Amicus Curiae Brief — Rodriguez-Zapata v. Gonzales (No. 06-929)

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G @ FILED

MAY 11 2007

No. 06-929

| UPREME COURT Ut

IN THE

Supreme Court of the United States

ANTONIO RODRIGUEZ-ZAPATA,

Petitioner,

Vv.

ALBERTO R. GONZALES,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Fifth Circuit

BRIEF OF THE MEXICAN AMERICAN LEGAL

DEFENSE AND EDUCATIONAL FUND AS

AMICUS CURIAE IN SUPPORT OF PETITIONER

LORI R.E. PLOEGER

Counsel of Record

MAUREEN P. ALGER

COOLEY GODWARD KRONISH LLP

Five Palo Alto Square

3000 El Camino Real

Palo Alto, CA 94306

(650) 843-5000

Counsel for Amicus Curiae

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WILSON-EPES PRINTING CO., INC. — (202) 789-0096 - WasHinGTON, D.C. 20002

TABLE OF CONTENTS

Page

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TABLE OF AUTHORITIES

CASES

Fernandez-Vargas v. Gonzales,

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Hughes Aircraft Co. v. United States,

ex rel. Schumer, 520 U.S. 939 (1997) ...........

INS v. St. Cyr,

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Landgraf v. USI Film Products,

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Miller v. Florida,

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Olatunji v. Ashcroft,

387 F.3d 383 (4th Cir. 2004)... eee

Republic of Austria v. Altmann,

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Rivers v. Roadway Express, Inc.,

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Page(s)

Society for the Propagation of the Gospel v. Wheeler,

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TABLE OF AUTHORITIES—Continued

Page(s)

Sturges v. Carter;

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Union Pac. R.R. Co. v. Laramie Stock Yards Co.,

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SUPREME COURT RULES

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OTHER AUTHORITIES

Black’s Law Dictionary

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N. Singer, Sutherland on Statutory Construction

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INTEREST OF AMICUS CURIAE'

The Mexican American Legal Defense and Educational

Fund (MALDEF) is the leading Latino legal organization in

the United States focusing on litigation, advocacy, and

educational outreach. MALDEF’s mission is to foster sound

public policies, laws and programs to safeguard the civil

rights of the 45 million Latinos living in the United States.

Protecting the rights of immigrants is the focus of

MALDEF’s Immigrant’s Rights Program. MALDEF

monitors federal and state proposed legislation, submits

comments on matters that affect the fair and equitable

treatment of immigrants, and participates in litigation to

further its mission. |

SUMMARY OF ARGUMENT

As set forth in the Petition for Writ of Certiorari

(“Petition”), the Courts of Appeals are fractured as to the

proper role of reliance in determining whether applying a

new law would result in an impermissibly retroactive effect.

This Court should take this opportunity to resolve this deep

division and clarify the) role of reliance in retroactivity

analysis.

Proof of reliance should not be required to support a

determination that applying a new law would result in an

impermissible retroactive effect. This Court’s retroactivity

jurisprudence does not require a showing of reliance as a

prerequisite to a determination that applying a new law

' Pursuant to Rule 37, a letter of consent from each party

accompanies this filing. Pursuant to Rule 36, amicus states that no

counsel for a party authored ths brief in whole or in part, and no person

or entity, other than amicus and its counsel, made a monetary

contribution to the preparation or submission of the brief.

would be impermissibly retroactive. Amicus curiae

respectfully submits that this Court should grant the Petition

to make clear that reliance is not required to conclude that

application of a new law is impermissibly retroactive.

ARGUMENT

This Case Presents the Court With an Opportunity

To Resolve the Circuit Split Regarding Whether

Reliance Is Required To Conclude That a Law Is

Impermissibly Retroactive.

This Court should take this opportunity to hold plainly

that neither actual nor reasonable reliance is necessary to

demonstrate that a law is impermissibly retroactive. This

Court’s retroactivity jurisprudence does not require a

showing of reliance to support a determination that applying

a new law would have an impermissible retroactive effect.

Instead, reliance is simply an interest furthered by the

presumption against retroactive application.

The Petition in this case ably demonstrates that the

Court’s decision in Landgraf v. USI Film Products, 511 U.S.

