Amicus Curiae Brief — Joseph R. Biden, Jr., President of the United States, et al., Petitioners v. Texas, et al.

Supreme Court briefMar 21, 2022

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No. 21-954

IN THE

Supreme Court of the United States

————

JOSEPH R. BIDEN, JR.,

PRESIDENT OF THE UNITED STATES, et al.,

Petitioners,

STATE OF TEXAS, et al.,

Respondents.

————

On Writ of Certiorari to the

United States Court of Appeals

for the Fifth Circuit

————

BRIEF OF ADMINISTRATIVE

LAW PROFESSORS AS AMICI CURIAE

IN SUPPORT OF PETITIONERS

————

ADAM S. GERSHENSON

ADAM KATZ

HANNA EVENSEN

COOLEY LLP

500 Boylston Street

Boston, MA 02116

PETER BRODY

COOLEY LLP

1333 2nd Street

Suite 400

Santa Monica, CA 90401

KATHLEEN R. HARTNETT

Counsel of Record

JULIE VEROFF

CAROLINE A. LEBEL

COOLEY LLP

3 Embarcadero Center

20th Floor

San Francisco, CA 94111

(415) 693-2000

khartnett@cooley.com

Counsel for Amici Curiae

March 21, 2022

WILSON-EPES PRINTING CO., INC. – (202) 789-0096 – WASHINGTON, D.C. 20002

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ................................

iii

INTEREST OF AMICI CURIAE ........................

INTRODUCTION AND SUMMARY OF

ARGUMENT ....................................................

ARGUMENT ........................................................

I. The Fifth Circuit’s Ruling Denying Legal

Effect to DHS’s Second Termination

Action Contravenes Core Administrative

Law Doctrine and Threatens Fundamental Principles of Democratic Accountability and Good Governance ...................

A. Agencies Act Through “Agency

Actions,” Not Disembodied Decisions,

and Those Actions Are Not Analogous

to Judicial Decisions ............................

B. Under the APA, Agencies Are Not

Precluded from Deciding Anew and

Reaching the Same Result, Rather

Than Re-Explaining an Initial Decision .......................................................

1. Agencies Can Remedy a Flawed

Action by Re-Explaining the Initial

Decision or Deciding Anew..............

2. Agencies That Choose to Decide

Anew Can Reach the Same Result...

C. Courts Routinely Evaluate Subsequent Agency Actions, and the Fifth

Circuit Should Have Allowed the

District Court to Do So Here ...............

(i)

TABLE OF CONTENTS—Continued

Page

D. The Reopening Doctrine Is Inapposite

to Assessing Whether Final Agency

Action Exists ........................................

E. An Agency May Appeal an Unfavorable Order on an Initial Administrative

Action While Undertaking a New

Action ...................................................

F. The Ability of Agencies to Revisit

Past Actions Is Necessary to Advance

Democratic Accountability and Good

Governance ..........................................

II. In Addition to Reversing the Fifth Circuit’s Decision, This Court Should Vacate

the District Court’s Injunction and

Remand to the District Court for Review

of Any New Challenge to the Second

Termination Action ...................................

CONCLUSION ....................................................

APPENDIX

APPENDIX A: List of Amici Curiae Law

Professors .......................................................

iii

TABLE OF AUTHORITIES

CASES

Page(s)

Am. Rd. & Transp. Builders Ass’n v. EPA,

588 F.3d 1109 (D.C. Cir. 2009) .................

Am. Trucking Ass’ns v. Atchison,

T. & S. F. Ry. Co.,

387 U.S. 397 (1967) ...................................

Bennett v. Spear,

520 U.S. 154 (1997) ...............................

Center for Biological Diversity v. Zinke,

900 F.3d 1053 (9th Cir. 2018) ...................

CHW West Bay v. Thompson,

246 F.3d 1218 (9th Cir. 2001) ...................

Citizens to Preserve Overton Park v. Volpe,

401 U.S. 402 (1971) ...................................

City of Los Angeles v. U.S. Dept. of Transp.,

165 F.3d 972 (D.C. Cir. 1999) ...................

Colorado Wild, Heartwood v.

U.S. Forest Service,

435 F.3d 1204 (10th Cir. 2006) .................

Competitive Enterprise Inst. v.

Nat’l Highway Traffic Safety Admin.,

45 F.3d 481 (D.C. Cir. 1995) .....................

Cook County, Illinois v. Wolf,

962 F.3d 208 (7th Cir. 2020) .....................

Crutchfield v. Cty. of Hanover, Virginia,

325 F.3d 211 (4th Cir. 2003) ..................

CTIA-Wireless Ass’n v.

Federal Comms. Comm’n,

466 F.3d 105 (D.C. Cir. 2006) ...................

TABLE OF AUTHORITIES—Continued

Page(s)

Dep’t of Homeland Security v. Regents

of the University of California,

140 S. Ct. 1891 (2020) ..............................passim

F.C.C. v. Fox

Television Stations, Inc.,

556 U.S. 502 (2009)...........................5, 10, 17, 26

F.C.C. v. Prometheus Radio Project,

141 S. Ct. 1150 (2021) ...............................

Florida Power & Light Co. v. Lorion,

470 U.S. 729 (1985) ...................................

Marlyn Nutraceuticals, Inc. v. Mucos

Pharma GmbH & Co.,

571 F.3d 873 (9th Cir. 2009) ....................

Massachusetts v. EPA,

576 U.S. 743 (2015) ................................... 7, 23

Monsanto Co. v. Geertson Seed Farms, 561

U.S. 139 (2010) ..........................................

Motor Vehicle Manufacturers Ass’n of

the United States, Inc. v. State Farm

Mutual Automobile Insurance Co.,

463 U.S. 29 (1983) ........................... 5, 23, 24, 25

NAACP v. Trump,

298 F. Supp. 3d 209 (D.D.C. 2018) ...........

Nat’l Ass’n of Home Builders v.

Defenders of Wildlife,

551 U.S. 664 (2007) ...................................

TABLE OF AUTHORITIES—Continued

Page(s)

Nat’l Ass’n of Reversionary Property

Owners v. Surface Transp. Bd.,

158 F.3d 135 (D.C. Cir. 1998) ............. 19, 20, 21

Nat’l Cable & Telecommunications Ass’n v.

Brand X Internet Servs.,

545 U.S. 967 (2005) ..................................... 5, 25

New York v. U.S. Dep’t of Commerce,

351 F. Supp. 3d 502 (S.D.N.Y.), aff’d

in part, rev’d in part, 139 S. Ct. 2551

(2019) .........................................................

NLRB v. Indianapolis Mack,

802 F.2d 280 (7th Cir.1986) ......................

NRDC v. EPA,

571 F.3d 1245 (D.C. Cir. 2009) .................

O.A. v. Trump,

404 F. Supp. 3d 109 (D.D.C. 2019) ...........

P & V Enterprises v. U.S. Army

Corps of Engineers,

516 F.3d 1021 (D.C. Cir. 2008) ................. 20, 21

Power Commission v. Idaho Power Co.,

344 U.S. 17 (1952) .....................................

RoDa Drilling Co. v. Siegal,

552 F.3d 1203 (10th Cir. 2009) .................

SEC v. Chenery Corp.,

332 U.S. 194 (1947) ..................................passim

TABLE OF AUTHORITIES—Continued

Page(s)

Sierra Club v. Glickman,

67 F.3d 90 (5th Cir. 1995).........................

United States v. Garner,

767 F.2d 104 (5th Cir. 1985) .....................

Vermont Yankee Nuclear Power Corp. v.

