Arizona Dream Act Coalition et al v. Brewer et al, No. 2:2012cv02546 - Document 114 (D. Ariz. 2013)

Court Description: ORDER denying 29 Motion for Preliminary Injunction; granting in part and denying in part 58 Motion to Dismiss Counts/Claims. Signed by Judge David G Campbell on 5/16/2013. The Court will set a hearing to schedule the remainder of this case. (NVO)

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Arizona Dream Act Coalition et al v. Brewer et al 1 Doc. 114 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 10 Arizona Dream Act Coalition; Jesus CastroMartinez; Christian Jacobo; Alejandro Lopez; Ariel Martinez; and Natalia Perez-Gallagos, 11 Plaintiffs, No. CV12-02546 PHX DGC ORDER 12 13 14 15 16 17 18 v. Janice K. Brewer, Governor of the State of Arizona, in her official capacity; John S. Halikowski, Director of the Arizona Department of Transportation, in his official capacity; and Stacey K. Stanton, Assistant Director of the Motor Vehicle Division of the Arizona Department of Transportation, in her official capacity, 19 20 Defendants. This case concerns the constitutionality of the State of Arizona’s denial of driver’s 21 licenses to persons commonly known as “DREAMers.”1 22 Napolitano, Secretary of the Department of Homeland Security (“DHS”), announced the 23 Deferred Action for Childhood Arrivals (“DACA”) program, which provides deferred 24 action for a period of two years to certain eligible DREAMers (hereafter referred to as On June 15, 2012, Janet 25 1 26 27 28 Plaintiffs generally refer to themselves as “DREAMers” based on proposed federal legislation known as the Development, Relief, and Education for Alien Minors Act (the “DREAM Act”). Doc. 1, ¶ 2. The DREAM Act would grant legal status to certain undocumented young adults. Congress has considered the DREAM Act several times, but no version has been enacted. See, e.g., DREAM Act of 2011, S. 952, H.R. 1842, 112th Cong. (2011); DREAM Act of 2010, H.R. 6497, S. 3962, S. 3963, 111th Cong. (2010); DREAM Act of 2007, S. 774, 110th Cong. (2007). Dockets.Justia.com 1 “DACA recipients”). Deferred action constitutes a discretionary decision by law 2 enforcement authorities to defer legal action that would remove an individual from the 3 country. The DACA program also provides that DACA recipients may work during the 4 period of deferred action and may obtain employment authorization documents, generally 5 known as “EADs,” from the United States Citizenship and Immigration Services 6 (“USCIS”). 7 Arizona law provides that the Arizona Department of Transportation (“ADOT”) 8 “shall not issue to or renew a driver license . . . for a person who does not submit proof 9 satisfactory to the department that the applicant’s presence in the United States is 10 authorized under federal law.” A.R.S. § 28-3153(D). Before the announcement of the 11 DACA program, the Motor Vehicle Division (“MVD”) of ADOT accepted all federally- 12 issued EADs as sufficient evidence that a person’s presence in the United States was 13 authorized under federal law, and therefore granted driver’s licenses to such individuals. 14 After announcement of the DACA program, MVD revised its policy to provide that 15 EADs issued to DACA recipients do not constitute sufficient evidence. MVD continues 16 to accept all other EADs, including those issued to persons who have received other 17 forms of deferred action. 18 Plaintiffs are the Arizona Dream Act Coalition (“ADAC”), an immigrant youth- 19 led community organization, and five individual DACA recipients. They allege that 20 Defendants’ driver’s license policy violates the Supremacy and the Equal Protection 21 Clauses of the United States Constitution. Plaintiffs have filed a motion for preliminary 22 injunction (Doc. 29), and Defendants have filed a motion to dismiss (Doc. 58). The 23 motions are fully briefed, and the Court heard oral argument on March 22, 2013. For 24 reasons stated below, the Court concludes that Plaintiffs have not shown a likelihood of 25 success on the merits of their Supremacy Clause claim. 26 likelihood of success on the merits of their equal protection claim, but the Court finds that 27 they have not shown a likelihood of irreparable injury and have not otherwise met the 28 high burden for a mandatory injunction. The Court accordingly will deny Plaintiffs’ -2- Plaintiffs have shown a 1 motion for a preliminary injunction and grant Defendants’ motion to dismiss in part. BACKGROUND 2 3 I. Deferred Action and DACA. 4 The federal government has broad and plenary powers over the subject of 5 immigration and the status of aliens. Arizona v. United States, 132 S. Ct. 2492, 2498 6 (2012); see also U.S. Const. art. I, § 8, cl. 4. Through the Immigration and Nationality 7 Act (“INA”), 8 U.S.C. § 1101, et seq., Congress has created a complex and detailed 8 federal immigration scheme governing the conditions under which a foreign national may 9 be admitted to and remain in the United States, see, e.g., id. §§ 1181, 1182, 1184, and 10 providing for the removal and deportation of aliens not lawfully admitted to this country, 11 see, e.g., id. §§ 1225, 1227, 1228, 1229, 1231. See generally United States v. Arizona, 12 703 F. Supp. 2d 980, 987-88 (D. Ariz. 2010) (describing the federal immigration 13 scheme). The INA charges the Secretary of Homeland Security with the administration 14 and enforcement of all laws relating to immigration and naturalization. 15 § 1103(a)(1). Under this delegation of authority, the Secretary may exercise a form of 16 prosecutorial discretion and decide not to pursue the removal of a person unlawfully in 17 the United States. This exercise of prosecutorial discretion is commonly referred to as 18 deferred action. See Reno v. Am.-Arab Anti-Discrimination Comm., 525 U.S. 471, 483- 19 84 & n. 8 (1999) (recognizing the practice of “deferred action” where the Executive 20 exercises discretion and declines to institute proceedings, terminate proceedings, or 21 execute a final order of deportation for humanitarian reasons or its own convenience).2 22 8 U.S.C. On June 15, 2012, Secretary Napolitano issued a memorandum announcing that 23 2 24 25 26 27 28 Deferred action status can be granted for a number of reasons. For example, deferred action status can be granted to undocumented aliens who are witnesses in a criminal case, permitting them to remain and work in the United States until they testify at trial, after which they will be removed. Doc. 30 at 10 (citing Doc. 32, ¶¶ 17-19); Doc. 32, ¶ 28; Doc. 83-1, ¶ 27. Other examples include “victims of human trafficking and sexual exploitation”; “relatives of victims of terrorism”; “surviving family members of a lawful permanent resident member of the armed forces”; “spouses and children of U.S. citizens or lawful permanent residents who are survivors of domestic violence”; “surviving spouses of U.S. citizens”; “foreign students affected by Hurricane Katrina”; and “applicants for certain types of visas.” Doc. 30 at 10 (citing Doc. 40, ¶¶ 13-19); Doc. 32, ¶¶ 19, 28; Doc. 83-1, ¶¶ 25-38. See generally Doc. 86-2 at 67-79, 82-85. -3- 1 certain young persons not lawfully present in the United States will be eligible to obtain 2 deferred action if they meet specified criteria under the newly instituted DACA program. 3 Doc. 1, ¶¶ 4-5; Doc. 38-3. Eligible persons must show that they (1) came to the United 4 States under the age of 16; (2) continuously resided in the United States for at least five 5 years preceding the date of the memorandum and were present in the United States on the 6 date of the memorandum; (3) currently attend school, have graduated from high school or 7 obtained a general education development certificate, or are an honorably discharged 8 veteran of the Coast Guard or Armed Forces of the United States; (4) have not been 9 convicted of a felony offense, a significant misdemeanor, multiple misdemeanor 10 offenses, or otherwise pose a threat to national security or public safety; and (5) are not 11 older than 30. Doc. 38-3 at 2. Eligible persons receive deferred action for two years, 12 subject to renewal, and may obtain an EAD for the period of the deferred action. 13 Doc. 38-3 at 4; see also 8 C.F.R. § 274a.12(c)(14). The Napolitano memorandum makes 14 clear that it “confers no substantive right, immigration status or pathway to citizenship[,]” 15 and that “[o]nly the Congress, acting through its legislative authority, can confer these 16 rights.” 17 approximately 80,000 residing in Arizona. Doc. 1, ¶ 6. 18 II. Id. An estimated 1.76 million persons are eligible for DACA, with Defendants’ Driver’s License Policy. 19 As noted above, A.R.S. § 28-3153(D) provides that non-citizens may obtain 20 Arizona driver’s licenses by presenting proof that their presence in the United States is 21 authorized by federal law. MVD policies identify the documentation deemed sufficient 22 to show federal authorization. See Doc. 34-3. Before the policy change at issue in this 23 case, MVD accepted EADs as satisfactory evidence. Doc. 1, ¶ 9; Doc. 34-3; Doc. 60-1 24 at 12-15, ¶ 25; Doc. 83-5, ¶ 3. Between 2005 and 2012, MVD issued approximately 25 47,500 driver’s licenses to persons who submitted EADs to prove their lawful presence in 26 the United States. Doc. 30 at 26 (citing Doc. 34-7 at 1-5).3 27 3 28 Defendants report that “after removing the duplicate records” (Doc. 83-5, ¶ 14), the number is actually 38,831 (Doc. 90 at 23, n. 34). Elsewhere, Defendants submit a news article stating that a review of MVD records “found more than 68,000 instances -4- 1 The announcement of the DACA program prompted ADOT Director John S. 2 Halikowski to review the program’s potential impact on ADOT’s administration of the 3 State’s driver’s license laws. Doc. 60-1 at 12-15, ¶¶ 5, 7. Halikowski and Assistant 4 Director Stacey K. Stanton were aware that DACA recipients with EADs were eligible to 5 receive driver’s licenses under MVD’s then-existing policy (Doc. 99-1 at 247-514), and 6 Halikowski’s declaration states that he had a number of concerns about the DACA 7 program (Doc. 60-1 at 12-15, ¶¶ 8-20). 8 After Director Halikowski initiated the ADOT policy review, but before the 9 review had reached a conclusion, Governor Brewer issued Executive Order 2012-06 on 10 August 15, 2012 (the “Executive Order”). The Executive Order concluded that “issuance 11 of Deferred Action or Deferred Action USCIS employment authorization documents to 12 unlawfully present aliens does not confer upon them any lawful or authorized status and 13 does not entitle them to any additional public benefit.” Doc. 1-1 at 2. The Executive 14 Order directed state agencies to “conduct a full statutory, rule-making and policy analysis 15 and . . . initiate operational, policy, rule and statutory changes necessary to prevent 16 Deferred Action recipients from obtaining eligibility, beyond those available to any 17 person regardless of lawful status, for any taxpayer-funded public benefits and state 18 identification, including a driver’s license[.]” 19 Executive Order was necessary to make clear there would be “no drivers [sic] licenses for 20 illegal people.” Doc. 38, ¶ 13. On September 17, 2012, MVD formally revised its policy 21 to conform to the Governor’s order. Doc. 1, ¶ 10; Doc. 1-2. Id. Governor Brewer stated that the 22 23 24 25 26 since 2005 where MVD issued an Arizona driver’s license or state ID card to someone with a federal ‘employment authorization card.’” Doc. 60-1 at 29. For purposes of this order, the Court will use 47,500 as a reasonable approximation. 4 27 28 Some citations in this order are to documents lodged by the parties under seal to protect information claimed to be confidential. The Court has issued an order directing the parties to resolve their disagreements on what portions of the record should be sealed, and to submit a stipulation to the Court. The Court has decided not to await resolution of that matter before issuing this order. -5- MOTION FOR PRELIMINARY INJUNCTION 1 2 I. Legal Standard. “A preliminary injunction is an extraordinary remedy never awarded as a matter of 3 4 right.” Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 24 (2008) (citation 5 omitted). To obtain a preliminary injunction, a plaintiff must show “that he is likely to 6 succeed on the merits, that he is likely to suffer irreparable harm in the absence of 7 preliminary relief, that the balance of equities tips in his favor, and that an injunction is in 8 the public interest.” Id. at 20; see also Alliance for the Wild Rockies v. Cottrell, 632 F.3d 9 1127, 1135 (9th Cir. 2011). 10 Preliminary injunctions can be prohibitory or mandatory. Prohibitory injunctions 11 “preserve the status quo between the parties pending a resolution of a case on the merits.” 12 McCormack v. Hiedeman, 694 F.3d 1004, 1019 (9th Cir. 2012) (citation omitted). 13 Mandatory injunctions go well beyond maintaining the status quo and order responsible 14 parties “to take action.” Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571 15 F.3d 873, 879 (9th Cir. 2009) (quotation marks and citations omitted). Because they 16 impose affirmative obligations on parties at the very beginning of a case and before full 17 discovery or a trial on the merits, mandatory injunctions require a higher level of proof 18 than prohibitory injunctions. 19 “extreme or very serious damage will result,” and “not issued in doubtful cases.” Park 20 Village Apt. Tenants Ass’n v. Mortimer Howard Trust, 636 F.3d 1150, 1160 (9th Cir. 21 2011) (quoting Marlyn Nutraceuticals, 571 F.3d at 879); see also Dahl v. HEM 22 Pharmaceuticals Corp., 7 F.3d 1399, 1403 (9th Cir. 1993) (“‘mandatory preliminary 23 relief’ is subject to heightened scrutiny and should not be issued unless the facts and law 24 clearly favor the moving party.”). They are “particularly disfavored,” not granted unless 25 Plaintiffs ask the Court to enjoin Defendants from continuing to apply their 26 DACA-specific driver’s license policy, an injunction that would result in Plaintiffs 27 receiving driver’s licenses when they present EADs and otherwise qualify for licenses. 28 The parties disagree on whether such an injunction would be prohibitory or mandatory. -6- 1 Plaintiffs claim that it is prohibitory because it merely seeks to prohibit Defendants from 2 applying an unconstitutional policy. Defendants argue that it is mandatory because it 3 would require them to take action they have not taken in the past – issuing driver’s 4 licenses to Plaintiffs and member of their class. 5 The Court finds that the requested injunction is mandatory. As the Ninth Circuit 6 has explained, the test for whether an injunction is prohibitory or mandatory can be found 7 in its effect on the “status quo ante litem,” which means “‘the last, uncontested status 8 which preceded the pending controversy.’” Marlyn Nutraceuticals, 571 F.3d at 879 9 (quoting Regents of the Univ. of Cal. v. Am. Broad. Cos., 747 F.2d 511, 514 (9th Cir. 10 1984)). The status quo referred to, of course, is the status quo between the parties to the 11 lawsuit. As the Ninth Circuit has noted, a prohibitory injunction “preserve[s] the status 12 quo between the parties pending a resolution of a case on the merits.” McCormack, 694 13 F.3d at 1019 (emphasis added); see also Stanley, 13 F.3d at 1320 (examining relationship 14 between parties to decide whether injunction was prohibitory or mandatory). 15 The last uncontested status between the parties to this case was that Defendants 16 did not issue driver’s licenses to Plaintiffs. Although it is true that Defendants previously 17 accepted EADs as sufficient proof for issuing licenses to other individuals, that prior 18 circumstance did not exist between the parties to this case. Before implementation of the 19 DACA program and issuance of the Executive Order (which occurred on the same date, 20 August 15, 2012), Defendants had never issued licenses to Plaintiffs and Plaintiffs had 21 never sought them. The requested injunction would change this “status quo ante litem.” 22 Defendants would be required to issue driver’s licenses to Plaintiffs and other DACA 23 recipients who submit EADs obtained under the DACA program. Such a change in the 24 preexisting status quo constitutes a mandatory injunction, and the Court therefore will 25 apply the heightened requirements for such injunctions. 26 II. Likelihood of Success on the Supremacy Clause Claim (Count One). 27 “The Supremacy Clause provides a clear rule that federal law ‘shall be the 28 supreme Law of the Land; and the Judges in every State shall be bound thereby, anything -7- 1 in the Constitution or Laws of any State to the Contrary notwithstanding.’” Arizona, 132 2 S. Ct. at 2500 (quoting U.S. Const. art. VI, cl. 2). Under this rule, “Congress has the 3 power to preempt state law.” Crosby v. Nat’l Foreign Trade Council, 530 U.S. 363, 372 4 (2000). The preemption doctrine consists of three well-recognized classes: express, field, 5 and conflict preemption. Arizona, 132 S. Ct. at 2500-01. Express preemption occurs 6 when Congress “withdraws specified powers from the States by enacting a statute 7 containing an express preemption provision.” Id. at 2501 (citing Chamber of Commerce 8 of U.S. v. Whiting, 131 S. Ct. 1968, 1974-75 (2011)). Field preemption precludes states 9 “from regulating conduct in a field that Congress, acting within its proper authority, has 10 determined must be regulated by its exclusive governance.” Id. (citing Glade v. Nat’l 11 Solid Wastes Mgmt. Ass’n, 505 U.S. 88, 115 (1992)). Conflict preemption occurs “where 12 ‘compliance with both federal and state regulations is a physical impossibility,’ Florida 13 Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142-43 (1963), and in those 14 instances where the challenged state law ‘stands as an obstacle to the accomplishment 15 and execution of the full purposes and objectives of Congress,’ Hines v. Davidowitz, 312 16 U.S. 52, 61 (1941).” Id. 17 Plaintiffs do not rely on express preemption and say they do not rely on field 18 preemption. Plaintiffs instead argue that the Arizona policy is “per se preempted” and 19 conflict preempted. The Court finds both arguments to be legally incorrect. 20 A. Per Se Preemption. 21 Plaintiffs argue that Defendants’ policy amounts to a regulation of immigration 22 and is per se pre-empted under De Canas v. Bica, 424 U.S. 351 (1976), and other 23 Supreme Court decisions. Plaintiffs focus specifically on the State’s act of “classifying” 24 aliens – saying that some aliens get driver’s licenses and others do not – and argue that 25 such classification by a state is preempted by the federal government’s sole right to 26 classify aliens. 27 categories of preemption are express, field, and conflict. Arizona, 132 S. Ct. at 2500-01. 28 Per se preemption is not included in the list. Plaintiffs seem to be crafting a specialized As the Court noted above, however, the traditionally recognized -8- 1 kind of preemption that applies only in immigration cases and forbids any state law or 2 action that can be construed as a “classification” of aliens. The Supreme Court cases 3 cited by Plaintiffs do not support this specialized argument. 4 De Canas involved a challenge to a California law that prohibited employers from 5 knowingly employing “an alien who is not entitled to lawful residence in the United 6 States if such employment would have an adverse effect on lawful resident workers.” 7 424 U.S. at 352. The Supreme Court declined to invalidate the law, and in the process 8 reached three conclusions: 9 immigration regulation as to prohibit any state law that deals with aliens, id. at 355-56; 10 (2) Congress has not so occupied the field of immigration regulation as to preclude all 11 state regulation, id. at 357-58; and (3) deciding whether the California law conflicted 12 with federal immigration law required construction of the California statute and 13 implementing regulations, a matter that should be addressed in the first instance by the 14 California courts, id. at 363-65. The case was remanded to the California courts for this 15 purpose. Id. at 365. Thus, contrary to Plaintiffs’ suggestion, De Canas did not adopt a 16 per se preemption rule and did not hold that all state classifications of immigrants are 17 preempted by federal law. To the contrary, the Supreme Court stated that it “has never 18 held that every state enactment which in any way deals with aliens is a regulation of 19 immigration and thus per se pre-empted by this constitutional power, whether latent or 20 exercised.” Id. at 355 (emphasis added). (1) The Constitution does not so restrict the field of 21 Plaintiffs cite Plyler v. Doe, 457 U.S. 202 (1982), in support of their per se 22 preemption argument, but Plyler is not a preemption case. It was decided on equal 23 protection grounds and never considered whether the Texas law at issue (barring illegal 24 alien children from attending public schools) was preempted by federal law. Indeed, the 25 majority opinion in Plyler does not even mention the word “preemption.” Id. at 205-230. 26 Plyler does say that “States enjoy no power with respect to the classification of aliens” 27 and that “[t]his power is committed to the political branches of the Federal Government,” 28 but these comments appear in the Court’s equal protection analysis. Id. at 225 (quotation -9- 1 marks and citations omitted). The Court cannot conclude that they were intended to 2 establish a kind of per se preemption based on classification. 3 Plaintiffs cite Toll v. Moreno, 458 U.S. 1 (1982), for the same proposition, but Toll 4 is not a per se preemption case. Toll is a conflict preemption case. The majority opinion 5 never mentions per se preemption. Id. at 3-19. Toll held that a Maryland law which 6 barred nonimmigrant aliens with G-4 visas from obtaining domicile and paying in-state 7 tuition conflicted with actions of Congress which permitted the aliens to obtain domicile 8 and other financial benefits. Id. at 13-17. The Court will address Plaintiffs’ conflict 9 preemption argument below. 10 Plaintiffs cite Nyquist v. Mauclet, 432 U.S. 1 (1977), but Nyquist is not a 11 preemption case. Like Plyler, it was decided on equal protection grounds. Id. at 12. The 12 case never uses the word “preemption,” much less “per se preemption.” 13 For these reasons, the Court finds no support for Plaintiffs’ per se preemption 14 argument in the Supreme Court cases they cite. Those cases do not adopt a specialized 15 form of per se preemption for immigration cases as Plaintiffs suggest. Nor does the 16 Court find Plaintiffs’ citation to several district court cases helpful. 17 The district court in League of United Latin American Citizens v. Wilson, 908 F. 18 Supp. 755 (C.D. Cal. 1995), invalidated several provisions of a California initiative that 19 required state officials and others to determine whether persons were in the United States 20 legally, report them to federal authorities if they were not, and advise the individuals of 21 their obligation to leave the Country, id. at 763-64. Wilson based its holding on De 22 Canas, which it read as holding, as a first of three tests, that any state law which 23 regulated immigration is preempted. Id. at 768. Wilson went on to hold that any state 24 law that required state officials to classify aliens in a manner independent of federal law 25 constitutes a regulation of immigration and is preempted under this “first test.” Id. at 26 770. The Court does not agree with Wilson’s reading of De Canas. The first holding in 27 De Canas was that the Constitution does not create a federal-only field of immigration 28 which the States can never invade. 424 U.S. at 355. The Court did not adopt the rule - 10 - 1 applied by Wilson – that any state law which regulates immigration by classifying aliens 2 is preempted. For the same reason, the Court is not persuaded by the other district court 3 cases cited by Plaintiffs, each of which adopts the incorrect Wilson reading of De Canas. 