2021 | Government

Appeal heard in lawsuit to block COVID-19 relief aid for immigrants without legal status

County, nonprofit dispute whether private citizens can enforce federal statute

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A lawsuit claiming Montgomery County’s distribution of COVID-19 relief money to immigrants living in the country illegally was argued in a federal appeals court this week.

The federal lawsuit, which the nonprofit group Judicial Watch filed in May 2020, seeks to prevent the county from distributing millions in financial assistance to low-income residents who do not have legal status.

The lawsuit argues that doing so would violate federal law because it was not approved by the state legislature.

Judicial Watch filed the lawsuit on behalf of Montgomery County residents Sharon Bauer and Richard Jurgena. The defendants are County Executive Marc Elrich and Raymond Crowel, director of the county’s Department of Health and Human Services.

The COVID-19 relief money was distributed as one-time payments to county residents who had income less than 50% of the federal poverty level and were not eligible for federal stimulus checks.

According to the Internal Revenue Service, people who have an income higher than $99,000, are without a Social Security number, are incarcerated or are living in the country illegally were ineligible for federal stimulus checks.

On June 24, U.S. District Judge Peter Messitte ruled that private citizens did not have the right to challenge the county’s compliance with federal law, The Washington Post reported.

Judicial Watch appealed the decision and on Wednesday, defended its stance in the U.S. Court of Appeals for the Fourth Circuit.

The civil appeal hinges on whether a federal statute — 8 U.S.C. section 1621 — may be enforced by private litigants under Maryland’s taxpayer-standing doctrine.

As a panel, Chief Judge Roger Gregory and Judges Barbara Milano Keenan and Marvin Quattlebaum heard the appeal on Wednesday.

Michael Bekesha, an attorney representing Judicial Watch, said the county is illegally spending taxpayer funds.

Counties can be treated differently in circuit courts, Bekesha said during the hearing. Sometimes they’re treated as a municipality and sometimes as a state, under law.

“There is no Fourth Circuit precedent on that,” Bekesha said. “There isn’t a Supreme Court precedent dealing specifically with a county. … In our view, Montgomery County is like the local office of municipality and less like a state because it has a limited number of residents.”

Keenan said it appeared that Bekesha was trying to “create a private right of action to enforce a federal statute when Congress has not seen fit to do that.”

But Bekesha said the private citizens were simply seeking to prevent local government officials from spending their tax money unlawfully, not to enforce a federal statute.

“The violation of federal law is just an element of the claim,” he said. “It’s very similar to negligence per state claims and other claims that states have developed related to the federal Food, Drug, and Cosmetic Act.”

Catherine Carroll, an attorney representing Montgomery County, said at the hearing that it is a legislative act to decide whether the federal statute is enforceable.

Maryland taxpayer law does not define conduct that violates state law, she said.

“The one and only theory of wrongdoing in this case … is that the defendants have supposedly violated federal law,” she said. “There is no claim that any defendant has violated any duty imposed by state law.

“All this case is .. is an effort to use a state law cause of action as an empty vehicle to create a right of action to enforce a federal statute. But it is up to Congress, as a constitutional matter, to decide whether a statute is privately enforceable in court.”

That is straightforwardly not permissible, Carroll said.

“There is absolutely no authority in 150 years of Maryland case law indicating that Maryland courts would permit this,” she said.

Maryland courts have never suggested they would allow it, Carroll said.

“Even if they did, it would not make a difference,” she said. “Because, as a matter of federal law, for all the reasons we’ve been discussing, it’s not permissible and foreclosed for lack of a private right of action.”

In rebuttal, Bekesha said Montgomery County and its attorneys are treating taxpayer claims as a “second-class cause of action.”

“It’s not,” he said. “The Maryland courts are essentially clear that taxpayer claims are essential, substantive right that taxpayers of the state of Maryland have. … The Maryland courts do not distinguish between cause of action and standing here because a taxpayer claim is both the standing and the private right of action and the cause of action. The Maryland courts have specifically said that … the violation of law does not have to have a private right of action because this substantive right provides it.”

Montgomery County’s argument is that officials can spend taxpayer money in violation of federal law as much as they want and taxpayers do not have a remedy in court to stop them from illegally spending money, Bekesha said.

“That just can’t possibly be the case and Maryland courts have not said so,” he said.

Bekesha requested that the court reverse the district court’s decision and remand it to resolve the merits of the case.

Briana Adhikusuma can be reached at briana.adhikusuma@bethesdamagazine.com.