NRDC,

435 U.S. 519 (1978) ...................................

WAIT Radio v. F.C.C.,

459 F.2d 1203 (D.C. Cir. 1972) .................

Wash. All. of Tech Workers v. DHS,

892 F.3d 332 (D.C. Cir. 2018) ...................

Winter v. Natural Resources

Defense Council, Inc.,

555 U.S. 7 (2008) .......................................

STATUTES

5 U.S.C. § 551(5) ...........................................

5 U.S.C. § 551(13) .........................................

5 U.S.C. § 704 ...............................................

8 U.S.C. § 1225 ............................................passim

8 U.S.C. § 1225(b)(2)(C)................................

COURT FILINGS

Brief for Appellees, Texas v. Biden, No. 2110806 (Oct. 12, 2021) ................................

Brief for Respondents, Mayorkas v.

Innovation Law Lab, No. 19-1212, 2021

WL 2520313 (U.S. Jan. 15, 2021) .............

vii

TABLE OF AUTHORITIES—Continued

OTHER AUTHORITIES

Page(s)

Benjamin Eidelson, Reasoned Explanation

and Political Accountability in the Roberts

Court, 130 Yale L.J. 1748 (2021) .............. 14, 22

Cristina M. Rodriguez, Foreword: Regime

Change, 135 Harvard L. Rev. 1 (2021) .....

Emily Hammond Meazell, Deference and

Dialogue in Administrative Law, 111

Columbia L. Rev. 1722 (2011) ..................

Executive Order No. 14,010, 86 Fed. Reg.

8267 (Feb. 5, 2021) ....................................

Kevin M. Stack, The Constitutional

Foundations of Chenery, 116 Yale L.J.

952 (2007) ..................................................

William S. Jordan, Ossification Revisited:

Does Arbitrary and Capricious Review

Significantly Interfere with Agency

Ability to Achieve Regulatory Goals

Through Informal Rulemaking?, 94 N.W.

U. L. Rev. 398 (2000) ................................

William W. Buzbee, The Tethered President: Consistency and Contingency in

Administrative Law, 98 Boston Univ.

L.R. 1357 (2018) ........................................ 24, 26

INTEREST OF AMICI CURIAE1

Amici curiae listed in the Appendix are professors

are professors of administrative law. Amici have an

interest in the construction and application of the

Administrative Procedure Act and in the role that

federal courts and agencies play in advancing or

hindering reasoned policymaking, democratic accountability, and good governance. Amici express no view

about the wisdom of the Migrant Protection Protocols

(“MPP”). They write to address why, as a matter of

fundamental administrative law doctrine and

principle, the Department of Homeland Security’s

second action terminating MPP should be accorded

legal effect and the injunction requiring the Department to implement that program should be vacated.

Amici share a concern that the Fifth Circuit’s refusal

to accord legal effect to that action has dangerous

implications for the integrity of administrative law

and the functioning of administrative agencies.

INTRODUCTION AND

SUMMARY OF ARGUMENT

This case is about the ability of the Executive

Branch to improve upon, change, or rescind policies

where there is a reasoned basis for doing so—a power

vital to democracy and good government. Here, the

Fifth Circuit refused to (1) acknowledge the legal effect

of an agency action rescinding a policy that superseded

a prior action rescinding the policy and (2) allow the

District Court to review that superseding agency action.

No counsel for a party authored this brief in whole or in part,

and no person other than amici or their counsel made a monetary

contribution to this brief’s preparation and submission. All

parties have provided blanket consent to amicus filings on the

docket.

Instead, the Fifth Circuit insisted that the government

was bound by its prior action so long as it appealed

that action. The Fifth Circuit’s decision disallowing

the Executive Branch to change a policy if it fails to

satisfy the APA on its first attempt is manifestly

wrong and dangerous. It is at odds with fundamental

principles of administrative law and multiple decisions of this Court. And it threatens the ability of

agencies to advance change responsive to the democratic process and to evolving understandings of

science, markets, and other on-the-ground realities.

This case specifically concerns the Migrant Protection Protocols (“MPP”), often called the “Remain in

Mexico” policy, a policy commenced by the Department of Homeland Security (“DHS”) in January 2019

forcing certain non-Mexican migrants—primarily

asylum seekers—arriving at the southern border to

remain in Mexico pending the resolution of their

immigration proceedings. As authority for MPP, DHS

invoked 8 U.S.C. § 1225(b)(2)(C), a provision that had

never before been interpreted or used to allow widespread returns. Pet. App. 273a & n.12. MPP faced

serious legal challenge and criticism that it subjected

asylum seekers to dangerous conditions. See Brief for

Respondents at 6-9, Mayorkas v. Innovation Law Lab,

No. 19-1212, 2021 WL 2520313 (U.S. Jan. 15, 2021).

Then-candidate Biden had been critical of MPP

and other immigration policies commenced by the

Trump Administration, and shortly after his inauguration in January 2021, he ordered—among other

things—a review by DHS of MPP and whether it

should be continued, modified, or discontinued. See

Executive Order No. 14,010, § 4(a)(ii)(B), 86 Fed. Reg.

8267, 8269 (Feb. 5, 2021). Such policy reviews are

commonplace upon a new presidential administration

taking power.

In June 2021, DHS decided to terminate MPP

pursuant to a 7-page memorandum issued by the

DHS Secretary. Pet. App. 346a-360a. Respondent

States challenged DHS’s termination action as arbitrary and capricious and contrary to law under

the Administrative Procedure Act (“APA”). The U.S.

District Court for the Northern District of Texas

agreed, holding that DHS’s action was not adequately

supported by the reasons offered in the termination

memorandum. It also held that MPP was statutorily

compelled. The District Court issued an injunction

requiring DHS to implement MPP until it had been

lawfully rescinded. The U.S. Court of Appeals for the

Fifth Circuit and this Court denied DHS’s stay requests.

Pursuant to the injunction, DHS reimplemented MPP

and is again returning noncitizens to Mexico.

DHS appealed the District Court decision to contest the holding that MPP is compelled by 8 U.S.C.

§ 1225. But rather than endeavor to better explain

its June termination decision, DHS instead undertook

a new and more robust decisionmaking process

regarding “whether to maintain, terminate, or modify

MPP.” Pet. App. 286a. At the conclusion of that

process, in October 2021, DHS announced that it had

again decided to terminate MPP, this time issuing a

4-page Secretary’s memorandum attaching a 39-page

explanation. Pet. App. 257a-345a. “Effective immediately,” the Secretary “supersede[d] and rescind[ed] the

June 1 memorandum.” Id. at 263a-264a.

The government moved the Fifth Circuit to vacate

the injunction given that the October termination

action had superseded the June 1 termination action,

but the Fifth Circuit denied the motion and refused to

give legal effect to DHS’s October termination action.

Rather, it criticized the government for undertaking

a new decisionmaking process while it appealed the

District Court’s rejection of the initial termination

action. The Fifth Circuit then affirmed the District

Court’s ruling against the June termination action

and the District Court’s injunction forcing DHS to

continue MPP. Pet. App. 1a-136a.

