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National Association For Advancement of Colored People v. Trump

United States District Court, District of Columbia

August 3, 2018

DONALD J. TRUMP, et al., Defendants. TRUSTEES OF PRINCETON UNIVERSITY, et al., Plaintiffs,
UNITED STATES OF AMERICA, et al., Defendants.



         This litigation concerns the Department of Homeland Security's (“DHS”) September 5, 2017 decision to rescind the Deferred Action for Childhood Arrivals (“DACA”) program. In April 2018, this Court held that decision unlawful and set it aside, concluding both that it was reviewable under the Administrative Procedure Act (“APA”) and that the reasons given to support it were inadequate. See NAACP v. Trump, 298 F.Supp.3d 209, 249 (D.D.C. 2018). However, because the Court also determined that DHS could possibly remedy the decision's inadequacies-at least in theory-the Court stayed its order of vacatur for a period of ninety days. See id.

         That ninety-day period has now expired. In the interim, DHS has issued a new memorandum “concur[ring] with and declin[ing] to disturb” its September 2017 rescission decision. Mem. from Sec'y Kirstjen M. Nielsen (“Nielsen Memo”) [ECF No. 71-1] at 3.[1] Also, the government has now moved the Court to revise its April 2018 order, arguing that the Nielsen Memo demonstrates that DACA's rescission was neither unlawful nor subject to judicial review. See Defs.' Mot. to Revise the Court's April 24, 2018 Order (“Gov't's Mot.”) [ECF No. 74].

         For the reasons explained below, the government's motion will be denied. Although the Nielsen Memo purports to offer further explanation for DHS's decision to rescind DACA, it fails to elaborate meaningfully on the agency's primary rationale for its decision: the judgment that the policy was unlawful and unconstitutional. And while the memo offers several additional “policy” grounds for DACA's rescission, most of these simply repackage legal arguments previously made, and hence are “insufficiently independent from the agency's evaluation of DACA's legality” to preclude judicial review or to support the agency's decision. NAACP, 298 F.Supp.3d at 235. Finally, the memo does offer what appears to be one bona fide (albeit logically dubious) policy reason for DACA's rescission, but this reason was articulated nowhere in DHS's prior explanation for its decision, and therefore cannot support that decision now.

         By choosing to stand by its September 2017 rescission decision, DHS has placed itself in a dilemma. On the one hand, it cannot rely on the reasons it previously gave for DACA's rescission, because the Court has already rejected them. On the other, because “an agency's action must be upheld, if at all, on the basis articulated by the agency itself, ” Motor Vehicle Mfrs. Ass'n of the U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 50 (1983), DHS also cannot rely on new reasons that it now articulates for the first time. The government's attempt to thread this needle fails. The motion to revise the Court's April 2018 order will therefore be denied, and the Court's vacatur of DACA's rescission will stand.


         The DACA program offers renewable, two-year grants of deferred action to certain undocumented aliens who were brought to the United States as children. See NAACP, 298 F.Supp.3d at 216 (describing DACA's eligibility criteria in greater detail). A grant of deferred action under DACA guarantees not only that the recipient will not be removed from the United States during the relevant time period, but also that she will be able to live, work, and contribute to society in various ways. See id. at 216-17 (discussing DACA's ancillary benefits). Since DACA's implementation in 2012, nearly 800, 000 individuals have received grants of deferred action under the program. Id. at 17.

         In 2014, DHS implemented a similar program, Deferred Action for Parents of Americans (“DAPA”), which would have offered renewable grants of deferred action to the noncitizen parents of U.S. citizens or lawful permanent residents. Id. at 217. Before DAPA could take effect, however, several states-led by Texas-challenged it in federal court. Id. A district court preliminarily enjoined DAPA in 2015, and the following year the Supreme Court affirmed the district court's preliminary injunction by an equally divided vote. See id. at 217-18 (citing United States v. Texas, 136 S.Ct. 2271 (2016) (mem)). Litigation over DAPA continued until June 2017, when, following the election of President Trump, DHS rescinded the program. Id. at 18.