4 See Equal Access Educ. v. Merten, 305 F. Supp. 2d 585 (E.D. Va. 2004); Villas at 5 Parkside Partners v. City of Farmers Branch, 577 F. Supp. 2d 858 (N.D. Tex. 2008); 6 Hispanic Interest Coal. of Ala. v. Bentley, No. 5:11-CV-2482-SLB, 2011 WL 5516953 7 (N.D. Ala. Sept. 28, 2011). 8 9 The Supreme Court’s recent decision in Arizona v. United States, 132 S. Ct. 2492 (2012), supports the Court’s understanding of preemption law. In addressing the 10 constitutionality of Arizona’s S.B. 1070, a law that sought to encourage and enhance state 11 enforcement of immigration laws, the Supreme Court never mentioned per se preemption 12 or the “classification” analysis that Wilson claims to have found in De Canas. Instead, 13 the Supreme Court addressed the three traditional categories of preemption – express, 14 field, and conflict (id. at 2500-01) – and held that one Arizona provision was invalid 15 under field preemption and two were invalid under conflict preemption. Id. at 2501-07. 16 In summary, the Court finds Plaintiffs’ per se preemption argument to be legally 17 incorrect. The argument finds no support in relevant Supreme Court cases, appears to be 18 inconsistent with traditional preemption analysis, and relies on district court cases the 19 Court finds unpersuasive.5 20 B. Conflict Preemption. 21 Plaintiffs initially appeared to argue that Arizona’s policy was preempted because 22 it conflicted with Secretary Napolitano’s discretionary decision to grant deferred status to 23 those who qualify under the DACA program. Plaintiffs identified several ways in which 24 the Arizona policy conflicted with the purposes of the DACA program, arguing that the 25 policy “impermissibly undermines the federal goal of permitting [DACA recipients] to 26 remain and work in the United States, and to be full, contributing members of society.” 27 5 28 Plaintiffs’ per se preemption argument at times sounds close to field preemption, but Plaintiffs state that they are not making a field preemption argument (Doc. 91 at 17 n. 6), a fact confirmed by Plaintiffs’ counsel at oral argument (Doc. 111 at 19:6-20:18). - 11 - 1 Doc. 30 at 23. In response to this argument, Defendants argued that Secretary 2 Napolitano’s memorandum could have no preemptive effect. Defendants are correct. 3 The memorandum does not have the force of law. Although the Supreme Court 4 has recognized that federal agency regulations “with the force of law” can preempt 5 conflicting state requirements, Wyeth, 555 U.S. at 576, federal regulations have the force 6 of law only when they prescribe substantive rules and are promulgated through 7 congressionally-mandated procedures such as notice-and-comment rulemaking. 8 River Runners for Wilderness v. Martin, 593 F.3d 1064, 1071 (9th Cir. 2010) (citing 9 United States v. Fifty-Three (53) Eclectus Parrots, 685 F.2d 1131, 1136 (9th Cir. 1982)). 10 Secretary Napolitano’s memorandum does not purport to establish substantive rules (in 11 fact, it says that it does not create substantive rights) and it was not promulgated through 12 any formal procedure. As a result, the memorandum does not have the force of law and 13 cannot preempt state law or policy. See 14 Perhaps as a result of this reality, Plaintiffs clarified their conflict preemption 15 argument in their reply memorandum, asserting that the Arizona policy “conflicts with 16 Congress’s decision to grant discretion to the Executive Branch to enforce the 17 immigration laws[.]” Doc. 99 at 15 (emphasis in original). Unfortunately for Plaintiffs, 18 this preemption argument also fails. Conflict preemption exists when a state law or 19 policy “stands as an obstacle to the accomplishment and execution of the full purposes 20 and objectives of Congress.” Arizona, 132 S. Ct. at 2501. The “purpose of Congress is 21 the ultimate touchstone[.]” Medtronic, Inc. v. Lohr, 518 U.S. 470, 485 (1996) (quotation 22 marks and citations omitted). Plaintiffs have identified no purpose of Congress with 23 which the Arizona driver’s license policy conflicts. 24 Plaintiffs characterize Defendants’ driver’s license policy as an attempt to decide 25 “that DACA recipients are not authorized to be present” in the United States, an attempt 26 that “undermines Congress’ intent that the federal government alone have discretion to 27 make these decisions.” Doc. 99 at 16 (emphasis in original). The Court does not agree, 28 however, that the Arizona policy constitutes an attempt to decide which aliens may - 12 - 1 remain in the United States. The policy concerns driver’s licenses. Unlike the Arizona 2 policy that was found to be conflict-preempted in Arizona, the driver’s license policy 3 does not concern the arrest, prosecution, or removal of aliens from the State or the 4 Nation. The Court cannot find that issuance or denial of driver’s licenses “stands as an 5 obstacle to the accomplishment and execution of the full purposes and objectives of 6 Congress” in delegating immigration authority to DHS. See Hines, 312 U.S. at 67. 7 Plaintiffs argue that Defendants’ driver’s license policy undermines Congress’s 8 intent that the federal government decide who can work in the United States. Plaintiffs’ 9 submit that Defendants’ policy stands as an obstacle to this federal objective because 10 driving is frequently necessary to work. But Plaintiffs cite no authority to show that work 11 was one of the objectives Congress had in mind when it delegated immigration authority 12 to DHS. And to the extent Plaintiffs rely on the purposes of the DACA program, they are 13 looking to a nonbinding policy of a federal agency, not the intent of Congress which is 14 the touchstone of conflict preemption analysis. What is more, the Court certainly cannot 15 impute the intentions of the DACA program to Congress when Congress itself has 16 declined repeatedly to enact legislation that would accomplish the goals of the DACA 17 program. See, e.g., DREAM Act of 2011, S. 952, H.R. 1842, 112th Cong. (2011). In short, Defendants have identified no congressional intent that is frustrated by 18 19 Arizona’s driver’s license policy. They certainly have not identified the kinds of 20 conflicts that have led the Supreme Court to find conflict preemption in cases such as 21 Arizona, 132 S. Ct. at 2503-07, and Toll, 458 U.S. at 12-15. As a result, the Court 22 concludes that Plaintiffs cannot succeed on the merits of their Supremacy Clause claim. 23 III. Likelihood of Success on the Equal Protection Claim (Count Two). 24 A. Plaintiffs Are Similarly Situated. 25 To prevail on their equal protection claim, Plaintiffs “must make a showing that a 26 class that is similarly situated has been treated disparately.” Christian Gospel Church, 27 Inc. v. City and Cnty. of S.F., 896 F.2d 1221, 1225-26 (9th Cir. 1990). “The first step in 28 equal protection analysis is to identify the state’s classification of groups.” Country - 13 - 1 Classic Dairies, Inc. v. State of Mont., Dep’t of Commerce Milk Control Bureau, 2 847 F.2d 593, 596 (9th Cir. 1988). “The groups must be comprised of similarly situated 3 persons so that the factor motivating the alleged discrimination can be identified.” 4 Thornton v. City of St. Helens, 425 F.3d 1158, 1167 (9th Cir. 2012). 5 Plaintiffs argue that DACA recipients are similarly situated to other noncitizens 6 holding EADs who are eligible to obtain driver’s licenses in Arizona. Defendants argue 7 that DACA recipients are not similarly situated to other EAD holders, including other 8 deferred action recipients, because these other noncitizens are classified differently under 9 federal immigration law. Defendants point to USCIS’s creation of a new EAD category 10 code for DACA recipients. USCIS’s form I-765 instructs DACA recipients to enter 11 “(c)(33),” whereas other forms of deferred action are categorized under “(c)(14).” 12 Defendants also note that the Department of Health and Human Services (“DHHS”) has 13 determined that DACA recipients are not “lawfully present” for purposes of health care 14 benefits conferred on other deferred action recipients, 45 C.F.R. § 152.2(8), and argue 15 that this determination shows that even the federal government distinguishes the DACA 16 program from other forms of deferred action. 17 Plaintiffs argue that these distinctions are not relevant to the issue of whether 18 DACA recipients are similarly situated for purposes of Defendants’ driver’s license 19 policy. The Court is inclined to agree with Plaintiffs. The question is not whether 20 DACA recipients are identical in every respect to other deferred action recipients, but 21 whether they are the same in respects relevant to the driver’s license policy. 22 Nordlinger v. Hahn, 505 U.S. 1, 10 (1992) (“The Equal Protection Clause does not forbid 23 classifications. It simply keeps governmental decisionmakers from treating differently 24 persons who are in all relevant respects alike.”). Defendants have identified nothing 25 about the (c)(33) category code to suggest that DACA recipients are somehow less 26 authorized to be present in the United States than are other deferred action recipients. 27 Nor have Defendants shown that the DHHS policy is based on DACA recipients being 28 less authorized. All deferred action recipients are permitted to remain in the country - 14 - See 1 without removal for a temporary period of time, and the EADs held by those recipients 2 appear to be valid only for a temporary period. See 8 C.F.R. § 274a.12(c)(14) (“USCIS 3 . . . may establish a specific validity period for an [EAD]” for “[a]n alien who has been 4 granted deferred action”). Moreover, Defendants issued driver’s licenses to all applicants 5 submitting an EAD as proof of “authorized presence” before the DACA program was 6 implemented. Doc. 60-1 at 12-15, ¶¶ 25-26. 7 Defendants argue that DACA recipients are different because other forms of 8 deferred action arise “incident to some type of statutory relief or in anticipation of a 9 pending regulatory or statutory change.” Doc. 85 at 21; see also Doc. 108 at 2. Plaintiffs 10 vigorously dispute that deferred action recipients other than DACA grantees are on a path 11 to formal immigration status, noting that deferred action often is granted to persons in 12 active immigration removal proceedings or to other persons with no hope of a formal 13 legal immigration status such as witnesses paroled into the United States pending 14 completion of a criminal trial, after which they will be removed. Defendants have not 15 provided an effective response to these arguments. See Doc. 86-2 at 71. 16 Defendants prepared a chart to show that “the vast majority of driver’s licenses 17 issued to EAD holders were issued to aliens who had actual or pending lawful 18 immigration status and who are not remotely similarly situated to Plaintiffs.” Doc. 85 at 19 23-24. But the chart, based on a statistical sample, shows that ten of the persons sampled 20 held a (c)(14) category code, had no formal immigration status or a pathway to obtain 21 formal status, did not have a classification or status authorized by statute or regulation, 22 and yet received driver’s licenses from the State. Doc. 83-6 at 7. Defendants argue that 23 these ten licenses constitute only 1.3% of the licenses issued to persons in the statistical 24 sample, apparently suggesting that this relatively small percentage means Plaintiffs have 25 not been treated differently. Plaintiffs dispute the chart, arguing that many deferred 26 action recipients listed in other columns of the chart also lack formal immigration status 27 or any meaningful hope of such status. But even if Defendants’ chart is accepted as 28 correct, 1.3% of licenses issued to EAD holders over the last seven years is not an - 15 - 1 insignificant number. It equates to more than 600 deferred action recipients who have 2 been granted driver’s licenses on the basis of EADs.6 3 Plaintiffs also argue that they are similarly situated to persons issued licenses on 4 the basis of an EAD with (c)(9) and (c)(10) category codes. The (c)(9) code is for 5 applicants for adjustment of status, the (c)(10) for applicants for suspension of 6 deportation and cancellation of removal. 