applying zone of interest test in APA context
How later courts described this case
- applying zone of interest test in APA context
- addressing challenges to DACA
Written by the judges who cited it.
The opinion
Case: 23-40653 Document: 212-2 Page: 1 Date Filed: 01/17/2025
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
FILED
____________
January 17, 2025
No. 23-40653 Lyle W. Cayce
____________ Clerk
State of Texas; State of Alabama; State of Arkansas;
State of Louisiana; State of Nebraska;
State of South Carolina; State of West Virginia;
State of Kansas; State of Mississippi,
Plaintiffs—Appellees,
versus
United States of America; Alejandro Mayorkas, Secretary,
U.S. Department of Homeland Security; Troy Miller, Senior Official
Performing the Duties of the Commissioner, U.S. Customs and Border
Protection; Patrick J. Lechleitner, Senior Official Performing the
Duties of the Director of U.S. Immigrations and Customs Enforcement;
Ur M. Jaddou, Director of U.S. Citizenship and Immigration Services;
Jason D. Owens, Chief of the U.S. Border Patrol,
Defendants—Appellants,
Maria Rocha; Jose Magana-Salgado; Nanci J. Palacios
Godinez; Elly Marisol Estrada; Karina Ruiz De Diaz;
Carlos Aguilar Gonzalez; Luis A. Rafael;
Darwin Velasquez; Jin Park; Oscar Alvarez;
Denise Romero; Jung Woo Kim; Angel Silva;
Hyo-Won Jeon; Elizabeth Diaz; Blanca Gonzalez;
Moses Kamau Chege; Maria Diaz,
Intervenor Defendants—Appellants,
State of New Jersey,
Intervenor—Appellant.
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______________________________
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:18-CV-68
______________________________
Before Smith, Clement, and Higginson, Circuit Judges. *
Jerry E. Smith, Circuit Judge:
This is the latest chapter in the long-running litigation challenging the
Deferred Action for Childhood Arrivals program, commonly known as
DACA. In 2021, a district court held that Texas has standing to challenge
DACA and that DACA is procedurally and substantively unlawful. The
court halted the program and enjoined the government from approving any
new DACA applications but stayed the effective date of its vacatur as to all
DACA recipients who had received their initial DACA status before the date
of the order. In 2022, this court affirmed in part and remanded because the
Department of Homeland Security (“DHS”) had cured DACA’s procedural
defect by promulgating a Final Rule. This appeal addresses that Final Rule.
Relying on this court’s previous decision, the district court found that
Texas still has standing to challenge DACA and held that the Final Rule is
substantively unlawful. The court accordingly vacated the Rule, entered a
nationwide injunction, and preserved the stay.
We largely agree with the district court and thus affirm its judgment,
though we modify the remedial order. We heed the Final Rule’s severability
clause and do not disturb DACA’s policy of forbearance. We also limit the
_____________________
*
Judge Higginson concurs in full as to parts I, II, IV, V, and VII, and concurs in
judgment only as to part III.
2
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No. 23-40653
injunction to Texas only. We maintain the stay pending further appeal.
I. Facts and Procedural History
A.
In 2012, the DHS Secretary announced DACA in a three-page memo-
randum (“DACA” or “the Memorandum”). 1 The program applied to
childhood arrivals who, at the time of the program’s creation, (1) were under
age 31 in 2012; (2) had continuously resided in the United States since 2007;
(3) were current students; (4) had completed high school or were honorably
discharged veterans; (5) had not been convicted of any serious crimes; and
(6) did not threaten national security or public safety. See DHS v. Regents of
the Univ. of Cal., 591 U.S. 1, 9–10 (2020) (“Regents”). “Among other provi-
sions, the DACA Memorandum directed that removal of certain aliens who
entered the United States unlawfully as children should be deferred and that
these immigrants should receive certain benefits.” Texas v. United States,
50 F.4th 498, 508 (5th Cir. 2022) (“Texas II”).
In summary, the Memorandum instructed immigration officials not to
remove “certain young people who were brought to this country as children
and know only this country as home.” 2 Those persons would be deemed
eligible for a renewable two-year period of lawful presence through “deferred
action.” 3 “Those granted such relief are also eligible for work authorization
_____________________
1
Memorandum from Janet Napolitano, Sec’y, DHS, to David Aguilar, Acting
Comm’r, U.S. Customs and Border Prot., et al. (June 15, 2012),
https://www.dhs.gov/xlibrary/assets/s1-exercising-prosecutorial-discretion-individuals-
who-came-to-us-as-children.pdf.
2
Id.
3
The government describes deferred action as “an exercise of the Secretary’s
broad authority to establish national immigration enforcement policies and priorities” and
“a form of enforcement discretion not to pursue [ ] removal . . . for a limited period in the
interest of ordering enforcement priorities in light of limitations on available resources,
3
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No. 23-40653
and various federal benefits.” Regents, 591 U.S. at 9. That is because the
status of “lawful presence”—though not an enforceable right to remain in
the United States and revokable at any time—“nevertheless has significant
legal consequences,” including eligibility to receive Social Security and Med-
icare benefits. Texas v. United States, 809 F.3d 134, 148 (5th Cir. 2015)
(“Texas I”), aff’d by an equally divided Court, 579 U.S. 547 (2016) (mem.). 4
Upon taking office in 2017, the Trump Administration attempted to
rescind DACA. Multiple groups of plaintiffs challenged that rescission. In
2020, the Supreme Court held that “[b]ecause the DACA program is more
than a non-enforcement policy, its rescission is subject to review under the
APA.” Regents, 591 U.S. at 19. The Court held that the recission was arbi-
trary and capricious because it failed to consider adequately “the options of
retaining forbearance or accommodating particular reliance interests.” Id.
at 33.
Shortly after Regents, President Biden took office. Nine months into
his tenure, DHS published a notice of proposed rulemaking (“NPRM”)
_____________________
taking into account humanitarian considerations and administrative convenience.”
Deferred Action for Childhood Arrivals, 87 Fed. Reg. 53,152, 53,298 (Aug. 30, 2022).
4
As we explained in 2015,
[P]ersons granted lawful presence pursuant to DAPA [Deferred Action for
Parents of Americans and Lawful Permanent Residents] are no longer
“bar[red] . . . from receiving social security retirement benefits, social
security disability benefits, or health insurance under Part A of the Medi-
care program.” That follows from [8 U.S.C.] § 1611(b)(2)–(3), which pro-
vides that the exclusion of benefits in § 1611(a) “shall not apply to any
benefit[s] payable under title[s] II [and XVIII] of the Social Security
Act . . . to an alien who is lawfully present in the United States as deter-
mined by the Attorney General . . . .” (emphasis added).
Texas I, 809 F.3d at 148 (footnote omitted). This case is also commonly referred to as
“DAPA.”
4
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regarding DACA. 86 Fed. Reg. 53,736 (Sept. 28, 2021). The following year,
DHS promulgated a final rule replacing the Memorandum. 87 Fed. Reg.
53,152 (“Final Rule” or “Rule”). The Rule took effect on October 31, 2022,
id., and continues the DACA policy in the same form as the Memorandum.
But unlike the Memorandum, the Final Rule includes an express severability
provision. 5
B.
Meanwhile, a related suit challenging the Memorandum continued its
way through the courts. That suit—this one—began in May 2018 when ten
states challenged the Memorandum for violating the notice-and-comment
rulemaking requirements of the Administrative Procedure Act (“APA”) and
violating the Immigration and Nationality Act (“INA”), and the Take Care
Clause. 6 Certain DACA recipients and New Jersey intervened as co-
defendants. 7
The district court stayed litigation after the Trump Administration
agreed to terminate DACA, but litigation resumed after Regents. In July
2021, the district court granted summary judgment for the states. 8 The court
_____________________
5
The provision reads: “[A]lthough there are significant benefits to providing work
authorization alongside forbearance, forbearance remains workable and desirable without
work authorization, and DHS would have adopted the forbearance portion of the policy
even if it did not believe that the work authorization portion of the rule were legally author-
ized.” 87 Fed. Reg. 53,248–49; 8 CFR § 236.24(a) & (b).
6
The states are Texas, Alabama, Arkansas, Louisiana, Nebraska, South Carolina,
West Virginia, Kansas, Mississippi, and Maine. Maine has since dismissed itself.
7
We refer to these defendants-appellants as the “Private Intervenors” and “New
Jersey.” The original defendant-appellant, the federal government, we call “the govern-
ment.” We refer to the plaintiffs-appellees as “the states” or “Texas.”
8
Texas v. United States, 549 F. Supp. 3d 572, 624 (S.D. Tex. 2021), aff’d in part,
vacated in part, remanded, 50 F.4th 498 (5th Cir. 2022), and supplemented, 691 F. Supp. 3d
763 (S.D. Tex. 2023), and supplemented, No. 1:18-CV-00068, 2023 WL 5950808 (S.D. Tex.