         On September 5, 2017, purportedly in response to threats from the plaintiffs in the Texas litigation, DHS rescinded the DACA program as well. Id. at 218-19. A flurry of court challenges followed, each of whose procedural history is described more fully in the Court's prior opinion. See id. at 219-22. For present purposes, it suffices to say that DACA's rescission has been preliminarily enjoined by two district courts, one in California and one in New York, and that the government's appeals of those injunctions are currently pending. See Regents of the Univ. of Cal. v. U.S. Dep't of Homeland Sec., 279 F.Supp.3d 1011, 1048 (N.D. Cal. 2018), appeal docketed, No. 18-15068 (9th Cir. Jan. 16, 2018); Batalla Vidal v. Nielsen, 279 F.Supp.3d 401, 437-38 (E.D.N.Y. 2018), appeal docketed, No. 18-485 (2d Cir. Feb. 20, 2018). Also currently pending before the Fourth Circuit is an appeal of a Maryland district court's dismissal of a challenge to DACA's rescission. Casa De Maryland v. U.S. Dep't of Homeland Sec., 284 F.Supp.3d 758, 779 (D. Md. 2018), appeal docketed, No. 18-1522 (4th Cir. May 8, 2018).

         The cases before this Court, which present challenges to DACA's rescission on both administrative and constitutional grounds, were filed in late 2017 and consolidated for purposes of the dispositive motions filed in each. See NAACP, 298 F.Supp.3d at 222-23. After holding a hearing on those motions, the Court entered judgment in plaintiffs' favor on their APA claims. See id. at 223, 249. The Court held, among other things, that: (1) DHS's September 5, 2017 decision to rescind DACA was reviewable under the APA because it was predicated chiefly on the agency's legal judgment that DACA was unlawful, see id. at 226-235; and (2) the decision was arbitrary and capricious because (a) DHS's legal judgment was inadequately explained, see id. at 238-240, and (b) the other reasons offered for DACA's rescission-mainly, the purported “litigation risk” that DACA would be preliminarily enjoined by the district court in Texas-were insufficiently reasoned, see id. at 241-243. Hence, the Court vacated DACA's rescission on administrative grounds, see id. at 243-46, and deferred ruling on the bulk of plaintiffs' constitutional claims, id. at 246.

         However, because the Court's decision was based in large part on its conclusion that DHS's legal judgment was “virtually unexplained, ” the Court stayed its order of vacatur for 90 days to allow DHS “to better explain its view that DACA is unlawful.” Id. at 249. During that 90-day period, the Court explained,

the Secretary of Homeland Security or her delegate may reissue a memorandum rescinding DACA, this time providing a fuller explanation for the determination that the program lacks statutory and constitutional authority. Should the Department fail to issue such a memorandum within 90 days, however, the Rescission Memo will be vacated in its entirety, and the original DACA program will be restored in full.

Id. at 245-46. The order accompanying the Court's opinion directed the parties to inform the Court before the stay expired as to “whether DHS has issued a new decision rescinding DACA and whether the parties contemplate the need for further proceedings in this case.” Apr. 24, 2018 Order [ECF No. 69] at 2.[3]

         In late June, Secretary of Homeland Security Kirstjen M. Nielsen issued a memorandum responding to the Court's order. See Nielsen Memo at 1. Instead of issuing a new decision rescinding DACA, as the Court's order had contemplated, Secretary Nielson simply “declin[ed] to disturb” the earlier decision to rescind the program by then-Acting Secretary of Homeland Security Elaine C. Duke.[4] Id. Secretary Nielsen then went on to offer several reasons why “the decision to rescind the DACA policy was, and remains, sound.” Id.

         Specifically, Secretary Nielsen opined that: (1) “the DACA policy was contrary to law”; (2) regardless of whether DACA was in fact contrary to law, the program “was appropriately rescinded . . . because there are, at a minimum, serious doubts about its legality”; and (3) other “sound reasons of enforcement policy” supported DACA's rescission. Id. at 2. The reasons in this last category included that: (a) DHS “should not adopt public policies of non-enforcement of [federal] laws for broad classes and categories of aliens, ” particularly aliens whom “Congress has repeatedly considered but declined to protect”; (b) “DHS should only exercise its prosecutorial discretion not to enforce the immigration laws on a truly individualized, case-by-case basis”; and (c) “it is critically important for DHS to project a message that leaves no doubt regarding the clear, consistent, and transparent enforcement of the immigration laws, ” particularly given that “tens of thousands of minor aliens have illegally crossed or been smuggled across our border in recent years.” Id. at 2-3. Finally, Secretary Nielsen wrote that although she was “keenly aware that DACA recipients have availed themselves of the policy in continuing their presence in this country, ” she nonetheless “do[es] not believe that the asserted reliance interests outweigh the questionable legality of the DACA policy and the other reasons [given] for ending [it].” Id. at 3.

