5th Circuit, Federal Circuit

5th Circuit Continues Temporary Bar Of Immigration Executive Action

The United States Court of Appeals for the Fifth Circuit, in an extensive but divided panel opinion, today denied the Obama Administration’s request to stay a preliminary injunction of its immigration executive action to grant work authorization to several million aliens.

By Leland E. Beck  
on

Ed note: This post originally appeared on Federal Regulations Advisor: Inisght And Commentary on U.S. Government Regulatory Affairs.

The United States Court of Appeals for the Fifth Circuit, in an extensive but divided panel opinion, today denied the Obama Administration’s request to stay a preliminary injunction of its immigration executive action to grant work authorization to several million aliens. Texas and 25 other states challenged the specific executive action claiming (among other things) that the government was required to, but did not, promulgate a substantive rule under the Administrative Procedure Act (APA). The district court determined that Texas was likely to succeed on this procedural APA claim and temporarily enjoined implementation of the program pending final resolution of the merits. The government appealed the preliminary injunction and moved for a stay pending resolution of the merits of that appeal. Finding that the government was unlikely to succeed on the merits of the appeal from the preliminary injunction, a divided panel of the Fifth Circuit denied the motion for a stay and a request to narrow the scope of the injunction.

The Fifth Circuit panel decided a narrow issue in Texas v. United States – relief from a preliminary injunction – not whether the Department of Homeland Security (DHS) may implement the Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) program without promulgating a final rule after advance notice and an opportunity for public comment. The contest long chronicled in this blog will continue for some time to come.

In the district court, Texas claimed that DAPA:

  1. was procedurally unlawful under the APA because it amounts to a substantive rule that is required to undergo notice and comment, but DHS had not followed APA procedures;
  2. was substantively unlawful under the APA because DHS lacked the authority to implement the program even if it did follow the correct process; and
  3. violated the President’s constitutional duty to “take Care that the Laws be faithfully executed.”

Critical here is Texas’ logic: DAPA authorizes a class of aliens with no status in the United States to acquire an employment authorization document, and that authorization permits them to acquire a drivers’ license. Texas argued that it does not recoup the full cost of issuing such licenses and would suffer irreparable injury through a distinct economic loss (per license and en gross) if DHS implements DAPA.

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On February 16, 2015, the district court entered the preliminary injunction after concluding that Texas had standing and had shown a substantial likelihood of success on the merits of its claim that DAPA’s implementation would violate the APA’s notice-and-comment requirements. The district court did not reach the other issues. The Department of Justice (DOJ) moved to stay the preliminary injunction, which the district court denied.

DOJ then sought a stay of the preliminary injunction pending appeal in the Fifth Circuit based on its substantive position that Texas and other plaintiffs do not have standing or a right to judicial review under the APA, and, alternatively, that DAPA is exempt from the notice-and-comment requirements. DOJ urged also that the injunction’s nationwide scope is an abuse of discretion. Despite a request for expedited consideration, the panel required full briefing and (quite extraordinarily) held two hours of oral argument on April 17, 2015.

DOJ faced a difficult task in seeking the stay as noted previously in this blog, just as the court recited its standard of review (a recast of the familiar standards for the initial preliminary injunction):

We consider four factors in deciding whether to grant a stay pending appeal: (1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies. To succeed on the merits, the government must show that the district court abused its discretion by entering a preliminary injunction. A decision grounded in erroneous legal principles is reviewed de novo, and findings of fact are reviewed for clear error. A stay ‘is not a matter of right, even if irreparable injury might otherwise result to the appellant.

(footnotes and quotations omitted).

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The standing issues – an injury in fact that is concrete, particularized, and actual or imminent, the injury is fairly traceable to the challenged action, and the injury is redressable by the court – warranted substantial attention. So too, substantial attention is paid to whether judicial review is precluded by statute or “committed to agency discretion.” The panel found that DOJ’s arguments failed to establish sufficiently a likelihood of success on the merits.

The more specific substance of the regulatory problem was whether DHS was required to promulgate a rule to establish DAPA and the standard applied by the court was whether DOJ and DHS “made a strong showing that DAPA does not require notice and comment.” Applying a significant dose of precedent from the United States Court of Appeals for the District of Columbia Circuit as well as its own, a majority of the panel found that appellants had not succeeded.

The decision is narrow and narrow in application – it resolves only the motion for a stay of the preliminary injunction or a narrowing of that preliminary injunction; the panel decision does not resolve the appeal from the preliminary injunction (tentatively scheduled for argument in early July), or any appeal on the merits (which the district court has yet to decide. “Because the government is unlikely to succeed on the merits of its appeal of the injunction, we deny the motion for stay and the request to narrow the scope of the injunction.”

The Administration’s DAPA program remains on hold and will remain on hold for substantially longer.

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