5
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found (1) that the states had standing under a pocketbook-injury theory
because DACA recipients’ presence increased Texas’s emergency-
healthcare and public-education expenditures; (2) that the Memorandum
was procedurally unlawful because it was instituted without notice and
comment; and (3) that DACA conflicts with the INA. Dist. Ct. Op. 2021,
549 F. Supp. 3d at 583–621.
The district court vacated the Memorandum, remanded for further
administrative proceedings, and entered a nationwide permanent injunction
prohibiting the government “from approving any new DACA applications
and granting the attendant status.” Id. at 624. The court stayed the order of
immediate vacatur as to then-existing DACA recipients. Id.
The government, New Jersey, and the Private Intervenors appealed,
but before this Court made its ruling, DHS issued an NPRM and promul-
gated the Final Rule. 87 Fed. Reg. 53,152. We affirmed in part (including the
vacatur of the Memorandum), preserved the stay as to existing recipients,
and remanded for the district court to consider challenges to the Final Rule
in the first instance. Texas II, 50 F.4th at 531–32.
The focus on remand was the Final Rule, which DHS promulgated
following a notice-and-comment period. 5 U.S.C. § 500 et seq. The Final
Rule was to become effective on October 31, 2022, but following the remand
in Texas II, the parties agreed that the Final Rule would be subject to the dis-
trict court’s earlier injunction of the DACA program pending the district
court’s ruling. The states levied two attacks against the Final Rule: (1) It
substantively violates the APA, and (2) it violates the Take Care Clause.
The district court held that “the Final Rule, like the 2012 DACA
_____________________
Sept. 13, 2023). We cite the 2021 district court opinion as “Dist. Ct. Op. 2021, 549 F. Supp.
3d” and the district court’s 2023 opinion as “Dist. Ct. Op. 2023, 691 F. Supp. 3d.”
6
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Memorandum before it, is subject to [the district c]ourt’s (and the Fifth
Circuit’s) prior rulings.” Texas v. United States, 691 F. Supp. 3d 763, 796
(S.D. Tex. 2023) (“Dist. Ct. Op. 2023”). The court acknowledged its limited
mandate “to determine if there are material differences between the Final
Rule and the 2012 DACA Memorandum, and, if so, whether the already
established rulings concerning the 2012 DACA Memorandum apply to the
Final Rule”—a mandate that “clearly does not permit the parties to relitigate
previously established issues.” Id. at 778. Noting that this court had already
found standing, the district court nevertheless added that, “if called upon to
revisit the standing issue, [the district court] would again find it exists,
especially in light of recent developments.” Id.
Explaining those “recent developments,” the court noted, first,
“DHS’s admission in the administrative record that DACA ‘could result in
some indirect fiscal effects on State and local governments, [but] the size and
even the direction of the effects is dependent on many factors.’” Id. at 779
(quoting 87 Fed. Reg. 53,173). The court was thus satisfied that the injury
was traceable to DACA and accepted Texas’s evidence that “those costs
would be alleviated, or at least diminished, if DACA were eliminated because
some DACA recipients would leave the country,” thus satisfying
redressability. Id.
Second, the district court noted that United States v. Texas, 599 U.S.
670 (2023) (“Immigration Priorities”), had identified the DACA litigation as
an exception to “the no standing rule” that that decision announced. Dist.
Ct. Op. 2023, 691 F. Supp. 3d at 779. In Immigration Priorities, the Court held
that Texas and Louisiana lacked standing to challenge the 2021 DHS
“Guidelines for the Enforcement of Civil Immigration Law”—a prosecutor-
ial enforcement decision. 599 U.S. at 681. The Court distinguished that
challenge from “a challenge to an Executive Branch policy that involves both
the Executive Branch’s arrest or prosecution priorities and the Executive
7
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Branch’s provision of legal benefits or legal status,” which, the Court said,
“could lead to a different standing analysis.” Id. at 683 (noting Texas I, 809
F.3d at 154). The district court interpreted the statement as an “overt
adoption of the Texas I opinion by the Supreme Court,” such that there could
be “no question that standing exists in this case.” Dist. Ct. Op. 2023, 691 F.
Supp. 3d at 780.
The district court then found that “there are no material differences
between the Final Rule and the 2012 DACA Memorandum” and that the
Rule’s forbearance and benefits provisions are not severable. Id. at 782, 795.
So, the court supplemented the existing injunction and order of vacatur to
include the Final Rule and left the nationwide injunction intact. Id. at 796.
As before, the court stayed the effective date of its order as to all DACA
recipients who had received their initial DACA status before July 16, 2021.
The government, the Private Intervenors, and New Jersey appeal.
II. Standard of Review
We review a summary judgement de novo. Guzman v. Allstate Assur-
ance Co., 18 F.4th 157, 160 (5th Cir. 2021). Standing is a question of law that
we review de novo; we review all facts expressly or impliedly found by the
district court for clear error. Pederson v. La. State Univ., 213 F.3d 858, 869
(5th Cir. 2000). We review a vacatur for abuse of discretion. Texas II,
50 F.4th at 529. Although we review an injunction for abuse of discretion,
Abraham v. Alpha Chi Omega, 708 F.3d 614, 620 (5th Cir. 2013), we review
its scope de novo. Texas v. EEOC, 933 F.3d 433, 450 (5th Cir. 2019).
III. Standing
Before considering the merits of an appeal, “[w]e have ‘an obligation
8
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to assure ourselves’ of litigants’ standing under Article III.” 9 Under Arti-
cle III, a plaintiff needs a “personal stake” in the case. TransUnion LLC v.
Ramirez, 594 U.S. 413, 423 (2021). “That is, the plaintiff must have suffered
an injury in fact—a concrete and imminent harm to a legally protected
interest, like property or money—that is fairly traceable to the challenged
conduct and likely to be redressed by the lawsuit.” 10 Only one plaintiff needs
standing for the suit to proceed. 11 “As the parties invoking federal juris-
diction, the States bear the burden of establishing standing.” Texas II,
50 F.4th at 513.
As before, “Texas is the only state that has attempted to demonstrate
standing.” Id. at 514. We accordingly focus solely on Texas’s theory of
standing. Because this court has already held that Texas has standing to
challenge DACA, this question is controlled by our rule of orderliness, absent
an intervening and unequivocal change in standing doctrine. 12 Because no
_____________________
9
DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 340 (2006) (quoting Friends of the
Earth, Inc. v. Laidlaw Env’t Servs. (TOC), Inc., 528 U.S. 167, 180 (2000)).
10
Biden v. Nebraska, 143 S. Ct. 2355, 2365 (2023).
11
Rumsfeld v. F. for Acad. & Institutional Rts., Inc., 547 U.S. 47, 52 n.2 (2006).
12
See Jacobs v. Nat’l Drug Intel. Ctr., 548 F.3d 375, 378 (5th Cir. 2008). Texas
maintains that this question is also controlled by the law of the case doctrine, which, similar
to this circuit’s rule of orderliness, provides that “an issue of law or fact decided on appeal
may not be reexamined either by the district court on remand or by the appellate court on
a subsequent appeal.” Fuhrman v. Dretke, 442 F.3d 893, 896 (5th Cir. 2006) (quotations
omitted). The law of the case doctrine applies to questions of jurisdiction such as standing.
See Free v. Abbott Lab’ys, Inc., 164 F.3d 270, 272–73 (5th Cir. 1999) (noting that “a federal
court must always be satisfied that subject matter jurisdiction exists,” but “refus[ing] to
recognize a ‘jurisdiction exception’ to the law of the case doctrine”). But issues on appeal
are revisable in the event of “an intervening change in the law.” Carnival Leisure Indus.,
Ltd. v. Aubin, 53 F.3d 716, 718–19 (5th Cir. 1995). Like the parties’ rule-of-orderliness dis-
pute, then, whether the law of the case doctrine controls also boils down to whether “con-
trolling authority has since made a contrary decision of the law applicable” to the issue of
standing. Fuhrman, 442 F.3d at 897.
9
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subsequent Supreme Court decision has worked a sufficiently unequivocal
change to justify a departure from Texas II, Texas still has standing.
A. Legal Framework
Texas’s theory of standing is straightforward: DACA recipients
impose over $750 million in annual costs on the state, those costs are tracea-
ble to and exacerbated by the Final Rule, and a favorable judgment against
DACA would at least partially alleviate Texas’s harm. In Texas II, a unani-
mous panel accepted that theory. 50 F.4th at 517–20. 13 Under the rule of
orderliness, we are bound to follow that holding absent an intervening change
in the law. See Jacobs, 548 F.3d at 378.
The government accepts that the rule of orderliness would ordinarily
control but posits that it is inapplicable here because of an “intervening
change in the law” by the Supreme Court. In re Bonvillian Marine Serv., Inc.,
19 F.4th 787, 792 (5th Cir. 2021). Specifically, the government posits that
Immigration Priorities abrogated this court’s standing analysis in Texas II. 14
_____________________
Because of the overlap between the rule of orderliness and the law of the case doc-
trine, we use the term “rule of orderliness.” We prefer that term over “law of the case”
because the rule of orderliness is well settled in this circuit and frequently applied. The law
of the case doctrine, by contrast, has been described as an “amorphous concept” with no
“precise requirements.” Arizona v. California, 460 U.S. 605, 618 (1983).