8 C.F.R. §§ 274a.12(c)(9), (c)(10). Many of 7 these individuals have no formal immigration status and little hope of one, and yet they 8 amount to 66.4% of the people granted licenses during the last seven years on the basis of 9 EADs. Doc. 85 at 24. 10 Given the fact that (c)(9) and (c)(10) codes do not necessarily reflect individuals 11 with any significant likelihood of receiving formal immigration status, and the fact that 12 more than 600 similarly situated people appear to have received driver’s licenses during 13 the last seven years, the Court concludes that Plaintiffs are likely to succeed in 14 establishing that DACA recipients are similarly situated to persons who have obtained a 15 driver’s license in the past using EADs. 16 B. Level of Scrutiny. 17 The Court must next determine the level of scrutiny to be applied under the equal 18 protection analysis. Freeman v. City of Santa Ana, 68 F.3d 1180, 1187 (9th Cir. 1995) 19 (quotation marks and citations omitted). Plaintiffs argue that (1) Defendants’ driver’s 20 license policy is based on alienage and subject to strict scrutiny; (2) if not, the policy is 21 subject to heightened scrutiny; and (3) if not, Defendants’ policy cannot survive even 22 rational basis review. Defendants’ argue for rational basis scrutiny. 1. 23 Strict Scrutiny. 24 The Supreme Court has stated that “classifications based on alienage . . . are 25 inherently suspect and subject to close judicial scrutiny.” Graham v. Richardson, 403 26 U.S. 365, 372 (1971) (“Aliens as a class are a prime example of a ‘discrete and insular’ 27 minority for whom such heightened judicial solicitude is appropriate.” (citation omitted)). 28 6 1.3% of 47,500 equals 618. - 16 - 1 Graham struck down Arizona and Pennsylvania laws that denied public assistance to 2 legal resident aliens or to resident aliens who did not meet a durational residency 3 requirement. Id. at 367-68, 379-80. The states sought to favor citizens and long-term 4 residents in their expenditure of limited resources, but the Court found the classifications 5 to be “inherently suspect,” explaining that the states’ cost-savings justification “is 6 particularly inappropriate and unreasonable when the discriminated class consists of 7 aliens.” Id. at 376. 8 between legal resident aliens and citizens: “Aliens like citizens pay taxes and may be 9 called into the armed forces. . . . [A]liens may live within a state for many years, work in 10 the state and contribute to the economic growth of the state.” Id. (quotation marks and 11 citations omitted). Underlying the Court’s holding was its focus on the similarities 12 Two years later, the Supreme Court reaffirmed its holding that aliens are a suspect 13 class when it struck down a Connecticut rule that denied bar admission to legal resident 14 aliens. In re Griffiths, 413 U.S. 717, 718-19, 729 (1973). Griffiths also noted that 15 “[r]esident aliens, like citizens, pay taxes, support the economy, serve in the Armed 16 Forces, and contribute in myriad other ways to our society.” Id. at 722. The Court found 17 that limiting the practice of law to citizens did not serve the state’s interest in “assur[ing] 18 the requisite qualifications of persons licensed to practice law,” and that the “wholesale 19 ban” was not justified on “the possibility that some resident aliens are unsuited to the 20 practice of law[.]” Id. at 722-25. 21 In Nyquist v. Mauclet, 432 U.S. 1 (1977), legal resident aliens challenged a New 22 York law that conditioned eligibility for postsecondary education financial assistance on 23 residency and citizenship. Id. at 2-6. The citizenship requirement was satisfied if the 24 applicant was a citizen, had applied to become a citizen, or, if not qualified to apply for 25 citizenship, submitted a statement affirming intent to apply for citizenship as soon as the 26 applicant was qualified. Id. at 3-4. In finding that the law impermissibly discriminated 27 on the basis of alienage, the Supreme Court again described the similarities between 28 citizens and lawful resident aliens: “Resident aliens are obligated to pay their full share - 17 - 1 of the taxes that support the assistance programs. . . . And although an alien may be 2 barred from full involvement in the political arena, he may play a role perhaps even a 3 leadership role in other areas of import to the community.” Id. at 12. 4 The Supreme Court reached a different conclusion with respect to undocumented 5 aliens. In Plyler v. Doe, 457 U.S. 202 (1982), the Court held that “[u]ndocumented aliens 6 cannot be treated as a suspect class because their presence in this country in violation of 7 federal law is not a ‘constitutional irrelevancy.’” Id. at 223. Plyler considered the 8 constitutionality of a Texas law that denied undocumented alien children a free public 9 school education. Id. at 205. The Court explained that “undocumented status is not 10 irrelevant to any proper legislative goal. Nor is undocumented status an absolutely 11 immutable characteristic since it is the product of conscious, indeed unlawful action.” Id. 12 at 220. 13 In summary, the Supreme Court has applied strict scrutiny to classifications 14 affecting lawful resident aliens, but not to classifications affecting undocumented aliens. 15 This case falls somewhere between those two groups. Plaintiffs are undocumented aliens 16 who have been granted deferred status for a period of two years. Their status is not the 17 result of a statute or federal regulation, but stems solely from an exercise of prosecutorial 18 discretion. Unlike the aliens in Graham, Griffiths, and Nyquist, Plaintiffs have not 19 historically been lawfully employed, and in general they have not paid income taxes or 20 served in the military.7 Even DHHS classifies DACA recipients as not “lawfully present” 21 7 22 23 24 25 26 27 28 The Court acknowledges that some undocumented aliens pay income taxes, and some serve in the military. See Travis Loller, Many Illegal Immigrants Pay Up at Tax Time, USA TODAY, Apr. 11, 2008, http://usatoday30.usatoday.com/money/perfi/taxes/ 2008-04-10-immigrantstaxes_N.htm; see also President Barack Obama, Remarks by the President on Immigration (June 15, 2012), available at http://www.whitehouse.gov/thepress-office/2012/06/15/remarks-president-immigration (“I’ve got a young person who is serving in our military, protecting us and our freedom. The notion that in some ways we would treat them as expendable makes no sense); Tracey Jan, Shift Leads to Confusion on Status Within Military, BOSTON GLOBE, June 23, 2012, http://www.bostonglobe.com/ ews/politics/2012/06/22/president-obama-mitt-romney-aim-help-illegal-servicememberswho-shouldn-uniform/FAW5x8g0wvB1gaHNAjiXbO/story.html (regarding the DACA eligibility criteria for honorably discharged veterans of the Coast Guard or Armed Forces of the United States, “‘Unless the current law were to be changed, or an individual were declared by the services to be vital to the national interest, the services are not permitted to enlist illegal immigrants,’ said a Department of Defense spokesperson, who did not - 18 - 1 for purposes of certain benefits. Plaintiffs in some respects are like the undocumented 2 aliens in Plyler, whom the Court described as enjoying an “inchoate federal permission to 3 remain,” 457 U.S. at 226, but there are material distinctions from the Plyler 4 undocumented aliens as well. As a result of the DACA program, Plaintiffs may receive 5 EADs and Social Security numbers, work lawfully, and pay income taxes. In an effort to 6 decide what level of scrutiny to afford Plaintiffs, the Court finds helpful guidance in 7 several court of appeals decisions. 8 In LeClerc v. Webb, 419 F.3d 405 (5th Cir. 2005), the Fifth Circuit applied 9 rational basis scrutiny to a Louisiana rule that prohibited aliens temporarily admitted to 10 the United States (referred to in the opinion as “nonimmigrant aliens”) from sitting for 11 the state’s bar examination – only citizens or permanent resident aliens could become 12 lawyers. The court started with the premise that “the Supreme Court has reviewed with 13 strict scrutiny only state laws affecting permanent resident aliens.” Id. at 415. In cases 14 concerning illegal aliens, the children of illegal aliens, or nonimmigrant aliens, LeClerc 15 noted that the Supreme Court “has either foregone Equal Protection analysis, see Toll v. 16 Moreno, 458 U.S. 1 (1982) (nonimmigrant G-4 aliens); De Canas v. Bica, 424 U.S. 351 17 (1976) (illegal aliens), or has applied a modified rational basis review, see Plyler v. Doe, 18 457 U.S. 202 (1982) (children of illegal aliens).” Id. at 416. LeClerc thus read the 19 Supreme Court’s precedent as requiring strict scrutiny only when the state law alienage 20 classification “t[akes a] position seemingly inconsistent with the congressional 21 determination to admit the alien to permanent residence.” 22 original) (quoting Foley v. Connelie, 435 U.S. 291, 295 (1978)). Id. at 417 (emphasis in 23 LeClerc noted that unlike “resident aliens [who] are similarity situated to citizens 24 in their economic, social, and civic (as opposed to political) conditions[,]” 25 “[n]onimmigrant aliens’ status is far more constricted[.]” Id. at 418. “Based on the 26 aggregate factual and legal distinctions between resident aliens and nonimmigrant 27 28 know why Obama had included military service as a condition. An official with the Department of Homeland Security acknowledged that ‘few, if any, individuals fall into this category’ that Obama referred to last week.”). - 19 - 1 aliens,” LeClerc explained, “we conclude that although aliens are a suspect class in 2 general, they are not homogeneous and precedent does not support the proposition that 3 nonimmigrant aliens are a suspect class entitled to have state legislative classifications 4 concerning them subjected to strict scrutiny.” Id. at 419. “By process of elimination, 5 rational basis review must be the appropriate standard for evaluating state law 6 classifications affecting nonimmigrant aliens.” Id. at 420. 7 LeClerc was followed in League of United Latin American Citizens (LULAC) v. 8 Bredesen, 500 F.3d 523 (6th Cir. 2007). LULAC concerned a Tennessee law that 9 conditioned issuance of a driver’s license on proof of citizenship or lawful permanent 10 resident status. Id. at 526. Plaintiffs were lawful temporary aliens, not lawful permanent 11 aliens. Plaintiffs cited Nyquist in support of their argument that strict scrutiny applied to 12 any classification affecting lawful aliens. Id. at 531. The Sixth Circuit distinguished 13 Nyquist because the plaintiffs there were lawful permanent resident aliens. Id. at 532-33. 14 Adopting LeClerc’s lengthy discussion about “why lawful temporary resident aliens, or 15 ‘nonimmigrant aliens,’ are not entitled to the same protection as lawful permanent 16 resident aliens,” LULAC concluded that “[b]ecause the instant classification does not 17 result in discriminatory harm to members of a suspect class, it is subject only to rational 18 basis scrutiny.” Id. at 533. 