Amicus Curiae Brief — Donald J. Trump, President of the United States, et al., Applicants v. J.G.G., et al.

Supreme Court briefMar 31, 2025

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No. 24A931

In the Supreme Court of the United States

___________________________________________

DONALD J. TRUMP, IN HIS OFFICIAL CAPACITY AS PRESIDENT OF THE UNITED STATES;

PAMELA BONDI, ATTORNEY GENERAL OF THE UNITED STATES, IN HER OFFICIAL

CAPACITY; KRISTI NOEM, SECRETARY OF THE U.S. DEPARTMENT OF HOMELAND

SECURITY, IN HER OFFICIAL CAPACITY; UNITED STATES DEPARTMENT OF HOMELAND

SECURITY; MADISON SHEAHAN, ACTING DIRECTOR AND SENIOR OFFICIAL PERFORMING

THE DUTIES OF THE DIRECTOR OF U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT, IN

HER OFFICIAL CAPACITY; U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT; MARCO

RUBIO, SECRETARY OF STATE, IN HIS OFFICIAL CAPACITY; AND THE UNITED STATES

DEPARTMENT OF STATE.,

Applicants,

J.G.G.; G.F.F.; J.G.O; W.G.H.; AND J.A.V.,

Respondents.

___________________________________________

On Application to Vacate the Orders Issued by the

United States District Court for the District of Columbia and

Request for an Immediate Administrative Stay

___________________________________________

AMICUS CURIAE BRIEF OF APA WATCH

IN SUPPORT OF APPLICANTS IN SUPPORT OF VACATUR,

ADMINISTRATIVE STAY, AND CERTIORARI BEFORE JUDGMENT

___________________________________________

LAWRENCE J. JOSEPH

Counsel of Record

1250 Connecticut Ave. NW, Suite 700

Washington, DC 20036

(202) 899-2987

ljoseph@larryjoseph.com

Counsel for Amicus Curiae

TABLE OF CONTENTS

Amicus Curiae Brief of APA Watch .............................................................................. 1

Interest of Amicus Curiae ............................................................................................. 1

Statement of the Case ................................................................................................... 2

Argument ....................................................................................................................... 2

The Court should construe the application as a petition for a

writ of certiorari before judgment, but—even without that

relief—the Court is likely to grant a writ of certiorari. ..................................... 2

The lower courts’ imposing unnecessary detention costs

on the Government warrants this Court’s exercise of its

supervisory power over lower courts. ...................................................... 4

The district court’s government-by-litigation approach

threaten democratic self-rule. .................................................................. 4

There is a mature Circuit split on whether Rule 65(c)’s

provisions are mandatory. ....................................................................... 6

The funds at issue are significant............................................................ 7

Respondents’ cognizable rights compel expeditious review. .................. 8

II.

The Government is likely to prevail ................................................................... 9

This Court has jurisdiction to review both the district

court’s substantive actions and the district court’s

jurisdiction. ............................................................................................. 10

This Court has jurisdiction to issue injunctive and

declaratory relief vis-à-vis the district court’s

actions. ......................................................................................... 11

The All Writs Act gives this Court

jurisdiction now to preserve its future

jurisdiction over the Government’s eventual

petition for a writ of certiorari. ......................................... 11

Even without mandamus relief, mandamus

jurisdiction makes declaratory relief

available. ........................................................................... 12

The APA’s provisions for interim relief allow

this Court to preserve the Government’s

rights. ................................................................................ 13

This action cannot redress Plaintiffs’ injuries. ........................... 15

Habeas is the exclusive remedy for challenging

action under the Alien Enemies Act. .......................................... 17

Sovereign immunity bars Plaintiffs’ claims. .............................. 18

The Government is likely to prevail on the merits. .............................. 20

III. The other stay criteria tip in the Government’s favor. .................................... 21

The Government’s harm is weighty and irreparable. ........................... 21

Plaintiffs do not plead a cognizable harm. ............................................ 23

The public interest favors a stay. .......................................................... 23

Conclusion .................................................................................................................... 24

AMICUS CURIAE BRIEF OF APA WATCH

Pursuant to this Court’s Rule 37.4,1 amicus curiae APA Watch respectfully

submits that (a) the Circuit Justice should refer this matter to the full Court,

(b) pending further order of the Court, the full Court should summarily stay any

interim relief that affects the public fisc without security under FED. R. CIV. P. 65(c)

adequate to pay any damage from interim relief later held improper, and (c) the Court

should construe the application as a petition for a writ of certiorari before judgment

on the question of whether interim relief may issue without adequate security under

Rule 65(c). Viewing this matter by itself, expeditious review and relief are necessary

both to prevent the district court’s overreach in this case and to protect whatever

legitimate rights respondents have. Viewed in the context of the widespread similar

overreach by other district courts against the new presidential Administration, this

Court’s expeditious review and relief is urgently needed to reestablish the need for

the security required by Rule 65(c), sovereign immunity, and 5 U.S.C. § 705 when a

court purports to enjoin the federal government without a final judgment.

INTEREST OF AMICUS CURIAE

Amicus curiae APA Watch is a nonprofit association dedicated to ensuring that

federal and state agencies and courts comply with the rulemaking, decisionmaking,

information-dissemination, and information-quality requirements under the federal

Administrative Procedure Act, 5 U.S.C. §§ 551-706 (“APA”), related state laws, the

Per Rule 37.6, counsel for amicus authored this brief in whole, no party’s

counsel authored this brief in whole or in part, and no person or entity other than

amicus and its counsel contributed monetarily to preparing or submitting the brief.

federal Constitution, and state constitutions. Amicus filed a similar brief with respect

to similarly improper interim relief in No. 24A904 and intends to continue to do so

with respect to other improper interim relief issued by district courts.

STATEMENT OF THE CASE

Amicus APA Watch adopts the facts as stated by the federal applicants

(collectively, the “Government”). See Appl. at 1-16. Respondents are five alleged

members of the Tren de Aragua (“TdA”) organization (collectively, “Plaintiffs”) who

sued the Government under the APA to avert deportation pursuant to a presidential

proclamation under the Alien Enemies Act, 50 U.S.C. § 21. See Invocation of the Alien

Enemies Act Regarding the Invasion of the United States by Tren de Aragua, 90 Fed.