13
As we explain infra Part III.C, though the Texas II panel wrote that Texas was
entitled to special solicitude, that recognition was not a necessary condition to holding that
Texas had standing to challenge DACA.
14
The Private Intervenors similarly contend that since Texas II, the law has evolved
in a way undercutting Texas’s theory of standing. Like the government, the Private Inter-
venors invoke Immigration Priorities but also claim that Haaland v. Brackeen, 599 U.S. 255
(2023), directly forecloses Texas’s theory of parens patriae standing to challenge the federal
government. But as we will explain, Texas has established standing under a normal theory
of pocketbook injury. And Texas II, which controls this case, did not rely on a parens patriae
theory of standing.
10
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It is “well-settled” in the Fifth Circuit that, even if a panel’s inter-
pretation of the law appears flawed, 15 “one panel of our court may not over-
turn another panel’s decision, absent an intervening change in the law, such
as by a statutory amendment, or the Supreme Court, or our en banc court.”
Id. “This rule is strict and rigidly applied.” Id. Jurisdictional questions such
as a “panel’s understanding of . . . Article III standing” remain binding under
the rule of orderliness. Data Mktg. P’ship v. U.S. Dep’t of Lab., 45 F.4th 846,
856 n.2 (5th Cir. 2022).
For a Supreme Court decision to change our circuit’s law, “neither a
mere hint of how the Supreme Court might rule in the future, nor a decision
that is merely illuminating with respect to the case before us will permit a
subsequent panel to depart from circuit precedent.” 16 Instead, the interven-
ing decision or decisions “must unequivocally overrule prior precedent.”
Bonvillian, 19 F.4th at 792 (quotations omitted). When an intervening
Supreme Court decision “fundamentally changes the focus of the relevant
analysis, our precedents relying on that analysis are implicitly overruled.” 17
But that occurs only “when the changed analysis clearly applies to the case
before us, such that we are unequivocally directed by controlling Supreme
Court precedent to overrule the decision of the prior panel.” 18
_____________________
15
We do not mean to imply that Texas II is flawed.
16
Martinelli v. Hearst Newspapers, L.L.C., 65 F.4th 231, 234 (5th Cir. 2023)
(cleaned up) (quoting United States v. Alcantar, 733 F.3d 143, 146 (5th Cir. 2013), and Tech.
Automation Servs. Corp. v. Liberty Surplus Ins. Corp., 673 F.3d 399, 405 (5th Cir. 2012)), cert.
denied, 144 S. Ct. 2561 (2024) (mem.).
17
Martinelli, 65 F.4th at 234 (cleaned up).
18
Id. (cleaned up); see also United States v. Zuniga-Salinas, 945 F.2d 1302, 1306 (5th
Cir. 1991); Stokes v. Sw. Airlines, 887 F.3d 199, 204 (5th Cir. 2018) (“Such a change occurs,
for example, when the Supreme Court disavows the mode of analysis on which our
precedent relied.”); Gonzalez v. Thaler, 623 F.3d 222, 226 (5th Cir. 2010) (examining
whether a Supreme Court decision “establishes a rule of law inconsistent with our own”
11
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As we now explain, no subsequent Supreme Court decision has un-
equivocally overruled our standing analysis in Texas II.
B. Application
“The fundamentals of standing are well-known and firmly rooted in
American constitutional law.” Food & Drug Admin. v. All. for Hippocratic
Med., 602 U.S. 367, 380 (2024) (“Alliance”). To establish standing, “a plain-
tiff must demonstrate (i) that she has suffered or likely will suffer an injury in
fact, (ii) that the injury likely was caused or will be caused by the defendant,
and (iii) that the injury likely would be redressed by the requested judicial
relief.” Id. “The second and third standing requirements—causation and
redressability—are often ‘flip sides of the same coin,’” meaning if “a defen-
dant’s action causes an injury, enjoining the action or awarding damages for
the action will typically redress that injury. So the two key questions in most
standing disputes are injury in fact and causation.” 19
Texas argues that it has standing because DACA recipients impose
over $750 million in annual costs on the state (including local Texas com-
munities) and that those costs are traceable to and exacerbated by the Final
Rule. See Texas II, 50 F.4th at 517–20 (recognizing that theory). DACA’s
defenders posit that the “indirect, incidental effects” that the Final Rule
imposes on Texas are not judicially cognizable injuries in the wake of Immi-
gration Priorities and that Texas relied on “stale speculation” to support both
the extent of those costs and its theory of causation.
We first address whether Texas can still show an injury in fact in the
wake of Immigration Priorities, then we discuss whether such an injury
_____________________
(cleaned up)).
19
Alliance, 602 U.S. at 380–81 (quoting Sprint Commc’ns Co. v. APCC Servs., Inc.,
554 U.S. 269, 288 (2008)).
12
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remains sufficiently traceable to DACA (and thus would be redressed by an
order setting aside the Final Rule).
1. Injury in Fact
An injury in fact must be “concrete,” meaning that it must be “real,
and not abstract.” TransUnion, 594 U.S. at 424 (quotations omitted). It
must also be particularized, meaning the injury must “affect the plaintiff in a
personal and individual way” and must not be a generalized grievance. Lujan
v. Defs. of Wildlife, 504 U.S. 555, 560 n.1 (1992). The injury can be physical
or monetary, an injury to one’s property or to one’s constitutional rights.
Alliance, 602 U.S. at 381. The injury must be actual or imminent, not specu-
lative; that is, the injury must have already occurred or be likely to occur
soon. Clapper v. Amnesty Int’l USA, 568 U.S. 398, 409 (2013). “For standing
purposes, a loss of even a small amount of money is ordinarily an injury.”
Czyzewski v. Jevic Holding Corp., 580 U.S. 451, 464 (2017) (quotations
omitted).
In Texas II, we affirmed the district court’s conclusion that Texas has
standing to challenge DACA on a pocketbook-injury theory. The district
court had found that the states had “adequately shown that they bear the
costs of medical services required by federal law” because “Texas spends
tens of millions of dollars annually to provide emergency Medicaid services
to illegal aliens” and because, under Plyler v. Doe, 457 U.S. 202 (1982), every
state must educate all children regardless of immigration status and Texas
had “established for standing purposes that it bears the burden of increased
education costs.” Dist. Ct. Op. 2021, 549 F. Supp. 3d at 593–94. That “obli-
gation to subsidize . . . additional aliens’ healthcare and education costs,” we
held, is an “injury in fact.” Texas II, 50 F.4th at 519 (quotations omitted).
The government argues that Immigration Priorities upends our holding
in Texas II for two reasons. First, because the plaintiffs lack standing to seek
13
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No. 23-40653
an order requiring the Executive Branch to increase its enforcement actions,
given the “principle of enforcement discretion over arrests and prosecutions
[that] extends to the immigration context.” Immigration Priorities, 599 U.S.
at 679. And, second, because “indirect” effects of federal policy can no
longer give rise to a cognizable injury in fact because “in our system of dual
federal and state sovereignty, federal policies frequently generate indirect
effects on state revenues or state spending.” Id. at 680 n.3.
Whether Texas satisfies the injury in fact requirement thus comes
down to two main questions: First, is Texas’s challenge to the Rule an incog-
nizable challenge to prosecutorial discretion under Immigration Priorities?
Second, are the costs imposed on Texas by the Final Rule nonetheless too
indirect to constitute an injury in fact?
Answering either question requires examining what the Court said in
Immigration Priorities:
In 2021, Secretary of Homeland Security Mayorkas prom-
ulgated new “Guidelines for the Enforcement of Civil Immi-
gration Law.” The Guidelines prioritize the arrest and re-
moval from the United States of noncitizens who are suspected
terrorists or dangerous criminals, or who have unlawfully en-
tered the country only recently, for example.
Texas and Louisiana sued the Department of Homeland
Security, as well as other federal officials and agencies. Ac-
cording to those States, the Guidelines contravene two federal
statutes that purportedly require the Department to arrest
more criminal noncitizens pending their removal. First, the
States contend that for certain noncitizens, such as those who
are removable due to a state criminal conviction, § 1226(c) of
Title 8 says that the Department “shall” arrest those non-
citizens and take them into custody when they are released
from state prison. Second, § 1231(a)(2), as the States see it,
provides that the Department “shall” arrest and detain certain
14
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noncitizens for 90 days after entry of a final order of removal.
599 U.S. at 674.
What the Court found “extraordinarily unusual” about the lawsuit
was that several states had sought “a federal court to order the Executive
Branch to alter its arrest policies so as to make more arrests.” Id. at 686. The
Court held that because “[f]ederal courts have not traditionally entertained
that kind of lawsuit,” the “States lack Article III standing because this
Court’s precedents and the ‘historical experience’ preclude the States’
‘attempt to litigate this dispute at this time and in this form.’” Id. (quoting
Raines v. Byrd, 521 U.S. 811, 829 (1997)). The Court noted that its “standing
decision today is narrow and simply maintains the longstanding jurispruden-
tial status quo.” Id.
