Appendix — Chiles v. United States

CHILES v. U.S.A

No. 95-4061.

Lawton M. CHILES, Jr., Governor of the State of Florida;

State of Florida; Dade County Public Health Trust, an agency

and instrumentality of Dade County, a political subdivision of

the State of Florida, the School Board of Dade County, Florida,

Plaintiffs—Appellants,

UNITED STATES of America; Doris Meissner, Commissioner

of the Immigration and Naturalization Service of the

Department of Justice; Janet Reno, Attorney General of the

United States; Jennifer Nelson, Acting Regional Administrator

of the Southern Regional Office of the INS of the Department

of Justice; Walter D. Cadman, District Director of the Miami

District Office of the INS of the Department of Justice; Donna

E. Shalala, Secretary of the United States Department of Health

& Human Services, Defendants—Appellees.

NO. 90-3943

United States Court of Appeals,

Eleventh Circuit.

Nov. 8, 1995.

Appeal from the United States District Court for the Southern

District of Florida. (No. 94-676-CIV-EBD), Edward B. Davis,

Judge.

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Before EDMONDSON and DUBINA, Circuit Judges, and

CUDAHY’, Senior Circuit Judge.

EDMONDSON, Circuit Judge:

In this expedited appeal, Florida alleges it is injured by

the United States’ failure to enforce the immigration laws. The

State asserts claims under both the Administrative Procedure

Act and the United States Constitution. Florida asks for

equitable restitution of its unreimbursed expenses or for

declaratory relief and an injunction requiring the United States

to fulfill its statutory and constitutional duties. The district

court dismissed all counts, concluding the claims presented

nonjusticiable political questions. For the reasons as set forth

in the district court’s order and for the reasons set out below,

we AFFIRM.

Count Il

In Count II,' Florida sues the Attorney General under

the APA for her failure to perform the duties imposed by the

immigration laws. See 8 U.S.C. 1103(a); 1251(a). The district

court dismissed this claim as a political question. We conclude

that, to the extent Florida asks this court to construe the

statutory responsibilities of the Attorney General, the claim is

justiciable. See Japan Whaling Ass’n v. American Cetacean

Soc., 478 U.S. 221, 230, 106 S.Ct. 2860, 2866, 92 L.Ed.2d 166

(1986).

° Honorable Richard D. Cudahy, Senior U.S. Circuit Judge for the Seventh

Circuit, sitting by designation.

‘Count I is moot.

A. Standing

The Attorney General asserts Florida lacks standing to

raise this claim.’ On the redressibility component of standing,

we recognize that the level of illegal immigration is dependent

on many factors outside the control of the Attorney General.

See Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S.

26, 41-43, 96 S.Ct. 1917, 1926, 48 L.Ed.2d 450 (1976). But,

because an order against the named defendants would offer

some relief to Florida, we suppose that the State does have

standing to raise this claim.

B. The Statutes

Assuming justiciability and standing, we—for much the

same reasons as are expressed in the district court’s

order’—conclude that the district court properly dismissed this

count. The overall statutory scheme established for

immigration demonstrates that Congress intended whether the

Attorney General is adequately guarding the borders of the

United States to be “committed to agency discretion by law”

and, thus, unreviewable. See 5 U.S.C. § 701(a); cf. Heckler v.

Chaney, 470 U.S. 821, 838, 105 S.Ct. 1649, 1659, 84 L.Ed.2d

714 (1985).* And, Section 1251(a) expressly gives the Attorney

General discretion whether to deport a particular alien.

’The district court did not address this argument.

*While the district court dismissed this count as nonjusticiable, it did

discuss whether Congress intended judicial review under Section 1103(a). Chiles,

874 F.Supp. at 1339-41.

“The part of the statute relied on by Florida would not justify even an

allegation of complete abdication of statutory duties to go to trial. Cf. Heckler, 470

U.S. at 833 n. 4, 105 S.Ct. at 1656 n. 4.

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Count III

Count III alleges that the Federal Medicaid and AFDC

reimbursement programs unconstitutionally discriminate

against the state in violation of the Spending Clause (Art. I, §

8) and “other constitutional provisions guaranteeing equality

among the states.” While initial spending decisions are

exclusively the domain of Congress,’ if a specific constitutional

limit is exceeded judicial review is possible, even if the case

involves foreign policy. Cf. INS v. Chada, 462 U.S. 919, 103

S.Ct. 2764, 77 L.Ed.2d 317 (1983). But, because no specific

constitutional limit on the spending power has been exceeded

by the reimbursement policies of AFDC and Medicaid, we

conclude this count was properly dismissed. See Buckley v.

Valeo, 424 U.S. 1, 88-90, 96 S.Ct. 612, 668, 46 L.Ed.2d 659

(1976); South Carolina v. Katzenbach, 383 U.S. 301, 323-25,

86 S.Ct. 803, 816, 15 L.Ed.2d 769 (1966) (states not protected

by Fifth Amendment’s equal protection guarantee). Florida

must seek relief in Congress. Cf. Garcia v. San Antonio Metro.

Transit Auth., 469 U.S. 528, 549-53, 105 S.Ct. 1005, 1017-18,

83 L.Ed.2d 1016 (1985).

Count IV

Count IV alleges the United States violates the

Guarantee and Invasion Clause (Art. IV, § 4) and the Tenth

Amendment by forcing Florida to provide unreimbursed

benefits to illegal immigrants. For much the same reasons

expressed in the order of the district court, we conclude that

whether the level of illegal immigration is an “invasion” of

Florida and whether this level violates the guarantee of a

republican form of government present nonjusticiable political

‘Because of this circumstance, the district court concluded that this claim

was nonjusticiable. Chiles, 874 F.Supp. at 1342.

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questions. See generally Baker v. Carr, 369 U.S. 186, 82 S.Ct.

691, 7 L.Ed.2d 663 (1962). And, we agree that Florida’s

provision of benefits to illegal aliens is not the product of

federal coercion of the kind which violates the Tenth

Amendment. Compare New York v. United States, 505 U.S.

144, 173-78, 112 S.Ct. 2408, 2427-29, 120 L.Ed.2d 120 (1992)

with Plyler v. Doe, 457 U.S. 202, 102 S.Ct. 2382, 72 L.Ed.2d

786 (1982); and Dep't of Health & Rehabilitative Services v.

Solis, 580 So.2d 146 (Fla.1991).

Conclusion

We recognize that the difficulty in fashioning a remedy

for an alleged wrong can result in a case being nonjusticiable.

See Powell v. McCormack, 395 U.S. 486, 515-17, 89 S.Ct.

1944, 1961, 23 L.Ed.2d 491 (1969). Because we conclude that

Florida fails to state a claim upon which relief can be granted

by a court, we do not reach this issue. The order of the district

court is AFFIRMED.

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APPENDIX B

ry ry Ws prem

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

MIAMI DIVISION

CASE NO. 94-0676-CIV-DAVIS

LAWTON M. CHILES, JR.., et al..

Plaintiffs,

v.

UNITED STATES OF AMERICA, et al.,

Defendants.

ORDER ON MOTION TO DISMISS AND

MOTION FOR SUMMARY JUDGMENT

THE IMMIGRATION CRISIS that is currently facing

the United States has culminated in the filing of this action.

This problem is not new. As the then-President Ronald Reagan

proclaimed in 1981:

The ongoing migration of persons to the United

States in violation of our laws is a serious

national problem, detrimental to the interests of

the United States. A particularly difficult aspect

of the problem is the continuing illegal

migration by sea of large numbers of

undocumented aliens to the Southeastern

United States. These arrivals have severely

strained the law enforcement resources of the

Immigration and Naturalization Service and

have threatened the welfare and safety of

communities in that region.

Proclamation No. 4865, 46 Fed. Reg. 48,107 (1981). The costs

of this continuing influx of aliens are disproportionately

concentrated in only a few states,' including Florida.”

BACKGROUND

AND

SUMMARY OF THE COMPLAINT

On April 11, 1994, Lawton M. Chiles, Jr., the State of

Florida, the Dade County Public Health Trust, and the School

Board of Dade County, Florida (“Plaintiffs”) filed suit against

the United States of America and several individual officers of

the United States. The Plaintiffs’ grievances with the United

States are based on allegations that the United States has failed

to properly enforce immigration policies, thereby causing the

State of Florida to incur disproportionate and unfair expenses

in educating and providing other public benefits to aliens.’

Plaintiffs apparently realize the difficulty in having this court

‘The seven states with the largest numbers of undocumented aliens are:

California, Florida, Texas, New York, Illinois, Arizona, and New Jersey. The Urban

Institute, Fiscal Impacts of Undocumented Aliens: Selected Estimates for Seven

States, September, 1994.

"In a report funded by the Department of Justice entitled Fiscal Impacts

of Undocumented Aliens: Selected Estimates for Seven States, the Urban Institute

analyzed the impact that undocumented aliens were having on seven states including

Florida. The report estimated that Florida’s undocumented alien population as of

October 1992, was approximately 322,000 or 2.3% of the total population of

Florida. The report estimated Florida’s annual expenditures for (1) public schools

for undocumented aliens in 1993-94 was $424 million ; (2) emergency services

under Medicaid for undocumented aliens in 1993 was $22.5 — $29.1 million; and (3)

incarcerating illegal aliens in 1994 will be $11.8 million. /d. at 5, 8, 11, and 13.

*The Plaintiffs complain about the expenses they are forced to incur on

behalf of both legal and illegal aliens, arguing that even many legal aliens are not

self-sufficient members of the community and that the state is forced to provide for

housing, public transportation, and health care. (See, e.g., Complaint Ff 47, 51).

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mandate that the executive branch of the United States enforce

immigration laws; however, they still contend that “a

mandatory injunction requiring defendants to make payments

under statutes mandating the provision of financial assistance

is well within the power of this court . . . .” (Complaint ] 14).

They urge this Court to grant them relief because they have no

other avenue in which to obtain a remedy:

Plaintiffs have no administrative remedy to

pursue, to influence or to change the decisions

and policies of defendants, which decisions and

policies permit and cause a massive and

uncontrolled influx of aliens, including

undocumented aliens, to enter and remain in the

United States and the State of Florida.

(Complaint { 61). They further argue that the political process

cannot provide them with help:

The national political process has provided no

adequate safeguard against this discrimination.

The costs imposed by the continuing influx of

aliens on state and local governments are

disproportionately concentrated in only a few

States, including Florida. Representatives of

other states have a political incentive to ignore

such costs, or to provide only small and thus far

ineffective tokens of assistance, rather than

ensure that they are borne equitably.

Accordingly, unless this Court grants

appropriate relief, the State of Florida and the

other plaintiffs will continue to incur and have

to pay such costs as are described herein in the

future.

(Complaint { 64).

The complaint alleges four counts. In Count I, Plaintiffs

allege that they are entitled to grants from an Immigration

Emergency Fund administered by the Attorney General of the

United States, and they ask the Court to direct that Defendants

develop a plan to disburse that fund. See 8 U.S.C. § 1101

(1993). As relief, Plaintiffs demand that the Attorney General

of the United States grant the State of Florida its share of the

emergency funds. (Complaint { 72).

In Count II of the complaint, Plaintiffs allege that,

under 8 U.S.C. § 1103, Defendants have failed to “enforce and

administer the immigration laws or to accept the financial

responsibility for such failure.” (Complaint ¥ 76). Plaintiffs

also frame this cause of action under 5 U.S.C. § 702 and

5 U.S.C. § 706. Plaintiffs allege that they have no choice but to

pay the cost of the Defendants’ failure to enforce the

immigration laws and that failure to absorb the costs would

cause Florida to suffer injury through “increased crime,

disease, illness, homelessness, and the many problems

presented by an uneducated or poorly educated populace.”

(Complaint { 77). Plaintiffs argue that instead of forcing

Defendants to properly enforce the immigration laws, the

problem could be “alleviated by an ongoing restitution to

Plaintiffs of the prospective costs imposed on them by the

Federal Abdication and Default Policy.” (Complaint { 81).

Count III challenges the operation of two federal

programs, Medicaid and Aid for Families with Dependent

Children (“AFDC”). Both programs have provisions limiting

the payment of federal funds to certain aliens.* Plaintiffs argue

that the State of Florida is disproportionately affected by these

“Under AFDC, benefits are provided to citizens or “an alien lawfully

admitted for permanent residence or otherwise permanently residing in the United

States under color of law . . . .” 42 U.S.C. § 602(a)(33).

