(Corrected) Puente Ninth Circuit PFREB - FILED

Case: 15-15211, 05/16/2016, ID: 9978923, DktEntry: 127-2, Page 1 of 53
No. 15-15211
No. 15-15213
No. 15-15215
IN THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
PUENTE ARIZONA, ET AL.,
Plaintiffs-Appellees,
v.
JOSEPH M. ARPAIO, ET AL.,
Defendants-Appellants.
On Appeal From the United States District Court
for the District of Arizona
Case No. 2:14-CV-01356
The Honorable David G. Campbell
United States District Court Judge
PETITION FOR PANEL REHEARING AND
REHEARING EN BANC
Erwin Chemerinsky
Anne Lai
University of California, Irvine
School of Law
401 E. Peltason Dr.
Irvine, CA 92697
Telephone: (949) 824-9894
Facsimile: (949) 824-2747
echemerinsky@law.uci.edu
alai@law.uci.edu
Jessica Myers Vosburgh

National Day Laborer
Organizing Network
2104 Chapel Hill Rd.
Birmingham, AL 35216
Telephone: (215) 317-1481
jvosburgh@ndlon.org
Attorneys for Plaintiffs-Appellees

Jessica Karp Bansal

Emilou MacLean
National Day Laborer Organizing
Network
675 S. Park View St., Ste. B
Los Angeles, CA 90057
Telephone: (213) 380-2214
jbansal@ndlon.org
emi@ndlon.org
Cindy Pnuco
Joshua Piovia-Scott
Dan Stormer
Hadsell Stormer & Renick LLP
127 N. Fair Oaks Ave., Ste. 204
Pasadena, CA 91103
Telephone: (866) 457-2590
cpanuco@hadsellstormer.com
jps@hadsellstormer.com
dstormer@hadsellstormer.com
Daniel J. Pochoda
ACLU Foundation of Arizona
3707 N. 7th St., Ste. 235
Phoenix, AZ 85014
Telephone: (602) 650-1854
dpochoda@acluaz.org
Ray A. Ybarra Maldonado

Law Office of Ray A. Ybarra
Maldonado, PLC
2701 E. Thomas Rd., Ste. A
Phoenix, AZ 85016
Telephone: (602) 910-4040
rybarra@stanfordalumni.org

TABLE OF CONTENTS
Page(s)
TABLE OF AUTHORITIES ...................................................................... ii
INTRODUCTION AND RULE 35(B)(1) STATEMENT............................ 1
ARGUMENT ............................................................................................... 3
I.
The Panel Opinion Conflicts with Circuit Precedents on the

Application of Salerno .............................................................. 3
II.
The Panel Opinion Nullifies the Supreme Court's "Purpose"

and "Effects" Analysis and Creates a Novel "Exclusive
Impacts" Test ............................................................................ 8
III.
The Panel Unjustifiably Fails to Consider a Narrowed

Injunction in the Alternative ................................................. 14
CONCLUSION .......................................................................................... 16
TABLE OF AUTHORITIES
Page(s)
CASES
Ayotte v. Planned Parenthood of N. New England
546 U.S. 320 (2006) .................................................................... 14, 15
Chamber of Commerce of U.S. v. Brown
554 U.S. 60 (2008) .............................................................................. 8
Citizens United v. Federal Election Commission
558 U.S. 310 (2010) ...................................................................... 7, 15
City of Los Angeles, California v. Patel,
135 S. Ct. 2443 (2015) ..... 7
English v. General Electric Co.
496 U.S. 72 (1999) .............................................................................. 8
Exxon Corp. v. Hunt
475 U.S. 355 (1986) .................................................................... 15, 16
Gade v. National Solid Wastes Management Association
505 U.S. 88 (1992) .................................................................. 8, 10, 12
Garner v. Memphis Police Department
710 F.2d 240 (6th Cir. 1985) ........................................................... 14
Haywood v. Drown
556 U.S. 729 (2009) .......................................................................... 14
Hughes v. Oklahoma
441 U.S. 322 (1979) .......................................................................... 10
John Doe No. 1 v. Reed
561 U.S. 186 (2010) .......................................................................... 15
ii
Lopez-Valenzuela v. Arpaio
770 F.3d at 789 (9th Cir. 2014) ............................................... passim
Lozano v. City of Hazleton
724 F.3d 297 (3rd Cir. 2013) ......................................................... 2, 4
N.Y. State Conference of Blue Cross & Blue Shield Plans v.
Travelers Insurance Co.
514 U.S. 645 (1995) ............................................................................ 8
Oneok, Inc. v. Learjet, Inc.
135 S.Ct. 1591 (2015) ....................................................................... 11
Perez v. Campbell
402 U.S. 637 (1971) .......................................................................... 10
S. Pac. Transport Co. v. Public Utility Commission of State of Or.
9 F.3d 807 (9th Cir. 1993)............................................................ 8, 13
Sprint Telephony PCS, L.P. v. County of San Diego
543 F.3d 571 (9th Cir. 2008) ......................................................... 3, 4
Tennessee v. Garner
471 U.S. 1 (1985) ........................................................................ 14, 15
United States v. Arizona
641 F.3d 339 (9th Cir. 2011) ..................................................... 1, 4, 5
United States v. Salerno
481 U.S. 739 (1987) .................................................................. passim
United States v. South Carolina
720 F.3d 518 (4th Cir. 2013) ........................................................... 12
Wash. State Grange v. Wash. State Republican Party
552 U.S. 442 (2008) ............................................................................ 3
iii
STATUTES
A.R.S. 13-2002 .......................................................................................... 5
A.R.S. 13-2008 .......................................................................................... 1
A.R.S. 13-2009 .......................................................................................... 1
Act 69, 2011 S.C. Acts (S.B. 20) 6 .......................................................... 13
MISCELLANEOUS
Michael Dorf, Facial Challenges to State and Federal Statutes,
46 Stan. L. Rev. 235 (1994)......................................................................... 6
Richard Fallon, Fact and Fiction about Facial Challenges,
99 Cal. L. Rev. 915 (2011) ......................................................... 7, 12, 14, 15
Marc E. Isserles, Overcoming Overbreadth: Facial Challenges and the
Valid Rule Requirement, 48 Am. U. L. Rev. 359 (1998) ............................ 5
Scott A. Keller & Misha Tseytlin, Applying Constitutional Decision
Rules Versus Invalidating Statutes in Toto, 98 Va. L. R. 301 (2012) ... 4, 6
Gillian Metzger, Facial and As-Applied Challenges
Under the Roberts Court, 36 Fordham Urb. L. J. 773 (2008) ................. 16
Hiroshi Motomura, The Rights of Others: Legal Claims and
Immigration Outside the Law, 59 Duke L.J. 1723 (2010)......................... 7
iv
INTRODUCTION
AND RULE 35(B)(1) STATEMENT
The panel decision in this case upholds a pair of measures
conceived of as part of Arizonas state-level immigration strategy of
attrition through enforcement.1 The measures, passed in 2007 and
2008, turned unauthorized immigrant workers into felons by
capitalizing on the practical reality that, because of federal law, they
could not obtain employment in the state without relying on false
identity information.2 The panel opinion, in reaching its result:
establishes new hurdles for litigants bringing facial constitutional
challenges that conflict with controlling Ninth Circuit precedent,
see, e.g., Lopez-Valenzuela v. Arpaio, 770 F.3d 772 (9th Cir. 2014)
(en banc);
creates an intra- and inter-circuit split on a question of
exceptional importancei.e., how United States v. Salerno, 481
U.S. 739 (1987) is applied in preemption cases, see United States v.
Arizona, 641 F.3d 339, 346 (9th Cir. 2011), aff'd in part, rev'd in
See, e.g., 1-SER-152 (statement of primary sponsor Rep. Pearce). The

goal of the attrition policy is to make life so difficult for undocumented
2 H.B. 2779, also known as the Legal Arizona Workers Act, amended
A.R.S. 13-2009 to create a new ground of aggravated identity theft for
use of the information of another personreal or fictitiouswith the
intent to obtain employment. 1-SER-72. The next year, H.B. 2745
expanded Arizonas non-aggravated identity theft statute, A.R.S. 132008, to target use of identifying information for employment. 1-SER84. The District Courts preliminary injunction reached only these
provisions (hereinafter the worker identity provisions), leaving the
remainder of Arizonas identity theft statutes intact.
1
part and remanded, 132 S. Ct. 2492 (2012); Lozano v. City of