         In July, following the issuance of the Nielsen Memo, the government filed the instant motion to revise the Court's April 24, 2018 order. According to the government, the Nielsen Memo demonstrates that DHS's September 2017 decision to rescind DACA was neither subject to judicial review nor arbitrary and capricious. See Gov't's Mot. at 1-2. This is so, the government contends, because Secretary Nielsen's articulation of “serious doubts” regarding DACA's legality, see id. at 5-13, as well as her “additional” discussion of enforcement-policy concerns, see id. at 14-16, “confirm[]” that the rescission was both an exercise of enforcement discretion (as opposed to a legal judgment) and, at a minimum, reasonable, id. at 1. Thus, the government asks the Court either to dismiss all of plaintiffs' claims (including their constitutional claims) or to enter judgment in its favor. See id. at 18-19. Finally, the government states that, if the Court denies the motion, it intends to seek “a further continuation of the stay of the vacatur order, ” either “to consider seeking a stay pending appeal or to give DHS time to appropriately prepare” to accept new DACA applications, “which DHS has generally not accepted since September 5, 2017.” Id. at 19 n.4.

         Plaintiffs offer several arguments in response. First, they contend, the Court should not even consider Secretary Nielsen's memorandum, because it is not “the new agency action [the] Court anticipated [DHS] might take” during the ninety-day stay-of-vacatur period. See Pls.' Opp'n to Defs.' Mot. to Revise the Court's Apr. 24, 2018 Order (“Pls.' Opp'n”) [ECF No. 75] at 3-8. Second, they argue that if the Court considers the Nielsen Memo at all, it should consider only the memorandum's legal analysis, because the remainder of the memorandum offers impermissible post hoc rationalizations of DHS's rescission decision. See id. at 8-10 (citing Food Mktg. Inst. v. ICC, 587 F.2d 1285, 1290 (D.C. Cir. 1978)). Third, they contend that even if the Court considers the Nielsen Memo in full, its arguments present no reason to reconsider the Court's prior determination that DACA's rescission was both judicially reviewable, see id. at 10-14, and arbitrary and capricious, see id. at 15-20. Therefore, plaintiffs ask the Court to deny DHS's motion and to allow the vacatur of DACA's rescission to take effect. See id. at 20.


         I. The Court Will Consider the Nielsen Memo

         As a threshold matter, plaintiffs argue that the Court should refuse to consider the Nielsen Memo it its entirety, because instead of issuing a new rescission decision, the memo simply adopts and further explains DHS's September 2017 rescission decision. See Pls.' Opp'n at 3-8.[5] The government objects that this argument “inappropriately elevate[s] form over substance” and that agencies “routinely rectify decisions that are deemed inadequately supported on remand without vacatur.” Reply in Supp. of Defs.' Mot. to Revise the Court's April 24, 2018 Order (“Gov't's Reply”) [ECF No. 76] at 1 (citations omitted). Here, the Court agrees with the government. It will therefore consider the Nielsen Memo.

         As the government correctly points out, courts regularly remand challenges to agency action for further “elaboration of [the agency's] reasoning.” A.L. Pharma, Inc. v. Shalala, 62 F.3d 1484, 1492 (D.C. Cir. 1995). Nonetheless, relying on Judge Silberman's separate opinion in Checkosky v. SEC, 23 F.3d 452 (D.C. Cir. 1994), plaintiffs appear to suggest that courts can consider such further explanations only before holding an agency action unlawful-and that, consequently, this Court is powerless to consider the Nielsen Memo's explanation of DHS's rescission decision because it has already held that decision unlawful. See Pls.' Opp'n at 4 (“[W]hile courts do sometimes solicit further explanation of an action before deciding whether it is arbitrary and capricious, that is not what this Court did here.”).

         But neither Judge Silberman's opinion in Checkosky nor any of the other cases on which plaintiffs rely go so far. Rather, Judge Silberman explained that “courts will often . . . pause before exercising full judicial review and remand to the agency for a more complete explanation” and noted that “[i]n many of these cases”-but not all of them-courts “make clear” that they “have not found the agency action to be arbitrary and capricious.” Checkosky, 23 F.3d at 463 (opinion of Silberman, J.) (emphasis added); see, e.g., City of Charlottesville v. FERC, 661 F.2d 945, 954 (D.C. Cir. 1981) (reversing an agency's orders because they “were not based upon substantial evidence” and remanding for further proceedings); id. at 955 (Wald, J., concurring) (urging the agency “on remand to attempt a clearer articulation and reconciliation of its” apparently contradictory explanations for its orders). Thus, although it may be true that courts usually consider additional explanation before invalidating an agency's action, plaintiffs cite no authority for the proposition that courts must maintain this order of operations. Indeed, such a rule would be inconsistent with the district courts' broad ...

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