Puente Arizona v. Joseph Arpaio

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

PUENTE ARIZONA; SUSAN E. No. 15-15211

FREDERICK-GRAY; SARA

CERVANTES ARREOLA, on behalf of D.C. No.

themselves and all others similarly 2:14-cv-01356-

situated, DGC

Plaintiffs-Appellees,

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.

2 PUENTE ARIZONA V. ARPAIO

PUENTE ARIZONA; SUSAN E. No. 15-15213

FREDERICK-GRAY; SARA

CERVANTES ARREOLA, on behalf of D.C. No.

themselves and all others similarly 2:14-cv-01356-

situated, DGC

Plaintiffs-Appellees,

v.

JOSEPH M. ARPAIO, Sheriff of

Maricopa County, Arizona, in his

official capacity; BILL

MONTGOMERY, Maricopa County

Attorney, in his official capacity;

COUNTY OF MARICOPA, State of

Arizona,

Defendants,

and

STATE OF ARIZONA,

Defendant-Appellant.

PUENTE ARIZONA V. ARPAIO 3

PUENTE ARIZONA; SUSAN E. No. 15-15215

FREDERICK-GRAY; SARA

CERVANTES ARREOLA, on behalf of D.C. No.

themselves and all others similarly 2:14-cv-01356-

situated, DGC

Plaintiffs-Appellees,

v. OPINION

BILL MONTGOMERY, Maricopa

County Attorney, in his official

capacity; COUNTY OF MARICOPA,

State of Arizona,

Defendants-Appellants,

and

JOSEPH M. ARPAIO, Sheriff of

Maricopa County, Arizona, in his

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, 2016—San Francisco, California

Filed May 2, 2016

4 PUENTE ARIZONA V. ARPAIO

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 court’s preliminary

injunction, reversed the district court’s finding regarding the

merits of plaintiffs’ facial preemption claim, dismissed an

appeal by Maricopa County, and remanded, in an action

challenging provisions of Arizona’s identity theft laws, which

prohibit using a false identity to obtain employment.

The panel first rejected plaintiffs’ assertion that Arizona’s

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 Act’s comprehensive

scheme or with the federal government’s 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.

PUENTE ARIZONA V. ARPAIO 5

concerns are not implicated. Holding that Arizona’s

employment-related identity theft laws were not preempted

in all applications, the panel vacated the district court’s

preliminary injunction and reversed the district court’s

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 County’s appeal from the

district court’s denial of the County’s motion to dismiss

pursuant to Monell v. Department of Social Services, 436

U.S. 658 (1978). The panel held that the County’s 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 Attorney’s 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 Pánuco (argued), Joshua

Piovia-Scott, and Dan Stormer, Hadsell Stormer & Renick

6 PUENTE ARIZONA V. ARPAIO

LLC, Pasadena, California; Anne Lai, University of

California, Irvine School of Law—Immigrant 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 Menjívar.

Joshua T. Stehlik, Nicholas Espíritu, 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.

PUENTE ARIZONA V. ARPAIO 7

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 Arizona’s 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 court’s holding that the laws are likely

facially preempted and we vacate the district court’s

preliminary injunction. We also dismiss Maricopa County’s

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

1

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).

8 PUENTE ARIZONA V. ARPAIO

2007, known as the “Legal Arizona Workers Act,” which

amended Arizona’s 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 Arizona’s 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 Arizona’s 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.

2

See Fed. Trade Comm’n, Consumer Fraud and Identity Theft

Complaint Data: January - December 2006 at 18, 22 (2007),

https://www.ftc.gov/sites/default/files/documents/reports_annual/sentinel-

cy-2006/sentinel-cy2006.pdf; Fed. Trade Comm’n, 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 Comm’n, 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.

PUENTE ARIZONA V. ARPAIO 9

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 individual’s

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 Arizona’s 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

10 PUENTE ARIZONA V. ARPAIO

intent to obtain or continue employment.’”3 In the same

order, the district court also denied Maricopa County’s 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 court’s preliminary injunction.

Maricopa County also seeks review of the district court’s

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 Puente’s 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, 993–94 (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

Commc’ns, Inc., 287 F.3d 832, 839 (9th Cir. 2002). The

district court’s legal conclusions, such as whether a statute is

3

For the sake of simplicity, we will refer to these challenged provisions

as the “identity theft laws.”

PUENTE ARIZONA V. ARPAIO 11

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 2500–01.

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 [plaintiff’s] favor.” All. for the Wild Rockies v. Cottrell,

632 F. 3d 1127, 1135 (9th Cir. 2011) (internal quotations omitted).

12 PUENTE ARIZONA V. ARPAIO

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

Congress’s intent to preempt the challenged state statute is

“clear and manifest” may we deem the statute preempted.