Hazleton, 724 F.3d 297, 313 n.22 (3rd Cir. 2013);
subverts the Supreme Courts purpose and effects test for
analyzing the preemption of state statutes, see infra Part II,
replacing it with a novel exclusive impacts standard; and
unjustifiably refuses to consider partial invalidation, at a
minimum, thus inviting states to flout federal law by crafting
statutes just broad enough to immunize them from constitutional
scrutiny.
The Arizona worker identity provisions became the focus of
national attention due to Defendant-Appellant Sheriff Joseph Arpaios
controversial method of enforcing them through high-profile worksite
raids. See, e.g., 1-SER-196-97. The decision of the panel (Judges
Tallman, Silverman and Lasnik3) reverses a carefully reasoned decision
by District Judge David Campbell granting a preliminary injunction to
Plaintiffs-Appellees. That District Court decisionwhich found the
challenged provisions likely unconstitutional under the Supremacy
Clause based on their text, purpose and practical effectsbrought a
temporary halt to the seven-year enforcement campaign that had
separated hundreds of breadwinners from their families and spread fear
among an already exploitable segment of the workforce.14-ER-3187-88
Garcia Decl. 17-19, 23-24.
The panels opinion now leaves Arizonas immigrant community
without protection from the raids. The panel does not deny that reversal
3
Sitting by designation.
2
of the injunction will cause irreparable harm to Plaintiff-Appellees. Nor

does it disagree with Plaintiffs-Appellees or the United States that state
efforts to punish fraud by undocumented workers to demonstrate work
authorization intrude upon an area of exclusive federal control and
disrupt the congressional calibration of force. Slip Opinion (Op.) at 1720; Amicus Brief of the United States (Dkt. 116) (US Br.) at 11-20.
If left undisturbed, the panel opinion will have dangerous and
wide-ranging impacts. Plaintiffs-Appellees respectfully request
rehearing under Federal Rules of Appellate Procedure 35 and 40 to
ensure uniformity of the Courts decisions and preserve future litigants
ability to turn to the courts for the protection of constitutional rights.
ARGUMENT
I.
The Panel Opinion Conflicts with Circuit Precedents on

the Application of Salerno
In upholding the Arizona measures, the panel adopts an illogical
and ultimately untenable reading of Salerno that conflicts with the law
of this Circuit. The issue is not whether Salerno applies to facial
preemption challengesthe parties all agree it does.4 The issue is about
how the Salerno standard works in a preemption case. Recently, this
4
See Sprint Telephony PCS, L.P. v. County of San Diego, 543 F.3d 571,
579 n. 33 (9th Cir. 2008) (en banc). As courts and commentators have
observed, there is some debate as to whether, outside of the First
Amendment context, the Salerno test should continue to be controlling
or whether statutes should instead be judged against a plainly
legitimate sweep standard. Wash. State Grange v. Wash. State
Republican Party, 552 U.S. 442, 449 (2008) (citation omitted). For
purposes of this petition, Plaintiffs-Appellees assume that the Salerno
no set of circumstances formulation applies.
3
Court explained that, under Salerno, where a statute itself violates the
constitutional decision rule at issue, the entire statute fails . . . and
thus would be invalid in all of its applications. Lopez-Valenzuela, 770
F.3d at 789 (quoting Scott A. Keller & Misha Tseytlin, Applying
Constitutional Decision Rules Versus Invalidating Statutes in Toto, 98
Va. L. R. 301, 331 (2012)). This principle applies as well to preemption
cases. See infra Part II (describing decision rule in this case).
Rather than trying to determine if the constitutional decision rule
invalidated the worker identity provisions, defying the clear instruction
of Lopez-Valenzuela, the panel went straight to identifying applications
that (in its view) did not implicate federal interests. See Op. 17, 20. This
gets the analysis backwards, and creates a serious intra-circuit conflict.
As the Court admonished in Arizona:
Arizonas framing of the Salerno issue assumes that S.B.
1070 is not preempted on its face, and then points out
allegedly permissible applications of it. This formulation
misses the point: there can be no constitutional
application of a statute that, on its face, conflicts with
Congressional intent and therefore is preempted by the
Supremacy Clause.
641 F.3d at 345-46 (discussing Sprint). The Third Circuit has similarly
rejected the notion that a hypothetical factual scenario in which
implementation . . . would not directly interfere with federal law would
be able to save a statute from preemption. Lozano, 724 F.3d at 313
n.22;5 see also Marc E. Isserles, Overcoming Overbreadth: Facial
Lozano noted, as this Court also has, that the Supreme Court has not
discussed Salerno in key preemption cases since it was decided. Id.;
Arizona, 641 F.3d at 345 n.3. This would be consistent with notion that
Challenges and the Valid Rule Requirement, 48 Am. U. L. Rev. 359,

386-87 (1998) (explaining that valid rule facial challenges asserting an
infirmity in a statute itself meet the Salerno standard).
Ignoring Lopez-Valenzuela and Arizona, the panel rests its
conclusion that the worker identity provisions are not facially
preempted on the example of a U.S. citizen who was prosecuted because
she sought to conceal a past conviction record from her employer.6 The
panel asserts that Congress could not have intended to prevent Arizona
officials from prosecuting individuals like her. See Op. at 17. But the
question is not whether Congress sought to preclude states from
criminalizing the conduct of individuals like this U.S. citizen. Arizona is
free to prosecute her under other, constitutional statutes that do not
trench upon federal immigration policy.7 The question is whether the
worker identity provisions conflict with congressional intent by
targeting a field reserved for federal regulation, such that they should
Salerno does not pose a problem where a statute is preempted from the
start.
6 See infra at 11 (identifying the only two cases brought by DefendantsAppellants in which an individual appeared to have a non-immigration
purpose). It is unknown whether this individual made the false
representation as part of the employment verification process or not.
7 Indeed, she could be (and in fact was) prosecuted under Arizonas
generally applicable forgery statute, A.R.S. 13-2002. 1-ER-665-67.
Alternatively, Arizona could have enacted a statute addressing identity
theft in employment in a narrow class of cases not involving
immigration.
5
be invalidated on their face. If the answer is yes, then even the

enforcement of the provisions against a U.S. citizen is invalid.8
Application of the panels approach to the facts of LopezValenzuela reveals the obvious tension between the two decisions. In
Lopez-Valenzuela, if the en banc Court had engaged in the sort of
analysis the panel conducted here, it would have conjured up examples
of class members denied an individualized bond hearing under
Arizonas bail law, Proposition 100, who could have been denied a
hearing under a different, arguably defensible statute (e.g., a statute
categorically denying bail in a capital case). Based on those examples,
under this panels logic, Proposition 100 could not have been struck
down. But the Court did not take that approach. Instead, it found that
because Proposition 100 was not carefully limited to serve the interest
of assuring that defendants appear for trial, the law failed the test for
substantive due process and was invalid even as to persons who could
be detained consistent with due process under a different . . . statute[.]
Lopez-Valenzuela, 770 F.3d at 789. If the Court had found Proposition
100 to have a punitive purpose, cf. id. at 789-90, then the result would
have been the same. See Michael Dorf, Facial Challenges to State and
Federal Statutes, 46 Stan. L. Rev. 235, 279-81(1994) (discussing how
statutes enacted with a prohibited purpose can have no valid
applications and citing cases).
Keller & Tseytlin, supra, at 314 (discussing theory that all
individuals have the right not to be subject to unconstitutional laws . . .
even if their conduct could have been banned under a different,
hypothetical statute).
As Richard Fallon explains in Fact and Fiction about Facial

Challenges, 99 Cal. L. Rev. 915 (2011), facial invalidation of statutes
outside of the First Amendment context is far more common than the
conventional wisdom suggests. He points to numerous examples where
the Supreme Court has struck down laws on their face without first
insisting on as-applied challenge where doing so, in its view, best
effectuates a constitutional principle. Id. at 946-48; see also Citizens
United v. Fed. Election Comm'n, 558 U.S. 310, 329-36 (2010) (voiding
statute prohibiting certain campaign expenditures); City of Los Angeles,
Calif. v. Patel, 135 S. Ct. 2443 (2015) (overturning municipal code
provision under Fourth Amendment). Courts willingness to pronounce
laws invalid extends to cases brought to enforce the Constitutions
structural provisions, including the Supremacy Clause. Fallon, supra,
at 936.
In the immigration context, the Supremacy Clause has served as a
bulwark against measures borne of local prejudice towards
undocumented immigrants and their families. See Hiroshi Motomura,
The Rights of Others: Legal Claims and Immigration Outside the Law,
59 Duke L.J. 1723, 1739-45 (2010). The panels flawed and extreme
interpretation of Salerno creates nearly insurmountable hurdles for
would-be plaintiffs seeking to challenge the validity of state statutes in
the future and will invite confusion about facial challenges in
preemption cases. It should be reconsidered.
II.
The Panel Opinion Nullifies the Supreme Courts

