Petition for Writ of Certiorari — Donald J. Trump, President of the United States, et al., Petitioners v. National Association for the Advancement of Colored People, et al.

Supreme Court briefNov 5, 2018

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Text

No.

In the Supreme Court of the United States

DONALD J. TRUMP, PRESIDENT OF THE UNITED STATES,

ET AL., PETITIONERS

NATIONAL ASSOCIATION FOR THE ADVANCEMENT

OF COLORED PEOPLE, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

BEFORE JUDGMENT TO THE UNITED STATES

COURT OF APPEALS FOR THE D.C. CIRCUIT

APPENDIX TO THE PETITION FOR A WRIT OF

CERTIORARI BEFORE JUDGMENT

NOEL J. FRANCISCO

Solicitor General

Counsel of Record

JOSEPH H. HUNT

Assistant Attorney General

JEFFREY B. WALL

Deputy Solicitor General

HASHIM M. MOOPPAN

Deputy Assistant Attorney

General

JONATHAN Y. ELLIS

Assistant to the Solicitor

General

MARK B. STERN

ABBY C. WRIGHT

THOMAS PULHAM

Attorneys

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs@usdoj.gov

(202) 514-2217

TABLE OF CONTENTS

Page

Appendix A — District court memorandum opinion

(Apr. 24, 2018) .............................................. 1a

Appendix B — District court order (Apr. 24, 2018) ............ 75a

Appendix C — District court order (Apr. 24, 2018) ............ 77a

Appendix D — District court memorandum opinion

(Aug. 3, 2018) ............................................. 80a

Appendix E — District court order (Aug. 3, 2018) ............ 110a

Appendix F — Notice of appeal (Aug. 6, 2018) .................. 112a

Appendix G — Notice of appeal (Aug. 6, 2018) .................. 114a

(I)

APPENDIX A

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

Civil Action No. 17-1907 (JDB)

NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF

COLORED PEOPLE, ET AL., PLAINTIFFS

DONALD J. TRUMP, ET AL., DEFENDANTS

Civil Action No. 17-2325 (JDB)

TRUSTEES OF PRINCETON UNIVERSITY, ET AL.,

PLAINTIFFS

UNITED STATES OF AMERICA, ET AL., DEFENDANTS

Filed: Apr. 24, 2018

MEMORANDUM OPINION

These cases present an array of administrative and

constitutional challenges to the Department of Homeland Security’s (“DHS”) rescission of the Deferred

Action for Childhood Arrivals (“DACA”) program.

Though the government disputes these challenges on

the merits, its primary defenses concern the Court’s

authority to hear the cases: the government contends

that most plaintiffs lack standing, that the Immigration

and Nationality Act (“INA”) deprives the Court of

subject-matter jurisdiction, and that the Department’s

(1a)

decision to rescind DACA is not subject to review under the Administrative Procedure Act (“APA”) because

it was committed to agency discretion by law. The

government has moved to dismiss the complaint in its

entirety, and plaintiffs have moved for summary judgment only on their APA claims.

These are just two of a series of challenges to the

September 2017 rescission of DACA that have already

been before several district courts, two circuit courts of

appeals, and the Supreme Court on two occasions. At

this time, two preliminary injunctions are in place that

require DHS to accept applications for the renewal of

DACA benefits, but not to accept new DACA applications. Here, through their pending motions, plaintiffs

seek permanent injunctive relief, although only on

their APA claims. And the relief they seek would

reach new as well as renewal DACA applications.

For the reasons that follow, the Court concludes

that it has both jurisdiction and statutory authority to

hear plaintiffs’ APA and constitutional claims. The

Court further concludes that, under the APA, DACA’s

rescission was arbitrary and capricious because the

Department failed adequately to explain its conclusion

that the program was unlawful. Neither the meager

legal reasoning nor the assessment of litigation risk

provided by DHS to support its rescission decision is

sufficient to sustain termination of the DACA program.

Thus, plaintiffs’ motion for summary judgment will be

granted in part, and the decision to rescind DACA will

be vacated and remanded to DHS. Vacatur of DACA’s

rescission will mean that DHS must accept and process

new as well as renewal DACA applications. The

Court will stay its order of vacatur for ninety days,

however, to allow the agency an opportunity to better

explain its rescission decision.

BACKGROUND

I. THE IMPLEMENTATION AND RESCISSION OF DACA

Deferred Action for Childhood Arrivals

In 2012, then-Secretary of Homeland Security Janet

Napolitano issued a memorandum establishing the

DACA program, which allowed certain undocumented

aliens 1 who had been brought to the United States as

children to be treated as low priorities for removal

under the federal immigration laws. See AR 1. 2 According to the Secretary’s memorandum (the “DACA

Memo”), these young people generally “lacked the intent to violate the law” when they entered the United

States as children and, in many cases, “kn[e]w only this

country as home” and had “contributed to [the] country

in significant ways.” AR 1-2. DACA was therefore

undertaken as “an exercise of . . . prosecutorial

Some courts, including the Supreme Court, have referred to

aliens who are unlawfully present in the United States as “illegal”

instead of “undocumented.” See, e.g., Texas v. United States,

809 F.3d 134, 148 n.14 (5th Cir. 2015) (explaining that this “is the

term used by the Supreme Court in its latest pronouncement pertaining to this area of the law” (citation omitted)); but see Mohawk

Indust., Inc. v. Carpenter, 558 U.S. 100, 103 (2009) (using the term

“undocumented immigrants”). Because both terms appear in the

record materials here, and because, as at least one court has noted,

“there is a certain segment of the population that finds the phrase

‘illegal alien’ offensive,” Texas v. United States, 86 F. Supp. 3d 591,

605 n.2 (S.D. Tex. 2015), the Court will use the term “undocumented.”

Citations to “AR” refer to the administrative record. See

Joint Appendix [ECF No. 60].

discretion” to “ensure that our enforcement resources

are not expended on these low priority cases.” AR 1.

DACA was available to any undocumented alien

who: (1) came to the United States when she was under the age of sixteen; (2) had lived in the United

States continuously since at least June 15, 2007; (3) was

enrolled in school or had graduated from high school or

been honorably discharged from the military; (4) had

not been convicted of certain criminal offenses and

posed no threat to national security or public safety;

and (5) was under the age of thirty. AR 1. Aliens who

met these criteria were eligible for renewable, two-year

grants of “deferred action” on their removal from the

United States. AR 2-3; see 8 C.F.R. § 274a.12(c)(14)

(defining deferred action as “an act of administrative

convenience to the government which gives some [removal] cases lower priority”). As the DACA Memo was

careful to point out, however, the program “confer[red]

no substantive right, immigration status or pathway to

citizenship,” as “[o]nly the Congress, acting through its

legislative authority, can confer these rights.” AR 3.

Individuals who received deferred action under DACA

were also eligible for a host of other benefits under preexisting statutes and DHS regulations. These benefits

included work authorization, 8 C.F.R. § 274a.12(a)(11),

social security numbers, id. § 1.3(a)(4)(vi), advance parole

(i.e., preauthorization to travel to the United States

without a visa), id. § 212.5, and a limited class of public

assistance, such as state and federal aid for medical

emergencies, 8 U.S.C. §§ 1611(b)(1), 1621(b)(1). Benefits like these allowed DACA recipients to work, travel

abroad, access credit, and otherwise lead productive

lives during their periods of deferred action.

To be considered for deferred action under DACA,

an applicant had to provide DHS with certain identifying information, including her name, mailing address,

and contact information. See Decl. of Maria De La

Cruz Perales Sanchez (“Perales Decl.”) [ECF No. 28-8]

¶ 11; see also Form I-821D, U.S. Citizenship and Immigration Servs., Consideration for Deferred Action

for Childhood Arrivals, https://www.uscis.gov/i-821d.

Although many applicants feared that this information

would later be used to initiate removal proceedings

against them, see Perales Decl. ¶¶ 10, 24, the Department assured applicants that their information would

in most cases be “protected from disclosure to [U.S.

Immigration and Customs Enforcement (“ICE”)] and

U.S. Customs and Border Protection (CBP) for the

purpose of immigration enforcement proceedings.”

See U.S. Citizenship and Immigration Servs., Instructions for Consideration of Deferred Action for Childhood Arrivals, https://www.uscis.gov/i-821d. Relying on

these representations, hundreds of thousands of undocumented aliens applied for and received deferred action

under the DACA program. See, e.g., Perales Decl. ¶ 10;

Decl. of John Doe #1 ¶ 6; Decl. of John Doe #2 ¶ 5.

By late 2017, nearly 800,000 individuals had been granted

deferred action under DACA. AR 242.

Deferred Action for Parents of Americans

Two years after DACA’s implementation, DHS issued a second memorandum, this time purporting to

establish a deferred-action program called Deferred

Action for Parents of Americans (“DAPA”). AR 37-41.

As its name suggests, DAPA would have offered deferred action to parents of U.S. citizens or lawful permanent residents who were themselves unlawfully

present in the United States. 3 AR 40-41. The DAPA

memorandum also purported to expand the DACA program in certain respects: it would have removed the

thirty-year age cap, made the deferred-action grants

last for three years instead of two, and required that an

alien need only have been present in the United States

since January 1, 2010 to be eligible. AR 39-40.

Before DAPA took effect, a coalition of states, led

by Texas, sued to block its implementation on grounds

that it violated both the APA and the Take Care Clause

of the Constitution. See Texas, 86 F. Supp. 3d at 604

& n.1, 607 (citing U.S. Const. art. II, § 3). The district

court granted the states’ motion for a preliminary

injunction, concluding that they were likely to succeed

on their procedural APA claim that DAPA (including

its expansion of DACA) should have been promulgated

using notice and comment. Id. at 671-72; see 5 U.S.C.

§ 553. In part, this was because the Department’s

implementation of DACA suggested that DAPA would

not “genuinely leave[] the agency and its employees

free to exercise discretion.” Texas, 86 F. Supp. 3d at

604 at 670 (emphasis, alterations, and internal quotation marks omitted). The district court found that

only about 5% of all DACA applications had been denied, and the government could not say how many of

DAPA would have applied to any alien who: (1) had a son or

daughter who was a U.S. citizen or lawful permanent resident;

(2) had continuously resided in the United States since before

January 1, 2010; (3) was physically present in the United States

both on November 20, 2014 and the date of her application; (4) had

no lawful basis to be present in the United States on November 20,

2014; (5) did not meet certain enforcement priorities; and (6) did

not otherwise raise concerns that would make deferred action inappropriate in the agency’s discretion. See AR 40.

those had been denied for discretionary reasons. Id.

at 609. This led the court to conclude that the DAPA

Memo’s suggestion that immigration officers could exercise case-by-case discretion was “merely pretext.” Id.

at 669 n.101; see Texas, 809 F.3d at 173 (agreeing that

although “[t]he DACA and DAPA Memos purport

to grant discretion, . . . there was evidence from

DACA’s implementation that DAPA’s discretionary language was pretextual”).

The Fifth Circuit affirmed, holding that the states

had demonstrated a likelihood of success on the merits

not only of their procedural APA claim, but also on

their substantive APA claim, because DAPA seemed to

conflict with the INA’s “intricate process for illegal

aliens to derive a lawful immigration classification from

their children’s immigration status.” 4 Texas, 809 F.3d

at 179. But the court expressly declined to address

the states’ constitutional challenges. See id. at 146 n.3

(finding it “unnecessary” to address those claims “at this

early stage of the proceedings”). It also rejected the

government’s threshold arguments—similar to the ones

offered here—that the states lacked standing, see id. at

150-63, that the INA deprived the court of subjectmatter jurisdiction, see id. at 164-65, and that DAPA’s

implementation was unreviewable under the APA, see

id. at 165-72. 5 The government petitioned for certioAccording to the Fifth Circuit, under the INA, the parent must

generally “(i) have a U.S. citizen child who is at least twenty-one

years old, (ii) leave the United States, (iii) wait ten years, and then

(iv) obtain one of the limited number of family-preference visas

from a United States consulate.” Texas, 809 F.3d at 179-80.

All parties agreed that DAPA was “committed to agency discretion by law,” 5 U.S.C. § 701(a)(2), to the extent that it “in4

rari, and in June 2016, an eight-Justice Supreme Court

affirmed the Fifth Circuit’s judgment by an equally

divided vote. See United States v. Texas, 136 S. Ct.

2271 (2016) (mem).

On January 20, 2017, President Donald J. Trump

was sworn into office, and his nominee for Secretary of

Homeland Security, John F. Kelly, was confirmed that

same day. Six months later, Secretary Kelly issued a

memorandum rescinding DAPA, including its expansion of DACA, but leaving the original DACA program

in place. AR 235-236. The Texas plaintiffs voluntarily dismissed their challenge to DAPA a few months

later. See Pls.’ Stipulation of Voluntary Dismissal,

Texas v. United States, No. 14-CV-254 (S.D. Tex. Sep.

12, 2017), ECF No. 473.

The Rescission of DACA

On September 5, 2017, three months after DAPA’s

rescission, then-Acting Secretary of Homeland Security

Elaine C. Duke issued a five-page memorandum rescinding DACA (the “Rescission Memo”). 6 See AR 252-56.

volve[d] the Secretary’s decision—at least temporarily—not to

enforce the immigration laws as to a class of what he deems to be

low-priority illegal aliens,” Texas, 809 F.3d at 166 (“[Plaintiffs]

have not challenged the priority levels [the Secretary] has established, and neither the [district court’s] preliminary injunction nor

compliance with the APA requires the Secretary to remove any

alien or to alter his enforcement priorities”). But the Fifth Circuit

nonetheless found DAPA to be reviewable because it was “much

more than nonenforcement: [i]t would affirmatively confer ‘lawful

presence’ and associated benefits on a class of unlawfully present

aliens.” Id.

Secretary Kelly had since been appointed to serve as President

Trump’s chief of staff.

The Rescission Memo began by canvassing the procedural history of the Texas litigation, and then noted

that “[a]lthough the original DACA policy was not challenged in [that] lawsuit, both the district and appellate

court decisions relied on factual findings about the

implementation of the 2012 DACA memorandum.”

AR 253. Specifically, the memorandum noted that

“[t]he Fifth Circuit agreed with the lower court that

DACA decisions were not truly discretionary,” and that

“[b]oth the district court and the Fifth Circuit concluded that implementation of the program did not

comply with the [APA] because the Department did not

implement it through notice-and-comment rulemaking.”

AR 253-54.

The memorandum also stated that in June 2017, after DAPA had been rescinded but before the Texas

litigation was voluntarily dismissed, Texas and the

other state plaintiffs in that case had sent a letter to

Attorney General Jeff Sessions threatening to challenge DACA in court unless he rescinded the program

by September 5, 2017. AR 254; see AR 238-240 (Texas’s demand letter). Attorney General Sessions then

sent a one-page letter to Acting Secretary Duke (the

“Sessions Letter”) instructing her to rescind DACA.

AR 251. The Sessions Letter explained that the program had been “effectuated by the previous administration through executive action, without proper statutory

authority and . . . after Congress’ repeated rejection

of proposed legislation that would have accomplished a

similar result,” and that “[s]uch an open-ended circumvention of immigration laws was an unconstitutional

exercise of authority by the Executive Branch.” Id.

The letter also noted that because DACA suffered from

“the same legal and constitutional defects that the

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courts recognized as to DAPA, it is likely that potentially imminent litigation would yield similar results

with respect to DACA.” Id. The letter instructed

Acting Secretary Duke to “consider” implementing “an

orderly and efficient wind-down process” for the program. Id.

In light of the Texas litigation and the Sessions

Letter, the Rescission Memo concluded, “it is clear that

the . . . DACA program should be terminated.” AR

255. Given “the complexities associated with winding

down the program,” however, the Department decided

to “provide a limited window in which it will adjudicate

certain requests for DACA and associated applications.”

Id. Thus, the Department would adjudicate any properly filed DACA applications that were pending as of

September 5, 2017, as well as any new applications for

the renewal of DACA benefits that were filed on or

before October 5, 2017 by persons whose benefits were

set to expire on or before March 5, 2018. It would also

honor (in most cases) existing grants of deferred action, work authorization, and advance parole. But it

would reject all other DACA applications, including

any initial applications filed after September 5, 2017,

and all pending and future applications for advance

parole under the DACA program. Effectively, then,

DACA benefits were made unavailable to any alien who

had not already applied, and existing DACA grants

would be allowed to expire permanently beginning in

March 2018. Finally, like the earlier DACA and

DAPA memorandums, the Rescission Memo stated

that it “is not intended to, does not, and may not be

relied upon to create any right or benefit, substantive

or procedural, enforceable at law by any party in any

administrative, civil, or criminal matter.” AR 256.

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II. LEGAL CHALLENGES TO DACA’S RESCISSION

Since September 2017, legal challenges to DACA’s

rescission have been filed in federal district courts

throughout the country. Two of these challenges have

made their way to the federal courts of appeals, and

one has been to the Supreme Court. Because these

challenges generally involve similar administrative and

constitutional claims, the Court will not address the

plaintiffs’ assertions in each case in detail. Nevertheless, a brief overview of this pending litigation landscape will be useful to understand the state of DACA’s

rescission today. 7

Regents of the University of California v. DHS

The first set of challenges to DACA’s rescission was

filed in September 2017 in federal district court in

California. See Regents of the Univ. of Cal. v. U.S.

Dep’t of Homeland Sec., 279 F. Supp. 3d 1011, 1026

(N.D. Cal. 2018). The plaintiffs in those cases are the

University of California, the State of California and

several other states, a group of individual DACA recipients, two California municipalities, and a labor union.

See id. Though not formally consolidated, the cases

were all assigned to U.S. District Judge William H.

Alsup. See Case Management Scheduling Order, Regents, No. 17-5211 (N.D. Cal. Sept 22, 2017), ECF No. 49.

Shortly after the actions were filed, the government

filed an administrative record consisting of “fourteen

documents comprising 256 pages of which 187 consisted

One case, Park v. Sessions, No. 17-cv-1332 (E.D. Va. filed Nov.

21, 2017), was dismissed pursuant to a stipulation by all parties on

March 1, 2018, before any relief was granted. The Court will not

discuss that case further.

