Bauer v. Elrich

463 F.Supp.3d 606

Sharon BAUER, et al., Plaintiffs,

v.Marc ELRICH, et al., Defendants.

Crim. No. PJM 20-1212

United States District Court, D. Maryland.

Signed May 29, 2020

Eric William Payne Lee, Judicial Watch, Washington, DC, for Plaintiffs.

Patricia Victoria Haggerty, Patricia Lisehora Kane, Paul F. Leonard, Jr., Office of the County Attorney for Montgomery County, Rockville, MD, for Defendants.

MEMORANDUM OPINION

PETER J. MESSITTE, UNITED STATES DISTRICT JUDGE

Sharon Bauer and Richard Jurgena are Montgomery County, Maryland taxpayers who seek to bar County Executive Marc Elrich and County Department of Health and Human Services (DHHS) Director Raymond Crowel, in their official capacities, from implementing the County's Emergency Assistance Relief Payment Program (EARP), which they argue provides financial assistance to "unlawfully present aliens," in violation of 8 U.S.C. § 1621.

The matter is before the Court on Plaintiffs’ Motion for Temporary Restraining Order. ECF No. 12.¹ At the Court's request, Defendants filed a brief Response in Opposition. ECF No. 17. On May 15, 2020, the Court heard Oral Argument from counsel via video conference. See ECF No. 19.

For the following reasons, Plaintiffs’ Motion for Temporary Restraining Order is DENIED, on the condition that Montgomery County preserve at least twenty-five percent (25%) of as yet undistributed EARP funds, pending further order of the Court.²

I.

On April 27, 2020, Montgomery County announced the creation of the EARP to provide one-time emergency assistance checks to county residents not eligible for federal COVID-19 stimulus funds or state benefits and whose income is less than 50% the federal poverty level.³ As the County Council for Montgomery County described it, COVID-19:

has resulted in the immediate loss of income for many households as businesses have been required to close and people have been told to stay home. This creates a financial crisis for many County residents, and it may not be addressed through financial assistance provided by the federal or State government.

ECF No. 17-1 (Resolution 19-439). The program appears to have been initially funded with approximately $5 million. Id.⁴

However, on April 30, 2020, to "address the expected demand on those resources," the Council appropriated an additional $5 million. Id. In total, then, the County has appropriated $10 million for the EARP. See ECF No. 22.⁵

The mechanics of the program are as follows:

It distributes direct payments of $500 to a single adult, $1,000 to a family with a child, and an additional $150 to a family for each additional child, up to $1,450 total.⁶ To qualify, an individual or family must (1) not be eligible to file Federal or State taxes, (2) not have filed nor be eligible to receive unemployment, (3) have an annual income below 50% of the federal poverty level, and (4) be a Montgomery County resident. Id.

The County Department of Health and Human Services, which administers the program, will be implementing it in three phases. Id. In Phase 1, which Defendants report is now complete, approximately $1 million was distributed to eligible residents who were existing enrollees in the County's Care for Kids program.⁷ Id. Phase 2 has either recently begun or is set to begin imminently.⁸ In this phase, non-profit organizations will collaborate with the County to identify individuals eligible to receive EARP payments. In Phase 3, as to which no specific timetable has been identified, residents may apply directly to DHHS for EARP funds. Id. Defendants anticipate that the full $10 million appropriation will be distributed by the first week of June 2020. See ECF No. 22; Transcript of Oral Argument at 5 (May 15, 2020) (ECF No. 21).

Plaintiffs ask the Court, before the money is depleted, to issue a Temporary Restraining Order blocking the County's distribution of EARP funds to "unlawfully present aliens." See ECF No. 12.

II.

To obtain a temporary restraining order enjoining the County's implementation of the EARP, Plaintiffs must make a clear showing that (1) they are likely to succeed on the merits; (2) they will suffer irreparable harm; (3) the balance of equities favors their position; and (4) the relief they seek is in the public interest. See Winter v. Natural Resources Defense Council, Inc. , 555 U.S. 7, 20, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008) ; see also The Real Truth About Obama, Inc. v. FEC , 575 F.3d 342, 346 (4th Cir. 2009), vacated and remanded on other grounds , 559 U.S. 1089, 130 S.Ct. 2371, 176 L.Ed.2d 764 (2010). "Each of these four factors must be satisfied."

Mountain Valley Pipeline, LLC v. W. Pocahontas Props. Ltd. P'ship , 918 F.3d 353, 366 (4th Cir. 2019) ; The Real Truth About Obama , 575 F.3d at 346. However, "[i]n exercising their sound discretion, courts of equity should pay particular regard for the public consequences in employing the extraordinary remedy of injunction." Winter , 555 U.S. at 24, 129 S.Ct. 365 (quoting Weinberger v. Romero–Barcelo , 456 U.S. 305, 312, 102 S.Ct. 1798, 72 L.Ed.2d 91 (1982) ) (emphasis added).