The Fifth Circuit’s ruling contravenes of the

APA, this Court’s precedents, good government, and

the democratic process. Agencies have never been—

and should not be—stuck with their prior actions on

a matter when they have a reasoned basis for taking a

new action. This principle applies here both to DHS’s

approach to rescinding MPP in the first place—which

it should have been able to do—but especially to its

effort to undertake a new, better decisionmaking process and take a new action that the Fifth Circuit

refused to acknowledge.

The government here did precisely what it should

have done after the District Court refused its first effort

and enjoined it from discontinuing MPP: it appealed

what it believed to be an erroneous ruling; it undertook

a new, even more robust decisionmaking process; and

it superseded its prior action with a new action. The

operative administrative action is now DHS’s second

termination of MPP, embodied in the October 2021

memoranda. Neither the decision to pursue an appeal

nor the fact that DHS's fresh analysis reached the

same conclusion as its prior analysis is an appropriate

basis for ignoring the new agency action. Accordingly,

this Court should reverse the decision of the Fifth

Circuit, vacate the injunction, and remand to the

District Court for consideration of any new arbitrary

and capricious challenge to the second termination

action brought by Respondents.2

ARGUMENT

I. The Fifth Circuit’s Ruling Denying Legal

Effect to DHS’s Second Termination

Action Contravenes Core Administrative

Law Doctrine and Threatens Fundamental

Principles of Democratic Accountability

and Good Governance.

This Court has repeatedly affirmed the bedrock

administrative law principle that agencies can rethink

and revisit their policies and positions. See, e.g., Dep’t

of Homeland Security v. Regents of the Univ. of Cal.,

140 S. Ct. 1891, 1907-08 (2020) (describing an agency’s

ability to revisit a decision and either offer a fuller

explanation or take new agency action); F.C.C. v. Fox

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

(considering “subsequent agency action undoing or

revising [initial agency] action”); Nat’l Cable &

Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S.

967, 972 (2005) (explaining that agencies can respond

to changes in market conditions and shifts in social

context and “provid[e] a fresh analysis of the

problem”); Motor Vehicle Mfrs. Ass’n of the United

States, Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S.

29. 41 (1983) (acknowledging an agency’s ability to

rescind or modify a policy; see also 5 U.S.C. § 551(5)

(defining “rule making” to include “amending[] or

repealing” an existing rule”). That foundational

Regarding the first question presented, the Fifth Circuit’s

unprecedented construction of 8 U.S.C. § 1225 is wrong and

should be reversed. That provision does not compel DHS to use

MPP indefinitely. This brief, however, does not address that

issue, and focuses only on the second question presented.

principle extends at least back to SEC v. Chenery

Corp., which held that where an agency’s “first order

was unsupportable for the reasons supplied by that

agency,” and the agency then “deal[s] with the problem

afresh,” the agency’s subsequent decision may “be

justified on the basis upon which it clearly rests.” 332

U.S. 194, 200-04 (1947).

Here, contrary to these fundamental principles, the

Fifth Circuit rejected the notion that an agency whose

reasons for taking a particular agency action were

found wanting could revisit the issue, consider the

problem afresh, and take new agency action. The

Fifth Circuit thus took the unprecedented view that a

superseding agency action had no legal effect.

That conclusion was error as a matter of law, in

several respects. It ignored clear precedent from this

Court about the ability of agencies to issue new decisions on policy areas previously addressed, including

decisions reaching the same result as the agencies’

earlier decisions; misapplied this Court’s rules regarding post hoc rationalizations; misconstrued the reopening

doctrine, which concerns the APA’s statute of limitations, not finality; and took an unduly cabined view of

the litigation and policy options available to agencies

when their actions are deemed infirm by a court.

The Fifth Circuit’s decision is also at odds with one

of the fundamental values advanced by administrative

agencies—the ability to revisit and revise actions over

time as circumstances evolve. That agencies have

flexibility to remedy flawed actions and take account

of evolving conditions, knowledge, and deliberation is

a feature, not a bug. Such flexibility—so long as

paired, as here, with the obligation to explain the

reasoning for exercising that flexibility—is essential

to good governance and democratic accountability.

A. Agencies Act Through “Agency Actions,”

Not Disembodied Decisions, and Those

Actions Are Not Analogous to Judicial

Decisions.

The Fifth Circuit’s refusal to recognize the legal

effect of DHS’s October 2021 memoranda terminating MPP was based on a faulty premise: that the

States’ arbitrary-and-capricious challenge here is to

DHS’s overall decision to rescind MPP—as opposed

to a particular agency action reflecting the agency’s

decision and providing the explanation for that

decision. According to the Fifth Circuit, “[t]he June 1

Memorandum—just like the October 29 Memoranda

and any other subsequent memos—simply explained

DHS’s [termination] decision. . . . And so the Termination Decision (not a memo) is the ‘final agency action’

reviewable in court.” Pet App. 22a-23a (quoting 5

U.S.C. § 704).

One of the most fundamental principles of administrative law, however, is that agencies act through

“agency action[s],” 5 U.S.C. § 704, not disembodied

policy decisions. The APA defines “agency action” as

the vehicle through which an agency conveys its

substantive decision; such actions include an “agency

rule, order, license, [or] sanction.” Id. § 551(13). And

the APA subjects “agency action”—not policy decisions—to “judicial review.” Id. § 704. Administrative

agencies are judged by courts on whether the particular agency action under review is supported by

“reasoned decisionmaking.” Massachusetts v. EPA,

576 U.S. 743, 750 (2015); see also, e.g., Cristina M.

Rodriguez, Foreword: Regime Change, 135 Harv.

L. Rev. 1, 94 (2021) (“Perhaps the most basic of expectations is that actors within the administrative state

provide reasons for their actions[.]”). Because a central

goal of judicial review under the APA is to determine

whether a specific agency action rests on an adequate

rationale, challenges to agency action under the APA

do not—indeed, could not—separate out for review

an agency’s disembodied substantive “decision” from

the vehicle through which the decision is conveyed

and explained.

In fact, just the opposite is true: APA review

necessarily focuses jointly on the vehicle in which

an agency decision is delivered and the reasoning

expressed in that vehicle. Particularly for arbitraryand-capricious review, the soundness of the reasons

the government gives for its action is what counts.

As the Fifth Circuit itself has previously recognized,

“the central focus of the arbitrary and capricious

standard is on the rationality of the agency’s

‘decisionmaking,’ rather than its actual decision.”

United States v. Garner, 767 F.2d 104, 116 (5th Cir.

1985) (emphases added). Other courts have echoed

this basic point. See, e.g., Cook County, Ill. v.

Wolf, 962 F.3d 208, 222 (7th Cir. 2020) (in assessing

“the agency’s policymaking to ensure that it is not

‘arbitrary and capricious,’” courts are to “focus[] not

on the facial validity” of the agency’s conclusion, “but

rather on the soundness of the process by which it

reached” that conclusion); Colo. Wild, Heartwood v.

