USCA Case #13-5272

Document #1460494

Filed: 10/09/2013

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IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT LENEUOTI F. TUAUA; VAALEAMA T. FOSI; FANUATANU F. L. MAMEA, on his own behalf and on behalf of his minor children, M.F.M., L.C.M., and E.T.M.; TAFFY-LEI T. MAENE; EMY F. AFALAVA; and SAMOAN FEDERATION OF AMERICA, INC., Plaintiffs-Appellants, v. UNITED STATES OF AMERICA, et al. Defendants-Appellees.

Case No: 13-5272

PLAINTIFFS-APPELLANTSRESPONSE TO THE MOTION OF THE AMERICAN SAMOAN GOVERNMENT AND CONGRESSMAN ENI F.H. FALEOMAVAEGA TO INTERVENE OR, IN THE ALTERNATIVE, FOR LEAVE TO PARTICIPATE AS AMICI CURIAE Plaintiffs-Appellants Leneuoti F. Tuaua; Vaaleama T. Fosi; Fanuatanu F. L. Mamea, on his own behalf and on behalf of his minor children, M.F.M., L.C.M., and E.T.M.; Taffy-Lei T. Maene; Emy F. Afalava; and Samoan Federation of America, Inc., respectfully submit this response to the Motion to Intervene or, in the Alternative, for Leave to Participate as Amici Curiae submitted by the American Samoa Government and Congressman Eni F.H. Faleomavaega (Movants). As discussed below, Plaintiffs-Appellants do not oppose Movants participation in this appeal as amici curiae, but do oppose Movants proposed intervention.

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A.

Background

In this case, Plaintiffs-Appellants, who were born in the U.S. territory of American Samoa, assert that the U.S. Governments refusal to recognize them as U.S. citizens violates the Citizenship Clause of the Fourteenth Amendment, which guarantees that [a]ll persons born . . . in the United States, and subject to the jurisdiction thereof, are citizens of the United States. U.S. Const. amend. XIV, 1, cl. 1. The District Court dismissed Plaintiffs-Appellants Complaint pursuant to Rule 12(b)(6) for failure to state a claim upon which relief may be granted. The case comes before this Court on Plaintiffs-Appellants appeal from the District Courts order dismissing their Complaint. B. Movants Fail to Meet the Stringent Standard for Appellate Intervention

This Court allows intervention at the appellate stage where none was sought in the district court only in an exceptional case for imperative reasons. Amalgamated Transit Union Intl, AFL-CIO v. Donovan, 771 F.2d 1551, 1552 (D.C. Cir. 1985) (internal quotation marks omitted). Movants fail to address whether intervention was sought in the District Court. Congressman Faleomavaega never sought to intervene in the District Court at all. Although the American Samoa Government did technically move to intervene in the District Court, it waited to file that motion until nearly a year after the case had been filed and over six months after briefing on the U.S. 2

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Governments dispositive motion had closed. See Dist. Ct. Dkt. No. 23. The next day, the District Court dismissed the entire case and accordingly denied the motion to intervene as moot. See Dist. Ct. Dkt. Nos. 24, 25; Dist. Ct. Minute Order of June 26, 2013. Although the American Samoa Government could have appealed the District Courts denial of its motion to intervene, see Alternative Research & Dev. Found. v. Veneman, 262 F.3d 406, 409 (D.C. Cir. 2001), it did not do so. This is not the exceptional case where intervention should be granted in the first instance on appeal, and Movants have not presented imperative reasons supporting such relief. Amalgamated Transit Union, 771 F.2d at 1552. This case presents a constitutional challenge to only a single federal statute, 8 U.S.C. 1408(1), and to Defendants-Appellees reliance on that statute in effecting certain U.S. State Department passport policies and procedures. Importantly, no statute, regulation, or judicial decision of the American Samoa Government has been challenged or drawn into question in this case. Cf. 28 U.S.C. 2403 (allowing intervention by U.S. or state governments in private litigation in which the constitutionality of a federal or state statute is drawn into question). Moreover, the issue currently on appeal is discrete: whether the District Court erred in dismissing Plaintiffs-Appellants Complaint at the pleadings stage. Defendants-Appellees (the United States, U.S. State Department, U.S. Secretary of State, and U.S. Assistant Secretary of State for Consular Affairs) have appeared in

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this appeal through the U.S. Department of Justice, which has responsibility for defending the constitutionality of federal statutes. Movants concede that the U.S. defendants have taken the legal position that the American Samoa Government and Congressman Faleomavaega advocate. Movants Br. at 9. There has been no indication that Defendants-Appellees will not vigorously defend and seek affirmance of the ruling dismissing Plaintiffs-Appellants Complaint. Indeed, Defendants-Appellees have already indicated their intent to file a motion for summary affirmance of the District Courts decision, a step that hardly signals any lack of resolve. See Appellees Consent Mot. for Extension of Time in Which to File Their Mot. for Summ. Affirmance (filed Oct. 1, 2013). As a result, Movants have not shown that existing parties are incapable of protecting any interest Movants may have in affirmance of the result below. Movants argue that a ruling by this Court on whether the Citizenship Clause applies to persons born in American Samoa would impede the historical ability of the American Samoa Government to negotiate with the federal government about the naturalization status of American Samoans and the ability of Congressman Faleomavaega to represent the Samoan people on this important issue before Congress. Movants Br. at 8. However, Movants cite no precedent of this Court or any other that a legislators or governments abstract opposition to its citizens assertion of an individual federal constitutional right justifies intervention in