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restrictions because of the large number of aliens that live in

Florida, and therefore ask the Court to order Defendants to

provide these services. They allege that it “is arbitrary,

irrational, and unconstitutional for Defendants not to provide

Medicaid and AFDC assistance to Florida on the same basis

that other states are assisted. That basis is need.” (Complaint

{ 87). Plaintiffs argue:

The defendants’ failure to compensate the

plaintiffs for making need-based payments to

aliens, while assisting virtually all other states

with virtually all of their expenditures to

provide need-based medical care and aid to

families with dependent children, effectively

penalizes plaintiffs for having a needy

population that is disproportionately comprised

of aliens, largely as a result of defendants’

Federal Abdication and Default Policy.

(Complaint { 89). Plaintiffs also allege that Defendants are in

violation of Article IV, § 4 and Article I, § 8 of the

Constitution. (Complaint ¥¥ 90, 91).

Count IV of the complaint alleges that the Defendants

have imposed the financial burdens of immigration on the State

of Florida thereby violating the Guarantee and Invasion

Clauses of Article IV of the Constitution and the Tenth

Amendment by requiring Florida to provide social welfare

services to these immigrants. (Complaint ¥J 97, 98). Plaintiffs

allege that the failure to properly enforce the immigration laws

has resulted in an “invasion” of the State of Florida by aliens

and has “seriously impaired the constitutional guarantee of a

republican form of government.” (Complaint ¥ 97). As in

Count II, rather than asking the Court to force the executive to

enforce the immigration laws, Plaintiffs ask the Court to grant

a mandatory injunction requiring the Defendants to pay

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restitution until the immigration laws are enforced properly.

(Complaint { 104).°

STANDARD OF REVIEW

The Defendants seek dismissal of the entire complaint

under Federal Rule of Civil Procedure 12(b)(6). To state a

claim, Federal Rule of Civil Procedure 8(a) requires, inter alia,

“a short and plain statement of the claim showing that the

pleader is entitled to relief.” The Court must “take the material

allegations of the complaint and its incorporated exhibits as

true, and liberally construe the complaint in favor of the

Plaintiff.” Burch v. Apalachee Community Mental Health

Services, Inc., 840 F.2d 797, 798 (11th Cir. 1988) (citation

omitted), aff’d, 494 U.S. 113 (1990). The law in this Circuit is

well settled that “the ‘accepted rule’ for appraising the

sufficiency of a complaint is ‘that a complaint should not be

dismissed for failure to state a claim unless it appears beyond

doubt that the plaintiff can prove no set of facts in support of

his claim which would entitle him to relief’.” SEC v. ESM

Group, Inc., 835 F.2d 270, 272 (llth Cir. ) (quoting Conley v.

Gibson, 355 U.S. 41, 45-46 (1957)), cert. denied, 486

U.S. 1055 (1988). The moving party bears a heavy burden. St.

Joseph’s Hospital, Inc. v. Hospital Corp. of America, 795 F.2d

948, 953 (llth Cir. 1986).

PARTIES ARGUMENTS AND COURT’S DECISION

The Defendants present three general arguments in

support of dismissal of all four counts of the complaint in the

*The Plaintiffs argue that counts I and III of the complaint are sustainable

under existing law but admit that counts II and IV would require this Court to extend

the law as it currently exists.

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aggregate. Then, they discuss the complaint count by count,

urging that each count in the complaint fails to state a claim in

its own right.

A. Count I

Before addressing Defendants’ general arguments, the

Court will address a new development as it relates to Count I.

As stated earlier, in Count I, Plaintiffs allege that they are

entitled to grants from an Immigration Emergency Fund

administered by the Attorney General of the United States, and

they ask the Court to direct that the Defendants develop a plan

to disburse that fund. See 8 U.S.C. § 1101 (1993).

In 1986, Congress authorized a continuing annual

appropriation of $35 million to be used to reimburse states for

costs incurred in meeting immigration emergencies. In 1990,

Congress adopted an amendment to 8 U.S.C. § 1101 which

allowed the Attorney General to disburse up to $20 million of

this $35 million annually to states without the President’s

declaration of an immigration emergency. In 1991, the

Attorney General was directed to promulgate regulations

governing the process by which states could be reimbursed

with the appropriated funds. See Pub. L. 102140, Title VI, §

610, 105 Stat. 832.

Although Proposed Immigration Emergency Fund

Rules were first published on January 14, 1992, final rules

were not adopted until June 14, 1994, subsequent to the filing

of this lawsuit. See 59 Fed. Reg. 30520 (June 14, 1994). These

Final Rules were not adopted until eight years after the $35

million was allocated to reimburse states, four years after the

Attorney General was given permission to disburse the funds,

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and three years after the Attorney General was directed to

promulgate regulations for the disbursement of these funds.°

As these Rules have recently been promulgated,

Plaintiffs have not been able to demonstrate that they have

sought relief under the Rules.’ Until such time as Plaintiffs

have sought and been denied relief pursuant to these new rules,

this Count is not ripe for the Court’s review and must be

dismissed.

B. The General Arguments

The Defendants’ three general arguments are as

follows: (1) that the entire complaint presents a political

question or dispute that is not justiciable; (2) that the Plaintiffs

have no standing to bring suit because they have not alleged

and cannot allege that the Defendants are the direct cause of

their injuries; and (3) that all counts in the complaint except

Count I must be dismissed because the Defendants are immune

from suit and have not waived their sovereign immunity.

Political Question

Defendants’ first argument is that the entire complaint

presents a political question or dispute that is not justiciable.

They argue that the complaint goes to (1) Congress’s choices

in allocating resources, and (2) the Executive’s enforcement of

the laws, neither of which are justiciable.

°An old Florida Cracker saying, “the old he-coon walks just before the

light of day,” has received a substantial amount of publicity lately in the State of

Florida. It is possible that the current Attorney General, a lifelong Florida resident,

understands Cracker and realized that the sun was about to rise and, therefore, issued

the final Immigration Emergency Fund Rules.

The Court expects that the Attorney General will make an expedient

determination as to whether an immigration emergency exists and, if so, will

diligently disburse any available funds to those states disproportionately affected by

the continuing influx of aliens.

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“The political question doctrine excludes from judicial

review those controversies which revolve around policy

choices and value determinations constitutionally committed

for resolution to the halls of Congress or the confines of the

Executive Branch.” Japan Whaling Ass’n v. American

Cetacean Soc., 478 U.S. 221, 230, 106 S.Ct. 2860, 2866, 92

L.Ed.2d 166 (1986). The Judiciary is not suited to make such

decisions because courts are ill equipped to set national

policies or define standards for matters that are not legal in

nature. /d. (citation omitted). To determine “whether a question

falls within the political question category, the appropriateness

under our system of government of attributing finality to the

action of the political departments and also the lack of

satisfactory criteria for a judicial determination are dominant

considerations.”* Baker v. Carr, 369 U.S. 186, 209, 82 S.Ct.

691, 706, __ L.Ed __ (1962) (quotation omitted).

Defendants argue that this controversy is a policy

dispute between the State of Florida and the Federal

Government over the proper allocation of federal resources and

the execution of discretionary policies. Thus, the case presents

a non-justiciable political question inappropriate for judicial

*As the Supreme Court stated in Baker v. Carr:

Prominent on the surface of any case held to involve a political

question is found a textually demonstrable constitutional

commitment of the issue to a coordinate political department;

or lack of judicially discoverable and manageable standards for

resolving it; or the impossibility of deciding without an initial

policy determination of a kind clearly for nonjudicial

discretion; or the impossibility of a court’s undertaking

independent resolution without expressing lack of respect due

coordinate branches of government; or an unusual need for

unquestioning adherence to a political decision already made;

or the potentiality of embarrassment from multifarious

pronouncements by various departments on one question.

Baker v. Carr, 369 U.S. at 217, 82 S.Ct. at 710.

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resolution because it requires the Court to adjudicate in areas

of foreign policy, national defense, immigration and the

allocation of federal resources. Additionally, Defendants assert

that the Court is unable to compensate the State of Florida

because of [sic] the Court lacks a definable standard for

evaluation of Plaintiffs’ claims that the federal enforcement of

immigration laws is inadequate and, therefore, should be left to

the other branches of the Federal Government to resolve.

It is undisputed that the Federal Government’s control

over immigration is plenary. “The authority to control

immigration — to admit or exclude aliens — is vested solely

in the Federal Government.” Truax v. Raich, 239 U.S. 33, 42,

36 S.Ct. 7, 11 (1915) (citation omitted). The Supreme Court, in

Faillo v. Bell, 430 U.S. 787, 97 S.Ct. 1473, 52 L.Ed.2d 50

(1977), stated that “‘over no conceivable subject is the

legislative power of Congress more complete than it is over’

the admission of aliens.” /d. at 792, 97 S.Ct. at 1478, citing

Oceanic Navigation Co. v. Stranahan, 214 U.S. 320, 339, 29

S.Ct. 671, 676, 53 L.Ed. 1013 (1909). But in Baker v. Carr, the

Supreme Court carefully pointed out that not every matter

touching on politics falls under the political question doctrine.

369 at 211, 82 S.Ct. at 707 (1969). Specifically, it is “error to

suppose that every case or controversy which touches foreign

relations lies beyond judicial cognizance.” /d.

The Court shall address the political question doctrine

in terms of each count of the Complaint.

a. Count II

Count II is based on the failure of the Federal

Government to enforce and effectively administer immigration

laws. In essence, Plaintiffs are seeking an order of the Court

requiring the United States to cease its policy of “arbitrary and

irrational nonenforcement” of the immigration laws or to

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provide equitable restitution in the alternative. Plaintiffs claim

that the Attorney General is abusing her discretion in failing to

enforce immigration laws. Plaintiffs admit that ordering a

broad-scale injunction against the United States to enforce the

immigration laws may well be beyond the competence of the

Court as it would involve the Court in matters relating to the

conduct of foreign relations and the deployment of the military

forces of the United States. (Complaint, 14). The Court agrees

and will therefore restrict its discussion to Plaintiffs’ alternative

ground for relief, equitable restitution.

Plaintiffs allege that in Count II they are only asking

that the Court exercise its inherent authority of statutory

interpretation to determine whether the United States is

fulfilling its statutory duty to the State of Florida. Plaintiffs

allege that the Attorney General has an obligation to deport

illegal aliens under 8 U.S.C. § 1103. This section, which

pertains to the powers and duties of the Attorney General,

states in part:

(a) Attorney General

. »» He shall have the power and duty to control

and guard the boundaries and orders of the

United States against the illegal entry of aliens

and shall, in his discretion, appoint for that

purpose such number of employees of the

Service as to him shall appear necessary and

proper. ...

8 U.S.C. § 1103 (1993). Plaintiffs claim that the Attorney

General has in essence abdicated this responsibility.

Plaintiffs assert that the present case is analogous to

Japan Whaling Ass’n v. American Cetacean Soc., 478 U.S.

221, 106 S.Ct. 2860, 92 L.Ed.2d 166 (1986), in that both cases

require the court to interpret a statute chat has political

overtones. In Japan Whaling, the petitioners sought an

injunction requiring the Secretary of Commerc: to certify to

the President that Japan, in its whale harvesting, was

diminishing the effectiveness of the International Whaling

Commission quotas. Title 22, section 1978 of the Unitec States

Code specifically states that “[wJhen the Secretary of

Commerce determines that nationals of a foreign country . . .

are conducting fishing operations in a manner or under

circumstances which diminish the effectiveness of an

international fishery conservation program, the Secretary of

Commerce shall certify such fact to the President.” 22 U.S.C.

§ 1978. The Supreme Court concluded that it was within the

[sic] its authority to determine whether 22 U.S.C. § 1978

imposed a duty upon the Secretary, as this was simply a matter

of statutory interpretation. The Supreme Court recognized that

Baker authorizes courts to interpret congressional legislation.

Id., 106 S.Ct. at 2866.

In the present case, Plaintiffs are asking the Court to

review the overail immigration policy of the United States and

decide if the Attorney General's failure to deport illegal aliens

is a violation of 8 U.S.C. § 1103. Plaintiffs argue that section

1103 imposes on the Attorney General an affirmative duty to

deport all illegal aliens. The Court does not find 8 U.S.C. §

1103 to be analogous to the statute referred to in Japan

Whaling that imposes a specific duty, in that section 1103

allows for the Attorney General’s discretion in determining

whether to deport an illegal alien. Rather, in reviewing 8

U.S.C. § 1103, the Court finds it to be analogous to the duty

imposed on each United States attorney under 28 U.S.C. § 547.

Section 547 states in part:

Except as otherwise provided by law,

each United States attorney, within his district,

shall —

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S BEST AVAILABLE COPY!

(1) prosecute for all offenses against the United States;

28 U.S.C. § 547 (1993). Although § 547 appears to require

each United States attorney to prosecute all offenses against the

United States, no such duty exists. It is well established that the

Executive Branch, and therefore the United States Attorney,

has exclusive authority and absolute discretion to decide

whether to prosecute a case. United States v. Nixon, 418 U.S.