Purpose and Effects Analysis and Creates a Novel
Exclusive Impacts Test
The panels decision also conflicts with binding Supreme Court
law, under which courts examining preemption challenges to state laws

that overlap with a federal field must look to the state laws purpose
and practical effects to determine if it may stand. See, e.g., N.Y. State
Conference of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 514
U.S. 645, 658 (1995) (after determining that New York law made no
explicit reference to ERISA, looking to its purpose and effect to
decide preemption claim); Chamber of Commerce of U.S. v. Brown, 554
U.S. 60, 70 (2008) (holding California statute preempted by NLRA
where legislative purpose is . . . the furtherance of a labor policy). As
this Court explained in S. Pac. Transp. Co. v. Pub. Util. Commn of
State of Or., 9 F.3d 807 (9th Cir. 1993), the goal of looking at state
legislative purpose and effects is not to diminish congressional intent
it is to honor it. Id. at 811 (the [relevant] field is defined by reference to
the purpose of the state law in question, and to fall within the
preempted field, [the state law] must have some direct and substantial
effect) (quoting English v. Gen. Elec. Co., 496 U.S. 72, 84, (1999));
accord Gade v. Nat'l Solid Wastes Mgmt. Ass'n, 505 U.S. 88, 105-06
(1992). Faithful application of the constitutional decision rule in this
case should have compelled the panel to conclude that the Arizonas
worker identity provisions are invalid on their face.
There could be no clearer case of ostensibly neutral state
measures having a prohibited purpose and effect than those challenged
8
here. First, the titles and official descriptions of H.B. 2779 and H.B.
2745 make explicit that the proposals were intended to address
employment of undocumented immigrants. 1-ER-26; 1-SER-107 (Senate
Amended Fact Sheet for H.B. 2779); 1-SER-118 (House Summary for
H.B. 2745).9 Moreover, contrary to the panels speculation that the bills
were also aimed at curbing . . . identity theft in general, Op. at 8, the
unrefuted record evidence demonstrates that the purpose of the worker
identity provisions was to punish undocumented workers and express
Arizonas disapproval of federal policy in the area. For example,
legislators advocating for the bill:
urged that the provisions be strong enough to ensure
unauthorized workers stay in jail and never be allowed to be
citizens of the United States again, 1-SER-190 (statement of Sen.
Tom OHalleran);
noted that unauthorized workers should be punished harshly
under the provisions because doing otherwise would be viewed as
a weakening of our . . . opposition to illegal immigration, 1-SER187 (statement of Sen. Robert Burns);
explained that state action was necessary because the Feds have
not done their job to quell the national epidemic of unlawful
immigration that threatens the destruction of our country, 1SER-149-51 (statement of Rep. Pearce).
H.B. 2745 even included a corollary provision for employers who
knowingly accepted false identity information from a person for the
purpose of determining whether the person has the legal right or
authorization . . . to work under 8 [U.S.C. ] 1324a. 1-SER-84.
As the District Court found, Defendants provide[d] no legislative

history that shows a contrary or any other intent. 1-ER-27.10
The panel downplays the significance of this overwhelming
evidence of impermissible legislative purpose, holdingin direct conflict
with the Supreme Court precedent cited abovethat it does not matter
if Arizona passed the identity theft laws for a good or bad purpose. Op.
at 16 (emphasis added). The panel cites several cases to support this
astonishing conclusion, but none of them do. Rather, in every precedent
cited by the panel for the proposition that courts should look beyond
state legislative purpose, lawmakers had professed some non-prohibited
motive. See, e.g., Hughes v. Oklahoma, 441 U.S. 322, 336-38 (1979)
(examining Commerce Clause challenge where state claimed legitimate
local purpose); Gade, 505 U.S. at 105-06 (refusing to save state law from
preemption simply because legislature articulates a purpose other than
(or in addition to) workplace health and safety); Perez v. Campbell, 402
U.S. 637, 651-52 (1971) (overruling prior preemption cases enabl[ing]
state legislatures to nullify nearly all unwanted federal legislation by
simply . . . articulating some state interest or policyother than
frustration of the federal objectivethat would be tangentially
furthered by the proposed state law). The reason courts looked beyond
purpose to practical effect, then, was to discern the true target of state
regulation. Oneok, Inc. v. Learjet, Inc., 135 S. Ct. 1591, 1599-1600
(2015) (analyzing precedents and emphasizing that key is to consider
The Federal Trade Commission statistics cited by the panel regarding
identity theft complaints in Arizona, Op. at 8 n.2, were nowhere to be
found in the legislative record.
10
10
the target at which the state law aims). Where state lawmakers are,
as here, transparent about their purpose to frustrate Congressional
intent, the law does not permit the Court to look the other way. Id. at
1600 (rejecting dissents contention, similar to the panels view here,
that the Court should focus on what the State seeks to regulate . . . not
why the State seeks to regulate it).
Of course, in this case, the practical effect of the worker identity
provisions has been fully consistent with their purpose. In other words,
if what matters is whether the legislature succeeded in disrupting the
federal scheme, the answer is a resounding yes. See 1-ER-27
(concluding that laws would [] have the most impact on unauthorized
[immigrants]); see also US Br. at 20 (enforcement against persons who
commit fraud to demonstrate authorization to work interferes with
federal control). Defendants-Appellants had been enforcing the worker
identity provisions for years before the District Court entered its
injunction, and they could point to only two cases in the record where
individuals were prosecuted for using a false identity for a nonimmigration purpose. Appellants Opening Brief (AOB) at 9 n.2; see 4ER 593-96, 664; 5-ER-900-01, 905. See also 1-ER-27 (citing Sheriffs
Office News Release reporting that 100% of [] suspects arrested in 55
worksite raids were illegal aliens); 1-SER 222 (County Attorneys
Office report referring to worker identity provisions as Illegal
Immigration Legislation).11
The question on a facial challenge is what the practical effects of a
law were at the time of passage. Here, it was entirely predictable that
the laws would have primarily been enforced against undocumented
11
11
Rather than trying to determine whether the true target of the

worker identity provisions was to enter the federally regulated field, the
panel judged Arizonas laws under a more absolute standard, requiring
that there be not be a single (actual or hypothetical) application that
has impacts outside of the field. See Op. at 17. But this approach, newly
minted by the panel, is unsupported by any precedent. In fact, as the
Supreme Court has already declared, a law directed at a preempted
field is not saved from pre-emption simply because the State can
demonstrate some additional effect outside [the preempted area].
Gade, 505 U.S. at 107.
Moreover, the panels approach does not reflect the way that
preemption doctrine has been applied in the immigration context. For
example, in United States v. South Carolina, 720 F.3d 518 (4th Cir.
2013), the Fourth Circuit found that Congress had occupied the field of
creating, possessing, and using fraudulent immigration documents
and struck down a South Carolina statute making it unlawful for any
immigrants. Because they lack proof of authorization to work,
undocumented immigrants cannot pass the employment verification
process without using false identity information. See 14-ER-3200
Cervantes Decl. 6; 14-ER-3186-87 Garcia Decl. 14-15.
Nevertheless, if there was any doubt that this would be the impact of
the laws, the record in this case resolves that doubt. See LopezValenzuela, 770 F.3d at 789 (striking down Proposition 100 laws where
they had been fully implemented and there was no possibility
officials would implement them in a narrower, constitutional manner);
cf. Fallon, supra, at 960 (explaining that many of the Supreme Courts
decisions rejecting facial challenges may be better understood as
reflecting ripeness concerns and uncertainty about judging practical
effects of a law in a pre-enforcement challenge).
12
person to display or possess a false or counterfeit ID for the purpose of

proving lawful presence in the United States. Id. at 532-33; see also Act
69, 2011 S.C. Acts (S.B. 20) 6(B). This provision certainly could have
applied to a U.S. citizen whom a state officer suspects of being
unlawfully present and demands identification from, and who, for the
purpose of proving lawful presence and complying with Section 6(B)(1)
of the Act, offers a false state drivers license because she or he wants to
avoid detection on an outstanding warrant. But the court did not accept
South Carolinas assertion that the provision address[ed] ordinary
fraud, and instead struck down the subsection in toto. South Carolina,
720 F.3d at 532.
In sum, purpose and effects, taken together, allow courts to
distinguish between state laws that have some tangential but
acceptable effect on a field of federal regulation, on the one hand, and
state laws that improperly regulate in a prohibited field, on the other.
See, e.g., S. Pac. Transp. Co., 9 F.3d at 811. The District Court did not
abuse its discretion in finding that the Arizona measureswhich
singled out employment-related identity theft and stigmatized the
survival activity of undocumented immigrantsfell into the latter. The
panels novel exclusive impacts test, on the other hand, cannot be
squared with Supreme Court precedent. It actually renders the
purpose and effects analysis meaningless. Unless the opinion is
corrected, the panels nullification of Supreme Court law will create
considerable turmoil for future litigants and courts.
13
III. The Panel Unjustifiably Fails to Consider a Narrowed

