by Michael C. Dorf
In addition to the possibility of criminal charges for their role in using Venezuelan migrants as what I called human spears in my Tuesday blog post, Florida Governor Ron DeSantis, other Florida officials, and the State of Florida itself now also face a civil lawsuit filed on behalf of the migrants. The complaint alleges a much more elaborate plot to trick the migrants than has been widely reported. For example, one of the plaintiffs was (allegedly) put up in a hotel for five days and told by someone secretly working for DeSantis that if her "family got on the flight" the DeSantis agent had "arranged, then Plaintiff would be provided with permanent housing, work, educational resources for her son, and help changing her address for immigration proceedings." The factual allegations, if true, indicate that this was indeed a carefully calculated ruse and stunt.
But what about the law? The complaint asserts common-law, statutory, and constitutional claims. I haven't looked too deeply into the underlying law, but on the surface, at least some of them look plausible. After all, even undocumented immigrants have civil rights. Key provisions of federal law, including the Fourteenth Amendment's equal protection and due process clauses, protect "persons," not just citizens. And in any event, the migrant plaintiffs are not undocumented immigrants in the sense in which that term (or the offensive term "illegal alien") is commonly used. They are asylum seekers who did not sneak across the border but turned themselves in to US border patrol officials and were then paroled pending hearings. Thus, unless and until their asylum claims are rejected, they are in the US legally.
Accordingly, I have considerable sympathy for the migrants' lawsuit and hope that it may ultimately succeed in at least some respects. Nonetheless, I want to raise questions about some of the procedural aspects of the case. I'll focus mostly on: (a) the decision to bring the case as a class action on behalf of the Venezuelan migrants as well as similarly situated persons in the future; and (b) the decision to include the State of Florida as a defendant.
(a)
Class action. According to published reports, the plane from San Antonio to Martha's Vineyard carried 48 migrants. (The complaint alleges that "[a[t least fifty (50) individuals have been transported pursuant to Defendants’ relocation scheme to date." Nothing turns on the difference between 48 and 50.) In principle, it should have been possible for all of the Venezuelan migrants to file individually and have their claims joined together pursuant to
Federal Rule of Civil Procedure (FRCP) 20. However, that would have been at least a bit ungainly. Moreover, obtaining informed consent and an agreement to represent each of the 48 migrants would have been time-consuming.
Accordingly, proceeding via a class action makes some sense. FRCP 23(a)(1) requires, as a prerequisite to class treatment, that the plaintiffs be "so numerous that joinder of all members is impracticable." Courts presumptively treat 40 or more class members as satisfying the rule's numerosity requirement. And, in addition, all of the Venezuelans on the plane have similar claims, thus making the other requirements of FRCP 23 relatively straightforward to satisfy. Thus, I would not have quarreled with the lawyers if they had chosen to bring the case as a class action
on behalf of all of the people on the plane.
But that's not what the complaint does. It seeks certification "on behalf of a class consisting of all immigrants who have been, or will in the future be, induced by Defendants to travel across state lines by fraud and misrepresentation" based on the indications that DeSantis et al intend to continue doing this sort of thing. Seeking to represent that broader class has costs as well as benefits.
The costs are obvious. The district court very well might not certify a class of indeterminate size whose members may face different circumstances, thus undercutting the ability of the putative class to satisfy the commonality and typicality requirements of FRCP 23. And at the very least, complicating the class certification inquiry will result in potentially substantial delay.
There is at least one potential benefit, however. The plaintiffs who have already been flown to Martha's Vineyard are extremely unlikely to be subject to the same ruse again. Thus, pursuant to the Supreme Court's decision in
City of Los Angeles v. Lyons, none of them has standing to seek an injunction against further ruses of the sort that was perpetrated on them. Including class members who could be subject to similar treatment at least superficially suggests the possibility of an injunction.
However, the plaintiffs still need a class representative with standing for the injunction. Perhaps the institutional plaintiff, Alianza Americas, has standing for injunctive relief, but if so, then the broader class is not needed for that reason. On net, therefore, it seems like the cons of seeking class treatment for the broader group outweigh the pros. The plaintiffs would have been better off filing on behalf of Alianza and a class consisting of the migrants already flown to Martha's Vineyard. The potential future victims add little except the likelihood of delay. (Note to plaintiffs' lawyers: You can simply amend the complaint to identify a narrower class.)
(b) State sovereign immunity.
The literal text of the Eleventh Amendment bars the claims against the state of Florida. It provides in relevant part: "The judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by . . . citizens or subjects of any foreign state." Were one writing on a clean slate, it would be possible to argue, as Justices Brennan and later Justice Souter did, that the foregoing text has no application in
federal question as opposed to diversity cases, but the SCOTUS majority has long stood by its 19th-century decision in
Hans v. Louisiana rejecting that reading. Accordingly, all of the claims against the state of Florida are barred, unless: (i) they fall within the
Ex Parte Young exception; (ii) state sovereign immunity was validly abrogated by Congress; or (iii) Florida waived its sovereign immunity.
(i) Ex Parte Young doesn't apply at all to the claims against Florida. That doctrine allows for suits for equitable relief against state officials, but Young does not allow for even equitable relief, much less money damages, against the State sued in its own name.
(ii) Congress may abrogate state sovereign immunity when exercising its power to enforce the Fourteenth Amendment, to enact bankruptcy laws, with regard to eminent domain, and in raising a military force. Some of the claims asserted in the complaint invoke violations of the Fourteenth Amendment. Thus, Congress
could have abrogated state sovereign immunity with respect to those. However, the relevant statute, 42 U.S.C. §1983, was construed by SCOTUS in
Will v. Michigan Dept of State Police to exclude a state from the meaning of the word "person." It does not abrogate state sovereign immunity.
(iii) One of the claims asserted in the complaint (the fourth cause of action), invokes
Title VI, which forbids discrimination based on race, color, or national origin by recipients of federal funds. Case law supports the proposition that when a state accepts federal funds, as Florida does, it thereby waives its sovereign immunity against Title VI claims. Accordingly, state sovereign immunity does not bar this one claim against the state of Florida.
(c) Other issues and bottom line.
There are other problematic claims in the complaint. For example, the fifth cause of action invokes the Supremacy Clause and 42 U.S.C. §1983, but the Supremacy Clause is not a source of individual rights and thus not a basis for a 1983 action, although the
Supreme Court has recognized that cases like
Ex Parte Young will support a judge-made equitable cause of action to enjoin state and local officials from taking actions pre-empted by federal law. So if the organizational plaintiff has standing for injunctive relief, that could be a possibility.
Meanwhile, the complaint also invokes--as its eighth cause of action--the
American Rescue Plan Act of 2021. Here the contention is that DeSantis has misused federal COVID relief funds by redirecting them to pay for transporting the migrants from San Antonio to Martha's Vineyard. The complaint is surely correct that this was a gross misuse of funds. However, the complaint does not cite (nor could it) any provision of the Act that authorizes private parties to bring suit for violations. Instead, the Act contains numerous provisions establishing federal oversight. Although the eighth cause of action will surely be dismissed, perhaps it will have the somewhat salutary effect of alerting the relevant authorities to the gross abuse of funds perpetrated by DeSantis.
That is also my hope with respect to the lawsuit more generally. I have not sufficiently researched the underlying law of all of the plaintiffs' claims to say whether some of those I don't discuss above might succeed. But even if none of them do, the case could usefully catalyze other more successful enforcement efforts and, in its disturbing narrative, bring much-deserved negative publicity to the cynical actions of DeSantis and his co-conspirators.