012, the Alabama Legislature considered various proposals to amend HB 56. HB 658 was not passed until May 16, 2012—the last day of the regular legislative session. 22. The legislature did not openly advance any justification for Section 5, nor did it identify any state interest it would serve. Section 5 was added to HB 658 by Senator Beason only hours before the bill was enacted. Section 5 received no legislative debate or discussion; in fact, its existence was not even acknowledged on the floor of either the Senate or the House of Representatives.
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23. Upon information and belief, Section 5 of HB 658 was enacted with the purpose of publicly identifying and shaming individuals designated as "unlawfully present alien[s]."
24. Upon information and belief, prior to HB 658's passage by the Legislature, Governor Bentley expressed his view to at least Senator Beason and Representative Hammon, and possibly other legislators, that Section 5 should not include individuals' names, but the legislators insisted on retaining the posting of names.
25. After HB 658 was passed by the Legislature, but before it was signed into law, Governor Bentley publicly implored the legislators to remove that part of Section 5 that required the posting of individuals' names. In response, Senator Beason and Representative Hammon threatened to amend Section 5 not only to require the posting of names, but individuals' pictures as well. Shortly thereafter, on May 18, 2012, Governor Bentley signed HB 658 into law as Act No. 2012-491.
26. HB 658 took effect immediately upon the Governor's signature. Text of HB 658 § 5, codified at Ala. Code § 31-13-32
27. Section 5 imposes obligations upon the AOC and the ADHS. 28. The AOC is required to develop and submit to the ADHS a quarterly report that "summarize[es] the number of cases in which an unlawfully present alien was detained by law enforcement and appeared in court for any violation of state law." Ala. Code § 31-13-32(a). The report is required to include at least the following information: the name of each "unlawfully present alien"; "[tihe violation or charge alleged to have been committed by the unlawfully present alien"; "[t]he name of the judge presiding over the case"; and "[t]he final disposition of the case, including whether the unlawfully present alien was released from custody, remained in
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detention, or was transferred to the custody of the appropriate federal immigration authorities." Id. § 31-13-32(a)(1)-(4).
29. The ADHS is required "[to] publish on its public website, in a convenient and prominent location, the information provided in the quarterly report from the Administrative Office of Courts." Id. § 31-13-32(b). The ADHS is required to ensure that the information displayed on its public website is "searchable by county and presiding judge." Id.
30. The final subsection of Section 5 states: "For the purposes of this section, the determination of whether a person is an unlawfully present alien shall be verified by the federal government pursuant to 8 U.S.C. § 1373(c)." Id. § 31-13-32(c).
31. The term "unlawfully present alien" is not defined anywhere in Alabama law, nor does the term have any relevant definition in federal law.
32. There is no system under S U.S.C. § 1373(c) that would enable a State to post immigration status information on the internet. To the contrary, the federal government expressly limits how that information shared with state authorities pursuant to 8 U.S.C. § 1373(c) may be disseminated, and does not authorize state or local jurisdictions receiving information from the federal government pursuant to that section to post that information online. Moreover, infonTlation collected by the federal government related to the status of aliens in the United States, regardless of immigration status, is generally considered confidential. See, e.g., 8 U.S .C. § 1304(b).
33. No federal mechanism created pursuant to 8 U.S.C. § 1373(c) will respond that a particular individual is an "unlawfully present alien," as there is no such federal classification. Nor could any such federal mechanism confirm or verify a State's decision to classify an individual as an "unlawfully present alien" under state law.

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34. Information about an individual provided by any system set up pursuant to 8 U.S.C. § 1373(c) is necessarily a snapshot of that person's status at some point prior to the status check, and does not provide current or reliable immigration status determinations. Such determinations may be incorrect at the time they are made, a possibility that is frequently acknowledged by the federal government in responding to queries under to 8 U.S.C. § 1373(c). And even determinations that are theoretically correct at the time they are made may become out-of-date as the individual's status changes. Yet Section 5 has no mechanism for removing individuals' names or information from the public website, or for any other kind of updating.
35. Under the federal Immigration and Nationality Act, a non-citizen's immigration status may be fluid and subject to change over time.
36. The complexity and fluidity of immigration status is a fundamental feature of federal immigration law. It is a direct consequence of the system of immigration regulation that Congress has prescribed and accommodates many important national interests including, for example, the nation's humanitarian and international law obligations regarding the treatment of people fleeing persecution or torture.
37. in contrast to the federal immigration code, Section 5 presumes that immigration status is definite, permanent, and readily and quickly ascertained. These presumptions are not accurate and conflict with federal law.
38. Because any response issued by the federal government to the State's inquiry will not answer the question posed by the state law classification—whether the individual is an "unlawfully present alien"–Section 5 requires State and/or local officials to make an independent determination of immigration status.
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39. Section 5 does not provide any mechanism by which individuals are notified that they have been identified as "unlawfully present alien[s]," or that they will be listed publicly as such on the ADHS's web site.
40. Section 5 does not provide any mechanism by which individuals can challenge their designation as "unlawfully present alien[s]," either prior to or after being so labeled.
41. Section 5 does not require that those listed as "unlawfully present alien[s]" have been convicted of the crime that they were charged with committing. It also does not require that those listed have been arrested or detained lawfully.
42. The AOC began concerted efforts to collect the information required by Section 5 in September or October of 2012. These efforts included providing a fonn to state law judges in order to report information on "unlawfully present alien[s]" who appeared in their courtrooms. The form does not specify how court personnel are to ascertain individuals' immigration statuses.
43. Upon information and belief the AOC has, in accordance with Section 5's requirements, transmitted at least one report with names and other identifying information of suspected "unlawfully present alien[s]" to the ADHS.
44. Upon information and belief, AOC will continue to transmit reports to ADHS, as required by Section 5.
45. Although the reports required by Section 5 have yet to be posted on the internet, the ADHS website indicates that it anticipates posting such reports in the near future,
INJURIES TO THE NAMED PLAINTIFFS 46, In November 2012, plaintiffs Jane Doe #1, Jane Doe #2, John Doe #1, and John Doe #2 [collectively, "the Named Plaintiffs"] were arrested by law enforcement officials, taken
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into custody, and charged with violating Ala. Code § 9-11-55, which prohibits nonresidents from fishing without a license.
47. Jane Doe 92, John Doe #1, and John Doe #2 were all detained in the county jail for several hours.
48. Jane Doe #1 was detained in the county jail for approximately two days—during which time she was denied bail—because officials from the federal lrnmigration and Customs Enforcement (ICE) wanted to investigate whether she had legal permission to remain in the country.
49. Although the ICE officials determined that Jane Doe #1 did not appear to have legal permission to remain in the country, they chose not to take her into custody or to initiate removal proceedings against her as a matter of prosecutorial discretion.
50. In mid-February 2013, all of the Named Plaintiffs are scheduled to appear in a district court for the State of Alabama located within the Middle District of Alabama on the fishing without a license charges.
51. All of the Named Plaintiffs were born in Mexico. 52. At this time, none of the Named Plaintiffs have documents proving that they currently have permission to reside in the United States. 53. Pursuant to Section 5(c) and AOC policy, a State or local official will or has attempt(ed) to verify the Named Plaintiffs' immigration status through 8 U.S.C. § 1373(c). 54. The state or local official who will or has attempt(ed) to verify the Named Plaintiffs' immigration status through 8 U.S.C. § 1373(c) has or will deem the Named Plaintiffs to fall within the State-created immigration classification of "unlawfully present alien."
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55. Pursuant to Section 5(a) and AOC policy, the Named Plaintiffs will be included in a report of "unlawfully present alien[s]" the AOC will transmit to the ADHS.
56. Pursuant to Section 5(b), the ADHS will post the names and other identifying information of the Named Plaintiffs on its public website.
57. If the Named Plaintiffs are classified and registered the AOC as "unlawfully present alienis]," and/or listed on the ADHS's public website as such, they face a heightened risk, now and into the future, of:
a. losing employment opportunities, as employers will prefer not to employ individuals publicly identified by the State of Alabama as "unlawfully present alien[s]," particularly in light of Sections 9 and 15 of HB 56, Ala. Code § 3 113-9 & 15—even if those individuals have actually obtained federal work authorization;
b. being denied bail and/or release from custody pursuant to Sections 19 and 20 ofHB 56, Ala. Code § 31-13-18 & 19;
c. being denied "state or local public benefits" pursuant to Section 7 of HB 56, Ala. Code § 31-13-7;
d. being arrested and/or prosecuted for a state felony if they apply for or renew a motor vehicle license plate, driver's license, nondriver identification card, business license, commercial license, or professional license, pursuant to Section 30 of HB 56, as amended by HB 658, Ala. Code § 31-13-29;
e. being deprived of a substantial privacy interest in immigration status information;
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f. being subjected to private harassment, discrimination, or even vigilantism by individuals who view the public list;
g. being subject to a host of other civil disabilities and criminal penalties should the preliminary injunction be lifted on any other provision of HB 56;
h. being permanently branded "unlawfully present alien[s]," even if they are able to obtain some immigration status that permits them to remain in the United States in the future. CLASS ALLEGATIONS
58. The Named Plaintiffs are filing this Complaint as a class action pursuant to Federal Rules of Civil Procedure 23(a) and 23(b)(2).
59. The Named Plaintiffs request that this Court certify a class of all similarly situated individuals. The proposed class definition is: All persons who are or will be subject to Section 5 ofHB 658, Ala. Code § 31-13-32.
60. This action is properly maintained as a class action because: (a) Joinder of all members of the class is impracticable because of the size of the proposed class. Alabama is home to approximately 165,000 immigrants— approximately 120,000 of whom currently lack lawful immigration status. It is very likely that many more than 40 such individuals in the State of Alabama have been or will be detained by law enforcement, will appear in court for a violation of state law and will run the risk of being designated as "an unlawfully present alien" under Section 5. (b) The claims alleged on behalf of the proposed class raise questions of law and fact that are common to the class. This is a facial challenge to the validity of
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Section 5. All class members will challenge the same statutory section on the same legal grounds: federal preemption (Supremacy Clause) and Due Process. All class members are subject to the same injuries: the mandatory classification, collection, and publication of their names and other identifying data pursuant to Section 5. (c) The claims of the Named Plaintiffs are typical of the proposed class. All members of the proposed class, including the Named Plaintiffs, will be listed on the ADHS website as "unlawfully present alien[s]." If the named Plaintiffs prevail on their facial challenges to Section 5, that statutory provision will be invalid for all class members and no class member will be subject to the law's data collection and publication requirements. (d) The proposed class representatives and class counsel will fairly and adequately represent the interests of the class. The Named Plaintiffs have no interests that are antagonistic to the interests of other members of the proposed class, and class counsel have substantial experience in civil rights and class action litigation. 61. Class-wide declaratory and injunctive relief is appropriate for the proposed class because Defendants have acted or refuse to act on grounds generally applicable to the class a whole. Defendants have applied and will apply the same law, policy, custom, and/or practice to all class members.
CLAIMS FOR RELIEF FIRST CAUSE OF ACTION U.S. Const. art. VI, el. 2 - Supremacy Clause
Against All Defendants On Behalf of All Plaintiffs and the Proposed Class
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62. Plaintiffs reallege and incorporate by reference the allegations set forth in paragraphs 1 through 61 above.
63. The Supremacy Clause, Article VI, Section 2, of the U.S. Constitution provides: This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution of Laws of any State to the Contrary notwithstanding. 64. The Supremacy Clause mandates that federal law preempts state law in any area over which Congress expressly or irnplicdly has reserved exclusive authority or which is constitutionally reserved to the federal government, or where state law conflicts or interferes with federal law. States are also forbidden from regulating immigration under the Supremacy Clause and other provisions in the Constitution. 65. Section 5 creates a scheme to register and publicize the presence of certain noncitizens in the State of Alabama—those whom the State classifies as 'unlawfully present alien[s]." In so doing, it impermissibly intrudes into the field of alien registration -a field reserved exclusively to the federal government. 66. Section 5 impermissibly regulates immigration by creating an immigration cIassification–"unlawfully present alien"—that does not exist in federal law, and by requiring State and/or local officials to assign individuals to this State-created classification by making immigration status detenninations that they are not trained, equipped, or permitted to make. 67. Section 5 impermissibly conflicts with and interferes with federal immigration law by imposing state law burdens and consequences based upon a state law classification of aliens, where the federal Immigration and Nationality Act is a comprehensive federal system
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through which Congress has delegated the determination of status and the imposition of consequences based upon status exclusively to the Executive Branch of the U.S. government.
68. Section 5 irnperrnissibly conflicts with and interferes with federal immigration law by undermining the federal government's deliberate decision to maintain the confidentiality of certain immigration-related documents and information.
69. Plaintiffs move for relief on this claim directly under the Constitution and also under 42 U.S.C. § 1983.
SECOND CAUSE OF ACTION 42 U.S.C. § 1983 and U.S. Const. amend. XIV, § 1, ci. 3 - Due Process Clause
Against All Defendants On Behalf of All Plaintiffs and the Proposed Class 70. Plaintiffs reallege and incorporate by reference the allegations set forth in paragraphs 1 through 61 above. 71. Defendants' public identification of certain individuals as "unlawfully present alien[s]" pursuant to Section 5 would severely stigmatize those so labeled, and would alter or extinguish various rights and statuses those individuals would otherwise enjoy, including, but not limited to, the right to bail; the right to be released from criminal custody after completing a sentence or paying a fine; the right to have one's work authorization determined after being hired; the right not to lose one's job because of arbitrary state action; the right to privacy; the right to be free from public and private harassment and violence; and the right to apply for government documents and public benefits, when eligible therefor, without denial, arrest or prosecution. 72. Section 5 does not provide notice to individuals that they will be publicly identified by Defendants as 'unlawfully present alien[s]."
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73. Section 5 does not provide any opportunity for individuals to contest their public

designation as "unlawfully present alien[s]" either before or after that designation has occurred.

74. Section 5 deprives individuals who would be listed by Defendants as "unlawfully

present alien[s]" of a liberty and/or property interest without due process of law.

75. Defendants cannot, consistent with state and federal law, provide due process to

those it wishes to publicly designate as "unlawfully present alien[s]."

76. Defendants' enforcement of Section 5 pursuant to their official capacities as state

actors under color of law and is therefore actionable under the Fourteenth Amendment through

42 U.S.C. § 1983.

PRAYER FOR RELIEF

WHEREFORE, Plaintiffs respectfully pray that the Court grant the following relief:

(1) Certify the class as defined in the "Class Allegations" section of this Complaint;

(2) Enter a declaratory judgment finding that Defendants' enforcement of HB 658 § S violates the Supremacy Clause of Article VT of the U.S. Constitution and the Due Process Clause

of Amendment X1V of the U.S. Constitution;.

(3) Enter appropriate injunctions enjoining Defendants from enforcing HB 658 § 5; (4) Award Plaintiffs their reasonable attorneys' fees and costs pursuant to 42 U.S.C.

§ 1988; and (5) Order such other relief as this Court deems just and equitable.

Dated: February 7, 2013

Respectfully submitted,
— Q- ^
Samuel Brooke On Be/ia if of Counsel for Plaintiffs

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Samuel Brooke (ASB-1 172-1,6013) SOUTHERN POVERTY LAW CENTER 4100 Washington Ave. Montgomery, AL 36104 (334) 956-8200 samuel.brooke@splcenter.org
Kristi L. Graunke SOUTHERN POVERTY LAW CENTER 233 Peachtree St. NE, Suite 2150 Atlanta, GA 30303 (404) 521-6700 kristi.graunkesplcenter.org
Cecillia D. Wang AMERICAN CIVIL LIBERTIES UNION FOUNDATION 39 Drumm Street San Francisco, CA 94111 (415) 343-0775 cwangacIu. org
Omar C. Jadwat AMERICAN CIVIL LIBERTIES UNION FOUNDATION 125 Broad Street, 18th Floor New York, New York 10004 (212) 549-2660 ojadwat@aclu.org

Justin B. Cox AMERICAN CIVIL LIBERTIES UNION FOUNDATION 230 Peachtree Street, NW, Suite 1440 Atlanta, GA 30303-2721 (404) 523-2721 jcoxaclu.org
Linton Joaquin Karen C. Tum1in Nora Preciado NATIONAL IMMIGRATION LAW CENTER 3435 Wilshire Blvd., Suite 2850 Los Angeles, CA 90010 (213) 674-2909 joaquinnilc.org tum1inni1c.org preciadonilc.org
Freddy Rubio (ASB-5403-D62R) Cooperating Attorney, ACLU OF ALABAMA FOUNDATION Rubio Law Firm, P.C. 438 Carr Avenue, Suite 1 Birmingham, AL 35209 (205) 443-7858 frubio@rubiofirm.com
+ Pro hoc vice admission to be sought.
Counsellor Plaintiffs

 
 Case 2:13-cv-00079-WKW-CSC Document 38 Filed 07/31/13 Page 1 of 7

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION

JANE DOE #1, et al., Plaintiffs,
v. RICH HOBSON, et al.,
Defendants.