Reg. 13,033 (Mar. 20, 2025). Without addressing the security required by Rule 65(c)

and sovereign immunity, the district judge ordered the Government to turn planes

around and to incur detention costs here, beyond the detention that the Government

had arranged abroad. Nothing in the record establishes that the responsible parties

are adequately capitalized to repay the detention costs that the district court’s

improper interim relief would impose on the Government during a full-fledged, multiyear lawsuit. Under 5 U.S.C. § 705, therefore, any interim relief should be made

contingent upon security that is adequate to reimburse unnecessary detention costs.

ARGUMENT

THE COURT SHOULD CONSTRUE THE APPLICATION AS A

PETITION FOR A WRIT OF CERTIORARI BEFORE JUDGMENT,

BUT—EVEN WITHOUT THAT RELIEF—THE COURT IS LIKELY TO

GRANT A WRIT OF CERTIORARI.

To resolve a mature split in Circuit authority, see Section I.C, infra, the Court

should construe the application as a petition for a writ of certiorari before judgment

on the question whether injunctive relief’s can take effect without security pursuant

to Rule 65(c), as well as to consider several important federal questions related to

that overarching question. See Sections I.A-I.B, I.D, infra.

Nothing would demonstrate the likelihood of this Court’s granting a writ of

certiorari more conclusively than this Court’s granting a writ of certiorari. This Court

has authority to construe stay applications as petitions for a writ of certiorari, see,

e.g., United States v. Texas, 143 S.Ct. 51 (2022), and to decide such cases summarily,

Wisconsin Legis. v. Wisconsin Elections Comm’n, 595 U.S. 398, 401 (2022), or on

expedited briefing. Nken v. Mukasey, 555 U.S. 1042 (2008); cf. TikTok Inc. v. Garland,

145 S.Ct. 57, 62 n.1 (2025) (per curiam). Even without conclusively demonstrating

the likelihood of granting certiorari, there is a reasonable possibility that this Court

would grant the Government’s eventual petition for a writ of certiorari in this matter.

In addition to the important issues that the Government raises, amicus notes

that the Circuits are deeply split on whether Rule 65(c) constitutes a mandatory

condition precedent to interim relief, see Section I.C, infra, and that the issues

presented here are vital to democratic governance. See Sections I.A-I.B, infra.

Significantly, even if some of Plaintiffs’ claims or some of the district court’s actions

become moot, the situation presented here—namely, improper interim relief against

the Government—is capable of repetition while evading review. As such, the issues

presented here on what Rule 65(c) requires will not become moot. See Univ. of Texas

v. Camenisch, 451 U.S. 390, 396-98 & n.2 (1981). Accordingly, the jurisdiction that

this Court now has will not dissipate as this matter progresses in district court. Given

the jurisdictional issues involved, appellate courts have discretion over what issues

to consider on appeal, Singleton v. Wulff, 428 U.S. 106, 121 (1976), even if raised only

by an amicus. Kamen v. Kemper Fin. Servs., 500 U.S. 90, 97 n.4 (1991).

The lower courts’ imposing unnecessary detention costs on the

Government warrants this Court’s exercise of its supervisory

power over lower courts.

By leaving in place the district court’s overreach—which could cost over $100

million over the full life of a federal lawsuit—the D.C. Circuit abdicated its

supervisory role over its district court, thereby necessitating this Court’s supervisory

control of lower federal courts. See S.Ct. Rule 10(a). As explained in Sections II.A.2II.A.3, infra, the district court has neither constitutional nor statutory subject-matter

jurisdiction over Plaintiffs’ claims. Indeed, if viewed as an APA rule, rather than an

APA order, the Government’s action here would be outside the APA. See 5 U.S.C. §

553(a)(1) (exempting “military or foreign affairs function[s] of the United States” from

APA rulemaking requirements).

The district court’s government-by-litigation approach

threaten democratic self-rule.

The district court’s action here is a particularly egregious example of a trend

that this Court should reject, lest something “not normal” and unhealthy become the

new normal by displacing the political branches with government by litigation:

This is not normal. Universal injunctions have little basis

in traditional equitable practice.

Dep’t of Homeland Security v. New York, 140 S.Ct. 599, 600 (2020) (Gorsuch, J.,

concurring in the grant of stay) (citing Samuel L. Bray, Multiple Chancellors:

Reforming the National Injunction, 131 HARV. L. REV. 417, 425-27 (2017)). This Court

should review the issue not only based on the sheer scope of the district court’s

“departure” from the “accepted and usual course of judicial proceedings,” S.Ct. Rule

10(a), but also based on these issues’ fundamental importance to democratic norms.

See S.Ct. Rule 10(c).

Hamilton’s “least dangerous” branch should not become the “most dangerous

one.” Compare THE FEDERALIST NO. 78 at 522 (Hamilton) (Jacob E. Cooke, ed.) with

Missouri v. Jenkins, 515 U.S. 70, 132 (1995) (judges become “dangerous” when they

“presume to have the institutional ability to set effective educational, budgetary, or

administrative policy”) (O’Connor, J., concurring). Allowing the sweeping interim

relief here would undermine this Nation’s system of government under which the

political branches resolve political issues. Schuette v. Coalition to Defend Affirmative

Action, 572 U.S. 291, 311-12 (2014). “‘The principle of immunity from litigation

assures the states and the nation from unanticipated intervention in the processes of

government.’” Alden v. Maine, 527 U.S. 706, 750 (1999) (quoting Great Northern Life

Ins. Co. v. Read, 322 U.S. 47, 53 (1944)). As Read explained, waivers of immunity

must be limited to the terms of the waiver to avoid the “crippling interferences” of

government-by-lawsuit:

The history of sovereign immunity and the practical

necessity of unfettered freedom for government from

crippling interferences require a restriction of suability to

the terms of the consent, as to persons, courts and

procedures.