Injunction in the Alternative
Having concluded (erroneously) that the worker identity
provisions were not preempted in their entirety, the panel should have
taken the common sense step of considering whether the provisions
should be invalidated in part. Its failure to do so constitutes grave error.
As Lopez-Valenzuela noted, a court deciding a facial challenge
should consider whether there is any reasonable or readily apparent
narrowing construction that could allow the statute to be applied in a
constitutional manner. 770 F.3d at 789 (citation omitted). PlaintiffsAppellees do not believe severing the worker identity provisions to save
just a few anomalous applications is reasonable12thus, we have urged
invalidation of the provisions as a whole. However, if the panel was not
inclined to invalidate the provisions in their entirety, then the normal
rule of partial . . . invalidation of a statute should apply. Ayotte v.
Planned Parenthood of N. New England, 546 U.S. 320, 328-29 (2006)
(holding abortion law unconstitutional to the extent that it reaches too
far and failed to exempt minors who need to terminate their
pregnancies without delay to preserve life and health); Tennessee v.
Garner, 471 U.S. 1, 11 (1985) (holding state use of force statute
unconstitutional insofar as it authorized use of force against an
unarmed, non-violent suspect). This remedy is equally available in the
preemption context. See Haywood v. Drown, 556 U.S. 729, 736-42 (2009)
Indeed, this would appear contrary to state legislative intent. See
Fallon, supra, at 958. Arizona lawmakers were interested in these
measures precisely because of the impact they would have on unlawful
immigration. See supra at 9-10.
12
14
(finding New York scheme requiring certain damages actions to be filed

in state courts of limited jurisdiction preempted as to 1983 claims
though provision applied equally to state law claims); Exxon Corp. v.
Hunt, 475 U.S. 355, 358 (1986) (holding state law preempted as to
certain categories of cases).
The panel should have invalidated the Arizona provisions to the
extent they punish fraud committed to demonstrate work authorization
under federal immigration law.13 It is of little consequence that
Plaintiffs framed their challenge to the worker identity provisions on
this appeal as a facial one. Cf. Op. at 14. As the Supreme Court recently
stated in Citizens United, the distinction between facial and as-applied
challenges is not so well defined that it has some automatic effect or . . .
must always control the . . . disposition[.] 558 U.S. at 331; see also John
Doe No. 1 v. Reed, 561 U.S. 186, 194 (2010) (The label is not what
matters.). Indeed, in many cases cited above in which the Supreme
Court partially invalidated a statute, Plaintiffs and/or the lower courts
had characterized their challenge as a facial one. Ayotte, 546 U.S. at
325; Garner v. Memphis Police Dep't, 710 F.2d 240, 246 (6th Cir. 1983),
aff'd in part and remanded sub nom. Tennessee v. Garner, 471 U.S. 1
(1985); Exxon Corp., 475 U.S. at 361.
Nor did the panel need any more of a record to affirm the District
Courts preliminary injunction in part. Cf. Op. at 14. Where the
constitutional problem is apparent, certain categories of applications of
a state law that offend federal law may be struck down. See Fallon,
This is equivalent to the narrowed injunction suggested by the United
States in its amicus brief. US Br. at 25.
13
15
supra, at 924-25 (ruling of partial invalidity in a broad category of cases

generally less fact intensive than a ruling of invalidity in one specific
case). The record contains ample evidence of unconstitutional
applications of the worker identity provisions. See supra at 11-12.
By stating that some further record is necessary, the panel
conflates claims of a statutes partial invalidity with claims that officials
are enforcing a statute in an unconstitutional manner. If taken
seriously, the panels decision creates a risk that future litigants will be
relegated to bringing only a narrow type of facial challenge (one that
calls for invalidation of a statute in its entirety) or a narrow type of asapplied challenge (involving slow and costly post-enforcement
litigation). Cf. Gillian Metzger, Facial and As-Applied Challenges
Under the Roberts Court, 36 Fordham Urb. L. J. 773, 786-87 (2008)
(discussing dangers of such an approach for effectively enforcing the
Constitution). At the same time, it serves as an open invitation to the
States to flout federal law by including valid provisions within clearly
invalid statutes, thus rendering them (under the panels logic)
impossible to challenge facially and burdensome to challenge as applied.
Exxon Corp., 475 U.S. at 358 (declining, for this reason, to uphold state
law with some invalid applications). That simply cannot be the rule.
CONCLUSION
For the reasons stated above, this Court should grant PlaintiffsAppellees petition.
16
Dated: May 16, 2016
Respectfully Submitted,
By /s/ Anne Lai
Anne Lai
Erwin Chemerinsky
University of California, Irvine
School of Law
401 E. Peltason Dr., Ste. 3500
Irvine, CA 92616-5479
Jessica Myers Vosburgh
National Day Laborer
Organizing Network
2104 Chapel Hill Rd.
Birmingham, AL 35216
Jessica Karp Bansal
Emilou MacLean
National Day Laborer Organizing
Network
675 S. Park View St., Ste. B
Los Angeles, CA 90057
Cindy Pnuco
Joshua Piovia-Scott
Dan Stormer
Hadsell Stormer & Renick LLP
127 N. Fair Oaks Ave., Ste. 204
Pasadena, CA 91103
Daniel J. Pochoda
ACLU Foundation of Arizona
3707 N. 7th St., Ste. 235
Phoenix, AZ 85014
17
Ray A. Ybarra Maldonado

Law Office of Ray A. Ybarra
Maldonado, PLC
2701 E. Thomas Rd., Ste. A
Phoenix, AZ 85016
18
Form 11.
Certificate of Compliance Pursuant to

Circuit Rules 35-4 and 40-1
Form Must be Signed by Attorney or Unrepresented Litigant

and Attached to the Back of Each Copy of the Petition or Answer
(signature block below)

I certify that pursuant to Circuit Rule 35-4 or 40-1, the attached petition for panel rehearing/petition for rehearing en
banc/answer is: (check applicable option)
_X__
Proportionately spaced, has a typeface of 14 points or more and contains _4,200_____ words (petitions
and answers must not exceed 4,200 words).
or
____
Monospaced, has 10.5 or fewer characters per inch and contains _______
words or ________ lines of text (petitions and answers must not exceed
4,200 words or 390 lines of text).
or
____
In compliance with Fed. R. App. 32(c) and does not exceed 15 pages.
/s/ Anne Lai

___________________________
Signature of Attorney or
Unrepresented Litigant
(New Form 7/1/2000)
CERTIFICATE OF SERVICE
I hereby certify that I electronically filed the foregoing
PETITION FOR PANEL REHEARING AND REHEARING EN
BANC with the Clerk of the Court for the United States Court of
Appeals for the Ninth Circuit by using the appellate CM/ECF system on
May 16, 2016. I certify that all participants in the case are registered
CM/ECF users and that service will be accomplished by the appellate
CM/ECF system.
Dated: May 16, 2016
/s/ Anne Lai

Anne Lai
Appendix: Panel Opinion

May 2, 2016
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FOR PUBLICATION
UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT
PUENTE ARIZONA; SUSAN E.

FREDERICK-GRAY; SARA
CERVANTES ARREOLA, on behalf of
themselves and all others similarly
situated,
v.
JOSEPH M. ARPAIO, Sheriff of
Maricopa County, Arizona, in his
official capacity,
Defendant-Appellant,
and
BILL MONTGOMERY, Maricopa
County Attorney, in his official
capacity; COUNTY OF MARICOPA,
State of Arizona; STATE OF
ARIZONA,
Defendants.
No. 15-15211
D.C. No.
2:14-cv-01356DGC
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PUENTE ARIZONA V. ARPAIO

situated,
v.
official capacity; BILL
MONTGOMERY, Maricopa County
Attorney, in his official capacity;
COUNTY OF MARICOPA, State of
Arizona,
Defendants,
and
STATE OF ARIZONA,
Defendant-Appellant.
No. 15-15213
D.C. No.
2:14-cv-01356DGC
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situated,
v.
No. 15-15215
D.C. No.
2:14-cv-01356DGC
OPINION
BILL MONTGOMERY, Maricopa