19 The Second Circuit reached the opposite conclusion in Dandamudi v. Tisch, 686 20 F.3d 66 (2d Cir. 2012), which involved a challenge to a New York law that limited 21 pharmacist licenses to citizens and lawful permanent resident aliens. Id. at 69. The 22 plaintiffs were nonimmigrant aliens holding two kinds of temporary worker visas. The 23 court applied strict scrutiny because “a state statute that discriminates against aliens who 24 have been lawfully admitted to reside and work in the United States should be viewed in 25 the same light under the Equal Protection Clause as one which discriminates against 26 aliens who enjoy the right to reside here permanently.” Id. at 70. The court reviewed the 27 Supreme Court cases discussed above and concluded that “the Supreme Court recognizes 28 aliens generally as a discrete and insular minority[.]” Id. at 75. The court refused to - 20 - 1 construct an exception to the Graham rule based on the “transience” of nonimmigrant 2 aliens as compared to lawful permanent resident aliens. Id. at 78-79. The court also 3 noted that “federal law permits many aliens with [these two kinds of temporary worker 4 visas] to maintain their temporary worker authorization for a period greater than six 5 years. All plaintiffs in this case, for example, have been legally authorized to reside and 6 work in the United States for more than six years.” Id. at 71 (emphasis in original). The 7 court further observed that “[a] great number of these professionals remain in the United 8 States for much longer than six years and many ultimately apply for, and obtain, 9 permanent residence. These practicalities are not irrelevant. They demonstrate that there 10 is little or no distinction between [lawful permanent resident aliens] and the lawfully 11 admitted nonimmigrant plaintiffs here.” Id. at 78. Accordingly, the court distinguished 12 LeClerc and LULAC on the ground that “[t]he aliens at issue here are ‘transient’ in name 13 only.” Id. 14 The Court finds the reasoning in LeClerc and LULAC persuasive. Plyler makes 15 clear that strict scrutiny does not apply to all classes of aliens, and the decisions of the 16 Fifth and Sixth Circuits reasonably conclude that the rationale of Graham, Griffiths, and 17 Nyquist applies to lawful resident aliens who are like citizens in most material respects. 18 Dandamudi also concerned aliens who were factually similar to lawful permanent 19 residents. 20 supports the application of strict scrutiny to classifications directed at persons “who have 21 been granted the legal right to reside and work in the United States,” 686 F.3d at 72, but 22 the Dandamudi plaintiffs each had an official visa, not merely a temporary grant of 23 deferred action. Dandamudi does not support Plaintiffs’ claim for strict scrutiny. DACA 24 recipients are more like the undocumented aliens in Plyler and the temporary aliens in 25 LULAC and LeClerc than the visa holders in Dandamudi or the permanent residents in 26 Graham, Griffiths, and Nyquist. 27 Defendants’ policy is subject to strict scrutiny. Plaintiffs selectively quote from Dandamudi and argue that the decision Accordingly, Plaintiffs have not established that 28 - 21 - 1 2. Intermediate Scrutiny. 2 Plaintiffs alternatively argue that DACA recipients constitute a quasi-suspect class 3 warranting heightened scrutiny. Plaintiffs rely on High Tech Gays v. Defense Industrial 4 Security Clearance Office, 895 F.2d 563 (9th Cir. 1990), which held that heightened 5 scrutiny applies to plaintiffs who (1) have suffered a history of discrimination; (2) exhibit 6 obvious, immutable, or distinguishing characteristics that define them as a discrete group; 7 and (3) show that they are a minority or politically powerless. Id. at 573. The Court 8 cannot conclude that Plaintiffs are likely to qualify for heightened scrutiny under this test. 9 Plaintiffs contend that they constitute a discrete group with obvious, immutable, or 10 distinguishing characteristics because they have been provided EADs with the unique 11 (c)(33) category code. But the Court is not persuaded that this category code constitutes 12 the same kind of distinguishing characteristic as gender or illegitimacy. See Lockhart v. 13 McCree, 476 U.S. 162, 175 (1986) (noting that “race, gender, or ethnic background” are 14 examples of immutable characteristics). And the Supreme Court in Plyler held that the 15 plaintiffs’ undocumented status is not “an absolutely immutable characteristic since it is 16 the product of conscious, indeed unlawful, action.” 457 U.S. at 220. In addition, because 17 individuals identified by the (c)(33) category code have been in existence only since the 18 recent start of the DACA program, Plaintiffs likely cannot show that such individuals 19 have suffered a history of discrimination. 20 Plaintiffs argue that they are politically powerless because they have been granted 21 federal authorization to live and work in the United States, but still cannot vote. 22 Accepting this argument would ignore the political realities of the national immigration 23 scheme and the fact that the law, not discrimination, denies them the right to vote. See 24 Foley, 435 U.S. at 295 (“It would be inappropriate, however, to require every statutory 25 exclusion of aliens to clear the high hurdle of strict scrutiny, because to do so would 26 ‘obliterate all the distinctions between citizens and aliens, and thus depreciate the historic 27 values of citizenship.’” (quoting Nyquist, 432 U.S. at 14 (Burger, C.J., dissenting))). Nor 28 can the Court conclude that persons unable to vote are necessarily politically powerless. - 22 - 1 In City of Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432 (1985), the Supreme 2 Court held that the mentally disabled, including the severely disabled, were not politically 3 powerless because they had the ability to “attract the attention of the lawmakers.” Id. at 4 445; see also High Tech Gays, 895 F.2d at 574. The DACA program itself attests to the 5 fact that Plaintiffs have attracted the attention of policymakers in the federal government. 6 Plaintiffs also cite Plyler as an intermediate scrutiny case and argue that the Court 7 should apply its rationale. Plyler, however, is an anomaly. It does not apply intermediate 8 scrutiny. See 457 U.S. at 217-18 n. 16 (discussing but not applying intermediate scrutiny 9 review). Plyler appears to apply a hybrid form of review, stating that the Texas law in 10 question “can hardly be considered rational unless it furthers some substantial goal of the 11 State.” Id. at 224 (emphasis added). However one characterizes this unusual standard, 12 the Court cannot agree that it applies here. Plyler emphasized two facts as justifying its 13 higher level of review: (1) the age of the undocumented children (id. at 223 (“[the law] 14 imposes a lifetime hardship on a discrete class of children not accountable for their 15 disabling status”)), and (2) the importance of education to those children and the entire 16 nation (id. at 221 (“education has a fundamental role in maintaining the fabric of our 17 society”)). Unlike the class of undocumented children in Plyler, DACA recipients, and 18 specifically Plaintiffs in this putative class action, are older – between 18 and 26. Doc. 1, 19 ¶¶ 19-23. Because of their age, Plaintiffs are not like the young children in Plyler whose 20 compliance with the law was entirely dependent on the conduct of parents who decided to 21 enter the United States illegally and remain here in violation of the law. And unlike 22 education, a driver’s license does not provide “the basic tools by which individuals might 23 lead economically productive lives to the benefit of us all.” Id. at 221. Plaintiffs have 24 not argued – nor could they – that a driver’s license has the same significance to an 25 individual or society as a primary school education. 26 27 The Court concludes that Plaintiffs have not shown that they are likely to qualify for heightened scrutiny. 28 - 23 - 3. 1 Rational Basis Scrutiny. 2 “Under traditional rational basis analysis, a state law classification that ‘neither 3 burdens a fundamental right nor targets a suspect class’ will be upheld ‘so long as it bears 4 a rational relation to some legitimate end.’” LeClerc, 419 F.3d at 421 (emphasis in 5 original) (quoting Vacco v. Quill, 521 U.S. 793, 799 (1997). But “even the standard of 6 rationality . . . must find some footing in the realities of the subject addressed by the 7 legislation.” Heller v. Doe, 509 U.S. 312, 321 (1993). 8 Cases have varied in their application of the rational basis test. Many apply the 9 test in a highly deferential manner, upholding the challenged law “if there is any 10 reasonably conceivable state of facts that could provide a rational basis for the 11 classification.’” Id. at 320 (quoting F.C.C. v. Beach Commc’ns, Inc., 508 U.S. 307, 313 12 (1993)). 13 reluctance of courts “to judge the wisdom, fairness, logic or desirability of those 14 choices.” LeClerc, 419 F.3d at 421. This approach reflects “deference to legislative policy decisions” and a 15 Other cases have applied a more rigorous form of rational basis scrutiny. This 16 analysis looks, at least initially, to the actual reasons for the challenged classification and 17 asks whether they are rationally related to a legitimate governmental objective. 18 Examples of this more active review include Supreme Court cases such as U.S. 19 Department of Agriculture v. Moreno, 413 U.S. 528 (1973), City of Cleburne v. Cleburne 20 Living Center, Inc., 473 U.S. 432 (1985), and Romer v. Evans, 517 U.S. 620 (1996). 21 These cases have applied the rational basis test in a more rigorous manner than the highly 22 deferential cases, and yet have done so without announcing a new level of review, 23 without acknowledging that they were departing from traditional rational basis analysis, 24 and without identifying the principles to be used in determining whether a more active or 25 a more deferential version of the rational basis test should be applied. 26 In Moreno, the Supreme Court applied rational basis review to an amendment of 27 the Food Stamp Act of 1964 that denied benefits to any household whose members were 28 not all related to each other. The Supreme Court found that “[t]he challenged statutory - 24 - 1 classification (households of related persons versus households containing one or more 2 unrelated persons) is clearly irrelevant to the stated purposes of the Act.” 413 U.S. at 3 534. The Court examined the amendment’s legislative history to determine whether the 4 challenged classification rationally furthered some other legitimate governmental interest. 5 Id. The Court concluded that the legislative history “indicate[d] that that amendment was 6 intended to prevent socalled ‘hippies’ and ‘hippie communes’ from participating in the 7 food stamp program,” and found that “[t]he challenged classification clearly cannot be 8 sustained by reference to this congressional purpose.” Id. “For if the constitutional 9 conception of ‘equal protection of the laws’ means anything, it must at the very least 10 mean that a bare congressional desire to harm a politically unpopular group cannot 11 constitute a legitimate governmental interest.” Id. at 534. The Court considered the 12 Government’s argument that the amendment was rationally related to the legitimate 13 interest “in minimizing fraud in the administration of the food stamp program,” but 14 determined that the existence of other provisions within the Act that were intended to 15 prevent those same abuses “casts considerable doubt upon the proposition that the . . . 16 amendment could rationally have been intended to prevent those very same abuses.” Id. 17 at 535-37. The Court concluded by noting that “[t]raditional equal protection analysis 18 does not require that every classification be drawn with precise ‘mathematical nicety.’ 19 But the classification here in issue is not only ‘imprecise’, it is wholly without any 20 rational basis.” Id. at 538. 21 In Cleburne, the Supreme Court used rational basis review to invalidate a zoning 22 ordinance that required a special permit for the operation of a home for the mentally 23 disabled. The Court noted that under rational basis review “[t]he State may not rely on a 24 classification whose relationship to an asserted goal is so attenuated as to render the 25 distinction arbitrary or irrational.” 473 U.S. at 446. The Court considered whether the 26 city had a legitimate interest in requiring a permit for the home while freely permitting 27 other care and multiple-dwelling facilities. Id. at 447-48. The Court found that any 28 difference between a group home for the mentally disabled and other multiple-dwelling - 25 - 1 facilities was not legitimate because the mentally disabled group home did not “pose any 2 special threat to the city’s legitimate interests[.]” Id. at 448. The city argued that the 3 special permit requirement was necessary because of the negative attitude of homeowners 4 located near the proposed facility, but the Supreme Court held that “[p]rivate biases may 5 be outside the reach of the law, but the law cannot, directly or indirectly, give them 6 effect.” Id. at 448 (quoting Palmore v. Sidoti, 466 U.S. 429, 433 (1984)). The city also 7 argued that nearby junior high school students might harass the facility’s occupants, but 8 the Court found this concern based on “undifferentiated fears.” Id. at 449. The Court 9 dismissed several other proffered grounds for the permit requirement, finding that none 10 of them bore a rational relationship to a legitimate governmental interest. Id. at 449-50. 