Courts are cautioned to "not impose an injunction lightly," Cantley v. W.V. Reg'l Jail & Corr. Facility Auth. , 771 F.3d 201, 207 (4th Cir. 2014), since "it is an extraordinary remedy involving the exercise of a very far-reaching power" that "is to be applied only in the limited circumstances which clearly demand it," id. (quoting Centro Tepeyac v. Montgomery Cnty. , 722 F.3d 184, 188 (4th Cir. 2013) (en banc)).

With these standards in mind, the Court considers Plaintiffs’ Motion.

A. Likelihood of Success on the Merits

Plaintiffs assert that the EARP will provide financial assistance to unlawfully present aliens in violation of 8 U.S.C. § 1621. Indeed, as they see it, the program's eligibility criteria appear designed so that unlawfully present aliens will be the primary recipients of the cash payments. See ECF No. 12, p. 3.

Subsection (a) of § 1621 states that, generally, unlawfully present aliens are "not eligible for any State or local public benefit." 8 U.S.C. § 1621(a) ; see also Mayor and City Council of Baltimore v. Trump , 416 F.Supp.3d 452, 498 (D. Md. 2019) (" Section 1621 provides that immigrants who lack lawful status are not eligible for any State or local public benefit").⁹ Subsection (c) broadly defines a "State or local public benefit" to include "any grant, contract, loan ... retirement, welfare, health, disability, public or assisted housing, postsecondary education, food assistance, unemployment benefit, or any other similar benefit for which payments or assistance are provided to an individual, household, or family eligibility unit by an agency of a State or local government or by appropriated funds of a State or local government." 8 U.S.C. § 1621(c)(1)(A)-(B).

Defendants do not argue that the EARP is excluded from the definition of "State or local public benefit." 8 U.S.C. § 1621(c). It is hard to see how it could be. Nor have Defendants asserted that the program fits within one of the enumerated exceptions listed in 8 U.S.C. § 1621(b), which include: "[a]ssistance for health care items and services that are necessary for the treatment of an emergency medical condition", "[s]hort-term, non-cash, in-kind emergency disaster relief," "[p]ublic health assistance for immunizations with respect to immunizable diseases and for testing and treatment of symptoms of communicable diseases," and certain "[p]rograms, services, or assistance (such as soup kitchens, crisis counseling and intervention, and short-term shelter) specified by the Attorney General ..." 8 U.S.C. § 1621(b).

Notably, although several of 8 U.S.C. § 1621(b) ’s exceptions pertain to public health emergencies, none appear to permit direct cash assistance.

Instead, Defendants’ assert that the EARP meets the requirements of subsection (d) of the section to the effect that:

A State may provide that an alien who is not lawfully present in the United States is eligible for any State or local public benefit for which such alien would otherwise be ineligible under subsection (a) only through the enactment of a State law after August 22, 1996, which affirmatively provides for such eligibility.

8 U.S.C. § 1621(d) ; see also Texas v. U.S. , 809 F.3d 134, 148-49 (5^th Cir. 2015), aff'd , 576 U.S. 1101, 136 S.Ct. 906, 193 L.Ed.2d 788 (2016) ("Unlawfully present aliens are generally not eligible to receive ... state and local public benefits unless the state otherwise provides").

The parties agree that the Maryland General Assembly has had no direct role whatsoever in the EARP. In fact, the County's resolutions make no mention of any state authorization. See ECF No. 17-1; n. 4, supra. The County's own press release describes the initiative as "based on actions by County Executive Marc Elrich and the County Council."¹⁰

Defendants claim that the resolutions passed by the County Council nonetheless meet the criteria of 8 U.S.C. § 1621(d) because, in approving them, the Council was acting pursuant to authority delegated to it by the General Assembly. Their argument is based on the interplay of Maryland's Home Rule Amendment, Article XI-A of the Maryland Constitution, and the Express Powers Act, Md. Local Gov't Code Ann. § 10-206, which they submit authorize county councils to approve legislation that "may aid in maintaining the peace, good government, health, and welfare of the county." The Council, they say, was tantamount to the General Assembly when it funded the EARP. Oral Argument Tr. at 15-16.

This argument is certainly open to challenge. Maryland's Home Rule Amendment instructs that county councils "shall have full power to enact local laws. " Md. Const., art. XI-A, § 3 (emphasis added). The Express Powers Act clarifies that "[a] County council may pass any ordinance, resolution, or bylaw not inconsistent with State law ," drawing a clear distinction between local and State law. Md. Local Gov't Code Ann. § 10-206(a) (emphasis added). The Maryland Court of Appeals has said that a ...