County Attorney, in his official
capacity; COUNTY OF MARICOPA,
State of Arizona,
Defendants-Appellants,
and
official capacity; STATE OF
ARIZONA,
Defendants.
Appeal from the United States District Court

for the District of Arizona
David G. Campbell, District Judge, Presiding
Argued and Submitted
February 12, 2016San Francisco, California
Filed May 2, 2016
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Before: Barry G. Silverman and Richard C. Tallman,
Circuit Judges, and Robert S. Lasnik,* Senior District
Judge.
Opinion by Judge Tallman
SUMMARY**
Civil Rights
The panel vacated the district courts preliminary
injunction, reversed the district courts finding regarding the
merits of plaintiffs facial preemption claim, dismissed an
appeal by Maricopa County, and remanded, in an action
challenging provisions of Arizonas identity theft laws, which
prohibit using a false identity to obtain employment.
The panel first rejected plaintiffs assertion that Arizonas
employment-related identity theft laws were facially
preempted by the federal Immigration Reform and Control
Act. The panel determined that although some applications
of the identity theft laws may come into conflict with the
Immigration Reform and Control Acts comprehensive
scheme or with the federal governments exclusive discretion
over immigration-related prosecutions, when the laws are
applied to U.S. citizens or lawful permanent residents those
The Honorable Robert S. Lasnik, Senior United States District Judge

for the Western District of Washington, sitting by designation.
**
This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
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concerns are not implicated. Holding that Arizonas

employment-related identity theft laws were not preempted
in all applications, the panel vacated the district courts
preliminary injunction and reversed the district courts
finding that plaintiffs facial preemption challenge was likely
to succeed on the merits. The panel remanded with
instructions to evaluate the merits of plaintiffs remaining
claims, including the as-applied preemption challenge.
The panel dismissed Maricopa Countys appeal from the
district courts denial of the Countys motion to dismiss
pursuant to Monell v. Department of Social Services, 436
U.S. 658 (1978). The panel held that the Countys appeal did
not fall within one of the narrow categories where invoking
pendent jurisdiction would be proper.
COUNSEL
Dominic Draye (argued), John R. Lopez, IV, Office of the
Attorney General, Phoenix, Arizona, for Defendant-Appellant
State of Arizona.
Douglas L. Irish, Thomas P. Liddy, J. Kenneth Mangum, Ann
Thompson Uglietta, Maricopa County Attorneys Office;
Phoenix, Arizona, for Defendant-Appellant William
Montgomery.
Michele Marie Iafrate, Iafrate & Associates, Phoenix,
Arizona, for Defendant-Appellant Joseph M. Arpaio.
Jessica Vosburgh (argued) National Day Laborer Organizing
Network, Hoover, Alabama; Cindy Pnuco (argued), Joshua
Piovia-Scott, and Dan Stormer, Hadsell Stormer & Renick
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LLC, Pasadena, California; Anne Lai, University of

California, Irvine School of LawImmigrant Rights Clinic,
Irvine, California; Daniel J. Pochoda, ACLU Foundation of
Arizona, Phoenix, Arizona; Jessica Karp Bansal, National
Day Laborer Organizing Network, Los Angeles, California;
Ray A. Ybarra Maldonado, Law Office of Ray A. Ybarra
Maldonado, PLC, Phoenix, Arizona, for Plaintiffs-Appellees.
Victor Stone, Russell P. Butler, Maryland Crime Victims
Resource Center Inc., Upper Marlboro, Maryland; Steve
Twist, Arizona Voice for Crime Victims, Inc., Scottsdale,
Arizona, for Amici Curiae Arizona Voice for Crime Victims,
Inc., National Identity Theft Victim Assistance Network, Inc.,
and Maryland Crime Victims Resource Center Inc.
William L. Thorpe, Spencer G. Scharff, Thorpe Shwer, P.C.,
Phoenix, Arizona, for Amici Curiae Professors Doris Marie
Provine and Cecilia Menjvar.
Joshua T. Stehlik, Nicholas Espritu, National Immigration
Law Center, Los Angeles, California, for Amici Curiae
National Immigration Law Center, et al.
Benjamin C. Mizer, Principal Deputy Assistant Attorney
General, John S. Leonardo, United States Attorney, Beth S.
Brinkmann, Deputy Assistant Attorney General, Mark B.
Stern, Lindsey Powell, Jeffrey E. Sandberg, William E.
Havemann, Attorneys, Appellate Staff, Civil Division, United
States Department of Justice, Washington, D.C., for Amicus
Curiae United States of America.
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OPINION
TALLMAN, Circuit Judge:
An immigrant advocacy organization, Puente Arizona,
along with individual unauthorized aliens1 and taxpayers of
Maricopa County (collectively Puente), challenge
provisions of Arizonas identity theft laws which prohibit
using a false identity to obtain employment. The district
court found the laws facially preempted by federal
immigration policy and granted a preliminary injunction
preventing the Arizona government defendants (collectively
Arizona) from enforcing the challenged provisions.
Arizona appeals that preliminary injunction, and defendant
Maricopa County individually appeals its liability under
42 U.S.C. 1983 based on Monell v. Department of Social
Services, 436 U.S. 658 (1978). Because we find that the
challenged laws are not preempted in all applications, we
reverse the district courts holding that the laws are likely
facially preempted and we vacate the district courts
preliminary injunction. We also dismiss Maricopa Countys
Monell appeal for lack of jurisdiction. We remand for
consideration of the as-applied challenge to the statutes.
I
This case began when Arizona amended its identity theft
laws to reach the growing problem of employment-related
identity theft within the state. Arizona passed H.B. 2779 in
We use the term unauthorized alien throughout this opinion to refer

to aliens who have entered or are present in the United States in violation
of federal immigration law. Valle del Sol Inc. v. Whiting, 732 F.3d 1006,
1012 n.1 (9th Cir. 2013).
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2007, known as the Legal Arizona Workers Act, which

amended Arizonas aggravated identity theft statute, A.R.S.
13-2009. The statute now prohibits using the information
of another (real or fictitious) person with the intent to obtain
employment. A.R.S. 13-2009. In 2008, Arizona passed
H.B. 2745, titled Employment of Unauthorized Aliens,
which expanded Arizonas general identity theft statute to
also reach employment-related identity theft. See A.R.S.
13-2008(A).
These bills were passed, at least in part, in an effort to
solve some of Arizonas problems stemming from illegal
immigration. The titles of the legislation and the legislative
history show an intent on the part of Arizona legislators to
prevent unauthorized aliens from coming to and remaining in
the state. But these bills were also aimed at curbing the
growing and well-documented problem of identity theft in
Arizona. Between 2006 and 2008, Arizona had the highest
per-capita identity theft rates in the nation, and one third of
all identity theft complaints in the state involved
employment-related fraud.2
Since the laws were amended, Arizona has been
aggressively enforcing employment-related identity theft.
See Fed. Trade Commn, Consumer Fraud and Identity Theft

Complaint Data: January - December 2006 at 18, 22 (2007),
https://www.ftc.gov/sites/default/files/documents/reports_annual/sentinelcy-2006/sentinel-cy2006.pdf; Fed. Trade Commn, Consumer Fraud and
Identity Theft Complaint Data: January - December 2007 at 18, 22
(2008), https://www.ftc.gov/sites/default/files/documents/reports_annua
l/sentinel-cy-2007/sentinel-cy2007.pdf; Fed. Trade Commn, Consumer
Sentinel Network Data Book for January - December 2008 at 14, 20
(2009), https://www.ftc.gov/sites/default/files/documents/reports_annua
l/sentinel-cy-2008/sentinel-cy2008.pdf.
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Although most of these enforcement actions have been

brought against unauthorized aliens, some authorized aliens
and U.S. citizens have also been prosecuted. And while
many of the people prosecuted under the identity theft laws
used a false identity to prove that they are authorized to work
in the United States, other defendants used false documents
for non-immigration related reasons. For example, Arizona
has prosecuted U.S. citizens who used another individuals
identity to hide a negative criminal history from a potential
employer.
In response to these prosecutions, Puente challenged the
amended identity theft laws as unconstitutional for violating
the Supremacy Clause and the Equal Protection Clause. In an
attempt to repeal the identity theft laws, Puente sued
Maricopa County Sheriff Joseph Arpaio, Maricopa County
Attorney Bill Montgomery, Maricopa County, and the State
of Arizona. On August 8, 2014, Puente moved for a
preliminary injunction solely on its facial preemption claim.
Relying on recent Supreme Court precedent, Puente
argued that the federal Immigration Reform and Control Act
(IRCA) established a comprehensive framework for
regulating the employment of unauthorized aliens, and
therefore Arizonas employment-related identity theft laws
were facially preempted. See Arizona v. United States, 132 S.
Ct. 2492, 2504 (2012). The District Court agreed that the
laws were likely unconstitutional on their face and granted
the requested preliminary injunction on conflict and field
preemption grounds on January 5, 2015.
Specifically, the district court enjoined Arizona from
enforcing A.R.S. 13-2009(A)(3) and the portion of A.R.S.
13-2008(A) that addresses actions committed with the
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intent to obtain or continue employment.3 In the same

order, the district court also denied Maricopa Countys Rule
12(b)(6) motion to dismiss under Monell. Maricopa County
argued that its lack of control over Sheriff Arpaio shows that
he is not a final policymaker for the County. The district
court rejected that argument because control is just one factor
in the Monell policymaker analysis. The County moved for
reconsideration and the district court again held that the
Sheriff is a policymaker.
Arizona then filed this timely interlocutory appeal
challenging the district courts preliminary injunction.
Maricopa County also seeks review of the district courts
Monell holding. But there has been no final judgment entered
to date, and the merits of this case remain pending in the
district court. Importantly, the district court has yet to
consider the merits of Puentes as-applied preemption
challenge.
II
We turn first to the preliminary injunction. Preliminary
injunctive relief is subject to limited review on appeal. See
Flexible Lifeline Sys., Inc. v. Precision Lift, Inc., 654 F.3d
989, 99394 (9th Cir. 2011). A preliminary injunction should
only be set aside if the district court abused its discretion or
based its decision on an erroneous legal standard or on clearly
erroneous findings of fact. United States v. Peninsula
Commcns, Inc., 287 F.3d 832, 839 (9th Cir. 2002). The
district courts legal conclusions, such as whether a statute is
For the sake of simplicity, we will refer to these challenged provisions

as the identity theft laws.
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preempted, are reviewed de novo. See In re Korean Air Lines