)

)

)

)

) CASE NO. 2:13-CV-79-WKW

)

[WO]

)

)

)

MEMORANDUM OPINION AND ORDER

Last November, Plaintiffs Jane Doe #1, Jane Doe #2, John Doe #1, and John

Doe #2 were arrested for fishing without a license. Now the Does worry they might

be subject to an Alabama law that requires the state to maintain an online list of

unlawfully present aliens who appear in state court. The Does filed this lawsuit to

challenge that law, which Defendants Rich Hobson, Alabama’s Administrative

Director of the Courts (the “AOC”), and Spencer Collier, Director of the Alabama

Department of Homeland Security (“Homeland Security”), are in charge of

implementing.

The matter comes before the court on Defendants’ motion to dismiss (Doc. #

20). For the reasons that follow, that motion is due to be granted.

Case 2:13-cv-00079-WKW-CSC Document 38 Filed 07/31/13 Page 2 of 7
I. JURISDICTION AND VENUE Subject matter jurisdiction is exercised pursuant to 28 U.S.C. §§ 1331, 1343, and 2201–02. Personal jurisdiction and venue are uncontested.
II. STANDARD OF REVIEW A motion to dismiss under Rule 12(b)(1) may assert either a factual attack or a facial attack to jurisdiction. McElmurray v. Consol. Gov’t of Augusta-Richmond Cnty., 501 F.3d 1244, 1251 (11th Cir. 2007); Fed. R. Civ. P. 12(b)(1). In a facial attack, the court examines whether the complaint “sufficiently allege[s] a basis of subject matter jurisdiction.” Id. As when considering a Rule 12(b)(6) motion to dismiss for failure to state a claim, on a Rule 12(b)(1) facial attack, the court construes the complaint in the light most favorable to the plaintiff and accepts all well-pleaded facts in the complaint as true. Id.
III. FACTUAL BACKGROUND Beginning in the early spring and lasting through the summer, the lakes of Alabama teem with anglers and fish playing aquatic games of cat and mouse. But even in the cool months of fall, there are fish to be caught. Presumably, Plaintiff Jane Doe #1 knows this, and that is why she took three members of her family (Jane Doe # 2, John Doe #1, and John Doe #2) out fishing one day last November.
2

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But it turns out that not one of the Does had a fishing license. They were arrested when a law enforcement official came across them and learned that fact, and they were scheduled to answer charges of unlicensed fishing in mid-February. According to the Does’ briefing, they were convicted in an Alabama district court. This case does not challenge that conviction.
Instead, this case has to do with a potential consequence of the Does’ appearance in the state court. Specifically, the Does worry that the state of Alabama might add their names to a list of unlawfully present aliens and publish that list on a state-run website. Rather than waiting to face those consequences, they filed this lawsuit to challenge the Alabama law that mandates publication of the online list of unlawfully present aliens. The AOC and Homeland Security responded with a motion to dismiss, which is now before the court.
IV. DISCUSSION According to a recent addition to Alabama’s immigration law, the AOC has to keep a list of all “unlawfully present aliens” who are “detained by law enforcement and appear in court for any violation of state law.” Ala. Code § 31-13-32(a). Four times a year, the AOC is supposed to forward that list to Homeland Security, and Homeland Security is supposed to post the list in a “convenient and prominent
3

Case 2:13-cv-00079-WKW-CSC Document 38 Filed 07/31/13 Page 4 of 7
location” on its website. Id.1 The Does say that law the is unconstitutional because it violates the Fourteenth Amendment’s guarantees of procedural due process and the Supremacy Clause’s allocation of state–federal power. Maybe they are right.
This court cannot consider the merits of this case, however, unless the Does establish that they have standing to challenge § 31-13-32. Thus, this case cannot proceed unless the Does face the threat of imminent injury due to that law’s reporting and publication requirements. See Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180–81 (2000) (noting that Article III’s standing requirements include a showing of an “injury in fact” that is “actual or imminent”). And because the law at issue only threatens to report and publish information about “unlawfully present aliens,” that means the Does lack standing to challenge it unless they meet that definition.
But the Does have not alleged that they are “unlawfully present aliens.” Instead, the complaint alleges only that the Does lack “documents proving that they currently have permission to reside in the United States” (Doc. # 1 ¶ 52), and that Jane Doe #1 “did not appear to have legal permission to remain in the country” when
1 The AOC and Homeland Security submit evidence that they have yet to publish such a list and they have no plans of doing so any time soon. The court has not considered that evidence, however, because this opinion treats the pending dispositive motion (Doc. # 20) as one to dismiss, not one for summary judgment.
4

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she was arrested in November 2012 (Doc. # 1 ¶ 49). Nowhere in the complaint do the Does say that any of them has violated an immigration law, or that their presence in this country is unlawful.
That is a problem for the Does because the law they want to challenge does not require the AOC to keep or Homeland Security to publish a list of people who are unable to prove their lawful presence in this country or of those who appear to lack legal permission to be here. Equivocation might have its place, but it is not in a complaint. There, precision matters. To establish standing, the Does must allege that their presence in Alabama violates some law. They have not.
But fuzzy language is not the complaint’s only flaw. Even assuming the court were satisfied that the complaint’s vague allegations adequately allege that the Does were unlawfully present aliens at some point, there is nothing in the complaint that suggests they were unlawfully present at the crucial times, i.e., when they were detained and when they appeared in the state court. Even if the complaint clearly alleged the Does were unlawfully present when they were arrested, they still would not have standing to pursue this case unless they were also unlawfully present when they appeared in state court. See Ala. Code § 31-13-32(a) (applying to “unlawfully present aliens” who were “detained by law enforcement and appear[ed] in court for any violation of state law”).
5

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These days, terms like “illegal alien” and “unlawfully present alien” are falling into disfavor. Perhaps that is why the Does’ attorneys were so careful to avoid using any language that might suggest the Does’ presence in this country is “illegal” or “unlawful.” But for good or ill, Alabama’s legislature chose the term “unlawfully present alien” when it enacted the law the Does want to challenge, so that is the status the Does must fit. Because the Does’ complaint lacks any allegation of fact that their presence in this country was unlawful at any relevant time, they have failed to establish their standing to maintain this lawsuit.
As a final note, it bears mentioning that the Does’ complaint avers that someone who works for the state “has or will deem the [Does] to fall within the Statecreated immigration classification of ‘unlawfully present alien.’” (Doc. # 54.) But that statement is not an allegation of fact that the court must accept as true. A statement of fact is a statement about “a thing done,” Webster’s 3d New International Dictionary 813 (1993),2 not a prediction about a future event. Absent allegations that establish that the Does’ presence in this country is unlawful, the court does not find
2 The court also consulted Black’s Law Dictionary (8th ed. 2004) and the American Heritage Dictionary of the English Language (5th ed. 2011) to confirm its suspicion that predictions do not count as facts. Both of those sources corroborate the definition of that term in Webster’s 3d, which made its way into the body of this opinion only because it was the pithiest of the bunch.
6

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plausible the complaint’s prediction that a state worker will deem the Does to be unlawfully present aliens.
V. CONCLUSION Accordingly, it is ORDERED as follows: (1) The motion to dismiss (Doc. # 20) is GRANTED; and (2) The other pending motions (Docs. # 2, 4, 32) are DENIED as moot. If the Does can amend their complaint to cure the standing problems identified in this opinion, they may do so on or before August 14, 2013, at which time the parties may renew any other motions that remain relevant. Failure to timely file an amended complaint will result in the dismissal of this action. DONE this 31st day of July, 2013.
/s/ W. Keith Watkins CHIEF UNITED STATES DISTRICT JUDGE
7

Case 2:13-cv-00079-WKW-CSC Document 38-1 Filed 07/31/13 Page 1 of 2
A copy of this checklist is available at the website for the USCA, 11th Circuit at www.ca11.uscourts.gov Effective on April 9, 2006, the new fee to file an appeal will increase from $255.00 to $455.00.
CIVIL APPEALS JURISDICTION CHECKLIST
1. Appealable Orders: Courts of Appeals have jurisdiction conferred and strictly limited by statute:
(a) Appeals from final orders pursuant to 28 U.S.C. § 1291: Only final orders and judgments of district courts, or final orders of bankruptcy courts which have been appealed to and fully resolved by a district court under 28 U.S.C.§ 158, generally are appealable. A final decision is one that “ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.” Pitney Bowes, Inc. v. Mestre, 701 F.2d 1 365, 1 368 ( 11th Ci r. 1 983). A magistrate judge’s report and recommendation is not final and appealable until judgment thereon is entered by a district court judge. 28 U.S.C. § 636(c).
(b) In cases involving multiple parties or multiple claims, a judgment as to fewer than all parties or all claims is not a final, appealable decision unless the district court has certified the judgment for immediate review under Fed.R.Civ.P. 54(b). Williams v. Bishop, 732 F.2d 885, 885- 86 (11th Cir. 1984). A judg ment which resolves all issues except matters, such as attorneys’ fees and costs, that are collateral to the merits, is immediately appealable. Budinich v. Becton Dickinson & Co., 486 U.S.196, 201, 108 S.Ct. 1717, 1721-22, 100 L .Ed.2d 178 (1988); LaChance v. Duffy’s Draft House, Inc., 146 F.3d 832, 837 (11th Cir. 1998).
(c) Appeals pursuant to 28 U.S.C. § 1292(a): Appeals are permitted from orders “granting, continuing, modifying, refusing or dissolving injunctions or refusing to dissolve or modify injunctions . . .” and from “[i]nterlocutory decrees . . . determining the rights and liabilities of parties to admiralty cases in which appeals from final decrees are allowed.” Interlocutory appeals from orders denying temporary restraining orders are not permitted.
(d) Appeals pursuant to 28 U.S.C. § 1292(b) and Fed.R.App.P. 5: The certification specified in 28 U.S.C. § 1292(b) must be obtained before a petition for permission to appeal is filed in the Court of Appeals. The district court’s denial of a motion for certification is not itself appealable.
(e) Appeals pursuant to judicially created exceptions to the finality rule: Limited exceptions are discussed in cases including, but not limited to: Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546, 69S.Ct. 1221, 1225-26, 93 L.Ed. 1528 (1949); Atlantic Fed. Sav. & Loan Ass’n v. Blythe Eastman Paine Webber, Inc., 890 F.2d 371, 376 (11th Cir. 1989); Gillespie v. United States Steel Corp., 379 U.S. 148, 157, 85 S.Ct. 308, 312, 13 L.Ed.2d 199 (1964). Rev.: 4/04

Case 2:13-cv-00079-WKW-CSC Document 38-1 Filed 07/31/13 Page 2 of 2
2. Time for Filing: The timely filing of a notice of appeal is mandatory and jurisdictional. Rinaldo v. Corbett, 256 F.3d 1276, 1278 (11th Cir. 2001). In civil cases, Fed.R.App.P. 4(a) and (c) set the following time limits:
(a) Fed.R.App.P. 4(a)(1): A notice of appeal in compliance with the requirements set forth in Fed.R.App.P. 3 must be filed in the district court within 30 days after the entry of the order or judgment appealed from. However, if the United States or an officer or agency thereof is a party, the notice of appeal must be filed in the district court within 60 days after such entry. THE NOTICE MUST BE RECEIVED AND FILED IN THE DISTRICT COURT NO LATER THAN THE LAST DAY OF THE APPEAL PERIOD – no additional days are provided for mailing. Special filing provisions for inmates are discussed below.
(b) Fed.R.App.P. 4(a)(3): “If one party timely files a notice of appeal, any other party may file a notice of appeal within 14 days after the date when the first notice was filed, or within the time otherwise prescribed by this Rule 4(a), whichever period ends later.”
(c) Fed.R.App.P. 4(a)(4): If any party makes a timely motion in the district court under the Federal Rules of Civil Procedure of a type specified in this rule, the time for appeal for all parties runs from the date of entry of the order disposing of the last such timely filed motion.
(d) Fed.R.App.P. 4(a)(5) and 4(a)(6): Under certain limited circumstances, the district court may extend the time to file a notice of appeal. Under Rule 4(a)(5), the time may be extended if a motion for an extension is filed within 30 days after expiration of the time otherwise provided to file a notice of appeal, upon a showing of excusable neglect or good cause. Under Rule 4(a)(6), the time may be extended if the district court finds upon motion that a party did not timely receive notice of the entry of the judgment or order, and that no party would be prejudiced by an extension.
(e) Fed.R.App.P. 4(c): If an inmate confined to an institution files a notice of appeal in either a civil case or a criminal case, the notice of appeal is timely if it is deposited in the institution’s internal mail system on or before the last day for filing. Timely filing may be shown by a declaration in compliance with 28 U.S.C. § 1746 or a notarized statement, either of which must set forth the date of deposit and state that first-class postage has been prepaid.
3. Format of the notice of appeal: Form 1, Appendix of Forms to the Federal Rules of Appellate Procedure, is a suitable format. See also Fed.R.App.P. 3(c). A pro se notice of appeal must be signed by the appellant.
4. Effect of a notice of appeal: A district court loses jurisdiction (authority) to act after the filing of a timely notice of appeal, except for actions in aid of appellate jurisdiction or to rule on a timely motion of the type specified in Fed.R.App.P. 4(a)(4).

 
 Case 2:13-cv-00079-WKW-CSC Document 43 Filed 01/06/14 Page 1 of 5

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION

JANE DOE #1, et al., Plaintiffs,
v. RICH HOBSON, et al.,
Defendants.

) ) ) ) ) CASE NO. 2:13-CV-79-WKW ) ) ) )

MEMORANDUM OPINION AND ORDER

Before the court is Plaintiffs’ motion for reconsideration in which they

respectfully argue that the court’s requirement that they plead their status as

“unlawfully present aliens” is unnecessary to support their Article III standing.

(Doc. # 39.) Defendants have filed a response, (Doc. # 41), and Plaintiffs have

replied, (Doc. # 42). For the reasons to follow, the motion for reconsideration is

due to be granted.