696, 693, 94 S.Ct. 3090, 3100, 41 L.Ed.2d 1039 (1974). See

also Confiscation Cases, 7 Wall. 454, 19 L.Ed. 196 (1869).

This recognition of prosecutorial discretion is attributable in no

small part to the general unsuitability for judicial review of the

attorney’s decision to refuse to prosecute. See Heckler v.

Chaney, 470 U.S. 821, 831, 105 S.Ct. 1649, 1655, 84 L.Ed.2d

714 (1985).

Like 28 U.S.C. § 547, the Court concludes that the

Attorney General’s decisions under 8 U.S.C. § 1103 not to

deport are unsuitable for review. A decision of this sort

requires a complicated balancing of factors which are

peculiarly within the Attorney General’s expertise. The

Attorney General must consider many factors including

whether deportation best fits the agency and the Federal

Government's overall policies, and whether the political ~ ~

climate of an alien’s native country makes deportation

unsuitable. Thus, the Court finds the Attorney General's

SB RRS Sy ively j from judicial

review. See Heckler, 470 U.S. at 831-32, 105 S.Ct. at 1655-56.

In Heckler v. Chaney, 470 U.S. 835, 105 S.Ct. 1649, 84

L.Ed.2d 714 (1985), the Supreme Court defined circumstances

1 Wiel CAINE conte of Geer nang ig

Heckler dealt with the Federal Drug Administration's refusal

to take enforcement action concerning the use of certain drugs.

The Supreme Court concluded that under 5 U.S.C. § 701(a)(2)

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there is a presumption of unreviewability of an agency's

decision not to undertake enforcement action. This

presumption may be rebutted where the substantive statute has

provided guidelines for the agency to follow in exercising its

enforcement powers. /d. 470 U.S. at 832-33, 105 S.Ct. 1656.

In a footnote to its opinion, the Supreme Court stated that it

expressed no opinion on whether, where an agency has

(¢onsciously and expressly adopted a general policy’ that is so

extreme as to amount to an abdication of its statutory

responsibilities, such decisions are unreviewable under §

701(a)(2). The Court stated that in those situations the statute

conferring authority on the agency might indicate that such

decisions were not “committed to agency discretion.” /d. fn. 4.

In the instant case, Florida alleges that the Attorney

General's inaction has resulted in an abdication of her statutory

responsibility. As stated in Heckler, under 8 U.S.C. § 701(a)(2)

there is a presumption of unreviewability of the Attorney

General's decision not to undertake enforcement action.

Florida has failed to identify any guidelines contained in the

statutes that would rebut this presumption.

As for Florida’s allegation that there has been an

abdication of the Attorney General's responsibility, the Court

can identify nothing in 8 U.S.C. § 1103, which confers the

power to enforce the immigration laws, that would indicate that

the Attorney General's decision not to undertake enforcement

action in certain situations is not “committed to agency

discretion.” /d. fn. 4. Therefore, the Court must dismiss Count

Il.

b. Count Ill

In Count II], Plaintiffs seek either declaratory relief or

damages. Plaintiffs request that the Court declare the current

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restrictions against providing Medicaid and AFDC benefits to

illegal aliens either contrary to applicable statutes or

unconstitutional for failing to provide payments to Florida for

expenses on behalf of aliens.”

Plaintiffs base this claim on the Tenth Amendment'®

and the Guarantee Clause" of the United States Constitution

"Medicaid is authorized under 42 U.S.C. § 1396b and implemented

under 42 C_F.R. §§ 435.406 and 435.408. AFDC is authorized under 42

U.S.C. § 202 and implemented pursuant to 45 C_F.R. §§ 233.50, 233.51 and

233.52.

The fi é io ie aitieeien ctuten Gar ony

expenses incurred on behalf of an alien not having a specified “lawful

” Medicaid reimt Gor illegal aliens is limited to “ »

medical conditions,” as defined in 42 U.S.C. § 1396b(v)(3). Similarly, states

may not be reimbursed for providing AFDC coverage to an alien, no matter

how impoverished, unless the alien has a recognized lawful status. See 42

U.S.C. § 602 (a) (33). Hence, the welfare needs of the hundreds of

thousands present in Florida who have no lawful status must be met with

other funds by state and local governments.

“The Tenth Amendment w the Constitution of the United States of

America states:

The powers not delegated to the United States by the

Constitution, nor prohibited by it to the States, are

reserved to the States respectively, or to the people.

~ U.S.Const. amend. X.

“The Guarantee Clause, Article IV, Section 4 of the United States

Constitution provides.

The United States shall guarantee to every State in this

Union a Republican Forn of Government, and shall

protect each of them against Invasion, and on Application

of the Legislature, or of the Executive (when the

5-15

alleging that the Federal Government’s policies

disproportionately affect Florida, thus rendering the State of

Florida politically isolated and powerless. Plaintiffs seek a

declaration that the restrictions are unconstitutional or, in the

alternative, ask the Court to require that the Federal

Government pay for expenses incurred for Medicaid and

AFDC to illegal aliens.

The Federal Government’s decision not to provide

Medicaid or AFDC to illegal aliens is based on the Federal

Government’s powers over naturalization and immigration, and

spending.'* The Supreme Court stated in Mathews v. Diaz:

For reasons long recognized as valid, the

responsibility for regulating the relationship

between the United States and our alien visitors

has been committed to the political branches of

the Federal Government. Since decisions in

these matters may implicate our relations with

foreign powers, and since a wide variety of

classifications must be defined in the light of

changing political and economic circumstances,

Legislature cannot be convened) against domestic

violence.

U.S. Const. art. IV, § 4.

"Article I, Section 8 of the United States Constitution sets out the

Federal Government's spending powers; this provision states:

The Congress shall have Power To lay and collect Taxes,

Duties, Imposts, and Excises, to pay the Debts and

provide for the common Defence and general Welfare of

the United States; but all Duties, Imposts and Excises

shall be uniform throughout the United States.

U.S. Const., art. I, § 8.

B-16

such decisions are frequently of a character

more appropriate to either the Legislature or the

Executive than the Judiciary. . . . Any rule of

constitutional law that would inhibit the

flexibility of the political branches of

government to respond to changing world

conditions should be adopted only with greatest

caution.

Mathews v. Diaz, 426 U.S. 67, 81-82, 96 S.Ct. 1883, 1892, 48

L.Ed.2d 478 (1976) (footnotes omitted).

The Federal Government has determined that it would

not be in the United States’ best interest to provide Medicaid

and AFDC to illegal aliens." It is not difficult to comprehend

the rationale behind this decision; to provide these benefits

would create additional incentives for illegal immigration into

the United States. This could have a serious and substantial

impact on this country’s immigration and naturalization

scheme as well as on the nation’s relationships with foreign

countries. If the Court were to order the Federal Government

to reimburse the states for the Medicaid and AFDC costs, the

Court would be intruding into the realm of foreign policy, an

arena in which the Judiciary does not belong.

In addition, it is well settled that the power of the

Federal Government to spend is limited only by the

requirement that such power shall be exercised to provide for

the general welfare of the United States. United States v.

Butler, 297 U.S. 1, 65-6, 56 S.Ct. 312, 319, 80 L.Ed.2d 477

(1936). Once the Federal Government determines that it is in

"This case demonstrates that what may be in the best interests of the

United States, can be devastating to individual states, in this case. the State of

Plonda.

B-17

the best interest of the United States not provide these benefits

to illegal aliens, the Court’s inquiry must end.'*

The State of Florida chose to participate in both

Medicaid and AFDC. See 42 U.S.C. §§ 601, 1396 (1991). As

a condition of participation, the State of Florida must abide by

the conditions of the programs, including the lack of funding

for illegal aliens."

The Court finds that there is a textually demonstrable

constitutional commitment of the issue of whether to provide

Medicaid and AFDC benefits to illegal aliens to the Legislative

and Executive branches of the Federal Government. Thus, this

issue presents a political question, and, therefore, must be

dismissed.

“In their response to the motion to dismiss, Plaintiffs assert that Congress

is not spending for the general welfare when it funds these programs for some but

not all of the states on the basis of need.” (D.E. 53, p. 47.) As already stated,

decreasing the incentive for the continued flow of illegal aliens into the United

States ts within the “general welfare” of the United States.

Plaintiffs make an additional argument that as a result of the Federal

Government's policy not to provide Medicaid and AFDC benefits to illegal aliens,

the State of Flonda ts bearing an unfair burden. Plaintiffs allege that although the

statute ts neutral on its face, there is an uneven impact in Plorida duc to the

disproportionate presence of illegal aliens in Flonda.

Plaintiffs assert that within the Tenth Amendment and Guarantee Clausc

is a requirement that all states be treated equally. (D.E. 53, p. 47.) It ts clear from

the facts that the Federal Government refuses to provide Medicaid and AFDC to all

illegal ahens no matter what state the illegal aliens are from. The fact that the results

of the policy have a greater affect on the State of Florida, than on other states, does

not create an actionable clam.

To tlustrate thes port. if tomorrow the Federal Government decided to

dircontinue all wheat subsidies to all farmers in the United States, the umpac of this

change in pohcy would obviously have ms greatest umpact on the Midwestern states.

Although the Miudwestern states would be called upon to bear a much greatcr

burden, thes does not make the policy of ao wheat subsidies unconstitutioral,

B-18

c. Count IV

Count IV is for declaratory and injunctive relief for

violation of Plaintiffs’ rights under Article IV, Section 4 of the

United States Constitution and the Tenth Amendment.

Plaintiffs assert that the Federal Government’s failure to

protect the State of Florida against invasion of illegal aliens

“has brought coercive pressure to bear on the state and local

political processes to provide education, welfare and medical

care to these aliens,” and “blurred lines of political

accountability” in violation of the Tenth Amendment and the

Guarantee Clause of the Constitution.'’ (D.E. 53, p. 10). In

essence, Plaintiffs claim that the Federal Government’s failure

to control the influx of illegal aliens into the State of Florida

prevents the government of Florida from functioning in a

democratic way.'* Thus, Plaintiffs ask the Court to order that

Defendants terminate the policies that have subjected Florida

to an invasion of aliens or requests equitable restitution.

Defendants argue that this count is barred by the

political question doctrine as there exists no judicially

"Due to the continuing influx of aliens, heavy burdens are placed on

Florida’s available resources. Among the continuing costs are those of public

infrastructure improvements, housing, feeding, medical care, education,

incarceration, and parole and probation supervision.

"Under the Tenth Amendment, “{i)f a power is delegated to Congress in

the Constitution, the Tenth Amendment expressly disclaims any reservation of that

power to the States; if a power is an attribute of state sovereignty reserved by the

Tenth Amendment, it is necessarily a power the Constitution has not conferred on

Congress.” New York v. U.S. U.S._, 112 S.Ct. 2408, 2417, __L.Ed.2d__ (1992).

“Plaintiffs assert that “Florida's lack of any means to protect itself against

the ever increasing demands together with defendants’ denial of financial assistance

has extinguished the lines of political accountability. . . .” (D.E. 53, p. 42). Plaintiffs

while Florida elected officials are forced to shape their agendas based on federal

priorities and not those of their constituents. (D.E. 53, p. 43.)

B-19

manageable standard “for which the Court can determine at

what point the migration becomes an invasion or when the

social costs of migration somehow invade [the State of

Florida’s] sovereignty.” (D. E. 73, p 9). Defendants argue that

without such a standard, Count I'V presents a political question

for which the Court lacks jurisdiction. See Nixon v. U.S.,

__U.S__, 1F3 S.Ct. 732, 735, __ L. Ed. 2d__ (1993) (“the lack

of judicially manageable standards may strengthen the

conclusion that there is a textually demonstrable commitment

to a coordinate branch”).

The Supreme Court has repeatedly stated that

“[p]rominent on the surface of any case held to involve a

political question is found a textually demonstrable

constitutional commitment of the issue to a coordinate political

department; or a lack of judicially discoverable and

manageavle standards for resolving it . . .” Matthew v. Diaz,

426 U.S. 67, 83, 96 S.Ct. 1883, 1892, 48 L.Ed.2d 478 (1976);

Baker, 369 U.S. at 217, 82 S.Ct. at 710.

Plaintiffs claim that the Supreme Court, in New York v.

U.S., sets out a judicially manageable standard that should be

applied to this cause of action. Plaintiffs claim that the

“government breaches its duty when its failure to protect

against invasion of illegal aliens imposes coercive pressure on

the state and local political processes, and blurs lines of

political accountability to such a degree as to infringe on the

sovereignty interests protected by the Tenth Amendment under |

such cases as New York v. United States.” (D.E. 53). The Court

does not find this to be a manageable standard when applied to

the instant case.