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of published opinions from the DAPA litigation.” Regents, 279 F. Supp. 3d at 1028. “All non-public materials, some eighty-four documents, actually reviewed

by the Acting Secretary remained withheld as privileged.” Id. (citation omitted). The district court ordered the government to complete the record, denying

many of the government’s claims of privilege. Id. at

1028-29. The government petitioned the Ninth Circuit for a writ of mandamus, but the court of appeals

denied the petition. See In re United States, 875 F.3d

1200 (9th Cir. 2017). The government then sought the

same relief from the Supreme Court, which construed

the government’s mandamus petition as a petition for a

writ of certiorari, granted it, vacated the Ninth Circuit’s order, and directed the district court to “first resolve[] the Government’s threshold arguments,” since

those arguments, “if accepted, likely would eliminate

the need for the District Court to examine a complete

administrative record.” In re United States, 138 S. Ct.

443, 444-45 (2017) (per curiam).

While the litigation over the administrative record

was pending, the plaintiffs filed a motion for preliminary injunctive relief, and the government moved to

dismiss the plaintiffs’ complaints both for lack of jurisdiction under Federal Rule of Civil Procedure 12(b)(1)

and for failure to state a claim under Rule 12(b)(6).

See Regents, 279 F. Supp. 3d at 1029. Then, following

the Supreme Court’s instruction to first address the

government’s threshold arguments, the district court

denied the government’s Rule 12(b)(1) motion and

granted the plaintiffs’ motion for a preliminary injunction. Id. at 1036-37. The injunction directed DHS to

resume accepting applications for the renewal of DACA

benefits, although it did not require the agency to ac-

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cept new DACA applications or to afford current DACA

beneficiaries advance parole. See id. at 1048-49.

In a separate order entered a few days later, the

district court denied the government’s Rule 12(b)(6)

motion except as to the plaintiffs’ notice-and-comment

and Regulatory Flexibility Act claims. See Regents of

the Univ. of Cal. v. U.S. Dep’t of Homeland Sec.,

No 17-CV-05211, 2018 WL 401177, at *2 (N.D. Cal. Jan.

12, 2018). The government appealed both orders, and

the Ninth Circuit set an expedited briefing schedule.

See Order, Regents of the Univ. of Cal. v. U.S. Dep’t of

Homeland Sec., No. 18-15068 (9th Cir. Jan. 17, 2018),

ECF No. 2. The government also petitioned the Supreme Court for a writ of certiorari before judgment,

but the Supreme Court denied the petition. See Order, Dep’t of Homeland Sec. v. Regents of the Univ. of

Cal., No. 17-1003 (U.S. Feb. 26, 2018). The government’s appeal is currently pending before the Ninth

Circuit.

Batalla Vidal v. Duke

The second challenge also came about in September

2017 when Martin Batalla Vidal, an individual DACA

beneficiary who was already engaged in litigation with

the Department over the revocation of his employment

authorization, amended his complaint to assert a challenge to DACA’s rescission. See Batalla Vidal v. Duke,

No. 16-CV-4756, 2017 WL 5201116, at *4 (E.D.N.Y.

Nov. 9, 2017). His challenge was later consolidated

with two others before Judge Nicholas G. Garaufis of

the U.S. District Court for the Eastern District of New

York. Id. The plaintiffs in the three cases include

Mr. Batalla Vidal, the State of New York, fourteen

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other states and the District of Columbia, and Make

the Road New York, a nonprofit. See id. at *4 & n.5.

Shortly after the consolidation of the three actions,

another dispute arose regarding the scope of the administrative record. The district court ordered the

government to produce certain documents, see id. at

*6-7, and, on the government’s petition for mandamus,

the Second Circuit stayed discovery pending the district

court’s resolution of “issues of jurisdiction and justiciability.” Id. at *8. The government then filed a motion to dismiss under Rules 12(b)(1) and 12(b)(6). Id.

The district court denied the government’s Rule

12(b)(1) motion (except as to some plaintiffs that the

court found lacked standing), see id. at *20, but it later

certified its decision for an interlocutory appeal, see

Batalla Vidal v. Nielsen, 16-CV-4756, 2018 WL 333515,

at *1 (E.D.N.Y. Jan. 8, 2018). The Second Circuit then

held the government’s petition for leave to file an interlocutory appeal in abeyance pending the district court’s

resolution of the government’s Rule 12(b)(6) motion

and the plaintiffs’ motion for a preliminary injunction,

which the plaintiffs had filed while issues related to the

interlocutory appeal were being litigated. See Certified Order, Nielsen v. Vidal, No. 18-122 (2d Cir. Jan. 31,

2018), ECF No. 46.

A few weeks later, the district court granted the plaintiffs’ motion for a preliminary injunction. See Batalla

Vidal v. Nielsen, 279 F. Supp. 401, 437-38 (E.D.N.Y.

2018). The scope of the court’s injunction was the

same as in Regents: it required the Department to

resume consideration of renewal applications but did

not require the consideration of initial applications or

applications for advance parole. Id. at 437-38. The

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government took an interlocutory appeal, and the next

day, the Second Circuit denied the mandamus petition

that it had previously held in abeyance and vacated its

earlier discovery stay. See Certified Order, In re Nielson, No. 17-3345 (2d Cir. Feb. 21, 2018), ECF No. 181.

The Second Circuit thereafter granted the government’s

motion to expedite the appeal, which is pending at this

time. See Certified Order, Vidal v. Nielsen, No. 18-485

(2d Cir. Mar. 8, 2018), ECF No. 62.

While the expedited appeal was pending, the district

court granted in part and denied in part the government’s pending 12(b)(6) motion. 8 See Batalla Vidal v.

Nielsen, No. 16-cv-4756, 2018 WL 1532370, at *1

(E.D.N.Y. Mar. 29, 2018). The court denied the motion as to plaintiffs’ substantive APA claims for substantially the same reasons that it had previously found

a substantial likelihood of success on the merits of

those claims, id. at *3, but granted the motion as to

their procedural APA and Regulatory Flexibility Act

(“RFA”) claims. Id. at *5-6. The court also denied

the motion as to the plaintiffs’ equal protection claims,

id. at *6-10, although it granted the motion as to their

information-sharing claim, concluding that the plaintiffs

had “not plausibly alleged that DHS actually changed its

information-sharing policy,” id. at *11. Finally, the

court granted the motion as to plaintiffs’ procedural due

process claim, except as to certain plaintiffs who alleged

That motion also sought dismissal under Rule 12(b)(1) (on standing and mootness grounds) of the Batalla Vidal plaintiffs’ procedural due process claim, which had been presented for the first

time in their third amended complaint. Batalla Vidal, 2018 WL

1532370, at *12-13. The court denied the motion to dismiss on that

ground.

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that their renewal applications had been improperly

rejected as untimely or were erroneously deemed to

contain minor clerical errors. Id. at *14.

Casa de Maryland v. DHS

The plaintiffs in the third case, CASA de Maryland

v. U.S. Dep’t of Homeland Security, 284 F. Supp. 3d

758 (D. Md. 2018), are individual DACA recipients and

several nonprofit organizations. In March 2018, the

district court (Judge Roger W. Titus) ruled that although DACA’s rescission was reviewable, it did not

violate the APA or the Equal Protection or Due Process Clauses. See id. at 770, 773-77, 779. The district court summarized its decision to depart from the

Regents and Batalla Vidal courts on the substantive

APA claim as follows:

The decisions to date by courts in California and

New York are premised on the legal conclusion that

DACA is lawful, and therefore, a decision to rescind

DACA on the basis of unlawfulness is necessarily

arbitrary and capricious. Respectfully, this Court

disagrees. Regardless of the lawfulness of DACA,

the appropriate inquiry is whether or not DHS made

a reasoned decision to rescind DACA based on the

Administrative Record . . . . Given the fate of

DAPA, the legal advice provided by the Attorney

General, and the threat of imminent litigation, it was

reasonable for DHS to have concluded—right or

wrong—that DACA was unlawful and should be

wound down in an orderly manner. Therefore, its

decision to rescind DACA cannot be arbitrary and

capricious.

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Id. at 767-768 (citation omitted). However, the district

court did grant one form of relief not granted by the

courts in Regents or Batalla Vidal: it enjoined DHS

from “using information provided by Dreamers through

the DACA program for enforcement purposes,” explaining that so doing would violate applicable principles of

equitable estoppel. Id. at 779. As of the date of this

decision, neither party has appealed the district court’s

order, although the time in which to do so has not yet

expired. See Fed. R. App. P. 4 (a)(1)(B).

III. THE PRESENT CHALLENGES TO DACA’S RESCISSION

The cases currently before this Court, NAACP v.

Trump and Princeton v. United States, were filed in

September and November 2017, respectively, and have

been consolidated for purposes of the dispositive motions pending in each. The plaintiffs in the Princeton

action are Princeton University, Microsoft Corporation, and Maria de la Cruz Perales Sanchez, a DACA

beneficiary and Princeton undergraduate. See Compl.

(“Princeton Compl.”) [ECF No. 1] at 12. The plaintiffs in the NAACP action are the National Association

for the Advancement of Colored People (“NAACP”),

the American Federation of Teachers (“AFT”), and the

United Food and Commercial Workers International

Union (“UFCW”). See First Amended Complaint at

3-5, NAACP, No. 17-cv-1907 (D.D.C. Oct. 24, 2017),

ECF No. 10 (“NAACP FAC”). Both sets of plaintiffs

challenge DACA’s rescission on various administrative

and constitutional grounds, including that it was arbitrary and capricious, see Pls.’ Mem. in Supp. of Pls.’

Mot. for Summ. J. (“Princeton MSJ”) at 11-38; that it

should have undergone notice-and-comment procedures,

see id. at 38-41; that its effects on “small entities”

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should have been analyzed pursuant to the RFA, 5 U.S.C.

§§ 601-12, see NAACP FAC 16-17; and that it violates

the Equal Protection and Due Process Clauses of the

Fifth and Fourteenth Amendments, see Princeton

Compl. at 35-40.

The government has filed motions to dismiss in both

actions. It argues: (1) that plaintiffs’ APA claims

should be dismissed because DACA’s rescission was

“committed to agency discretion by law” and is therefore unreviewable under 5 U.S.C. § 701(a)(2), see Mem.

of Law in Supp. of Defs.’ Mot. to Dismiss (“Princeton

MTD”) [ECF No. 8] at 14-21; (2) that a provision of the

INA, 8 U.S.C. § 1252(g), deprives the Court of subjectmatter jurisdiction, see id. at 21-24; (3) that all plaintiffs but Ms. Perales Sanchez lack Article III and prudential standing, see id. at 24-25; Mem. in Supp. of

Defs.’ Mot. to Dismiss, No. 17-cv-1907 (D.D.C. Nov. 8,

2018) (“NAACP MTD”) at 14-18; and (4) that plaintiffs

have failed to state a claim under the APA, the RFA,

and the Constitution, Princeton MTD at 27-44.

Plaintiffs have moved for summary judgment only

on their APA claims, or alternatively, for preliminary

injunctive relief “[t]o the extent the Court wishes to see

[the discovery] issues [in Regents and Batalla Vidal]

litigated before granting final judgment to the Plaintiffs.” Princeton MSJ at 3 & n.1. Unlike the plaintiffs

in Regents and Batalla Vidal, however, plaintiffs here

have not challenged the completeness of the administrative record, see 5 U.S.C. § 706 (providing that, in

reviewing agency action, “the court shall review the

whole record or those parts of it cited by a party”

(emphasis added)), and the government urges the

Court to decide the pending motions on the current

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record, see Princeton MTD at 3 (“[T]he Court should

either uphold the Rescission Policy and grant this motion if it agrees that the record supports Defendants’

position, or set aside the Rescission Policy if it disagrees.”). Finally, plaintiffs have also moved for a preliminary injunction preventing DHS from sharing or

otherwise using DACA beneficiaries’ personal information for immigration enforcement purposes. See Princeton MSJ at 48-53.

The Court initially set a motions hearing in this case

for February 2018, but the hearing was continued at

the parties’ request pending the government’s petition

for certiorari before judgment in the Regents case.

See January 26, 2018 Min. Order. That petition was

denied in late February, and the Court held a motions

hearing in mid-March. The parties’ motions are now

ripe for decision.

DISCUSSION

I. SUBJECT-MATTER JURISDICTION

The Immigration and Nationality Act

The government argues that the Court lacks jurisdiction over all of plaintiffs’ claims—administrative and

constitutional—under 8 U.S.C. § 1252(g), a provision of

the INA that states that “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 proceedings, adjudicate cases,

or execute removal orders against any alien under this

chapter.” On its face, that language removes jurisdiction only as to the three listed actions of the Attorney

General. The government argues that “[t]he denial of

deferred action is a step toward the commencement of

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removal proceedings against an alien” and that “the

INA’s careful scheme for [removal] proceedings” suggests that such denials may be challenged only through

individual removal proceedings, and hence § 1252(g)

strips the Court of jurisdiction over plaintiffs’ challenge

here. Defs.’ Reply in Supp. of their Mot. to Dismiss

(“Defs.’ Reply”) [ECF No. 56] at 10.

The government’s position contradicts not only the

plain language of § 1252(g) but also the Supreme Court’s

interpretation of that language in Reno v. AmericanArab Anti-Discrimination Committee (“AAADC”), where

the Court specifically rejected the argument that “the

mention of three discrete events along the road to

deportation was a shorthand way of referring to all

claims arising from deportation proceedings.” 525 U.S.

471, 482 (1999). Rather, the Court explained, § 1252(g)

applies “only to three discrete actions that the Attorney

General may take: her ‘decision or action’ to ‘commence

proceedings, adjudicate cases, or execute removal orders.’ ” Id. (listing “part[s] of the deportation process” that fall outside of § 1252(g)’s scope, including

“decisions to open an investigation, to surveil the suspected violator, to reschedule the deportation hearing,

to include various provisions in the final order that is

the product of the adjudication, and to refuse reconsideration of that order”). Because the rescission of

DACA is neither the commencement of a proceeding,

the adjudication of a case, nor the execution of a removal order, § 1252(g) is inapplicable here pursuant to

the provision’s plain language.

The government’s only response is that DACA’s rescission is a “step toward” the removal of specific aliens. See Defs.’ Reply at 10; but see id. at 2 (stressing

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elsewhere that rescission “does not, in itself, exert the

agency’s coercive power over any individual”). True,

the Supreme Court said in AAADC that § 1252(g) was

“specifically directed at the deconstruction, fragmentation, and hence prolongation of removal proceedings.”

525 U.S. at 487. But there is no allegation here that

removal proceedings have yet been initiated against

any DACA beneficiary, so there are no pending removal

proceedings with which plaintiffs’ challenge might

interfere. Cf. id. (concluding that § 1252(g) stripped

jurisdiction over selective deportation claims brought

by six aliens who were then in removal proceedings).

Thus, the government’s reliance on AAADC is misplaced,

and § 1252(g) does not bar review here. Accord Regents, 279 F. Supp. 3d at 1031-1033 (rejecting the government’s § 1252(g) argument); Batalla Vidal, 2017 WL

5201116, at *12-13 (same).

Article III Standing

The government also asks the Court to dismiss the

claims brought by Princeton and Microsoft, Princeton

MTD at 24-25, and by all plaintiffs in the NAACP action, see NAACP MTD at 14-17, for lack of Article III

standing. In so moving, the government urges the

Court to conduct a “claim-by-claim analysis” of each

plaintiff ’s standing as to each claim. Defs.’ Reply 11.

Such a detailed analysis is unnecessary, however, at

least in Princeton. The government does not dispute

that the individual plaintiff, Ms. Perales Sanchez, has

Article III standing to assert each claim in the complaint. 9 See Princeton MTD 24-25 (seeking dismissal

Nor could they. Ms. Perales Sanchez clearly satisfies the “irreducible constitutional minimum” of standing as to DACA’s rescis9

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only as to the “[n]on-[i]ndividual [p]laintiffs”); Princeton

Compl. 30-38 (listing Ms. Perales Sanchez as a plaintiff

on each count). And as the Supreme Court has recently

reaffirmed, Article III requires only that “[a]t least one

plaintiff . . . have standing to seek each form of

relief requested in the complaint.” Town of Chester v.

Laroe Estates, Inc., 137 S. Ct. 1645, 1651 (2017). In

Princeton, that “one plaintiff ” is Ms. Perales Sanchez,

and no further analysis of any other plaintiff ’s standing

is necessary.

In NAACP, however, there is no individual plaintiff.

The organizational plaintiffs—the NAACP and two labor

unions—therefore must rely on their own standing to

survive the government’s motion to dismiss. These

plaintiffs assert that they have “associational standing,” which requires each of them to plead that “(1) at

sion: her inability to renew her DACA benefits is (1) an “injury in

fact,” which is “concrete and particularized” as well as “actual or

imminent, not conjectural or hypothetical”; it is (2) “fairly traceable” to DHS’s decision to rescind DACA; and it is (3) “likely to be

redressed” by a decision of this Court invalidating DACA’s rescission. Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547-48 (2016) (internal quotation marks omitted). And although the Court ultimately

concludes that plaintiffs fail to state a claim as to DHS’s alleged

plans to share DACA beneficiaries’ information with immigration

enforcement agencies, the Court concludes—and the government

does not dispute—that Ms. Perales Sanchez has standing to assert

that claim as well. See Princeton Compl. ¶ 108 (alleging that DHS

has “revised [its] assurances about information sharing” and now

“offer[s] only to prevent personal information from being provided

‘proactively’ to agencies responsible for facilitating removal”); cf.

Clapper v. Amnesty Int’l, 568 U.S. 398, 411 (2013) (finding that the

plaintiffs’ asserted injury was too speculative when it relied on a

hypothetical sequence of government actions that culminated in

their communications being monitored).

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least one of its members would have standing to sue in

his or her own right; (2) the interests it seeks to protect

are germane to its purpose; and (3) neither the claim

asserted nor the relief requested requires the participation of an individual member of the organization in

the suit.” AARP v. EEOC, 226 F. Supp. 3d 7, 16

(D.D.C. 2016) (citation omitted). As in Princeton, if

one of the three NAACP plaintiffs has standing, then

an analysis of the remaining plaintiffs’ standing is

unnecessary.