I. BACKGROUND

On July 31, 2013, the court entered a memorandum opinion and order

granting Defendants’ motion to dismiss and denying as moot all other pending

motions. (Doc. # 38.) The court identified the following impediments to

Plaintiffs’ standing: (1) Plaintiffs failed to allege that they are “unlawfully present

Case 2:13-cv-00079-WKW-CSC Document 43 Filed 01/06/14 Page 2 of 5
aliens” subject to the consequences prescribed by Ala. Code § 31-13-32, the state law which they challenge as unconstitutional; and (2) the Plaintiffs failed to allege that they were “unlawfully present aliens” at the crucial times identified by the law – i.e., when they were detained by law enforcement and when they appeared in court for a violation of state law. (See Doc. # 38, at 4–5.) Without asserting they were unlawfully present aliens, the court explained, Plaintiffs could not show that they faced the threat of imminent injury. (Doc. # 38, at 4 (citing Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180 (2000).) The court afforded Plaintiffs leave to amend their complaint to cure these impediments to standing. (See Doc. # 38, at 7.) Plaintiffs did not amend their complaint. Rather, they filed the instant motion requesting that the court reconsider and vacate its July 31, 2013 opinion and order. (Doc. # 39.)
II. STANDARD OF REVIEW A district court has “plenary power” over its interlocutory orders, and its “power to reconsider, revise, alter[,] or amend [an] interlocutory order is not subject to the limitations of Rule 59.” Toole v. Baxter Healthcare Corp., 235 F.3d 1307, 1315 (11th Cir. 2000) (internal quotation marks omitted). Thus, the court “may reconsider an interlocutory ruling for any reason it deems sufficient.” Canaday v. Household Retail Servs., Inc., 119 F. Supp. 2d 1258, 1260 (M.D. Ala. 2000).
2

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III. DISCUSSION Plaintiffs reassert their contention that there is a credible threat that they will be listed as unlawfully present aliens, and thus, they have shown that there is a threat of imminent injury. Plaintiffs cite Georgia Latino Alliance for Human Rights v. Governor of Georgia, 691 F.3d 1250, 1258 (11th Cir. 2012), and other cases for the proposition that they can show the threat of imminent injury by pleading that “there is a credible threat of application” of an unlawful statute. The statute at issue in this case requires Defendants to report (a) unlawfully present aliens who are (b) detained by law enforcement, who (c) appear in court for any violation of state law. See Ala. Code § 31-13-32(a). There is no dispute that Plaintiffs pleaded that they were arrested and that they appeared in court. Plaintiffs submit that they need not further allege that they are unlawfully present aliens – but only that Defendants will treat them as unlawfully present aliens. (Doc. # 391, at 7.) Plaintiffs point to Jane Doe # 1’s circumstances to show that there is a “‘credible threat’ that when State officials contact ICE to inquire about Jane Doe # 1, ICE will provide information that will, in turn, result in” the State’s classification of Jane Doe # 1 as an unlawfully present alien.1 (Doc. # 39-1, at 9.) Defendants do not respond directly to Plaintiffs’ argument.2
1 Jane Doe’s circumstances are that she is from Mexico, she lacks documents proving that she has permission to be in the United States, she was detained in county jail for three months
3

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Upon consideration of Plaintiffs’ primary argument and the relevant law, the court is persuaded that Plaintiffs should not be required to plead that they are in fact “unlawfully present aliens.” Plaintiffs’ motion for reconsideration (Doc. # 39) is due to be granted.
IV. CONCLUSION Accordingly, it is ORDERED that: (1) Plaintiffs’ motion for reconsideration (Doc. # 39) is GRANTED; (2) The Memorandum Opinion and Order entered July 31, 2013 (Doc. # 38) is VACATED; (3) Plaintiffs’ motion for class certification (Doc. # 2), motion to proceed under pseudonyms (Doc. # 4), and motion for relief under Federal Rule of Civil Procedure 56(d) (Doc. # 32), and Defendants’ motion to dismiss, or alternatively, for summary judgment (Doc. # 20), are REINSTATED as pending motions. (4) On or before January 20, 2014, the parties may supplement their briefing concerning Defendants’ motion to dismiss and alternative motion for
prior to the initiation of this suit, and she was interviewed by Immigration and Customs Enforcement who determined that she lacked permission to remain in the country.
2 Instead, Defendants counter Plaintiffs’ additional arguments that “unlawfully present alien” is an undefined and impermissible state classification and that the court’s re-pleading requirement could unnecessarily condition Plaintiffs’ right to access the courts upon a waiver of Plaintiffs’ Fifth Amendment rights against self-incrimination. (See Doc. # 41 (responding primarily to Plaintiffs’ arguments in Doc. # 39-1, at 9–12).) The court does not base its decision to reconsider on Plaintiffs’ additional arguments.
4

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summary judgment (Doc. # 20) and Plaintiffs’ Rule 56(d) motion for discovery (Doc. # 32).
DONE this 6th day of January, 2014. /s/ W. Keith Watkins
CHIEF UNITED STATES DISTRICT JUDGE
5

Case 2:13-cv-00079-WKW-CSC Document 43-1 Filed 01/06/14 Page 1 of 2
A copy of this checklist is available at the website for the USCA, 11th Circuit at www.ca11.uscourts.gov Effective on December 1, 2013, the new fee to file an appeal will increase from $455.00 to $505.00.
CIVIL APPEALS JURISDICTION CHECKLIST
1. Appealable Orders: Courts of Appeals have jurisdiction conferred and strictly limited by statute:
(a) Appeals from final orders pursuant to 28 U.S.C. § 1291: Only final orders and judgments of district courts, or final orders of bankruptcy courts which have been appealed to and fully resolved by a district court under 28 U.S.C.§ 158, generally are appealable. A final decision is one that “ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.” Pitney Bowes, Inc. v. Mestre, 701 F.2d 1 365, 1 368 ( 11th Ci r. 1 983). A magistrate judge’s report and recommendation is not final and appealable until judgment thereon is entered by a district court judge. 28 U.S.C. § 636(c).
(b) In cases involving multiple parties or multiple claims, a judgment as to fewer than all parties or all claims is not a final, appealable decision unless the district court has certified the judgment for immediate review under Fed.R.Civ.P. 54(b). Williams v. Bishop, 732 F.2d 885, 885- 86 (11th Cir. 1984). A judg ment which resolves all issues except matters, such as attorneys’ fees and costs, that are collateral to the merits, is immediately appealable. Budinich v. Becton Dickinson & Co., 486 U.S.196, 201, 108 S.Ct. 1717, 1721-22, 100 L .Ed.2d 178 (1988); LaChance v. Duffy’s Draft House, Inc., 146 F.3d 832, 837 (11th Cir. 1998).
(c) Appeals pursuant to 28 U.S.C. § 1292(a): Appeals are permitted from orders “granting, continuing, modifying, refusing or dissolving injunctions or refusing to dissolve or modify injunctions . . .” and from “[i]nterlocutory decrees . . . determining the rights and liabilities of parties to admiralty cases in which appeals from final decrees are allowed.” Interlocutory appeals from orders denying temporary restraining orders are not permitted.
(d) Appeals pursuant to 28 U.S.C. § 1292(b) and Fed.R.App.P. 5: The certification specified in 28 U.S.C. § 1292(b) must be obtained before a petition for permission to appeal is filed in the Court of Appeals. The district court’s denial of a motion for certification is not itself appealable.
(e) Appeals pursuant to judicially created exceptions to the finality rule: Limited exceptions are discussed in cases including, but not limited to: Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546, 69S.Ct. 1221, 1225-26, 93 L.Ed. 1528 (1949); Atlantic Fed. Sav. & Loan Ass’n v. Blythe Eastman Paine Webber, Inc., 890 F.2d 371, 376 (11th Cir. 1989); Gillespie v. United States Steel Corp., 379 U.S. 148, 157, 85 S.Ct. 308, 312, 13 L.Ed.2d 199 (1964). Rev.: 4/04

Case 2:13-cv-00079-WKW-CSC Document 43-1 Filed 01/06/14 Page 2 of 2
2. Time for Filing: The timely filing of a notice of appeal is mandatory and jurisdictional. Rinaldo v. Corbett, 256 F.3d 1276, 1278 (11th Cir. 2001). In civil cases, Fed.R.App.P. 4(a) and (c) set the following time limits:
(a) Fed.R.App.P. 4(a)(1): A notice of appeal in compliance with the requirements set forth in Fed.R.App.P. 3 must be filed in the district court within 30 days after the entry of the order or judgment appealed from. However, if the United States or an officer or agency thereof is a party, the notice of appeal must be filed in the district court within 60 days after such entry. THE NOTICE MUST BE RECEIVED AND FILED IN THE DISTRICT COURT NO LATER THAN THE LAST DAY OF THE APPEAL PERIOD – no additional days are provided for mailing. Special filing provisions for inmates are discussed below.
(b) Fed.R.App.P. 4(a)(3): “If one party timely files a notice of appeal, any other party may file a notice of appeal within 14 days after the date when the first notice was filed, or within the time otherwise prescribed by this Rule 4(a), whichever period ends later.”
(c) Fed.R.App.P. 4(a)(4): If any party makes a timely motion in the district court under the Federal Rules of Civil Procedure of a type specified in this rule, the time for appeal for all parties runs from the date of entry of the order disposing of the last such timely filed motion.
(d) Fed.R.App.P. 4(a)(5) and 4(a)(6): Under certain limited circumstances, the district court may extend the time to file a notice of appeal. Under Rule 4(a)(5), the time may be extended if a motion for an extension is filed within 30 days after expiration of the time otherwise provided to file a notice of appeal, upon a showing of excusable neglect or good cause. Under Rule 4(a)(6), the time may be extended if the district court finds upon motion that a party did not timely receive notice of the entry of the judgment or order, and that no party would be prejudiced by an extension.
(e) Fed.R.App.P. 4(c): If an inmate confined to an institution files a notice of appeal in either a civil case or a criminal case, the notice of appeal is timely if it is deposited in the institution’s internal mail system on or before the last day for filing. Timely filing may be shown by a declaration in compliance with 28 U.S.C. § 1746 or a notarized statement, either of which must set forth the date of deposit and state that first-class postage has been prepaid.
3. Format of the notice of appeal: Form 1, Appendix of Forms to the Federal Rules of Appellate Procedure, is a suitable format. See also Fed.R.App.P. 3(c). A pro se notice of appeal must be signed by the appellant.
4. Effect of a notice of appeal: A district court loses jurisdiction (authority) to act after the filing of a timely notice of appeal, except for actions in aid of appellate jurisdiction or to rule on a timely motion of the type specified in Fed.R.App.P. 4(a)(4).

 
 Case 2:13-cv-00079-WKW-CSC Document 59 Filed 07/03/14 Page 1 of 1

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION

JANE DOE #1, et al., Plaintiffs,
v. RICH HOBSON, et al.,
Defendants.

) ) ) ) ) CASE NO. 2:13-CV-79-WKW ) ) ) )

ORDER

Before the court is Plaintiffs’ motion for class certification. (Doc. # 2.) In

the Parties’ Rule 26(f) Report, the Parties represent that Plaintiffs may, on or

before September 5, 2014, either amend their class certification motion or adopt

the motion as it has been submitted. (Doc. # 53, at ¶ 4(j).) Regardless of whether

Plaintiffs amend their motion, the class certification issue will not be fully briefed

until October 3, 2014. (See Doc. # 53, at ¶ 4(j).)

In view of the circumstances, it is ORDERED that the pending motion for

class certification is DENIED without prejudice and with leave to refile, on or

before September 5, 2014, pursuant to the agreement in the Rule 26(f) Report.

DONE this 3rd day of July, 2014.

/s/ W. Keith Watkins CHIEF UNITED STATES DISTRICT JUDGE

 
 Case 2:13-cv-00079-WKW-CSC Document 49 Filed 05/02/14 Page 1 of 24

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION

JANE DOE #1, et al., Plaintiffs,
v. RICH HOBSON, et al.,
Defendants.

)

)

)

)

) CASE NO. 2:13-CV-79-WKW

)

[WO]

)

)

)

MEMORANDUM OPINION AND ORDER

Before the court is Defendants’ motion to dismiss, or in the alternative, for

summary judgment, (Doc. # 20), and Plaintiffs motion for relief under Rule 56(d),

(Doc. # 32). Upon consideration of the complaint, the parties’ arguments, and the

relevant law, the court finds that Defendants’ motion is due to be denied and

Plaintiffs’ motion for relief under Rule 56(d) is due to be denied as moot.

I. JURISDICTION AND VENUE

The court exercises subject matter jurisdiction pursuant to 28 U.S.C.

§§ 1331 and 1343. Personal jurisdiction and venue are uncontested.

II. STANDARDS OF REVIEW

A motion to dismiss under Federal Rule of Civil Procedure 12(b)(1)

challenges the court’s subject matter jurisdiction. McElmurray v. Consol. Gov’t of

Augusta–Richmond Cnty., 501 F.3d 1244, 1251 (11th Cir. 2007). On a Rule

Case 2:13-cv-00079-WKW-CSC Document 49 Filed 05/02/14 Page 2 of 24
12(b)(1) facial attack, the court evaluates whether the plaintiff “has sufficiently alleged a basis of subject matter jurisdiction” in the complaint and employs standards similar to those governing Rule 12(b)(6) review. Houston v. Marod Supermarkets, Inc., 733 F.3d 1323, 1335 (11th Cir. 2013).
When evaluating a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), the court must take the facts alleged in the complaint as true and construe them in the light most favorable to the plaintiff. Resnick v. AvMed, Inc., 693 F.3d 1317, 1321–22 (11th Cir. 2012). To survive Rule 12(b)(6) scrutiny, “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “[F]acial plausibility” exists “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556).
In contrast to a facial attack on subject matter jurisdiction, a Rule 12(b)(1) factual attack “challenge[s] the existence of subject matter jurisdiction in fact, irrespective of the pleadings, and matters outside the pleadings, such as testimony and affidavits, are considered.” Lawrence v. Dunbar, 919 F.2d 1525, 1529 (11th Cir. 1990) (internal quotation marks omitted). When the attack is factual “the trial court is free to weigh the evidence and satisfy itself as to the existence of its power
2