U.S. Forest Serv., 435 F.3d 1204, 1213 (10th

Cir. 2006) (“[T]he arbitrary and capricious standard

focuses on the rationality of an agency’s decision

making process rather than on the rationality of

the actual decision.”); CHW West Bay v. Thompson,

246 F.3d 1218, 1223 (9th Cir. 2001) (similar); see also

Regents, 140 S. Ct. at 1933 (Kavanaugh, J.,

concurring in part) (“The question under the APA’s

deferential arbitrary-and-capricious standard is not

whether we agree with the Department’s decision to

rescind DACA. The question is whether the Nielsen

Memorandum reasonably explained the decision to

rescind DACA.”).

The nature of APA review—which centers on

agency “actions” and the rationale provided for such

actions—helps illustrate why the Fifth Circuit’s

strained attempt to analogize an agency decision to

a court judgment and an agency memorandum to a

court’s opinion is misplaced. Pet. App. 22a (“DHS’s

Termination Decision is analogous to the judgment

of a court, and its memos are analogous to a court’s

opinion explicating its judgment.”). The review of

district court judgments and the review of agency

action are entirely different exercises with different

purposes. Review of a district court’s judgment principally aims to ensure the district court reached the

correct result, whereas the overriding aim of the

“APA’s arbitrary-and-capricious standard” is to ensure

that the agency has “reasonably explained the decision.” F.C.C. v. Prometheus Radio Project, 141 S. Ct.

1150, 1158 (2021) (emphasis added); see also Kevin

M. Stack, The Constitutional Foundations of Chenery,

116 Yale L.J. 952, 955-56 (2007) (contrasting “appellate review of lower court judgments” and judicial

review of “agency action”).

This differing focus has meaningful consequences.

For example, because APA review focuses on an agency’s action and its rationale, agency action—unlike a

district court’s judgment—can be sustained only on

the grounds articulated in the relevant rule, order,

or memorandum. See, e.g., NLRB v. Indianapolis

Mack, 802 F.2d at 280, 285 (7th Cir.1986) (“An

administrative agency’s decisions, unlike those of a

district court, cannot be sustained on a ground

appearing in the record to which the agency made no

reference; to the contrary, the Board’s decision stands

or falls on its express findings and reasoning.”); Fox,

556 U.S. at 563 (“We must consider the lawfulness of

an agency’s decision on the basis of the reasons the

agency gave, not on the basis of those it might have

given.”).

In addition to being out of step with well-established

administrative law principles, the Fifth Circuit’s

approach also contradicted the States’ own framing

of their challenge and the District Court’s treatment

of that challenge. Both the States and the District

Court properly focused on DHS’s June 1 memorandum

terminating MPP and the reasons provided therein

for that termination—i.e., the “agency action”—not

the “decision” to terminate MPP in a vacuum.

For example, the States’ Fifth Circuit briefing

clearly targeted the June 1 Memorandum: “The June

1 Memorandum both failed to consider important aspects

of the problem and reached arbitrary conclusions.”

Brief for Appellees at 29, Texas v. Biden, No. 21-10806

(5th Cir. Oct. 12, 2021). The Fifth Circuit’s remarkable

response to the States’ clear statement of the nature of

their challenge is that the States “misunderstand[]”

the nature of their own suit, and in fact “are

challenging DHS’s Termination Decision—not any

particular memo that DHS might have written in the

past or might write in the future.” Pet. App. 21a-22a.

Like the States, the District Court properly understood DHS’s June 1 memorandum—not “termination

of MPP” in a vacuum—to be the subject of the States’

challenge. It held that Plaintiffs were “entitled to

vacatur and remand because the June 1 Memorandum violates the APA and is in substantive violation

of Section 1225.” Pet. App. 209a (emphasis added).

The district judge based this conclusion on perceived

shortcomings in the memorandum, not an underlying

“decision” to rescind MPP. Namely, the District Court

pointed to what it concluded to be the June 1 memorandum’s (1) failure to “consider several critical

factors,” such as whether MPP helped address “false

claims of asylum,” Pet. App. 192a; (2) reliance upon

“arbitrary” reasoning, such as stating that certain

data “raise[d] questions” without articulating an

“answer [to] such questions,” Pet. App. 195a-196a;

and (3) “fail[ure] to consider the effect terminating

MPP would have on DHS’s ability to detain aliens

subject to mandatory detention,” Pet. App. 199a.

Those are classic bases for finding agency reasoning

“arbitrary and capricious,” which may be remedied by

further agency consideration and explanation.3 Indeed,

that is just what the District Court ordered the agency

to do: “The June 1 Memorandum is vacated . . . and

remanded to DHS for further consideration.” Pet. App.

212a.

In short, in sending the June 1 Memorandum back

to DHS for “further consideration” of its reasoning,

id., the District Court “held no more and no less than

the [agency’s] first [memorandum] was unsupportable

for the reasons supplied by that agency.” Chenery, 332

U.S. at 200. That ruling left “unsettled . . . the answer

the [agency] might give were it to bring to bear on

See, e.g., William S. Jordan, Ossification Revisited: Does

Arbitrary and Capricious Review Significantly Interfere with

Agency Ability to Achieve Regulatory Goals Through Informal

Rulemaking?, 94 N.W. U. L. Rev. 398, 418 (2000) (finding, based

on a survey of remands of legislative rules by the D.C. Circuit

between 1985 and 1995, that agencies were able to “recover” and

accomplish their regulatory goals following remand the vast

majority of the time).

the facts the proper . . . considerations, a function

which belongs exclusively to the [agency] in the first

instance.” Id.

B. Under the APA, Agencies Are Not

Precluded from Deciding Anew and

Reaching the Same Result, Rather Than

Re-Explaining an Initial Decision.

The Fifth Circuit based its ruling on the premise is

that an agency whose action was deemed wanting is

limited to returning to that decision and offering a

better explanation or changing course. Pet. App. 41a,

44a-45a. That is wrong.

1. Agencies Can Remedy a Flawed

Action by Re-Explaining the Initial

Decision or Deciding Anew.

As this Court recently explained in Regents, when a

court holds that an agency’s action was arbitrary and

capricious because the agency ignored critical factors

or the grounds it invoked to justify the action were

otherwise inadequate, an agency has two options: It

can—(1) “offer a fuller explanation of the agency’s

reasoning at the time of the agency action,” or (2)

deal with the problem afresh by taking new agency

action.” Regents, 140 S. Ct. at 1907-08 (quotation

marks omitted). If the agency chooses the first route,

it “may elaborate” on the reasons already given “but

may not provide new ones.” Id. at 1908. If it takes

the second route, the agency “is not limited to its

prior reasons but must comply with the procedural

requirements for new agency action.” Id. at 1908.

Regents involved DHS’s choice to take “the first

path”—providing a renewed, fuller explanation for a

decision already taken. Id. A description of the path

taken and not taken in Regents illuminates the

validity of the path DHS chose here.

Regents considered an APA challenge to the rescission of the Deferred Action for Childhood Arrivals

(“DACA”) program. That program was revoked by

DHS Secretary Elaine Duke via a September 2017

“decision memorandum” (the “Duke Memorandum”).

Id. at 1903. Multiple challenges followed, claiming in

relevant part that the Duke Memorandum was arbitrary and capricious. Id. In one of those challenges,

the district court granted summary judgment against

DHS on the APA arbitrary-and-capricious claim,

holding that Secretary Duke’s “conclusory” memorandum offered an “insufficient” explanation for the

agency’s decision to rescind DACA. Id. at 1904

(citing NAACP v. Trump, 298 F. Supp. 3d 209, 243

(D.D.C. 2018)). The district court stayed its judgment

to preserve the status quo while the administration

decided whether to “rest on the Duke Memorandum

while elaborating on its prior reasoning, or issue a

new rescission bolstered by new reasons absent from

the Duke Memorandum.” Regents, 140 S. Ct. at 1908

(citing NAACP, 298 F. Supp. at 245).