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proceedings brought by those individuals to vindicate those rights. To be sure, any time a court enforces an individual constitutional right, the effect is to remove that issue from the political arena and make it non-negotiable. See, e.g., W. Va. Bd. of Educ. v. Barnette, 319 U.S. 624, 638 (1943) (The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts.). A desire of politicians to maintain their own sphere of bargaining and negotiation over such issues does not support intervention in a proceeding brought by individuals to vindicate their own constitutional rights. The abstract nature of the interests raised by Movants is also highlighted by the fact that these interests are shared by governments in other U.S. territories as well as by other Members of Congress. Other territorial governments might argue that a favorable result for Plaintiffs-Appellants could impact their historical ability . . . to negotiate with the federal government about the naturalization status of their inhabitants. Similarly, every Member of Congress could argue that their ability . . . to represent [their constituents] on this important issue before Congress could be impeded by a favorable result for Plaintiffs-Appellants. Movants Br. at 8. These kinds of abstract interests are not sufficient to meet the high standards for intervention on appeal.

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Although Movants do not meet the high standard for original intervention in this Court, they can still participate meaningfully in this appeal. As Movants repeatedly emphasize, Congressman Faleomavaega himself participated in the District Court proceedings via amicus brief, rather than by intervening. See Movants Br. at 3-4, 10, 13, 15. Congressman Faleomavaega appears satisfied that his amicus participation at the District Court level was meaningful and impactful. See, e.g., id. at 4 (the district court cited Congressman Faleomavaegas brief multiple times), 10 (the district court relied upon some of the Congressmans arguments in its decision). Given that Movants now seek to advance the same arguments on appeal, id. at 10, they have not established why such amicus participation would not be equally sufficient in this Court. C. The Authorities Relied Upon By Movants Do Not Support Intervention Here

Movants rely on International Union, UAW, Local 283 v. Scofield, 382 U.S. 205, 217 n.10 (1965). See Movants Br. at 7. However, that case does not support their bid for intervention here. In Scofield, the Supreme Court held that a party who obtains a favorable result in an NLRB administrative proceeding may intervene in a court of appeals proceeding in which the losing party seeks review of that NLRB decision. The Court reached this conclusion by examining the structure of and congressional intent behind the National Labor Relations Act. See id. at 209-17. In a footnote, the Court added in passing that the policies 6

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underlying intervention in district courts under Federal Rule of Civil Procedure 24 also would support intervention by parties to NLRB proceedings in appeals from those same proceedings. Id. at 217 n.10. In contrast to Scofield, this case is not a petition for review of an agency proceeding adjudicating rights of Movants and to which they were already parties. Rather, this is an appeal from a District Court proceeding to which Movants were not parties, despite having ample time and opportunity to seek party status. Movants point to no statute or authority from which a right to intervention in the circumstances of this appeal might be derived. In any event, consideration of the policies underlying intervention under Federal Rule of Civil Procedure 24 would weigh against, not in favor of, intervention. Movants do not claim any specific interest relating to a property or transaction that is the subject of the action. Fed. R. Civ. P. 24(a)(2) (emphases added). Rather, they assert policy concerns about unintended and harmful effects on the culture of American Samoa, which befit the classic role of an amicus curiae. Movants Br. at 9. Moreover, as discussed above, Movants have not shown that existing parties (i.e., the U.S. Government) will not adequately represent [their] interest. Fed. R. Civ. P. 24(a)(2). Movants also claim to ha[ve] a claim or defense that shares with the main action a common question of law or fact. Movants Br. at 13 (quoting Fed. R.

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Civ. P. 24(b)(1)(B)). But the asserted defense is simply that they intend to support the position of the United States. Id. Again, the appropriate vehicle for support[ing] the position of a party to appeal is normally the filing of an amicus curiae brief, which, unlike formal intervention, is contemplated by and anchored in the Federal Rules of Appellate Procedure. See Fed. R. App. P. 29. For the foregoing reasons, Plaintiffs-Appellants respectfully request that the Court deny Movants motion to intervene, without prejudice to Movants participation in this appeal as amici curiae. Dated: October 9, 2013 Respectfully submitted, /s/ Murad Hussain Robert Katerberg (D.C. Bar No. 466325) Murad Hussain (D.C. Bar No. 999278) Elliott Mogul (D.C. Bar No. 1009860) Dawn Y. Yamane Hewett (D.C. Bar No. 984923) ARNOLD & PORTER LLP 555 Twelfth Street, N.W. Washington, D.C. 20004-1206 (202) 942-5000 (202) 942-5999 (fax) Robert.Katerberg@aporter.com Murad.Hussain@aporter.com Elliott.Mogul@aporter.com Dawn.Yamane.Hewett@aporter.com

Neil C. Weare (D.C. Bar. No. 997220) WE THE PEOPLE PROJECT 1421 T Street N.W., Ste. 10 Washington, D.C. 20009 (202) 304-1202 nweare@equalrightsnow.org Charles Alailima (WA Bar No. 28006; AS Bar Member (unnumbered)) LAW OFFICE OF CHARLES V. ALAILIMA, PLLC P.O. Box 1118 Nuuuli, AS 96799 (684) 699-6732 cvalaw@msn.com

Counsel for Plaintiffs-Appellants

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CERTIFICATE OF SERVICE I, Murad Hussain, hereby certify that on this 9th day of October 2013, I caused a true and correct copy of the foregoing to be filed electronically using the Courts CM/ECF system, causing a true and correct copy to be served on all counsel of record.

/s/ Murad Hussain Murad Hussain Counsel for Plaintiffs-Appellants