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LABOR & EMPLOYMENT LAW — 12/17/08

Obama to inherit legal battle over DHS’s no-match rule

Judge Charles Breyer of the Northern District of California has denied a request from the Department of Homeland Security (DHS) for an expedited briefing schedule on its motions to lift a preliminary injunction on the federal agency’s much beleaguered no-match rule, and for summary judgment, instead adopting the briefing schedule proposed by the plaintiffs, which will leave the case unresolved until at least March 2009. The Judge rejected the DHS’s requests at a December 5, 2008 status conference. (AFL-CIO v Chertoff, NDCal, No 3:07-cv-04472-CRB).

Under the October 28 supplemental final rule (http://edocket.access.gpo.gov/2008/pdf/E8-25544.pdf), the Social Security Administration (SSA) is required to include in the mailing of no-match letters – which are sent to employers when an employee’s name and Social Security number from their W-2 do not match SSA records – separate insert letter from the DHS explaining how employers are required to resolve discrepancies (called safe harbor procedures) or face possible liability under US immigration law.

Plaintiffs’ opening brief must be filed by January 9, 2009. The DHS must file its response by February 9 and the plaintiffs must file their reply by February 24. No hearing date has been scheduled on the motions. Breyer rejected the DHS’s argument, made in the joint status conference statement filed with the court on December 1, that the “narrow scope of issues that remain to be resolved” required an accelerated briefing schedule that would have resulted in a hearing by mid-January. Breyer also declined to grant the DHS’s request that the court immediately lift the preliminary injunction while the suit is pending. He rejected the federal agency’s argument that the SSA would ordinarily begin preparing the next round of no-match letters to employers in January, 2009, and if the suit was not resolved by then, the SSA would be forced to postpone the release of its no-match letters, or send them out without mentioning the safe harbor procedures.

In the plaintiffs’ joint status conference statement, they argued the DHS’s briefing schedule “ma[de] no sense for a nationally important, multi-party, multi-claim case with a huge administrative record.” In fact, wrote the plaintiffs, “th[e] action already has been pending for 15 months, and the slow pace at which DHS proceeded with its supplemental rulemaking only makes clearer that no emergency requires implementation of the no-match rule.”

Media reports indicate that in making his decision, Breyer observed that the incoming Obama Administration might want to take another look at the rule. President-elect Obama has not taken a position on the proposed rule. The rule cannot be implemented until the district court lifts the injunction or until a higher court overrules the district court’s order.

While the DHS has already acknowledged that the supplemental final rule “does not make any substantive changes” to the August 2007 final rule (i.e., alter any of the steps or time frames, called safe harbor procedures, that employers can take in response to receiving a no-match letter from the SSA or notice of suspect documents letter from US Immigration and Customs Enforcement, the DHS’s largest investigative arm), the memorandum of points and authorities accompanying the motions stated that the supplemental final rule does address the three issues raised by the district court when it issued the preliminary injunction.

First, in the preamble accompanying the supplemental final rule, Secretary of DHS Michael Chertoff stated that he provided a detailed analysis for what the district court perceived as a change in agency policy as to the “relevance of no-match letters to immigration law compliance.” Second, the supplemental final rule altered the regulation’s antidiscrimination language by removing any statements purporting the DHS to interpret the antidiscrimination provisions of the immigration laws. In particular, the DHS insert that will be included in the no-match letters sent to employers has been revised to refer to a guidance issued by the Department of Justice (http://www.usdoj.gov/crt/osc/htm/Nomatch032008.htm) and also eliminates any statements that might be construed as the DHS’s attempt to interpret the antidiscrimination provisions of the Immigration Reform and Control Act of 1986 (IRCA). Third, the supplemental final rule provides a final regulatory flexibility analysis, which was subject to public comment, discussing potential costs of the rule to small entities.

For more information on this and other topics, consult CCH Employment Practices Guide or CCH Labor Relations.

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