“Two months later, Duke’s successor, Secretary

Kirstjen Nielsen,” issued a memorandum offering

further support for the reasons for rescission offered

in the Duke memorandum, as well as other alternative policy reasons for rescission that were not in

the Duke memorandum. Id at 1904. Importantly,

Secretary Nielsen was clear that she had not taken

any new agency action to rescind DACA. “Rather than

making a new decision, she declined to disturb the

Duke memorandum’s rescission and instead provided

further explanation for that action.” Id at 1908.

(cleaned up). Accordingly, the government informed

the district court that Nielsen’s memorandum offered

“additional explanation for [Duke’s] decision” and

asked the district court to “leave in place [Duke’s]

September 5, 2017 decision to rescind the DACA policy.”

Id. (cleaned up). This Court rejected that explanation

as arbitrary and capricious. Id. at 1910-15.

In this case, after the District Court rejected the

June memorandum as arbitrary and capricious, DHS

faced the same choice as it had in Regents: provide a

“fuller explanation” of the agency’s initial action or

take “new agency action.” 140 S. Ct. at 1907-08. DHS

chose the path expressly provided for but not taken in

Regents: returning to the drawing board to deliberate and come to a new decision. See Benjamin

Eidelson, Reasoned Explanation and Political

Accountability in the Roberts Court, 130 Yale L.J. 1748,

1766 (2021) (noting that “[a] new, superseding agency

action” can “reset the litigation”). Thus, instead of

offering further explanation of its June 1 termination

decision, it made a new decision—on October 29, DHS

decided afresh to terminate MPP.

Despite the long line of precedent from Chenery

to Regents making plain that an agency can undertake

a “new agency action” after an adverse APA ruling, the

Fifth Circuit repeatedly expressed skepticism about

the legitimacy of DHS’s choice to issue a new action

to terminate MPP, as opposed to seeking to further

justify its initial action. See, e.g., Pet. App. 3a (stating

that the October 29 memoranda “purported to ‘reterminate’ MPP”). This skepticism was unwarranted.

Specifically, the Fifth Circuit faulted the government for failing to offer any analysis of whether the

reasons given in the October 29 memoranda “are post

hoc rationalizations under the demanding standard in

announced by the Supreme Court [in Regents].” Pet. App.

44a. But as this Court explained in Regents, the

prohibition on post hoc rationalization is relevant only

where an agency chooses the first path: “to elaborate

on the reasons for the initial [action] rather than take

new administrative action.” Regents, 140 S. Ct. at

1908 (citing Citizens to Preserve Overton Park v.

Volpe, 401 U.S. 402, 420 (1971)). In contrast, Regents

expressly noted that when an agency issues “a new

decision,” it can “consider[] new reasons.” Id. at 1909.

Because the October 29 termination decision was a

new decision, not an effort to shore up the June 1

termination decision, the Fifth Circuit erred in

inquiring whether the October 29 termination decision

rested on post hoc rationalizations.

In sum, DHS’s “new agency action” in October

2021, id. at 1908—precisely of the type contemplated

by Regents and the prior APA precedent cited in

Regents—superseded the first termination action and

warrants legal effect.

2. Agencies That Choose to Decide

Anew Can Reach the Same Result.

The apparent basis for the Fifth Circuit’s skepticism

toward DHS’s approach and its ultimate refusal to

give the new October termination action its legal effect

is that DHS’s “new agency action” was to, again,

rescind MPP. See, e.g., Pet. App. 3a (“Never mind

that the new memoranda simply reaffirmed the

Termination Decision that the States had been challenging all along.”); Pet. App. 11a (“The October 29

Memoranda did not purport to alter the Termination

Decision in any way; they merely offered additional

reasons for it.”); Pet. App. 41a (“DHS cannot moot this

case by reaffirming and perpetuating the very same

injury that brought the States into court.”).

The Fifth Circuit’s suggestion that an agency can

issue a new action only by adopting a different

conclusion about a policy is wrong, and would

predetermine any subsequent agency decisionmaking

process. This Court has long been clear that when an

agency takes new, superseding agency action, it may

well reach the same conclusion as it did the first time,

and the fact that it does has no bearing on whether the

superseding action warrants legal effect. See Chenery,

332 U.S. at 196 (providing that, on remand, an agency

may “reexamine[] the problem, recast its rationale,

and reach[] the same result”); Regents, 140 S. Ct. at

1908 (explaining that on remand following the district

court’s arbitrary-and-capricious ruling, DHS could

have “issue[d] a new rescission bolstered by new

reasons”), id. at 1934 (Kavanaugh, J., concurring in

the judgment in part and dissenting in part) (noting

that “[c]ourts often consider an agency’s additional

explanations” made “on remand from a court, even if

the agency’s bottom-line decision itself d[id] not

change”). In other words, and contrary to the Fifth

Circuit’s premise, if an agency chooses the second path

set out in Regents and reaches the same conclusion

after a new decisionmaking process, that new action is

no less final agency action than the first action.

C. Courts Routinely Evaluate Subsequent

Agency Actions, and the Fifth Circuit

Should Have Allowed the District Court

to Do So Here.

Consistent with Regents, the Fifth Circuit was

obligated to accord legal effect to DHS’s second termination action and remand to the District Court to

review the legality of that new action in the first

instance. That is what courts routinely and properly

do when an initial agency action is found lacking

and agencies take a new action to remedy that

shortcoming—evaluate the reasoning contained in

the later-in-time action, whether or not the agency

reached a different bottom-line result. See, e.g., Fox,

556 U.S. at 514-15 (holding that “initial agency

action” and “subsequent agency action” are subject

to the same standard of review); Ctr. for Biological

Diversity v. Zinke, 900 F.3d 1053, 1060, 1067–75 (9th

Cir. 2018) (documenting five successive agency

publications explaining the agency’s decision not to

list a species of fish as endangered and assessing the

district court’s arbitrary-and-capricious review of the

latest-in-time explanation); Crutchfield v. Cnty. of

Hanover, Va., 325 F.3d 211, 218 (4th Cir. 2003)

(holding that a later-in-time agency action that

“reached virtually the same decision after judicial

remand” was neither arbitrary nor capricious); City

of Los Angeles v. U.S. Dep’t of Transp., 165 F.3d 972,

975–78 (D.C. Cir. 1999) (reviewing and affirming

later-in-time agency decision to set aside landing fees

at an airport after having remanded the agency’s

initial decision—which reached the same result—for

failing to adequately consider various factual

matters); Competitive Enter. Inst. v. Nat’l Highway

Traffic Safety Admin., 45 F.3d 481, 482–86 (D.C. Cir.

1995) (reviewing and affirming agency decision

regarding fuel economy standard for passenger cars

after having previously remanded for consideration of

additional factors the agency’s decision reaching the

same standard); Sierra Club v. Glickman, 67 F.3d 90,

94–96 (5th Cir. 1995) (cataloguing an APA case where

the district court considered three sequential versions

of a “timber management plan” and properly “focused

on [the] new plan”); WAIT Radio v. F.C.C., 459 F.2d

1203, 1204 (D.C. Cir. 1972) (after remanding a waiver

denial for deficient reasoning, holding that FCC’s

subsequent action denying a waiver with greater

explanation survived “hard look” review).

