Bauer v. Elrich

8 F.4th 291

Sharon BAUER ; Richard Jurgena, Plaintiffs - Appellants,

v.Marc ELRICH, in his official capacity as Montgomery County Executive; RAYMOND L. CROWEL, in his official capacity as Director of Montgomery County Department of Health and Human Services, Defendants - Appellees,United States of America, Intervenor,State of Maryland; State of Connecticut ; State of Delaware; State of Massachusetts; State of Minnesota ; State of New Jersey ; State of New Mexico ; State of New York; State of Oregon ; State of Virginia ; State of Washington ; District of Columbia; Cities, Counties, the International Municipal Lawyers Association, and the U.S. Conference of Mayors; City of Los Angeles, CA; City of Oakland, CA; City of Chicago, IL; City of Seattle, WA; County of King, WA ; International Municipal Lawyers Association; U.S. Conference of Mayors, Amici Supporting Appellee.

No. 20-1707

United States Court of Appeals, Fourth Circuit.

Argued: May 5, 2021

Decided: August 10, 2021

ARGUED: Michael Bekesha, JUDICIAL WATCH, INC., Washington, D.C., for Appellants. Catherine Carroll, WILMERHALE LLP, Washington, D.C., for Appellees. Lindsey Powell, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Intervenor. ON BRIEF: Paul R.Q. Wolfson, Leon T. Kenworthy, Alex Hemmer, Alexandra Stewart, WILMERHALE LLP, Washington, D.C.; Marc P. Hansen, County Attorney, John P. Markovs, Deputy County Attorney, OFFICE OF THE COUNTY ATTORNEY, Rockville, Maryland, for Appellees. Jeffrey Bossert Clark, Acting Assistant Attorney General, Daniel Tenny, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Intervenor. Brian E. Frosh, Attorney General, Steven M. Sullivan, Solicitor General, Jeffrey P. Dunlap, Assistant Attorney General, OFFICE OF THE ATTORNEY GENERAL OF MARYLAND, Baltimore, Maryland, for Amicus State of Maryland. William Tong, Attorney General, OFFICE OF THE ATTORNEY GENERAL OF CONNECTICUT, Hartford, Connecticut, for Amicus State of Connecticut. Kathleen Jennings, Attorney General, DELAWARE DEPARTMENT OF JUSTICE, Wilmington, Delaware, for Amicus State of Delaware. Karl A. Racine, Attorney General, OFFICE OF THE ATTORNEY GENERAL FOR THE DISTRICT OF COLUMBIA, Washington, D.C., for Amicus District of Columbia. Maura Healey, Attorney General, OFFICE OF THE ATTORNEY GENERAL OF MASSACHUSETTS, Boston, Massachusetts, for Amicus Commonwealth of Massachusetts. Keith Ellison, Attorney General, OFFICE OF THE ATTORNEY GENERAL OF MINNESOTA, St. Paul, Minnesota, for Amicus State of Minnesota. Gurbir S. Grewal, Attorney General, OFFICE OF THE ATTORNEY GENERAL OF NEW JERSEY, Trenton, New Jersey, for Amicus State of New Jersey. Hector Balderas, Attorney General, OFFICE OF THE ATTORNEY GENERAL OF NEW MEXICO, Santa Fe, New Mexico, for Amicus State of New Mexico. Letitia James, Attorney General, OFFICE OF THE ATTORNEY GENERAL OF NEW YORK, New York, New York, for Amicus State of New York. Ellen F. Rosenblum, Attorney General, OFFICE OF THE ATTORNEY GENERAL OF OREGON, Salem, Oregon, for Amicus State of Oregon. Mark R. Herring, Attorney General, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Amicus Commonwealth of Virginia. Robert W. Ferguson, Attorney General, OFFICE OF THE ATTORNEY GENERAL OF WASHINGTON, Olympia, Washington, for Amicus State of Washington. Michael N. Feuer, City Attorney, Kathleen A. Kenealy, Chief Assistant City Attorney, Danielle L. Goldstein, Deputy City Attorney, Michael J. Dundas, Deputy City Attorney, OFFICE OF THE LOS ANGELES CITY ATTORNEY, Los Angeles, California, for Amicus City of Los Angeles. Charles W. Thompson, Jr., Executive Director and General Counsel, Amanda Kellar, Deputy General Counsel, INTERNATIONAL MUNICIPAL LAWYERS ASSOCIATION, Rockville, Maryland, for Amicus International Municipal Lawyers Association. John Daniel Reaves, General Counsel, THE UNITED STATES CONFERENCE OF MAYORS, Washington, D.C., for Amicus United States Conference of Mayors. Peter S. Holmes, City Attorney, OFFICE OF THE CITY ATTORNEY OF SEATTLE, Seattle, Washington, for Amicus City of Seattle, Washington. Daniel T. Satterberg, Prosecuting Attorney, David J. Hackett, Senior Deputy Prosecutor, KING COUNTY PROSECUTOR'S OFFICE, Seattle, Washington, for Amicus King County, Washington. Barbara J. Parker, City Attorney, OAKLAND CITY ATTORNEY'S OFFICE, Oakland, California, for Amicus City of Oakland, California. Mark A. Flessner, Corporation Counsel, Benna Ruth Solomon, Deputy Corporation Counsel, Justin A. Houppert, Senior Assistant Corporation Counsel, CITY OF CHICAGO DEPARTMENT OF LAW, Chicago, Illinois, for Amicus City of Chicago, Illinois.