11 The Court concluded “that requiring the permit in this case appears to us to rest on an 12 irrational prejudice against the mentally retarded[.]” Id. at 450. 13 In Romer, the Supreme Court found that a Colorado voter initiative that repealed 14 laws prohibiting discrimination based on sexual orientation failed rational basis review. 15 The Court noted “that laws of the kind now before us raise the inevitable inference that 16 the disadvantage imposed is born of animosity toward the class of persons affected.” 517 17 U.S. at 634. The Court found that “[t]he breadth of the amendment is so far removed 18 from these particular justifications that we find it impossible to credit them. We cannot 19 say that [the initiative] is directed to any identifiable purpose or discrete objective. It is a 20 status-based enactment divorced from any factual context from which we could discern a 21 relationship to legitimate state interests; it is a classification of persons undertaken for its 22 own sake, something the Equal Protection Clause does not permit.” Id. at 635. 23 A recent example of more rigorous rational basis review is Diaz v. Brewer, 656 24 F.3d 1008 (9th Cir. 2011). Diaz affirmed a district court’s order that preliminarily 25 enjoined Arizona from terminating the healthcare benefits of state employees’ same-sex 26 partners. Id. at 1010. The Ninth Circuit found the district court’s order “consistent with 27 long standing equal protection jurisprudence holding that ‘some objectives, such as a bare 28 . . . desire to harm a politically unpopular group, are not legitimate interests.’” Id. at - 26 - 1 1015 (quoting Lawrence v. Texas, 539 U.S. 558, 580 (2003) (O’Connor, J., concurring)). 2 The Ninth Circuit found that “the district court properly rejected the state’s claimed 3 legislative justification because the record established that the statute was not rationally 4 related to furthering such interests.” Id. at 1015. 5 In each of these cases, courts appear to have identified what they understood to be 6 the actual reason for the classification, to have found that reason impermissible, and 7 therefore to have found that the classification failed the rational basis test. Whether they 8 reflect private biases, negative attitudes towards certain classes of persons, or some other 9 perceived illegitimate basis, classifications arising from improper motives appear to draw 10 a more active level of review. The Court finds this kind of rational basis review to be 11 problematic. The rational basis test has long been viewed as reflecting the deference 12 courts should afford to the policy-making branches of government. The Court also finds 13 this more rigorous rational basis review, with its lack of guiding principles, to be 14 dangerously susceptible to invoking a judge’s own policy preferences. These concerns 15 notwithstanding, the Supreme Court and Ninth Circuit plainly have applied a more active 16 rational basis review in some cases, and those cases constitute precedent binding on this 17 Court. When the Court considers what appears to be the actual reason for Arizona’s 18 driver’s license policy, it concludes that the policy is likely to invoke, and fail, such 19 rational basis scrutiny. 20 C. Application of Rational Basis Review. 21 On June 15, 2012, the day Secretary Napolitano announced the DACA program, 22 Arizona Governor Brewer publicly denounced the program as “backdoor amnesty,” 23 “desperate political pandering by a president desperate to shore up his political base,” and 24 “pandering to a certain population.” Doc. 38, ¶ 12. Although the evidence shows that 25 ADOT thereafter undertook a review of its driver’s license policy in light of the DACA 26 program, that review had not reached a conclusion as of August 15, 2012, the day the 27 federal government began accepting DACA applications and the day on which Governor 28 Brewer issued her Executive Order. Director Halikowski testified that ADOT had not - 27 - 1 changed its policy as of August 15th and was still “in the process of coming up with a 2 recommendation.” Doc. 86-4 at 97-98; see also Doc. 60-1 at 12-15, ¶¶ 21-24. 3 The Governor, however, had made her decision. She issued the Executive Order 4 directing State agencies to deny DACA recipients “any taxpayer-funded public benefits 5 and state identification, including a driver’s license[.]” Doc. 1-1. Governor Brewer 6 explained that the Executive Order was necessary to make clear there would be “no 7 drivers [sic] licenses for illegal people.” Doc. 38, ¶ 13. 8 Once the Executive Order had been issued, ADOT had no discretion to reach a 9 different conclusion. The State’s chief executive had spoken and had directed the State’s 10 executive agencies, including ADOT, to ensure that no DACA recipients obtain driver’s 11 licenses. Doc. 1-1. Eight days later, on August 23, 2012, ADOT managers met to 12 discuss the scope of the policy they should adopt – whether to deny driver’s licenses to 13 DACA recipients alone, to all applicants who lack legal status in this country, or to all 14 applicants who lack legal status under an act of Congress. Doc. 86-4 at 185-87; Doc. 99- 15 1 at 262-63. Participants in the meeting noted that the second and third alternatives might 16 be “[m]ore defensible in court” (Doc. 99-1 at 263), but ultimately adopted the first – only 17 DACA recipients would be denied driver’s licenses. It appears that participants in this 18 meeting did not know that the EADs issued to DACA recipients would bear a different 19 code than those issued to other deferred action recipients. Doc. 86-4 at 186. Nor did they 20 know that DHHS would deny certain federal health benefits to DACA recipients, an 21 action that was not taken until several days later. Doc. 58-1 at 105-107, 111-12. 22 ADOT’s new policy became effective on September 17, 2012. It provided that an 23 EAD presented by a DACA recipient “is not acceptable” documentation for a driver’s 24 license. Doc. 34-4 at 4. ADOT continued, however, to accept EADs from others. 25 This record suggests that the State’s policy was adopted at the direction of 26 Governor Brewer because she disagreed with the Obama Administration’s DACA 27 program. The Governor strongly criticized the program as “backdoor amnesty” and 28 political “pandering” (Doc. 38, ¶ 12), and her comments related to the Executive Order - 28 - 1 show that she disagreed with the federal government’s conclusion that DACA recipients 2 are now authorized by federal law to be present in the country, referring to them as 3 “illegal people.” Doc. 38, ¶ 13. 4 The Court recognizes that a governor may legitimately disagree with the federal 5 government on policy and political matters, and certainly has the right to voice those 6 disagreements. But the Court cannot conclude that such views constitute a rational basis 7 for treating similarly situated people differently with respect to driver’s licenses. To 8 satisfy the rational basis test, the basis must not only be rational, it must also be related to 9 the government classification at issue – in this case, denial of driver’s licenses to some 10 deferred action recipients but not others. See Moreno, 413 U.S. at 533 (the “classification 11 itself” must be “rationally related to a legitimate governmental interest”). 12 Governor’s disagreement with the DACA program may be a rational political or policy 13 view in the broad sense – reasonable people certainly can disagree on an issue as 14 complex and difficult as immigration – but it provides no justification for saying that an 15 Arizona driver’s license may be issued to one person who has been permitted to remain 16 temporarily in the country on deferred action status – say for an individual humanitarian 17 reason – while another person who has been permitted to remain temporarily in the 18 country on deferred action status under the DACA program is denied a license. Both 19 individuals have been granted deferred action status through federal prosecutorial 20 discretion, both have been granted that status temporarily, both are eligible to work while 21 here, and both may be issued EADs.8 The Governor’s political disagreement with the 22 DACA program as “backdoor amnesty” does not change the fact that both individuals 23 have been allowed by the federal government to live and work here, nor does it identify a 24 reason that one of the individuals presents less of a driver’s-license-related risk to the 25 State. Thus, although some might view the Governor’s stated reasons for issuing the The 26 27 28 8 Work authorization and the issuance of an EAD is not automatic for DACA recipients or persons receiving other forms of deferred action. Both must apply separately for work authorization and are eligible only if they can establish “economic necessity for employment.” 8 C.F.R. § 274a.12(c)(14); Doc. 90-3 at 31, 42. - 29 - 1 Executive Order as rational, it is not related to the policy considerations that underlie the 2 issuance of driver’s licenses and therefore does not satisfy the rational basis test.9 3 Defendants have suggested several other rational bases for their policy: 4 (1) DACA recipients may not have authorized presence under federal law, and ADOT 5 therefore could face liability for issuing up to 80,000 driver’s licenses to illegal 6 immigrants or for not cancelling those licenses quickly enough if the DACA program is 7 subsequently determined to be unlawful; (2) issuing driver’s licenses to DACA recipients 8 could allow those individuals to access federal and state benefits to which they are not 9 entitled; (3) the DACA program could be revoked at any time and ADOT would have to 10 then cancel the licenses that had already been issued to DACA recipients; and (4) if 11 DACA was revoked or if DHS commenced removal proceedings against any DACA 12 recipient, as it could at any time, then the DACA recipient would be subject to immediate 13 deportation or removal and that individual could escape financial responsibility for 14 property damage or personal injury caused in automobile accidents. Doc. 60-1 at 12-15, 15 ¶¶ 8-20. The Court is not persuaded that any of these suggested justifications would 16 survive active rational basis review. 17 As their first justification, Defendants argue that they had uncertainty about 18 whether DACA recipients have an authorized presence in the United States under federal 19 law and were concerned they might face liability if they issued licenses to unauthorized 20 persons. 21 Defendants previously and routinely accepted all EADs as sufficient evidence of 22 authorized presence. Doc. 60-1 at 12-15, ¶¶ 25-26. Defendants did not previously 23 inquire into the meaning of EAD categorization codes or whether a particular kind of 24 EAD holder had lawful status or a pathway to lawful status. See generally Doc. 60-1 at But DACA recipients are issued EADs by the federal government, and 25 26 27 28 9 Plaintiffs argue that the Governor’s statements also evince hostility to DACA recipients and other illegal aliens. The Court need not, and does not, go so far as to ascribe such an intent to the Governor. The Governor’s strong disagreement with the DACA program was clearly stated and provides a sufficient basis for concluding that an active form of rational basis review is likely in this case, and that the Arizona policy probably will not survive such review. - 30 - 1 12-15, ¶¶ 25-26; Doc. 83-5, ¶¶ 2-6. This policy changed on September 17, 2012, but 2 only with respect to DACA recipients – they alone were denied driver’s licenses on the 3 basis of EADs. This fact strongly suggests that the sufficiency of EADs to prove lawful 4 presence was not the reason for the State’s action.10 5 Moreover, when asked in their depositions about the risk of state liability for 6 issuing driver’s licenses, ADOT Director Halikowski and Assistant Director Stanton 7 could not identify instances where ADOT faced liability for issuing licenses to 8 individuals who lacked authorized presence. Doc. 99 at 25. Halikowski provided only 9 one example of potential state liability – when ADOT had improperly issued a driver’s 10 license to a person convicted of driving under the influence of alcohol (Doc. 86-4 at 11 113:18–115:20), an instance quite unrelated to the prospect of issuing a license to a 12 person presenting a federally-issued EAD as proof of lawful presence under federal law. 13 Stanton could not provide any examples. Doc. 86-4 at 25:16–26:2. 