Case 2:13-cv-00079-WKW-CSC Document 49 Filed 05/02/14 Page 3 of 24
to hear the case.” Id. Therefore, “no presumptive truthfulness attaches to [the]
plaintiff’s allegations, and the existence of disputed material facts will not preclude
the trial court from evaluating for itself the merits of jurisdictional claims.” Id.
Here, Defendants’ first and second arguments regarding ripeness and
standing are facial attacks on Plaintiffs’ complaint, while Defendants’ third
argument, which implicates mootness doctrine and relies upon Defendants’ affidavit testimonies, is a factual attack.1
III. BACKGROUND
A. Facts
Plaintiffs Jane Doe #1, Jane Doe #2, John Doe #1, and John Doe #2 are
residents of Montgomery, Alabama. All of them were born in Mexico and moved
to the United States several years ago. Jane Doe #1 is Jane Doe #2’s mother. Jane
Doe #2 is married to John Doe #1. These three Does live together. John Doe #2 is
the nephew of Jane Doe #1 and the cousin of Jane Doe #2; he lives separately from
but near the other Does. All Plaintiffs lack “documents proving that they currently
have permission to reside in the United States.” (Compl., at ¶ 52.)
1 With respect to Defendants’ argument that they intend not to enforce the challenged statute, the parties do not cite the 12(b)(1) factual attack standard in the briefing but appear to agree with Defendants’ reliance upon the Rule 56 summary judgment standard. But where jurisdiction is factually attacked, and the attack does not implicate the merits of the plaintiff’s cause of action, a court proceeds differently than it would under either Rule 12(b)(6) or Rule 56. Morrison v. Amway Corp., 323 F.3d 920, 925 (11th Cir. 2003) (citing Lawrence, 919 F.2d at 1529). That is, the court weighs the evidence without presuming the truthfulness of the plaintiff’s allegations or attempting to view the evidence in the light most favorable to the nonmoving plaintiff. See id.
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Plaintiffs went fishing, allegedly without a state license to do so, and were arrested. Jane Doe #1 was detained for approximately two days in a county jail and denied bail because federal Immigration and Customs Enforcement (“ICE”) officers wished to investigate whether she had permission to remain in the United States. The other Plaintiffs were detained in jail for several hours. ICE officials determined that Jane Doe #1 lacked permission to remain in the United States, but exercised their discretion not to keep her in custody or to initiate removal proceedings against her. Plaintiffs all appeared in state district court to contest the charges of fishing without licenses. All four were convicted, but they have appealed their convictions to state circuit court. (Doc. # 31, at 3–4; see also Docs. # 31-1, 31-2, 31-3, 31-4 (Plaintiffs’ Declarations).) Plaintiffs have not informed the court of further developments in the state court criminal proceedings.
Plaintiffs are suing Defendant Rich Hobson, in his official capacity as Administrative Director of Alabama’s Administrative Office of Courts (“AOC”), and Defendant Spencer Collier, in his official capacity as Director of the Alabama Department of Homeland Security (“ADHS”), now part of the Alabama Law Enforcement Agency (“ALEA”).2 Defendants are charged with enforcing various
2 Mr. Collier is now the Secretary of ALEA, “which encompasses state Homeland Security functions.” (Collier Second Supp. Aff., Doc. # 47-1.) It is not clear from the record whether the position of Secretary is the highest executive position at ALEA. Mr. Collier represents that ALEA has replaced ADHS. Because the statute at issue in the case identifies ADHS as the relevant agency, so will this opinion.
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provisions of Section 5 of House Bill 658 (“HB 658”). Alabama’s legislature
enacted HB 658 in May, 2012 to amend several provisions of Alabama’s
controversial immigration law commonly called HB 56, which was enacted in
2011. The text of Section 5 is set out in full below.
(a) The [AOC] shall submit a quarterly report, organized by county, to the [ADHS] summarizing the number of cases in which an unlawfully present alien was detained by law enforcement and appeared in court for any violation of state law and shall include all of the following information in the report:
(1) The name of the unlawfully present alien.
(2) The violation or charge alleged to have been committed by the unlawfully present alien.
(3) The name of the judge presiding over the case.
(4) The final disposition of the case, including whether the unlawfully present alien was released from custody, remained in detention, or was transferred to the custody of the appropriate federal immigration authorities.
(b) The [ADHS] shall publish on its public website, in a convenient and prominent location, the information provided in the quarterly report from the [AOC]. The display of this information on the department’s public website shall be searchable by county and presiding judge.
(c) For the purposes of this section, the determination of whether a person is an unlawfully present alien shall be verified by the federal government pursuant to 8 U.S.C. § 1373(c).
Ala. Code § 31-13-32.
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Plaintiffs allege that Section 5 is unconstitutional under the United States Constitution’s Supremacy Clause because Section 5(a) creates a state immigration classification – “unlawfully present alien,” (Compl., at ¶¶ 31, 66) – and intrudes into a field reserved exclusively to the jurisdiction of the federal government by attempting to create an alien registration scheme, (Compl., at ¶ 65). Plaintiffs allege that Sections 5(a) and (b) are also unconstitutional under the Due Process Clause because they deprive persons of protected liberty interests without due process of law. Specifically, Plaintiffs contest Section 5’s designation of persons who have been detained by law enforcement and appeared in state court, as unlawfully present aliens, and Section 5’s creation of a registry of individuals so classified. Plaintiffs protest that Section 5 provides neither a procedure for an adversely affected person to be notified of his or her inclusion on the AOC’s list, nor a means to contest his or her designation on the list or to be removed from the list.
Plaintiffs claim that because they have made court appearances, they personally will suffer various injuries if Section 5 is upheld and enforced. This is so, say Plaintiffs, because they lack documentation entitling them to be in the United States legally, Defendants have or will identify them as unlawfully present aliens, and Defendants will be obligated pursuant to Section 5 to publicize their names and status on the ADHS website. Plaintiffs claim that the State’s public
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registry “will amplify the effects of other provisions of HB 56.” (Compl., at ¶ 3.)
Further, Plaintiffs allege that Section 5 compromises confidential federal law
enforcement information by disseminating it to the public, thereby invading their
right to keep their information private and facilitating private discrimination
against immigrants and Latinos. If they are able to obtain legal immigration status,
Plaintiffs say Section 5 nonetheless will have “permanently branded” them as
unlawfully present aliens. (Compl., at ¶ 57.) Plaintiffs claim that they will be subjected to various other deprivations and harms. (See Compl., at ¶ 57.)3
Mr. Collier has repeatedly asserted that ADHS “has taken no steps to
implement Section 5’s provisions for publication of . . . information.” (Doc. # 20,
at 2 (citing Collier Aff.); see also Docs. # 33-1 (Collier Supp. Aff.), # 47-1 (Collier
Second Supp. Aff.).) Having consulted with ICE, Mr. Collier believes that if he
complied with Section 5, a public registry would constitute an improper use of
federal immigration information. Mr. Collier informed the State Attorney General
3 The other harms named in Paragraph 57 of the Complaint besides deprivation of privacy, branding, and subjection to private harassment are: (a) lost employment opportunities; (b) denial of bail or release from custody; (c) denial of state of local public benefits; (d) arrest and prosecution for application to renew a motor vehicle license plate, driver’s license, ID card, business license, commercial license, or professional license; (e) subjection to “a host of other civil disabilities and criminal penalties should the preliminary injunction be lifted on any other provision of HB 56.”
When the Complaint was filed and the motion to dismiss was originally briefed, certain provisions of HB 56 had been enjoined preliminarily by order of the U.S. District Court for the Northern District of Alabama. In their supplemental brief, Defendants provide notice of the provisions of HB 56 that have been permanently enjoined. (See Doc. # 47 Exs. B & C.) The legal sufficiency of Plaintiffs’ alleged injuries is discussed infra in Section IV.B.
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that he would not enforce the publication aspect of Section 5(b) because doing so would jeopardize ADHS’s access to federal immigration data, which it needs for law enforcement purposes. To date, the Alabama Attorney General has taken no official position in this action on enforcement of Section 5 of HB 658, but it is noted that he has vigorously defended a related law, HB 56, in other court challenges. See, e.g., Hispanic Interest Coal. of Ala. v. Governor of Ala., 691 F.3d 1236, 1240 (11th Cir. 2012); United States v. Alabama, 691 F.3d 1269, 1276 (11th Cir. 2012).
Plaintiffs emphasize, however, that the AOC responded to Section 5 by instructing state court judges to report court appearances of unlawfully present aliens and their alleged crimes. Mr. Hobson’s stated intent is to collect information pursuant to Section 5(a), but to keep it confidential, disclosing it only to ADHS. (See Docs. # 20-2 (Hobson Aff.); # 33-2 (Hobson 2d Aff.).) B. Procedural History
Defendants moved for dismissal, or alternatively, summary judgment (Doc. # 20.) After thorough briefing, including a surreply, the court entered a memorandum opinion and order granting Defendants’ motion to dismiss for lack of standing because Plaintiffs failed to allege that they were unlawfully present aliens. (Doc. # 38.) Plaintiffs requested reconsideration of that ruling. The court granted Plaintiffs’ motion to reconsider, reinstated the previously pending motions, and
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directed the parties to submit supplemental briefing. (Doc. # 43.) The parties complied. (Docs. # 47, 48.) Defendants’ motion to dismiss, or in the alternative, for summary judgment, and Plaintiffs’ request for relief under Rule 56(d) are now before the court.
IV. DISCUSSION Federal courts have limited jurisdiction and are constrained by Article III of the Constitution to decide only cases and controversies. Doctrines of standing, ripeness, and mootness have developed to test whether cases are constitutionally or prudentially justiciable. Defendants present three arguments for why Plaintiffs’ case is not justiciable. First, Defendants contend that Plaintiffs lack standing because their claims, as pleaded, are not ripe. Second, Defendants assert that Plaintiffs lack an injury-in-fact because their alleged injuries, as pleaded, are conjectural. Third, Defendants argue that there is no actual threat that the public reporting provision of Section 5(b) will be enforced, which the parties have categorized in the briefing as a mootness argument rather than a standing one. Each argument is addressed in turn. A. Ripeness Defendants argue that, at the time they filed their motion to dismiss, Plaintiffs had yet to make court appearances. That argument is no longer relevant because Plaintiffs appeared in state district court. Defendants further argue that
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“Plaintiffs have no way of knowing what information the federal government might give in response to an inquiry about their immigration status.” (Doc. # 20, at 5; see also Doc. # 33 (“[Plaintiffs] have not pled sufficient facts to create a presumption that if a state official inquired about Plaintiffs’ immigration statuses, the federal government would say that their presence was not lawful.”)
Plaintiffs respond that Defendants’ argument “is illogical, particularly with regard to Jane Doe [#]1, who was told by [ICE] officials that the federal government believe[d] that she is in the country without lawful immigration status.” (Doc. # 31, at 5 n.3.) Plaintiffs assert that they have not yet sustained a direct injury as a result of Defendants’ enforcement of Section 5, but they “[are] in immediate danger of sustaining” an injury. Nat’l Adver. Co. v. City of Miami, 402 F.3d 1335, 1339 (11th Cir. 2005). They further argue that they need not wait for enforcement so long as there is “a realistic danger of sustaining a direct injury as a result of [Section 5]’s operation or enforcement.” Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289, 298 (1979).
The court agrees with Plaintiffs. While the ripeness doctrine implicates “both constitutional and prudential concerns,” Defendants have not argued that prudential concerns “counsel judicial restraint,” Nat’l Adver. Co., 402 F.3d at 1339, and the court is not aware of any. As for constitutional concerns, Plaintiffs have pleaded that they are in danger of sustaining injuries if Section 5 is
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enforced as written. Because Plaintiffs were not born in the United States, because they appear to be in the United States in violation of federal law, and because ICE has already determined that Jane Doe #1 is not lawfully present, it is realistic that Defendants’ enforcement of Section 5 would harm them in at least some of the ways alleged in the Complaint. Defendants’ argument that the case is unripe is without merit. B. Standing
To have standing, “[a] plaintiff must allege personal injury fairly traceable to the defendant’s allegedly unlawful conduct and likely to be redressed by the requested relief.” DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 342 (2006) (quoting Allen v. Wright, 468 U.S. 737, 751 (1984)). The plaintiff’s alleged injury must be both concrete and particularized and actual or imminent. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). There must be a causal connection between the injury and the defendant’s conduct. Id. And it must be likely – not speculative – that the injury will be remedied by the court’s decision in the plaintiff’s favor. Id. at 561. The plaintiff, as “[t]he party invoking federal jurisdiction[,] bears the burden” of establishing standing. Id.
The elements of standing “must be supported in the same way as any other matter on which the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence required at the successive stages of the litigation.” Lujan, 504
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U.S. at 561. “At the pleading stage, general factual allegations of injury resulting from the defendant’s conduct may suffice, for on a motion to dismiss [the court] presume[s] that general allegations embrace those specific facts that are necessary to support the claim.” Id. (alteration omitted).
Defendants argue that Plaintiffs allege “nothing more than a general fear of Section 5’s enforcement” – but not concrete and particularized injuries. Defendants say that Plaintiffs’ allegations of the harm they will suffer are based entirely on speculation and assumption.
The Complaint sets out eight categories of harms that they would suffer if Section 5 is enforced, and “[t]wo of those categories detail injuries that would result directly and inexorably from Section 5 itself.” (Doc. # 31, at 7 (citing Compl., at ¶ 57).) Plaintiffs claim they will be deprived of their privacy interest in their immigration status information and that they will be permanently branded by the State as unlawfully present aliens. For the moment, the court focuses on these two categories of injury that Plaintiffs allege result directly from enforcement of Section 5: an alleged invasion of privacy and deprivation of due process.
In rebutting these alleged injuries, Defendants rely on their evidence of their asserted intent not to enforce Section 5 as the Legislature passed it. That line of argument will be separately addressed in the context of mootness doctrine. See infra Part IV.C. In the present context of standing, Defendants’ arguments distract
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from what matters. The proper focus in a Rule 12(b)(1) facial challenge belongs on the Complaint – not Defendants’ affidavits. See Lawrence, 1529 (11th Cir.
1990). The allegations in the Complaint must be taken as true. Id. Plaintiffs’ Complaint alleges that Section 5 violates the Supremacy Clause and the Due Process Clause. Plaintiffs assert that the State is invading the federal government’s role of registering and classifying persons as aliens.4 Plaintiffs further allege that if the law is enforced as it was written and adopted by the Legislature, Plaintiffs’ names will be publicly identified by the State as unlawfully present aliens, and they will have no means of challenging that designation before or after Defendants
categorize them as unlawfully present and publish their names. For purposes of the injury-in-fact requirement of standing, Plaintiffs must
assert an actual or imminent violation of a “legally protected interest.” Bochese v.
Town of Ponce Inlet, 405 F.3d 964, 980 (11th Cir. 2005); see also Cone Corp. v. Fla. Dep’t of Transp., 921 F.2d 1190, 1204 (11th Cir. 1991) (“the injury must be the [alleged] deprivation of a constitutional right”). The alleged threat of a
deprivation of due process – i.e., Plaintiffs’ complaint that they are unable to
4 “The propriety of bringing a challenge for injunctive and declaratory relief on the grounds that a state law is preempted by virtue of the Supremacy Clause has gone largely unquestioned.” Ga. Latino Alliance for Human Rights v. Governor of Ga., 691 F.3d 1250, 1261 (11th Cir. 2012).
Defendants argue in their reply and supplemental briefing that Section 5 is not an alien registration scheme. (See Doc. # 35, at 12–14.) This argument goes to the merits – not to standing or justiciability, and it was not raised in the motion to dismiss. Although Plaintiffs raised this issue in their response, it will not be discussed in this opinion.
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contest their likely designation as unlawfully present aliens and their inclusion on
the State’s registry of the same – is a legally protected interest. Likewise,
Plaintiffs’ privacy rights in their immigration information may also be legally
protected. See Harris v. Thigpen, 941 F.2d 1495, 1513 n.26 (11th Cir. 1991)
(noting that “the Supreme Court has recognized for almost a century that certain
rights of personal privacy do exist,” including an “individual[’s] interest in avoiding disclosure of personal matters . . . .).5 Therefore, the Complaint contains
allegations that are adequate to establish an imminent injury-in-fact.
Turning to the other harms alleged in the complaint, Plaintiffs argue that
enforcement of Section 5 will cause them to suffer the loss of employment
prospects and denial of bail or release from custody. These consequences are
certain, say Plaintiffs, because they are mandated by HB 56. Defendants reply that
separate provisions of HB 56 – not the enforcement of Section 5 – would result in
lost employment opportunities or the denial of bail. (See Doc. # 33, at 9 (citing Ala. Code §§ 31-13-15 and 31-13-18).)6 Similarly, Defendants aver that if
5 Plaintiffs concede that third parties actually might not engage in private discrimination or harassment if they have access to a list of unlawfully present aliens. This concession has no effect on the alleged harm of loss of privacy, however, if Plaintiffs have a constitutional right to prevent the State from disclosing their immigration information. Whether Plaintiffs actually have a privacy interest in their immigration information is not clear; the issue remains to be resolved on the merits. For now, the alleged violation of privacy rights is enough.
6 With respect to the denial of bail, Defendants also point out that the State has represented to the U.S. District Court for the Northern District of Alabama that, pursuant to Alabama’s Constitution, Ala. Code § 31-13-18 can only be applied to deny bail to persons
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Plaintiffs are denied public benefits or are prosecuted for attempting to enter a public records transaction with the State, it will not be because a State official made use of Section 5’s report from the AOC, but rather, because a direct inquiry was made to the federal government.
Defendants’ criticism is persuasive. Other provisions of HB 56 – not Section 5 – call for the consequences of denial of lawful employment, denial of bail or release, denial of public benefits, and arrest for undertaking a transaction involving public records. And each of the contested sections of HB 56 directs either the relevant state agency or a private employer to inquire with the federal government about lawful immigration status. See Ala. Code §§ 31-13-7(c), 31-1315(b), 31-13-18(a), 31-13-29(c). It could be argued that, even if Plaintiffs actually endure the alleged injuries described at Paragraph 57 (a)–(d) of the Complaint, those injuries would be neither caused by Defendants’ enforcement of Section 5 nor redressed by an injunction prohibiting enforcement of Section 5.
Additionally, the court is suspicious that Plaintiffs may lack standing to complain about any injuries resulting from enforcement of provisions of H.B. 56 which have not been enjoined as unconstitutional. If Plaintiffs are not lawfully present in the United States, it would seem that they presently lack a legally protected interest, under Alabama statutes, in obtaining employment, bail or
arrested for capital crimes. This representation has been memorialized in that court’s permanent injunction. (See Doc. # 47-2, at 2 n.4.)
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release, public benefits, or the engagement in public records transactions with the State. Defendants have not raised this injury-in-fact issue, and in the absence of an argument from their adversaries, neither have Plaintiffs.
Yet, presuming that Section 5 is enforced and Plaintiffs are identified on the ADHS website as unlawfully present aliens, it is plausible that private employers or state agencies may rely upon the AOC’s list published by the ADHS. The court elects not to parse these suspect injuries and potential causation and redressability problems on a motion to dismiss, especially where some of the issues identified above have not been briefed. The court prefers the resolution of disputed facts, where possible, and the crystallization of those not resolved, in order to deal with issues of law on a solid record at the summary judgment juncture.7
In sum, Plaintiffs have constitutional standing to bring this suit. C. Mootness
Defendants’ final argument is the most contentious. Defendants represent that they “have no intention of enforcing the public disclosure provisions of Section 5.” (Doc. # 20, at 7 (citing Collier and Hobson Affs).) Thus, they argue, the threat of injury anticipated by Plaintiffs will not materialize.
7 However, with respect the alleged “host of other civil disabilities or criminal penalties [that Plaintiffs might endure] should the preliminary injunction be lifted on any other provision of HB 56,” (Compl. at ¶ 57(g)), these injuries are not actual or imminent because the preliminary injunction has been made permanent by order of the Northern District of Alabama. (See Docs. # 47-2, 47-3 (Stipulated Permanent Injunctions).) Hence, any alleged injuries relating to provisions of HB 56 that have been enjoined are insufficient to confer standing.
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1. Arguments Defendants rely on Doe v. Pryor, 344 F.3d 1282, 1283 (11th Cir. 2003), where the Eleventh Circuit affirmed a Rule 12(b)(1) dismissal for lack of standing after the defendant-Attorney General argued that he had no intention of enforcing a challenged statute. In Doe, one of the plaintiffs, J.B., maintained an open lesbian relationship and lost custody of her child to her ex-husband. In ruling in the exhusband’s favor, the Alabama Supreme Court cited Alabama’s statute criminalizing deviate sexual intercourse. J.B. and others sued the Attorney General of Alabama, challenging the statute on equal protection and freedom of expression grounds. With respect to the equal protection claim, the Eleventh Circuit held that, assuming J.B. had pleaded cognizable injuries, J.B.’s alleged injuries were neither fairly traceable to any action taken by the Attorney General, nor redressable by a suit against the Attorney General. Id. at 1285–86. The court considered the Attorney General’s position that he had neither threatened to enforce nor enforced the challenged law. Id. at 1285. The court found credible the Attorney General’s assurance that he would not enforce the law based on his concession that, in the wake of the Supreme Court decision in Lawrence v. Texas, 539 U.S. 558 (2003), the challenged Alabama statute was unconstitutional. Id. Similarly, with regard to the plaintiffs’ First Amendment challenge, the court held that there was no credible
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threat of prosecution. Id. at 1287. The court noted again that the Attorney General viewed the law to be unconstitutional in light of Lawrence,8 and that even without the Lawrence decision, it apparently had been “years and years” since the State of Alabama had enforced the challenged law. Id. Hence, the court affirmed the dismissal of the suit for plaintiffs’ lack of standing.
Here, Defendants argue that, like the Attorney General of Alabama in Doe v. Pryor, they are the persons charged with enforcing Section 5, they are represented by the Attorney General in this matter, and Mr. Collier has sworn to their intent not to enforce the public disclosure provisions of the law in Section 5(b).
Plaintiffs respond that Defendants are oversimplifying the significance of the holding in Pryor. Plaintiffs distinguish Pryor in three ways. First, there is not a binding Eleventh Circuit or Supreme Court ruling like Lawrence which has held that Section 5, or any virtually identical state law, is unconstitutional. Second, unlike the Attorney General in Pryor, Defendants have not conceded and admittedly will not concede that Section 5 is unconstitutional. Third, unlike the criminal statute at issue in Pryor, which the State had ignored for decades, Section 5 is a novel law enacted within the last two years. Plaintiffs also emphasize that there are consequences for Defendants if they do not enforce the law. See Ala.
8 See id. at 1283 (“[T]he statute has been declared dead by the Alabama Attorney General, who as the chief law enforcement officer of the state ought to know.”).
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Code § 31-13-6.9 Defendants’ reply brief is silent in response to these specific arguments. Plaintiffs’ argument that Pryor is distinguishable is well-taken. Additional distinctions between Pryor and this case include that Alabama’s Attorney General had no causal connection to the plaintiff’s complained-of injury (i.e., the loss of child custody), whereas here, Defendants’ statutory enforcement obligations are causally connected to Plaintiffs’ asserted injuries. Moreover, the Attorney General, as the highest law enforcement officer of the State, has not weighed in here on the future enforcement of Section 5.
In addition to distinguishing Pry or, Plaintiffs characterize Defendants’ nonenforcement argument as implicating mootness rather than standing. (Doc. # 31, at 9 n.7.) Plaintiffs contend that Defendants’ representations do not constitute “the unambiguous cessation” required to moot Plaintiffs’ claims. See Troiano v. Supervisor of Elections in Palm Beach Cnty., Fla., 382 F.3d 1276, 1282–86 (11th Cir. 2004) (discussing the circumstances under which a defendant’s voluntary cessation of offensive conduct renders a plaintiff’s case moot); Harrell v. The Fla. Bar, 608 F.3d 1241, 1266–67 (11th Cir. 2010) (requiring that the termination of offensive conduct be unambiguous). Further, Plaintiffs assert that even if Defendants’ non-enforcement policy is unambiguous, Defendants only have
9 As characterized by Plaintiffs, that statute “renders officials vulnerable to private party complaints and state government enforcement actions, including mandatory defunding and civil penalties” if state officials fail to enforce state law concerning unlawfully present aliens. (Doc. # 31, at 16 n.9.)
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promised not to enforce the public disclosure provisions of Section 5(b). Plaintiffs have challenged all of Section 5, including Section 5(a)’s provision for the AOC to report unlawfully present aliens to ADHS. Plaintiffs say that the public disclosure provisions of Section 5(b) are not severable from Section 5, and therefore, Plaintiffs’ claims are not moot.
In reply, Defendants counter that a discussion of the mootness doctrine has applicability only where the Government actually engages in the allegedly unlawful conduct at the time the suit is filed, and later voluntarily ceases the offensive conduct during the pendency of a lawsuit. In this case, Mr. Collier has never “ceased” any offensive conduct. Instead, he decided not to enforce Section 5(b) prior to the filing of this litigation, and ADHS has never published a list of unlawfully present aliens who have appeared in Alabama’s courts. Notwithstanding their doubts as to the applicability of voluntary cessation analysis, Defendants argue that the non-enforcement policy is unambiguous, the product of substantial deliberation, and consistent.
In Plaintiffs’ surreply brief, they emphasize that Defendants were preparing to enforce Section 5 shortly before this suit was filed, and further, that Mr. Collier made his decision not to enforce Section 5(b) after Plaintiffs’ counsel informed the State Attorney General’s Office of their intent to sue. They argue that Defendants try to avoid carrying the heavy burden of showing voluntary cessation and
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mootness by characterizing their mootness arguments as an attack on Plaintiffs’ standing. Finally, Plaintiffs reiterate that the Complaint’s allegation that
Section 5(b), as it was written by the Legislature, could be enforced immediately, must be accepted as true.
2. Analysis It is significant that Defendants did not argue mootness in their motion to dismiss. (See Doc. # 20.) Plaintiffs classified Defendants’ non-enforcement argument as treading into mootness territory. (See Doc. #21.) Even though Defendants did not initially seek dismissal on grounds of mootness, the court has
an independent obligation to review issues of justiciability, including mootness. Doe v. Wooten, ___ F.3d ____, 2014 WL 1363543, at *3 n.3 (11th Cir. 2014). Hence, the court will entertain the question as recast by Plaintiffs even though Defendants raise the issue differently in their motion.10
Ordinarily, a defendant “bears [the] heavy burden of demonstrating that his cessation of the challenged conduct renders the controversy moot.” Rich v. Sec’y,
Fla. Dep’t. of Corrs., 716 F.3d 525, 531 (11th Cir. 2013) (citing Harrell, 608 F.3d.
10 Defendants have suggested that because Mr. Collier and the ADHS have never followed Section 5(b)’s directives for publication of the AOC’s list of unlawfully present aliens who have been detained by law enforcement and appeared in state court, and thus have never “ceased” publication, this case seems unfit for application of the doctrine of voluntary cessation. Eleventh Circuit precedent suggests that the lack of “cessation” is not an obstacle to the court’s consideration of the voluntary cessation doctrine when confronted with a mootness question. See Socialist Workers Party v. Leahy, 145 F.3d 1240, 1247 (11th Cir. 1998) (holding, in the context of a pre-enforcement challenge, that voluntary cessation defense failed to moot the case).
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at 1265). But government actors like Defendants “carry a lesser burden.” Id. They must first show that the cessation of offensive conduct, or in this case, the decision not to initiate offensive conduct, is unambiguous. Id. On this element of the test, the timing and content of a defendant’s decision are most relevant. Id. at 531–32. Second, Defendants must demonstrate that the change in policy was the result of substantial deliberation – not a contrived attempt to divest the court of jurisdiction over a live controversy. See id. at 532. Finally, Defendants must show that Mr. Collier, the proponent of the non-enforcement policy, has applied it consistently. See id.
Upon consideration of the parties’ positions, the court agrees with Plaintiffs that Mr. Collier’s representations of his non-enforcement are inadequate to satisfy the Eleventh Circuit’s requirements of unambiguity. (See Doc. # 48, at 6–7.) Although Section 5 became law in May 2012, Mr. Collier did not decide that he was not enforcing Section 5(b) until days before this suit was filed in February 2013 and within weeks of Plaintiffs’ counsel’s informing the State Attorney General of Plaintiffs’ intent to challenge Section 5. Whether this was coincidental or not, “[t]he policy change was not made before litigation was threatened.” Rich, 716 F.3d at 532. Moreover, Defendants’ position is not that the enforcement of Section 5(b) would violate Plaintiffs’ constitutional rights or infringe upon a field occupied by the federal government. Rather, Defendants’ position is that ADHS’s
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law enforcement capabilities could be compromised by non-compliance with its agreement with the federal government to access and use immigration information. These also are relevant considerations that support a finding that Defendants’ nonenforcement policy is ambiguous because there is little to suggest that the law will not be enforced in the future. See id.
Additionally, Mr. Hobson does not dispute that he intends to collect data on behalf of the AOC pursuant to Section 5(a). On the face of Section 5, Section 5(a)’s data collection provisions appear to serve no other purpose than to satisfy Section 5(b)’s public disclosure requirements. See Ala. Code § 31-13-32(a) (directing the AOC to compile report to be furnished to ADHS); id. at § 31-1332(b) (directing ADHS to take no other action other than to “publish [the report] on its public website”). Even if Mr. Collier’s position was adequate to moot Plaintiffs’ claims concerning Section 5(b), Mr. Hobson will enforce Section 5(a), and Section 5(a) is, on its own, allegedly unconstitutional. Thus, even if concerns about Section 5(b) were mooted by Mr. Collier’s assurances not to enforce it, complete dismissal in Defendants’ favor would still be inappropriate.
In sum, Plaintiffs’ challenge to Section 5 is not moot, and Defendants’ motion to dismiss, or in the alternative, for summary judgment, is due to be denied. Of course, Defendants are permitted to revisit the issues of standing and mootness
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again at summary judgment if additional evidence supports reevaluation of their arguments.
Because the court is not deferring ruling on the alternative motion for summary judgment, Plaintiffs’ request for relief pursuant to Rule 56(d) is moot.
V. CONCLUSION Accordingly, it is ORDERED that: (1) Defendants’ motion to dismiss, or in the alternative, motion for
summary judgment (Doc. # 20) is DENIED; (2) Plaintiffs’ motion for relief pursuant to Rule 56(d) (Doc. # 32) is
DENIED as moot. DONE this 2nd day of May, 2014.
/s/ W. Keith Watkins CHIEF UNITED STATES DISTRICT JUDGE
24