Co., 642 F.3d 685, 691 n.3 (9th Cir. 2011).
To obtain a preliminary injunction, the plaintiff must
prove that he is likely to succeed on the merits, that he is
likely to suffer irreparable harm in the absence of preliminary
relief, that the balance of equities tips in his favor, and that an
injunction is in the public interest. Winter v. Nat. Res. Def.
Council, Inc., 555 U.S. 7, 20 (2008).4 Here, the district court
found that Puente met its burden on each element of the
Winter test. We disagree, and hold that Puente is not likely
to succeed on, and has not raised serious questions about, the
merits of its facial challenge. This conclusion is guided by
principles of preemption jurisprudence and the unique
burdens imposed on facial challenges.
We first address long-held principles of preemption.
Congress of course has the power, under the Supremacy
Clause, to preempt state law. Arizona, 132 S. Ct. at 2500.
Congress may exercise this power expressly or preemption
may be implied where the state law is in an area fully
occupied by federal regulation or where it conflicts with
federal law. Id. at 250001.
There are two types of conflict preemption. Id. at 2501.
Conflict preemption occurs where (1) it is impossible to
comply with both federal and state law, or (2) where the state
law stands as an obstacle to the accomplishment and
4
Because the Ninth Circuit utilizes a sliding scale approach to the
Winter test, a preliminary injunction is also appropriate when a plaintiff
raises serious questions as to the merits and the balance of hardships
tips sharply in [plaintiffs] favor. All. for the Wild Rockies v. Cottrell,
632 F. 3d 1127, 1135 (9th Cir. 2011) (internal quotations omitted).
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execution of the full purposes and objectives of Congress.

Id. (quoting Hines v. Davidowitz, 312 U.S. 52, 67 (1941)).
Field preemption can also take two forms. A law is field
preempted where (1) the regulatory framework is so
pervasive that there is no room for state regulation, or
(2) where the federal interest [is] so dominant that the
federal system will be assumed to preclude enforcement of
state laws on the same subject. Id. (quoting Rice v. Santa Fe
Elevator Corp., 331 U.S. 218, 230 (1947)).
In both field and conflict preemption cases, the
touchstone of our inquiry is congressional intent. Wyeth v.
Levine, 555 U.S. 555, 565 (2009). When analyzing
congressional intent we start with the assumption that the
historic police powers of the States were not to be superseded
by the Federal Act unless that was the clear and manifest
purpose of Congress. Id. (quoting Rice, 331 U.S. at 230).
Puente argues that this presumption against preemption does
not apply here because the identity theft laws do not regulate
in an area of historic state power.5 We reject this argument
because, while the identity theft laws certainly have effects in
the area of immigration, the text of the laws regulate for the
health and safety of the people of Arizona. See Medtronic
Inc. v. Lohr, 518 U.S. 470, 475 (1996). Therefore, only if
Congresss intent to preempt the challenged state statute is
clear and manifest may we deem the statute preempted.
See Wyeth, 555 U.S. at 565.
The Supreme Court rejected a similar argument in Wyeth and applied

the presumption against preemption even though the state tort claim at
issue in that case touched on an area of historic federal regulation. See
Wyeth, 555 U.S. at 565 n.3.
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We are also guided by the rules that apply to facial

challenges. United States v. Salerno, 481 U.S. 739, 746
(1987), instructs that to succeed on a facial challenge the
plaintiff must show that no set of circumstances exists under
which the Act would be valid. Salernos applicability in
preemption cases is not entirely clear, however. In the First
Amendment context, the Supreme Court recognizes a type of
facial challenge in which a statute will be invalidated as
overbroad if a substantial number of its applications are
unconstitutional, judged in relation to the statutes plainly
legitimate sweep. United States v. Stevens, 559 U.S. 460,
473 (2010) (quoting Washington v. Glucksberg, 521 U.S. 702,
740 n.7 (1997) (Stevens, J., concurring)). Whether the
substantial number of applications test applies to facial
preemption challenges has not yet been decided by the
Supreme Court. Without more direction, we have chosen to
continue applying Salerno. United States v. Arizona,
641 F.3d 339, 345 (9th Cir. 2011), affd in part, revd in part
and remanded, 132 S. Ct. 2492 (2012); Sprint Telephony
PCS, L.P. v. County of San Diego, 543 F.3d 571, 579 n.3 (9th
Cir. 2008) (en banc).6 We therefore proceed, keeping in mind
the high bar that Puente must overcome under Salerno before
The Supreme Courts majority opinion in Arizona does not cite

Salerno, which has led some courts to conclude Salerno does not apply to
facial preemption challenges. See Lozano v. City of Hazleton, 724 F.3d
297, 313 n.22 (3d Cir. 2013). Lozano is an immigration preemption case
in which the Third Circuit essentially found a strict application of
Salernos rule incompatible with substantive preemption doctrine. See id.
The district court in this case employed Lozanos reasoning to hold that
Salerno should not apply here. Salerno remains binding law in the Ninth
Circuit, however, and we are not free to ignore it. Sprint Telephony,
543 F.3d at 579 n.3 (In cases involving federal preemption of a local
statute, . . . the [Salerno] rule applies with full force.).
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we may strike down the identity theft laws on this facial

challenge.
Applying the preemption and facial challenges framework
discussed above, we conclude that the identity theft laws are
not facially preempted because they have obvious
constitutional applications. This case is made significantly
easier by the scope of Arizonas interlocutory appeal and the
text of the challenged provisions.
First, the scope of this appeal is limited. Puente moved
for a preliminary injunction based solely on its claim that the
identity theft laws are facially preempted under the
Supremacy Clause. See Pls. Mot. Prelim. Inj., Case No.
2:14-cv-01356-DGC (D. Ariz. Aug. 8, 2014) at 1 ([T]he
challenged provisions constitute a facially invalid state
intrusion into an area of exclusive federal control.). Based
on this facial challenge, Puente asked the district court to
enjoin enforcement of all applications of the identity theft
laws. See id. The district court has yet to address Puentes
as-applied challenge, and without a fully developed record we
think it inappropriate now to enjoin only certain applications
of the identity theft laws.7 See 16 C.J.S. Constitutional Law
We thank the United States for filing a helpful amicus brief in this
matter, but we decline to implement their suggestion to engage in an asapplied analysis. The United States agrees with us that the identity theft
laws are constitutional on their face but has asked us to narrow the
preliminary injunction to prohibit two applications of the laws:
(1) enforcement actions that rely on the Form I-9, and (2) prosecutions of
fraud committed to demonstrate work authorization under federal
immigration law. On this facial challenge we decline to enjoin certain
applications of the laws. The question of which applications of the laws
are preempted is properly left for the district court, which has yet to rule
or create a suitable record on Puentes as-applied challenge.
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243 (2016) (discussing the importance of factual findings

on an as-applied challenge).
Second, we think it significant that the identity theft laws
are textually neutralthat is, they apply to unauthorized
aliens, authorized aliens, and U.S. citizens alike. Both A.R.S.
13-2009(A)(3) and A.R.S. 13-2008(A) sanction [a]ny
person who commits identity theft to obtain employment.
As noted in hypotheticals raised at oral argument, these laws
could easily be applied to a sex offender who uses a false
identity to get a job at a daycare center. Or the laws could be
applied to stop a convicted felon from lying about his
criminal history on a job application for a position of trust.
In fact, Arizona has prosecuted U.S. citizens for doing just
that. The key point is this: one could not tell that the identity
theft laws undermine federal immigration policy by looking
at the text itself. Only when studying certain applications of
the laws do immigration conflicts arise.
Bearing in mind the scope of our review and the statutory
language, we now turn to the ultimate question: Are the
identity theft laws facially preempted by federal immigration
law?
Puente argues that the identity theft laws are in conflict
with and are field preempted by IRCA. Puente contends that
the identity theft laws are preempted for three reasons: (1) the
laws were passed with an intent to regulate immigration;
(2) the laws conflict with the federal governments choice of
sanctions and exclusive prosecutorial discretion for
immigration-related crimes; and (3) the laws conflict with the
text of IRCA. We reject all three of these arguments.
Although there is tension between the federal scheme and
some applications of the identity theft laws, we hold that this
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tension is not enough to rise to the level of a clear and