In New York, the Supreme Court was faced with

determining whether federal legislation which required states

to adopt regulations for the disposal of radioactive wastes, 42

U.S.C. § 2021(d)(2)(C), took away political accountability to

such an extent as to infringe on the sovereign powers of the

states. The Supreme Court concluded that the Federal

B-20

Government's mandate that states adopt legislation diminished

the accountability of the state government to its electorate and

therefore violated the Tenth Amendment.

Justice O’Connor, writing for a six Justice majority,

drew a careful distinction between Congress’ “substantial

powers to govern the Nation directly, including in areas of

intimate concern to the States,” and the prohibited “ability to

require the States to govern according to Congress’

instructions.” New York, 112 S.Ct. at 2421. Justice O’Connor

emphasized that “even when Congress has the authority to pass

laws requiring or prohibiting certain acts, it lacks the power

directly to compel the States to require or prohibit those acts.”

Id. at 2423. The Supreme Court concluded that even though

Congress has the power to regulate the disposal of radioactive

waste, Congress does not have the power to order the states to

adopt legislation to regulate in this area. Jd. at 2429. Thus, the

Supreme Court declared 42 U.S.C. § 2021(d)\(2)(C)

unconstitutional.

The distinction between New York and the present case

is that, in New York, Congress ordered the states to adopt

specific policies. In the instant case, Congress has adopted the

policies themselves and did not order any action on the part of

the states. Congress did not command that the State of Florida

do anything. In fact, there is no specific legislation at issue.

That Florida has chosen to provide certain services to, aliens i is

"” not a result of an order from Congress, but a conscious policy

choice on behalf of the State of Florida."® As the instant case

does not involve a situation where Congress has ordered

is, in essence, a Hobson's choice. The State of Florida is presented with the

following dilemma: If Florida chooses not to provide services to illegal aliens

including closing schools, emergency rooms, etc., the impact on the health, safety

and welfare of its citizenry could be potentially devastating. If, on the other hand,

Florida chooses to provide the services, the cost of these services could cripple the

State of Florida.

B-21

legislative action on the part of the states, the standard set out

in New York is not appropriate.

The Plaintiffs fail to suggest, and the Court is unable to

identify, a manageable standard for determining when the

migration, as well as the costs associated with such migration,

reaches the point at which it invades the State of Florida’s state

sovereignty. In order to grant the restitution requested by

Plaintiffs, the Court would be forced to review the United

States entire enforcement of Federal immigration laws

including the enforcement methods used and _ their

effectiveness, determine the reasonableness of budget

allocations, determine whether more resources are available

and, if so, decide how those additional resources should be

allocated. The Court is unable to identify satisfactory criteria

for making these determinations.” This is clearly beyond the

Plaintiffs rely on Plyler v. Doe, 457 U.S. 202, 102 S.Ct. 2382, 72

L.Ed.2d 786 (1982), for support for their contention that the Federal Government

should bear the costs associated with illegal aliens. In Plyler, the Supreme Court was

faced with the issue of whether the individual states could deny elementary

education to children who were illegal aliens. The Supreme Court concluded that,

under the Fourteenth Amendment, states could not refuse elementary education to

illegal alien children.

In a dissenting opinion, joined by Justices White, Rehnquist and

O'Connor, Justice Burger recognized the financial burden that this decision would

place on the states. Justice Burger stated that:

It does not follow, however, that a state should bear the costs of

educating children whose illegal presence in this country results

from the default of the political branches of the Federal!

Government. A state has no power to prevent unlawful

immigration, and no power to deport illegal aliens; those

powers are reserved exclusively to Congress and the Executive.

If the Federal Government, properly charged with deporting

illegal aliens, fails to do so, it should bear the burdens of their

presence here.

Id. at 242, 106 S.Ct. at 2408, n. 1 (Burger, J., dissenting). Although this Court agrees

with the rationale employed by Justice Burger in his dissenting opinion, to date,

neither this Court nor the Supreme Court has been able to identify a judicially

manageable standard under which a court could order the Federal Government to

bear the costs associated with the mass influx of illegal aliens.

B-22

Judiciary’s authority, and should be left to the Legislative and

Executive branches of government.

The Court recognizes that the State of Florida is

suffering under a tremendous financial burden due to the

methods in which the Federal Government has chosen to

enforce the immigration laws. The State of Florida is in

desperate need of relief from this overwhelming burden it is

being unfairly forced to bear. The Court also recognizes that,

as the State of Florida has already sought relief through the

political process, the State may have no other method for

obtaining relief from this burden should this Court determine

that the issue is a political question. But recognizing these facts

does not create a legal theory under which this Court may grant

relief. Without such a legal theory, this Court must dismiss this

action.”"

Accordingly, it is

ORDERED AND ADJUDGED that Defendants’

Motion to Dismiss is GRANTED. It is

FURTHER ORDERED AND ADJUDGED (that

Plaintiff's Motion for Mandatory Injunction as to Count I and

for Partial Summary Judgment Requiring Such Mandatory

Injunction is DENIED as MOOT.

*"As the Court has determined that this action is barred by the political

question doctrine, the Court need not address Defendants’ additional arguments.

B-23

This case is DISMISSED. All pending motions not

otherwise ruled upon are DENIED as MOOT.

DONE AND ORDERED in Chambers, at Miami,

Florida, this day of December, 1994.

/s/

EDWARD B. DAVIS

UNITED STATES DISTRICT JUDGE

B-24

a ee i

ana

Se ———. °° —

APPENDIX C

Np Pee ae

gi

CONSTITUTIONAL AND

STATUTORY PROVISIONS

1. Article IV, §4, United States Constitution:

The United States shall guarantee to

every State in this Union a Republican Form of

Government, and shall protect each of them

against Invasion; and on Application of the

Legislature, or of the Executive (when the

Legislature cannot be convened) against

domestic Violence.

y 2 Tenth Amendment, United States Constitution:

The powers not delegated to the United

States by the Constitution, nor prohibited by it

to the States, are reserved to the States

respectively, or to the people.

3 8 U.S.C. §1103(a)

The Attorney General shall be charged

with the administration and enforcement of this

chapter and all other laws relating to the

immigration and naturalization of aliens, except |

insofar as this chapter or such laws relate to the |

powers, functions, and duties conferred upon

the President, the Secretary of State, the

officers of the Department of State, or

diplomatic or consular officers: Provided,

however, That determination and ruling by the

Attorney General with respect to all questions

of law shall be controlling. He shall have

control, direction, and supervision of all

employees and of all the files and records of the

C-]

Service. He shall establish such regulations;

prescribe such forms of bond, reports, entries,

and other papers; issue such instructions; and

perform such other acts as he deems necessary

for carrying out his authority under the

provisions of this chapter. He may require or

authorize any employee of the Service or the

Department of Justice to perform or exercise

any of the powers, privileges, or duties

conferred or imposed by this chapter or

regulations issued thereunder upon any other

employee of the Service. He shall have the

power and duty to control and guard the

boundaries and borders of the United States

against the illegal entry of aliens and shall, in

his discretion, appoint for that purpose such

number of emp!oyees of the Service as to him

shali appear necessary and proper. He is

authorized to confer or impose upon any

employee of the United States, with the consent

of the head of the Department or other

independent establishment under whose

jurisdiction the employee is serving, any of the

powers, privileges, or duties conferred or

imposed by this chapter or regulations issued

thereunder upon officers or employees of the

Service. He may, with the concurrence of the

Secretary of State, establish offices of the

Service in foreign countries; and, after

consultation with the Secretary of State, he

may, whenever in his judgment such action

may be necessary to accomplish the purposes of

this chapter, detain employees of the Service

for duty in foreign countries.

APPENDIX D

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

MIAMI DIVISION

CASE NO. 94-0676-CIV-DAVIS

LAWTON M. CHILES, JR., et al.

Plaintiffs,

VS.

UNITED STATES OF AMERICA, et al.

Defendants.

COMPLAINT

Plaintiffs, Lawton M. Chiles, Jr., Governor of the State

of Florida; the State of Florida; Dade County Public Health

Trust; and the School Board of Dade County, sue defendants

United States of America; Doris Meissner, Commissioner of

the Immigration and Naturalization Service (“INS”); Janet

Reno, Attorney General of the United States: Jennifer Nelson,

Acting Regional Administrator of the Southern Regional Office

of the INS; Walter D. Cadman, District Director of the Miami

District Office of the INS; and Donna E. Shalala, the Secretary

of the United States Department of Health & Human Services

(the defendants are referred to collectively as the “Federal

Government’), and allege:

I,

JURISDICTION

l. This Court has jurisdiction over this action

pursuant to 5 U.S.C. § 702, et seqg., 28 U.S.C. § 1331, and 28

U.S.C. §§ 2201 and 2202.

2. Venue is proper in this Court pursuant to 28

U.S.C. § 1391(b), specifically in that a substantial portion of

the events or omissions giving rise to the claims alleged arose

within the jurisdiction of the United States District Court for

the Southern District of Florida.

. Immigration into the United States is controlled

by the Attorney General, through the INS. See, 8 U.S.C.

§ 1101, et seg. and 28 CFR. § 0.105, et seq.

Il.

INTRODUCTION

4. This case involves the unprecedented and

grossly disparate economic burden forced upon the State of

Florida by the Federal Government’s continuing failure to

enforce or rationally administer its own immigration laws since

well before 1980. This burden is particularly egregious with

respect to persons who have been permitted by the Federal

Government to enter and/or remain in Florida without

complying with those laws.

5. The Federal Government has exclusive and

plenary control of the immigration laws and their enforcement.

Article I, § 8 of the United States Constitution gives the

Federal Government authority to provide for the defense of the

nation, to regulate foreign commerce and to create a uniform

law of naturalization. The individual States are thus prohibited

from adopting immigration laws. See, Henderson v. Mayor of

D-2

Stn rae SE PEED ORME RT phe toe te EEF ne ytdirata we §

SB See Pade Dyin Bit Lobe,

fsa ere dy

PRL PEEL LEE AEBS. LABELS RIN EOLA RBS FS. + ae

City of New York, 92 U.S. 259, 23 L.Ed. 543 (1876) (holding

State immigration laws to be an unconstitutional violation of

the federal power to regulate foreign commerce).

6. Yet, since well before 1980, the Federal

Government, through the action and inaction of the individual

defendants (and their predecessors in office), has abdicated its

responsibility under the immigration laws and the United States

Constitution to enforce and administer rational immigration

policies.

7 The result of the Federal Government’s failure

to control immigration and protect the national borders has

resulted in a massive and uncontrolled influx of aliens who

enter the United States and the State of Florida in violation of

the immigration laws. As then-President Ronald Reagan

proclaimed in 1981, “The ongoing migration of persons to the

United States in violation of our laws is a serious national

problem, detrimental to the interests of the United States. A

particularly difficult aspect of the problem is the continuing

illegal migration by sea of large numbers of undocumented

aliens to the Southeastern United States. These arrivals have

severely strained the law enforcement resources of the

Immigration and Naturalization Service and have threatened

the welfare and safety of communities in that region.” “High

Seas Interdiction of Illegal Aliens,” by Ronald Reagan,

President of the United States of America, Proclamation 4865

of September 29, 1981, 46 FR. 48107. A_ grossly

disproportionate share of this alien population arrives at

Florida’s shores, and continues to reside here. Florida is

without legal or actual power to stop this massive and

uncontrolled influx. The term “alien” or “alien person,” as used

in this complaint, means those persons defined as “aliens” in 8

U.S.C. § 1101(a)(3). The term “undocumented alien,” as used

in this complaint, means those foreign nationals who: (a)

entered the United States without inspection; (b) entered with

D-3

fraudulent documentation; (c) after entering legally with a

temporary visa, remained in the United States after the visa

expired; or (d) who are excludable pursuant to 8 U.S.C. § 1182.

8. While the Federal Government is exclusively

and directly responsible for the uncontrolled influx of aliens to

Florida, the Federal Government has failed to provide for the

needs of such aliens once they arrive. As one commentator has

noted:

[W]hile the federal. government has

concentrated on U.S. immigration policy, it has

ignored immigrants’ needs when they arrive.

The federal government has no comprehensive

immigrant policy on language, orientation or

education to help newcomers adjust to a new

society. The federal government provides

limited benefits to a narrow and shrinking

proportion of the newcomer population, namely

refugees and legalized aliens.

Unlike the federal government, states

and localities do not have the luxury of ignoring

the needs of newcomers. The public health and

welfare of many state and local communities

depends upon successful newcomer transitions.