The parties do not dispute that the NAACP plaintiffs meet the third prong of the test for representational standing—they do. See NAACP MTD at 16-17

(not arguing that the participation of individual members should be required). And although the government contends that the NAACP plaintiffs fail the first

prong because their complaint does not “name a specific member with standing,” see id. at 16, each plaintiff

provided an anonymous affidavit from at least one of its

members stating that the member was a DACA beneficiary, see, e.g., Princeton MSJ, Ex. W [ECF No. 28-17]

(declaration of NAACP member), and the government

does not seriously dispute—nor could it—that these affidavits are sufficient. 10 Thus, the only remaining is-

The government initially argued that the organizational plaintiffs had to name these members. See NAACP MTD at 16. The

authority for that proposition is tenuous, however, see Young Am.’s

Found. v. Gates, 560 F. Supp. 2d 39, 49 (D.D.C. 2008) (“[I]t is not

clear that [associational standing] actually requires a name-specific

identification.”), aff ’d, 573 F.3d 797 (D.C. Cir. 2009); Doe v. Stincer,

175 F.3d 879, 884 (11th Cir. 1999) (“[W]e have never held that a

party suing as a representative must specifically name the individual on whose behalf the suit is brought . . . .”), and the govern10

24a

sue is whether the rescission of DACA is germane to

the organizational plaintiffs’ purposes.

The germaneness requirement is “undemanding” and

requires “mere pertinence between litigation subject

and organizational purpose.” Humane Soc. of the U.S.

v. Hodel, 840 F.2d 45, 58 (D.C. Cir. 1988). Here, the

NAACP has alleged that its purpose is to “ensure the

political, educational, social, and economic equality of

all persons,” particularly “people of color.” NAACP

Compl. at 3-4. This mission is “pertinent” to the subject of the litigation here, because plaintiffs have alleged that “[n]early all of the DACA registrants—more

than 95%—are people of color,” id. at 12, and that

DACA confers various educational, social, and economic

benefits on those individuals, see id. at 2. At this

stage of the litigation, these allegations are sufficient to

establish the NAACP’s standing—which, in turn, is sufficient to establish the standing of the other two plaintiffs in the NAACP action. See Hodel, 840 F.2d at 59

(concluding that an association’s “members’ aesthetic

interest in viewing live animals and birds” was sufficiently germane to a lawsuit whose purpose was “keeping animals and birds alive and well”). Thus, at least

one plaintiff has standing to assert every claim in both

of the actions currently before the Court, and the government’s motions to dismiss for lack of standing will

be denied.

ment did not renew the argument in its reply brief, see Defs.’ Reply

at 12-13.

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II.

ADMINISTRATIVE CHALLENGES

As noted above, plaintiffs assert various administrative challenges to DACA’s rescission, including that it

was arbitrary and capricious, that it required notice

and comment, and that it ran afoul of RFA’s requirement that an agency consider the effects of its actions

on small entities. The government raises two threshold arguments that apply only to plaintiffs’ administrative claims: first, that DACA’s rescission was unreviewable under the APA’s carve-out for actions “committed

to agency discretion by law,” 5 U.S.C. § 701(a)(2); 11 and

second, that plaintiffs fall outside the “zone of interests” protected by the APA and RFA. The Court will

first address the government’s threshold arguments

and then proceed to the merits of plaintiffs’ claims.

Reviewability

The APA “applies, according to the provisions thereof,

except to the extent that—(1) statutes preclude judicial

review; or (2) agency action is committed to agency

discretion by law.” 5 U.S.C. § 701(a). The Supreme

Court has explained the difference between § 701(a)(1)

and (a)(2) as follows:

The former applies when Congress has expressed an

intent to preclude judicial review. The latter applies

in different circumstances; even where Congress has

not affirmatively precluded review, review is not to

be had if the statute is drawn so that a court would

“[A] complaint seeking review of agency action ‘committed to

agency discretion by law’ has failed to state a claim under the APA,

and therefore should be dismissed under Rule 12(b)(6), not under

the jurisdictional provision of Rule 12(b)(1).” Sierra Club v.

Jackson, 648 F.3d 848, 854 (D.C. Cir. 2011) (citations omitted).

26a

have no meaningful standard against which to judge

the agency’s exercise of discretion. In such a case,

the statute (‘law’) can be taken to have ‘committed’ the

decisionmaking to the agency’s judgment absolutely.

Heckler v. Chaney, 470 U.S. 821, 828 (1985) (emphasis

added). Thus, in determining whether a particular

agency action is “committed to agency discretion by

law,” courts ask whether “statutes are drawn in such

broad terms that in a given case there is no law to

apply.” Id. (citations and internal quotation marks

omitted); see also Drake v. FAA, 291 F.3d 59, 70 (D.C.

Cir. 2002) (“[T]he ‘no law to apply’ formula has come to

refer to the search for substantive legal criteria against

which an agency’s conduct can be seriously evaluated.”).

One category of agency action that the Court has held

to be “presumptively unreviewable” under § 701(a)(2) is

an agency’s decision “not to institute enforcement proceedings.” Lincoln v. Vigil, 508 U.S. 182, 191 (1993)

(citing Chaney, 470 U.S. at 831). The Supreme Court

first identified this presumption in Chaney, a case in

which a group of death-sentenced prisoners petitioned

the Food and Drug Administration (“FDA”) to prevent

the use in lethal injections of certain drugs that the

agency had not approved for that purpose. See 470 U.S.

at 823. The FDA refused, explaining not only that was

it “unclear” that it had “jurisdiction over the unapproved use of approved drugs for human execution,”

but also that given the absence of any “danger to the

public health or a blatant scheme to defraud,” even if

the agency did have jurisdiction, it would “decline to

exercise [that jurisdiction] under [its] inherent discretion to decline to pursue certain enforcement matters.”

Id. at 824-25. The plaintiffs filed suit, seeking an or-

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der directing the FDA to take enforcement action.

The district court granted summary judgment for the

agency, holding that its decision not to act was unreviewable under § 701(a)(2), but the court of appeals

reversed with instructions to order the agency to “fulfill its statutory function.” Id. at 825-27.

The Supreme Court granted certiorari and reversed.

“[A]gency decisions to refuse enforcement,” the Court

explained, are “general[ly] unsuit[able] for judicial review” for several reasons. Id. at 831. Such decisions

call for “a complicated balancing of a number of factors

which are peculiarly within [the agency’s] expertise,”

including “whether agency resources are best spent on

this violation or another, whether the agency is likely

to succeed if it acts, [and] whether the particular enforcement action requested best fits the agency’s overall policies.” Id. Moreover, nonenforcement decisions

generally do not involve the exercise of “coercive power

over an individual’s liberty or property rights”; they

provide no “focus for judicial review”; and they “share[]

to some extent the characteristics of the decision of a

prosecutor in the Executive Branch not to indict—a

decision which has long been regarded as the special

province of the Executive Branch.” Id. at 832. For

these reasons, such decisions have “traditionally been

‘committed to agency discretion,’ and we believe that

the Congress enacting the APA did not intend to alter

that tradition.” Id. Thus, the Court concluded, “an

agency’s decision not to take enforcement action should

be presumed immune from judicial review under

§ 701(a)(2).” Id. The Court was careful to note, however, that this presumption of unreviewability “may be

rebutted where the substantive statute has provided

guidelines for the agency to follow in exercising its

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enforcement powers.” Id. at 833. Critically for purposes of this case, moreover, the Court reserved judgment on whether the presumption applies where an

agency “refuse[s] . . . to institute proceedings based

solely on the belief that it lacks jurisdiction.” Id. at

833 n.4 (internal quotation marks omitted).

Although the Supreme Court has not yet answered

the question reserved in Chaney, the D.C. Circuit has

addressed it. In Crowley Caribbean Transport, Inc.

v. Pena, for example, the issue was whether Chaney’s

presumption of unreviewability applied to the Maritime

Administration’s refusal to take an enforcement action

under a provision of the Merchant Marine Act of 1936

(the “1936 Act”) that the agency thought was inapplicable as a matter of law. See 37 F.3d at 672-73. The

D.C. Circuit began by noting that Chaney had reserved

judgment on almost exactly this issue and then observed that two intervening circuit decisions seemed to

have answered the question in contradictory ways.

See id. at 675-76 (citing Safe Energy Coal. of Mich. v.

U.S. Nuclear Regulatory Comm’n, 866 F.2d 1473, 1477

(D.C. Cir. 1989) (presumption of unreviewability applied to the agency’s refusal, based on its interpretation of its own regulations, to take enforcement action

against a nuclear reactor); Int’l Union, United Auto.,

Aerospace & Agric. Implement Workers of Am. v.

Brock, 783 F.2d 237, 244-45 (D.C. Cir. 1986) (presumption of unreviewability did not apply to the Department

of Labor’s refusal, based on its interpretation of the

labor laws, to take enforcement action in response to a

union complaint)).

29a

After noting that “[a]s a circuit, we seem to have no

explicit rule on how to proceed when we have inconsistent precedents,” id. at 675, the court relied on language from an intervening Supreme Court decision,

ICC v. Brotherhood of Locomotive Engineers (“BLE”),

482 U.S. 270 (1987), to resolve the intra-circuit split.

BLE held that an agency’s refusal to reconsider a

decision on the basis of “material error”—that is, because it was erroneous when made, not because of

changed circumstances or newly discovered evidence—

is “committed to agency discretion by law” under

§ 701(a)(2), even if it is based on the agency’s interpretation of a statute. Id. at 278-84. In reaching this

conclusion, the Supreme Court rejected what it took to

be the concurrence’s suggestion that “if [an] agency

gives a ‘reviewable’ reason for otherwise unreviewable

action, the action becomes reviewable.” 12 Id. at 283.

To refute this proposition, the Court explained,

it is enough to observe that a common reason for

failure to prosecute an alleged criminal violation is

the prosecutor’s belief (sometimes publicly stated)

that the law will not sustain a conviction. That is

surely an eminently “reviewable” proposition, in the

sense that courts are well qualified to consider the

The concurrence disputed this characterization of its argument.

See id. at 290 n.2 (Stevens, J., concurring in the judgment). Its

point was that because an agency’s action can be sustained only on

the grounds invoked by the agency, “when an agency explains that

it has denied a petition for reopening based on . . . its reading

of a statute or a constitutional provision, its decision cannot be

sustained on the conjecture that it has the discretion to deny reopening on a variety of grounds.” BLE, 482 U.S. at 290-291 (Stevens, J., concurring in the judgment).

30a

point; yet it is entirely clear that the refusal to

prosecute cannot be the subject of judicial review.

Id. Citing this passage, the Crowley court concluded

that BLE, “though not in the Chaney context, squarely

rejects the notion of carving reviewable legal rulings out

from the middle of non-reviewable actions.” Crowley,

37 F.3d at 676. Thus, the court held, there was “no

basis for review of the Maritime Administrator’s singleshot non-enforcement decision.” Id.

The D.C. Circuit in Crowley was careful to preserve

another line of circuit precedent, however, which holds

that Chaney’s presumption of unreviewability does not

apply to “an agency’s announcement of its interpretation of a statute, even when that interpretation is advanced in the context of a decision not to take enforcement action.” Edison Elec. Inst. v. EPA, 996 F.2d

326, 333 (D.C. Cir. 1993) (citations and internal quotation marks omitted). 13 The key difference, the Crowley court explained, was that while the case before it

involved an agency’s refusal to act on a single complaint, those prior cases involved “an agency’s statement of a general enforcement policy” that was either

“expressed . . . as a formal regulation after the full

See id. (holding that the presumption of unreviewability did not

apply to the agency’s determination that a statutory requirement

applied to the plaintiffs, even though that determination was made

in a policy statement that communicated the agency’s intent not to

enforce that requirement); Nat’l Wildlife Fed’n v. EPA, 980 F.2d

765, 773 (D.C. Cir. 1992) (“[T]he presumption of unreviewability of

agency nonenforcement decisions is inapplicable or at least rebutted [where a plaintiff ] raises a facial challenge to [an agency’s]

statutory interpretation embodied in [a regulation] and does not

contest a particular enforcement decision.”).

31a

rulemaking process . . . or . . . otherwise articulated . . . in some form of universal policy statement.” Crowley, 37 F.3d at 676. The court then

pointed out the “ample reasons for distinguishing the

two”:

[First,] general statements [of enforcement policy]

. . . are more likely to be direct interpretations of

the commands of the substantive statute rather than

the sort of mingled assessments of fact, policy, and

law that drive an individual enforcement decision

and that are, as Chaney recognizes, peculiarly within the agency’s expertise and discretion. Second,

an agency’s pronouncement of a broad policy against

enforcement poses special risks that it ‘has consciously and expressly adopted a general policy that

is so extreme as to amount to an abdication of its

statutory responsibilities,’ a situation in which the

normal presumption of non-reviewability may be inappropriate. Finally, an agency will generally present a clearer (and more easily reviewable) statement of its reasons for acting when formally articulating a broadly applicable enforcement policy . . . .

Id. at 677 (quoting Chaney, 470 U.S. at 833 n.4). Thus,

the court concluded in Crowley, an individual nonenforcement decision is presumptively unreviewable even

if it is based solely on legal grounds, even though “an

agency’s statement of a general enforcement policy

may be reviewable for legal sufficiency.” Id. at 676-677.

The D.C. Circuit has applied Crowley only once, in

OSG Bulk Ships, Inc. v. United States, 132 F.3d 808

(D.C. Cir. 1998). In that case, a plaintiff challenged

the Maritime Administration’s longstanding policy of

refusing to enforce a different provision of the 1936 Act

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against certain vessels. See id. at 811 (explaining that

the agency had “long allowed” vessels built with the aid

of a federal subsidy that was reserved for ships that

would be operated exclusively in foreign trade to enter

the domestic shipping market at the end of their economic lives). Citing Crowley for the proposition that

while “agencies’ nonenforcement decisions are generally

unreviewable . . . , an agency’s adoption of a general enforcement policy is subject to review,” the court

concluded that the Maritime Administration’s policy was

not presumptively unreviewable because it was not a

“single-shot non-enforcement decision.” Id. at 812

(citation omitted).

The government contends that Chaney’s presumption of unreviewability applies here. See Princeton

MTD at 17. Like the FDA’s refusal to take the enforcement actions at issue in Chaney, the government

argues, DHS’s decision to rescind a deferred-action

policy like DACA involves a “complicated balancing” of

the agency’s enforcement and resource-allocation priorities, and it resembles the “[c]hanges in policy as

to criminal prosecutorial discretion” that “regularly occur within and between presidential administrations.”

Defs.’ Reply at 2-3, 26. Moreover, the Supreme Court

has said that the concerns that counsel against judicial

review in the criminal context are “greatly magnified in

the deportation context,” where delaying removal “is

often the principal object of resistance to a deportation

proceeding” and where delays “permit and prolong a

continuing violation” of the federal immigration laws.

AAADC, 525 U.S. at 490. Nor do Crowley and OSG

apply here, the government argues, because those cases

involved an agency’s interpretation of a specific statu-

33a

tory provision, whereas this case involves the agency’s

evaluation of its overall statutory authority.

Plaintiffs resist the application of Chaney’s presumption on two grounds. First, they argue, Chaney itself

involved a decision not to enforce a statute, whereas

DACA’s rescission was, in essence, a decision to resume

enforcing the immigration laws. Pls.’ Opp’n to Defs.’

Mot. to Dismiss (“Pls.’ Opp’n”) [ECF No. 23] at 6. This

matters because two of Chaney’s reasons for its presumption apply “unique[ly] to non-enforcement decisions”:

the absence of the exercise of “coercive power” over

any person, and the lack of any “focus for judicial review.” Id.

This distinction is unpersuasive. For one thing, the

rescission of DACA does not actually require the Department to initiate removal proceedings against any

specific alien; rather, it simply removes a mechanism

by which certain aliens otherwise could have been

considered for deferred action. Thus, like the FDA’s

nonenforcement decision in Chaney, there are no

agency proceedings here to provide a “focus for judicial

review,” 470 U.S. at 832, and DACA’s rescission does

not itself involve the exercise of coercive power over

any person. 14

True, there is an element of coercion in the revocation of work

authorization and other benefits associated with DACA. But the

revocation of those benefits is not itself an enforcement decision and

is therefore not properly analyzed under Chaney. See 470 U.S. at

832. Indeed, at least one other court has concluded that the

withholding of work authorization and similar discretionary benefits is unreviewable under § 701(a)(2) simply because “[t]here are

no statutory standards . . . to apply.” See Perales v. Casillas,

903 F.2d 1043, 1048 (5th Cir. 1990) (holding that § 701(a)(2) pre14

34a

Moreover, Chaney’s remaining rationales apply here

with equal force. An agency’s decision to revoke a nonenforcement policy involves the same prioritization and

resource-allocation considerations as its decision to implement such a policy. See Chaney, 470 U.S. at 831.

And both types of decisions are substantially immunized from judicial review in the criminal context. See

United States v. Armstrong, 517 U.S. 456, 464 (1996)

(“[T]he decision whether or not to prosecute . . . generally rests entirely in [the prosecutor’s] discretion[,]

. . . subject to constitutional constraints.” (citations

omitted)). Thus, although the D.C. Circuit has at times

warned against extending Chaney “outside of [the] context” of “decisions not to take enforcement action,”

Robbins v. Reagan, 780 F.2d 37, 46 (D.C. Cir. 1985)

(rejecting Chaney’s application to a decision to withhold federal funding from a homeless shelter), this

Court has little difficulty concluding that Chaney extends to the revocation of nonenforcement decisions.

Second, plaintiffs contend that under Crowley and

OSG, any general enforcement policy is exempt from

Chaney’s presumption of unreviewability, regardless of

whether it is premised on a legal interpretation. See

Pls.’ Opp’n at 7; Tr. Of Mots. Hr’g [ECF No. 64] (“Oral

Arg. Tr.”) at 21:6-11. Concededly, there is some language in the post-Crowley case law to support this

cluded review of a categorical refusal by a district office of the

then-Immigration and Naturalization Service to grant work authorization and pre-hearing voluntary departure to a certain class

of eligible aliens over a three-year period); cf. Texas, 809 F.3d at

166-68 (holding that conferring such benefits, especially “in light of

the INA’s intricate regulatory scheme for changing immigration

classifications and issuing employment authorization,” was a nondiscretionary determination sufficient to permit APA review).

35a

view. See, e.g., OSG, 132 F.3d at 812 (stating that “an

agency’s adoption of a general enforcement policy is

subject to review”); Ass’n of Civilian Technicians, Inc.

v. Fed. Labor Relations Auth., 283 F.3d 339, 343 (D.C.