14 In describing this justification and others, Defendants note that they were facing as 15 many as 80,000 driver’s license requests from DACA recipients, but this concern has not 16 been borne out by the numbers. Between 2005 and 2012, MVD issued approximately 17 47,500 driver’s licenses on the basis of EADs. Doc. 34-7 at 4-5. The prospect of issuing 18 driver’s licenses to an estimated 80,000 DACA eligible persons living in Arizona may 19 have raised initial concerns, but as of February 14, 2013, only 14,938 Arizona residents 20 have applied for the DACA program. Doc. 91-5 at 65. Any concern about the size of the 21 DACA program in Arizona would no longer appear to be a legitimate rationale for 22 distinguishing DACA recipients from other deferred action grantees. 23 As a second justification, Defendants express concern that issuing driver’s licenses 24 to DACA recipients could lead to improper access to federal and state benefits. But 25 Director Halikowski and Assistant Director Stanton testified that that they had no basis 26 10 27 28 Nor can the Court conclude that DACA recipients’ (c)(33) category code provided a legitimate basis for the State to doubt that they were lawfully present. The Executive Order was issued on August 15, the ADOT policy was formally changed on September 17, and Defendants did not learn about the new (c)(33) category code until October 10, 2012. See Doc. 60-1, at 12-15, ¶ 30. - 31 - 1 for believing that a driver’s license alone could be used to establish eligibility for such 2 benefits. Doc. 99 at 26. Both testified that they did not know whether a driver’s license 3 would entitle a person to receive public benefits. Doc. 86-4 at 117:11–119:6; Doc. 86-4 4 at 38:10–39:10. Moreover, because Defendants issue different license types, such as 5 temporary Type F licenses, it would appear that Defendants and others could distinguish 6 a person’s eligibility to obtain public benefits on the face of a license. See Doc. 86-4 at 7 41:10-42:11 (stating that MVD issues Type F licenses with shorter than regular 8 expiration dates “for duration of stay based on credentials that are presented” and that the 9 nature of the Type F license is apparent on its face). 10 Defendants’ third justification is that the DACA program might be canceled, 11 requiring the State to revoke driver’s licenses issued to DACA recipients. But the 12 depositions of Director Halikowski, Assistant Director Stanton, and MVD Operations 13 Director Charles Saillant show a general lack of knowledge regarding a revocation 14 process. Doc. 86-4 at 120:8–122:4; Doc. 86-4 at 164:17-22; Doc. 86-4 at 27:5–29:13. 15 Moreover, many aliens eligible to obtain a driver’s license under Defendants’ current 16 policy may be removed or deported while they have a valid Arizona driver’s license, and 17 yet this fact has not caused Defendants to deny them licenses. 18 Defendants’ fourth justification is that DACA recipients may have their status 19 revoked at any time and may be removed quickly from the country, leaving those they 20 have injured in accidents with no financial recourse. But this same concern exists with 21 respect to other deferred action recipients whose status may be revoked at any time, and 22 yet Defendants continue to issue them driver’s licenses. 23 In summary, the Court concludes that Defendants’ distinction between DACA 24 recipients and other deferred action recipients is likely to fail rational basis review. The 25 Court is not saying that the Constitution requires the State of Arizona to grant driver’s 26 licenses to all noncitizens or to all individuals on deferred action status. But if the State 27 chooses to confer licenses to some individuals with deferred action status, it may not 28 deny it to others without a rational basis for the distinction. See Diaz, 656 F.3d at 1013 - 32 - 1 (“when a state chooses to provide such benefits, it may not do so in an arbitrary or 2 discriminatory manner that adversely affects particular groups that may be unpopular.”). 3 IV. Likelihood of Irreparable Harm. 4 Generally, courts of equity should not act when the moving party “will not suffer 5 irreparable injury if denied equitable relief.” Younger v. Harris, 401 U.S. 37, 43-44 6 (1971). Plaintiffs have the burden to establish that, absent a preliminary injunction, there 7 is a likelihood – not just a possibility – that they will suffer irreparable harm. See Winter, 8 555 U.S. at 21-23. 9 consideration is irreparable. Mere injuries, however substantial, in terms of money, time 10 and energy necessarily expended in the absence of a stay, are not enough. The possibility 11 that adequate compensatory or other corrective relief will be available at a later date, in 12 the ordinary course of litigation, weighs heavily against a claim of irreparable harm.” 13 Sampson v. Murray, 415 U.S. 61, 90 (1974) (emphasis in original) (citation omitted). 14 Moreover, when seeking a mandatory injunction, as Plaintiffs do here, an even greater 15 showing of injury is required. Mandatory injunctions are “not granted unless extreme or 16 very serious damage will result.” Park Village, 636 F.3d at 1160. As the Supreme Court has explained, “[t]he key word in this 17 Plaintiffs argue that they will suffer the following irreparable harms in the absence 18 of a preliminary injunction: (1) deprivation of constitutional rights; (2) denial of driver’s 19 licenses, which hinders Plaintiffs’ efforts to find and maintain stable employment, 20 develop their resumes, and begin their careers; (3) emotional and psychological harm 21 caused by continued discrimination; and (4) reallocation of ADAC’s organizational 22 resources. The Court will address each category of harm separately. 23 A. Constitutional Violation. 24 Plaintiffs argue that being subjected to unconstitutional state action constitutes 25 irreparable injury, but this is too broad a statement. To be sure, some constitutional 26 violations virtually always cause irreparable harm. The Supreme Court has held, for 27 example, that “[t]he loss of First Amendment freedoms, for even minimal periods of 28 time, unquestionably constitutes irreparable injury.” Elrod v. Burns, 427 U.S. 347, 373 - 33 - 1 (1976). But Plaintiffs have not provided legal support for the proposition that all equal 2 protection violations cause irreparable harm. 3 The Eleventh Circuit has held that an equal protection violation alone is not 4 enough to show irreparable harm. See Ne. Fla. Chapter of the Ass’n of Gen. Contractors 5 of Am. v. City of Jacksonville, 896 F.2d 1283, 1285-86 (11th Cir. 1990) (“No authority 6 from the Supreme Court or the Eleventh Circuit has been cited to us for the proposition 7 that the irreparable injury needed for a preliminary injunction can properly be presumed 8 from a substantially likely equal protection violation.”). Instead, courts must look at the 9 injury caused by the discriminatory act and decide whether that injury is irreparable. Id. 10 The Ninth Circuit has declined to address this holding. See Associated Gen. Contractors 11 of Cal., Inc. v. Coal. For Econ. Equity, 950 F.2d 1401, 1412 n. 9 (9th Cir.1991). In 12 Monterey Mechanical Co. v. Wilson, 125 F.3d 702, 715 (9th Cir. 1997), however, the 13 Ninth Circuit recognized that money damages might not remedy unconstitutional 14 discrimination, but remanded the case for further evidence rather than holding that an 15 equal protection violation should be presumed to cause irreparable harm. 16 The Court concludes that it cannot presume a likelihood of irreparable harm 17 merely from the fact that Plaintiffs are likely to succeed on the merits of their equal 18 protection claim. The nature of the injury they will suffer from being denied equal 19 protection must be examined. Only if that injury is irreparable will injunctive relief be 20 warranted. This conclusion is reinforced by recent cases that have emphasized the need 21 for an actual showing of irreparable injury. In Flexible Lifeline Systems, Inc. v. Precision 22 Lift, Inc., 654 F.3d 989, 995 (9th Cir. 2011), the Ninth Circuit found that two recent 23 Supreme Court decisions, eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388 24 (2006), and Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7 (2008), 25 precluded a presumption of irreparable harm in copyright cases. eBay had rejected such a 26 presumption in patent cases, and Winter had found the Ninth Circuit’s granting of a 27 preliminary injunction on the mere “possibility” of irreparable harm to be too lenient. In 28 Flexible Lifeline, the Ninth Circuit stated that “[i]f our past standard, which required a - 34 - 1 plaintiff to demonstrate at least a possibility of irreparable harm, is ‘too lenient,’ then 2 surely a standard which presumes irreparable harm without requiring any showing at all 3 is also ‘too lenient.’” 654 F.3d at 997. These cases do not concern constitutional 4 violations, but they do reemphasize the importance of irreparable harm as an essential 5 element of injunctive relief. 6 B. Denial of Driver’s Licenses. 7 Plaintiffs argue that denial of driver’s licenses hinders their employment prospects 8 and imposes onerous restrictions on their daily lives because driving “is a necessity . . . 9 for the overwhelming majority of Arizona[ns].” Doc. 30 at 33-34. The five individual 10 Plaintiffs assert that without licenses they fear they will not be able to maintain or acquire 11 employment (Doc. 30 at 34 (citing Doc. 33, ¶ 6; Doc. 35, ¶ 7; Doc 36, ¶ 7) and cannot 12 drive their children to doctor’s appointments and attend to other family responsibilities 13 (Doc. 30 at 35 (citing Doc. 35, ¶ 9; Doc. 36, ¶5)). 14 These same individual Plaintiffs have acknowledged, however, that they either 15 drive or have readily available alternative means of transportation. One Plaintiff testified 16 that she drove herself to her lawyer’s office for her deposition in this case, drives her 17 sister’s car to work Monday through Friday of each week, has been driving for about four 18 years, and intends to continue driving to work and school in the future. Doc. 85-5 at 7- 19 10. Another Plaintiff testified that she drives her mother’s car six days a week, has been 20 driving since age 17, and drives herself to college and work. Doc. 85-7 at 3-8. Another 21 Plaintiff testified that he owns a car and drove to work daily for several years. Doc. 85-3 22 at 3-8. He stopped driving after he received his DACA permit because he does not want 23 to get in trouble. Id. at 8. Another Plaintiff owns a vehicle and drives daily. Doc. 85-6 24 at 7-8. The final Plaintiff testified that she drives from time to time, she or her husband 25 drives their children to the doctor’s office, her father sometimes drives her, and she never 26 has taken the bus and does not know the location of the nearest bus stop to her house. 27 Doc. 85-4 at 4-7. Given this testimony, the Court cannot conclude that Plaintiffs are 28 - 35 - 1 suffering irreparable harm from being unable to drive as a result of Defendants’ policy.11 2 Although one Plaintiff has stopped driving because of the DACA program and 3 instead commutes a significant distance to work by light rail and bus, that inconvenience 4 does not constitute irreparable injury. 