By federal default, states [sic] and local

governments have become the stewards of

immigrant policy.

Dunlap, “The Absent Federal Partner,” 67 Spectrum: The

Journal of State Government, 6, 7 (Winter 1994) (emphasis

added).

9. Plaintiffs are well aware of the positive impact

immigrants have had and will continue to have on Florida.

They bring a cultural diversity and richness to the State.

D-4

oR SSS ey:

However, the cost to the State of the uncontrolled influx of

aliens, particularly undocumented ones, has been

overwhelming. The need of these persons for services is

substantial, and Florida must provide these services to maintain

the health, safety, and welfare of the community.

10. The Federal Government has failed to provide

reimbursement for many of the services Florida is required by

law to afford aliens once they arrive upon the shores of Florida,

as well as other necessary services which must be afforded

them to serve the public health and safety of the State. Thus,

while Florida has borne the dislocations brought on by an

exploding alien population (accounting for 95% of the

population growth in Dade County alone over the past ten

years), the Federal Government has not accepted the

responsibility to pay for many of the costs of this alien

population, but rather has compelled Florida to absorb them.

11. While acknowledging that the uncontrolled

influx of aliens to the State of Florida has had severe financial

consequences, the Federal Government has failed to take

appropriate action to either control the influx or to pay for the

resulting costs. As a result of the Federal Government’s failure

to cover the costs resulting from its unwillingness to control

immigration, the State of Florida is the victim of an ongoing

immigration emergency that severely endangers the lives,

property, safety, and economic welfare of the residents of the

State. It has been estimated that the cost to Floridians of

providing services to aliens amounted to $2.5 billion in fiscal

year 1993 from State and local sources combined. At the State

level alone, costs for providing services to aliens are estimated

at $751 million per year. Total estimated costs for

undocumented aliens are approximately $884 million per year,

representing nearly 35% of the total cost of providing services

to aliens in fiscal year 1993. These absorbed costs are detailed

in “The Unfair Burden: Immigration’s Impact on Florida,”

D-5

prepared by the Executive Office of the Governor, Office of

Planning and Budgeting, Intergovernmental Affairs Policy Unit

and Florida Advisory Council on Intergovernmental Relations,

pp. i, ili (March 1994) (attached as Exhibit A hereto).

12. ‘It is arbitrary, capricious, and an abuse of

discretion for defendants to refuse to protect the integrity of

Florida’s borders and to also refuse to pay the costs which have

resulted from that refusal. In effect, defendants have punished

Florida for the very conditions in which defendants have placed

Florida. This is repugnant to constitutional norms of equality

and fairness.

13. It is repugnant to constitutional norms of

equality and fairness that the Federal Government has opened

the door to an uncontrolled influx of aliens, has received and

continues to receive most of the taxes paid by such aliens once

they are here, but has shifted most of the costs of such aliens to

a handful of state and local governments. In fact, according to

1993 testimony by Charles Wheeler of the National

Immigration Law Center before the U.S. House Subcommittee

on Human Resources, approximately two-thirds of the tax

dollars paid by aliens go to the Federal Government, while

most of the health, education and social service costs that are

incurred are paid for by the state and local governments in

which such aliens reside. See, Sharry, “Myths, Realities and

Solutions,” 67 Spectrum: The Journal of State Government, 20,

21 (Winter 1994).

14. | On information and belief, there are many things

the Federal Government could do to increase the effective

enforcement of the immigration laws. Requiring the Federal

Government to take these actions may well be within the

purview of this Court. Nevertheless, enjoining defendants to

fully enforce the immigration laws (or mandating rational

administration) may well be beyond the practical competence

D-6

of this Court, since it could involve the Court in matters

relating to the conduct of foreign relations and the deployment

of the military forces of the United States. In any case, a

mandatory injunction requiring defendants to make payments

under statutes mandating the provision of financial assistance

is well within the power of this Court under Bowen vy.

Massachusetts, 487 U.S. 879, 108 S.Ct. 2722, 101 L.Ed.2d 749

(1988). Equally within the Court’s authority is the power to

issue an injunction directing the defendants to fulfill

constitutional obligations that can be met through the provision

of financial assistance as an alternative to effective

enforcement of the immigration laws.

15. Counts I and III of this Complaint are warranted

by existing law. Counts II and IV are warranted by a rational

and logical argument for extension of the law established by

the United States Supreme Court in Bowen v. Massachusetts,

supra, and New York v. United States, _ U.S. _, 112 S.Ct.

2408, 120 L.Ed.2d 120 (1992). Reliance is also placed on both

the majority and dissenting opinions in Plyler v. Doe, 457 U.S.

202, 102 S.Ct. 2382, 72 L.Ed.2d 786 (1982). Plyler forbids the

states from withholding public education from illegal alien

children and thus obliges them to bear the cost of the federal

government’s failure to enforce the immigration laws

effectively. Five Justices specifically have acknowledged the

federal government’s responsibility to bear such costs. Thus,

Chief Justice Burger’s Plyler v. Doe dissent, in which he was

joined by three other Justices, stated:

It does not follow...that a state should bear the

costs of educating children whose illegal

presence in this country results from the default

of the political branches of the Federal

Government. A state has no power to prevent

unlawful immigration, and no power to deport

illegal aliens... If the Federal Government,

D-7

properly chargeable with deporting illegal

aliens, fails to do so, it should bear the burden

of their presence here.

457 U.& at 242, n. 1. In addition, Justice Powell, who

concurred in the majority opinion, also stated that the Federal

Government shouid bear financial responsibility for its actions.

457 U.S. at 241. This action is brought to impose that burden

on the Federal Government.

Il.

STANDING

16. Plaintiffs have all suffered serious economic

detriment by reason of the actions of defendants herein

complained of, which, as the Court of Appeals for the 11th

Circuit stated in Chiles v. Thornburgh, 865 F.2d 1197, 1209

(1ith Cir. 1989), is “the epitome of an injury in fact.” This

injury has been to their respective “sovereign interest(s}, that

is [their respective] abilit[ies] to exercise [their] power.” /d. at

1208. This injury will be “redressed by a favorable judicial

decision” granting the relief herein sought. /d. at 1209.

IV.

PARTIES

17. Plaintiff Lawton M. Chiles, Jr. (“Chiles”), is a

citizen, resident, and taxpayer of the United States and Florida.

Chiles is the Governor of the State of Florida and, pursuant to

Article IV of the Florida Constitution, exercises the supreme

executive power of the State of Florida. The Governor is also

responsible for initial preparation of the State budget which

must be balanced. See Article VII, § 1(d), Fla. Const.; and Fla.

Stat. § 216.162 (1993). As such, the Governor must take

responsibility for recommending to the Florida legislature that

there either be cuts in other important state spending or

D-8

increases in Florida taxes to cover the costs of providing

essential services to many aliens. The costs of dealing with the

immigration emergency in which Florida finds itself are

imposed and compelled by the Federal Government. Chiles

brings this action in his individual and official capacities.

18. _—_ Plaintiff State of Florida is a sovereign state of

the United States.

19. _—_— Plaintiff School Board of Dade County, Florida

(the “Dade County School Board”), is a governmental unit

established pursuant to Article 9, § 4, of the Florida

Constitution, to operate, control, and supervise all free public

schools in Dade County, Florida.

20. Plaintiff Dade County Public Health Trust is a

county puolic health trust established pursuant to Chapter 154,

Part Il, Florida Statutes. The Dade County Public Health Trust

has the power to sue and be sued. Plaintiff Dade County Public

Health Trust is an agency and instrumentality of Dade County

that governs, operates, and manages Jackson Memorial

Hospital and other satellite health care facilities pursuant to

Florida Statute § 154.07 (1993).

21. Defendant United States of America is a

sovereign nation with the powers and duties specified in the

Constitution of the United States and the Acts of Congress.

22. Defendant Doris Meissner is the Commissioner

of the Immigration and Naturalization Service (“INS”) of the

United States Department of Justice (“DOJ”), and is sued in her

official capacity (the “INS Commissioner’). The acts

complained of herein are those of the present INS

Commissioner and several of her predecessors.

D-9

23. Defendant Janet Reno is the Attorney General

of the United States (“Attorney General”), and she is sued in

her official capacity. The Attorney General is the head of the

United States Department of Justice, an executive department

of the United States, pursuant to 28 U.S.C. § 503. The acts

complained of herein are those of the present Attorney General

and several of her predecessors.

24. Defendant Jennifer Nelson is the Acting

Regional Administrator of the INS Southern Regional Office

located in Dallas, Texas (“INS Acting Regional

Administrator’), and she is sued in her official capacity. The

acts complained of herein are those of the present INS Acting

Regional Administrator and several of her predecessors as

Regional Administrator, acting and permanent.

25. Defendant Walter D. Cadman is the District

Director of the INS District Office in Miami, Florida (“INS

District Director’), and he is sued in his official capacity. The

acts complained of herein are those of the present INS District

Director and several of his predecessors.

26. Defendant Donna E. Shalala is the Secretary of

the United States Department of Health and Human Services

(“HHS Secretary”), and she is sued in her official capacity. The

acts complained of herein are those of the present HHS

Secretary and several of her predecessors.

Vv.

APPLICABLE CONSTITUTIONAL PROVISIONS

27. Article I, § 8, clause 1, United States Constitution,

provides, in pertinent part: “The Congress shall have Power To

lay and collect Taxes, Duties, Imposts and Excises, to pay the

Debts and provide for the common Defense and general

Welfare of the United States .. .”

D-10

28. Article [V, § 4, United States Constitution,

provides, in pertinent part: “The United States shall guarantee

to every State in this Union a Republican Form of Government,

and shall protect each of them against Invasion; . . .”

29. The Tenth Amendment of the United States

Constitution provides that: “The powers not delegated to the

United States by the Constitution, nor prohibited by it to the

States, are reserved to the States respectively, or to the people.”

VIL.

THE CONSTITUTIONAL AND STATUTORY

SCHEME: DEFENDANTS’ OFFICIAL DUTIES

30. The Attorney General is, pursuant to 8 U.S.C.

§ 1103, charged with the administration and enforcement of the

Immigration and Nationality Act of 1952, 8 U.S.C. § 1101 ef

seq., as amended (the “INA”), and all other laws relating to the

immigration and naturalization of aliens, except insofar as the

INA or such laws relate to the powers of the President, the

Secretary of State, the officers of the Department of State, or

diplomatic and consular officers. The Attorney General serves

at the pleasure of the President of the United Siates.

31. Pursuant to 28 U.S.C. § 510, the Attorney

General may from time to time make such provisions as she

considers appropriate authorizing the performance by any other

officer, employee, or agency of the DOJ of any function of the

Attorney General. Defendants INS Commissioner, INS Acting

Regional Administrator and INS District Director are all

officers and employees of DOJ under the control of the

Attorney General.

32. Pursuant to 8 U.S.C. § 1103(a), the Attorney

General is authorized to appoint such employees of the INS as

D-1i

she deems necessary, and to delegate to them or to any officer

or employee of DOJ in her discretion any of the duties and

powers imposed upon her by the INA. The Attorney General

may require or authorize any employee of the INS or DOJ to

perform or execute any of the powers, privileges, or duties

conferred or imposed by the INA or regulations thereunder

upon any other employee of the INS. She has the power and

duty to control and guard the boundaries and borders of the

United States against the illegal entry of aliens and is required

to appoint for that purpose such number of employees of the

INS as to her shall appear necessary and proper. The Attorney

General is authorized to confer or impose upon any employee

of the United States, with the consent of the head of the

Department or other independent establishment under whose

jurisdiction the employee is serving, any of the powers,

privileges, or duties conferred or imposed by the INA or

regulations thereunder upon officers and employees of the INS.

33. Pursuant to 8 U.S.C. § 1103(b), the INS

Commissioner is charged with any and all responsibilities and

authority in the administration of the INS and of the INA which

are delegated to her by the Attorney General or which may be

prescribed by the Attorney General.

34. The Attorney General has, with limitations and

exceptions believed to be irrelevant here, delegated to the INS

Commissioner the duties to administer and enforce the INA

and all other laws relating to immigration, naturalization, and

nationality. This delegation is found in 28 C.F.R. §§ 0.105(a)

et seq. and 8 C.FR. § 2.1 and 100.2(a). In addition, pursuant to

28 C.F.R. § 0.105(b) and 8 C.FR. § 2.1, the INS Commissioner

shall, for these purposes, exercise or perform any of the

authority, functions, or duties conferred upon the Attorney

General by the INS and all other laws relating to immigration,

including the authority to issue regulations.