Case 2:13-cv-00079-WKW-CSC Document 49-1 Filed 05/02/14 Page 1 of 2
A copy of this checklist is available at the website for the USCA, 11th Circuit at www.ca11.uscourts.gov Effective on December 1, 2013, the new fee to file an appeal will increase from $455.00 to $505.00.
CIVIL APPEALS JURISDICTION CHECKLIST
1. Appealable Orders: Courts of Appeals have jurisdiction conferred and strictly limited by statute:
(a) Appeals from final orders pursuant to 28 U.S.C. § 1291: Only final orders and judgments of district courts, or final orders of bankruptcy courts which have been appealed to and fully resolved by a district court under 28 U.S.C.§ 158, generally are appealable. A final decision is one that “ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.” Pitney Bowes, Inc. v. Mestre, 701 F.2d 1 365, 1 368 ( 11th Ci r. 1 983). A magistrate judge’s report and recommendation is not final and appealable until judgment thereon is entered by a district court judge. 28 U.S.C. § 636(c).
(b) In cases involving multiple parties or multiple claims, a judgment as to fewer than all parties or all claims is not a final, appealable decision unless the district court has certified the judgment for immediate review under Fed.R.Civ.P. 54(b). Williams v. Bishop, 732 F.2d 885, 885- 86 (11th Cir. 1984). A judg ment which resolves all issues except matters, such as attorneys’ fees and costs, that are collateral to the merits, is immediately appealable. Budinich v. Becton Dickinson & Co., 486 U.S.196, 201, 108 S.Ct. 1717, 1721-22, 100 L .Ed.2d 178 (1988); LaChance v. Duffy’s Draft House, Inc., 146 F.3d 832, 837 (11th Cir. 1998).
(c) Appeals pursuant to 28 U.S.C. § 1292(a): Appeals are permitted from orders “granting, continuing, modifying, refusing or dissolving injunctions or refusing to dissolve or modify injunctions . . .” and from “[i]nterlocutory decrees . . . determining the rights and liabilities of parties to admiralty cases in which appeals from final decrees are allowed.” Interlocutory appeals from orders denying temporary restraining orders are not permitted.
(d) Appeals pursuant to 28 U.S.C. § 1292(b) and Fed.R.App.P. 5: The certification specified in 28 U.S.C. § 1292(b) must be obtained before a petition for permission to appeal is filed in the Court of Appeals. The district court’s denial of a motion for certification is not itself appealable.
(e) Appeals pursuant to judicially created exceptions to the finality rule: Limited exceptions are discussed in cases including, but not limited to: Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546, 69S.Ct. 1221, 1225-26, 93 L.Ed. 1528 (1949); Atlantic Fed. Sav. & Loan Ass’n v. Blythe Eastman Paine Webber, Inc., 890 F.2d 371, 376 (11th Cir. 1989); Gillespie v. United States Steel Corp., 379 U.S. 148, 157, 85 S.Ct. 308, 312, 13 L.Ed.2d 199 (1964). Rev.: 4/04

Case 2:13-cv-00079-WKW-CSC Document 49-1 Filed 05/02/14 Page 2 of 2
2. Time for Filing: The timely filing of a notice of appeal is mandatory and jurisdictional. Rinaldo v. Corbett, 256 F.3d 1276, 1278 (11th Cir. 2001). In civil cases, Fed.R.App.P. 4(a) and (c) set the following time limits:
(a) Fed.R.App.P. 4(a)(1): A notice of appeal in compliance with the requirements set forth in Fed.R.App.P. 3 must be filed in the district court within 30 days after the entry of the order or judgment appealed from. However, if the United States or an officer or agency thereof is a party, the notice of appeal must be filed in the district court within 60 days after such entry. THE NOTICE MUST BE RECEIVED AND FILED IN THE DISTRICT COURT NO LATER THAN THE LAST DAY OF THE APPEAL PERIOD – no additional days are provided for mailing. Special filing provisions for inmates are discussed below.
(b) Fed.R.App.P. 4(a)(3): “If one party timely files a notice of appeal, any other party may file a notice of appeal within 14 days after the date when the first notice was filed, or within the time otherwise prescribed by this Rule 4(a), whichever period ends later.”
(c) Fed.R.App.P. 4(a)(4): If any party makes a timely motion in the district court under the Federal Rules of Civil Procedure of a type specified in this rule, the time for appeal for all parties runs from the date of entry of the order disposing of the last such timely filed motion.
(d) Fed.R.App.P. 4(a)(5) and 4(a)(6): Under certain limited circumstances, the district court may extend the time to file a notice of appeal. Under Rule 4(a)(5), the time may be extended if a motion for an extension is filed within 30 days after expiration of the time otherwise provided to file a notice of appeal, upon a showing of excusable neglect or good cause. Under Rule 4(a)(6), the time may be extended if the district court finds upon motion that a party did not timely receive notice of the entry of the judgment or order, and that no party would be prejudiced by an extension.
(e) Fed.R.App.P. 4(c): If an inmate confined to an institution files a notice of appeal in either a civil case or a criminal case, the notice of appeal is timely if it is deposited in the institution’s internal mail system on or before the last day for filing. Timely filing may be shown by a declaration in compliance with 28 U.S.C. § 1746 or a notarized statement, either of which must set forth the date of deposit and state that first-class postage has been prepaid.
3. Format of the notice of appeal: Form 1, Appendix of Forms to the Federal Rules of Appellate Procedure, is a suitable format. See also Fed.R.App.P. 3(c). A pro se notice of appeal must be signed by the appellant.
4. Effect of a notice of appeal: A district court loses jurisdiction (authority) to act after the filing of a timely notice of appeal, except for actions in aid of appellate jurisdiction or to rule on a timely motion of the type specified in Fed.R.App.P. 4(a)(4).

 
 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION

JANE DOE #1, et al., Plaintiffs,
v. RICH HOBSON, et al.,
Defendants.

)

)

)

)

) CASE NO. 2:13-CV-79-WKW

)

[WO]

)

)

)

MEMORANDUM OPINION AND ORDER

Before the court is Plaintiffs’ motion to proceed under pseudonyms, (Doc.

# 4), which has been fully briefed, (Docs. # 5, 29, and 30). A summary of the facts

and legal questions at stake in this litigation can be found in the court’s recent

memorandum opinion and order denying Defendants’ motion to dismiss. (See

Doc. # 49, at 3–8.)

I. LEGAL STANDARD

Ordinarily, litigants are required to disclose their names if they wish to

initiate a civil case in federal court. See Fed. R. Civ. P. 10(a). But “[a] party may

proceed anonymously in a civil suit in federal court by showing that he has a

substantial privacy right which outweighs the customary and constitutionally-

embedded presumption of openness in judicial proceedings.” Plaintiff B v.