manifest purpose to preempt the identity theft laws in their
entirety. See Wyeth, 555 U.S. at 565.
The parties argue vigorously about the import of state
legislative history in this case. But these arguments about
whether to look to state legislative history miss the mark in
two ways. First, Arizonas legislative history tells us nothing
about whether Congress intended to preempt state statutes
like the identity theft laws. If Congress intended to preempt
laws like the one challenged here, it would not matter what
Arizonas motives were; the laws would clearly be
preempted.
Second, when we do look to state action, we look
primarily to a statutes effects to determine if the state
encroached on an area Congress intended to reserve.8 See
Gade v. Natl Solid Wastes Mgmt. Assn, 505 U.S. 88, 105
(1992). Said another way, it does not matter if Arizona
passed the identity theft laws for a good or bad
purposewhat matters is whether the legislature succeeded
in carrying out that purpose. See Hughes v. Oklahoma,
441 U.S. 322, 336 (1979) ([W]hen considering the purpose
of a challenged statute, [courts are] not bound by [t]he name,
description or characterization given it by the legislature or
We do not mean to suggest that the states purpose in passing a statute

is not relevant to our preemption analysis, as both this court and the
Supreme Court have analyzed purpose in preemption cases. See N.Y.
State Conf. of Blue Cross & Blue Shield Plans v. Travelers Ins. Co.,
514 U.S. 645, 658 (1995); Tillison v. City of San Diego, 406 F.3d 1126,
1129 (9th Cir. 2005). In accordance with Supreme Court precedent, we
hold only that state legislative purpose is not dispositive. See Perez v.
Campbell, 402 U.S. 637, 65152 (1971) (overruling prior preemption
cases that focused on the purpose rather than the effect of state laws).
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the courts of the State, but will determine for [themselves]

the practical impact of the law. (internal quotation omitted)).
Thus, the crucial question is whether Congress intended to
preempt the identity theft laws given the practical effect of
those laws. We think not.
We agree with Puente and the district court that the
legislative history of both H.B. 2779 and H.B. 2745 show an
intent on the part of Arizona legislators to prevent
unauthorized aliens from remaining in the state. But if that
was the legislatures only goal, it failed. The legislature also
rectified the growing problem of employment-related identity
theft. We think Congress would agree that the identity theft
laws validly apply to any person who uses anothers identity
for non-immigration reasons. There is evidence in the record
that the laws have been applied to people who use anothers
identity to hide their criminal record. Congress could not
have intended to preempt the state from sanctioning crimes
that protect citizens of the state under Arizonas traditional
police powers without intruding on federal immigration
policy. Thus, we hold that despite the state legislative
history, Congress did not intend to preempt state criminal
statutes like the identity theft laws.9
Next, Puente argues that the identity theft laws are
preempted because they conflict with the federal
governments enforcement techniques and exclusive
On remand, Puente may again produce evidence of the Arizona

legislatures intent to regulate immigration when asking the district court
to enjoin certain immigration-related applications of the identity theft
laws. We hold only that this legislative history is not sufficient to doom
the statutes where they can be validly applied in ways that do not
implicate immigration.
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discretion in the area of immigration. In making these

arguments, Puente relies heavily on the Supreme Courts
decision in Arizona. There, the Supreme Court struck down
a state law that made it a misdemeanor for an unauthorized
alien to knowingly apply for work, solicit work in a public
place or perform work as an employee or independent
contractor. Arizona, 132 S. Ct. at 2503.
The Arizona Court held that this statute was in conflict
with IRCAs comprehensive framework for combating the
employment of illegal aliens. Id. at 2504 (internal quotation
omitted). Examining the legislative history of IRCA, the
Court pointed to failed proposals to criminalize unauthorized
aliens applying for work. Id. Because Congress made a
deliberate choice to punish employers instead of employees
with criminal sanctions under IRCA, Arizonas attempt to
create a crime on the employee-side conflicted with the
careful balance struck by Congress in this area. Id. at
250405. Essentially, this conflict in statutory remedies
between the federal and state statutes rendered the state
statute unconstitutional. Id. at 2505. Puente argues that a
similar conflict in techniques is present here because the
identity theft laws authorize different (and generally harsher)
punishments than authorized under federal law.
Puente also argues that the identity theft laws deprive the
United States of necessary prosecutorial discretion over
immigration-related crimes. We recently found this argument
persuasive in Valle del Sol. 732 F.3d at 1027; see also
Arizona Dream Act Coal. v. Brewer, No. 15-15307, 2016 WL
1358378, at *6 (9th Cir. Apr. 5, 2016) (explaining that the
Executive has very broad discretion to determine
immigration enforcement priorities). The statute at issue in
Valle del Sol criminalized harboring and transporting
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unauthorized aliens. Valle del Sol, 732 F.3d at 101213. The

harboring statute in Valle del Sol divest[ed] federal
authorities of the exclusive power to prosecute these crimes
in line with federal priorities. Id. at 1027. Because Arizona
had given itself the power to prosecute harboring crimes in
state court it could do so in a manner unaligned with federal
immigration enforcement priorities. Id. This co-opting of
federal discretion over enforcement, coupled with different
statutory penalties under state law, led the Valle del Sol court
to hold Arizonas harboring statute unconstitutional. Id. at
1029. Puente argues that like the harboring statute in Valle
del Sol, the identity theft laws undermine federal discretion to
punish immigration-related fraud in line with federal
priorities.
While these arguments may be persuasive in the context
of Puentes as-applied challenge, we do not find them
persuasive in a facial attack. Arizona, Valle del Sol, and their
progeny10 are easily distinguishable from this case. In those
cases, the contested state statutes, on their face, applied only
to unauthorized aliens, so every application of the statute had
the potential to conflict with federal immigration policy. In
contrast, the statutes at issue here make it a crime for any
person to use a false document to gain employment.
Although some applications of the identity theft laws may
come into conflict with IRCAs comprehensive scheme or
10
The list of cases analyzing preemption in the immigration context is

large and continuously growing. The vast majority of these cases analyze
statutes or government actions that apply only to unauthorized aliens. See,
e.g., Arizona Brewer, No. 15-15307, 2016 WL 1358378, at *10
(explaining why the policy at issue in that case applied to only
unauthorized aliens and highlighting other similar cases).
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with the federal governments exclusive discretion over

immigration-related prosecutions, when the laws are applied
to U.S. citizens or lawful permanent residents those concerns
are not implicated. Thus, Arizona, Valle del Sol, and all other
preemption cases where the statutory language singles out
unauthorized aliens, do not control here. In this case, Arizona
exercised its police powers to pass criminal laws that apply
equally to unauthorized aliens, authorized aliens, and U.S.
citizens. Just because some applications of those laws
implicate federal immigration priorities does not mean that
the statute as a whole should be struck down.
Finally, Puente makes an argument for preemption based
on the text of IRCA. Puente argues that IRCA was drafted to
allow only federal government prosecutions of those who use
false documents to obtain employment. See 8 U.S.C.
1324a(b)(5), (d)(2)(F)(G). In particular, IRCA provides
that any information employees submit to indicate their work
status may not be used for purposes other than prosecution
under specified federal criminal statutes for fraud, perjury,
and related conduct. Id. 1324a(b)(5).
Again, we reject this argument because this is a facial
challenge and this argument applies only to certain
applications of the statute not evident from the statutes text.
IRCAs document use limitation is only violated when the
identity theft laws are applied in ways that rely on the Form
I-9 and attached documents. Just because Arizona could (and
has in the past) enforced the identity theft laws in violation of
IRCAs document use limitation does not mean the laws
should be struck down in their entirety. Arizona retains the
power to enforce the laws in ways that do not implicate
federal immigration priorities. While the district court may
ultimately decide to enjoin identity theft enforcement actions
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which rely on I-9 documents, that is not a reason to strike

down the laws in their entirety.
In sum, we reject all of Puentes arguments because each
one applies to only certain applications of the identity theft
laws. Accordingly, Puente has not met its burden of showing
a clear and manifest purpose to completely preempt these
laws. See Cal. Div. of Labor Standards Enft v. Dillingham
Const., N.A., 519 U.S. 316, 334 (1997) (We could not hold
pre-empted a state law in an area of traditional state
regulation based on so tenuous a relation without doing grave
violence to our presumption that Congress intended nothing
of the sort.). Because Puente has not come forward with a
compelling reason why the statute is preempted on its face,
we hold that Puente has not raised a serious question going to
the merits of its facial challenge.
We stress again that the only question for us to answer on
this facial challenge is whether the identity theft laws should
be enjoined in all contexts as applied to all parties. On this
record, we cannot say that every application is
unconstitutional. Thus, we vacate the district courts
preliminary injunction and reverse its finding that Puentes
facial challenge is likely to succeed on the merits. In doing
so, we make no comment on the viability of Puentes asapplied challenge still pending in the district court.
III
We now turn to Maricopa Countys Monell appeal. The
district court found that Sheriff Arpaio is a policymaker for
Maricopa County. Accordingly, the Court held that the
County can be liable for the Sheriffs actions under 1983
based on Monell v. Department of Social Services, 436 U.S.
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658 (1978).11 The County attempts to appeal this ruling,