Cir. 2002) (noting “our assumption in Crowley that a

district court might have jurisdiction over an agency’s

articulation of its general enforcement policy”).

But plaintiffs’ reading of this language is unpersuasive for at least two reasons. First, it is in substantial

tension with Chaney itself, where the plaintiffs had asked

the FDA to take “various investigatory and enforcement actions” against drug manufacturers, state prisons, and “all those in the chain of distribution who

knowingly distribute or purchase the drugs [at issue]

with intent to use them for human execution.” 470 U.S.

at 824; see id. at 842 (Marshall, J., concurring in the

judgment) (noting that “the number of people currently

affected by the alleged misbranding is around 200”).

These facts suggest that the FDA’s refusal to act in

that case was more than just a one-off nonenforcement

decision. 15 Second, plaintiffs’ broad reading of Crowley and OSG is unnecessary to support the holdings of

those cases, which both involved nonenforcement decisions based solely on agency statutory interpretation.

See Crowley, 37 F. 3d at 672-73; OSG, 132 F.3d at 810

Better, then, to adhere to the lines that the D.C. Circuit and the Supreme Court have actually drawn:

between legal interpretations couched as broad enJustice Brennan joined the Court’s opinion on the understanding that it applied only to “[i]ndividual, isolated nonenforcement

decisions.” Id. at 839 (Brennan, J., concurring). Seven other justices joined the majority opinion in full, however, and none of them

took Justice Brennan’s view.

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forcement policies (which are reviewable, as in OSG),

individual enforcement decisions (which are presumptively unreviewable, as in Crowley), and discretionary

enforcement policies (which are presumptively unreviewable, as in Chaney itself ).

Indeed, the government’s reading of Crowley and

OSG proceeds essentially along these lines. In the

government’s view, those cases stand for the proposition that “if [an] agency’s interpretation of a statute is

embedded in a non-reviewable enforcement policy, the

former may be reviewable as such,” but “the enforcement policy itself ” is presumptively insulated from review. Defs.’ Reply at 6 (emphasis added). Thus,

according to the government, Crowley and OSG address the “flipside” of the Supreme Court’s dictum in

BLE: just as an otherwise unreviewable agency action (like a refusal to reconsider an earlier decision, as

in BLE, or a nonenforcement decision, as in Chaney

and Crowley) does not become reviewable simply because the agency acts on the basis of its interpretation

of a statute, an otherwise reviewable interpretation of a

statute does not become presumptively unreviewable

simply because the agency characterizes it as an exercise

of enforcement discretion. See Oral Arg. Tr. at 15:5-13.

The Court has no quarrel with this statement of the

law as a general matter, but it is unpersuaded by the

government’s attempt to apply that law to this case.

The government contends that the Crowley/OSG exception does not apply here because the Rescission

Memo “does not contain an embedded interpretation of

the INA (or any other statute).” Defs.’ Reply at 6.

But the Sessions Letter makes clear that DACA’s

rescission was based (at least in significant part) on the

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Attorney General’s view that the program lacked “proper statutory authority.” AR 251.

As best the Court can tell, the government’s response is that Crowley and OSG are distinguishable

because they involved an agency’s determination that a

specific statutory provision applied to a particular

course of conduct, whereas this case—like Chaney—

involves an agency’s determination as to the scope of

its statutory (and here, also constitutional) authority.

See Oral Arg. Tr. at 57:24-58:9 (arguing that Crowley

applies only “where there’s an interpretation of a substantive provision of the statute”); id. at 8:12-15 (“Plaintiffs nowhere point to any provision in the INA that

would substantively constrain the Secretary’s decision

. . . to rescind or discontinue DACA.”). But this

strikes the Court as a distinction without a difference.

To say that a particular agency action is “without statutory authority” is simply to say that no statutory

provision authorizes that action; in a sense, therefore,

it is a determination of the substantive content of each

statutory provision that might plausibly apply. See,

e.g., 6 U.S.C. § 202(5) (authorizing the Department to

“[e]stablish[] national immigration enforcement policies and priorities”). The Court fails to perceive any

meaningful difference between an agency’s conclusion

that it lacks statutory authority and its interpretation

of a specific statutory provision. See City of Arlington

v. FCC, 569 U.S. 290, 299-300 (2013) (rejecting, for purposes of determining the proper standard of judicial review, a similar distinction between “jurisdictional” and

“nonjurisdictional” agency interpretations and concluding that “there is no difference, insofar as the validity

of agency action is concerned, between an agency’s exceeding the scope of its authority (its ‘jurisdiction’) and

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its exceeding authorized application of authority that it

unquestionably has”). The government’s attempt to

avoid Crowley and OSG on these grounds therefore fails.

The government’s reliance on BLE is equally unavailing. For one thing, as Crowley recognized, BLE

addressed the reviewability of enforcement decisions

only in dictum; its actual holding concerned the reviewability of an agency’s refusal to reconsider a prior

decision. See Crowley, 37 F.3d at 676; BLE, 482 U.S.

at 278-84. Moreover, the best account of BLE is the

one that the D.C. Circuit actually gave in Crowley, where

the court relied on BLE to conclude that Chaney’s presumption of unreviewability applies to individual nonenforcement decisions. See Crowley, 37 F.3d at 676-77.

In the same breath, however, the D.C. Circuit reaffirmed its view that general enforcement policies are

exempt from Chaney’s presumption of unreviewability

where they are predicated solely on the agency’s view

of what the law requires. See id. This treatment of

BLE by the Crowley court is not only sensible—after

all, BLE’s dictum concerned a prosecutor’s decision not

to bring a single criminal charge—but it is also binding

on this Court.

Nor do the concerns that counsel against judicial review in the immigration context carry much force where,

as here, a party seeks judicial review of a legal judgment embedded in an immigration enforcement policy.

Unlike judicial review of individual removal proceedings, review of an enforcement policy does not itself

delay the removal of any specific alien. See AAADC,

525 U.S. at 490-91 (noting that delay “is often the principal object of resistance to a deportation proceeding”

and that it prolongs “an ongoing violation of United

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States law”). And there is no danger of “chilling law

enforcement by subjecting the [agency’s] motives . . .

to outside inquiry,” since the court need only examine

the immigration authority’s legal reasoning. Id. at 490

(alteration omitted). Although many immigration decisions touch on subjects that courts are ill-equipped to

consider, such as diplomacy or national security, see id.

at 491, an agency’s interpretation of a statute is a much

more natural subject for judicial review. Thus, while

immigration policies are generally “so exclusively entrusted to the political branches of government as to be

largely immune from judicial inquiry or interference,”

there are good reasons to scrutinize a policy more carefully when it is based solely on an agency’s reading of

domestic statutory law. Saavedra Bruno v. Albright,

197 F.3d 1153, 1159 (D.C. Cir. 1999).

Properly understood, then, the Crowley/OSG exception to Chaney’s presumption of unreviewability applies to a legal interpretation phrased as a general enforcement policy, even if that interpretation concerns

the scope of the agency’s lawful enforcement authority.

And that is essentially what we have here.

But the government has one final line of defense.

According to the government, DACA was rescinded not

only because of its supposed illegality, but also because

of the Attorney General’s assessment of what the government now calls “litigation risk”—that is, the likelihood that DACA would have been invalidated had it

been challenged in the Texas litigation. See Defs.’

Reply at 17; AR 254-55. At first blush, this seems to

be a “discretionary” consideration that makes this case

more like Chaney, where the agency refused to take

enforcement action not only because it thought that it

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lacked jurisdiction (a legal reason), but also because the

alleged violations did not implicate the agency’s enforcement priorities (a discretionary reason). See 470 U.S.

at 824-25.

It is not difficult to imagine a case where a court’s

preliminary disapproval of an agency’s nonenforcement

policy could lead the agency to rescind that policy for

bona fide discretionary reasons. See Chaney, 470 U.S.

at 831 (identifying “whether the agency is likely to

succeed if it acts” as one of several such reasons). For

example, the agency could conclude that the costs of

defending the policy in court would outweigh its benefits to the public, or that the negative publicity that

would surround the litigation would undermine the policy’s effectiveness. In such cases, the decision to rescind

would be “discretionary” in a meaningful sense: the

agency would have weighed the policy’s costs and benefits and decided that the former outweighed the latter.

But where an agency asserts that a nonenforcement

policy is unlawful and then asserts “litigation risk” as a

separate ground for the policy’s rescission, there are

reasons to be more suspicious. After all, if an agency

could insulate from judicial review any legal interpretation simply by framing it as an enforcement policy

and then offering as an additional, “discretionary”

justification the assertion that a court would likely

agree with the agency’s interpretation, then Crowley

would be a dead letter. Moreover, because such an

assertion would depend (at least in part) on the correctness of the agency’s view of the policy’s unlawfulness, it would be unlike the independent discretionary

ground that triggered the presumption of unreviewability in Chaney itself. See 470 U.S. at 824-25 (noting

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the FDA’s statement that even if it had jurisdiction, it

would still decline to act pursuant to its “inherent discretion to decline to pursue certain enforcement matters”). For these reasons, litigation-strategy justifications deserve closer scrutiny when they are accompanied by agency assertions of unlawfulness.

Here, the Department rescinded DACA for legal

reasons—its purported statutory and constitutional

defects—and then offered as an additional reason the

fact that a federal court of appeals had held that

DAPA, a related but distinct deferred-action program,

likely suffered from similar defects. See Defs.’ Reply

at 17 (citing the “litigation risk posed by the proceedings in Texas and the consequent potential for massive

disruption were the policy [to be] immediately enjoined”).

Although this additional justification was not a bare assertion that a court would likely agree with the agency’s view of the law—since it relied on an actual court’s

view of a concededly similar legal issue—it nonetheless

raises many of the same concerns. The Crowley/OSG

rule would be seriously undermined if an agency could

insulate from judicial review any legal interpretation

stated as a general enforcement policy simply by

pointing to one case where one court tentatively agreed

with the agency on a similar legal issue. Moreover, the

Department’s conclusion that the Fifth Circuit’s decision to uphold a preliminary injunction of DAPA suggests that a court would likely also impose a preliminary injunction of DACA necessarily relies on the Department’s legal analysis of the similarities between

the two policies—which, like the Department’s view of

DACA’s legality itself, does not qualify for Chaney’s

presumption of unreviewability. Thus, the Court concludes that the Department’s litigation-risk justifica-

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tion was too closely bound up with its evaluation of

DACA’s legality to trigger Chaney’s presumption of

unreviewability here.

When the litigation-risk justification falls away, all

that is left to support DACA’s rescission is the Department’s determination that the program was implemented

without proper statutory and constitutional authority—

a legal determination which, when made in the context

of a general enforcement policy, is not subject to

Chaney’s presumption of unreviewability. Thus, like

every other court that has considered the question thus

far, the Court concludes that DACA’s rescission was

not “committed to agency discretion by law.” 5 U.S.C.

§ 701(a)(2); see Regents, 279 F. Supp. 3d at 1029-31;

Batalla Vidal, 2017 WL 5201116, at *9-12; Casa De Maryland, 284 F. Supp. 3d at 770. The Court will therefore

proceed to the merits of plaintiffs’ APA claims.

To summarize: an agency’s decision whether to

take an enforcement action is presumptively unreviewable, and that presumption can normally be rebutted only by pointing to statutory language that constrains the agency’s exercise of its enforcement discretion. See Chaney, 470 U.S. at 832-33. Under circuit

precedent, however, an enforcement decision is exempt

from the presumption of unreviewability if: (1) it is

expressed as a general enforcement policy; and (2) it

relies solely on the agency’s view of what the law requires. See OSG, 132 F.3d at 812; Crowley, 37 F.3d at

676-677. This rule not only accords with the applicable case law, but it also preserves the judiciary’s role as

the ultimate arbiter of statutory meaning while at the

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same time affording agencies breathing space to adopt

enforcement policies for discretionary reasons.

Here, DACA’s rescission was a general enforcement

policy predicated on DHS’s legal determination that

the program was invalid when it was adopted. And although the government has sought to cast the Department’s assessment of “litigation risk” as a discretionary

justification that brings this case within Chaney’s ambit, that justification is insufficiently independent from

the agency’s evaluation of DACA’s legality to trigger

Chaney’s presumption of unreviewability. Thus, the

Crowley/OSG exemption applies, and the government’s

motions to dismiss will be denied to the extent that

they assert § 701(a)(2) as a bar to APA review.

Whether Plaintiffs Possess a Cause of Action

Under the APA and RFA

The government also argues that the non-individual

plaintiffs “lack a cause of action under the APA” because they “cannot meet the zone-of-interest test” used

to determine prudential standing. Defs.’ Reply at 13-14;

see also NAACP MTD at 18 (framing this argument as

one of “prudential standing”). However, “[f ]or each

claim, if constitutional and prudential standing can be

shown for at least one plaintiff, [the Court] need not

consider the standing of the other plaintiffs to raise that

claim.” Mt. States Legal Found. v. Glickman, 92 F.3d

1228, 1232 (D.C. Cir. 1996). Thus, because it is undisputed that Ms. Perales Sanchez’s interests fall within

the zone regulated by the INA, 16 the Court need not

Nor could there be any dispute. As a DACA beneficiary, Ms.

Perales Sanchez is “[her]self the subject of the contested regulatory

action.” Clarke v. Sec. Indus. Ass’n, 479 U.S. 388, 399 (1987)

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consider prudential standing in Princeton. And the

NAACP plaintiffs have prudential standing for essentially the same reason as Ms. Perales Sanchez: each

has members who are DACA beneficiaries and whose

interests consequently fall within the zone of interests

regulated by the INA. See Hodel, 840 F.2d at 61 (concluding that, “[f ]or similar reasons [that the court

found Article III standing], the interests of [the association’s] members also fall within the zone of interests

protected by the Endangered Species Act”).

The NAACP plaintiffs’ RFA claims are another matter. See NAACP FAC 75-82 (alleging that the Department failed to conduct an analysis of the effect of

DACA’s rescission on “small entities,” as required by

the RFA). “The RFA provides that ‘a small entity

that is adversely affected or aggrieved by final agency

action is entitled to judicial review . . . .’ ” Nw. Min.

Ass’n v. Babbitt, 5 F. Supp. 2d 9, 13 (D.D.C. 1998)

(quoting 5 U.S.C. § 611(a)(1)); see also 5 U.S.C. § 601(6)

(defining a “small entity” to mean, as relevant here, a

“small organization”); id. § 601(4) (defining a “small

organization” to be “any not-for-profit enterprise which

is independently owned and operated and is not dominant in its field”). Given this statutory language, “the

RFA extends standing to seek judicial review only to a

‘small entity.’ ” Babbitt, 5 F. Supp. 2d at 13. But as

the government points out, the NAACP plaintiffs’ com(“The ‘zone of interest’ test is a guide for deciding whether . . . a

particular plaintiff should be heard to complain of a particular

agency decision. . . . [It] denies a right of review if the 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 suit.”).

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plaint “contains only a single conclusory allegation that

[they] fall within the statutory definition, and any factual support for that claim is missing from (and arguably contradicted by) the declarations submitted in

support of their motion for summary judgment.”

Defs.’ Reply at 14 (citation omitted) (quoting Princeton

MSJ, Ex. R at 2595 [ECF No. 28-17] (declaration from

the president of the AFT, stating that “[t]he AFT is

a national labor union representing approximately

1.7 million members”); id. at 2618 (declaration from the

president of the NAACP, stating that “[t]he NAACP is

the nation’s largest . . . civil rights organization”); id.

at 2639-40 (declaration from the president of the UFCW,

stating that the union “is a labor organization” representing “1.3 million members”)). Thus, the NAACP plaintiffs have not established prudential standing on their

RFA claim, and that claim will be dismissed.

Procedural Validity

The Court turns now to the merits of plaintiffs’ administrative claims, beginning with their argument that

DACA’s rescission should have undergone notice-andcomment rulemaking. The APA generally requires

notice-and-comment procedures whenever an agency

creates, amends, or repeals a rule. 17 See 5 U.S.C

§§ 551(5), 553(b)-(c). A rule is exempt from this reThe parties do not dispute that DACA’s rescission is a “rule”

for APA purposes. See 5 U.S.C. § 551(4) (defining a “rule,” in

relevant part, as “the whole or a part of an agency statement of

general or particular applicability and future effect designed to

implement, interpret, or prescribe law or policy or describing the

organization, procedure, or practice requirements of an agency”);

see also Texas, 809 F.3d at 171 n.122 (noting that the government

likewise did not dispute that DAPA was a rule).

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quirement, however, if it is an “interpretative rule[],

general statement[] of policy, or rule[] of agency organization, procedure, or practice.” Id. § 553(b)(A).

Here, plaintiffs assert that DACA’s rescission was a

“substantive” or “legislative” rule that should have undergone notice and comment, Princeton MSJ at 38-41,

while the government contends that DACA’s rescission

was “a general statement of policy regarding how DHS

will exercise its enforcement discretion,” Defs.’ Reply

at 27. On this point, the government has the better of

the argument. Accord Regents, 2018 WL 401177, at

*2 (dismissing the notice-and-comment challenge to

DACA’s rescission); Batalla Vidal, 2018 WL 1532370, at

*5-6 (same); Casa De Maryland, 284 F. Supp. 3d at 772

(same).

The key question in distinguishing between legislative rules (which must undergo notice and comment)

and general statements of policy (which need not) is

whether the statement in question has a “present

binding effect.” Elec. Privacy Info. Ctr. (EPIC) v.

DHS, 653 F.3d 1, 7 (D.C. Cir. 2011). “An agency pronouncement will be considered binding as a practical

matter if it either appears on its face to be binding, or

is applied by the agency in a way that indicates it is

binding.” Id. (citation omitted); see Lincoln, 508 U.S. at

197 (describing general statements of policy as “statements issued by an agency to advise the public prospectively of the manner in which the agency proposes

to exercise a discretionary power” (citation omitted)).