Immigration Priorities is thus an odd rock on which to build a theory
that it worked a sufficiently fundamental change in standing doctrine to over-
come our rule of orderliness. The Court grounded its decision in Linda R.S.
v. Richard D., 410 U.S. 614 (1973), which it read as establishing the principle
that a party “lacks a judicially cognizable interest in the prosecution of
another.” Immigration Priorities, 599 U.S. at 677 (cleaned up). But the Court
explicitly noted that “a challenge to an Executive Branch policy that involves
both the Executive Branch’s arrest or prosecution priorities and the Execu-
tive Branch’s provision of legal benefits or legal status could lead to a differ-
ent standing analysis.” Id. at 683. The Court then cited two cases as exam-
ples: Regents (noting that “benefits such as work authorization and Medicare
eligibility accompanied by non-enforcement meant that the policy was more
than simply a non-enforcement policy”) and Texas I (noting that “Linda R.S.
concerned only non-prosecution, which is distinct from both non-
prosecution and the conferral of benefits”). Immigration Priorities, 599 U.S.
at 683 (both quotes cleaned up). Finally, the Court reiterated that it “need
15
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not resolve the Article III consequences of such a[n enforcement discretion
plus benefits conferral] policy.” Id.
The upshot is that even if Immigration Priorities is “illuminating with
respect to the case before the court,” it can hardly be read to “unequivocally
overrule prior precedent.” Bonvillian, 19 F.4th at 792 (cleaned up). The
holdings in Regents and Texas I were explicitly preserved, combined with “the
longstanding jurisprudential status quo” and “the Federal Judiciary’s tradi-
tional role in separation of powers cases.” Immigration Priorities, 599 U.S.
at 686. “Fifth Circuit precedent is implicitly overruled if a subsequent
Supreme Court opinion establishes a rule of law inconsistent with that prece-
dent.” Gahagan v. U.S. Citizenship & Immigr. Servs., 911 F.3d 298, 302 (5th
Cir. 2018) (quotations omitted). But in Immigration Priorities, the Court
explicitly preserved Fifth Circuit precedent. So, at least as to the govern-
ment’s prosecutorial-discretion argument, Immigration Priorities did not
work the kind of unequivocal change in law necessary to get around our rule
of orderliness.
The next question is whether Texas’s asserted injury—principally,
three-quarters of a billion dollars spent providing social services to DACA
recipients—is too “attenuated” to support standing. Immigration Priorities,
599 U.S. at 680 n.3.
The government contends that Immigration Priorities “abrogates this
Court’s prior reliance on plaintiffs’ asserted social-services expenditures to
conclude that Texas had established a cognizable injury.” The argument
hinges on the interpretation of footnote 3 in Immigration Priorities. There,
the Court noted that “federal courts must remain mindful of bedrock Arti-
cle III constraints in cases brought by States against an executive agency or
officer.” Id. Because “federal policies frequently generate indirect effects
on state revenues or state spending,” the Court wrote, “when a State
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asserts . . . that a federal law has produced only those kinds of indirect effects,
the State’s claim for standing can become more attenuated.” Id. Thus, the
government argues, contra Texas II, whatever “indirect, incidental effects
that the DACA rule may have on plaintiffs are not judicially cognizable
injuries.”
Footnote 3 is tentative and equivocal, 20 so it is worth examining
closely. To support or perhaps explain its point, the Court cited three cases:
Massachusetts v. Laird, 400 U.S. 886 (1970); Florida v. Mellon, 273 U.S. 12,
16–18 (1927); and Lujan, 504 U.S. at 561–62.
The first case, Laird, resulted in a summary denial of Massachusetts’s
attempt to file a complaint against the Secretary of Defense “to obtain an
adjudication of the constitutionality of the United States’ participation in the
Indochina war.” Laird, 400 U.S. at 886 (Douglas, J., dissenting). The Court
gave no reason for its denial (the dissent suggests the Court might have
denied the case on political question grounds, not standing), so Laird’s
relevance to Texas’s challenge to DACA is itself quite attenuated. At the
very least, the Court’s citation to Laird does not come close to unequivocally
overruling our precedent.
In the second case, Florida, the state sought an injunction barring the
collection in Florida of inheritance taxes imposed by the federal Revenue Act
of 1926. 273 U.S. at 15. Florida alleged an injury “because the imposition of
the federal tax, in the absence of a state tax which may be credited, will cause
the withdrawal of property from the state with the consequent loss to the
_____________________
20
“States sometimes have standing to sue the United States.” A state’s “claim for
standing can become more attenuated.” “In short, none of the various theories of standing
asserted by the States in this case overcomes the fundamental Article III problem with this
lawsuit.” Immigration Priorities, 599 U.S. at 680 n.3 (emphases added).
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state of subjects of taxation.” Id. at 16. 21 The Court rejected that theory
because “the anticipated result is purely speculative, and, at most, only
remote and indirect,” thus concluding that “there [wa]s no substance in the
contention that the state has sustained, or is immediately in danger of sus-
taining, any direct injury as the result of the enforcement of the act in ques-
tion.” Id. at 18. Here, Texas’s injury is not speculative at all; the Private
Intervenors’ “own expert estimated that DACA recipients overall impose a
cost of over $250,000,000 on Texas per year and another $533,000,000
annually in costs to local Texas communities.” Dist. Ct. Op. 2021,
549 F. Supp. 3d at 594.
Finally, the Court noted Lujan, 504 U.S. at 561–62, presumably for its
discussion of how, where “a plaintiff’s asserted injury arises from the govern-
ment’s allegedly unlawful regulation (or lack of regulation) of someone else,”
the bar the plaintiff must meet to establish causation and redressability is
higher. In Texas II, we held that Texas could clear that bar, and our holding
is not disturbed here. Texas’s asserted injury does not arise solely from a
“lack of regulation” of DACA recipients (as did Texas’s challenge in Immi-
gration Priorities), but from the Executive Branch’s policy of non-prosecution
plus the conferral of benefits, a distinction recognized explicitly in Immigra-
tion Priorities, 599 U.S. at 683.
Read in context, then, footnote 3 of Immigration Priorities, like the
opinion itself, announces no broad new rule, and certainly not one that un-
_____________________
21
Florida also asserted that its citizens were “injured in such a way that the state
may sue in their behalf as parens patriae.” Florida, 273 U.S. at 16. The Court rejected that
theory because the Florida residents were “also citizens of the United States and subject
to its laws,” and so, in “respect of their relations with the federal government,” “‘it is the
United States, and not the state, which represents them as parens patriae.’” Florida,
273 U.S. at 18 (quoting Massachusetts v. Mellon, 262 U.S. 447, 485–86 (1923)). Here, Texas
does not rely on a parens patriae theory of standing.
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equivocally suggests that Texas’s asserted injuries are too indirect or attenu-
ated to support standing. 22 In short, because Immigration Priorities has not
unequivocally overruled our analysis of Texas’s injury in Texas II, “Texas
_____________________
22
Indeed, even setting Texas II aside, Texas’s asserted injury does not appear “too
attenuated” to constitute an injury in fact under settled law. Consider Department of Com-
merce v. New York, in which several states challenged the addition of a citizenship question
to the federal census. 588 U.S. 752, 758–59 (2019). The states contended that such a ques-
tion would “depress the census response rate and lead to an inaccurate population count,”
which would in turn lead to the states’ “qualifying for less federal funding if their popu-
lations are undercounted.” Id. at 767. The Supreme Court held that was “a sufficiently
concrete and imminent injury to satisfy Article III.” Id.
The injury Texas asserts here is no more attenuated. By conferring lawful pres-
ence, DACA makes recipients eligible for a variety of state and federal benefits, and both
parties’ experts agree that the costs borne by Texas result at least in part from the presence
of DACA recipients. See Dist. Ct. Op. 2021, 549 F. Supp. 3d at 593–94.
As in Department of Commerce, here “[t]he District Court concluded that the evi-
dence” “established a sufficient likelihood” that, were DACA recipients to leave, “Texas
would no longer be obligated to pay for those costs associated with DACA recipients’ enti-
tlement to social services,” which would necessarily “reduce some of the state’s financial
expenditures.” Dep’t of Com., 588 U.S. at 767 (first two quotes); Dist. Ct. Op. 2021, 549
F. Supp. 3d at 594 (final two quotes). Those costs, too, are thus “sufficiently concrete and
imminent” to constitute an injury in fact. Dep’t of Com., 588 U.S. at 767. Indeed, as we
have noted outside the context of DACA, a district court’s findings regarding education
and healthcare costs provide “strong bases for finding cognizable, imminent injury.” Texas
v. Biden, 10 F.4th 538, 547–48 (5th Cir. 2021) (per curiam).
Other courts have also recognized standing in related cases based on indirect fiscal
injuries. See, e.g., Regents of the Univ. of Cal. v. U.S. Dep’t of Homeland Sec., 279 F. Supp.
