On August 29, 2007, the AFL-CIO and local San Francisco labor organizations, represented by the ACLU of Northern California, the ACLU Immigrants' Rights Project, the National Immigration Law Center and private cooperating attorneys, filed a lawsuit in the United States District Court for the Northern District of California to challenge a new Department of Homeland Security rule entitled "Safe Harbor Procedures for Employers that Receive a No Match Letter." In the past, the Social Security Administration had periodically sent out "no-match" letters to inform employers that employee names on W-2 forms submitted by the employer did not match with assigned Social Security numbers. Those letters were deemed advisory and imposed no duties on employers. Under the new rule, if an employer receives a "no match" letter," the employer is required to give the employee 90 days to resolve the data discrepancy with the Social Security Administration or potentially face termination. Failure of employers to take necessary action can subject the employer to certain liabilities.
Plaintiffs took the position that the new rule was beyond the authority of Homeland Security, which was attempting to use data maintained by the Social Security Administration for immigration enforcement. Plaintiffs predicted that the new rule would wreak havoc on employers and jeopardize the jobs of employees legally working in the U.S., on account of clerical errors and other problems with data kept by the Social Security Administration.
Immediately after filing the complaint, Plaintiffs filed a request that the court issue a TRO and preliminary injunction. The District Court (Judge Maxine M. Chesney) issued a TRO on August 31, 2007, enjoining the Department of Homeland Security from implementing the rule pending further hearings on the matter.
Following a hearing, the District Court (Judge Charles R. Breyer) issued a preliminary injunction, Am. Fed'n of Labor v. Chertoff, 552 F. Supp. 2d 999 (N.D. Cal. 2007), and ordered the parties to meet and confer on the form of the injunction, and submit a proposed order by October 12, 2007.
In November 2007, DHS moved to stay proceedings while the agency conducted additional rulemaking proceedings on the Safe Harbor Provision. Defendants planned to address the issues raised by the court by preparing a Regulatory Flexibility Act analysis. Defendants expected to complete the rulemaking proceedings by March 2008 and requested the court to stay proceedings until then. In December 2007, the court granted defendant's motion to stay proceedings.
That same month, defendants appealed the preliminary injunction order to the Ninth Circuit Court of Appeals [07-17241]. In November 2008, the circuit court granted appellants' motion to dismiss the appeal (Circuit Mediator Margaret A. Corrigan).
On October 23, 2008, DHS announced the completion of the additional rulemaking proceedings. Plaintiffs argued that the proposed rule would still improperly use social security records for immigration enforcement. They therefore opposed defendants' motion for summary judgment.
On July 9, 2009, DHS announced its intention to initiate rulemaking proceedings to rescind the Safe Harbor Rule. Because recision of the Safe Harbor Rule would moot the litigation, defendants filed an unopposed motion to stay the litigation pending the completion of rulemaking proceedings. The court granted defendants' motion and stayed proceedings until February 2010.
On October 7, 2009, DHS issued a final rule rescinding the Social Security "no match" rule. The next month, the parties stipulated that the preliminary injunction should be vacated and that the action should be dismissed as moot. On November 18, 2009, the court vacated the preliminary injunction and dismissed the case as moot. Dan Dalton - 09/18/2007
Jennifer Bronson - 11/29/2013