Plaintiffs contend that DACA’s rescission has a present binding effect because it “presently bars DACA

beneficiaries from obtaining advance parole or applying to renew DACA relief ” and “presently bars DHS

47a

officials from exercising their prior discretion in reviewing DACA applications or advance-parole applications.” Princeton MSJ at 40. But this characterization of DACA’s rescission is misleading. The Rescission Memo states the Department’s intent to “reject all

DACA initial requests” filed after September 5, 2017

and “not [to] approve any new . . . applications for

advance parole,” AR 255; thus, its binding effect is

“prospective[],” Lincoln, 508 U.S. at 197 (citation omitted), rather than “present,” EPIC, 653 F.3d at 7 (citation omitted). 18 Moreover, the memo expressly states

that it places “no limitations . . . on the otherwise

lawful enforcement or litigation prerogatives of DHS,”

AR 255, which further suggests that it is without present binding effect, cf. McLouth Steel Products Corp.

v. Thomas, 838 F.2d 1317, 1319 (D.C. Cir. 1988) (“If a

statement denies the decisionmaker discretion . . .

so that he, she, or they will automatically decline to

entertain challenges to the statement’s position, then

the statement is binding . . . .”).

Finally, the fact remains that the Rescission Memo

withdrew a prior memorandum, which was itself issued

without notice and comment, regarding how DHS intended to “exercise [its] prosecutorial discretion.” AR 1.

The Rescission Memo is therefore a clear example of a

“statement[] by an agency to advise the public proAlthough technically the memo does “presently bar DHS officials” from considering DACA and advance-parole applications,

Princeton MSJ at 40, this argument proves too much. Any general statement of agency policy will presently bind the agency’s

employees; the question, rather, is whether the statement “purport[s] to bind those subject to it.” EPIC, 653 F.3d at 7 (citation

omitted). The Rescission Memo does not.

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spectively of the manner in which the agency proposes

to exercise a discretionary power.” Lincoln, 508 U.S.

at 197 (citation omitted); see Regents, 2018 WL 401177,

at *2 (“For the same reasons that the promulgation of

DACA needed no notice and comment, its rescission

needed no notice and comment.”). Hence, the rescission of DACA was exempt from notice and comment as

a general statement of agency policy. 19

Substantive Validity

The APA provides that a court “shall . . . hold

unlawful and set aside agency action . . . found to

be . . . arbitrary, capricious, an abuse of discretion,

or otherwise not in accordance with law.” 5 U.S.C.

§ 706(2)(A). To satisfy this standard, an agency must

“examine the relevant data and articulate a satisfactory

explanation for its action including a rational connection between the facts found and the choice made.”

Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117,

2125 (2016) (quoting Motor Vehicle Mfrs. Ass’n of U.S.

v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43

(1983)). “[I]f an agency relies on two grounds for a

decision, a court may sustain it if one is valid and if the

agency would clearly have acted on that ground even if

the other were unavailable.” Syracuse Peace Council

Plaintiffs also argue that DACA’s rescission “ ‘alter[s] the rights

or interests of parties’ ” (and hence is not a rule of “agency organization, procedure, or practice”) and “makes a ‘substantive change’

to the statutory or regulatory regime” (and hence is not an interpretive rule). Princeton MSJ at 39-40 (quoting EPIC, 653 F.3d at

5-7). The government does not contend that DACA falls under

either of these alternative exceptions to the notice-and-comment

requirement, however, and the Court therefore will not address

these arguments.

49a

v. FCC, 867 F.2d 654, 657 (D.C. Cir. 1989). However,

because “a reviewing court . . . must judge the propriety of [agency] action solely by the grounds invoked

by the agency,” post hoc explanations that the agency

did not articulate when it acted are insufficient. SEC

v. Chenery Corp., 332 U.S. 194, 196 (1947).

Here, the Department never stated, and the government does not now contend, that DACA’s rescission

reflected a change in the agency’s immigration enforcement priorities. Instead, the government points

to two reasons for DACA’s rescission: first, the Department’s legal conclusion that DACA was unconstitutional and without statutory authority; and second,

its assessment of what it now calls “litigation risk”—

the likelihood that DACA would have been abruptly

enjoined in the Texas litigation. Because these were

the only reasons given by the agency, DACA’s rescission can be sustained only on those grounds, even if the

agency could have validly rescinded DACA as an exercise of its enforcement discretion. See Sea-Land Serv.,

Inc. v. Dep’t of Transp., 137 F.3d 640, 646 (D.C. Cir.

1998) (“An agency action, however permissible as an

exercise of discretion, cannot be sustained ‘where it is

based not on the agency’s own judgment but on an

erroneous view of the law.’ ” (citation omitted)).

The Department’s Conclusion that DACA Was

Unlawful

Plaintiffs first attack DHS’s reliance on DACA’s

purported unlawfulness as a reason to rescind DACA.

They argue both that DHS failed adequately to explain

its legal conclusion, see Princeton MSJ at 11-17, and

that even if DHS’s explanation were adequate, its conclusion was erroneous, see id. at 17-27. The Court

50a

agrees that DHS’s decision was inadequately explained,

and hence it need not address the alternative argument

that DHS’s conclusion was substantively incorrect.

“One of the basic procedural requirements of administrative rulemaking is that an agency must give adequate reasons for its decisions.” Encino Motorcars,

136 S. Ct. at 2125. Thus, when an agency reverses a

prior decision, it must “provide a reasoned explanation

for the change.” Id. That explanation need not be

“more detailed . . . than what would suffice for a new

policy created on a blank slate,” but it must address the

“facts and circumstances that underlay or were engendered by the prior policy,” including any “serious

reliance interests.” Id. at 2125-26 (quoting FCC v.

Fox Television Stations, Inc., 556 U.S. 502, 515 (2009));

see also id. at 2126 (“[A]n ‘unexplained inconsistency’ in

agency policy ‘is a reason for holding an interpretation

to be an arbitrary and capricious change . . . .’ ” (alterations and citation omitted)).

In concluding that DACA was unlawful, DHS purported to identify both statutory and constitutional defects with the program. For its part, the Rescission

Memo pointed to “the Supreme Court’s and the Fifth

Circuit’s rulings” in the Texas litigation and then cited

the Sessions Letter, see AR 255, which stated that

“DACA was effectuated by the previous administration

through executive action, without proper statutory authority and with no established end-date, after Congress’s repeated rejection of proposed legislation that

would have accomplished a similar result.” AR 251.

The Sessions Letter also stated that “[s]uch an openended circumvention of the immigration laws was an

unconstitutional exercise of authority by the Executive

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Branch,” and later, in its concluding paragraph, it cited

the Executive’s duty to “faithfully execute the laws

passed by Congress.” Id. It also opined that “the

DACA policy has the same legal and constitutional

defects that the courts recognized as to DAPA.” Id.

This scant legal reasoning was insufficient to satisfy

the Department’s obligation to explain its departure

from its prior stated view that DACA was lawful. In

concluding that DACA was implemented “without statutory authority,” neither the Sessions Letter nor the

Rescission Memo cited any statutory provision with

which DACA was in conflict. Cf. Encino Motorcars,

136 S. Ct. at 2127 (rejecting as inadequate an agency’s

statement that a particular statutory exemption “does

not include [certain] positions and the [agency] recognizes that there are circumstances under which the

requirements for the exemption would not be met”).

True, both documents pointed to the Fifth Circuit’s

decision in Texas, which held that DAPA likely conflicted with the INA’s “intricate process for illegal

aliens to derive a lawful immigration classification from

their children’s immigration status.” Texas, 809 F.3d

at 179. But the government does not meaningfully

dispute that, unlike DAPA, “DACA has ‘no analogue

in the INA.’ ” Defs.’ Reply at 22 (quoting Regents,

279 F. Supp. 3d at 1042). Thus, the Fifth Circuit’s

statutory analysis is inapposite. 20 The Department’s

The Fifth Circuit also concluded that “there was evidence from

DACA’s implementation that DAPA’s discretionary language was

pretextual.” Texas, 809 F.3d at 173; see id. at 172-176 (upholding

the district court’s factual finding that although “the DACA Memo

instructed agencies to review applications on a case-by-case basis

and exercise discretion, . . . those statements were ‘merely pre20

52a

conclusion that DACA was implemented without statutory authority—based only on an incongruous reference

to the Fifth Circuit’s decision on DAPA—therefore

cannot support the program’s rescission.

The Department’s explanation for its conclusion that

DACA was unconstitutional was equally opaque. The

Sessions Letter made a fleeting reference to the Attorney General’s “duty to . . . faithfully execute the

laws passed by Congress,” AR 251, which could be read

to invoke the President’s constitutional duty to “take

Care that the Laws be faithfully executed.” See U.S.

Const. art. II, § 3. But the letter made no attempt to

explain why DACA breached that duty. 21 This failure

text’ because only about 5% of [DACA] applications . . . had

been denied” and because the government could not identify how

many of those had been denied for discretionary reasons (footnote

omitted)). But the Fifth Circuit relied on that finding only to

conclude that DAPA should have been promulgated using noticeand-comment rulemaking, not that it conflicted substantively with

the INA. See id. at 171-178. And although OLC had orally

advised the Department that “it was critical that, like past policies

that made deferred action available to certain classes of aliens, the

DACA program require immigration officials to evaluate each application for deferred action on a case-by-case basis, rather than

granting deferred action automatically to all applicants who satisfied the threshold eligibility criteria,” AR 21 n.8, neither the Rescission Memo nor the Sessions Letter identified this purported

flaw as a reason for DACA’s invalidity.

At least one commentator has identified a second possible constitutional argument in the Sessions Letter: “The Obama administration’s open-ended reading of certain definitional provisions

of the Immigration and Nationality Act (INA) would run afoul of

the nondelegation doctrine.” See Josh Blackman, Understanding

Sessions’s Justification to Rescind DACA, Lawfare (Jan. 16, 2018,

8:00 AM) https://www.lawfareblog.com/understanding-sessionssjustification-rescind-daca; see also Texas, 809 F.3d at 150 (noting

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was particularly acute in light of a thirty-three page

memorandum prepared in 2014 by the Office of Legal

Counsel (“OLC”), which deduced “from the nature of

the Take Care duty” no fewer than “four general . . .

principles governing the permissible scope of enforcement discretion” and concluded that DAPA, a similar

deferred-action program, was consistent with all of

them. AR 9-10, 14-36. 22 And although the Sessions

Letter asserted that DACA suffered from “the same

. . . constitutional defects that the courts recognized

as to DAPA,” AR 251, the Fifth Circuit’s decision in

Texas did not actually identify any such defects. Indeed, it expressly declined to address the plaintiffs’

constitutional claims. See 809 F.3d at 146 n.3. Like

its evaluation of its statutory authority to implement

DACA, then, the Department’s analysis of DACA’s

constitutionality was so barebones that the Court cannot “discern[]” the “path” that the agency followed.

that the plaintiffs there had asserted “constitutional claims under

the Take Care Clause” and the “separation of powers doctrine”).

The government does not raise these arguments, however, so the

Court will not consider them.

The OLC memorandum did not directly address the Department’s authority to implement DACA. See AR 5-14 (discussing

the agency’s authority to “prioritize the removal of certain categories of aliens over others”); AR 14-36 (discussing the agency’s authority to implement DAPA). However, the memo did state that

OLC had “orally advised” the Department that DACA was lawful

so long as “immigration officials retained discretion to evaluate

each application on an individualized basis.” AR 21 n.8 (“[T]he

concerns animating DACA were . . . consistent with the types

of concerns that have customarily guided the exercise of immigration enforcement discretion.”).

54a

Encino Motorcars, 136 S. Ct. at 2125 (citation omitted). 23 Thus, it too cannot support DACA’s rescission.

The Department’s failure to give an adequate explanation of its legal judgment was particularly egregious here in light of the reliance interests involved.

See Encino Motorcars, 136 S. Ct. at 2126. The Rescission Memo made no mention of the fact that DACA

had been in place for five years and had engendered

the reliance of hundreds of thousands of beneficiaries,

many of whom had structured their education, employment, and other life activities on the assumption

that they would be able to renew their DACA benefits. 24 The Supreme Court has set aside changes in

Neither Encino Motorcars nor any of its predecessor cases

explicitly required an agency to address its prior views on the

legality of its prior policy. See, e.g., Fox, 556 U.S. at 515 (explaining that “[a]n agency may not . . . depart from a prior

policy sub silentio” (first emphasis added)). But where, as here,

the OLC provides an agency with an opinion that suggests a legal

framework for evaluating the legality of a particular program and

the agency later rescinds that policy on legal grounds, failure to

even consider OLC’s thorough analysis is arbitrary and capricious.

See Trevor W. Morrison, Stare Decisis in the Office of Legal

Counsel, 110 Colum. L. Rev. 1448, 1464 (2010) (“OLC’s legal advice

is treated as binding within the Executive Branch until withdrawn

or overruled.”); Hispanic Affairs Project v. Acosta, 263 F. Supp. 3d

160, 178 (D.D.C. 2017) (concluding that an “agency’s nonconsideration of [certain] OLC memoranda—whether deliberate or

inadvertent—is all the more reason to consider them in reviewing

the agency’s action,” because “[a] contrary result would permit

agencies to toss aside OLC memoranda that contain legal conclusions contrary to the agency’s preferred policy choices”).

See, e.g., Perales Decl. ¶¶ 21-22 (if DACA were rescinded, Ms.

Perales Sanchez would have to abandon her plans of conducting

postgraduate research in Mexico and then applying to law school,

because she could no longer travel abroad, take out student loans,

55a

agency policy for failure to consider reliance interests

that pale in comparison to the ones at stake here.

See, e.g., Encino Motorcars, 136 S. Ct. at 2126 (setting

aside the Department of Labor’s interpretation of a

statutory exemption from the Fair Labor Standards

Act’s overtime-pay requirements, in part because the

agency had failed to address “decades of industry reliance” on its prior view that the exemption applied to a

particular class of employees). Because DHS failed to

even acknowledge how heavily DACA beneficiaries had

come to rely on the expectation that they would be able

to renew their DACA benefits, its barebones legal

interpretation was doubly insufficient and cannot support DACA’s rescission.

Litigation Risk

The Department’s second justification for DACA’s

rescission was its conclusion that, if DACA were challenged in the Texas litigation, the district court there

would enter a “nationwide injunction” that “would have

prompted an immediate—and chaotic—end to the policy.” Defs.’ Reply at 15. Plaintiffs contend that this

“litigation risk” conclusion was arbitrary and caprior work lawfully in the United States); Decl. of Jane Doe #2, Ex. S

to Princeton MSJ [ECF No. 28-17] ¶¶ 11-13 (current special education teacher and DACA beneficiary would lose her job and would

have to abandon her plans of pursuing a doctorate in audiology);

Decl. of Jane Doe #5, Ex. X to Princeton MSJ [ECF No. 28-17]

¶ 11 (current undergraduate student and DACA beneficiary would

have to abandon her plans of attending law school). Plaintiffs filed

a motion for leave to file pseudonymous declarations with their

summary judgment motion. See Pls.’ Mot. for Leave to Allow

Three Declarants to Proceed by Pseudonym [ECF No. 22]. The

government did not oppose the motion, so the Court will treat it as

conceded and grant it. See Local Civ. R. 7(b).

56a

cious and hence cannot sustain DACA’s rescission.

Princeton MSJ at 28-36. They are correct.

As an initial matter, plaintiffs assert that the government’s litigation-risk argument is an “impermissible

post hoc rationalization” of the Department’s decision

to rescind DACA. Princeton MSJ at 28. Here, plaintiffs miss the mark. Although both the Rescission Memo

and the Sessions Letter focused primarily on DACA’s

statutory and constitutional defects, the Sessions Letter did state that DAPA was “enjoined on a nationwide

basis” and that “it is likely that potentially imminent

litigation would yield similar results with respect to

DACA.” AR 251. Moreover, the Rescission Memo

went on to cite this concern as grounds for its decision

to “wind [DACA] down in an efficient and orderly

manner.” AR 254. Together, these statements were

sufficient to express the Department’s concern that a

nationwide injunction in the Texas litigation would

abruptly shut down the DACA program. See Chenery,

332 U.S. at 196.

Nevertheless, this concern does not withstand review under the familiar arbitrary and capricious standard. See State Farm, 463 U.S. at 43. First, as

already noted, there was good reason to doubt that the

second of the Fifth Circuit’s holdings in Texas—that

DAPA conflicted with the express provisions of the

INA, see 809 F.3d at 178-86—would extend to DACA,

because the INA does not prescribe a statutory naturalization process for DACA-eligible individuals. And

although the Fifth Circuit’s holding that DAPA should

have undergone notice-and-comment rulemaking likely

57a

would have extended to DACA, 25 see id. at 170-78, it

simply does not follow that the district court in Texas

was likely to issue an injunction bringing DACA to an

abrupt halt.

For one thing, it is black-letter administrative law

that when a court sets aside an agency action as procedurally invalid, the proper remedy is to remand the

action to allow the agency an opportunity to conduct

the required notice-and-comment procedures. See

Sugar Cane Growers Co-op. of Fla. v. Veneman,

289 F.3d 89, 98 (D.C. Cir. 2002) (observing that “[w]e

have previously remanded without vacating when the

agency failed to follow notice-and-comment procedures”);

C. & S.W. Services, Inc. v. EPA, 220 F.3d 683, 692

(5th Cir. 2000) (remanding without vacatur where the

agency “may well be able to justify its decision . . .

and it would be disruptive to vacate [the challenged]

rule”). It is true, as the government points out, that in

Texas the district court preliminarily enjoined DAPA

based solely on the program’s failure to have undergone notice-and-comment rulemaking.

See Texas,

86 F. Supp. 3d at 677. DAPA was challenged before it

took effect, however. See Texas, 809 F.3d at 149. By

contrast, as of September 5, 2017 (the date by which

Because DAPA had not yet been implemented, the Fifth Circuit

relied in large part on “extrapolation” from evidence regarding

DACA’s implementation to conclude that DAPA would not “genuinely leave the agency and its employees free to exercise discretion” and hence was a substantive rule that should have undergone

notice and comment. Texas, 809 F.3d at 171-176. The government is correct that “[w]hile that finding had to be ‘extrapolated’ to

invalidate DAPA, it directly dooms DACA itself,” at least as far as

notice and comment are concerned. Defs.’ Reply at 22 (citations

omitted).

58a

the Texas plaintiffs had threatened to challenge DACA,

see AR 239), DACA would have been in place for over

five years, and hundreds of thousands of applicants

would have already been granted deferred action under

the program. Thus, assuming that the district court

in the Texas litigation would have found DACA defective only on procedural grounds (as a fair reading of

the Fifth Circuit’s opinion would suggest), it seems

doubtful that the court would have preliminarily enjoined DACA instead of remanding it to the Department, perhaps without vacatur, to undergo notice-andcomment rulemaking.