By contrast, here, the Fifth Circuit held that DHS’s

later-in-time agency action had no “legal effect,” Pet.

App. 22a, viewed the October 2021 memorandum as

“simply explain[ing]” DHS’s initial action, id., and

thus refused to assess DHS’s new action on its own

terms or remand to the District Court to do so, id. 35a.

The Fifth Circuit’s decision is an aberration, contrary

to Regents, and incompatible with the APA’s pursuit of

reasoned decisionmaking. In effect, the Fifth Circuit

cut off DHS’s ability to remedy perceived gaps in its

reasoning by treating DHS’s effort to remedy its

reasoning as irrelevant. Were that the law, it would

eviscerate agencies’ ability to remedy arbitrary-andcapricious violations. But decades of case law make

clear that when a court concludes that an agency

overlooked important facts or failed to satisfactorily

explain its action, the proper course is to give the

agency an opportunity to try again and then to assess

the agency’s new action when the matter returns to

court. See, e.g., Nat’l Ass’n of Home Builders v.

Defenders of Wildlife, 551 U.S. 664, 657 (2007)

(explaining that if an agency’s “action was arbitrary

and capricious, . . . the proper course [is] to remand

to the Agency for clarification of its reasons); Fla.

Power & Light Co. v. Lorion, 470 U.S. 729, 744 (1985)

(“If the record before the agency does not support

the agency action, if the agency has not considered

all relevant factors, or if the reviewing court simply

cannot evaluate the challenged agency action on the

basis of the record before it, the proper course, except

in rare circumstances, is to remand to the agency

for additional investigation or explanation.”); Fed.

Power Comm’n v. Idaho Power Co., 344 U.S. 17,

20 (1952) (reversing the lower court for violating

the “guiding principle” that the “function of the

reviewing court ends” when an agency’s error is “laid

bare,” because at “that point the matter once more

goes to the [agency] for reconsideration”); Regents, 140

S. Ct. at 1908-09 (an agency must proffer “a new

decision” before a reviewing court will “consider[] new

reasons”).

When the District Court held that DHS failed to

adequately explain its rescission of MPP in the first

instance, DHS was entitled to consider the problem

afresh and issue a new agency action with a new

explanation. And when DHS did so, it was further

entitled to have that later-in-time decision reviewed.

That result follows directly from Regents. The Fifth

Circuit’s contrary holding was error.

D. The Reopening Doctrine Is Inapposite

to Assessing Whether Final Agency

Action Exists.

The Fifth Circuit sought to buttress its determination that DHS’s second termination action was not

final agency action with legal effect by sua sponte

invoking the reopening doctrine and concluding that

DHS had not “reopened” the first termination action.

Pet. App. 23a-30a. But no party had addressed or

briefed the reopening doctrine, and for good reason—

the reopening doctrine is inapposite to the question

whether the second termination action was new, final

agency action. The Fifth Circuit’s reliance on the

doctrine was error.

The reopening doctrine is a D.C. Circuit-created

“exception to statutory limits on the time for seeking

review of an agency decision.”

Nat’l Ass’n of

Reversionary Property Owners v. Surface Transp. Bd.,

158 F.3d 135, 141 (D.C. Cir. 1998) (cleaned up). The

doctrine provides that, “where an agency conducts a

rulemaking or adopts a policy on an issue at one time,”

then “reconsider[s] the rule” and “in a later rulemaking restates the policy or otherwise addresses the issue

again without altering the original decision,” the

statute of limitations runs from the later action. Id.

The doctrine’s framework for assessing “whether an

agency reconsidered a previously decided matter” only

has bearing on when the statute of limitations begins

to run. Id. It has nothing to do with the distinct

question whether agency action is “final” for purposes

of judicial review. See Bennett v. Spear, 520 U.S. 154,

177-78 (1997) (holding that “for agency action to be

final,” it “must mark the consummation of the agency’s

decisionmaking process” and determine “rights or

obligations” or trigger “legal consequences” (cleaned

up)).4

The reopening doctrine also does not apply outside

the context of notice-and-comment rulemaking, which

is not the context at issue here.. Each reopening case

the Fifth Circuit cited involved agency rulemakings,

see Pet. App. 23a-30a,5 and amici are not aware of any

P & V Enterprises v. U.S. Army Corps of Engineers, 516 F.3d

1021 (D.C. Cir. 2008), upon which the Fifth Circuit relied, see Pet.

App. 28a, does not support the Fifth Circuit’s approach. Although

the D.C. Circuit framed its inquiry in that case as whether the

press release and advance notice of proposed rulemaking at issue

“demonstrate final agency action under the reopening doctrine,”

the court’s analysis shows that it treated the questions of finality

and reopening separately. It first assessed the advance notice

of proposed rulemaking under the reopening doctrine framework,

see 516 F.3d at 1023-24, and then second, and separately, concluded that the press release could not “constitute a final agency

action,” id. at 1025; see also id. at 1026.

See Reversionary Property Owners, 158 F.3d at 139-41 (rulemakings in 1986 and 1996); NRDC v. EPA, 571 F.3d 1245, 1265

case applying the reopening doctrine outside the

context of rulemakings. The reopening framework

articulated by the D.C. Circuit in Reversionary

Property Owners further makes this clear: “when

deciding if a reopening has taken place,” a court must

consider “[t]he language of the [notice of proposed

rulemaking] itself,” “an agency’s response to

comments filed by parties during a rulemaking,” and

“the entire context of the rulemaking.” 158 F.3d at

141-42 (quotation marks omitted).

The Fifth Circuit strained to apply these factors

here, and upon finding no hallmarks of notice-andcomment rulemaking, concluded that there was no

reopening. See Pet. App. 28a (“[W]e look for ‘ambiguity’

in the closest thing this case has to an NPRM.”); Pet.

App. 29a (“[I]f we could, we would consider the October

29 Memoranda’s response to comments.”). But MPP

was neither created nor terminated through noticeand-comment rulemaking, and no party has argued

that notice-and-comment rulemaking was required for

DHS’s termination actions. Accordingly, the reopening

doctrine has no bearing on whether the October

termination was final agency action.

(D.C. Cir. 2009) (1989 Rule and Phase 2 Rule); Wash. All. of

Tech Workers v. DHS, 892 F.3d 332, 342-43 (D.C. Cir. 2018) (1992

Rule and 2016 Rule); Growth Energy, 5 F.4th at 21-22 (2007

rulemaking and 2018 rulemaking); CTIA-Wireless Ass’n v. F.C.C.,

466 F.3d 105, 108-10 (D.C. Cir. 2006) (1990 NHPA and 2005

NPA); Am. Road. & Transp. Builders Ass’n v. EPA, 588 F.3d

1109, 1110, 1115 (D.C. Cir. 2009) (regulations adopted in 1994

and readopted in 1997; rulemaking petition rejected 2008); P &

V, 516 F.3d at 1023-27 (1986 rule, 2003 advance notice of

proposed rulemaking).

E. An Agency May Appeal an Unfavorable

Order on an Initial Administrative

Action While Undertaking a New Action.