3d 1011, 1033–34 (N.D. Cal. 2018) (recognizing states’ standing to challenge the Trump
Administration’s DACA rescission on account of lost tax revenue and increased healthcare
costs), rev’d in part, vacated in part sub nom. Dep’t of Homeland Sec. v. Regents of the Univ. of
Cal., 591 U.S. 1 (2020); Cook County v. McAleenan, 417 F. Supp. 3d 1008, 1017 (N.D. Ill.
2019), aff’d sub nom. Cook County v. Wolf, 962 F.3d 208, 217 (7th Cir. 2020) (recognizing
the county’s standing to challenge the Trump Administration’s public-charge rule because
it could increase healthcare costs); see also Wolf, 962 F.3d at 235 (“Cook County has
standing” because “noncitizens who give up government-funded healthcare [as a result of
the challenged public-charge rule] are likely to rely on the county-funded emergency
room.”) (Barrett, J., dissenting).
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has satisfied the first standing requirement by demonstrating injury in fact.”
Texas II, 50 F.4th at 517.
2. Causation and Redressability
Texas also satisfied the second and third standing requirements—
traceability and redressability. 23 The costs DACA imposes on Texas consti-
tute an injury in fact, but to satisfy Article III, Texas must show that “a ruling
in favor of [Texas] would redress that harm.” Dep’t of Com. v. New York, 588
U.S. 752, 767 (2019). That is, in addition to showing injury, a “plaintiff must
also establish that the plaintiff’s injury likely was caused or likely will be
caused by the defendant’s conduct.” Alliance, 602 U.S. at 382.
Where the plaintiff is not the target of the challenged policy, “causa-
tion ordinarily hinges on the response of the regulated (or regulable) third
party to the government action or inaction—and perhaps on the response of
others as well.” Id. at 383 (cleaned up). Plaintiffs attempting to show causa-
tion generally cannot “rely on speculation about the unfettered choices made
by independent actors not before the courts,” but instead “must show that
the third parties will likely react in predictable ways that in turn will likely
injure the plaintiffs.” Id. (cleaned up). The causation requirement thus pre-
cludes purely speculative links, requiring a plaintiff to “show a predictable
chain of events leading from the government action to the asserted injury.”
Id. at 385.
Texas must demonstrate that, in the absence of DACA, at least some
DACA recipients would leave the state and thereby partially alleviate its
_____________________
23
Following Alliance, we consider both traceability and redressability as part of the
same analysis. See Alliance, 602 U.S. at 380 (“The second and third standing
requirements—causation and redressability—are often flip sides of the same coin.”
(quotations omitted)).
20
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injury. That is not a high bar; a plaintiff need only show that “a favorable
decision will relieve a discrete injury,” not “that a favorable decision will
relieve his every injury.” Massachusetts v. EPA, 549 U.S. 497, 525 (2007)
(quoting Larson v. Valente, 456 U.S. 228, 244 n.15 (1982)).
As the district court and this court have recognized, Texas has made
this showing by putting forward sufficient, unrebutted evidence to support
the “common-sense assertion” that, absent DACA, some recipients would
leave the United States. Dist. Ct. Op. 2021, 549 F. Supp. 3d at 595 n.25;
Texas II, 50 F.4th at 519–20. In challenging DACA, “Texas does not allege
a tax injury, let alone a generic one,” but instead “identifies expenditures in
providing emergency medical services, social services and public education
for illegal aliens” traceable to DACA. Texas II, 50 F.4th at 518. And “if
DACA were no longer in effect, at least some recipients would leave, and
their departure would reduce [Texas’s] costs for those individuals and their
families who depart with them.” Id. at 520. “Because Article III ‘requires
no more than de facto causality,’” Dep’t of Com., 588 U.S. at 768 (quoting
Block v. Meese, 793 F.2d 1303, 1309 (D.C. Cir. 1986)), Texas satisfies the
second and third standing requirements here.
Resisting that conclusion, the Private Intervenors contend that Brack-
een established a rule that injuries cannot be “fairly trace[d]” to a challenged
policy where those costs result from “unchallenged provisions that ‘operate
independently’ of [the challenged policy].” 599 U.S. at 296. In other words,
DACA merely confers lawful status, and the benefits that flow from lawful
status stem from “entirely separate statutes and regulations.” Ergo, under
Brackeen, Texas can no longer show causation.
But Brackeen merely restated the language of the pre-Texas II decision
in California v. Texas, 593 U.S. 659 (2021); it did not announce a new devel-
opment in standing doctrine. Further, in Brackeen, the Court noted that
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“Texas would continue to incur the complained-of costs even if it were
relieved of the duty” imposed by the challenged policy, undercutting Texas’s
traceability argument. 599 U.S. at 296. Here, though, the district court
found that Texas’s complained-of costs would at least partially decline were
it to obtain its sought-after relief. 24 Brackeen, then, no more negates our
obligation to follow Texas II than does Immigration Priorities.
Nor does Alliance, which the government and Private Intervenors also
contend renders Texas’s injuries too speculative to establish standing. 25
They rely on the statement in Alliance that it would be “flatly inconsistent
with Article III” to allow teachers in border states to challenge immigration
laws because those policies lead to overcrowded classrooms. Alliance,
602 U.S. at 392. Therefore, their theory runs, a state unhappy with federal
immigration policy must not have standing to sue either.
That contention fails because the causal chain between the challenged
policy and the asserted injury is far less attenuated here than in the teacher
_____________________
24
Dist. Ct. Op. 2023, 691 F. Supp. 3d at 779; see also Massachusetts, 549 U.S. at 526
(stating that standing is met where the complained-of harm “would be reduced to some
extent if petitioners received the relief they seek”).
25
In Alliance, the Court held that several pro-life doctors and associations who do
not prescribe or use mifepristone did not have standing to challenge the FDA’s 2016 and
2021 relaxations of mifepristone prescription requirements. 602 U.S. at 374. First, the
Court concluded that the plaintiffs could not show that the FDA’s actions caused or could
cause them conscience injuries in light of federal conscience protections. Id. at 390.
Second, the “various monetary and related injuries” the plaintiffs alleged they would “suf-
fer as a result of FDA’s actions” were too speculative to satisfy the causation requirement
because the plaintiffs presented no evidence “tending to suggest that FDA’s deregulatory
actions have both caused an increase in the number of pregnant women seeking treatment
from the plaintiff doctors and caused a resulting diversion of the doctors’ time and
resources from other patients.” Id. at 390–91. “[P]erhaps more to the point,” the Court
added, “the law has never permitted doctors to challenge the government’s loosening of
general public safety requirements simply because more individuals might then show up at
emergency rooms or in doctors’ offices with follow-on injuries.” Id. at 391.
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hypothetical. A border-state teacher would have a hard time demonstrating
with sufficient certainty that looser immigration policy would lead to more
school-age immigrants’ settling in her town and enrolling in her school or that,
if the policy were changed, those schoolchildren would then pack up and
leave. But here, Texas has provided sufficient evidence that DACA has
caused the harms it alleges and that those costs would be partially alleviated
if DACA were enjoined. Alliance thus does not unequivocally overrule
Texas II. 26
In sum, no Supreme Court decision since Texas II is a sufficiently
unequivocal overruling of that decision to overcome our rule of orderliness.
Because we have already held that Texas has standing to challenge DACA in
materially identical circumstances, we are bound to follow that ruling here.
C. Special Solicitude
We close by addressing one possible tension between Immigration
Priorities and our previous review of Texas’s standing in Texas II: the role of
“special solicitude” in state standing analysis. The government contends
that Texas II relied on special solicitude to justify Texas’s standing and that
Immigration Priorities interred the concept, so Texas II has been implicitly
overruled. 27 We disagree. Our holding in Texas II did not depend on special
_____________________
26
Though it goes more to injury in fact than causation, Texas’s asserted pocket-
book injury is also far more cognizable than are the doctors’ asserted conscience injuries in
Alliance: Although federal law “definitively protect[s] doctors from being required to per-
form abortions or to provide other treatment that violates their consciences,” Alliance,
602 U.S. at 387, here federal law exacerbates Texas’s asserted injury. See Texas II, 50 F.4th
at 517 (“Federal law requires the State to provide emergency Medicaid to noncitizens and
public education to all children, regardless of their immigration status.”).
27
See Immigration Priorities, 599 U.S. at 685 n.6 (noting that Massachusetts v. EPA
does not control the Court’s analysis); id. at 688–89 (Gorsuch, J., concurring) (suggesting
that because special solicitude has not “played a meaningful role” in the Supreme Court’s
decisions since Massachusetts, “it’s hard not to think, too, that lower courts should just
23
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solicitude, and we do not rely on it here. 28
Under Massachusetts v. EPA, states are considered “not normal liti-
gants for the purposes of invoking federal jurisdiction” and may be “entitled
to special solicitude in our standing analysis.” 549 U.S. at 518, 520. The
source of that favored treatment is murky, and judges and scholars seem to
agree that the meaning and continued vitality of special solicitude as a con-
cept are uncertain. 29 The general idea is that where a state has a “procedural
right” to challenge agency action and a “stake in protecting its quasi-
sovereign interests,” that state “is entitled to special solicitude in our stand-
ing analysis.” Id. at 520; see also Texas I, 809 F.3d at 151–52.