On the other hand, if the Texas district court were

to find that DACA was substantively invalid—or indeed, unconstitutional—injunctive relief rather than

remand may have been the more likely remedy. But

it still does not follow that the district court’s injunction would have brought the DACA program to an

“immediate” and “chaotic” halt. Defs.’ Reply at 15.

As the Fifth Circuit has repeatedly recognized, district

courts have “broad discretion” to “fashion[] equitable

relief,” Crawford v. Silette, 608 F.3d 275, 278 (5th Cir.

2010), including injunctive relief, see ODonnell v. Harris County, 882 F.3d 528, 537 (5th Cir. 2018) (noting

that a district court’s injunction is reviewed for abuse

of discretion). In light of this discretion, it strains

credulity to suggest that the district court would have

enjoined DACA immediately and completely without

allowing DHS any opportunity to wind the program

down. Thus, regardless of the grounds on which the

district court in Texas might have ultimately invalidated DACA, the Department’s insistence that an

“immediate—and chaotic—end to the policy” would

have resulted, Defs.’ Reply at 15, is “so implausible

59a

that it could not be ascribed to a difference in view or

the product of agency expertise,” State Farm, 463 U.S.

at 43, and was therefore arbitrary and capricious.

If, as the Court has concluded, see supra Part II.A,

an agency’s general enforcement policy is reviewable to

the extent that it is premised on a legal judgment, it

follows that the agency must explain that judgment in

sufficient detail to permit meaningful judicial review. 26

The parties dispute the standard of review that would apply to

the agency’s statutory and constitutional analysis had it been

adequately explained. The government maintains that it would be

reviewed for a “clear error of judgment”—that is, under the ordinary test for arbitrary and capricious agency action. State Farm,

463 U.S. at 43 (citation omitted); see Oral Arg. Tr. at 68:5-18.

Plaintiffs contend that review would be de novo. See Teva Pharm.

USA, Inc. v. FDA, 441 F.3d 1, 5 (D.C. Cir. 2006) (finding agency

action arbitrary and capricious where the agency “mistakenly

thought itself bound” by certain D.C. Circuit precedent); Prill v.

NLRB, 755 F.2d 941, 947 (D.C. Cir. 1985) (“An agency decision

cannot be sustained, however, where it is based not on the agency's

own judgment but on an erroneous view of the law.”). The district

court in Batalla Vidal has suggested a third option: because

“neither the Sessions Letter nor the DACA Rescission Memo carry

the ‘force of law,’ ” that court concluded, the Department’s “interpretation of the legality of the DACA program is [not] entitled to

formal or controlling deference.” Batalla Vidal, 279 F. Supp. 3d at

421 n.9 (E.D.N.Y. 2018) (quoting Mead, 533 U.S. at 226-27). Rather, it would be treated only as persuasive. See Mead, 533 U.S. at

234-35 (explaining that agency interpretations “contained in policy

statements, agency manuals, and enforcement guidelines” are

“beyond the Chevron pale” and instead deserve “respect proportional to [their] ‘power to persuade’ ” (quoting Christensen v. Harris Cty., 529 U.S. 576, 587 (2000); then Skidmore v. Swift & Co.,

323 U.S. 134, 140 (1944)). Because the Court does not reach the

merits of the Department’s conclusions that DACA lacked statutory

60a

See Encino Motorcars, 136 S. Ct. at 2127. Here, the

Department’s conclusory statements were insufficient

to explain the change in its view of DACA’s lawfulness. 27 Moreover, the agency’s prediction regarding the

outcome of threatened litigation over DACA’s validity

—specifically, that the district court in the Texas litigation would immediately halt the program, without

any opportunity for a wind-down—was so implausible

that it fails even under the deferential arbitrary and

capricious standard. DACA’s rescission will therefore

be set aside. 28

and constitutional authority, however, it expresses no opinion as to

what standard of review would apply.

The district court in Casa de Maryland reached the opposite

conclusion. See 284 F. Supp. 3d at 772 (finding that DHS had a

“reasonable basis” to conclude that DACA was unlawful based on

“the DAPA litigation, the threatened legal challenge, and the

Attorney General’s advisory letter”). But that court’s brief discussion of the issue failed to address the limited applicability of the

Fifth Circuit’s Texas decision to DACA, the inadequacy of the

Sessions Letter itself, DHS’s failure to address DACA beneficiaries’ reliance interests, and the implausibility of an injunction issuing

in the Texas litigation that would put an immediate end to DACA.

Therefore, this Court respectfully disagrees with the Casa de

Maryland court’s analysis.

The government also urges the Court to construe the Department’s statement that DACA was “unconstitutional in part because

it was an ‘open-ended’ policy that closely tracked ‘proposed legislation’ that Congress had repeatedly rejected” as an “independent

policy judgment” that “immigration decisions of [DACA’s] magnitude should be left to Congress.” Defs.’ Reply at 21 (quoting AR

251 and citing Syracuse Peace Council, 867 F.2d at 657-58 (holding

that if an agency offers two justifications for its decision, one

constitutional and one discretionary, and if a court is “persuaded”

that the agency would have reached the same result on discretionary grounds had it “foregone its ruminations on the constitutional

61a

Remedy

Having concluded that DACA’s rescission violated

the APA, the question of remedy remains. As an

initial matter, the Court will reject the government’s

invitation to confine its grant of relief strictly to the

plaintiffs in this action. See Defs.’ Reply at 44-45.

As plaintiffs point out, the D.C. Circuit has previously

rejected an agency’s suggestion that “the named plaintiffs alone should be protected by [an] injunction,” explaining that “[w]hen a reviewing court determines that

agency regulations are unlawful, the ordinary result is

that the rules are vacated—not that their application to

the individual petitioners is proscribed.” Harmon v.

Thornburgh, 878 F.2d 484, 495 n.21 (D.C. Cir. 1989).

Moreover, as the Fifth Circuit noted in Texas, the

immigration context counsels strongly in favor of nationwide relief: “the Constitution requires ‘an uniform

Rule of Naturalization,’ ” 809 F.3d at 187 (quoting U.S.

Const. art. I, § 8), “Congress has instructed that ‘the

immigration laws of the United States should be enforced vigorously and uniformly,’ ” id. at 187-88 (quoting Immigration Reform and Control Act of 1986, Pub.

L. No. 99-603, § 115(1), 100 Stat. 3359, 3384), “and the

Supreme Court has described immigration policy as ‘a

comprehensive and unified system,’ ” id. at 188 (quoting

Arizona v. United States, 567 U.S. 387, 401 (2012)).

issue,” the court may avoid the constitutional issue and uphold the

agency action only on the discretionary ground)). But the government offers no support for the proposition that an agency’s view as

to which branch of government ought to address a particular policy

issue is an assessment appropriately committed to the agency’s

discretion. Cf. Chaney, 470 U.S. at 831 (listing such assessments).

62a

Thus, the Court concludes that nationwide relief is

appropriate here.

The only remaining issue, then, is what form the

Court’s relief should take. “[U]nsupported agency action normally warrants vacatur.” Advocates for Highway & Auto Safety v. Fed. Motor Carrier Safety Admin., 429 F.3d 1136, 1151 (D.C. Cir. 2005). But courts

have discretion to remand without vacatur if “there is

at least a serious possibility that the [agency] will be

able to substantiate its decision,” and if “vacating would

be disruptive.” Radio-TV News Directors Ass’n v.

FCC, 184 F.3d 872, 888 (D.C. Cir. 1999) (alteration in

original) (citation omitted); see Allied-Signal, Inc. v.

U.S. Nuclear Reg. Comm’n, 988 F.2d 146, 150-51 (D.C.

Cir. 1993) (“The decision whether to vacate depends on

the seriousness of the order’s deficiencies . . . and

the disruptive consequences of an interim change that

may itself be changed.” (citation omitted)). Alternatively, a court may vacate the unlawful action but stay

its order of vacatur for a limited time to allow the agency

to attempt to cure the defects that the court has identified. See Friends of Earth, Inc. v. EPA, 446 F.3d 140,

148 (D.C. Cir. 2006) (remanding to the district court

with instructions to vacate an agency rule but noting

that the district court possessed “remedial discretion

. . . to stay [its] order on remand”); Nat. Res. Def.

Council, Inc. v. EPA, Civ. Action No. 16-1861 (JDB),

2018 WL 1568882, at *8 (D.D.C. Mar. 30, 2018) (vacating a rule but staying the order of vacatur until such

time as the agency promulgated a replacement); see

also A.L. Pharma, Inc. v. Shalala, 62 F.3d 1484, 1492

(D.C. Cir. 1995) (remanding and providing for “automatic[]” vacatur unless the agency justified its decision

within 90 days); Rodway v. USDA, 514 F.2d 809, 817-18

63a

(D.C. Cir. 1975) (remanding and giving the agency

120 days to complete the rulemaking process).

Here, the first Allied-Signal factor—the seriousness

of the action’s defects—favors remand without vacatur,

although not unequivocally. On the one hand, it is

certainly possible that the Department could articulate

a valid reason for DACA’s rescission. For example, it

could offer a coherent legal argument that DACA conflicts with the INA or violates the President’s duty to

“take Care that the Laws be faithfully executed,” U.S.

Const. art. II, § 3, or it could explain why, as a matter

of policy, DACA-eligible individuals should no longer

be low-priority targets for removal. Accord Batalla

Vidal, 279 F. Supp. 3d at 408 (“Defendants indisputably

can end the DACA program.”). But there is some

evidence in the record to suggest that the Department

would not have rescinded DACA but for its supposed

illegality. See, e.g., Ex. 119 to Princeton MSJ [ECF

No. 28-15] at 2003 (congressional testimony of DHS

officials that DACA beneficiaries are “a benefit to the

country” and that “[w]e need to regularize their status

through some legal means”). And although it seems

that no court has yet passed judgment on DACA’s

constitutionality, at least one court in this district has

concluded that DACA was likely “consistent with, rather than contrary to, congressional policy.” Arpaio v.

Obama, 27 F. Supp. 3d 185, 208-09 (D.D.C. 2014) (concluding that the plaintiff ’s substantive APA challenge

to DACA was unlikely to succeed on the merits), aff ’d,

797 F.3d 11 (D.C. Cir. 2015) (affirming only on standing

grounds). Thus, although the substantive flaws in

DACA’s rescission are curable in theory, the Department may face practical obstacles when attempting to

remedy them. Nonetheless, there remains a “non-trivial

64a

likelihood” that the agency could justify DACA’s rescission on remand, WorldCom, Inc. v. FCC, 288 F.3d

429, 434 (D.C. Cir. 2002), so the first Allied-Signal factor supports remand without vacatur.

The second Allied-Signal factor—the risk of disruption

—also tips slightly in favor of remand without vactur.

On the one hand, two courts have already preliminarily

enjoined DACA’s rescission, see Regents, 279 F. Supp.

3d at 1047-50; Batalla Vidal, 279 F. Supp. 3d at 437-38,

which suggests that vacatur would cause little disruption, at least initially. 29 On the other hand, neither

injunction applies to initial DACA applications, which

the Department has stopped accepting. Thus, vacating

DACA’s rescission could lead to “an interim change”—

an influx of initial DACA applications—“that may itself

be changed” if DHS later provides a sufficient explanation for DACA’s rescission. 30 Allied-Signal, 988 F.2d at

True, both preliminary injunctions are currently the subjects of

expedited appeals. This fact actually favors vacatur, however,

because if both injunctions are overturned, then this Court’s order

of vacatur would preserve DACA pending the Department’s revised explanation for the program’s rescission, thereby maintaining

the status quo.

Nor would it be proper for the Court to vacate DACA’s rescission except as to initial applications. While a court has discretion

to craft preliminary injunctive relief based on a number of equitable factors, see Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7,

20, 24 (2008), its discretion in fashioning administrative remedies is

somewhat more limited, see Harmon, 878 F.2d at 494-95 (“Courts

ordinarily do not attempt, even with the assistance of agency

counsel, to fashion a valid regulation from the remnants of the old

rule . . . [or to] draw[] a line which the agency itself has never

drawn.”). Here, there is no principled basis to distinguish between initial DACA applications and renewal applications, since the

Rescission Memo’s substantive invalidity stems chiefly from its

65a

150-151 (citation omitted). On balance, therefore, the

two Allied-Signal factors tend to favor remand without

vacatur.

However, the Court is also mindful that, as several

judges of the D.C. Circuit have noted, remand without

vacatur “sometimes invites agency indifference.” In re

Core Comm’n, Inc., 531 F.3d 849, 862 (D.C. Cir. 2008)

(Griffith, J., concurring) (urging courts “to consider the

alternatives to the open-ended remand without vacatur”); see Nat. Res. Def. Council v. EPA, 489 F.3d

1250, 1262-64 (D.C. Cir. 2007) (Randolph, J., concurring) (“A remand-only disposition is, in effect, an indefinite stay of the effectiveness of the court’s decision

and agencies naturally treat it as such.”). This concern

is particularly acute here, where each day that the agency delays is a day that aliens who might otherwise be

eligible for initial grants of DACA benefits are exposed to

removal because of an unlawful agency action. Moreover, although the preliminary injunctions in Regents

and Batalla Vidal currently protect aliens who have already received DACA grants, those injunctions are both

on expedited appeals and hence could be reversed in the

not-too-distant future. These concerns suggest that

time is of the essence here, and the Court need not

ignore this reality in crafting a remedy. Cf. Rodway,

514 F.2d at 817-18 (ordering that regulations concerning the food stamp system be revised “with expedition”

—that is, within 120 days—because “[i]n matters as vital

as basic nutrition there is no excuse for delay”).

inadequately explained rationale. The Court therefore will not

fashion an ad hoc order of vacatur along these lines.

66a

In light of the Allied-Signal factors, which tip in favor of remand without vacatur, and the troubling humanitarian consequences of the delays that remedy

might invite, the Court will adopt an intermediate

course: it will vacate DACA’s rescission but stay its

order of vacatur for 90 days. During that time, the

Secretary of Homeland Security or her delegate may

reissue a memorandum rescinding DACA, this time

providing a fuller explanation for the determination

that the program lacks statutory and constitutional

authority. Should the Department fail to issue such a

memorandum within 90 days, however, the Rescission

Memo will be vacated in its entirety, and the original

DACA program will be restored in full. This means,

among other things, that the agency will be required to

resume accepting initial DACA applications and applications for advanced parole.

III. CONSTITUTIONAL CHALLENGES

The government has also moved under Rule 12(b)(6)

to dismiss the three constitutional claims asserted in

plaintiffs’ complaints for failure to state a claim. See

Princeton MTD 37-44; NAACP MTD 37-43. Two of

these claims—one grounded in equal protection, see

Pls.’ Opp’n at 24-27, and the other in due process, id. at

27-32—are challenges to DACA’s rescission itself. The

third argues that the Department may not, consistent

with applicable due process principles, use DACA beneficiaries’ personal identifying information to initiate immigration enforcement proceedings against them, and

plaintiffs seek a preliminary injunction to that effect.

Id. at 32-35.

67a

In light of its decision to vacate DACA’s rescission,

the Court will defer ruling on the government’s motion

to dismiss plaintiffs’ first two constitutional challenges.

Because plaintiffs have failed to plausibly allege facts

to support their information-sharing claim, however,

that claim will be dismissed without prejudice.

Challenges to DACA’s Rescission

As noted, plaintiffs’ constitutional challenges to

DACA’s rescission proceed along two lines. First, plaintiffs argue that DACA’s rescission violates the equal

protection guarantee of the Fifth and Fourteenth

Amendments, because it deprives undocumented aliens

of certain benefits that remain available to aliens who

are lawfully present in the United States. Pls.’ Opp’n

at 24-27 (citing Plyler v. Doe, 457 U.S. 202 (1982); then

Romer v. Evans, 517 U.S. 620 (1996)). Second, plaintiffs maintain that DACA’s rescission deprives existing

DACA beneficiaries of their liberty and property interests in renewing their DACA benefits without due

process of law. Id. at 27-31.

The Court will defer ruling on the government’s motions to dismiss these two constitutional claims. To begin with, because the Court has already concluded that

DACA’s rescission violates the APA, it is not necessary

to address plaintiffs’ constitutional claims now. See Nw.

Austin Mun. Util. Dist. No. One v. Holder, 557 U.S.

193, 205 (2009) (noting that courts generally avoid

deciding constitutional issues unnecessarily); Texas,

809 F.3d at 146 n.3 (declining to reach plaintiffs’ constitutional challenges to DAPA and instead affirming

only on APA grounds). Moreover, litigation over similar constitutional issues has either reached or progressed past the motion-to-dismiss stage in three other

68a

cases, see Regents, 2018 WL 401177, at *2-7; Batalla

Vidal, 2018 WL 1532370, at *6-14; Casa de Maryland,

284 F. Supp. 3d at 773-777, and the Court is especially

reluctant unnecessarily to address constitutional issues

that have already been thoroughly considered by other

courts. Finally, the Department could, on remand, alter DACA’s rescission in ways that might affect the

merits of plaintiffs’ constitutional claims. 31 At this

stage of the proceedings, then, the Court will defer ruling on the government’s motion to dismiss plaintiffs’

constitutional challenges to DACA’s rescission.

Information-Sharing Claim

Plaintiffs seek a preliminary injunction preventing

DHS from sharing DACA beneficiaries’ personal information with immigration enforcement authorities or

otherwise using it for immigration enforcement purposes. See Princeton MSJ at 48-53; Pls.’ Opp’n at

32-35. The government has moved to dismiss plaintiffs’ information-sharing claim, arguing primarily that

DHS had previously stated its intent not to use DACA

beneficiaries’ personal information in this way and that

plaintiffs have not plausibly alleged that the agency has

since changed its policy. See Princeton MTD at 41-42;

Defs.’ Reply at 36-37. The government also contends

that even if the Department had changed its informationsharing policy, there would be no due-process violation,

because that policy has always stated that it “may

be modified, superseded, or rescinded at any time.”

For example, the Department might provide for procedures

through which an existing DACA recipient could contest the revocation of her DACA benefits—something that the current Rescission Memo does not do. Such procedures could, at least in theory,

be relevant to plaintiffs’ procedural due process claim.