Francis, 631 F.3d 1310, 1315–16 (11th Cir. 2011) (internal quotation marks and

citations omitted). “It is the exceptional case in which a plaintiff may proceed under a fictitious name.” Doe v. Frank, 951 F.2d 320, 323 (11th Cir. 1992). A court should consider “all the circumstances of a given case,” including, but not limited to, whether the plaintiff is challenging governmental activity, is required to disclose “information of the utmost intimacy,” or is compelled to admit to engaging in conduct that could put her at risk of criminal prosecution. Id. (citing Doe v. Stegall, 653 F.2d 180, 185 (5th Cir. 1981)).
II. ARGUMENTS Plaintiffs contend that if they are not allowed to proceed under pseudonyms, “it would be extremely difficult for [their] claims to be prosecuted and unlikely that they or the class of affected individuals that they seek to represent will be able to vindicate their rights” in light of the risks associated with being identified as “unlawfully present aliens.” (Doc. # 5, at 4.) Plaintiffs are fearful of the possibility of criminal prosecution or deportation, the attachment of social stigma, the annoyance of private harassment, and the potential threat of violence. Plaintiffs emphasize that their request does not prejudice Defendants because their case “turns solely on the constitutionality of a law.” (Doc. # 5, at 4.) Defendants oppose the motion to the extent that Plaintiffs may be allowed to withhold their identities from Defendants. Defendants claim that they will need to know Defendants’ names in order to test standing, to conduct discovery, and cross
2

examine their evidence.1 To the extent that Plaintiffs wish to withhold their names from the public, Defendants encourage the court to take “a cautious approach” in granting or denying leave to proceed pseudonymously. (Doc. # 29, at 1.) That is, Defendants do not firmly oppose or support Plaintiffs’ request to withhold their identities from the public; they simply remain skeptical of Plaintiffs’ entitlement to claim a privacy interest in their immigration statuses.
With regard to Defendants’ insistence upon learning Plaintiffs’ identities, Plaintiffs reply that Defendants “are not categorically entitled to discover Plaintiffs’ identities,” (Doc. # 30, at 7), and Plaintiffs argue that no case law cited by Defendants offers a standard for addressing the particular issue of disclosing one’s identity to the opposing party. (See Doc. # 30, at 8–9.) Plaintiffs assert that if Defendants really need to know their identities as this case proceeds, then “the [c]ourt can evaluate this issue through a future motion by Plaintiffs for a protective order under which Plaintiffs’ identities might be revealed to Defendants for limited purposes on a strictly confidential basis.” (Doc. # 30, at 8.)
In support of the assertion that Defendants do not need or have the right to learn Plaintiffs’ identities, Plaintiffs cite as persuasive authority Lozano v. City of Hazleton, 496 F. Supp. 2d 477, 510 (M.D. Pa. 2007), aff’d in part, vacated in part,
1 The court already has concluded that, assuming the veracity of the allegations in the complaint and in Plaintiffs’ declaration testimonies, Plaintiffs have standing to bring their suit. (See Doc. # 49.) But standing remains relevant at all times during a case’s prosecution, see Fed. R. Civ. P. 12(h)(3), and Defendants’ contentions are not mooted by the initial ruling on standing.
3

620 F.3d 170 (3d Cir. 2010), cert. granted, judgment vacated sub nom. City of Hazleton, Pa. v. Lozano, 131 S. Ct. 2958, 180 L. Ed. 2d 243 (U.S. 2011), and aff’d in part, rev’d in part, 724 F.3d 297 (3d Cir. 2013).2 In Lozano, the court found that the defendant, a municipality whose ordinances were challenged by several plaintiffs including two persons who had “uncertain immigration status,” id. at 505, “d[id] not have a strong need to obtain the identity of the anonymous plaintiffs in order to defend against [the] suit,” id. at 510. In support of its finding, the court cited only Topo v. Dhir, 210 F.R.D. 76, 79 (S.D.N.Y. 2002), for its proposition that a plaintiff may refuse to divulge information on her immigration status when the status is not germane to her suit. Lozano, 496 F. Supp. 2d at 510– 11.3 The court concluded that the plaintiffs’ admissions that they lacked authority to be present or to work in the United States were adequate to satisfy the defendant’s curiosity about standing. Id. at 511. The court accepted the plaintiffs’ representations as true because they were admissions against interest that could lead to deportation if disclosed to immigration enforcement authorities. The Lozano court also found it particularly compelling that defense counsel appeared to
2 The district court’s ruling concerning the plaintiff’s entitlement to anonymity was not disturbed in the subsequent decisions of the Third Circuit.
3 Topo involved a plaintiff who was not a U.S. Citizen who alleged that defendants violated the Alien Tort Claims Act. 210 F.R.D. at 77. The defendants did not dispute that the plaintiff was not a U.S. citizen, and the court concluded that the plaintiff’s allegation that she was a citizen of another country was adequate to resolve the question of her standing as an “alien.” Id. at 78. In other words, the plaintiff’s immigration status was irrelevant.
4

be “determined to expose [the plaintiffs’] legal status to federal authorities,” which could have “cause[d] plaintiffs to abandon their attempt to secure rights guaranteed them under federal law.” Id.
Upon review of Lozano, the court concludes that it is somewhat distinguishable, and even if it were squarely on point, it would be imprudent to follow its precedent. Eventually, this case will be decided on the merits. The allegation in the complaint that Plaintiffs lack documents proving their authorization to be present in the United States, (see Doc. # 1, at 12), and Jane Doe #1’s testimony that she was told by authorities that she lacked permission to remain in the country, (see Doc. # 5-1), are sufficient to support a finding of standing and to survive the motion to dismiss, (see Docs. # 43, 49), but the court agrees with Defendants that ultimately, Defendants are not required to accept Plaintiffs’ allegations and testimonies as truth. And the fact that this case will present mostly legal questions rather than factual ones makes no difference where a defendant questions the veracity of the facts alleged to support a plaintiff’s standing.
III. CONCLUSION Therefore, upon consideration of the parties’ arguments and the relevant legal authorities furnished therein, it is ORDERED that Plaintiffs’ motion for leave to proceed under pseudonyms (Doc. # 4) is GRANTED to the extent that Plaintiffs
5

may withhold their true identities from the public and proceed as Jane Doe #1, etc. Plaintiffs’ motion is DENIED, however, to the extent that Plaintiffs seek to withhold their identities from Defendants.
It is further ORDERED the parties should confer, and if possible, file a joint motion for protective order that satisfies Plaintiffs’ concerns for confidentiality.
DONE this 20th day of May, 2014. /s/ W. Keith Watkins
CHIEF UNITED STATES DISTRICT JUDGE
6

 
 Case 2:13-cv-00079-WKW-CSC Document 67-1 Filed 10/10/14 Page 1 of 7

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF ALABAMA
NORTIIERN DIVISION

JANE DOE #1, et al., onbehalf of themselves and all others similarly situated

Plaintiffs,

V.

Case No. 2: 13 cv7 9 -WKW-CSC

RICH HOBSON, in his oflicial capacity as Administrative Director of the Courts and head
of the Alabama Administrative Office of
Courts, et al.,

Defendants.

SETTLEMENT AGREEMENT
This Settlement Agreement ("Agreement") is entered into between the following parties ("the Parties"): Plaintiffs Jane Doe # l,JaneDoe#2, John Doe # 1, and John Doe #2 ("Plaintiffs"); Plaintiffs' counsel American Civil Liberties Union Foundation, American Civil Liberties Union of Alabama Foundation, National lmmigration Law Center, and Southem Poverty Law Center ("Plaintiffs' Counsel"); and Defendants Rich Hobson, in his official capacity as Administrative Director of Courts, and Spencer Collier, in his offrcial capacity as Secretary of the Alabama Law Enforcement Agency ("Defendants").
Recitals
Whereas the Plaintiffs filed this action against the Defendants challenging the constitutionality of Ala. Code (1975) section 3l-13-32, including provisions requiring the collection and publication of certain information, and
Whereas Defendants aver as follows:
(1) Federal policies govem the use of information obtained from federal law enforcement databases,
(2) The federal government informed Defendant Collier that in its view, publication
of the inforrnation pursuant to the challenged statute would be an improper use of
the information, and
(3) Defendant Collier thus determined that compliance with the challenged statute would jeopardize security clearances and impair cooperation between State and

Case 2:13-cv-00079-WKW-CSC Document 67-1 Filed 10/10/14 Page 2 of 7
federal law enforcement officials, which cooperation is critical to State law enforcement activities;
The parties enter into the following Agreement:
Agreement
In consideration of the mutual execution of this Agreement and the releases and promises made in the Agreement by the Parties, the Parties agree as follows:
1. The Adminisffative Offrce of Courts ("AOC"), acting through the Administrative
Director of Courts Rich Hobson, hereby adopts the following policy (the "AOC Policy"): the AOC shall treat as Law Enforcement Sensitive and shall maintain the confidentiality of all data collected and transmitted to it pursuant to Ala. Code (1975) section 3l-13-32; and shall forward said data only to the Alabama Law Enforcement Agency and to no other entity or individual except as otherwise required by federal law.
2. The AlabamaLaw Enforcement Agency ("ALEA"), acting through its Secretary Spencer
Collier, hereby adopts the following policy (the "ALEA Policy"): the ALEA shall not publish in a manner available to the public the information forwarded to it by the Administrative Office of the Courts pursuant to Ala. Code (1975) section 3l-13-32. ALEA shall keep said information confidential and shall treat it as Law Enforcement Sensitive. ALEA shall use the information only for legitimate Law Enforcement Purposes. ALEA shall not disclose the immigration information sent to it pursuant to Ala. Code (1975) section 3l-13-32 to any individual or entity outside of ALEA, except for the U.S. Department of Homeland Security or its successor, or upon request from a federal law enforcement agency.
3. If the AOC wishes to amend in any way the AOC Policy within the five-year term of this
Agreement, and assuming any required notice has been provided by the Plaintiffs' Counsel pursuant to paragraphs 12 and 13 below, the AOC shall provide advance notice (the "AOC Notice") to Plaintiffs' Counsel. The AOC Notice shall describe all material changes to be made to the AOC Policy. The AOC Notice shall be provided to Plaintiffs' Counsel at the following addresses:
Legal Director ACLU of Alabama PO Box 6179 Montgomery AL 36106-0179
Director, Immigrants' Rights Project ACLU Foundation 39 Drumm Street
San Francisco CA 94lll

Case 2:13-cv-00079-WKW-CSC Document 67-1 Filed 10/10/14 Page 3 of 7
Managing Attorney National Immigration Law Center 3435 Wilshire Boulevard, Suite 2850 Los Angeles CA 90010
Legal Director Southern Poverty Law Center 400 Washington Avenue Montgomery AL 36104
4. No change to the AOC Policy shall be effective fewer than seventy-seven (77) days from
when the AOC Notice has been mailed to Plaintiffs' Counsel by first-class U.S. Mail, or by any other method that will arrive to the specified address within two business days.
5. If the ALEA wishes to amend in any way the ALEA Policy within the five-year term of this
Agreement, and assuming any required notice has been provided by the Plaintiffs' Counsel pursuant to paragraphs 12 and 13 below, the ALEA shall provide advance notice (the "ALEA Notice") to Plaintiffs' Counsel. The ALEA Notice shall describe all material changes to be made to the A,LEA Policy. The ALEA Notice shall be provided to Plaintiffs' Counsel at the following addresses:
Legal Director ACLU of Alabama PO Box 6179 Montgomery AL 36106-0179
Director, Immigrants' Rights Project ACLU Foundation 39 Drumm Street
San Francisco CA 94lll
Managing Attorney National Immigration Law Center 3435 Wilshire Boulevard, Suite 2850 Los Angeles CA 90010
Legal Director Southern Poverty Law Center 400 Washington Avenue Montgomery AL 36104
6. No change to the ALEA Policy shall be effective fewer than seventy-seven (77) days
from when the ALEA Notice has been mailed to Plaintiffs' Counsel by first-class U.S. Mail, or by any other method that will arrive to the specified address within two business
days.

Case 2:13-cv-00079-WKW-CSC Document 67-1 Filed 10/10/14 Page 4 of 7

7. Plaintiffs and Plaintiffs' Counsel hereby waive any claim for costs or fees arising from
this case, and no enforcement action or future related action shall be used to reinstate any
claim for costs or fees arising from this case.

8. Plaintiffs and Plaintiffs' Counsel hereby waive any claim for costs or fees arising from any effort to enforce any provision of this Agreement.
g. This Agreement is enforceable by any one or more of the Parties, and no other individual
or entity.

10. The Parties stipulate that the U.S. District Court for the Middle District of Alabama shall retain jurisdiction to enforce the terms of this agreement. The effectiveness of this stipulation is conditioned on the Court's entry of an order retaining jurisdiction.

11. This Agreement shall remain in effect for five (5) years from the date of the Court entering the accompanying order retaining jurisdiction.

12. Should anyone other than Rich Hobson assume the office of Administrative Director of
Courts, Plaintiffs' Counsel shall provide a copy of this Agreement and the related Court Order to that individual within sixty (60) days of that person taking office.

13. Should anyone other than Spencer Collier assume the office of Secretary of ALEA,
Plaintiffs' Counsel shall provide a copy of this Agreement and the related Court Order to that individual within sixty (60) days of that person taking office.

14.

This Agreement is the entire, final, and complete agreement of the Parties relating to the subject of this Agreement, and supersedes and replaces all prior or existing written and oral agreements between the Parties or their representatives relating thereto. No amendment or modification of this Agreement shall be effective unless in a writing
executed by all Parties whose interests are affected by the modification.

15. If any provision of this Agreement is held to be invalid or unenforceable, all remaining
provisions will continue in fullforce and effect.

16.

This Agreement may be executed in multiple counterparts, all of which shall be deemed
originals, and with the same effect as if all Parties had signed the same document. All of
such counterparts shall be construed together with and shall constitute one Agreement, but in making proof, it shall only be necessary to produce one such counterpart (with multiple copies of the signature pages to show signatures, as needed). A facsimile
transmission or photocopy shall be as valid and enforceable as an original.

The Parties, by their signatures below, have executed this Agreement and agree to be bound by it.

Case 2:13-cv-00079-WKW-CSC Document 67-1 Filed 10/10/14 Page 5 of 7

I oerrn: october 6,zot4
DATED: October 6,2A14
DATED: ocrober-L -, 2014
DAIED: October 6,2014
DATED: October_,2014 DATED: O"trA"r-L
-,2014 DATED: October_,z}l4

\. By:

b.0c41t-*L,[{

Randall Marshall

On behalf of the ACLU of Alabama
Foundation and'Plaintiffs Jane Doe #l &z and John Doe# I &2

On behalf of the ACLU Foundation
and Plaintiffs Jane Doe #l &,2 and Jolrn Doe # I &2

., 144a C, fr4p

Karen C. Turnlin

On behalf of the National Imrnigratiolt Larv

Center and Plaintiffs Jane Doe #l &2 and

JolrnDoe#l&.2

d^ *r,

l*/U

Sam Brooke

On behalf of the Southern Poverty Larv
Center and Plaintiffs Jane Doe #l & 2 and John Doe # I &2

By, Rich Hobson Adrn inistrative Director of Courts

Secretary, Alabama Larv Enforcement Agency
By: Luther Strange A labanra Attorney General

Case 2:13-cv-00079-WKW-CSC Document 67-1 Filed 10/10/14 Page 6 of 7

DATED: October-,2014
DATED: October-,2014
DATED: October-,2014 DATED: October-,2014
DATED: october-l 9 ,2014
DATED: October-,2074 DATED: October-,2014

By: Randall Marshall On behalf of the ACLU of Alabama
Foundation and Plaintiffs Jane Doe #l &2 andJohnDoe#l&2
By: Justin Cox On behalf of the ACLU Foundation
and Plaintiffs Jane Doe #l &2 and JohnDoe#l&2
By: Karen C. Tumlin On behalf of the National Immigration Law
Center and Plaintiffs Jane Doe #l &2 and
JohnDoe#l&,2
By: Sam Brooke On behalf of the Southern Poverty Law
Center and Plaintiffs Jane Doe #l &2 and JohnDoe#l&2
Rich Hobson Administrative Director
By: Spencer Collier Secretary, Alabama Law Enforcement Agency
By: Luther Strange Alabama Attorney General

Case 2:13-cv-00079-WKW-CSC Document 67-1 Filed 10/10/14 Page 7 of 7

DATED: October-,2014

By: Randall Marshall On behalf of the ACLU of Alabama
Foundation and Plaintiffs Jane Doe #l &2 and John Doe# I &2

DATED: October-,2014

By: Justin Cox On behalf of the ACLU Foundation
and Plaintiffs Jane Doe #l &2 and JohnDoe#l&2

DATED: October-,2014

By:
Karen C. Tumlin On behalf of the National Immigration Law
Center and Plaintiffs Jane Doe #l &2 and JohnDoe#l&.2