See Wyeth, 555 U.S. at 565.

5

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.

PUENTE ARIZONA V. ARPAIO 13

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.” Salerno’s 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 statute’s 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), aff’d in part, rev’d 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

6

The Supreme Court’s 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

Salerno’s rule incompatible with substantive preemption doctrine. See id.

The district court in this case employed Lozano’s 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.”).

14 PUENTE ARIZONA V. ARPAIO

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 Arizona’s 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 Puente’s

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

7

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 as-

applied 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 Puente’s as-applied challenge.

PUENTE ARIZONA V. ARPAIO 15

§ 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 neutral—that 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 government’s 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

16 PUENTE ARIZONA V. ARPAIO

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, Arizona’s 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

Arizona’s motives were; the laws would clearly be

preempted.

Second, when we do look to state action, we look

primarily to a statute’s effects to determine if the state

encroached on an area Congress intended to reserve.8 See

Gade v. Nat’l Solid Wastes Mgmt. Ass’n, 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

purpose—what 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

8

We do not mean to suggest that the state’s 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, 651–52 (1971) (overruling prior preemption

cases that focused on “the purpose rather than the effect of state laws”).

PUENTE ARIZONA V. ARPAIO 17

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 legislature’s 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 another’s identity

for non-immigration reasons. There is evidence in the record

that the laws have been applied to people who use another’s

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 Arizona’s 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

government’s enforcement techniques and exclusive

9

On remand, Puente may again produce evidence of the Arizona

legislature’s 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.

18 PUENTE ARIZONA V. ARPAIO

discretion in the area of immigration. In making these

arguments, Puente relies heavily on the Supreme Court’s

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 IRCA’s “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, Arizona’s attempt to

create a crime on the employee-side conflicted “with the

careful balance struck by Congress” in this area. Id. at

2504–05. 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

PUENTE ARIZONA V. ARPAIO 19

unauthorized aliens. Valle del Sol, 732 F.3d at 1012–13. 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 Arizona’s 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 Puente’s 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 IRCA’s “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).

20 PUENTE ARIZONA V. ARPAIO

with the federal government’s 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 statute’s text.

IRCA’s 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

IRCA’s 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

PUENTE ARIZONA V. ARPAIO 21

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 Puente’s 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 Enf’t 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 court’s

preliminary injunction and reverse its finding that Puente’s

facial challenge is likely to succeed on the merits. In doing

so, we make no comment on the viability of Puente’s as-

applied challenge still pending in the district court.

III

We now turn to Maricopa County’s 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 Sheriff’s actions under § 1983

based on Monell v. Department of Social Services, 436 U.S.

22 PUENTE ARIZONA V. ARPAIO

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 court’s ruling. See 28 U.S.C. § 1291. But in some

circumstances an interlocutory order is immediately

appealable by statute—for 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, 812–13, amended,

326 F.3d 1030 (9th Cir. 2003) (quoting Swint v. Chambers

Cty. Comm’n, 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 45–48. Post-Swint, we have

been hesitant to find pendent jurisdiction and we interpret the

“inextricably intertwined” standard narrowly. Meredith,

321 F.3d at 813–15. 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.

PUENTE ARIZONA V. ARPAIO 23

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

county’s Monell liability, in part, because that issue could not

be “inextricably intertwined” with the proper subject of the

interlocutory appeal—qualified 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 county’s liability under Monell for the

sheriff’s 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, 1134–35 (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

24 PUENTE ARIZONA V. ARPAIO

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 city’s Monell appeal in

a § 1983 case was “inextricably intertwined” with an

individual defendant’s appeal from a denial of summary

judgment based on qualified immunity. Id. at 904–05. There,

we reversed the district court’s 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]ity’s § 1983

liability,” we exercised pendent jurisdiction over the city’s

Monell liability and held that the district court erred in

denying the city’s motion for summary judgment. Id. at 904.

We hold that we do not have pendent jurisdiction over

Maricopa County’s Monell liability. A district court’s order

denying a county’s 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 County’s Monell liability is “inextricably

intertwined” with the preliminary injunction to address the

merits of the County’s 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

PUENTE ARIZONA V. ARPAIO 25

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 court’s 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 court’s

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 city’s 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 inapposite—here we do not comment

on the merits of Puente’s 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 County’s 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 County’s appeal for lack of jurisdiction.

26 PUENTE ARIZONA V. ARPAIO

IV

We hold that Arizona’s employment-related identity theft

laws are not preempted in all applications. We reverse the

district court’s finding that the laws are likely facially

preempted. We also vacate the district court’s preliminary

injunction and remand with instructions to evaluate the merits

of Puente’s remaining claims, including the as-applied

preemption challenge. Finally, we dismiss Maricopa

County’s 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.