244 (1994), and its progeny including Hughes Aircraft Co. v.

United States, ex rel. Schumer, 520 U.S. 939 (1997), INS v.

St. Cyr, 533 U.S. 289 (2001), and Fernandez-Vargas v.

Gonzales, 126 S. Ct. 2422 (2006) do not require a showing of

reliance. Like the cases discussed in the Petition, the Court’s

decision in Republic of Austria v. Altmann, 541 U.S. 677

(2004), provides no support for the Fifth Circuit’s imposition

of a reliance requirement. The Court in Altmann did

acknowledge the reliance interest served by the traditional

presumption against retroactivity: the “aim of the

presumption [against retroactivity] is to avoid unnecessary

post hoc changes to legal rules on which parties relied in

shaping their primary conduct.” Altmann, 541 U.S. at 696.

But reliance played no part in the Court’s core articulation of

the test for retroactivity:

When, however, the statute contains no

such express command the court must

determine whether the new statute would have

retroactive effect, i.e., whether it would impair

rights a party possessed when he acted,

increase a party’s liability for past conduct, or

impose new duties with respect to transactions

already completed. If the statute would

operate retroactively, our traditional

presumption teaches that it does not govern

absent clear congressional intent favoring

such a result.

Id. at 694 (quoting Landgraf, 511 U.S. at 280). “While in

Altmann the Court reaffirms that the presumption against

retroactivity serves reliance interests, it also confirms that

reliance is not a requirement of retroactivity.” Olatunji v.

Ashcroft, 387 F.3d 383, 393-94 (4th Cir. 2004).

So too the Court’s decision in Rivers v. Roadway

Express, Inc., 511 U.S. 298 (1994) provides no support for

imposing a reliance requirement. The Court found the law at

issue to be impermissibly retroactive because it “create[d]

liabilities that had no legal existence before the Act was

passed.” /d. at 313. This was so even though there was

some evidence in Rivers suggesting that the parties had not

relied on the old law.

This Court’s jurisprudence before Landgraf similarly

does not support a reliance requirement. Indeed, the

Landgraf Court itself set forth five different previous

articulations of the test for retroactivity. None of these tests

refers to reliance, much less requires a showing of reliance:

“A law is retrospective if it changes the legal

consequences of acts completed before its

effective date.” Landgraf, 511 U.S. at 269 n.23

(quoting Miller v. Florida, 482 U.S. 423, 430

(1987) {internal quotation marks omitted));

“(Retroactive statute gives ‘a quality or effect to

acts or conduct which they did not have or did

not contemplate when they were performed.’”

Id. (quoting Union Pac. R.R. Co. v. Laramie

Stock Yards Co., 231 U.S. 190, 199 (1913));

“{A] retroactive statute is one that ‘takes away

or impairs vested rights acquired under existing

laws, or creates a new obligation, imposes a new

duty, or attaches a new disability.’” /d. (quoting

Sturges v. Carter, 114 U.S. 511, 519 (1885));

“(E]very statute, which takes away or impairs

vested rights acquired under existing laws, or

creates a new obligation, imposes a new duty, or

attaches a new disability, in respect to

transactions or considerations already past, must

be deemed retrospective ....” /d. (referring to

this definition from Justice Story’s decision in

Soc’y for the Propagation of the Gospel v.

Wheeler, 22 F. Cas. 756 (CCNH 1814) as quoted

in Black's Law Dictionary 1184 (Sth ed. 1979));

and

The terms “retroactive” and “retrospective”

““describe acts which operate on transactions

which have occurred or rights and obligations

which existed before passage of the act.’” Jd.

(quoting N. Singer, Sutherland on Statutory

Construction § 41.01 at 37 (Sth rev. ed. 1993)).

Given the rampant confusion in the Courts of Appeals

about the appropriate role of reliance in determining whether

section 212 should be applied retroactively (see Petition

at 10-16), this Court should grant review to provide guidance

on this issue.

CONCLUSION

For these reasons, amicus curiae the Mexican American

Legal Defense and Educational Fund respectfully requests

that this Court grant the petition for writ of certiorari to make

clear that reliance is not required to conclude that applying a

new law would have an impermissible retroactive effect.

Respectfully submitted,

LorRI R.E. PLOEGER