Read, 322 U.S. 53-54. To its credit, the United States—through Congress—has

waived sovereign immunity for many suits against the Government, but the judiciary

lacks jurisdiction to extend those waivers beyond their express terms: “It needs no

argument to show that the political power cannot be thus ousted of its jurisdiction

and the judiciary set in its place.” Alden, 527 U.S. at 751 (cleaned up). Article III and

sovereign immunity compel this Court to confine Plaintiffs to the statutory procedure

that Congress enacted to resolve Plaintiffs’ claims.

There is a mature Circuit split on whether Rule 65(c)’s

provisions are mandatory.

The Circuits are split on whether Rule 65(c)’s provisions are mandatory.2

Several Circuit deem Rule 65(c) mandatory, Frank’s GMC Truck Ctr., Inc. v. Gen.

Motors Corp., 847 F.2d 100, 103 (3d Cir. 1988); Continuum Co. v. Incepts, Inc., 873

F.2d 801, 803 (5th Cir. 1989); Habitat Educ. Ctr. v. United States Forest Serv., 607

F.3d 453, 460 (7th Cir. 2010), while others do not. See, e.g., Moltan Co. v. Eagle-Picher

Indus., 55 F.3d 1171, 1176 (6th Cir. 1995); Doctor’s Assocs. v. Stuart, 85 F.3d 975, 985

(2d Cir. 1996); California ex rel. Van De Kamp v. Tahoe Reg’l Planning Agency, 766

F.2d 1319, 1325 (9th Cir. 1985) (“court has discretion to dispense with the security

requirement, or to request mere nominal security, where requiring security would

effectively deny access to judicial review”); cf. Hoechst Diafoil Co. v. Nan Ya Plastics

Corp., 174 F.3d 411, 421 (4th Cir. 1999) (although security is waivable, court must

expressly address the issue of security and cannot “disregard the bond requirement

In dicta, this Court has suggested that damages are unavailable outside an

injunction bond: “A party injured by the issuance of an injunction later determined

to be erroneous has no action for damages in the absence of a bond.” W.R. Grace &

Co. v. Local Union 759, Int’l Union of United Rubber, 461 U.S. 757, 770 n.14 (1983)

(citing Russell v. Farley, 105 U.S. 433, 437 (1882)).

altogether”); Coquina Oil Corp. v. Transwestern Pipeline Co., 825 F.2d 1461, 1462

(10th Cir. 1987). In the District of Columbia Circuit, precedent recognizes a court’s

discretion to forgo security for injunctive relief where “the restraint will do the

defendant no material damage,” “there has been no proof of likelihood of harm,” or

the moving party’s “considerable assets” enable it to respond in damages if defendant

does suffer damages by reason of a wrongful injunction.” Fed’l Prescription Serv. v.

Am. Pharm. Ass’n, 636 F.2d 755, 759 (D.C. Cir. 1980). This mature Circuit split

provides another rationale for the Court to hear this case. See S.Ct. Rule 10(c).

Further, contrary to the dicta in W.R. Grace that suggests limiting defendants

to the amount of an injunction bond see note 2, supra, this Court previously found

that equity jurisdiction includes the “discretionary power to assess damages

sustained by parties who have been injured because of an injunctive restraint

ultimately determined to have been improperly granted.” Pub. Serv. Comm’n v.

Brashear Freight Lines, Inc., 312 U.S. 621, 629 (1941). That authority traces back to

the Judiciary Act of 1789, ch. 20, § 11, 1 Stat. 78, and on to then-contemporaneous

English chancery practice. Grupo Mexicano de Desarrollo S.A. v. Alliance Bond Fund,

Inc., 527 U.S. 308, 318 (1999). The Court should resolve this important ambiguity in

federal law as a subsidiary question fairly included in the overall question under 5

U.S.C. § 705 of an appropriate security for interim relief. See S.Ct. Rule 10(c). If—

contrary to the dicta in W.R. Grace, see note 2, supra—Plaintiffs can be held liable for

the costs imposed by improper interim relief, Plaintiffs might prefer to know that.

The funds at issue are significant.

As with other instances of federal district courts’ usurping executive functions

via security-free interim relief, the volume of federal funding that the district court

seeks to control—by compelling detention in the United States over deportation—is

another rationale for the Court to hear this case. See S.Ct. Rule 10(c).

According to data published by the Federal Bureau of Prisons, the annual cost

of incarceration was over $44,000 annually for fiscal 2023. Annual Determination of

Average Cost of Incarceration Fee (COIF), 89 Fed. Reg. 97,072 (Dec. 6, 2024).

According to the presidential proclamation, there are potentially thousands of TdA

members in the United States. Applying that cost of incarceration to 1,000 detained

members for 2-year litigation puts the cost of interim relief at almost $100 million.

As Section II.A.1.c, infra, explains, the APA authorizes this Court to set an injunction

bond on appeal that Plaintiffs must post before any interim relief takes effect.

Respondents’ cognizable rights compel expeditious review.

Finally, although Plaintiffs may lack any rights whatsoever if their habeas

claims lack merit, it is also possible that some of them may have valid habeas claims

(e.g., an individual Plaintiff may be lawfully present or may not be a TdA member).

To the extent that any Plaintiff has such a legitimate habeas claim, the Court

should expeditiously resolve whatever issues the Court intends to resolve and remand

the case to the U.S. District Court for the Southern District of Texas for Plaintiffs to

replead the case:

Whenever a civil action is filed in a [federal] court … or an

appeal, including a petition for review of administrative

action, is noticed for or filed with such a court and that

court finds that there is a want of jurisdiction, the court

shall, if it is in the interest of justice, transfer such action

or appeal to any other such court … in which the action or

appeal could have been brought at the time it was filed or

noticed, and the action or appeal shall proceed as if it had

been filed in or noticed for the court to which it is

transferred on the date upon which it was actually filed in

or noticed for the court from which it is transferred.

28 U.S.C. § 1631; see, e.g., Weaver v. Fed. Motor Carrier Safety Admin., 744 F.3d 142,

144-48 (D.C. Cir. 2014) (transferring petition for review to district court where court

of appeals lacked jurisdiction).