arguing that it has no control over the Sheriff, a state official
under Arizona law, so it should not be liable for his actions.
In response, Puente argues that this issue is not properly
before the court on an interlocutory preliminary injunction
appeal. We agree.
Generally parties must wait for final judgment to appeal
a district courts ruling. See 28 U.S.C. 1291. But in some
circumstances an interlocutory order is immediately
appealable by statutefor example, when an interlocutory
order grants an injunction. Id. 1292(a)(1). In that case, we
may exercise pendent jurisdiction over issues outside the
injunction only if the issue is inextricably intertwined with
or necessary to ensure meaningful review of the injunction.
Meredith v. Oregon, 321 F.3d 807, 81213, amended,
326 F.3d 1030 (9th Cir. 2003) (quoting Swint v. Chambers
Cty. Commn, 514 U.S. 35, 51 (1995)).
Since 1995, the Supreme Court has made clear that
invocation of pendent jurisdiction should be extremely
limited. See Swint, 514 U.S. at 4548. Post-Swint, we have
been hesitant to find pendent jurisdiction and we interpret the
inextricably intertwined standard narrowly. Meredith,
321 F.3d at 81315. The standard is only satisfied where the
issues are (a) [] so intertwined that we must decide the
pendent issue in order to review the claims properly raised on
interlocutory appeal, or (b) resolution of the issue properly
raised on interlocutory appeal necessarily resolves the
11
In Monell, the Supreme Court held that local governments can be

liable under 1983 for constitutional violations resulting from policy or
custom . . . made by its lawmakers or by those whose edicts or acts may
fairly be said to represent official policy. 436 U.S. at 694.
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pendent issue. Cunningham v. Gates, 229 F.3d 1271, 1285

(9th Cir. 2000), as amended (Oct. 31, 2000) (internal citations
omitted).
Issues are not inextricably intertwined when courts
apply different legal standards to each issue. Id. For
example, in Swint, the Supreme Court held the Eleventh
Circuit erred in exercising pendent jurisdiction over a
countys Monell liability, in part, because that issue could not
be inextricably intertwined with the proper subject of the
interlocutory appealqualified immunity. Swint, 514 U.S.
at 51. The Swint Court suggested that a premature Monell
appeal could not be bootstrapped onto a proper qualified
immunity interlocutory appeal because the issues involved
different legal inquiries. See id. While qualified immunity
turns on whether [individuals] violated clearly established
federal law, a countys liability under Monell for the
sheriffs actions turned on the allocation of law enforcement
power. Id. Even though the issues shared common facts,
that was not enough to confer pendent jurisdiction where the
issues involved different legal tests. See id; see also
Cunningham, 229 F.3d at 1285.
Post-Swint, we have found pendent jurisdiction in two
narrow categories of cases. First, jurisdiction is proper when
the pendent issue implicates the very power the district court
used to issue the rulings under review. Hendricks v. Bank of
Am., 408 F.3d 1127, 113435 (9th Cir. 2005) (quoting
Meredith, 321 F.3d at 816). For example, we have exercised
jurisdiction over issues of subject matter jurisdiction and
personal jurisdiction when attending an interlocutory appeal.
Id.; Smith v. Arthur Andersen LLP, 421 F.3d 989, 998 (9th
Cir. 2005). Issues, such as jurisdiction, which question the
authority of the court are necessary to ensure meaningful
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review of injunctions because if the appellate court does not

have jurisdiction then it does not have the authority to address
any issue on appeal. See Hendricks, 408 F.3d at 1134.
Second, we have also exercised pendent jurisdiction over
a small set of cases where ruling on the merits of the proper
interlocutory appeal will necessarily resolve all of the
remaining issues presented by the pendent appeal. See
Huskey v. City of San Jose, 204 F.3d 893, 905 (9th Cir. 2000).
To illustrate, in Huskey we held that a citys Monell appeal in
a 1983 case was inextricably intertwined with an
individual defendants appeal from a denial of summary
judgment based on qualified immunity. Id. at 90405. There,
we reversed the district courts denial of qualified immunity
for a city attorney because the plaintiff failed to show a
constitutional violation. Id. at 902. Since this decision
necessarily foreclose[d] the possibility of the [c]itys 1983
liability, we exercised pendent jurisdiction over the citys
Monell liability and held that the district court erred in
denying the citys motion for summary judgment. Id. at 904.
We hold that we do not have pendent jurisdiction over
Maricopa Countys Monell liability. A district courts order
denying a countys motion to dismiss under Monell is
generally not immediately appealable. See Collins v. Jordan,
110 F.3d 1363, 1366 n.1 (9th Cir. 1996). Thus, we must find
that the Countys Monell liability is inextricably
intertwined with the preliminary injunction to address the
merits of the Countys argument. The fact that the parties
briefed the Monell issue separately is a good indicator that it
involves different legal standards from the injunction appeal.
Just as the Supreme Court refused to exercise pendent
jurisdiction in Swint because issues of Monell liability and
qualified immunity involve different legal tests, we refuse to
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combine a Monell appeal with an action revolving around

application of the Winter test and preemption principles.
These legal inquiries are analytically distinct.
Nor does the Monell issue fall within one of the narrow
categories of pendent jurisdiction. The Monell issue does not
question the district courts authority to impose an injunction.
Unlike jurisdictional issues and certain immunities from suit,
Monell is just a defense to liability. See Swint, 514 U.S. at
43. If a county can show that the alleged wrongdoer is not a
policymaker that does not mean the court is without power to
hear the case, it simply means the court should grant
judgment for the county.
Finally, because we reverse the district courts
preliminary injunction and remand for further proceedings,
this case is also unlike the Huskey line of cases where ruling
on the interlocutory appeal necessarily resolves the pendent
appeal. In Huskey, we agreed to hear a citys premature
appeal because we had already decided the plaintiff could not
succeed on his 1983 claim and therefore the city could not
be liable. This case is inappositehere we do not comment
on the merits of Puentes as-applied preemption challenge or
its equal protection challenge, both of which remain pending
and should be addressed in the first instance by the district
court. Thus, our ruling on the preliminary injunction today
does not resolve the Countys ultimate liability in this case.
Because this case does not fall within one of the narrow
categories where invoking pendent jurisdiction is proper, we
dismiss Maricopa Countys appeal for lack of jurisdiction.
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IV
We hold that Arizonas employment-related identity theft

laws are not preempted in all applications. We reverse the
district courts finding that the laws are likely facially
preempted. We also vacate the district courts preliminary
injunction and remand with instructions to evaluate the merits
of Puentes remaining claims, including the as-applied
preemption challenge. Finally, we dismiss Maricopa
Countys Monell appeal for lack of jurisdiction without
prejudice to renew that argument before final judgment is
rendered.
Each party shall bear its own costs on appeal.
REVERSED in part, injunction VACATED,
DISMISSED in part, and REMANDED with instructions.

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Jessica Myers Vosburgh

Attorneys for Plaintiffs-Appellees

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Jessica Karp Bansal

Ray A. Ybarra Maldonado

Attorneys for Plaintiffs-Appellees

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The Panel Opinion Conflicts with Circuit Precedents on the

The Panel Opinion Nullifies the Supreme Court's "Purpose"

The Panel Unjustifiably Fails to Consider a Narrowed

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See, e.g., 1-SER-152 (statement of primary sponsor Rep. Pearce). The

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part and remanded, 132 S. Ct. 2492 (2012); Lozano v. City of

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of the injunction will cause irreparable harm to Plaintiff-Appellees. Nor

The Panel Opinion Conflicts with Circuit Precedents on

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Challenges and the Valid Rule Requirement, 48 Am. U. L. Rev. 359,

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be invalidated on their face. If the answer is yes, then even the

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As Richard Fallon explains in Fact and Fiction about Facial

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The Panel Opinion Nullifies the Supreme Courts

law, under which courts examining preemption challenges to state laws

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As the District Court found, Defendants provide[d] no legislative

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Rather than trying to determine whether the true target of the

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person to display or possess a false or counterfeit ID for the purpose of

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III. The Panel Unjustifiably Fails to Consider a Narrowed

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(finding New York scheme requiring certain damages actions to be filed

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supra, at 924-25 (ruling of partial invalidity in a broad category of cases

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Dated: May 16, 2016

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Ray A. Ybarra Maldonado

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Certificate of Compliance Pursuant to

Form Must be Signed by Attorney or Unrepresented Litigant

(signature block below)

/s/ Anne Lai

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Dated: May 16, 2016

/s/ Anne Lai

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Appendix: Panel Opinion

UNITED STATES COURT OF APPEALS

PUENTE ARIZONA; SUSAN E.

PUENTE ARIZONA V. ARPAIO

PUENTE ARIZONA; SUSAN E.