D-12

35. Defendant INS Acting Regional Administrator

is responsible for the administration and enforcement of all

laws relating to immigration, nationality, and naturalization

within her assigned geographic area of activity pursuant to 8

C.F.R. § 100.2(d), and has jurisdiction over, and provides

general guidance and supervision to, inter alia, INS District 6,

the INS District Office headquartered in Miami, Florida (the

“INS Miami District Office”), pursuant to 8 C.ER.

§ 100.4(b)(6). The INS Acting Regional Administrator is

subject to the general supervision of the INS Commissioner.

36. Defendant INS District Director is responsible

for the administration and enforcement of the INA and all other

laws relating to immigration, nationality, and naturalization

within his assigned geographic area unless any such power is

required to be exercised by higher authority or has been

exclusively delegated to another immigration official or class

of immigration officer. The INS Miami District Office has

jurisdiction over, inter alia, the State of Florida pursuant to 8

C.F.R. § 100.4(b)(6).

37. Defendant HHS Secretary is responsible for the

administration of the federal Medicaid and Aid to Families

with Dependent Children programs pursuant to 42 U.S.C.

§§ 602 and 1396b.

VIL.

FACTS

THE FEDERAL GOVERNMENT’S ABDICATION

AND DEFAULT POLICY

38. | The Federal Government is charged with

controlling immigration to this country and protecting the

borders of the United States, including the borders of the State

of Florida.

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39. The Federal Government has failed and

continues to fail and, upon information and belief, will

continue to fail in its constitutional duty to control immigration

and to protect the borders of the State of Florida. It has,

likewise, defaulted in its alternative duty to adequately

reimburse the plaintiffs for the costs its policies have imposed

upon them.

40. | Upon information and belief, the Federal

Government has adopted and implemented what is at best a

grossly inadequate enforcement policy that not only fails to

prevent, but actually encourages, the continued uncontrolled

influx of aliens, including undocumented aliens, to the State of

Florida. Furthermore, the INS has not deported any significant

number of those aliens who either are immediately or who later

become subject to deportation under the immigration laws.

Collectively the Federal Government’s actions constitute the

adoption and implementation of a policy that not only flouts

the laws designed to protect the borders of the United States

but the very structural concepts of the Constitution, a policy of

abdication and default. It will be referred to herein as the

“Federal Abdication and Default Policy.”

41. As a direct consequence of the Federal

Abdication and Default Policy, large numbers of aliens

continue to enter and remain in the United States on an

uncontrolled basis. In fact, the then-Attorney General testified

on July 30, 1981, to a joint subcommittee of Congress: ““We

have lost control of our borders. We have pursued unrealistic

policies. We have failed to enforce our laws effectively.”

Administration’s Proposals on Immigration and Refugee

Policy, 1981: Joint Hearing before the Subcomm. on

Immigration, Refugees, and International Law of the House

Comm. on the Judiciary and Subcomm. on Immigration and -

Refugee Policy of the Senate Comm. on the Judiciary, 97th

Cong., Ist Sess., at 6 (1981) (statement of William French

Smith, Attorney General of the United States). The

D-14

circumstances had become so outrageous that, in litigation then

ongoing in this Court, the United States and the INS asserted,

without hyperbole, that the influx of aliens was so massive as

to constitute an “invasion” of the United States, and, in so

doing, noted that the United States had an unfulfilled

constitutional duty to prevent this “invasion.” See Louis vy.

Nelson, 544 F. Supp. 973, 975 (S.D. Fla 1982). These

conditions have not changed through a series of successive

Attorney Generals and INS officials, up to and including the

individual defendants here.

FLORIDA’S IMMIGRATION EMERGENCY

42. A grossly disproportionate number of these

aliens, including undocumented aliens, reside in or have

resided in the State of Florida. INS estimated that as of October

1992, 85% of all undocumented aliens lived in just six States

(Florida, California, New York, Texas, Illinois and New

Jersey). INS also estimated that at least 345,000 undocumented

aliens reside in the State of Florida, comprising at least 36% of

Florida’s alien population. Based upon the information

available to the State, the State believes and alleges the actual

number of all such aliens in the State to be much greater than

that estimated. Specifically, the State’s Department of Health

and Rehabilitative Services has recently estimated an influx of

1,000,000 aliens during the past 30 years and 230,000

permanently located aliens in the past 15 years. The State

believes and alleges that the number of aliens in the State will

not decrease in the foreseeable future, but, indeed, will increase

as influenced by the economic and political upheaval in many

of the islands and countries that have direct access to Florida.

43. The massive uncontrolled influx of aliens

constitutes an immigration emergency that imposes tremendous

economic costs upon the State of Florida, its citizens and its

taxpayers. Although the United States provides certain

D-15

/

:

'

|

programs and funds, such as AFDC, Medicaid, SLIAG grants

(State Legalization Impact Assistance Grants authorized by the

Immigration Reform and Control Act of 1986, Pub. L. 99-603),

and Refugee Assistance grants to care for some aliens, these

programs and funds are limited at best and pay only a small

fraction of the costs incurred on behalf of aliens. For example,

the Refugee Assistance grants have dropped 47.79% since

1986, while the national refugee population has increased

47.46%. Domestic Refugee Resettlement Packet, prepared by

the State of Oregon Refugee Program, p. 23 (1994). Moreover,

Title VI Bilingual Education experienced a 47% decline in real

expenditures between 1980 and 1991. As noted by one

commentator, this occurred at a time (1985 to 1990) when the

number of students who were considered “limited English

proficient” was rising by 52%. Sharry, “Myths, Realities and

Solutions,” 67 Spectrum: The Journal of State Government 20,

21 (Winter 1994). Thus, while the level of immigration has

increased, the federal funds available to meet the needs of such

aliens have significantly decreased from their original

inadequate levels.

44. The State of Florida is and has been involved in

two state-federal “cooperative programs.” The purpose of these

federal programs is to help states assist persons in need. In each

program, the State is required to contribute state dollars in

order to obtain a certain amount of federal funding. The two

programs in which Florida has participated and continues to

participate are:

(a) Medicaid — as provided for under 42

U.S.C. § 1396b and implemented under

42 C.F.R. § 435.406; and

(b) Aid to Families with Dependent

Children (“AFDC”) — as provided for

under 42 U.S.C. § 602 and implemented

D-16

under 45 C.F.R. §§ 233.50, 233.51, and

233.52.

By reason of restrictions contained in the foregoing statutes

and regulations, funds in the Medicaid and AFDC programs

either are very limited or are not available for many aliens, in

particular the undocumented. Thus, the State cannot be

reimbursed for any expenditures made on behalf of such

ineligible aliens. Florida has no choice but to respond to the

needs of aliens within the State, even though Florida is not paid

for the cost of providing such assistance.

45. Consequently, the State of Florida, its political

subdivisions and local government entities, are forced, by the

Federal Abdication and Default Policy, to absorb the ever--

increasing costs of providing care for aliens who enter and

reside here as a result of such Federal Policy. Similarly, the

Florida Legislature and plaintiffs Dade County Public Health

Trust and Dade County School Board have also been forced to

utilize their own tax revenues to pay these costs.

46. The Federal Government classifies aliens in

many different ways for many different reasons. Some aliens

enter the United States without authorization, but thereafter

attain legal status, either because they are political refugees or

for other reasons; some enter and remain in the United States

without authorization; some enter legally but are now here

illegally for a variety of reasons, including expiration of their

visas; some entered this country, either legally or illegally, but

are now incarcerated for crimes, and because of their resulting

criminal records will never be eligible for legal residence in

this country.

47. The aggregate cost of dealing with the

uncontrolled and massive influx of aliens to Florida has been

tremendous, while the bulk of the tax revenues paid by these

D-17

aliens flows to the Federal Government. It is true that the costs

incurred by the State for any individual alien may differ,

depending upon changes in the alien’s status, education, and

ability to work. Aliens who eventually attain legal status may

become self-sufficient, as they can work, pay taxes, and buy

medical insurance. Plaintiffs do not denigrate the ultimate

positive contributions of such legal aliens to the State, and the |

cultural diversity and richness brought by these immigrants.

However, until an alien attains a legal status and self-

sufficiency, the cost of that alien to. the State is significant on

an individual basis, and overwhelming in the aggregate. Aliens

need basic education, immunization from contagious diseases,

food, housing, public transportation, and health care.

Additionally, to maintain the health, safety, and welfare of the

entire community, plaintiffs must provide correctional facilities

and services for criminal aliens.

48. Moreover, many aliens never attain legal status,

yet are allowed by the Federal Abdication and Default Policy

to remain in the United States indefinitely, without regard to

their ability to support themselves and without regard to the

financial impacts such persons have on state and local

governments. Such aliens cost the State huge amounts of

money each year: for their education in the English language

and other schooling; for their medical care; for their health and

welfare; for their legal defense; for their supervision and

incarceration when they commit crimes; and for other costs to

the public infrastructure.

FLORIDA IS COMPELLED TO PAY THE COST OF

THE FEDERAL ABDICATION AND DEFAULT POLICY

49. __ By reason of the decision of the United States

Supreme Court in Plyler v. Doe, 457 U.S. 202, 102 S.Ct. 2382,

72 L.Ed.2d 786 (1982), it is clear that the Dade County School

Board and other school boards within the State may not

i D-18

TREC eee

constitutionally refuse to provide education to any child, even

if such child is here illegally. In addition, the State of Florida

and its public school systems operated by the School Board of

Dade County and the school boards in Florida’s other 66

counties are required by federal law to provide English

language instruction to all students who are not proficient in

English, regardless of whether these children or their parents

entered or remained in the United States in violation of the law.

See Lau v. Nichols, 414 U.S. 563, 94 S.Ct. 786, 39 L.Ed.2d |

(1974); Equal Opportunity Act of 1974, § 204(f), 20 U.S.C.

§ 1703; Morales v. Shannon, 516 F.2d 411 (Sth Cir.), cert.

denied, 423 U.S 1034, 96 S.Ct. 566, 46 L.Ed.2d 408 (1975).

Accordingly, Florida provides an “ESOL” (English for

Speakers of Other Languages) program pursuant to Florida

Statutes §§ 233.058 and 236.081 (1993). Many students in the

ESOL programs are aliens, children of aliens, or illegal aliens.

Despite the federal mandate to provide education to illegal

alien children on a nondiscriminatory basis, and despite

defendants’ responsibility for the presence of undocumented

aliens as a result of their Federal Abdication and Default

Policy, the defendants do not contribute any reasonable amount

toward the cost of ESOL instruction to such aliens.

50. On February 28, 1994, The Miami Herald

reported that the number of foreign-born children in the Dade

County schools approached the number of refugees who

entered that school system during the Mariel boatlift of 1980,

and may exceed that number. The report continued:

The federal government pays less than three

percent of Dade County’s total expenses for

foreign-born kids . . . school leaders say the

funding gap has reached crisis proportions.

D-19

ee

The federal government doesn’t

reimburse Florida school districts for all their

costs in teaching immigrant children. Dade, for

instance, says it only receives (sic) $8.6 million

last year in federal aid for immigrant education,

but it costs 35 times that: $300 million or about

$4,000 apiece for the district’s 74,872 foreign-

born students. That figure, however, includes

students from countries such as Cuba, who are

now are (sic) legal residents or U.S. citizens.

The district gets nothing for students

who are here illegally. Yet it costs $68.2

million to educate the district’s 16,395

undocumented students, administrators say.

A Dade County immigration impact

report... also flatly states the district can no

longer meet its goal of constructing 56 new

schools between 1989 and 1997 [funded by

local property tax funds].

‘The substantial influx of refugees was

not anticipated,’ it reads. ‘As a practical matter,

the district has now tapped all available state

and local funding sources for its capital

construction program.’

“Schools Seek Funds For Foreign Influx,” The Miami Herald,

February 28, 1994, at 1B. As noted by an official of the Dade

County School Board, the failure of the United States to pay

for these aliens results in “taking [the State of Florida’s] money

away from other students.” Id. Plaintiff School Board of Dade

County asserts that the above-cited facts are true and correct.

Pees Mew ee

aes

D-20

51. Inaddition to education and emergency medical

care, it has been asserted that Florida has a legal obligation to

provide other benefits to aliens, both legal and illegal. See, e.g.,

In the Interest of Guzman, Case No. 93-157554 (D003), (Fla.

11th Cir. Ct. 1993) and Jn the Interest of Remy, Case No. 94-

15030 (D003) (Fla. 11th Cir. Ct. 1994), in which attempts were

made to obtain Special Immigrant Juvenile Status for

undocumented alien children by claiming a need for

intervention by the State’s foster care system. These are two

examples of numerous dependency proceedings where the

State has been challenged for refusing to accept jurisdiction

and responsibility for unaccompanied alien children who are,

or should be, in federal custody. But even if no legal obligation

exists, as a practical matter plaintiffs have no choice but to

expend state and local government funds to support, educate,

house, care for, feed, supervise, and incarcerate many aliens

who enter the State as a result of the Federal Abdication and

Default Policy, or else suffer injury to its sovereign interests

through increased crime, disease, illness, homelessness, and the

many problems presented by an uneducated or poorly educated

populace.