Yet another aspect of the Fifth Circuit’s analysis

was fundamentally flawed—its view that DHS acted

improperly by reconsidering its first decision while

also pursuing an appeal. See Pet. App. 125a-126a &

n.19. Were that the rule, it would profoundly hinder

agency functioning.

No case or principle of administrative law requires

an agency, when its policy is enjoined by a district

court, to choose between (1) appealing the injunction

and waiting for the ultimate resolution of the policy’s

validity or (2) endeavoring to better explain its

reasoning or revisit its decision afresh to satisfy the

district court. Agencies may pursue both strategies

simultaneously, as DHS did here, and for good reason:

agencies often want to defend the legality of their

positions without sacrificing progress on important

policy changes. See, e.g., Vermont Yankee Nuclear

Power Corp. v. NRDC, 435 U.S. 519, 540 n.15 (1978)

(noting that the Nuclear Regulatory Commission

began a new rulemaking proceeding to replace a rule

that had been rejected by the D.C. Circuit as arbitrary

and capricious while petitions for certiorari on the

D.C. Circuit’s decision were pending).

An agency should not be forced to forsake all appeals

in order to reevaluate the issue and possibly arrive at

an improved action. That is especially so here, where

forsaking any appeal would have required the

government to forfeit its challenge to the District

Court’s holding on 8 U.S.C. § 1225.

F. The Ability of Agencies to Revisit

Past Actions Is Necessary to Advance

Democratic Accountability and Good

Governance.

The Fifth Circuit’s novel and erroneous approach

not only conflicts with the fundamental mechanics

of APA review, but also overlooks the central good

governance goal of APA review: “ensuring robust

political accountability” and “ensuring the substantive

soundness or political neutrality of agency decisions.”

Eidelson at 1752 (“[C]ourts can and should use

arbitrariness review to force an administration into

explaining itself in ways that facilitate, rather than

frustrate, the natural political repercussions of its

choices.”). As a “practical matter, the explanation

that an agency offers” to meet the APA’s demand for

satisfactory explanation, “will be importantly linked

to the public’s understanding of an action’s reasons.”

Id. at 1760. In reviewing only DHS’s “Termination

Decision” while giving no effect to DHS’s “memo”

explaining that decision, Pet. App. 22a, the Fifth

Circuit muzzled DHS from updating the public on

its justification for rescinding MPP. The APA was

designed to promote fulsome, reasoned, accountable,

and transparent decisionmaking, not to stifle it.

Moreover, just as agencies must be able to revisit

their actions to remedy legal defects that surface

through litigation, they also must be able—and should

be encouraged—to dynamically assess, buttress, or

revise their policy decisions in response to changing

circumstances. See, e.g., Massachusetts, 549 U.S. at

524 (“Agencies . . . refin[e] their preferred approach as

circumstances change and as they develop a more

nuanced understanding of how best to proceed.”);

State Farm, 463 U.S. at 59 (Rehnquist, J., concurring

in part and dissenting in part) (“A change in

administration brought about by the people casting

their votes is a perfectly reasonable basis for an

executive agency’s reappraisal of the costs and

benefits of its programs and regulations.”). Doing so

is essential for agencies to remain democratically

accountable and govern responsibly.6

Since the advent of the modern administrative

state, one of the foundational purposes of agencies

has been to “identify social problems and devise

remedial strategies that adjust and are refined over

time.” Buzbee at 1361-362; see also id. at 1366

(“[R]oom for policy change and reliance on agencies

go hand in hand. Policy change is expected.”). For

that reason, “most statutes are drafted to leave room

for agency policy change due to changed empirical

assessments or policy rationales.” Id. at 1361. In

particular, those changes can be prompted by “trying

better means to achieve constant ends, making policy

adjustments in light of changing underlying scientific

These values are likewise advanced when agencies revisit

their decisions because of litigation and judicial command. See,

e.g., Emily Hammond Meazell, Deference and Dialogue in

Administrative Law, 111 Colum. L. Rev. 1722, 1725 (2011)

(“[S]erial litigation can be deeply dialogic. Courts and agencies

engage in fruitful discussions that lead to better understanding

of the issues and, ultimately, their resolution.”); William W.

Buzbee, The Tethered President: Consistency and Contingency in

Administrative Law, 98 B.U. L.R. 1357, 1406 (2018) (“This

process of contestation and cogent response results in a

dialectical, iterative sort of tightening of explanations due to

close engagement with contested claims and arguments. Much

as reply briefs often provide the most incisive analysis, fiercely

challenged regulations result in ever more cogent agency

explanations.”).

or social phenomena, or expert agency reassessment

of the workability or fairness of past approaches.” Id.

This Court has repeatedly recognized that changing circumstances necessitate the ability for flexible

policymaking. See, e.g., Brand X, 545 U.S. at 981

(“[T]he agency . . . must consider varying interpretations and the wisdom of its policy on a continuing

basis, for example, in response to changed factual

circumstances, or a change in administrations.”

(quotation marks omitted)); State Farm, 463 U.S. at

42 (acknowledging that agencies need “ample latitude

to adapt their rules and policies to the demands of

changing circumstances” (quotation marks omitted));

Am. Trucking Ass’ns v. Atchison, T. & S. F. Ry. Co.,

387 U.S. 397, 416 (1967) (“[F]lexibility and adaptability to changing needs and patterns of transportation

is an essential part of the office of a regulatory

agency. Regulatory agencies do not establish rules of

conduct to last forever; they are supposed, within

the limits of the law and of fair and prudent

administration, to adapt their rules and practices to

the Nation’s needs in a volatile, changing economy.

They are neither required nor supposed to regulate

the present and the future within the inflexible limits

of yesterday.”); Chenery, 332 U.S. at 202 (“Some

principles . . . must be adjusted to meet particular,

unforeseeable situations.”). Indeed, several canonical administrative law decisions center on agencies

revisiting their decisions as their thinking about a

particular problem evolves. See, e.g., Brand X, 545

U.S. at 1001-02 (discussing the Federal Communications Commission’s evolving classification of cable

modem service); State Farm, 463 U.S. at 34-39 (considering an agency’s evolved policy on passive

restraints in vehicles as the agency’s understanding of

costs and risks changed over time).7

The healthy functioning of an administrative state

requires that agencies not be frozen at a particular

point in their policymaking process. No legal or

practical values are served by stymying agencies from

rethinking their policy decisions following an adverse

court ruling and reaching the same conclusion after

due consideration and for improved reasons. Were

the Fifth Circuit’s “one and done” approach the rule,

the government would be stuck with a policy not

required by any law simply because an agency’s first

articulation of its reasoning for rescinding that policy

failed to satisfy judicial review. Frustrating policy

change in this way does not advance the rule of law,

political legitimacy, institutional experience, or any

other conceivable legal goal.

II. In Addition to Reversing the Fifth Circuit’s Decision, This Court Should Vacate

the District Court’s Injunction and

Remand to the District Court for Review

of Any New Challenge to the Second

Termination Action.

If this Court reverses the decision below and holds,

as it should, that 8 U.S.C. § 1225 does not require

DHS to continue implementing MPP and that the

Secretary’s second action terminating MPP has legal

effect, it also should vacate the District Court’s man-

Of course, acknowledging that an agency can reexamine

policy does not obviate the requirement that the agency “confront

fully its earlier actions, its past explanations, and especially facts

or circumstances relevant to the old and possible new policy.”