Further, Plaintiffs’ counsel may be using Plaintiffs as political pawns against

the Government (i.e., to “resist” the results of the 2024 election). If Plaintiffs signed

on for being used as pawns in a meritless suit in a friendly forum that clearly lacks

jurisdiction, that perhaps could be permissible. But see Fed. R. Civ. P. 11(b)(1)-(2);

FED. R. APP. P. 46(c); S.CT. RULE 8(2); D.C. RULES OF PROF’L CONDUCT 3.1, 3.3(a)(1).

In the end, Plaintiffs may not want to risk responsibility for the cost of their detention

here if the district court’s interim relief is later held improper. See Section I.C, supra

(notwithstanding dicta in W.R. Grace, cost of improper interim relief may be

recoverable). In any event, Plaintiffs’ counsel began this representation, and no court

has released them. While at least some of Plaintiffs’ counsel (e.g., the American Civil

Liberties Union Foundation) undoubtedly have access to local Texas counsel, the

Southern District of Texas does not require membership in the State Bar of Texas as

a condition for admission. See S.D. TEX. RULE LR83.1(A). Accordingly, transfer to the

district court with jurisdiction over habeas claims would not prejudice Plaintiffs.

II.

THE GOVERNMENT IS LIKELY TO PREVAIL

On the underlying litigation, the Government is likely to prevail not only

because it is correct on the substantive merits, but also because (a) the district court

lacks jurisdiction for Plaintiffs’ claims, (b) Plaintiffs have sued the wrong parties; and

governmental actions. With respect to the threshold issue of security under Rule

65(c), the Government is likely to prevail because this Court has never held that the

Government must face litigation imposing on the public fisc without recourse against

interim relief subsequently held improper. See Sections I.C, supra, II.B, infra.

This Court has jurisdiction to review both the district court’s

substantive actions and the district court’s jurisdiction.

Federal courts are courts of limited jurisdiction. Bender v. Williamsport Area

Sch. Dist., 475 U.S. 534, 541 (1986). “It is to be presumed that a cause lies outside

this limited jurisdiction, and the burden of establishing the contrary rests upon the

party asserting jurisdiction.” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S.

375, 377 (1994). The parties cannot confer jurisdiction by consent or waiver,

Insurance Corp. of Ireland v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 702

(1982), and federal courts instead must assure themselves of jurisdiction before

reaching the merits. Steel Co. v. Citizens for a Better Env’t., 523 U.S. 83, 95 (1998).

Moreover, parties must establish jurisdiction separately for each form of relief they

request. Lewis v. Casey, 518 U.S. 343, 358 n.6 (1996) (“standing is not dispensed in

gross”); DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 353 & n.5 (2006).

Before reaching the question of the Government’s likelihood of prevailing on

the merits, therefore, this Court—or the Circuit Justice—first must establish federal

jurisdiction, both for this Court’s review and for the rulings of the courts below.

Every federal appellate court has a special obligation to

satisfy itself not only of its own jurisdiction, but also that

of the lower courts in a cause under review, even though

the parties are prepared to concede it. And if the record

discloses that the lower court was without jurisdiction this

court will notice the defect, although the parties make no

contention concerning it. When the lower federal court

lacks jurisdiction, we have jurisdiction on appeal, not of the

merits but merely for the purpose of correcting the error of

the lower court in entertaining the suit.

Id. (cleaned up). As the following subsections explain, this Court has jurisdiction for

the Government’s requested relief, see Section II.A.1, infra, but the district court

lacks jurisdiction for the relief Plaintiffs seek. See Sections II.A.2-II.A.4, infra.

This Court has jurisdiction to issue injunctive and

declaratory relief vis-à-vis the district court’s actions.

Although Plaintiffs may dispute the de novo issue of appellate jurisdiction on

appeal, the D.C. Circuit found the issues presented here sufficient to invoke appellate

jurisdiction. See Appl. 3 (citing Appl. 8a (Henderson, J., concurring), 76a (Walker, J.,

dissenting)). Even assuming arguendo that appellate review does not lie directly

pursuant to 28 U.S.C. § 1292(a)(1), however, the Government has three distinct bases

for appellate jurisdiction and authority.

The All Writs Act gives this Court jurisdiction now

to preserve its future jurisdiction over the

Government’s eventual petition for a writ of

certiorari.

First, the All Writs Act, 28 U.S.C. § 1651(a), provides a supplemental alternate

form of jurisdiction to stay the district court’s action, if only to preserve the full range

of the controversy now for this Court’s consideration upon the Government’s future

appeal to this Court:

The All Writs Act empowers the federal courts to issue all

writs necessary or appropriate in aid of their respective

jurisdictions and agreeable to the usages and principles of

law. The exercise of this power is in the nature of appellate

jurisdiction where directed to an inferior court, and extends

to the potential jurisdiction of the appellate court where an

appeal is not then pending but may be later perfected.

FTC v. Dean Foods Co., 384 U.S. 597, 603 (1966) (cleaned up, emphasis added).

Although resort to the All Writs Act is an extraordinary remedy—as indeed is any

stay or injunction—the writ “has traditionally been used in the federal courts … to

confine an inferior court to a lawful exercise of its prescribed jurisdiction or to compel

it to exercise its authority when it is its duty to do so.” Will v. United States, 389 U.S.

90, 95 (1967) (cleaned up). While “only exceptional circumstances … will justify the

invocation of this extraordinary remedy,” those circumstances certainly include a

“judicial usurpation of power,” as happened here. Id. (cleaned up); accord Allied

Chem. Corp. v. Daiflon, Inc., 449 U.S. 33, 35 (1980); Cheney v. United States Dist.

Court, 542 U.S. 367, 380 (2004). Here, if the interim relief is left in place without first

complying with Rule 65(c), the Government would suffer the irreparable harm of

being unable to recoup its damages when the interim relief is ultimately invalidated.

Even without mandamus relief, mandamus

jurisdiction makes declaratory relief available.