Applying that understanding in Texas II, we held that Texas war-
ranted special solicitude because the state met the two requirements Massa-
chusetts imposed. See 50 F.4th at 517. Specifically, “Texas warrants special
solicitude because of its procedural right under the APA to challenge DACA
and Texas’s quasi-sovereign interest in alien classification, an area in which
the State would like to, but cannot, regulate.” Id.
In Texas II, we did not explicitly address whether Texas could estab-
_____________________
leave that idea on the shelf in future ones”).
28
For this reason, we need not decide whether special solicitude as a concept has
been definitively interred. Cf. Kennedy v. Bremerton Sch. Dist., 597 U.S. 507, 534 (2022)
(suggesting that when the Supreme Court has “abandoned” a doctrinal test, district and
circuit courts are no longer bound to employ it).
29
See, e.g., Immigration Priorities, 599 U.S. at 688 (Gorsuch, J., concurring)
(“Before Massachusetts v. EPA, the notion that States enjoy relaxed standing rules ‘ha[d]
no basis in our jurisprudence.’” (quoting Massachusetts, 549 U.S. at 536) (Roberts, C.J.,
dissenting)); Netflix, Inc. v. Babin, 88 F.4th 1080, 1089 n.12 (5th Cir. 2023) (remarking that
“the ‘special solicitude’ once afforded to states under Massachusetts . . . seems to also be
falling out of favor with the Supreme Court”); Case Comment, California v. Texas,
135 Harv. L. Rev. 343, 350 (2021) (describing the “academic response to Massachusetts
v. EPA” as “muddled” and noting several possible understandings of special solicitude).
24
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lish standing only because of the special solicitude it warranted or whether
special solicitude was helpful but ultimately superfluous. “With special soli-
citude,” we wrote, “a state can establish redressability ‘without meeting all
the normal standards[,]’” as the state need only show that “‘there is some
possibility that the requested relief’ will reduce the harm.” Id. at 520 (quot-
ing Massachusetts, 549 U.S. at 517–18). Texas had asserted that “if DACA
were no longer in effect, at least some recipients would leave, and their depar-
ture would reduce the State’s Medicaid, social services and education costs
for those individuals and their families who depart with them.” Id. We thus
concluded that “[e]specially with the benefit of special solicitude, Texas has
established that rescinding DACA would redress its harm.” Id. (emphasis
added).
Given the use of the word “especially” instead of a phrase such as
“because of,” we do not read that passage to suggest that Texas satisfied the
redressability requirement solely thanks to special solicitude. Our under-
standing is buttressed by the fact that, irrespective of whether special soli-
citude is warranted, a plaintiff “must still satisfy the basic requirements of
standing.” 30 In other words, we understand Texas II to say that although
Texas’s standing may be a close call on account of redressability concerns,
redressability is nevertheless satisfied under normal standing requirements
and is clearly satisfied given the special solicitude Texas warrants. Therefore,
even assuming, arguendo, that Immigration Priorities dissolved the pillar of
special solicitude, our standing analysis in Texas II still is valid and thus
_____________________
30
Louisiana ex rel. Landry v. Biden, 64 F.4th 674, 684 (5th Cir. 2023); see also Mas-
sachusetts, 549 U.S. at 521; Arizona v. Biden, 31 F.4th 469, 476 (6th Cir. 2022) (noting that
special solicitude “does not allow [states] to bypass proof of injury in particular or Arti-
cle III in general”).
25
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controls. 31
* * * * *
To sum up: In Texas II, we held that Texas has standing to challenge
DACA. Under the rule of orderliness, we are bound to follow Texas II absent
an intervening change in the law that unequivocally overrules that decision.
The appellants urge that since Texas II, several Supreme Court cases have
pared back states’ capacities to establish standing to challenge federal poli-
cies. But none of those decisions unequivocally undermines our analysis in
Texas II, so its holding controls: Texas has standing to bring this suit.
IV. Cause of Action
“Because the states are suing under the APA, they must satisfy not
only Article III’s standing requirements, but an additional test: The interest
they assert must be arguably within the zone of interests to be protected or
regulated by the statute that they say was violated.” Texas I, 809 F.3d at 162
(cleaned up). That test “is not meant to be especially demanding.” Clarke
v. Secs. Indus. Ass’n, 479 U.S. 388, 399 (1987).
The test should be applied “in keeping with Congress’s ‘evident
intent’ when enacting the APA ‘to make agency action presumptively
reviewable,” and it “forecloses suit only when a plaintiff’s ‘interests are so
marginally related to or inconsistent with the purposes implicit in the statute
that it cannot reasonably be assumed that Congress intended to permit the
_____________________
31
See generally Katherine Mims Crocker, Not-So-Special Solicitude, 109 Minn. L.
Rev. 815, 821 (2024) (“At bottom, the concept [of special solicitude] appears to have
affected the outcome in few if any cases.”); see also id. at 884–85 (noting the reasons why
“special solicitude was not (or should not have been) dispositive” in Texas II).
26
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suit.’” 32 That “lenient approach is an appropriate means of preserving the
flexibility of the APA’s omnibus judicial-review provision, which permits suit
for violations of numerous statutes of varying character that do not them-
selves include causes of action for judicial review.” Lexmark Int’l, Inc. v.
Static Control Components, Inc., 572 U.S. 118, 130 (2014).
Texas need only show that it has an interest in the INA’s enforcement
and that its interest arguably falls within the zone of interests the INA aims
to advance. As with standing, our zone-of-interest analysis is subject to the
rule of orderliness, so we again hold that Texas has a cause of action to chal-
lenge DACA. We also reject the government’s independent argument that
the INA limits judicial review in this context to aliens and thus precludes
judicial review over this lawsuit.
A. Zone of Interests
In Texas I, we held that the “interests the states seek to protect fall
within the zone of interests of the INA” because Congress had “explicitly
allowed states to deny public benefits to illegal aliens.” 809 F.3d at 163. 33 The
_____________________
32
Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak, 567 U.S. 209,
215 (2012) (quoting Clarke, 479 U.S. at 399).
33
We did not consider the issue in Texas II because the panel concluded that the
government had not raised zone-of-interest objections at the district court level. Never-
theless, we noted that were we to exercise our discretion to consider the argument, we
would conclude that the states’ “objectives are consistent with the INA’s, so they pass the
lenient zone-of-interests test.” Texas II, 50 F.4th at 520–21. Specifically, we observed that
the INA was a “comprehensive federal statutory scheme for regulation of immigration and
naturalization” and that the states have an interest in seeing the INA enforced because the
INA “encompasses their concerns about the financial burdens of illegal immigration.” Id.
at 521 (quotations omitted from first quote).
On remand, the government contended that the Texas II panel was mistaken in its
belief that the government had not raised this issue earlier in the litigation. Because that
question is clearly controlled by Texas I, we need not resolve whether the government for-
feited its zone-of-interest argument.
27
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government contends that that conclusion “is inconsistent with the Supreme
Court’s affirmation in Immigration Priorities that a plaintiff lacks a cognizable
interest in the enforcement of the immigration laws against a third person.”
But as discussed above, Immigration Priorities was a consciously narrow opin-
ion that explicitly held out the DAPA and DACA suits as uncontrolled by its
decision. See Immigration Priorities, 599 U.S. at 683 (noting Regents and
Texas I as distinct from the Court’s analysis). Accordingly, nothing in Immi-
gration Priorities unequivocally overrules Texas I’s interpretation of the INA,
so our answer here must echo our conclusion there: “The interests the states
seek to protect fall within the zone of interests of the INA.” Texas I, 809 F.3d
at 163.
B. Jurisdiction Strip
The government also contends that the INA limits judicial review in
the context of this suit only to aliens, 8 U.S.C. § 1252(b)(9), (g), and thus
precludes judicial review under the APA. 34 That theory was raised and
_____________________
34
Section 1252(b)(9) reads,
With respect to review of an order of removal under subsection (a)(1), the
following requirements apply: Judicial review of all questions of law and fact,
including interpretation and application of constitutional and statutory pro-
visions, arising from any action taken or proceeding brought to remove an
alien from the United States under this subchapter shall be available only in
judicial review of a final order under this section. Except as otherwise pro-
vided in this section, no court shall have jurisdiction, by habeas corpus under
section 2241 of title 28 or any other habeas corpus provision, by section 1361
or 1651 of such title, or by any other provision of law (statutory or nonstatu-
tory), to review such an order or such questions of law or fact.
Section 1252(g) reads,
Except as provided in this section and notwithstanding any other provision of
law (statutory or nonstatutory), including section 2241 of Title 28, or any
other habeas corpus provision, and sections 1361 and 1651 of such title, no
court shall have jurisdiction to hear any cause or claim by or on behalf of any
alien arising from the decision or action by the Attorney General to commence
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rejected in Texas I and Regents and so similarly fails here.