DATED: October-,2014

BY: Sam Brooke On behalf of the Southern Poverty Law
Center and Plaintiffs Jane Doe #l & 2 and JohnDoe#l&2

DATED: October-,2014

BY: Rich Hobson Administrative Director of Courts

DATED: October-,2014

BY:
Spencer Collier Secretary, Alabama Law Enforcement Agency

DATED: October aI

,20t4 By' S\t*\f -LLut)h"e0r Si"tr-acnge
Alabama Attorney General

 
 Case: 2:13-cv-79 As of: 10/16/2014 04:22 PM CDT 1 of 11
U.S. District Court Alabama Middle District (Montgomery) CIVIL DOCKET FOR CASE #: 2:13−cv−00079−WKW−CSC

CLOSED

Doe 1, et al v. Hobson, et al Assigned to: Chief Judge William Keith Watkins Referred to: Honorable Judge Charles S. Coody Cause: 42:1983 Civil Rights Act
Plaintiff

Date Filed: 02/07/2013 Date Terminated: 10/14/2014 Jury Demand: None Nature of Suit: 950 Constitutional − State Statute Jurisdiction: Federal Question

Jane Doe 1 on behalf of herself and all others similarly situated

represented by Cecillia D. Wang ACLU Foundation Immigrants Rights Project 39 Drumm Street San Francisco, CA 94111 415−343−0775 Fax: 415−395−0950 Email: cwang@aclu.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Justin B. Cox American Civil Liberties Union Foundation 1989 College Avenue NE Atlanta, GA 30317 404−221−5854 Email: jcox@aclu.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Karen Cassandra Tumlin National Immigration Law Center 3435 Wilshire Blvd. − Ste 2850 Los Angeles, CA 90010 213−674−2909 Email: tumlin@nilc.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Kristi L. Graunke Southern Poverty Law Center 1989 College Avenue NE Atlanta, GA 30317 404−521−6700 Email: kristi.graunke@splcenter.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Linton Joaquin NATIONAL IMMIGRATION LAW CENTER 3435 Wilshire Blvd − Ste 2850 Los Angeles, CA 90010 213−674−2909 Email: joaquin@nilc.org LEAD ATTORNEY PRO HAC VICE

Case: 2:13-cv-79 As of: 10/16/2014 04:22 PM CDT 2 of 11

ATTORNEY TO BE NOTICED

Nora Preciado National Immigration Law Center 3435 Wilshire Boulevard; Suite 2850 Los Angeles, CA 90010 213−639−3900 Fax: 213−639−3911 Email: preciado@nilc.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Omar C Jadwat American Civil Liberties Union Foundation 125 Broad Street − 18th Floor New York, NY 10004 212−549−2620 Email: ojadwat@aclu.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Samuel J Brooke Southern Poverty Law Center 400 Washington Avenue Montgomery, AL 36104 334−956−8200 Fax: 334−956−8481 Email: samuel.brooke@splcenter.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sigfredo Rubio Rubio Law Firm, PC 438 Carr Ave − Ste 1 Birmingham, AL 35209 205−443−7858 Fax: 205−443−7853 Email: frubio@rubiofirm.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Randall C Marshall ACLU of Alabama Foundation, Inc. P.O. Box 6179 Montgomery, AL 36106−0179 334−265−2754 Email: rmarshall@aclualabama.org ATTORNEY TO BE NOTICED

Plaintiff
Jane Doe 2 on behalf of herself and all others similarly situated

represented by Cecillia D. Wang (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Justin B. Cox (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 2:13-cv-79 As of: 10/16/2014 04:22 PM CDT 3 of 11

Karen Cassandra Tumlin (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Kristi L. Graunke (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Linton Joaquin (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Nora Preciado (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Omar C Jadwat (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Samuel J Brooke (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sigfredo Rubio (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Randall C Marshall (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
John Doe 1 on behalf of himself and all others similarly situated

represented by Cecillia D. Wang (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Justin B. Cox (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Karen Cassandra Tumlin (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Kristi L. Graunke (See above for address) LEAD ATTORNEY

Case: 2:13-cv-79 As of: 10/16/2014 04:22 PM CDT 4 of 11

ATTORNEY TO BE NOTICED

Linton Joaquin (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Nora Preciado (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Omar C Jadwat (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Samuel J Brooke (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sigfredo Rubio (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Randall C Marshall (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
John Doe 2 on behalf of himself and all others similarly situated

represented by Cecillia D. Wang (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Justin B. Cox (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Karen Cassandra Tumlin (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Kristi L. Graunke (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Linton Joaquin (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Nora Preciado

Case: 2:13-cv-79 As of: 10/16/2014 04:22 PM CDT 5 of 11
(See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Omar C Jadwat (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Samuel J Brooke (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sigfredo Rubio (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Randall C Marshall (See above for address) ATTORNEY TO BE NOTICED

V.
Defendant
Rich Hobson in his official capacity as Administrative Director of Courts

represented by James William Davis State of Alabama Office of the Attorney General 501 Washington Ave. Montgomery, AL 36130 334−353−1356 Fax: 334−353−8440 Email: jimdavis@ago.state.al.us LEAD ATTORNEY ATTORNEY TO BE NOTICED
Laura Elizabeth Howell Office of the Alabama Attorney General 501 Washington Ave Montgomery, AL 36130 334−353−1018 Fax: 334−353−8440 Email: lhowell@ago.state.al.us LEAD ATTORNEY ATTORNEY TO BE NOTICED
Margaret Lindsey Fleming State of Alabama Office of the Attorney General P O Box 300152 Montgomery, AL 36130 334−353−3738 Fax: 334−353−8440 Email: mfleming@ago.state.al.us LEAD ATTORNEY ATTORNEY TO BE NOTICED
William G. Parker , Jr. Office of the Attorney General P O Box 300152 Montgomery, AL 36130−0152

Case: 2:13-cv-79 As of: 10/16/2014 04:22 PM CDT 6 of 11

334−242−7997 Fax: 334−353−8440 Email: Wparker@ago.state.al.us LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Spencer Collier in his official capacity as Director of the Alabama Department of Homeland Security

represented by James William Davis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Laura Elizabeth Howell (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Margaret Lindsey Fleming (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

William G. Parker , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 02/07/2013 02/07/2013 02/07/2013
02/07/2013 02/07/2013

# Docket Text
1 COMPLAINT against Spencer Collier and Rich Hobson ( Filing fee $ 350.00 receipt number 4602025783.), filed by Jane Doe 1, Jane Doe 2, John Doe 1, and John Doe 2. (Attachments: # 1 Exhibit 1, # 2 Filing Fee Receipt)(scn, ) (Entered: 02/08/2013)
2 Plaintiffs' MOTION for Class Certification, by Jane Doe 1, John Doe 1, Jane Doe 2, and John Doe 2. (scn, ) (Entered: 02/08/2013)
3 BRIEF/MEMORANDUM in Support of 2 Plaintiffs' MOTION for Class Certification, filed by Jane Doe 1, John Doe 1, Jane Doe 2, and John Doe 2. (Attachments: # 1 Exhibit 1 − Declaration Jane Doe 1, # 2 Exhibit 2 − Declaration Jane Doe 2, # 3 Exhibit 3 − Declaration of John Doe 1, # 4 Exhibit 4 − Declaration John Doe 2, # 5 Exhibit 5 − US Census Bureau Quickfacts, # 6 Exhibit 6 − Pew Center Report Excerpts, # 7 Exhibit 7 − AL Unified Jud System 2011 Report Excerpt, # 8 Exhibit 8 − Innis Jimenez Declaration, # 9 Exhibit 9 − Natl Immigration Law Center Report, # 10 Exhibit 10 − SPLC Report, # 11 Exhibit 11 − Joaquin Declaration, # 12 Exhibit 12 − Cox Declaration, # 13 Exhibit 13 − Brooke Declaration, # 14 Exhibit 14 − Preciado Declaration)(scn, ) (Entered: 02/08/2013)
4 Plaintiffs' MOTION for Leave to Proceed Under Pseudonyms, by Jane Doe 1, John Doe 1, Jane Doe 2, and John Doe 2. (Attachments: # 1 Proposed Order)(scn, ) (Entered: 02/08/2013)
5 BRIEF/MEMORANDUM in Support of 4 Plaintiffs' MOTION for Leave to Proceed Under pseudonyms, filed by Jane Doe 1, John Doe 1, Jane Doe 2, John Doe 2. (Attachments: # 1 Exhibit 1 − Declaration Jane Doe 1, # 2 Exhibit 2 − Declaration Jane Doe 2, # 3 Exhibit 3 − Declaration of John Doe 1, # 4 Exhibit 4 − Declaration John Doe 2, # 5 Exhibit 5 − July Oct 2012 Notices, # 6 Exhibit 6 − NILC Racial Profiling after HB 56, # 7 Exhibit 7 − SPLC Alabama's Shame, # 8 Exhibit 8 − Transcript This American Life, # 9 Exhibit 9 − Innis Jimenez Declaration, # 10 Exhibit 10 − Burkett Decatur Daily, # 11 Exhibit 11 − Order HICA v Bentley, # 12 Exhibit 12 − Order Loder v McKinney, # 13 Exhibit 13 − Order Cent Al v. Magee, # 14 Exhibit 14 − Johnson NY Times, # 15 Exhibit 15 − CNN, # 16 Exhibit 16 − Brooke Declaration)(scn, ) (Entered: 02/08/2013)

Case: 2:13-cv-79 As of: 10/16/2014 04:22 PM CDT 7 of 11

02/07/2013 02/07/2013 02/07/2013 02/07/2013 02/07/2013 02/07/2013 02/07/2013 02/07/2013 02/07/2013 02/07/2013 02/07/2013 02/08/2013 02/08/2013
02/08/2013
02/26/2013 02/26/2013

6 Motion for Kristi L. Graunke to Appear Pro Hac Vice ( Filing fee $ 50.00 receipt number 4602025873.) by Jane Doe 1, John Doe 1, Jane Doe 2, and John Doe 2. (Attachments: # 1 USDC Cert of Good Standing, # 2 Proposed Order, # 3 PHV Filing Fee)(scn, ) (Entered: 02/08/2013)
7 Motion for Justin B. Cox to Appear Pro Hac Vice by Jane Doe 1, John Doe 1, Jane Doe 2, and John Doe 2. (Attachments: # 1 USDC Cert of Good Standing, # 2 Proposed Order)(scn, ) (Entered: 02/08/2013)
8 Motion for Cecillia D. Wang to Appear Pro Hac Vice by Jane Doe 1, John Doe 1, Jane Doe 2, and John Doe 2. (Attachments: # 1 USDC Cert of Good Standing, # 2 Proposed Order)(scn, ) (Entered: 02/08/2013)
9 Motion for Omar C. Jadwat to Appear Pro Hac Vice by Jane Doe 1, John Doe 1, Jane Doe 2, and John Doe 2. (Attachments: # 1 USDC Cert of Good Standing, # 2 Proposed Order)(scn, ) (Entered: 02/08/2013)
10 Motion for Nora Preciado to Appear Pro Hac Vice by Jane Doe 1, John Doe 1, Jane Doe 2, and John Doe 2. (Attachments: # 1 USDC Cert of Good Standing, # 2 Proposed Order)(scn, ) (Entered: 02/08/2013)
11 Motion for Linton Joaquin to Appear Pro Hac Vice by Jane Doe 1, John Doe 1, Jane Doe 2, and John Doe 2. (Attachments: # 1 USDC Cert of Good Standing, # 2 Proposed Order)(scn, ) (Entered: 02/08/2013)
12 Motion for Karen C. Tumlin to Appear Pro Hac Vice by Jane Doe 1, John Doe 1, Jane Doe 2, and John Doe 2. (Attachments: # 1 USDC Cert of Good Standing, # 2 Proposed Order)(scn, ) (Entered: 02/08/2013)
13 Filing fee re 7 , 8 , and 9 Motions (Cox, Wang, Jadwad) for Admission PHV: $ 150.00, receipt number 4602025874 (scn, ) (Entered: 02/08/2013)
14 Filing fee re 10 , 11 , and 12 Motions (Preciado, Joaquin, Tumlin) for Admission PHV: $ 150.00, receipt number 4602025875 (scn, ) (Entered: 02/08/2013)
15 Corporate/Conflict Disclosure Statements by Jane Doe 1, John Doe 1, Jane Doe 2, and John Doe 2. (scn, ) (Entered: 02/08/2013)
16 Summons Issued as to Spencer Collier and Rich Hobson; returned to Counsel for personal service. (scn, ) (Entered: 02/08/2013)
17 Case Reassigned to Chief Judge William Keith Watkins. Honorable Judge W. Harold Albritton, III no longer assigned to the case. (scn, ) (Entered: 02/08/2013)
18 AFFIDAVIT of Service for Complaint; Motion for Class Certification with supporting documents; Motion to Proceed Under Pseudonyms with supporting documents; Motions for Admission Pro Hac Vice for Cecilia D. Wang, Omar C. Jadwat, Justin B. Cox, Kristi L. Graunke, Linton Joaquin, Karen C. Tumlin, and Nora Preciado; and Conflict Disclosure Statements for Plaintiffs Jane Doe #1, Jane Doe #2, John Doe #1, and John Doe #2 served on Scott Hoyem, on behalf of DEFENDANT RICH HOBSON on 02/07/2013, filed by Jane Doe 1, John Doe 1, Jane Doe 2, John Doe 2. (Brooke, Samuel) (Entered: 02/08/2013)
19 AFFIDAVIT of Service for Complaint; Motion for Class Certification with supporting documents; Motion to Proceed Under Pseudonyms with supporting documents; Motions for Admission Pro Hac Vice for Cecilia D. Wang, Omar C. Jadwat, Justin B. Cox, Kristi L. Graunke, Linton Joaquin, Karen C. Tumlin, and Nora Preciado; and Conflict Disclosure Statements for Plaintiffs Jane Doe #1, Jane Doe #2, John Doe #1, and John Doe #2 served on Shirrell Roberts, on behalf of DEFENDANT SPENCER COLLIER on 02/07/2013, filed by Jane Doe 1, John Doe 1, Jane Doe 2, John Doe 2. (Brooke, Samuel) (Entered: 02/08/2013)
20 MOTION to Dismiss (State Defendant's Motion to Dismiss or in the Alternative for Summary Judgment) by Spencer Collier, Rich Hobson. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Davis, James) (Entered: 02/26/2013)
21 ORDER granting 6 , 7 , 8 , 9 , 10 , 11 , and 12 Motions for Leave to Appear Pro Hac Vice, as further set out. Signed by Chief Judge William Keith Watkins on 2/26/13. (scn, ) (Entered: 02/26/2013)

Case: 2:13-cv-79 As of: 10/16/2014 04:22 PM CDT 8 of 11

02/27/2013 02/28/2013
02/28/2013 03/04/2013
03/05/2013 03/06/2013 03/06/2013 03/08/2013 03/08/2013 03/15/2013 03/21/2013
03/21/2013 03/28/2013 04/04/2013