Second, regardless of whether the underlying orders support an interlocutory

appeal under 28 U.S.C. § 1292(a)(1), appellate jurisdiction extends to potential

mandamus relief. See AIDS Vaccine Advoc. Coal. v. United States Dep’t of State, 2025

U.S. App. LEXIS 4611, at *2-4 (D.C. Cir. Feb. 26, 2025) (Nos. 25-5046, 25-5047). Even

without mandamus relief, that is jurisdiction enough for an appellate court to issue

declaratory relief.

Although the Declaratory Judgment Act does not extend federal courts’

jurisdiction, California v. Texas, 593 U.S. 659, 672 (2021), a court otherwise with

jurisdiction “may grant declaratory relief even though it chooses not to issue an

injunction or mandamus.” Powell v. McCormack, 395 U.S. 486, 499 (1969); Steffel v.

Thompson, 415 U.S. 452, 457 n.7 (1974). This Court thus has jurisdiction to issue

declaratory relief on the mandatory nature of Rule 65(c). Indeed, if the Court does not

wish to do so via full merits briefing, the Court—or the Circuit Justice—could do so

via a summary order. Wisconsin Legis., 595 U.S. at 401. Given the torrent of

litigation—and the accompanying nationwide interim relief without security under

Rule 65(c)—against the Government, amicus respectfully submits that the Circuit

Justice should refer the matter to the full Court, making the resulting order a decision

of the full Court. See Graddick v. Newman, 453 U.S. 928, 929 (1981) (Powell, J., for

the Court3). If the Court provides only case-specific or Circuit-specific relief, the result

might not apply to the torrent of improper interim relief issuing from district courts

in other circuits.

The APA’s provisions for interim relief allow this

Court to preserve the Government’s rights.

Third, the APA provides this Court—and all federal courts—the authority to

preserve the parties’ rights while an APA case progresses:

On such conditions as may be required and to the extent

necessary to prevent irreparable injury, the reviewing

court, including the court to which a case may be taken on

appeal from or on application for certiorari or other writ to

Although Graddick began as an application to a circuit justice, the Chief

Justice referred the application to the full Court. Id.

a reviewing court, may issue all necessary and appropriate

process to postpone the effective date of an agency action or

to preserve status or rights pending conclusion of the review

proceedings.

5 U.S.C. § 705 (emphasis added). Here, in addition to whatever rights Plaintiffs may

have, the Government has the right to avoid irreparable harm in the form of almost

$100 million in damages from improper interim relief. Cf. Sections III.A-III.B, infra

(balancing equities between Government and Plaintiffs). To the extent that the

Government has an interest to protect here, this Court and the lower federal courts

have authority to protect that interest under Rule 65(c) and 5 U.S.C. § 705. Here, the

Government’s “rights” pending this interlocutory proceeding include being made

whole if the district court’s injunctive relief later proves improper.4 The Court should

condition any injunctive relief’s taking effect on Plaintiffs’ providing adequate

security pursuant to 5 U.S.C. § 705 and Rule 65(c).

For several reasons, setting an appropriate amount for security under Rule

65(c) would be a fact-intensive inquiry, could change over time, and would depend on

how quickly a final judgment replaced the interim relief. Unless this Court commits

to resolving these issues expeditiously (e.g., because the district court plainly lacked

See H. REP. NO. 79-1980 (1946), reprinted in ADMINISTRATIVE PROCEDURE ACT:

LEGISLATIVE HISTORY, S. DOC. NO. 248, 79th Cong., 2d Sess., at 277-78 (1946) (“APA

LEG. HIST.”) (“the court should take into account that persons other than parties may

be adversely affected, by such postponement and in such cases the party seeking

postponement may be required to furnish security to protect such other persons from

loss resulting from postponement”) (emphasis added); accord S. REP. NO. 79-752

(1945), reprinted in APA LEG. HIST., at 213 (“authority granted is equitable and

should be used by both agencies and courts to prevent irreparable injury or afford

parties an adequate judicial remedy”).

jurisdiction), an adequate security could range from a few hundred thousand dollars

(e.g., if the Court vacates the provisional class) to $100 million (e.g., for multi-year

detention of 1,000 class members). Because Plaintiffs’ desire for interim relief may

wane if interim relief requires providing a significant security, it may suffice to stay

the district court’s interim relief pending the Court’s resolution of the district court’s

jurisdiction.

If the Court requires determining the federal funds at stake, the Court could

remand the question to the federal agencies involved or appoint a special master. See,

e.g., FCC v. ITT World Commc’ns, Inc., 466 U.S. 463, 469 (1984); Harrison v. PPG

Indus., 446 U.S. 578, 594 (1980). If the Court leaves the district court’s ruling in place,

this Court should require a significant security—based on the cost of detention for

the anticipated number of TdA members for the duration of the litigation—before any

interim relief takes effect.

This action cannot redress Plaintiffs’ injuries.

Jurisdictionally, plaintiffs are masters of their complaints, Caterpillar, Inc. v.

Williams, 482 U.S. 386, 398-99 (1987), and Plaintiffs have elected to proceed under

the APA without naming the immediate custodian responsible for their detention

(i.e., the only person with jurisdiction to redress their injury under the habeas suit

that Congress has provided as their exclusive remedy). Significantly, plaintiffs bear

the burden of proving standing: “We presume that federal courts lack jurisdiction

unless the contrary appears affirmatively from the record.” Renne v. Geary, 501 U.S.

312, 316 (1991) (cleaned up). Presumably, if Plaintiffs had a viable habeas claim, they

would have brought that claim, but Plaintiffs have elected not to do so, thereby failing

to meet their burden to establish standing for their claims.

Under Article III, federal courts cannot issue advisory opinions, Muskrat v.

United States, 219 U.S. 346, 356-57 (1911), so federal courts must instead focus on

the cases or controversies presented by affected parties before the court. U.S. CONST.

art. III, § 2. “All of the doctrines that cluster about Article III—not only standing but

mootness, ripeness, political question, and the like—relate in part, and in different

though overlapping ways, to … the constitutional and prudential limits to the powers

of an unelected, unrepresentative judiciary in our kind of government.” Allen v.