Before GREGORY, Chief Judge, and KEENAN and QUATTLEBAUM, Circuit Judges.

Affirmed by published opinion. Judge Keenan wrote the majority opinion, in which Chief Judge Gregory concurred. Judge Quattlebaum wrote a dissenting opinion.

BARBARA MILANO KEENAN, Circuit Judge:

The plaintiffs in this case, two taxpayers in Montgomery County, Maryland (the County), filed suit in Maryland state court against two County officials, challenging a program established by the Montgomery County Council to combat the economic hardships suffered by County residents during the Covid-19 pandemic. The program at issue, the Emergency Assistance Relief Payment Program (the EARP), provides cash assistance to residents, including foreign nationals present in the country without documentation, who meet certain income requirements and do not qualify for state or federal pandemic-related aid.

The plaintiffs asserted that the EARP violates a federal statute, 8 U.S.C. § 1621(a), which, subject to a few exceptions, generally prohibits undocumented persons from receiving state and local benefits. Recognizing that Section 1621 does not authorize private enforcement, the plaintiffs styled their claim as arising under the Maryland common law doctrine of taxpayer standing (the Maryland taxpayer standing doctrine, or the standing doctrine), which "permits taxpayers to seek the aid of courts, exercising equity powers, to enjoin illegal and ultra vires acts of [Maryland] public officials where those acts are reasonably likely to result in pecuniary loss to the taxpayer." Floyd v. Mayor & City Council of Balt. , 463 Md. 226, 205 A.3d 928, 937 (2019) (citation omitted).

The County officials removed the case to federal court. After determining that it had federal question jurisdiction under 28 U.S.C. § 1331, the court granted summary judgment to the County officials, concluding that the plaintiffs could not maintain their claim because Section 1621 does not provide a private right of action.

Upon our review, we agree with the district court. The plaintiffs’ claim depends entirely on our interpretation of a federal statute, a substantial federal question for purposes of subject matter jurisdiction. However, Congress has declined to authorize private parties to enforce Section 1621, a legislative decision that cannot be circumvented by invocation of a state's law of taxpayer standing. We therefore affirm the district court's grant of summary judgment to the County officials.

I.

The Montgomery County Council established the EARP in March 2020 to provide emergency cash assistance to County residents with incomes equal to or less than 50% of the federal poverty benchmark who were not eligible for federal or state pandemic relief. In setting the eligibility requirements for the EARP, the County explicitly sought to "fill the gaps" in assistance for persons who were not eligible for pandemic-related aid offered by the federal government or the state of Maryland. Although eligibility for EARP aid is not dependent on a person's status as an undocumented immigrant, such individuals are eligible to receive EARP payments if they otherwise satisfy the income qualifications. To fund the EARP, the County Council appropriated $10,000,000 from the County's reserve funds to the operating budget of the County's Department of Health and Human Services.

Shortly after the EARP was established, the plaintiffs, two taxpayers in Montgomery County, filed the present suit in Maryland state court against Marc Elrich, the Montgomery County Executive, and Raymond Crowel, the Director of the County Department of Health and Human Services (the County defendants), both in their official capacities. The plaintiffs alleged that, as Maryland taxpayers, they "have the right to initiate a suit in equity to enjoin illegal acts of public officials where those acts are reasonably likely to result in pecuniary loss to the taxpayers." In the sole count of the complaint, the plaintiffs alleged that, by "disburs[ing] direct cash payments to unlawfully present aliens," the EARP "violates 8 U.S.C. § 1621(a)," a federal statute that generally prohibits undocumented persons from receiving public benefits from state and local governments. According to the plaintiffs, this unlawful distribution of County funds has caused County taxpayers to "suffer pecuniary injury." The plaintiffs sought (1) a declaratory judgment that providing EARP benefits to undocumented persons violates Section 1621, and (2) an injunction prohibiting the County from continuing to distribute EARP funds to undocumented immigrants residing in the County.

The defendants removed the case to federal district court in Maryland. They asserted federal question jurisdiction under 28 U.S.C. § 1331 based on the plaintiffs’ allegation that the EARP violates Section 1621. The district court concluded that it had jurisdiction under Section 1331, because the plaintiffs’ claim "cannot be resolved without determining the substance of 8 U.S.C. § 1621 and whether [the defendants] have violated its terms." The court nevertheless dismissed the plaintiffs’ complaint, concluding that they could not use the Maryland taxpayer standing doctrine to challenge the County's actions based on Section 1621 when the federal statute itself did not include a private right of action. The plaintiffs appealed.¹

II.

The plaintiffs first...