THE COSTS PAID BY FLORIDA FOR

ALIENS WITHIN ITS BORDERS

52. The costs paid by plaintiffs for aliens within the

State (whether or not “undocumented”’) as a result of the

Federal Abdication and Default Policy constitute a severe

financial burden that is difficult to calculate. Indeed, it is

virtually impossible in many instances to distinguish between

costs incurred for “undocumented aliens” as opposed to other

aliens, either because plaintiffs may not seek such information

(as has occurred in the case of the School Board of Dade

County, pursuant to a consent agreement executed in 1990) or

because the programs in which such aliens are participating do

not make such distinctions. Any attempts to distinguish costs

D-21

of “undocumented” aliens are further complicated by the fact

that many “undocumented” aliens live in “mixed” households,

where some residents are “legal” and others are not. See,

Sharry, “Myths, Realities and Solutions,” 67 Spectrum: The

Journal of State Government, 20, 21 (Winter 1994).

53. Plaintiff State of Florida has expended at least

the following unreimbursed amounts for the care, welfare,

supervision, or incarceration of aliens within the time frames

indicated, and believes the unreimbursed expenditure is

substantially in excess of such amounts:

| 1. English For Speakers of Other Languages, _| $954.7 million’

| 1988-1993

| 2. School Nutritional Food Program, $10.2 million

1980-1993

| 3. Adult Education, 1992 $23.5 million

14. Public Infrastructure 1980-1993 $142.5 million

ee aiwatramete pears 6 ee oe

[1.___ Medicaid, 1989-1993

‘Includes total cost of providing ESOL instruction to all non-English

speaking students, whether U.S. citizens, legal or undocumented aliens.

D-22

Aid To Families With Dependent

Children, 1991-93

$.4 million

Food Stamps Administration, $13.4

million

D. CORRECTIONS AMOUNT

1. Mariel Reimbursement Program, $52.6

1988-1993 million

2. Other Incarcerations, 1988-1993 $130.7

million

$33.1

3. Probation and Parole, 1980—1993 rhe

million

| 4. Public Infrastructure 1980-1993 $33.6

million

TOTAL CORRECTIONS COSTS $250.8

SEO ET million

| $1.465

| TOTAL COSTS billion

The State of Florida continues and will continue to bear such

costs.

D-23

54. Plaintiff School Board of Dade County has

expended in excess of the following unreimbursed amounts in

providing educational programs to aliens within the time

frames indicated:

1993-1994 (Projected) ; $210,993,295

1992-1993 $190,270,232

1991-1992 $196,180,429

1990-1991 $191,102,987

1989-1990 | $198,792,896

The School Board of Dade County, Florida, continues and will

continue to bear such costs.

55. Plaintiff Dade County Public Health Trust has

expended in excess of the following unreimbursed amounts in

providing health care services to aliens within the time frames

indicated:

Le aetaen Eeo cies! fo, ' UP ;

WE. eS RE AS SR eee

| Unreimbursed costs for undocumented aliens, $102.0

October 1, 1990, through September 30, 1993 million

| Unreimbursed costs for other aliens, 1992—1993 $66.7 million

D-24

The Dade County Public Health Trust continues and will

continue to bear such costs.

THE FEDERAL GOVERNMENT?’S REFUSAL TO

TRANSFER FEDERAL FUNDS APPROPRIATED

FOR AN IMMIGRATION EMERGENCY

SUCH AS FLORIDA’S

56. Forcing Florida to bear a disproportionate share

of the costs imposed by the Federal Abdication and Default

Policy is a violation of the rights of the State of Florida. This

flagrant violation of the rights of the State of Florida described

herein is illustrated by the defendants’ failure to take the action

necessary to make available to the States the Immigration

Emergency Fund appropriated by the Congress over eight years

ago.

57. In 1986 Congress adopted the Immigration

Reform and Control Act of 1986, Pub. L. 99-603, § 113, 100

Stat. 3359, which amended 8 U.S.C. § 1101, to authorize the

disbursement of funds upon the President’s determination that

an immigration emergency existed (the “Immigration

Emergency Fund”). This amendment authorized an annual

appropriation sufficient to maintain a balance of $35 million,

such funds to be used to reimburse state and local governments

providing assistance in meeting an immigration emergency.

58. A further amendment to 8 U.S.C. § 1101,

adopted in 1990, allowed the Attorney General to disburse up

to $20 million a year from the available $35 million in the

Fund without the President’s determination of an immigration

emergency. Pub. L. 101-649, § 705, 104 Stat. 5087. Further

amendments to 8 U.S.C. § 1101 required the Attorney General

to prescribe regulations to delineate scenarios that would be

D-25

deemed to constitute an immigration emergency, and the

process by which states are to be paid for costs incurred as a

result of such an emergency. Pub. L. 102-140, Title VI, § 610,

105 Stat. 832.

59. Although the initial appropriation of $35 million

was authorized in 1986, to date none of the Immigration

Emergency Fund has been disbursed to the State of Florida or

to any other state, and by these delays the Federal Government

has saved itself as much as $280 million.

60. Further, as a result of the Attorney General’s

refusal and/or failure to develop the necessary regulations to

disburse the funds, no money from the Immigration Emergency

Fund has been made available to the State of Florida or any

other State pursuant to the 1990 and 1991 amendments.

THE NEED FOR APPROPRIATE RELIEF

FROM THIS COURT

61. Plaintiffs have no administrative remedy to

pursue, to influence or to change the decisions and policies of

defendants, which decisions and policies permit and cause a

massive and uncontrolled influx of aliens, including

undocumented aliens, to enter and remain in the United States

and the State of Florida.

62. Plaintiffs have no administrative remedy they

may pursue by which they could compel defendants to comply

with their statutory and constitutional obligations to provide

nondiscriminatory funding to assist plaintiffs in providing

services and assistance to aliens.

D-26

63. Plaintiffs have requested on numerous occasions

that defendants provide funds to assist plaintiffs with the costs

they have incurred. Defendants have refused or otherwise

failed to provide such funds. In fact, although Congress

specifically appropriated the funds eight years ago to create the

Immigration Emergency Fund as delineated in paragraphs

56-60, such funds still have not been made available for states

such as Florida. Without such funds, plaintiffs will continue to

have to pay a disproportionate share of the costs of a national

problem that is a direct consequence of defendants’ decisions

to avoid their constitutional and statutory duties.

64. The national political process has provided no

adequate safeguard against this discrimination. The costs

imposed by the continuing influx of aliens on state and local

governments are disproportionately concentrated in only a few

states, including Florida. Representatives of other states have

a political incentive to ignore such costs, or to provide only

small and thus far ineffective tokens of assistance, rather than

ensure that they are borne equitably. Accordingly, unless this

Court grants appropriate relief, the State of Florida and the

other plaintiffs will continue to incur and have to pay such

costs as are described herein in the future.

COUNT I

JUDICIAL REVIEW OF ADMINISTRATIVE

ACTION: FAILURE TO DEVELOP

REGULATIONS GOVERNING DISBURSEMENT

OF THE IMMIGRATION EMERGENCY FUNDS;

DECLARATORY AND INJUNCTIVE RELIEF

65. Plaintiffs repeat and reallege the allegations in

paragraphs | — 64, and incorporate them by reference herein.

D-27

66. This is an action for review of agency action and

for injunctive relief pursuant to 5 U.S.C. § 702 and/or 5 U.S.C.

§ 706.

67. Eight years ago, Congress appropriated federal

funds to assist states such as Florida in meeting what it deemed

an “immigration emergency.” Congress provided an initial

appropriation of $35 million for this purpose to the

Immigration Emergency Fund, and with an annual

appropriation thereafter sufficient to maintain a balance of $35

million in this Fund. However, the Federal Government has

never recognized the existence of an immigration emergency.

68. | Animmigration emergency, as contemplated by

Pub. L. 99-603, has existed in Florida since before 1986, and

continues to exist. The delay in providing for the disbursement

of the Immigration Emergency Fund is unreasonable and

unlawful and has served to save the Federal Government up to

$280 million. On information and belief, the defendants will

continue to delay disbursement of the emergency funds unless

enjoined from doing so by this Court.

69. Despite the Congress’ clear intent to provide

even this modest and ultimately inadequate measure of

assistance, defendant Attorney General still has failed to

develop the necessary regulations to disburse the Immigration

Emergency Fund pursuant to Pub. L. 102-140, Title VI, § 610.

Once the regulations for disbursement are developed and

approved, the Attorney General has the authority to disburse up

to $20 million of the total fund each year, without a

Presidential declaration of an immigration emergency. Had

such a plan been timely adopted by the Attorney General, some

disbursements could have been made, and as much as $60

million could have been available to the States, including

Florida, over the last three years.

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70. Asaresult of the Attorney General’s failure to

develop a plan to disburse the Immigration Emergency Fund,

plaintiffs have expended and must continue to expend state and

local government funds to support, educate, house, feed,

supervise, incarcerate and provide medical care to many aliens

who enter Florida, or else suffer injury to its sovereign interests

through increased crime, disease, illness, homelessness and the

many problems presented by an uneducated or poorly educated

populace.

71. | The Attorney General has failed and continues

to fail to comply with her duties to develop a plan to disburse

the Immigration Emergency Fund.

72. Plaintiffs do not have an adequate remedy in

any other court.

WHEREFORE, plaintiffs pray for an order directing the

Attorney General to comply with her duties under 8 U.S.C.

§ 1101, as amended by Pub. L. 99-603, Pub. L. 101-649 and

Pub. L. 102-140; develop a plan providing for the disbursement

of the Immigration Emergency Fund; grant to the State of

Florida its just share of such funds; and grant such other relief

as may be just and proper under the circumstances.

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COUNT II

JUDICIAL REVIEW OF ADMINISTRATIVE

ACTION; FAILURE TO ENFORCE AND

EFFECTIVELY ADMINISTER IMMIGRATION

LAWS; DECLARATORY AND INJUNCTIVE RELIEF.

73. Plaintiffs repeat and reallege the allegations in

paragraphs | — 64, and incorporate them by reference herein.

74. This is an action for review of agency action and

for declaratory and injunctive relief pursuant to 5 U.S.C. § 702

and/or § 706.

75. | The administrative actions and omissions of the

United States, the INS Commissioner, the Attorney General,

the INS Acting Regional Director, and the INS District

Director in carrying out their obligations to enforce and

effectively administer the immigration laws are an abuse of

their discretion, representing at best an arbitrary, capricious,

and irrational Federal Abdication and Default Policy.

76. Defendants have failed and will continue to fail

in their duties to effectively enforce and administer the

immigration laws or to accept the financial responsibility for

such failure.

77. Plaintiffs have no choice, by legal or practical

requirement, but to pay for the cost of defendants’ Federal

Abdication and Default Policy. Plaintiffs must expend funds to

incarcerate, supervise, care for, house, feed, support and

educate the massive influx of aliens who reside here. If they do

not provide such services, the State will suffer injury through

increased crime, disease, illness, homelessness, and the many

problems presented by an uneducated or poorly educated

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populace. Moreover, the public health and safety of the State

will continue to be materially and adversely impacted.

78. | Defendants’ Federal Abdication and Default

Policy, and the actions taken to implement such policy,

constitute an abuse of discretion, and are arbitrary and

capricious, in that Florida and its political subdivisions have

effectively been required to pay a grossly disproportionate

share of the costs of a national problem as compared to almost

all other states, resulting in a studied inequality among the

states contrary to a fundamental premise of the United States

Constitution.

79. The sovereign interests of the State and its

political subdivisions have been violated by the abdication of

federal responsibility represented by the Federal Abdication

and Default Policy, in that these plaintiffs have no ability to

control immigration, yet have been forced to pay for its adverse

impacts to the public health and safety of the State.

80. | Under the circumstances described herein, the

defendants’ abdication of administrative respoasibility, being

repeated and continuous over many years with full knowledge

of its material and adverse impact on the State of Florida and

the other plaintiffs, is judicially reviewable by this Court.

81. Although defendants could of course satisfy

their legal obligations by carrying out their duties to enforce

the immigration laws effectively, the arbitrary and irrational

burden visited on the plaintiffs could equally be alleviated by

an ongoing restitution to the plaintiffs of the prospective costs

imposed on them by the Federal Abdication and Default Policy

from this date forward. For the reasons stated in paragraph 14,

a broad-scale injunction against defendants’ unlawful activity

might raise troubling issues of judicial power. However, no

such issues would be raised by a mandatory injunction

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compelling the ongoing restitution to the plaintiffs of the costs

imposed on them by the Federal Abdication and Default Policy

as an alternative remedy until such time as defendants bring

their enforcement policies into compliance with applicable law.

