United States District Court, District of Columbia
NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE, et al., Plaintiffs,
v.
DONALD J. TRUMP, et al., Defendants. TRUSTEES OF PRINCETON UNIVERSITY, et al., Plaintiffs,
v.
UNITED STATES OF AMERICA, et al., Defendants.
MEMORANDUM OPINION
JOHN
D. BATES, UNITED STATES DISTRICT JUDGE.
Before
the Court is [82] the government's motion for a stay
pending appeal of [69] the April 24, 2018 order vacating the
rescission of the Deferred Action for Childhood Arrivals
(“DACA”) program and [77] the August 3, 2018
order denying reconsideration of the April 24, 2018 order.
Also before the Court is [81] the government's unopposed
motion for clarification that the August 3, 2018 order was a
final, appealable judgment.
The
government seeks a stay of the Court's orders in their
entirety or, in the alternative, at least insofar as they
require the Department of Homeland Security
(“DHS”) to begin accepting applications for
initial grants of DACA benefits and for advance parole under
the DACA program. See Defs.' Mot. for a Stay
Pending Appeal (“Gov't's Mot.”) [ECF No.
82] at 1-2. Plaintiffs oppose the government's motion in
part, urging the Court not to stay its orders in their
entirety, but agreeing that a stay as to initial DACA
applications would be proper. See Pls.' Partial
Opp'n to Defs.' Mot. for Stay Pending Appeal
(“Pls.' Opp'n”) [ECF No. 83] at 1
(recognizing that “an imperfect ‘status
quo'-no new applicants, but renewals continue-has
developed”). For the reasons that follow, the
government's motion to clarify will be granted, and its
motion for a stay pending appeal will be granted in part. The
Court will stay its order as to new DACA applications and
applications for advance parole, but not as to renewal
applications.
The
Court is mindful that continuing the stay in this case will
temporarily deprive certain DACA-eligible individuals, and
plaintiffs in these cases, of relief to which the Court has
concluded they are legally entitled. But the Court is also
aware of the significant confusion and uncertainty that
currently surrounds the status of the DACA program, which is
now the subject of litigation in multiple federal district
courts and courts of appeals. Because that confusion would
only be magnified if the Court's order regarding initial
DACA applications were to take effect now and later be
reversed on appeal, the Court will grant a limited stay of
its order and preserve the status quo pending appeal, as
plaintiffs themselves suggest.
I.
Motion for Stay Pending Appeal
Under
Federal Rule of Civil Procedure 62(c), district courts
generally have the authority to stay their orders pending
appeal. Hilton v. Braunskill, 481 U.S. 770, 776
(1987). In determining whether to grant such a stay, courts
consider four factors: “(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.”
Id.; see also Wash. Metro. Area Transit
Comm'n v. Holiday Tours, Inc., 559 F.2d 841, 842-43
(D.C. Cir. 1977).
Traditionally,
courts in this Circuit have considered these factors on a
“‘sliding scale,' whereby ‘a strong
showing on one factor could make up for a weaker showing on
another.'” Cigar Ass'n of Am. v. FDA,
Civil Action No. 16-1460, 2018 WL 3304627, at *3 (D.D.C. July
5, 2018) (quoting Sherley v. Sebelius, 644 F.3d 388,
392 (D.C. Cir. 2011)). Although recent decisions of the
Supreme Court have called this approach into question,
[1]
“the district judges in this Circuit continue to adhere
to binding precedent and apply the sliding scale approach to
determine whether a movant is entitled to an injunction
pending resolution of its appeal, ” id.
(collecting cases), and plaintiffs do not dispute the
propriety of that approach here, see Pls.'
Opp'n at 2 n.1. Thus, if “the three other factors
strongly favor issuing” a stay, then the government
“need only raise a ‘serious legal question'
on the merits” for that stay to issue. Cigar
Ass'n of Am., 2018 WL 3304627, at *3 (quoting
Aamer, 742 F.3d at 1043); see also Holiday
Tours, 559 F.2d at 843 (“[A] court, when
confronted with a case in which the other three factors
strongly favor interim relief[, ] may exercise its discretion
to grant a stay if the movant has made a substantial case on
the merits.”).
As to
the first factor, the Court finds that the government's
appeal raises “serious legal question[s].”
Aamer, 742 F.3d at 1043. Those questions include
whether DHS's decision to rescind DACA was subject to
judicial review under the Administrative Procedure Act
(“APA”), see 5 U.S.C. § 701(a)(2)
(exempting from APA review “agency action [that] is
committed to agency discretion by law”), and, if so,
whether that decision was arbitrary and capricious,
see 5 U.S.C. § 706(2)(A). Of course, this Court
has already answered both questions in the affirmative: as
the Court has explained at length elsewhere, DACA's
rescission was both reviewable and unlawful because it was
based chiefly on a “virtually unexplained”
conclusion that DACA was unlawful. NAACP v. Trump,
298 F.Supp.3d 209, 249 (D.D.C. 2018). Nevertheless, the
government has assembled a “substantial case on the
merits, ” Holiday Tours, 559 F.2d at 843, and
the fact that the Court has thus far been unpersuaded by that
case does not preclude the issuance of a stay, see
id. (“The court . . . may grant a stay even though
its own approach may be contrary to [the] movant's view
of the merits.”); see also Jewish War Veterans of
the U.S., Inc. v. Gates, 522 F.Supp.2d 73, 79 (D.D.C.