22 NOTICE of Appearance by Laura Elizabeth Howell on behalf of Spencer Collier, Rich Hobson (Howell, Laura) (Entered: 02/27/2013)
23 BRIEFING ORDER directing that, upon consideration of State Defendants' 20 Motion to Dismiss or in the Alternative for Summary Judgment, it is ORDERED that the motion be submitted without oral argument on March 28, 2013; further ORDERED that the plaintiffs file a response, which shall include a brief, on or before March 21, 2013; the defendants may file a reply brief on or before March 28, 2013, as further set out. Signed by Chief Judge William Keith Watkins on 2/28/13. (scn, ) (Entered: 02/28/2013)
24 GENERAL BRIEFING ORDER. Signed by Chief Judge William Keith Watkins on 2/28/13. (scn, ) (Entered: 02/28/2013)
25 ORDER directing that, upon consideration of the Doe Plaintiffs' 4 Motion for Leave to Proceed Under Pseudonyms, Defendants are ORDERED to file a response indicating whether they oppose the motion on or before March 8, 2013; if Defendants file an opposition, Plaintiffs may reply on or before March 15, 2013. Signed by Chief Judge William Keith Watkins on 3/4/13. (scn, ) (Entered: 03/04/2013)
26 Notice of Deficiency requiring filing of Corporate Disclosure/Conflict Statement sent to Rich Hobson and Spencer Collier. Corporate Disclosures due by 3/15/2013. (Attachments: # 1 Standing ORDER and sample format)(scn, ) (Entered: 03/05/2013)
27 Corporate/Conflict Disclosure Statement by Spencer Collier re 26 Notice of Deficiency requiring filing of Corporate Disclosure/Conflict Statement. (Howell, Laura) (Entered: 03/06/2013)
28 Corporate/Conflict Disclosure Statement by Rich Hobson re 26 Notice of Deficiency requiring filing of Corporate Disclosure/Conflict Statement. (Howell, Laura) (Entered: 03/06/2013)
29 RESPONSE to Motion re 4 MOTION for Leave to Proceed Under Pseudonyms filed by Spencer Collier, Rich Hobson. (Davis, James) Modified on 3/11/2013 to clarify the docket text (wcl, ). (Entered: 03/08/2013)
***Attorney Margaret Lindsey Fleming and William G. Parker, Jr for Spencer Collier and Rich Hobson added pursuant to 29 Response. (No pdf attached to this entry) (wcl, ) (Entered: 03/11/2013)
30 REPLY to Response to Motion re 4 MOTION to Proceed Under Pseudonyms filed by Jane Doe 1, John Doe 1, Jane Doe 2, John Doe 2. (Brooke, Samuel) (Entered: 03/15/2013)
31 RESPONSE in Opposition re 20 MOTION to Dismiss (State Defendant's Motion to Dismiss or in the Alternative for Summary Judgment) filed by Jane Doe 1, John Doe 1, Jane Doe 2, John Doe 2. (Attachments: # 1 Ex. 1 (Second Decl. of Jane Doe 1), # 2 Ex. 2 (Second Decl. of Jane Doe 2, # 3 Ex. 3 (Second Dec. of John Doe 1), # 4 Ex. 4 (Second Dec. of John Doe 2), # 5 Ex. 5 (2Q 2012 ADHS notice re Section 5), # 6 Ex. 6 (3Q 2012 ADHS notice re Section 5), # 7 Ex. 7 (AOC emails and form), # 8 Ex. 8 (Kim Chandler, Alabama Immigration Laws Scarlet Letter List So Far Has No Names, Birmingham News (Oct. 3, 2012)), # 9 Ex. 9 (Gov. Bentley press release), # 10 Ex. 10 (Phillip Rawls, Alabama Governor Wants Immigration Law Revision, Assoc. Press (May 17, 2012)), # 11 Ex. 11 (Cox Rule 56(d) Decl.))(Cox, Justin) (Entered: 03/21/2013)
32 MOTION In the Alternative, for Relief Under Rule 56(d) by Jane Doe 1, John Doe 1, Jane Doe 2, John Doe 2. (Cox, Justin) (Entered: 03/21/2013)
33 RESPONSE in Support re 20 MOTION to Dismiss (State Defendant's Motion to Dismiss or in the Alternative for Summary Judgment) filed by Spencer Collier, Rich Hobson. (Attachments: # 1 Exhibit Exhibit 1, # 2 Exhibit Exhibit 2, # 3 Exhibit Exhibit 3)(Davis, James) (Entered: 03/28/2013)
34 MOTION for Leave to File Surreply by Jane Doe 1, John Doe 1, Jane Doe 2, John Doe 2. (Attachments: # 1 Exhibit 1)(Graunke, Kristi) (Entered: 04/04/2013)

Case: 2:13-cv-79 As of: 10/16/2014 04:22 PM CDT 9 of 11

04/04/2013 04/19/2013 04/19/2013 06/04/2013 07/31/2013
08/14/2013 08/14/2013 08/19/2013 08/29/2013 09/05/2013 01/06/2014
01/07/2014 01/15/2014

BRIEF/MEMORANDUM in Support re 34 MOTION for Leave to File Surreply filed by Jane Doe 1, John Doe 1, Jane Doe 2, and John Doe 2. (No PDF document attached to this entry; see 34 Motion.)(scn, ) (Entered: 04/05/2013)
35 ORDER directing that the Plaintiffs' 34 motion for leave to file a surreply is GRANTED, as further set out. Signed by Chief Judge William Keith Watkins on 4/19/13. (scn, ) (Entered: 04/19/2013)
36 Plaintiff's Surreply (BRIEF in Opposition) re 20 MOTION to Dismiss and 33 Response in Support of 20 Motion, filed by Jane Doe 1, John Doe 1, Jane Doe 2, and John Doe 2. (Brooke, Samuel) Modified on 4/22/2013 to clean up docket text (scn, ). (Entered: 04/19/2013)
37 NOTICE of Change of Address by Justin B. Cox (Cox, Justin) (Entered: 06/04/2013)
38 (VACATED PURSUANT TO 43 ORDER DATED 01/06/2014) MEMORANDUM OPINION AND ORDERas follows: (1) The 20 Motion to Dismiss is GRANTED; and (2) The other pending motions (Docs. # 2 , 4 , 32 ) are DENIED as moot; If the Does can amend their complaint to cure the standing problems identified in this opinion, they may do so on or before 8/14/2013, at which time the parties may renew any other motions that remain relevant, as further set out in order. Signed by Chief Judge William Keith Watkins on 7/31/2013. (Attachments: # 1 Civil Appeals Checklist) (wcl, ) Modified on 1/6/2014 (scn, ). (Entered: 07/31/2013)
39 MOTION for Reconsideration re 38 Memorandum Opinion and Order, by Jane Doe 1, John Doe 1, Jane Doe 2, John Doe 2. (Attachments: # 1 Memorandum of Law)(Cox, Justin) Modified on 8/15/2013 to clean up docket text (scn, ). (Entered: 08/14/2013)
BRIEF/MEMORANDUM in Support re 39 MOTION for Reconsideration re 38 Memorandum Opinion and Order, filed by Jane Doe 1, John Doe 1, Jane Doe 2, John Doe 2. (NO PDF DOCUMENT ATTACHED TO THIS ENTRY; see 39 Motion.)(scn, ) (Entered: 08/15/2013)
40 ORDER directing that Defendant file a response to the 39 motion on or before August 29, 2013; Plaintiffs may file a reply within seven days after the date the response is filed. Signed by Chief Judge William Keith Watkins on 8/19/13. (scn, ) (Entered: 08/19/2013)
41 RESPONSE in Opposition re 39 MOTION for Reconsideration re 38 Memorandum Opinion and Order, Terminate Motions, Set Deadlines,,,,,, filed by Spencer Collier, Rich Hobson. (Davis, James) (Entered: 08/29/2013)
42 REPLY to Response to Motion re 39 MOTION for Reconsideration re 38 Memorandum Opinion and Order, Terminate Motions, Set Deadlines,,,,,, filed by Jane Doe 1, John Doe 1, Jane Doe 2, John Doe 2. (Cox, Justin) (Entered: 09/05/2013)
43 MEMORANDUM OPINION AND ORDER directing that: (1) Plaintiffs' motion for reconsideration (Doc. # 39 ) is GRANTED; (2) The Memorandum Opinion and Order entered July 31, 2013 (Doc. # 38 ) is VACATED; (3) Plaintiffs' motion for class certification (Doc. # 2 ), motion to proceed under pseudonyms (Doc. # 4 ), and motion for relief under Federal Rule of Civil Procedure 56(d) (Doc. # 32 ), and Defendants' motion to dismiss, or alternatively, for summary judgment (Doc. # 20 ), are REINSTATED as pending motions; (4) On or before January 20, 2014, the parties may supplement their briefing concerning Defendants' motion to dismiss and alternative motion for summary judgment (Doc. # 20 ) and Plaintiffs' Rule 56(d) motion for discovery (Doc. # 32 ). Signed by Chief Judge William Keith Watkins on 1/6/14. (Attachments: # 1 Civil Appeals Checklist)(scn, ) (Entered: 01/06/2014)
44 NOTICE of Appearance by Randall C Marshall on behalf of All Plaintiffs (Marshall, Randall) (Entered: 01/07/2014)
45 MOTION for Extension of Deadline Supplementary Briefing by Spencer Collier, Rich Hobson. (Davis, James) (Entered: 01/15/2014)

Case: 2:13-cv-79 As of: 10/16/2014 04:22 PM CDT 10 of 11

01/17/2014 01/21/2014
01/21/2014 01/21/2014 05/02/2014
05/02/2014 05/16/2014 05/20/2014
05/23/2014 05/27/2014
05/28/2014 06/03/2014 06/04/2014 06/30/2014

46 ORDER granting 45 Motion to extend briefing deadline and that the parties supplemental briefing is due on or before 1/21/14. Signed by Chief Judge William Keith Watkins on 1/17/14. (djy, ) (Entered: 01/17/2014)
47 Supplemental BRIEF/MEMORANDUM in Support of 20 MOTION to Dismiss re 43 Order, filed by Spencer Collier and Rich Hobson. (Attachments: # 1 Affidavit Second Supplemental Affidavit of Spencer Collier, # 2 Exhibit Order in HICA v Bentley, # 3 Exhibit Order in US v Bentley)(Davis, James) Modified on 1/22/2014 to clean up docket text (scn, ). (Entered: 01/21/2014)
48 Supplemental BRIEF/MEMORANDUM in Opposition of 20 MOTION to Dismiss re 43 Order, filed by Jane Doe 1, John Doe 1, Jane Doe 2, John Doe 2. (Attachments: # 1 Exhibit Second Cox Decl. and Exs. A &B)(Cox, Justin) Modified on 1/22/2014 to clean up docket text (scn, ). (Entered: 01/21/2014)
Supplemental BRIEF/MEMORANDUM in Support of 32 MOTION for Relief re 43 Order, filed by Jane Doe 1, John Doe 1, Jane Doe 2, ad John Doe 2. ( No PDF document attached to this entry; see 48 Supplemental Brief in Opposition.)(scn, ) (Entered: 01/22/2014)
49 MEMORANDUM OPINION AND ORDER directing that: (1) Defendants' motion to dismiss, or in the alternative, motion for summary judgment (Doc. # 20 ) is DENIED; (2) Plaintiffs' motion for relief pursuant to Rule 56(d) (Doc. # 32 ) is DENIED as moot. Signed by Chief Judge William Keith Watkins on 5/2/14. (Attachments: # 1 Civil Appeals Checklist)(scn, ) (Entered: 05/02/2014)
50 RULE 26(f) ORDER directing that the Rule 26(f) report containing the discovery plan shall be filed as soon as practicable but not later than May 23, 2014, as further set out. Signed by Chief Judge William Keith Watkins on 5/2/14. (scn, ) (Entered: 05/02/2014)
51 NOTICE of Change of Address by Kristi L. Graunke (Graunke, Kristi) (Entered: 05/16/2014)
52 MEMORANDUM OPINION AND ORDER directing that Plaintiffs' motion for leave to proceed under pseudonyms (Doc. # 4 ) is GRANTED to the extent that Plaintiffs may withhold their true identities from the public and proceed as Jane Doe #1, etc.; Plaintiffs' motion is DENIED, however, to the extent that Plaintiffs seek to withhold their identities from Defendants; further ORDERED the parties should confer, and if possible, file a joint motion for protective order that satisfies Plaintiffs' concerns for confidentiality. Signed by Chief Judge William Keith Watkins on 5/20/14. (scn, ) (Entered: 05/20/2014)
53 REPORT of Rule 26(f) Planning Meeting. (Graunke, Kristi) (Entered: 05/23/2014)
54 UNIFORM SCHEDULING ORDER setting: Final Pretrial Conference for 04/08/2015 in the Frank M. Johnson, Jr. U. S. Courthouse, One Church Street, Montgomery, Alabama; Non−Jury Trial for term of court commencing 05/18/2015 in Montgomery, Alabama; Amended Pleadings due by 08/15/2014; Discovery due by 12/05/2014; Dispositive Motions due by 01/08/2015; Mediation Notice due by 02/03/2015; as further set out. Signed by Chief Judge William Keith Watkins on 5/27/14. (Furnished to Calendar/AR)(scn, ) (Entered: 05/27/2014)
55 ORDER directing that on or before June 30, 2014, the Parties shall file a report informing the court in general terms about the progress of their settlement discussions. Signed by Chief Judge William Keith Watkins on 5/28/14. (scn, ) (Entered: 05/28/2014)
56 ANSWER to 1 Complaint by Spencer Collier, Rich Hobson.(Howell, Laura) (Entered: 06/03/2014)
57 First Amended ANSWER to Complaint by Spencer Collier, Rich Hobson.(Howell, Laura) (Entered: 06/04/2014)
58 STATUS REPORT Re: Settlement Discussions by Jane Doe 1, John Doe 1, Jane Doe 2, John Doe 2, Rich Hobson, and Spencer Collier. (Cox, Justin) Modified on 7/1/2014 to add defendants as joint filers pursuant to PDF document (scn, ). (Entered: 06/30/2014)

Case: 2:13-cv-79 As of: 10/16/2014 04:22 PM CDT 11 of 11

07/03/2014 07/30/2014 08/01/2014 08/05/2014 08/20/2014
08/20/2014 08/21/2014
08/27/2014
09/11/2014 10/10/2014 10/14/2014

59 ORDER directing that the pending 2 motion for class certification is DENIED without prejudice and with leave to refile, on or before September 5, 2014, pursuant to the agreement in the Rule 26(f) Report. Signed by Chief Judge William Keith Watkins on 7/3/14. (scn, ) (Entered: 07/03/2014)
60 STATUS REPORT Re: Settlement Discussions by Jane Doe 1, John Doe 1, Jane Doe 2, John Doe 2. (Cox, Justin) (Entered: 07/30/2014)
61 Joint MOTION for Protective Order by Jane Doe 1, John Doe 1, Jane Doe 2, John Doe 2. (Attachments: # 1 Text of Proposed Order − Proposed Protective Order)(Cox, Justin) (Entered: 08/01/2014)
62 ORDER directing that the joint motion for a protective order (doc. # 61 ) be and is hereby GRANTED, as further set out. Signed by Honorable Judge Charles S. Coody on 8/5/14. (scn, ) (Entered: 08/05/2014)
63 ORDER directing as follows: (1) Before 5:00 p.m., August 20, 2014, counsel for the parties are DIRECTED jointly to call the chambers of Magistrate Judge Charles S. Coody to schedule a time for mediation. Counsel for Plaintiff is DIRECTED to set up the call; (2) The mediation is to take place on or before September 26, 2014, and after the mediation, the parties are DIRECTED to notify the court telephonically as to the result of the mediation. Signed by Chief Judge William Keith Watkins on 8/20/14. (scn, ) (Entered: 08/20/2014)
64 Joint MOTION for Extension of Deadline re 54 Scheduling Order, 59 Order on Motion to Certify Class, by Jane Doe 1, John Doe 1, Jane Doe 2, John Doe 2. (Brooke, Samuel) (Entered: 08/20/2014)
65 ORDER directing that, upon consideration of the parties' joint motion to extend deadlines (Doc. # 64 ), it is ORDERED that the motion is GRANTED to the extent that, while the case is pending in settlement negotiations before the Magistrate Judge, the parties are relieved of their obligation to comply with any scheduling order deadlines, as further set out. Signed by Chief Judge William Keith Watkins on 8/21/14. (scn, ) (Entered: 08/21/2014)
66 ORDER directing that this matter be and is hereby set for a mediation conference on September 11, 2014, at 10:00 a.m. in Courtroom 4B, United States Courthouse, One Church Street, Montgomery, Alabama; further ORDERED that counsel and the parties or a representative with full authority to settle the case shall appear at and attend this conference, as further set out. Signed by Honorable Judge Charles S. Coody on 8/27/14. (Furnished to Calendar/WS) (scn, ) (Entered: 08/27/2014)
Minute Entry for proceedings held before Honorable Judge Charles S. Coody: Mediation Conference held on 9/11/2014 (PDF available for court use only). (ws, ) (Entered: 10/06/2014)
67 Joint MOTION to Dismiss Pursuant to Private Settlement Agreement by Jane Doe 1, John Doe 1, Jane Doe 2, John Doe 2. (Attachments: # 1 Ex. A − Settlement Agreement, # 2 Text of Proposed Order)(Brooke, Samuel) (Entered: 10/10/2014)
68 ORDER directing that, upon consideration of the joint stipulation of dismissal and the motion to retain jurisdiction, it is ORDERED that: (1) The motion (Doc. # 67 ) is GRANTED; (2) This action is DISMISSED without prejudice with each side to bear its own fees and costs; (3) The Court retains jurisdiction for five years from the date of this Order to enforce the terms of the private settlement agreement (see Doc. # 67 −1). Signed by Chief Judge William Keith Watkins on 10/14/14. (Furnished to Calendar/AR)(Term'd: Final PTC 04/08/2015 and Non−Jury trial 05/18/2015) (Attachments: # 1 Civil Appeals Checklist)(scn, ) (Entered: 10/14/2014)