The APA “embodies the basic presumption of judicial review to one
‘suffering legal wrong because of agency action, or adversely affected or
aggrieved by agency action within the meaning of a relevant statute,’ so long
as no statute precludes such relief or the action is not one committed by law
to agency discretion.” Abbott Lab’ys v. Gardner, 387 U.S. 136, 140 (1967)
(citation omitted) (quoting 5 U.S.C. § 702). That presumption applies not
just to an “agency action made reviewable by statute but also for review of
final agency action for which there is no other adequate remedy in a court.”
Id. (cleaned up) (noting 5 U.S.C. § 704). Therefore, “only upon a showing
of clear and convincing evidence of a contrary legislative intent should the
courts restrict access to judicial review.” Id. at 141 (quotations omitted).
The “targeted language” of § 1252(b)(9), the first statutory provision
invoked by the government, “is not aimed at this sort of case.” Regents,
591 U.S. at 19. Because the provision “does not present a jurisdictional bar
where those bringing suit are not asking for review of an order of removal, the
decision to seek removal, or the process by which removability will be
determined,” § 1252(b)(9) “is certainly not a bar where, as here, the parties
are not challenging any removal proceedings.” Id. (cleaned up).
The Supreme Court also dispatched with the government’s § 1252(g)
argument, a provision it deemed “similarly narrow” that could not support
the government’s “implausible” contention that it “imposes a general juris-
dictional limitation.” 35 The 1252(g) argument also runs headlong into
Texas I. Here, as there, the “United States relies on 8 U.S.C. § 1252(g) for
_____________________
proceedings, adjudicate cases, or execute removal orders against any alien
under this chapter.
35
Regents, 599 U.S. at 19 (quotations omitted).
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the proposition that the INA expressly prohibits judicial review.” 809 F.3d
at 164. But here, as there, the government’s broad reading is contrary to Reno
v. American–Arab Anti–Discrimination Committee, 525 U.S. 471 (1999)
(“AAADC”), “in which the Court rejected the unexamined assumption that
§ 1252(g) covers the universe of deportation claims—that it is a sort of
‘zipper’ clause that says ‘no judicial review in deportation cases unless this
section provides judicial review.’” 36
So the government fails in its attempt to re-launder an argument it has
already raised and lost. “Congress has expressly limited or precluded judicial
review of many immigration decisions, including some that are made in the
Secretary’s ‘sole and unreviewable discretion,’ but [DACA] is not one of
them.” Texas I, 809 F.3d at 164 (footnotes omitted).
V. Substantive Illegality
At last, we turn to the merits of Texas’s claim. Because the Final Rule
is materially identical to the 2012 Memorandum, the Final Rule substantively
violates the INA. The government’s arguments to the contrary, as it readily
acknowledges, are foreclosed. See Texas II, 50 F.4th at 526.
The INA “expressly and carefully provides legal designations allow-
ing defined classes of aliens to be lawfully present.” Texas I, 809 F.3d at 179
& n.162. In the INA, Congress enacted a “comprehensive federal statutory
scheme for regulation of immigration and naturalization” and “set the terms
and conditions of admission to the country.” Texas II, 50 F.4th at 521
(cleaned up). Because it chose not to include DACA recipients in that com-
prehensive scheme, “Congress’s rigorous classification scheme forecloses
the contrary scheme in the DACA Memorandum.” Id. at 526.
_____________________
36
Texas I, 809 F.3d at 164 (quoting AAADC, 525 U.S. at 482 (cleaned up)).
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No party contends that the Supreme Court or our en banc court has
ruled otherwise. Nor does any party contend that Congress has amended the
INA. 37 Though DHS promulgated a Final Rule between Texas II and this
case, the Final Rule is materially identical to the 2012 Memorandum. Absent
a relevant change in law, Texas II controls, meaning that DACA remains
“manifestly contrary to the [INA].” Id. at 528 (quotations omitted).
VI. Remedy
The government raises five challenges to the district court’s remedial
order vacating the Rule and enjoining DACA nationwide: first, that the APA
does not authorize vacatur of agency actions; second, that the district court
abused its discretion by not remanding the Final Rule to DHS; third, that
8 U.S.C. § 1252(f)(1) strips the district court of jurisdiction to enjoin and
vacate the Final Rule; fourth, that the district court erred by not severing for-
bearance from work authorization in its order of vacatur; and fifth, that
nationwide relief is overly broad. We address each argument in turn.
A. Vacatur
The government contends that the APA does not authorize vacatur of
agency action. But “[b]inding Fifth Circuit precedent recognizes this rem-
edy” and forecloses its argument. 38 “[T]he APA empowers and commands
courts to ‘set aside’ unlawful agency actions, allowing a district court’s vaca-
_____________________
37
See Jacobs, 548 F.3d at 378 (“Congress is presumed to be aware of court decisions
construing statutes and may, of course, amend a statute as a result.”).
38
Texas Med. Ass’n v. U.S. Dep’t of Health & Hum. Servs., 110 F.4th 762, 779 (5th
Cir. 2024) (describing the remedy of vacatur) (citing Data Mktg. P’ship, 45 F.4th at 856
n.2; Franciscan All., Inc. v. Becerra, 47 F.4th 368, 374–75 (5th Cir. 2022) (“Vacatur is the
only statutorily prescribed remedy for a successful APA challenge to a regulation.”)).
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tur to render a challenged agency action ‘void.’” 39
B. Remand Without Vacatur
The government next posits that the district court, instead of vacating
the Rule, should have remanded it to the agency without vacatur. We dis-
agree. Vacatur is the default remedy for violations under § 706(2). Data
Mktg. P’ship, 45 F.4th at 856 n.2. Remand without vacatur is limited to “rare
cases.” Chamber of Com. v. U.S. SEC, 88 F.4th 1115, 1118 (5th Cir. 2023)
(quotations omitted). It is appropriate only when two conditions are met:
“First, there must be a ‘serious possibility’ that the agency will be able to
correct the rule’s defects on remand,” and, second, when “vacating the
challenged action would produce ‘disruptive consequences.’” Id. (quoting
Texas II, 50 F.4th at 529). Remand without vacatur is thus inappropriate
where an unlawful final rule “suffers from a fundamental substantive defect
that the [agency] could not rectify on remand.” Rest. L. Ctr. v. U.S. Dep’t of
Lab., 120 F.4th 163, 177 (5th Cir. 2024) (on pet. for reh’g).
DHS does not address how it would correct any of the Rule’s defects
on remand. But even if it did, “DACA’s deficiencies are [so] severe . . . [that
t]here is no possibility that DHS could obviate these conflicts on remand,”
given that the Final Rule “contradicts significant portions of the INA.”
Texas II, 50 F.4th at 529. “[I]n light of DACA’s critical substantive failings,
the district court was well within its discretion to order vacatur.” Id. at 530.
C. Section 1252(f)(1)
The government attempts to evade review entirely by theorizing that
8 U.S.C. § 1252(f)(1) strips the district court of jurisdiction to enjoin and
_____________________
39
Id. (cleaned up).
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vacate the Rule. 40 But we rejected that theory in Texas II, see 50 F.4th at 529,
and that holding controls. 41
D. Severability
The government avers that the district court erred when it vacated the
entire Rule instead of severing the Rule’s forbearance provisions from the
work authorization provisions and vacating only the latter. We agree.
In the context of agency rulemaking, a two-prong inquiry guides our
severability analysis: “Whether the offending portion[s] of a regulation [are]
severable depends upon the intent of the agency and upon whether the
remainder of the regulation could function sensibly without the stricken pro-
vision[s].” 42 We “adhere to the text of a severability clause in the absence of
extraordinary circumstances.” Nat’l Ass’n of Mfrs. v. U.S. SEC, 105 F.4th
802, 815 (5th Cir. 2024) (cleaned up).
The Final Rule includes a severability clause providing that if any pro-
vision of the Rule is held “invalid and unenforceable in all circumstances,”
then that “provision shall be severable from the remainder of this subpart
and shall not affect the remainder thereof.” 8 C.F.R. § 236.24(a). In promul-
gating the Rule, the Secretary went one step further and explained that “[t]he
provisions in § 236.21(c)(2) through (4) and § 274a.12(c)(14) and
_____________________
40
Section 1252(f)(1) is inapplicable to vacatur because it is a “limit on injunctive
relief,” and vacatur is different from injunctive relief. Texas II, 50 F.4th at 528.
41
In Texas II, we held that § 1252(f)(1) did not apply to the district court’s enjoin-
ing of DACA because, though the district court’s judgment “vacate[d] the DACA Memo-
randum[,]” it “stay[ed] the vacatur as to those who have been granted DACA status” so
that “[n]o present DACA recipient [wa]s subject to removal under the district court’s
existing judgment.” Id. at 529.
42
MD/DC/DE Broads. Ass’n v. F.C.C., 236 F.3d 13, 22 (D.C. Cir. 2001) (citing
K Mart Corp. v. Cartier, Inc., 486 U.S. 281, 294 (1988)).