Wright, 468 U.S. 737, 750 (1984) (cleaned up). Under these limits, federal courts lack

the power to resolve important public-policy disputes for plaintiffs who lack standing.

At its constitutional minimum, standing presents the tripartite test of whether

the party invoking a court’s jurisdiction raises a sufficient “injury in fact” under

Article III. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-62 (1992). An “injury in

fact” means (a) ”an invasion of a legally protected interest” that is both “concrete and

particularized” and “actual or imminent, not conjectural or hypothetical;” (b) caused

by the challenged action, and (c) likely to be redressed by the court’s relief. Id.

(cleaned up). By failing to sue their immediate custodian in habeas, Rumsfeld v.

Padilla, 542 U.S. 426, 434 (2004) (“proper respondent to a habeas petition is the

person who has custody over the petitioner”) (cleaned up), Plaintiffs fail to raise an

Article III case or controversy. See id. 442 (28 U.S.C. § 2241(a) limits district courts

to granting habeas relief “within their respective jurisdictions”). As this Court

explained, Congress added the limit for precisely the situation presented here:

Congress added the limiting clause … to the habeas statute

in 1867 to avert the inconvenient and potentially

embarrassing possibility that every judge anywhere could

issue the Great Writ on behalf of applicants far distantly

removed from the courts whereon they sat. Accordingly,

with respect to habeas petitions designed to relieve an

individual from oppressive confinement, the traditional

rule has always been that the Great Writ is issuable only

in the district of confinement.

Id. (cleaned up); id. at 443 (“jurisdiction lies in only one district: the district of

confinement”). Plaintiffs have sued in the wrong court—and under the wrong

statute—so the district court lacks jurisdiction to redress their injury.

Habeas is the exclusive remedy for challenging action

under the Alien Enemies Act.

As the Government explains, Appl. 18-20, the statutory habeas procedures

provide an exclusive remedy for challenging action under the Alien Enemies Act.

Ludecke v. Watkins, 335 U.S. 160, 164-66 (1948). Either because Plaintiffs invoked

the wrong federal processes, id.; Section II.A.4, infra (discussing APA’s

inapplicability), or because Plaintiffs are outside Article III altogether, see Section

II.A.2, supra, the district court lacks subject-matter jurisdiction for Plaintiffs’ claims.

Indeed, for claims otherwise within federal-question jurisdiction, this Court’s

controlling decisions can render claims too insubstantial for federal review if they are

“so attenuated and unsubstantial as to be absolutely devoid of merit,” “wholly

insubstantial,” “obviously frivolous,” “plainly unsubstantial,” or “no longer open to

discussion.” Hagans v. Lavine, 415 U.S. 528, 536-37 (1974). Given the clear holdings

in Padilla and Ludecke to channel review exclusively to habeas review in the judicial

district of confinement, Plaintiffs’ APA claims are not viable federal claims.

Sovereign immunity bars Plaintiffs’ claims.

If “the judgment sought would expend itself on the public treasury or domain,

or interfere with the public administration, … the suit is one against the sovereign.”

Land v. Dollar, 330 U.S. 731, 738 (1947). The interim relief here imposes costs of up

to $100 million on the Government, see Section I.D, supra, and interferes with the

administration of national security issues. Therefore, in addition to the lack of Article

III jurisdiction, Plaintiffs’ claims also fall outside the scope of the APA’s waiver of

sovereign immunity5 and thus are subject to an independent jurisdictional bar:

“Absent a waiver, sovereign immunity shields the Federal Government and its

agencies from suit,” without regard to any perceived unfairness, inefficiency, or

inequity. Dep’t of Army v. Blue Fox, Inc., 525 U.S. 255, 260 (1999); cf. Alabama v.

North Carolina, 560 U.S. 330, 341 (2010) (“the primeval sovereign right is immunity

from levies against the government fisc”). The scope of such waivers, moreover, is

strictly construed in favor of the sovereign. Lane v. Pena, 518 U.S. 187, 192 (1996).

Here, Plaintiffs’ claims fall outside the APA and its waiver of sovereign immunity.

Specifically, the APA provides judicial review to those “aggrieved by agency

action within the meaning of a relevant statute,” 5 U.S.C. § 702, which comes with a

presumption of reviewability. Block v. Cmty. Nutrition Inst., 467 U.S. 340, 349 (1984).

But the “presumption favoring judicial review of administrative action is just that—

a presumption.” Id. First, the APA itself comes with express exceptions, including

The waiver of sovereign immunity was added to 5 U.S.C. § 702 in 1976. PUB.

L. NO. 94-574, § 1, 90 Stat. 2721 (1976).

that APA review does not extend to “statutes [that] preclude judicial review” or action

“committed to agency discretion by law” and statutes with “special statutory review.”

5 U.S.C. §§ 701(a)(1)-(2), 703. Second, the “congressional intent necessary to overcome

the presumption [of reviewability] may also be inferred from contemporaneous

judicial construction barring review and the congressional acquiescence in it.” Block,

467 U.S. at 349 (citing Ludecke).

This Court has already determined that APA review does not apply to the Alien

Enemies Act:

As Congress explicitly recognized in the recent

Administrative Procedure Act, some statutes "preclude

judicial review." Barring questions of interpretation and

constitutionality, the Alien Enemy Act of 1798 is such a

statute. Its terms, purpose, and construction leave no

doubt. … That such was the scope of the Act is established

by controlling contemporaneous construction. … The very

nature of the President's power to order the removal of all

enemy aliens rejects the notion that courts may pass

judgment upon the exercise of his discretion. This view was

expressed by Mr. Justice Iredell shortly after the Act was

passed, and every judge before whom the question has

since come has held that the statute barred judicial review.

We would so read the Act if it came before us without the

impressive gloss of history.