Buzbee at 1396; see Fox, 556 U.S. at 514.

datory injunction forcing DHS to implement MPP.

Pet. App. 212(a).

Upon holding that the States had “proven their APA

and statutory claims by the preponderance of the

evidence,” the District Court vacated the June 1

Memorandum and remanded to DHS for further consideration, and then separately ordered the government “to enforce and implement MPP in good faith

until such a time as it has been lawfully rescinded in

compliance with the APA and until such a time as the

federal government has sufficient detention capacity

to detain all [noncitizens] subject to mandatory

detention under Section [1255] without releasing any

[noncitizens] because of a lack of detention resources.”

Pet. App. 212a (emphasis in original).8

That injunction was and is unwarranted. This

Court has made clear that granting an injunction in

an APA suit—which, unlike set aside relief, would

allow for contempt proceedings—generally requires a

higher showing than is needed for set aside relief.

See Monsanto Co. v. Geertson Seed Farms, 561 U.S.

139, 165-66 (2010) (“An injunction is a drastic and

extraordinary remedy, which should not be granted

as a matter of course. If a less drastic remedy (such

as partial or complete vacatur . . .) was sufficient to

redress respondents’ injury, no recourse to the additional and extraordinary relief of an injunction was

warranted.”). That heightened burden for injunctive

relief is especially appropriate when a court is considering a mandatory injunction commanding a party

to undo what they have already done or otherwise

The District Court also ordered the government to file

monthly reports regarding multiple metrics related to immigration and the southwest border. Pet. App. 213a.

take affirmative action. See, e.g., RoDa Drilling Co. v.

Siegal, 552 F.3d 1203, 1209 (10th Cir. 2009) (“[A]

mandatory injunction is an unusual form of relief

and one that must not be granted without heightened

consideration.”); Marlyn Nutraceuticals, Inc. v. Mucos

Pharma GmbH & Co., 571 F.3d 873, 879 (9th Cir.

2009) (“[M]andatory injunctions are not granted unless

extreme or very serious damage will result.”) (quotation marks omitted).

Accordingly, courts have ordered injunctive relief

beyond vacatur only in the highly unusual situation

where there is serious reason to conclude that an

agency will use bad faith tactics to circumvent set

aside relief and therefore the plaintiff requires an

injunction—and the implied threat of contempt proceedings—to ensure the defendant’s compliance. See

New York v. U.S. Dep’t of Com., 351 F. Supp. 3d 502,

676 (S.D.N.Y.), aff’d in part, rev’d in part, 139

S. Ct. 2551 (2019) (granting an injunction against

adding a citizenship question to the 2020 census

questionnaire because the court concluded the Commerce Department might engage in bad faith tactics

to circumvent vacatur and reasoned that an injunction would empower plaintiffs “to seek immediate

recourse from this Court” should “Defendants seek

to do anything inconsistent with this Opinion”); see

also O.A. v. Trump, 404 F. Supp. 3d 109, 154 (D.D.C.

2019) (declining to issue an injunction where “Defendants have represented that they will abide by the

Court’s order”).

This is not a case where such extreme relief is

necessary or appropriate. The States have not demonstrated any bad faith or intent to circumvent vacatur

on the part of the government, which has abided the

District Court’s order vacating the June 1 memoran-

dum and its injunction requiring the reimplementation of MPP.

Moreover, concerns about the equities of issuing

and enforcing mandatory injunctions absent a showing of bad faith are especially present here, where

the operative October agency action has not yet been

assessed by any court to determine its compliance with

the APA. A permanent injunction is properly issued

only where a plaintiff achieves “actual success” on the

merits. See Winter v. NRDC, 555 U.S. 7, 32 (2008).

There has been no such determination here; the

District Court’s mandatory, nationwide, permanent

injunction was based on the now-superseded June

termination action.

Furthermore, the injunction

forces DHS to implement a costly program with

serious foreign policy and humanitarian implications

that it has twice determined is not in the nation’s

interests, and to which there are serious legal

challenges.

Leaving in place a mandatory injunction requiring

an agency to enforce and implement a policy prior to

judicial review of the operative agency action terminating that policy absent any showing of bad faith

is a drastic intrusion on the Executive Branch that

risks debilitating new administrations. Under the

Fifth Circuit’s approach, administrations seeking a

change in policy could be hamstrung by abusive

litigation tactics and overly zealous courts. Faced

with what it deems an undesirable policy change, a

court effectively could force an administration to

continue a policy indefinitely after determining that

the initial effort at policy change was flawed. Such a

power would subject agencies to the constant threat

of policymaking purgatory. Letting the injunction

here stand could have massive, long-lasting repercus-

sions stretching far beyond the immigration context,

and beyond the current presidential administration.

Thus, upon vacating the injunction, this Court

should remand to the District Court for consideration in the first instance of any new arbitrary and

capricious challenge to the October termination action

that Respondents choose to bring. Any such proceedings on remand should accord with this Court’s holdings confirming that the presumptive proper remedy

on summary judgment in an APA action is set aside

relief, not an injunction.

CONCLUSION

The Court should reverse the decision of the Court

of Appeals, vacate the injunction issued by the District

Court, and remand to the District Court for any

further proceedings.

Respectfully submitted,

ADAM S. GERSHENSON

ADAM KATZ

HANNA EVENSEN

COOLEY LLP

500 Boylston Street

Boston, MA 02116

PETER BRODY

COOLEY LLP

1333 2nd Street

Suite 400

Santa Monica, CA 90401

KATHLEEN R. HARTNETT

Counsel of Record

JULIE VEROFF

CAROLINE A. LEBEL

COOLEY LLP

3 Embarcadero Center

20th Floor

San Francisco, CA 94111

(415) 693-2000

khartnett@cooley.com

Counsel for Amici Curiae

March 21, 2022

APPENDIX

List of Amici Curiae Law Professors1

William W. Buzbee

Edward and Carole Walter Professor

Professor of Law

Faculty Director, Environmental Law & Policy

Program

Georgetown University Law Center

Ronald M. Levin

William R. Orthwein Distinguished Professor of Law

Washington University School of Law

Jeffrey S. Lubbers

Professor of Practice in Administrative Law

American University Washington College of Law

Jerry L. Mashaw

Sterling Professor of Law Emeritus and Professorial

Lecturer

Yale Law School

Nina Mendelson

Joseph L. Sax Collegiate Professor of Law

University of Michigan Law School

Jon Michaels

Professor of Law

UCLA School of Law

Bijal Shah

Associate Professor of Law

Arizona State University

Sandra Day O’Connor College of Law

Affiliations of amici are provided for purposes of identification only.

Peter Shane

Jacob E. Davis and Jacob E. Davis II Chair in Law

The Ohio State University Moritz College of Law

Kevin M. Stack

Lee S. and Charles A. Speir Chair in Law

Director of Graduate Studies

Vanderbilt Law School

Glen Staszewski

Professor of Law & The A.J. Thomas Faculty Scholar

Michigan State University College of Law

Peter L. Strauss

Betts Professor Emeritus of Law

Columbia Law School

Adam Zimmerman

Professor of Law, Gerald Rosen Fellow

Loyola Law School

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.