WHEREFORE, plaintiffs pray that this Court:

(i) enter a declaratory judgment

determining that defendants have failed to comply with their

duties under applicable laws; |

(ii) as relief for the past and continuing

violations of applicable laws by such defendants, enter a

mandatory injunction directing the defendants to cease their

policy of arbitrary and irrational non-enforcement of the

immigration laws or, in the alternative, to provide to plaintiffs

equitable restitution of the amounts that plaintiffs are and will

continue to be required to spend as a result of defendants’

unlawful actions and inactions; and

(iii) | grant such other relief as may be just and

proper in the circumstances.

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COUNT Ill

DECLARATORY AND INJUNCTIVE RELIEF

AS TO CERTAIN FEDERAL COOPERATIVE

PROGRAMS; UNCONSTITUTIONALITY

OF PROGRAM RESTRICTIONS.

82. Plaintiff Chiles and the State of Florida repeat

and reallege the allegations contained in paragraphs | — 64, and

incorporate them by reference herein.

83. This is an action for declaratory and injunctive

relief.

84. As set out in paragraph 44, plaintiff State of

Florida is currently involved in two state-federal “cooperative

programs,” which are designed to help states assist persons in

need. In each program, the State is required to contribute state

dollars in order to obtain a certain amount of federal funding.

These two programs are Medicaid and AFDC.

85. In particular, defendants United States and the

HHS Secretary are obligated to assist the State of Florida to

meet the needs of aliens present within the State and other

persons present in the State as a result of defendants’ actions

and inactions.

86. Defendants United States and the HHS

Secretary may not constitutionally discriminate in their

application of the Medicaid and AFDC statutes against states

with large populations of needy aliens such as Florida.

87. Florida has no control over immigration and

must provide assistance to its needy. It is arbitrary, irrational,

and unconstitutional for defendants not io provide Medicaid

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and AFDC assistance to Florida on the same basis that other

states are assisted. That basis is need.

88. The statutory and regulatory restrictions applied

to federal Medicaid and AFDC programs are arbitrary,

irrational, discriminatory, and unconstitutional insofar as they

deny Florida payment of costs it would be entitled to claim but

for a person’s alien status. These statutes and rules have been

construed by defendants United States and the HHS Secretary

to provide that funds in the Medicaid and AFDC programs are

either very limited or are not available for many aliens, in

particular the undocumented, and that the State cannot be paid

for any expenditures made on behalf of ineligible aliens. The

vast majority of states participating in the Medicaid and AFDC

programs receive payments to assist all or nearly all their needy

recipients. Florida is an exception to this norm, due solely to

the presence in the state of a large population of aliens, many

of whom are here due to the defendants’ Federal Abdication

and Default Policy.

89. The defendants’ failure to compensate the

plaintiffs for making need-based payments to aliens, while

assisting virtually all other states with virtually all of their

expenditures to provide need-based medical care and aid to

families with dependent children, effectively penalizes

plaintiffs for having a needy population that is

disproportionately comprised of aliens, largely as a result of

defendants’ Federal Abdication and Default Policy. Statutory

provisions and administrative regulations that penalize

plaintiffs for having a disproportionately large population of

needy persons who are aliens deprive Florida of the “equal

footing” it was to be afforded on its entry into the United States

and places it in a studiedly unequal position from most of its

sister states.

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90. To make the State of Florida and its political

subdivisions responsible for the medical care and welfare

expenses of such aliens directly violates the fundamental

principles of federalism inherent in the United States

Constitution, the Tenth Amendment, and Article IV, § 4.

91. To make the State of Florida and its political

subdivisions responsible for the medical care and welfare

expenses of such alien residents in Florida while providing

much more adequate financial assistance to help other states

care for populations that are not foreign born, directly violates

the norm of equality implicit in Article I, § 8, clause | of the

United States Constitution.

92. Defendants United States and the HHS

Secretary have violated Florida’s rights by effectively

“commandeering” the legislative and political processes of the

State, including those of its political subdivisions, and making

them responsible for the care and welfare of aliens generally.

93. Defendants United States and the HHS

Secretary are, in effect, punishing Florida for conditions

created by the Federal Government's abdication of its statutory

and constitutional responsibilities.

WHEREFORE, plaintiffs Chiles and the State of

Florida pray for entry of a judgment declaring the above-cited

restrictions on alien coverage either contrary to the applicable

statutes or unconstitutional in failing to provide for payments

to the State of Florida for expenditures on behalf of aliens; and

further, plaintiffs pray for an order directing defendants United

States and the HHS Secretary to pay to the State of Florida all

Medicaid and AFDC sums that represent expenditures by the

State on behalf of aliens.

D-35

COUNT IV

DECLARATORY AND INJUNCTIVE RELIEF FOR

VIOLATION OF PLAINTIFFS’ RIGHTS UNDER

ARTICLE IV, SECTION 4, UNITED STATES

CONSTITUTION AND THE TENTH AMENDMENT

TO THE UNITED STATES CONSTITUTION.

94. Plaintiffs repeat and reallege the allegations in

paragraphs | — 64, and incorporate them by reference herein.

95. This is an action for declaratory and injunctive

relief.

96. Because of defendants’ gross failure to control

immigration, hundreds of thousands of aliens reside in Florida,

placing numerous and extremely heavy demands upon the

State’s available resources. Plaintiffs have incurred continuing

costs, including, but not limited to, the costs of public

infrastructure improvements, housing, feeding, medical care,

education, incarceration, and parole and probation supervision,

all of which are attributable to the presence of massive

numbers of aliens within the State of Florida. The aliens’

presence is due to the defendants’ Federal Abdication and

Default Policy. These expenses will not only continue, but will

increase, as the result of the Federal Abdication and Default

Policy not to enforce the immigration laws and the Federal

Government’s failure to provide financial assistance to

plaintiffs to compensate for such failure.

97. The imposition on the State of Florida of these

burdens by reason of defendants’ abdication of their

constitutional responsibility and their obligations to enforce

and administer the immigration laws constitutes a violation of

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Article IV, § 4 of the United States Constitution. Practically

speaking, and as heretofore conceded by defendants in this

Court, the abdication of their obligations by defendants has

created a virtual “invasion” of the State of Florida by aliens

and has seriously impaired the constitutional guarantee of a

republican form of government.

98. Defendants have violated and will continue to

violate plaintiffs’ rights under both Article IV, § 4 and the

Tenth Amendment to the United States Constitution. Although

Pacific States Telephone & Telegraph Co. v. Oregon, 223 U.S.

118 (1912) concluded that states’ rights under the “Guarantee

Clause” (but not the “Invasion Clause”) were not judicially

enforceable, this conclusion was sharply questioned in Merritt,

Deborah, “The Guarantee Clause and State Autonomy:

Federalism For a Third Century,” 88 Colum. L. Rev. 1 (1988).

The United States Supreme Court cited that article with

apparent approval in New York v. United States, __ U.S. __,

112 S.Ct. 2408, 2433, 120 L.Ed.2d 120 (1992), acknowledging

that “(more recently, the Court has suggested that perhaps not

all claims under the Guarantee Clause present nonjusticiable

political questions.” See also, Reynolds v. Sims, 377 U.S. 533,

582, 84 S.Ct. 1362, 1392, 12 L.Ed.2d 506 (1964). In any case,

the Tenth Amendment clearly creates judicially enforceable

obligations on the United States and in favor of the states with

respect to issues of state sovereignty. See, New York v. United

States, supra.

99. Defendants have grossly ignored their own

obligations with respect to immigration control, and the

impacts their policies have on state and local governments.

Defendants have also failed to provide financial assistance to

meet the cost of their Federal Abdication and Default Policy

and thereby protect plaintiffs and their constituents from the

lack of political accountability that results when state and local

officials must find ways to meet the cost of problems that are

D-37

imposed by federal policy. The failure to enforce the

immigration laws effectively and the resulting imposition of

costs on the plaintiffs, coupled with the defendants’ failure

alternatively to provide offsetting financial assistance, violates

the Tenth Amendment and fundamental principles of

federalism inherent in the Constitution.

100. Defendants have, for all practical purposes,

unlawfully “commandeer[ed] the State’s legislative processes”

by effectively compelling the State and its political

subdivisions to provide numerous costly services to aliens

allowed by defendants to enter the State. New York v. United

States, 112 S.Ct. 2408, 2412, citing Hodel v. Virginia Surface

Mining & Reclamation Assn., Inc., 452 U.S. 264, 288, 101

S.Ct. 2352, 2366, 69 L.Ed.2d 1 (1981). Plaintiffs are thus being

unlawfully forced to pay the cost of the Federal Abdication and

Default Policy.

101. Defendants’ actions have fundamentally

impaired the sovereign rights and interests of the State, and

have unlawfully imposed upon this State the economic burden

of the Federal Abdication and Default Policy.

102. Defendants’ actions and policies also diminish

or abolish the political accountability guaranteed by Article IV,

§ 4 and the Tenth Amendment. Because only a small number

of states are similarly affected, the political process has proven

inadequate to protect Florida’s rights.

103. For all practical purposes, the commandeering

of the State of Florida’s resources herein complained of has

been as great as that involved in New York v. United States,

supra, and is equally unconstitutional.

D-38

104. Although defendants’ could satisfy their

obligations under Article IV, § 4 and the Tenth Amendment by

carrying out their duties to enforce the immigration laws

effectively, defendants could equally meet their constitutional

responsibilities through an ongoing restitution to the plaintiffs

of the costs imposed on them by the Federal Abdication and

Default Policy. For the reasons stated in paragraph 14, a broad-

scale injunction commanding the defendants to protect Florida

borders from an invasion of aliens might raise troubling issues

of judicial power. However, no such issues would be raised by

a mandatory injunction compelling the provision of ongoing

restitution as an alternative remedy until such time as

defendants bring their enforcement policies into compliance

with applicable law.

WHEREFORE, plaintiffs pray that this Court:

(i) enter .a declaratory judgment

determining that defendants have failed to comply with their

duties under the Constitution and applicable laws and that their

abdication of their obligations constitutes a repeated and

continuing violation of plaintiffs’ rights under Article IV, § 4,

and the Tenth Amendment to the United States Constitution.

(ii) enter an injunction directing the

defendants to cease the policies that have subjected plaintiffs

to an invasion of aliens and commandeered their legislative

processes to meet the resulting costs or, in the alternative, to

provide to the plaintiffs equitable restitution of the amounts

that plaintiffs have been and will continue to be required to

spend as a result of defendants’ Federal Abdication and Default

Policy; and

(iii) | grant such other relief as may be just and

proper in the circumstances.

Respectfully submitted,

ROBERT A. BUTTERWORTH

ATTORNEY GENERAL

/s/

LOUIS F. HUBENER

Assistant Attorney General

Florida Bar No. 0140084

ANA CRISTINA MARTINEZ

Assistant Attorney General

Florida Bar No. 0851655

OFFICE OF THE ATTORNEY GENERAL

The Capitol — Suite PL-Ol

Tallahassee, FL 32399-1050

(904) 488-9935

and

/s/

PARKER D. THOMSON

Special Asst. Attorney General

Florida Bar No. 081225

CAROL A. LICKO

Special Asst. Attorney General

Florida Bar No. 435872

1700 Sun Bank Int’! Bldg.

One S.E. Third Avenue

Miami, FL 33131

(305) 350-7200

Counsel for the State of Florida

iaaaimrneniannitieaeiiiiitieaatel

/s/

J. HARDIN PETERSON, JR.

General Counsel

Executive Office of the Governor

Room 209, The Capitol

Tallahassee, FL 32399-0001

(904) 488-3494

Counsel for Governor Lawton M. Chiles, Jr.

ROBERT A. GINSBURG

Dade County Attorney

Public Health Trust Division

1611 N.W. 12 Ave, W. Wing 109

Miami, FL 33136

(305) 585-1313

By: /s/

ROBERT L. BLAKE

Assistant County Attorney

Florida Bar No. 131155

Counsel for the Dade County Public Health Trust

/s/

PHYLLIS O. DOUGLAS

School Board Attorney

Florida Bar No. 126915

School Bd. of Dade County, Fla.

School Bd. Administration Bldg

1450 N.E. 2nd Avenue, Room 301

Miami, FL 33131

(305) 995-1304

Counsel for the School Board of Dade County, Florida

Dated: April __, 1994

D-41