Ludecke, 335 U.S. at 163-65 (cleaned up); id. at 164 (“act concerning alien enemies,

which confers on the president very great discretionary powers respecting their

persons … appears to me to be as unlimited as the legislature could make it”) (quoting

decisions by Chief Justice Marshall). As explained, habeas review is the exclusive

remedy here. See Section II.A.3, supra. The APA does not provide review unless the

“special statutory review” outlined in Section II.A.3, supra, is either absent or

inadequate. See 5 U.S.C. § 703. Plaintiffs have not made that showing, assuming

arguendo that Plaintiffs had standing.

The Government is likely to prevail on the merits.

To warrant a stay, there must be a “fair prospect” of the Government’s

prevailing. As explained in the prior subsection, the Government is likely to prevail

in the underlying litigation because the district court lacks jurisdiction over Plaintiffs’

claims. See Section II.A, supra. As explained in this subsection, the Government

likely will prevail on the merits of when interim relief can apply, assuming arguendo

that federal jurisdiction existed. Significantly, the inquiry about when interim relief

takes effect is independent of the underlying merits of the parties’ substantive

disputes.

Rule 65(c) is mandatory as to the need to address security for the injunctive

relief and as to the injunctive relief’s remaining ineffective until that condition is met:

The court may issue a preliminary injunction or a

temporary restraining order only if the movant gives

security in an amount that the court considers proper to

pay the costs and damages sustained by any party found to

have been wrongfully enjoined or restrained. The United

States, its officers, and its agencies are not required to give

security.

FED. R. CIV. P. 65(c). By excluding the United States expressly, Rule 65(c) makes clear

that a “public interest” exemption does not exist. See Setser v. United States, 566 U.S.

231, 238-39 (2012) (discussing principle of expressio unius est exclusio alterius).

Because the district court did not consider security under Rule 65(c), the district

court’s injunctive relief remains ineffective. See Section I.C, supra (collecting cases

on Circuit split). Even Circuits that allow forgoing security nonetheless require courts

to consider the issue. Michael T. Morley, Erroneous Injunctions, 71 EMORY L.J. 1137,

1167 & n.206 (2022). Where a lower court fails to exercise discretion given it, an

appellate court may exercise that discretion in the first instance, especially here

where 5 U.S.C. § 705 vests appellate courts with that same authority and discretion.

Indeed, even if the lower courts had exercised their authority under 5 U.S.C. § 705

and Rule 65(c) to set an injunction bond, this Court’s independent authority under 5

U.S.C. § 705 would provide this Court the independent discretion and authority both

to review and to revise that bond.

III.

THE OTHER STAY CRITERIA TIP IN THE GOVERNMENT’S FAVOR.

Although the likelihood of this Court’s granting a writ of certiorari and ruling

for the Government on the merits would alone justify granting a stay, amicus

addresses the balance of the equities. The Government has significant separation-ofpowers, national-security, and financial concerns at stake, and the public interest

favors a stay; against those considerations, Plaintiffs’ legal interests are trivial and

likely not even cognizable.6 In short, the balance of the equities tip decidedly in the

Government’s favor.

The Government’s harm is weighty and irreparable.

For stays, the question of irreparable injury requires a two-part “showing of a

Amicus does not suggest that Plaintiffs’ potential habeas claims are trivial. It

is possible that their counsel misled them into withholding viable habeas claims so

that they could press the frivolous class-wide APA claims in a friendlier forum. If any

Plaintiff is indeed innocent, release from custody would be an interest of the highest

importance. For that reason, Congress and this Court have provided an exclusive

process (habeas) for courts to consider such issues. See Section II.A.3, supra. The

issue for judicial consideration here, however, is whether Plaintiffs brought claims

over which the district court had jurisdiction and—even with jurisdiction—for which

the district court could impose interim injunctive relief without adequate security.

threat of irreparable injury to interests that [the applicant] properly represents.”

Graddick, 453 U.S. at 933. “The first, embraced by the concept of ‘standing,’ looks to

the status of the party to redress the injury of which he complains.” Id. “The second

aspect of the inquiry involves the nature and severity of the actual or threatened

harm alleged by the applicant.” Id. The Government meet both tests.

As for standing, the Government clearly has standing to defend its actions.

Diamond v. Charles, 476 U.S. 54, 62-63 (1986). For irreparable harm, the

Government will suffer two distinct irreparable injuries.

First, although mere monetary loss is not irreparable if the injured party can

recoup it later, there are two obstacles here: (a) the dicta in W.R. Grace, see note 2,

supra, suggests that damages are unavailable beyond Rule 65(c)’s security; and

(b) Plaintiffs’ insolvency vis-à-vis potentially $100 million in damages. Monetary

injury is reparable unless the responsible party “would become insolvent or otherwise

judgment-proof prior to the conclusion of litigation.” Carabillo v. ULLICO Inc.

Pension Plan & Trust, 355 F. Supp. 2d 49, 55 (D.D.C. 2004); accord Wisconsin Gas

Co. v. Fed’l Energy Regulatory Comm’n, 758 F.2d 669, 674 (D.C. Cir. 1985); Brown v.

Pearson, 241 A.3d 265, 274 n.36 (D.C. 2020) (a party’s inability to satisfy a future

money judgment constitutes irreparable harm). The Government’s monetary injury

is irreparable without adequate security under Rule 65(c).

Second, the district court’s enjoining the Government without jurisdiction

violates the separation of powers, which injures the Executive Branch. Axon Enter. v.

FTC, 598 U.S. 175, 191 (2023) (“subjection to an illegitimate proceeding” can

constitute irreparable harm). If allowed to stand in the short run, the district court’s

unauthorized interference with the Executive Branch will either stymie the proper

workings of the political branches or spawn satellite litigation over sanctions and

contempt. This Court should supervise the lower federal courts with declaratory and

injunctive relief to protect the Executive Branch from the irreparable injury it will

suffer without an immediate stay and security before any interim relief takes effect.

Plaintiffs do not plead a cognizable harm.