5 substantial, in terms of money, time and energy necessarily expended in the absence of 6 [an injunction], are not enough.” Sampson, 415 U.S. at 90. Nor do they constitute the 7 “extreme or very serious damage” required for a mandatory injunction. Park Village, 8 636 F.3d at 1160. 9 C. As noted above, “[m]ere injuries, however Emotional Harm. 10 Plaintiffs argue that continued denial of driver’s licenses creates the perception 11 that Plaintiffs are inferior and results in emotional and psychological harm. As evidence 12 of this discriminatory impact, Plaintiffs point to the declaration and deposition testimony 13 of a single individual Plaintiff: “I feel discriminated when I went to the MVD to get a 14 driver’s license, and when they told me that I cannot get a driver’s license because of the 15 group of my category, but other group people can get it, so I felt discriminated and it was 16 not fair for me.” 17 description in a declaration: “I was crushed when I found out I couldn’t get a license. 18 Along with putting my job in jeopardy, it’s had a huge impact on me mentally. Governor 19 Brewer is treating me and people like me differently just because we’re Dreamers, even 20 though we have the same rights to live and work here as everyone else. When I got my 21 work permit, I was excited that I would finally be able to get a license. My brother and 22 sister both used their work permits to obtain driver’s licenses while their green card Doc. 96-1 at 109:22-110:1. The Plaintiff provided this further 23 24 25 26 27 28 11 During discovery in this case, Plaintiffs asked the Court to preclude Defendants from inquiring into how Plaintiffs were able to drive, obtain jobs, and engage in similar activities without valid Arizona driver’s licenses. The Court agreed to bar such inquiries, but in exchange precluded Plaintiffs from arguing that they are irreparably harmed either by being forced to engage in illegal activities or by fear of prosecution for engaging in such activities. Doc. 76. The Court reasoned that if Defendants cannot inquire into allegedly illegal activities, then Plaintiffs cannot use those activities to prove their case. As a result of this limitation, arrived at to protect Plaintiffs from possible incrimination while preserving Defendants’ ability to respond to their claims, the Court will not consider whether Plaintiffs’ fear of prosecution constitutes irreparable harm. - 36 - 1 applications were pending. But because I’m a DACA recipient, it wasn’t the same for 2 me. It’s terrible to be the target of discrimination.” Doc. 33, ¶ 8.12 3 Plaintiffs cite Chalk v. United States District Court Central District of California, 4 840 F.2d 701 (9th Cir. 1988), to support their claim that this emotional injury constitutes 5 irreparable harm. In Chalk, the plaintiff was transferred from a classroom teaching 6 position to an administrative position after he was diagnosed with AIDS. Id. at 703. The 7 district court found that the alternative job placement eliminated any irreparable injury, 8 but the Ninth Circuit disagreed: “Chalk’s original employment was teaching hearing- 9 impaired children in a small-classroom setting, a job for which he developed special 10 skills beyond those normally required to become a teacher. His closeness to his students 11 and his participation in their lives is a source of tremendous personal satisfaction and joy 12 to him and of benefit to them. The alternative work to which he is now assigned is 13 preparing grant proposals. This job is ‘distasteful’ to Chalk, involves no student contact, 14 and does not utilize his skills, training or experience. Such non-monetary deprivation is a 15 substantial injury which the court was required to consider.” Id. at 709. 16 Surely not every emotional effect constitutes an irreparable injury sufficient to 17 justify the extraordinary remedy of preliminary injunctive relief, and the Court cannot 18 conclude that the evidence of emotional harm presented by Plaintiffs in this case is 19 comparable to the harm described in Chalk. The emotional effect of being denied a 20 driver’s license simply is not the same as losing a job for which one has obtained special 21 training and experience, and the accompanying separation from special-needs children to 22 whom the plaintiff had become attached and whom he was uniquely qualified to help. 23 Moreover, the fact that Plaintiffs have presented evidence from only one of the named 24 Plaintiffs on this subject calls into question whether the emotional harms described are 25 12 26 27 28 Plaintiffs expand this argument in their reply brief to include emotional and psychological harm stemming from fear of being stopped and ticketed for not having a driver’s license. Doc. 99 at 36-38. In addition to the discovery limitation described in the previous footnote, the Court will not consider this argument because it was raised for the first time in a reply brief. See Bach v. Forever Living Prods. U.S., Inc., 473 F. Supp. 2d 1110, 1122 n. 6 (W.D. Wash. 2007); Gadda v. State Bar of Cal., 511 F.3d 933, 937 n. 2 (9th Cir. 2007). - 37 - 1 shared by other members of the Plaintiff class. Finally, the evidence does not show the 2 “extreme or very serious damage” required for mandatory injunctive relief. Park Village, 3 636 F.3d at 1160. 4 D. 5 Plaintiffs argue that ADAC suffers irreparable harm because it has been forced to 6 reallocate its organizational resources to “deal[] with the logistics of transporting its 7 members, rather than focusing on the organization’s core goals of improving community 8 education and civic participation.” Doc. 30 at 35. Plaintiffs clarify this argument in their 9 reply brief, asserting that “from the moment the state announced its policy, ADAC 10 leadership has spent no fewer than four hours a week, and up to fifteen hours a week, 11 every week, answering members’ questions and putting on workshops to help them 12 understand Arizona’s policy and its implications.” Doc. 99 at 38. ADAC’s Organizational Resource Reallocation. 13 ADAC apparently believes that its response to the Arizona policy is part of its 14 mission and purpose; otherwise, it would not provide the services described. The Court 15 has difficulty concluding that ADAC is suffering irreparable harm when it is fulfilling its 16 mandate – assisting those who seek to obtain the benefits of the proposed Dream Act and 17 the DACA program. 18 expended in the absence of [an injunction], are not enough.” Sampson, 415 U.S. at 90. 19 Nor do they amount to “extreme or very serious damage.” Park Village, 636 F.3d at 20 1160.13 Moreover, injuries of “money, time and energy necessarily 21 In summary, the Court concludes that Plaintiffs have not established that they are 22 likely to suffer irreparable injury in the absence of a preliminary injunction. Nor have 23 13 24 25 26 27 28 Plaintiffs cite Fair Housing of Marin v. Combs, 285 F.3d 899, 905 (9th Cir. 2002), Comite de Jornaleros de Redondo Beach v. City of Redondo Beach, 657 F.3d 936, 943 (9th Cir. 2011), El Rescate Legal Services, Inc. v. Executive Office of Immigration Review, 959 F.2d 742, 748 (9th Cir. 1991), and Havens v. Realty Corp. v. Coleman, 455 U.S. 363, 379 (1982), in support of the argument that ADAC will suffer irreparable harm from the frustration of its organization’s goals in the absence of a preliminary injunction. Doc. 30 at 35; Doc. 99 at 39. But these cases dealt with organizational standing, not irreparable harm to an organization. Id. Plaintiffs also cite National Fair Housing Alliance v. A.G. Spanos Construction, Inc., 542 F. Supp. 2d 1054, 1066 (N.D. Cal. 2008), but that case dealt with the sufficiency of an injunctive relief claim at the motion to dismiss phase. - 38 - 1 they shown the even higher level of injury required for a mandatory injunction. 2 V. Balance of Equities and the Public Interest. 3 In deciding whether to grant a preliminary injunction, “courts must balance the 4 competing claims of injury and must consider the effect on each party of the granting or 5 withholding of the requested relief. . . . [And] should pay particular regard for the public 6 consequences in employing the extraordinary remedy of injunction.” Winter, 555 U.S. at 7 24 (quotation marks and citations omitted). The Court concludes that the balance of equities does not strongly favor either 8 9 side. Plaintiffs undoubtedly are harmed to some degree by Defendants’ apparent 10 violation of their equal protection rights, but, as noted, all of the individual Plaintiffs 11 drive or have driven, all are able to travel to school and work, and Plaintiffs have not 12 shown a likelihood of irreparable harm. Defendants might be inconvenienced by an order 13 requiring them to issue driver’s licenses to Plaintiffs and their class, but Defendants 14 appear to issue licenses to similarly situated individuals without serious difficulties.14 15 The Court also concludes that public policy does not strongly favor either side. 16 Public policy surely disfavors violations of equal protection, but it also favors some 17 deference to the political branches of government. MOTION TO DISMISS 18 19 I. Legal Standard. 20 When analyzing a complaint for failure to state a claim to relief under Rule 21 12(b)(6), the well-pled factual allegations are taken as true and construed in the light 22 most favorable to the nonmoving party. Cousins v. Lockyer, 568 F.3d 1063, 1067 (9th 23 Cir. 2009). Legal conclusions couched as factual allegations are not entitled to the 24 assumption of truth, Ashcroft v. Iqbal, 556 U.S. 662, 680 (2009), and therefore are 25 insufficient to defeat a motion to dismiss for failure to state a claim, In re Cutera Sec. 26 27 28 14 The Ninth Circuit’s “serious questions” test also does not support issuing a preliminary injunction. Although serious questions going to the merits have been raised by Plaintiffs’ equal protection claim, the balance of hardships does not tip sharply in Plaintiffs favor. See Stormans, Inc. v. Selecky, 586 F.3d 1109, 1127 (9th Cir. 2009). - 39 - 1 Litig., 610 F.3d 1103, 1108 (9th Cir. 2010). To avoid a Rule 12(b)(6) dismissal, the 2 complaint must plead enough facts to state a claim to relief that is plausible on its face. 3 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). This plausibility standard “is not 4 akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a 5 defendant has acted unlawfully.” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 6 556). 7 II. Discussion. 8 Defendants move to dismiss Plaintiffs’ Supremacy Clause and equal protection 9 claims, and in the alternative move for summary judgment on the equal protection claim. 10 Having found that Plaintiffs have shown a likelihood of success on the merits of their 11 equal protection claim, the Court cannot conclude that Plaintiffs have failed to state such 12 a claim. Nor will the Court convert the motion to dismiss to one for summary judgment. 13 Only limited discovery has occurred thus far, and Plaintiffs have requested Rule 56(d) 14 relief. Doc. 91 at 44-51. 15 As to the Supremacy Clause claim, even under the lenient Rule 12(b)(6) standard, 16 the claim is not based on a cognizable legal theory. The parties’ legal arguments on the 17 motion to dismiss mirror their legal arguments on the motion for preliminary injunction. 18 As the Court concluded above, Plaintiffs’ per se preemption claim is legally incorrect and 19 their conflict preemption claim – based on a conflict between Arizona’s driver’s license 20 policy and Congress’s enactment of the INA – is not legally viable. 21 IT IS ORDERED: 22 1. Plaintiffs’ motion for preliminary injunction (Doc. 29) is denied. 23 2. Defendants’ motion to dismiss (Doc. 58) is granted in part and denied in part. Count one is dismissed; Count two survives. 24 25 3. The Court will set a hearing to schedule the remainder of this case. 26 Dated this 16th day of May, 2013. 27 28 - 40 -

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