69a

Princeton MTD at 43 (citation omitted); Defs.’ Reply at

37-39 (citation omitted).

To secure preliminary injunctive relief, plaintiffs

“must establish (1) that [they are] likely to succeed on

the merits, (2) that [they are] likely to suffer irreparable harm in the absence of preliminary relief, (3) that

the balance of equities tips in [their] favor, and (4) that

an injunction is in the public interest.” Winter, 555 U.S.

at 20. Here, the third and fourth prongs of this test—

the equities and the public interest—clearly favor plaintiffs, who allege that the Department intends to use

DACA beneficiaries’ identifying information against

them despite its earlier assurances that it would not do

so, which induced the beneficiaries to provide the information in the first place.

Plaintiffs have also demonstrated a likelihood of

success on the merits—as least as to their legal theory.

Plaintiffs rely on two cases, Cox v. Louisiana, 379 U.S.

536 (1965), and Raley v. Ohio, 360 U.S. 423 (1959), for

the general proposition that “[d]ue process forbids the

Government from making and then breaking promises

about the legal consequences of a specific action.”

Princeton MSJ at 48. In Raley, the Supreme Court

found a due process violation where four individuals

were convicted of failing to answer questions posed by

Ohio’s Un-American Activities Commission after the

chairman of that commission had specifically represented to the individuals that they could refuse to answer pursuant to a state-law privilege. See 360 U.S.

at 437-38; see also id. at 438 (“[T]o sustain the judgment of the Ohio Supreme Court on such a basis after

the Commission had acted as it did would be to sanction the most indefensible sort of entrapment by the

70a

State—convicting a citizen for exercising a privilege

which the State clearly had told him was available to

him.”). And in Cox, the Court, relying on Raley, held

that it violated due process to convict demonstrators

under a statute that prohibited demonstrating “near” a

courthouse where “the highest police officials of the

city . . . in effect told the demonstrators that they

could meet where they did.” 379 U.S. at 571; see also

Santobello v. New York, 404 U.S. 257, 262 (1971) (recognizing a substantive due process right to enforce the

terms of a plea agreement). This argument is sufficiently persuasive to support preliminary injunctive

relief.

The sticking point here is the second prong—the

likelihood of irreparable harm. Several factors convince the Court that the harm to DACA beneficiaries of

having their information shared with immigration enforcement authorities, though likely irreparable, is insufficiently imminent to justify preliminary injunctive

relief. League of Women Voters of U.S. v. Newby,

838 F.3d 1, 7-8 (D.C. Cir. 2016) (harm is irreparable

only if it is “so ‘imminent that there is a clear and present need for equitable relief . . . .’ ” (alterations and

citation omitted)). For one thing, the Department has

recently reaffirmed that its “information-sharing policy

has not changed in any way since it was first announced, including as a result of the Sept. 5, 2017

memo starting a wind-down of the DACA policy.”

USCIS, DHS, Frequently Asked Questions: Rejected

DACA Requests Q5, https://www.uscis.gov/daca2017/

mail-faqs (last updated Feb. 14, 2018). 32 This fact was

This document does not appear in the administrative record,

but the Court takes judicial notice of it. See Fed. R. Evid. 201(b)(2)

71a

enough to persuade one other district court to dismiss a

similar information-sharing claim. See Batalla Vidal,

2018 WL 1532370, at *10-11. On the other hand, two

courts have reached the opposite conclusion, see Regents, 2018 WL 401177, at *4-5; Casa de Maryland,

284 F. Supp. 3d at 777-79, and one of those courts has

already granted the injunctive relief that plaintiffs

seek here, see Amended Order, Casa de Maryland,

No. 17-cv-2942 (D. Md. Mar. 15, 2018), ECF No. 49

(enjoining the Department from (1) using or sharing

DACA beneficiaries’ personal information except as

originally specified on the DACA application forms and

instructions and (2) changing its information-sharing

policy without the Court’s preapproval). But that injunction now in place further belies any suggestion that

irreparable harm to DACA beneficiaries is imminent

—their information cannot now be used as they fear.

Hence, the Court concludes that plaintiffs have failed

to demonstrate that they are entitled to preliminary

injunctive relief on their information-sharing claim,

and their motion for preliminary injunctive relief will

be denied.

The Court also concludes that plaintiffs have failed

to state a claim. See Fed. R. Civ. P. 12(b)(6). Plaintiffs point to a discrepancy between a prior statement

by the Department that DACA beneficiaries’ information would be “protected from disclosure” and a

later statement issued on the date of DACA’s rescission that the information would not be “proactively”

(“The court may judicially notice a fact that is not subject to reasonable dispute because it . . . can be accurately and readily

determined from sources whose accuracy cannot reasonably be

questioned.”).

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provided to immigration enforcement authorities. See

Princeton Compl. ¶ 51. Even if this discrepancy were

sufficient to plausibly allege that DACA beneficiaries’

information has been or will be used inconsistently with

DHS’s stated information-sharing policy, the agency

has since reaffirmed its commitment to that prior policy, and the Court may take judicial notice of that fact in

ruling on the government’s motion to dismiss. See

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“To survive

a motion to dismiss, a complaint must contain sufficient

factual matter, accepted as true, to ‘state a claim to

relief that is plausible on its face.’ ” (quoting Bell Atl.

Corp. v. Twombly, 550 U.S. 544, 570 (2007)); Vasser v.

McDonald, 228 F. Supp. 3d 1, 10 (D.D.C. 2016) (“Courts

may take judicial notice of matters of a general public

nature without converting the motion to dismiss into

one for summary judgment.” (alterations and citation

omitted)). 33 Thus, the government’s Rule 12(b)(6)

motion will be granted as to plaintiffs’ informationsharing claim.

CONCLUSION

Executive Branch officials possess relatively unconstrained authority to enforce the law against certain

violators but not others. Ordinarily, the exercise of

that authority is subject to review not in a court of law,

but rather in the court of public opinion: members of

the public know how their elected officials have used

For similar reasons, the Court will not address the argument

made by amici LatinoJustice PRLDEF (and others) that DHS’s

breach of the information-sharing policy would violate the Privacy

Act of 1974, 5 U.S.C. § 552a, and the agency’s own privacy rules.

See Br. of LatinoJustice PRLDEF, et al., as Amicus Curiae [ECF

No. 36-2].

73a

their enforcement powers, and they can hold those

officials accountable by speaking out, by petitioning

their representatives, or ultimately at the ballot box.

When an official claims that the law requires her to

exercise her enforcement authority in a certain way,

however, she excuses herself from this accountability.

Moreover, if her view of the law is incorrect, she may

needlessly forego the opportunity to implement appropriate enforcement priorities and also to demonstrate

those priorities to the public.

Fortunately, neither Supreme Court nor D.C. Circuit precedent compels such a result. Rather, the cases

are clear that courts have the authority to review an

agency’s interpretation of the law if it is relied on to

justify an enforcement policy, even when that interpretation concerns the lawful scope of the agency’s enforcement discretion. See Chaney, 470 U.S. at 832-33;

OSG, 132 F.3d at 812; Crowley, 37 F.3d at 676-77.

Under this rule, an official cannot claim that the law

ties her hands while at the same time denying the

courts’ power to unbind her. She may escape political

accountability or judicial review, but not both.

Here, the Department’s decision to rescind DACA

was predicated primarily on its legal judgment that the

program was unlawful. That legal judgment was virtually unexplained, however, and so it cannot support

the agency’s decision. And although the government

suggests that DACA’s rescission was also predicated

on the Department’s assessment of litigation risk, this

consideration is insufficiently distinct from the agency’s legal judgment to alter the reviewability analysis.

It was also arbitrary and capricious in its own right,

and thus likewise cannot support the agency’s action.

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For these reasons, DACA’s rescission was unlawful and

must be set aside.

For the reasons given above, then, the Court will

vacate the Department’s September 5, 2017 decision to

rescind the DACA program. The Court will stay its

order of vacatur for 90 days, however, to afford DHS

an opportunity to better explain its view that DACA is

unlawful. The Court will also deny the government’s

motion to dismiss for lack of subject-matter jurisdiction,

its motion to dismiss plaintiffs’ APA claims on reviewability grounds, and its motion to dismiss plaintiffs’ substantive APA claim; grant the government’s motion to

dismiss plaintiffs’ procedural APA claim, the NAACP

plaintiffs’ RFA claim, and plaintiffs’ information-sharing

claim; and defer ruling on the government’s motion to

dismiss plaintiffs’ remaining constitutional claims. Finally, the Court will also grant plaintiffs’ motion for

partial summary judgment as to their substantive APA

claim, deny that motion as to their procedural APA

claim, and deny their motion for preliminary injunctive

relief on their information-sharing claim. A separate

order has been issued on this date.

/s/

JOHN D. BATES

United States District Judge

Dated: Apr. 24, 2018

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APPENDIX B

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

Civil Action No. 17-1907 (JDB)

NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF

COLORED PEOPLE, ET AL., PLAINTIFFS

DONALD J. TRUMP, ET AL., DEFENDANTS

Filed: Apr. 24, 2018

ORDER

Upon consideration of [15] defendants’ motion to

dismiss and plaintiffs’ motion for summary judgment,

which was filed as a joint motion in a related case, see

Pls.’ Mot. for Summ. J., Princeton v. United States,

Civ. Action No. 17-2325 (JDB) (D.D.C. Dec. 15, 2017),

ECF No. 28, and for the reasons stated in the Memorandum Opinion issued on this date, it is hereby

ORDERED that [15] the government’s motion to

dismiss is GRANTED as to plaintiffs’ procedural Ad-

ministrative Procedure Act (“APA”) claim (stated in

Count III), their information-sharing claim (stated in

Counts I and II), and their Regulatory Flexibility Act

claim (Count VI); DENIED as to their substantive APA

claim (stated in Count III); and DENIED IN PART

AND DEFERRED IN PART as to their constitutional

claims (stated in Count II); it is further

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ORDERED that [28] plaintiffs’ motion for summary

judgment is GRANTED as to their substantive APA

claim but DENIED as to their procedural APA claim; it

is further

ORDERED that the Department of Homeland Secu-

rity’s (“DHS”) September 5, 2017 decision to rescind

the Deferred Action for Childhood Arrivals (“DACA”)

program is VACATED and REMANDED to the agency;

it is further

ORDERED that the Court’s order of vacatur is

STAYED for ninety days; and it is further

ORDERED that the parties shall file, by not later

than Friday, July 27, 2018 a joint status report stating

whether DHS has issued a new decision rescinding

DACA and whether the parties contemplate the need

for further proceedings in this case.

Moreover, upon consideration of the remaining motions pending in this case, it is hereby

ORDERED that [18] plaintiffs’ unopposed motion to

submit pseudonymous declarations is GRANTED; and

it is further

ORDERED that [9] plaintiffs’ motion for a scheduling order is DENIED as moot.

SO ORDERED.

/s/

JOHN D. BATES

United States District Judge

Dated:

Apr. 24, 2018

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APPENDIX C

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

Civil Action No. 17-2325 (JDB)

TRUSTEES OF PRINCETON UNIVERSITY, ET AL.,

PLAINTIFFS

UNITED STATE OF AMERICA, ET AL., DEFENDANTS

Filed: Apr. 24, 2018

ORDER

Upon consideration of [8] defendants’ motion to dismiss and [28] plaintiffs’ motion for summary judgment,

and for the reasons stated in the Memorandum Opinion

issued on this date, it is hereby

ORDERED that [8] the government’s motion to dismiss is GRANTED as to plaintiffs’ procedural Administrative Procedure Act (“APA”) claim (Count I) and

plaintiffs’ information-sharing claim (Count V), DENIED

as to plaintiffs’ substantive APA claim (Count II), and

DENIED IN PART AND DEFERRED IN PART as to

plaintiffs’ constitutional claims (Counts III and IV); it

is further

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ORDERED that [28] plaintiffs’ motion for summary

judgment is GRANTED as to their substantive APA

claim but DENIED as to their procedural APA claim; it

is further

ORDERED that the Department of Homeland Secu-

rity’s (“DHS”) September 5, 2017 decision to rescind

the Deferred Action for Childhood Arrivals (“DACA”)

program is VACATED and REMANDED to the agency;

it is further

ORDERED that the Court’s order of vacatur is

STAYED for ninety days; and it is further

ORDERED that the parties shall file, by not later

than Friday, July 27, 2018 a joint status report stating

whether DHS has issued a new decision rescinding

DACA and whether the parties contemplate the need

for further proceedings in this case.

Moreover, upon consideration of the remaining motions pending in this case, it is hereby

ORDERED that [22] plaintiffs’ unopposed motion to

submit pseudonymous declarations is GRANTED; it is

further

ORDERED that, pursuant to Local Civil Rule

83.2(d), the motions for leave to appear pro hac vice

filed by [37] Madiha M. Zuberi, [38] Jose Luis Perez,

[39] Fernando Bohorquez, [40] Alan Friel, [41] Tiffany

Mio, [43] Paul S. Deol, [44] Neil A.F. Popovic,

[50] Sameer P. Sheikh, and [52] Martin L. Saad are

GRANTED and that the Clerk of Court shall enter the

appearance of the above-listed attorneys in this case; it

is further

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ORDERED that the motion of Janie M. Lopez to

withdraw as counsel is GRANTED and that the Clerk of

Court shall terminate Ms. Lopez’s appearance in this

case; and it is further

ORDERED that, pursuant to Local Civil Rule 7(o),

the unopposed motions for leave to file amicus curiae

briefs by [36] LatinoJustice PRLDEF, [42] the City of

Los Angeles, et al., [45] the San Francisco Bar Association, and [53] the Lawyers’ Committee for Civil

Rights Under Law, et al., are GRANTED.

SO ORDERED.

/s/

JOHN D. BATES

United States District Judge

Dated:

Apr. 24, 2018

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APPENDIX D

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

Civil Action No. 17-1907 (JDB)

NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF

COLORED PEOPLE, ET AL., PLAINTIFFS

DONALD J. TRUMP, ET AL., DEFENDANTS

Civil Action No. 17-2325 (JDB)

TRUSTEES OF PRINCETON UNIVERSITY, ET AL.,

PLAINTIFFS

UNITED STATES OF AMERICA, ET AL., DEFENDANTS

Filed: Aug. 3, 2018

MEMORANDUM OPINION

This litigation concerns the Department of Homeland

Security’s (“DHS”) September 5, 2017 decision to rescind

the Deferred Action for Childhood Arrivals (“DACA”)

program. In April 2018, this Court held that decision

unlawful and set it aside, concluding both that it was

reviewable under the Administrative Procedure Act

(“APA”) and that the reasons given to support it were

inadequate. See NAACP v. Trump, 298 F. Supp. 3d 209,

249 (D.D.C. 2018). However, because the Court also

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determined that DHS could possibly remedy the decision’s inadequacies—at least in theory—the Court stayed

its order of vacatur for a period of ninety days. See id.

That ninety-day period has now expired. In the

interim, DHS has issued a new memorandum “concur[ring] with and declin[ing] to disturb” its September

2017 rescission decision. Mem. from Sec’y Kirstjen

M. Nielsen (“Nielsen Memo”) [ECF No. 71-1] at 3. 1

Also, the government has now moved the Court to

revise its April 2018 order, arguing that the Nielsen

Memo demonstrates that DACA’s rescission was neither unlawful nor subject to judicial review. See Defs.’

Mot. to Revise the Court’s April 24, 2018 Order

(“Gov’t’s Mot.”) [ECF No. 74].

For the reasons explained below, the government’s

motion will be denied. Although the Nielsen Memo

purports to offer further explanation for DHS’s decision

to rescind DACA, it fails to elaborate meaningfully on the

agency’s primary rationale for its decision: the judgment that the policy was unlawful and unconstitutional.

And while the memo offers several additional “policy”

grounds for DACA’s rescission, most of these simply

repackage legal arguments previously made, and hence

are “insufficiently independent from the agency’s evaluation of DACA’s legality” to preclude judicial review or to

support the agency’s decision. NAACP, 298 F. Supp. 3d

at 235. Finally, the memo does offer what appears to

Although NAACP v. Trump, Civil Action No. 17-1907, was filed

first, at the Court’s direction most of the papers in these two cases

were filed in Princeton v. United States, Civil Action No. 17-2325.

See Min. Order, Princeton (D.D.C. Jan. 18, 2018). Thus, unless

otherwise noted, references to the docket refer to the Princeton

action.

82a

be one bona fide (albeit logically dubious) policy reason

for DACA’s rescission, but this reason was articulated

nowhere in DHS’s prior explanation for its decision, and

therefore cannot support that decision now.

By choosing to stand by its September 2017 rescission

decision, DHS has placed itself in a dilemma. On the

one hand, it cannot rely on the reasons it previously gave

for DACA’s rescission, because the Court has already

rejected them. On the other, because “an agency’s

action must be upheld, if at all, on the basis articulated by

the agency itself,” Motor Vehicle Mfrs. Ass’n of the U.S.,

Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 50

(1983), DHS also cannot rely on new reasons that it now

articulates for the first time. The government’s attempt

to thread this needle fails. The motion to revise the

Court’s April 2018 order will therefore be denied, and the

Court’s vacatur of DACA’s rescission will stand.

BACKGROUND 2

The DACA program offers renewable, two-year

grants of deferred action to certain undocumented aliens

who were brought to the United States as children. See

NAACP, 298 F. Supp. 3d at 216 (describing DACA’s

eligibility criteria in greater detail). A grant of deferred action under DACA guarantees not only that the

recipient will not be removed from the United States

during the relevant time period, but also that she will

be able to live, work, and contribute to society in various ways. See id. at 216-17 (discussing DACA’s ancilBecause the facts and procedural history of this case were

recounted at length in the Court’s prior opinion, see NAACP,

298 F. Supp. 3d at 216-223, the Court will review them here only

briefly.

83a

lary benefits). Since DACA’s implementation in 2012,

nearly 800,000 individuals have received grants of

deferred action under the program. Id. at 17.

In 2014, DHS implemented a similar program, Deferred Action for Parents of Americans (“DAPA”),

which would have offered renewable grants of deferred

action to the noncitizen parents of U.S. citizens or lawful

permanent residents. Id. at 217. Before DAPA could

take effect, however, several states—led by Texas—

challenged it in federal court. Id. A district court

preliminarily enjoined DAPA in 2015, and the following

year the Supreme Court affirmed the district court’s

preliminary injunction by an equally divided vote. See

id. at 217-18 (citing United States v. Texas, 136 S. Ct.