With respect to Plaintiffs’ countervailing claims of irreparable harm, a stay

would not seriously prejudice Plaintiffs’ cognizable interests. Because Plaintiffs lack

the Article III minima of standing, see Section II.A.2, supra, Plaintiffs have not shown

that they can make the higher showing required for irreparable harm. Monsanto Co.

v. Geertson Seed Farms, 561 U.S. 139, 149-50, 162 (2010) (injuries that qualify as

sufficiently immediate for Article III standing can nonetheless fail to qualify under

the higher bar for irreparable harm). Moreover, lack of jurisdiction “negates giving

controlling consideration to the irreparable harm.” Heckler v. Lopez, 464 U.S. 879,

886 (1983) (Brennan, J., dissenting from the denial of motion to vacate the Circuit

Justice’s stay). Finally, no litigant—and especially no litigant imposing on the public

fisc—has a cognizable interest in interim relief that takes effect before the

requirements of Rule 65(c) are met. In sum, Plaintiffs have no countervailing

cognizable harms to balance against the Government’s irreparable harm.

The public interest favors a stay.

The last stay criterion is the public interest. Where the parties dispute the

lawfulness of government actions, the public interest collapses into the merits. ACLU

v. Ashcroft, 322 F.3d 240, 247 (3d Cir. 2003) (“the public interest [is] not served by

the enforcement of an unconstitutional law”) (cleaned up); Washington v. Reno, 35

F.3d 1093, 1103 (6th Cir. 1994); League of Women Voters of the United States v.

Newby, 838 F.3d 1, 12 (D.C. Cir. 2016). The public interest favors preventing district

courts that lack jurisdiction usurping the elected branches’ governmental authority.

If the Court agrees with the Government and amicus that Plaintiffs lack

jurisdiction and that interim relief against the public fisc cannot commence without

security under Rule 65(c), the public interest tilts sharply in the Government’s favor:

It is in the public interest that federal courts of equity

should exercise their discretionary power with proper

regard for the rightful independence of … governments in

carrying out their domestic policy.

Burford v. Sun Oil Co., 319 U.S. 315, 318 (1943). In public-injury cases, equitable

relief that affects competing public interests “has never been regarded as strictly a

matter of right, even though irreparable injury may otherwise result to the plaintiff”

because courts also consider adverse effects on the public interest. Yakus v. United

States, 321 U.S. 414, 440 (1944). Moreover, especially on issues of national security,

the greater public interest lies in having the elected branches set government policy,

without government by litigation. See Section I.B, supra. For all these reasons, this

Court—or the Circuit Justice—should stay the district court’s interim relief until the

Government has adequate security against the otherwise irreparable monetary harm

that the interim relief would impose.

CONCLUSION

This Court should (a) construe the application as a petition for a writ of

certiorari before judgment on the question whether Rule 65(c), 5 U.S.C. § 705, and

sovereign immunity require adequate security before encumbering the public fisc

with interim relief, including all subsidiary questions fairly included within the

context of a governmental defendant’s damages from interim relief improperly

granted, (b) stay the district court’s interim relief pending either the Court’s resolving

that question or Plaintiffs’ providing adequate security pursuant to 5 U.S.C. § 705

and Rule 65(c), and (c) expedite consideration of this matter, including a review of the

district court’s jurisdiction over this matter. If the district court lacked jurisdiction,

the Court should further consider whether to remand this case to the U.S. District

Court for the Southern District of Texas pursuant to 28 U.S.C. §§ 1631, 2106.

Dated: March 31, 2025

Respectfully submitted,

/s/ Lawrence J. Joseph

_____________________________________

Lawrence J. Joseph

Counsel of Record

1250 Connecticut Av NW Suite 700

Washington, DC 20036

Telephone: (202) 899-2987

Facsimile: (202) 318-2254

ljoseph@larryjoseph.com

Counsel for Amicus Curiae

CERTIFICATE AS TO FORM

Pursuant to Sup. Ct. Rules 22, 33, and 37.4, I certify that the foregoing amicus

brief is proportionately spaced, has a typeface of Century Schoolbook, 12 points, and

contain 25 pages (and 7,027 words), excluding this Certificate as to Form, the Table

of Contents, and the Certificate of Service.

Dated: March 31, 2025

Respectfully submitted,

/s/ Lawrence J. Joseph

Lawrence J. Joseph

1250 Connecticut Av NW Suite 700

Washington, DC 20036

Telephone: (202) 899-2987

Facsimile: (202) 318-2254

ljoseph@larryjoseph.com

Counsel for Amicus Curiae

CERTIFICATE OF SERVICE

The undersigned certifies that, on March 31, 2025, in addition to filing the

foregoing document via the Court’s electronic filing system, one true and correct copy

of the foregoing document was served by Priority U.S. Mail, postage pre-paid, with a

PDF courtesy copy served via electronic mail on the following counsel:

Bradley Girard

Sarah Rich

Pooja Boisture

Democracy Forward Found.

P.O. Box 34553

Washington, DC 20043

202-448-9090

bgirard@democracyforward.org

srich@democracyforward.org

pboisture@democracyforward.org

Lee Gelernt

Omar Jadwat

Hina Shamsi

Am. Civil Liberties Union Found.

125 Broad Street 18th Floor

New York, NY 10004-2400

212-549-2607

lgelernt@aclu.org

ojadwat@aclu.org

hshamsi@aclu.org

Cody Wofsy

Am. Civil Liberties Union Found.

425 California Street, 7th Floor

San Francisco, CA 94104

415-343-0785

cwofsy@aclu.org

Michael L. Waldman

Kramer Levin Naftalis & Frankel LLP

2000 K Street, NW 4th Floor

Washington, DC 20006

202-775-4500

mwaldman@robbinsrussell.com

Scott M. Michelman

Arthur B. Spitzer

Am. Civil Liberties Union Found.

915 15th Street, NW

Washington, DC 20005

202-457-0800

smichrelman@acludc.org

aspitzer@acludc.org

Sarah M. Harris

Acting Solicitor General

United States Department of Justice

950 Pennsylvania Avenue, NW

Washington, DC 20530-0001

202-514-2217

supremectbriefs@usdoj.gov

The undersigned certifies that, on March 31, 2025, an original and two true and

correct copies of the foregoing document were sent to the Court via next-day courier.

/s/ Lawrence J. Joseph

__________________________

Lawrence J. Joseph

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.