2007) (granting a stay pending appeal where the nonmovant
argued that a D.C. Circuit decision was “directly on
point and controls the outcome of this
case”).[2]
The
remaining factors lend sufficient support to plaintiffs'
proposal for a limited stay pending appeal (i.e., as to
initial DACA applications and applications for advance parole
only) to render that stay appropriate in light of the
government's “substantial” legal case.
See Cigar Ass'n of Am., 2018 WL 3304627, at *4.
But they do not support the government's request for a
stay of the Court's order in its entirety.
The
second factor-the risk of irreparable injury to DHS-favors a
stay, but only as to initial DACA applications and
applications for DACA-based advance parole. The Court is
unmoved by the government's assertion of injury resulting
from its being “enjoined from implementing an act of
Congress.” Gov't's Mot. at 8. As the Court has
already explained, DHS has been implementing that act of
Congress (the Immigration and Nationality Act) under an
ill-considered (and hence possibly incorrect) understanding
of its enforcement authority. See NAACP, 298
F.Supp.3d at 249. Unlike an injunction prohibiting the
exercise of statutory authority altogether, see New Motor
Veh. Bd. of Cal. v. Orrin W. Fox Co., 434 U.S. 1345,
1351 (1977) (Rehnquist, J., in chambers) (concluding
“that any time a State is enjoined by a court from
effectuating statutes enacted by representatives of its
people, it suffers a form of irreparable injury”), this
Court's order simply corrects the improper exercise of
that authority. To the extent that such an injury is
cognizable at all, it is insufficient to justify staying the
Court's order here.
The
Court accepts, however, that the additional staff and other
resources required for DHS to process initial DACA
applications would constitute a cognizable injury. DHS
estimates that full implementation of the Court's order
would lead to the filing of over 100, 000 initial DACA
applications and 30, 000 requests for advance parole, which
would in turn require the hiring of 72 temporary employees
and the reassignment or hiring of 60 full-time employees.
See Gov't's Mot. at 9-10. But these burdens
apply only as to initial DACA applications, since DHS has
been accepting renewal applications since mid-2012, with the
exception of a brief period in late 2017 and early 2018.
See NAACP, 298 F.Supp.3d at 218-20.[3] The second factor
therefore favors plaintiffs' proposed limited stay, not
the government's full stay.
The
third factor, the risk of injury to plaintiffs, again favors
continuing the stay as to initial DACA applications and
applications for advance parole, but not as to renewal
applications. Although the government maintains that the
termination of existing DACA benefits-which would immediately
end DACA beneficiaries' work authorizations and could
lead to their removal from the United States-is not an
irreparable harm, this untenable proposition has been
rejected by this Court and by several others. See
NAACP, 298 F.Supp.3d at 245 (noting in the
stay-of-vacatur context that “each day that the agency
delays is a day that aliens who might otherwise be eligible
for initial grants of DACA benefits are exposed to removal
because of an unlawful agency action”); see also
Regents of the U. of Cal. v. DHS, 279 F.Supp.3d 1011,
1046-47 (N.D. Cal. 2018); Batalla Vidal v. Nielsen,
279 F.Supp.3d 401, 434-35 (E.D.N.Y. 2018). And although there
are currently two preliminary injunctions in place requiring
DHS to continue accepting renewal applications, as the Court
has previously noted, “those injunctions are both on
expedited appeals and hence could be reversed in the
not-too-distant future.” NAACP, 298 F.Supp.3d
at 245. This Court's order-which, unlike the preliminary
injunctions entered in parallel litigation, is a final
judgment-will therefore prevent irreparable harm to
plaintiffs and all current DACA beneficiaries should those
other injunctions be reversed. Hence, it will not be stayed
as to renewal applications.
By
contrast, the Court agrees with the district court in
Regents that “while plaintiffs have
demonstrated that DACA recipients . . . are likely to suffer
substantial, irreparable harm as a result of the rescission,
they have not made a comparable showing as to individuals who
have never applied for or obtained DACA” benefits. 279
F.Supp.3d at 1049; accord Batalla Vidal, 279
F.Supp.3d at 437 (“As in Regents, . . . the
court finds that the irreparable harms identified by
Plaintiffs largely result from Defendants' expected
failure to renew existing grants of deferred action and
especially work authorization, not from Defendants'
refusal to adjudicate new initial DACA applications.”).
The same is true of advance parole. See Regents, 279
F.Supp.3d at 1049 (concluding that “inability to travel
abroad . . . do[es] not amount to [a] hardship[] justifying a
provisional injunction requiring DHS to resume accepting
applications for advance parole”); Batalla
Vidal, 279 F.Supp.3d at 437 (citing Regents,
279 F.Supp.3d at 1048-49). Thus, like the second factor, the
third factor supports a stay as to initial DACA applications
and applications for advance parole, but not as to renewal
applications.
The
fourth and final factor-the public interest-also favors this
limited stay. The Court has already recognized the disruption
that would ensue if DHS were to begin accepting initial DACA
applications pursuant to the Court's order but that order
were later reversed on appeal. See NAACP, 298
F.Supp.3d at 244-45 (citing Allied-Signal, Inc. v. U.S.
Nuclear Reg. Comm'n, 988 F.2d 146, 150-51 (D.C. Cir.
1993)). Just as this potential for disruption previously
counseled in favor of a 90-day stay of the Court's order
of vacatur, see id., it now suggests that the public
interest would be served by a stay pending appeal as to
initial DACA ...