2271 (2016) (mem)). Litigation over DAPA continued

until June 2017, when, following the election of President

Trump, DHS rescinded the program. Id. at 18.

On September 5, 2017, purportedly in response to

threats from the plaintiffs in the Texas litigation, DHS

rescinded the DACA program as well. Id. at 218-19.

A flurry of court challenges followed, each of whose

procedural history is described more fully in the

Court’s prior opinion. See id. at 219-22. For present

purposes, it suffices to say that DACA’s rescission has

been preliminarily enjoined by two district courts, one

in California and one in New York, and that the government’s appeals of those injunctions are currently

pending. See Regents of the Univ. of Cal. v. U.S.

Dep’t of Homeland Sec., 279 F. Supp. 3d 1011, 1048

(N.D. Cal. 2018), appeal docketed, No. 18-15068 (9th Cir.

Jan. 16, 2018); Batalla Vidal v. Nielsen, 279 F. Supp. 3d

401, 437-38 (E.D.N.Y. 2018), appeal docketed, No. 18-485

(2d Cir. Feb. 20, 2018). Also currently pending before

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the Fourth Circuit is an appeal of a Maryland district

court’s dismissal of a challenge to DACA’s rescission.

Casa De Maryland v. U.S. Dep’t of Homeland Sec.,

284 F. Supp. 3d 758, 779 (D. Md. 2018), appeal docketed,

No. 18-1522 (4th Cir. May 8, 2018).

The cases before this Court, which present challenges to DACA’s rescission on both administrative and

constitutional grounds, were filed in late 2017 and

consolidated for purposes of the dispositive motions

filed in each. See NAACP, 298 F. Supp. 3d at 222-23.

After holding a hearing on those motions, the Court

entered judgment in plaintiffs’ favor on their APA

claims. See id. at 223, 249. The Court held, among

other things, that: (1) DHS’s September 5, 2017 decision to rescind DACA was reviewable under the APA

because it was predicated chiefly on the agency’s legal

judgment that DACA was unlawful, see id. at 226-235;

and (2) the decision was arbitrary and capricious because (a) DHS’s legal judgment was inadequately explained, see id. at 238-240, and (b) the other reasons

offered for DACA’s rescission—mainly, the purported

“litigation risk” that DACA would be preliminarily enjoined by the district court in Texas—were insufficiently

reasoned, see id. at 241-243. Hence, the Court vacated

DACA’s rescission on administrative grounds, see id. at

243-46, and deferred ruling on the bulk of plaintiffs’

constitutional claims, id. at 246.

However, because the Court’s decision was based in

large part on its conclusion that DHS’s legal judgment

was “virtually unexplained,” the Court stayed its order

of vacatur for 90 days to allow DHS “to better explain

its view that DACA is unlawful.” Id. at 249. During

that 90-day period, the Court explained,

85a

the Secretary of Homeland Security or her delegate

may reissue a memorandum rescinding DACA, this

time providing a fuller explanation for the determination that the program lacks statutory and constitutional authority. Should the Department fail to issue such a memorandum within 90 days, however, the

Rescission Memo will be vacated in its entirety, and

the original DACA program will be restored in full.

Id. at 245-46. The order accompanying the Court’s

opinion directed the parties to inform the Court before

the stay expired as to “whether DHS has issued a new

decision rescinding DACA and whether the parties

contemplate the need for further proceedings in this

case.” Apr. 24, 2018 Order [ECF No. 69] at 2. 3

Soon after this Court issued its decision, several of the plaintiffs

in the Texas litigation filed a new case challenging DACA in a

federal district court in Texas. See Texas v. United States,

No. 1:18-cv-68 (S.D. Tex. filed May 1, 2018) (“Texas II”). The

Texas II plaintiffs assert that DACA is procedurally and substantively invalid under the APA and that it violates the Constitution’s

Take Care Clause, U.S. Const. art. II, § 3. See Compl. ¶¶ 351-56,

Texas II (S.D. Tex. May 1, 2018). The plaintiffs have filed a

motion for a preliminary injunction in that case, see Pls.’ Mot. for a

Prelim. Inj., Texas II (S.D. Tex. May 2, 2018), which is currently

pending. The government opposes the motion only insofar as it

seeks nationwide relief. See Fed. Defs.’ Response to Pls.’ Mot. for

a Prelim. Inj. at 17, Texas II (S.D. Tex. June 8, 2018). Otherwise,

although the government acknowledges that “[i]n similar situations, courts have typically held that the appropriate course is for a

district court to refrain from issuing a conflicting injunction,” id. at

17 (citations omitted), it nonetheless suggests that, assuming “that

preliminary injunctive relief is appropriate,” the district court

should stay its order for fourteen days to allow the government to

seek emergency relief from the Supreme Court, id. at 17-18.

Other parties, including the State of New Jersey, have intervened

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In late June, Secretary of Homeland Security Kirstjen

M. Nielsen issued a memorandum responding to the

Court’s order. See Nielsen Memo at 1. Instead of

issuing a new decision rescinding DACA, as the Court’s

order had contemplated, Secretary Nielson simply “declin[ed] to disturb” the earlier decision to rescind the

program by then-Acting Secretary of Homeland Security

Elaine C. Duke. 4 Id. Secretary Nielsen then went on

to offer several reasons why “the decision to rescind the

DACA policy was, and remains, sound.” Id.

Specifically, Secretary Nielsen opined that: (1) “the

DACA policy was contrary to law”; (2) regardless of

whether DACA was in fact contrary to law, the program

“was appropriately rescinded . . . because there are,

at a minimum, serious doubts about its legality”; and

(3) other “sound reasons of enforcement policy” supported DACA’s rescission. Id. at 2. The reasons in this

last category included that: (a) DHS “should not adopt

public policies of non-enforcement of [federal] laws for

broad classes and categories of aliens,” particularly aliens

whom “Congress has repeatedly considered but declined

to protect”; (b) “DHS should only exercise its prosecutorial discretion not to enforce the immigration laws on a

truly individualized, case-by-case basis”; and (c) “it is

critically important for DHS to project a message that

leaves no doubt regarding the clear, consistent, and

as defendants and opposed the plaintiffs’ preliminary injunction

motion in full. See, e.g., Def.-Intervenor State of N.J.’s Mem. of

Law in Opp’n to Pls.’ Mot. for Prelim. Inj., Texas II (S.D. Tex. July

21, 2018). A hearing on the plaintiffs’ motion is currently set for

Wednesday, August 8, 2018.

Secretary Nielsen replaced Acting Secretary Duke as Secretary of Homeland Security on December 6, 2017.

87a

transparent enforcement of the immigration laws,” particularly given that “tens of thousands of minor aliens

have illegally crossed or been smuggled across our border in recent years.” Id. at 2-3. Finally, Secretary

Nielsen wrote that although she was “keenly aware that

DACA recipients have availed themselves of the policy in

continuing their presence in this country,” she nonetheless “do[es] not believe that the asserted reliance interests outweigh the questionable legality of the DACA policy and the other reasons [given] for ending [it].” Id. at 3.

In July, following the issuance of the Nielsen Memo,

the government filed the instant motion to revise the

Court’s April 24, 2018 order. According to the government, the Nielsen Memo demonstrates that DHS’s

September 2017 decision to rescind DACA was neither

subject to judicial review nor arbitrary and capricious.

See Gov’t’s Mot. at 1-2. This is so, the government contends, because Secretary Nielsen’s articulation of “serious doubts” regarding DACA’s legality, see id. at 5-13, as

well as her “additional” discussion of enforcement-policy

concerns, see id. at 14-16, “confirm[]” that the rescission was both an exercise of enforcement discretion (as

opposed to a legal judgment) and, at a minimum, reasonable, id. at 1. Thus, the government asks the Court

either to dismiss all of plaintiffs’ claims (including their

constitutional claims) or to enter judgment in its favor.

See id. at 18-19. Finally, the government states that,

if the Court denies the motion, it intends to seek “a

further continuation of the stay of the vacatur order,”

either “to consider seeking a stay pending appeal or to

give DHS time to appropriately prepare” to accept new

DACA applications, “which DHS has generally not accepted since September 5, 2017.” Id. at 19 n.4.

88a

Plaintiffs offer several arguments in response.

First, they contend, the Court should not even consider

Secretary Nielsen’s memorandum, because it is not

“the new agency action [the] Court anticipated [DHS]

might take” during the ninety-day stay-of-vacatur period.

See Pls.’ Opp’n to Defs.’ Mot. to Revise the Court’s Apr.

24, 2018 Order (“Pls.’ Opp’n”) [ECF No. 75] at 3-8.

Second, they argue that if the Court considers the

Nielsen Memo at all, it should consider only the memorandum’s legal analysis, because the remainder of the

memorandum offers impermissible post hoc rationalizations of DHS’s rescission decision. See id. at 8-10

(citing Food Mktg. Inst. v. ICC, 587 F.2d 1285, 1290

(D.C. Cir. 1978)). Third, they contend that even if the

Court considers the Nielsen Memo in full, its arguments present no reason to reconsider the Court’s

prior determination that DACA’s rescission was both

judicially reviewable, see id. at 10-14, and arbitrary and

capricious, see id. at 15-20. Therefore, plaintiffs ask

the Court to deny DHS’s motion and to allow the vacatur of DACA’s rescission to take effect. See id. at 20.

ANALYSIS

I. THE COURT WILL CONSIDER THE NIELSEN MEMO

As a threshold matter, plaintiffs argue that the Court

should refuse to consider the Nielsen Memo it its entirety, because instead of issuing a new rescission decision,

the memo simply adopts and further explains DHS’s

September 2017 rescission decision. See Pls.’ Opp’n at

3-8. 5 The government objects that this argument “inPlaintiffs brand DHS’s failure to issue a new agency action as a

“litigation tactic” that seeks to avoid “major consequences for the

litigation pending in the Second and Ninth Circuits—which could

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appropriately elevate[s] form over substance” and that

agencies “routinely rectify decisions that are deemed

inadequately supported on remand without vacatur.”

Reply in Supp. of Defs.’ Mot. to Revise the Court’s April

24, 2018 Order (“Gov’t’s Reply”) [ECF No. 76] at 1 (citations omitted). Here, the Court agrees with the government. It will therefore consider the Nielsen Memo.

As the government correctly points out, courts regularly remand challenges to agency action for further

“elaboration of [the agency’s] reasoning.” A.L. Pharma,

Inc. v. Shalala, 62 F.3d 1484, 1492 (D.C. Cir. 1995).

Nonetheless, relying on Judge Silberman’s separate

opinion in Checkosky v. SEC, 23 F.3d 452 (D.C. Cir.

1994), plaintiffs appear to suggest that courts can consider such further explanations only before holding an

agency action unlawful—and that, consequently, this

Court is powerless to consider the Nielsen Memo’s

explanation of DHS’s rescission decision because it has

already held that decision unlawful. See Pls.’ Opp’n at 4

(“[W]hile courts do sometimes solicit further explanation of an action before deciding whether it is arbitrary

and capricious, that is not what this Court did here.”).

But neither Judge Silberman’s opinion in Checkosky

nor any of the other cases on which plaintiffs rely go so

far. Rather, Judge Silberman explained that “courts

will often . . . pause before exercising full judicial

review and remand to the agency for a more complete

explanation” and noted that “[i]n many of these cases”—

but not all of them—courts “make clear” that they

“have not found the agency action to be arbitrary and

potentially include, among other things, triggering remands to the

district courts or raising possible mootness questions and prompting new complaints.” Pls.’ Opp’n at 1, 8.

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capricious.” Checkosky, 23 F.3d at 463 (opinion of Silberman, J.) (emphasis added); see, e.g., City of Charlottesville v. FERC, 661 F.2d 945, 954 (D.C. Cir. 1981)

(reversing an agency’s orders because they “were not

based upon substantial evidence” and remanding for

further proceedings); id. at 955 (Wald, J., concurring)

(urging the agency “on remand to attempt a clearer articulation and reconciliation of its” apparently contradictory explanations for its orders). Thus, although it

may be true that courts usually consider additional explanation before invalidating an agency’s action, plaintiffs cite no authority for the proposition that courts

must maintain this order of operations. Indeed, such a

rule would be inconsistent with the district courts’ broad

discretion to reconsider their decisions before they become final. See Fed. R. Civ. P. 54(b); AARP v. EEOC,

292 F. Supp. 3d 238, 241 n.1 (D.D.C. 2017) (“[A] district

court order remanding a case to an agency for significant

further proceedings is not final.” (quoting Pueblo of

Sandia v. Babbitt, 231 F.3d 878, 880 (D.C. Cir. 2000))).

Here, the Court gave DHS ninety days to remedy

the deficiencies in its September 2017 rescission decision. Although plaintiffs are correct that the Court’s

opinion and order anticipated that DHS would do so by

way of a new agency action (if it did so at all), 6 the

See Apr. 24, 2018 Order at 2 (directing the parties to inform the

court as to whether DHS had “issued a new decision rescinding

DACA”); NAACP, 298 F. Supp. 3d at 246 (deferring ruling on

plaintiffs’ constitutional claims in part because DHS “could, on remand, alter DACA’s rescission in ways that might affect the merits

of plaintiffs’ constitutional claims”); see also Pls.’ Opp’n at 5 (“[T]he

import of this Court’s stay was not that the agency should take another crack at defending the Duke Memo, but that the agency should

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Court will not disregard Secretary Nielsen’s memorandum simply because she chose a somewhat different

path. Instead, the Court will treat the memo as what

it purports to be: a “further explanation” of the rescission decision, Nielsen Memo at 1, which the government contends forms a basis for revising the Court’s

April 2018 order. Likewise, the Court will construe

the government’s motion for a revised order as a motion for reconsideration of the Court’s April 2018 decision. See Gov’t’s Reply at 3 n.2 (proposing that, “[a]t

a minimum, the Court could simply reconsider its

[April 2018] Order”); Fed. R. Civ. P. 54(b) (district

courts may “revise[]” nonfinal decisions “at any time”

prior to the entry of final judgment).

II. MOST OF THE NIELSEN MEMO’S ARGUMENTS ARE NOT

POST HOC RATIONALIZATIONS

Next, plaintiffs contend that the Court should disregard “nearly the entire Nielsen Memo” because none

of the justifications it offers—aside from DACA’s purported illegality—were articulated by Acting Secretary

Duke in her initial September 5, 2017 memorandum

rescinding the DACA program (the “Duke Memo”),

J.A. [ECF No. 60] at 252-56. Pls.’ Opp’n at 8-10.

With one notable exception, the Court disagrees. Although many of the Nielsen Memo’s rationales are

quite attenuated from those offered in the Duke Memo

and its supporting documentation, only one is so far

afield as to constitute an impermissibly post hoc rationalization for DACA’s rescission.

be afforded an opportunity to replace its void decision seamlessly

with a new one.”).

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Although “post hoc rationalizations ‘have traditionally been found to be an inadequate basis for review’ of

agency decisions,” the D.C. Circuit has clarified that

this rule “does not prohibit [an agency] from submitting an amplified articulation” of the reasons for its decision following a remand. Alpharma, Inc. v. Leavitt,

460 F.3d 1, 6 (D.C. Cir. 2006) (citations omitted). Indeed, the rule’s purpose is simply to prevent courts

from considering “rationales offered by anyone other

than the proper decisionmakers,” such as those appearing “for the first time in litigation affidavits and arguments of counsel”; it is not meant to be “a time barrier

which freezes an agency’s exercise of its judgment

. . . and bars it from further articulation of its reasoning.” Id. (citation omitted). Hence, when faced

with an explanation offered for the first time on remand, a court must determine whether it is an “amplified articulation” of the agency’s prior reasoning (which

must be considered), Alpharma, 460 F.3d at 6 (citation

omitted), or instead “a new reason for why the agency

could have” taken the action (which must be disregarded), Delta Air Lines, Inc. v. Export-Import Bank

of U.S., 85 F. Supp. 3d 436, 453 (D.D.C. 2015); see

Muwekma Ohlone Tribe v. Salazar, 708 F.3d 209, 217

n.8 (D.C. Cir. 2013) (stating that an agency’s further

explanation on remand “must be more than a barren

exercise of supplying reasons to support a pre-ordained

result” (citation omitted)).

Here, plaintiffs argue that the bulk of the Nielsen

Memo falls in the latter category. Specifically, they contend, Secretary Nielsen’s assertion of “serious doubts”

about DACA’s legality “does not amplify or explicate”

the Duke Memo’s prediction that DACA would be

abruptly enjoined in the Texas litigation; rather, “it

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silently abandons it.” Pls.’ Opp’n at 10. Similarly,

plaintiffs argue that the various “purported ‘reasons of

enforcement policy’ ” raised in the Nielsen Memo “have

no foundation in the Duke Memo at all.” See id.

Plaintiffs overstate the novelty of the Nielsen Memo’s

arguments. Although the Nielsen Memo certainly expands on the Duke Memo’s points, most of its arguments are not so detached from the earlier document as

to appear post hoc. For example, the Nielsen Memo

contends that “serious doubts” about DACA’s legality

could “undermine public confidence in . . . the rule

of law” and lead to “burdensome litigation.” Nielsen

Memo at 2. Similarly, the Duke Memo expressly relied on a September 4, 2017 letter from Attorney General Jeff Sessions (the “Sessions Letter”), see J.A. at

254-55, which cited “the costs and burdens” associated

with rescinding DACA in response to “potentially imminent litigation,” and opined that “[p]roper enforcement of our immigration laws is . . . critical . . .

to the restoration of the rule of law in our country,”

J.A. at 251. The Nielsen Memo’s “serious doubts”

rationale strikes this Court as a permitted amplification, rather than a prohibited post hoc rationalization,

of these statements in the Sessions Letter.

The same is true of the Nielsen Memo’s remaining

“policy” justifications (again, save one). Like the Nielsen Memo, which faults DACA for protecting a class of

aliens whom Congress has “repeatedly considered but

declined to protect,” Nielsen Memo at 2, the Duke

Memo relied on “Congress’s repeated rejection of proposed legislation that would have accomplished a similar result” as DACA, J.A. at 254. Similarly, th

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