E-Verify federal contractor rule back in court
Less than one week after Judge Alexander Williams, Jr., of the US District Court for the District of Maryland, upheld the Department of Homeland Security’s (DHS) E-Verify federal contractor rule, the business party plaintiffs, led by US Chamber of Commerce, filed a notice of appeal to Fourth Circuit Court of Appeals to reverse the district court’s decision ( Chamber of Commerce v Napolitano, No AW-08-3444, Notice of Appeal filed 8/31/09).
The business party plaintiffs also filed an emergency motion in district court moving for the start date of rule to be enjoined pending their appeal ( Chamber of Commerce v Napolitano, No AW-08-3444, Plaintiffs’ Emergency Motion Pending Appeal Filed 09/01/09). The motion states that “good cause exists to grant an injunction to maintain the status quo pending [their] appeal” to the Fourth Circuit. The court signed a memorandum opinion deciding several questions of first impression relating to the authority of the President of the United States and various other federal officials under the Illegal Immigration Reform and Immigrant Responsibility Act of 1996; the Federal Property and Administrative Services Act of 1949; and the Office of Federal Procurement Policy Act, according to the memorandum of law accompanying the motion. These serious questions of first impression “suggest that the status quo should be maintained pending Plaintiffs’ appeal.”
In addition, the plaintiffs assert that they will be irreparably harmed absent an injunction pending appeal. Among its costs, implementation of the final rule will cost government contractors and subcontractors approximately $190 million in startup costs during the first fiscal year the rule is in effect. However, “in the event [that the] plaintiffs succeed on their appeal to the Fourth Circuit, [their] members will not have access to a money-damages remedy to compensate them for the time and money spent on complying with the final rule and the contract provision it will add to countless government contracts and subcontracts,” according to the memorandum.
The plaintiffs also claim that the federal government will not be harmed by the injunction enforcement of the rule has been delayed four times since the business party plaintiffs have commenced their suit. Of note, on August 31, the plaintiffs had asked the federal government to voluntarily agree not enforce the E-Verify federal contractor rule pending their appeal, but according to their motion, on September 1 the government informed the plaintiffs that “they would not voluntarily delay the rule from taking effect on September 8. In a September 2 interview with USCIS spokesperson Bill Wright, he said that as of now there are no plans to delay the effective date of the E-Verify federal contractor rule.
The E-Verify federal contractor rule, scheduled to take effect September 8, requires certain federal contractors and subcontractors to register for and use the federal government’s Internet-based electronic verification system called E-Verify. E-Verify, which compares information from the Form I-9, Employment Eligibility Verification against federal government databases to verify workers’ employment eligibility, is a free, web-based system operated by DHS in partnership with the Social Security Administration. Federal contracts awarded and solicitations issued with a period of performance longer than 120 days and a value above $100,000 must include a clause committing the contractor to use E-Verify. The same clause will also be required in subcontracts over $3,000 for services or construction that flow from those prime contracts. These contractors and subcontractors must confirm that all their new hires and their employees “assigned to the contract” are authorized to work in the United States.
Reprinted with permission. © CCH
(Submitted Sept. 3, 2009)
<p>E Verify federal contractor rule back in court Less than one week after Judge Alexander Williams, Jr., of the US District Court for the District of Maryland, upheld the Department of Homeland Security’s (DHS) E Verify federal contractor rule, the</p>