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274a.12(c)(33) [conferring benefits] are intended to be severable from . . . any
grant of forbearance from removal resulting from this subpart.” Id.
§ 236.24(b). Indeed, the only change from the Memorandum to the Rule is
the inclusion of the severability clause.
As for the first condition─the intent of the agency─the district court
concluded that “DHS would not have adopted DACA without the benefits
provisions.” Dist. Ct. Op. 2023, 691 F. Supp. 3d at 789. That conclusion,
however, unduly ignores the severability clause. The district court justified
its conclusion by noting that “DHS does not need the Final Rule to exercise
forbearance as to the DACA recipient population,” meaning “forbearance
with no benefits would be superfluous.” Id. But DACA has ramifications
beyond DHS: “The DACA policy allows DHS, in line with its particular
expertise, to proactively identify noncitizens who may be a low priority for
removal should [Immigrations and Customs Enforcement (“ICE”)] or [U.S.
Customs and Border Protection (“CBP”)] encounter them in the field.” 87
Fed. Reg. at 53,178. This means that, “once a valid DACA recipient is
confirmed, ICE or CBP may be able to make a determination without
necessitating further investigation.” Id. So, contra the district court, we
cannot conclude that a policy of forbearance without the other aspects of
DACA would be superfluous. Nor do we see any reason to disregard the
severability clause.
As for the second condition─whether the surviving provisions could
function without the stricken ones─the district court concluded that the
Final Rule would not “function sensibly” in the absence of the benefits pro-
vision. Dist. Ct. Op. 2023, 691 F. Supp. 3d at 792. The court reasoned that
DACA is “primarily a benefits rule.” Id. at 793. But that reasoning says
nothing about whether DACA could function as a forbearance-only policy or
whether DHS intended DACA potentially to function as a forbearance-only
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policy. Though the Supreme Court has referred to forbearance as “the heart
of DACA,” it also recognized that “forbearance and benefits are legally dis-
tinct and can be decoupled.” Regents, 591 U.S. at 28, 30. Lawful presence
“is not the same as forbearance nor does it flow inexorably from forbear-
ance.” Id. at 26 n.5.
Moreover, though DACA is primarily a benefits rule, the Department
intended for the Rule also to function as a forbearance policy. 43 The govern-
ment maintains that a forbearance-only policy “would confer a range of bene-
fits to DHS, while also conferring benefits to DACA recipients and their fam-
ilies, in the form of increased security, reduced fear and anxiety, and associ-
ated values.” 87 Fed. Reg. at 53,293. As the government explains, some of
the benefits of forbearance to DHS include streamlining higher-priority cases
through busy immigration courts and avoiding the costs of enforcement
actions against low-priority noncitizens.
Because DHS intended the aspects of DACA to be severable and to
function independently from one another, the district court erred by not sev-
ering the forbearance provisions from the work-authorization provisions.
E. Nationwide Injunction
The government contends that the nationwide scope of the injunction
is overly broad and requests that we limit relief to Texas, the only state that
has demonstrated injury. We agree.
Remedies must be “tailored to redress” a plaintiff’s injury, Gill v.
Whitford, 585 U.S. 48, 73 (2018), and equitable remedies such as injunctions
_____________________
43
See 87 Fed. Reg. at 53,248–49 (“[F]orbearance remains workable and desirable
without work authorization, and DHS would have adopted the forbearance portion of the
policy even if it did not believe that the work authorization portion of the rule were legally
authorized.”).
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should not provide more relief than “necessary to give the prevailing party
the relief to which [it] is entitled,” Hernandez v. Reno, 91 F.3d 776, 781 & n.16
(5th Cir. 1996). We must consider the “effect on each party of the granting
or withholding of the requested relief.” 44 Though universal relief may be an
appropriate remedy in some circumstances, “nationwide injunctions are not
required or even the norm.” 45 Instead, “injunctive relief should be no more
burdensome to the defendant than necessary to provide complete relief to the
plaintiffs.” Califano v. Yamasaki, 442 U.S. 682, 702 (1979).
Because Texas is the only plaintiff that has demonstrated or even
attempted to demonstrate an actual injury, and because that injury is fully
redressable by a geographically limited injunction, we narrow the scope of
injunction to Texas. Though we have previously upheld nationwide injunc-
tions because of the interest of uniformity in immigration laws, 46 the balance
of the equities outweighs that interest here. 47
Just one state, Texas, demonstrated an actual injury caused by the
Final Rule. See supra Part III. New Jersey intervened to defend DACA, and
22 states and the District of Columbia also urge this court to preserve the
program. 48 Further, the injury that Texas asserts—health, education, and
_____________________
44
Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 24 (2008) (quoting Amoco Prod.
Co. v. Vill. of Gambell, 480 U.S. 531, 542 (1987)).
45
Mock v. Garland, 75 F.4th 563, 587 (5th Cir. 2023) (cleaned up).
46
See Texas I, 809 F.3d at 187–88; Texas II, 50 F.4th at 531.
47
DACA’s contravention of federal law is reason to hold DACA unlawful. See
supra Part V. But for remedial purposes, our focus should be on Texas, and remedying its
harm does not require nationwide relief. See Gill, 585 U.S. at 73; Winter, 555 U.S. at 32
(“An injunction is a matter of equitable discretion; it does not follow from success on the
merits as a matter of course.”).
48
See Amicus Brief of 22 States and the District of Columbia at 3–10; see also id. at
1 (“Over 60 percent of all current DACA recipients (nearly 330,000 individuals) live in
amici States, where they are valued members of our communities and vital participants in
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other social-service-related expenses for the DACA population—can be
redressed by a more limited injunction that does not trigger the costs that
New Jersey and the other amici states aver they would incur if the nationwide
injunction were upheld. 49 An injunction limited to Texas alone is better
tailored to Texas’s asserted injury. Cf. Gill, 585 U.S. at 73. We accordingly
narrow the scope of the injunction to Texas.
VII. Stay
The issuance of a stay is an “exercise of judicial discretion,” and
whether a stay should be granted depends “upon the circumstances of the
particular case.” Nken v. Holder, 556 U.S. 418, 433 (2009) (quoting Virginian
R. Co. v. United States, 272 U.S. 658, 672–73 (1926)). “‘A stay is not a matter
of right, even if irreparable injury might otherwise result.’” Id. The burden
is on the requesting party to show that the “circumstances justify an exercise
of [this court’s] discretion.” Id. at 434. Four factors guide our decision:
(1) whether the stay applicant has made a strong showing that
he is likely to succeed on the merits; (2) whether the applicant
will be irreparably injured absent a stay; (3) whether issuance
of the stay will substantially injure the other parties interested
in the proceeding; and (4) where the public interest lies.
_____________________
the workforce who contribute to the tax base.”).
49
For example, New Jersey avers that DACA recipients contribute an estimated
$18.7 million per year in income tax. See also 87 Fed. Reg. at 53,270 n.334 (noting that
“‘States and local governments could lose $1.25 billion in tax revenue each year’” (quoting
Regents, 591 U.S. at 31)). Texas posits that without nationwide relief, DACA recipients
would be free to move around the country, undermining uniformity in immigration law.
But as far as Texas is concerned, a narrowed injunction can only help further redress
Texas’s injury by providing an incentive for DACA recipients to move to other states not
subject to the injunction. Considering the “effect on each party of the granting or with-
holding of the requested relief,” Winter, 555 U.S. at 24, a narrowed injunction can satisfy
Texas’s injury without unduly aggravating New Jersey’s.
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Id. at 426 (quoting Hilton v. Braunskill, 481 U.S. 770, 776 (1987)).
A stay from this court may be called for when we are “faced with
serious legal questions that merit careful scrutiny and judicious review.”
Campaign for S. Equality v. Bryant, 773 F.3d 55, 57 (5th Cir. 2014).
A “movant ‘need only present a substantial case on the merits when a serious
legal question is involved and show that the balance of equities weighs heavily
in favor of granting the stay.’” Id. (quoting Ruiz v. Estelle, 650 F.2d 555, 565
(5th Cir. Unit A June 1981)).
Though Texas has succeeded on the merits, our previous decision to
maintain the stay─not to mention the immense reliance interests that DACA
has created─guide us to preserve the stay as to the existing applicants.
“DACA has had profound significance to recipients and many others in the
[now-twelve] years since its adoption.” Texas II, 50 F.4th at 531. “Given the
uncertainty of final disposition and the inevitable disruption that would arise
from a lack of continuity and stability,” we therefore preserve the stay as to
existing recipients. Id. (cleaned up).
* * * * *
The injunction is AFFIRMED in part and MODIFIED in part.
We limit injunctive relief, including the effectiveness of the vacatur of the
Final Rule, to Texas, and require such relief to heed DACA’s severability
provision. This matter is REMANDED for further proceedings as the
district court may find appropriate. The request for a stay is GRANTED
pending a further order of this court or the Supreme Court. We impose no
restriction on the matters that the district court, in its wisdom, may address
on remand, and we express no view on what decisions it should make.
38